author: SALTER, J.

text:
    Arthur F. McCORMICK, etc., et al., Appellants, v. Gail C. COX, et al., Appellees.
    No. 3D12-1289.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 2013.

      Carlton Fields, and Wendy F. Lumish, Jack R. Reiter, and David L. Luck, Miami, for appellants.
    Goldman Felcoski & Stone and Robert W. Goldman, Naples; Welbaum Guernsey and Hung V. Nguyen, Coral Gables, for appellees.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   SALTER, J.

The trustee, his son, and their law firm appeal an adverse final judgment against them in an action brought by the beneficiaries of family trusts. After an eight-day trial, the probate division of the circuit court: removed the trustee, finding that he had breached his fiduciary duties to the beneficiaries; found that the trustee and his son also acted in a dual capacity as attorneys for the trusts, and participated in breaches of fiduciary duty in that capacity as well; surcharged the trustee, his son, and their law firm for $2,146,812.00 in expenses incurred as a result of their undervaluation of trust property; found that the legal fees paid to the law firm by the trustee were substantially unreasonable and unsupported by the evidence at trial; and required disgorgement of approximately $1,348,000.00 in trustee’s and attorney’s fees previously paid. With prejudgment interest, the total amounts awarded the beneficiaries exceeded $5,300,000.00. We affirm the final judgment in all respects.

I. Facts and Proceedings Below

A. The Trust and the Lynnfield Property

Arthur F. McCormick, an attorney, prepared the last will and testament, as well as a revocable family trust agreement, for his friend of many years, Robert Cox. Cox passed away in January 2001, leaving his wife as the lifetime beneficiary of the “Robert W. Cox Family Trust,” and Mrs. Cox’s four children as the primary beneficiaries of the companion “Robert W. Cox Bypass Trust.” Under the terms of the trust agreement, McCormick became the trustee of each of the trusts when Cox died.

The Cox trusts owned a single asset — a property of approximately 100 acres in Lynnfield, Massachusetts, then operated as a nine-hole golf course. In early 2002, McCormick arranged for an appraisal of the property “as of’ the date Cox passed away. In a report to the trustee dated March 6, 2002, the appraiser reported a fair market value of the property, as an operating golf course and at the date of death, of $2,500,000.00. A month later, that value was used on the federal estate tax return filed on behalf of Cox.

The evidence at trial was in sharp contrast regarding that value and the trustee’s reasons for adopting it. An October 2001 billing entry on an MM&M invoice to the trusts indicated that McCormick was contacting professionals in Massachusetts regarding the development of the golf course property. An invoice for MM&M legal services to the estate, dated March 1, 2002, reported time expended on December 17, 2001, in a search for “the lawfirm [sic] that successfully challenged the City in having its land rezoned for condo development.” Another entry, for December 27, 2001, reported time for a letter to the CPA who ultimately prepared the estate tax return “regarding tax consequences of high vs. low appraisal of golf course.” Other evidence suggested that the golf course could have a much higher market value, even “as of’ the date of Cox’s death, because of its suitability for residential development.

The trustee’s appraiser’s March 2002 report stated that “the highest and best use of the subject property would be for residential development to the maximum intensity [sic] that the physical characteristics of the site would allow.” Yet the evidence did not reflect any concerted effort by McCormick as trustee or by the appraiser (before that appraisal was prepared and the estate tax return filed) to ascertain a market value of the property if developed in accordance with its maximum allowable residential density. Nor did McCormick promptly alert the beneficiaries to the prospect that the property might have a much greater value, or that the estate tax return might be amended to reflect such a value.

In May 2002, if not before, it became clear that the Town of Lynnfield had a strong interest in developing the property as affordable housing, and that the value of the Cox parcel for that purpose was several multiples of its value as a golf course. At trial, the trust beneficiaries’ appraiser testified that the fair market value based on “highest and best use” of the property at the time of Cox’s death was $10,500,000.00. The property was sold to the Town in 2005 for $12,000,000.00.

In order to avoid an immediate and adverse capital gain tax to the family trust and beneficiaries, the trustee structured a like-kind exchange under section 1031 of the Internal Revenue Code, acquiring a qualifying shopping center in Collier County, Florida, with part of the proceeds realized from the sale of the golf course to the Town of Lynnfield. While it is undisputed that the beneficiaries and their counsel supported the like-kind exchange versus the alternative of an immediate recognition and payment of capital gain taxes, there is no evidence that the beneficiaries waived claims against the trustee for undervaluing the Lynnfield property for estate tax purposes. It is also undisputed, and the trial court found, that the trusts incurred $2,146,812 in professional and other expenses (exclusive of the trustee’s own claims for fees) in order to consummate the section 1031 transaction and thereby defer the capital gain taxes on the sale of the property.

B. Untimely and Inaccurate Accounts

McCormick did not provide a trust accounting report to the beneficiaries of either trust until April 2005, when he provided reports from January 25, 2001, through December 31, 2004. McCormick’s testimony regarding this significant breach of obligation was that he felt he should save the trust the expense of such accountings until “all of a sudden it looked like it was going to turn out to look like there was going to be something substantial.” This would suggest that he did not discover the real value of the Lynnfield property until early 2005, a suggestion contradicted by his own billings, correspondence, consultations with development professionals in Massachusetts, retention of a broker to sell the property for the trusts, and pleadings in the later lawsuit.

Moreover, the untimely April 2005 “accounting” for four years of activity by McCormick reported “assets on hand” as of December 31, 2004, as a total of $2,580,113.51, using the long-outdated golf course value. By June 2003, McCormick had authorized the Massachusetts real estate broker to list and sell the property for $15,400,000.00. By September 2003, McCormick and the broker were reviewing offers ranging from $10,868,400.00 to $15,000,000.00. In his April 2005 letter to the beneficiaries enclosing the belated ac-countings, McCormick disclosed the existence of the $12,000,000.00 contract with Lynnfield, but he justified the lower carrying value because of his assessment that a greater value “could only be obtained by changing the permissible use that is more economically productive.”

McCormick’s explanation for his failure to account is also contradicted by his and his own law firm’s initial counterclaims in the circuit court proceeding. McCormick and MM&M alleged (as a basis for computing attorney’s fees for the trusts):

3. ARTHUR F. McCORMICK, as Trustee, through extraordinary skill and effort during the summer of 2002, realized that the Golf Course was not the highest and best use of the subject property. He also ascertained in the summer of 2002 that the highest and best use of the subject property was a site for the construction of low income housing.
7. ARTHUR F. McCORMICK, as Trustee, submits the property attained its value of Twelve Million ($12,000,000.00) Dollars, plus tax benefits (rollback of real estate taxes of approximately $382,123.00 and savings of documentary stamps of approximately $54,760.00), during the calendar year 2002 and that the Trustee’s fees for the Trust should be determined using that valuation for the years 2002, 2003, 2004 and 2005.
15. The Trust corpus attained a value of approximately Twelve Million ($12,000,000.00) Dollars as soon as ARTHUR F. McCORMICK, as Trustee, ascertained the highest and best use for the property and proceeded with his plan, which eventually led to the successful purchase by the City of Lynn-field of the property for Twelve Million ($12,000,000.00) Dollars.
16. The Firm submits that the property attained its value of Twelve Million ($12,000,000.00) Dollars during the calendar year 2002 and that the attorney’s fees for the Trust should be determined using that valuation for the years 2002, 2003, 2004 and 2005.

(Emphasis added).

McCormick and MM&M amended paragraphs seven, fifteen, and sixteen of their counterclaims seven months later to allege instead that the property attained its value of $12,000,000.00 “upon the signing of a contract for the property by the City of Lynnfield” for that amount (i.e., in early 2005 rather than “during the calendar year 2002”).

C.Unilateral and Undisclosed Trustee’s Fees

When the sale of the property closed in August 2005, McCormick instructed the closing agent to make separate distributions to the trusts totaling over $1,548,000, before the remaining net sales proceeds were separately remitted to the qualified seller’s trust intermediary for the section 1031 exchange. McCormick’s testimony and notes established that these funds were diverted from the proceeds without clearance from the beneficiaries, much less any court order, primarily to fund “trustee’s fees” totaling $1,217,528 in four payments from September 2005 through December 2005. When professionals retained by the beneficiaries realized that the net proceeds were substantially less than anticipated, they began a journey of discovery that culminated in learning of the “trustee’s fees” and commencing the circuit court adversary proceeding.

D.Attorney’s Fees

The beneficiaries’ second amended complaint also sought a disgorgement of $74,327.62 in attorney’s fees paid by McCormick as trustee to his firm, MM&M, from 2001-04. At trial, none of the attorneys from MM&M, including McCormick, testified regarding the firm’s legal services, value, or benefits. The trial court concluded after trial that the law firm had participated in McCormick’s breaches of duty, such that the legal fees paid were to be refunded to the trusts.

E.The Beneficiaries’ Claims

The beneficiaries commenced their lawsuit against McCormick, McCormick IY, and MM&M in January 2006. The beneficiaries sought and obtained a temporary injunction prohibiting the defendants from making payments (other than ordinary operating expenses) or encumbering assets. The second amended complaint ultimately included seven counts demanding: (1) a statutory review of trustee’s fees taken or claimed; (2) a review of the trustee’s attorney’s fees taken or claimed; (3) a distribution to Cox’s widow as income beneficiary of the trusts; (4) a surcharge against the trustee and MM&M for breach of fiduciary duties; (5) resolution of the beneficiaries’ objections to the 2005 accountings; and (6) and (7) removal of the trustee and successor trustees.

The case was tried over eight days in November 2011. On March 7, 2012, the trial court entered a final judgment granting relief to the beneficiaries under each count and awarding money damages (including prejudgment interest) totaling approximately $5,300,000.00 as against McCormick, McCormick IV, and MM&M, in varying amounts. A motion for rehearing was denied the following month, and this appeal ensued.

II. Analysis

Appellate counsel for McCormick, McCormick IV, and MM&M, who were not trial counsel, raise four primary issues on appeal: (1) that the beneficiaries failed to prove a breach of duty and resulting damages; (2) that the defendants are entitled to a new trial based on the erroneous admission of the expert valuation testimony of the beneficiaries’ appraiser; (3) that the trial court abused its discretion by requiring the disgorgement of the trustee’s and attorney’s fees paid to the defendants; and (4) that the trial court abused its discretion by removing the trustee “and ignoring the trust’s succession framework.” We examine these in turn.

A. Breach of Fiduciary Duty and Damages

The beneficiaries introduced competent substantial evidence of breaches of fiduciary duty by McCormick, McCormick IV, and MM&M, and resulting damage, thus entitling them to an affirmance on those claims. CFI Sales & Mktg. Ltd. v. Fla. Marlins Baseball, Ltd., 837 So.2d 423 (Fla. 3d DCA 2002).

The beneficiaries called an experienced trust and probate attorney regarding the trustee’s duty to diligently ascertain the value of the sole asset of the trusts, the Lynnfield property. That witness also opined that it would be a breach of duty to undervalue the property for federal estate tax purposes. The beneficiaries’ expert appraisal witness testified that the market value of the property at the time of Cox’s death in 2001 was $8,000,000.00 more than the value accepted by McCormick without a more diligent inquiry.

And as noted earlier, McCormick and his law firm initially alleged in their counterclaims that McCormick should have received credit in 2002 for recognizing the true development capacity of the property and its ultimate sale for $12,000,000.00. McCormick could have amended, but did not amend, the estate tax return to report the higher value. The 1031 like-kind exchange transaction and the associated expenses of $2,146,812.00 were shown to have been necessitated by the undervaluation.

The trustee and his law firm also breached their duties to post a bond and to render annual accountings to the beneficiaries as specified by the Cox trust agreement and Florida law. Section 4.1.4 of the trust agreement specified that individuals named as trustees “shall be required to post bond in.an amount equal to the value of the assets held in trust.” Section 737.304, Florida Statutes (2001), allowed the trustee to apply to a court to excuse the trust instrument’s requirement for a bond, but McCormick did not seek that relief. McCormick’s decision not to file a bond (to save money, according to McCormick) was one which should have been cleared by the beneficiaries in writing or submitted to the court for consideration. A bond allows collection of losses imper-missibly incurred by a fiduciary from a solvent, court-approved surety. On the present record, and in the absence of a bond, the beneficiaries must pursue collection remedies (of as-yet unknown efficacy) against the defendants/appellants, with no apparent recourse to a surety.

McCormick conceded that he filed no annual accounting until the four-year report in April 2005. A fiduciary is obligated not only to make prudent decisions, but also to file the annual account-ings to keep the beneficiaries informed of income, expenses, and fluctuations in value of the trust assets. Each beneficiary had an enforceable right to receive an accounting from the trustee. Weiss v. Courshon, 618 So.2d 255 (Fla. 3d DCA 1993); §§ 737.303, .3035, Fla. Stat. (2002).

And though this is discussed in greater detail under the disgorgement issue below, a trustee’s unilateral payment to himself of a seven-figure fee from trust monies — without prior disclosures of alleged entitlement and amount to the beneficiaries or the court — also constituted a flagrant breach of duty. Lees v. Pierce, 648 So.2d 839 (Fla. 5th DCA 1995). Once the trustee paid the section 1031 like-kind exchange costs, invested in the shopping center property, and paid himself over $1,200,000.00 in “trustee’s fees,” the trusts’ cash and cash-equivalent assets were severely depleted. The evidence at trial demonstrated that the family trust was unable to pay Mr. Cox’s widow all of the principal, some $873,000.00, that she was entitled to receive under the trust agreement, without incurring substantial capital gains taxes.

B.Admission of Expert Appraisal Testimony

The beneficiaries’ expert appraiser had a Harvard undergraduate degree, a Master’s Degree in Business Administration from Babson College, and a Massachusetts certified general appraiser’s license. Trial counsel for the defendants did not request a voir dire on those qualifications, or object to the appraiser’s valuation testimony as he provided it. After cross-examination, the defendants moved to strike the appraisal testimony. The trial court stated its belief that the defendants’ points went “to weight and not admissibility,” and thus allowed the testimony. “We review discretionary issues involving the admission of evidence ... for abuse of discretion.” H & H Elec., Inc. v. Lopez, 967 So.2d 345, 347 (Fla. 3d DCA 2007). We find no abuse of discretion in the trial court’s refusal to strike the appraiser’s testimony.

C. Disgorgement of Trustee’s and Attorney’s Fees

When the beneficiaries learned of the extraordinary and unilateral trustee’s fees paid by McCormick to himself from the sale of the Lynnfield property in 2005, they and their professionals immediately demanded information and the legal basis for the payments. Remarkably, McCormick did not immediately restore the payments (or any part of them) to the trusts pending a resolution of the matter or the submission of the claim for trustee’s fees to the court. Nor did McCormick place the funds (or any part of them) in a separate account or segregate them until the court considered the matter. McCormick simply retained the funds and waited for the beneficiaries to come after him in their lawsuit. The trial court had the power to review the evidence regarding the trustee’s administration of the trusts and to determine an appropriate trustee’s fee, including no fee at all. § 736.1001(2)(h), Fla. Stat. (2013) (authorizing the court to “reduce or deny compensation to the trustee” to remedy a breach of trust); Ortmann v. Bell, 100 So.3d 38, 45 (Fla. 2d DCA 2011).

The trial court’s assessment of the beneficiaries’ claims for the disallowance of attorney’s fees paid to MM&M is also affirmed. Among other factors supporting that ruling, none of the MM&M attorneys testified regarding the specific legal services each provided or the other factors set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985).

D. Removal of Trustees

On this record, it is apparent that the trial court did not abuse its discretion in removing McCormick as trustee, and in granting the beneficiaries’ preemptive request to preclude McCormick’s sons from serving as a successor trustee. In the absence of such a ruling, McCormick IV and Brad McCormick (in that order) would have succeeded McCormick under Article IV of the trust agreement (as to both the family trust and the bypass trust). Count VII of the second amended complaint essentially sought a declaration that McCormick IV and Brad McCormick should be disqualified from the otherwise self-executing succession provisions because of their participation with their father in MM&M and their knowledge of, or acquiescence in, the breaches of duty at issue in the lawsuit. The court’s power to remove a trustee and to appoint a special trustee is well settled. §§ 736.0706, .1001(2)(g), Fla. Stat. (2013).

III. Conclusion

The final judgment in favor of the beneficiaries is supported by competent substantial evidence and is affirmed in all respects.

      . The appellants are Arthur F. McCormick (“McCormick”); his son and law partner Arthur F. McCormick, IV ("McCormick IV”); and their law firm, McCormick, McCormick & McCormick, P.A. ("MM&M”).

      . Although the specific language changed during some of the years at issue here (compare § 733.303(4), Fla. Stat. (2000), with §§ 733.303(4), .3035, Fla. Stat. (2002)), the annual accounting should have informed the beneficiaries of the trustee's upwardly-moving assessment of the Lynnfield property’s market value from year to year. Section 4.1.5 of the Cox trust agreement also requires such an accounting.

      . McCormick's notes dated a few weeks before the closing indicated that he considered his efforts responsible for the increase in value from $2,500,000.00 to $12,000,000.00, such that he should be entitled to ten percent of the increase. This amount was the largest component of the fees he paid himself as trustee. He also paid himself fees in connection with the acquisition of the like-kind section 1031 exchange property at the end of 2005. McCormick also paid himself $55,954.70 in "regular” trustee’s fees during the period 2001-03.

      . Brad McCormick, initially named as a defendant, obtained a dismissal from the lawsuit before trial and is not a party here.


source: Caselaw Access Project

author: LEWIS, C.J.

license: Public Domain

text:
    Darrell USRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1732.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2013.
    Robert A. Morris of The Law Offices of Robert A. Morris, LLC, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, C.J.

Appellant, Darrell Usry, challenges his conviction for lewd or lascivious exhibition pursuant to section 800.04(7), Florida Statutes (2011). Appellant argues on appeal that the trial court erred in denying his motion for judgment of acquittal and committed fundamental error in incorrectly interpreting the law when rendering its verdict. We reject both arguments and affirm.

The victim, who was thirteen when the offense occurred, testified at trial that Appellant, during an approximate one-month period, would stand across the street from her bus stop, cough or clap to get her attention, and expose his genitals to her. The victim further testified that Appellant would wave his “private part.” Although the victim did not include any assertion of masturbation in her statement to police, she demonstrated at trial that Appellant would move his hands back and forth on his “private part.” Appellant would run behind a nearby church if people came near the area and would reemerge when the people were gone. On one occasion, Appellant crossed the street and asked the victim if she was afraid of him. After being confronted by the victim’s mother, Appellant left the area but returned approximately two weeks later and stood outside the victim’s bedroom window at approximately 6:00 a.m. The victim’s mother contacted police, and Appellant was detained the following day after walking towards the victim who was standing at her bus stop.

Appellant, who waived the right to a jury trial, moved for a judgment of acquittal, arguing that the State failed to prove lewd or lascivious exhibition, that the charged crime required some “real obvious masturbatory act or something awfully close to it,” and that.what the victim described was at most a violation of section 800.03, Florida Statutes, which addresses the exposure of sexual organs. The trial court denied the motion.

Following Appellant’s testimony that he only urinated in front of the victim, and after the parties’ closing arguments, the trial court stated in part that the difference between section 800.03 and section 800.04(7), in a “non legal way of looking at it,” was the sexual intent versus an “obnoxious intent.” The trial court found that there was no way to conclude that Appellant’s conduct was anything “other than the sexual intent that’s necessary” for the charged crime. It found Appellant guilty of lewd or lascivious exhibition and aggravated stalking. This appeal followed.

We review the denial of Appellant’s motion for judgment of acquittal de novo. See Huggins v. State, 889 So.2d 743, 765 (Fla.2004). We will not reverse a conviction that is supported by competent, substantial evidence. Id. In this case, we find no error in the denial of Appellant’s motion. The State charged Appellant with lewd or lascivious exhibition, a violation of section 800.04(7), Florida Statutes (2011). The statute provides:

(7) Lewd or lascivious exhibition.—
(a) A person who:
1. Intentionally masturbates;
2. Intentionally exposes the genitals in a lewd or lascivious manner; or
3. Intentionally commits any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a victim who is less than 16 years of age, commits lewd or lascivious exhibition.

§ 800.04(7), Fla. Stat. (2011). The words “lewd” and “lascivious” mean the same thing for purposes of the offense, i.e., “a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.” Fla. Std. Jury Instr. (Crim.) 11.10(e). An offender eighteen years of age or older who commits the offense commits a second-degree felony. § 800.04(7)(b), Fla. Stat. (2011).

In support of Appellant’s motion for judgment of acquittal, defense counsel argued that section 800.04(7) requires some “real obvious masturbatory act or something awfully close to it” and that the evidence showed at most a violation of section 800.08, Florida Statutes. That statute provides:

It is unlawful to expose or exhibit one’s sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose. Violation of this section is a misdemean- or of the first degree ....

§ 800.03, Fla. Stat. (2011). Although the statute does not include the words “lewd” or “lascivious,” the standard jury instructions provide that the State must prove that the exhibition or exposure be done in a “vulgar, indecent, lewd or lascivious manner.” Fla. Std. Jury Instr. (Crim.) 11.9. The instruction further provides that all four words mean the same thing, i.e., “an unlawful indulgence in lust or a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing the act.” Id.

Contrary to the arguments raised in favor of Appellant’s motion for judgment of acquittal, the Legislature did not only prohibit intentional masturbation or the intentional simulation of a sexual act in the presence of a child under the age of sixteen in section 800.04(7). It also prohibited the intentional exposure of a person’s genitals in a lewd or lascivious manner. Therefore, even without the victim’s trial testimony indicating that Appellant masturbated in her presence, testimony that was not included in her statement to police, the evidence that Appellant exposed himself and waved his “private part” in front of her, when considered with the surrounding circumstances in this case, was more than sufficient to withstand a motion for judgment of acquittal. See State v. Sholl, 18 So.3d 1158, 1161 (Fla. 1st DCA 2009) (noting that a jury could reasonably infer from the appellant’s decision to expose himself during an online chat to someone whom he believed to be a thirteen-year-old girl that he was intentionally acting in a lewd or lascivious manner for purposes of section 800.04(7)).

We also reject Appellant’s argument that the trial court committed fundamental error by incorrectly interpreting the law when rendering its guilty verdict. Although Appellant is correct that section 800.03 requires a sexual intent as opposed to an “obnoxious intent” as noted by the trial court, the fact remains that Appellant’s repeated and intentional exposure of himself to a thirteen-year-old child while she waited at a school bus stop supports a guilty verdict on the charged crime of lewd or lascivious exhibition under section 800.04(7). Although section 800.03 prohibits the exposure of a person’s sexual organs, the statute does not specifically pertain to victims less than sixteen years of age as does section 800.04(7). While committing such an act in front of an adult may only warrant treatment as a first-degree misdemeanor, the Legislature determined that committing the act in front of a child less than sixteen years of age constitutes a felony and deserves a harsher penalty.

Accordingly, we AFFIRM.

BENTON and WETHERELL, JJ., concur.


author: PER CURIAM.

text:
    PDQ COOLIDGE FORMAD, LLC, Salomon Yuken, and Prestige Construction Group, LLC, Appellants, v. FANNIE MAE, a Corporation Organized and Existing Under The Federal National Mortgage Association Charter Act, 12 U.S.C. 1716, et. seq., as Amended and Ojec Participants, LLC, a Florida Limited Liability Company and the United States of America, Department of the TREASURY-INTERNAL Revenue Service, Appellees.
    No. 1D13-3274.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2013.
    Thomas K. Equels, J. Stanley Chapman, and Mary H. Equels, of Equels Law Firm, Orlando, for Appellants.
    John R. Hamilton, Kevin A. Reck, and Adam C. Losey, of Foley & Lardner LLP, Orlando, for Appellees.
   PER CURIAM.

Having determined that appellants’ notice of appeal failed to timely invoke the Court’s jurisdiction, the appeal is hereby dismissed. Any remedy the appellants may have lies with the lower tribunal. Cf. Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


text:
    Bobbie COVELL, Appellant, v. CRACKER BARREL OLD COUNTRY STORE, INC. and CCMSI, Appellees.
    No. 1D13-1232.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2013.
    Kenneth B. Schwartz of Kenneth B. Schwartz, P.A., West Palm Beach, for Appellant.
    William H. Rogner and Paul L. Luger of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges a nonfinal order of the Judge of Compensation Claims (JCC) denying her motion to compel the Employer/Carrier to produce documents previously the subject of a written request to produce. In the appealed order, the JCC denied the motion on the ground that he lacked jurisdiction over the motion because no petition for benefits (PFB) had been filed. We conclude that a JCC has jurisdiction to compel the production of documentary evidence, even before the filing of a PFB. See Canovas v. Sugar Supply, Inc., 921 So.2d 26 (Fla. 1st DCA 2006). In reaching this conclusion, we address only the jurisdictional issue and not whether Claimant is entitled to the discovery requested. See Stanberry v. Escambia County, 813 So.2d 278, 279 (Fla. 1st DCA 2002) (explaining review of nonfinal order is limited to only appealable portions of such order).

REVERSED AND REMANDED for further proceedings consistent with this opinion.

CLARK, ROWE, and SWANSON, JJ., concur.


text:
    Jeffrey Lance BUTLER, father, Appellant, v. Stephanie HALL f/k/a Stephanie Butler, mother, Appellee.
    No. 1D13-250.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2013.
    Maggie McCall Moody of McCall Moody Law Firm, Tallahassee, for Appellant.
    Thomas J. Schulte, Jr. of Judkins, Simpson, High & Schulte, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Jeffrey Lance Butler, appeals a non-final order granting his petition for modification and argues in part that the trial court’s written judgment as to the parties’ timesharing schedule with their three minor children is inconsistent with the trial court’s oral pronouncement on this issue. We agree and reverse as to this issue.

The trial court clearly stated during the hearing addressing the petition that Appel-lee, Stephanie Hall, was to have the children every Wednesday night and every other weekend. However, in its written judgment, the trial court also gave Appel-lee an alternating Thursday night and found that Appellant would have fifty-eight percent of the overnights with the children throughout the year and that Appellee would have forty-two percent of the overnights. Reversal is required where a written judgment is inconsistent with a trial court’s oral pronouncement. See Judkins v. State, Dep’t of Revenue, 84 So.3d 462, 462-63 (Fla. 4th DCA 2012); Brewer v. Brewer, 3 So.3d 432, 433 (Fla. 2d DCA 2009); Gallardo v. Gallardo, 593 So.2d 522, 524 (Fla. 3d DCA 1991). We, therefore, reverse the written judgment as to the timesharing issue and remand with instructions that the trial court conform the judgment to its oral pronouncement as to this issue and correct the percentages for the parties’ overnights with the children. We find no merit in Appellant’s other arguments on appeal.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

LEWIS, C.J., BENTON and WETHERELL, JJ., concur.


author: PER CURIAM. WOLF, J.,

text:
    CITY OF ATLANTIC BEACH, Petitioner, v. Donald and Karen WOLFSON, Respondents.
    No. 1D12-6006.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2013.
    Sheryl G. Hopkins of Bell & Roper, P.A., Orlando, for Petitioner.
    Christopher A. White and Joshua W. Taylor of Reznicsek, Fraser, White & Shaffer, P.A., Jacksonville, for Respondents.
   PER CURIAM.

Petitioner, the City of Atlantic Beach, seeks second-tier certiorari review of the circuit court’s order granting the certiorari petition filed by Respondents, Donald and Karen Wolfson, wherein they challenged the City Commission’s order affirming the Community Development Board’s denial of their variance request. We agree with Respondents’ argument that Petitioner’s challenge to the circuit court’s determination that due process was not afforded to Respondents at the Commission hearing is not cognizable in this proceeding. See State, Dep’t of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904, 906 (Fla. 1st DCA 2011) (explaining that district courts must determine on second-tier certiorari review whether the circuit court applied the correct law and whether it afforded procedural due process); Pharmcore, Inc. v. City of Hallandale Beach, 946 So.2d 550, 552 (Fla. 4th DCA 2006) (noting that the petitioner had not presented anything to suggest that the circuit court applied the incorrect law regarding its procedural due process determination and that second-tier review is not available to review the application of the correct law to the facts); see also Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 1121 (Fla. 4th DCA 2007); Seminole Entm’t, Inc. v. City of Casselberry, 813 So.2d 186 (Fla. 5th DCA 2002).

We do, however, find merit in Petitioner’s argument that the circuit court applied the incorrect law in conducting an independent review of the record before the Commission and in concluding that competent, substantial evidence supported a determination opposite from that of the Board and the Commission. See Clay County v. Kendale Land Dev., Inc., 969 So.2d 1177, 1181 (Fla. 1st DCA 2007) (concluding that the circuit court on first-tier certiorari review violated a clearly established principle of law resulting in a miscarriage of justice when it conducted an independent review of the record and concluded that competent, substantial evidence supported a conclusion opposite from that of the hearing officer); see also Dusseau v. Metro. Dade County Bd. of County Comm’rs, 794 So.2d 1270, 1275 (Fla.2001) (“Instead of simply reviewing the Commission’s decision to determine whether it was suppoHed by competent substantial evidence, the court also reviewed the decision to determine whether it was opposed by competent, substantial evidence.”). We also conclude that the circuit court applied the incorrect law when it remanded the case to Petitioner for the entry of an order approving the subject variance in compliance with the recommendations of the city staff. See Clay County, 969 So.2d at 1181 (holding that the circuit court violated a clearly established principle of law when it entered a judgment on the merits in the first-tier certiorari proceeding and explaining that when considering a certiorari petition, a court has only two options — it may either deny the petition or grant it and quash the order at which the petition is directed).

Accordingly, we GRANT Petitioner’s certiorari petition, QUASH the circuit court’s order, and REMAND the matter to the circuit court for further proceedings applying the correct law.

MAKAR and OSTERHAUS JJ., concur.

WOLF, J. concurs with opinion.

WOLF, J.,

Concurring.

I would also conclude that the circuit court applied the incorrect law in determining that the City failed to provide respondent due process. The circuit court’s determination that the City Commission, at a public hearing, could not consider any further statements or consider any new evidence which was not already part of the record sent from the Community Development Board is not supported by any existing law and is in direct contravention of Jennings v. Dade County, 589 So.2d 1337 (Fla. 3d DCA 1991).


author: RAY, J.

text:
    STATE of Florida, Appellant, v. Sammy PERLMAN, Appellee.
    No. 1D12-3980.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2013.

      Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   RAY, J.

The State of Florida timely appeals a downward departure sentence imposed upon Sammy Perlman for two felony petit theft charges. Among other grounds, the State argues that the departure was erroneous because it was premised on section 921.0026(2)0, Florida Statutes (2012), and Mr. Perlman’s extensive criminal record demonstrates that the underlying offenses were not isolated incidents as required by that provision. We agree and therefore vacate the sentence and remand for resen-tencing consistent with this opinion.

The decision to impose a downward departure is a two-step process. See State v. Owens, 848 So.2d 1199, 1201 (Fla. 1st DCA 2003). For the purposes of this appeal, we need only consider step one: whether a valid legal ground, supported by evidence, applies in this case. See State v. Jerry, 19 So.3d 1167, 1169 (Fla. 1st DCA 2009) (citing Banks v. State, 732 So.2d 1065, 1067 (Fla.1999)); see also § 921.0026(1), Fla. Stat. (2012) (“A downward departure from the lowest permissible sentence ... is prohibited unless there are circumstances or factors that reasonably justify the downward departure.”). This step is a “mixed question of law and fact” requiring affirmance where the court applied the “right rule of law” and the ruling is supported by competent, substantial evidence. Jerry, 19 So.3d at 1169 (quoting Banks, 732 So.2d at 1067).

The trial court applied a valid legal ground for its downward departure as provided by section 921.0026(2)(j). This provision authorizes a trial court to depart from the lowest permissible sentence if the evidence shows (1) the offense was committed in an unsophisticated manner, (2) the offense was an isolated incident, and (3) the defendant has shown remorse. § 921.0026(2)(j). The ultimate inquiry before this court is whether all three of these elements were properly established in this case by competent, substantial evidence. See Jerry, 19 So.3d at 1170; State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006); State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005); State v. Cooper, 889 So.2d 119, 119 (Fla. 4th DCA 2004).

Focusing on the second element, Florida courts have held that extensive criminal history alone precludes the finding that an offense was “an isolated incident” under section 921.0026(2)(j). See, e.g., State v. Waterman, 12 So.3d 1265, 1268 (Fla. 4th DCA 2009) (where defendant had at least six prior convictions); Ayers, 901 So.2d at 945 (where defendant had eight prior convictions); State v. Gaines, 971 So.2d 219, 221 (Fla. 4th DCA 2008) (where the defendant had eighteen prior convictions); State v. Stephenson, 973 So.2d 1259, 1263-64 (Fla. 5th DCA 2008) (where the defendant had at least seventeen prior convictions). “This standard applies even if the defendant’s record does not include the same offense for which he is presently being sentenced.” Waterman, 12 So.3d at 1268.

In the case before us, the State represented to the trial judge without objection that Mr. Perlman’s prior criminal record consisted of three robberies, 21 felonies, and seven forgery related thefts. This record is too extensive under established case law to permit a finding that the offenses at issue were isolated incidents. Because the trial court’s finding on this prerequisite is not supported by competent, substantial evidence, the statutory basis given for departure cannot be sustained. Accordingly, we reverse the downward departure sentence and remand for resentencing.

REVERSED and REMANDED.

VAN NORTWICK and MARSTILLER, JJ., concur.


text:
    Elbert N. DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6255.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2013.

      Nancy A. Daniels, Public Defender and Lacey Kantor, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this reinstated direct appeal, appellant argues that fundamental sentencing error occurred based on discrepancies between the trial court’s oral pronouncement of his sentence and the written judgment and sentence. Specifically, appellant points out that while he was sentenced orally to time served on the count of possession of drug paraphernalia, this time-served sentence was not included in the written sentence. He also points out he was orally sentenced as a prison releasee reoffender on the count of resisting a police officer with violence, but the written sentence only generally notes he is sentenced as a prison releasee reoffender and does not specify as to which count. The state concedes in its answer brief that the various written sentencing documents do not conform to the oral pronouncement and concedes that the case should be remanded so that the trial court can correct the written judgment and sentence. Relying on Walton v. State, 106 So.3d 522, 529 (Fla. 1st DCA 2013), the state urges that the necessary corrections to the written judgment and sentence are ministerial in nature and, therefore, the appellant need not be present at sentencing.

The problem is, however, that we cannot review the appellant’s unpreserved sentencing error claims on the merits. See Craighead v. State, 36 So.3d 893 (Fla. 1st DCA 2010) (quoting Jackson v. State, 983 So.2d 562, 569 (Fla.2008)). Claims that the written judgment and sentence do not conform to the oral pronouncement must be preserved either with a contemporaneous objection, if possible, or by filing a Florida Rule of Criminal Procedure 3.800(b)(2) motion before filing the initial brief. See Jackson, 983 So.2d at 572 (noting that sentencing errors subject to Rule 3.800(b)(2) include written orders that deviate from the oral pronouncement); Evans v. State, 895 So.2d 1292, 1292-93 (Fla. 1st DCA 2005) (holding that absent contemporaneous objection or Rule 3.800(b)(2) motion, error in non-conforming written sentence and order of probation to oral pronouncement was not preserved for direct appeal). Burney v. State, 114 So.3d 455 (Fla. 4th DCA 2013) (holding that absent contemporaneous objection or Rule 3.800(b)(2) motion, error in non-conforming written revocation of probation to oral pronouncement was unpreserved for direct appeal, citing Evans, 895 So.2d 1292.) In this case, the appellant concedes the issue was not preserved during sentencing by contemporaneous objection. Likewise, neither the appellant nor the state filed a notice of a pending Rule 3.800(b)(2) motion in this Court prior to the appellant’s filing his initial brief.

Accordingly, we must affirm appellant’s sentence. We do so, however, without prejudice to appellant’s ability to raise the above claims in a motion for post-conviction relief under Rule 3.850 or a petition alleging ineffective assistance of counsel. See Hope v. State, — So.3d -, 2013 WL 363368, 38 Fla. L. Weekly D247 (Fla. 1st DCA, Jan.31, 2013); Evans v. State, 904 So.2d 638 (Fla. 1st DCA 2005).

Affirmed without prejudice.

VAN NORTWICK, CLARK, and OSTERHAUS, JJ., concur.


text:
    A.M., Mother of J.S. and N.M., Minor Children, Appellant, v. DEPARTMENT of CHILDREN and FAMILIES, Appellee.
    No. 1D13-618.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2013.
    Lara A. Mason, Jacksonville and Shirley Clark Ayers, Gainesville, for Appellant.
    Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville and Kelley Schaffer, Appellate Counsel, Guardian ad Litem Program, Sanford, for Appellee.
   PER CURIAM.

A.M. appeals a judicial review hearing order involving her two children who were adjudicated dependent in 2008, and reached permanency in 2012. Her appeal claims among other things that the court’s order incorrectly denied a motion for reunification and failed to make adequate statutory findings. There is no record indication, however, that A.M. actually moved for reunification. Neither a motion for reunification, nor an order deciding a motion for reunification appears in the record. Furthermore, the record of the December 2012 hearing — which gave rise to the order that A.M. appeals here — does not indicate that A.M. supported a motion for reunification with the statutorily required “demonstrat[ion] that the safety, well-being, and physical, mental, and emotional health of the child[ren are] not endangered by the modification.” § 39.621(9), Fla. Stat. Finally, if statutory deficiencies existed in the trial court’s order, Appellant needed to preserve these issues “by a motion for rehearing or ... [by otherwise bringing] the claimed deficiency to the attention of the trial court at a point when it could have been corrected.” D.T. v. Fla. Dep’t of Children & Families, 54 So.3d 632, 633 (Fla. 1st DCA 2011).

We find no merit in Appellant’s other arguments and therefore affirm the trial court.

LEWIS, C.J., MARSTILLER, and OSTERHAUS, JJ„ concur.


text:
    Curtis Charles LIEBER, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of The Indymac Indx Mortgage Trust 2007-AR15, Mortgage Pass-Through Certificates Series 2007-AR15 Under The Pooling and Servicing Agreement Dated June 1, 2007, Appellees.
    No. 1D13-2527.
    District Court of Appeal of Florida, First District.
    Aug. 20, 2013.
    Curtis Charles Lieber, pro se, Appellant.
    Kahane & Associates, P.A., Plantation, for Appellees.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(b); Fla. R.App. P. 9.130(b).

VAN NORTWICK, SWANSON, and OSTERHAUS, JJ., concur.


author: LOGUE, J.

text:
    Victor VILLANUEVA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2023.
    District Court of Appeal of Florida, Third District.
    Aug. 21, 2013.

      Carlos J. Martinez, Public Defender, and Michael Mayer, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Magaly Rodriguez, Assistant Attorney General, Miami, for appellee.
    Before LAGOA, SALTER, and LOGUE, JJ.
   LOGUE, J.

A jury found Victor Villanueva guilty of misdemeanor battery. On appeal, he challenges the trial court’s decision to impose on his probation a special condition that he undergo sex offender therapy. Although Villanueva was convicted only of simple battery, the facts in the record indicate that the non-consensual physical contacts underlying the battery involved the touching of a juvenile female’s breasts and buttocks. For this reason, we hold that the trial court could require therapy of this nature as a condition of probation in this case. In addition, we remand with directions for the trial court to correct two scrivener’s errors in the sentencing order.

FACTS AND PROCEDURAL BACKGROUND

Villanueva was charged with one count of lewd and lascivious molestation of a child older than twelve, but less than sixteen years old. The victim, Y.V., was Villanueva’s daughter, from whom he had become estranged by the time the girl was nine. When Y.V. was twelve, her family ran into Villanueva and arrangements were made for Villanueva to visit with Y.V. During the visit, Villanueva touched Y.V.’s breast. Y.V. testified that the touching of her breast was not accidental and lasted for several seconds. When she reacted, he laughed. Later, in Villanueva’s car, he again put his hand on her breast. Finally, while Y.V. was in a bathing suit at a swimming pool, he reached out and put his hand on her buttocks which caused her to exclaim, “hey, you touched me.” He apologized. Y.V. told her mother and, later, a teacher, who notified the police. Villa-nueva testified that he never touched Y.V.’s breasts.

The jury acquitted Villanueva of the charge of lewd and lascivious molestation of a child, but found him guilty of the lesser included offense of misdemeanor battery. The trial judge sentenced Villa-nueva to one year of probation, subject to the special condition that Villanueva undergo sex offender therapy. The judge explained his reasoning for this condition as follows:

I ordered ... [sex offender] therapy because he was found guilty of battery which is an illegal touching of someone else. That’s what he was charged with, was the illegal touching of someone else. They just didn’t find it to the same degree that the charging people did. Okay. That being the case, it was still an improper touching of his daughter, and he can acknowledge that in the sense of what it was and what he was found guilty of and go do the therapy, because he needs to learn that he can’t do that to children and family.

The order also required Villanueva to serve ninety days in jail before the one year probation began and it stated that Villanueva had pled guilty, rather than been convicted at trial.

DISCUSSION

Sex Offender Therapy

Villanueva first challenges the portion of his sentence requiring him to undergo sex offender therapy as a condition of probation. His appeal in this regard raises two related issues: (1) whether sex offender therapy as a condition of probation is restricted by statute to only certain enumerated sexual offenses; and (2) whether the imposition of that condition here comports with the standards governing probation announced by the Florida Supreme Court in Biller v. State, 618 So.2d 734, 734-35 (Fla.1993). We address each issue in turn.

A. Is Sex Offender Therapy Restricted to Only Certain Sexual Offenses?

Villanueva first argues that sex offender therapy as a condition of probation is restricted by statute to certain enumerated sexual offenses. We are not persuaded. Even though a statute includes sex offender treatment as one of a roster of mandatory conditions of probation for certain specified sexual offenses, the statute does not prohibit a judge from selectively requiring sex offender therapy as a special condition of probation for other offenses where appropriate.

Section 948.30, Florida Statutes (2011), establishes the conditions for “sex offender probation.” It requires that, when granting probation to persons convicted of specific sexual offenses, the court “must impose” certain conditions “in addition to all other standard and special conditions imposed.” § 948.30(1), Fla. Stat. (2011). One of these additional mandatory conditions is sex offender therapy. Others are a curfew, residency restrictions, prohibitions on contact with the victim or children (except as authorized by the court), prohibitions on working or volunteering at schools, a prohibition on viewing child pornography, prohibitions on accessing the internet under certain circumstances, a requirement to provide blood specimens, a requirement to pay restitution, submission to warrantless searches, submission to polygraph examinations, maintenance of driving logs, electronic monitoring in certain circumstances, and prohibitions on visiting schools and parks without prior approval. See § 948.30, Fla. Stat. (2011).

Section 948.30 reflects the clear intent of the Legislature that all of these conditions be imposed when persons convicted of the sexual offenses listed in the statute are granted probation. But it contains no language that prohibits these conditions from being selectively imposed on the probation for other crimes. Courts already have imposed some of the individual conditions listed in section 948.30 for offenses other than those listed in the statute. In addition, the Legislature itself authorizes some of the individual conditions listed in section 948.30 to be imposed for offenses other than those listed in the statute. See, e.g., §§ 948.014, 948.03(l)(o), Fla. Stat. (2011) (provide blood or other biological speei-mens); §§ 948.03(l)(f), 948.032, Fla. Stat. (2011) (pay restitution).

Moreover, reading such a restrictive inference into the statute runs contrary to the policy of the probation statutes, which encourage trial judges to exercise broad discretion in tailoring the probation conditions to a defendant’s rehabilitation. The probation statutes mandate certain conditions of probation for certain crimes, but otherwise recognize that trial judges have broad discretion to fashion conditions of probation that promote rehabilitation. See, e.g., § 948.03(2), Fla. Stat. (2011) (“The enumeration of specific kinds of terms and conditions [for probation] shall not prevent the court from adding thereto such other or others as it considers proper.”); § 948.039, Fla. Stat. (2011) (“The court may determine any special terms and conditions of probation.”).

We acknowledge that our sister courts have held that all of the conditions listed in the sex offender probation statute could not be imposed on persons who were convicted of a crime other than those crimes enumerated in the statute. Sturges v. State, 980 So.2d 1108, 1109 (Fla. 4th DCA 2008) (rejecting imposition of all the conditions “pursuant to section 948.30”) (original emphasis); Arias v. State, 65 So.3d 104 (Fla. 5th DCA 2011) (rejecting imposition of all of the conditions as a special condition). We believe that these cases are easily distinguished from the instant case because they did not address situations where the court selectively imposed only one of the listed conditions, such as the sex offender therapy imposed here. Accordingly, we hold that while there are circumstances in which sex offender therapy is a statutorily-required condition of probation, sex offender therapy can still be imposed as a special condition of probation outside of those statutorily-required circumstances when the facts of the crime so warrant.

B. Application of Biller.

Villanueva next argues that the condition requiring sex offender therapy violates the test announced by the Supreme Court in Biller, because it bears no rational relationship to his conviction for misdemeanor battery. In this regard, he argues that the sentencing court is limited to considering only the face of the conviction and not the facts underlying the conviction. We reject this argument. When fashioning special conditions of probation to assist and ensure the rehabilitation of the defendant, the trial judge may consider the facts and unique circumstances of each defendant and his or her crime, as reflected in the record.

The Florida Supreme Court has held that a special condition of probation “is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.” Biller, 618 So.2d at 734-35 (quoting Rodriguez v. State, 378 So.2d 7, 9 (Fla. 2d DCA 1979)). “[T]hese limitations” ensure that “a special condition of probation cannot be imposed if it is so punitive as to be unrelated to rehabilitation.” Spano v. State, 60 So.3d 1108, 1109 (Fla. 4th DCA 2011) (internal quotations, alteration, and citations omitted). Although Villanueva argues that a trial court is limited in applying this test to the face of the judgment, Biller itself refutes this assertion.

In Biller, the Supreme Court held that a concealed firearm conviction could not support a special condition of probation that the defendant not use or possess alcohol because “there was nothing connecting any use of alcohol with the crimes with which [Biller] stands convicted.” 618 So.2d at 735. The Court added that “there was nothing in the record, such as information in a presentence investigation report, which would suggest that Biller has a propensity towards alcohol or that his judgment becomes impaired as a consequence of using it.” Id. (emphasis added). The clear inference from the Court’s reasoning is that this condition could have been imposed if the record indicated that the defendant had a propensity to abuse alcohol and that this propensity related to his conviction and potential recidivism. In other words, the Supreme Court indicated that the sentencing judge could consider facts in the record beyond the face of the judgment.

Applying Biller here, we conclude that the special condition that Villanueva attend sex offender therapy comports with that decision’s standards governing probation because it is reasonably related to rehabilitation. Villanueva argues that the first Biller factor is not satisfied because sex offender therapy has no relationship to his conviction. He notes that he was convicted only of misdemeanor battery, the elements of which are actually and intentionally touching or striking another person against his or her will. § 784.03, Fla. Stat. (2011). He argues that his conviction for battery means only that he touched his daughter without her consent, not that he touched his daughter in a sexual manner. Turning to the facts in the record, however, we conclude the sex offender therapy at issue is rationally related to the crime for which Villanueva was convicted — the illegal and inappropriate touching of the child’s breasts and buttocks.

Here, the only inappropriate touching in the record — the only non-consensual physical contacts that could support the battery conviction — was sexual in nature. The special condition of probation that Villa-nueva undergo sex offender therapy, therefore, bears a rational relationship to his rehabilitation, when the facts in the record are considered. We distinguish G.F. v. State, 927 So.2d 62, 65 (Fla. 5th DCA 2006), in which the appellate court struck a special condition of sex offender therapy, even where a disposition report indicated the need for such therapy. The battery in G.F. consisted of a juvenile’s physical assault on three state employees. Unlike the instant case, the battery had no sexual component. Accordingly, we uphold the trial court’s decision to impose a special condition on Villanueva’s probation that he undergo sex offender therapy.

Scrivener’s Error in Probation Order

Villanueva also challenges the statement in the probation order that he entered a plea of guilty to the battery offense when, in fact, the record reveals that Villanueva was found guilty by a jury verdict. On remand, the trial court is directed to correct this scrivener’s error. See Tucker v. State, 15 So.3d 932, 932 (Fla. 4th DCA 2009) (“We remand ... to correct the scrivener’s error in the judgment of conviction, which indicates that appellant entered a plea of nolo contendere, rather than correctly showing that appellant was found guilty after a jury trial.”).

Written Order Does Not Conform to Oral Pronouncement

During sentencing, the trial court stated that it was imposing as a special condition of probation that Villanueva serve ninety days of his probation term in jail. The written probation order, however, reflects a one-year term of probation and a special condition of ninety days in jail. Here, the written order both fails to conform to the oral pronouncement and would constitute an illegal sentence, in excess of the statutory one-year maximum sentence for misdemeanor battery. See § 784.03, Fla. Stat. (2011) (“[A] person who commits battery commits a misdemeanor of the first degree.”); § 775.082(4)(a), Fla. Stat. (2011) (“A person who has been convicted of ... a misdemeanor of the first degree, [may be sentenced] by a definite term of imprisonment not exceeding 1 year.”). And the State concedes error on both points. On remand, the trial court is directed to enter a written order that correctly reflects its oral pronouncements. See Smith v. State, 100 So.3d 253, 254 (Fla. 3d DCA 2012); Stark v. State, 712 So.2d 454, 455 (Fla. 2d DCA 1998).

CONCLUSION

Because the condition was reasonably related to Villanueva’s rehabilitation for the crime for which he was convicted when the facts in the record are considered, we hold that the trial judge properly exercised its broad discretion when he imposed sex offender therapy as a special condition of probation here. We remand this matter, however, to permit the trial court to amend the written order of probation to accurately reflect that Villanueva was found guilty by a jury verdict, and to conform to the trial court’s oral pronouncement with regard to the ninety-day jail term. As these amendments are ministerial and do not involve an exercise of discretion, the defendant need not be present for correction of the written sentence.

Affirmed in part, reversed in part, and remanded.

      . The probation order imposes mentally disordered sex offender ("MDSO”) therapy. Although that term is not mentioned or defined in the statute, we assume that MDSO therapy refers to "a sex offender treatment program with qualified practitioners specifically trained to treat sex offenders,” similar to those that defendants who are placed on probation for certain enumerated sexual offenses are required to participate in as part of sexual offender probation. § 948.30(1), Fla. Stat. (2011). We will refer to this condition as "sex offender therapy.”

      . The statutory scheme specifies certain mandatory probation conditions for those "placed under supervision for violation of chapter 794, s. 800.04, s. 827.071, s. 847.0135(5), ors. 847.0145.” § 948.30(1), Fla. Stat. (2011).

      . See, e.g., Peeples v. State, 698 So.2d 910, 911 (Fla. 4th DCA 1997) (revoking probation of defendant convicted of stalking and firearm possession who violated condition that prohibited contacting victim); Jones v. State, 678 So.2d 890, 893 (Fla. 4th DCA 1996) (revoking probation of defendant convicted of aggravated battery who violated special condition imposing a curfew); T.S. v. State, 682 So.2d 1202, 1202-03 (Fla. 4th DCA 1996) (upholding special condition of electronic monitoring of juvenile convicted of burglary and grand theft).

      . See also Morris v. State, 26 So.3d 660, 662 (Fla. 4th DCA 2010) (holding that defendant convicted for grand theft and burglary could not be sentenced to drug offender probation, but substance abuse treatment could be imposed as a special condition where the record reflected a connection between substance abuse and the crimes); Beals v. State, 14 So.3d 286, 287 (Fla. 4th DCA 2009) (reversing an order that sentenced a defendant to drug offender probation for concealed weapon conviction, but permitting the trial court to impose special probation conditions related to substance abuse, provided Biller was satisfied); Estrada v. State, 619 So.2d 1057, 1058 (Fla. 2d DCA 1993) (holding that conditions concerning alcohol use and testing did not violate Biller because they were related to the offense, where the record revealed that "appellant told police that he committed the offense because he was intoxicated.”) (emphasis added).


text:
    Paula FONT, individually, and as personal representative of the Estate of Luis Torres, deceased, Appellant, v. UNION CARBIDE CORPORATION, Appellee.
    No. 3D11-3270.
    District Court of Appeal of Florida, Third District.
    Aug. 21, 2013.
    James Louis Ferraro, Melissa D. Vis-conti and Juan Bauta, Miami, for appellant.
    Carlton Fields and Matthew J. Coniglia-ro, Tampa, for appellee.
    Before WELLS, SUAREZ and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Union Carbide Corp. v. Aubin, 97 So.3d 886 (Fla. 3d DCA 2012), review granted, No. SC12-2075 (Fla. Apr. 18, 2013); Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., 48 So.3d 976 (Fla. 3d DCA 2010), review denied, 69 So.3d 277 (Fla.2011).


text:
    Wayne M. OWEN, Jr., Appellant, v. CITY OF KEY WEST and Employers Mutual, Inc., Appellees.
    No. 1D13-0187.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.
    Bill McCabe, Longwood, and Ricardo Morales, Doral, for Appellant.
    George A. Helm, III, of George A. Helm, III, P.A., Lake Mary, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant asserts the Judge of Compensation Claims (JCC) erred for six reasons. We find merit in only one-whether the JCC erred in concluding that section 440.34(1), Florida Statutes, prohibited her from approving a retainer agreement whereby Claimant would pay his attorney an hourly fee for defending him at a hearing on the Employer/Carrier’s motion to tax costs. See Jacobson v. Se. Pers. Leasing, Inc., 113 So.3d 1042, 1045 (Fla. 1st DCA 2013) (“We conclude to the extent that sections 440.34 and 440.105(3)(c), Florida Statutes, prohibit Claimant from retaining counsel to defend a motion to tax costs against him, those statutes infringe upon Claimant’s constitutional rights under the First Amendment of the Constitution.”). Accordingly, we reverse the order of the JCC denying the motion for approval of the retainer agreement, and remand for entry of an order approving the agreement. On remand, the JCC has the authority to determine whether the proposed fee is reasonable.

REVERSED and REMANDED for further proceedings consistent with this opinion.

THOMAS, ROWE, and SWANSON, JJ., concur.


text:
    Kurt C. GERHARDT (“Gerhardt”), Appellant, v. Thomas Y. CROWE, Individually, TYC Management, Inc., Penn Mutual Life Insurance Company, a corporation, Thomas Worthington, Individually, and as agent for Penn Mutual Life Insurance Company; James E. Morgan, Jr., Individually, and as agent for Penn Mutual Life Insurance Company; Larry Koresko, Individually, and as agent for Penn Mutual Life Insurance Company, Briar Patch of Glenwood, Inc., d/b/a The Business Tax Institute, Samuel B. Eckhardt, and Penn-Mont Benefit Services, Inc., Appellees.
    No. 1D12-5895.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.
    Niels P. Murphy and Matthew B. Bag-gett of Murphy & Anderson, P.A., Jacksonville, and Theodore C. Peters of Edger-ton & Weaver, LLP, Hermosa Beach, CA, for Appellant.
    Richard M. Stoudemire and Travase L. Erickson of Saalfíeld, Shad, Stokes, Inclan, Stoudemire & Stone, P.A., Jacksonville, for Appellee Briar Patch of Glenwood, Inc. and Samuel B. Eckhardt; Scott Alan Orth of the Law Offices of Scott Alan Orth, P.A., Hollywood, for Appellee Larry Ko-resko.
   PER CURIAM.

AFFIRMED. See T & S Enters. Handicap Accessibility, Inc. v. Wink Indus. Maint. & Repair, Inc., 11 So.3d 411, 413 (Fla. 2d DCA 2009) (“The jury would determine the same issues under section 768.81(3) as it would in a third-party action, and it is unlikely that [a defendant] will be required to pay more than its pro rata share of any common liability.”). See also Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So.2d 249, 256 (Fla.1995) (Anstead, J., specially concurring) (“Since this tortfeasor-defendant now faces a judgment based only on its ‘percentage of fault,’ it, unlike Disney in the [Walt Disney World Co. v. Wood, 515 So.2d 198 (Fla.1987) ] case, has no basis for seeking contribution from another tortfeasor who might also have contributed to the cause of the claimant’s injury.”).

LEWIS, C.J., BENTON, and MAKAR, JJ., concur.


text:
    Crystal BARKER, Appellant, v. SIERRA TITLE LLC, a Florida Limited Liability Company, Appellee.
    No. 1D12-5259.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.
    Joshua D. Crapps of Darby & Peele, Lake City, for Appellant.
    Scott A. Cole and Shelby Serig of Cole, Scott & Kissane, P.A., Miami, for Appellee.
   PER CURIAM.

Affirmed. See Graney v. Caduceus Prop., LLC, 91 So.3d 220 (Fla. 1st DCA 2012), review granted, 107 So.3d 403 (Fla.2012).

LEWIS, C.J., BENTON, and MAKAR, JJ., concur.


text:
    STATE of Florida, Appellant, v. Walter DOUGLAS, Appellee.
    No. 1D13-1364.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.
    Pamela Jo Bondi, Attorney General; Bryan Jordan and Michael McDermott, Assistant Attorneys General, Tallahassee, for Appellant.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The State appeals the trial court’s imposition of a downward departure sentence after Appellee entered an admission to violating his probation. While Appellee’s scoresheet resulted in a minimum recommended sentence of 48.45 months' imprisonment, the trial court sentenced Appellee to one year in county jail. The State argues, and we agree, that the trial court’s reason for departure was not supported by competent, substantial evidence.

When imposing a downward departure sentence, the trial court must determine whether there is a factually supported, legal ground for departure and whether departure is the best sentencing option for the defendant. State v. Adkison, 56 So.3d 880, 882 (Fla. 1st DCA 2011). This Court reviews departure sentences to determine whether the grounds for departure were supported by competent, substantial evidence. Id. Here, the trial court stated that it was imposing a downward departure sentence pursuant to section 921.0026(2)(j), Florida Statutes, because the crimes were committed in an unsophisticated manner and was an isolated incident for which Appellee had shown remorse. However, there was no competent, substantial evidence to support the trial court’s finding that Appellee’s charges were an isolated incident.

Appellee was on probation for possession of ammunition by a convicted felon, possession of burglary tools, two counts of grand theft, and criminal mischief. Appel-lee violated his probation by committing two new misdemeanor offenses. Moreover, Appellee’s prior record consisted of twenty-two felony convictions and over two dozen misdemeanor convictions. Due to Appellee’s extensive criminal history, the trial court was precluded from finding his violation of probation was an isolated incident. State v. Thompkins, 113 So.3d 95, 99 (Fla. 5th DCA 2013); State v. Leverett, 44 So.3d 634, 638 (Fla. 5th DCA 2010); State v. Gaines, 971 So.2d 219, 221 (Fla. 4th DCA 2008); State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005). We, therefore, REVERSE the sentence on appeal and REMAND for resentencing.

THOMAS, ROWE, and SWANSON, JJ., concur.


text:
    Orinthid Jabbar HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4901.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.

      Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The State charged Appellant, Orinthid Jabbar Hayes, with home invasion robbery with a deadly weapon. A jury found him guilty of home invasion robbery without a weapon, and the trial court sentenced him to thirty years’ incarceration. Appellant claims three errors require reversal of his conviction: (1) The trial court failed to modify the standard jury instruction on principals; (2) The trial court overruled an objection to a witness’ statement indicating Appellant previously had been in prison; and (3) Fundamental error resulted from statements made in closing argument effectively shifting the burden of proof to the defense. Finding no error occurred, we affirm the conviction and sentence, and write only to briefly address Appellant’s novel challenge to the jury instruction on principals.

The standard instruction reads:

If the defendant helped another person or persons [commit] [attempt to commit] a crime, the defendant is a principal and must be treated as if [he][she] had done all the things the other person or persons did if:
1. the defendant had a conscious intent that the criminal act be done and
2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually [commit] [attempt to commit] the crime.
To be a principal, the defendant does not have to be present when the crime is [committed] [or] [attempted]. See State v. Dene, 533 So.2d 265 (Fla.1988).

Fla. Std. Jury Instr. (Crim) 3.5(a) (emphasis added). The instruction implements section 777.011, Florida Statutes, which provides:

Principal in first degree. — Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.

§ 777.011, Fla. Stat. (2010) (emphasis added).

Appellant argues the instruction incorrectly states the law because it says a defendant “must” be treated as a principal if the evidence establishes the requisite criteria, while the statute uses the permissive “may.” On the contrary, under section 777.011, a person who “commits any criminal offense ... or aids, abets, counsels, hires, or otherwise procures such offense to be committed ... is a principal in the first degree” (emphasis added). The statute, thus, defines “principal.” The standard jury instruction, in setting forth the circumstances under which a defendant “must be treated” as a principal, comports with, and elaborates on, the statute’s definition of “principal.” The statutory-phrase “may be charged, convicted, and punished as such” does not create “a permissive [evidentiary] inference of principal,” as Appellant asserts. Rather, the phrase explains the criminal consequences a defendant faces if he or she is found to be a principal in the first degree, as fined in the statute.

AFFIRMED.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.