author: COHEN, J.

text:
    Stacy SMITH, Appellant, v. Philip MANNO, Appellee.
    No. 5D13-3179.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2014.
    John R. Hamilton of Foley & Lardner, LLP, Orlando, for Appellant.
    Vanessa Louise Braeley of NeJame Law, Orlando, for Appellee.
   COHEN, J.

Stacy Smith appeals from the final order dismissing her petition for injunction for protection against domestic violence. In pertinent part, she argues that the trial court erred by dismissing the petition without first holding an evidentiary hearing. We agree and reverse.

Smith, on behalf of herself and her minor daughter, A.S.M., filed a petition for injunction for protection against domestic violence against Philip Manno. In the petition, Smith alleged that after Manno was involuntarily hospitalized for attempting suicide, he made repeated phone calls threatening to kill her. Upon his release, Manno went to Smith’s mother’s house, where he behaved irrationally and screamed obscenities. Smith alleged that Manno had previously threatened to hurt her, citing a prior incident in which Manno had beaten and choked her until she almost lost consciousness. Because this earlier event had occurred in AS.M.’s presence, Smith feared for her child’s safety. Smith further alleged that she feared for A.S.M.’s safety because she had recently discovered child pornography on Manno’s cell phone and learned that he was a registered sex offender. Based upon these allegations, the court entered a temporary injunction against Manno.

A return hearing was set on Smith’s petition. Smith appeared pro se, while Manno appeared with counsel. Upon being informed that Manno had a pending criminal ease in which the conditions of his bond prohibited any contact with Smith, the court dismissed the petition for injunction, informing Smith that “[tjhere is no good reason to have two of these at the same time,” and that “if the protection [of the conditions of Manno’s bond] goes away and you still feel you want an injunction you can file another one.” Smith timely appealed the final order dismissing her petition.

The issue raised on appeal is not an issue of first impression in our court. In Curtis v. Curtis, 113 So.3d 993 (Fla. 5th DCA 2013), we addressed a similar issue. There, the trial court denied a petition for injunction for protection against domestic violence, without first holding an evidentia-ry hearing, where there was a pending criminal case against the respondent in which the conditions of the respondent’s release were designed to protect the petitioner from domestic violence. The trial court concluded that the petitioner had failed to establish a reasonable fear of imminent domestic violence, noting that the conditions of release, which included electronic monitoring, were more restrictive than the restrictions that could be imposed pursuant to a domestic violence injunction. We reversed, emphasizing that, pursuant to section 741.80(4), Florida Statutes, if the petition alleged either that the petitioner had reasonable cause to believe that she is in imminent danger of becoming a victim of domestic violence, or that the petitioner has been a victim of domestic violence, then the court must hold a hearing on the petition at the earliest possible time. Because the petition had, in fact, alleged facts sufficient to establish that the petitioner had reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence, the trial court erred in denying the petition without first holding a hearing.

In this case, Smith’s petition alleged facts sufficient to establish that she had a reasonable fear of imminent domestic violence. Thus, she was entitled to an evi-dentiary hearing. If Smith meets her burden of proof at the hearing, the existence of a pending criminal case with bond conditions that prohibit contact does not abrogate her right to the protections afforded by section 741.80, Florida Statutes. Accordingly, we reverse the order dismissing Smith’s petition and remand for an eviden-tiary hearing.

REVERSED and REMANDED.

PALMER and LAWSON, JJ., concur.

      . Similarly, Florida Family Law Rule of Procedure 12.610(b)(3) requires the court to set a hearing upon the filing of a petition for injunction for protection against domestic violence.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose A. GUILLEN, Appellant, v. MAI SO VANG and Yang Xiong, Appellee.
    No. 5D13-417.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2014.

      Desiree E. Bannasch, Orlando, for Appellant.
    Steven B. Burres and Vance R. Dawson, of Rissman, Barrett, Hurt, Donahue and McLain, P.A., Orlando, for Appellee.
   PER CURIAM.

Jose. Guillen appeals the Final Judgment of Dismissal with Prejudice rendered by the trial court in favor of Appellees, Mai So Vang and Yang Xiong. The trial court held that based on a surveillance DVD, Guillen, who was injured in an automobile accident allegedly caused by Appellees, perpetrated a fraud on the court by performing activities, shown on the DVD, that he allegedly claimed he could not perform in his deposition testimony. We do not believe that the surveillance DVD constitutes clear and convincing evidence that Guillen has “ ‘sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.’” Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115,1118 (1st Cir.1989)).

We believe that any discrepancies between Guillen’s testimony and the surveillance DVD are best resolved by a jury. See Perrine v. Henderson, 85 So.3d 1210, 1212 (Fla. 5th DCA 2012) (“Misconduct that falls short of the rigors of this test, including inconsistency, nondisclosure, poor recollection, dissemblance and even lying, is insufficient to support a dismissal for fraud, and, in many cases, may be well-managed and best resolved by bringing the issue to the jury’s attention through cross-examination.” (citations omitted)); Amato v. Intindola, 854 So.2d 812, 816 (Fla. 4th DCA 2003) (“The fact that a surveillance tape shows discrepancies usually affects the jury’s view of the case, but in this case it does not merit a dismissal with prejudice to appellant’s case.”); Jacob v. Henderson, 840 So.2d 1167, 1170 (Fla. 2d DCA 2003) (“ ‘In all but the most extreme cases, our system entrusts juries with the ultimate decisions as to whether claimed injuries are genuine or not. .Our experience has demonstrated that juries deserve this trust and that they are well able to discern the truth and to render judgment accordingly.’ ” (quoting Francois v. Harris, 366 So.2d 851, 852 (Fla. 3d DCA 1979))). Therefore, we reverse the judgment under review and remand this case for further proceedings.

REVERSED and REMANDED.

TORPY, C.J., SAWAYA, and BERGER, JJ., concur.


text:
    Nathaniel JACKSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D13-2740, 2D13-3269.
    District Court of Appeal of Florida, Second District.
    May 16, 2014.
    Nathaniel Jackson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Gillian N. Leytham, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Nathaniel Jackson appeals the denial of his motions filed under Florida Rule . of Criminal Procedure 3.800(a). We affirm the denial of his motions but remand for correction of a scrivener’s error in Mr. Jackson’s written sentence.

In 1984, Mr. Jackson was found guilty by a jury of first-degree murder and armed robbery in case 84-965 and armed robbery in case 84-7995. The court sentenced Mr. Jackson to death for the murder conviction and imposed no sentence for the robbery conviction in case 84-965. In case 84-7995, the court sentenced Mr. Jackson to thirty years for the armed robbery conviction.

On October 29, 1991, pursuant to an agreement between the parties, the circuit court vacated Mr. Jackson’s death sentence and sentenced him to life imprisonment with a twenty-five year mandatory minimum term. The court noted that Mr. Jackson’s sentence of thirty years for armed robbery in related case 84-7995 was not vacated by its order and remained in full effect, but the court did not mention the robbery conviction in case 84-965.

Nevertheless, the revised written judgment and sentence reflected, for the first time, a thirty-year sentence for the robbery conviction in case 84-965. It appears that the sentence imposed for the robbery in case 84-965 was a scrivener’s error by someone who was confused by the sentence that had been imposed in the other case. See Fla. R. Crim. P. 3.800 court cmt. (“[S]crivener’s error refers to a mistake in the written sentence that is at variance with the oral pronouncement of sentence ... but not those errors that are the result of judicial determination or error.”).

Accordingly, we affirm the postconviction court’s denial of Mr. Jackson’s motions but remand with directions that the thirty-year sentence for robbery in case 84-965 be deleted.

Affirmed; remanded with directions.

ALTENBERND, CRENSHAW, and SLEET, JJ„ Concur.


text:
    Travis McKINNEY, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D14-1854.
    District Court of Appeal of Florida, First District.
    May 16, 2014.
    Travis McKinney, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Johnson v. Singletary, 647 So.2d 106,109 (Fla.1994).

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


text:
    Randall Paul LAWS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1262.
    District Court of Appeal of Florida, First District.
    May 16, 2014.
    Randall Paul Laws, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

LEWIS, C.J., THOMAS and OSTERHAUS, JJ., concur.


text:
    Sylvester LYNN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1774.
    District Court of Appeal of Florida, First District.
    May 16, 2014.
    Sylvester Lynn, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., THOMAS and OSTERHAUS, JJ., concur.


author: BERGOSH, GARY L., Associate Judge.

text:
    Dilma Celeny SANTIZO-PEREZ (Widow as well as Mother and Personal Representative of the Minor Children of the Marriage Ana Victoria Piviral-Santizo and Andrew Alexis Pivaral-Santizo, Surviving Dependents of Melvin Pivaral-Ramirez), Appellant, v. GENARO’S CORPORATION d/b/a King’s Food and Meat Bazaar, Appellees.
    No. 1D13-2674.
    District Court of Appeal of Florida, First District.
    May 19, 2014.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    R. Lee Dorough of Dorough, Calzada & Soto, L.L.P., Orlando, for Appellees.
   BERGOSH, GARY L., Associate Judge.

In this workers’ compensation case, the surviving dependents of Melvin Pivaral-Ramirez, an employee of King’s Food and Meat Bazaar (King’s), challenge an order of the Judge of Compensation Claims (JCC) that denies the compensability of his accident, injuries, and death. We conclude the JCC erred in denying compensability; we therefore reverse the appealed order and remand the case for the award of benefits available under the Florida Workers’ Compensation Law.

Facts

Mr. Pivaral-Ramirez was the front-end manager for King’s. On the evening of June 5, 2011, he began to gather shopping carts from King’s parking lot. As he worked in the parking lot, a car hit him and sped away. Suffering from, inter alia, severe brain injuries leaving him in a vegetative state, he passed away in the hospital a few weeks later.

The driver of the car, Christopher Po-lanco, was apprehended that same night, and claimed his actions were in reaction to the decedent sexually harassing his girlfriend, a cashier at King’s. The criminal assailant confessed that he planned the attack for at least two to three weeks and knew Mr. Pivaral-Ramirez collected shopping carts from the store’s parking lot each night. On the night of the murder, the assailant confessed, he borrowed the car from a friend, brought food to his girlfriend at the store, and then waited in the parking lot as it began to get dark. When Mr. Pivaral-Ramirez emerged from the store to collect the day’s shopping carts, the assailant confessed, he became enraged, turned on the car’s high beam headlights, and sped towards Mr. Pivaral-Ramirez, striking and ultimately killing him.

Analysis

The Workers’ Compensation Law defines “injury” as “personal injury or death arising out of and in the course of employment.” § 440.02(19), Fla. Stat. (2010). The Law also requires that an injury, to be compensable, “aris[e] out of work performed in the course and scope of employment.” § 440.09(1), Fla. Stat. (2010). Here, the JCC concluded that, although the decedent was in the course and scope of his employment at the time of his injury, the injury did not arise out of his employment because there was no evidence that “anything in the decedent’s employment was related to him being put at risk of being murdered,” “[t]he vehicle used in the assault was not an implement of the employment,” “[tjhere is no evidence of a close proximity between the decedent and his assailant,” and the location of the attack was merely “convenient” or “fortuitous” because, given the assailant’s belief that his girlfriend was being sexually harassed by the decedent, “chances were the assault was inevitable, without regard to the employment.” The JCC further concluded the “assailant could just as easily [have] hit [the decedent] with the vehicle or attacked him in some other way elsewhere.” While some of these findings are proper as allowed by case law describing the factors a JCC may consider in determining the work-relatedness of an intentional act, the last conclusion is quite speculative. See Sentry Ins. Co. v. Hamlin, 69 So.3d 1065, 1071 (Fla. 1st DCA 2011) (work-related risk); Carnegie v. Pan Am. Linen, 476 So.2d 311, 312 (Fla. 1st DCA 1985) (implement of the employment); Tampa Maid Seafood Prods, v. Porter, 415 So.2d 883, 885 (Fla. 1st DCA 1982) (close proximity); San Marco Co. v. Langford, 391 So.2d 326, 327 (Fla. 1st DCA 1980) (fortuitous location). Of course, not all factors need to be present in all cases of compensability.

We accept, as supported by the record, the facts as found by the JCC. Therefore, the JCC’s interpretation and application of the statute is a question of law subject to review de novo. As the parties agree that the decedent was “in the scope of his employment,” the seemingly simple issue is whether the decedent’s injury can be found to be “arising out of his employment. The inquiry is not as to fault. Rather, it is merely “of marking out boundaries.” Hamlin, 69 So.3d at 1069 (quoting Taylor v. Sch. Bd. of Brevard Cnty., 888 So.2d 1, 5 (Fla.2004) (quoting 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation, Desk Edition § 1.03, at 1-4 to 1-5 (2003))). In general terms, when a work-related risk brings about injury, the injury is compensable vis-a-vis those that are brought about by risks personal in nature, which are not. See Hamlin, 69 So.3d at 1070.

Some jobs are more prone to workplace assaults than are others. Usually this is so because of one, or both, of the following factors: 1) the nature of the job, e.g., dangerous duties; and 2) the nature of the environment of the job, e.g., dangerous locations. In this case, it was the environment; the decedent was collecting shopping carts at night. Obviously, an employee being hit by a car in the customer parking lot while collecting shopping carts at night is a risk “incident to the hazards of industry.” See Leon Cnty. Sch. Bd. v. Grimes, 548 So.2d 205 (Fla.1989) (quoting Protectu Awning Shutter Co. v. Cline, 154 Fla. 30, 16 So.2d 342, 343 (1944)). Additionally, while the decedent had no apprehension of personal animosity of a coworker’s jealous boyfriend, there is no question the genesis for the “dispute” giving rise to the fatal injuries here was in the workplace. The instant case is analogous to Tampa Maid, wherein a love triangle among three co-workers resulted in claimant being assaulted with a shrimp knife. 415 So.2d at 885. Specifically, both there and here, it was the interaction of people connected only by the workplace that prompted the accident, and therefore, we reach the same conclusion of compensa-bility.

Conclusion

As the decedent was both in course and scope of his employment and his injury did indeed arise from his employment, his injuries and death are legally compensable. Accordingly, we REVERSE AND REMAND for entry of an order consistent with this opinion.

THOMAS and RAY, JJ., concur.

      . The decedent and the criminal assailant never met and there was no evidence decedent ever sexually harassed anyone at King’s Food other than the rank hearsay statement of the criminal assailant to the police.

      . The criminal assailant told police he made several comments to his girlfriend about hurting the decedent; however, he felt that she thought he was just joking. Therefore, the certainty of the criminal assailant's actions was indiscernible, even to those closest to him.

      . 1 Lex K. Larson, Larson’s Workers’ Compensation § 8.01 (rev. ed. 2013).

      . This case presents a classic example of how courts can hyper focus on motive of a third party causing injury to an employee, ignoring a dangerous environment that also facilitated the injury. As Larson’s points out, "[t]he error here is a simple one: The court assumes that the claimant must prove both that the environment increased the risk of the attack and that it was motivated by something related to the employment. The correct rule is that either one or the other is sufficient to establish the causal link.” 1 Lex K. Larson, Larson’s Workers' Compensation § 8.01[l][b] (rev. ed. 2013) (emphasis added).


text:
    Earnesto Raja BRANDON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3327.
    District Court of Appeal of Florida, First District.
    May 19, 2014.

      Joe Hamrick, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Earnesto Brandon, challenges his conviction for possession of a firearm by a convicted felon. He argues that the trial court erred by admitting into evidence a transcript of a 911 call. We agree and reverse.

The charge against Brandon arose from a 911 call reporting that a woman had been assaulted by a man who struck her and then threatened to kill her while pointing a gun at her. The caller identified Brandon as the assailant.

On the day of Brandon’s jury trial, the state learned that the victim, the person who purportedly made the 911 call, would not testify. The defense objected to the admission of the 911 call, arguing it was inadmissible hearsay because the purported caller was not going to testify at trial. However, the state sought to admit the statement as an excited utterance, an exception to the hearsay rule under section 90.803, Florida Statutes. The state called the 911 records custodian to authenticate the audio printout of the 911 call, and Brandon objected, arguing that the state had not laid a proper predicate to admit the 911 call as an exception to the hearsay-rule. For the reasons that follow, we hold that the trial court erred in admitting the transcript of the 911 call into evidence.

As announced by the supreme court in Stoll v. State, 762 So.2d 870 (Fla. 2000), the excited utterance exception to the hearsay rule requires a showing that there was an event startling enough to cause nervous excitement, and the statement was made under the stress or excitement caused by the event before the de-clarant had time to reflect or contrive. Id. at 873; see also Powell v. State, 99 So.3d 570, 573-74 (Fla. 1st DCA 2012). A proper foundation to admit a hearsay statement under the excited utterance exception may be laid by showing that the statement meets the Stoll test. See Thomas v. State, 125 So.3d 928 (Fla. 4th DCA 2013).

In this case, it was the state’s burden to present evidence to satisfy the elements of the Stoll test. However, the state failed to show whether the caller was still under the emotional stress of the incident at the time of the call or whether the caller had time to reflect on the events prior to making the call. Further, the state failed to establish even the identity of the person who made the 911 call. Because the state failed to establish the necessary predicate to admit the transcript of the 911 call, the trial court erred by admitting it.

The error was not harmless. No firearm was found, and the testimony that Brandon possessed a firearm on the day of the incident was equivocal and corroborated only by the recording of the 911 call played for the jury. Because the improperly admitted 911 call constituted a substantial part of the prosecution’s case, it would be impossible to say that it did not play a significant part in the jury’s deliberation or contribute to the jury’s verdict. See State v. DiGuilio, 491 So.2d 1129, 1136 (Fla.1986).

We, therefore, reverse Brandon’s judgment and sentence and remand the case for a new trial.

REVERSED.

ROWE, MARSTILLER, and RAY, JJ., concur.


text:
    BANK OF AMERICA, N.A., Appellant, v. Aleksandar LUKICH and Amira Lukich, Mortgage Electronic Registration Systems, Inc., (as nominee for Secured Funding Corporation); Foreclosure Specialist USA, LLC, a Florida limited liability company; Ronald M. Markis, an Individual; HSBC Mortgage Services, Inc., a Delaware corporation; and American Express Centurian Bank, Appellees. Aleksandar Lukich and Amira Lukich, Appellees/Cross-Appellants, v. Bank of America, N.A., Appellant/Cross-Appellee.
    No. 1D13-3105.
    District Court of Appeal of Florida, First District.
    May 19, 2014.

      Henderson, Jr., of GrayRobinson, P.A., Jacksonville, for Appellant/Cross-Appel-lee.
    Wendell Finner, Jacksonville Beach, for Appellee/Cross-Appellants AJeksandar Lu-kich and Amira Lukich.
    No appearance for Mortgage Electronic Registration Systems, Inc., Foreclosure Specialist USA, LLC, Ronald M. Markis, HSBC Mortgage Services, Inc., and American Express Centurian Bank, Appellees.
   PER CURIAM.

The trial court failed to provide proper notice under Rule 1.440(c), Florida Rules of Civil Procedure, of the trial below. We therefore reverse the Order of Dismissal as to all claims of both the appellant/cross-appellee and the appellees/cross-appellants that were pending at the time the Order of Dismissal was issued. On remand, the court is directed to hold a new trial on these claims, on proper notice to all parties, in compliance with Rule 1.440(c), Florida Rules of Civil Procedure.

PADOVANO, CLARK, and SWANSON, JJ., concur.


author: TAYLOR, J.

text:
    Richard Clarence SNOW, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1514.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Richard Clarence Snow appeals his conviction for leaving the scene of a personal injury crash and for driving with a suspended license and causing serious bodily injury. Appellant raises two issues on appeal. First, he asserts that the trial court improperly permitted a witness to testify on redirect examination that he stopped to help the victim of the traffic accident for humanitarian reasons. Appellant argues that this testimony was an attack on his character, since he allegedly failed to stop and render aid to the victim. We find that this claim lacks merit. The witness’s testimony, when viewed in context, was relevant to establish that the witness was present at the scene of the accident and saw appellant flee the scene.

Second, appellant argues that the trial court committed fundamental error in instructing the jury that appellant could be convicted of the suspended license charge if he was involved in the crash, rather than if he caused the victim’s serious injuries by his negligent or careless driving. We agree and reverse on this issue.

On the day of the crash, the victim was riding his motorcycle. When he started to make a right turn at a red light, he saw a truck coming toward him. The next thing he remembered was waking up in the hospital with a punctured lung and broken ribs. The victim has no other memory of the crash.

Two witnesses came forward. One witness identified appellant’s vehicle as the truck that he saw leaving the scene of the crash, and the other witness saw the truck hit the victim on his motorcycle and identified appellant as the driver of the truck.

Appellant was charged by information with two counts: (Count I) leaving the scene of a crash resulting in the injury of a person, and (Count II) driving with a suspended license and by careless or negligent operation, causing serious bodily injury to the victim. The instructions for Count II, the suspended license charge, are at issue in this appeal.

Count II of the information stated in relevant part:

RICHARD CLARENCE SNOW, on or about the 26th day of January, A.D.2009, ... did operate a motor vehicle while said operator’s or chauffeur’s license was canceled, suspended, or revoked and by careless or negligent operation thereof, did cause the death of or serious bodily injury to another human being

When instructing the jury on Count II, the trial judge informed the jury that appellant had stipulated to the fact that his license was suspended and that he had been given notice of the suspension. The judge further instructed the jury that the state had to prove beyond a reasonable doubt that “[w]hile driving, Richard Snow’s vehicle was involved in a crash resulting [in] serious bodily injury to a person.” Appellant did not object to this jury instruction.

The jury found appellant guilty of both charges. On Count I, appellant was sentenced, as a habitual felony offender, to five years in prison. On Count II, appellant was sentenced to two years in prison, consecutive to the sentence on Count I.

Because appellant did not object to the jury instructions at trial, any error in instructing the jury must be fundamental for our review on appeal. See Jackson v. State, 120 So.3d 147, 148 (Fla. 4th DCA 2018). “[I]t is fundamental error when ‘a jury instruction incorrectly defines a disputed element of the crime in such a way as to reduce the state’s burden of proof.’ ” Id. (citing Kennedy v. State, 59 So.3d 376, 381 (Fla. 4th DCA 2011)).

Appellant argues that the trial court’s instruction that the state must prove beyond a reasonable doubt that the defendant’s vehicle was involved in a crash that resulted in serious bodily injury, rather than that the defendant caused the serious bodily injury by careless or negligent driving, constitutes fundamental error, because the instruction incorrectly defines a disputed element of the crime in such a way as to reduce the state’s burden of proof.

Appellant was charged in Count II with violating section S22.34(6)(b), Florida Statutes (2008). This section states that any person who operates a motor vehicle while his or her driver’s license has been canceled, suspended or revoked “and who by careless or negligent operation of the motor vehicle causes the death of or serious bodily injury to another human being is guilty of a felony of the third degree .... ”

The trial court instructed the jury on Count II as follows:

To prove the crime of Driving While his Operator’s or Chauffeur’s License or Driving Privilege is Cancelled, Suspended or Revoked, the State must prove the following four elements beyond a reasonable doubt:
1. RICHARD CLARENCE SNOW drove a motor vehicle upon a highway in this state.
2. His license or driving privilege was cancelled, suspended or revoked.
3. Notice of Cancellation, suspension or revocation was given to the defendant.
4. While driving, RICHARD SNOW’S vehicle was involved in a crash resulting in serious bodily injury to a person.

The Florida Standard Jury Instruction for this suspended driver’s license charge reads in pertinent part as follows:

To prove the crime of Operating a Motor Vehicle Carelessly or Negligently Causing [Serious Bodily Injury] [While Driver’s License Suspended, Revoked, Canceled for Specified Reason], the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) operated a motor vehicle in a careless or negligent manner.
2. At the time, [his] [driver’s license] was [suspended] pursuant to Florida Statute [316.655].
3. As a result of the careless or negligent operation, (defendant) caused [serious bodily injury to (victim) ].

Fla. Std. Jury Instr. (Crim.) 28.12.

The jury instruction that the trial court read to the jury omitted elements 1 and 3 of the Standard Jury Instruction. The instruction did not inform the jury that it needed to find beyond a reasonable doubt that “as a result of the careless or negligent operation [of the motor vehicle], the defendant caused serious bodily injury to the victim.” Instead, the jury instruction stated that the jury had to find beyond a reasonable doubt only that the defendant’s vehicle was involved in a crash resulting in serious bodily injury to a person. The jury instruction thus failed to include two elements of the crime, i.e., that the defendant carelessly or negligently drove his vehicle and caused the crash that seriously injured the victim. The instruction thereby reduced the state’s burden of proof.

Moreover, the omitted elements of the crime were disputed. Although appellant conceded that his license was suspended at the time of the crash, he disputed two elements of the charge. He argued that the evidence was insufficient to prove either that he drove the truck or that he negligently caused a crash resulting in the victim’s injuries. We conclude that the jury instruction given by the trial court constituted fundamental error. Accordingly, we reverse appellant’s conviction on Count II and remand for a new trial on that count.

Reversed and Remanded.

STEVENSON and CONNER, JJ., concur.


author: MAY, J.

text:
    S.M., a child, Appellant, v. STATE of Florida, Appellee.
    No.. 4D12-2432.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

A juvenile appeals a disposition order finding her guilty of violating her probation. She raises multiple arguments, chief among them are that the court erred in revoking her probation based solely on hearsay and allegations not contained in the petition for violation of probation, and in excluding her from part of the disposition hearing without her personal waiver. We agree and reverse.

After the juvenile pled to burglary and related crimes, the court withheld adjudication and placed her on probation. The juvenile’s grandmother had custody of her. CareSource was the juvenile’s legal guardian.

Two days after being placed on probation, the juvenile was arrested for being a passenger in a stolen vehicle. The State filed a petition for violation of probation, alleging that the juvenile: (1) failed to report to the field office within 24 hours of being placed on probation; and (2) moved or ran away from her approved residence. The court again withheld adjudication and reinstated probation.

Subsequently, the State filed a second petition for violation of probation. This petition alleged that the juvenile violated probation by: (1) leaving her approved residence for three months without permission, and (2) absconding from probation. The juvenile probation officer (“JPO”) also filed an affidavit of diligent search, attesting that she was informed by the grandmother that the juvenile left home, and that the PACE Center reported that the juvenile failed to attend school.

At the hearing, the court, at the State’s request, took judicial notice of the entire court file. The State called the JPO as a witness, who testified that the conditions of the juvenile’s probation were never explained to her because she did not report for her initial intake. The JPO also testified that, after having no contact with the juvenile for a couple of weeks, she contacted the juvenile’s grandmother, who did not know the juvenile’s whereabouts. The JPO also contacted CareSource, which reported that it had no contact with the juvenile. The juvenile also failed to attend PACE as ordered by the court when it reinstated her probation.

On cross-examination, the JPO admitted that, when searching for the juvenile, she did not go to the juvenile’s residence, her school, or her friend’s residence to personally look for the juvenile. Rather, the JPO received information over the phone from the grandmother and the school.

Defense counsel argued that the State failed to prove that the juvenile willfully and substantially violated probation because there was no evidence to establish the juvenile had been instructed on the rules of probation, and because the State presented only hearsay evidence from the JPO to support the allegations. The State responded that it was the juvenile’s fault for not having been instructed because she failed to report to her JPO, and that the State proved the violation through the JPO’s testimony and the court’s judicial notice of the JPO’s affidavit of diligent search.

The court then read a document prepared by a detention screener, contained within the court file, which indicated that the juvenile runs away and hangs out with the wrong people. The grandmother indicated that the juvenile will be gone as soon as she is released. Based on this information, the court pronounced the juvenile a chronic runaway.

The court found the juvenile substantially and willfully violated her probation because she: 1) was missing for over ninety days; 2) never reported to her probation officer; 3) failed to attend school; 4) had a history of absconding; and 5) her whereabouts were unknown. The court ordered a predisposition report and comprehensive evaluation of the juvenile.

At a subsequent disposition hearing, the court ordered the juvenile to leave the courtroom so he could talk to the grandmother privately. Upon request, defense counsel indicated no objection to the court excluding the juvenile from the courtroom. After the juvenile left, the court solicited the opinion of the grandmother, the legal guardian, who was also the juvenile’s therapist, the JPO, and the attorneys regarding the proper disposition. The court then ordered the juvenile back to the courtroom, told the juvenile the conditions of her probation, and confirmed with the juvenile that she understood them. The court withheld adjudication and reinstated probation. From the finding of guilt on the violation and disposition, the juvenile now appeals.

The juvenile argues that the court committed fundamental error because it found her in violation of five probation conditions when the petition alleged only two. The State responds that the court’s findings were supported by competent, substantial evidence. We review a court’s order revoking probation for an abuse of discretion. Taylor v. State, 949 So.2d 345, 346 (Fla. 4th DCA 2007).

“To revoke probation, the conscience of the court must be satisfied that the State proved by a greater weight of the evidence that, under the totality of the circumstances, the probationer deliberately, willfully, and substantially violated a condition of his or her probation.” Shepard v. State, 939 So.2d 311, 313 (Fla. 4th DCA 2006) (citing Blackshear v. State, 771 So.2d 1199, 1200 (Fla. 4th DCA 2000)). The right of due process guarantees that a revocation of probation “be based only on a violation alleged and presented.” Davis v. State, 891 So.2d 1186, 1187 (Fla. 4th DCA 2005) (citing State v. Anderson, 537 So.2d 1373 (Fla.1989)). “‘A contemporaneous objection is not required to preserve the issue for appellate review because a deprivation of the right to due process is a fundamental error.’ ” Id. at 1188 (quoting Nagel v. State, 758 So.2d 1206, 1208 (Fla. 4th DCA 2000)).

In B.E. v. State, we reversed a revocation of probation because the juvenile’s due process rights were violated when the court found violations not alleged in the petition. 115 So.3d 1088 (Fla. 4th DCA 2013). We remanded the case for the court to decide whether it would revoke the juvenile’s probation and impose the same disposition on the alleged violations. Id.

Here, the petition alleged two violations of probation: (1) the juvenile left her approved residence for three months without prior knowledge or consent of her JPO; and (2) the juvenile was considered an absconder from probation. The court found that the juvenile committed five violations, the two alleged and three more: (1) she never reported to her probation officer; (2) she failed to attend school; and (3) she had a history of absconding. None of these violations were alleged in the relevant petition. Were this the only problem with this case, we would remand as we did in B.E. to allow the court to determine whether it would have revoked probation on the two grounds alleged and whether the disposition would be the same. However, additional errors are reflected in this record.

The juvenile next argues that the revocation of probation was based solely on hearsay provided by the JPO, the State’s only witness, and judicial notice of the court file. The State responds that, although hearsay alone is insufficient to support the revocation of probation, a combination of hearsay and non-hearsay evidence was provided to support the revocation. Further, the State argues that the defense failed to preserve the error.

While “[hjearsay is admissible in a revocation hearing,” the “revocation cannot be based on hearsay alone.” McNealy v. State, 479 So.2d 138, 139 (Fla. 2d DCA 1985). Here, the JPO testified that the juvenile never reported to her and that she was court-ordered to go to school. This is direct evidence based on the JPO’s personal knowledge, but it is direct evidence of the unalleged violations. The State failed to present any non-hearsay evidence to establish that the juvenile left her residence without permission or ran away from her approved residence. For this reason, there was insufficient evidence to revoke the juvenile’s probation on the two allegations contained within the petition.

The third issue we address is the court’s request for the juvenile to leave the courtroom to enable the court to discuss the disposition with her grandmother, her legal guardian/therapist, her probation officer, and the attorneys. The State suggests that Florida Rule of Juvenile Procedure 8.100(e) is inapplicable, that the defense counsel waived her right to be present, and that the juvenile did not request to make a comment.

We have de novo review of this issue. See Josephs v. State, 86 So.3d 1270, 1272 (Fla. 4th DCA 2012) (citing Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010)).

“Like criminal defendants, juveniles have a constitutional right to be present at all critical stages of the proceedings.” J.R. v. State, 953 So.2d 690, 691 (Fla. 1st DCA 2007). Rule 8.100(a) of the Florida Rules of Juvenile Procedure provides that “[t]he child shall be present unless the court finds that the child’s mental or physical condition is such that a court appearance is not in the child’s best interests.” Section 985.433(4), Florida Statutes (2012), requires that a court, before it “determines and announces [a] disposition,” shall:

(a) State clearly ... the right of persons present as parties to comment at the appropriate time on the issues before the court.
(c) Discuss with the child his or her feelings about the offense committed, the harm caused to the victim or others, and what penalty he or she should be required to pay for such transgression.
(d) Give all parties ... an opportunity to comment on the issue of disposition and any proposed rehabilitative plan.

Rule 8.100(a) has been construed to mean that, with very limited exceptions, “the accused child is required to be physically present at all hearings, ... except when there has been a waiver of the right to be present.” R.R. v. Portesy, 629 So.2d 1059, 1062 (Fla. 1st DCA 1994). This waiver must be personal, not one by the juvenile’s counsel. M.A.L. v. State, 110 So.3d 493, 497 (Fla. 4th DCA 2013) (citing R.R., 629 So.2d at 1062).

Here, the juvenile did not personally waive her right to be present. After discussing concerns outside of the presence of the juvenile, the court called the juvenile back to the courtroom and announced the disposition. Because the court excluded the juvenile from part of the hearing and did not give the juvenile an opportunity to comment on the issue of disposition, the court committed fundamental error. See T.A.S. v. State, 892 So.2d 1233, 1234 (Fla. 2d DCA 2005) (a juvenile offender, like a criminal defendant, “has the constitutional right to be present at the stages of his trial where fundamental fairness might be thwarted by his absence.”) (quoting Papageorge v. State, 710 So.2d 53, 54 (Fla. 4th DCA 1998)).

For the reasons given above, we reverse the revocation of probation and disposition.

Reversed.

WARNER and LEVINE, JJ., concur.

      . This Court cautioned that there are times that the court may find it necessary to discuss certain sensitive matters at a sidebar, out of the hearing of the juvenile. M.A.L. v. State, 110 So.3d 493, 497 n. 1 (Fla. 4th DCA 2013). Therefore, rule 8.100(a) should not be construed as barring courts from doing so under the appropriate circumstances. Id.


text:
    Delmus ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1266.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

Appellant (“the patient”) was found incompetent to proceed to trial and was placed in the custody of the Department of Children & Families for restoration of competence. The patient appeals the circuit court’s order adopting the magistrate’s report and recommendation on the mental health facility’s petition authorizing involuntary treatment. The patient argues that the court erred in entering the order because there was no competent, substantial evidence to establish that: (1) his multidisciplinary team discussed and approved the necessity of the recommended treatment plan; (2) he received, in writing, an individualized treatment plan or that he had an opportunity to assist in preparing the plan; or (3) the recommended treatment would result in a restoration of competency. We agree with the patient’s first argument and reverse.

“On appellate review of an order requiring a forensic patient to accept involuntary psychotropic treatment, ‘the record must contain competent, substantial evidence to support the trial court’s findings and to substantiate compliance with section 916.107, [Florida Statutes].’ ” Louisma v. State, 78 So.3d 50, 52 (Fla. 4th DCA 2012) (quoting Dinardo v. State, 742 So.2d 287, 289 (Fla. 1st DCA 1998)).

With regards to the patient’s first argument, section 916.107(3)(a), Florida Statutes (2013), provides, in pertinent part:

A forensic client shall be asked to give express and informed written consent for treatment. If a client refuses such treatment as is deemed necessary and essential by the client’s multidisciplinary treatment team for the appropriate care of the client, such treatment may be provided ....

§ 916.107(3)(a), Fla. Stat. (2013) (emphasis added).

Although testimony from all treatment plan members is not required, in order to establish compliance with section 916.107(3)(a), “there must be ‘at least some evidence that the multidisciplinary team has discussed and approved the necessity of treatment.’ ” Smith v. State, 117 So.3d 858, 858-59 (Fla. 4th DCA 2013) (quoting Troutman v. State, 112 So.3d 638, 638 (Fla. 4th DCA 2013)).

Here, the treatment team physician stated that a treatment team was established and a treatment plan was devised for the purpose of restoring competency. She also listed the members of the team, and testified that there was a second treating doctor (though he was not listed as being part of the team). Although she testified that the course of treatment was essential to the patient’s care, the physician failed to testify as to whether the other members of the multidisciplinary team approved of, or even discussed, the necessity of the treatment. As such, there was no competent, substantial evidence that the multidisciplinary team approved of the necessity of the treatment. See also Chapman v. State, 133 So.3d 1075, 1076 (Fla. 4th DCA 2014) (“[T]he physician did not testify that the treatment team approved the treatment plan or deemed it necessary and essential. Thus, no competent, substantial evidence exists to show compliance with section 916.107(3)(a).”); Smith, 117 So.3d at 859 (explaining that because the psychiatrist never testified that the other members of the team approved of the necessity of the treatment plan, there was insufficient evidence as to compliance with the statute); Troutman, 112 So.3d at 639 (“Even assuming this testimony referenced a discussion with the treatment team’s other members, the psychiatrist did not testify that the other team members approved of the necessity of the recommended treatment.”); Morgan v. State, 94 So.3d 677, 680 (Fla. 4th DCA 2012) (reversing an involuntary medical treatment order where “[t]he record on appeal d[id] not contain any evidence that Morgan’s multidisciplinary team discussed or approved the necessity for this treatment. Even though [one of the treating physicians] testified that the treatment was necessary, this is not sufficient under the statute.”).

Because we reverse on the first argument, we do not address the second argument.

We disagree with the patient’s third argument that there was insufficient evidence to establish that the recommended treatment would result in a restoration of competency. Rather, testimony of the physician indicated that the recommended medication would improve the patient’s competency and stabilize his mood, so that he would be able to acknowledge the charges against him.

Based on the foregoing, we reverse the circuit court’s order and remand with instructions for a future hearing at which time the treatment center may present evidence of its compliance with sections 916.107(B)(a).

Reversed and remanded.

STEVENSON, TAYLOR and CONNER, JJ., concur.


text:
    Gayle DIETRICH and William H. Dietrich, Appellants, v. ACTAVIS, INC.; Actavis Elizabeth, LLC; Actavis Mid-Atlantic, LLC; and Pliva, Inc., Appellees.
    No. 4D12-4589.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.
    David J. Sales of David J. Sales, P.A., Jupiter, for appellants.
    Richard A. Dean of Tucker Ellis LLP, Cleveland, Ohio, and Ethen R. Shapiro of Hill Ward Henderson, P.A., Tampa, for appellees Actavis, Inc., Actavis Elizabeth, LLC, and Actavis Mid-Atlantic, LLC.
    Rex A. Littrell of Ulmer & Berne LLP, Columbus, Ohio, Jeffrey F. Peck of Ulmer & Berne LLP, Cincinnati, Ohio, and Steven J. Rothman of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee PLIVA, Inc.
   PER CURIAM.

Affirmed. See PLIVA, Inc. v. Mensing, — U.S.—,—, 131 S.Ct. 2567, 2577, 180 L.Ed.2d 580 (2011) (holding federal law prevents a generic drug manufacturer from “independently changing” its safety labels to provide additional warnings); Morris v. PLIVA, Inc., 713 F.3d 774, 777 (5th Cir.2013) (extending Mensing ⅛ holding so as to foreclose state tort claims based on a generic drug manufacturer’s failure to communicate approved label changes in a manner that the name brand manufacturer had not, i.e., “Dear Doctor” letters); Guarino v. Wyeth, LLC, 719 F.3d 1245, 1249 (11th Cir.2013) (agreeing with the Fifth Circuit’s reasoning in Morris, and holding a generic drug manufacturer’s failure to communicate approved label changes is preempted under federal law); but see Brasley-Thrash v. Teva Pharm. USA, Inc., No. Civ. A. 10-00031-KD-N, 2011 WL 4025734, at *3 (S.D.Ala. Sept.12, 2011) (holding Mensing does not prevent a generic drug manufacturer from sending out a letter “that simply reiterates warnings contained in the approved label”). We find the reasoning and holding stated in Morris and Guarino to be most consistent with the Supreme Court’s ruling in Mensing.

STEVENSON, CONNER and FORST, JJ., concur.


author: ROTHENBERG, J.

text:
    E.V., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1428.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender; Hermis D. Sanchez and Ma-gali J. Sanders, Certified Legal Interns, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   ROTHENBERG, J.

E.V., a juvenile, appeals the trial court’s order denying his motion to suppress evidence and the subsequent order withholding adjudication of delinquency for possession of cannabis. E.V. contends that the police encounter leading to the discovery of the evidence against him was not consensual and was not supported by reasonable suspicion. Because the record supports the trial court’s finding that the encounter was consensual, we affirm.

Although the arresting officer’s and E.V.’s recitation of the facts differed, the trial court, based on its credibility determinations, found the officer’s testimony credible. The officer testified that after observing E.V. standing outside of a gas station for approximately thirty minutes, he decided to investigate. He therefore exited his patrol car and asked E.V. to come towards him. As he and E.V. walked towards each other, the officer got closer to E.V. and smelled burnt marijuana emanating from E.V.’s clothing. When he asked E.V. about the marijuana smell, E.V. immediately handed the officer a small baggie of marijuana and told the officer where E.V. had acquired it. The trial court concluded that the encounter was consensual and therefore denied E.V.’s motion to suppress the evidence.

A trial court’s ruling on a motion to suppress evidence presents a mixed question of fact and law whereby the reviewing court bestows a presumption of correctness to the trial court’s findings of fact, but reviews the application of law to those facts de novo. Connor v. State, 803 So.2d 598, 608 (Fla.2001). The presumption of correctness cloaking the trial court’s findings of fact is rebutted only if there is no competent substantial record evidence supporting that factual determination. Id. “A consensual encounter is one in which a reasonable person would feel free to disregard the police and go about his business. A consensual encounter does not require the police to have a reasonable suspicion of any improper conduct before initiating conversation.” Chapman v. State, 780 So.2d 1036, 1037 (Fla. 4th DCA 2001) (internal citation omitted) (citing Voorhees v. State, 699 So.2d 602, 608 (Fla.1997)). When determining whether an encounter with the police is consensual, the court must base its determination on the totality of the circumstances. Caldwell v. State, 41 So.3d 188, 197-99 (Fla.2010); 9 (Fla.2009).

In Chapman, the Fourth District Court of Appeal reviewed a strikingly similar set of facts and rejected the defendant’s argument that the officer had effected an investigatory stop by telling the defendant, “Come here ... [m]ay I talk to you?” 780 So.2d at 1038. The Chapman Court held that when an officer merely asks a suspect to come towards him without any additional show of authority or evidence that the officer was “confrontational, coercive, oppressive or dominating,” the encounter is typically considered consensual. Id.

Similar to the facts of Chapman, in the instant case only one officer was present. There was no evidence that the officer activated any emergency equipment on his police vehicle (no lights or sirens were used), drew or displayed his weapon, touched or restrained E.V., or did anything to block E.V.’s exit or hamper E.V.’s movement. The encounter took place outside in a public place. At no time did the officer make a showing of authority or demonstrate aggressive or coercive behavior towards E.V. In fact, E.V. himself testified that, when he came out of the gas station, the officer pulled up and “he asked me come over here.... I proceeded to come to him.” (emphasis added). At no point did the officer demand compliance— he simply asked E.V. if he would speak with him. E.V. was free to walk away and go about his business or to decline to speak with the officer, which is the very hallmark of a consensual encounter. Thus, the encounter was consensual, and E.V.’s motion to suppress the evidence was properly denied.

Affirmed.


author: EMAS, J.

text:
    Maikel A. SANCHEZ, Appellant, v. Rosa C. MARIN, Appellee.
    No. 3D13-1780.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.

      Dieguez & Associates, Anthony Dieguez, Miami Lakes, and Genny A. Castellanos, Miami, for appellant.
    Jason M. Wandner, for appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and EMAS, JJ.
   EMAS, J.

Maikel Sanchez (“Sanchez”) seeks review of a final judgment of injunction for protection against domestic violence and an order denying his motion for rehearing. For the reasons that follow, we reverse.

FACTS

Sanchez and his aunt, Rosa Marin (“Marin”), were in business together, operating an automobile sales business. When their business relationship soured, Marin filed a civil lawsuit against Sanchez. Thereafter, on November 26, 2012, Marin filed a petition for injunction for protection against domestic violence. In her petition, Marin alleged the following facts as the basis for the injunction:

On November 14, 2012, Sanchez called Marin on the phone and threatened “I will burn all of this” [which Marin interpreted to mean the business]. Marin also alleged that Sanchez “threatened to harm [Marin] and her family.”
On November 20, 2012, when Marin arrived at work, she noticed that the lock to her gate had been tampered with. A few minutes later, she noticed Sanchez driving near the business. Thirty minutes later, Sanchez drove by and shouted “Remember I will burn down your business.”

No other incidents were alleged in the petition, and following the statutorily-prescribed ex parte review of the petition, the trial court denied a temporary injunction, finding there was “no appearance of an immediate and present danger of domestic violence as required pursuant to § 741.30, Florida Statutes.”

The trial court set a final hearing on the petition for a permanent injunction. After several hearings and proceedings not relevant here, the final hearing was scheduled for May 17, 2013.

Consistent with the allegations of her petition, Marin testified that on one occasion, Sanchez called her on the phone and threatened to burn her business down; and on another occasion less than a week later, he drove by her car lot and, from the inside of his vehicle, again threatened to burn her property. However, before the final hearing commenced, Marin’s counsel told the trial court that there were “some additional subsequent events that are relevant to the proceedings.” Sanchez’s counsel objected to the admission of any evidence regarding these subsequent events, asserting there was no fair or timely notice to Sanchez ¿nd that Sanchez was prejudiced in his ability to prepare for and meet these new allegations at the final hearing. Nonetheless, the court permitted the following additional evidence to be introduced by Marin over the standing objection of Sanchez: Marin testified that, at some point after Sanchez’ verbal threats, a fire had taken place at another car lot owned by her friend, Olga Alvarez. Alvarez and Marin had done business together in the past, and some of the vehicles kept on Alvarez’s lot were owned by Marin’s company.

Olga Alvarez was then called to testify at the hearing. She confirmed that a fire had been set to some cars in her warehouse in January 2013, including a car owned by Marin, and that Sanchez had previously told Alvarez he would rather set fire to the cars then let Marin have them. Alvarez told police she believed Sanchez was involved in the fire, but as of the date of the hearing, Sanchez had not been arrested or charged with any crime related to the fire.

Sanchez testified, and denied threatening to burn Marin’s property or having any involvement in the Alvarez fire.

The trial court entered a permanent injunction, finding that Marin had reasonable cause to believe she was in imminent danger of becoming the victim of domestic violence. Specifically, the court found “that maybe the verbal phone threats don’t rise to the level of issuing an injunction but the fire does. And the fire is what the Court finds to be proof that Mr. Sanchez is capable of acting on the threats....” (Emphasis added).

ANALYSIS

It is axiomatic that a party defending against a claim is entitled to due process, including the right to proper and adequate notice of the allegations which form the basis for the relief sought. To “allow a court to rule on a matter without proper pleadings and notice is violative of a party’s due process rights.” Carroll & Assoc., P.A. v. Galindo, 864 So.2d 24, 29 (Fla. 3d DCA 2003). See also, BAC Home Loans Serv., Inc. v. Headley, 130 So.3d 703 (Fla. 3d DCA 2013).

These fundamental precepts of due process and adequate notice can be found in the statutory scheme at issue. Section 741.130(1), Florida Statutes (2013) “created a cause of action for an injunction for protection against domestic violence.” The ensuing subsections establish the procedures which are to be followed by a petitioner initiating a cause of action and seeking such permanent injunctive relief. Relevant for our purposes, section 741.30(3)(a) provides:

The sworn petition shall allege the existence of such domestic violence and shall include the specific facts and circumstances upon the basis of which relief is sought. (Emphasis added)

Further, section 741.30(6)(b) provides:

In determining whether a petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court shall consider and evaluate all relevant facts alleged in the petition, including but not limited to.... (Emphasis added)

In the case at bar, the only allegations contained in the petition were two verbal threats made by Sanchez to Marin in November of 2012. Marin made no allegations in her petition (and never sought to amend her petition to add allegations) that Sanchez set fire to Marin’s property or to property belonging to Olga Alvarez.

The case relied upon by Marin, Bacchus v. Bacchus, 108 So.3d 712 (Fla. 5th DCA 2013), is inapposite. In Bacchus, the wife filed a petition for injunction against domestic violence and a temporary injunction was issued. A final hearing was scheduled fifteen days later, for December 13, 2011. However, on that date the court entered an order, upon the agreement of the parties, extending the temporary injunction for four months. Prior to the expiration of the extended temporary injunction, the wife filed a motion for a second extension of the temporary injunction and the matter was set for a hearing.

After taking testimony, the trial court again extended the temporary injunction, this time for an additional year. The husband appealed and the Fifth District held that section 741.30 does not contemplate the issuance of a series of temporary injunctions in lieu of a permanent injunction. The Fifth District found the trial court erred in extending the temporary injunction, and also found that the evidence presented at the hearing was insufficient to support the issuance of a permanent injunction.

However, instead of ordering dismissal of the petition, the Bacchus court remanded for a new final hearing because of a second error: at the hearing, the trial court prohibited the wife from introducing any evidence regarding events that took place before the December 13, 2011 (the date of the first extension of the temporary injunction), and permitted evidence only of events occurring after that date. The Fifth District held this was error:

In determining the reasonableness of Wife’s fear, the trial court was not limited to examining the circumstances occurring after the previous injunction was entered. The trial court could also consider the circumstances that initially led to the imposition of the injunction to determine whether Wife’s continuing fear of future violence was reasonable.

Bacchus, 108 So.3d at 715 (citation omitted).

This aspect of Bacchus stands for the unremarkable proposition that a trial court is permitted to consider, and a petitioner permitted to introduce, evidence of “the circumstances occurring after the previous injunction was entered.” However, Marin urges that this compels a finding that the trial court in our case committed no error. We disagree. Unlike the instant ease, Bacchus was not set against a backdrop of lack of due process and inadequate notice. There is nothing in the Bacchus opinion to indicate that either party contested the trial court’s consideration of events occurring after temporary injunction was issued. More to the point, there is nothing in Bacchus to indicate whether the petition was amended to include (or the motion for extension of the temporary injunction included allegations of) acts or events occurring after issuance of the temporary injunction; whether the husband had been placed on notice of, and was prepared to defend, these post-temporary injunction events; or whether the husband objected to and properly preserved any such objection for appellate review.

CONCLUSION

Marin raised material allegations for the first time during the final hearing. Marin never sought to amend the petition, or otherwise place Sanchez on notice prior to the hearing, that she would seek to introduce evidence that Sanchez set fire to Marin’s vehicles while those vehicles were stored on a lot belonging to Olga Alvarez. Marin objected that he was not placed on notice that these allegations and this evidence (including testimony from Olga Alvarez regarding the fire) would form a part of the proof in support of the petition for permanent injunction, and was not prepared to meet or rebut the allegations and evidence. The trial court erred in admitting this evidence over Sanchez’s timely and proper objection. The error was clearly harmful, as the court’s decision to grant the permanent injunction expressly relied, in significant part, on this improperly-admitted evidence.

We therefore reverse and remand with directions to vacate the permanent injunction and for a new final hearing, either upon the existing petition or upon any amended petition that may properly be filed.

Reversed and remanded with directions.

      . There is no dispute that Marin and Sanchez are "family members” as defined in section 741.28, Florida Statutes (2013), because they did live together in the past.

      . See § 741.30(5)(a), Fla. Stat. (2012).

      .What is relevant however, is the fact that, between the date of the denial of the temporary injunction and the date of the final hearing (a period of nearly four months) Marin never amended her petition to add any allegations of intervening acts by Sanchez.

      . See § 741.30(5)(b) (“Nothing herein affects a petitioner’s right to promptly amend any petition, or otherwise be heard in person on any petition consistent with the Florida Rules of Civil Procedure.’’). See generally, Fla. R. Civ. P. 1.190.


author: WELLS, Judge.

text:
    The STATE of Florida, Appellant, v. Graylin KELLY, Appellee.
    No. 3D13-197.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and James Moody, Assistant Public Defender, for appellee.
    Before WELLS, EMAS and SCALES, JJ.
   WELLS, Judge.

The State of Florida appeals from a thirty year suspended sentence imposed following an open plea of guilty to four separate armed robberies, each of which carries a minimum mandatory sentence. Because the sentence imposed is illegal, we reverse and remand to allow the defendant to withdraw his plea and/or to be resen-tenced.

While on probation for grand theft of a vehicle, Graylin Kelly was arrested for and charged with having committed seventeen separate robberies with a firearm. Nine of these charges were prosecuted by the United States of America in federal court where a thirty-two year sentence (which included a minimum mandatory sentence of twenty-seven years) was imposed. The eight remaining cases were prosecuted in state court, where four were dropped after Kelly demanded speedy trials.

On January 14, 2013, the first of these four cases (Fll-019136) was called for trial. Following extensive discussions about how to structure a sentence that would run concurrent with Kelly’s federal sentence and that would allow Kelly to serve all of this sentence in federal prison, the State offered Kelly concurrent bottom of the guidelines sentences of 13.6 years in each of the four remaining cases, each with a ten year minimum mandatory, with each sentence to run concurrent with each other. When Kelly rejected this offer, which in effect would require that he serve ten years in state prison before beginning to serve his federal sentence, the State withdrew from negotiations and declared that it was ready for trial.

The trial court thereafter, over the State’s objection, offered to impose concurrent sentences of thirty years in state prison on each of the armed robbery charges; the court also offered to impose a fifteen year sentence for displaying a firearm while committing a felony and a five year sentence on the probation violation charge with all sentences to run concurrent. The court advised that it intended to suspend all of these sentences so that Kelly’s state “sentences” would run concurrent with his federal sentence and that he would serve all of his sentences in federal prison.

Kelly then pled guilty to the charges in each of these cases and was sentenced to a thirty-year suspended sentence for all of the cases pending against him. The State appeals, claiming the sentence is illegal because a sentence cannot be suspended where no probation has been imposed. Kelly counters arguing that the sentence is legal under Taylor v. State, 710 So.2d 636 (Fla. 3d DCA 1998), and its progeny. While we agree with neither position, we nonetheless find that the sentence imposed is illegal and must therefore be reversed.

Section 775.087 of the Florida Statutes clearly states that a conviction for robbery while possessing a firearm carries a ten-year minimum prison sentence, a sentence which cannot be suspended;

(2)(a)l. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for ... Robbery ... and during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.01, shall be sentenced to a minimum term of imprisonment of 10 years....
(b) ... Notwithstanding s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, and the defendant is not eligible for statutory gain-time ... prior to serving the minimum sentence.

§ 775.087(2)(a)l.c, (b), Fla. Stat. (2014).

While section 27.366 of the Florida Statutes accords prosecutors with the discretion to waive imposition of minimum mandatory sentences, such leeway has not been accorded to the courts. § 27.366, Fla. Stat. (2014) (“It is also the intent of the Legislature that prosecutors should appropriately exercise their discretion in those cases in which the offenders’ possession of a firearm is incidental to the commission of a crime and not used in furtherance of the crime, used in order to commit the crime, or used in preparation to commit the crime.”); State v. Vanderhoff, 14 So.3d 1185, 1189 (Fla. 5th DCA 2009) (confirming that section 775.087(2) of the Florida Statutes removed most sentencing discretion from the judicial branch, according only the State Attorney with the discretion to waive a minimum mandatory sentence); Johnson v. State, 53 So.3d 360, 362 (Fla. 5th DCA 2011) (confirming that “the imposition of a mandatory minimum sentence under section 775.087(2) is a non-discretionary duty of a trial court where the record reflects that the defendant qualifies for mandatory minimum sentencing”).

The record in this case is that the State Attorney did not agree to waive the minimum mandatory sentences that section 775.087(2) required be imposed following Kelly’s acknowledgement of guilt to commission of four separate robberies while possessing a firearm. The court below was, therefore, without authority either to impose any sentence without also imposing the mandated minimum mandatory sentence required by section 775.087 or to suspend those sentences.

This court’s decision in Taylor and the decisions in Glenn v. State, 776 So.2d 330 (Fla. 4th DCA 2001), Davis v. State, 852 So.2d 355 (Fla. 5th DCA 2003), Sadler v. State, 980 So.2d 567 (Fla. 5th DCA 2008), and Rodgers v. State, 76 So.3d 349 (Fla. 3d DCA 2011), relied on by Kelly in his brief, have no bearing on this determination. In Taylor, this court utilized an exception to the general rule that a sentence may be suspended only as an incident to probation, which exception applies where extraordinary circumstances exist. See Taylor, 710 So.2d at 637 (citing Helton v. State, 106 So.2d 79 (Fla.1958)); see also Mazza v. State, 948 So.2d 872/874 (Fla. 4th DCA 2007) (“Since at least 1941, a trial court has lacked authority to suspend or withhold indefinitely the imposition of sentence upon a convicted defendant except as an incident to probation under the provisions of Chapter 948, Florida Statutes.”). However, in doing so we noted that “all parties to the appellant’s entry of a guilty plea [understood] that he would serve the agreed seven year sentence in federal prison concurrent to a longer federal sentence.” Taylor, 710 So.2d at 637. Similar understandings were reached by “all” parties in Glenn and Sadler. There was no such understanding amongst all of the parties in this case because the State — the only entity that could waive the minimum mandatory sentences — refused to agree to it. And while the decisions in Davis and Rodgers suggest that no plea agreements with the State were involved, from the sentences involved (five years for grand theft of a motor vehicle in Davis and a three year sentence in Rodgers) it appears that no minimum mandatory sentences had to be imposed. In sum, not one of these decisions suggests, much less holds, that where an open plea is entered on a charge which carries a minimum mandatory sentence that a trial court may unilaterally waive that sentence and/or suspend it.

Thus, because the sentence imposed below is illegal, it must be reversed. Nevertheless, because “Florida Rule of Criminal Procedure 3.172(c)(1) requires that the trial judge determine that a defendant understands the reasonable consequences of the plea, including ‘the maximum possible penalty, and any mandatory minimum penalty provided by law,’ ” Kelly should be allowed to withdraw his plea on remand if he so chooses. Vanderhojf, 14 So.3d at 1189 (quoting Fla. R. Civ. P. 3.172(c)(1)). Accordingly, the sentences imposed in this case are reversed and the matter remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . Kelly was charged in this case with robbing Anne Mompoint on July 15, 2011 with a gun. In FI 1-019134, Kelly was charged with robbing a store on July 19, 2011 with a gun; in FI 1-019137, he was charged with robbing Arsay Gonzales on July 16, 2011 with a gun; and in F11-029078A, he was charged with robbing a different store with a gun. Kelly was also charged with displaying a firearm while committing a felony in this case.

      . We also note that the court's decision to suspend the sentences constituted a downward departure sentence for which no valid justification was provided. State v. Brannum, 876 So.2d 724, 725 n. 1 (Fla. 5th DCA 2004).


text:
    Dwayne A. GRIGLEN, Petitioner, v. Timothy RYAN, etc., et al., Respondent.
    No. 3D13-2000.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant-Attorney General, for respondent.
    Before SHEPHERD, C.J., and SUAREZ and EMAS, JJ.
   On Petition for Writ of Habeas Corpus

PER CURIAM.

The Petitioner, Dwayne A. Griglen, brings this petition for a writ of habeas corpus to test the legality of the circuit court’s order setting bond and imposing other conditions of pre-trial release. We grant the writ and vacate the erroneously imposed bond requirement in case F13-4783A.

Griglen was arrested and charged with three offenses in case F13-4783A. At Gri-glen’s first nonadversary probable cause hearing, the judge found there was no probable cause but released Griglen “on his own recognizance” with the only condition that he return to appear in court the following month. Subsequently, Griglen was arrested in an unrelated matter in case F13-015755. At the hearing in case F13-015755, the court found that the new charges were a violation of pre-trial release conditions in case F13-4783A despite a finding of no probable cause. The trial court erroneously imposed monetary bonds for all three counts in case F13-4783A.

Section 907.041, Florida Statutes (2018) provides that “a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.” The question in this case is whether a defendant who is “released from custody” upon a court’s determination of no probable cause, see Florida Rule of Criminal Procedure 3.133(a)(4), is on “pretrial release” and therefore subject to the conditions provided in section 903.047(l)(a), Florida Statutes (2013) We agree that the answer to that question is “no”.

At the nonadversary preliminary hearing, the State failed to produce sufficient evidence of probable cause. Therefore, the trial court was required to release the defendant from custody. See Fla. R. Crim. P. 3.133(a)(4) (“If probable cause is not found ... the defendant shall be released from custody....”) [e.s.]. This type of release is not the same as a “release on recognizance,” because the rule itself addresses both types of release: A defendant shall be “released from custody” where the court finds no probable cause and no formal charges have been filed at that time. However, if the court finds no probable cause, but formal charges have already been filed, a defendant shall be “released on recognizance, subject to the condition that he or she appear at all court proceedings.” Id. Thus, the rule draws a distinction between these two types of “release,” and we agree that in this case, the finding of no probable cause with no formal charges filed meant the defendant was required to be “released from custody,” without the condition set forth in section 903.047(l)(a). This type of release should not be equated with “pretrial release” as that term of art is used in sections 903.047 and 903.0471. Rather, this type of release, in essence, is a recognition that the defendant should not.be in custody or on any form of pretrial release or supervision, because his arrest was made in the absence of probable cause (or at the very least, in the absence of proof by the State that it was made with probable cause). Under these circumstances, a release from custody, without conditions, places the defendant in the same position (from a custodial, liberty and supervisory standpoint) he was in prior to his arrest. Because the defendant’s release cannot be considered a “pretrial release” it could not be conditioned upon his compliance with section 903.047(iXa). Therefore his release could not be revoked pursuant to section 903.0471 as a result of his subsequent arrest for a new crime.

We would add that the State had an available remedy if it wanted the court to reconsider the question of probable cause (and with it the defendant’s release status). The State could have filed a motion under rule 3.138(c), which provides:

(c) Additional Nonadversary Probable Cause Determinations and Preliminary Hearings. If there has been a finding of no probable cause at a nonad-versary determination or adversary preliminary hearing, or if the specified time periods for holding a nonadversary probable cause determination have not been complied with, a judge may thereafter make a determination of probable cause at a nonadversary probable cause determination, in which event the defendant shall be retained in custody or returned to custody upon appropriate process issued by the judge. A defendant who has been retained in custody or returned to custody by such a determination shall be allowed an adversary preliminary hearing in all instances in which a felony offense is charged.

Under these facts, we grant the petition and vacate the bond conditions imposed in case number F13-4783A.

      . Section 903.047(l)(a), Florida Statutes (2013) provides:
      (1) As a condition of pretrial release, whether such release is by surety bail bond or recognizance bond or in some other form, the defendant shall:
      (a) Refrain from criminal activity of any kind.

      . The singular exception, provided by rule, is that the defendant who has been released from custody must appear for trial. See Fla. R. Crim. P. 3.133(a)(5) ("A release required by this rule does not void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial”). This "condition” merely recognizes that a finding of no probable cause does not terminate the prosecution, and the court maintains jurisdiction over the case and the defendant. As a result, the defendant remains subject to the court’s order that he appear for trial. Even the defendant has conceded the viability of this requirement for one who has been "released from custody” without conditions.

      .Of course, in determining the amount of bail or other conditions of release for the new arrest, the court may consider the defendant’s pending charge in the instant case. See § 903.046(2)(g), Fla. Stat. (2013) (providing that in determining whether to release a defendant on bail or other conditions, the court shall consider "[w]hether the defendant is already on release pending resolution of another criminal proceeding.')


author: LOGUE, J.

text:
    Shaban MOHAMMAD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-546.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.
    Carlos J. Martinez, Public Defender, and Harvey Sepler, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   LOGUE, J.

Shaban Mohammad appeals from an order denying his motion to correct his sentence. The sentence was entered based upon Mohammad’s plea bargain with the State admitting to violating his probation from an earlier conviction. Mohammad seeks an award of all credit for time previously served in his case.

In the first place, we agree with the First, Second, Fourth, and Fifth Districts that a defendant who receives a sentence as a result of a violation of probation is generally entitled to all credit for time served, including time spent in jail awaiting the resolution of the original case; the time served upon his original sentence; and time served in jail pending the outcome of the subsequent probation violation. Barnes v. State, 74 So.3d 1135, 1136 (Fla. 2d DCA 2011) (“[A] probation violator sentenced to prison is entitled to credit for time served in jail awaiting the original probationary sentence”) (citation omitted); Powell v. State, 763 So.2d 364, 366 (Fla. 4th DCA 1998) (“A defendant who is re-sentenced to prison after violation of the probationary portion of his split sentence is entitled to credit for time actually served on the prison portion of his split sentence prior to the commencement of the probationary term.”); Tomiuk v. State, 663 So.2d 681 (Fla. 5th DCA 1995) (“[J]ail time credit is not forfeited when a defendant is resentenced as a result of a violation of probation or community control.”); Bowers v. State, 645 So.2d 1108 (Fla. 1st DCA 1994) (“We reverse and remand for correction of the sentence to credit Bowers for actual time served on his original sentence ... plus 55 days previously credited for time served prior to imposition of the original sentence”).

The exceptions to this doctrine do not apply here. In particular, there is no evidence in the record that Mohammad waived his entitlement to full credit for time served as part of his plea with the court. Accordingly, we reverse and remand with instructions that the trial court enter a sentence that reflects full credit for time served. See Lopez v. State, 103 So.3d 991, 993 (Fla. 3d DCA 2012) (“At no time did the sentencing court discuss with Lopez a waiver of any credit for time served; nor did the court condition its acceptance of the plea upon Lopez waiving such credit. Under these circumstances, and in the absence of a waiver on the record, the trial court did not have the authority to impose a sentence without granting Lopez credit for all time previously served in the county jail.”); Ryan v. State, 837 So.2d 1075,1076 (Fla. 3d DCA 2003) (“[Ajlthough a defendant can waive credit for time served as part of a plea agreement, such waiver must be clearly shown on the record.”).

Reversed and remanded.


text:
    Desmond BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3251.
    District Court of Appeal of Florida, Second District.
    May 21, 2014.

      Desmond Baker, pro se.
   PER CURIAM.

Desmond Baker appeals the order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850. Because Baker received a mandatory sentence of life without the possibility of parole for a first-degree murder he committed when he was fifteen years old, we reverse the postconviction court’s order summarily denying his motion and remand the case for further proceedings consistent with Miller v. Alabama, — U.S.—, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Toye v. State, 133 So.3d 540 (Fla. 2d DCA 2014).

NORTHCUTT, CASANUEYA, and KELLY, JJ., Concur.


text:
    Jerome THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1633.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.
    Carlos J. Martinez, Public Defender, and Shannon Healy, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, for appellee.
    Before SUAREZ, SALTER and LOGUE, JJ.
   PER CURIAM.

Affirmed. Bottoson v. State, 443 So.2d 962, 966 (Fla.1983).


text:
    William A. WILSON, Jr., Appellant, v. Lili M. WILSON, Appellee.
    No. 4D13-598.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.

      Joy A. Bartmon, Boca Raton, for appellant.
    Kristina B. Pett of Pett Furman, PL, Boca Raton and Amy B. Beller of Beller Smith, PL, Boca Raton, for appellee.
   MAY, J.

A father appeals a probate order determining that the son’s ashes were not “property” as defined by section 731.201(32), Fla. Stat. (2012), and therefore not subject to partition. We affirm.

The twenty-three year old son, single and without children, died in a tragic automobile accident. He left no will and no written or verbal instructions for disposition of his body. His parents are co-personal representatives of their son’s estate, and the sole beneficiaries.

After their son’s death, the parents agreed to have his body cremated. They were unable, however, to agree on the final disposition of his ashes. The mother wanted to bury the son’s ashes in West Palm Beach, Florida. The father wanted to bury the son’s ashes in a family burial plot in Blue Ridge, Georgia.

The father petitioned the court to declare the ashes “property” to be partitioned under the probate code. This would allow each parent to dispose of half of the ashes as they desired. For religious reasons, the mother opposed having the ashes divided.

Specifically, the father requested the court to order that the ashes be divided into two containers, and the funeral be home directed to distribute the containers to the parties. After an evidentiary hearing, the trial court found that the ashes were not “property” subject to partition, and denied the father’s petition.

The court gave the co-personal representatives 30 days “to carry out their duties and responsibilities to finally dispose of [their son’s] remains ....” If they were unable to reach agreement, the court indicated that it might appoint a curator or other suitable person to carry out the task. From this order, the father has now appealed.

The father argues the trial court improperly relied on cases from other states with statutes that do not contain the same definition of “property” as Florida’s Probate Code. He argues that the ashes fit within the plain meaning of “property” as defined by section 731.201(32). The mother responds that the ashes are not “property,” and are not' subject to ownership. Rather, she argues the next of kin have only a limited possessory right to the remains for disposition purposes. We agree with the mother as did the trial court.

We have de novo review of this legal issue. Sumner Grp., Inc. v. M.C. Distributee, Inc., 949 So.2d 1205, 1206 (Fla. 4th DCA2007).

We are presented with an issue of first impression, for no Florida court has answered the precise issue posed. And so, we start by traveling back in history to reflect on how deceased bodies and ashes have been viewed over time. In 1753, Sir William Blackstone commented:

Pews in the church are somewhat of the same nature, which may descend by custom immemorial (without any ecclesiastical concurrence) from the ancestor to the heir. But though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried.

1 Sir William Blackstone, Commentaries on the Laws of England in Four Books 429 (Philadelphia, J.B. Lippencott Co. 1893), available at http://oll.libertyfund. org/title/2140 (emphasis added).

This non-property interest was again expressed in Regina v. Sharpe, (1857) 169 Eng. Rep. 959 (Crown) 960; Dears. & Bell 159, 161. There, a defendant appealed a misdemeanor conviction for wrongful removal of a corpse from a grave. Id. The court stated: “Our law recognises [sic] no property in a corpse, and the protection of the grave at common law, as contradistin-guished from ecclesiastical protection to consecrated ground, depends upon this form of indictment .... ” Id. (emphasis added).

The historical basis for this thinking was derived in part from the English view that “the secular tribunals would protect the monument, the winding-sheet, the grave-clothes, even down to the ribbon (now extant) which tied the queue; but the Church would guard the skull and bones.” In re Widening of Beekman Street, 4 Bradf. 508, 522 app. (1856) (historical note on the law of burial by the Honorable Samuel B. Ruggles, Referee)

Fast forward to today. Our probate code defines “property” as “both real and personal property or any interest in it and anything that may be the subject of ownership.” § 731.201(32), Fla. Stat. (2012). That definition has existed since 1975. Yet, as our supreme court has articulated, “[a]ll authorities generally agree that the next of kin have no property right in the remains of a decedent.” State v. Powell, 497 So.2d 1188, 1191 (Fla.1986) (emphasis added). The supreme court clarified its position in Kirksey v. Jemigan “to be consistent with the majority view that the right [to the remains] is limited to ‘possession of the body ... for the purpose of burial, sepulture or other lawful disposition ....’” Id. at 1191-92 (citing Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.1950)).

It reiterated its position again in 2001 in Crocker v. Pleasant, 778 So.2d 978, 988 (Fla.2001), acknowledging that “there is a legitimate claim of entitlement by the next of kin to possession of the remains of a decedent for burial or other lawful disposition.” But a claim of entitlement is not a property right, nor does it make the remains “property.”

Ashes are the decedent’s remains. Common law, our supreme court, and this Court have always held that a decedent’s remains are not property. See id.; see also Cohen v. Guardianship of Cohen, 896 So.2d 950, 954 (Fla. 4th DCA 2005) (“a dead body is not properly viewable as property or assets”).

The father relied on In re Estate of K.A., 807 N.E.2d 748 (Ind.Ct.App.2004), to support his request to partition the ashes. There, the child of a divorced couple was killed in an automobile accident. Id. at 749. The mother and father agreed to cremate the child’s remains, but disagreed on the disposition of the ashes. Id. Like here, the father petitioned for an order equally dividing the ashes. Id. After an evidentiary hearing, the trial court ordered that the ashes be divided, and the mother appealed. Id. The Indiana Court of Appeals affirmed, recognizing that “the practice of dividing the remains of a decedent among the survivors is common and acceptable in the funeral service industry” and “memento urns or keepsakes have been marketed to preserve divided ashes for surviving family members.” Id. at 751.

We, however, find K.A. easily distinguishable both legally and factually. First, the court specifically stated that the “trial court did not find that the cremated remains of K.A. were subject to division between her heirs as inherited property.” Id. at 751 n. 1. And second, applying the “clearly erroneous” standard of review, the appellate court held the evidence supported the trial court’s finding that K.A. wanted her ashes divided and spread at different locations. Id. at 750-51.

The mother and trial court relied instead on Kulp v. Kulp, 920 A.2d 867 (Pa.Super.Ct.2007). There, a couple disagreed over who should keep their child’s cremated remains in a divorce proceeding. Id. at 869. The trial court ordered that the ashes be divided evenly between the two parents, and the father appealed. Id. The appellate court reversed. Id. at 868.

[T]he issue is an extremely sensitive one. While the division of cremated remains may be common in the funeral industry and may be acceptable in many instances to the next of kin, in other cases, as in the case of Husband herein, the next of kin may believe that the division of cremated remains is offensive. The question thus presented is whether the trial court in the instant case abused its discretion in ordering the division of Son’s remains.

Id. at 872-73. The appellate court held the trial court had “abused its discretion in using its equitable powers to override the desires of one of the next of kin as to the division of Son’s remains.” Id. at 873.

We need not rely on either out-of-state case, but need only adhere to our own Florida precedent in declaring that the decedent’s remains are not “property.” In doing so, we adopt the words of Judge Warner in Cohen:

It is a sorrowful matter to have relatives disputing in court over the remains of the deceased. In this case in particular, there is no solution that will bring peace to all parties. We express our sympathies to both sides in their loss, which must be magnified by these proceedings. Cases such as this require the most sensitive exercise of the equitable powers of the trial courts. We are confident that the experienced trial judge exercised his power with due regard for the serious and emotional issues presented.

Cohen, 896 So.2d at 955.

Given the sensitive nature of the subject matter, and the fact that, historically, cremated remains have been treated the same as a body, neither constituting “property,” we decline to craft a policy at odds with our history and precedent. This is a matter best left to our legislature should it decide to address this sensitive policy issue.

Affirmed.

WARNER and LEVINE, JJ., concur.

      . The parents were divorced prior to their son’s death.