author: CRENSHAW, Judge.

text:
    The BOARD OF TRUSTEES OF the CITY PENSION FUND FOR FIREFIGHTERS AND POLICE OFFICERS IN the CITY OF TAMPA, Appellant, v. John N. PARKER, for himself and all others similarly situated, Appellee.
    No. 2D11-4825.
    District Court of Appeal of Florida, Second District.
    April 3, 2013.

      Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale; and Patrick H. Gonyea of DLD Lawyers, Coral Gables, for Appellant.
    Katherine E. Giddings of Akerman Sen-terfitt, Tallahassee; Gerald B. Cope, Jr. of Akerman Senterfitt, Miami; and Wayne L. Thomas of Akerman Senterfitt, Tampa, for Appellee.
   CRENSHAW, Judge.

The Board of Trustees of the City Pension Fund for Firefighters and Police Officers in the City of Tampa (the Board) challenges an award of attorney’s fees to John N. Parker, as representative of a class of retired firefighters and police officers of the City of Tampa who are recipients of a “13th check.” Because the trial court erred in determining that chapters 175 and 185, Florida Statutes, and the substantial benefit doctrine govern the fee award in this case, rather than the common fund doctrine, we reverse. We affirm the amount of the fees, including the award of the contingency fee multiplier. We also certify a question to be of great public importance.

Background

John Parker is a retired firefighter for the City of Tampa and a beneficiary of the City Pension Fund for Firefighters and Police Officers in the City of Tampa. He brought an action in the circuit court challenging the Board’s decision not to issue a supplemental benefit, the “13th check,” for fiscal year 2004, discussed more thoroughly below. He was certified as a class representative for other beneficiaries of the 13th check program. Two hundred forty-three of the 13th check beneficiaries opted out of the litigation. Thereafter, once the Board determined its decision not to issue the 13th check was erroneous, the Board and Parker settled the case. The circuit court approved the settlement.

Parker sought attorney’s fees on behalf of himself and the class and included a request for a contingency fee multiplier. The circuit court awarded fees with a contingency fee multiplier of 2.0, holding the fees were authorized by sections 175.061 and 185.05, Florida Statutes (2010), and the substantial benefit doctrine. In the trial court, the Board challenged the amount of fees as well as the source of their payment.

The 13th Check Program

The State of Florida has authorized local governments to enter into contracts, pursuant to special laws and local ordinances, regarding pension funds with firefighters and police officers. See ch. 175, Fla. Stat. (2010) (firefighter pensions); ch. 185, Fla. Stat. (2010) (municipal police pensions). Specifically, pursuant to chapter 31810, Laws of Florida (1955), as amended by, inter alia, 2001-288, Laws of Florida, the City of Tampa is authorized to enter into a contract with its firefighters and police officers for their pensions. Ch. 01-288, § 1, at 3261, Laws of Florida (hereinafter Special Law). In 1998, the legislature added the 13th check program, a “supplemental pension distribution ... [for a]ll retired members who have terminated employment ... [and who] were eligible to receive pension benefits for at least 1 year.” Ch. 98-515, § 5, at 279, Laws of Florida (modified by, inter alia, Special Law § 27(A)). To that end, there exists within the pension fund a separate account specifically for 13th check program distributions. The provisions of the 13th check program do not apply to all of the pensioners generally, a fact critical to our determination of this ease.

In 2004, the Board determined it was not required to issue the 13th check and declined to do so in order to recoup cumulative actuarial losses to the pension fund even though it had earned a return on its investment sufficient to pay the 13th check. As the complaint alleged and the trial court’s judgment approving the settlement held, “there is no requirement in the 13th Check Program of the Pension Contract that all prior investment losses be made up in order for the 13th Check Program to be funded. Rather, there is only the actuarial requirement that the Base Plan have ‘cumulated actuarial gain.’ ”

Chapters 175 and 185 Do Not Apply

Attorney’s Fees and the American Rule

“Florida courts follow the ‘American Rule’ that attorney’s fees may only be awarded pursuant to an entitling statute or agreement among the parties.” Am. Family Mut. Ins. Co. v. Alvis, 72 So.3d 314, 317 (Fla. 2d DCA 2011) (citing Dade Cnty. v. Pena, 664 So.2d 959, 960 (Fla.1995)); see also State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla.1993). Courts are hesitant to create exceptions to this rule. Reiterer v. Monteil, 98 So.3d 586, 587 (Fla. 2d DCA 2012). This case is governed neither by an express statutory provision nor by the parties’ contract.

No Express Statutory Authorization for Fees

Reviewing the entitlement to fees de novo, we conclude that this case is not governed by chapters 175 and 185. See Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquis. Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010). Chapters 175 and 185 relate generally to firefighter and police pensions in Florida including such issues as requirements for retirement, § 175.162; beneficiaries, § 175.181; and disability retirement, § 175.191. See, e.g., Bd. of Trs. of Miami Firefighters’ & Police Officers’ Ret. Trust v. Fernandez, 675 So.2d 638 (Fla. 3d DCA 1996) (discussing disability retirement); Haddix v. City of Pan. City, 624 So.2d 801 (Fla. 1st DCA 1993) (discussing city’s contributions).

This case is distinct from Fernandez and Haddix because this litigation challenges the Board’s payments under the Special Law’s 13th check program, which is unique to the City of Tampa. The Special Law is not part of the general statutory construct of chapters 175 and 185. It does not apply statewide, and it has not often been, if ever, reproduced in other jurisdictions. We are not persuaded that the Florida Legislature intended that a unique program, established solely by a special law specific to one jurisdiction, be controlled by an attorney’s fee provision found in a regimen governing pension funds statewide. See Fla. Dep’t of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070, 1074 (Fla.2011) (stating that legislative intent is guided by statutory analysis); Mendenhall v. State, 48 So.3d 740, 748 (Fla.2010) (“ ‘[A] special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms.’ ” (quoting McDonald v. State, 957 So.2d 605, 610 (Fla.2007))). In recognizing that chapters 175 and 185 do not control the award of attorney’s fees here, we turn next to an explanation of the common fund doctrine, which should have been applied in this case.

The Common Fund Doctrine Applies

The trial court awarded Parker and the class fees based on the substantial benefit doctrine rather than the common fund doctrine. Although this was error, it is understandable because these doctrines are similar. However, there are significant consequences to using one doctrine over the other, and the doctrines are guided by different policies. We further note that Florida has not adopted the substantial benefit doctrine. We decline to do so now because it is contrary to the American Rule and, in this case, causes unjust results.

In determining which doctrine applies we look at two key elements: (1) whether there exists a separate fund from which payment can be made, and (2) whether the relief in the case is primarily pecuniary. See Serrano v. Unruh, 32 Cal.3d 621, 186 Cal.Rptr. 754, 652 P.2d 985, 989 (1982); see also Truman J. Costello, P.A. v. City of Cape Coral, 693 So.2d 48, 51 (Fla. 2d DCA 1997) (discussing the importance of a fund); Stavenjord v. Mont. State Fund, 334 Mont. 117, 146 P.3d 724, 730-31 (2006) (discussing the common fund doctrine as composed of elements); Knebel v. Capital Nat’l Bank in Austin, 518 S.W.2d 795, 801 (Tex.1974) (discussing the importance of a pecuniary benefit). When both elements are met, the common fund doctrine applies; when they are not, the substantial benefit doctrine may apply.

This court has recognized that Florida has adopted the common fund doctrine:

[I]n its simplest terms, [the doctrine] provides that when litigation contributes substantial benefits to persons not party to the litigation and a fund is established from which the benefits will be paid, the persons responsible for gaining the benefit should be entitled to costs and attorney’s fees paid from the fund.

Costello, 693 So.2d at 49. Under this doctrine, where a fund is established for the benefit of a group, that fund will be used to pay attorney’s fees that benefit the group as a whole. See id. Although here some members of the group for which the fund is established have opted out of the litigation, it is equitable for them to contribute to the costs thereof because the litigation inures to their benefit.

The common fund doctrine is not contrary to the American Rule. Rather than fee-shifting, which is contrary to the American Rule, the common fund doctrine authorizes fee-sharing: fees are shared between the litigants and the fund’s beneficiaries (of which the litigants are a part), but fees are not shifted between parties adverse to one another. Kuhn v. State, 924 P.2d 1053, 1057-58 (Colo.1996) (“Thus, unlike statutory fees, which result in a shifting of the fee burden to the losing party, common fund fees result in a sharing of the fees among those benefited by the litigation.” (quoting Brown v. Phillips Petrol. Co., 838 F.2d 451, 454 (10th Cir. 1988))); Morris B. Chapman & Assocs. v. Kitzman, 193 Ill.2d 560, 251 Ill.Dec. 141, 739 N.E.2d 1263, 1271 (2000) (“The common fund doctrine does not authorize a party to shift fees to an adversary, but rather authorizes the spread of fees among those who benefítted from the litigation In contrast, the substantial benefit doctrine is more in the nature of traditional fee-shifting between adversaries. See Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 392, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) (stating that the “exception has been to award expenses where a plaintiff has successfully maintained a suit, usually on behalf of a class, that benefits a group of others in the same manner as himself’). This is a principal reason we do not adopt it.

Both elements that implicate use of the common fund doctrine are met in this case: the presence of a fund and a pecuniary benefit to a party. First, the class sought remuneration for the failure of the Board to issue the 13th check; the litigation resulted in the creation of a fund from which to pay the proceeds. Importantly, this fund paid benefits to all of the 13th check program beneficiaries and did not pay out to other pensioners who are not part of the 13th check program. To apply the common fund doctrine is equitable because it prevents a windfall to both the 13th cheek program participants and to the litigation opt-outs. Second, the remedy obtained in this case is primarily pecuniary, notwithstanding the de minimis change in the Board’s interpretation of the 13th check program: the Board had to disburse money to 13th check program participants. In the present case, the elements comprising the common fund doctrine are met. This compels its use, rather than that of the substantial benefit doctrine. Moreover, the substantial benefit doctrine is ill-suited to the facts of this case and is alien to Florida law. While there may be an appropriate case in which to adopt the substantial benefit doctrine in the future, an argument we do not foreclose, this is not that case.

The Contingency Risk Multiplier

The standard of review regarding the application of a multiplier is for an abuse of discretion. USAA Cas. Ins. Co. v. Prime Care Chiro. Ctrs., P.A., 93 So.3d 345, 347 (Fla. 2d DCA 2012). Our task, therefore, is to determine whether there is competent, substantial evidence to support the trial court’s application of the multiplier. Id. Such evidence must support findings regarding “ ‘(1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel[,]’” (2) the attorney’s ability to mitigate risk of nonpayment, and (3) the factors set out in Florida Patients’ Compensation Fund v. Rowe. Id. (quoting Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 834 (Fla. 1990)). The record reflects that the trial court made its determination after receiving competent, substantial evidence on each of these issues. We therefore affirm the contingency fee award.

Conclusion

The common fund doctrine governs this case, and because the trial court erred in applying chapters 175 and 185 and the substantial benefit doctrine, we reverse. We remand for further proceedings in accordance with this opinion and certify the following question to be of great public importance:

ARE THE PREVAILING PARTY ATTORNEY’S FEES PROVISIONS OF SECTIONS 175.061(5) AND 185.05(5), FLORIDA STATUTES, APPLICABLE TO JUDICIAL PROCEEDINGS TO ENFORCE CLAIMS UNDER LOCAL LAWS PLANS OR SPECIAL ACTS?

Reversed in part; affirmed in part; remanded; question certified.

VILLANTI and MORRIS, JJ, Concur.

      . Sections 175.061(5) and 185.05(5) contain prevailing party language that the special law at issue in this case does not: "In any judicial proceeding or administrative proceeding under chapter 120 brought under or pursuant to the provisions of this chapter, the prevailing party shall be entitled to recover the costs thereof, together with reasonable attorney's fees."

      . Thus, this is a case where the benefit is primarily monetary, in contrast to cases modifying interpretations of other statutory rights, such as Hall v. Cole, 412 U.S. 1, 5, 7, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), which primarily addressed the "Bill of Rights of Members of Labor Organizations” under the Labor-Management Reporting and Disclosure Act of 1959.

      . The substantial benefit doctrine "developed as a variant of the common-fund theory.” Serrano, 186 Cal.Rptr. 754, 652 P.2d at 989. It has generally been applied in federal securities cases. The substantial benefit doctrine is one of equity that allows courts to shift attorney's fees in the absence of statutory or contractual authorization and has specifically been used in federal securities cases, especially shareholder derivative actions. Hall v. Cole, 412 U.S. 1, 5, 7, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills, 396 U.S. at 394, 90 S.Ct. 616 ("This development has been most pronounced[] in shareholders’ derivative actions....”); Sprague v. Ticonic Nat’l Bank, 307 U.S, 161, 59 S.Ct. 777, 83 L.Ed. 1184(1939).
      In Costello, we discussed Sprague as one volume of the federal trilogy establishing the common fund doctrine. 693 So.2d at 49-50. Sprague is the common root the doctrines share, but the common fund doctrine has been more fully developed and widely accepted than has the substantial benefit doctrine. See York Ins. Grp. of Me. v. Van Hall, 704 A.2d 366, 368 & n. 3 (Me. 1997) (stating that the majority of jurisdictions have adopted the common fund doctrine). Our review of the caselaw from our sister states indicates only a minority of them have even discussed the substantial benefit doctrine.

      . 472 So.2d 1145 (Fla. 1985).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas W. FRANK, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D12-5989.
    District Court of Appeal of Florida, First District.
    April 5, 2013.
    Rehearing Denied May 29, 2013.
    Thomas W. Frank, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

VAN NORTWICK, THOMAS, and ROBERTS, JJ, concur.


text:
    John G. RICHARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-840.
    District Court of Appeal of Florida, Fifth District.
    April 19, 2013.
    Rehearing Denied May 28, 2013.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm in all respects, except that the judgment and scoresheet shall be corrected to reflect that Count I is a first-degree felony, rather than a life felony. Because the correct score was indicated and used in the computation, it is not necessary that Appellant be re-sentenced or that he be present when the documents are corrected.

AFFIRMED AND REMANDED.

TORPY, EVANDER and JACOBUS, JJ., concur.


text:
    Robert Wilton COX, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5278.
    District Court of Appeal of Florida, Second District.
    April 24, 2013.
    Rehearing Denied May 30, 2013.
    Robert Wilton Cox, Jr., pro se.
   PER CURIAM.

Robert Wilton Cox, Jr., appeals the order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 in August 2012. We affirm without discussion the denial of all of the grounds of his motion except one.

In ground eight, Mr. Cox argued that he was denied due process when he was forced to proceed to trial while incompetent. He claimed that the trial court entered an order for a competency examination and an order appointing examiners, but that no further action occurred to resolve the issue before he was tried. He asserted that his lawyer was ineffective in this regard.

The posteonviction court did not attach to its order portions of the record refuting this claim. The record tends to support Mr. Cox’s factual allegations that an order for a competency examination is in the trial court record and that no further action was taken on the order. Accordingly, we reverse the postconviction court’s order on this claim. On remand, the court shall attach the portions of the record that conclusively refute ground eight or conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded with directions.

ALTENBERND, NORTHCUTT, and MORRIS, JJ., Concur.


author: JACOBUS, J.

text:
    SCHOOL BOARD OF SEMINOLE COUNTY, Florida, Appellant, v. RENAISSANCE CHARTER SCHOOL, INC., and Renaissance Charter School at Seminole, Appellees.
    No. 5D12-2473.
    District Court of Appeal of Florida, Fifth District.
    April 26, 2013.
    Rehearing Denied May 28, 2013.

      Donna E. Blanton of Radey Thomas Yon & Clark, P.A., Tallahassee, and Ned N. Julian, Jr., Serita D. Beamon of Seminole County Schools, Sanford, for Appellant.
    Edward J. Pozzuoli and Stephanie Alexander of Tripp Scott, P.A., Fort Lauder-dale, for Appellees.
   JACOBUS, J.

The School Board of Seminole County, Florida (“School Board”) timely appeals an order of the Florida State Board of Education (“State Board”). The order allows Renaissance Charter School, Inc., and Renaissance Charter School at Seminole (collectively “Renaissance”) to operate a charter school in Seminole County over the objections of the School Board. We reverse.

On August 1, 2011, Renaissance filed an application with the School Board to open a new charter school in Seminole County in the fall of 2012. The proposed school was to be named the Renaissance Charter School at Seminole and was to serve grades K through 6 in its first year, grades K through 7 in its second year, and grades K through 8 thereafter. Renaissance hoped to open the school with 862 students and to grow to 1,415 students by its fifth year. The application was made pursuant to section 1002.331, Florida Statutes (2011), which allowed Renaissance to replicate a “high-performing” charter school already in operation. The high-performing charter school that Renaissance professed to be replicating was the North Broward County Academy of Excellence Middle School, a middle school which serves grades 6 through 8. The school was to be managed by Charter Schools USA, an “education service provider” (“ESP”), which manages approximately thirty schools in three states.

A workshop was held on the application, and the superintendent, Bill Vogel, completed a twenty-five page, State Board-required Florida Charter School Application Evaluation Instrument with respect to the application. See Fla. Admin. Code R. 6A-6.0786. Based on the criteria outlined in the instrument, the superintendent recommended the denial of Renaissance’s application. The School Board later voted unanimously in favor of denial and the outcome was formally communicated to Renaissance in a letter dated October 6, 2011. The four-page letter stated the application had been denied because Renaissance’s proposed program: 1) did not substantially replicate the educational program of the high-performing charter school; 2) did not provide an adequate financial plan; 3) failed to identify how it would meet the statutorily-defined purpose of meeting high standards of student achievement; 4) failed to show an arm’s length relationship between the school’s ESP, Charter Schools USA, and the governing board; and 5) did not have a sufficient plan for English language learners (“ELL”).

Renaissance appealed the School Board’s denial of its application to the State Board on November 7, 2011. The record provided to the State Board included the application, a copy of the letter from the School Board denying the application, and a video transcript of the school board meeting. The School Board’s response included all relevant documents, including a transcript of the workshop. At a hearing on the appeal, the State Board heard numerous charter school appeals. After cursory discussion and an agreement that the issues were essentially the same as involved in a prior appeal, the State Board unanimously “granted” Renaissance’s appeal. The Commissioner of Education’s final order memorializing the State Board’s decision was entered on May 21, 2012. The reason given for reversing the School Board’s decision was that it had “failed to show by clear and convincing evidence that the Charter Applicant’s application did not materially comply with the requirements of Section 1002.33(6)(c)3.b., Florida Statutes.”

The School Board appealed the State Board’s order, requiring it to permit Renaissance to open and operate a charter school in Seminole County. Among the numerous reasons given to reverse the State Board’s decision, we find one issue dispositive of the appeal. We agree with the School Board that Renaissance’s proposed charter school’s educational program did not “substantially replicate” that of the high-performing charter school being replicated — that of North Broward Academy of Excellence Middle School— and that the order granting Renaissance’s application must therefore be reversed.

The “substantially replicates” requirement is contained in those provisions of the charter school statute which refer to “high-performing” charter schools. Schools identified as “high-performing” charter schools pursuant to section 1002.331, Florida Statutes, are given preferential treatment in the application process. They are entitled to submit an application to a sponsor to establish and operate a new charter school that will “substantially replicate” its educational program in an existing school. The statute states:

(a) A high-performing charter school may submit an application pursuant to s. 1002.33(6) in any school district in the state to establish and operate a new charter school that will substantially replicate its educational program. An application submitted by a high-performing charter school must state that the application is being submitted pursuant to this paragraph and must include the verification letter provided by the Commissioner of Education pursuant to subsection (5). If the sponsor fails to act on the application within 60 days after receipt, the application is deemed approved and the procedure in s. 1002.33(6)(h) applies. If the sponsor denies the application, the high-performing charter school may appeal pursuant to s. 1002.33(6).
(b) A high-performing charter school may not establish more than one charter school within the state under paragraph (a) in any year. A subsequent application to establish a charter school under paragraph (a) may not be submitted unless each charter school established in this manner achieves high-performing charter school status.

§ 1002.331(3)(a)-(b), Fla. Stat. (emphasis supplied).

One of the permitted reasons to deny an application is if the sponsor demonstrates by “clear and convincing evidence” that “[t]he proposed charter school’s educational program does not substantially replicate that of the applicant or one of the applicant’s high-performing charter schools ....” § 1002.33(6)(b)3.b.(III), Fla. Stat. The statute explains the requirement as follows:

An applicant is considered to be replicating a high-performing charter school if the proposed school is substantially similar to at least one of the applicant’s high-performing charter schools and the organization or individuals involved in the establishment and operation of the proposed school are significantly involved in the operation of replicated schools.

§ 1002.33(6)(b)3.b., Fla. Stat.

The School Board found that the requirement had not been met because the application submitted by Renaissance sought to open a school for grades K through 8, while the school being replicated served only students in grades 6 through 8. The denial letter explained:

There are fundamental differences in the educational program (i.e., standards-based curriculum, standards-based instruction, standards-based assessments, professional development for teachers and administrators on instructional materials aligned to standards, etc.) between a middle school and an elementary school.

The State Board apparently rejected this reasoning, accepting Renaissance’s argument that a new charter school does not have to “exactly match” the high-performing school upon which it is modeled and the school in this case meets the “substantially replicates” requirement, as the schools shared a substantially similar instruction model and the very same organizations, ie., the very same governing board and ESP.

The Legislature has delegated to the State Board the statutory power to hear an appeal from the denial of a high-performing charter school application. §§ 1002.33(6)(b)3.c. and 1002.33(6)(c)3.b., Fla. Stat. The State Board’s interpretation of the statute is entitled to great deference and this Court is required to defer to the State Board’s interpretation unless it is clearly erroneous. See Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla.2002) (“An agency’s interpretation of the statute it is charged with enforcing is entitled to great deference.”); Imhotep-Nguzo Saba Charter Sch. v. Dep’t of Educ., 947 So.2d 1279,1285 (Fla. 4th DCA 2007). However, we agree with the School Board that to be “substantially similar” within the meaning of the Florida Statutes, a charter school must have the same characteristics and be alike in substance or essentials to the school it is replicating. Common sense dictates that a middle school, which covers only grades 6 through 8, is materially different from a K through 8 school. As the superintendent noted in his denial letter, “[tjhere is a substantial difference in the curriculum, teaching strategies, student learning rates, discipline, student management, emotional maturity, teaching focus, and other factors between a middle school and an elementary school.”

Moreover, by allowing Renaissance to use a middle school to establish what is essentially two schools, e.g., for which it elsewhere has two charters, and by allowing it to use the elementary portion of the school being replicated (North Broward Elementary) to establish yet another school (this one in Lake County), the State Board is allowing Renaissance to sidestep the limitations imposed by section 1002.331(3)(b), Florida Statutes, which states that “[a] high-performing charter school may not establish more than one charter school within the state under paragraph (a) in any year.” The State Board’s interpretation of the statute essentially doubles the pace at which high-performing charter schools can be replicated within the State.

Renaissance argues that North Broward Academy of Excellence Elementary and Middle Schools are actually one, big K through 8 school, noting that they are housed in the same building and share a website. See http://www.northbroward charter.org. However, as noted by the School Board, these two schools are reported to the Department of Education as separate schools and operate under two separate charters sponsored by the School Board of Broward County. Each of the schools receives separate school grades, as shown by Renaissance in its brief to the School Board. Moreover, Renaissance apparently submitted two separate high-performing applications to two different county school districts in Florida in 2011 based on these schools. These submissions are inconsistent with Renaissance’s current argument that North Broward Elementary and North Broward Middle are “one, big K-8 school.”

Review in this case has been hampered by deficiencies in the underlying statute. The Legislature has indicated a clear preference for encouraging alternative forms of education through the charter school statute. However, the statute as formulated has many shortcomings. The high-performing charter school provisions exemplify these deficiencies. For example, high-performing charter school applications can be denied by the sponsor only if the sponsor demonstrates one of five statutory factors by “clear and convincing” evidence, but the statute does not make clear in what forum a sponsor is to present “clear and convincing evidence” sufficient to deny the application and contains no express provisions for a hearing. § 1002.33(6)(b)3.b., Fla. Stat. The State Board is then required to review the School Board’s decision to determine whether the sponsor has shown, by clear and convincing evidence, one of the five reasons listed for denying the application, but there is no real record for the State Board to review with respect to high-performing charter schools. See § 1002.33(6)(e)3.a., Fla. Stat. This Court’s standard of review is also less than clear. In similar cases, courts normally review the State Board’s decision to determine whether its factual findings are supported by competent, substantial evidence and whether it erroneously interpreted the law. Spiral Tech Elementary Charter Sch. v. Sch. Bd. of Miami-Dade Cnty., 994 So.2d 455, 455 (Fla. 3d DCA 2008) (involving decision to terminate charter school under provision which allowed sponsor to decide not to renew charter, which required sponsor to articulate reasons in writing, and which allowed charter school to appeal to state’s Department of Education). However, high-performing school applications involve a negative — the State Board must find the School Board failed to present clear and convincing evidence to deny the application. This Court’s standard of review thus appears to involve the virtually incomprehensible standard of whether there is competent substantial evidence to support the State Board’s decision that there is an absence of clear and convincing evidence supporting the School Board’s denial of the application. The statute also raises issues of due process by its failure to expressly provide for any form of evi-dentiary hearing or review.

The issues are less pronounced in this case, which involves the State Board’s interpretation of the relevant statute and its requirement that the charter school applicant “substantially replicate” an existing school. We have no difficulty finding in this case that the School Board had before it “clear and convincing” evidence that the requirement had not been met, and that the State Board erred in interpreting the statute to include the replication involved in this case. We find no due process violation within the context of this case, in which no request for a formal hearing was ever made. The Administrative Procedure Act (“APA”) plainly does not apply to proceedings before the State Board and, in view of the time limitation set forth in the statute, it is doubtful that the APA applies to proceedings before individual school boards. See Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So.3d 1220 (Fla.2009) (holding that charters schools were not entitled to hearing under APA when school board terminated charter under section 1002.33(8)(d), Florida Statutes; review of the charter school statute which provides for immediate termination of charter under emergency conditions did not require APA hearing that would prolong termination; interpretation was consistent with fact that legislature did not require APA hearing for non-emergency terminations and had set forth detailed statutory procedure). In view of the foregoing, we reverse the order of the State Board approving Renaissance’s application.

REVERSED.

LAWSON and BERGER, JJ., concur.

      . An application to open a charter school may be made by an individual, teachers, parents, a group of individuals, a municipality, or a legal entity organized under the laws of Florida § 1002.33(3)(a), Fla. Stat. Charter schools must have a public sponsor — either a district school board or a state university. § 1002.33(5)(a), Fla. Stat. The sponsor must perform a number of duties, including monitoring and reviewing the school and monitoring the revenues of the school. § 1002.33(5)(b), Fla. Stat.


author: NORTHCUTT, Judge.

text:
    In the Interest of E.G-S., a child. A.S., Appellant, v. Department of Children & Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D12-3460.
    District Court of Appeal of Florida, Second District.
    April 26, 2013.

      Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Karla Perkins, Department of Children & Family Services, Miami, for Appellee Department of Children & Family Services.
    Laura E. Lawson, Guardian ad Litem Program, Tavares, for Appellee Guardian ad Litem Program.
   NORTHCUTT, Judge.

A child, E.G-S., was taken into protective custody based on allegations of abuse at the hands of her mother, A.S. The Department of Children and Family Services filed a dependency petition against A.S. The child’s parents are divorced, and the petition made no allegations against the child’s father, J.G. The mother was offered a reunification case plan and she began working on her required tasks.

After a trial on the petition, the court declared E.G-S. dependent. Several weeks later, it entered a disposition order, placing the child with her nonoffending father and, on DCF’s motion, terminating its jurisdiction over the case and DCF’s supervision of the child. A.S. challenges the order of dependency, but we have determined that it was supported by a preponderance of the evidence, and we affirm it without further discussion. A.S. also contends that her due process rights were violated when the court terminated jurisdiction and supervision. We find merit in this argument. We reverse a portion of the disposition order and remand for further proceedings consistent with this opinion.

A.S. asserts that her due process rights were violated because she had no notice that the court would determine her child’s permanent placement at the disposition hearing. But she did have notice— the predisposition report, served ten days before the hearing, recommended in writing that E.G-S. be placed -with her father and that jurisdiction and supervision be terminated. See Fla. R. Juv. P. 8.345(b) (stating that a party seeking to terminate supervision or jurisdiction can do so “by written motion or in a written report to the court ”) (emphasis supplied).

That does not end our analysis, however. All procedures in a dependency case must comport with due process principles. A.L. v. Dep’t of Children & Families, 53 So.3d 324 (Fla. 5th DCA 2010). Here, it is undisputed that the court accepted a reunification case plan for the mother at the dependency trial. The case plan in our record anticipates a compliance date of February 22, 2013. At the June 11, 2012, disposition hearing, the mother’s counsel objected to DCF’s request to terminate jurisdiction and supervision. Counsel alerted the court to the fact that A.S. was working on her case plan, and he argued that she should have the opportunity to complete it. The case manager commented that the mother had already performed many of the tasks set forth in the plan, some eight months before the compliance date. The court itself commended A.S. on her diligence.

Numerous cases have held that a court may not place a child permanently with a nonoffending parent when the offending parent is either in substantial compliance with a reunification case plan or the time for compliance has not expired. See M.M. v. Dep’t of Children & Families, 29 So.3d 1200, 1201 (Fla. 5th DCA 2010) (and cases cited therein). In A.L., the court examined facts very similar to those in this case. The children had been found dependent based on their mother’s actions and the circuit court had placed them in the custody of their nonoffending father. On the father’s motion, the court terminated jurisdiction and supervision at a time when the mother was still making progress on her reunification case plan. 53 So.3d at 326-27.

The Department maintained that this procedure did not effect a significant deprivation of the mother’s due process rights because she could move for modification of custody when she completed her case plan. But the Fifth District disagreed. It held that the possibility of a modification did not excuse depriving a parent of a reasonable opportunity to meet her case plan goals in the absence of evidence that doing so would be detrimental to the children’s best interests. Id. at 328.

In this case, DCF did not present any evidence that it would harm E.GS.’s interests to leave the case pending while A.S. completed her case plan. In fact, no evidence at all was presented at the disposition hearing. To comport with due process when a child’s permanent placement is at issue, a court must hold an evidentiary hearing. See P.P. v. Dep’t of Children & Family Servs., 86 So.3d 556, 559 (Fla. 2d DCA 2012).

We recognize that section 39.521(3)(b)(l), Florida Statutes (2011), gives a court the option to place a dependent child with a nonoffending parent and to terminate jurisdiction over the child. This is clearly permissible when an offending parent has not complied with a case plan. See T.W. v. Dep’t of Children & Family Servs., 946 So.2d 1214 (Fla. 2d DCA 2006). But when the parent is diligently working on a reunification case plan, proceeding in that fashion effectively produces a de facto amendment of the reunification goal. See K.E. v. Dep’t of Children & Families, 958 So.2d 968, 971-72 (Fla. 5th DCA 2007) (citing R.H. v. Dep’t of Children & Families, 948 So.2d 898, 899-900 (Fla. 5th DCA 2007)). Again, due process requires that a court determine the propriety of amending a case plan only after an evidentiary hearing. See Fla. R. Juv. P. 8.420(a)(3) (providing that the court may amend the goal of a case plan “if there is a preponderance of evidence demonstrating the need for the amendment”).

The alternative option, in section 39.521(3) (b) (2), allows the court to order that reunification services be provided to the noncustodial parent and to change custody if need be, based on the best interest of the child. In this case, the court received no evidence suggesting that giving A.S. a reasonable opportunity to complete her case plan tasks would be detrimental to the child, and there was no evidentiary basis for altering the plan’s reunification goal. Under these circumstances, the court should have proceeded under subsection (3)(b)(2).

We affirm the disposition order insofar as it places E.G-S. in her father’s custody. But we reverse the order to the extent that it terminates jurisdiction and supervision. On remand, the court may allow A.S. to work toward reunification under her present case plan, but it must continue jurisdiction over the case and supervision of the child. See § 39.521(3)(b)(2). If DCF again requests that jurisdiction and supervision be terminated, procedural due process requires the court to hold an evi-dentiary hearing to determine whether allowing the case to remain pending while A.S. completes her case plan would be detrimental to the child’s interest, and if so, whether a preponderance of the evidence supports changing the goal of her case plan.

Affirmed in part, reversed in part, and remanded.

KELLY and VILLANTI, JJ., Concur.

      . The dependency order was actually rendered after rendition of the disposition order.

      . The judge in this case found that the allegations were supported by a preponderance of the evidence. In a dependency case, that standard is sufficient. See R.F. v. Fla. Dep’t of Children & Families, 770 So.2d 1189, 1192 (Fla.2000). If a court finds that the evidence is sufficient to meet the clear and convincing standard, it may state as much in the order. See id. at 1192 n. 8; Fla. R. Juv. P. 8.330(a).


author: WALLACE, Judge.

text:
    Renee LONG, as the Guardian of the Property of Emily N. Long, Evan A. Long, and Edward M. Long, Appellant, v. Robin WILLIS, n/k/a Robin Long, as Personal Representative of the Estate of Thomas Scott Long, Deceased, Appellee.
    No. 2D12-3802.
    District Court of Appeal of Florida, Second District.
    April 26, 2013.

      Stephen F. Rosenthal of Podhurst Or-seek, P.A., Miami, for Appellant.
    Eloise Taylor of Eloise Taylor, P.A., Hudson, for Appellee.
   WALLACE, Judge.

Renee Long (Renee), as the guardian of the property of Emily N. Long, Evan A. Long, and Edward M. Long, challenges the probate court’s order denying her petition to remove Robin Willis, n/k/a Robin Long (Robin), as the personal representative of the estate of Thomas Scott Long, deceased, and to appoint a successor personal representative. Because the probate court did not abuse its discretion in concluding that Renee’s nominee was an unsuitable candidate to administer the estate, we affirm the probate court’s order.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

Renee filed her petition after the issuance of this court’s opinion in an earlier appeal, which reversed an order denying Renee’s counterpetition for administration, to stay issuance of letters of administration, and to remove Robin as the personal representative of the decedent’s estate. Long v. Willis (Long I), 100 So.3d 4 (Fla. 2d DCA 2011). In our earlier opinion, we concluded that Robin is qualified to serve as personal representative. Id. at 10. However, we also concluded that the probate court erred in ruling that Renee’s minor children, who hold the majority interest in the estate, were time-barred from challenging Robin’s appointment. Id. at 8-10. Accordingly, the probate court erred in ruling that it had no authority to allow them to seek the appointment of a personal representative of their own choice. We reversed the order under review and remanded the case to the probate court “with instructions that the probate court allow Mr. Long’s minor children the opportunity to seek the appointment of a guardian of their property and allow that guardian the opportunity to exercise the children’s right to vote for the personal representative.” Id. at 10-11.

The mandate in Long I issued on September 6, 2011. Approximately one month later, Renee applied to be appointed as the guardian of the property of her three minor children. The probate court entered an order appointing Renee as the guardian of the property of the three children on November 14, 2011. On December 28, 2011, Renee, as guardian, filed her petition seeking the appointment of Hugh C. Umsted, a local attorney, as the personal representative of the estate and the substitution of Mr. Umsted in place of Robin.

At a hearing on her petition, Renee argued that, in accordance with this court’s mandate in Long I, she was entitled to the appointment of Mr. Umsted as personal representative and to the revocation of the letters of administration issued to Robin in the absence of any showing that Mr. Umsted was not qualified to serve as personal representative. After the hearing, the probate court entered an order denying Renee’s petition. This appeal followed.

II. THE PROBATE COURT’S RULING

The probate court denied Renee’s petition on two grounds. First, the probate court ruled that Renee did not seek her appointment as guardian of the property of her children within a reasonable time. Second, the probate court found that Mr. Umsted was not a suitable person to serve as personal representative because he had a conflict of interest. We review the probate court’s order for abuse of discretion. Stalley v. Williford, 50 So.3d 680, 681 (Fla. 2d DCA 2010); DeVaughn v. DeVaughn, 840 So.2d 1128, 1132 (Fla. 5th DCA 2003).

III. DISCUSSION

A. The Reasonable Time Issue

In our earlier opinion, this court said that “the probate court had authority and should have allowed [Renee] a reasonable time to obtain a guardian of the property to vote for the children.” Long I, 100 So.3d at 9. At the hearing on Renee’s petition, the probate court, on its own motion, raised the issue of whether Renee had applied to be appointed as guardian within “a reasonable time.” The probate court faulted Renee for not applying to be appointed as guardian much earlier than she did. In considering what would be a reasonable time for Renee to obtain the appointment of a guardian, the probate court focused on the period from an earlier hearing conducted on March 8, 2010, until Renee filed her petitions for appointment of a guardian of the property on October 4, 2011. By the probate court’s calculation, the period of Renee’s delay amounted to approximately nineteen months. In its written order, the probate court “conclude[d] that the failure to seek to be appointed guardian of the minors’ property for over one and a half years far exceeds ‘a reasonable time.’ ”

The unmistakable import of our ruling in Long I was that — upon remand— Renee would have an opportunity to obtain the appointment of the guardian of the property of the three minor children and to vote her preference for personal representative. After remand, Renee clearly accomplished what we anticipated within a reasonable time. Neither the probate court nor counsel for Robin has pointed to any prejudice to the estate or its beneficiaries resulting from the delay of approximately one month between the issuance of this court’s mandate and Renee’s filing of her petitions for appointment of a guardian of the property. In raising the issue of delay on its own motion and in choosing a time frame beginning long before the issuance of our mandate to calculate the period of a purported delay in order to deny Renee her right to vote her preference, the probate court disregarded this court’s instructions and failed to follow our mandate. “A trial court is without authority to alter or evade the mandate of an appellate court absent permission to do so.” Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 328 So.2d 825, 827 (Fla.1975). Thus the probate court erred in ruling that Renee was not entitled to vote her preference because of an unreasonable delay in obtaining the appointment of a guardian. We turn now to a consideration of the probate court’s second reason for denying Renee’s petition.

B. The Conflict Issue

The decedent died intestate, and he left no surviving spouse. Renee’s minor children held a sixty percent interest in the estate. Thus Renee’s nominee was entitled to preference in appointment as personal representative. § 733.301(l)(b)(2), (2), Fla. Stat. (2009). However, the probate court has the discretion to appoint someone other than the preferred person if he or she is an unsuitable candidate to serve as personal representative. Bowdoin ex rel. Bowdoin v. Rinnier, 81 So.3d 582, 583 (Fla. 2d DCA 2012) (citing In re Estate of Snyder, 333 So.2d 519, 520 (Fla. 2d DCA 1976)). “Unsuitableness to administer may well consist in an adverse interest of some kind, or hostility to those immediately interested in the estate, whether as creditors or distributees, or even of an interest adverse to the estate itself.” Snyder, 333 So.2d at 520 (quoting Hoover v. Hott (In re Abell’s Estate), 395 Ill. 337, 70 N.E.2d 252, 256 (1946)). Where the probate court chooses to appoint someone other than the preferred person, “the record must show that the preferred person is not fit to serve as personal representative.” Bowdoin, 81 So.3d at 583 (citing DeVaughn, 840 So.2d at 1133).

Here, the second reason the probate court offered for declining to appoint Mr. Umsted was that he had a conflict of interest that might make it difficult for him to administer the estate in the interest of all the beneficiaries. We emphasize that no one questioned Mr. Umsted’s integrity or his ability to administer the estate competently and efficiently. Indeed, at the hearing, the probate judge described Mr. Umsted as “an excellent attorney.” However, Robin argued against the appointment of Mr. Umsted based on his prior participation in the pending probate case. The probate court made the following findings concerning Mr. Umsted’s prior participation as follows:

[Sjhortly after decedent’s death, Renee Long hired the litigation firm of Po-dhurst & Orseck, P.A., for the purpose of bringing claims on behalf of her minor children. Attorney [Ricardo] Martinez-Cid, of that firm, represented [Renee] at the March 10, 2010, hearing and has represented her in matters involving this case since that time.... The record and testimony show that Hugh Umsted, Esq., has represented the minor children in documents filed in the [pending probate] case, including signing, on behalf of Ms. Renee Long, as natural guardian of the minor children, the “Agreement as to Distribution of Wrongful Death Settlement Proceeds and to Entry of Amended Order of Approval,” and by appearing as co-counsel with Ricardo Martinez-Cid, Esq., as evidenced by Motion to Appear Telephoni-cally at the status conference hearing set by this Court and hearing for Approval of Wrongful Death Settlement both held on October 19, 2011. Finally, a review of the record indicates that Attorney Umsted filed a “Notice of Special Limited Appearance” as litigation counsel for Renee Long, at [the] hearing on the Personal Representative’s Motion for Appointment of Guardian Ad Litem, referenced above, at which time Attorney Umsted voiced his client’s objection to the appointment.

The probate court’s findings are supported by the record. In addition, we note that Mr. Umsted signed the Agreement as to Distribution of Wrongful Death Proceeds and to Entry of Amended Order of Approval as “Attorney for Renee Long” and that he is identified on the certificate of service on several pleadings and orders in the probate case as “Attorney for Renee Long” or “Special Litigation [Cjounsel for Renee Long.”

At the time of the hearing on Renee’s petition, the estate had settled its wrongful death claim against one set of defendants, but it was still prosecuting a separate wrongful death claim against another set of defendants. In the event of a settlement of the action that was still pending or a limited recovery, there would likely be a conflict of interest between Renee’s three children and the two other children. See Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Grp., 64 So.3d 1187, 1194 (Fla.2011); Wiggins v. Estate of Wright, 850 So.2d 444, 448-49 (Fla.2003); Catapane v. Catapane (In re Estate of Catapane), 759 So.2d 9, 12 n. 1 (Fla. 4th DCA 2000). Undeniably, Mr. Umsted had appeared as an attorney in the pending probate proceeding in the interest of the three minor beneficiaries. Thus, before he was considered for appointment as personal representative, Mr. Umsted had already aligned himself with Renee’s children — a fact raising the possibility that he would favor them to the detriment of the two other beneficiaries in the proceedings to follow. Under these unusual circumstances, we cannot say that the probate court abused its discretion in concluding that Mr. Umsted was not a suitable candidate to administer the estate.

IV. CONCLUSION

Based on the conflict issue alone, we affirm the probate court’s order.

Affirmed.

ALTENBERND and CRENSHAW, JJ., Concur.

      . We refer to the parties by their first names to avoid confusion.

      . This court’s opinion in Long I sets out much of the pertinent factual and procedural background in this case. We will not repeat this information here. We do note that our earlier opinion incorrectly described the aircraft that the decedent was flying when he crashed as a "crop-dusting airplane.” Long I, 100 So.3d at 6. The record in this appeal reveals that the aircraft was a Piper Malibu with six seats.

      . Since the entry of the order appointing Renee as guardian, one of the children, Emily N. Long, has reached the age of majority.

      .At the hearing, the parties agreed that the title of the petition, "Petition to Remove Personal Representative and Appoint a Successor Personal Representative,” was a misnomer in that Renee was not arguing grounds for removal of Robin as the personal representative. Rather, she was seeking the appointment of Mr. Umsted as the preference of her three children, who held the majority interest in the estate, in accord with this court’s opinion in Long I.


author: BLACK, Judge.

text:
    DEPARTMENT OF REVENUE o/b/o T.L.S., Appellant, v. S.J.W., Appellee.
    No. 2D11-3444.
    District Court of Appeal of Florida, Second District.
    April 26, 2013.

      Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   BLACK, Judge.

The Department of Revenue (DOR) challenges the trial court’s final judgment establishing paternity, parental timeshar-ing, and child support. DOR argues that the trial court erred in calculating S.J.W.’s child support obligation. DOR specifically challenges the deduction of $541.67 from the gross income attributed to S.J.W. (the father) based on a court-ordered support obligation to another child. DOR contends that because evidence established that the father had not been paying that child support, it should not have been deducted from his income. We agree and reverse.

The final judgment orders the father to pay child support in the amount of $23.37 per month. In arriving at this figure, the court subtracted the amount of a prior court-ordered child support obligation from the father’s imputed gross income. This left a monthly net income of $563.20. The court also ordered retroactive child support based on the $23.37 per month figure. Attached to the final judgment is a child support worksheet indicating that $541.67 was deducted from the father’s gross income of $1256.67 for “legally ordered child support.” Although Florida Family Law Form 12.902(e) was attached to the final judgment, it was not completed and does not indicate the actual child support to be paid.

DOR is challenging the determination of child support, which this court would generally review for an abuse of discretion. See Hoffman v. Hoffman, 98 So.3d 196, 196 (Fla. 2d DCA 2012). However, “[t]he right to claim a statutory deduction to a spouse’s gross income under the child support guideline is a mixed question of law and fact. The determination of the appropriate legal standard to be applied in a case is decided as a matter of law.” Henderson v. Henderson, 905 So.2d 901, 903 (Fla. 2d DCA 2005). Here, the issue presented by DOR is a question of law and we review it de novo. See id.) see also L.A.P. v. State, 62 So.3d 693, 694 (Fla. 2d DCA 2011) (“‘Questions of statutory interpretation are subject to de novo review.’” (quoting Mendenhall v. State, 48 So.3d 740, 747 (Fla.2010))). Although the record on appeal does not contain transcripts of either the final hearing or the hearing on DOR’s motion for rehearing, a statement of the facts was prepared and submitted to this court in compliance with Florida Rule of Appellate Procedure 9.200(b)(4).

At the final hearing to determine paternity and child support obligations in this case, the father testified that he was current on the child support ordered in case number 2001-DR-006310. As a result, the trial court deducted that child support figure — $541.67—from his imputed income. At the time of the final hearing, the father was unemployed and the court imputed income to him.

In its motion for rehearing, DOR alleged that a review of the father’s payment records from the Domestic Relations Department of the clerk of the court revealed that he was delinquent in the amount of $81,720 and in arrears in the amount of $6820 with regard to the payment of his child support obligation in case 2001-DR-006310. At the hearing on DOR’s motion, the father’s first wife testified that he was current on his child support payments to her and that he paid her directly. However, on cross-examination she testified that she had not received any child support payments from the father since December 2010. In lieu of payments, he had been working around her house. She also testified that prior to December 2010, the father’s child support payments varied in amount.

Following rehearing, the court entered an order finding that “as long as [the first wife] is willing to bring an action [to] zero out the account balance as reflected in the domestic relations [case] number [2001-DR — 006310] the [father] should be given credit for that child support obligation in the current case in accordance with Florida Statute 61.30(3)(f).” The court then deferred ruling on DOR’s motion for rehearing for several days to give the first wife time to take action to reduce the account balance to zero. The court did not order the father to pay the arrearages or delinquent amount.

Although nothing in our record indicates whether or how the trial court received notice of a zero balance in case 2001-DR-006310, on June 13, 2011, the court entered the final judgment in which it deducted the child support ordered in case 2001-DR-006310 from the father’s income. Based on this, we must presume that the court was satisfied that the account balance had been reduced to zero.

Section 61.30, Florida Statutes (2011), governs the determination of child support and lists the deductions to be taken from a parent’s gross income to determine his or her net income for purposes of child support computation. One of the listed deductions is “[c]ourt-ordered support for other children which is actually paid.” § 61.30(3)(f) (emphasis added). Here, it is uncontested that the father was under court order to pay child support in case 2001-DR-006310. The issue is whether he actually paid that support.

The intent and meaning of section 61.30(3)(f) require no explanation. See Henderson, 905 So.2d at 904 (“[T]he general master deducted from the Former Husband’s gross income the hypothetical amounts calculated in the worksheets rather than an actual amount of paid, court-ordered child support.... [O]ur record contains no evidence that the Former Husband’s hypothetical obligations were ... actually paid....”); Sierra v. Ellison, 677 So.2d 406, 407 (Fla. 3d DCA 1996) (“The record reflects that Sierra is actually paying court-ordered child support....”). The phrase “actually paid” is not ambiguous; it has only one reasonable interpretation. See Spring Lake NC, LLC v. Figueroa, 104 So.3d 1211, 1215 (Fla. 2d DCA 2012). Thus, we give the statute “its plain and obvious meaning” and do not “extend, modify, or limit [ ] its express terms or its reasonable and obvious implications.” Velez v. Miami-Dade Cnty. Police Dep’t, 934 So.2d 1162, 1164-65 (Fla.2006) (citations omitted) (internal quotation marks omitted). Just as “[t]he obligation to support children not subject to any prior support action is not listed as an allowable deduction,” Henderson, 905 So.2d at 904, neither is court-ordered support which is not paid, is in arrears, or is delinquent.

Because the record conclusively established that the father had not actually paid his court-ordered child support obligation in case 2001-DR-006310 at the time of the rehearing, and the court did not order him to pay the arrearages and delinquent amounts, our conclusion is that the father did not actually pay the court-ordered child support. As a result, the trial court reversibly erred in deducting $541.67 from the father’s income to determine his child support obligation in the current case. We reverse and remand for further proceedings on the issue of child support.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.


author: ALTENBERND, Judge.

text:
    STATE of Florida, Appellant, v. Fidel EGIDO, Appellee.
    No. 2D09-5073.
    District Court of Appeal of Florida, Second District.
    April 26, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.
    Ralph E. Fernandez of Ralph E. Fernandez, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

The State appeals an order dismissing this criminal prosecution against Fidel Eg-ido. We affirm the order on appeal without discussion of the substantive issues raised by the State. We address only the order that should be entered in this context because confusion over the order substantially delayed this appeal.

Mr. Egido was charged with battery on a law enforcement officer for events that occurred at his house when a non-uniformed deputy attempted to locate Mr. Egido’s adult son to serve him with a child support warrant. Mr. Egido filed a motion to dismiss the case, claiming that he was entitled to immunity under various sections of chapter 776, Florida Statutes (2007), including section 776.032(1), which he argued immunized him from criminal prosecution for his justifiable use of force on the officer. After the hearing, the trial court decided that the motion was well taken. The trial court, however, was familiar with this court’s decision in Horn v. State, 17 So.3d 836, 839 (Fla. 2d DCA 2009), in which we suggested in dicta that a motion seeking immunity from prosecution should result initially in an order granting immunity. In Horn, we assumed that a motion to dismiss would be a second step if the State elected to continue the prosecution. Id. In light of Horn, the trial court here ordered that it would only grant immunity, but not dismiss the case.

The problem with an order merely granting immunity is that it does not end the case and is not appealable. In this case, apparently both the trial court and Mr. Egido were intending to force the State to proceed to trial and allow jeopardy to attach.

When the trial court made this ruling, the dicta in Horn had already been overridden by the supreme court’s decision in Dennis v. State, 51 So.3d 456, 464 (Fla. 2010), which held that such an issue of immunity should be handled by a motion to dismiss under Florida Rule of Criminal Procedure 3.190(b) and, thus, should result in an order dismissing the case when the trial court finds the motion well taken.

Ultimately, the trial court did enter an order of dismissal in this case. While the substantive issue is close, we cannot conclude that the trial court erred in entering this order.

Affirmed.

LaROSE and KHOUZAM, JJ., Concur.


author: KELLY, Judge.

text:
    Antonio PUENTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2818.
    District Court of Appeal of Florida, Second District.
    April 26, 2013.
    Antonio Puente, pro se.
   KELLY, Judge.

Antonio Puente appeals the order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse on grounds one through three, eight, and nine and remand for further proceedings. We affirm on grounds five through seven without further comment.

Puente was found guilty by a jury of aggravated battery with a firearm, and the trial court sentenced him to twenty years’ imprisonment. After his conviction and sentence were affirmed on appeal, he filed a rule 3.850 motion raising ten grounds.

The postconviction court found that the record refuted grounds one through three, eight, and nine, but it failed to attach the relevant portions of the record to its order. See Fla. R.Crim. P. 3.850(d) (“In those instances when the denial is not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief shall be attached to the order.”). Accordingly, we reverse the postconviction court’s order with regard to grounds one through three, eight, and nine and remand for the post-conviction court to attach the portions of the record that conclusively refute these grounds or hold an evidentiary hearing. See id.

Affirmed in part, reversed in part, and remanded with directions.

DAVIS and CRENSHAW, JJ., Concur.


text:
    William Scott BRANDI, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-890.
    District Court of Appeal of Florida, Second District.
    April 26, 2013.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

We affirm Appellant’s judgment and sentence. On remand, the trial court shall correct the judgment to reflect that Appellant was convicted of attempted robbery, not robbery.

Affirmed; remanded for correction of the judgment.

DAVIS, WALLACE, and LaROSE, JJ., Concur.


text:
    Chad Edward LAKEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4231.
    District Court of Appeal of Florida, Fifth District.
    May 3, 2013.
    Rehearing Denied May 29, 2013.

      William R. Ponall of Snure & Ponall, P.A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

      . Subsequent to oral argument, Judge Lawson determined that he should recuse himself from further consideration of the case. Judge Evander was assigned to the panel and reviewed the file, the briefs, and the video recording of the oral argument prior to participating in the decision-making process.

   PER CURIAM.

Chad Edward Lakey appeals from the judgment and sentence entered after a jury convicted him of sexual battery on a child by a person in a position of familial or custodial authority, attempted sexual battery on a child by a person in a position of familial or custodial authority, and child abuse. On appeal, Lakey asserts the trial court committed fundamental error in failing to properly instruct the jury on attempted sexual battery. We agree and reverse.

As to the attempted sexual battery charge, the information alleged that Lakey “rubbed” the victim’s genitals. In order to obtain a conviction for attempted sexual battery, the State must prove that the defendant attempted to commit an act whereby (1) either the defendant’s or victim’s sexual organ penetrated or had union with the anus, vagina or mouth of the other, or (2) the anus or vagina of the victim was penetrated by an object. § 794.011(l)(h), (8)(b), Fla. Stat. (2008); Fla. Std. Jury Instr. (Crim.) 11.6. A defendant’s finger is considered an “object” within the meaning of the statute, and therefore “must penetrate and not merely have union with the relevant [body] part.” Holmes v. State, 842 So.2d 187, 188 (Fla. 2d DCA 2003) (quotation omitted).

In this case, the trial court instructed the jury as follows: “To prove the crime of Attempted Sexual [Battery on] a Child, the State must prove ... Chad La-key attempted to penetrate or have union with the sexual organ of [the victim].” This instruction improperly permitted the jury to convict Lakey of attempted sexual battery based on a finding that he attempted a digital union with the sexual organ of the victim. See Holmes, 842 So.2d at 188; see also Gill v. State, 586 So.2d 471, 472 (Fla. 4th DCA 1991) (holding trial court committed fundamental error in instructing jury that union with an object was an alternative to penetration by an object on the charge of sexual battery). Finding the instruction was fundamentally erroneous, we reverse and remand for a new trial on the attempted sexual battery charge. We affirm as to the remaining two counts.

AFFIRMED in part; REVERSED in part; and REMANDED.

EVANDER and COHEN, JJ., and MENDOZA, C.E., Associate Judge, concur.


author: LaROSE, Judge.

text:
    Patrick COMPETELLI, Appellant, v. CITY OF BELLEAIR BLUFFS, Appellee.
    No. 2D12-2462.
    District Court of Appeal of Florida, Second District.
    May 15, 2013.
    Ryan D. Barack and Michelle Erin Na-deau of Kwall, Showers & Barack, P.A., Clearwater, for Appellant.
    Jay Daigneault of Frazer, Hubbard, Brandt, Trask, Yacavone, Metz & Daig-neault, L.L.P., Dunedin, for Appellee.
   LaROSE, Judge.

This is a whistleblower case. Patrick Competelli, the former fire chief of the City of Belleair Bluffs, sued the City for violation of Florida’s public employee whis-tleblower act, sections 112.3187-.31895, Florida Statutes (2009). The trial court entered a final summary judgment for the City. Mr. Competelli seeks reversal. We have jurisdiction. See Fla. R.App. P. 9.030(b)(1)(A). Because genuine issues of material fact remain for resolution, we reverse.

Our review is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Makryllos v. Citizens Prop. Ins. Corp., 103 So.3d 1032, 1034 (Fla. 2d DCA 2012). A trial court may enter a summary judgment only when the record shows that no genuine issues of material fact remain and that the movant is entitled to judgment as a matter of law. Makryllos, 103 So.3d at 1033 (citations omitted). “If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979) (citing Mejiah v. Rodriguez, 342 So.2d 1066 (Fla. 3d DCA 1977)). The burden on these points rested with the City as the movant. See Fla. R. Civ. P. 1.510; Pinchot v. First Fla. Banks, Inc., 666 So.2d 201, 201-02 (Fla. 2d DCA 1995) (citing Snyder).

The City urges us to adopt the burden-shifting analysis employed by federal courts typically in employment discrimination cases. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (applying burden-shifting analysis in employment discrimination case involving disparate treatment). We decline the invitation. The Florida standard for summary judgment is well entrenched:

The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and that the court must draw every possible inference in favor of the party against whom a summary judgment is sought. A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.
If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.

Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (internal citations omitted); see also Bruno v. Destiny Transp., Inc., 921 So.2d 836, 839-40 (Fla. 2d DCA 2006) (citing Moore).

Mr. Competelli claims that the City retaliated against him because, despite his original support for consolidating City fire services with those of another government entity, he had a change of heart and disclosed his safety and other concerns about such consolidation to City officials. If true, such retaliation may run afoul of section 112.3187:

(4) ACTIONS PROHIBITED.—
(a) An agency or independent contractor shall not dismiss, discipline, or take any other adverse personnel action against an employee for disclosing information pursuant to the provisions of this section.
(b) An agency or independent contractor shall not take any adverse action that affects the right or interests of a person in retaliation for the person’s disclosure of information under this section.
(5) NATURE OF INFORMATION DISCLOSED. — ...
(a) Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public’s health, safety, or welfare.
(b) Any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.

The public whistleblower statute is remedial, and courts should construe it broadly. See Irven v. Dep’t of Health & Rehabilitative Servs., 790 So.2d 403, 405-06 (Fla.2001); Dahl v. Eckerd Family Youth Alts., Inc., 843 So.2d 956, 958-59 (Fla. 2d DCA 2003) (citing Martin Cnty. v. Edenfield, 609 So.2d 27, 29 (Fla.1992); Hutchison v. Prudential Ins. Co. of Am., Inc., 645 So.2d 1047, 1049 (Fla. 3d DCA 1994)).

To set forth a prima facie claim of retaliatory discharge, Mr. Competelli had to show that he made a disclosure protected by the statute and that he was discharged. See § 112.3187(2), (4), (5). The legislature instructs us that the statute is to prevent agencies and independent contractors from taking retaliatory action against an employee who reports danger to the public’s health, safety, or welfare or who alleges improper use of governmental office, gross waste of funds, or other abuse or gross neglect of duty. See § 112.3187(2). Mr. Competelli urges us to see the causal connection between his termination and his criticism of the City’s proposed course of action; the City claims that it fired him for not following directions. See § 112.3187(10) (“It shall be an affirmative defense to any action brought pursuant to this section that the adverse action was predicated upon grounds other than, and would have been taken absent, the employee’s or person’s exercise of rights protected by this section.”).

The trial court concluded that Mr. Com-petelli’s discharge was “predicated on grounds other than, and would have been taken absent[,] the fact that Mr. Competel-li raised alleged concerns ... which allegedly constituted a violation or suspected violation of law, gross mismanagement, or malfeasance.” Thus, the trial court concluded that the City did not violate the whistleblower act. On our record, however, that result is not preordained.

In May 2009, the City’s Mayor instructed Mr. Competelli to review fire service options, including continued operation by the City, joining another fire rescue district, or contracting with Largo Fire Rescue. In response to the Mayor’s directive, Mr. Competelli compiled a report concluding that merger with the Largo Fire Department would best serve the City’s citizens.

The contemplated merger would require citizen approval through referendum. Various City commissioners sought further information about the financial impact of the merger and alternatives if a referendum failed. Despite his earlier position, in early August 2009, Mr. Competelli emailed the Mayor expressing safety and other concerns with a speedy merger. He recommended delaying a merger for a year in order to address these concerns. Obviously disappointed with the change of heart, the Mayor immediately suspended Mr. Competelli and scheduled a City Commission meeting for the next day. The Mayor took the position that Mr. Competelli would not follow his direction to move forward with consolidation. At the meeting, two commissioners agreed with the Mayor, resulting in Mr. Competelli’s termination. It is not lost upon us that the Mayor’s ire followed quickly on the heels of Mr. Competelli’s plea for moving forward with caution. Whatever other factual issues may remain unresolved, we cannot ignore the fact that the parties offer differing versions as to the motivation for the termination.

Mr. Competelli made a prima facie showing of a violation of the whistleblower act. Notwithstanding the City’s affirmative defense that it fired Mr. Competelli for failing to follow direction, we cannot say that the facts were so crystallized as to foreclose Mr. Competelli from moving forward to trial. Genuine issues of material fact remain as to the cause of the termination. Accordingly, we must reverse the final summary judgment.

Reversed and remanded for further proceedings.

ALTENBERND and MORRIS, JJ., Concur.

      . In actions seeking temporary employment reinstatement pursuant to section 112.3187(9)©, which does not apply to a municipal employee, an aggrieved party must show that he or she made a disclosure protected by the statute, was discharged, and did not make the disclosure in bad faith or for a wrongful purpose after an adverse personnel action. See State, Dep't of Transp. v. Fla. Comm’n on Human Relations, 842 So.2d 253, 255 (Fla. 1st DCA 2003). The prima facie elements cited in Department of Transportation do not apply in contexts other than employment reinstatement situations. But see Walker v. Fla. Dep't of Veterans' Affairs, 925 So.2d 1149 (Fla. 4th DCA 2006); White v. Sch. Bd. of Hillsborough Cnty., 636 F.Supp.2d 1272, 1282 (M.D.Fla.2007).

      . Mr. Competelli also argues that the trial court erred in granting the City’s motion for protective order that prevented him from taking the depositions of the Mayor and City commissioners. We do not reach this issue. On remand, however, Mr. Competelli may address and further develop the matter in the trial court.


author: SAWAYA, J.

text:
    STATE of Florida, Appellant, v. Jamar THOMPKINS, Appellee.
    No. 5D12-1807.
    District Court of Appeal of Florida, Fifth District.
    May 17, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellee.
   SAWAYA, J.

The Criminal Punishment Code is a compilation of statutes that require a scoresheet be prepared to establish the permissible range of sentence the court may impose for defendants charged with a noncapital felony offense, and mandates imposition of at least the minimum guideline sentence unless a valid reason for departure exists. Included in this statutory scheme are a number of non-exclusive mitigating grounds for departure that may establish a basis for a more lenient sentence. The issue we must resolve is whether competent substantial evidence supports the trial court’s decision to impose a departure sentence pursuant to section 921.0026(2)(j), Florida Statutes (2011), which allows a sentence below the minimum guideline range when the crime was “committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” We must also determine whether the following non-statutory reasons are valid grounds for departure: the victim wants the defendant back and he needs to support her and their child; the defendant could have harmed the victim but did not; and there is no redeeming value in sending the defendant to prison.

The defendant is Appellee, Jamar Thompkins, and he was charged with, and convicted of, burglary of a dwelling and criminal mischief. He committed these crimes when he appeared, uninvited, at the home of his former girlfriend’s mother. It was around midnight. Although the mother was not home, the former girlfriend (the victim) and her child were. Thompkins is the child’s father. When Thompkins appeared at the front door, the victim answered and Thompkins demanded the keys to her residence. Thompkins also demanded that the victim come out and talk to him. The victim threw him the keys, closed the door, and locked it. Despite the lack of an invitation to be there and the lack of consent to enter, Thompkins made his way to the back of the house and gained entry through a doggie door he kicked in. When the victim saw Thomp-kins crawl through the damaged doggie door, she retreated to a bedroom where the child was sleeping and locked the door. Thompkins pounded on the bedroom door, but the victim did not open it. No less deterred by the lock on this door, Thomp-kins “busted through” the bedroom door and when he saw the victim on the phone with 9-1-1, he fled. The victim stated that Thompkins was very angry and that she feared for her safety. The recording of the 9-1-1 call was played for the jury and photographs of the two broken doors were placed into evidence.

When the sentencing hearing convened, the trial court was presented with a score-sheet that revealed Thompkins’ rather extensive criminal history of ten prior convictions, which included burglary of a dwelling (a second-degree felony), two convictions for possession of cocaine and one conviction for attempting to elude a police officer (third-degree felonies), and six misdemeanor convictions of various crimes, including battery. Thompkins’ scoresheet calculations merited a range from 36.15 months to 15 years in prison. The State unsuccessfully argued for a minimum sentence of 5 years in prison. Instead, over the State’s strenuous objections, the court explained that it would impose a one-year term of community control followed by two years of probation:

All right. I find this was an isolated incident. This was a lovers’ quarrel. This was not in running from the police as previous. I find there was an ability to physically harm her and he didn’t. He certainly had the capacity and the ability and he didn’t. So him pulling back means a lot to me.
He’s shown remorse. It was clearly unsophisticated, in fact it was stupid. The victim wants him back home. It’s clear from the letters she loves him. He has children, he needs to support them.
I find no redeeming value in sending him to prison. It doesn’t help his kids. It doesn’t help the woman who loves him. I can’t find that it would help him. I don’t [think] this was as much a criminal act necessarily, it was just anger and stupidity.
However, I’m going to put you on community control for twelve months because I want you to take an anger management class.
Defendant: Yes, sir.
The Court: And I want you to write an essay, because clearly you write well, write an essay on what you’ve learned.
The Court: No unconsented contact with any of the victims. Restitution $421.92. After twelve months’ community control that will be followed by two years of probation.

The State appeals, contending that the trial court erred in imposing a sentence below the minimum guideline range. A trial court may properly depart from the guidelines if it determines that “there is a valid legal ground and adequate factual support for that ground in the case pending before it....” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). The trial court’s statement of reasons quoted above reveals the grounds relied upon to impose the departure sentence. As previously mentioned, one is a valid statutory ground and the others are non-statutory grounds. If the statutory ground is supported by competent substantial evidence in the record, affirmance is appropriate. Banks. As to the non-statutory grounds, “[t]he trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited.” State v. Henderson, 108 So.3d 1137, 1140 (Fla. 5th DCA 2013) (citing State v. Stephenson, 973 So.2d 1259, 1263 (Fla. 5th DCA 2008)). The facts that support a departure from the lowest permissible guideline sentence must be proven by a preponderance of the evidence. §§ 921.002(1)(0, (3), Fla. Stat. (2011); Banks; State v. Weaver, 23 So.3d 829 (Fla. 5th DCA 2009). These requirements prohibit trial judges from giving the sentencing guidelines a polite nod and imposing a mitigated sentence based on their own predilections. See Williams v. State, 492 So.2d 1308 (Fla.1986); State v. Whiteside, 56 So.3d 799 (Fla. 2d DCA 2011); State v. Ayers, 901 So.2d 942 (Fla. 2d DCA 2005).

We will begin with the statutory ground. Section 921.0026(2)(j) allows for a departure sentence when: 1) the crime was committed in an unsophisticated manner; 2) it was an isolated incident; and 3) the defendant expressed remorse for his wrongful acts. All three requirements must be established. See State v. Brannum, 876 So.2d 724 (Fla. 5th DCA 2004); State v. Bell, 854 So.2d 686 (Fla. 5th DCA 2003); State v. Falocco, 730 So.2d 765 (Fla. 5th DCA 1999).

Although the third element — remorse — is supported by competent substantial evidence, we believe that the evidence in the record belies the notion that the crimes were committed in an unsophisticated manner. When the victim threw Thompkins the keys and closed the door, he went around to the back of the house to a door with a doggie door attached to the bottom. Rather than kicking in the entire door, Thompkins was successful in kicking in the doggie door to enter the house and gain access to the victim. When the victim fled to the bedroom, Thompkins followed and “busted through” that door. When he entered the room, Thompkins saw the victim on the phone summoning the. police and he fled. While crawling through a broken doggie door may not be the most sophisticated mode of entry, we do not believe that Thompkins’ crimes are any less sophisticated than smashing the windshield of a truck in order to stop the vehicle so the defendant could assault the occupant, see State v. Chestnut, 718 So.2d 812 (Fla. 5th DCA 1998), or peddling (pun intended) drugs on a bicycle to an undercover police officer, see State v. Deleon, 867 So.2d 636 (Fla. 5th DCA 2004).

Regarding the second statutory element, Thompkins has a significant criminal history, including a prior conviction for burglary of a dwelling, that clearly indicates that his crimes are not isolated incidents within the meaning of section 921.0026(2)(j). See State v. Leverett, 44 So.3d 634 (Fla. 5th DCA 2010); State v. Tice, 898 So.2d 268 (Fla. 5th DCA 2005); Deleon. Even if we were to overlook Thompkins’ prior burglary conviction, the remainder of his criminal history would vitiate any suggestion that his current crimes were isolated incidents under the statute. See Ayers, 901 So.2d at 945.

Turning to the non-statutory grounds, the issue is whether they are prohibited and, if not, whether there is competent substantial evidence in the record to support them. See Banks; Henderson. As a preface to our discussion of these particulars, Thompkins essentially concedes the issue in his brief by recognizing the caselaw that is contra to his position and by his invocation of the tipsy coachman rule, contending the sentence is proper even if the grounds are invalid. In any event, we need look no further than the myriad of cases that have consistently held that family support concerns, consisting in this case of the victim’s desire to have Thompkins back and the need for his financial support for herself and their child, are not valid grounds to depart from the guidelines. See Henderson, 108 So.3d at 1141 (“The fact that a defendant has a minor child requiring care and support has previously been rejected as grounds for downward departure.” (citations omitted)); State v. Geoghagan, 27 So.3d 111 (Fla. 1st DCA 2009); Stephenson, 973 So.2d at 1264 (“‘Florida courts have consistently held that family support concerns are not valid reasons for downward departure.’ ” (quoting State v. Walker, 923 So.2d 1262, 1265 (Fla. 1st DCA 2006))); State v. Amaro, 762 So.2d 998 (Fla. 5th DCA 2000); State v. Skidmore, 755 So.2d 647 (Fla. 4th DCA 1999).

Regarding the asserted ground that Thompkins could have harmed the victim but did not, this court has held that the fact that the crime was not committed in a more heinous manner is not a ground for departure. See State v. Subido, 925 So.2d 1052, 1059 (Fla. 5th DCA 2006) (“[T]he law does not support downward departure merely for committing an offense less heinously than other defendants.”). Moreover, we are not convinced that the victim was not harmed, given the fright and trepidation she endured. Also, the evidence clearly reveals that when Thompkins entered the bedroom where the victim had retreated, she was on the phone to 9-1-1 reporting the crime and he fled. So it has not been established that he would not have further harmed the victim if he did not believe the police were on the way.

We are left with the last non-statutory ground — that there is no redeeming value to sending Thompkins to prison. This too is an invalid ground. “In evaluating a non-statutory mitigator, a court must determine whether the asserted reason for a downward departure is consistent with legislative sentencing policies.” State v. Knox, 990 So.2d 665, 669 (Fla. 5th DCA 2008) (citations omitted); see also Chestnut. The stated policy of the Criminal Punishment Code is to punish miscreants for their crimes. § 921.002(l)(b), Fla. Stat. (2011) (“The primary purpose of sentencing is to punish the offender.”); Moore v. State, 882 So.2d 977, 985 (Fla.2004) (“The Legislature expressed that the primary purpose of sentencing is to be punishment.” (citation omitted)); State v. McKnight, 85 So.Bd 995, 997 (Fla. 5th DCA 2010); Chestnut, 718 So.2d at 313 (“Further, the first purpose of sentencing is to punish, not rehabilitate.”). Whether there is any redeeming value to the criminal in sending him to prison is largely of secondary concern. See § 921.002(l)(b), Fla. Stat. (2011); State v. Hall, 47 So.3d 361, 364 n. 5 (Fla. 2d DCA 2010) (“Rehabilitation is a secondary goal, and it is a stated policy that a defendant’s sentence should increase with the length and nature of the defendant’s prior record.” (citing § 921.002(l)(b), (d))); Chestnut, 718 So.2d at 314 (“It is obvious that prison will always be detrimental to one’s future even if it is essential to his appropriate punishment. But the consequence of no prison for violent criminals seems a far worse societal problem.”).

In reasoning that leniency was appropriate for Thompkins and prison was not, the trial court seemed rather dismissive of his conduct, remarking that “I don’t [think] this was as much a criminal act necessarily, it was just anger and stupidity.” The terms “anger” and “stupidity” are nowhere to be found in the lexicon of the Criminal Punishment Code and if trial courts are permitted to impose sentences below the minimum guideline range based on their perception that the crime was committed out of anger and stupidity, it would be difficult to find many cases that would not qualify for a departure sentence, thus making departure the rule rather than the exception. Equally important, a trial court may not impose a departure sentence simply because it perceives that the minimum sentence established by the sentencing guidelines is not commensurate with the seriousness of the crime. See Williams; Whiteside; Subido, 925 So.2d at 1059 (“[T]he court may not award a downward departure merely because it disagrees with the legislative determination of sentencing policy or feels that the lowest permissible sentence is not commensurate with the crime.” (citation omitted)); Ayers; State v. Baker, 498 So.2d 1031 (Fla. 1st DCA 1986). In instances like this where a trial court’s perception of justice leads it to conclude that leniency is appropriate, and grounds do not exist for a departure sentence, the leniency must come from the exercise of the court’s discretion to impose the minimum guidelines sentence. See State v. Matthews, 891 So.2d 479, 488 (Fla.2004) (“Under the sentencing guidelines, a narrow range of permissible sentences is determined through a strict mathematical formula. It is then within the trial judge’s discretion to sentence the defendant within that narrow range.” (citations omitted)).

We have analyzed each of the reasons given by the trial court to justify the sentence it imposed because if just one is a valid ground for departure that is supported by competent evidence, then the sentence should be affirmed. § 921.002(3), Fla. Stat. (2011); Stephenson. Having done so, we conclude that the statutory ground is not supported by competent substantial evidence and that none of the non-statutory grounds are valid. The sentence is reversed and the case is remanded for resentencing.

REVERSED and REMANDED.

ORFINGER, C.J. and COHEN, J., concur.

      . §§ 921.002-.0027, Fla. Stat. (2011).

      . §§ 921.0024(2)-(3), 921.0026(1), 921.00265(1), Fla. Stat. (2011). The Criminal Punishment Code does not apply to defendants charged with capital felonies. § 921.002, Fla. Stat. (2011); see also § 775.082(8)(d), Fla. Stat. (2011).

      . § 921.0026(2), Fla. Stat. (2011).

      . This is the first step in a two-step process established by the court in Banks. The second step requires the trial court to determine whether the departure sentence is the best sentencing option for the defendant after consideration of the totality of the circumstances. 732 So.2d at 1068. We believe that the trial court erred in the first step of the process because the reasons articulated by the trial court were either invalid or not supported by competent substantial evidence.


author: PALMER, J.

text:
    Christopher John VOYER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-497.
    District Court of Appeal of Florida, Fifth District.
    May 17, 2013.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Christopher Voyer (defendant) appeals his judgment and sentence on one count of lewd or lascivious molestation. Determining that fundamental error occurred when the trial court entered a judgment on a charge which had not been submitted to the jury, we reverse.

The defendant was charged with committing eighteen criminal offenses: six counts of sexual battery, six counts of sexual activity with a child, and six counts of lewd or lascivious molestation. At the close of the State’s case-in-chief, the trial court entered judgments of acquittal on ten of the eighteen counts, including count 2 (sexual activity with a child).

Thereafter, in preparing the verdict forms, the parties re-numbered the surviving eight counts; hence, the numbers of the counts submitted to the jury did not align with the numbers of the counts as they were set forth in the information. During the jury charge, the trial court properly instructed the jury that the renumbered count 2 involved the charge of lewd or lascivious molestation (as originally charged in count 3 of the information). However, when reading the verdict forms to the jury, the court read the verdict form prepared for the originally numbered count 2, stating that the defendant was being charged with the crime of sexual activity with a child. The verdict forms provided to the jury also erroneously included the original count 2 (sexual activity with a child), rather than the re-numbered count 2 (lewd or lascivious molestation).

The jury found the defendant guilty on all counts. Apparently failing to recognize that the jury’s verdict on count 2 did not align with the actual charge on the renumbered count 2, the trial court entered a judgment adjudicating the defendant guilty of, among other things, lewd or lascivious molestation as to count 3 as charged in the information. The court then sentenced the defendant to 80 years’ imprisonment on count 3.

The defendant contends that it was fundamental error for the trial court to adjudicate him guilty and sentence him for the crime of lewd or lascivious molestation on count 3 when the jury had not found him guilty of the charge. The State properly concedes error. The only dispute between the parties is what relief the defendant is entitled to receive in this court.

The defendant contends that his judgment and sentence on count 3 must be reversed and that he must be discharged on that count because the jury did not find him guilty of that charge and, therefore, the trial court can take no action which would remedy the infirmity on remand. We agree. See Jaimes v. State, 51 So.3d 445, 451 (Fla.2010) (holding that it is a fundamental principle of due process that a defendant cannot be convicted of a crime that has not been charged by the State; an error that directly results in such a conviction is fundamental). See also Perkins v. Mayo, 92 So.2d 641, 643 (Fla.1957) (explaining one charged with a crime cannot be indicted for one offense and convicted or sentenced for another).

The State argues that discharge on count 3 is not the proper remedy, citing to Moore v. State, 496 So.2d 255 (Fla. 5th DCA 1986). The State’s reliance on Moore is misplaced.

In Moore, the defendant was charged with the unlawful sale of cocaine. However, during trial, the trial court instructed the jury regarding unlawful delivery (not sale) of cocaine. The jury returned a general verdict of guilty as charged. On appeal from his judgment and sentence on the unlawful sale of cocaine charge, our court reversed, explaining:

Either the information and the verdict do not correlate with the jury instructions; or, the information does not correlate with the jury instructions and the verdict.
A jury is entitled to proper instructions on the law from the judge. A verdict which finds a person guilty of a crime with which the accused was not charged is a nullity.
Alternatively, a verdict which is not in conformance with the jury instructions is defective. Either way this appellant was wrongfully convicted. We must reverse that conviction and remand the case for a new trial with proper jury instructions and verdict forms.

Id. at 256. The jury in Moore returned a general verdict of guilty as charged and, therefore, the record was unclear whether the jury found the defendant guilty of the charge set forth in the information (unlawful sale of cocaine), or the charge as instructed by the court at trial (unlawful-delivery of cocaine). Thus, remand for a new trial was appropriate. In contrast, here, the record is clear that, on count 2, the jury found the defendant guilty of sexual activity with a child, yet the defendant ' was being tried for, and the trial court entered judgment and sentence on, the originally charged count 3, lewd or lascivious molestation.

Accordingly, we reverse the defendant’s judgment and sentence on count 3, and remand for the defendant to be discharged on that count.

REVERSED AND REMANDED.

SAWAYA and EVANDER, JJ., concur.