author: PER CURIAM. MAKAR, J.,

text:
    Shannon WHITFIELD, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D12-927.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2013.
    Shannon Whitfield, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charles F. Rivenbark II, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Inmate Shannon Whitfield appeals the order dismissing his petition for writ of mandamus challenging the disciplinary action taken against him by the Department of Corrections (Department). The circuit court dismissed the petition for failure to exhaust administrative remedies. We affirm the dismissal order on the basis that the petition was not timely filed in the circuit court.

In February 2011, Whitfield was issued a disciplinary report for possession of marijuana. He was found guilty of the offense after a disciplinary hearing, and as a result, he received 60 days in disciplinary confinement and lost 180 days of gain time. Whitfield timely filed a formal grievance with the warden of his institution, which was denied on March 28, 2011. Whitfield then appealed to the Secretary of the Department. The appeal was dated April 4, 2011, and according to Whitfield, it was provided to prison staff for mailing on April 6, 2011.

Whitfield claimed that he submitted his grievance appeal to the designated prison staff person in an unsealed envelope, but had he done so, the receipt portion of the appeal form would have been completed by the staff person before the appeal was mailed to the Secretary, see Fla. Admin. Code R. 33-103.006(8)(c)l-2 (requiring the staff person designated to receive inmate grievances to complete the receipt portion of the form “by entering a log/tracking number and date of receipt and sign as the recipient” and then record receipt of the grievance in the institutional log), and the receipt date recorded on the form would have been used to determine whether the appeal was timely. See Fla. Admin. Code R. 33-103.007(3)(a). The receipt portion of the appeal form submitted by Whitfield was blank, which is consistent with the appeal having been provided to the prison staff in a sealed envelope to be mailed directly to the Secretary without first being processed by staff. Compare Fla. Admin. Code R. 33-103.006(8)(d) (“If the inmate desires his grievance to be forwarded in a sealed envelope, the inmate shall provide to the staff person a properly addressed envelope so that once the grievance is processed by staff, the grievance can be placed into the envelope and sealed for forwarding.”) with Fla. Admin. Code R. 33-103.006(8)(e) (“If the inmate elects to mail the grievance to central office directly and bypass the logging/tracking process, the inmate may submit his or her grievance in a sealed envelope to be placed in the institutional bulk mail that is to be mailed daily to central office”). As a result, the date the appeal was actually received by the Secretary was used to determine the timeliness of the appeal.

Whitfield’s appeal was received by the Secretary on April 13, 2011, which was one day after the applicable deadline. See Fla. Admin. Code R. 33-103.011(l)(c) (“Grievance appeals to the Office of the Secretary — Must be received within 15 calendar days from the date of the response to the formal grievance.”). Accordingly, on April 18, 2011, the Secretary returned the appeal to Whitfield with “no action,” advising him that “[y]our failure to have your grievance receipted locally may have contributed to your failure to file the grievance timely.”

Whitfield did not seek judicial review in the circuit court within 30 days of the Secretary’s response. Instead, in August 2011, he embarked on a second round of grievances and appeals within the Department challenging the Secretary’s determination that his original appeal was untimely. When this series of grievances was unsuccessful, Whitfield filed a petition for writ of mandamus in the circuit court. The petition was filed on September 14, 2011.

In the petition, Whitfield sought judicial review of the merits of the disciplinary action taken against him based on the February 2011 disciplinary report. The circuit court issued an order to show cause and the Department filed a response in which it argued that the petition should be dismissed based on Whitfield’s failure to exhaust his administrative remedies on the disciplinary report by not timely appealing the denial of his original grievance to the Secretary. In reply, Whitfield argued that his appeal to the Secretary was timely under the “mailbox rule” in Haag v. State, 591 So.2d 614 (Fla.1992), because he turned the appeal over to prison staff for mailing on April 6, 2011. The circuit court dismissed the petition based on Whitfield’s failure to exhaust his administrative remedies, and this appeal followed.

As he did below, Whitfield contends on appeal that his original grievance appeal was timely because he provided it to prison staff for mailing prior to the appeal deadline. The Department responds that the appeal to the Secretary was untimely — and, thus, the circuit court properly determined that Whitfield had not exhausted his administrative remedies — because Whitfield bypassed the institution’s mailing procedures for grievance appeals and instead submitted his appeal in a sealed envelope for mailing directly to the Secretary. The Department argues in the alternative that dismissal was proper because the mandamus petition was untimely, having been filed in the circuit court more than 30 days after the Department’s final action in the original disciplinary proceeding.

We find the Department’s alternative argument to be dispositive. Thus, we need not consider whether the circuit court correctly determined that Whitfield failed to exhaust his administrative remedies, nor do we need to address whether the Department’s use of the date of receipt by the Secretary (rather than the date the appeal is provided to prison staff for mailing) is proper when an inmate elects to bypass the loggingtracking process when submitting a grievance appeal. But cf. Gonzalez v. State, 604 So.2d 874, 876 (Fla. 1st DCA 1992)(holding prior to the adoption of the mailing procedures in rule 33-103.006(8) that the mailbox rule in Haag applies to the administrative grievance process within the Department and, thus, a grievance appeal is “deemed ‘received’ by the Department ‘at the moment in time when the inmate loses control over the document by entrusting its further delivery or processing to agents of the state’ ”) (quoting Haag, 591 So.2d at 617).

Section 95.11(8), Florida Statutes (2011), provides that “[a]ny court action challenging prisoner disciplinary proceedings conducted by the Department ... must be commenced within 30 days after final disposition of the prisoner disciplinary proceedings through the administrative grievance process under chapter 33, Florida Administrative Code.” This time period is jurisdictional and, thus, a mandamus petition filed more than 30 days after the final disposition of a disciplinary proceeding must be dismissed. See, e.g., Hale v. McDonough, 970 So.2d 362, 364-65 (Fla. 3d DCA 2007); see also § 95.11(8), Fla. Stat. (2011) (“Any action challenging prisoner disciplinary proceedings shall be barred by the court unless it is commenced within the time period provided by this section.”).

The Secretary’s “no action” response to Whitfield’s original grievance appeal was the final disposition of the disciplinary proceedings. Thus, that was the point at which Whitfield was required to seek judicial review of both the Secretary’s decision that his grievance appeal was untimely and the disciplinary action taken against him. Whitfield’s pursuit of additional, unauthorized administrative grievances did not toll or otherwise extend the time in section 95.11(8) for seeking judicial review. Accordingly, Whitfield’s petition, filed 149 days after the Secretary’s response to his original grievance appeal, was untimely and barred by section 95.11(8).

In sum, because Whitfield’s mandamus petition seeking judicial review of his disciplinary action was not filed within the 30-day statutory time limit, the circuit court lacked jurisdiction to consider the petition and, thus, the court did not err in dismissing the petition. Accordingly, we affirm the dismissal order.

AFFIRMED.

CLARK and WETHERELL, JJ., concur; MAKAR, J., concurs with opinion.

MAKAR, J.,

concurring.

I agree that Appellant, Shannon V. Whitfield, did not timely seek review in the circuit court of the Department’s refusal to accept his appeal as timely. As to whether he timely filed an appeal with the Department from his initial grievance, it is worth noting that in Gonzalez v. State, 604 So.2d 874 (Fla. 1st DCA 1992), we explicitly held that the mailbox rule applies to prisoners when they submit internal grievance appeals by U.S. Mail, which is what Whitfield did here. We held:

[ Wjhere an appeal from a grievance procedure must be received by the Department within 15 calendar days of the date of the institutional response, under the mailbox rule the appeal is deemed ‘received’ by the Department “at the moment in time when the inmate loses control over the document by entrusting its further delivery or processing to agents of the state.”

Id. at 876 (quoting Haag v. State, 591 So.2d 614, 617 (Fla.1992)). Gonzalez explicitly requires that the Department deem a legal paper (even one involving an internal administrative appeal) as timely filed on the day the inmate gives control of the document to a prison official; this rule applies to any situation where jurisdiction is based on the timeliness of a filing. Id. at 875-76 (mailbox rule to be “uniformly applied whenever a pro se inmate is required to use the U.S. mail to file documents within a limited jurisdictional time-frame”).

Here, Whitfield must have put the document in the hands of a prison official on or before the deadline; after all, the Department received it in the mail the day after the deadline. This would be proof enough to comport with this Court’s and the supreme court’s direction that a prisoner provide some evidence to show relinquishment of control to prison officials on or before the deadline. Thompson v. State, 761 So.2d 324, 326 (Fla.2000); see also Gonzalez, 604 So.2d at 876.

The Department’s brief omits mention of Gonzalez (or Haag or Thompson), presumably because it assumes its administrative rule, Rule 33 — 103.006(2)(h)—which subsequent to Gonzalez created a means of delivering grievances and appeals internally within the Department — operates to nullify the prisoner mailbox rule for those inmates, such as Whitfield, who choose to place their legal papers directly in the U.S. mail system. The Department’s only mention of the prison mailbox rule is its assertion that its administrative rule “provides an inmate the opportunity to have his or her grievances receipted at the institution, thereby complying with the Prisoner Mailbox Rule.”

While the administrative rule provides one means for inmates to present their grievances to the Department, it is unclear whether its adoption was intended to be the exclusive means and thereby operate to override the judicially-created filing presumption that allows for the type of filing made by Whitfield in this case. See Gon zalez, 604 So.2d at 876. Due process concerns underlie the prisoner mailbox rule and the ability of those incarcerated to access the courts and, impliedly, the agency officials who act in a quasi-judicial capacity to resolve administrative grievances and appeals. Art. I, § 9, Fla. Const.; Gonzalez, 604 So.2d at 875-76. In this case, it seems odd that a prisoner, who timely placed his self-stamped appeal in the hands of prison officials, would be denied judicial review simply because he did so rather than placing it in a designated box for the Department to deliver it internally. A counter-point is that inmates are given a specified method of access that provides accountability; they take the risk when they choose to not utilize it; other arguments assuredly exist.

As noted, we need not decide this point of law today, an issue that was sidestepped by the Fourth District in Pedroza v. Tadlock, 705 So.2d 1005 (Fla 4th DCA 1998) (administrative rule inapplicable because it became effective after the date prisoner submitted his legal papers). But it merits resolution to eliminate uncertainty that may exist about the continued viability of Gonzalez.

      . Rule 33-103.006 governs institution level grievances. Rule 33-103.007 governs appeals to the Secretary, but rule 33-103.007(l)(h) incorporates the mailing procedures in rule 33-103.006(8).

      . The Secretary’s response was dated April 14, 2011, but it was not filed with the clerk of the Department until April 18, 2011. The latter date is the date of rendition for purposes of judicial review. See Fla. R.App. P. 9.020(h); Ortiz v. Moore, 741 So.2d 1153, 1154 (Fla. 1st DCA 1999) (”[T]he timeliness of an inmate petition challenging a disciplinary proceeding is dependent upon the date of rendition of the ‘order’ constituting final disposition of the inmate’s grievances concerning the proceeding.”).

      .The petition was received by the clerk of the circuit court on September 16, 2011, but the certificate of service included with the petition reflects that it was provided to prison officials for mailing on September 14, 2011, and thus it was deemed filed on that date. See Fla. R.App. P. 9.420(a)(2). ■


source: Caselaw Access Project

author: SWANSON, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Tarrence L. SMITH, Appellee.
    Nos. 1D11-5671, 1D12-826.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2013.

      Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   SWANSON, J.

The state seeks review of appellee’s re-sentencing for armed robbery after the trial court granted appellee’s motion to correct illegal sentence. The state claims the trial court erred in resentencing appel-lee upon concluding the life sentence without parole imposed after appellee violated his probation for a nonhomicide offense committed before he was eighteen years old constituted cruel and unusual punishment. We disagree and affirm.

In 1986, a jury found appellee guilty of armed robbery with a deadly weapon, a first-degree felony punishable by life imprisonment. The offense was committed two months before appellee’s eighteenth birthday.

The trial court originally imposed a guidelines departure sentence of twenty-five years in prison followed by fifteen years of probation. On appeal, this court reversed and remanded for resentencing. Smith v. State, 507 So.2d 788 (Fla. 1st DCA 1987). On remand, appellee received a reduced departure sentence of seventeen years in prison followed by fifteen years of probation. On subsequent appeal, this court affirmed appellee’s sentence. Smith v. State, 526 So.2d 1060 (Fla. 1st DCA 1988).

In 1994, after appellee’s release on probation, it was alleged appellee violated probation by absconding from supervision and committing new offenses of possession of a firearm by a convicted felon, grand theft auto, and escape. Appellee admitted to violating probation. Thereafter, the trial court revoked the probation and sentenced appellee to life in prison without parole. On appeal, this court affirmed without opinion. Smith v. State, 659 So.2d 1093 (Fla. 1st DCA 1995) (table).

In 2011, appellee filed a motion to correct illegal sentence. He claimed his life sentence without parole constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution because he was less than eighteen years old when he committed a nonhomi-cide offense, citing Graham v. Florida, - U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The trial court granted appellee’s motion based on Guzman v. State, 68 So.3d 295 (Fla. 4th DCA 2011), rev. denied, 86 So.3d 1114 (Fla.2012). The trial court concluded Guzman was binding precedent. Appellee was then resentenced to twenty-two years in prison followed by fifteen years of probation. This appeal by the state followed.

In Graham v. Florida, the United States Supreme Court stated:

This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole. This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment. Because “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,” those who were below that age when the offense was committed may not be sentenced to life without parole for a nonho-micide crime. Roper, 543 U.S. at 574, 125 S.Ct. 1183 [161 L.Ed.2d 1].

130 S.Ct. at 2030. Subsequently, in Guzman v. State, the Fourth District Court of Appeal interpreted Graham as prohibiting the imposition of a life sentence without parole for a nonhomicide offense committed when the defendant was fourteen years old, after the defendant violated his probation for that offense by committing new crimes as an adult. 68 So.3d at 298.

The state asserts Graham does not apply because appellee did not receive a life sentence without parole until after he violated his probation by committing new crimes as an adult, demonstrating he was unfit to reenter society. The state concedes this argument was rejected by the Fourth District in Guzman. The State also concedes Guzman was binding on the trial court in the absence of contrary authority. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (“[I]n the absence of inter-district conflict, district court decisions bind all Florida trial courts.”). However, the state claims Guzman was incorrectly decided and should not be followed by this court.

Appellee urges this court to follow Guzman because it is consistent with this court’s decision in Garland v. State, 70 So.3d 609 (Fla. 1st DCA 2010) (withdrawing prior opinion in Garland v. State, 28 So.3d 925 (Fla. 1st DCA 2010)), rev. denied, 60 So.3d 388 (Fla.), cert. denied, - U.S. -, 132 S.Ct. 574, 181 L.Ed.2d 441 (2011). Prior to the Supreme Court’s decision in Graham, Garland originally affirmed a life sentence without parole for a nonhomicide offense committed when the defendant was fifteen years old. Garland held the sentence was not cruel and unusual punishment because it was not imposed until the revocation of the defendant’s probation after he committed new felonies as an adult. 28 So.3d at 926. Later, this court withdrew its opinion, quashed the defendant’s sentence, and remanded for resentencing pursuant to Graham. 70 So.3d at 609. We reach a conclusion consistent with Garland.

Finally, appellee notes the Third District Court of Appeal’s decision in Lavrrick v. State, 45 So.3d 893 (Fla. 3d DCA 2010), which relied upon Graham to reverse a life sentence without parole imposed on an eighteen-year-old defendant for violating probation imposed for nonhomicide offenses committed while he was sixteen. We conclude Guzman, Garland, and Lavrrick correctly construed Graham as providing a bright-line rule prohibiting the imposition of a life sentence without any possibility of parole for a nonhomicide offense committed when the perpetrator was under the age of eighteen.

Essentially, the state argues appellee’s violation, as an adult, of probation imposed for a nonhomicide offense committed as a juvenile could forever preclude any possibility of release on the offense even if appellee could later demonstrate maturity and rehabilitation. This cannot be reconciled with the Supreme Court’s conclusion in Graham. A life sentence for a nonho-micide offense committed by a juvenile defendant cannot forever foreclose any meaningful opportunity for the defendant to obtain release before the end of that term by demonstrating maturity and rehabilitation. 130 S.Ct. at 2032-33. Accordingly, the trial court did not err in resen-tencing appellee upon concluding his life sentence without parole after violating probation for a nonhomicide offense committed before he was eighteen years old constituted cruel and unusual punishment under Graham.

AFFIRMED.

BENTON, C.J., and WOLF, J., concur.


author: HARRIS, C.M., Senior Judge.

text:
    STATE of Florida, Appellant, v. Cedric Dewayne LEE, Appellee.
    No. 5D12-1097.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellee.
   HARRIS, C.M., Senior Judge.

The vehicle of Appellee, Cedric Dewayne Lee, was stopped for illegal tint. It turned out that his license had been revoked for 60 months as a habitual traffic violator. Lee entered an open plea to felony driving while license suspended with a guideline minimum sentence of 19.5 months in the Department of Corrections.

The trial judge mitigated the sentence and imposed a sentence of 19.5 months incarceration but suspended it upon Lee’s completion of 24 months’ probation. The court’s departure reasons were that Lee was cooperative and remorseful. The State appeals the sentence claiming it lacks record support.

If Lee cooperated at all, it was after his traffic stop. See State v. Subido, 925 So.2d 1052 (Fla. 5th DCA 2006); State v. Bell, 854 So.2d 686 (Fla. 5th DCA 2003). Lee did admit, after a request to provide his driver’s license, that his license was suspended and “possibly habitual.” His scoresheet revealed, in addition to one first-degree felony, two second-degree felonies, five third-degree felonies, and several misdemeanors, including four for driving while license suspended. Lee’s cooperation was minimal at best and he failed to establish this basis for departure.

There was no finding by the trial judge that the offense was unsophisticated or, after four previous arrests for substantially the same offense, that it was an isolated incident. Further, there was no evidence in the sentencing record to justify a finding of remorse.

REVERSED and REMANDED for RESENTENCING.

SAWAYA and TORPY, JJ., concur.


author: ORFINGER, C.J.

text:
    Brandon Lewis MEREDITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2114.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, C.J.

Brandon L. Meredith appeals the order revoking his probation and sentencing him to prison. The sole issue he raises is whether the trial court erred by failing to conduct the inquiry required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Florida Rule of Criminal Procedure 3.111(d)(2). We con-elude that the trial court’s inquiry failed to satisfy the requirements of either Faretta or rule 3.111(d)(2) and reverse.

At the violation of probation arraignment, the following discussion occurred between the trial court and Meredith:

THE COURT: And you’re here because you’ve allegedly violated probation. ...
So you’re facing up to five years in State prison....
And so do you want [an] attorney appointed in your case?
THE DEFENDANT: I don’t believe that will be necessary, Your Honor, I don’t like (indiscernible).
THE COURT: The question is—
THE DEFENDANT: No.
THE COURT: — yes or no.
You don’t — you do not want an attorney?
THE DEFENDANT: No, ma’am.
THE COURT: Are you under the influence now of any drugs, alcoholic beverage, medication of any type or been treated for any mental disorder?
THE DEFENDANT: I am not, Your Honor.
THE COURT: And you do read and write English?
THE DEFENDANT: Ido.
THE COURT: Have you represented yourself before in any criminal case?
THE DEFENDANT: I have.
THE COURT: You have. All right. Then I will allow you to represent yourself, you’re waiving your right to an attorney.

While a competent criminal defendant has the constitutional right of self-representation, before that election can be made, the trial court has an obligation to assure that the waiver of counsel is knowing, intelligent and voluntary. See McGee v. State, 983 So.2d 1212, 1214 (Fla. 5th DCA 2008). Accordingly, the court must conduct an inquiry, assuring that the defendant is “aware of the dangers and disadvantages of self-representation.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525; see Fla. R. Crim. P. 3.111(d)(2); Vega v. State, 57 So.3d 259, 262 (Fla. 5th DCA 2011). To this end, the trial court is required to make a sufficient record to demonstrate “how the defendant’s background, including his age, mental status, and education, affects his competency to waive his right to counsel.” McGee, 983 So.2d at 1215 (quoting Flowers v. State, 976 So.2d 665, 666 (Fla. 1st DCA 2008)).

The Faretta inquiry here was inadequate as it failed to demonstrate Meredith’s competency to waive counsel. Despite Meredith’s history of self-representation, the trial court should have conducted a more thorough Faretta inquiry. See Davis v. State, 10 So.3d 176, 179 (Fla. 5th DCA 2009) (holding fact that defendant represented himself at numerous prior proceedings was insufficient to excuse trial court’s failure to conduct full Faretta hearing). Accordingly, we reverse the order revoking Meredith’s probation and imposing a prison sentence, and remand this matter so that Meredith, with the assistance of counsel (or a proper waiver of counsel), may either withdraw his plea or seek a new sentencing hearing.

REVERSED AND REMANDED.

GRIFFIN and SAWAYA, JJ„ concur.


author: HARRIS, C.M., Senior Judge. LAWSON, J.,

text:
    Victoria Michelle WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2460.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    James S. Purdy, Public Defender, and Colby Nicole Ferris and Shannon Tim-mann, Assistant Public Defenders, Dayto-na Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   HARRIS, C.M., Senior Judge.

The trial judge, after considering the defendant’s numerous petit theft convictions, sentenced her to eighteen months in prison. When defendant’s counsel later suggested that defendant might have mental problems, the judge set aside the sentence and ordered a mental evaluation. After defendant was determined to be competent, she was rescheduled for sentencing.

Although no new facts were presented to the court, the judge increased defendant’s sentence to 30 months in prison. The judge reasoned that although defendant filed a motion for determination of competency, she was indeed competent and knew what she was doing at the time of the offense. Because the court had not considered defendant’s competency at the time of the original sentencing and because the court mentioned defendant’s long record at the original sentencing, there was nothing new presented which would warrant the increased sentence. See Longley v. State, 902 So.2d 925 (Fla. 5th DCA 2005).

Although defense counsel did not specifically argue “vindictive sentence,” she did point out to the court that nothing had changed since the first sentence to justify a greater sentence. This was adequate to preserve the issue. See Walcott v. State, 460 So.2d 915 (Fla. 5th DCA 1984).

REVERSED and REMANDED.

BERGER, J., concurs.

LAWSON, J., concurs and concurs specially with opinion.

LAWSON, J.,

concurring and concurring specially.

I agree with the majority opinion, and write to further explain a few points.

Defendant was being sentenced for violating her probation. The affidavit explained that Defendant violated her probation with a new offense (petit theft), which Defendant admitted. At the second sentencing hearing, after the trial court announced a longer sentence than announced at the first hearing, Defendant’s counsel repeatedly attempted to explain to the court that because nothing had changed that could reasonably affect the length of the sentence imposed, the sentence should not exceed the 18-months originally announced. As explained by the majority, this was sufficient to preserve the issue for review.

In response to counsel’s objections, the trial court initially indicated that the sentence was being increased because Defendant committed the new offense after the first sentencing hearing. This was not true. The offense was the basis for the violation to which Defendant originally pled. After Defendant’s counsel corrected this misimpression, the trial judge then explained that he was increasing the sentence because of facts relating to the new offense that had not been presented previously.

When Defendant’s counsel persisted by arguing that the same facts were before the court at the original sentencing hearing, the trial court then explained that it was “appropriate to give her a stiffer sentence because ... there’s not any mental issues about her competency.” There are two problems with this explanation. As addressed by the majority opinion, the trial judge certainly understood Defendant to be competent when he announced the first sentence, meaning that there were no changed circumstances relating to Defendant’s competency at the second hearing. Additionally, however, it should be clear that the fact of a defendant’s competence is an inappropriate sentencing consideration in any event. A defendant must be competent in order to proceed to sentencing, and thus, it makes no sense to suggest that a person can be punished for being competent, or for delaying proceedings for a competency determination.


text:
    Ebony Mechelle JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2562.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   HARRIS, C.M., Senior Judge.

Ebony Jones was convicted of burglary of a dwelling and criminal mischief. At sentencing, she requested a downward departure pursuant to section 921.00265(1), Florida Statutes (2010). At the sentencing hearing, Jones put on non-expert but unchallenged testimony that she has had mental health issues since her early teenage years and has been diagnosed with bipolar disorder and borderline personality disorder. It was also presented that schizophrenia runs in her family.

The trial court did not consider this evidence, but not because he did not believe the testimony or that the testimony would not justify departure. The sentencing court’s failure to grant departure was his finding that this Court’s decision in State v. Mann, 866 So.2d 179 (Fla. 5th DCA 2004), precluded any consideration of departure unless the defense first meets its burden of showing that appropriate treatment cannot be received in prison. This Court has now receded from Mann, see State v. Owens, 95 So.3d 1018 (Fla. 5th DCA 2012), and no longer places this burden on the defendant.

. The State claims, perhaps correctly, that Jones failed to meet all of the technical requirements of the statute. But it seems to be of greater concern that the sentencing court relied on law since changed by this Court and which should be applied to this sentencing. It would be more just to remand for resentencing under the correct law to see if Jones can meet the test.

REVERSED and REMANDED for RESENTENCING.

GRIFFIN and PALMER, JJ., concur.


author: PER CURIAM.

text:
    Larry L. MADISON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4387.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    Larry L. Madison, Sneads, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2008-CF-001533-A-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, C.J., and GRIFFIN and PALMER, JJ., concur.


text:
    Devon M. EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-74.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    Devon M. Edwards, Crawfordville, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 10-002300-CFMA, in the Circuit Court in and for Putnam County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, LAWSON and COHEN, JJ., concur.


text:
    Markeese S. MOSES, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-781.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The State properly concedes that the trial court erred in finding that Appellant violated Conditions 2 and 15 of his probation. However, there was competent substantial evidence to support the trial court’s determination that Appellant willfully violated Condition 5 by committing a new crime. Our review of the record convinces us that based only on the finding that Appellant had willfully violated Condition 5, the trial court would have revoked Appellant’s probation and imposed the same sentence. Accordingly, remand for reconsideration of the order revoking probation or the sentence is not necessary. Lawson v. State, 941 So.2d 485, 488 n. 2 (Fla. 5th DCA 2006), approved, 969 So.2d 222 (Fla.2007).

AFFIRMED; Findings as to Conditions 2 and 15 STRICKEN.

ORFINGER, C.J., SAWAYA and EVANDER, JJ., concur.


text:
    William R. DAVIES, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4227.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    William R. Davies, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The defendant, convicted in 1986 of first-degree murder, is now appealing from a 2010 denial of habeas corpus and a motion for clarification. Defendant alleges ineffective assistance of trial and appellate counsel, as well as from counsel consulted but not retained. Defendant alleges that his late filing should be excused under the holding of Steele v. Kekoe, 747 So.2d 931 (Fla.1999). Unlike Kehoe, however, defendant never retained counsel and therefore relied on none.

This is not the first time these matters have been considered by this Court. On August 12, 2012, this Court, by order, denied defendant’s petition raising ineffective assistance of counsel and on March 6, 1012, by per curiam affirmance, denied his request for habeas relief.

AFFIRMED.

PALMER, LAWSON, JJ„ and HARRIS, C.M., Senior Judge, concur.


text:
    Kenneth L. JENKINS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-176.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    Kenneth L. Jenkins, Jr., Blountstown, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2011-35444-CFAES, in the Circuit Court in and for Volusia County, Florida. See Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, TORPY, LAWSON, JJ., concur.


text:
    Frank SHERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2954.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   HARRIS, C.M., Senior Judge.

The issue in this case, as it was in Chukes v. State, 90 So.3d 950 (Fla. 5th DCA 2012), and Spivey v. State, 100 So.3d 1254 (Fla. 5th DCA 2012), is whether appellant, Frank Sherman, has presented sufficient probable cause to believe a trial is appropriate to determine whether it is safe to release him back into society. Appellant was committed under the Sexually Violent Predators Act and has petitioned for a hearing under Florida Statute 394.918 for such a trial. Section 394.918(3) provides for a “limited hearing” to determine whether probable cause exists to believe that the person’s condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged.

To meet his burden, appellant presented the reports of two mental health experts. One, Chris J. Carr, Ph.D., opined that there was no evidence of “ongoing sexually deviant thoughts or behavior” during the ten years of appellant’s involuntary commitment. Further, appellant showed no appreciable “ongoing antisocial behavior” during this period. Dr. Carr also indicated that based on the updated STATIC— 99, a sex-offender risk-assessment actuarial instrument, appellant would not qualify for civil commitment. Dr. Carr also stated that appellant’s failure to participate in a specific sex-offender treatment group would be offset by his lower static risks based on correspondence courses, his acquisition of a GED, Moral Recognition Therapy (“MRT”), religious studies, AA attendance, and achievement of the highest level of the behavioral incentive program. These facts, coupled with the fact of a self-reported prostate surgery, if confirmed by a medical expert, convinced Dr. Carr that “based on risk factors grounded in empirical research, [appellant] no longer meets the criteria as a sexually violent predator” and “is no longer likely to reoffend or to be a menace to society.”

Appellant’s other expert, Dean R. Cau-ley, Ph.D., explains in his report that the MRT completed by appellant taught him to recognize criminal thinking and to develop new, noncriminal coping and interacting skills. The program is designed to “enhance ego, social, moral and positive behavioral growth.” Dr. Cauley opined that not only had appellant’s condition changed, it had changed to the degree that he would no longer be a menace to society if released.

While these opinions, of course, disagree with the State’s witnesses, they are sufficient under both Chukes and Spivey to warrant a trial on the issue.

REVERSED.

PALMER and LAWSON, JJ., concur.


text:
    Gregory Alan FIELDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3405.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   HARRIS, C.M., Senior Judge.

Appellant was convicted of grand theft for stealing power from the power company by running a wire from a streetlight pole in front of his property underground, under his porch and into his home. The reconstructed value of this theft was in excess of $4,500.

Appellant first contends that there was insufficient evidence that the wire was actually connected to his home or that there was power running through the line. However, there was direct testimony that the wire was connected to the streetlight and the wire was “hot”. There was further direct testimony that a computer and refrigerator inside the home were operating when there was no visible power source other than the wire from the streetlight. A power cord to the neighbor’s house was disconnected and the generators in the rear of the house were not operating. This is sufficient evidence to avoid a judgment of acquittal.

The State also offered sufficient proof relating to the value of the property taken. The State proved the “estimate of loss” by reconstructed records prepared by the power company and received under the business records exception. There is sufficient evidence in the record to justify the admission of the evidence under the business records exception to the hearsay rule. Even so, claims appellant, this evidence was testimonial in nature as explained in Washington v. State, 18 So.3d 1221 (Fla. 4th DCA 2009), and a violation of his right of confrontation as provided by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). This issue was not preserved below and will not be considered in this appeal.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.


author: MORRIS, Judge.

text:
    David B. LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3244.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2013.
    David B. Lawson, pro se.
   MORRIS, Judge.

David B. Lawson appeals the order denying his motion requesting a ruling on a motion filed under Florida Rule of Criminal Procedure 3.850. We reverse and remand for the postconviction court to consider the rule 3.850 motion on its merits.

On June 25, 2009, Mr. Lawson entered a plea to several offenses, and the trial court sentenced him to ten years’ imprisonment. Although he apparently did not appeal his judgment and sentence, he filed several motions under rule 3.800(a) and rule 3.850, the denials of which were affirmed on appeal. On March 27, 2012, Mr. Lawson filed a motion requesting a ruling on a particular rule 3.850 motion on which he claimed never to have received a ruling. The rule 3.850 motion, which was attached to the motion requesting a ruling, bears a certificate of service dated March 8, 2010, that is in substantial compliance with the example provided for pro se inmates in Florida Rule of Appellate Procedure 9.420(d)(1). Moreover, stamped on the first page of the motion is the correctional institution’s certificate that Mr. Lawson provided the motion to prison officials for mailing on March 8, 2010.

The postconviction court denied Mr. Lawson’s request for a ruling because the March 8, 2010, motion had never been physically filed with the clerk of the circuit court. However, “under the mailbox rule, a pro se inmate’s document is deemed filed when the inmate entrusts the document to prison officials for further delivery or processing.” Pagan v. State, 899 So.2d 1203, 1204 (Fla. 2d DCA 2005); see Griffin v. Sistuenck, 816 So.2d 600, 601 (Fla.2002) (“Under the mailbox rule, a notice is deemed filed when it is delivered to prison authorities for mailing.”). Mr. Lawson presented the postconviction court "with a motion that was deemed timely filed but had not, for whatever reason, reached the office of the circuit court clerk. The post-conviction court could have considered the motion on the merits and should do so on remand. Accordingly, we reverse the order denying Mr. Lawson’s request to consider his rule 3.850 motion.

Reversed and remanded with directions.

KHOUZAM and SLEET, JJ„ Concur.


text:
    Larry L. DORTLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4102.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2013.
    Larry L. Dortly, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Larry Dortly appeals the denial of his motion seeking an award of prison credit filed pursuant to Florida Rule of Criminal Procedure 8.800(a). Upon the State’s proper concession of error, we reverse.

In 2006 and 2007, Dortly was convicted in two cases and sentenced to concurrent terms of imprisonment followed by probation. He was released on probation in June 2011. Dortly violated his probation and, in April 2012, he was sentenced to 24 months in prison. Dortly did not appeal his judgment and sentence.

On June 18, 2012, Dortly filed a rule 3.800(a) motion in which he alleged that he was not awarded credit for time served in prison prior to his release on probation. The trial court noted that Dortly did not waive his entitlement to the prison credit, but the court nevertheless denied the motion because the award of credit would entitle Dortly to immediate release. The court found this to be an improper and absurd result, relying on Fulcher v. State, 875 So.2d 647 (Fla. 3d DCA 2004).

A defendant sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison prior to his release on probation unless such credit is waived. See Bradley v. State, 631 So.2d 1096 (Fla.1994); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Jones v. State, 633 So.2d 482, 483 (Fla. 1st DCA 1994); § 921.0017, Fla. Stat. (2007). The defendant is entitled to such credit even when it results in a “windfall” requiring immediate release. See Cook v. State, 645 So.2d 436, 438 n. 5 (Fla.1994). However, under Fulcher, the defendant may be denied such credit when the post-violation sentence is a result of a negotiated plea agreement and a subsequent grant of prison credit would negate the agreed-upon sentence. See 875 So.2d at 647.

Here, Dortly stated a facially sufficient claim for prison credit, and the trial court failed to attach portions of the record conclusively refuting Dortly’s claim or supporting its finding that relief is precluded under Fulcher. Accordingly, pursuant to Florida Rule of Appellate Procedure 9.141(b)(2)(D), we reverse and remand for the trial court to attach portions of the record conclusively refuting Dortly’s claim or to enter an amended judgment and sentence granting him credit for the time served in prison prior to his release on probation.

REVERSED and REMANDED with directions.

WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.

      . The record does not contain Dortly’s judgment and sentence and, thus, we do not know precisely how the sentence was structured. Nor do we know whether the trial court checked the box on the judgment and sentence directing the Department of Corrections (DOC) to award prison credit. See generally Morgan v. State, 99 So.3d 999, 1000 (Fla. 1st DCA 2012) (explaining that, if the defendant is entitled to prison credit, the trial court is required to check the box on the sentencing form indicating that the defendant is entitled to such credit, and once the court does so, the defendant must raise problems with the application of such credit with DOC).


text:
    David Hilton DAVIS, Appellant, v. HOLMES DISTRICT SCHOOL BOARD, Appellee.
    No. 1D12-3590.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2013.
    R. John Westberry of Westberry & Connors, LLC, Pensacola, for Appellant.
    Bob L. Harris and James J. Dean of Messer, Caparello & Self, P.A., Tallahassee, for Appellee.
   PER CURIAM.

This appeal is dismissed as moot. See Lund v. Dep’t of Health, 708 So.2d 645 (Fla. 1st DCA 1998).

DAVIS, RAY, and SWANSON, JJ„ concur.


author: ROBERTS, J.

text:
    Camille MARINO, Appellant, v. UNIVERSITY OF FLORIDA, Appellee.
    No. 1D12-1688.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2013.

      Marcy Lahart, Gainesville, for Appellant.
    Courtney K. Grimm, Jacksonville, and Amy M. Hass, Gainesville, for Appellee.
   ROBERTS, J.

This appeal arises from a final order finding that the University of Florida permissibly redacted certain information from a public records request provided to the appellant. We reverse the final order and hold that the requested records be provided to the appellant without the contested redaction.

The appellant submitted a public records request to the University of Florida that sought to inspect and/or copy various records regarding 33 non-human primates whose captivity had been documented in a USDA inspection report. The University ultimately produced the requested records with partial redactions to obscure the physical housing location of the primates. The University maintained that this information was confidential and exempt under sections 119.071(3) and 281.301, Florida Statutes.

The appellant argued below that the University improperly redacted the physical location of the primates under the exemption language in sections 119.071(3) and 281.301 as that language pertained to security system plans. The University responded that its Security Plan, which contained an Animal Research Security component, provided for protection of the animal facilities and researchers by limiting and restricting access not only to the facilities themselves, but to the list of the facilities, which included the location.

Following testimony from the University Chief of Police and an in camera review of the University’s Animal Research Security Plan, the trial court entered a final order finding that the plan “sets forth measures and recommendations to safeguard the facilities, the animals, and the personnel” and “[l]imiting access to the list of the animal facility locations as well as entry access to the facilities [was] part of a legitimate security plan.” As such, the trial court found that the University permissibly redacted the information that identified the facility or the location of the non-human primates as that information was exempted from disclosure by section 119.07(1).

The determination as to what constitutes a public record is a question of law subject to de novo review. See Grapski v. City of Alachua, 31 So.3d 193, 196 (Fla. 1 1st DCA 2010).

Article I, section 24(a), of the Florida Constitution provides, in part:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.

The legislature may, by two-thirds vote of each house, provide that certain public records are exempt from public disclosure. See Art. I, § 24(c), Fla. Const. Exemptions must be passed by two-thirds vote of each house in a bill relating to only that exemption and stating specifically the public necessity for that exemption. See id. Although Article I, section 24, is self-executing, it provides that the legislature shall enact laws governing the enforcement of its provisions. Id. It has done so in chapter 119, Florida Statutes.

Florida’s Public Records Act in chapter 119 is intended to provide open access to government. “[A]ll documents falling within the scope of the Act are subject to public disclosure unless specifically exempted by an act of our legislature.” News-Press Publishing Co., Inc. v. Gadd, 388 So.2d 276, 278 (Fla. 2d DCA 1980). The Act is to be liberally construed in favor of open government, and exemptions from disclosure are to be construed narrowly and limited to their stated purpose. See Tribune Co. v. Public Records, 493 So.2d 480, 483 (Fla. 2d DCA 1986). “Absent a statutory exemption, a court is not free to consider public policy questions regarding the relative significance of the public’s interest in disclosure and the damage to an individual or institution resulting from such disclosure.” Gadd, 388 So.2d at 278.

Section 281.301 provides:

Security systems; records and meetings exempt from public access or disclosure. — Information relating to the security systems for any property owned by or leased to the state or any of its political subdivisions, and information relating to the security systems for any privately owned or leased property which is in the possession of any agency as defined in s. 119.011(2), including all records, information, photographs, audio and visual presentations, schematic diagrams, surveys, recommendations, or consultations or portions thereof relating directly to or revealing such systems or information, and all meetings relating directly to or that would reveal such systems or information are confidential and exempt from ss. 119.07(1) and 286.011 and other laws and rules requiring public access or disclosure.

Section 119.071(3) also exempts “security system plans,” which is defined to include all:

a. Records, information, photographs, audio and visual presentations, schematic diagrams, surveys, recommendations, or consultations or portions thereof relating directly to the physical security of the facility or revealing security systems[.]

Generally, the location of public facilities is subject to public disclosure under the Act. The statutes are replete with public records exemptions that protect addresses from disclosure. See e.g., § 119.071 (4)(d), Fla. Stat. (exempting the home addresses of law enforcement officers, firefighters, and judges, among others); § 24.105(12)(b), Fla. Stat. (exempting the addresses of lottery winners); § 121.031(5), Fla. Stat. (exempting the addresses of retirees); and § 790.0601, Fla. Stat. (exempting the names and addresses of concealed weapons permit holders).

In this case, the University effectively argues that it can shield the location of certain public facilities when it determines that the nature of the public activities occurring at the facilities subjects them to physical threats. Such a reading is not compatible with the admonition that public records exemptions are to be narrowly construed to provide for public access. See Tribune Co., 493 So.2d at 483.

Furthermore, the construction advanced by the University is at odds with how the legislature itself has viewed the physical addresses of public activities. In the wake of the attacks of September 11, 2001, the legislature enacted section 381.95, Florida Statutes, which exempts the locations of “medical facilities, storage facilities, or laboratories established, maintained, or regulated by the Department of Health as part of the state’s plan to defend against an act of terrorism.” Clearly the legislature did not view the exemptions of sections 281.301 and 119.071(3) as broad enough to protect those facilities directly engaged in anti-terrorism efforts from disclosure.

The University will need to seek an exemption to protect the location of the animal research facilities at issue in this case. In so holding, we do not rule on whether an exemption for the location of such facilities would be a prudent policy, but only rule that the University must go to the legislature for such an exemption. Accordingly, the final order is REVERSED and the case is REMANDED with instructions to release the requested records without redaction.

BENTON, C.J., and DAVIS, J., concur.


text:
    Kimberly LAZO, Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION, etc., Appellee.
    No. 5D12-3128.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2013.
    Kimberly Lazo, Brooksville, pro se.
    Dean A. Morande and Michael K. Winston, of Carlton Fields, P.A., West Palm Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. RApp. P. 9.315(a).

TORPY, LAWSON and BERGER, JJ., concur.


text:
    George SCHEIBE, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., et al., Appellee.
    No. 5D11-1304.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2013.
    George Scheibe, Brooksville, pro se.
    Barbara A. Couture of Shapiro, Fishman & Gaché, LLP, Tampa, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

TORPY, LAWSON and BERGER, JJ., concur.


author: WARNER, J.

text:
    Edward ECKERT, Appellant, v. Yvonne ECKERT, Appellee.
    No. 4D12-2943.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2013.

      Doreen Inkeles of Beiner, Inkeles & Horvitz, P.A., Boca Raton, for appellant.
    No appearance for appellee.
   WARNER, J.

In this acrimonious dissolution of marriage proceeding, the trial court entered a final judgment which, among other matters, permitted the mother to relocate from Broward County to Vero Beach, providing for a 50/50 time-sharing arrangement; failed to impute any income to the mother for the purposes of child support, based upon a finding that the parties agreed that she would not work during the child’s early years; and required the father to provide two million dollars in life insurance to secure child support. Because the trial court made no findings, either oral or written, based on the statutory factors involved in relocation decisions, and the sole reason proffered by the mother is insufficient, we reverse the determination. We also reverse the child support determination to the extent that the trial court’s finding of an agreement between the parties for her not to work is not supported by any evidence in the record. And we reverse the life insurance provision because the court failed to determine the proper amount needed to secure the obligation, its availability, and its cost.

The parties were married in 2003. They entered into a pre-marital agreement in which the mother agreed to waive any claim for alimony and accept payment of $50,000 for each child born of the marriage, should the marriage last at least five years. They had a child in 2009. Shortly after the birth of the child, the marital difficulties intensified.

Relocation

The mother commenced dissolution of marriage proceedings in June 2010. Shortly after filing her initial petition for dissolution, the mother amended the petition, requesting to relocate with the child to Vero Beach, Florida. In her petition, she claimed that she was unemployed and had no financial prospects in the Broward County area, and the father was not providing for her support. Her adult son, who is in the military, owned a home in Vero where she could move. The petition alleged that relocation would improve the general quality of life for her and the child because of its financial benefits. Within three months of the filing of the petition, the parties entered into a mediated settlement of temporary support and child matters. The father agreed to purchase a townhome in Broward County for her and the child and pay for all of its expenses, pending a final judgment of dissolution. The mother and child lived in the home until the final hearing.

Between the filing of the dissolution through the trial, the parties argued over the child and his care, involving many hearings and orders from the court. The mother claimed that the father was overbearing and harassing, and the father claimed that the mother was trying to prevent him from developing a relationship with the child and was not attending to the child’s developmental issues.

The court conducted a trial of the matter over several days. As to relocation, the mother testified that she had purchased the home in Vero Beach during the marriage as a kind of safe haven for her from her husband’s harassment. She then transferred the home to her adult son. Presently, with the mortgage, the home was “underwater.” She paid over half of each mortgage payment. At the time of trial, she did not have funds to pay the mortgage. Instead, she was paying the mortgage from her unemployment compensation funds, but these funds had terminated. She had no choice but to move to Vero Beach, because the father was “kicking [her] out” of the townhome in Broward County, and she did not have a job. The father’s attorney asked her about her reasons for relocation, “[0]ther than the house, there’s no other reason that you desire to go to Vero Beach, right?” She responded affirmatively, “That’s right.” In fact, despite her conflicts with the father, she did not mind living in Broward County. The mother has friends and family in Broward County. She does not have any family or friends in Vero Beach.

After the testimony in the trial, the court took the matter under advisement. It made no findings at the trial. It did enter a temporary order in which it granted the mother the right to relocate to Vero Beach and provided for a 50/50 time-sharing arrangement with each parent having the child for a week at a time. The order merely granted the relocation without making any findings, even that it was in the best interests of the child. The court determined that it could revisit the matter in the final judgment. Nevertheless, in the final judgment, the court merely referred to the fact that it had already granted relocation without elucidating any further its reasons for doing so.

On appeal, the court reviews the trial court’s decision on a petition to relocate with a minor child under an abuse of discretion standard. Rossman v. Profera, 67 So.3d 363, 365 (Fla. 4th DCA 2011). The trial court’s decision will be affirmed if the statutory findings are supported by substantial competent evidence. Id. This court’s review is hampered, because the trial court made no findings of fact, either oral or written, on any of the relevant factors involved in a decision to grant or deny relocation of a parent. See § 61.13001(7), Fla. Stat. (2012). That section requires that the court “shall evaluate all ” of the statutory factors. § 61.13001(7), Fla. Stat. (2012) (emphasis added). Here, nothing in the record shows that the trial court evaluated any of the factors, as no evidence was presented at all on most of them. We are left with the mother’s statement that her sole reason for moving was the availability of the house in Vero Beach. Even that reason does not withstand scrutiny. At the time of the final hearing, the home in Vero Beach was owned by her son, not her, and was rented to tenants. In order for her to occupy the house, the tenants were required to move, and thus end their rental payments. The mortgage payment and expense of maintaining the home would fall on her and her son. She testified that she paid half of the rent from her unemployment check, but by the time of trial she had exhausted unemployment benefits. Therefore, at the time the court permitted relocation, she did not have the money to make her share of the mortgage payments. There is no evidence that she could make the payments on the mortgage. On this record, the home in Vero Beach did not provide any stable housing for her and the child.

That a parent has a home in another location cannot be the sole basis for permitting relocation under the statutory provisions. Any parent could simply purchase a home in a distant location and claim that because of economic circumstances, he or she must move there. The statute requires a far more thorough analysis of the situation and the impact on both the child and both parents.

The trial court may have thought that because the child was so young, and the court was ordering 50/50 time-sharing, relocation would not impact the father/son relationship. At the very least, however, when the child becomes of school age, the time-sharing arrangements will have to change because of the school schedule. That may place the father with a significant loss of contact because of the distance between them.

On this record, permitting relocation is an abuse of discretion, because there is no competent substantial evidence to support it. See, e.g., Cecemski v. Cecemski, 954 So.2d 1227, 1231 (Fla. 2d DCA 2007).

Imputation of Income to Mother for Child Support

In the final judgment, the court determined that it would not impute income to the mother in the child support determination. The court found:

The Wife worked as a Deputy City Clerk prior to the marriage, earning approximately $40,000.00 per year. She has not worked since the birth of the minor child. Although she has the ability to go back to work, the Court believes that the parties agreed she would not do so, at least until the child is old enough to go to school (kindergarten) full time.

We could find no reference at all in the transcript to any such agreement, and it is contradicted by her working immediately after the birth of the child and her continuing to search for work.

The mother testified that she made $75,000 as a city clerk prior to the marriage. She maintained that the father asked her to quit her job and work for his medical practice, which she did even though she was paid less. Contrary to the trial court’s findings, she worked after the child was born, returning to work a week after the birth. A few months later, the father fired her, and she has collected unemployment compensation ever since. She has gone on several interviews for positions in Broward and Palm Beach Counties without any results. She has also interviewed for two positions in Indian River County.

Based upon the evidence presented, the court could have concluded that the mother was not voluntarily unemployed, because no proof was offered that she refused to accept an available job. However, the court erred in determining that she was not employed based upon the agreement of the parties. The mother is looking for, and indeed must find, gainful employment to support herself and the child. When she finds employment, the father may be entitled to seek modification, and the trial court’s finding of a non-existent agreement that she not work until the child is school age would preclude his ability to do so. We thus reverse that finding because it is not supported by competent substantial evidence.

Life Insurance

In the final judgment the court ordered the husband to obtain two million dollars of insurance on his life “to cover the monetary needs of the child in the event the Husband become (sic) ’permanently disabled, retires or passes away.” (Emphasis added). No evidence was presented as to the cost of such insurance or how the court might have arrived at that amount.

Pursuant to section 61.13(l)(c), Florida Statutes (2012), a court may order a party to purchase or maintain a life insurance policy to protect an award of child support. To do so, the trial court must make findings of a need and determine the availability and cost of such insurance. See Guerin v. DiRoma, 819 So.2d 968, 970 (Fla. 4th DCA 2002). Moreover, the amount required must bear a reasonable relationship to the child support awarded. See Peters v. Blackshear, 53 So.3d 1233, 1234 (Fla. 1st DCA 2011). Here, the trial court made no findings of availability and cost of such insurance, nor of the amount required to secure the child support obligation. On this record, two million dollars far exceeds the amount of child support awarded, or even the cost of additional “needs” of the child.

Finally, the trial court ordered the father to include insurance for disability and retirement protection for the child. There is no authority for such an award. Because voluntary retirement is not a ground for modification of child support, the child does not need protection from that event. See Pimm v. Pimm, 601 So.2d 534, 537 (Fla.1992). Disability, on the other hand, may be a ground for downward modification. See, e.g., Wallace v. Dep’t of Revenue, 774 So.2d 804, 806-07 (Fla. 2d DCA 2000). The parent has no obligation to secure the amount of child support regardless of all future circumstances that may befall the parent. We therefore reverse and remand for the trial court to conduct a hearing to determine the amount of life insurance required to secure the father’s obligations and to further determine its availability and cost to assure that the father has the ability and means to secure it. The trial court shall also delete the requirement that insurance cover the events of disability and retirement.

For the foregoing reasons, we reverse the final judgment to the extent that it approves the mother’s petition for relocation. We also reverse the findings on the mother’s income, but we do not require the trial court to impute income to the mother based upon the evidence presented. We reverse as to the life insurance provision in accordance with the foregoing directions. In all other respects, we affirm on the issues raised by the father. Our affir-mance, however, is without prejudice to the trial court re-assessing the time-sharing arrangement given our reversal of the relocation determination.

Affirmed in part, reversed in part and remanded.

GERBER and LEVINE, JJ., concur.


author: EMAS, J.

text:
    CARBON CAPITAL II, et al., Appellants, v. ESTATE OF James Wallace TUTT, III, etc., et al., Appellees.
    Nos. 3D12-968, 3D12-475.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 2013.

      Billbrough & Marks and Geoffrey B. Marks, for appellants.
    Siegfried, Rivera, Lerner, De la Torre & Sobel and Stuart Sobel and H. Hugh McConnell, for appellees.
    Before ROTHENBERG and EMAS, JJ„ and SCHWARTZ, Senior Judge.
   EMAS, J.

In this consolidated appeal, Appellants/Judgment Creditors Hotel 71 Mezz Lender, LLC (“Hotel 71”) and Carbon Capital II (“Carbon Capital”) (together with Hotel 71, “Appellants”) seek review of two final summary judgments entered in favor of the Estate of James Wallace Tutt, III (“Tutt” or “the Estate,” as appropriate). Both Hotel 71 and Carbon Capital had garnished Tutt and were targeting a real estate transaction in which Tutt received from Guy Mitchell approximately $2.9 million in exchange for a Bahamian Island known as Caribe Cay. A central issue of both actions was the status of the transaction; namely, whether the sale had been completed such that the proceeds held by Tutt were no longer subject to Hotel 71’s and Carbon Capital’s writs of garnishment. For the reasons that follow, we affirm the trial court’s entry of final summary judgment in favor of appellee as against each of the appellants.

FACTS

Hotel 71, a plaintiff/judgment creditor in the trial court, is a Delaware limited liability corporation located in New York. Guy Mitchell, a Coral Gables resident, and several other individuals are judgment debtors resulting from their default of personal guaranties of a loan that Hotel 71 made to an entity owned and controlled by several of the judgment debtors in order to acquire a Chicago hotel.

In April 2007, Hotel 71 sued Mitchell and the other judgment debtors in New York for breach of contract. A year later, the New York court entered summary judgment in favor of Hotel 71 in the amount of $52,404,066.54. The judgment subsequently was registered in Miami-Dade County. In November 2006, a second company, The Formula, Inc., sued Mitchell and others in Miami-Dade County, resulting in a stipulated judgment in favor of The Formula, Inc. for more than $4.2 million. Carbon Capital is the successor in interest to The Formula, Inc. and the current owner of that judgment.

In March 2006, prior to the foregoing lawsuits, Mitchell and J. Wallace Tutt, III negotiated for the sale of Caribe Cay, a one-acre Bahamian island owned by Tutt, for a net purchase price of $2.925 million. However, Tutt and Mitchell never entered into a written contract for that sale. According to Tutt, Mitchell began to occupy Caribe Cay as a renter in August 2006 pursuant to an oral contract. In February of 2007, based on rental payments made by Mitchell during his occupancy of Caribe Cay, Tutt and Mitchell agreed to reduce the purchase price to $1.8 million plus Tutt’s legal fees and other expenses incurred in connection with the sale of the island. By May 2008, Mitchell paid Tutt all but $7000 of Caribe Cay’s purchase price. Mitchell had taken possession of, and made improvements to, the property. Nonetheless, Mitchell allegedly did not want to take formal title to the property. As a result, the deed was never transferred from Tutt to Mitchell. Tutt subsequently learned that Mitchell intended for an entity named Punto Larga, Ltd. to be named as the purchaser of Caribe Cay. Mitchell testified at a subsequent deposition that he has no direct interest in Car-ibe Cay.

Hotel 71’s garnishment action

In August 2008, Tutt became aware of the New York judgment and that a receiver was appointed for Mitchell’s property. Hotel 71 then served and filed a writ of garnishment directed to Tutt, as part of an effort to identify and seize assets belonging to Mitchell. Tutt answered the writ, alleging that “at the time of service of the writ, [he] had no tangible or intangible personal property of any or all of the Judgment Debtors in [his] possession or control”; that he “sold property, located in the Bahamas ... to [Guy Mitchell]”; and that “said transaction is complete with the exception of a final U.S. Seven Thousand Dollar ($U.S. 7,000.00) payment which Mitchell owes to Tutt.” Hotel 71 served a new writ on Tutt in April 2009, and Tutt’s answer was similar to his prior answer with the exception that Tutt did not allege, as he had in his previous answer, that he sold the property to Mitchell.

Carbon Capital’s garnishment action

In October 2008, Carbon Capital also sought to enforce its judgment against Mitchell. It too filed a writ of garnishment in the circuit court, seeking a ruling that it had the right to step into Mitchell’s shoes so that Carbon Capital could exercise any rights that Mitchell had under the Caribe Cay purchase and sale agreement. Hotel 71 filed an affidavit in that action, notifying the Carbon Capital court of Hotel 71’s priority with respect to any assets of Mitchell garnished by Carbon Capital from Tutt and asking the court to determine the right of priority between Hotel 71 and Carbon Capital, even though Hotel 71 was not a party to the Carbon Capital action. Hotel 71 stipulated, at a December 2008 hearing, that the trial court’s ruling on the status of the transaction in the Carbon Capital case would be binding in the Hotel 71 case.

Proceedings in the Bahamas

Also in October 2008, Punto Larga filed suit against Tutt in the Bahamas, demanding specific performance of a purported agreement through which Tutt would sell Caribe Cay to Punto Larga; an order that Tutt do all acts and execute all documents necessary to effectuate the transfer of Caribe Cay to Punto Larga; and damages in lieu of specific performance. Tutt filed an affidavit in that action in support of an application to issue a third-party summons against Guy Mitchell, Hotel 71 and The Formula, Inc. (to which Carbon Capital became the successor in interest).

The trial court’s determination on Carbon Capital’s garnishment action

On September 29, 2009, Carbon Capital and Tutt appeared before the trial court for an evidentiary hearing on Carbon Capital’s garnishment of Tutt. Based on evidence proffered by Carbon Capital and Tutt, the trial court entered judgment on October 28, 2009, finding that Tutt sold Caribe Cay to Mitchell in 2006, and that although legal title had not yet been transferred, equitable title belonged to Mitchell. The trial court found Carbon Capital succeeded to the rights of Mitchell and that Mitchell’s rights under the Caribe Cay purchase agreement were subrogated to Carbon Capital. However, the trial court also determined that legal title to the property must be satisfied in the Bahamas, as the Bahamian court had jurisdiction over the property itself. Tutt allegedly endeavored to interplead Caribe Cay for the Bahamian court to adjudicate legal title, and upon accomplishing the inter-pleader, Tutt would be discharged from any liabilities to Carbon Capital, Mitchell, or Mitchell’s designees arising from Carbon Capital’s writ. The trial court also reserved jurisdiction to determine the priority of the competing garnishment claims of Carbon Capital and Hotel 71. Carbon Capital did not appeal this judgment.

Summary judgment on Hotel 71’s garnishment action

On October 7, 2009, prior to entry of Carbon Capital’s garnishment judgment, Hotel 71 moved for summary judgment in its garnishment action against Tutt. The trial court denied the motion, but granted summary judgment to Tutt, even though he had not filed a motion seeking that relief. On appeal, this Court reversed for purely procedural reasons. Hotel 71 Mezz Lender LLC v. Tutt, 66 So.3d 1051 (Fla. 3d DCA 2011). The Estate filed a motion for summary judgment on remand, which Hotel 71 opposed. On January 17, 2012, the trial court granted the Estate’s motion and again entered final judgment against Hotel 71. The court held it was clear “that the sale of Caribe Cay by J. Wallace Tutt, III to Guy Mitchell was completed, save only Mitchell’s failure or refusal to designate the name wished reflected on the deed of conveyance. The undisputed record establishes that Mitchell took possession, made improvements, and made nearly full payment of the purchase price. Therefore, although bare legal title remains in the name of the Estate, equitable title passed to Mitchell by no later than 2007.” It is this summary final judgment from which Hotel 71 appeals.

Carbon Capital’s second action

In November 2010, Carbon Capital sued the Estate for specific performance, unjust enrichment and breach of contract, alleging in the complaint that Tutt and Mitchell reached an oral agreement for the purchase and sale of Caribe Cay and executed a term sheet. Carbon Capital sought relief in the form of an order compelling the Estate to specifically perform the Caribe Cay purchase agreement and to have the Estate convey title to Carbon Capital. Alternatively, Carbon Capital alleged that Tutt was unjustly enriched by receipt of the Mitchell money for Caribe Cay while still holding title to the property. Carbon Capital’s final allegation was that the Estate breached the contract with Mitchell by failing to convey legal title to Carbon Capital, despite Carbon Capital’s demand.

Summary judgment on Carbon Capital’s second action

The Estate moved for summary judgment against Carbon Capital. With regard to Count I, it argued (i) the one-year statute of limitations barred Carbon Capital’s specific performance claim because of the prior determination that Punto Larga was related to Mitchell, and Punto Larga had instituted a specific performance action in the Bahamas more than a year prior to Carbon Capital’s current lawsuit against Tutt/the Estate; (ii) Carbon Capital split its causes of action by seeking the same relief simultaneously in separate fora, (iii) Carbon Capital failed to join Pun-to Larga as an indispensable party, and (iv) Carbon Capital was bound by the determination that equitable title had passed to Mitchell. As to the unjust enrichment claim, the Estate argued that by receiving equitable title to, and taking physical possession of the property, Mitchell received substantial value from Tutt/the Estate, and therefore the Estate was not unjustly enriched by the proceeds of the sale. Further, because Carbon Capital was a party to the proceedings which resulted in the Carbon Capital final judgment, it was es-topped from disputing the determination that equitable titled had passed to Mitchell. Finally, on the breach of contract claim, the Estate argued that Carbon Capital, by standing in Mitchell’s shoes, was subject to all the defenses Mitchell could have raised; thus, because the October 2009 judgment determined that Mitchell prevented Tutt from conveying legal title to Caribe Cay, Carbon Capital was subject to the absolute defense that Mitchell’s breach exonerated Tutt/the Estate. The Estate also argued the trial court lacked subject matter jurisdiction to determine the specific performance and breach of contract counts because the issue of legal title must be resolved in the Bahamas.

The trial court initially denied the Estate’s motion for summary judgment. Several weeks later, however, the trial court, sua sponte, vacated the order denying summary judgment and granted summary judgment against Carbon Capital and dismissed all counts of its complaint. As to Count I, the court found it did not have jurisdiction to order specific performance, even if Carbon Capital was entitled to relief. Further, Punto Larga and possibly Hotel 71 may be indispensable parties, and these matters should be determined in the Bahamas. With regard to Count II, the Estate was not found to be unjustly enriched because Tutt turned over physical possession of Caribe Cay to Mitchell, and Mitchell took possession and made improvements to the property. Equitable title was therefore conveyed. Finally with regard to Count III, the trial court determined that the Estate did not breach a contract and instead only failed to turn over legal title as a result of Mitchell’s failure to designate the name he wished reflected on the deed of conveyance. It is this final summary judgment from which Carbon Capital appeals.

Hotel 71 and Carbon Capital have each appealed their adverse final summary judgment. We review de novo the trial court’s entry of final summary judgment. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000).

ANALYSIS

While the underlying facts and procedural history of this case are self-evidently complex and convoluted, resolution of the issues on appeal is decidedly less so.

I. Whether summary judgment against either appellant is premature

Appellants contend that both the Hotel 71 and the Carbon Capital summary judgments are flawed because they are premature as based on an uncompleted oral real estate transaction. Thus, they argue, until the issue of ownership of Caribe Cay is completely resolved by a Bahamian Court of competent authority, the rights of Mitchell’s judgment creditors cannot be summarily foreclosed. We do not agree. Punto Larga’s specific performance action is presently pending in the Bahamas. The determination of ownership of Caribe Cay will be resolved in this action and will determine whether Punto Larga, Hotel 71 or Carbon Capital is the rightful owner of the property. Upon such a determination, the Estate can deliver legal title to the appropriate party in the Bahamas, after which there will be no reason to return to Florida for further litigation.

II. Summary Judgment against Carbon Capital

Appellants further maintain that the trial court has jurisdiction over the Estate and could order specific performance of the contract based on the fact that “an action for specific performance on a contract for the sale of land is an in per-sonam suit and may be maintained outside of the county where the property at stake lies.” Hammond v. DSY Developers, LLC, 951 So.2d 985, 989 (Fla. 3d DCA 2007). While this may be true, we need not reach the issue, as the Estate properly established, and the trial court properly found, summary judgment was appropriate for Carbon Capital’s failure to join an indispensable party. Punto Larga is an indispensable party to any action in Florida, and Carbon Capital’s failure to join that entity carries the potential for inconsistent results. “An indispensable party is one whose legal or beneficial interest in the subject matter makes it impossible to completely adjudicate the matter without affecting that party’s interest.” Santiago v. Sunset Cove Investments, Inc., 988 So.2d 10, 14 (Fla. 2d DCA 2008). Here, Punto Larga is an entity related to Mitchell and is a competing claimant to Caribe Cay. Failure to have Punto Larga, Carbon Capital and Hotel 71 subject to a court’s jurisdiction in a single proceeding creates a potential for inconsistent outcomes. If Carbon Capital continues to pursue the Florida claim while a specific performance action is being pursued by Punto Larga in the Bahamas, there is a genuine risk that the Estate could be subject to competing, conflicting orders from the two jurisdictions, requiring the Estate to deliver title to two different entities. Because the interests of all these parties will be affected by the court’s determinations, they are each an indispensable party. Id.

III. Summary Judgment against Hotel 71

Hotel 71 argues summary judgment is improper because the oral contract between Tutt and Mitchell violated the statute of frauds. However, in the Carbon Capital garnishment matter, Judge Friedman determined that equitable title of Caribe Cay had passed to Mitchell, and that the only remaining issue was identifying which party was entitled to legal title. Hotel 71 is estopped from disputing the rulings made by Judge Friedman because, even though it was not a party to that action, Hotel 71 expressly stipulated that it would be bound by the rulings in that case. Thus, it cannot relitigate the status of the Tutt/Mitchell transaction. Though Hotel 71 did not actually intervene in that action, a non-party cannot sit on its rights while proceedings that will affect it move forward. In Sutton Enterprises, Ltd. v. Santa Clara Construction Co., 767 So.2d 547 (Fla. 3d DCA 2000), this Court held:

A person [or business entity] has no right to shut his eyes or ears to information, and then say that he has no notice. The law will not permit him to remain willfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand. If he has either actual or constructive information and notice sufficient to put him on inquiry, he is bound, for his own protection, to make that inquiry which such information or notice appears to direct should be made. If he disregards that information or notice which is sufficient to put him on inquiry and fails to inquire and to learn that which he might reasonably be expected to learn upon making such inquiry, then he must suffer the consequence of his neglect.

Id. at 549.

Hotel 71, an entity with a substantial interest in the issues being litigated in the Carbon Capital garnishment — which was competing with Carbon Capital’s efforts to garnish the proceeds of the sale of Caribe Cay — cannot disavow its own agreement to be bound by the ruling in that case. Accordingly, Hotel 71 is estopped from relit-igating the issue of whether the Tutt/Mitchell transaction was an unenforceable oral contract; the only remaining issue is who is entitled to legal title of Caribe Cay.

Similarly, the enforceability of the agreement and the statute of frauds arguments are no longer issues, because Judge Friedman’s determination that equitable title had passed to Mitchell necessarily embodies the findings that an agreement was made for the sale of Caribe Cay, and that the agreement was performed by Mitchell and Tutt. Because this determination had already been made, the enforceability issue raised by Hotel 71 in opposition to summary judgment was moot.

We find the other issues raised by appellants to be without merit.

Affirmed.

      . James Wallace Tutt, III passed away in 2010, during the pendency of the proceedings below and the Estate thereafter became the party in interest, thus necessitating the varying reference to appellee throughout the opinion as "Tutt” or "the Estate.”

      . As will be seen infra, instead of appealing this judgment or pursuing legal title by instituting an action in the Bahamas, Carbon Capital filed a second action in circuit court.

      . This Court reversed the entry of summary judgment because Tutt had not moved for summary judgment and Hotel 71 was not provided notice as required by Florida Rule of Civil Procedure 1.510(c). Tutt, 66 So.3d at 1054. The majority did not reach the merits of the case. Judge Schwartz dissented, writing that "the trial judge was substantively correct in concluding that, beyond the 'slightest doubt’, the appellees were entitled to summary judgment as a matter of law and that the judgment below was procedurally authorized under the line of cases which permits summary judgment for the non-moving party.” Id. (Schwartz, J., dissenting) (citations omitted). While Judge Schwartz's conclusion on the merits may have been premature, it ultimately has proven correct.

      . It is undisputed, however, that Hotel 71 submitted no additional evidence in opposition to this second motion for summary judgment, and the factual record for the second motion for summary judgment had not materially changed from the record considered on the first motion for summary judgment.

      . Though not necessary to our decision, it has been asserted in this appeal that, in addition to the Punto Larga suit, the Estate sought to interplead the Caribe Cay property in the Supreme Court of the Bahamas, naming Pun-to Larga, Hotel 71 and Carbon Capital as interpleader defendants. The record, however, does not indicate the history or status of any such interpleader action.

      . Though Appellants contend that Punto Lar-ga simply has a claim of interest or connection to the property at issue (rather than a legal or beneficial interest) and that, as such, it is not an indispensable party, it cites no case law for this proposition and fails to take into account the fact that the Carbon Capital final judgment holds that Punto Larga and Mitchell — the other party to the transaction with Tutt — are related.

      . Further, Hotel 71 participated in joint discovery in that action, including scheduling a mutually convenient date with Tutt and Carbon Capital for Tutt’s deposition, and filing an affidavit, pursuant to section 77.16(1), Florida Statutes (2009), claiming an interest in the funds received by Tutt from Mitchell.

      . Moreover, Hotel 71 was not a party or an intended beneficiary to the Tutt/Mitchell transaction, and thus did not have standing to raise the statute of frauds or contest enforceability of the agreement. Jones v. Howland, 369 So.2d 438 (Fla. 3d DCA 1979); Young v. Pottinger, 340 So.2d 518 (Fla. 2d DCA 1976); Bochese v. Town of Ponce Inlet, 405 F.3d 964 (11th Cir.2005) (Fla. law).


author: CLARK, J.

text:
    Susan HARDMAN, Former Wife, Appellant, v. Harry KOSLOWSKI, Former Husband, Appellee.
    No. 1D12-3111.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.

      Susan Hardman, pro se, Appellant.
    William S. Graessle of William S. Graes-sle, P.A., Jacksonville and Dana R. Price of the Law Office of Denise Watson, Jacksonville, for Appellee.
   CLARK, J.

Appellant challenges the circuit court’s post-dissolution order holding her in contempt of court and sanctioning her by requiring her to pay the attorneys’ fees of the Former Husband incurred in the contempt proceedings. Because no court order in effect at the time the contempt order was entered required the Former Wife to provide “normal and usual routine contact,” the order finding the Former Wife in contempt is reversed.

The final judgment of dissolution was entered in October, 2004. The parties continued to litigate. In addition to numerous post-dissolution motions and petitions filed by both parties, a dependency action was initiated by the Florida Department of Children and Families (“DCF”) which twice resulted in temporary orders severely limiting Former Husband’s contact with his sons. This appeal is the fourth appeal by these parties to this Court to date. See Koslowski v. Koslowski, (Case no. 1D06-5111; denial of writ of certiorari pertaining to circuit court case number 2003 DR 006322); Koslowski v. Koslowski, 952 So.2d 1195 (Fla. 1st DCA 2007) (affirming without opinion the trial court’s order allowing Former Wife to relocate with children to Seattle, Washington); Koslowski v. Koslowski (Hardman), 78 So.3d 642 (Fla. 1st DCA 2011) (affirming circuit court order requiring Father to pay for respite care for dependent adult son). Former Wife and her current husband have been named the eldest son’s guardians in a separate guardianship proceeding in the State of Washington due to the son’s severe medical conditions.

On July 9, 2010, the circuit court entered an order on various motions and addressed contact between two of the sons and their father. The order was affirmed on direct appeal. Koslowski v. Koslowski (Hardman), 78 So.3d 642 (Fla. 1st DCA 2011). The order provided that Former Husband was entitled to a minimum of four days per month of unsupervised “visitation” with the youngest son (then still a minor) during daytime hours of each day, and “visitation” with the eldest son under “the same parameters” as for the youngest son. The contact was to take place in the Seattle, Washington area, where the sons resided. Former Husband visited his sons pursuant to the July 9, 2010 order during October, 2010 and April, 2011. Thereafter, he filed his motion for contempt against Former Wife and amended the motion twice. Former Husband alleged that Former Wife was in contempt of court because she had refused to agree to more than the minimum time provided in the order, including overnight visits, as was encouraged in the order. He sought “expanded and extended visitation” with his sons and sought sanctions against Former Wife for her failure to negotiate such additional time with his sons.

After an evidentiary hearing on former Husband’s motion, the circuit court found Former Wife in contempt because she “prevented the Former Husband from having normal and usual routine contact with both” the eldest and youngest son. In addition, the court granted Former Husband’s request to sanction Former Wife by requiring her to pay his attorneys’ fees incurred in the contempt proceedings, in the amount of $1825.00. The court did not conduct any inquiry of the parties’ current financial situations, needs or abilities.

It is well settled that “[o]ne may not be held in contempt for violating something that an order does not say.” Keitel v. Keitel, 716 So.2d 842, 844 (Fla. 4th DCA 1998) (Farmer, J., concurring specially); See also Harris v. Hampton, 70 So.3d 747 (Fla. 4th DCA 2011); DeMello v. Buckman, 914 So.2d 1090 (Fla. 4th DCA 2005). The order entered July 9, 2010 does not require Mother to provide Father with “normal and usual routine contact” with his sons.

The provisions of the order regarding contact between the Father and sons entitle Father to “unsupervised visitation” to be located “in the Seattle area” during daytime hours for a minimum of “once per month for a minimum of four days.” No other directive about Father’s contact with his sons is contained in the July 9, 2010 order. There was no evidence of Former Wife’s violation of any specific provision of the July 9, 2010 order. Although the July 9, 2010 order contained aspirational goals encouraging the parties to agree to additional contact without court involvement, “implied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt.” Keitel v. Keitel, 716 So.2d at 844.

While reversal of the contempt order necessarily results in reversal of the sanction, we also note that the lack of a purge provision in the order on appeal indicates that the court found a criminal contempt. Because the contempt action arose in the context of a dissolution action, the trial court was required to determine need and ability to pay before imposing this monetary sanction. See § 61.16(2), Fla. Stat.; Hunt v. Hunt, 855 So.2d 1181 (Fla. 1st DCA 2003); Keitel v. Keitel, 716 So.2d 842 (Fla. 4th DCA 1998). The failure to make this determination was reversible error.

In light of the foregoing, the order finding Former Wife in contempt and punishing her with a fíne in the amount of Former Husband’s attorneys’ fees is REVERSED.

WETHERELL and MAKAR, JJ„ concur.

      . The concept of one parent having custody and the other parent being a visitor in a child's life, and the term ''visitation,” were rendered obsolete under the 2008 amendments to section 61.13, Florida Statutes, in favor of a policy promoting shared parenting via a parenting schedule. See Mayo v. Mayo, 87 So.3d 820 (Fla. 2d DCA 2012); Bainbridge v. Pratt, 68 So.3d 310 (Fla. 1st DCA 2011). However, the dissolution order in this case was entered in 2004, prior to the statutory policy changes. In addition, the extensive post-dissolution history, including the dependency proceedings, the court-approved relocation by Former Wife with the sons to the state of Washington in 2006 while Former Husband remains in Florida and the dependent adult son’s unusual legal status puts this case in a different posture than cases where "shared parenting” is presumed.


text:
    J.H. and C.H., Appellants, v. STATE of Florida, Appellee.
    No. 1D12-2518.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.
    Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellants.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

J.H. and C.H. (“appellants”) appeal the Juvenile Disposition Orders adjudicating each of them guilty of first-degree felony arson of a dwelling, contrary to section 806.01(l)(a), Florida Statutes, arguing the trial court erred in denying their motion for a judgment of dismissal of the charged offense. We review this issue de novo. See J.W.J. v. State, 994 So.2d 1223, 1224 (Fla. 1st DCA 2008). Because we conclude the evidence failed to negate appellants’ reasonable hypothesis of innocence that the incident was purely accidental, we reverse the trial court’s denial of the motion and remand with directions that in lower court case numbers 2011-CJ-695 and 2011-CJ-696, appellants are to be discharged. See T.E. v. State, 701 So.2d 1237 (Fla. 3d DCA 1997).

Simultaneous to their adjudications and sentencing in the above two cases, in case numbers 2011-CJ-698 and 2011-CJ-699, appellants were found guilty of, and were sentenced for, criminal mischief. Appellants now challenge the legality of two of the conditions of probation that were imposed in all four cases. We affirm one of the conditions without further comment, but conclude the state properly conceded error as to that condition prohibiting appellants from participating in organized sports, as not being “reasonably related to rehabilitation.” Stephens v. State, 659 So.2d 1303, 1304 (Fla. 1st DCA 1995).

AFFIRMED, in part, REVERSED, in part, and REMANDED for further proceedings consistent with this opinion.

DAVIS, RAY, and SWANSON, JJ., concur.