text:
    HOUND MOUNDS, INC. and Geoffrey Bodle, Appellants, v. Adrian FINCH, an individual, Appellee.
    No. 4D14-1520.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2014.
    Rehearing Denied Jan. 23, 2015.

      Gary E. Smith of Gary E. Smith, P.A., Pensacola, for appellants.
    Paul K. Silverberg and Kraig S. Weiss of Silverberg & Weiss, P.A., Weston, for appellee.
   WARNER, J.

The trial court stayed arbitration in a dispute between a Florida resident and a Texas corporation over a franchise agreement entered into between them. The court concluded that the entire agreement was void as against public policy. Appel-lees challenged the agreement as a whole, and not merely the arbitration provision. The law is clear that issues going to the validity of the entire agreement are questions for the arbitrator, not the court. We reverse.

Appellee purchased a “Poop 911” franchise from appellant Hound Mounds, Inc. based upon representations as to the growth potential, services, and territory for the franchise. The franchise agreement contained an arbitration provision which required arbitration of disputes “aris[ing] out of or relating to this Agreement or breach thereof .... Arbitration will be the sole and exclusive procedure for the resolution of disputes between the FRANCHISEE and Franchisor arising out of or relating to this Agreement.”

Later, appellee learned that the franchise was required to provide more services than he originally thought, and appellants also expanded the territory appellee was required to cover. Eventually, appel-lee “was forced to shut down [his] Poop 911 of South Florida, LLC company to mitigate his damages.” He then filed suit for violations of Florida Deceptive and Unfair Trade Practices Act, alleging appellants had failed to provide him a franchise disclosure document as required by the Federal Trade Commission, and had misrepresented “the scope of franchise services, the required total investment, the time and territorial commitments and the likelihood of success of the business.” He sought damages and attorney’s fees and “a declaratory judgment that any actions, obligations or other benefits derived by [Hound Mounds] as a result of the violation of this part, and therefore in violation of public policy, are unenforceable, rescinded, void and/or of no further effect[.]”

When appellee filed suit, Hound Mounds had already begun arbitration proceedings with appellee in Texas as provided in the arbitration agreement. Appellee moved the court to stay the proceedings on the grounds that his complaint alleged that the franchise agreement violated public policy. After a hearing, the trial court entered a stay. Hound Mounds appeals.

Arbitration agreements are governed by the Florida Arbitration Code, which provided, in relevant part:

On application the court may stay an arbitration proceeding commenced or about to be commenced, if it shall find that no agreement or provision for arbitration subject to this law exists between the party making the application and the party causing the arbitration to be had. The court shall summarily hear and determine the issue of the making of the agreement or provision and, according to its determination, shall grant or deny the application.

§ 682.03(4), Fla. Stat. (2010). Arbitration agreements may also be governed by the Federal Arbitration Act if the agreement involves interstate commerce, in which case the federal act supersedes inconsistent state law. See Gilman + Ciocia, Inc. v. Wetherald, 885 So.2d 900, 903-04 (Fla. 4th DCA 2004). As this agreement is a franchise agreement between a Texas corporation and a Florida resident, we conclude that it is governed by the federal act.

Nevertheless, under either Florida or federal law, only a challenge to an arbitration clause itself may be determined by the trial court. A challenge to the entire agreement is an issue which must be arbitrated. This principle was established by the United States Supreme Court in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), which held:

Challenges to the validity of arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract” can be divided into two types. One type challenges specifically the validity of the agreement to arbi-trate_The other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract’s provisions renders the whole contract invalid.
First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts.... [Bjecause respondents challenge the Agreement, but not specifically its arbitration provisions, those provisions are enforceable apart from the remainder of the contract. The challenge should therefore be considered by an arbitrator, not a court.

Id. at 444-46, 126 S.Ct. 1204 (footnote omitted, citations omitted); see also Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 70, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010) (“[A] party’s challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.”). Florida law is in accord. See Charles Boyd Constr., Inc. v. Vacation Beach, Inc., 959 So.2d 1227, 1231-32 (Fla. 5th DCA 2007) (“[U]nder either the Florida or Federal view, only an attack on the making of the arbitration provision of the contract raises an issue for the court to decide.”); see also CFC of Delaware LLC v. Santalucia, 91 So.3d 899, 901 (Fla. 4th DCA 2012) (noting analysis of whether a claim is subject to arbitration was the same under either).

Appellee’s motion to stay arbitration was based on the alleged invalidity of the entire franchise agreement between the parties; it did not specifically attack the arbitration provision. Therefore, the issue of the invalidity of the entire agreement is subject to arbitration, and the court erred in staying arbitration. Appel-lee cites to Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla.2011), and Global Travel Marketing, Inc. v. Shea, 908 So.2d 392 (Fla.2005), but both cases are inappo-site because both dealt with the validity of the arbitration agreement itself and not the whole agreement between the parties.

The trial court’s order staying the pending arbitration proceedings is reversed and remanded to vacate the stay.

TAYLOR and KLINGENSMITH, JJ„ concur.

      . The statute was amended effective July I, 2013. However, the 2010 version applies because appellee’s complaint alleges he purchased the franchise in May 2010. See § 682.013(2), Fla. Stat. (2013) (unless the parties agree to be governed by the 2013 revised code, arbitration agreements “shall be governed by the applicable law existing at the time the parties entered into the agreement”).


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Deborah COSMAN, as Personal Representative of the Estate of Wanda Rodriguez, Deceased, Appellant, v. Joseph RODRIGUEZ, Appellee.
    No. 2D13-3734.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2014.

      Matthew A. Linde of Matthew A. Linde, P.A., Fort Myers, for Appellant.
    Bradley S. Donnelly of Treiser Collins, PL, Naples, for Appellee.
   NORTHCUTT, Judge.

After nearly fifty years of marriage, Joseph Rodriguez shot and killed his wife, Wanda. Although he claimed his wife’s death was a suicide, Rodriguez was convicted of second-degree murder and sentenced to life in prison. In this appeal Deborah Cosman, the personal representative of Wanda Rodriguez’s estate, challenges an adverse final judgment in the wrongful death action against Joseph Rodriguez. We reverse and remand for a new trial.

Cosman was Wanda Rodriguez’s child from a previous relationship. After the murder, she was appointed as the personal representative of her mother’s estate, and' in that capacity she filed a wrongful death action against Rodriguez. In a third amended complaint, Cosman sought damages from Rodriguez on behalf of the estate and for herself individually. The circuit court granted Rodriguez’s motion to dismiss Cosman’s individual claim for damages, ruling that Rodriguez was a surviving spouse and that Cosman, an adult child, was precluded from bringing a survivor’s claim.

Cosman then filed a fourth amended complaint alleging wrongful death and seeking damages on behalf of the estate only. Prior to trial, the parties stipulated that the Estate would not seek compensatory damages, and the case went to trial on the sole issue of punitive damages. The jury returned a zero verdict. As we explain later in this opinion, we reverse the final judgment on the Estate’s claim due to certain evidentiary rulings, and we remand for a new trial.

We first address the viability of Cos-man’s individual claim for damages. Rodriguez argued that he was Wanda’s surviving spouse and that, therefore, an adult child such as Cosman did not have a survivor’s claim under the Wrongful Death Act, sections 768.16-.26, Florida Statutes (2009). Cosman countered that Rodriguez’s act of murder precluded his claim to surviving spouse status by operation of the “slayer statute,” section 732.802, Florida Statutes (2006), which prevents a wrongdoer from profiting by such a crime. We agree that when the pertinent statutes are read together, Rodriguez must be treated as if he predeceased his wife, thereby permitting Cosman’s damages claim as a survivor.

The Wrongful Death Act provides a right of action “[w]hen the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person ..., and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued.” § 768.19. The Act manifests the state’s public policy to shift the loss from the survivors to the wrongdoer; the Act is remedial and must be liberally construed. § 768.17.

The wrongdoer is liable for “damages as specified in this act.” § 768.19. Survivors may recover “the value of lost support and services.” § 768.21(1). A surviving spouse may recover “for loss of the decedent’s companionship and protection and for mental pain and suffering.” § 768.21(2). “Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering-” § 768.21(3) (emphasis added). Although not listed in the statute, punitive damages may be recovered for a wrongful death. Martin v. United Sec. Servs., Inc., 314 So.2d 765, 767 (Fla.1975).

The circuit court ruled that Cos-man could not recover because Rodriguez was Wanda’s surviving spouse. See § 768.21(3). In reaching this conclusion, the circuit court failed to apply section 732.802, which states in pertinent part:

(1) A surviving person who unlawfully and intentionally kills ... the decedent is not entitled to any benefits under the will or under the Florida Probate Code, and the estate of the decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent.
(4) Any other acquisition of property or interest by the killer, including a life estate in homestead property, shall be treated in accordance with the principles of this section.

Early on, this statute addressed only a killer’s right to property passing by intestacy or will. Prudential Ins. Co. of Am., Inc. v. Baitinger, 452 So.2d 140, 141 (Fla. 3d DCA 1984). But in 1982 the legislature dramatically expanded the statute to prevent a killer from obtaining property or interests outside the decedent’s estate. Id. The 1982 amendments added the catchall provision in subsection (4), quoted above. Ch. 82-71, § 1, at 186, Laws of Fla. “This provision clearly illustrates the legislative intent to broaden the scope of the statute as far as possible so that courts would no longer have to rely solely on equitable principles to prevent a killer from profiting from his action.” 452 So.2d at 142 n. 4.

The Florida Supreme Court previously had resorted to equitable principles when, having determined that the then-existing version of this statute applied only to inheritances, it nevertheless held that the murderer of an insured under a life insurance policy could not claim as a beneficiary of the policy. Carter v. Carter, 88 So .2d 153 (Fla.1956). In a scenario closer to that of the instant case, the Supreme Court of Georgia invoked equitable principles to' allow a wrongful death action by the parent of a deceased son who was murdered by his surviving spouse. Carringer v. Rodgers, 276 Ga. 359, 578 S.E.2d 841 (2008). The Georgia court explained that the murdering spouse must be treated as predeceased to avoid “the absurd result and ‘legal impossibility’ of the wrongdoer having to sue herself to recover for the wrongful death.” Id. at 844-45. The court also noted that the purpose of the wrongful death laws would be subverted if the killer could render herself immune from civil liability.

Similarly, the Supreme Court of Wisconsin held that “a spouse who feloniously and intentionally kills his or her spouse is not a surviving spouse for purposes of the wrongful death statute, but instead is treated as though having predeceased the decedent.” Steinbarth v. Johannes, 144 Wis.2d 159, 423 N.W.2d 540, 540 (1988) (allowing adult children to bring wrongful death claim against stepfather who killed their mother). Like Florida, Wisconsin has statutes that prevent a killer from benefiting from the criminal act; the statutes direct that the killer must be treated as having predeceased the decedent. See id. at 542. The Wisconsin court was loath to permit “an absurd result by shielding the killer from civil liability,” which would “contravene the strong and pervasive legislative. policy of prohibiting a killer from benefiting from his or her criminal act.” Id. at 542. The court also explained that a contrary construction of the statutes would thwart the purpose of the wrongful death statutes. Id. at 543.

Against this backdrop, we easily conclude that the right to recover damages for the wrongful death of a decedent under Florida’s wrongful death law is an “interest” that, pursuant to section 732.802(4), must be treated as if the killer predeceased the decedent. Thus, the circuit court erred by ruling that Rodriguez was his wife’s surviving spouse. In the absence of a surviving spouse, therefore, Cosman properly could assert her individual claim for damages as a survivor under the wrongful death law, section 768.21(3). Accordingly, we reverse the dismissal of her claim.

In addition, we reverse the final judgment on the Estate’s claim. Rodriguez has a son, also from a previous relationship, and he called the son to testify. The son is disabled in a way that called into question his competency as a witness. The trial court abused its discretion by refusing to allow Cosman to voir dire the son to ascertain whether he was competent to testify. See Palazzolo v. State, 754 So.2d 731, 738 (Fla. 2d DCA 2000) (“When a party challenges the competency of a witness, the trial court should permit voir dire on the issue and make a case-specific determination of the witness’s competency to testify.”). On the witness stand, the son’s testimony revealed that he had no understanding of what the proceeding was about or why he was there. The testimony was only marginally relevant at best; in large part, it was unintelligible and irrelevant.

It is apparent from our review of the record that the defense placed Rodriguez’s son on the witness stand in order to elicit sympathy and confuse the jury. This purpose was made clear in closing argument by Rodriguez’s attorney. After observing that the criminal justice system had worked and that Rodriguez was already being punished for his crime, counsel argued that “if punitive damages were to be awarded[,] who would be punished, who would suffer. Does the son have to pay for the sins of the father.” This improper argument was unsupported by any evidence that Rodriguez was supporting his disabled son. And the error was magnified because the trial court had prevented Cosman from eliciting testimony to show that the son was also a beneficiary of Wanda’s estate and that he would thus benefit from any recovery by the Estate in this lawsuit. We are confident that on retrial the court will ensure that the son, if called, is competent to testify and that he is allowed to provide only relevant testimony.

Reversed and remanded for a new trial.

VILLANTI and LaROSE, JJ., Concur.


author: DAVIS, Chief Judge.

text:
    STATE of Florida, Appellant, v. Kenneth HUDSON, Appellee.
    No. 2D13-4843.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuecaro, Assistant Attorney General, Tampa, for Appellant.
    Peter Lombardo, Bradenton, for Appel-lee.
   DAVIS, Chief Judge.

Kenneth Hudson entered nolo contende-re pleas to three counts of sale of cocaine and one count each of possession of cocaine, violating license restrictions, and operating a motorcycle without a valid driver’s license. His scoresheet indicated a lowest permissible sentence of twenty-one months’ prison. But the trial court sentenced him to twenty-one months’ prison, suspended, and twenty-four months’ probation. At sentencing, the trial court indicated that it was departing downward pursuant to section 921.0026(2)(j), Florida Statutes (2013), which allows for a sentence below the lowest permissible sentence where “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” In departing downward, the court only stated, “I don’t believe the operation in and of itself was sophisticated enough to come into the category in my mind, okay, that doesn’t obviate some section (j) of Florida Statute 921.0026.... So I’m going to depart under that statute.” The State now challenges this sentence, and we reverse.

We initially note that the trial court failed to put its reasons for departing downward into writing. See § 921.002(l)(f) (requiring that “[d]epar-tures below the lowest permissible sentence established by the code ... be articulated in writing by the trial court judge” and supported by a preponderance of the evidence). The trial court’s final judgment only addresses counts three and six, the misdemeanor counts for which Hudson received time served, but it fails to address counts one, two, four, and five, the counts for which the court departed downward. The judgment does incorporate by reference the probation order by a notation to “see separate order of probation for counts 1, 2, 4, 5.” But the probation order also lacks written reasons for the downward departure sentence. However, “[i]f the trial court does not file written reasons, a downward departure sentence may nevertheless be affirmed if the record reflects that the trial court made oral findings on the record at the sentencing hearing which support the sentence.” State v. Naylor, 976 So.2d 1193, 1196 (Fla. 2d DCA 2008). Here, in rendering sentence, the trial court merely stated, “I don’t believe the operation in and of itself was sophisticated enough to come into the category.”

The determination of whether this is a valid legal ground for a downward departure “is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling.” See State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006). We conclude that in the instant case the trial court did not apply the correct rule of law and that Hudson failed to present competent, substantial evidence to support the downward departure. See Naylor, 976 So.2d at 1196 (“The defendant bears the burden of presenting competent, substantial evidence supporting the reason for the downward departure.”).

With regard to the correct rule of law, in order to depart downward under subsection (j) of the statute, “it [i]s necessary for there to [be] competent, substantial evidence that (1) the offense was committed in an unsophisticated manner, (2) it was an isolated incident, and (3) the defendant had shown remorse.” State v. Butler, 787 So.2d 47, 48 (Fla. 2d DCA 2001). Here, the trial court addressed the sophistication prong of subsection (j) but made no findings that the offenses amounted to an isolated incident or that Hudson had shown remorse. And the record does not support either of these required elements. See id. (“In the present case, there was no evidence supporting the factor that the offense was an isolated incident, the trial court did not make a finding, and there was no evidence that Butler had shown remorse.”).

At the sentencing hearing, Hudson presented the testimony of himself and his girlfriend. Neither testified as to Hudson’s remorsefulness other than to say that Hudson sold the drugs so that he could make a nice Christmas for his children. Hudson did try to classify these three separate drug sales as an isolated incident, testifying that they were the only three drug sales he made during that time period. But the arresting officer testified on rebuttal that in addition to these three sales, there were two other transactions between himself and Hudson that the officer had been unable to videotape. As to remorse, Hudson testified, “[I]t’s not just something that needs to be tolerated, selling drugs, and I know it’s wrong, but I couldn’t get throwed [sic] out and I resorted to doing what I had to do.” He also testified that he had been upset with law enforcement for not stopping him after the first sale. As such, Hudson has not met his burden of establishing either that this was an isolated incident or that he was remorseful.

Furthermore, the record does not support the trial court’s conclusion that this crime was committed in an unsophisticated manner. Hudson’s testimony merely recounted his job history and how even though he had been in some trouble when he was young, he had since stayed out of trouble — until the instant offenses. His girlfriend testified that he provided for his children and that he did not have a drug problem. This testimony does not speak to the sophistication level of the crime. However, the officer testified that Hudson operated under an alias and that he was able to obtain and provide cocaine to the officer on five different occasions, suggesting a certain level of sophistication in the area of drug sales.

Finally, Hudson maintains on appeal that even if departure was not proper under subsection (j), the record supports a downward departure under section 921.0026(2)(m), which provides as follows:

The defendant’s offense is a nonviolent felony, the defendant’s Criminal Punishment Code scoresheet total sentence points ... are [sixty] points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence.

We do not agree that the record supports a downward departure under this subsection. Although Hudson’s total points were less than sixty, he presented no evidence that he is “amenable to the services of a postadjudicatory treatment-based drug court program” or that he “is otherwise qualified to participate in” such a program. And the trial court made no such findings, written or oral.

Because the trial court’s stated reason for departing downward was legally insufficient, we must reverse and remand for resentencing.

Reversed and remanded.

NORTHCUTT and CASANUEVA, JJ., Concur.

      . On appeal, Hudson also argues that the State did not preserve its objection to the downward departure sentence. But the transcript of the sentencing hearing makes clear not only that the State opposed the downward departure but also its reasons for doing so.


author: KELLY, Judge.

text:
    Christineann D. SMOLINSKI, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-582.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2014.

      Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Christineann D. Smolinski appeals the sentence imposed upon her following the revocation of her probation. We affirm her sentence but remand for entry of a written order of revocation of probation.

While her appeal was pending, Ms. Smo-linski filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b) due to the lack of a written order of revocation. The trial court denied the motion stating that “[a]n Order of Community Control was entered by this Court on January 17, 2014.” Although the Order of Community Control reflects the conditions of probation Ms. Smolinski was found to have violated, this court has concluded that failure to enter a separate written order of revocation of probation is error. See Kiburis v. State, 18 So.3d 1254 (Fla. 2d DCA 2009); Moschiano v. State, 12 So.3d 922 (Fla. 2d DCA 2009); Dawkins v. State, 936 So.2d 710 (Fla. 2d DCA 2006). We therefore remand this case for entry of a proper written revocation order. See Kiburis, 18 So.3d at 1254.

Affirmed; remanded with instructions.

WALLACE and BLACK, JJ., Concur.


author: KELLY, Judge. ALTENBERND, Judge,

text:
    Miguel MENCHACA-RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3152.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2014.

      Joseph ThurdeKoos of Maney & Gordon, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Miguel Menchaca-Ramirez appeals from the order denying his Motion to Vacate/Set Aside Judgment and Sentence under Florida Rule of Criminal Procedure 3.850. We reverse the order and remand for further proceedings.

In 2008, Menchaca-Ramirez entered a nolo contendere plea to uttering a forged instrument, driving while license suspended (habitual offender), and several other offenses. He was adjudicated guilty and sentenced to a total of 364 days in jail followed by two years’ probation. In 2011, Menchaca-Ramirez admitted to violating his probation. The court revoked Mencha-ca-Ramirez’s probation and sentenced him to concurrent terms of fourteen months’ incarceration on the uttering a forged instrument and driving while license suspended convictions; the sentences on the remaining counts were unchanged.

Thereafter, Menchaca-Ramirez sought to withdraw his admission to violating his probation on the ground that it was involuntary. He claimed that his counsel did not advise him that under the Immigration and Nationality Act, a sentence exceeding one year would aggravate his two convictions for uttering a forged instrument making him deportable with no ability to seek relief. Menchaca-Ramirez contended that if counsel had informed him he would be ineligible to request relief in removal proceedings he would not have admitted the violation and would have proceeded to trial.

The postconviction court held an eviden-tiary hearing on Menchaca-Ramirez’s motion. No testimony was taken as Mencha-ca-Ramirez had been deported, and the court accepted the stipulation of defense counsel that she advised Menchaca-Ra-mirez that his admission “may” have immigration consequences and that he should talk to an immigration lawyer if he was concerned. The court cited the transcript of the 2011 plea colloquy where the court informed Menchaca-Ramirez, “if you are not a United States citizen, this plea would subject you to deportation.” The court found this language sufficient to place Menchaca-Ramirez on notice of the immigration consequences of his plea and denied the motion.

“[W]hen the deportation consequence [of a plea] is truly clear ... the duty to give correct advice is equally clear.” Padilla v. Kentucky, 559 U.S. 356, 357, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Here, unlike his original plea, Menchaca-Ramirez’s admission to the probation violation resulted in his mandatory deportation and eliminated his eligibility for deportation relief. Under these particular circumstances, even if the trial court’s deportation warning during the plea colloquy is considered sufficient, it does not cure the prejudice resulting from counsel’s failure to advise Menchaca-Ramirez of the “truly clear” deportation consequences of his admission as required by Padilla. See Hernandez v. State, 124 So.3d 757, 763 (Fla.2012).

Reversed and remanded.

BLACK, J., Concurs.

ALTENBERND, J., Concurs specially.

ALTENBERND, Judge,

Specially concurring.

This is an unfortunate case, but I am not certain that the postconviction court will be able to repair matters on remand. Mr. Menchaca-Ramirez is nearly fifty-nine years old and came to this country from Mexico as a teenager. All seven of his children are U.S. citizens. He apparently was a lawful permanent resident of this country, although he may not have understood his status.

His convictions are for driving without a valid license and uttering a forged instrument. His violation of probation seems to have been another conviction for driving without a valid license. These charges allegedly are related to his efforts to stay in this country while his status was unclear to him. One way or the other, they are minor criminal offenses.

If the trial court and the lawyers had appreciated that a sentence of fourteen months’ incarceration would subject this man to deportation, it seems highly unlikely that he would have received this sentence. Without that knowledge, the short sentence with credit for time served undoubtedly seemed to be a minimal and appropriate punishment.

The ineffective assistance that Mr. Men-chaca-Ramirez received occurred at the hearing on his violation of probation in 2011. Thus, on remand, there is no basis to set aside his convictions from 2008. On remand, the postconviction court should set aside the order of revocation and probably the new conviction and sentence for driving without a license. Even though the sentence imposed on the order of revocation is fully served, it might be possible for the postconviction court to enter a new order of revocation with a sentence that would not necessitate this man’s deportation.

But Mr. Menchaca-Ramirez obviously will not be able to attend these proceedings or provide live testimony. Perhaps he can resolve these matters from Mexico in a fashion that will allow him to .return to his family in the United States, but there is no question that our mandate will be a challenge for the postconviction court.

      . See 8 U.S.C. § 1227(a)(2)(A)(i) (2012) (stating that any alien who is convicted of a crime of moral turpitude and receives a sentence of one year or longer is deportable); 8 U.S.C. § 1229b(b)(l)(C) (2012) (providing that the attorney general can cancel removal under certain circumstances but not if the alien has been convicted under 8 U.S.C. § 1227(a)(2) (2012)).


author: MORRIS, Judge.

text:
    David Michael LUDWIG, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3726.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2014.
    Clyde M. Taylor III of Taylor & Taylor, PA, St. Augustine, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   MORRIS, Judge.

David Michael Ludwig appeals his judgments and sentences for two counts of attempted robbery with a weapon and one count of robbery with a weapon. We reject Ludwig’s argument that the trial court failed to consider the merits of his motion to suppress which he raised for'the first time during trial, and we hold that the trial court did not abuse its discretion in admitting the evidence of lineup identifications made by the victims. See Hayes v. State, 581 So.2d 121, 125 (Fla.1991) (applying abuse of discretion standard to trial court’s decision to admit pretrial photo identification).

Affirmed.

NORTHCUTT and WALLACE, JJ., Concur.


text:
    Karl Douglas DOOM, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4223.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2014.

      Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Karl Doom appeals following his no contest plea to use of a computer to solicit sex with a minor and to traveling to meet a minor for sex, both crimes alleged to have occurred on the same date. The dual convictions violated the constitutional protection against double jeopardy. Accordingly, we reverse the conviction and sentence for use of a computer to solicit sex with a minor.

Doom raises the double jeopardy violation as a matter of fundamental error. He relies on this court’s decision in Shelley v. State, 134 So.3d 1138, 1141 (Fla. 2d DCA), review granted, No. SC14-755, 2014 WL 3360176 (Fla. July 1, 2014), in which we held that “dual convictions for soliciting and traveling in the course of one criminal transaction or episode violate the prohibition against double jeopardy.”

The State maintains that Shelley was . incorrectly decided, and it additionally argues that double jeopardy was not violated in this case because there were multiple communications that could have been charged as multiple counts. But this argument was also rejected in Shelley. See id. at 1141-42 (“The State only charged one use of computer devices to solicit, and that charge was based on a solicitation occurring on the same date as the travelling offense. We find no legal basis to deny a double jeopardy challenge based on uncharged conduct simply because it could have been charged.”). Here, the State charged that both the solicitation and the traveling offenses occurred on February 9, 2013, thus bringing this case within the rule announced in Shelley. As we did in Shelley, we certify conflict with State v. Murphy, 124 So.3d 323 (Fla. 1st DCA 2013).

Traveling conviction affirmed; soliciting conviction and sentence reversed; conflict certified.

LaROSE and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    Damian DAMIAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-801.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2014.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to any right Damian Damian may have to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

ALTENBERND, SILBERMAN, and KELLY, JJ., Concur.


author: SHEPHERD, C.J.

text:
    GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, Petitioner, v. 2000 ISLAND BOULEVARD CONDOMINIUM ASSOCIATION, INC., et al., Respondents.
    No. 3D14-2625.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2014.

      Carlton Fields Jordan Burt and Wendy F. Lumish, Miami; Mound Cotton Wollan & Greengrass, and Ira S. Bergman and Jason M. Chodos, Fort Lauderdale, for petitioner.
    Bambi G. Blum; Mintz Truppman and Mark J. Mintz; McLuskey & McDonald and John W. McLuskey, Miami, for respondents.
    Before SHEPHERD, C.J., and SALTER and LAGOA, JJ.
   SHEPHERD, C.J.

It has long been said in the courts of this state that “every litigant is entitled to nothing less than the cold neutrality of an impartial judge.” State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 618, 615 (1939). Regrettably, the trial judge in this case has abandoned his post as a neutral overseer of the dispute between the parties, compelling us to grant Great American Insurance Company’s Petition for a Writ of Prohibition.

This case arises out of an insurance coverage dispute between 2000 Island Boulevard Condominium Association, Inc. and Great American Insurance Company of New York over whether a “Difference in Conditions” insurance policy issued by Great American affords the Association coverage for falling concrete and slab deflection, alleged to have occurred in the condominium parking garage. The Association filed its complaint on April 1, 2014. The case was assigned to Miami-Dade Circuit Court Judge David C. Miller. On September 30, Great American filed its Answer and Affirmative Defenses. The affirmative defenses raised various exclusions and conditions contained in the insurance policy, including that Great American was unable to finalize its coverage position because the Association had failed to provide documents and refused to appear for an examination under oath. Operating on an “expedited” case management schedule, the trial court struck Great American’s legal defenses three weeks later, on October 22, 2014, as “legally invalid.” The remarks upon which Great American relies in support of disqualification were made at the October 22 hearing, and at a hearing held one week earlier, on October 15, on Great American’s motion for a protective order to limit discovery of its pre-litigation, engineering consultant.

At the time of these hearings, no summary judgment motions had been filed, nor had a single witness ever appeared before the court. Indeed, at the time of the October 15 hearing, not a single deposition had been taken in the case. Yet, despite the complete lack of any evidence before the court, the following exchange took place between the court and Great American’s counsel at the October 15 hearing:

THE COURT: Well, it doesn’t feel like we’re in an abandonment situation. We’ve got a lawsuit filed. We’ve got an insurance company that’s not paying a claim. We’ve got them basing that decision, in part, upon this expert that went out there, and I imagine he was maybe perhaps even involved in putting together the list of things they still needed. You said you would give them a report when they got all of that information to you. It strains all credulity for me to believe that your carrier has not denied coverage based on the information they know now.
[DEFENSE COUNSEL]: But they have not.
THE COURT: Then fork over the money.

(Emphasis added.) This startling remark, in and of itself, is sufficient to compel disqualification. Whether Great American is required to “fork over the money” is the entirety of what is at issue in this case. “While a trial judge may form mental impressions and opinions during the course of the case, the judge is not permitted to pre-judge the case.” Kates v. Seidenman, 881 So.2d 56, 58 (Fla. 4th DCA 2004); see also Minaya v. State, 118 So.3d 926, 929 (Fla. 5th DCA 2013); State v. Ballard, 956 So.2d 470 ,(Fla. 2d DCA 2007). We agree with Great American that this remark alone, made without the benefit of any affidavits, sworn testimony or other competent evidence, is sufficient to leave Great American with an objectively reasonable fear it will not receive a fair trial. See Williams v. Batch, 897 So.2d 498 (Fla. 4th DCA 2005) (holding disqualification required when judicial comments signal predisposition made prior to consideration of evidence).

Additional remarks made by the trial judge at the October 15 hearing also compel disqualification. For example, an exchange took place after Great American’s counsel stated that Great American did not have an opportunity to complete its investigation before the Association filed suit. Regardless of whether the court believed or disbelieved this statement, it had an obligation to remain impartial. Yet, bias was again displayed in the following exchange:

THE COURT: You can’t read the June 26, 2012 letter without saying this is a denial letter. “We’re not sure,” you can “we’re not sure” until the cows come home. And, in fact, you won’t be sure until the jury speaks, and then you won’t be sure until the Appellate Court rules, and then you won’t be sure until the Supreme Court rules after that. Then even if they rule against you, you won’t be sure that they’re right. You’ll claim that they’re wrong. That’s just the nature of litigation. That’s how it works.
Listen, if it were — if I were being-asked, I would sanction you for making a specious argument that this person shouldn’t be deposed and opinions fully addressed. You’ve taken a position, you’re involved in litigation, you’ve denied coverage, you’ve stated and specified things. It’s doggone concrete spalling, up or down. This is not rocket science. This is something that construction’s been dealing with for many, many, many years. Ever since they put a piece of steel inside concrete they’ve been having these issues. It’s not a big deal_
THE COURT: And maybe it is for a lawyer, but I can tell you for an expert it’s not. This guy was sent out as an expert. The claim was, for all intents and purposes, denied. Assurances were given once, we get all of these records we will give you his report. But now we know that he was probably told don’t do a report, because otherwise they do reports.
So I would instruct that he prepare a report in anticipation of his deposition and that he answer all questions that he has — you can’t keep claiming you’re going to hire new experts to keep a claim alive and a claim from being paid.
[DEFENSE COUNSEL]: Well, we’re defending a lawsuit, and the experts are for a lawsuit.

(Emphasis added.)

In addition to the trial judge’s palpable distrust of Great American’s willingness to render a coverage determination, the court here goes a step further by expressing a contemptuous view of Great American (or its counsel’s) willingness to accept judicial pronouncements. The Court casually states, “That’s just the nature of litigation. That’s how it works.” A court of law should not be in the business of casting aspersions on the ability of a party or its counsel to accept the wisdom of this state’s appellate courts and make unsubstantiated predictions of how that party will process those decisions.

The court’s unsolicited legal advice to plaintiffs counsel is also problematic. This advice came in the form of the following statement: “Listen, if it were—if I were being asked, I would sanction you for making a specious argument that this person shouldn’t be deposed and opinions fully addressed.” (Emphasis added.) A trial judge crosses the line when he becomes an active participant in the adversarial process, i.e., gives “tips” to either side. See Chastine v. Broome, 629 So.2d 293, 295 (Fla. 4th DCA 1993). The issue of sanctions was not before the court. Yet, the court essentially advised plaintiff that, should he request sanctions, the court would award them. The implication of the court’s statement is clear—plaintiffs counsel should move for sanctions because the court will grant the motion.

The court then went further still in offering legal advice to the plaintiff by stating “If it were me, I would still ask questions of an opinion nature and get the statements regarding privilege on the record.” Such legal advice, standing alone, is sufficient to compel disqualification. See, e.g., Blackpool Assocs., Ltd. v. SM-106, Ltd., 839 So.2d 837, 838 (Fla. 4th DCA 2003) (“We grant relief in connection with the trial court’s order that denied disqualification as the trial court provided Blackpool/Kevin Murphy with legal advice and suggestions.”); Shore Mariner Condo. Ass’n v. Antonious, 722 So.2d 247, 248 (Fla. 2d DCA 1998) (“Trial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle.”); Leigh v. Smith, 503 So.2d 989, 991 (Fla. 5th DCA 1987) (“Certainly an allegation that a judge assisted the opposing attorney in the trial of the ease by ‘signal-ling’ is sufficient, by itself, to warrant disqualification.”).

Next, we address the court’s insinuation Great American owes coverage for the Association’s claim and its assertion that Great American is “keepting] ... [the] claim from being paid” by expert-shopping. (Emphasis added.) As noted above, the court stated at the October 15 hearing that “you can’t keep claiming you’re going to hire new experts to keep a claim alive and a claim from being paid.” This statement is particularly problematic coming from a judge presiding over a coverage dispute. Rather than having an open mind concerning the possibility the claim, in fact, may not be covered by the policy, the court essentially has found the claim is covered and has accused Great American of hiring new experts to avoid paying it. Yet, at this stage of the litigation, the court had absolutely no factual basis for making any kind of coverage determination. In fact, as the court has acknowledged, Mr. Thomas, Great American’s pre-litigation engineering consultant, never even issued a report. The court speculated, without the slightest evidentia-ry basis, that Great American told Mr. Thomas not to prepare a report, because “otherwise they do reports.”

Finally, we address the court’s statement, “It’s doggone concrete spall-ing, up or down. This is not rocket science. This is something that construction’s been dealing with for many, many, many years. Ever since they put a piece of steel inside concrete they’ve been having these issues. It’s not a big deal.... ” (Emphasis added.) Again, without any record evidence before it, the court gave its view of what the facts will show and how an expert will -view those facts, namely that (a) the damage at issue is “concrete spalling”; (b) the construction industry has been dealing with this issue for “many, many, many years”; and (c) construction experts will not find “concrete spalling” to be particularly complex. When a court transforms itself into one of the litigants, it creates a well-founded fear that a party will not be dealt with in a fair and impartial manner. See Chillingworth v. State, 846 So.2d 674, 676 (Fla. 4th DCA 2003) (“The court’s quest for information in this case crossed the line of neutrality”). So too has the trial judge crossed the line in this case. His remarks confirm the court has pre-judged the facts of this case. Under these circumstances, disqualification is warranted. See Minaya, 118 So.3d at 929; Kates, 881 So.2d at 58.

At the October 22 hearing, the court continued improperly to make unsupported factual findings based upon a barren record. For example, the court made the following statements:

THE COURT: We all know, don’t we all know that the spalling is caused by moisture getting into the rebar and the rebar rusting and expanding and cracking the concrete off.
[DEFENSE COUNSEL]: And if [plaintiffs counsel] is willing to stipulate to this—
[THE COURT]: It’s just like if you drop a ball out of a tree it’s going to hit the ground.
[DEFENSE COUNSEL]: Perhaps they know that this piece over here fell down two years ago and wouldn’t be covered under this policy. There’s also-
[THE COURT]: Then you may want to go back to the inspection when you guys said it was fine or somebody on your behalf.
[DEFENSE COUNSEL]: I’m sorry?
[THE COURT]: They talked about an inspection before the policy was written.
[DEFENSE COUNSEL]: What we’re saying is we don’t know what the Plaintiff is claiming. There’s the pool deck-
[THE COURT]: They’re claiming everything, that’s what they always do.

Regrettably, these statements, which sound more like they are coming from a party who is arguing the case rather than from a judge who has not taken a single piece of evidence, lend further credence to Great American’s belief that this court has pre-judged the facts of this case, is injecting his personal opinions on causation into the case, and has a bias in favor of the plaintiff.

Finally, at the October 22 hearing, the court again took up the issue of whether a June 26, 2012, letter sent by Great American was (as Great American contends) a reservation of rights letter or (as plaintiff contends) a denial letter. On this issue, the court stated, “I think it’s a denial. I mean, the absence of anything else — well, it’s an unkept promise of a denial after explaining why it’s not giving coverage. How is that for fancy talk for we’re not paying you. To me, it’s the same thing, we’re not giving you money.” The “fancy talk” comment is yet another display of the court’s animosity towards Great American or its counsel. But this comment reasonably also may be interpreted as something even more problematic — a suggestion that Great American was somehow being deceptive by using “fancy talk” to disguise a “denial letter” as a “reservation of rights letter.” The implication that Great American has been less than forthright with the Association by using “fancy talk” to obscure the meaning of its letter is further grounds for disqualification. See generally DeMetro v. Barad, 576 So.2d 1353, 1355 (Fla. 3d DCA 1991) (stating disqualification is appropriate where there is “a clear implication that the judge will not believe the complaining party’s testimony in the future”).

We acknowledge some of the trial court’s comments may have been intended as expressions of wit or erudition on his part. However, the question of disqualification focuses not on what the judge intended, but rather how the message is received and the basis of the feeling. See Livingston v. State, 441 So.2d 1083, 1086 (Fla.1983) (“[I]t is not a question of how the judge feels; it is a question of what feeling resides in the affiant’s mind and the basis for such feeling.”) quoting State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 697-98 (1938). In the words of the sixteenth century statesman and jurist, Sir Francis Bacon (1561-1626):

Judges ought to be more learned than witty; more reverend (sic) than plausible; and more advised than confident. * * * Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well tuned cymbal.

“Of Judicature,” Francis Bacon Essays, pub. by J.M. Dent & Sons, 1958, Essay LVI, pp. 162,163.

Petition granted.

      . We review the trial court's order denying disqualification under a de novo standard of review. Wade v. Wade, 123 So.3d 697 (Fla. 3d DCA 2013).

      . This "person" is Samuel Thomas, Great American's pre-litigation, engineering consultant. At issue in this hearing was, among other things, Great American's motion for protective order pertaining to Mr. Thomas’ opinions, which Great American argued were protected work product. In pre-litigation communication, Great American advised the Association that its expert would produce a report and the report would be provided upon "receipt from the insured of information and documents requested from it by Great American.” Great American asserts the filing of the instant law suit prematurely terminated its claims-handling obligations, including what it considered to be a conditional agreement to generate a report from its consultant. Great American’s motion presented at least a color-able work product doctrine argument. See Fla. R. Civ. P. 1.280(b)(5)(B) (A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only ... upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.). *

      . We acknowledge the court’s statement in this regard ordinarily would not be sufficient to warrant disqualification. However, “legal sufficiency” is determined by analyzing the totality of the grounds asserted. See Zimmerman v. State, 114 So.3d 1011, 1011 (Fla. 5th DCA 2012).

      . The June 26 letter reads as a standard reservation of rights letter, citing potentially applicable policy defenses and exclusions, and requesting information (albeit considerable in length and breadth) for its use in making a coverage determination. The word “denial” appears nowhere in the letter.


text:
    Gracia P. GIMENO, Appellant/Cross-Appellee, v. Naltan RIVERA, Appellee/Cross-Appellant.
    No. 3D14-774.
    District Court of Appeal of Florida,
    Dec. 17, 2014.

      Langbein & Langbein and Evan J. Langbein, Miami, for appellant/cross-ap-pellee.
    Cozen O’Connor and Anaysa Gallardo Stutzman, for appellee/cross-appellant.
    Before SHEPHERD, C.J., and SUAREZ and ROTHENBERG, JJ.
   SHEPHERD, C.J.

This is an appeal by Gracia Gim-eno from a downward modification of Nal-tan Rivera’s child support obligation in a post-paternity modification proceeding, based upon the fact that Rivera has fathered three more children by another woman after having fathered a child with Gimeno. It is settled law that a party moving for a downward modification of child support has the burden of proving (1) a substantial change of circumstances, (2) not contemplated at the time of the final judgment of dissolution or, as in this case, an order determining paternity, (3) that is sufficient, material, involuntary, and permanent in nature. Overbey v. Overbey, 698 So.2d 811, 814 (Fla.1997); Burkley v. Burkley, 911 So.2d 262, 268 (Fla. 5th DCA 2005); Laliberte v. Laliberte, 698 So.2d 1291, 1293 (Fla. 5th DCA 1997). Begetting a child is not an involuntary act. Absent some special circumstance, the presence of subsequent children will not justify a deviation from child support guidelines. See § 61.12(b), Fla. Stat. (2013); State, Dep’t of Revenue v. Feeney, 689 So.2d 350, 351-352 (Fla. 2d DCA 1997); Robinson v. Robinson, 657 So.2d 958, 960 (Fla. 1st DCA 1995).

For the foregoing reason, we reverse the order of the trial court and remand this case for further proceedings consistent with this opinion.

      . Upward modifications of child support are treated differently. See § 61.12(b), Fla. Stat. (2013); Pohlmann v. Pohlmann, 703 So.2d 1121,1124 (Fla. 5th DCA 1997).


text:
    Jeffrey Scott ROLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-985.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2014.
    Jeffrey Scott Roland, Daytona, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The State concedes in its response to this court’s order to show cause that this matter must be reversed and remanded for further consideration of appellant’s rule 3.858 motion for DNA testing. This cause is remanded for the trial court to consider the merits of that motion. In doing so, the trial court may also consider, if appropriate, its earlier ruling on appellant’s petition for release and transportation of evidence for DNA testing, and motion for order directing buccal swabbing.

Reversed and remanded.

WARNER, GERBER and LEVINE, JJ., concur.


author: BENTON, J.

text:
    Marc V. MILLER, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D14-1618.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2014.
    Marc V. Miller, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Jennifer Parker, General Counsel, and Beverly Brewster, Assistant General Counsel, Tallahassee, for Appellee.
   BENTON, J.

We have for review an order denying a petition for writ of mandamus, in which appellant alleged that one of two consecutive sentences imposed in 1982 had expired by the time he was released on parole. The mandamus petition alleged that the Department of Corrections (DOC) erroneously forfeited gain time earned on the expired sentence upon revocation of his parole, illegally extending the time he had yet to serve. See Orosz v. Singletary, 693 So.2d 538, 539 (Fla.1997) (holding that a prisoner, “who has fully completed a sentence because of gain time awarded under a proper interpretation of the statutes applicable to his sentences, has a vested right in that gain time”); Morton v. Fla. Dep’t of Corr., 957 So.2d 667, 669 (Fla. 1st DCA 2007) (“Since petitioner had finished serving his first sentence and was serving his second sentence when he was released on parole, the subsequent revocation of petitioner’s parole permitted the Department to forfeit only the basic gain-time awarded on the second sentence.”).

Proceedings below began October 31, 2012, when appellant filed a petition for writ of mandamus in the Second Circuit. In response to an order to show cause why relief should not be granted, the DOC filed a motion to dismiss on grounds of res judicata, attaching a habeas petition previously filed by appellant in the Fifth Circuit on November 21, 2011, and an order denying the habeas petition entered on December 12, 2011. The habeas petition alleged that the DOC forfeited gain time from an expired sentence. Appellant argues that it was improper for the DOC to raise the defense of res judicata in a motion to dismiss and that, even if properly raised, res judicata should not bar consideration of his mandamus petition, because his ha-beas petition was not adjudicated on the merits by the Fifth Circuit.

Under the doctrine of res judica-ta, a subsequent action is barred if there is (1) identity of the thing sued for, (2) identity in the cause of action, (3) identity of persons and parties to the actions, and (4) identity of the quality or capacity of the person for or against whom the claim is made. See Weaver v. McNeil, 42 So.3d 805, 805-06 (Fla. 1st DCA 2010). “[R]es judicata bars relitigation in a subsequent cause of action not only of claims raised,but also [of] claims that could have been raised.” Topps v. State, 865 So.2d 1253, 1255 (Fla.2004). However, “for a matter to have res judicata ejfect, the disposition of a writ petition must be on the merits.” Id. at 1256 (emphasis in original).

Denying the habeas petition as the Fifth Circuit did is consistent with the Fifth Circuit’s failing to reach appellant’s contention under Orosz on the merits. Although appellant’s prior habeas petition sought his immediate release, it did not allege the expiration of both sentences under which appellant was originally incarcerated. This omission would have justified the Fifth Circuit’s denial of habeas relief without reaching the merits of the claim he makes in the present case. The Fifth Circuit might have dismissed the ha-beas petition with leave to file a mandamus petition, or simply transferred the petition to the Second Circuit for adjudication as a mandamus petition. Cf. Stanley v. Moore, 744 So.2d 1160, 1161 (Fla. 1st DCA 1999) (reversing the dismissal of a mandamus petition and remanding with directions for the circuit court to treat the petition as a habeas petition and transfer it to the appropriate court). All along, the proper vehicle for appellant’s claim has been a petition for writ of mandamus. See Bush v. State, 945 So.2d 1207, 1210 (Fla.2006); see also Stanley, 744 So.2d at 1161 (stating that a petition alleging facts which would arguably entitle the petitioner to immediate release was a habeas petition).

Pretermitting the question of whether the DOC raised res judicata in a manner permitted by the Florida Rules of Civil Procedure, the wording of the Fifth Circuit’s decision does not establish that appellant’s claim was adjudicated on the merits. The Fifth Circuit’s order denying habeas relief, apparently without an evi-dentiary hearing, provided, in part:

General allegations are insufficient to demonstrate entitlement to relief.
3. Gain time and release are revoked for an Inmate who violates a condition of release prior to the expiration of their full, pronounced prison term, and the Inmate may be reincarcerated for the balance of their term. In order to restore gain time, the Inmate’s sole remedy is through the administrative grievance process. [A] trial court lacks authority to direct Department of Corrections (DOC) to award administrative gain time or provisional credits. The authority to regulate gain time resides with the Department of Corrections.
4.. In this case, Petitioner has failed to show probable cause that he is being illegally detained. As noted above, a trial court lacks authority to direct the Department of Corrections to award administrative gain time or provisional credits.
[T]he Petitioner’s Emergency Application for Writ of Habeas Corpus is DENIED.

(internal citations and boldface omitted). A fair reading of the foregoing is that no basis on which the Fifth Circuit acted necessarily entailed an adjudication of the merits of appellant’s claim. See also Thomson McKinnon Sec., Inc. v. Slater, 615 So.2d 781, 788 (Fla. 1st DCA 1993) (noting that the supreme court has held that the “doctrine [of res judicata] is not applicable to a judgment which might have rested on either of two grounds, only one of which goes to the merits”).

As a general matter, we have no quarrel with the proposition that restating a habe-as claim, which has been denied on the merits, as a mandamus claim should not insulate the claim from issue preclusion in appropriate circumstances. In the present case, however, it is by no means clear that appellant’s petition for writ of habeas corpus was adjudicated on the merits when the Fifth Circuit denied it. Accordingly, we reverse and remand for further proceedings, and an adjudication on the merits. As to the merits of appellant’s claims, we express no view. Their resolution may depend on the order in which appellant’s consecutive sentences were required to be served when pronounced. Neither the sentencing transcript nor the written sentence is part of the record on appeal.

Reversed and remanded.

WOLF and MAKAR, JJ., concur.


author: VAN NORTWICK, J. BENTON, J.,

text:
    CONSUMER RIGHTS, LLC, Appellant, v. BRADFORD COUNTY, Florida, Appellee.
    No. 1D14-2049.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2014.

      Robert Earl Case, Jr., Lake City, for Appellant.
    William E. Sexton, Bradford County Attorney, Starke, for Appellee.
   VAN NORTWICK, J.

Consumer Rights, LLC, challenges the trial court’s order granting Bradford County’s motion to dismiss the appellant’s complaint for enforcement of the Florida Public Records Act, requesting a writ of mandamus and injunctive relief. We find merit in the appellant’s challenge of the trial court’s dismissal of the petition for writ of mandamus and, accordingly, reverse and remand on that issue. We affirm the trial court’s dismissal of the claim for injunctive relief without further comment.

Factual and Procedural Background

On October 30, 2013, Consumer Rights e-mailed a public records request to Bradford County pursuant to Chapter 119, Florida Statutes, requesting “a complete list of all the work email addresses of all the employees that work for your county that have email addresses.” Consumer Rights’ request explained:

If you don’t already have such a list put together, I am not asking you to create the list per se. I am simply requesting that you produce to me all of the individual public records (email addresses) you have that, when put together, would make up a list of all the work email addresses of all the employees of your county that have work email addresses.

Two and a half months later, on January 17, 2014, after receiving no response to the request, Consumer Rights filed a complaint for enforcement of the Public Records Act and a request for a hearing, which included requests for a writ of mandamus and an injunction. The complaint alleged, among other things, that Bradford County received the records request prior to filing the lawsuit; the request asked for “public records” as defined by section 119.011, Florida Statutes; the records requested existed at the time the request was received; and as of the time of the filing of the lawsuit, Bradford County had not acknowledged the records request, had not responded to the records request, had not produced any of the public records requested via the records request, and had not provided any response to the plaintiff that stated whether or not Bradford County will produce the requested records.

On January 31, 2014, three months after the records request was received and two weeks after Consumer Rights filed its' action, Bradford County sent a list of email addresses for all employees, explaining that the County created the requested list even though Chapter 119 does not require an agency to create a public record if such a record does not already exist: “To be clear ... this list was specifically compiled based upon your request, contrary to the requirements of Chapter 119, Florida Statutes.” Consumer Rights acknowledged receiving the list of email addresses.

On the same date, January 31, 2014, Bradford County filed a motion to dismiss Consumer Rights’ complaint for a hearing and enforcement by a writ of mandamus, asserting in part that at the time of the public records request, it was not in possession of any public records which satisfied the request: “The Defendant was not at any time following its receipt of the Plaintiffs public records request, until January 31, 2014, in possession of any public record(s) which contained, listed or otherwise compiled the electronic mail addresses of their employees.”

Following a March 5, 2014, hearing, the trial court issued an “Order Requiring Submission of Supplemental Materials Regarding Defendant’s Motion to Dismiss.” The trial court ruled that it would not require another hearing on the County’s motion to dismiss, but instead, it would consider the motion based on the supplemental materials submitted. In response to the order, both parties submitted affidavits to support their positions.

On April 9, 2014, without a hearing, the trial court entered an order dismissing Consumer Rights’ complaint based upon its findings that “there were no public records in the possession of the Defendant to respond to Plaintiffs request,” and “Defendant ultimately created a document in order to respond to the request.” The court denied the request for mandamus as moot because “the records have been provided.”

Analysis

Whether a complaint is sufficient to state a cause of action is an issue of law; thus, a trial court’s order of dismissal is subject to de novo review. See Brewer v. Clerk of Circuit Court, Gadsden County, 720 So.2d 602 (Fla. 1st DCA 1998). “In reviewing the trial court’s order denying appellant’s motion to dismiss, we must determine whether the allegations, from the four corners of the complaint, sufficiently state one or more claims for relief. We are obliged to accept all well-pled allegations of the complaint as true.” Id. at 603 (quoting, McKinney-Green, Inc. v. Davis, 606 So.2d 393, 394 (Fla. 1st DCA 1992) (citations omitted)). To be entitled to mandamus relief, “the petitioner must have a clear legal right to the requested relief, and the respondent must have an indisputable legal duty to perform the requested action.” See, e.g., Huffman v. State, 813 So.2d 10, 11 (Fla.2000). The duty must be a ministerial one, rather than a discretionary one, and the act being required must be directed by law. See Sancho v. Joanos, 715 So.2d 382, 385 (Fla. 1st DCA 1998). Disclosure of public records is not a discretionary act, it is mandatory and directed by Chapter 119. See Promenade D’Iberville, LLC v. Sundy, 145 So.3d 980, 983 (Fla. 1st DCA 2014).

Section 119.07(l)(c), Florida Statutes (2013), requires both prompt acknowl-edgement of the request and a prompt good faith response: “A custodian of public records ... must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith.” Section 119.07(1) provides that a delay in making public records available is only permissible under limited circumstances. Section 119.07(l)(c) permits a delay for a records custodian to determine whether the records exist; however, unjustified delay in making non-exempt public records available violates Florida’s public records law. See, e.g., Barfield v. Town of Eaton-ville, 675 So.2d 223, 224 (Fla. 5th DCA 1996) (“An unjustified delay in complying with a public records request amounts to an unlawful refusal under section 119.12(1)”). It is not only the length of the delay, but also whether the delay was unreasonable or excused under Chapter 119. See Office of State Attorney for Thirteenth Judicial Circuit of Florida v. Gonzalez, 953 So.2d 759, 765 (Fla. 2d DCA 2007). The basis of the request for mandamus relief by Consumer Rights was to secure public records pursuant to Chapter 119. The records request was for “a complete list of all of the work email addresses” of “all of the employees that work for [Bradford County].” The complaint for enforcement of the request was filed about two and one-half months after the request had been made, and it set forth very specific allegations. Consumer Rights’ claim for mandamus relief was sufficiently pled by alleging that it had made a specific request for public records, the County received the request, the requested public records existed at the time the request was received, and the County improperly refused to produce the records in a timely manner. See Grapski v. City of Alachua, 31 So.3d 193, 196 (Fla. 1st DCA 2010) (citing Hillier v. City of Plantation, 935 So.2d 105,106 (Fla. 4th DCA 2006)). Once a cause of action for mandamus is sufficiently pled, the plaintiff is entitled to a judicial determination of the rights at issue. See Meadows Community Ass’n, Inc. v. Russell-Tutty, 928 So.2d 1276, 1279 (Fla. 2d DCA 2006).

Bradford County argued in its motion to dismiss that Consumer Rights’ complaint failed to state a cause of action because there was no existing list of employee’s email addresses as requested. Bradford County also asserted that it had not refused access to the list because it created a list to comply with the request and submitted the list to Consumer Rights on January 31, 2014. However, the record demonstrates that the list created by the County was submitted to Consumer Rights three months after the records request had been made and two weeks after the complaint for enforcement had been filed. In Promenade D’Iberville, LLC v. Sundy, 145 So.3d 980, 983 (Fla. 1st DCA 2014), this court held that the public entity’s delay in providing non-exempt public records violated the Public Records Act where the agency did not acknowledge the request or turn over the requested public records until two months after the records had been requested. There, this court held that “production of the records on the eve of the enforcement hearing did not cure its unjustified delay.” Id. at 984. Thus, under Promenade D’Iberville, the County’s delay in responding to Consumer Rights’ record request was unjustified unless the delay was excused under Chapter 119.

Because the complaint in this case properly stated a cause of action for mandamus relief and there was a dispute as to at least one of the allegations in the complaint, it was error for the trial court to dismiss the complaint without a hearing on the allegations by determining without a hearing that mandamus was moot because “[Bradford County] ultimately created a document in order to respond to the request.” See Meadows Community Ass’n, Inc. v. Russell-Tutty, 928 So.2d 1276, 1279 (Fla. 2d DCA 2006).

We hold that the trial court erred in failing to conduct a hearing to determine whether the delay to produce the requested records violated Chapter 119. Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.

CLARK, J., concurs, and BENTON, J., concurs in part, and dissents in part, with opinion.

BENTON, J.,

concurring in part and dissenting in part.

I would reverse and remand for further proceedings, including on the claim for an injunction. Merely furnishing the public records requested more than two months after they were requested does not render the case moot. See Mazer v. Orange Cnty., 811 So.2d 857, 859-60 (Fla. 5th DCA 2002) (holding “the fact that the requested documents were produced ... after the action was commenced, but prior to final adjudication ... does not render the case moot”); Soud v. Kendale, Inc., 788 So.2d 1051, 1053 (Fla. 1st DCA 2001); Puls v. City of Port St. Lucie, 678 So.2d 514, 514 (Fla. 4th DCA 1996); Wisner v. City of Tampa Police Dep’t, 601 So.2d 296, 298 (Fla. 2d DCA 1992).

The case was decided below on a motion to dismiss, which means that the court’s finding that “there were no public records in the possession of the Defendant to respond to Plaintiffs request” when it was received was an improper basis for decision. The complaint alleged: “The public records ... existed at the time Defendant received the records request.” The rule is that the well-pleaded allegations of the complaint should be deemed true for purposes of deciding a motion to dismiss. See Republic Servs. of Fla., Ltd. P’ship v. Workers Temp. Staffing Inc., 123 So.3d 650, 653 (Fla. 4th DCA 2013); Havens v. Coast Fla., P.A., 117 So.3d 1179,1180 (Fla. 2d DCA 2013); Rhea v. Dist. Bd. of Trs. of Santa Fe Coll., 109 So.3d 851, 854 (Fla. 1st DCA 2013); Johnson v. Jarvis, 74 So.3d 168,170 (Fla. 1st DCA 2011).

Any factfinding purportedly justifying the dismissal of the prayer for injunctive relief was also procedurally improper. See Andrew v. Shands at Lake Shore, Inc., 127 So.3d 1289, 1290 (Fla. 1st DCA 2013) (holding “the allegations in the • sixth amended complaint should be taken as true without regard to Appellant’s ability to prove them”); Diplomat Props. Ltd. P’ship v. Tecnoglass, LLC, 114 So.3d 357, 363 n. 2 (Fla. 4th DCA 2013); Wells Fargo Bank, N.A. v. Bohatka, 112 So.3d 596, 602 (Fla. 1st DCA 2013).

      . On appeal, Bradford County also argues that its response was delayed because it was unclear in Consumer Rights’ e-mailed public records’ request just what public records it wanted. We reject that argument, finding it refuted by the record.


text:
    Eddie C. DAVIS Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1496.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2014.

      Eddie Davis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, for Appellee.
   PER CURIAM.

Eddie C. Davis, Jr., appeals the circuit court’s order, entered March 4, 2014, summarily denying his motion for postconviction relief. Appellant entered a plea of guilty on November 8, 2010 and moved to withdraw the plea prior to sentencing. Fla. R. Crim. P. 3.170(f). The trial court conducted an evidentiary hearing on the motion to withdraw, found that the plea was entered knowingly and voluntarily, and by order entered February 24, 2011, denied the motion to withdraw the plea. Based on the plea of guilty, the trial court entered the judgment and sentence on April 1, 2011 and the judgment and sentence were affirmed on direct appeal. Davis v. State, 71 So.3d 119 (Fla. 1st DCA 2011). On September 19, 2012, Appellant filed the motion for postconviction relief leading to the order now on appeal.

The order on appeal was entered without an evidentiary hearing because the circuit court determined that each of the issues were either legally insufficient or that portions of the record attached as exhibits conclusively showed that Appellant was entitled to no relief. Fla. R. Crim. P. 3.850(f)(5). The circuit court addressed each of Appellant’s thirteen grounds for relief and explained in its order why each ground was either legally insufficient, with citations to legal authority, or how each ground was refuted by the record, with attached exhibits to support the court’s conclusions. On appeal, Mr. Davis asserts nine issues, each of which he previously raised at the trial level and each of which were addressed in the circuit court’s final order.

“To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.” Peede v. State, 748 So.2d 253, 257 (Fla.1999); see also Fla. R. App. P. 9.141(b)(2); Nordelo v. State, 93 So.Bd 178, 182 (Fla.2012).

Mr. Davis does not argue on appeal that the circuit court erred in any of its findings or conclusions on his asserted grounds for postconviction relief. He does not challenge the legal authorities relied on by the court, nor does he dispute the sufficiency of the portions of the record attached to the order to conclusively show that he is entitled to no relief on the respective grounds. Instead, he re-asserts nine of the grounds he raised at the trial level and repeats the arguments he made in the circuit court.

As stated in Steele v. Florida Unemployment Appeals Commission, 596 So.2d 1190, 1191 (Fla. 1st DCA 1992):

The appellate court is a court of review, not simply another forum to which the dissatisfied litigant may submit his or her list of grievances in hopes of a more favorable outcome. For the most part, the appellate court is concerned with questions pertaining to whether or not the proceedings below were carried out in accordance with the law. It is generally not a question of whether the appellate court agrees or disagrees with the result reached in a particular ease; but whether that result was reached in a fair manner and was within the jurisdiction and authority of the court or agency whose decision is being appealed.

Rule 9.141(b)(2)(d), Florida Rules of Appellate Procedure, requires reversal of an order denying postconviction relief without an evidentiary hearing if the order fails to comply with the applicable subsection of rule' 3.850(f) — in this case rule 3.850(f)(5), requiring the postconviction court’s determination that the grounds asserted can be conclusively resolved either as a matter of law (with citations) or by reliance on records of the case (with attached copies). However, once these thresholds are met by the order on appeal, this Court’s review function is the same as for other appeals. Accordingly, “[t]rial court rulings, like judgments and sentences, are generally presumed correct. These bedrock legal principles should not change when a pro se litigant appeals the denial of a postconviction motion.” Prince v. State, 40 So.3d 11, 12 (Fla. 4th DCA 2010). Rule 9.141(b)(2) does not require briefs for appeals of summary denials of postconviction relief under rule 3.850. But we agree with the Fourth District Court of Appeal that “[w]hen the pro se appellant opts to file a brief, we believe that, as in all appeals, the burden rests on the appellant to demonstrate reversible error. An appellant who presents no argument as to why a trial court’s ruling is incorrect on an issue has abandoned the issue — essentially conceded that denial was correct.” Prince, 40 So.3d at 13.

The order on appeal is thoroughly detailed and supports each of the circuit court’s determinations with either legal authority showing that the ground for relief is proeedurally barred or legally meritless, or with specifically referenced portions of the record — attached as exhibits A through Q — which contradict Mr. Davis’ allegations of fact regarding his plea and the effectiveness of defense counsel’s assistance. Mr. Davis’ rearrangement of several of the same arguments he presented at the trial level, with no reference to any error or insufficiency in the circuit court’s order, fails to establish any error on appeal.

The order on appeal is therefore AFFIRMED.

PADOVANO, THOMAS, and CLARK, JJ., concur.

      . This appeal is Appellant's sixth action in this Court stemming from State v. Davis, No.2009 CF 016440 (4th Jud. Cir., Duval Cnty.). See Davis v. State, No. 1D11— 1819 (Fla. 1st DCA 2011) (dismissed); Davis v. State, No. 1D11-2043 (Fla. 1st DCA 2011) (voluntarily dismissed); Davis v. State, 71 So.3d 119 (Fla. 1st DCA 2011); Davis v. State, No. 1D13-5262 (Fla. 1st DCA 2014) (dismissed); Davis v. State, No. 1D13-5991 (Fla. 1st DCA 2014) (denying mandamus).

      . Appellant subsequently filed three additional petitions or motions, eventually construed by the circuit court as postconviction motions. The circuit court did not explicitly deem these subsequent filings successive motions under rule 3.850(h), Florida Rules of Criminal Procedure, but disposed of them in a single order entered March 6, 2014, two days after the order on appeal in this case. The direct appeal of the March 6, 2014 order is pending in this Court as case number ID 14-2364.


author: VAN NORTWICK, J.

text:
    Marcus Lamar MORROW, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1593.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Marcus Lamar Morrow seeks review of - the trial court’s denial of his petition for a writ of habeas corpus. Because the undis-. puted expert medical opinion in the record precludes Morrow’s involuntary commitment and because Morrow’s continued commitment was ordered without the benefit of an outpatient treatment plan, we reverse and remand for further proceedings.

We present the facts as asserted in Morrow’s habeas petition filed below. Morrow was arrested and booked into custody for failing to comply with sexual offender registration requirements. Morrow was deemed mentally incompetent to proceed and was remanded to the care of the Department of Children and Families (DCF) to restore his competency. Subsequently, Morrow was evaluated by two medical experts who each opined that Morrow had been restored to competency, but was legally insane at the time of the charged offense; that he did not meet the criteria for involuntary commitment; and that he should be conditionally released. Both experts also recommended that Morrow be placed in an assisted living facility to ensure he continues to receive appropriate medication and treatment.

Based on the expert medical opinions, the trial court issued an order directing that Morrow be held in custody until an appropriate placement could be found for him. After a statewide search of assisted living facilities, however, no facility would accept Morrow, given his sexual offender status and lack of any source of income. In his petition for writ of habeas corpus, Morrow argued that under the circumstances, he should be released from custody, rather than continue to be held for an indefinite period.

In the order under review, the trial court denied habeas relief, finding “that there is -no current conceivable conditional release plan that is practicable or reasonably calculated to achieve its purpose owing to the defendant’s peculiar disability and other circumstances over which the state has no control,” and citing our decision in Hill v. State, 358 So.2d 190 (Fla. 1st DCA 1978). This appeal ensued.

Review of a trial court’s ruling on a petition for writ of habeas corpus “is limited to a determination of whether the circuit court afforded petitioner due process or departed from the essential requirements of law.” Edge v. State, 893 So.2d 610, 612 (Fla. 4th DCA 2005).

Section 916.106(7), Florida Statutes (2013), provides that DCF “is responsible for the treatment of forensic clients who have been determined incompetent to proceed due to mental illness or who have been acquitted of a felony by reason of insanity.” A “forensic client” includes one who has been committed to DCF custody under section 916.13(1). § 916.106(9), Fla. Stat.

Section 916.15 sets forth the process for the commitment of a defendant acquitted of criminal charges by reason of insanity:

(2) A defendant who is acquitted of criminal charges because of a finding of not guilty by reason of insanity may be involuntarily committed pursuant to such finding if the defendant has a mental illness and, because of the illness, is manifestly dangerous to himself or herself or others.
(3) Every defendant acquitted of criminal charges by reason of insanity and found to meet the criteria for involuntary commitment may be committed and treated in accordance with the provisions of this section and the applicable Florida Rules of Criminal Procedure. The department shall admit a defendant so adjudicated to an appropriate facility or program for treatment and shall retain and treat such defendant. No later than 6 months after the date of admission, prior to the end of any period of extended commitment, or at any time the administrator or designee Shall have determined that the defendant no longer meets the criteria for continued commitment placement, the administrator or designee shall file a report with the court pursuant to the applicable Florida Rules of Criminal Procedure.
(4) In all proceedings under this section, both the defendant and the state shall have the right to a hearing before the committing court_

Section 916.16 provides the trial court with continuing jurisdiction over a defendant it either involuntarily commits or places on conditional release pursuant to section 916.17. Section 916.17 mandates:

(1) Except for an inmate currently serving a prison sentence, the committing court may order a conditional release of any defendant in lieu of an involuntary commitment to a facility pursuant to s. 916.13 or s. 916.15 based upon an approved plan for providing appropriate outpatient care and treatment. Upon a recommendation that outpatient treatment of the defendant is appropriate, a written plan for outpatient treatment, including recommendations from qualified professionals, must be filed with the court, with copies to all parties. Such a plan may also be submitted by the defendant and filed with the court with copies to all parties. The plan shall include:
(a) Special provisions for residential care or adequate supervision of the defendant.
(b) Provisions for outpatient mental health services.
(c) If appropriate, recommendations for auxiliary services such as vocational training, educational services, or special medical care.
In its order of conditional release, the court shall specify the conditions of release based upon the release plan and shall direct the appropriate agencies or persons to submit periodic reports to the court regarding the defendant’s compliance with the conditions of the release and progress in treatment, with copies to all parties.

Related and overlapping with the dictates of sections 916.15 through 916.17 are Rules 3.217 and 3.219, Florida Rules of Criminal Procedure. Rule 3.217(b) provides:

When a person is found not guilty, of the offense or is found not to be in violation of probation or community control by reason of insanity, if the court then determines that the defendant presently meets the criteria set forth by law, the court shall commit the defendant to the Department of Children and Family Services or shall order outpatient treatment at any other appropriate facility or service, or shall discharge the defendant.

Rule 3.219 sets forth the procedure for developing an outpatient treatment plan, as follows:

(a) Release Plan. The committing court may order a conditional release of any defendant who has been committed according to a finding of incompetency to proceed or an adjudication of not guilty by reason of insanity based on an approved plan for providing appropriate outpatient care and treatment. When the administrator shall determine outpatient treatment of the defendant to be appropriate, the administrator may file with the court, and provide copies to all parties, a written plan for outpatient treatment, including recommendations from qualified professionals. The plan may be submitted by the defendant. The plan shall include:
(1) special provisions for residential care, adequate supervision of the defendant, or both;
(2) provisions for outpatient mental health services; and
(3) if appropriate, recommendations for auxiliary services such as vocational training, educational services, or special medical care.
In its order of conditional release, the court shall specify the conditions of release based on the release plan and shall direct the appropriate agencies or persons to submit periodic reports to the court regarding the defendant’s compliance with the conditions of the release, and progress in treatment, and provide copies to all parties. The procedure for determinations of the confidential status of reports is governed by Rule of Judicial Administration 2.420.
(b) Defendant’s Failure to Comply. If it appears at any time that the defendant has failed to comply with the conditions of release, or that the defendant’s condition has deteriorated to the point that inpatient care is required, or that the release conditions should be modified, the court, after hearing, may modify the release conditions or, if the court finds the defendant meets the statutory criteria for commitment, may order that the defendant be recommitted to the Department of Children and Family Services for further treatment.
(c) Discharge. If at any time it is determined after hearing that the defendant no longer requires court-supervised follow-up care, the court shall terminate its jurisdiction in the cause and discharge the defendant.

In light of the expert medical opinions here, finding that Morrow did not meet the criteria for involuntary commitment, a finding unchallenged by any other evidence in the record, the trial court is precluded from validly ordering Morrow’s involuntary commitment. Compare Thurston v. Navarro, 546 So.2d 448, 449 (Fla. 4th DCA 1989) (granting petition for writ of habeas corpus and quashing involuntary commitment order where trial court rejected uncontroverted expert medical opinion testimony that defendant did not meet criteria for involuntary commitment). Indeed, the trial court seemed to recognize this circumstance when it noted in its order continuing custody, “[Morrow] appears stable at the current time and does not present as a significant risk to self or others.”

Under the circumstances and applicable statutes, the trial court had two remaining options available to it: order outpatient treatment or order discharge. See § 916.17; Fla. R. Crim. P. 3.217(b); see also Tavares v. State, 871 So.2d 974, 976 (Fla. 5th DCA 2004) (“If the defendant does not meet these criteria [for involuntary commitment], then the court must determine whether to discharge the defendant, or order the defendant to outpatient treatment at a specific appropriate facility”). By doing neither, the trial court departed from the essential requirements of the law, necessitating reversal of its order denying Morrow’s petition for habe-as relief and remand for further proceedings. See Edge, 893 So.2d at 612.

Given the medical opinions, however, the State’s and the trial court’s concerns over “releas[ing] defendant to wander Nassau County without any supervision or assistance,” are reasonable. Further, concern over the public safety, as well as Morrow’s personal welfare, are, from a common sense perspective if nothing else, legitimate factors that should be considered in reaching an ultimate resolution of this case.

Here, the record indicates that no release plan has been submitted. Under the applicable statutes and rules, however, a written release plan is a prerequisite for conditional or outpatient release under section 916.17 and Rule 3.219(a). Ideally, Morrow would be housed in a residential facility where he would continue to receive close psychiatric treatment and medication monitoring, as the medical experts recommend. Unfortunately, the record reflects that no facility has been found that is willing to accept Morrow.

Nevertheless, the trial court has broad discretion to set the terms of conditional release, which this Court described in Hill:

If on remand Judge Willis should find by these standards that conditional release is appropriate for Hill, by way of example, conditions for his release may conceivably be that he remain in his father’s household or under his father’s direct supervision, that he take the prescribed daily dose of Mellaril in the presence of a designated person, that Hill present himself weekly or at other intervals for psychiatric evaluation at a designated place, that he submit to examination at longer intervals at the Florida State Hospital, and that he and witnesses appear before the court at still longer intervals at hearings for continuing evaluation. The order may contain appropriate directions to state health agencies concerning supervision and reports.

858 So.2d at 209-10.

The trial court retains jurisdiction over Morrow should he be conditionally released and may modify the release conditions or order involuntary commitment if Morrow’s status changes and in the future he meets the criteria for involuntary commitment. See §§ 916.16(2) and 916.17(2). If no suitable housing facility can be found, then Morrow’s continued medication and treatment must be ensured, as much as possible, by the type of periodic monitoring procedures described in Hill, in addition to any other safeguards that may be formulated when drafting a release plan.

On remand, the trial court shall order that Morrow’s counsel and DCF submit release plans or collaborate to submit a stipulated release plan. See Boclair v. State, 524 So.2d 467, 471 (Fla. 1st DCA 1988) (reversing order continuing involuntary commitment and remanding for further hearing at which “the court shall require the hospital administrator to produce a plan for providing Boclair appropriate outpatient care and treatment,” according to the dictates of section 916.17). Once a release plan or plans have been submitted, the trial court will at least have a starting point from which to proceed as required under section 916.17 and Rule 8.217(b) and may hold any hearings necessary to properly assess the efficacy of the proposed plan.

If the trial court is unable to order Morrow’s conditional release, however, then the only alternative available under the law is to discharge him. Despite the fact that this is a result that should be avoided for the saké of the general public and Morrow’s own well-being, it is one of the three outcomes plainly dictated by the Legislature, through statute, and the Florida Supreme Court, through the rules of procedure.

While the trial court patterned the language of the appealed order on a key passage from Hill, the entirety of the passage from which that language is drawn merits quotation here to place the language in its proper context:

If no conceivable conditional release plan is practicable or reasonably calculated to achieve its purpose, owing to the acquitee’s [sic] peculiar disability or other circumstances over which the state has no control, continued confinement may of course be ordered. But if the cause for concern is only that .the state cannot or will not provide effective facilities or services which may reasonably be required, that failure cannot be seized on as grounds to deny an eligible acqui-tee his unconditional release. To hold an insanity acquitee for an indefinite term of preventive detention, on the sole ground that he cannot guarantee his continued remission and the state refuses to provide reasonable measures to monitor and assure it, would render all the law’s antecedent acts[,] his acquittal for insanity, the order of commitment to secure a public necessity, the enforcement of standards for release and for proof, and the hearing on his release petition a farcical charade.

358 So.2d at 211.

Accordingly, we REVERSE the order on appeal and REMAND for further proceedings consistent with this opinion.

PADOVANO and MARSTILLER, JJ., concur.