author: WOLF, J.

text:
    MEIGS PROPERTIES, LTD.; Synovus Trust Company, N.A.; James W. Grimsley, as Successor Trustee, and Nancy Meigs House Martens, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF OKALOOSA COUNTY, Florida, Appellee.
    No. 1D12-1632.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2013.

      Sharon L. Barnett, Pensacola; Michael W. Mead, Ft. Walton Beach; William V. Linne, Pensacola; and William L. Ketcher-sid, Destín, for Appellants.
    Gregory T. Stewart, Carly J. Schrader, and Harry F. Chiles of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Appellee.
   WOLF, J.

Appellants challenge a final judgment of the trial court finding appellee, the Board of County Commissioners of Okaloosa County (County), did not abandon the use of a certain piece of property as a “County Courthouse Annex facility.” Finding no abandonment of use, the court concluded that a reverter clause contained within the 1973 deed had not been triggered. We find the trial court’s determination to be supported by competent substantial evidence and affirm.

On April 25, 1973, Shalimar Village, Inc. and Barnett Bank of Pensacola, predecessors in interest to appellants, conveyed property located in southern Okaloosa County to appellee. The deed provides for reversion in the event the property is not used as a County Courthouse Annex facility. Specifically, the deed provides:

This conveyance of all of the above parcels of land by both Shalimar Village, Inc. and Barnett Bank of Pensacola is subject to and is made, executed and delivered upon the express conditions hereinbelow set forth. If these said conditions, or any one of them be violated, or if the grantee shall fail to comply with any and all of these conditions, then and in that event title to each of the parcels of real property described above shall revert to and automatically vest in the respective grantor of said parcels herein, or in its successors and assigns.... Such conditions which are expressly made a part of this conveyance are as follows:
(1) The grantee shall accept and use the property described hereinabove solely for a permanent County Courthouse Annex facility, except that the grantee may, at its discretion, lease any unneeded portion of the said property as a site for the construction of a fire station.
(2) Construction of a permanent Courthouse Annex facility upon the property described hereinabove shall commence within 36 months from the date of this deed.

(Emphasis added).

The term “permanent County Courthouse Annex facility” is not defined within the deed. Therefore, without objection, the trial court correctly considered parol evidence concerning its meaning. See Barnett v. Destiny Owners Ass’n, Inc., 856 So.2d 1090, 1092 (Fla. 1st DCA 2003).

Judge Roger Vinson, who drafted the 1973 deed on behalf of the grantors, provided the trial court, in the words of the final judgment, “the most compelling testimony” regarding the grantors’ intended meaning of the term a “permanent County Courthouse Annex facility.” The trial court summarized Judge Vinson’s testimony as follows:

In drafting the particular language of the subject deed, Judge Vinson testified that the reverter clause was included because it was felt by his client that it was critical to the future of the entire development concept that the courthouse be a permanent part of the donated land. Judge Vinson testified that he used the word annex within the term permanent county courthouse annex facility, because the Grantors intended the courthouse to serve as an annex to the courthouse in Crestview and not to replace it. Judge Vinson also testified that it was not the intention of the Grantors to limit or restrict the other type of governmental functions that could by [sic] housed within the annex. To the contrary, the Grantors intended a full service courthouse which included one or more judges and courtrooms, as well as offices of the Clerk of the Court, Tax Collector, Property Appraiser, and other county offices normally housed within a courthouse. Judge Vinson testified that it was never the intent of the Grantor to specify numbers of judges or size of courtrooms. Nor was it the intention of the Grantors to prevent the County from constructing additional courthouse annexes in the future. Judge Vinson agreed that the intention of the Grantors at the time of making the subject deed was to create a recession proof industry geared to what the Grantors characterized as the “prestigious profession of law and its accompa.nying services.”

According to the uncontested facts of the final judgment, the County built the Annex in Shalimar, Florida, which was used for over 35 years. Initially, it included offices for the Board of County Commissioners, Tax Collector, Clerk of the Court, Property Appraiser, Supervisor of Elections, Sheriff, and two small courtrooms. As the population in the county grew, the number of county and circuit judges grew requiring multiple reconfigurations and the displacement of the Board, the Tax Collector, the Property Appraiser and the Supervisor of Elections. Much of the growth came at the expense of public safety and accessibility. In order for the facility to be maintained as a judicial facility, complete renovation would be required.

The County determined a new facility would meet the court needs, and the new Courthouse Annex Extension in Fort Walton Beach was opened in October 2011. All of the judges moved their offices and chambers to the Annex Extension, as well as most of the Clerk of Court. A small courtroom with judicial offices was left behind, as well as the Clerk of Courts archive, the Sheriff, civil process, and Guardian Ad Litem offices. Any use of the small courtroom was minimal, with appellants alleging the use was mere pretense.

Also in October 2011, the County issued a Request for Qualifications (RFQ) seeking proposals for two different options to renovate the Annex, one with 15,000 square feet of judicial presence and one without. Other governmental functions would include the Tax Collector, Property Appraiser, County Administration (including the Board offices), Supervisor of Elections and the Sheriff.

Prior to the move and RFQ, the County filed its original complaint for declaratory relief in April 2010, seeking guidance as to whether moving all of its judicial functions out of the Annex would violate the reverter clause. If the Court determined that some judicial use must remain to avoid triggering the reverter, the County contemplated maintaining some court functions at the Annex. The successor grantors filed an answer and counterclaim for declaration of reversion.

After a non-jury trial, consideration of exhibits, and written closing arguments, the trial court issued its judgment. In construing the deed provision, the trial court concluded that the parties intended that a permanent courthouse, with a full-time judiciary facility, be situated on the property and that the courthouse could also include other county offices. The facility “would, on a permanent basis, conduct the business of the court to include full-time judges, full-time staff, full-time courtroom space for circuit court and county court bench and jury trials.” Any decision as to the precise size and operation of the court would be a decision of the Chief Judge in consultation with the County. The court declared that

the Annex must provide a continuum of judicial services as described above so that the initial purpose of the Grantors to use the Annex to encourage the development and continuation of commerce within the surrounding area is accomplished.

The trial court went on to conclude that, if the County followed through with the RFQ for the 15,000 square feet of court facilities and the space was utilized on a full time basis, this would “satisfy the deed requirement for a permanent county courthouse annex facility.”

Relevant to this appeal, the trial court also declared that the County had not abandoned the use of the Annex property as a “permanent County Courthouse Annex facility.” In light of the obsolescence of the Annex, the court found that constructing the Annex Extension and issuing the RFQ to remodel the Annex were not actions which constitute abandonment of the property. Any delay in renovating the property while the County awaits the results of the declaratory action was also not an act of abandonment. The trial court also declared that the County was entitled to a reasonable amount of time to renovate the Annex consistent with the final judgment.

The successor grantors appealed the denial of their counterclaim of reversion based on abandonment, arguing the trial court lacked competent substantial evidence to find that the County had not abandoned the use.

The determination of abandonment of use is a factual question that will not be set aside on review unless totally unsupported by competent substantial evidence. See Clegg v. Chipola Aviation, Inc., 458 So.2d 1186 (Fla. 1st DCA 1984). A party asserting the issue of abandonment bears the burden of proving it. Dade County v. City of North Miami Beach, 69 So.2d 780, 783 (Fla.1953). Abandonment must be established by a “ ‘clear affirmative intent.’ ” Metro. Dade County v. Potamkin Chevrolet, 832 So.2d 815, 817 (Fla. 3d DCA 2002) (quoting Leibowitz v. City of Miami Beach, 592 So.2d 1213, 1214 (Fla. 3d DCA 1992)). Nonuse by itself is not abandonment, but is only evidence that may or may not point to abandonment. Dade County, 69 So.2d at 783. Further, “equity abhors a forfeiture,” particularly “when the forfeiture is against the public.” Id. Reduction in use during renovation or delaying development for legitimate public reasons is insufficient to show abandonment of a specified use. Leslie Enters., Inc. v. Metro. Dade County, 293 So.2d 73 (Fla. 3d DCA 1974). Finally, reversion based on discontinuance of a particular use is not favored and will be strictly construed against the grantor. Fla. Power Corp. v. Lynn, 594 So.2d 789 (Fla. 2d DCA 1992). Temporary suspension of the use with plans to reactivate the use in the reasonably foreseeable future will not trigger reversion. Id.

Appellants’ arguments focus on the lack of evidence that the County has not abandoned the use. This focus is misplaced. As the parties seeking reversion, appellants bear the burden of producing evidence of the County’s “clear affirmative intent” as manifested by action wholly inconsistent with continued use of the property. There is no evidence that constructing the Annex Extension somehow precludes continued judicial use of the Annex, nor do appellants challenge the trial court’s construction of the deed as not prohibiting a second facility. Further, the RFQ contemplates renovation that does not wholly exclude the possibility that judicial functions will continue at the Annex. While the RFQ did also seek a proposal without judicial functions, the request predated the final judgment informing the County that such a choice would trigger the reverter clause. Mere consideration of possible courses of action is not an affirmative act under these facts.

Appellants argue that the moment the judiciary moved from the Annex to the Annex Extension, the County abandoned the use. This argument ignores the cited case law that reduction of use and even non-use is not itself abandonment. Appellants point to years of county commission minutes as evidence of the County’s affirmative intent to only operate one judicial annex. These minutes, however, reflect discussions, not official actions evidencing a “clear affirmative intent” to abandon the use. Potamkin Chevrolet, 832 So.2d at 817. See also Woodlawn Park Cemetery Co. v. City of Miami, 104 So.2d 851 (Fla. 3d DCA 1958) (finding abandonment of a portion of a dedicated right-of-way when city passed an ordinance limiting the width of the street).

Further, appellants’ insistence that the reversion clause was triggered at the time the judiciary was moved to the new facility ignores the fact that the RFQ was made public during the same time period that the move occurred. Also, to the extent that appellants argue the RFQ was not relevant evidence because the RFQ was issued after the alleged abandonment, appellants did not challenge its admission into evidence at the trial court level.

Finally, by granting the County a “reasonable time” to make the renovations, the trial court has opened the door for appellants to come back in the future should the County unreasonably delay renovation and reinstatement of full-time court functions.

The trial court was correct to find that appellants failed to carry their burden of proving the Annex had been abandoned as a full-time permanent courthouse facility. The judgment of the trial court is supported by competent substantial evidence and is therefore AFFIRMED.

THOMAS and MARSTILLER, JJ„ concur.


source: Caselaw Access Project

license: Public Domain

text:
    Jhon JULES, Petitioner, v. CAMPUS USA CREDIT UNION, Respondent.
    No. 1D12-2228.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2013.

      Jhon Jules, pro se, Petitioner.
    No appearance for Respondent.
   WOLF, J.

Jhon Jules, petitioner, filed a petition for writ of certiorari in this court seeking review of a circuit court order that dismissed his appeal as untimely. We treat the petition as one for writ of mandamus and grant it, for reasons discussed below.

Petitioner, a prisoner, filed a notice of appeal from a final judgment in a civil action that was rendered on January 17, 2012. The notice of appeal contained a certificate of service that stated petitioner hand-delivered the notice to prison officials to be mailed on February 8, 2012. Respondent moved to dismiss the notice as untimely, arguing it was not filed with the clerk until February 24, 2012, more than 30 days after the rendition of the final judgment. The circuit court then dismissed the appeal, finding it lacked jurisdiction because the notice of appeal was untimely filed. Petitioner filed a petition for writ of certiorari in this court seeking review of the dismissal of his appeal.

Florida Rule of Appellate Procedure 9.110(b) states an appeal is initiated “by filing án original and 1 copy of a notice ... with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.” However, Florida Rule of Appellate Procedure 9.420(a)(2) states the “mailbox rule” applies to inmate filings:

(2) Inmate Filing. A document filed by a pro se inmate confined in an institution is timely filed if the inmate places the document in the hands of an institution official for mailing on or before the last day for filing. Such a document shall be presumed to be timely filed if it contains a certificate of service certifying that the inmate placed the document in the hands of an institution official for mailing on a particular date, and if the document would have been timely filed had it been received and file-stamped by the court on that date.

(Emphasis added). In Griffin v. Sistuenck, 816 So.2d 600, 601 (Fla.2002), the supreme court found the mailbox rule applies to an inmate’s filing a notice of a appeal pursuant to rule 9.110(b) in a civil action. The court found that if the notice of appeal included the certificate of service certifying the inmate placed the document in the hands of an institutional official for mailing on a particular date, the notice was presumed timely filed, despite the fact it was received by the clerk past the filing deadline. Id. at 602.

Here, the certificate of service in petitioner’s notice of appeal stated he hand-delivered the notice to prison officials to be mailed on February 8, 2012, which was less than 30 days after the final judgment was entered on January 17, 2012. Therefore, his notice of appeal is presumed timely filed.

A petition for writ of certiorari was not the proper vehicle with which to seek review. “[A] petition for writ of mandamus is the proper vehicle to compel a ... court to reinstate an appeal dismissed for lack of jurisdiction, and a dismissal based on untimeliness is a dismissal for lack of jurisdiction.” Griffin, 816 So.2d at 601 (citation omitted). However, “no cause shall be dismissed because an improper remedy has been sought.” Art. V, § 2(a), Fla. Const. “If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought....” Fla. R.App. P. 9.040(c). Therefore, we treat the petition for writ of certiorari as a petition for writ of mandamus. We grant the petition and direct the circuit court to reinstate petitioner’s appeal.

PETITION FOR WRIT OF MANDAMUS GRANTED.

THOMAS and MARSTILLER, JJ„ concur.


author: PER CURIAM.

text:
    Ray VELAZQUEZ and Carmen VELAZQUEZ, Appellants, v. Wayne ROSEN, Appellee.
    No. 3D11-1395.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2013.

      Brian K. Goodkind, Miami, and Kenneth R. Florio, for appellants.
    Yvette J. Harrell and F. William Harvey, Sunrise, for appellee.
    Before LAGOA, SALTER, and EMAS, JJ.

       Judge Salter did not participate in oral argument.

   PER CURIAM.

Ray Velazquez appeals two non-final circuit court orders entered in 2011 in his commercial dispute with Wayne Rosen: an order denying Velazquez’s motion for partial summary judgment regarding Rosen’s alleged security interest in certain securities (and in the proceeds of those securities), and an order denying Velazquez’s motion to enjoin Rosen from claiming a portion of the proceeds as held in Velazquez’s account at Morgan Stanley.

The order denying partial summary judgment is a non-final, non-appeal-able order, and the appeal is therefore dismissed for lack of jurisdiction as to that order. Castillo v. Deutsche Bank Nat’l Trust Co., 57 So.3d 965 (Fla. 3d DCA 2011); Miami-Dade Cnty. v. Perez, 988 So.2d 40 (Fla. 3d DCA 2008). As regards the second order denying Velazquez’s motion for an injunction, later developments in the circuit court and this Court have rendered moot the issues addressed by the parties.

The issues pertinent to this appeal turned on the validity and extent of Ro-sen’s alleged security interest in over $8 million in proceeds held by Morgan Stanley in Velazquez’s account. Essentially, Velazquez sought interlocutory relief releasing a portion of the proceeds while allowing several million dollars to remain with Morgan Stanley — a remaining balance far exceeding Rosen’s maximum attainable secured claim against the funds.

After oral argument here, however, the litigation in the circuit court continued. On November 16, 2012, the circuit court entered an order limiting Rosen’s “alleged security interest to only the $521,000 Loan, plus interest and attorney’s fees, per the Loan Agreement.” Rosen appealed that order, and his notice of appeal has also provided (a) a copy of a final judgment in a separate action brought by Velazquez against Rosen and Morgan Stanley, and (b) a representation that the November 2012 order grants Velazquez the right to an immediate possession of $3,500,000 from the Morgan Stanley account. Ro-sen’s notice has also provided us with a copy of an agreed order whereby the funds in controversy were to be moved from Morgan Stanley to a different institution, and whereby some $8.7 million was agreed to be in excess of the allegedly-liened and restricted proceeds. Taking judicial notice of these developments, we conclude they render moot the issues and relief sought in this appeal. See Consortion Trading Int’l, Ltd. v. Lowrance, 682 So.2d 221, 222 (Fla. 3d DCA 1996) (recognizing that an appeal is mooted by the voluntary payment of a judgment where there is no reservation of the right to appeal); Pelle v. Glantz, 349 So.2d 732, 733 (Fla. 3d DCA 1977) (dismissing an appeal from an interlocutory order when the entry of final judgment rendered the interlocutory appeal moot); see also Milton Constr. Co. v. JMS Dev. Constr., Inc., 967 So.2d 234 (Fla. 3d DCA 2007) (dismissing an appeal where once the claim of lien had been transferred to a bond there was no further construction lien or cloud on title, making the plaintiffs complaint seeking to discharge the lien unnecessary).

We thus dismiss as moot Velazquez’s appeal from the 2011 order denying him a temporary injunction. In doing so, we express no opinion as to the merits of the remaining claims of the parties in the circuit court litigation.

Appeal dismissed.

      . Carmen Velazquez, Ray Velazquez’s wife, has also appealed this order.

      . Morgan Stanley was not a party in the circuit court action from which this appeal arose.

      . Our Case No. 3D 12-3242. This case was voluntarily dismissed on January 29, 2013.

      . Final Judgment entered December 20, 2012, in Circuit Court Case No. 11-30724-CA-15.

      . We may take judicial notice of the documents filed here by the parties in these related cases. Upper Keys Marine Constr., Inc. v. Alonzo Cothron, Inc., 507 So.2d 1135, 1135 n. 1 (Fla. 3d DCA 1987).


author: WELLS, Chief Judge.

text:
    Wallace JONES, a/k/a Wallace C. Jones, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-80.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2013.

      Wallace Jones a/k/a Wallace C. Jones, Jr., in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and CORTIÑAS and LOGUE, JJ.
   WELLS, Chief Judge.

We treat the instant appeal from the denial of a motion for rehearing as a belated appeal from denial of the underlying post-conviction motion to vacate Wallace Jones’ conviction and sentence. For the following reasons, we affirm.

On October 27, 2010, Jones filed his first motion for post-conviction relief. The trial court denied that motion on April 1, 2011; a decision that was affirmed by this court without opinion in Jones v. State, 61 So.3d 1132 (Fla. 3d DCA 2011).

Jones filed a second post-conviction motion on July 14, 2011, seeking to vacate his conviction and sentence. In that motion, Jones claimed that the mandate issued in the earlier appeal entitled him to additional relief in the court below. The trial court denied this motion in an order rendered on September 19, 2011, and Jones timely moved for rehearing from that order on September 27, 2011.

After nearly a year elapsed without any ruling on this last motion for rehearing, Jones filed a new motion on September 13, 2012, inquiring as to the status of his September 27, 2011 motion for rehearing. Mistakenly believing that Jones had moved for rehearing from the denial of his first post-conviction motion (the October 27, 2010 motion) — not, as was the case, the denial of his second post-conviction motion (the July 14, 2011 motion) — the lower court ruled that the September 27, 2011 motion for rehearing was untimely. This last order is the subject of the instant appeal.

Although the court below was incorrect in concluding that Jones’ September 27, 2011 motion for rehearing was untimely, we nonetheless affirm because the July 14, 1211 post-conviction motion to which that motion is addressed is wholly without merit. Specifically, Jones claims that the wording of the form mandate issued by this court following affirmance of the order denying his first post-conviction motion mandates further proceedings in the court below. It does not. To the contrary, the opinion attached to and incorporated into the mandate at issue does no more than affirm without opinion the order on review. It requires no further action whatsoever on the trial court’s part. As such, there was nothing further for the court below to do. The July 14, 2011 post-conviction motion to vacate Jones’ conviction and sentence and the September 27, 2011 motion for rehearing relating to it were, therefore, in all respects properly denied.

Affirmed.


author: CORTIÑAS, J.

text:
    YALE MORTGAGE CORPORATION, Appellant, v. Dieula BLOT, Appellee.
    No. 3D12-1894.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2013.

      Weitz & Schwartz and Sarah T. Weitz, Fort Lauderdale, for appellant.
    Richard J. Burton and Daniel J. Poter-ek, Aventura, for appellee.
    Before WELLS, C.J., and CORTIÑAS and LOGUE, JJ.
   CORTIÑAS, J.

Yale Mortgage Corporation (‘Tale Mortgage”) filed a mortgage foreclosure complaint against Dieula Blot on August 22, 2011. The complaint was served on August 26 and never answered. In October 2011, the trial court entered a default against Blot. The trial court entered a final judgment of foreclosure against Blot on January 12, 2012. The property was sold in May of that year. Shortly thereafter, Blot filed a motion to vacate the default and default final judgment and asked the trial court to vacate the sale. The trial court granted Blot’s motions. Yale Mortgage appeals.

We reverse the trial court’s order vacating the sale and granting Blot’s motion to vacate default and default final judgment. The trial court abused its discretion in granting Blot’s motions because she failed to show any excusable neglect for not answering the complaint. See Fla. R. Civ. P. 1.540(b) (2011); see also Lazcar Int’l, Inc. v. Caraballo, 957 So.2d 1191, 1192 (Fla. 3d DCA 2007) (noting that a movant has to show: 1) that the failure to respond was the result of excusable neglect; 2) the existence of a meritorious defense; and 3) that the movant acted with due diligence in seeking relief).

Blot hired her attorney on November 4, 2011, seventy days after Yale Mortgage served its complaint and over two weeks after the default had been entered. Blot has not provided an explanation for why she failed to respond to the complaint and default during this time period. Therefore, we reverse and order the trial court to reinstate the final judgment of foreclosure and the judicial sale.

Reversed and remanded.


text:
    Willie JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-3290.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2013.
    Willie Jones, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and CORTINAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Jones v. State, 804 So.2d 551, 553 (Fla. 3d DCA 2002) (rejecting the same claims being raised by Jones here).


text:
    Carlos MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5879.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2013.
    Carlos Moore, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as moot. See Ward v. State, 770 So.2d 206 (Fla. 1st DCA 2000) (dismissing a petition for writ of mandamus as moot where the trial court had ruled on the pleading pending below).

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    Gregory MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5449.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2013.
    Gregory Miller, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the February 29, 2012, order denying motion for postconviction relief in Gadsden County Circuit Court case number 97-768-CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    Rodger BUTLER, Appellant, v. BOARD OF NURSING, STATE of Florida, Appellee.
    No. 1D12-3497.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2013.
    Rodger Butler, pro se, Appellant.
    Therese A. Savona, Assistant General Counsel, Prosecution Services Unit, Department of Health, Tallahassee, for Ap-pellee.
   PER CURIAM.

Rodger Butler appeals the Florida Board of Nursing’s final order revoking his state nursing license, alleging he was denied due process when he was not notified of the final hearing at which his license was revoked. The Department of Health concedes that, although the failure to properly notify Butler was unintentional, it is nevertheless a material procedural error requiring reversal and remand. See § 120.68(7)(c) Fla. Stat.(2011).

Accordingly, we REVERSE the Board’s final order revoking Butler’s nursing license and REMAND for a new hearing, with instructions that Butler be provided adequate notice and an opportunity to be heard in accordance with federal and state principles of due process.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    Angela TAGLIAFERRI and Betsy Stephens, Appellant, v. CAMBRIDGE MANAGEMENT SERVICES, INC., et al., Appellee.
    No. 5D12-2416.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2013.
    Rehearing Denied Mar. 6, 2013.
    Angela Tagliaferri and Betsy Stephens, Altamonte Springs, pro se.
    Scott A. Cole and Kathryn L. Smith, of Cole, Scott & Kissane, P.A., Miami, for Appellees, Cheryl Norton and Rosalie McMasters.
    Michael H. Bowling, of Bell & Roper, P.A., Orlando, for Appellee, Winter Park Housing Authority.

      David D. Eastman and Carol S. Grond-zik, of Lutz, Bobo, Telfair, Eastman, Gabel & Lee, Tallahassee, for Appellee, Cambridge Management Services, Inc.
   PER CURIAM.

AFFIRMED. See § 760.34(4), Fla. Stat.(2011) (providing that person aggrieved by discriminatory practice may commence civil action in any appropriate court or petition for administrative determination to enforce fair housing rights).

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


text:
    Hensley S. DUNCAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3501.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2013.
    Hensley S. Duncan, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a postconviction motion claiming that counts two through four, for which he received five-year sentences, were to be concurrently imposed to each other, and consecutively imposed to count one, for which he also received a five-year sentence. He claims his total sentence is for ten years’ imprisonment. The state disagrees and argues that the appellant was sentenced to a total of 20 years’ imprisonment, with each count, for which he received five-year sentences, consecutively imposed to each other.

Because a number of essential documents are missing from the record provided to this Court, which the state concedes, we reverse and remand for the trial court to attach the plea agreement, the original judgment and sentence, the motion seeking additional jail credit, the order providing for additional jail credit, the second judgment and sentence, and the rule 3.800(b) motion filed by the state, to hold an evidentiary hearing, or to provide relief to the appellant. See Fla. R.Crim. P. 3.850(d).

REVERSED AND REMANDED with instructions.

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


text:
    Frank Joseph DeSALVO, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5612.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2013.

      Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was convicted of home invasion robbery with a firearm and sentenced to 10 years in prison. Appellate counsel filed an Anders brief and, after our independent review of the record, we find no reversible error in Appellant’s judgment or his 10-year prison sentence. We do, however, find merit in Appellant’s claim that his judgment and sentence contains several erroneously imposed costs.

Appellant preserved this claim through a motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court timely ruled on the motion and correctly found several costs to have been erroneously imposed. However, the court did not direct the clerk to strike these costs, nor does the record contain a corrected judgment and sentence without these costs. Accordingly, we reverse the imposition of these costs and remand for the trial court to enter a corrected judgment and sentence in conformance with the order on Appellant’s rule 3.800(b)(2) motion.

On remand, the trial court may reimpose the stricken fíne, surcharges, and indigent legal assistance fees after following the appropriate procedures, see Harris v. State, 100 So.3d 245, 246 (Fla. 1st DCA 2012) (indigent legal assistance fee); Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012) (discretionary fines and surcharges), but the court may not reimpose the stricken investigative costs because they were not requested by the State. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011); but see Love v. State, 992 So.2d 823 (Fla. 2d DCA 2008). If the trial court elects not to reimpose the stricken fine, surcharges, and fees, Appellant need not be present for the entry of the corrected judgment and sentence. See Kirkland v. State, 106 So.3d 4 (Fla. 1st DCA 2013).

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

ROBERTS, WETHERELL, and MARSTILLER, JJ, concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also In re Anders Briefs, 581 So.2d 149 (Fla.1991) (permitting appellate counsel to raise minor sentencing error claims in Anders briefs).

      . The order concluded that $380 in costs must be stricken: the $200 fine imposed pursuant to section 775.083, Florida Statutes (2009), and the related surcharges imposed pursuant to sections 938.04 ($10) and 938.06 ($20) because these amounts were not separately orally pronounced at the sentencing hearing; the $50 prosecution investigative costs imposed pursuant to section 938.27 because there was no evidence that the costs had been requested by the State; and the $100 indigent legal assistance fee imposed pursuant to section 938.29(1) because Appellant was not given notice of his right to challenge the amount of the fee. The order rejected Appellant's claim that the "ICDTF” (i.e., Indigent Criminal Defense Trust Fund) assessments totaling $50 must be stricken, and Appellant does not challenge that ruling on appeal.

      . We question whether it is a prudent use of judicial resources for the trial court to conduct the additional proceedings that would be necessary to reimpose $380 of stricken costs on an indigent defendant who is serving a 10-year prison sentence, but as we noted in Nix, 84 So.3d at 426 n. 2, that is a decision for the trial court to make in the first instance on remand.


author: SALTER, J.

text:
    RSG, LLC, et al., Appellants, v. David LENET, Appellee.
    No. 3D12-2652.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.

      Robert P. Frankel, Miami, and Ralph Mora, for appellants.
    Michael A. Rajtar, Hollywood, for appel-lee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   SALTER, J.

In this residential lease case, prospective tenants (RSG, LLC, and Harry Grant, collectively “RSG”) appeal an order (a) denying their emergency motion to instruct the clerk to accept a deposit of monthly rent and (b) entering a final default judgment and authorizing a writ of possession in favor of Mr. Lenet, the landlord/appellee. We reverse and remand, concluding that the trial court must first decide a threshold evidentiary matter: were the conditions precedent to the commencement of the term of the lease satisfied (or waived), such that RSG had a duty to make monthly payments of rent into the registry of the court to protect its rights under section 83.60(2), Florida Statutes (2012)?

The Lease and the Lawsuits

At the end of January 2012, Mr. Lenet as landlord and RSG as tenant entered into a seven-page, printed form of residential lease with numerous handwritten fill-ins and additions. The two-year term of the lease, and monthly rent of $4450 per month (with options for three additional one-year renewals at $4500 per month), were to commence on February 15, 2012, subject to two conditions precedent pertinent here: (1) Mr. Lenet was to replace the refrigerator in the family room with a new refrigerator, and (2) the plumbing, heating, electrical, and HVAC systems were to be in good working order. First and last month’s rent, together with a security deposit, were deposited by RSG.

In a subsequent affidavit, affirmative defenses, and complaint, RSG alleged that: there was a walk-through with the real estate broker before occupancy was to begin; during the walk-through, the tenants determined that the renovations and repairs identified as conditions precedent in the lease were not completed; and the tenants never took possession of a key or the home itself for that reason. The negotiations between Mr. Lenet and RSG failed to produce an agreement regarding the conditions precedent.

In early April 2012, Mr. Lenet filed a complaint for tenant eviction and damages in the county court. Ten days later RSG filed its own complaint against Mr. Lenet in the circuit court for breach of the lease. In a May 2012 county court order, RSG was directed to deposit $15,575 (three and one-half months of rent), the escrow agent was to deposit $13,350 (the first and last month’s rent plus a security deposit, held by the realtor) into the court registry, and RSG was to pay a further $4450 per month into the registry on the first day of each month, beginning June 1, 2012. By stipulation, the eviction case was then transferred to circuit court and the two cases were consolidated.

After making deposits of monthly rent through September 2012, RSG moved the circuit court to modify the May 2012 order to release RSG from the obligation to make further monthly payments until the court determined whether the lease term had actually commenced. On October 2, 2012, RSG’s counsel filed an emergency motion to allow a ten-day grace period (the period stipulated in the lease, but not in the county court’s May 2012 order) because the firm’s bookkeeper, a part-time employee, had failed to wire the funds required for the rental deposit due on October 1. RSG’s counsel also attempted to deposit the October rent payment (via cashier’s check) into the registry on October 2, 2012, but the clerk’s office refused to accept it. The circuit court denied RSG’s emergency motion a week later, citing Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So.3d 811 (Fla. 3d DCA 2010), and entered an immediate default in favor of Mr. Lenet in the eviction action (including a directive to the clerk to issue an immediate writ of possession). This appeal followed.

Analysis

The typical eviction case involves a tenant in possession after the commencement of a lease. In such a case, payment of the rent into the registry is the statutory requirement for continued occupancy while the eviction case is prosecuted and decided. In the present case, however, there is a horse before that cart — the issues relating to (a) the satisfaction or waiver of the express conditions precedent, and (b) the sharp factual dispute between the parties as to whether the tenant ever actually took possession of the residence.

The circuit court and the clerk’s office understandably interpreted the May 2012 county court order for the payment of rent into the registry “on the first of every month” to be an order in the typical case, such that non-performance would entitle the landlord to an immediate default judgment of eviction and a writ of possession without further notice. And in such a case, our opinion in Park Adult Residential Facility truly brooks no delays (“The trial court may not consider the reasons why the deposit was not timely made.” Id. at 812).

But again, the case at hand was not such a case. The county court did not find: that the conditions precedent were satisfied or waived; that the lease had commenced; that RSG had ever been in possession; that section 83.60(2) applied; that there was in fact any “accrued rent” payable within the meaning of that subsection; or that the consequence of a late deposit into the registry would be a default judgment of eviction and immediate possession without notice or a hearing. Instead, the accrual of rent and the applicability of section 83.60(2) turned on the preliminary determination regarding the conditions precedent.

Frey v. Livecchi, 852 So.2d 896 (Fla. 4th DCA 2003), presents a similar issue. The preliminary question before the trial court in that case was whether the defendants’ occupancy was pursuant to a contract for sale or a month-to-month tenancy. In an eviction action filed by the property owner, the court directed the Freys to pay rent into the registry. The Fourth District reversed, holding that section 83.60(2) would not apply if the Freys occupied the premises under a contract for sale. The court held:

The resolution of this factual dispute [contract for sale versus tenancy] would determine whether section 83.60 is applicable. Because such a determination would be dispositive, we hold that the trial court was required to conduct an evidentiary hearing before determining whether the Freys were required to pay money into the court registry. Because the trial court failed to conduct such a hearing, we find that the trial court erred in imposing such a requirement, erred in entering the default judgment, and reverse the entry of the final default judgment.

Id. at 898.

On remand in the present case, the circuit court is to conduct an evidentiary hearing regarding the satisfaction or waiver of the conditions precedent, and regarding Mr. Lenet’s allegation that RSG took possession of the residence. It is premature to direct the deposit of rent into the registry before those issues have been decided. That decision will control the amount of rent, if any, accrued and to be paid into the registry (or refunded to RSG from the registry), and apparently will also determine which party breached the lease.

Conclusion

In view of the preliminary factual disputes as to whether the term of the lease has actually commenced and whether the tenant has ever taken possession of the premises under the lease, those issues should be determined before an order is entered for the deposit of monthly rent into the court registry (and thus before any order for default and possession is entered under section 83.60(2)).

Reversed and remanded for further proceedings consistent with this opinion.

      . The record established that the individuals who contracted to rent the Bal Harbour residence from Mr. Lenet were Harry and Rose Grant, husband and wife. Mrs. Grant’s "RSG, LLC,” and Mr. Grant were the lease signators and prospective tenants of record, and they are the appellants.

      . Thus, by die end of June — four and one-half months into the term of the lease had it actually commenced in mid-February — funds equal to seven months of rent had been deposited by RSG.

      . This recitation omits the initial entry of default and the vacation of that default in the eviction action. Counsel for the landlord, Michael A. Rajtar, Esq., obtained a default under circumstances that, according to the record, indicate a lack of professionalism and ordinary courtesy. Fully aware that RSG had counsel (because of the presuit negotiations), Mr. Rajtar nonetheless sought and obtained the default by posting the unoccupied property and without providing a copy of the initial complaint and other pertinent papers to opposing counsel. We suggest that Mr. Rajtar consult the resources available through The Florida Bar’s Henry Latimer Center for Professionalism.


text:
      Domingo ZAPATA, Appellant, v. HOWETT HOLDINGS, INC., etc., Appellee.
    No. 3D12-2209.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.

      Louis C. Arslanian, Plantation, for appellant.
    Russell A. Cohen; Robert L. Schimmel, Miami, for appellee.
    Before WELLS, C.J., and ROTHENBERG and SALTER, JJ.
   SALTER, J.

Domingo Zapata appeals an order denying his motion to dismiss an amended complaint for lack of personal jurisdiction. We dismiss the appeal as premature. On Zapata’s own motion for reconsideration of an order initially denying his motion to dismiss for lack of jurisdiction, the trial court ruled that the motion warranted an eviden-tiary hearing. Apparently concerned, however, that the time to appeal the initial order denying the motion to dismiss might expire, Zapata filed a notice of appeal the same day the trial court agreed to reconsider the issue. We conclude that this appeal is premature and should come to us, if it does, on a more complete record.

Facts and Procedural History

The sworn allegations of the amended complaint filed by the appellee, Howett Holdings, could be summarized as a “bounced check for chartered jet” case, with Zapata outside Florida for the flight itinerary and other incidents of the charter contract. But Zapata has conceded more ties to Florida than mere social visits.

Howett does business as Unity Jets in Miami. On the basis of one-page “Aircraft Charter Service Agreements,” Howett provided a Citation X jet aircraft to transport Zapata from a New York-area airport to a Los Angeles-area airport in February 2012, and a Lear 31 jet to transport him on a return flight two weeks later. Howett alleges that Zapata’s personal cheek for $45,900 for these services (delivered to the Howett’s air crew in California) was returned for insufficient funds, resulting in separate claims for services on open account, goods and services sold and delivered, breach of contract, quantum meruit, unjust enrichment, and statutory (treble) bad check damages. The charter agreements provided that “any claim shall be adjudicated in and governed by the laws of the State of Florida.” The amended complaint alleged long-arm jurisdiction under section 48.193(l)(a) and (b), Florida Statutes (2012), although certain allegations also claim that Zapata engaged in substantial activities in Florida by presenting art works at the Art Basel art show in Miami as part of recurring sales transactions involving Florida residents.

Zapata’s affidavit declared that he is a citizen of Spain in the United States on a travel visa, with temporary residences in New York City and Los Angeles. His affidavit admitted that he is an artist and in the entertainment field, and that he travelled to meet a celebrity in Los Ange-les who ordered four pieces of art for delivery to the celebrity’s home in Miami. He asserted in his affidavit that he only visits Florida “to see friends for social occasions.” Regarding the charter flights, Zapata alleged that he signed faxed copies of them in New York.

Initially, the trial court denied Zapata’s motion to dismiss and motion to quash. Zapata moved for reconsideration of that ruling, alleging that the court had overlooked or misapprehended various matters. Zapata’s motion argued that “there is no relation between a round-trip flight from New Jersey to California and [Zapata’s] alleged presentation of artwork in Miami,” but Zapata himself provided no affidavit to that effect.

The trial court considered and ruled on the motion for reconsideration on August 16, 2012, deferring ruling pending an evi-dentiary hearing. Notwithstanding that ruling, Zapata filed a notice of appeal the same day.

Analysis

The trial court did not abuse its discretion by granting Zapata’s motion for reconsideration in part, determining that the parties’ conflicting sworn allegations warranted an evidentiary hearing. Tobacco Merchants Ass’n of the U.S. v. Broin, 657 So.2d 939, 941 (Fla. 3d DCA 1995) (“If the plaintiff files a counter-affidavit raising conflicting facts, the trial court should then hold a limited evidentiary hearing to resolve any disputed facts relating to jurisdiction.”). Jurisdictional discovery and a limited evidentiary hearing confined to the jurisdictional issues are the appropriate procedural remedies for resolving this threshold matter. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla.1989); Sutton v. Smith, 603 So.2d 693, 698 (Fla. 1st DCA 1992).

Having obtained partial relief on his own motion (with a deferral of a final ruling pending an evidentiary hearing), Zapata appealed before the hearing could be conducted. Concluding that Zapata’s appeal is thus premature, we dismiss the appeal without prejudice to either party’s right to appeal following a final ruling on personal jurisdiction. See Stern v. Cox, 651 So.2d 757 (Fla. 1st DCA 1995).

Appeal dismissed.

      .(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
      (a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
      (b) Committing a tortious act in this state.

      . The sufficiency of service is not an issue here.

      . As noted, Howett’s allegations appear to invoke substantial, not isolated, business activities by Zapata in Miami, although How-ett's amended complaint does not specifically refer to section 48.193(2), Florida Statutes (2012). The pleadings and further proceedings should clarify this ambiguity.


text:
    MARCUM LLP, etc., Appellant, v. Alan POTAMKIN, Appellee.
    No. 3D12-1867.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Shendell & Pollock, and Scott M. Welli-koff, for appellant.
    Pathman Lewis, and David Jove and John A. Moore, for appellee.

      Before SUAREZ, LAGOA, and SALTER, JJ.
   SALTER, J.

Marcum LLP, an accounting firm, appeals an order denying its request for a declaratory determination that the former spouse of the appellee could not assign her claims against the firm to the appel-lee. We affirm the circuit court’s order, finding that (a) the disputes between Mrs. Potamkin and Marcum were subject in all respects to a written engagement letter requiring the resolution of disputes by arbitration, (b) the agreement itself does not expressly preclude assignment, and (c) Mr. Potamkin has commenced arbitration by filing a demand with the American Arbitration Association (AAA) based on the assignment and' certain alleged acts and omissions relating to the engagement letter. In affirming the order below prior to any award (or order of dismissal) in the arbitration proceeding, we defer to the AAA arbitrator for any determinations regarding the alleged assignability, breach, and damages to be determined pursuant to the demand. We express no opinion at this point regarding the merits of any of those issues.

The rights and obligations under the engagement letter between Mrs. Po-tamkin and Marcum are part of “a valid written agreement to arbitrate,” and the claim against Marcum, if asserted by Mrs. Potamkin, is “an arbitrable issue.” See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (recognizing that there are three elements for courts to consider when ruling on a motion to compel arbitration: 1) whether a valid written agreement to arbitrate exists; 2) whether an arbitrable issue exists; and 3) whether the right to arbitration has been waived). The third element of Seifert is also satisfied; neither Mrs. Potamkin nor Mr. Potamkin has waived the right to arbitrate.

With Mrs. Potamkin’s right to arbitrate her claims established, the next issue is whether her attempted assignment of the claims in arbitration to Mr. Potam-kin is prohibited as a matter of law and without regard to the underlying allegations, the applicability of a privilege, or some other set of circumstances that may be developed at a later point in the arbitration. Under Florida law, contract rights, including causes of action for breach, are freely assignable unless the contract prohibits assignment, the contract involves obligations of a personal nature, or public policy precludes assignment. L.V. McClendon Kennels, Inc. v. Inv. Corp. of S. Fla., 490 So.2d 1374, 1375 (Fla. 3d DCA 1986). In the present case, Mar-cum argues that the second exception is applicable.

We disagree. Assignability and the characterization of the contract as involving “personal services” or a “confidential relationship” are matters for the arbitrators to decide on the record before them if the issues are presented to them. The engagement letter under which arbitration is sought concededly specifies that “fee disputes” as well as “malpractice claims” are to be arbitrated. Having failed to include a contractual provision prohibiting assignment by Mrs. Potamkin, or a provision specifying that an assignee could not assert a claim in arbitration, Marcum must submit any arguments on non-assignability in the specified forum, the AAA. “Gatekeeper” decisions on matters relating to a party’s standing to invoke arbitration are ordinarily within the jurisdiction of the arbitrators, not a court. See, e.g., Chi. Typographical Union No. 16 v. Chi Sun-Times, Inc., 860 F.2d 1420, 1424 (7th Cir.1988) (recognizing that the issue of standing is one for the arbitrator).

Nor do we agree with Marcum’s assertion that the trial court should have considered whether Mr. and Mrs. Potamkin’s attempt to preserve any applicable accountant-client privilege precludes the assignment, or that the “sword and shield” rule may require dismissal of the claim. These are matters that the trial court did not decide, and that we have not decided, because Marcum agreed to arbitration in connection with claims relating to the engagement letter.

Finally, Marcum asks us to construe section 682.08(4), Florida Statutes (2010), so as to interpret the term “party” to exclude a contracting party’s assignee. Marcum argues that the engagement letter was not between itself and Mr. Potam-kin, “the party causing the arbitration to be had.” Such a narrow reading would mean that assignees and their counter-parties under assigned contracts containing agreements to arbitrate disputes would lose their respective rights to compel arbitration, merely by virtue of the assignment. We discern no such intention in section 682.03(4) or any other provision of the Florida Arbitration Code.

Affirmed.

      . The circuit court granted the appellee’s motion for judgment on the pleadings.

      . To the extent that Mr. Potamkin’s claims in arbitration include tort claims, there are similar exceptions for "purely personal” injury claims and certain professional malpractice claims. Kozich v. Shahady, 702 So.2d 1289, 1290 (Fla. 4th DCA 1997); Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 496 (Fla. 3d DCA 1994).

      . Because the Federal Arbitration Act (FAA) is applicable nationally, it has produced more reported cases than the Florida cases applying the Florida Arbitration Code, Chapter 682, Florida Statutes. The federal cases are considered "highly persuasive” because the Code is modeled after the FAA. RDC Golf of Fla. I, Inc. v. Apostolicas, 925 So.2d 1082, 1091 (Fla. 5th DCA 2006).

      . § 90.5055, Fla. Stat. (2010).

      . § 90.510, Fla. Stat. (2010).

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


text:
    Antwann ROGERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-159.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Antwann Rogers, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, SALTER, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See, e.g., O’Neill v. State, 6 So.3d 680 (Fla. 2d DCA 2009); Joseph v. State, 835 So.2d 1221, 1222 n. 3 (Fla. 5th DCA 2003) (“The two-year limitation [in Florida Rule of Criminal Procedure 3.850(b)] is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered.”).


text:
    Mario D’AMICO, et al., Appellants, v. Elvira FERRARA, et al., Appellees.
    No. 3D12-2508.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Cunningham Miller, P.A., Robert K. Miller, Marathon, for appellants. ■
    Adrian Philip Thomas, Fort Lauderdale, for appellees.
    Before SALTER and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed on the authority of Florida Rule of Appellate Procedure 9.315(a). Fla. R.App. P. 9.315(a) (“After service of the initial brief ... the court may summarily affirm the order to be reviewed if the court finds that no preliminary basis for reversal has been demonstrated.”).


author: THOMAS, J.

text:
    J.B., Father of: V.B., a minor child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. N.B., Mother of: V.B., Minor Child, Appellant, v. Department of Children and Families, Appellee.
    Nos. 1D12-3881, 1D12-4261.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2013.

      Doris Rompf, Jacksonville; Crystal McBee Frusciante, Office of Criminal Conflict and Civil Regional Counsel, Region One, Jupiter; Susan Barber, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Ward L. Metzger, Department of Children and Families, Jacksonville, for Appel-lee.
    Kelley Schaeffer, Guardian ad Litem Program, Tavares, for the Guardian ad Litem Program.
   THOMAS, J.

In this consolidated appeal, the parents (Appellants) challenge the trial court’s order terminating their parental rights. Appellants’ parental rights were previously terminated for six other children between 2005 and 2009. When V.B., the child in question, was born, the Department of Children and Families (the Department) immediately removed him from Appellants. Appellants argue that the trial court erred in terminating their parental rights without competent, substantial evidence to constitute clear and convincing evidence that they pose a substantial risk of harm to V.B. Appellants argue further that termination of parental rights is not the least restrictive means of protecting V.B. from harm. For the reasons discussed below, we reverse and remand for further proceedings.

Facts and Procedural Background

In March 2012, the Department filed a shelter petition regarding V.B., Appellants’ three-day-old child. The child was sheltered from the hospital based upon the termination of Appellants’ parental rights of five children on December 5, 2008, and a sixth child on June 12, 2009. The termination of five of their children in 2008 was based on neglect, including medical neglect. The termination of their sixth child in June 2009 was an expedited termination, immediately from the hospital, based upon the prior neglect. Appellants had been involved with the Department from 2005 to 2009 in relation to the prior terminations.

The petition alleged there was probable cause of substantial risk of immediate harm to V.B. based upon Appellants’ history with the Department and the circumstances surrounding the prior terminations of their six other children. The Department did not offer Appellants a reunification case plan, but sought adoption of V.B. with the same parents who adopted Appellants’ six other children.

At the hearing on the termination of parental rights for V.B., the Department submitted evidence of the termination of parental rights in Appellants’ two prior cases for their previous six children, including the hearing transcripts. The Department sought termination based upon three grounds: First, pursuant to section 39.806(l)(i), Florida Statutes, addressing termination based upon prior involuntary termination of parental rights of other children; second, pursuant to section 39.806(l)(c), addressing termination based upon a continuing course of conduct; third, pursuant to section 39.806(1)(Z), addressing termination when there are at least three prior removals of a child when the removals were because of the acts of the parents.

A witness who served as Appellants’ “lead family care counselor” testified she met with Appellants about V.B. She was aware of the prior removal of Appellants’ children, as she worked for the Department when those terminations occurred. She had inquired into what had changed in Appellants’ lives from 2008 and 2009. The Father told her he was willing to be more cooperative, and the Mother said she would quit being stubborn.

The lead family counselor testified that Appellants visited with V.B. once a week and the visits went well, but Appellants did not call her between visits to check on V.B. Appellants did not ask for assistance with any type of services, and they were not offered services because they did not have a case plan. She saw nothing showing that Appellants were committed to making any changes, and in her view, Appellants did not have the ability to care for their child. The witness asserted that Appellants had previously been given three case plans, none of which were completed. She visited Appellants’ home twice; it was clean, a room was prepared for the baby, and it was adequate and appropriate. Appellants’ home included a computer, a TV, and furnishings. There were no indications that they did not have food. They had a home phone and Mother said she was attempting to find work from home doing telemarketing. Notably, the witness acknowledged that the Department was not going to give Appellants the opportunity to care for the child, even if Mother followed through on counseling, as the Department’s goal had always been the adoption of V.B.

The lead family counselor admitted that the Department had no contact with Appellants from 2009 until V.B.’s birth in 2012, and she had no idea what Appellants learned about parenting during that time. She believed Appellants’ prior parenting record was the problem that would prevent them caring for the child. She reiterated that V.B. was removed based upon Appellants’ past history. She testified that Appellants provided nothing to show that they had changed.

V.B.’s caregiver testified that she and her husband adopted VB.’s six other siblings and, at the time of the hearing, V.B. was in their custody. She testified that when the other six children came into their care, one child, J.B., was believed to have behavioral problems because he would not listen, but they discovered that he was 95% deaf in his right ear because tubes placed in his ears had been neglected. Subsequently, J.B. had another surgery and began receiving speech therapy. The caregiver acknowledged that she and her husband want to adopt V.B.

The Father testified that he had held the same job for more than two years and lived in an appropriate setting. He acknowledged that he had to ride a bicycle to work and had previously fallen behind in making rent payments. He earned approximately $1,200 per month as a cook, working just under 40 hours a week. He testified that Appellants tried to visit V.B., but missed some visits due to transportation problems. He acknowledged his prior failings as a parent to his other six children, and that he and the Mother had failed in their ease plans. He further testified that they had lost a child due to Sudden Infant Death Syndrome, which had caused him to suffer from depression. The medical examiner did not find Appellants responsible for the death of their child. The Father stated that the Department removed their last child, D.B., in 2009, and no services were offered at that time or in the present case. The Father further acknowledged that he and the Mother had moved far too often and that stable housing was necessary to help properly raise a child, but believed they had found a home within their budget. He also testified that he was determined to overcome his prior mistakes, he had stable employment, and he had learned from his mistakes.

The Mother testified that since her last child was removed in 2009, she had learned what is considered to be neglect. She testified that she was attempting to get employment with a telemarketing company doing customer service. While not working, she spent her time cleaning their home, looking for online jobs, and looking at obtaining her GED from home. She knew when she got pregnant with D.B. in 2009 that not enough time had passed from the terminations of their other five children in 2008 for them to actually learn and understand the mistakes they made with the other children.

The Guardian Ad Litem testified that she was concerned that Appellants were overextended on their rent and other items, but she described their current home as appropriate.

The trial court granted the expedited petition for involuntary termination of parental rights. The court determined that the Department established by clear and convincing evidence that termination of Appellants’ parental rights was appropriate pursuant to sections 39.806(l)(i) and 39.806(l)(c), Florida Statutes. Regarding section 39.806(l)(i), the court found that “[t]he underlying cause of the prior terminations of these parents’ right to their other children can be concisely described as a fundamental lack of capacity to parent.” With respect to Appellants’ current situation, the court also found that, even after the removal of the six prior children, Appellants had been unable “to achieve even a modicum of residential stability and continue to manifest a basic lack of capacity to do so.” As a result, the court determined that any child in their care would be at great risk of significant harm.

Concerning section 39.806(l)(c), the court determined, relying almost exclusively on the evidence from the past terminations, that Appellants posed a risk to V.B. irrespective of the provision of services. Regarding Appellants’ current situation, the court again focused on Appellants’ housing instability, noting that it was a prominent feature in their past terminations. The court concluded that it was inconceivable that Appellants could handle the added responsibilities of raising a child when they were unable to maintain stable housing when it was just the two of them.

Standard of Review

We acknowledge our standard of review here is whether there is “competent, substantial evidence which could reasonably be found to be clear and convincing....” A.H. v. Fla. Dep’t of Children and Family Services, 85 So.3d 1213, 1215 (Fla. 1st DCA 2012); see also N.L. v. Dep’t of Children and Family Services, 843 So.2d 996 (Fla. 1st DCA 2003) (“Our standard of review is highly deferential. A finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in eviden-tiary support.).

Section B9.806(l)(i), Florida Statutes

Section 39.806(l)(i) authorizes termination of parental rights when parental rights to the child’s sibling have been terminated involuntarily. When termination of parental rights is sought because of a prior involuntary termination of rights to a sibling, the Department must prove by clear and convincing evidence that there is substantial risk of significant harm to the current child, and that termination of parental rights is the least restrictive means of protecting the child from harm. Fla. Dep’t of Children and Families v. F.L., 880 So.2d 602 (Fla.2004).

In this case, it is undisputed that Appellants’ parental rights to V.B.’s six siblings have been involuntarily terminated. The prior terminations were based upon neglect, including medical neglect. Appellants, however, argue that the Department failed to establish by clear and convincing evidence that they pose a substantial risk of significant harm to V.B. and that termination is the least restrictive means of protecting V.B. from harm. We agree.

In F.L., the Florida Supreme Court discussed evidence that the trial court could consider when looking at the totality of the circumstances to determine that a current child is at substantial risk of significant harm and termination is the least restrictive means of protecting the child. 880 So.2d at 610. In particular, the court made clear that the circumstances leading to the prior termination were highly relevant, especially “if the parent’s conduct that led to the involuntary termination involved egregious abuse or neglect of another child, this will tend to indicate a greater risk of harm to the current child.” Id. The court, however, noted that the amount of time that had passed since the prior involuntary termination was also relevant. Id. Finally, the court explained that a trial court could consider changes in circumstances since the prior involuntary termination, as a positive life change could overcome a negative history even if past conduct had some predictive value on future conduct. Id. The court, however, explicitly stated that “a parent is not required to show evidence of changed circumstances to avoid a termination of rights under section 39.806(l)(i).” Id.

As noted above, Appellants’ parental rights were terminated for their previous child, D.B., on June 12, 2009. Almost three years later, on March 31, 2012, V.B. was removed from Appellants’ custody. This time frame is relevant under the holding of F.L. We find that, as a matter of law, such a time frame contains very little probative value as to whether the prior termination indicates a risk of neglect. In other words, the prior termination was not so close in time to this proceeding as to provide competent, substantial evidence that Appellants pose a risk of significant harm to V.B. The trial court’s order essentially revisits the findings of the prior terminations and finds that Appellants have not demonstrated a capacity to appropriately care for V.B. But again, under F.L., it is not the parents’ burden to show they are capable of such care; it is the Department’s burden to show by clear and convincing evidence that Appellants cannot care for V.B. F.L., 880 So.2d at 610.

The evidence at trial reflects that the Department had no real contact or interaction with Appellants to determine what changes Appellants had made in their lives after the prior termination of parental rights. There was evidence that Appellants’ living situation had changed a number of times after the prior termination, but there was no testimony that any of Appellants’ residences were unclean, unsafe, or unsuitable. There was also no evidence that Appellants engaged in substance abuse, or any other conduct that would indicate a likelihood of presenting a “substantial risk” that they will cause “significant harm” to V.B.

Additionally, the Department did not offer a reunification case plan, pointing to Appellants’ failure to complete three different case plans in the prior terminations. The Department argues that the prior terminations were pursuant to section 39.806(l)(i), and that section 39.806(2) does not require reasonable efforts be taken to preserve and reunify families, and section 39.806(3) does not require a case plan with the goal of reunification. Although the Department is correct that section 39.806(3) does not require the Department to formulate a case plan with the goal of reunification and it can proceed with a case plan having a goal of termination of parental rights, it also makes clear that this procedure may continue “until further orders of the court are issued.” So while the Department is not obligated to provide a case plan under the statute when there has been a prior involuntary termination, and the Department has chosen to proceed with termination, this does not eliminate its burden to prove that termination is the least restrictive means, as this test is based upon fundamental parental rights. As such, where the Department fails to prove that there is significant risk of harm to the current child, or that there are no measures short of termination that could be used to protect the child from harm, then termination will not pass constitutional muster. See F.L., 880 So.2d at 608.

We acknowledge that the trial court properly considered the prior terminations as relevant evidence as to whether Appellants posed a risk of harm to V.B., but that evidence was not sufficient to demonstrate a likelihood of prospective neglect. Under the facts of this case, we find that the Department failed to sufficiently connect Appellants’ past with their present situation to show that V.B. was at significant risk. Although we appreciate the trial court’s dilemma where Appellants’ six children were previously removed from their custody, obviously satisfying the statutory criteria of section 39.806(1)®, Florida Statutes, nevertheless, the Department did not meet its burden here to demonstrate that termination was the least restrictive means of protecting the child.

Section 39.806(l)(c), Florida Statutes

The Department and the trial court also relied on section 39.806(l)(c), Florida Statutes, to terminate Appellants’ parental rights. Section 39.806(l)(c), authorizes termination of parental rights when the parents have engaged in conduct toward the child or other children that demonstrates that their continued parental involvement with the child would threaten the “life, safety, well-being or physical, mental or emotional health of the child irrespective of the provision of services.” To establish termination under this ground requires proof that: 1) the child’s life, safety, or health would be threatened by continued interaction with the parents regardless of the provision of services, 2) there is no reasonable basis to believe the parents will improve; and 3) termination is the least restrictive means of protecting the child from harm. See L.J. v. Fla. Dep’t of Children & Families, 33 So.3d 99, 101 (Fla. 1st DCA 2010); M.H. v. Dep’t of Children & Families, 866 So.2d 220, 222-23 (Fla. 1st DCA 2004).

The Department sought termination of Appellants’ rights under this section based on conduct toward “other children,” as V.B. was immediately removed from the hospital. Although there was evidence that Appellants’ past conduct toward their other six children was clearly detrimental to those children, the passage of almost three years since the prior terminations, coupled with the undisputed evidence that Appellants had an appropriate and safe home, was insufficient to sustain the termination, as the Department failed to present any evidence that the current child would be harmed by interaction with Appellants.

Regarding prospective neglect or abuse cases, this court has held that the issue is

whether future behavior, which will adversely affect the child, can be clearly and certainly predicted. Palmer v. Dep’t of Health & Rehabilitative Servs., 547 So.2d 981, 984 (Fla. 5th DCA 1989). If the parent is so afflicted that no reasonable basis exists for improvement, then the court may find prospective neglect or abuse.

L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002). There, this court concluded that termination pursuant to section 39.806(l)(c) was improper because, while Mother suffered from depression and anger management issues, her therapist did not testify that no reasonable basis existed for improvement. Id.

Here, the trial court focused on Appellants’ involvement with the Department from 2004 to 2009, including their failure to complete three different case plans, even though Appellants were offered numerous services, including parenting classes, housing assistance, and counseling. The court concluded that despite the numerous services and assistance provided to Appellants, V.B.’s siblings suffered from neglect, including injury due to failure to supervise, severe diaper rashes, uncleanliness to the point of noxious body order, dental issues, developmental delay, hearing deficits due to failure to properly treat ears after placement of tubes, and chronic missed medical appointments. The court noted that throughout this same time period, another prominent feature of Appellants’ lives was their inability to maintain stable housing. The court found it inconceivable that Appellants could maintain stable housing with the addition of a child when they could not maintain stable housing for just themselves.

We find, however, that the combination of the circumstances surrounding the past terminations, and the only focus on Appellants’ current situation being inst-able housing, is insufficient as a matter of law to show a likelihood of future risk of harm to V.B.

Other than Appellants’ poor economic status and past difficulties in maintaining stable housing, there is insufficient evidence to show termination is necessary and the only remedy to protect the child. M.S. v. Dep’t of Children and Families, 920 So.2d 847 (Fla. 4th DCA 2006). In fact, the evidence demonstrated that Appellants did have a safe and appropriate home,, suitable for raising a child. While it was shown that Appellants had resided in the home for only four months, the evidence demonstrated that the landlord was committed to working with Appellants if rent payments were potentially delayed. Both Father and Mother have also acknowledged their prior neglect and omissions. Appellants have visited V.B., they have acted appropriately with him, and they have demonstrated their desire to raise their child.

Furthermore, case law makes clear that “parental rights cannot be terminated simply because the parent is poor, uneducated, and without sufficient financial resources to care for her children in the manner the Department deems advisable-” T.C.B. v. Dep’t of Children & Families, 816 So.2d 194, 197-98 (Fla. 1st DCA 2002).

Best Interests of the Child

Finally, we acknowledge that we have not addressed whether termination is in the best interest of the child, and we de-dine to do so. We find that where the Department has not provided competent, substantial evidence to prove that Appellants pose a substantial risk of significant harm to V.B., and thus failed to show that termination is the least restrictive means of protection, we need not decide whether termination would be in the child’s best interests. See J.J. v. Dep’t of Children & Families, 994 So.2d 496, 503 (Fla. 4th DCA 2008) (holding that it need not discuss the trial court’s findings concerning the manifest best interests of the children because it was reversing termination due to the Department’s failure to prove that the mother posed a substantial risk of significant harm and that termination was the least restrictive means).

Thus, we REVERSE and REMAND for further proceedings consistent with this opinion, as authorized pursuant to section 39.811(1), Florida Statutes (2012).

DAVIS and PADOVANO, JJ., Concur.

      . The trial court’s order reflects that the Department withdrew the ground pled in the petition under section 39.806(1)(Z).


text:
    Leon Jeffrey NICELY, Jr., Petitioner, v. Harry L. SHORSTEIN, as State Attorney; John Palmer, as Warden, Respondents.
    No. 1D13-0505.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2013.
    Leon Jeffrey Nicely, Jr., pro se, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Latonya Denise MIDDLETON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1935.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2013.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

LEWIS, CLARK, and RAY, JJ„ concur.


author: GRIFFIN, J.

text:
    STATE of Florida, Appellant, v. Julio BAEZ-DELAROSA, Appellee.
    No. 5D12-925.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    Gabriel E. Adam, of The Adam Law Firm, P.A., Orlando, for Appellee.
   GRIFFIN, J.

The State appeals an order granting defendant, Julio Baez-DeLaRosa’s [“Defendant”], motion to suppress statements that he made to law enforcement. The State urges that the trial court erred by granting the motion to suppress because Defendant was not in custody at the time that he made the statements and, thus, law enforcement was not required to give Defendant Miranda warnings. For the reasons that follow, we affirm.

On June 17, 2011, the State charged Defendant through information with one count of sexual activity with a child, while in a position of familial or custodial authority to the child, in violation of section 794.011(8)(b), Florida Statutes; one count of tampering with a witness in violation of sections 914.22(1) and (2)(d), Florida Statutes; one count of lewd or lascivious molestation of a child in violation of section 800.04(5)(c)(2)., Florida Statutes; and one count of child abuse in violation of section 827.03(1), Florida Statutes. These charges arose out of a report by Defendant’s teenaged daughter that, on multiple occasions in the preceding two to three years, her father would force her to allow him to digitally penetrate her vagina, ostensibly to see if she was still a virgin. Upon receipt of this report, the police interviewed Defendant twice. In the first interview, Defendant denied the allegations and claimed his daughter was lying. On May 16, 2011, he returned to the police department and gave another interview, admitting that, on five or six occasions, he had physically touched his daughter’s vagina to see if she was “wet.”

On December 8, 2011, Defendant filed a motion to suppress statements that he made “during a custodial interrogation conducted by the Apopka Police Department on May 16, 2011.” He asserted:

1. On May 11, 2011, the Defendant, JULIO BAEZ-DE LA ROSA, reported to the City of Apopka Police Department (hereinafter “APD”) in reference to allegations made against him.
2. Before the interview began, Officer Diaz (APD), who served as a Spanish interpreter, read the Defendant Miranda warnings in Spanish from a pre-printed card.
3. The Defendant agreed to speak to the investigating Detective, Andre Parkinson, and denied all of the allegations which were presented to him.
4. On May 16, 2011, the Defendant received a phone call from an unknown caller from an APD phone number.
5. According to the Defendant, the unknown caller indicated that his presence was required at the APD for further questioning.
6. The Defendant appeared at the APD and was further questioned regarding the previously made allegations.
7. Detective Andre Parkinson was present with a Spanish-speaking officer who served as a Spanish interpreter during the questioning and confirmed that the number from which the Defendant received the earlier phone call was in fact an APD phone number.
8. The Defendant made incriminating statements during this interrogation without the benefit of being informed of his constitutional rights.
9. At the end of the interrogation the Defendant was arrested and taken into the custody of the Orange County Jail.
10. There are audio and video recordings for both custodial interrogations.
Argument:
11. The interrogation of the Defendant that took place on May 16, 2011, was a custodial interrogation that required the benefit of Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
12. During the interrogation that took place on May 16, 2011, the Defendant was not advised of his rights a [sic] required by Miranda.
13. The statements made by the Defendant should be suppressed because they were obtained illegally without the knowing, intelligent, and voluntary waiver of the rights enunciated in Miranda. Traylor v. State, 596 So.2d 957 (Fla.1992).
14. This interrogation was conducted in violation of the Fifth and Fourteenth Amendments to the United States Constitution.
15. This interrogation was conducted in violation of Article 1, Section 9 of the Constitution of the State of Florida.

The State filed a response in opposition to Defendant’s motion to suppress on January 20, 2012:

On May 16, 2011 Defendant went to the police station without police presence, and without being ordered to do so. Defendant voluntarily went into the police station and gave a video and audio recorded confession. Detective Parkinson did not re-issue Miranda warnings. Prior to the May 16th confession at Apopka Police Department, Defendant was never handcuffed, told he was under arrest, or otherwise restrained in his ability to leave.
In this case, Defendant was not in custody. He went on his own volition to the Apopka Police Station. It was by coincidence that Detective Parkinson was at the station. Defendant was not transported by law enforcement, and appeared to want to reinitiate contact with Detective Parkinson. The only reason the conversation happened inside the station was so it could be recorded. Defendant was never handcuffed, never told he had to do anything, and there was no show of authority whatsoever toward the Defendant. He was not presented with evidence of his guilt. In fact, the only questions Detective Parkinson asked of him were to the effect of what other information do you have for me, and I heard you were going to confess .... Defendant Baez-de la Rosa came by himself to Apopka Police Department, coincidently met Detective Parkinson in the parking lot, and went inside on his own volition. He was never searched, handcuffed, and therefore his freedom of movement was not curtailed to the degree associated with a formal arrest. He simply went to the police station voluntarily, which both the United States and Florida Supreme Court’s have routinely recognized as not custodial.
Even if this Court finds Defendant was in custody on May 16th suppression of the Defendant’s confession is not appropriate because he had already been issued Miranda warnings and waived them. The Florida Supreme court has held “[t]here is no requirement that an accused be continually reminded of his rights once he has intelligently waived them.” Bush v. State, 461 So.2d 936, 939 (Fla.1984) citing Biddy v. Diamond, 516 F.2d 118, 122 (5th Cir.1975) (lapse of 14 days did not require full recitation of Miranda warnings).

The trial court conducted a three-day hearing on Defendant’s motion to suppress. Jose Diaz, a police officer with the Apopka Police Department [“Officer Diaz”], testified that he was fluent in Spanish, and that his role on May 11, 2011 was “[t]o read [Defendant] the Miranda rights from a prepared card.” He confirmed that after reading “the Miranda warnings,” Defendant agreed to speak with Detective Parkinson.

On cross-examination, Officer Diaz stated that he had a preprinted Miranda rights card that was in Spanish, but that he “didn’t use it” and instead read the rights from a preprinted Miranda rights card that was in English. He confirmed that he had to “interpret the English words into Spanish.”

Andrew Parkinson, a detective [“Detective Parkinson”], testified that on May 11, 2011, he was investigating a case involving Defendant’s alleged sexual activity with his daughter. Detective Parkinson explained that after Defendant was issued Miranda warnings and had agreed to speak with him, he questioned Defendant, detailing the daughter’s allegations; that Defendant denied any sexual wrongdoing with his daughter; and that he let Defendant “return home the same way he came”. He had no contact with Defendant between May 11th and May 16th.

On May 16th, when Detective Parkinson arrived at work in the morning, the Defendant’s daughter was at the station, waiting for him. She told him that her father was coming in that day to confess. Defendant later appeared at the police station as Detective Parkinson was going to lunch with the rest of his squad. Defendant walked up to Detective Parkinson in the parking lot and said he needed to talk to him. Detective Parkinson patted Defendant down for weapons, took him into the police station and into an interview room so he could record their conversation. He obtained an interpreter for the interview. During that interview, Defendant made the following admissions:

BAEZ: Well, on some occasions when my daughter would run away from home
MALE 2: What daughter? What’s her name?
BAEZ: This one, [P.]
MALE 2: Eh, on few occasions when [P.] used to run away from the house She would leave?
BAEZ: Yes, she would leave the house, well, there were several occasions that she left
MALE 2: On various occasions she left the house. Uh-huh
BAEZ: Uh, uh, it’s actually true that I, I checked her whether she had sexual relations
MALE 2:[U/I] He said when ... she, she had run away a few times and he did check her to see if she had any ...
MALE 1: How would he check her?
MALE 2: How did you check her?
BAEZ: I, I checked her to see if she was wet in her parts and she was wet
MALE 2: But how?
BAEZ: I just touched her like this and that’s it
MALE 2: But how? Uh, show me so that ... for me to know
BAEZ: Uh, now like this, I told her to take off her panties and I touched her, I touched her in her parts and saw that she was wet
MALE 2: And ...
BAEZ: And that’s what I ... well ...
MALE 2: He told her to take off her, her pants and with his fingers he touched her to see if she was wet.
MALE 1: So he just touched her to see if she was wet? Didn’t stick his fingers in her?
MALE 2: Did you put your fingers inside of her?
BAEZ: No, on top, only on top when I saw ...
MALE 2: How can you touch on top?
BAEZ: Yes, I mean, if you touch her on top, then you find out, in fact her panties were wet
MALE 1: He just touched her, he said and then he noticed that she was wet and that ... in her bathing suit
MALE 2: Okay, so, has he ever penetrated ... stuck his finger in her?
MALE 1: But you have never touched inside?
BAEZ: No, not inside
MALE 1: No
MALE 2: Why didn’t he ... ask him why he didn’t tell me about this last week
MALE 1: Why didn’t you tell him that, the detective, last week?
BAEZ: What happens is that in a way, look, I wanted to protect my daughter so it wouldn’t ...
MALE 1: He said because he wanted to protect his daughter
BAEZ: So it wouldn’t ... her reputation and all that. The truth I, I didn’t want for my daughter to be tainted, right? She’s ...
MALE 1: He was trying to protect her reputation, you know, for people to find out and affect the reputation
MALE 2: How many times has he checked her?
MALE 1: How many times did, did you check her?
BAEZ: I don’t know, maybe about six, seven. I don’t know
MALE 1: About six or seven times, approximately

The trial court entered an order on February 27, 2012, granting Defendant’s motion to suppress the statements that he made at the Apopka Police Department. On March 1, 2012, during a hearing, the trial court explained its ruling:

Mr. Baez-De La Rosa, your lawyer has convinced me that I should suppress your confession and statements made to the Apopka Police Department. It was a difficult decision and it could have gone the other way, but I did it. And that works for you. That doesn’t mean the case will be dropped, it just means that that portion of the case will not be heard by the jury.
Now, the Prosecutor, with all due respect to the Court, disagrees with that decision. So he has, as he’s entitled to, filed an appeal on the granting of the motion to suppress. And the thrust of his argument’s [sic] going to be that you’re not in — under custody and you voluntarily said all the things that you’re going to. The problem with it is that the Apopka Police Department can’t figure out how to properly advise someone of their Miranda rights and did it inappropriately during the first interview. But I don’t know that you said anything that was really incriminating to you in the first interview, so that doesn’t really make a whole lot of difference, apparently.
Then when you went in for your second interview, I’m satisfied with your education and your life’s experiences and your lack of understanding of the court system that you believed that you were required to be there. And under the totality of the circumstances I believe that you were effectively in custody. They didn’t give you the Miranda rights in spite of the fact that they knew that you were the only suspect and they knew that you — they thought you were guilty of the offense for which you were in there for the interview.

The State concedes that the Miranda warnings administered to Defendant on May 11, 2011, were inadequate, but contends that Defendant was not in custody on May 16, when he made the incriminating statements. Mainly, the State objects that no member of law enforcement summoned Defendant to the police station that day and that he was not in custody when he was interviewed. The trial court found, however, that Defendant reasonably believed that he had been ordered by the police to appear and be interviewed. This finding is supported by Defendant’s testimony. There is no basis for reversal of the trial court’s decision to suppress Defendant’s statements made on May 16, 2011.

AFFIRMED

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Based upon the transcript of the hearing held on Defendant’s motion to suppress, the detective's name is Andrew Parkinson,