text:
    MANORCARE HEALTH SERVICES, INC. d/b/a Manor Care West Palm Beach, Manor Care, Inc. f/k/a HCR Manor Care, Inc. f/k/a Healthcare And Retirement Corporation, Manor Care Of America, Inc. f/k/a HCRC, Inc., and Healthcare and Retirement Corporation of America, Petitioners, v. Jacqueline D. GIPSON and James D. Gipson, as co-personal Representatives of the Estate of Lucy Pearl Gipson, deceased, for and on behalf of her survivors, Respondents.
    No. 4D13-605.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Kathryn L. Smith and Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for appellant.
    Alexander M. Clem of Morgan & Morgan, P.A., Orlando, for appellee.
   PER CURIAM.

Petitioners seek a writ of prohibition to review the denial of their motion to disqualify the trial judge. We grant the petition, because after voluntarily disclosing her relationship with the Manor Care facility during a pretrial hearing, the trial judge invited the parties to file a motion to disqualify and suggested that such a motion would be granted, if filed. See State v. Borrego, 105 So.3d 616, 620 (Fla. 3d DCA 2013)(holding that “where a judge makes a disclosure, invites the parties to file a motion to disqualify him, and suggests that such a motion will be granted, the motion, if filed, must be granted.” (citing Stevens v. Americana Healthcare Corp. of Naples, 919 So.2d 713, 716 (Fla. 2d DCA 2006))).

We reject respondent’s claim of waiver. Cf. Cousins Restaurant Assocs., L.P. v. TGI Friday’s, Inc., 789 So.2d 457 (Fla. 4th DCA 2001) (following the judge’s disclosure counsel unequivocally said that it was not a problem and allowed the hearing to continue).

Petition granted.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charlotte TAYLOR-TILLOTSON, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION Circuit: 15 Palm Beach Unit: HMO, Appellee.
    No. 4D12-3912.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Charlotte Taylor-Tillotson, Lake Worth, pro se.

      Tracy Cooper George, Chief Appellate Counsel and Cynthia L. Hain, Assistant General Counsel, Tallahassee, for appellee.
   PER CURIAM.

This matter came before the court on the Agency for Health care Administration’s (AHCA) motion to dismiss. We treat the motion as a Confession of Error, and reverse and remand.

This is an appeal from an agency’s decision not to provide the claimant with medical supplies and prescriptions. In the initial brief, the claimant argued that she was denied the right to admit evidence and cross examine witnesses. AHCA filed a motion to dismiss in which it made the following statement:

After review of the record on appeal and the argument raised by Appellant in her Initial Brief [IB 8], AHCA believes appellant is entitled to a new hearing on the issue of jurisdiction before a successor DCF Hearing Officer, and if appropriate, a fair hearing on her claims. The record shows that AHCA’s Medical/Health Care Program Analyst for Area 9 had ex parte e-mail communications with the DCF Hearing Officer presiding over the appeal, on July 31, 2012 and on August 21, 2012. [R. 62-64.] In these communications, AHCA’s analyst discussed matters with the Hearing Officer relative to the merits.
Therefore, AHCA believes that it would best serve Appellant and justice, if this action was dismissed and, remanded with directions that the DCF Hearing Officer presiding over the appeal be removed from the case and a new Hearing Officer be assigned to first determine the jurisdictional issue and then, if appropriate, hold a fair hearing. AHCA further believes that to eliminate any future effect of the ex parte communications, these e-mail communications be sealed before reassignment, so the successor Hearing Officer will not inadvertently review them.

We note the claimant’s response and objection to dismissal of the appeal, but we concur with AHCA’s recommendation to remand this case for a new hearing. We therefore reverse and remand the ease for further proceedings consistent with this opinion.

Reversed and Remanded.

GROSS, MAY and CIKLIN, JJ., concur.


text:
    Greg PETRIK, Appellant, v. CITY OF PEMBROKE PINES, Appellee.
    No. 4D12-2676.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Rehearing Denied Aug. 30, 2013.
    Mark J. Berkowitz of Mark J. Berkow-itz, P.A., Fort Lauderdale, for appellant.
    Shana H. Bridgeman and James A. Cherof of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See City of Hollywood v. Hogan, 986 So.2d 634, 641-42 (Fla. 4th DCA 2008) (adopting federal ADEA analysis for age discrimination claim under Florida Civil Rights Act of 1992; stating “[a]ge discrimination statutes protect only employment decisions which disadvantage an older worker in favor of a younger worker”) (citing Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004)); see also Miami-Dade Cnty. v. Eghbal, 54 So.3d 525, 526 (Fla. 3d DCA 2011) (adopting federal analysis for state age discrimination claim, including the requirement that, to state a prima facie case, plaintiff must prove “the position was filled by a worker who was substantially younger than the plaintiff’), review denied, Miami-Dade County v. Eghbal, 71 So.3d 117 (Fla.2011).

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


author: ALTENBERND, Judge.

text:
    Carl E. ROLAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5463.
    District Court of Appeal of Florida, Second District.
    Aug. 14, 2013.
   ALTENBERND, Judge.

Carl E. Roland appeals the dismissal of his petition for writ of mandamus. Mr. Roland petitioned the circuit court, asking it to compel his former attorney, the Office of the Criminal Conflict and Civil Regional Counsel, to provide him with copies of discovery materials received from the State. The circuit court dismissed the petition, finding it facially insufficient for failure to include an acknowledgement of a legal obligation to pay regional counsel’s office for the costs associated with providing the requested items. We reverse and remand for further proceedings.

“ ‘A party petitioning for a writ of mandamus must establish a clear legal right to performance of the act requested, an indisputable legal duty, and no adequate remedy at law.’ ” Morse v. State, 50 So.3d 750, 750 (Fla. 2d DCA 2010) (quoting Radford v. Brock, 914 So.2d 1066, 1067 (Fla. 2d DCA 2005)). Mr. Roland stated a facially sufficient claim that established a prima facie case of entitlement to free copies of the discovery evidence from regional counsel. Because his request was not for all items in counsel’s possession, but was for specific discovery materials, Mr. Roland was not required to pay for originals or copies thereof. See Morse, 50 So.3d at 751 (holding that defendant was entitled to copies of the crime scene photographs from his trial free-of-charge); Smith v. State, 889 So.2d 1009, 1010 (Fla. 3d DCA 2004) (“The petitioner is entitled to receive from his former counsel, at no cost to petitioner, any and all trial and hearing transcripts, copies of motions, and any state discover presented to defense counsel”) (emphasis added); cf. LaFlower v. State, 929 So.2d 58, 58 (Fla. 5th DCA 2006) (“However, [defendant] is not entitled to items related to the performance of professional services, and if provided, should compensate the attorney for charges incurred in copying them.”). Therefore, the circuit court erred in dismissing Mr. Roland’s petition — which demonstrated a prima facie case for relief— and in not issuing an alternative writ ordering regional counsel to show cause why the writ should not issue and the requested relief be granted. See Fla. R. Civ. P. 1.630(d)(3); Gilliam v. State, 996 So.2d 956, 957 (Fla. 2d DCA 2008); Farmer v. State, 927 So.2d 1075, 1076 (Fla. 2d DCA 2006).

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

CASANUEVA and MORRIS, JJ., Concur.

      . This proceeding appears to have delayed Mr. Roland’s filing of a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. Because it appears that Mr. Roland will be unable to comply with the time limits of rule 3.850, he is advised to file a motion for extension of time to file his post-conviction motion under Florida Rule of Criminal Procedure 3.050, should he wish to collaterally attack his conviction. See Petit-

        Frere v. State, 108 So.3d 681, 683 (Fla. 2d DCA 2013) ("A postconviction court may, under rule 3.050, extend the two-year rule 3.850 deadline 'for good cause shown.’ ” (quoting State v. Boyd, 846 So.2d 458, 460 (FIa.2003))); see also Manning v. State, 28 So.3d 971, 973 (Fla. 2d DCA 2010) ("[W]e hold that when a motion for extension to Hie a postconviction motion is denied, the defendant should not appeal that order, but should instead file the intended motion as soon as possible, alleging the grounds for the motion to the best of the defendant’s ability and further alleging the reason why the motion is untimely.”).


author: MAY, J.

text:
    K.H., the Birth Father, Appellant, v. The CHILDREN’S HOME SOCIETY OF FLORIDA, Appellee.
    Nos. 4D13-1509, 4D13-1621.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.

      Donna Greenspan Solomon of Solomon Appeals Mediation & Arbitration, Fort Lauderdale, and Kimberly Rommel-En-right of Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for appellant.
    Frank D. Gonzalez of The Children’s Home Society of Florida, Winter Park, and Gregory N. Anderson of Stack, Fernandez, Anderson & Harris, P.A., Miami, for ap-pellee.
   MAY, J.

The putative father appeals the termination of his parental rights. He argues the trial court erred in failing to appoint a lawyer for him when the Children’s Home Society (CHS) filed a notice of intended adoption plan. He also argues the court erred in failing to notify him before entering a default judgment and in denying his motion to set aside the default. We find no error and affirm.

Prior to the child’s birth, the mother was in frequent communication with CHS, a licensed child-placing agency. During her discussions with CHS, the birth mother identified the putative father. After numerous meetings and phone conversations, the mother confirmed her desire to place the child for adoption. CHS then initiated the underlying proceeding by filing its Notice of Intended Adoption Plan with the trial court.

As required by section 63.062(3), Florida Statutes (2012), CHS served the putative father with the Notice of Intended Adoption Plan on September 17, 2012. The Notice advised him:

1) that he was named as the “potential unmarried biological father” of the birth mother’s unborn child;
2) that he was required to act within 30 days of being served;
3) his obligations under section 63.062(2)(b), Florida Statutes, including his obligation to file a Claim of Paternity with the Office of Vital Statistics;
4) the address of the clerk’s office to which he was required to send his responsive papers; and
5) the address of the Office of Vital Statistics to which he was to mail his Claim of Paternity Form.

CHS also included: (1) a blank claim of paternity form; (2) a sheet containing information to aid him in completing and filing the form; and (3) a brochure published by the Florida Department of Health with regard to the Putative Father Registry.

The putative father failed to timely register his Claim of Paternity with the Putative Father Registry, and in fact failed to file any response with the trial court within the 30-day period. On October 24, 2012, the trial court entered a default judgment against him.

The next day, the birth mother executed her consent to the adoption and placed the child with CHS. On November 2, 2012, CHS initiated the second phase of the adoption proceedings by filing a verified petition for termination of parental rights and permanent commitment for adoption.

Two months after receiving a copy of the Notice of Adoption, the putative father, through his mother, filed a letter with the trial court objecting to the planned adoption. The letter was not signed, witnessed, or notarized, and did not otherwise comply with the requirements of section 63.062(2)(b)(2), Florida Statutes (2012).

After the putative father failed to timely file any motion addressing the default judgment, the trial court set another status conference. Notice of the status conference was mailed to the putative father at his current location. He arranged to appear at the hearing.

At the status conference, the putative father reiterated his objection to the adoption plan. He completed an indigency affidavit; the trial court entered an order appointing counsel, and gave him ten days to file a motion to set aside the default judgment.

Through counsel, the putative father moved to set aside the default, alleging excusable neglect, due diligence, and a meritorious defense. At the hearing, he testified that prior to his incarceration he provided the mother with income, clothing and diapers, and attended “most” of her doctor’s appointments. He had been employed as a laborer, and he sometimes worked with his mother, who cleaned houses and buildings. While incarcerated, he was studying for the GED, and had plans to work upon his release.

He testified that he knew he had to file a response after being served with the Notice of Adoption; had the ability to prepare and write a response; and had the ability to mail documents from the detention center where he was being held. Instead, two months after receiving the Notice of Adoption, he wrote a letter to his mother, but did not mail the response to the trial court or anyone else. He called CHS, but did not leave a voicemail message because he could not receive return phone calls in jail.

The trial court denied the motion to set aside the default. The trial court found that the putative father “chose to mail his response to his mother rather than comply with the requirements of Chapter 63 and provide a response to [CHS] and the Court and register with the Putative Father Registry.” The trial court determined that he had shown neither excusable neglect nor due diligence to warrant setting aside the default.

The trial court set a final hearing on CHS’s Petition for Termination of Parental Rights and Permanent Commitment for Subsequent Adoption for May 3, 2013. Just prior to that hearing, the putative father’s counsel moved to stay the final hearing pending our ruling on the non-final appeal of the order denying his motion to set aside the default. But the trial court denied the motion for a stay, and entered a Final Judgment of Termination of Parental Rights and Order of Permanent Commitment for Subsequent Adoption. The trial court suspended the final judgment pending this appeal. We consolidated the appeal from the denial of the motion to set aside the default and the appeal from the final judgment.

On appeal, the putative father argues the trial court committed fundamental error by not appointing him counsel until after the 30-day time period for compliance with the statutory requirements of Chapter 63 had expired. CHS responds that the trial court did not commit fundamental error because the putative father was entitled to counsel only if he filed the proper paperwork, pursuant to Chapter 63. We agree with CHS and affirm.

We have de novo review as this appeal involves questions of statutory interpretation and constitutional rights. See Borden v. E.-European Ins. Co., 921 So.2d 587, 591 (Fla.2006); Hilton v. State, 961 So.2d 284, 293 (Fla.2007).

Indigent parents have a right to an attorney under the Due Process Clause whenever a proceeding can result in a permanent loss of parental rights. See In re D.B., 385 So.2d 83, 90 (Fla.1980). That right is limited to “(1) the natural married or divorced indigent parents of the child, (2) the natural indigent mother of an illegitimate child, and (3) the natural indigent father of an illegitimate child when he legally has recognized or is in fact maintaining the child.” Id. at 91. Our supreme court rejected “any requirement for the mandatory appointment of counsel for the father of an illegitimate child who has not legally acknowledged or in fact supported the child.” Id. (emphasis added).

Sections 63.062(2)(b) & (3)(a) delineate the steps that a putative father must take to legally recognize a child and preserve his parental rights. Within 30 days of receipt of service of a notice of intended adoption plan, the putative father must: (1) file a claim of paternity with the Florida Putative Father Registry; (2) file a verified response with the court stating that he is personally fully able and willing to take responsibility for the child, setting forth his plans for care of the child, and agreeing to a court order of child support; and (3) provide support for the birth mother and child. § 63.062(2)(b), (3)(a), Fla. Stat. (2012). “If an unmarried biological father fails to take the actions that are available to him to establish a relationship with his child, his parental interest may be lost entirely, or greatly diminished, by his failure to timely comply with the available legal steps to substantiate a parental interest.” § 63.053(1), Fla. Stat. (2012).

A putative father does not have a complete and absolute parental right; he has only “an inchoate interest that acquires constitutional protection only when he demonstrates a timely and full commitment to the responsibilities of parenthood ....” § 63.022(l)(e), Fla. Stat. (2012). Commitment to the responsibilities of parenthood must be shown in accordance with the requirements of Chapter 63. Id.

Here, the father had an inchoate interest prior to filing the paperwork required by Chapter 63. Once he was served with the Notice of Adoption, he had 30 days to file the required paperwork. He faded to do so. The clear intent of the Legislature in section 63.062(2)(e) is that a putative father, who does not comply with the requirements of section 68.062(2), is “deemed to have waived and surrendered any rights in relation to the child.” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 197 (Fla.2007). Until a putative father complies with the statute, he has no constitutionally-protected right to counsel. See In re D.B., 385 So.2d at 91.

We find no merit in the other issues raised. We therefore affirm.

Affirmed.

GROSS and FORST, JJ., concur.

      . The putative father is currently incarcerated until March 2014. He has been convicted of a felony on five occasions.

      . We are aware that the Second District has suggested that such a right might attach if the sole basis for granting a petition for termination of parental rights was the parent’s "failure to timely comply with the requirement of the Notice of Intended Adoption Plan...." S.C. v. Gift of Life Adoptions, 100 So.3d 774 (Fla. 2d DCA 2012) (affirming the termination of parental rights on other grounds).


text:
    Eleuterio ORTIZ-OLIVO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1121.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    Eleuterio Ortiz-Olivo, Bowling Green, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Moore v. State, 114 So.3d 291 (Fla. 4th DCA 2013); Simmons v. State, 104 So.3d 1185 (Fla. 1st DCA 2012); Perie v. State, - So. 3d - (Fla. 2d DCA 2013).

TAYLOR, MAY and LEVINE, JJ., concur.


text:
    Shenard KING, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-1012.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    Shenard King, Perry, pro se.
    No appearance required for respondent.
   PER CURIAM.

The defendant filed a petition for writ of habeas corpus. He alleged ineffectiveness of appellate counsel in failing to challenge the sufficiency of evidence to support the battery on a law enforcement officer conviction in his direct appeal. While habeas corpus is the correct vehicle for reviewing appellate counsel’s effectiveness, the defendant cannot show that failure to raise this claim was either deficient performance or prejudicial. Dennis v. State, 109 So.3d 680 (Fla.2012).

Section 776.051(1), Florida Statutes (2008), prohibits the use of force to resist either arrest or the execution of a legal duty by a law enforcement officer unless the defendant can show that the officer was not acting in good faith. A.W. v. State, 82 So.3d 1136, 1139 (Fla. 4th DCA 2012). There was no such showing here.

Defendant’s alternative claim that appellate counsel was ineffective in failing to argue the prosecutor improperly vouched for the credibility of the officer is insufficiently pled and no error has been established. Pittman v. State, 90 So.3d 794, 819 (Fla.2011).

We therefore deny the petition.

MAY, CONNER, and FORST, JJ„ concur.

      . King v. State, 96 So.3d 906 (Fla. 4th DCA 2012).

      . Petitioner was also found guilty of resisting an officer without violence. This conviction was not addressed in the petition and is not before us.


author: GERBER, J.

text:
    Steven STAUM, as Administrator of Friedwald Center for Rehabilitation and Nursing LLC, Appellant, v. Petrina RUBANO a/k/a Trina Rubano, Appellee.
    No. 4D12-1657.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    Neil Ian Rumbak of Korsinsky & Klein, LLP, Pompano Beach, for appellant.
    Marc A. Silverman of Frank, Weinberg & Black, P.L., Plantation, for appellee.
   GERBER, J.

A nursing home appeals from the circuit court’s order dismissing its petition to compel an accounting of the decedent’s Broward County ancillary estate and to transfer the ancillary estate’s assets to the decedent’s New York domiciliary estate. The nursing home argues that the court erred in dismissing the petition based on the court’s findings that: (1) the nursing home’s claim against the decedent’s estate was untimely pursuant to section 733.710(1), Florida Statutes (2011); and (2) the nursing home was not an “interested person” pursuant to section 731.201(23), Florida Statutes (2011). We agree with the nursing home that the court’s second finding and part of the court’s first finding were in error. We reverse and remand for reinstatement of the nursing home’s petition.

In 2007, the decedent died while domiciled in New York. At the time of the decedent’s death, the nursing home was owed payment for its care of the decedent in New York.

In 2009, the nursing home filed a civil complaint against the decedent’s personal representative in New York to recover the owed payment. This complaint was filed before any estate was opened.

In 2010, the decedent’s personal representative opened the New York domiciliary estate.

In 2011, the nursing home filed a claim against the New York domiciliary estate. Later that year, the decedent’s personal representative opened the Broward County ancillary estate to administer the disposition of the decedent’s Broward County home. The nursing home filed a claim against the Broward County ancillary estate.

The nursing home then filed a petition in Broward County to compel an accounting of the ancillary estate and to transfer the ancillary estate’s assets to the New York domiciliary estate. See Fla. Prob. R. 5.150(b) (2011) (“On the petition of an interested person ... the court may require the personal representative ... to file an accounting or return not otherwise required by statute or rule.”); § 734.102(6), Fla. Stat. (2011) (“After the payment of all expenses of administration and claims against the estate, the court may order the remaining property held by the ancillary personal representative transferred to the foreign personal representative or distributed to the beneficiaries.”). In the petition, the nursing home alleged that because it had filed claims against both the New York domiciliary estate and the Bro-ward County ancillary estate, it was an “interested person” as defined in section 731.201(23), Florida Statutes (2011) (“ ‘Interested person’ means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.”). The nursing home also alleged that if the personal representative transferred the ancillary estate’s assets directly to the domiciliary estate’s beneficiaries instead of to the New York domiciliary estate, then the nursing home likely would not recover on its claim against the domiciliary estate.

The personal representative filed a motion to dismiss the nursing home’s petition. The personal representative argued that because the nursing home filed its claims against both the New York domiciliary estate and the Broward County ancillary estate more than two years after the decedent’s death, the claims were untimely under Section 733.710(1), Florida Statutes (2011). Section 733.710(1) states:

Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.

§ 733.710(1), Fla. Stat. (2011).

The nursing home’s response to the motion argued that section 733.710(1) did not apply because its petition was not requesting the court to adjudicate the nursing home’s claim against the ancillary estate. Rather, according to the nursing home, its petition requested the court only to compel an accounting of the Broward County ancillary estate and to transfer the ancillary estate’s assets to the New York domiciliary estate so that the New York court overseeing the domiciliary estate could administer the distribution of those assets.

After a hearing, the circuit court granted the personal representative’s motion to dismiss the nursing home’s petition. The court reasoned:

[The nursing home’s] claim is untimely pursuant to Florida Statute 738.710, and further, Florida Statute 734.102(7) states “No property shall be sold, leased, or mortgaged to pay a debt or claim that is barred by any statute of limitation or of nonelaim of this state.” As such, [the nursing home] is not an interested person pursuant to 731.201(23).

This appeal followed. The nursing home argues that the circuit court erred in dismissing the petition based on the court’s findings that: (1) the nursing home’s claim was untimely pursuant to section 733.710(1); and (2) the nursing home was not an “interested person” pursuant to section 731.201(23).

We review the circuit court’s first finding for an abuse of discretion. Cf. In re Estate of Ortolano, 766 So.2d 330, 332 (Fla. 4th DCA 2000) (“The standard of review of an order striking a claim against an estate for being untimely filed is whether the trial court abused its discretion.”). We review the court’s second finding de novo. See Agee v. Brown, 73 So.3d 882, 885 (Fla. 4th DCA 2011) (an appellate court reviews an order of dismissal in a probate matter based on a lack of standing de novo).

We affirm the circuit court’s first finding to the extent the court found that the nursing home’s claim against the Broward County ancillary estate was untimely. See § 734.102(5), Fla. Stat. (2011) (imposing notice and publication requirements on ancillary personal representative “[u]nless creditors’ claims are otherwise barred by s. 733.710”).

However, to the extent the circuit court found that the nursing home’s pending claim against the New York domiciliary estate was untimely, we reverse. We are aware of no authority providing a Florida court with jurisdiction to determine that a creditor’s pending claim against a foreign domiciliary estate is untimely.

Because the nursing home’s claim against the New York domiciliary estate remains pending, we reverse the court’s second finding that the nursing home is not an interested person. The distribution of the ancillary estate’s assets may adversely affect the domiciliary estate’s ability to satisfy the nursing home’s New York claim. See § 734.102(6), Fla. Stat. (2011) (“After the payment of all expenses of administration and claims against the estate, the court may order the remaining property held by the ancillary personal representative transferred to the foreign personal representative or distributed to the beneficiaries.”). Thus, regardless of the untimeliness of the nursing home’s claim against the ancillary estate, the nursing home remained an “interested person” in relation to both the ancillary estate and the domiciliary estate, and had standing to file its petition to compel an accounting of the ancillary estate and to transfer the ancillary estate’s assets to the domiciliary estate. See Smith v. DeParry, 86 So.3d 1228, 1235 (Fla. 2d DCA 2012) (“Under the probate code, the term ‘interested person’ refers to a person’s or entity’s standing, i.e., the right to notice and an opportunity to be heard in a particular proceeding pending in a probate or guardianship matter.”); Fla. Prob. R. 5.150(b) (2011) (“On the petition of an interested person ... the court may require the personal representative ... to file an accounting or return not otherwise required by statute or rule.”).

Based on the foregoing, we reverse the circuit court’s order granting the personal representative’s motion to dismiss the nursing home’s petition to compel an accounting of the ancillary estate and to transfer the ancillary estate’s assets to the domiciliary estate. We remand for reinstatement of the petition and for proceedings consistent with this opinion.

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

MAY and LEVINE, JJ., concur.


text:
    Roosevelt SEYMOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-680.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    Roosevelt Seymoore, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

The denial of appellant’s Motion for Jail Time Credit is affirmed without prejudice to him to first exhaust his administrative remedies with the Department of Corrections and then, if necessary, petition the circuit court in Leon County for a writ of mandamus to compel the Department to credit him with the jail time awarded by the trial court. Bush v. State, 945 So.2d 1207, 1213-14 (Fla.2006); Perkins v. State, 839 So.2d 796, 797 (Fla. 4th DCA 2003); Rood v. State, 790 So.2d 1192, 1193 (Fla. 1st DCA 2001).

WARNER, GROSS and LEVINE, JJ., concur.


text:
    Jerome ARMSTRONG, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-537.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    John C. Rayson of Law Offices of John C. Rayson, Fort Lauderdale, for petitioner.
    No brief filed on behalf of respondent.
   PER CURIAM.

The petition for writ of prohibition, which argues self-defense immunity from prosecution under section 776.032, Florida Statutes (2010), is denied. The trial court resolved the contradictory testimony given by various witnesses at the hearing on the motion to dismiss and concluded that petitioner’s status as the aggressor in the incident precluded his entitlement to immunity. Johnson v. State, 65 So.3d 1147, 1149 (Fla. 3d DCA 2011). The court’s findings are supported by competent substantial evidence and will not be disturbed. Joseph v. State, 103 So.3d 227, 228-29 (Fla. 4th DCA 2012); Tover v. State, 106 So.3d 958, 959 (Fla. 4th DCA 2013).

Denial of this petition is without prejudice to petitioner raising this statutory defense at trial if he so chooses, Tover, 106 So.3d at 959; accord Mederos v. State, 102 So.3d 7, 11 (Fla. 1st DCA 2012).

Denied without prejudice.

TAYLOR, GERBER and CONNER, JJ., concur.


text:
    Willie STEED, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-158.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    Willie Steed, Doral, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s Rule 3.800(a) motion which attempted to challenge his 1986 plea to escape in this case. The motion does not establish an “illegal sentence” that can be corrected at any time under the rule. Instead, the motion attempts to bring procedurally barred and untimely challenges to the conviction. See Fla. R. Crim. P. 3.850.

Appellant alleges in Ground 1 that his fifteen year sentence exceeds the statutory maximum. This allegation is false as escape is a second-degree felony. § 944.40, Fla. Stat. (1985). Appellant also claims that he was convicted of a non-existent offense and that the information was defective because it did not allege that the prosecutor had received sworn testimony from a material witness. It is now well-established that such claims are frivolous. Logan v. State, 21 So.3d 917 (Fla. 4th DCA 2009); Collins v. State, 97 So.3d 305 (Fla. 4th DCA 2012). Appellant raises another frivolous claim that his “scoresheet is illegal” because it was not signed by the judge. In an addendum, appellant attempted to go behind his plea and argued a procedurally barred claim that the evidence was insufficient to support an escape conviction.

The Clerk of this Court is directed to forward a certified copy of this order to the appropriate institution for consideration of disciplinary procedures, including forfeiture of gain time. § 944.279(1), Fla. Stat. (2012). Appellant is cautioned that further frivolous filing may result in additional sanctions such as a bar on pro se filing in this court. State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed. Appellant referred for consideration of disciplinary procedures.

STEVENSON, MAY and CONNER, JJ., concur.


text:
    Lindsay JENKINS, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, Appellees.
    No. 4D12-243.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    Lindsay Jenkins, Forest Hills, New York, pro se.
    Stephen T. Maher and George Andrews of Shutts & Bowen LLP, Miami, for appel-lees.
   PER CURIAM.

We affirm the trial court’s Omnibus Order Granting Permanent Injunction barring appellant from future filings relating to a foreclosure proceeding or to file future actions arising out of the foreclosure proceedings in the Fifteenth Judicial Circuit, as well as other provisions, as a result of appellant’s vexatious litigation conduct. The trial court acted within its inherent authority to sanction an abusive litigant. See May v. Barthet, 934 So.2d 1184, 1187 (Fla.2006). We note that, contrary to her representation in her brief, the order was limited to commencing and continuing actions in the Fifteenth Circuit. She has already been prohibited by the federal court from filing similar actions in those courts.

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    David ABRAHAM, Appellant, v. UNIVERSAL INSURANCE COMPANY OF NORTH AMERICA, a foreign insurance company, Appellee.
    No. 4D12-2742.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.

      Richard W. Glenn of Law Office of Richard W. Glenn, Palm Beach Gardens, for appellant.
    Beth Blechman and Robert C. Groelle of Groelle & Salmon, P.A., Wellington, for appellee.
   PER CURIAM.

We affirm the final summary judgment denying coverage under a residential tenant insurance policy. The insured claimed that a water leak caused mold damage to the premises. The insurer defended, claiming both a misrepresentation in the application, in that the premises were in fact being used for a commercial enterprise, rather than for residential purposes, and also that the policy excluded mold damage. In its motion for summary judgment the insurer argued both the misrepresentation as well as the exclusions from coverage and the fact that no water leak was found in the premises. The trial court granted súmmary judgment, finding a material misrepresentation.

Although we conclude that a material issue of fact remained as to misrepresentation since there was no evidence in the record as to whether the premises were being used for commercial purposes at the time of the application, we can affirm where there is any basis to support the judgment. Dade Cnty. Sch. Bd. v. Radio Station WQBA, 781 So.2d 638, 644 (Fla.1999). (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”). The insurance company presented undisputed evidence that there was no water leak, and the policy did not cover mold unconnected to a peril covered by the policy. Defects in the construction process, as the expert testified was how the mold occurred, are not covered by the policy. Therefore, the summary judgment was appropriately entered.

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    Jason Michael BYRON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D12-4513.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.

      Diamond R. Litty, Public Defender, and Mark Miller, Special Assistant Public Defender, Stuart, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Jason Michael Byron seeks second-tier certiorari review of a St. Lucie Circuit Court appellate decision affirming the county court’s order denying a motion to suppress. We deny the petition on the grounds that Byron has not shown a manifest injustice by the affirmance, even though we disagree with the rationale stated by the circuit court.

The operative facts were essentially undisputed. In July 2011, St. Lucie deputies arrived at an address to execute felony warrants on a named individual. Byron opened the door and told the deputies he was not the person named on the warrants, adding that the person named did not live there. The deputies reported smelling raw marijuana inside the residence and seeing a clear mason jar with what appeared to be a green leafy substance or material in it. They asked Byron to produce identification and then followed him as he entered his apartment.

Byron tried to close the door after the deputies asked for his identification, but they testified that it was standard practice for them to not allow an individual to return back into his residence and out of their sight in these circumstances. Once inside the apartment, the deputies confirmed that the item in the mason jar was marijuana. They also found a loaded firearm and a large marijuana pipe next to the mason jar.

In affirming the county court’s denial of Byron’s motion to suppress, the circuit court panel stated that when Byron retreated inside his apartment to retrieve his identification, the deputies had the right to enter and keep him in their sight for officer safety. The panel concluded that the officers “had probable cause to follow him into the residence to assure that he was not retreating to obtain a weapon. Once inside, they could properly take custody of any contraband in plain sight.” The circuit court panel denied Byron’s motion for rehearing, but one judge on the panel dissented without opinion.

Second-tier certiorari review requires a determination of whether the circuit court denied petitioner procedural due process or failed to apply the correct law (departed from the essential requirements of law) in a way that caused a miscarriage of justice. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); Kirrie v. Indian River Cnty.Code Enforcement Bd., 104 So.3d 1177, 1179 (Fla. 4th DCA 2012).

Petitioner does not argue a denial of procedural due process. Instead, he argues that the circuit court failed to apply the correct law as enunciated in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (holding that warrant-less arrests in a person’s residence absent exigent circumstances are unconstitutional). We agree with petitioner that the circuit court failed to apply the correct law insofar as it concluded that the deputies had probable cause to follow Byron into his residence to ensure that he was not going inside to obtain a weapon, given that no evidence was offered to support a belief that their safety was threatened in any manner.

Even so, exigent circumstances allowed the seizure of the contraband without a warrant based on the deputies’ observation of marijuana in the apartment from a legal vantage point. It could reasonably be inferred from the circumstances of this case that Byron was aware of what the deputies saw and smelled when the door was first opened. Under any objective view of these facts, the officers acted reasonably in entering the apartment and seizing the contraband before Byron had the opportunity to close the door and dispose of it. See Gilbert v. State, 789 So.2d 426, 429 (Fla. 4th DCA 2001).

We thus conclude that the circuit court’s affirmance was the correct result, even though we base our conclusion on different grounds. As such, petitioner has failed to demonstrate that the circuit court’s affir-mance resulted in a miscarriage of justice, which is required for second-tier certiorari.

Petition Denied.

DAMOORGIAN, C.J., TAYLOR and MAY, JJ. concur.


author: FORST, J.

text:
    Manuel FERNANDEZ, Appellant, v. DEPARTMENT OF HEALTH, Board of Nursing, Appellee.
    No. 4D12-3431.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.

      Lawrence E. Besser, Miami, for appellant.
    Therese A. Savona, Tallahassee, for ap-pellee.
   FORST, J.

The Appellant, Manuel Fernandez, appeals the order of the Board of Nursing (“Board”), which revoked his nursing license after Fernandez admitted that he administered medication to a person who was not his patient. The Board had previously revoked Fernandez’s license and we reversed because the order did not comply with the relevant administrative rule and statute, which require articulation of aggravating circumstances before departing upward from a guidelines penalty. Fernandez v. Fla. Dep’t of Health Bd. of Nursing, 82 So.3d 1202 (Fla. 4th DCA 2012) (“Fernandez I”). On remand, the Board entered an order which made factual findings and considered applicable aggravating factors. Because one of these aggravating factors is not supported by any factual findings in the record, we remand for the Board to reconsider the penalty.

The factual background of this case is briefly set forth in Fernandez I. Fernandez was employed as a registered nurse and was working as a home health care provider. One of his patients had a prescription for Heparin and vials of that drug were in Fernandez’s car when he went to Miramar Memorial Hospital in order to visit a friend who had given birth the previous day to twins. Fernandez was not an employee of Miramar Memorial Hospital and had no right or authority to practice nursing there. Upon finding his friend in discomfort, Fernandez retrieved the Heparin from his car and administered one or more syringes of Heparin (via foley catheter) to the patient. A nurse found the syringes in the garbage can of the patient’s room. The friend did not have a prescription or physician’s order for Heparin. Subsequently, after being confronted, Fernandez admitted that he administered one syringe of Heparin to the patient.

Subsequently, the Department of Health (“Department”) filed an administrative complaint against Fernandez before the Board. The Department alleged that Fernandez’s actions “violated section 464.018(l)(n), Florida Statutes (2008), for failing to meet minimal standards of acceptable and prevailing nursing practice, as further defined by Rule 64B9-8.005(2)(c), Florida Administrative Code, to include misappropriating drugs.” In its original final order, the Board accepted the Department’s recommendation and entered an order permanently revoking Fernandez’s nursing license. An appeal to this court followed. As noted above, we reversed (Fernandez I).

Section 456.079(3), Florida Statutes (2008), gives the Board discretion to depart from the penalty guidelines set forth in rule 64B9-8.006, Florida Administrative Code (2006), and to impose a harsher penalty when there are aggravating circumstances. Fernandez I, 82 So.3d at 1204. The Board determined that five aggravating factors supported an upward departure penalty of license revocation. Fernandez argues that none of the grounds relied on by the Board to depart upward from the guidelines were supported by competent substantial evidence. However, the record and the Board’s findings provide support with respect to four of the aggravating factors.

Nonetheless, we find that one of the aggravating factors was not supported by competent substantial evidence. The Board recited as an aggravating factor “[t]he damage caused by Respondent’s violations.” The transcript of the hearing indicates this was based on speculation that the medication administered to the patient led to her subsequent medical distress. Yet, this “finding” is not supported by the competent substantial evidence in the record before us.

“This court cannot substitute its judgment for that of an administrative agency, charged with implementing and enforcing its own statute, when that agency has imposed a penalty within the permissible range of penalties.” Mendez v. Fla. Dep’t of Health, 943 So.2d 909, 911 (Fla. 1st DCA 2006). Moreover, a primary function of professional disciplinary boards is to determine the appropriate punishment for misconduct of the professionals regulated. Criminal Justice Standards Training Commn. v. Bradley, 596 So.2d 661, 663 (Fla.1992).

Although the Board may impose an upward departure penalty based on the aggravating factors supported by the record, see Fernandez I, 82 So.3d at 1204, it is unclear whether it would have revoked Fernandez’s license absent the finding that his actions caused damage to the patient. Accordingly, we remand for the Board to reconsider the penalty. See LaRossa v. Dep’t of Prof'l Regulation, Div. of Real Estate, 474 So.2d 322 (Fla. 3d DCA 1985) (remanding to agency for reconsideration of penalty where it was apparent that the agency relied in part on a finding the appellate court reversed).

Affirmed in part, Reversed in part and Remanded for further proceedings consistent with this opinion.

LEVINE, J., and KLINGENSMITH, MARK W., Associate Judge, concur.

      . Fernandez’s actions occurred when the 2006 version of the Rules were in effect. Rule 64B9-8.005 was amended in April of 2009; Rule 64B9-8.006 was amended in 2012.


text:
    Marlene GORDON, Appellant, v. Laurie KLEINMAN, individually, and as Personal Representative of the Estate of Joel H. Davis, Deceased; and M. Tamara Rimes as Curator, Appellees.
    No. 4D12-3080.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    James A. Herb of Herb Law Firm, Chartered, Boca Raton, for appellant.
    Joseph E. Altschul of Joseph E. Alt-schul, LLC, Fort Lauderdale, for appel-lees.
   PER CURIAM.

After the death of Joel Davis on August 7, 2011, his 2009 will was admitted into probate with respondent/appellee, Laurie Kleinman, appointed as personal representative. Petitioner/appellant, Marlene Gordon, filed her Petition for Revocation of Probate of Will alleging that Davis’s 1983 will (in which she was the beneficiary) was his only valid will. Respondent filed a motion to dismiss arguing that petitioner lacked standing to assert the claims and she failed to allege any facts supporting her claim of undue influence. Ultimately, the trial court granted respondent’s motion to dismiss. Petitioner filed a timely notice of appeal, arguing that she has standing to petition for revocation of the 2009 will because she has alleged that all wills executed by Davis after the 1983 will were invalid. We agree petitioner’s Second Amended Petition was sufficient to withstand a motion to dismiss and reverse and remand for further proceedings.

Respondent’s initial motion to dismiss the Petition for Revocation of Probate of Will was denied without prejudice. Respondent renewed her motion to dismiss and attached Davis’s last four wills from 1992, 2003, 2008, and 2009 in which petitioner was not named a beneficiary. Respondent raised the same grounds for dismissal. Without a ruling on the motion, petitioner amended her petition and attached the 1983 will in which she was a beneficiary. Respondent again moved to dismiss, which the trial court granted with leave to amend.

Petitioner filed her Second Amended Petition for Revocation of Probate of Will in which she alleged that, due to undue influence and testamentary incapacity based upon lack of capacity and insane delusion, the last four wills were invalid. Respondent again filed her motion to dismiss asserting that petitioner had not corrected the prior deficiencies. The trial court granted the motion, finding that petitioner lacked standing to contest probate of the will and that she failed to state a cause of action. The trial court gave petitioner leave to amend but admonished counsel to be cognizant of section 57.105, Florida Statutes. When petitioner did not amend her petition, the trial court dismissed the petition.

“We review orders of dismissal based on a lack of standing de novo.” Agee v. Brown, 73 So.3d 882, 885 (Fla. 4th DCA 2011). “In determining whether to dismiss a complaint for lack of standing, we must confine our review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept all well-pled allegations in the complaint as true.” Wheeler v. Powers, 972 So.2d 285, 288 (Fla. 5th DCA 2008) (quoting Payne v. City of Miami, 927 So.2d 904, 906 (Fla. 3d DCA 2005)).

The Florida Probate Code provides that a proceeding to revoke probate of a will may be commenced by “[a]ny interested person, including a beneficiary under a prior will, unless barred under s. 733.212 or s. 733.2123 ... before final discharge of the personal representative.” § 733.109(1), Fla. Stat. (2009). In section 731.201(23), Florida Statutes (2009), “interested person” is defined as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.”

“A petition for revocation of probate shall state the interest of the petitioner in the estate and the facts constituting the grounds on which the revocation is demanded.” Fla. Prob. R. 5.270. “Hence, whether a person is an ‘interested person’ is an element that must be established by the petitioner seeking revocation of probate .... ” Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002, 1006 (Fla. 5th DCA 2005). “[A] petitioner may not be an interested person in revocation and removal proceedings if previous and presumptively valid wills have been discovered that, similar to the current will, do not include the petitioner as a beneficiary of the estate.” Id. (citations omitted). Thus “it is the burden of the petitioner seeking to revoke the present will to establish that the previous will, which also excludes the petitioner as a beneficiary, is invalid.” Id.

To withstand a motion to dismiss, the petition must be reviewed for sufficient allegations that the petitioner is an interested person and that previous wills which excluded the petitioner are invalid. In the second amended petition, petitioner alleged that she was the beneficiary of the 1983 will and that all of the prior wills under which she was not a beneficiary were the result of undue influence and/or testamentary incapacity and therefore invalid. Petitioner has pleaded sufficient allegations of standing and the trial court erred in dismissing her petition. Accordingly, we reverse the trial court’s dismissal of the second amended petition and remand for further proceedings.

Reversed and remanded.

LEVINE, FORST, JJ., and KLINGENSMITH, MARK W., Associate Judge, concur.


author: GROSS, J.

text:
    Kevin CONSTANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4629.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Kevin Constant appeals his conviction of two counts of armed robbery following a jury trial. We reverse the conviction because the trial court admitted hearsay evidence identifying Constant as the armed robber. The error was not harmless because the State relied on the hearsay to support the prosecution, as the issue of identification was contested.

The Robbery

On May 1, 2008, Salieu Deen and Dwayne Scott were working the cash registers at a gas station. At approximately 9:00 a.m., a man entered the gas station, pointed a small, silver and gold gun at the two workers, and took about $400 from the cash registers. A recording on the gas station’s video security camera showed the robber flee the scene in a red Volvo S60 with dark window tint.

Approximately seven hours after the robbery, police officers observed Constant park a red Volvo a few miles from the gas station. As the officers approached, Constant dropped a red bandana and fled on foot. Following a chase, Constant was eventually apprehended after being hit by a car, fighting with the police, and being tackled by two officers.

Upon his arrest, police officers noted that Constant was neither wearing the same clothes as the man in the surveillance video, nor was he carrying cash or a gun on his person. In addition, the police observed multiple tattoos on Constant’s right arm and hand; however, the lead detective did not see any tattoos on the robber in the surveillance video. When the officers returned to the location where Constant parked the Volvo, the vehicle was gone— having been driven away by another individual. The police recovered the Volvo eight hours later in the possession of a third person, after which authorities learned that yet another person had originally rented the Volvo.

Due to the injuries he sustained from being hit by a car, Constant was transported to the hospital, where the lead detective interviewed him. During the recorded interview, Constant denied involvement in the robbery. In an unrecorded portion, however, the detective showed Constant a photo from the surveillance video. Constant’s reaction was to ask how the detective had a photo of him. Another detective, who was present at the time, also testified to Constant’s statement, but did not include it in his report.

The police processed the crime scene for latent fingerprints and swabbed for DNA in the areas that the robber had touched. Although the police obtained twenty-two prints of value from the counter, glass door, and cash drawer, none of the prints matched those of Constant.

One Victim’s Testimony

At trial, Deen testified that Constant pointed a gun at Scott, prompting Scott to hand over the cash from the register. Constant then pointed the gun at Deen, took the cash from the register, and fled the store.

Deen testified that he saw Constant’s face clearly during the robbery. Deen was also able to identify Constant from a photo lineup several days after the robbery, and again in the courtroom at trial. According to Deen, the robber was wearing a red bandana on his head, a white t-shirt or sleeveless tank top, and blue jeans. However, he did not notice any tattoos on the robber’s arms or hands.

The other victim, Scott, did not testify at trial. Instead, the State called a police officer to say that Scott identified Constant in a photo lineup. The defense objected, arguing that the proposed evidence was inadmissible hearsay, a violation of the Confrontation Clause, and contrary to the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The trial court overruled the defense’s objection, finding that the testimony was admissible as a hearsay exception.

Over objection, the police officer testified that Scott identified Constant from a series of photos as the man who robbed him. According to the officer, Scott signed and dated the photo, on which he wrote: “This is the person that pull [sic] out a gun on me while I was working at the [gas station].” Over the defense’s renewed objection, the photo was then admitted into evidence.

Closing Arguments

During closing arguments, the State stressed Scott’s identification of Constant as the robber, stating, “Dwayne Scott told [the officer], ‘That’s the man who robbed me. He signed it, dated it, initialed it.” Additionally, in rebuttal argument, the State relied on Scott’s identification twice more, stating:

The fact that Dwayne Scott identified him — Dwayne Scott was in a separate location by himself with an officer, identified him from these pictures.... Mr. Deen was in a separate location with a different officer, identified him from these pictures.
[ T]hat it was in fact Mr. Constant who was identified by both victims in the case....

(Emphasis added). The jury eventually found Constant guilty as charged, and the trial court sentenced him to life in prison.

On appeal, Constant argues that the trial court committed reversible error in admitting the officer’s testimony of Scott’s identification because such evidence presented inadmissible hearsay. As an issue involving the admissibility of evidence, we review this matter for an “abuse of discretion, limited by the rules of evidence.” Bartholomew v. State, 101 So.3d 888, 891 (Fla. 4th DCA 2012) (citing Padgett v. State, 73 So.3d 902, 904 (Fla. 4th DCA 2011)).

Hearsay

“Except as provided by statute, hearsay evidence is inadmissible.” § 90.802, Fla. Stat. (2010). Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Dixon v. State, 107 So.3d 527, 533 (Fla. 4th DCA 2013) (citing § 90.801(l)(c), Fla. Stat. (2010)). While a declarant’s out-of-court statement will generally fall within this blanket prohibition, section 90.801(2)(c), Florida Statutes (2011), provides for an exclusion from hearsay for certain identification testimony, providing, in pertinent part:

(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(e) One of identification of a person made after perceiving the person.

§ 90.801(2)(c), Fla. Stat. (2011) (emphasis added).

Construing the plain language of the statute, Florida courts have consistently recognized that where a person making an out-of-court identification does not testify at trial, evidence of the identification will not be admissible. See Hayes v. State, 581 So.2d 121, 124 (Fla.1991) (“Section 90.801(2)(c) excludes from the definition of hearsay out-of-court statements of identification only when the declarant also testifies at trial.”) (citing State v. Freber, 866 So.2d 426 (Fla.1978)); see also Valley v. State, 860 So.2d 464, 467 (Fla. 4th DCA 2003) (holding that a detective’s testimony that a co-worker had identified a man in a photograph as the defendant was inadmissible hearsay where the co-worker did not testify at trial); Edwards v. State, 967 So.2d 308, 311 (Fla. 3d DCA 2007) (holding that an officer's testimony that a witness had identified the defendant as an armed robber was hearsay where the witness did not testify at trial and was not cross-examined).

In this case, Scott did not testify at trial and was not subject to cross-examination. As such, the officer’s testimony regarding Scott’s out-of-court identification of Constant was inadmissible hearsay, making the admission of the associated identifying photograph erroneous.

Harmless Error

To affirm the conviction despite the error, the State bears the burden of proving that “ ‘there [wa]s no reasonable possibility that the error contributed to the conviction.’ ” Deviney v. State, 112 So.3d 57, 79 (Fla.2013) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)).

Although Deen was able to unequivocally identify Constant at trial, the State has nonetheless failed to meet this burden because the defense raised legitimate questions regarding the possibility of misidentification. In Golden v. State, 114 So.3d 404 (Fla. 4th DCA 2013), for example, we reversed a conviction of driving with a suspended license and resisting an officer without violence after the trial court allowed a police officer to testify that children in a vehicle identified the defendant as their father. At trial, the officer used this fact and a photograph from the Driver and Vehicle Information Database to identify the defendant as the driver. Id. at 405-06. The officer also noted on his police report that the defendant did not have gold teeth, when in fact he did. Id. at 406. Finally, the prosecutor compounded the error by referring to the children’s identification at least three times in closing argument. Id. Under such circumstances, we held that admission of the testimony was not harmless because the evidence suggested misidentification and the prosecutor used the inadmissible hearsay as corroboration. Id. at 407.

Here, like Golden, both Deen’s testimony and the surveillance video suggested that the man who robbed the gas station had no tattoos on his arm or hand; the record, however, reflects that Constant has multiple tattoos on his arm and hand, and that he had those tattoos on the day of the robbery. This contradiction undermines Deen’s identification of Constant as the robber, making Scott’s corroborating identification all the more crucial.

In addition to the tattoos, the evidence presented also showed that (1) Constant was not wearing the same clothes as those worn by the man in the video; (2) Constant did not possess the gun used in the robbery or the cash that was stolen; (3) at least two other people had access to the Volvo on the day of the robbery; and (4) none of the latent fingerprints lifted from the crime scene matched Constant’s fingerprints. Although detectives testified that Constant identified himself as the robber in the unrecorded portion of an interview, the issue was contested at trial. The State relied upon the error in closing argument and rebuttal by relying on Scott’s inadmissible identification to support its case. See Bartholomew, 101 So.3d at 894 (“When determining prejudice, appellate courts may look at whether the State compounded the error by relying on the evidence in final argument.”) (citing Killian v. State, 730 So.2d 360, 363 (Fla. 2d DCA 1999)).

For these reasons, we cannot say beyond a reasonable doubt that the addition of Scott’s identification did not affect the jury’s findings.

Reversed and remanded for a new trial.

MAY and LEVINE, JJ., concur.


author: LEVINE, J.

text:
    Samuel FELTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2773.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented for our review is whether the trial court erred in allowing the state to call a witness for the sole purpose of impeaching her with a prior inconsistent statement given to law enforcement. We find that the trial court erred in allowing the state to call that witness for the purpose of introducing a prior statement that she had since repudiated. Appellant also appeals the trial court’s restriction of defense counsel’s discussion during voir dire of the differing burdens of proof. We find the issue regarding the restriction on voir dire to be without merit. We, however, reverse and remand based on the trial court improperly allowing the state to call a witness solely to impeach her.

In this case, two days after being robbed, the victim identified appellant in a photo lineup as one of two people who beat him up and took forty or fifty dollars from his wallet. At appellant’s trial for robbery and battery, the state first introduced the testimony of a Palm Beach Sheriffs Office (“PBSO”) detective and PBSO deputy regarding the incident.

Appellant was a relative of the state’s next witness, Catherine Fields. Before Fields was to testify, appellant moved in limine to exclude any references to appellant being in a gang, Fields being threatened, or Fields’s tires being slashed in order to prevent her from testifying. The trial court granted this motion. Fields had been previously taken into custody after the state’s request for and the issuance of a writ of bodily attachment, due to her failure to respond to a subpoena for her testimony. As such, Fields testified via closed circuit television, and the jury was told that this was as a convenience to the court. The state suggested putting Fields on a delay so the parties could prevent “all of her comments about gang membership and being threatened.”

Before Fields testified, the parties and the trial court wanted to place on the record Fields’s reason for not wanting to testify. Fields told the trial court that she did not want to testify because she “feared for [her] life and [she did not] remember anything.” Fields then testified that she was at a cookout on the date of the robbery and appellant was at the cookout the entire time. Fields said that she did not remember a fight that evening, nor did she remember giving law enforcement a written statement. Fields told the trial court that the written statement that was faxed to her was not her statement.

The trial court granted the state’s motion to treat Fields as a hostile witness. The trial court asked the state whether it had a witness that was “prepared to put this statement in her hand” to which the state responded that the PBSO deputy would do so.

When the trial recommenced in front of the jury, Fields testified that it was not her signature on the statement and that she did not remember meeting with the deputy to give a statement. Fields stated she did not remember seeing two men beat a man or take his money. Further, Fields stated that she did not remember looking at a photo lineup containing appellant. If the deputy were to say he remembered showing Fields such a lineup, it would not refresh Fields’s recollection.

Finally, Fields stated that the signature on the photo lineup was her name, but did not look like her handwriting as it was not the way she writes. At this juncture, the state recalled the PBSO deputy. The deputy testified that he recognized Fields as being the same person he spoke to about the case, and that he recognized Fields’s written statement. He also identified his signature on the document. The state, at this point, attempted to admit the statement taken of Fields by the deputy. Based on the deputy’s testimony that Fields wrote out and signed the statement in the deputy’s presence, the trial court, over appellant’s objection, admitted into evidence the written statement. When the state sought to introduce the photo lineup, appellant stated, “I’m going to object to the witness in general as they can’t call a witness for the sole purpose of impeachment.” Further, appellant argued that the state was “impeaching” Fields “through this document.”

The trial court then stated, “I’ll find that the witness was — her testimony was a surprise; the sole purpose of putting her on the stand was not to impeach her, and so I’ll overrule that objection.”

In closing argument, the state read Fields’s statement to the jury. Appellant objected that the state was “posing the statement and photo line-up” as evidence, even though Fields never made an identification of appellant as part of the record. The trial court overruled the objection. The state also stated, “[T]he defendant’s own cousin picked him out in November of 2009, made a sworn statement to the police officer.” During rebuttal, the state stated, “I submit to you, ladies and gentlemen, that beyond any reasonable doubt the defendant’s guilty. Why? His cousin turned him in on November 7th of 2009; that’s why.”

In rebuttal closing argument the state heavily relied on what was in Fields’s statement as well as the photo lineup signed by Fields:

Where the good police work actually does come in is that the officer recalls Catherine Fields; he signed as a witness to her having made those two written documents out on November 7th, 2009 and is now able to come into court and say, “Yeah, I saw her do that; that’s what she said then,” even though today she claims she doesn’t remember anything. Ladies and gentlemen, that’s why people do documents and reports and write things down and sign their name to stuff; so that later on when they can’t remember if they did something, there it is. Beyond any reasonable doubt, Samuel Felton is guilty of robbery, Samuel Felton is guilty of battery; please go back in the jury room, mark the verdict form guilty of both of those counts. I will thank you.

Appellant was found guilty of robbery and battery, and this appeal ensues.

We review the trial court’s “eviden-tiary rulings for abuse of discretion. A judge’s discretion is limited by the rules of evidence and by the principles of stare decisis.” Gregory v. State, 118 So.3d 770 (Fla. June 27, 2013) (citation omitted).

In Ruff v. State, 31 So.3d 833 (Fla. 4th DCA 2010), this court explained:

[ 0]ur supreme court recognized that consistent with federal precedent, a risk of abuse occurs where a prosecutor calls a witness who has previously given a statement implicating the defendant but who has since repudiated that statement. In such cases, the purpose of calling the witness must be examined along with the balancing analysis under federal rule 403 to weigh the prejudice over the probative value of the evidence.

Id. at 837 (discussing Morton v. State, 689 So.2d 259 (Fla.1997), receded from on other grounds, Rodriguez v. State, 753 So.2d 29 (Fla.2000)). “Generally, however, if a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily be excluded.” Morton, 689 So.2d at 264.

Further, in determining whether a party’s “primary purpose is to introduce the prior inconsistent statements, a court may consider several factors, including: ‘(1) whether the witness’s testimony surprised the calling party, (2) whether the witness’s testimony affirmatively harmed the calling party, and (3) whether the impeachment of the witness was of de min-imis substantive value.’ ” Ruff, 31 So.3d at 837 (quoting Senterfitt v. State, 837 So.2d 599, 600 (Fla. 1st DCA 2003)).

In the case at bar, the only testimony Fields provided that was useful to the state was her prior inconsistent statement. Fields’s recanted testimony denying knowledge of the statement and photo lineup was not helpful to the state. Despite the finding of the trial court, the state clearly was not surprised by Fields’s recanting of her prior statement to the deputy. Not only was Fields taken into custody and compelled to testify by closed circuit television, Fields told the court before she even testified that she did not remember anything. Finally, one could not find that the impeachment of Fields was of “de minimis” substantive value. The fact that Fields had given a prior written statement to the deputy and initialed a photo lineup identifying appellant was the “centerpiece” of Fields’s testimony. Id. at 838. As in Ruff, “the prosecutor did not call [Fields] with any reasonable expectation that she would testify to something helpful to his case, aside from the prior inconsistent statement.” Id.; see also Bartholomew v. State, 101 So.3d 888, 893-94 (Fla. 4th DCA 2012); Hernandez v. State, 31 So.3d 873, 879-80 (Fla. 4th DCA 2010).

We cannot say that the introduction of the prior inconsistent statement was harmless error beyond a reasonable doubt. The state argued in rebuttal that the evidence against appellant was “beyond any reasonable doubt” because appellant’s own cousin, Fields, turned in appellant on the day of the incident. Several times, the state pointed to the fact that appellant’s own cousin previously gave a statement and initialed a photo lineup for the deputy as indicative of the strength of its case. See Bleich v. State, 108 So.3d 1132, 1134 (Fla. 5th DCA 2013) (error in calling witness for the sole purpose of impeaching with prior inconsistent statement was “compounded” where the state referenced “the content of the statement during closing argument as if it was substantive evidence” of defendant’s guilt).

Accordingly, we reverse appellant’s convictions and remand for a new trial.

Reversed and remanded.

WARNER and GROSS, JJ., concur.


author: LOGUE, J.

text:
    O.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-310.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 2013.
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before EMAS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   LOGUE, J.

O.S. appeals from the trial court’s denial of his motion for judgment of dismissal, and subsequent withhold of adjudication of delinquency and order of probation on the delinquent act of carrying a concealed weapon — a set of brass knuckles. The issue on appeal is whether the State established that the weapon was concealed, where the weapon was stored in the side pocket of the car door in a manner such that it was immediately recognized by the arresting officer as a weapon upon opening the car door. Because the weapon was not concealed under the factors set forth by the Florida Supreme Court in Dorelus v. State, 747 So.2d 368 (Fla.1999), we reverse.

i.

On October 5, 2012, an officer stopped a car driven by O.S. for failing to have a functioning tag light. Because the officer observed that O.S was very “fidgety,” he asked O.S to step out of the vehicle. Although no weapon was visible to the officer as he stood outside the driver’s door, the officer testified “[w]hen I opened the door I scanned the immediate opening for weapons and I could observe the brass knuckles sitting in the pocket by the driver’s door.” The officer admitted on cross-examination he “recognized right away” that the object was a set of brass knuckles. The brass knuckles were not covered in any way. When the officer asked O.S. if there was anything in the car he should know about, O.S. admitted the car contained brass knuckles.

At the close of the State’s case, the defense moved for a judgment of dismissal, asserting that the State had failed to establish the required element that the weapon was concealed. The trial court denied the motion. The defense did not present any witnesses and renewed its motion, which was, again, denied. The trial court found O.S. guilty of committing the delinquent act, reasoning the brass knuckles were “not visible to the ordinary sight of others” because they were “not visible until the car door was opened and the officer used a flashlight for a protective sweep of the vehicle.” The trial court subsequently withheld adjudication and placed O.S. on six months of probation. This appeal followed.

II.

On appeal, we review the denial of the motion for judgment of dismissal de novo. F.D. v. State, 927 So.2d 936, 937 (Fla. 3d DCA 2006). Pursuant to section 790.01(1), Florida Statutes (2012), “a person who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree.” “Concealed weapon” is defined in the statutes as “any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.” § 790.001(3)(a), Fla. Stat. (2012).

Although the Florida Supreme Court has held that “the issue of concealment is ordinarily an issue for the trier of fact,” Dorelus, 747 So.2d at 371 (emphasis in original), there are times when concealment can be determined as a matter of law. Any such determination should turn on “the manner in which the weapon is carried.” Id. Dorelus sets forth a number of “variables” to be considered in evaluating whether a weapon inside a vehicle is concealed under the statute, including: (1) “the location of the weapon within the vehicle;” (2) “whether, and to what extent, the weapon was covered by another object;” and (3) “testimony that the defendant utilized his body in such a way as to conceal a weapon.” Id. The Court also noted that “although the observations of the police officer will not necessarily be dispositive, a statement by the observing officer that he or she was able to ‘immediately recognize’ the questioned object as a weapon may conclusively demonstrate that the weapon was not concealed as a matter of law because it was not hidden from ordinary observation.” Id. at 372.

Here, none of the Dorelus factors support the trial court’s conclusion that the weapon was concealed. The weapon was located in an open side pocket within the vehicle. It was not covered with any other object, so as to obscure the officer’s view of the weapon. And O.S. made no attempt to conceal the weapon with his body in any way. In fact, he immediately admitted to possessing the weapon upon questioning by the officer.

More importantly, the officer testified that he identified the weapon “right away.” As noted in Dorelus, this alone may demonstrate as a matter of law that the weapon was not concealed. Id.; see also State v. Hardy, 610 So.2d 38, 41 (Fla. 5th DCA 1992) (holding that a knife was not concealed where officers testified that they “readily identified the object” when looking through the windshield). But, here, where the officer’s observation is coupled with the facts discussed above, we have no difficulty in holding that the weapon was not concealed as a matter of law.

Reversed and remanded, with directions to discharge O.S.


author: CASANUEVA, Judge.

text:
    Ermes A. ZAMPERLA, Appellant, v. Brenda Ann POPE, Appellee.
    No. 2D13-513.
    District Court of Appeal of Florida, Second District.
    Aug. 16, 2013.
    Jordan L. Wallach of Jordan L. Wallach, P.A., Sarasota, for Appellant.
    Michael E. Sweeting of Reid & Agee PLLC, Bradenton, for Appellee.
   CASANUEVA, Judge.

Ermes A. Zamperla, the Father, appeals a nonfinal order granting a motion for contempt and enforcement of a dependency order filed by Brenda Ann Pope, the Mother. The dependency order was entered on December 27, 2007, in the Manatee County circuit court and it found the parties’ three children dependent as to the Mother. The order placed the children in the custody of the Father, the nonoffend-ing parent, established visitation rights for the Mother, and terminated jurisdiction of the court. We conclude that the Sarasota County circuit court erred in entering an order enforcing the provisions of, and holding the Father in contempt for his alleged violation of, the order entered in Manatee County.

We note that the Mother previously filed an emergency motion for contempt and enforcement of the dependency order in the Manatee County circuit court on December 8, 2011. The circuit court denied the motion as an emergency and referred the matter to a magistrate. The magistrate recommended dismissing the Mother’s motion based on its finding that the circuit court in the family law division could not punish contempt of an order entered in a dependency case. The magistrate noted that there had been no parenting plan or time sharing schedule that had been entered in the family law division. The circuit court in Manatee County adopted the magistrate’s order and dismissed the mother’s motion on March 1, 2012. The Mother did not appeal this order.

Instead, on October 31, 2012, the Mother then filed her supplemental petition to modify time sharing and parental plan and her motion for contempt in the Sarasota County circuit court. Her petition again sought to enforce and modify the dependency order entered in Manatee County. The circuit court found that it had jurisdiction to rule on the Mother’s petition pursuant to section 39.013(4), Florida Statutes (2012), it granted the motion for contempt, and it ordered that the parties resume time sharing provided for in the dependency order. The court also ordered that the Mother was entitled to makeup time sharing that is convenient for her; she was entitled to attorney’s fees; she was entitled to all school, medical, and psychological records of the children; and she was entitled to visit the children at their schools. The circuit court also reserved jurisdiction to amend, modify, or enforce the terms of its order and enter any sanctions deemed necessary.

We agree with the Father that the circuit court did not have the authority to punish him for contempt against a dependency court order entered in another county. “ ‘[A]s a general rule, the power to punish for contempt rests with the court contemned, and one court cannot punish a contempt against another court.’ ” Guntner v. Jennings, 980 So.2d 1185, 1188 (Fla. 5th DCA 2008) (quoting Graham v. State, 144 So.2d 97, 98 (Fla. 2d DCA 1962)); see also Grotnes v. Grotnes, 338 So.2d 1122, 1125 (Fla. 4th DCA 1976) (same).

The circuit court improperly relied on section 39.013(4), in determining that it had jurisdiction. This statute provides:

Orders entered pursuant to this chapter which affect the placement of, access to, parental time with, adoption of, or parental rights and responsibilities for a minor child shall take precedence over other orders entered in civil actions or proceedings. However, if the court has terminated jurisdiction, the order may be subsequently modified by a court of competent jurisdiction in any other civil action or proceeding affecting placement of, access to, parental time with, adoption of, or parental rights and responsibilities for the same minor child.

(Emphasis added.)

Section 39.013(4) specifically permits a court in a separate civil proceeding to modify placement of or parental time with the child as established by a dependency order where the dependency court has terminated jurisdiction. However, this statute does not contemplate the enforcement of a dependency order in another court. See Mahmood v. Mahmood, 15 So.3d 1, 4 (Fla. 4th DCA 2009) (“[A] ‘court’ within the meaning of section 39.0139 is a court ‘assigned’ to hear dependency and parental termination cases, not the circuit court in general or a family division of the circuit court primarily assigned to hear Chapter 61 dissolution of marriage cases.”).

It appears that the Mother did not file a civil action pursuant to chapter 61, Florida Statutes (2012), before filing her “Supplemental Petition to Modify Time Sharing and Parental Plan.” Consequently, issues regarding paternity, child custody, and child support have not been determined by the family division in a circuit court and there was no previous determination of time sharing or a parental plan to modify.

The Mother further contends that the circuit court had the authority and the discretion pursuant to section 61.13(4)(c)(l)-(7) to impose make-up visitation and that it had the authority pursuant to section 61.13(4)(d) to punish the Father for contempt. We disagree. Subsections 61.13(4)(c) and (d) involve compliance with orders entered pursuant to chapter 61, not compliance with dependency orders.

It appears that the Father may have filed an answer and counterpetition for paternity, seeking a determination of paternity, parental responsibility and time sharing, and child support. We reverse the circuit court order finding the Father in contempt and enforcing the dependency order, and we remand this case for the circuit court to consider the Father’s coun-terpetition for paternity.

MORRIS and SLEET, JJ., Concur.


text:
    Wayne WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-102.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2013.
    Wayne A. Wright, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Alcorn v. Slate, 121 So.3d 419 (Fla.2013).

SAWAYA, ORFINGER and LAWSON, JJ., concur.