author: VILLANTI, Judge.

text:
    Brenda S. ROGERS n/k/a Brenda S. Stoner, Appellant, v. Thomas J. ROGERS, Appellee.
    No. 2D07-4524.
    District Court of Appeal of Florida, Second District.
    June 17, 2009.

      Victor R. Smith and Brian J. Knowles of Straughn Turner & Smith, Winter Haven (withdrew after briefing), for Appellant.
    Brenda S. Rogers, pro se.
    Thomas J. Rogers, pro se.
   VILLANTI, Judge.

Brenda Rogers (the Wife) appeals from the final judgment of dissolution of her marriage to Thomas Rogers (the Husband), contending that the trial court abused its discretion by making an unequal distribution of marital liabilities and by awarding her only a portion of her attorney’s fees and ordering them payable over time. Because the final judgment contains neither factual findings to support the unequal distribution of the marital debts nor factual findings to support the attorney’s fee award or its payment plan, we reverse and remand for further proceedings on these two issues. In all other respects, we affirm.

Facts

The parties were married for just over eight years. When the parties married, the Wife moved into the Husband’s residence, which was already furnished. During the marriage, the parties accumulated few assets. The primary ones were two vehicles — a 2002 Mercury Mountaineer and a 1991 Lincoln Town Car. At the time of the dissolution hearing, the Mountaineer was worth approximately $12,000, but it was also subject to a car loan of approximately $12,000. The Town Car, which was worth approximately $2200, was owned outright.

In addition to these few assets, the parties accumulated various debts during the marriage. Besides the loan on the Mountaineer, the parties had credit card debt totaling approximately $5000. The parties also owed $23,707.21 on the Wife’s student loan. The student loan debt was incurred during the marriage after the parties agreed that the Wife would quit her job and return to school to obtain her paralegal degree. At the time of the dissolution hearing, the Wife had recently completed her degree, although she was not yet working as a paralegal.

At the dissolution hearing, both parties argued for an equitable distribution of the marital assets and liabilities. The Wife argued that her student loans were a marital debt that should be equitably distributed. The Husband argued that it would not be equitable for him to pay any portion of the student loan debt because he would never benefit from the Wife’s degree. Without making any explicit factual findings, the trial court distributed the entire student loan debt to the Wife. In addition, the trial court awarded the Wife the Mountaineer and its accompanying debt. The trial court awarded the Husband his nonmarital residence and its furnishings as well as the Town Car, and it made the Husband solely responsible for the $5000 in credit card debt. Thus, the Wife left the marriage with approximately $45,000 in debts and the Husband left with approximately $5000.

At the dissolution hearing, the Wife also sought an award of her attorney’s fees from the Husband, arguing that she had a need for payment of those fees and that the Husband had the ability to pay. The trial court awarded the Wife $2000 of the attorney’s fees she sought; however, it made no factual findings to support an award of this sum. Moreover, the trial court permitted the Husband to pay the fee award in two installments over the course of a year, but it also made no findings to support this payment plan. The Wife now appeals the final judgment, challenging both the equitable distribution scheme and the attorney’s fee award.

Equitable Distribution

This court reviews the trial court’s distribution of marital assets and liabilities for abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980); Smith v. Smith, 934 So.2d 636, 638 (Fla. 2d DCA 2006). While the initial premise behind an equitable distribution of marital assets and liabilities is equal distribution, see § 61.075(1), Fla. Stat. (2007), when proper justification is shown, a trial court may make an unequal distribution, see Feger v. Feger, 850 So.2d 611, 615 (Fla. 2d DCA 2003). “The final distribution of marital assets, whether equal or unequal, must be supported by factual findings based on substantial competent evidence.” Guida v. Guida, 870 So.2d 222, 224 (Fla. 2d DCA 2004). Further, these findings must “advise the parties or the reviewing court of the trial court’s rationale for the distribution.” § 61.075(3)(d).

While the Wife’s initial brief frames her argument as a broad attack on the entire equitable distribution scheme, her only real contention is that the trial court abused its discretion by assigning to her the entire student loan debt. We agree.

As a general proposition, student loan debt incurred during the marriage is a marital liability. See, e.g., Smith, 934 So.2d at 641; Adams v. Cook, 969 So.2d 1185, 1187 (Fla. 5th DCA 2007); Banton v. Parker-Banton, 756 So.2d 155, 156 (Fla. 4th DCA 2000); see also § 61.075(5)(a)(l). Thus, in the absence of specific findings supporting the unequal distribution of a student loan debt, such debt must be equitably distributed between the parties. See Smith, 934 So.2d at 641; Adams, 969 So.2d at 1187. The fact that one party will not receive any benefit from the other party’s education because of the dissolution is not a factor to be considered when allocating a marital debt for student loans. See Smith, 934 So.2d at 641; Adams, 969 So.2d at 1187. Thus, absent some other justification for an unequal distribution, controlling case law forbids a trial court from awarding student loan debt incurred during the marriage solely to one party or the other.

Here, the final judgment distributes approximately $45,000 in marital debt to the Wife, including the entire student loan debt, and approximately $5000 in marital debt to the Husband. The trial court made no findings, either at the hearing or in the written final judgment, to support this unequal distribution of the marital debts. The only argument made at the dissolution hearing concerning the student loan debt was the Husband’s argument that it would be inequitable for him to be responsible for half of the student loan debt when the Wife would receive all of the benefit. However, even assuming that this is the trial court’s rationale for its distribution of the debts, as noted above this is not a valid justification for the unequal distribution. Accordingly, we reverse and remand for the trial court to reconsider the distribution of the marital debts. Because of the relatively limited marital assets, this may require the trial court to reconsider its entire equitable distribution scheme.

Attorney’s Fees

The Wife also contends that the trial court abused its discretion by awarding her only a portion of her attorney’s fees and by allowing those fees to be paid in two installments over a one-year period. While the trial court may have had sound reasons for awarding fees in this manner, it made neither oral findings at the hearing nor written findings in the final judgment to support the amount of the fee award or the imposition of a payment plan. Thus, we must reverse and remand for further proceedings on this issue as well.

“[A] trial court cannot decide the issue of attorney’s fees without findings as to one spouse’s ability to pay fees and the other spouse’s need to have fees paid.” Perrin v. Perrin, 795 So.2d 1023, 1024 (Fla. 2d DCA 2001) (citing Schlafke v. Schlafke, 755 So.2d 706, 707 (Fla. 4th DCA 1999)). In addition to need and ability to pay, a trial court’s decision regarding entitlement to fees under section 61.16(1) may be based on “catch-all” type findings concerning “any factor necessary to provide justice and ensure equity between the parties.” Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). If the trial court determines that there is an entitlement to attorney’s fees, it must also set forth findings regarding the factors that justify the specific amount awarded. See Barber v. Goodwin, 880 So.2d 712, 713 (Fla. 2d DCA 2004); Shields v. Shields, 502 So.2d 1349, 1350 (Fla. 2d DCA 1987). Moreover, while the trial court has discretion to allow payment of an award of attorney’s fees over time, it must set forth some factual basis for imposing the specific payment plan selected. See Lowman v. Lowman, 724 So.2d 648, 649-50 (Fla. 2d DCA 1999).

Here, the final judgment contains no findings establishing the basis for the entitlement to fees or supporting the limited amount of fees awarded. The final judgment also contains no findings that would support allowing the Husband to pay the attorney’s fee award in two installments over a one-year period. Accordingly, we reverse the attorney’s fee award. On remand, if the trial court again awards the Wife attorney’s fees, it must make the findings necessary to support the entitlement to fees, the amount of fees awarded, and any payment plan it chooses to impose.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

SILBERMAN and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: GROSS, C.J.

license: Public Domain

text:
    Willie WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-409.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GROSS, C.J.

This ease concerns a defendant’s desire to testify in greater detail about the incidents giving rise to the criminal charges, confronted by his attorney’s belief that more testimony was not a good idea. The judge offered the defendant the choice of testifying further by giving up his attorney, and representing himself. The defendant chose not to testify. We hold that the trial court improperly forced a choice between two constitutional rights, and reverse.

Appellant Willie Wilson was charged with two counts of lewd or lascivious exhibition in violation of section 800.04, Florida Statutes (2006). Count I alleged that Wilson exposed his genitals on July 18, 2006; count II alleged that he masturbated in the presence of a victim under 16 at some time between June 30, 2006 and July 25, 2006.

Prior to trial, Wilson did not have a smooth relationship with his lawyer, an assistant public defender. Three times, he moved to discharge her and have new counsel appointed, complaining of her preparation of the case, but the trial judge denied all motions and Wilson chose to keep the lawyer as his trial counsel. Throughout the trial, the circuit judge demonstrated great patience in handling Wilson’s ambivalence about the representation of his lawyer.

The state’s case at trial was based primarily on the eyewitness testimony of two witnesses — fifteen year old S.M. and Camille Hall.

S.M. worked 30 hours a week in the Lauderhill library as part of a summer youth program. She frequently saw Wilson in the library. On July 25, 2006, she observed Wilson in the non-fiction section, sitting against a wall reading a book. Wilson was wearing loose fitting gym shorts. As S.M. went from aisle to aisle reshelving books, Wilson moved his seat so he could continue to watch her. S.M. saw Wilson at the end of an aisle playing with himself; she described Wilson’s actions as “jacking,” or moving his hand on his fully clothed penis. S.M. made eye contact with Wilson, but he said nothing to her. S.M. had seen Wilson behave in a similar fashion on other days that she worked in the library.

About a week before the July 25 incident, S.M. and Hall were working together in the library stacking tapes and reshelv-ing books. They saw Wilson seated on the floor in the next aisle. Both girls were within his range of vision. Wilson was wearing loose fitting basketball shorts, reading a book. Both girls noticed Wilson’s bare, flaccid penis poking out of the leg opening of his shorts, which appeared to be “scrunched up,” in a way that maximized the exposure. Wilson did not look at or speak to either of the girls during this encounter.

After his arrest at the library on July 25, Wilson told a detective that he had often chatted with a short, skinny teenage girl who worked in the library and had once purchased her Chinese food. He explained that he had just gotten over a case of the crabs, which might explain why he had been compulsively scratching himself earlier. Wilson also denied exposing himself in the library the week before.

During the state’s case, Wilson moved the trial court for permission to represent himself. The trial judge conducted a hearing consistent with Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which concluded with Wilson’s withdrawal of his motion.

After the state rested its case, the trial judge asked if Wilson was going to testify. Defense counsel told the court that she had discouraged Wilson from testifying, having specified her concerns in a letter to the client. Wilson consulted with his attorney in the courtroom and informed the judge that he had decided not to testify. The court then conducted a detailed colloquy on whether Wilson’s decision not to testify was knowing and voluntary. As part of the colloquy, the court told Wilson that the decision to testify was his alone, not trial counsel’s, that counsel’s advice was based on her professional judgment, but Wilson was free to disregard the advice, and that Wilson’s decision to testify took precedence over his lawyer’s advice.

Once the court found that Wilson had freely and voluntarily decided not to be a witness, Wilson asked for more time to consult with his lawyer about his decision on testifying. After he had spoken with his attorney, Wilson told the court that he wanted to take the witness stand and have her ask him certain questions. First, Wilson focused on the date July 18, 2006, and said he would like to introduce records that showed he was at a chiropractic appointment on that date. Defense counsel thought the records were inadmissible as hearsay and not helpful to the defense, since Wilson was not at the chiropractor’s the entire day and the information did not pinpoint the day of the offense as July 18. Wilson’s attorney refused to offer this evidence and suggested that Wilson could “represent himself on this, or whatever he needs to do.”

The judge then asked Wilson if he wanted to represent himself. Wilson responded that the assistant public defender was his lawyer and that he “never fired her,” but merely “asked her the situation.” The court explained that trial counsel had made a tactical decision not to ask about the chiropractor. The judge indicated that Wilson could testify as to his whereabouts without admission of the documents into evidence; the court gave a preliminary ruling that the records Wilson sought to introduce would be inadmissible as hearsay.

The judge asked Wilson if he wanted to represent himself. Wilson replied, “No, sir.” He stated that he had changed his mind, and now wanted to testify. Wilson took the witness stand, and defense counsel questioned him as follows:

Q. Sir, have you ever had a felony conviction?
A. Yes.
Q. How many?
A. Two.
Q. You know we are talking about an alleged incident in the Lauderhill library, correct?
A. Yes.
Q. Back in 2006, do you know how often you visited the library?
A. I went there two or three times a week.
Q. Why did you go there?
A. My friend taught me how to use the computer. I make gospel CDs and other CDs to sell them.
Q. Have you ever masturbated in the library?
A. No.
Q. Did you ever scratch yourself in the library?
A. Yes.
Q. Why were you doing that?
A. At that time, about two or three weeks ago, I got over crabs. I used stuff to put on it.
Q. You were scratching because you were itching?
A. Yes.
Q. Did you go to the library on July 16th?
A. Yes.
THE COURT: [Defense counsel], anything else?
DEFENSE COUNSEL: The defense rests.

The jury was excused. The judge asked Wilson if there was anything not asked by trial counsel about which he wanted to testify. Wilson replied, “Yes,” and complained that his lawyer had cut him off. He specified that he wanted to testify about:

1. The physical layout of the library illustrated by photographs;
2. Whether his two accusers were in a position to see him and whether he was able to see them from where he was sitting;
3. How long he was in the library on July 25; whether he used the library computer; when he got off the computer; whether he saw either girl when he got a newspaper; whether he spoke to the girls; whether either girl had ever asked him to get them food or asked him for money; whether he had ever seen Hall outside of the library; if the girls knew that he worked at Publix.
4. Whether he saw a police officer walking past him when he exited the library; whether he looked to see if his fiancé was waiting outside; whether he went back inside the library; that he did not run away when he first saw the police officer.
5. What he did on July 18 and whether he had gone to the chiropractor that day.

Defense counsel told the court that she did not want to ask Wilson any of these questions. She thought the questions were contrary to the defense that the accusers were mistaken. She was concerned that there would be a “real danger” in having Wilson testify further, due to his difficulty with staying on topic. She explained to the judge:

I’m trying to be as careful as I can be. I don’t want to get to the point ... that I have to let him testify in the narrative because I have no other ethical choice. We got him what he wanted. Now, he brought up these other things. I don’t know what the Court wants to do. We rest our case.

The judge then addressed Wilson, telling him that his lawyer believed it was not in his best interest to ask him any more questions. The court asked:

Do you wish to represent yourself? If you represent yourself you can tell the jury all that you want. You would be subjecting yourself to cross examination by [the assistant state attorney] ... If you want to represent yourself, after a Faretta hearing, I would allow you to reopen your case and testify, if you wish ... Do you wish to do that?
WILSON: I will keep my counsel.

Defense counsel told the judge that there were no further matters to be addressed and the court ruled that the evidence was closed, without the jury hearing additional testimony from Wilson.

In making Wilson choose between testifying further and giving up his attorney, the trial court erred by forcing him to choose between two constitutionally protected rights, the right to testify and the right to counsel.

A defendant’s right to testify on his own behalf “is now a recognized fundamental right.” United States v. Scott, 909 F.2d 488, 490 (11th Cir.1990) (quoting Ortega v. O’Leary, 843 F.2d 258, 261 (7th Cir.1988)); see United States v. Bifield, 702 F.2d 342, 347 (2d Cir.1982); United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987); State v. Staley, 91 Hawai’i 275, 982 P.2d 904, 916 (1999). In Taylor v. Illinois, 484 U.S. 400, 408-09, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), the Supreme Court held that an accused’s “right to offer testimony is ... grounded in the Sixth Amendment even though it is not expressly described in so many words.” In so holding, the Court relied on Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), for the proposition that the right of a criminal defendant “to present his own witnesses to establish a defense ... is a fundamental element of due process of law.” Taylor is consistent with Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), where the Court wrote:

Even more fundamental to a personal defense than the right of self-representation ... is an accused’s right to present his own version of events in his own words.

See also Nix v. Whiteside, 475 U.S. 157, 164, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) (where Court wrote that the due process right of a criminal defendant to testify in his own behalf “has long been assumed”).

A defendant’s choice to testify can be the most crucial decision in a criminal case. The Supreme Court recognized in Rock that “the most important witness for the defense in many criminal cases is the defendant himself.” 483 U.S. at 52, 107 S.Ct. 2704. The defendant’s presence on the stand gives him the “opportunity to have the jury observe his demeanor and judge his veracity firsthand.” United States v. Walker, 772 F.2d 1172, 1179 (5th Cir.1985). As the Supreme Court wrote in another context, “[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). While a defendant who decides to testify may actually decrease his chance of acquittal, nevertheless, “[t]he wisdom or unwisdom of the defendant’s choice does not diminish his right to make it.” Wright v. Estelle, 572 F.2d 1071, 1079 (5th Cir.1978) (Godbold, J., dissenting). As with a defendant’s decision to represent himself under Faretta, there may be no good or rational reason informing a defendant’s decision to testify, but a defendant’s

desire to tell “his side” in a public forum may be of overriding importance to him. Indeed, in some circumstances the defendant, without regard to the risks, may wish to speak from the stand, over the head of judge and jury, to a larger audience. It is not for his attorney to muzzle him.

Wright v. Estelle, 572 F.2d at 1078 (Godbold, J., dissenting).

The right to testify includes the right to testify fully, without perjury, to matters not precluded by a rule of evidence. See Scott, 909 F.2d at 491 (observing that the right to testify “does not extend to testifying falsely ”) (quoting Nix v. Whiteside, 475 U.S. at 173, 106 S.Ct. 988). Counsel may not cut off a defendant’s testimony for tactical reasons without the defendant’s consent. The Seventh Circuit has described the function of a lawyer confronted with a client who wishes to testify against the lawyer’s advice:

When a defendant asserts that he desires to exercise his constitutional right to testify truthfully, counsel’s duty is to inform the defendant why he believes this course will be unwise or dangerous. If a defendant insists on testifying, however irrational that insistence might be from a tactical viewpoint, counsel must accede ... [A] defendant’s personal constitutional right to testify truthfully in his own behalf may not be waived by counsel as a matter of trial strategy

United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.1984).

Most of the matters about which Wilson wished to testify were relevant to the charges. There is no suggestion that he intended to testify falsely. No rule of evidence precluded the proposed testimony. Defense counsel should have acceded to her client’s wishes. Instead of forcing Wilson to choose between testifying further and keeping his attorney, the trial court should have ordered Wilson’s attorney to continue with the direct examination. As one court has observed,

[rjequiring an attorney against his better judgment to examine his client places no unfair burden on the attorney: an attorney is always faced with the burden of developing his trial strategy in light of what evidence is available and presented in court. Nor is a defendant ordinarily prejudiced when he is represented by an attorney who believes, contrary to the defendant, that the latter should not testify.

People v. Robles, 2 Cal.3d 205, 85 Cal.Rptr. 166, 466 P.2d 710, 716-17 (1970). Having an attorney conduct the examination was preferable to allowing Wilson testify in narrative form, a procedure condoned when a client intends to give perjurious testimony. See Florida Bar v. Rubin, 549 So.2d 1000 (Fla.1989); Sanborn v. State, 474 So.2d 309, 312-13 (Fla. 3d DCA 1985). With an attorney directing the examination, there is less of a risk of a defendant meandering into areas that might devastate the defense.

On this record, we cannot say that the loss of Wilson’s testimony was harmless error.

We therefore reverse and remand for a new trial.

WARNER and CIKLIN, JJ., concur.

      . The state also offered similar fact evidence about a 2000 incident at the library. See § 90.404(2), Fla. Stat. (2006). The introduction of this evidence is not raised as a point on appeal.

      . Judge Godbold's dissent in Wright, 572 F.2d at 1079, contains this quote which well describes the function of defense counsel in advising a client whether or not to testify:
      Counsel should weigh these considerations and decide in the first instance whether or not he thinks the defendant ought to testify. That decision should be told to the defendant, with the reasons for it. Counsel may properly urge the defendant that it is unwise or dangerous for him to take the stand. However, if a defendant wishes to testify despite advice to the contrary, it is necessary to yield to his stubbornness.... Counsel should always clearly outline to the defendant the hazards of his testifying (whether or not counsel wants to put him on). But if this fails to daunt the client, and if counsel's advice against testifying fails to persuade him, the client should be allowed to testify.
      (quoting A. Amsterdam, Trial Manual for the Defense of Criminal Cases § 390, at 1-390 (2d ed. 1971)).


author: ROTHENBERG, J.

text:
    The STATE of Florida, Appellant, v. John Stephen WALTERS, Appellee.
    No. 3D07-2825.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.

      Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellant.
    Rothman & Associates and Jeanne T. Melendez and David Rothman, Miami, for appellee.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

The State appeals from a downward departure sentence imposed by the trial court after John Stephen Walters (“the defendant”) entered a guilty plea to one count of organized fraud in the first degree, one count of grand theft in the first degree, and fifty-two counts of money laundering in various degrees. We reverse.

The defendant, through one of his companies, A Auto Insurance Corp., was the seller involved in a December 2002 real estate closing. The defendant’s property, which was in foreclosure, was sold for $2 million, $1,059 million of which was due to Bank One, the holder of an outstanding mortgage. However, as a result of a falsified letter in the closing file, neither Bank One nor its law firm, Butler & Hosch, P.A., was aware of the closing.

Paul Menzel, who knew the defendant, was selected by the defendant as the closing agent. The title insurance company entrusted Menzel with delivering a $997,654.28 check made out to the trust account of the Butler & Hosch law firm, but instead of delivering the check to Butler & Hosch, Menzel delivered the check to the defendant. The defendant is not, and never was, associated with the Butler & Hosch law firm.

On February 3, 2003, the defendant created a Florida corporation named “Butler & Hosch Real Estate Corp.” The defendant then incorporated Butler & Hosch Corp. in Mississippi. The next day, February 7, the defendant opened four new bank accounts at Ocean Bank, one of which was named the “Butler & Hosch Corp. Operating Account.” There, he deposited the stolen $997,654.28. For the next six months, the defendant conducted more than fifty transactions, spending the money for his personal benefit. On August 7, 2003, the defendant transferred the remaining funds, $242,864.34, to one of his other companies’ accounts. The defendant was arrested in December 2005, and taken into custody.

The current victim in this case is Fidelity National Title Insurance Company, Title One (“Fidelity”), which informed the trial court through counsel that obtaining restitution was very important to Fidelity. From 2006 through October 2007, Fidelity, the State, and the defendant engaged in plea discussions. The record before this Court reflects that, for the most part, the negotiations were between the defendant and Fidelity, and focused on the payment of restitution and the defendant’s cooperation in providing information to Fidelity regarding other sums of money Fidelity was attempting to recover.

Despite these discussions, on September 12, 2007, the prosecutor assigned to the case informed the parties and the trial court that the State’s offer was six years in prison. Although defense counsel’s comments were not directed towards the Assistant State Attorney handling the case, he accused the State of negotiating in bad faith, stating that he and his client were led to believe that further incarceration could be avoided and therefore, he had not prepared the case for trial. The Assistant State Attorney advised the trial court that notations in his file made by a previous prosecutor indicated that a six-year sentence was contemplated to close out the case. The trial court reset the case for a status report in thirty days.

On October 12, 2007, the State informed the trial court that negotiations between the State and the defendant had been unsuccessful, it was withdrawing from all negotiations with the defendant, and all previous plea offers had been withdrawn.

At the subsequent hearing conducted on October 16, 2007, over the State’s objection, the defense introduced a series of emails generated by the State, Fidelity, and counsel for the defendant during previous plea discussions. The defendant argued that the facts of the case compelled a downward departure where the scoresheet minimum sentence was 108 years. The State objected to any below guidelines offer. The defendant entered a guilty plea to all counts charged — organized fraud, grand theft, and money laundering. The trial court imposed a downward departure sentence of six months in the county jail (time already served), a $200,000 down payment (made on October 15, 2007), fifteen years’ reporting probation during which the defendant must make quarterly restitution payments of $10,000, and a number of other special conditions. The trial court entered written reasons in support of the departure sentence, and this appeal followed.

A trial court’s determination of whether it could legally depart from the sentencing guidelines will be upheld on appeal if the trial court applied the correct rule of law and competent substantial evidence supports that determination. State v. Salgado, 948 So.2d 12, 15 (Fla. 3d DCA 2006). Here, the trial court provided the following statutory reasons in support of the downward departure sentence: (1) the offense was unsophisticated, isolated, and the defendant showed remorse; and (2) Fidelity’s need for restitution outweighs the need for incarceration. The trial court also based its decision upon its finding that:

It is apparent to the Court that [the defendant], like this Court, reasonably and justifiably relied upon the clear intent of the parties, as well as of the victim, that if a substantial portion of the restitution were raised and paid by the accused, he would not go back to jail.

Because the record does not support the two statutory reasons offered, and the justifiable reliance ground is based on inadmissible evidence, and is factually unsupported, we reverse.

THE FIRST STATUTORY GROUND FOR DEPARTURE

Section 921.0026(2)(j), Florida Statutes (2007), provides that where an offense was committed “in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse,” a downward departure from the sentencing guidelines is justified. This ground for departure is valid only where substantial competent evidence supports all three elements. Salgado, 948 So.2d at 16. In this case, however, the record is devoid of any evidence in support of a finding that the defendant’s offenses were unsophisticated or isolated.

“[Á] crime is committed in an unsophisticated manner when the acts constituting the crime are ‘artless, simple and not refined.’ ” Id. at 17 (quoting Staffney v. State, 826 So.2d 509, 512-13 (Fla. 4th DCA 2002)). Here, the defendant pled guilty to organized fraud, grand theft, and money laundering — hardly the types of crimes characterized by artless, simple, or unrefined acts. At a minimum, the defendant’s offenses involved: (1) a complicated real estate transaction; (2) the recruitment and complicity of Menzel; (3) a falsified letter that kept Bank One and its representatives unaware of the closing; (4) the formation of a Florida corporation deliberately named to mislead the bank officers/employees called upon to clear the payment; (5) the filing for corporate status of the “Butler & Hosch Corp.” in Mississippi; (6) the opening of four bank accounts named to conceal the defendant’s crimes; (7) the illegal deposit of nearly $1 million into one of the accounts; and (8) the systematic drawing upon the stolen funds from the account while posing as a legitimate account holder. The record reflects that the defendant employed his business knowledge in a series of sophisticated and calculated steps to achieve his criminal ends. Thus, the trial court’s finding that “[t]here was nothing sophisticated about this case” has no support in the record, and borders on the preposterous.

Nor were these acts isolated. The defendant pled guilty to over fifty separate money laundering transactions over the course of more than six months. During that time, the defendant managed to spend over $700,000 of stolen funds for his personal benefit, drawing upon the account of his sham corporation. As a result, the trial court’s characterization of these facts as “essentially ... spending the money [the defendant] and others stole” cannot stand.

Accordingly, due to the utter lack of evidentiary support for the trial court’s finding that the defendant’s crimes were unsophisticated and isolated, the trial court’s first reason does not justify the downward departure sentence imposed.

THE SECOND STATUTORY GROUND FOR DEPARTURE

A downward departure sentence is also justified where “[t]he need for payment of restitution to the victim outweighs the need for a prison sentence.” § 921.0026(2)(e), Fla. Stat. (2007). A downward departure based upon this ground requires evidence of the victim’s need, as opposed to a mere preference, State v. Quintanal, 791 So.2d 23, 24 (Fla. 3d DCA 2001), and the trial court must consider the defendant’s ability to pay, as well as the impact of the plan on the victim. Demoss v. State, 843 So.2d 309, 312 (Fla. 1st DCA 2003). Because no competent substantial evidence supports the trial court’s finding that Fidelity had a pressing need for restitution, no evidence indicates whether the defendant has the ability to make continued payments pursuant to the schedule, and no evidence reveals whether completion of the restitution payments would significantly affect Fidelity’s interests, under these circumstances, the downward departure ground provided in section 921.0026(2)(e) was improper.

$997,654.28 is an attention-grabbing amount of money. However, where the record does not reflect a pressing need for restitution, a downward departure sentence is not justified, and this Court is compelled to reverse. State v. Prasad, 889 So.2d 204, 205 (Fla. 4th DCA 2004). Beyond the assertions of Fidelity’s counsel to the effect that restitution was very important, and the defendant’s incarceration was not desired, Fidelity did not show that the extent of the harm suffered as a result of the defendant’s crimes was greater than normally expected, or how restitution would operate to mitigate that harm. See id. (noting that a downward departure under section 921.0026(2)(e) requires a greater than normal harm and a showing that restitution could mitigate that harm). The record reflects that Fidelity has fully compensated the original victims in this case, making them whole, and Fidelity’s loss was not proven to be outside the realm of normal expectations. Therefore, Fidelity, a corporation in the business of planning for and managing economic losses, has, at best, expressed its preference for restitution, and a downward departure is not justified.

In addition, because the record does not contain any evidence of the defendant’s ability to make continuing restitution payments, this downward departure sentence pursuant to section 921.0026(2)(e) must be reversed. In fact, the record evidence requires a finding to the contrary. When the defendant planned and carried out these crimes, his property was in foreclosure, he was in arrears in his child support obligations, he owed money to two different attorneys, and he was otherwise in debt.

The defendant and the trial court make much of the fact that the defendant was able to “raise” $200,000 in a little over a year to pay towards restitution. However, the record does not reveal whether this amount was “raised” out of previously stolen funds, a job, by selling some of the property obtained by use of the stolen proceeds, or through some other income source. Because the record is devoid of any evidence regarding the defendant’s ability to pay the restitution ordered, the trial court’s downward departure sentence pursuant to the second offered ground is not factually justified. See Demoss, 843 So.2d 309 at 312 (holding that when considering the efficacy of restitution, the trial court must evaluate the defendant’s ability to pay). We also note that the defendant did not testify and that the unsworn statements of counsel do not constitute evidence. See State v. Champion, 898 So.2d 1111, 1112 (Fla. 2d DCA 2005) (holding that counsel’s unsworn statements cannot support a downward departure).

THE JUSTIFIABLE RELIANCE ISSUE

At the October 16 hearing in this case, the defendant sought to introduce into evidence a series of e-mails exchanged between the State, counsel for the defendant, and Fidelity’s counsel to support his argument that throughout plea discussions, the State led the defendant to believe that no further incarceration was contemplated, and that restitution was the predominant goal of the State at sentencing. The State immediately objected to the introduction of these e-mails, arguing that they were irrelevant, and the State should not be penalized for pursuing plea negotiations prior to sentencing. Over the State’s objection, the trial court allowed the e-mails into evidence. The State argues in this appeal that the introduction of the e-mails was error. We agree.

First, and contrary to the defendant’s argument, even a cursory review of the hearing transcript reflects that the State preserved this issue for appellate review. Second, there is no question as to the inadmissibility of the e-mails, which contained statements from each of the parties regarding proposed sentencing frameworks, counter-proposals, and other concerns. Section 90.410, Florida Statutes (2007), provides that “[ejvidence of statements made in connection with any of the pleas or offers is inadmissible” outside of perjury/false statement prosecutions. While statements of offers made during plea negotiations may be admitted to reveal the bias of a non-party witness, Cruz v. State, 437 So.2d 692, 695 (Fla. 1st DCA 1983), disapproved on other grounds by Edwards v. State, 548 So.2d 656 (Fla.1989), the law forbids the introduction of statements made by a party (here, the State) in order to bind that party to a statement or offer made prior to reaching an agreement. Thus, the trial court erred in admitting evidence of plea negotiations in the form of e-mails exchanged between the parties.

Nevertheless, even when read in the light most favorable to the defendant, the e-mails in the record merely show that negotiations were primarily between defense counsel and Fidelity and that the terms agreed to by Fidelity and the defendant were not ultimately accepted by the State. The record, including the erroneously admitted e-mails, do not reflect, as the trial court found, that the State was in “complete accord” with the concept that Fidelity’s need for restitution greatly outweighed the need for imprisonment, nor the argument that the defendant and his counsel justifiably relied upon the State’s representations that the case would resolve without additional jail time being imposed.

The record contains the transcript of a status hearing conducted on August 7, 2007, which clearly reflects that almost two years after the defendant’s arrest, no agreement had been reached on the case and that the State was seeking prison time. In response to the trial court’s inquiry on the status of the case and whether the parties could resolve the case, defense counsel responded as follows:

Well, typically the alleged victim would like to have their money. We think we can apiece [sic] that aspect. The State on the other hand would like to have blood. We don’t know if we can apiece [sic] the State on that. They want prison time. If we can resolve this case, we will know pretty soon. I would suspect we will know in two weeks.

(Emphasis added). Based upon this representation, the trial court left the case on its September 12, 2007 “sounding” calendar and September 24, 2007 trial calendar.

The August 8, 2007 e-mail generated the following day was sent by defense counsel to counsel for Fidelity and states that the prosecutor assigned to the case agreed to allow defense counsel and counsel for Fidelity to work towards a possible resolution of the criminal and civil cases, and if they were able to agree on a possible resolution, they would schedule a meeting with the prosecutor to see if the criminal case could be worked out. In the e-mail, defense counsel outlined his proposed resolution of the two cases.

The subsequent e-mails between counsel for the defendant and Fidelity reflect their ongoing discussions. Interestingly, counsel for Fidelity cautions counsel for the defendant that their plea discussions are “privileged and can not be used in any state, federal, civil or criminal, discovery, pre-trial, trial, or appellate proceeding for any purpose.”

At the September 12, 2007 “sounding,” when asked about the status of the case, defense counsel informed the trial court that while he and Fidelity’s counsel appeared to be in agreement, the State’s plea offer was six years incarceration and he was not ready for trial. As detailed earlier, the prosecutor stated that their prior negotiations did not result in a plea offer by the State. The trial court set the case for another status report in thirty days.

On October 12, 2007, the prosecutor reminded the trial court that the State had previously extended a six-year plea offer to the defendant, which did not result in an agreement. The State then informed the trial court that all plea offers were being withdrawn, and the State was withdrawing from further plea negotiations with the defendant. Both counsel for the defendant and Fidelity addressed the trial court, outlined how, by agreement, they proposed to resolve the case, and urged the trial court to accept their negotiated plea. The State objected, told the trial court that the defendant scored 108 years, reminded the trial court that it had withdrawn from plea negotiations, and argued that if the trial court imposed a sentence below the guidelines, it would be an illegal sentence. The matter was set for the following week for “report re: plea.”

Thus, the record in this case, including the inadmissible e-mails, reflects that even as late as August 7, 2007, it was clear that the State was seeking prison time to resolve the case. Although discussions continued after the August 7, 2007 hearing, the State made it clear on October 12, 2007, that no agreement had been reached and it was withdrawing from further negotiations with the defendant. The defendant’s claim, and the trial court’s finding of justifiable reliance is, therefore, unsupported by the record.

Moreover, the attorneys involved in this case were well-aware that suggestions, proposals, and other statements exchanged during plea negotiations are not binding until the parties finalize their bargain, which without question, did not occur in this case. Accordingly, the trial court’s finding that the defendant justifiably relied upon certain representations made by the State during the negotiation process is devoid of support of any kind.

CONCLUSION

The two statutory grounds for a downward departure provided by the trial court are simply not supported by the record. The crimes involved in this case were highly sophisticated, not isolated, and the corporate victim in this case showed a mere business preference, not a need, for restitution. The record basis for the trial court’s finding that the defendant justifiably relied upon the State’s position during plea negotiations consisted of a series of wholly inadmissible e-mail messages exchanged between the parties, and the content of those messages, even if properly considered, does not evidence justifiable reliance.

Therefore, we hold that the downward departure sentence imposed in this case is not factually justified. We remand for the entry of a guidelines sentence, or in the alternative, the withdrawal of the defendant’s plea.

Reversed.

      . We need not reach, the second prong of the analysis — whether the trial court should have departed from the sentencing guidelines. See Banks v. State, 732 So.2d 1065, 1068 (Fla. 1999).

      . We also note that Fidelity was apparently willing to "excuse” roughly $200,000 of the $997,654.28 stolen by the defendant (the defendant allegedly took $997,654.28, he returned $200,000, and under the terms of the plea, he is only required to pay an additional $550,000 in restitution). Thus, it appears that Fidelity was willing to absorb a loss of $200,000, and this willingness to excuse repayment militates against a finding of Fidelity’s pressing need for recovery of its losses.

      . We pause here to emphasize this Court’s concern with what appears to be the thrust of the defendant’s argument, as accepted by the trial court — that where a thief has the ability to make his victim monetarily whole, the thief’s punishment ought to be primarily limited to repaying the victim. While this record certainly does not establish that the defendant has such an ability, the law does not excuse the consequences of a theft based solely upon the strength of the thief’s financial portfolio.


author: WARNER, J.

text:
    Laurent AJUSTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3236.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.

      Laurent Ajuste, Doral, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges the trial court’s summary denial of his motion for postcon-viction relief. Because the allegations that his attorney lied to the court are not conclusively refuted in the record, we reverse.

In ground 2(b) of appellant’s motion he stated, under penalty of perjury, that his attorney “committed fraud on the court when ... he told the court that he had just phoned and spoken with [appellant’s alibi witness] but her recollection was [that] she had no idea what time [she dropped appellant off on the night of the crime.]” Based upon his counsel’s representations that he had spoken to the witness, and the witness essentially could not confirm the alibi, appellant elected not to call her as a witness. Appellant states in his motion that his counsel never contacted the witness and lied to the court about contacting her during the trial. Nothing in the record conclusively refutes this sworn allegation. Together with the allegations of the substance of her testimony, we conclude that it is legally sufficient to state a claim of ineffective assistance. See Nelson v. State, 875 So.2d 579 (Fla.2004).

When reviewing the trial court’s summary denial of a postconviction motion filed under rule 3.850, this court “must accept the defendant’s factual allegations as true to the extent they are not refuted by the record.” Occhicone v. State, 768 So.2d 1037, 1041 (Fla.2000). If the allegations are facially sufficient, the trial court “must either conduct an evidentiary hearing or attach to its order excerpts from the record that conclusively disprove the appellant’s claim.” Palmer v. State, 683 So.2d 678, 679 (Fla. 4th DCA 1996).

Because appellant’s claim is not , conclusively refuted by the attachments in the record, we reverse and remand for an evidentiary hearing. As to all other grounds raised in appellant’s motion, we affirm.

STEVENSON, J., concurs.

POLEN, J., dissents without opinion.


author: PER CURIAM.

text:
    ZURICH AMERICAN INSURANCE COMPANY, Petitioner, v. TRAFALGAR AT GREENACRES, LTD., Respondent.
    Nos. 4D08-4794, 4D08-5053.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.
    Rehearing Denied July 30, 2009.

      Akerman Senterfitt and Gary J. Guzzi, Miami, for petitioner.
    Lipeon, Margulies & Alsina, P.A., and Michael A. Winkleman, Miami, for respondent.
   PER CURIAM.

Zurich American Insurance Company (Zurich) petitions for a writ of certiorari seeking to quash trial court orders which permitted respondent, Trafalgar at Green-acres, Ltd., to proceed with discovery in an insurance bad faith action. Because Zurich fails to establish that it suffers irreparable harm which is necessary to invoke this court’s certiorari jurisdiction, we dismiss. Bared & Co. v. McGuire, 670 So.2d 158 (Fla. 4th DCA 1996).

Petitions dismissed.

POLEN, TAYLOR and GERBER, JJ., concur.


text:
    John A. FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-419.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.
    Rehearing Denied July 29, 2009.
    John A. Fleming, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See § 775.082(9)(a)l.p., Fla. Stat. (1999); see also Eubanks v. State, 917 So.2d 898 (Fla. 5th DCA 2005).

GROSS, C.J., DAMOORGIAN and LEVINE, JJ., concur.


author: DAVIS, Judge.

text:
    In re Involuntary Placement of Michael LEHRKE: Michael Lehrke, Appellant, v. State of Florida, Appellee.
    No. 2D07-5498.
    District Court of Appeal of Florida, Second District.
    June 19, 2009.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana R. Esposito, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Michael Lehrke challenges the trial court’s order involuntarily placing him in a public facility for a period not to exceed two months. We reverse.

Initially we note that although Lehrke’s commitment ended in November 2007, this issue is not moot as his rights may still be affected by the trial court’s order pursuant to section 402.33(8)(a), Florida Statutes (2007), which allows the State to seek a lien against an involuntarily committed person’s property for the costs associated with the commitment long after completion of the commitment. See Godwin v. State, 593 So.2d 211, 213 (Fla. 1992) (concluding that “[t]he imposition of a lien under section 402.33(8) on the property of an involuntarily committed person is a collateral legal consequence” rendering the issue not moot).

Turning to the merits of Lehrke’s argument, in order to involuntarily commit an individual, the State must prove by clear and convincing evidence the criteria spelled out in section 394.467, Florida Statutes (2007). Pursuant to that section, the State must show that the individual has a mental illness and has either refused voluntary placement or is unable to determine whether placement is necessary. § 394.467(l)(a)(l). Here, it is undisputed that Lehrke was diagnosed with atypical psychosis and that he refused voluntary placement. However, pursuant to subsection 394.467(l)(a)(2), the State must also show that Lehrke either is likely to suffer neglect without treatment or that “[tjhere is a substantial likelihood that in the near future he ... will inflict serious bodily harm on himself ... or another person, as evidenced by recent behavior causing, attempting, or threatening such harm.” Here, the general magistrate based its recommendation of involuntary commitment on this latter requirement.

At the hearing before the magistrate, the State’s psychiatrist specifically testified that there was a substantial likelihood that, if released, Lehrke would inflict serious bodily harm “[b]oth, on himself accidentally and on others intentionally or acting out his delusions or other behavior that we are not really clear about.” When asked why “this situation pose[s] a real and present threat of substantial harm to the patient’s well-being,” the doctor stated, “Well, we have incomplete records for information about where he’s mixing the medication with alcohol, with his neglecting himself. So all this suggests (indiscernible) behavior to himself and others.” As to a threat of harm to others, the doctor repeatedly referred to Lehrke’s “threatening” behavior, but when pushed by Lehrke’s counsel to give specific examples of threats Lehrke had made to others, the doctor could only point to Lehrke’s threat to sue for a violation of his civil rights.

Our review of the evidence presented below leads us to conclude that the State failed to meet its burden under section 394.467. Evidence that Lehrke became agitated and wanted to be released from his Baker Act hold in no way suggests that he was likely to harm someone. Furthermore, the only evidence that he would inflict harm on himself was the psychiatrist’s testimony that he may accidentally injure himself because if “faced with actual risk or danger” he would not be capable of taking reasonable steps to protect himself. The doctor also referred to “incomplete records for information about where he’s mixing the medication with alcohol.”

Because this record does not contain clear and convincing evidence to support the finding that Lehrke was substantially likely to inflict serious bodily harm to himself or others if released, we must reverse the trial court’s involuntary commitment order. See Blue v. State, 764 So.2d 697, 698 (Fla. 1st DCA 2000) (“Appellant is unstable and threatening to others at times. Her emotional outbursts scare her family. Her examining psychiatrist testified [ajppellant can be pleasant sometimes, but is generally very argumentative and hostile. Her interaction with other patients can escalate into conflicts and problems. Without specificity, the evidence is not clear and convincing that there is a substantial likelihood that in the near future [ajppellant will inflict serious bodily harm on herself or another person.”).

Reversed.

SILBERMAN and CRENSHAW, JJ., Concur.

      . We also note that the exception to subsection 402.33(8) found in subsection 402.33(2) does not apply to Lehrke because the record does not reflect that his “only sources of income are from state and federal aid” and does indicate that he owns real property.


author: FARMER, J.

text:
    C.S., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, State of Florida, Appellee.
    No. 4D08-3950.
    District Court of Appeal of Florida, Fourth District.
    June 24, 2009.
    Rehearing Denied July 8, 2009.

      Moria Rozenson of Pickett, Marshall & Rozenson, P.A., West Palm Beach, for appellant.
    Patricia M. Propheter of Children’s Legal Services, West Palm Beach, for appel-lee.
    Frank A. Kreidler, Lake Worth, for ap-pellee R.S., the father.
   FARMER, J.

In this dependency proceeding, the mother sought reunification with her child. After an evidentiary hearing, the trial court found substantial completion of her case plan but denied relief without making specific written, factual findings as to why-reunification would not be in the best interests of her child. She appeals. We reverse.

In E.I. v. Department of Children and Families, 979 So.2d 378 (Fla. 4th DCA 2008), we held that a court is obligated to comply with section 89.621(10), requiring the trial court to address and include in the written findings of fact the following six factors:

(a) compliance or noncompliance with the case plan;
(b) whether the circumstances causing the dependency have been resolved;
(c) length and stability of the child’s placement;
(d) preferences of the child if sufficiently mature and able to express a preference;
(e) recommendation of the current custodian; and
(f) recommendation of any guardian ad litem.

979 So.2d at 379. Even when it is not an abuse of discretion to deny reunification, we will reverse the order and remand for compliance with section 39.621(10) if the order fails to explicitly address the six factors. E.I., 979 So.2d at 379; see also C.D. v. Dep’t of Children and Families, 974 So.2d 495, 501 (Fla. 1st DCA 2008) (explaining that when a trial court makes a conclusory finding that reunification is not in the best interest of the child, instead of documenting detailed factual findings as required by § 39.621(10), appellate courts should reverse the order and remand for application of the correct law and entry of appropriate factual findings). The order in this case is indistinguishable from the one in E. I.

Reversed.

HAZOURI and GERBER, JJ., concur.


author: DAMOORGIAN, J.

text:
    Pernell BRICKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2878.
    District Court of Appeal of Florida, Fourth District.
    June 24, 2009.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Pernell Briekley (the defendant) timely appeals his conviction for armed trafficking. We reverse, holding that the trial court erred in declining to give his requested special jury instruction on constructive possession because the standard jury instruction was misleading under the facts of this case.

This case arises out of an attempted controlled drug buy between a confidential informant working with the police and an individual identified as Steven Young. After the police called off the drug buy, an order was issued to stop the vehicle in which Young was a passenger. The vehicle was being driven by the defendant. One of the officers involved in the operation ordered the defendant to stop the vehicle. The defendant and Young were then ordered out of the vehicle. Both complied with the police officer’s instruction. After the defendant and Young exited the vehicle, one of the officers testified that when he went into the car, he saw a gun as well as drugs wrapped in cellophane in the center console. The officer described the center console as an open bin that did not close. Young, to the contrary, testified that the console was closed and the contents were not visible. Upon further inspection, the officer learned that the console contained marijuana and cocaine. Young admitted to placing the gun and drugs in the console. He also testified that the defendant knew about the drug transaction. The defendant, on the other hand, testified that he observed Young place several items in the center console as the vehicle was being stopped. At this point, he testified that he first observed a gun, although he did not see any drugs. The drugs and gun were equal distance from both the defendant and Young.

Based on this evidence, defense counsel requested a special jury instruction on constructive possession where the contraband is found on jointly occupied premises. Specifically, defense counsel requested that the following be added to the standard jury instruction on possession:

To establish constructive possession of a controlled substance, the State must show that Pernell Briekley had (1) dominion and control over the contraband, (2) that he had knowledge that the contraband was within his presence, and (3) that he had knowledge of the illicit nature of the contraband.
If the premises on which the contraband is found are in joint, rather than exclusive possession of Pernell Briekley, knowledge of the presence of the contraband on the premises and Pernell Brick-ley’s ability to maintain control over the contraband will not be inferred. The State must establish knowledge and Per-nell Brickley’s ability to maintain control over the contraband by independent proof of Pernell Brickley’s actual knowledge, or evidence of incriminating statements and circumstances other than mere location of the substance.

The trial court denied his request, noting that the first part was already included in the standard instruction. The trial court then gave the following standard jury instruction on possession:

To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means
[a] the thing is in the hand of or on the person, or
[b] the thing is in a container in the hand of or on the person, or
[c] the thing is so close as to be within ready reach and is under the control of the person.
Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control. Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it.
In order to establish constructive possession of a controlled substance, if the controlled substance was in a place over which Pernel[l] Brickley does not have control, the state must prove Pernel[l] Brickley’s control over the controlled substance, and knowledge of the controlled substance that PernelQ] Brickley had.
Possession may be joint. That is, two or more persons may exercise control over the article .... In that case, each of those persons is considered to be in control of the over the [sic] article.
If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed. And exclusive possession means vested in the interest of the subject. If a person does not have exclusive possession of the controlled substance, knowledge of its presence may not be inferred or assumed.

The jury subsequently found the defendant guilty of armed trafficking, and the defendant now appeals, challenging the trial court’s failure to read the special instruction.

When a trial court denies a defendant’s request for a special instruction, the defendant has the burden of showing on appeal that the trial court abused its discretion in giving the standard instruction. Stephens v. State, 787 So.2d 747, 755-56 (Fla.2001). A trial court’s failure to give a requested jury instruction is error if the following three elements are satisfied: “(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.” Id. at 756.

The defendant contends that the trial court erred when it declined to give the requested special jury instruction on constructive possession of the premises because the standard instruction did not sufficiently cover his defense, where he alleged that he did not exclusively occupy the vehicle. The State responds that the trial court did not err for two reasons: (1) The instruction was not supported by the evidence because the evidence clearly showed that the defendant had actual possession of the drugs and gun; and (2) The proposed instruction would have been confusing if read in context with the standard jury instruction because the defendant never requested that the portion instructing on the “joint possession of an article” be deleted, as the defendant had in Mitchell v. State, 958 So.2d 496 (Fla. 4th DCA 2007). We agree with the defendant that the special jury instruction was supported by the evidence and disagree with the State that it would have been misleading or confusing to read it in conjunction with the standard instruction.

When contraband is found in a jointly occupied vehicle, rather than on the actual person, the State must prove by independent evidence the defendant’s knowledge and ability to control. Martoral v. State, 946 So.2d 1240, 1243 (Fla. 4th DCA 2007); see also Cruz v. State, 744 So.2d 568, 569 (Fla. 2d DCA 1999). In Martoral, the officers responded to a call that there was illegal narcotics activity taking place at a residence. Id. at 1242. Upon arrival, the officers noticed the defendant and another man sitting in a truck in the driveway. Id. The defendant was in the driver’s seat. Id. One of the officers approached the vehicle and through the open window of the front passenger seat, observed, in plain view, a small bag of marijuana in a small compartment in the dash above the radio. Id. The marijuana was the same distance from both the defendant and the other man. Id. We held that because the drugs were not on the defendant’s person, this was a case of constructive possession, which required the State to prove the defendant’s knowledge of and dominion and control over the contraband. Id. at 1243. In reaching this decision, we explained that “the concepts of ‘dominion’ and ‘control’ involve more than the mere ability of the defendant to reach out and touch the item of contraband.” Id. “Thus, even where drugs are found in plain view, the evidence will be insufficient to establish constructive possession unless there is evidence that the defendant exercised dominion and control over the drugs.” Id.

Similarly, the contraband and gun in this case were found in the center console of the vehicle driven by the defendant. The items were equal distance from both the defendant and the passenger, and there was evidence that he had no knowledge of the gun or drugs prior to the stop. Therefore, there was evidence supporting an instruction on constructive possession. See, e.g., Mitchell, 958 So.2d at 500-01 (holding that the evidence supported a jury instruction on constructive possession when the premises where the contraband was found were jointly occupied). Such an instruction supported the defendant’s theory that the vehicle was jointly occupied and thus, the items were not in his possession. Therefore, the defendant was entitled to have the jury instructed that the State was required to prove the defendant’s knowledge of the presence of the drugs and gun as well as his dominion and control over them.

Moreover, we find no merit to the State’s contention that adding the special instruction would be misleading. While it would be clearer for the jury if the conflicting portions of the standard jury instruction were removed in joint possession cases, adding the special jury instruction to the standard instruction would not have made the law more confusing for the jury in this case.

Accordingly, we reverse and remand for a new trial.

POLEN and STEVENSON, JJ., concur.


author: SILBERMAN, Judge.

text:
    Valerie K. AUSTIN, Appellant/Cross-Appellee, v. Andrew L. AUSTIN, Appellee/Cross-Appellant.
    No. 2D07-3104.
    District Court of Appeal of Florida, Second District.
    June 26, 2009.

      Charles A. Murray of Law Office of Charles A. Murray, P.A., Bonita Springs, and Allison M. Perry of Law Office of Allison M. Perry, Tampa, for Appellant/Cross-Appellee.
    Cynthia B. Hall of Silverio & Hall, P.A., Naples, for Appellee/Cross-Appellant.
   SILBERMAN, Judge.

Valerie K. Austin (the Wife) appeals a final judgment of dissolution of marriage and challenges provisions regarding equitable distribution, alimony, and attorney’s fees. Andrew L. Austin (the Husband) cross-appeals and also challenges the equitable distribution scheme and alimony award. We affirm the dissolution of the parties’ marriage but reverse and remand for a new trial on the issues of equitable distribution, alimony, and attorney’s fees.

The parties had a long-term marriage of thirty-eight years when the Wife filed the petition for dissolution on April 19, 2005. The parties were retired when the Husband moved out of the marital home. The Husband retired on full disability in 1992, and the Wife retired from substitute teaching in 1998. The monthly marital income was approximately $5300. After leaving the marital home, the Husband rerouted all the parties’ monthly income to an individual bank account in Maryland, except for $800 in trust income that was solely in the Wife’s name. He also withdrew $8600 from the parties’ joint checking account, leaving a balance of $700. The Wife was left with marital monthly bills totaling $5300. The Wife obtained employment as a teacher after the Husband left. At the time of trial in 2007, the Husband was sixty-two years old and the Wife was sixty-three years old.

With respect to equitable distribution, the trial court is required to identify and value the significant marital assets and designate which spouse is entitled to each asset; similarly, the trial court is required to identify the marital liabilities and designate which spouse is responsible for each liability. § 61.075(3), Fla. Stat. (2004). Here, the trial court failed to make specific written findings identifying the marital liabilities. Rather, the court ordered that all marital liabilities, including a deficiency judgment, “shall be distributed equally unless otherwise stated.” This court has recognized that “[i]t is reversible error for a trial court to simply indicate that marital liabilities are to be equally divided without identifying each specific liability and without identifying which spouse is responsible for each.” Italiano v. Italiano, 873 So.2d 558, 561 (Fla. 2d DCA 2004).

With respect to marital assets, the Husband challenges the valuation of his IRA, the parties’ largest asset. The Husband correctly contends that the trial court erred in failing to consider the tax consequences when he presented testimony by a CPA of the IRA’s value and the amount of taxes the Husband would have to pay on his IRA. See Kadanec v. Kadanec, 765 So.2d 884, 886 (Fla. 2d DCA 2000); Werner v. Werner, 587 So.2d 473, 474 (Fla. 3d DCA 1991). In addition, in valuing other assets, such as the parties’ RV lot and jewelry, the trial court stated that the evidence was conflicting and found values for those assets without explaining how it reached those values. The record does not fully clarify the basis for the trial court’s findings, and without findings to explain how the trial court reached a particular value in the face of conflicting evidence, appellate review is hampered.

We also note the Wife’s contention that the trial court erred in awarding assets to her that had been depleted during the dissolution proceedings. When a spouse depletes marital assets during the pendency of dissolution proceedings to pay for support, living expenses and litigation expenses, it is error to include the assets in the equitable distribution scheme in the absence of misconduct. See Plichta v. Plichta, 899 So.2d 1283, 1286 (Fla. 2d DCA 2005). The trial court specifically found that the Wife depleted her IRA for support and marital expenses. The Wife also contends that she depleted her trust account and Citibank account to pay the parties’ creditors during the separation. The trial court found “that there was no misconduct on the part of either party, although both parties have acted inappropriately.” On remand, in fashioning the equitable distribution, the trial court cannot award assets that were depleted during the dissolution proceedings that were expended for support and marital expenses if the parties engaged in no misconduct.

The parties also agree that the trial court erred in its calculation of the equalization payment. The value of assets the court awarded to the Wife was $16,799 more than the value of assets awarded to the Husband. Rather than award half of that difference to the Husband, the court awarded the full $16,799 to the Husband as an equalization payment, using it to reduce the amount of past alimony due from the Husband. Because we are reversing the equitable distribution scheme, the court will have to recalculate any equalization payment that may be necessary on remand.

With respect to alimony, the Wife sought $1200 per month in permanent, periodic alimony to supplement her earnings as a teacher. The trial court awarded to the Wife permanent, periodic alimony of $800 per month until retirement and $1000 per month after retirement. The trial court also awarded $800 per month of “back alimony” for the twenty-five months prior to the final hearing. Although the parties disagree on whether the trial court should have awarded alimony, they agree that the trial court failed to make the necessary factual findings to support the award it made. In his motion for rehearing, which the trial court denied, the Husband brought the lack of factual findings to the trial court’s attention.

In this long-term marriage of thirty-eight years, there is an initial presumption in favor of an award of permanent alimony. See Schlagel v. Schlagel, 973 So.2d 672, 676 (Fla. 2d DCA 2008) (marriage of over twenty-one years); Schomburg v. Schomburg, 845 So.2d 257, 258 (Fla. 2d DCA 2003) (marriage of twenty-four years). To support its alimony determination, the trial court must include specific findings of fact in the final judgment. § 61.08(1), Fla. Stat. (2004); Williams v. Williams, 923 So.2d 606, 607 (Fla. 2d DCA 2006); Schomburg, 845 So.2d at 258. Although the final judgment contains some findings concerning the factors listed in section 61.08(2)(a)-(g), the trial court failed to make specific findings concerning the financial resources and income available to each party. See § 61.08(2)(d), (g). The financial needs of one spouse and the ability of the other spouse to pay are the primary factors for the trial court to consider in determining whether to award permanent alimony. Schlagel, 973 So.2d at 676; Italiano, 873 So.2d at 560.

The trial court made a general finding that “the Husband receives more income, as indicated on Financial Affidavits, than the Wife who has recently worked as a school teacher since separation.” The trial court made no specific findings regarding either party’s income or expenses. Moreover, the trial court made no findings of how it reached the figure of $1000 per month as the monthly award after the Wife’s retirement. We note that the Wife testified at the final hearing that her teaching contract had not been renewed and that she was looking for new employment. However, “[t]he determination of whether there is need and ability to pay is made at the time of the final hearing, and the trial court may not speculate on what might happen in the future.” Ita-liano, 873 So.2d at 560. Although the trial court sought to account for the Wife’s anticipated loss of earnings, it is unclear how the trial court arrived at the $1000 figure. The parties also dispute the Husband’s monthly net income, particularly the income the Husband receives from his IRA. Also, the Husband testified regarding an anticipated future decrease in income based on disability insurance payments ceasing at age sixty-five. In this case, the lack of adequate findings hampers meaningful appellate review. See Williams, 923 So.2d at 608; Obrenski v. Obrenski, 817 So.2d 877, 878 (Fla. 2d DCA 2002); Farley v. Farley, 800 So.2d 710, 711-12 (Fla. 2d DCA 2001); Milo v. Milo, 718 So.2d 343, 344-45 (Fla. 2d DCA 1998).

With respect to attorney’s fees, our reversal of the equitable distribution scheme and alimony award will require that the trial court reconsider attorney’s fees on remand.

We are reluctant to order a new trial but determine, under the circumstances, that it is necessary. Both parties presented some testimony as to anticipated occurrences which may or may not have developed. Due to the number of errors, the passage of time, the retirement of the trial judge, and other circumstances, including bankruptcy proceedings, we reverse for a new trial on the equitable distribution, alimony, and attorney’s fees. See Parker v. Parker, 976 So.2d 104, 105-06 (Fla. 2d DCA 2008); McGoldrick v. McGoldrick, 940 So.2d 1275, 1277 (Fla. 2d DCA 2006); Prest v. Tracy, 749 So.2d 538, 539-40 (Fla. 2d DCA 2000). Thus, we affirm the dissolution of the marriage but otherwise reverse the final judgment and remand for a new trial.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and LaROSE, JJ., concur.

      . Although the judgment references the financial affidavits, we note that the Wife filed her financial affidavit and amended financial affidavit with the clerk but did not introduce them into evidence or submit them as exhibits at trial. The Wife testified that the monthly expenses of $5000 did not change after the Husband left except for food. The Husband also testified that the monthly marital income was $5325 and that there was no money left over at the end of the month.

      . Of course, if the parties are able to stipulate to certain issues, such as the values of assets and liabilities and the parties’ incomes and expenses, they may be able to avoid at least some of the litigation costs that will be involved in a new trial.


text:
    Jenna Rae GAINEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2072.
    District Court of Appeal of Florida, First District.
    June 29, 2009.

      Jenna Rae Gainey, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

KAHN, PADOVANO, and LEWIS, JJ., concur.


text:
    Frederick ADDISON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2404.
    District Court of Appeal of Florida, First District.
    June 29, 2009.
    Frederick Addison, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, PADOVANO, and LEWIS, JJ., concur.


text:
    Fred HARRIS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2502.
    District Court of Appeal of Florida, First District.
    June 29, 2009.
    Fred Harris, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, PADOVANO, and LEWIS, JJ., concur.


text:
    Nabor MENDOZA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2533.
    District Court of Appeal of Florida, First District.
    June 29, 2009.

      Nabor Mendoza, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, PADOVANO, and LEWIS, JJ., concur.


text:
    Peter BORGHESE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2712.
    District Court of Appeal of Florida, First District.
    June 29, 2009.
    Peter Borghese, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, PADOVANO, and LEWIS, JJ., concur.


text:
    Christopher SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2849.
    District Court of Appeal of Florida, First District.
    June 29, 2009.
    Christopher Scott, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, PADOVANO, and LEWIS, JJ„ concur.


text:
    Michael JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2679.
    District Court of Appeal of Florida, Fourth District.
    July 1, 2009.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Appointed appellate counsel has moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Review of the record reveals no issues of arguable merit. However, we find no record of a written order revoking probation and specifying the conditions which appellant violated. Therefore, we affirm the revocation of probation and sentence, but remand for entry of a written order revoking probation and specifying the conditions which appellant violated. Smith v. State, 6 So.3d 116 (Fla. 4th DCA 2009).

Affirm,ed and remanded.

POLEN, FARMER and GERBER, JJ., concur.


text:
    Christopher LOWE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-5012.
    District Court of Appeal of Florida, Fourth District.
    July 1, 2009.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Fayson v. State, 698 So.2d 825 (Fla.1997).

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Damien FERNANDES, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3622.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2009.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Damien Fernandes [“Appellant”], appeals the trial court’s order denying his motion to suppress a search warrant after entering a plea of no contest.

At the suppression hearing, Appellant’s counsel argued that the search warrant was not valid because it was not based on probable cause. Defense counsel argued that the search warrant was issued solely based on information obtained from Appellant’s co-perpetrator, James Devine [“De-vine”], and was not corroborated in any way. It appears that Devine’s statement against penal interest, as well as the other facts recited in the affidavit of the law enforcement officer, provided sufficient corroboration to permit a finding of probable cause. Even if the warrant were not based on a sufficient affidavit, the good faith exception articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) applies.

AFFIRMED.

GRIFFIN, TORPY and LAWSON, JJ., concur.


text:
    Loranzia OUTIN, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2643.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2009.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Christ, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm Appellant’s judgment and sentence, but reduce the trial court’s assessment of $350 for “Cost of Prosecution” against Appellant to the $100 statutory minimum that is required by section 938.27, Florida Statutes (2008). We find that in the context of this case, the trial court’s decision to reimpose the $250, now stricken, was undertaken without the necessary statutory authority supporting the additional assessment.

AFFIRMED IN PART and REVERSED IN PART.

MONACO, C.J., GRIFFIN, J., and COBB, W., Senior Judge, concur.

      . See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: CRENSHAW, Judge.

text:
    Patricia J. VOSE and Stephen D. Vose, Appellants, v. GULFSIDE CONSTRUCTION SERVICES, INC. and Brett Meares, Appellees.
    No. 2D08-1890.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.

      William C. Frye and Marie Tomassi of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., Tampa, for Appellants.
    Daniel L. Saxe of Saady & Saxe, P.A., Lutz, for Appellee Gulfside Construction Services, Inc.
    No appearance for Appellee Brett Meares.
   CRENSHAW, Judge.

Patricia Vose and Stephen Vose (the Voses) appeal the final judgment after a jury verdict on a breach of contract claim entered in favor of Gulfside Construction Services, Inc. (Gulfside). The Voses also appeal the final judgment awarding attorneys’ fees to Gulfside as the prevailing party. We affirm the judgment on the breach of contract claim without discussion. However, we reverse as to the attorneys’ fees awarded to Gulfside and remand for an evidentiary hearing.

On September 6, 2007, a jury found in favor of the Voses on a construction lien claim filed by Gulfside and found in favor of Gulfside on its breach of contract claim. The jury awarded damages to Gulfside in the amount of $14,094.97. Both parties claimed that they were the prevailing parties in the case and as such, both filed motions seeking an award of attorneys’ fees and costs. The Voses argued they were entitled to fees and costs under section 713.29, Florida Statutes (2007), because they prevailed on the construction lien claim. Gulfside countered that it was entitled to attorneys’ fees and costs under the fees provision contained in the contract. The trial court, after conducting a hearing on the motions, determined that because Gulfside prevailed on the “significant issues” in the case, Gulfside, not the Voses, was entitled to attorneys’ fees and costs pursuant to Prosperi v. Code, 626 So.2d 1360 (Fla.1993). The court also denied the Voses’ request for an evidentiary hearing to determine the prevailing party for the purpose of awarding attorneys’ fees. We find the trial court’s denial of the Voses’ request to be error.

Where there are competing claims for attorneys’ fees supported by separate legal bases of a construction lien claim and a breach of contract claim, the trial court’s discretion to award attorneys’ fees should be determined after an evidentiary hearing. Sullivan v. Galske, 917 So.2d 412 (Fla. 2d DCA 2006). Here, due to the competing nature of the claims, the court was required to conduct an evidentiary hearing. We also point out that, at the time of its ruling, the trial court did not have the benefit of the Florida Supreme Court’s decision in Trytelc v. Gale Industries, Inc., 3 So.3d 1194 (Fla.2009), which determined that when Prosperi is applied to the facts of a case, there is no mandatory requirement that a court determine that one party is the “prevailing party.”

Accordingly, we remand for an eviden-tiary hearing to determine whether the Voses are entitled to attorneys’ fees under section 713.29, or if Gulfside is entitled to attorneys’ fees under its contract with the Voses. We note, however, that our decision is not determinative that either party should prevail for the purpose of awarding attorneys’ fees.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


text:
    SURVIVORS CHARTER SCHOOLS, INC., Appellant, v. The SCHOOL BOARD OF PALM BEACH COUNTY, Appellee.
    Nos. 4D06-2378, 4D06-2379.
    District Court of Appeal of Florida, Fourth District.
    July 8, 2009.
    Bryan J. Yarnell of Bryan J. Yarnell, PLLC, Palm Beach Gardens, for appellant.
    Randall D. Burks, Ph.D. of the School Board of Palm Beach County, Office of Chief Counsel, West Palm Beach, for ap-pellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

In School Board of Palm Beach County, Florida v. Survivors Charter Schools, Inc., 3 So.3d 1220 (Fla.2009), the Supreme Court of Florida reversed our decision and remanded for us to address the other claims raised on appeal but not addressed in our opinion. As identified by the Supreme Court, the pertinent claims that were not addressed are summarized as follows:

the school board should not have relied on the audit report because it is hearsay; [2] the failure to properly notice the January 25 meeting or to find a need for immediate action at that meeting violated due process; [3] the School Board never initiated a proper action for termination because the Superintendent failed to file a petition for termination giving Survivors an opportunity to know the charges and appropriately respond; [4] the termination cannot be upheld because there was no evidence submitted and no good cause shown; [5] the audit report was not competent, substantial evidence or a legally sufficient reason for termination; [6] the charters and statute required the School Board to commence alternative dispute resolution before terminating the charters; [7] and the School Board failed to consider Survivors WPB and Survivors BB separately.

Sch. Bd. of Palm Beach County, 3 So.3d at 1237 n. 15.

After reviewing the other claims raised by the appellant, we find that they were either not preserved or are without merit. As to claims numbered one, two, three, and seven, we find that they were not preserved for appellate review because no objection was made on those grounds at the hearing. Even if preserved, we find no merit to any of the claims. We therefore affirm.

FARMER, DAMOORGIAN and CIKLIN, JJ., concur.


author: PER CURIAM. WARNER, J.,

text:
    Harold Wayne GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4806.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.

      Harold Wayne Green, Clermont, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant was convicted of ten counts of sexual battery, four counts of lewd, lascivious, or indecent assault, and nine counts of lewd and lascivious molestation. The defendant now appeals the trial court’s summary denial of his motion for post-conviction relief, which alleged ineffective assistance of counsel. Specifically, he alleges that his counsel should have objected to the physician testimony of the medical director of the child protection team whose physical findings were entirely equivocal and who took the stand for the sole apparent purpose of repeating the child victim’s allegations of sexual abuse. He also alleges that his attorney was ineffective in failing to use a police report in which the Williams rule witness minimized her alleged abuse in seeking to exclude that Williams rule evidence.

We agree with the defendant that his claim that his counsel was ineffective in not seeking to exclude the physician testimony under Florida Statutes section 90.403 is legally sufficient and not conclusively refuted by the record. See Pardo v. State, 596 So.2d 665 (Fla.1992). We also agree that his claim that his counsel was ineffective in not using the police report to seek to exclude the Williams rule evidence is legally sufficient and not conclusively refuted by the record. While it is true that Williams rule issues were addressed on direct appeal, obviously the defendant could not raise his counsel’s failure to utilize the inconsistent police report on direct appeal.

We thus reverse and remand for the trial court to attach portions of the record conclusively refuting these claims or to hold an evidentiary hearing on these issues.

Reversed and remanded.

STEVENSON and MAY, JJ., concur.

WARNER, J., concurs in part and dissents in part.

WARNER, J.,

concurring in part and dissenting in part.

I concur in the majority’s reversal on the Williams rule evidence for attachments of portions of the record which conclusively refute the appellant’s claim. The testimony of the Williams rule witness is not contained in this record, making it impossible to evaluate that claim. However, as to the testimony of the physician, I would hold that the appellant failed to show Strickland prejudice in the admission of the testimony because the testimony was cumulative to the child’s own testimony at trial.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Charles Ryan HICKMAN and Carol Cavanagh Hickman, Appellants, v. BARCLAY’S INTERNATIONAL REALTY, INC., a Florida corporation, Robert Wyner, and Bjorn Q. Aaserod, Appellees.
    No. 4D08-677.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.
    Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, for appellants.
    Julissa Rodriguez, Elliot H. Scherker and Elaine D. Walter of Greenberg Trau-rig, P.A., Miami, and Mark F. Bideau and Janna S. Nugent of Greenberg Traurig, P.A., West Palm Beach, for appellee Bjorn Q. Aaserod.
   PER CURIAM.

Charles and Carol Hickman, the plaintiffs below, appeal the trial court’s order awarding attorney’s fees and costs to Bjorn Q. Aaserod, the defendant below, pursuant to section 768.79, Florida Statutes. “[Wlhere an award of attorney’s fees is dependent upon the judgment obtained, the reversal of the underlying judgment necessitates the reversal of the fee award.” City of Hollywood v. Witt, 939 So.2d 315, 319 (Fla. 4th DCA 2006). In Hickman v. Barclay’s International Realty, Inc., 5 So.3d 804 (Fla. 4th DCA 2009), we reversed the trial court’s order granting final summary judgment in favor of Aaserod. Therefore, we reverse the fees award as well. See Keybank Nat’l Ass’n v. Int’l Fin. Bank, 875 So.2d 672, 672-73 (Fla. 3d DCA 2004); Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999); Nathanson v. Houss, 717 So.2d 114, 117 (Fla. 4th DCA 1998).

STEVENSON, MAY and LEVINE, JJ., concur.


text:
    William REDDIX, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-693.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Defendant argues that the finding of violation of probation (VOP) is entirely based on hearsay evidence. We agree.

His VOP charge concerned alleged infractions of the rules in a residential treatment program (Program). The Program director testified for the State. He did not have defendant’s files as he testified. Instead, he testified that he spoke with defendant’s supervisor before appearing in court. The supervisor went through the chart with the director. Critical to the testimony was a behavior contract the Program had insisted defendant sign and perform in order to continue in the program after some previous rule infractions. Again, this contract was not presented in court. The director did not himself supervise defendant’s participation in the Program or make the entries in defendant’s Program chart and thus did not testify from personal knowledge.

It is well settled that in order to revoke probation the State must prove by a greater weight of the evidence, under the totality of the circumstances, that the probationer deliberately, willfully, and substantially violated one or more conditions of probation. Steiner v. State, 604 So.2d 1265 (Fla. 4th DCA 1992); Blackshear v. State, 771 So.2d 1199 (Fla. 4th DCA 2000). While hearsay ordinarily inadmissible in a criminal trial may be admitted in VOP proceedings, it may not constitute the sole basis for finding a violation of probation. Thomas v. State, 711 So.2d 96, 97 (Fla. 4th DCA 1998). Such hearsay evidence may be used only to combine with admissible evidence establishing the violation. Thomas, 711 So.2d at 97.

Defendant argues that in order to prove a willful, substantial VOP in this setting, the State was required to adduce his actual Program chart into evidence through the business record exception or offer testimony directly from someone who actually witnessed the alleged Program infractions. This argument has been accepted in our own decision in Bertoloti v. State, 831 So.2d 1281 (Fla. 4th DCA 2002), and by the First District in Stewart v. State, 926 So.2d 413 (Fla. 1st DCA 2006).

In Bertoloti, The trial court had revoked defendant’s probation because of failure to complete a drug treatment program. The only evidence of a willful violation was the testimony of the drug treatment program’s records custodian, in which he stated that the chart showed that defendant tested positive for alcohol. We found the testimony of the records custodian insufficient to prove a VOP under nearly identical circumstances. We reversed the VOP because the defendant’s chart was not introduced into evidence.

Similarly in Stewart, defendant argued the court improperly relied exclusively on inadmissible hearsay in finding that he willfully violated community control. At the revocation hearing, the director of the program testified that the defendant was discharged from the program for refusing to leave the building during a fire drill and being involved in verbal altercations with other residents. The court reversed the VOP because, although there was competent evidence that the defendant was expelled from the program, the only evidence that his conduct was willful and substantial came from the director’s hearsay testimony.

In this case, all of the conduct described by the Program director as infractions of Program rules came from entries in defendant’s chart by someone else. The director did not have personal knowledge of any of the incidents.

Because Florida law requires admissible evidence to support a finding of a willful VOP, the State was required to produce defendant’s chart at the hearing and seek its admission into evidence. Otherwise, it needed a witness having personal knowledge of the pm-ported infractions. It follows that the finding of VOP is not supported by the evidence.

Reversed.

GROSS, C.J., and POLEN, J., concur.


text:
    ALPHABETLAND PRESCHOOL CENTER, Appellant, v. Ann Maire TORRES and Florida Unemployment Appeals Commission, Appellees.
    No. 4D08-3558.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.
    Jason H. Clark, West Palm Beach, for appellant.
    Louis A. Gutierrez, Tallahassee, for ap-pellee Unemployment Appeals Commission.
   PER CURIAM.

Affirmed. See Ayers v. Florida Unemployment Appeals Comm’n, 848 So.2d 1239 (Fla. 4th DCA 2003).

GROSS, C.J., DAMOORGIAN and GERBER, JJ., concur.