author: THOMAS, Judge.

text:
    J.A. v. ETOWAH COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2070771.
    Court of Civil Appeals of Alabama.
    Jan. 16, 2009.

      Rodney L. Ward, Gadsden, for appellant.
    Sharon E. Ficquette, gen. counsel, and Michael A. Nunnelley, staff atty., Department of Human Resources, for appellee.
   THOMAS, Judge.

J.A. (“the mother”) appeals from the Etowah Juvenile Court’s judgment terminating her parental rights to J.E.A. (“the child”). The mother was 13 years old when she gave birth to the child, who was conceived when the mother’s father, M.A., sexually assaulted the mother. The mother gave birth to the child at home on March 23, 2006, and she and M.A. then went to the hospital with the intent of placing the child for adoption. At the hospital, the Etowah County Department of Human Resources (“DHR”) took custody of the child, who remained in the hospital because he was a newborn and only weighed 3 pounds, 12 ounces at birth. M.A. withdrew his consent to the adoption of the child later that day when he was asked to give a DNA sample. Two days later, M.A. attempted suicide in the family home, in the presence of his wife, M.F.A. (“the maternal grandmother”), and his children, including the mother. M.A. was arrested and charged with domestic violence.

The mother and her sister, Je.A., were interviewed by a forensic interviewer, Sarah Wilhite, at which time the mother disclosed that she had been molested by M.A. At that time, Je.A. denied that she had been sexually abused by M.A.; however, in a follow-up interview in May 2006, Je.A. admitted that M.A. had molested her as well, although she denied that he had had sexual intercourse with her. M.A. was ultimately charged with and convicted of crimes related to the sexual abuse of the mother and Je.A. and was incarcerated.

As noted above, DHR took custody of the child when the mother and M.A. relinquished custody at the hospital on March 23, 2006. Although M.A. informed the hospital later that same day that he did not wish to consent to the child’s adoption, the child remained in DHR’s custody and was ultimately placed in a foster home. At an April 14, 2006, Individualized Service Plan (“ISP”) meeting, the mother informed DHR that she wished to be reunited with the child. Because the mother was a minor and could not provide for and rear the child on her own, DHR focused on the maternal grandmother as the person to be considered responsible for the care of the child if he were to be reunited with the mother. Thus, DHR provided services for the mother and the maternal grandmother.

The DHR caseworker assigned to the family, Beverly Bankston, testified at trial regarding the family’s progress and the decision to seek a termination of the mother’s parental rights. Bankston explained that she had been concerned early in her involvement with the family when the maternal grandmother and the mother expressed a desire to see M.A. while he was incarcerated in the county jail. Bankston noted that it appeared that the maternal grandmother did not see a problem with letting the mother visit M.A. despite the risk that M.A. might attempt to convince the mother to recant her accusation that M.A. had sexually assaulted her. According to Bankston, the mother had difficulty choosing a name for the child, which Bank-ston indicated raised concerns about the mother’s desire to bond with the child. In addition, Bankston recounted early difficulty with scheduling visitation between the mother and the child.

According to Bankston, the maternal grandmother and the mother expressed concern over what they would tell friends and family about the child’s parentage. The maternal grandmother was pregnant when the child was born; she gave birth to her infant daughter, I.A., only two months later in May 2006. Bankston said that the maternal grandmother had originally planned to pass the child off as her own, despite the implausibility of such an explanation. In addition, in the summer of 2007, the mother and maternal grandmother canceled a visit with the child because the child’s maternal great-grandmother and other family members were visiting and they did not want to explain the child’s parentage to the maternal great-grandmother. Bankston indicated that this caused her great concern because she could not see how the maternal grandmother and mother could continue to hide the existence of the child if he were reunited with his mother and placed in the maternal grandmother’s care.

Bankston expressed further concern over the maternal grandmother’s fitness as an alternative custodian for the child based upon the maternal grandmother’s reaction to Je.A.’s disclosure of abuse. Bankston described the maternal grandmother’s reaction as “nonchalant.” When JeA. indicated that she was suffering from feminine itching, Bankston recounted, the maternal grandmother seemed reluctant to take JeA. to a physician to be examined. When DHR referred JeA. to what the transcript refers to as “SCHIPS,” which we believe to be a reference to the Children’s Hospital Intervention and Prevention Services (“CHIPS”) team, Bankston said that the maternal grandmother first requested that DHR take JeA. to the appointment because the maternal grandmother did not want to go. DHR provided transportation for the maternal grandmother and Je.A., and the maternal grandmother did attend the appointment.

The maternal grandmother’s insistence that she did not need the counseling recommended by DHR also troubled Bank-ston. Bankston said that the maternal grandmother had stated that the abuse was in the past and that she had forgiven M.A. However, the maternal grandmother did tell Bankston that, if she felt she needed counseling at some time in the future, she would seek pastoral counseling. The maternal grandmother refused to sign a release form permitting DHR to talk with the pastor about any counseling he might give the maternal grandmother. The maternal grandmother also indicated that she might consider allowing M.A. to return to the home if he were released from prison. Bankston said that the maternal grandmother also did not encourage the mother or Je.A. to continue counseling, which the maternal grandmother said the mother and Je.A. found “boring.” Bankston noted that the mother, like the maternal grandmother, indicated that she had no need for counseling because the abuse was “in the past” and “forgotten.” The resistance to counseling and the maternal grandmother’s indication that M.A. might be permitted to return to the family home, according to Bankston, indicated the maternal grandmother’s lack of understanding about the emotional trauma of sexual abuse and showed, in Bankston’s opinion, a lack of insight and judgment on the part of the maternal grandmother.

Other concerns raised by Bankston included concerns that the maternal grandmother was always comparing her youngest daughter, I.A., with the child in a negative manner. Bankston expressed concern that, to the maternal grandmother, the child would never be as good as I.A. This constant comparison of the two children, Bankston said, caused DHR to believe that the child would always carry a stigma in the maternal grandmother’s eyes. Bankston also noted that it appeared that the maternal grandmother had not bonded with the child.

In addition, Bankston said that she questioned the maternal grandmother’s parenting skills. According to Bankston, DHR had had contact with the family in 1997 when the maternal grandmother and M.A. left the mother and her older brother alone in the home, when they were aged five and six, respectively. Also troubling to Bankston was the maternal grandmother’s decision to kick two older children who were in M.A.’s custody, A.S. and J.S., out of the family home in January 2008 instead of disciplining A.S. for coming home too late.

Bankston testified that the maternal grandmother made and sold tamales and that this home business was her only source of income. The maternal grandmother did receive food stamps. According to Bankston, the maternal grandmother was unable to provide income verification at any time during the 20-month period during which DHR provided services to the family. Bankston did admit that the home was never without necessary utilities and that the family did not go without food at any time during that same period.

Elizabeth Pierce, a case aide who supervised visits with the child, testified that most of the visits with the family had gone well. However, she said that she had been concerned with the maternal grandmother’s use of what appeared to be a turkey fryer — a large pot suspended over an open propane flame — to prepare chicken in the home. Pierce stated that the fryer was intended to be used out doors but that the maternal grandmother used it in her small kitchen. In addition, Pierce testified that during one overnight visit, which occurred in the spring of 2007, the child’s foster mother suspected that the mother was not giving the child his medication. In order to prove her suspicion, the foster mother marked the medicine bottle to denote the level of medication in the container when she relinquished the child for visitation; when the child was returned from the visit, the level of medication in the bottle was unchanged. Michelle Watkins, another case aide who transported the child on occasions when Pierce was unavailable, testified that the mother had failed to utilize the baby bed provided to her by DHR and had instead allowed the child to sleep in her bed with her; Watkins said that she explained to the mother that allowing the child to sleep in bed with an adult was a safety risk. Pierce testified that in the summer of 2007 the child had begun to cry whenever she arrived at the foster parents’ home to pick him up for visitation. According to Pierce, she has had to “peel” the child away from the foster mother at times. However, Pierce did say that the child settled down in the car and that the visits proceeded without further incident.

Chief among the services DHR provided to the family was parenting classes, which were first provided by Janet Coello, who served the family from November 2006 to February 2007. Coello explained that early sessions with the family focused mostly on the explanation of concepts regarding finances, personal responsibility, safety and the protection of family, health, and the care and feeding of the child. Coello noted that the family’s cultural heritage required her to show more respect for the maternal grandmother, who was the matron of the family, and that she tried to be sensitive to the maternal grandmother’s feelings during each session. Coello opined that the family made very little progress during the classes. She specifically noted in a letter to DHR that the family was reluctant to implement the ree-ommendations made to them and that they did not reach an acceptable level of progress.

Coello recounted one session in which the maternal grandmother indicated a willingness to reunite with M.A., after which statement the mother became upset and cried. Coello also recounted a session in late January 2007 when the maternal grandmother, in response to comments regarding providing a safe home environment in which the children would feel secure, stated:

“We don’t have any problems. I’m tired of people telling me this. My husband had a drinking problem, but he had never abused any of the children. I never had any concerns about leaving him with the children. He only abused [the mother] once, and he was drunk.”

Coello also echoed some of Bankston’s concerns, noting that the maternal grandmother had indicated that there was no room to consider outside counseling because the issue was a family issue; Coello noted that it appeared difficult to get the maternal grandmother to see the impact of the sexual abuse on the family.

According to Coello, the maternal grandmother resisted working on lessons regarding finances and seemed to be threatened by questions concerning her income. Coello noted that the maternal grandmother had not used a form or a log that Coello had provided to help her track the income she generated with her tamale sales. Coello, like Bankston, said that she never was able to determine the income the maternal grandmother produced through her home business.

The mother, who was in the ninth grade at the time of the trial, testified at trial that she wanted to be reunited with the child. She explained that she did not hate M.A. for what he had done to her; that he had been “good in the good time”; nd that “we can’t do nothing about” the “bad times, like what happened,” because “that’s the past, you know.” She said that she did not really know how to answer the question whether she would want to live with M.A. again. When asked about whether she cried when discussing with Coello the possibility of M.A. returning to the home, the mother said that she had cried on that date for the first and only time. The mother never fully explained the reason that she cried on that date, but she expressed a dislike for having to repeatedly discuss the sexual abuse.

When asked how she would explain having a child if the child were returned to the family, the mother said that many people already knew about the child and his parentage. However, she said that she would tell those friends and family members that did not already know that the child was hers and that if they had a problem with that, they would have to deal with it. The mother also explained why she and the maternal grandmother had chosen not to have a visit with the child when the maternal great-grandmother had visited:

“She is very different from commonly people. You might think: ‘Oh, well, I’m so sad that happen to you,’ but, you know, she would be the type of person that would say, ‘Give that baby up for adoption,’ and we don’t want her to say that, because we want the baby. So we — That’s why we canceled the visitation, because we didn’t want that to happen.”

According to the mother, her household at the time of trial consisted of the maternal grandmother, her older brother A.A., her younger sisters Je.A. and I.A., and her younger brother D.A. When asked if she had spoken with Je.A. about M.A.’s sexual abuse, the mother said that she had told Je.A. that she would get over it and that she should not “remind herself constantly” about the abuse. The mother said that she had talked with Je.A. about the abuse only twice — right after the May 2006 interview and again about two months later.

The mother said that she had dealt with the abuse she had suffered the same way she had advised Je.A. to deal with it. She explained that “I don’t see no reason why bringing it back, and that’s why I want to get [the child].” In addition, although inconsistent with her statement that she wanted to put the abuse behind her and to forget that it had ever happened, the mother said that she wanted to “face my fear and live with my child.”

The maternal grandmother testified through an interpreter. She testified that she could not answer the question whether she would let M.A. return to her home; however, she did answer in the affirmative the question whether she would protect the children in her home. When asked about her income, the maternal grandmother testified that she used to earn around $160 to $170 and she now makes $250; whether this figure is a weekly, biweekly, or monthly figure is not clear from her testimony. The maternal grandmother also testified that she received $600 per month in food stamps.

DHR required both the mother and the maternal grandmother to undergo psychological evaluations, which were performed by Dr. Yolanda Suarez. Dr. Suarez testified at trial regarding the results of those evaluations. Dr. Suarez noted that the mother had shown a desire to avoid talking about and dealing with the sexual abuse she had suffered at the hands of M.A. In fact, according to Dr. Suarez, the mother mentioned that it upset her to be asked multiple questions about the incident and that she disliked having to recall the traumatic episode. Dr. Suarez said that the mother’s test results and clinical review did not reveal current symptoms of anxiety that are required for a diagnosis of post-traumatic stress disorder; however, Dr. Suarez noted that the mother’s avoidance of and reluctance to discuss the sexual abuse and her desire to minimize the recollections of the event were signs that might indicate a post-traumatic stress disorder. Thus, based on her evaluation, Dr. Suarez opined that the mother might be at risk for developing delayed post-traumatic stress disorder.

Dr. Suarez testified that the maternal grandmother related during the evaluation that she did not blame M.A. for sexually abusing the mother because he was drunk. According to Dr. Suarez, the maternal grandmother said that she would consider letting M.A. return to the home upon his release from prison if he changed his behavior. Dr. Suarez stated that she did not think that the maternal grandmother was attempting to minimize what had happened to the mother but instead wanted to move forward and focus on forgiveness. Dr. Suarez indicated that the maternal grandmother had a positive attitude, which Dr. Suarez characterized as an “admirable altruistic behavior.” However, according to Dr. Suarez, the maternal grandmother’s reliance on positive thinking as a method of resolving the emotional and safety risks resulting from M.A.’s sexual abuse of the mother and Je.A. was “naive” and indicated the maternal grandmother’s lack of appropriate comprehension of safety risk factors for her children as well as the impact of the sexual abuse on their long-term welfare. Dr. Suarez opined that the maternal grandmother’s religious and cultural beliefs were interfering with her ability to recognize threats to the welfare of her children.

“ ‘The right to maintain family integrity is a fundamental right protected by the due process requirements of the Constitution. Pursuant to this right, Alabama courts recognize a presumption that parental custody will be in the best interests of a child. This prima facie right of a parent to the custody of his or her child can only be overcome by clear and convincing evidence that permanent removal from the parent’s custody would be in the child’s best interests, but the primary consideration in any proceeding to terminate parental rights is always the best interests and welfare of the child. In making that determination, the court must consider whether the parent is physically, financially, and mentally able to care for the child. If the court finds from clear and convincing evidence that the parent is unable or unwilling to discharge his or her responsibilities to and for the child, his or her parental rights can then be terminated, pursuant to [Ala. Code 1975,] § 26-18-7(a)
“Bowman v. State Dep’t of Human Resources, 534 So.2d 304, 305 (Ala.Civ.App.1988) (citations omitted).
“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights:
(1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).”

B.M. v. State, 895 So.2d 319, 330-31 (Ala.Civ.App.2004).

As noted above, a juvenile court’s judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). “ ‘[C]lear and convincing evidence’ ” is “ ‘[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6—11—20(b)(4)). The juvenile court’s factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995).

Section 26-18-7(a), Ala.Code 1975, specifies the grounds for terminating parental rights:

“If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

In deciding whether a parent is unable or unwilling to discharge his or her responsibilities to and for a child, the juvenile court may consider, but is not limited to considering, the following factors:

“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“a. Murder or voluntary manslaughter of another child of that parent.
“b. Aiding, abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of that parent.
“c. A felony assault or abuse which results in serious bodily injury to the surviving child or another child of that parent. The term ‘serious bodily injury’ means bodily injury which involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
“(8) That parental rights to a sibling of the child have been involuntarily terminated.”

Ala.Code 1975, § 26-18-7(a). In addition, when a child is not in the physical custody of the parent, the juvenile court shall consider:

“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

Ala.Code 1975, § 26-18-7(b).

Because the mother is a 15-year-old minor who attends high school and has no income of her own, she admittedly cannot support or rear the child on her own. She is dependent on support from the maternal grandmother for her own existence. Thus, by virtue of her age and her situation, the mother is unable to discharge her parental responsibilities to and for the child, and, although that condition will eventually change, it will not change in the reasonably foreseeable future.

Because the mother is a minor herself without the ability to parent her child on her own, DHR focused on whether placement in the family home under the supervision of the maternal grandmother was a viable alternative to termination of the mother’s parental rights. To achieve that end, DHR provided services to the mother and the maternal grandmother, including psychological evaluations, counseling, and parenting classes. When its attempts to rehabilitate the family to the point of reunification failed, it moved to terminate the mother’s parental rights.

The evidence at trial indicated that DHR’s attempt to utilize the maternal grandmother as an alternative to terminating the mother’s parental rights to the child failed because the maternal grandmother was resistant to the requirements DHR placed on her and resented the intrusion into the lives of her family members. As noted above, the maternal grandmother showed a reluctance to continue counseling for herself, indicating that the sexual abuse was in the past and that counseling was not necessary. Based on Dr. Suarez’ evaluation and the maternal grandmother’s reactions to parenting classes with Coello, the maternal grandmother evinced a lack of judgment regarding the impact of sexual abuse on her family and particularly upon the children involved. The maternal grandmother could not verify her income and was resistant to suggestions on how to do so; the parenting instructor, Coello, noted that the maternal grandmother seemed threatened by the intrusive questions regarding her income and family finances. The maternal grandmother’s own comments to Coello and to Dr. Suarez indicate that she did not find M.A.’s conduct to be his fault and that she did not think that her family had any problems requiring DHR’s intrusion into her family life.

Although a juvenile court is required to consider alternatives to termination under Ex parte Beasley, 564 So.2d at 954, the juvenile court is not required to accept any suggested alternative as “viable” simply because it exists. “We have recently explained ... that a ‘fit and willing’ relative is one who can care for the child’s physical, emotional, mental, and other needs during the child’s minority. J.B. v. Cleburne County Dep’t of Human Res., 991 So.2d 273, 283 (Ala.Civ.App.2008).” B.H. v. Marion County Dep’t of Human Res., 998 So.2d 475, 481 (Ala.Civ.App.2008). The determination of whether a viable alternative to termination exists in a given case is a question of fact. T.V. v. B.S., 7 So.3d 346, 352 (Ala.Civ.App.1998) (citing J.B., 991 So.2d at 282). Our review of a juvenile court’s decision on the viability of a particular alternative is governed by the ore tenus rule. T.V., 7 So.3d at 353.

DHR based its decision to seek termination, at least in part, on the maternal grandmother’s attitude and inability to adjust her thinking and behavior to ensure a safe and stable environment for the child. The juvenile court concluded, based on its view of the evidence, that placing custody in the maternal grandmother was not a viable alternative to terminating the mother’s parental rights in this particular case. Specifically, the juvenile court endorsed DHR’s concerns regarding the maternal grandmother’s “protective capacities” and also accepted the testimony of Dr. Suarez regarding the maternal grandmother’s shortcomings. The juvenile court also found that the maternal grandmother did not “fully comprehend the emotional and mental trauma surrounding the child’s incestuous birth.”

The juvenile court concluded, based on the totality of the evidence, that placement of the child with the maternal grandmother is not a viable alternative. See Montgomery County Dep’t of Human Res. v. C.R., 4 So.3d 1162, 1170 (Ala.Civ.App.2008) (indicating that the juvenile court is permitted to consider the totality of the evidence when determining whether children should be placed in a suggested alternative placement); J.B., 991 So.2d at 284 (same). The evidence at trial supports the juvenile court’s factual findings, and we are not permitted to reweigh the evidence to arrive at a different conclusion. Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004). In fact, our supreme court has held that we must affirm the judgment of the juvenile court “ ‘if under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ ” Ex parte R.E.C., 899 So.2d at 280 (quoting River Conservancy Co. v. Gulf States Paper Corp., 837 So.2d 801, 806 (Ala.2002)). We therefore affirm the termination of the parental rights of the mother.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

MOORE, J., dissents, without writing.

      . Whether M.A. would be permitted by law to return to live in the family home is highly unlikely in light of Ala.Code 1975, § 15-20-26, which prohibits an adult criminal sexual offender from establishing a residence in certain locations, including those where a minor resides or where his or her former victim resides. The statute reads, in pertinent part:
      "O^) Unless otherwise exempted by law, no adult criminal sex offender shall establish a residence or any other living accommodation within 1,000 feet of the property on which any of his or her former victims, or the victims’ immediate family members reside.
      "(c) No adult criminal sex offender shall establish a residence or any other living accommodation where a minor resides. Notwithstanding the foregoing, an adult criminal sex offender may reside with a minor if the adult criminal sex offender is the parent, grandparent, or stepparent of the minor, unless one of the following conditions applies:
      "(1) The adult criminal sex offender’s parental rights have been or are in the process of being terminated as provided by law.
      "(2) The adult criminal sex offender has been convicted of any criminal sex offense in which any of the offender’s minor children, grandchildren, or stepchildren were the victim.
      "(3) The adult criminal sex offender has been convicted of any criminal sex offense in which a minor was the victim and the minor resided or lived with the offender at the time of the offense.
      "(4) The adult criminal sex offender has ever been convicted of any criminal sex offense involving a child, regardless of whether the offender was related to or shared a residence with the child victim.
      "(d) No adult criminal sex offender shall be permitted to willfully or knowingly come within 100 feet of any of his or her former victims, except as elsewhere provided by law, or make any visual or audible sexually suggestive or obscene gesture, sound, or communication at or to a former victim or a member of the victim’s immediate family.

      "(h) An adult criminal sex offender who knowingly violates the provisions of this section shall be guilty of a Class C felony.”

      . The oldest son, A.A., had at least part-time employment. According to Bankston, she had received one pay stub from A.A. The amount of income A.A. earned, however, was not disclosed in the record.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Daniel JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4528.
    District Court of Appeal of Florida, First District.
    June 24, 2009.
    Rehearing Denied July 24, 2009.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Daniel Jacobs appeals a restitution order arguing that the trial court abused its discretion in ordering him to pay $21,000 in restitution when the State produced no evidence that the túpelo honey which he was charged with fraudulently taking from the victim was worth $1.47 per pound rather than $1.25 per pound. The State concedes that the trial court’s award of restitution was based on speculation and contends the proper remedy is to reverse the order and allow the State to provide supplemental evidence that the proper measure of damages is $1.47 per pound or, in the absence of further evidence, the trial court should enter a restitution order in the amount of $16,252. We agree. Forlano v. State, 964 So.2d 246 (Fla. 1st DCA 2007); Aboyoun v. State, 842 So.2d 238, 240 (Fla. 2d DCA 2003).

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


text:
    The JUSTICE ADMINISTRATIVE COMMISSION, Petitioner, v. Shalene GROVER, Respondent.
    No. 1D09-1613.
    District Court of Appeal of Florida, First District.
    June 24, 2009.

      Christian D. Lake, Assistant General Counsel for The Justice Administrative Commission, Tallahassee, for Petitioner.
    Respondent Shalene Grover, pro se.
   PER CURIAM.

Petitioner, the Justice Administrative Commission (JAC), seeks a writ of certio-rari to quash the circuit court’s order requiring JAC to pay certain attorney’s fees for court-appointed counsel for an indigent in a dependency proceeding in the circuit court. The object of the court-appointed representation was a grandmother who was undoubtedly entitled to participate in the dependency proceeding concerning her minor grandchildren. Nevertheless, the grandmother was not entitled to court-appointed representation in this case, as she did not fall under the category of persons who qualify for court-appointed counsel at public expense. See § 27.40(1), Fla. Stat. (2008). JAC was not, therefore, pursuant to its statutory authorization, required to reimburse appointed counsel in this case. We agree with JAC that the decision in Justice Administrative Commission v. Peterson, 989 So.2d 663 (Fla. 2d DCA 2008), is on point and was correctly decided. We therefore issue the writ, and QUASH the order directing JAC to make payment to respondent attorney for her representation of the grandmother.

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


text:
    Theodore HIRST, Appellant, v. SEGREST FARMS, INC., and Daniel E. McCormack, Appellees.
    No. 2D08-4183.
    District Court of Appeal of Florida, Second District.
    June 26, 2009.
    Jessica E. Shahady of Beltz & Ruth, P.A., St. Petersburg, for Appellant.

      Charles W. Hall and Mark D. Tinker of Banker Lopez Gassier P.A., St. Peters-burg, for Appellees.
   PER CURIAM.

Theodore Hirst was riding his bicycle on the sidewalk alongside US-41, a highway in southern Hillsborough County, when he ran into the side of a twenty-two-foot-long box truck exiting a service station and turning onto the highway. He received severe injuries when the truck’s rear wheels ran over him. He sued the owner of the truck, Segrest Farms, Inc., and its driver, Daniel E. McCormack. At trial, after presentation of all the evidence, the trial court granted a directed verdict in favor of the defendants on liability, entered judgment in their favor, and denied Mr. Hirst’s motion for a new trial. We reverse.

The driver of the truck testified that he looked both left and right before crossing the sidewalk but did not see Mr. Hirst on his bicycle. Other witnesses testified that they clearly saw Mr. Hirst approaching on his bicycle; two witnesses said that Mr. Hirst was riding erratically up the sidewalk. One witness testified that the truck came to a stop completely blocking the sidewalk and that as the driver started to turn, he ran over Mr. Hirst and the bicycle. This witness also stated that there were no obstructions to viewing the sidewalk and that because it was the middle of the afternoon, there were no lighting problems preventing the driver from seeing Mr. Hirst approach. Witnesses who saw the incident testified that Mr. Hirst hit the truck in front of the rear tires, which then ran over him. There was also evidence that the truck was moving from its stopped position for at least five seconds when Mr. Hirst ran into it.

Other evidence showed that Mr. Hirst had an elevated blood alcohol level (0.13%) and that he was under the influence of cocaine and marijuana at the time of the incident. Mr. Hirst testified that he saw the truck at a complete stop and the driver look at the oncoming southbound traffic; he assumed that the truck would not pull out right in front of him. He said he applied his brakes when he realized that the truck was starting to pull out but it was too late. It was unclear whether the brakes on his bike were operable.

We reverse, concluding that the jury should have been allowed to decide this case. There were differences in the witnesses’ testimonies as to where the truck was stopped and how long it had been stopped before the collision. Given the undisputed facts that the driver had an unobstructed view in broad daylight and failed to see Mr. Hirst approaching, we cannot say that as a matter of law the driver was not negligent. ‘“Florida law cautions against a motion for directed verdict in negligence cases since the evidence to support the elements of negligence are frequently subject to more than one interpretation.’ ” Nunez v. Lee County, 111 So.2d 1016, 1016 (Fla. 2d DCA 2000) (quoting Regency Lake Apartments Assocs., Ltd. v. French, 590 So.2d 970, 972 (Fla. 1st DCA 1991)). Because the evidence was not universally in favor of the defendants and presented potentially varying inferences, it was for the jury to decide who was at fault as well as the percentage of fault to attribute to either Mr. Hirst or Mr. McCormack.

Reversed and remanded for further proceedings.

CASANUEVA and DAVIS, JJ., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.


author: KHOUZAM, Judge. ALTENBERND,

text:
    Yancy B. CLAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2020.
    District Court of Appeal of Florida, Second District.
    June 26, 2009.
   KHOUZAM, Judge.

Yancy B. Clayton appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised two grounds for relief. We reverse.

In ground one of his motion, Clayton alleged that his counsel was ineffective for failing to file a motion to disqualify the judge who presided over his cases. Clayton alleged that the judge was a former assistant state attorney who had previously prosecuted him in other cases. Clayton claimed that he feared he would not receive a fair trial and that he asked his counsel to file a motion to disqualify the judge. Clayton contended that but for counsel’s failure to file the motion, he would not have entered a plea and would have proceeded to trial.

The postconviction court denied the claim on the theory that a motion to disqualify based on Clayton’s allegations was legally insufficient and, consequently, counsel could not have been ineffective for failing to file a futile motion. However, the legal sufficiency of a motion to disqualify depends on “whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Thompson v. State, 990 So.2d 482, 490 (Fla.2008) (quoting Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983)). The fact that the presiding judge prosecuted a defendant in a previous case is sufficient to support the defendant’s claim of a well-founded fear that he would not receive a fair trial before the judge. Goines v. State, 708 So.2d 656, 659 (Fla. 4th DCA 1998).

Therefore, we reverse the summary denial of this claim. On remand, if the court records contain documents establishing that the cases were handled by another prosecutor, the postconviction court should attach those documents to refute the allegations. See Penoyer v. State, 945 So.2d 586, 588 (Fla. 2d DCA 2006). If the records do not refute Clayton’s claim, the court must conduct an evidentiary hearing.

In ground two, Clayton alleged that his counsel was ineffective for failing to disclose a conflict of interest because his counsel and the judge were former coworkers. The postconviction court found that Clayton failed to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and denied the claim. However, the court applied the incorrect legal standard to Clayton’s conflict of interest claim.

“Claims of ineffective assistance based on conflict of interest have generally been analyzed under an exception to the standard two-pronged Strickland test.” Alessi v. State, 969 So.2d 430, 435 (Fla. 5th DCA 2007). To establish an ineffectiveness claim based on a conflict of interest, a defendant must show that there was an actual conflict of interest and that the conflict adversely affected counsel’s performance. Hunter v. State, 817 So.2d 786, 791 (Fla.2002). Once a defendant satisfies both of these elements, prejudice is presumed. Id. at 792.

Accordingly, we reverse and remand for the postconviction court to apply the correct legal standard to this claim. If the court again summarily denies the claim, it must attach record excerpts conclusively refuting the claim. If the record does not refute the claim, the court must conduct an evidentiary hearing.

Reversed and remanded.

CRENSHAW, J., Concurs.

ALTENBERND, Concurs with opinion.

ALTENBERND,

Judge, Concurring.

I concur with the panel’s disposition as to ground one of Mr. Clayton’s motion. As to ground two, I concur with some reluctance. I doubt that the claim alleging a conflict of interest is facially sufficient as alleged, but I am inclined to believe that he should have the option to amend his motion to allege the claim with greater specificity.

Our record contains little information about the proceedings below because the trial court attached nothing to its order. Mr. Clayton apparently was convicted of multiple counts of grand theft, felony petit theft, fraudulent use of a credit card, and burglary on April 10, 2006. Because a conflict prevented the public defender from representing Mr. Clayton, he was represented at that time by Derek Christian. With Mr. Christian’s assistance, Mr. Clayton entered into a negotiated plea by which he received a thirty-year sentence of imprisonment that was fully suspended in exchange for eighteen years’ probation. Mr. Clayton apparently had a significant prior record and nothing suggests that this negotiated plea was anything but favorable for Mr. Clayton.

Mr. Clayton was arrested for a violation of his probation within two months. While represented by a new attorney, in August 2007, the trial court found him in violation of probation and sentenced him to the thirty-year sentence. He did not appeal the judgments, the orders on violation of probation, or the sentences.

Mr. Clayton filed this postconviction motion in February 2008. As to the allegation of a conflict involving his attorney, Derek Christian, he merely alleges that his second attorney informed him that Judge Estrada and Mr. Christian “were previously co-workers in the prosecutor’s office.”

As the majority correctly observes, prejudice — as the second prong of Strickland — is presumed in cases involving an attorney’s conflict of interest. However, to receive the benefit of this presumption, the defendant must demonstrate “that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” Strickland, 466 U.S. at 692, 104 S.Ct. 2052 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). In effect, this appears to be a substitution of a different two-prong test for claims of conflict. To state a facially sufficient claim involving a conflict of interest, I believe a defendant must plead allegations that, if proven, would satisfy both prongs of Cuyler. Compare Ey v. State, 982 So.2d 618, 623 (Fla.2008) (“To raise a facially sufficient claim of ineffective assistance of counsel, a defendant must allege specific facts meeting both of Strickland’s prongs.”).

In this case, Mr. Clayton has merely alleged that his attorney and the trial judge once worked in the state attorney’s office. He has alleged no theory by which this relationship caused his attorney to represent conflicting interests or that it created an actual conflict that affected his lawyer’s performance. Frankly, having a defense attorney who has prior knowledge and understanding of the presiding judge is often helpful to a defendant. I think I can take judicial notice that many lawyers who start out in the state attorney’s office end up either on the bench or in private practice as defense attorneys. I am unwilling to accept that such a co-worker relationship creates any presumption of prejudice without additional and exceptional factual allegations.

Given that Mr. Clayton’s first claim must be remanded to the trial court, I have no objection to remanding the second claim as well. However, in my opinion, Mr. Clayton will need to allege more facts establishing a conflict before this claim is facially sufficient. If he can allege those facts, he will bear the burden of establishing both of the components of Cuyler at any evidentiary hearing.


author: WARNER, J.

text:
    John F. FOX and Laura L. Fox, Appellants, v. Christine MADSEN, Appellee.
    No. 4D08-2517.
    District Court of Appeal of Florida, Fourth District.
    July 1, 2009.

      Scott W. Zappolo of Watterson & Zap-polo, P.A., Palm Beach Gardens, for appellants.
    Cort A. Neimark of Fowler White Burnett P.A., Fort Lauderdale, for appellee.
   WARNER, J.

In this appeal the appellants contend that the statute of limitations for specific performance bars the appellee’s action for injunction to compel removal of a portion of the appellants’ driveway constructed in violation of the declaration of restrictions for their subdivision. We hold that the five-year statute of limitations applies and affirm as to this and all other issues raised.

Christine Madsen and John and Laura Fox are homeowners of adjacent properties in the Greenwood subdivision in Coral Springs. Both properties are subject to the declaration of restrictions for Greenwood, which are covenants running with the land. After purchasing the property, Madsen filed suit for injunctive relief seeking to require the Foxes to remove driveway paving constructed to the property line between her property and the Foxes’ property. She claimed that the driveway violated the declarations. The Foxes answered, claiming that the action was barred by the statute of limitations. After a full trial, the court entered a mandatory injunction requiring the Foxes to remove that portion of their driveway which extends into an easement on the property line.

The Foxes appeal, claiming that the action is barred by the one-year statute of limitations for specific performance of a contract. See § 95.11(5)(a), Fla. Stat. Madsen contends, on the other hand, that the action is one for injunction and is governed by the five-year statute of limitations set forth in section 95.11(2)(b), Florida Statutes. “A legal issue surrounding a statute of limitations question is an issue of law subject to de novo review.” Hamilton v. Tanner, 962 So.2d 997, 1000 (Fla. 2d DCA 2007) (citing Chrestensen v. Eurogest, Inc., 906 So.2d 843, 344 (Fla. 4th DCA 2005)). We agree that this action is governed by the longer limitations period.

The Foxes assert that the situation in this case is nearly identical to that in Ferola v. Blue Reef Holding Corp., 719 So.2d 389 (Fla. 4th DCA 1998). The owners of a lot in a development filed suit against the developer seeking injunctive relief for violations of the declaration of covenants and restrictions. The complaint alleged that the developer violated the restrictions by constructing townhouses on a designated recreation area, failing to provide amenities for the recreation area, and failing to maintain common areas. The trial court concluded that the owners’ claim for injunctive relief was really a claim for specific performance of contract and dismissed the case on the ground that the one-year statute of limitations had run. This court agreed with the trial court’s conclusion and affirmed the dismissal.

While Ferola might appear on point, there are insufficient facts alleged to determine why the trial court concluded that the action was one of specific performance rather than injunction. If, for instance, the complaint sought to require the developer to provide the recreational amenities, then it could be an action for specific performance and not one of injunction. The claims in Ferola all related to affirmative promises or obligations on the part of the developer to build and maintain the development as contracted. Ferola thus is not directly on point.

More on point is Sheoah Highlands, Inc. v. Daugherty, 837 So.2d 579 (Fla. 5th DCA 2003), where the court squarely considered whether an action to enforce a declaration of condominium was subject to the one-year statute of limitations for specific performance of contracts, or the five-year statute of limitations for legal or equitable actions on a contract. The Fifth District found that reasonable arguments could be made supporting the application of either statute of limitations. As the court recognized:

“Where a statute of limitations shortens the existing period of time the statute is generally construed strictly, and where there is reasonable doubt as to legislative intent, the preference is to allow the longer period of time.” Baskerville-Donovan Eng’rs, Inc. v. Pensacola Executive House Condo. Ass’n, Inc., 581 So.2d 1301, 1303 (Fla.1991). If there is doubt as to the applicability of a statute of limitations, the question is generally resolved in favor of the claimant. J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla.1994); 51 Am. Jur. 2d Limitation of Actions § 92 (2000) (“As a matter of policy, if there is a substantial question or reasonable dispute as to which two or more statutes of limitation ... should be applied, the doubt should be resolved in favor of the application of the statute containing the longest limitation period.”).

Id. at 582.

We applied section 95.11(2)(b), to enforce a restrictive covenant in Pond Apple Place III Condominium Ass’n v. Russo, 841 So.2d 526 (Fla. 4th DCA 2003). The association brought an action against homeowners to enforce a restrictive covenant prohibiting dogs. The trial court held that the complaint was one for specific performance and was therefore time-barred. This court reversed, finding that the applicable statute of limitations for injunction proceedings of this type was five years under section 95.11(2)(b).

Madsen filed a complaint for injunction, and a mandatory injunction is the proper method of enforcing restrictive agreements on property. In Daniel v. May, 143 So.2d 536 (Fla. 2d DCA 1962), the court affirmed a mandatory injunction requiring the defendants to remove a portion of their dwelling constructed in violation of the restrictive covenants on their lot. The court held that a mandatory injunction is the proper means of enforcing a restrictive agreement affecting real estate. Similarly, the mandatory injunction was the appropriate means of enforcing the restrictions in this case, and the five-year statute of limitations applied.

In their second issue on appeal, the Foxes assert that the trial court entered a mandatory injunction which bore no relation to the relief sought in that the trial court ordered removal of the driveway from an easement rather than enforcing a setback restriction, which was requested in the complaint. To the contrary, both in the complaint and at trial, particularly in closing arguments, Madsen maintained that the driveway violated section 3 of the restrictive covenants, which contained restrictions on landscaping. The court found that a breach of the declaration occurred, because the paving of an area shown as landscaped on the original survey violated the declaration. The relief granted expressly related to the relief sought.

“[A]n order imposing a permanent injunction lies within the sound discretion of the trial court and will be affirmed absent a showing of abuse of discretion.” Smith v. Coal, to Reduce Class Size, 827 So.2d 959, 961 (Fla.2002) (quoting Operation Rescue v. Women’s Health Ctr., Inc., 626 So.2d 664, 670 (Fla.1993)). Although we agree with the Foxes that the plain language of the setback restrictions does not apply to driveways, the trial court based its decision on section 3 which disallows paving on areas shown as landscaped on the plans and specifications. The Foxes argue various facts regarding the location of the driveway but have not shown that the trial court abused its discretion.

Affirmed.

GROSS, C.J., and CIKLIN, J., concur.


author: TAYLOR, J.

text:
    REMINGTON FINANCIAL GROUP, INC., Appellant, v. ANCHORS AWEIGH MARINE, INC., Appellee.
    No. 4D08-5115.
    District Court of Appeal of Florida, Fourth District.
    July 1, 2009.
    Don Lynn and John H. Rooney of Shutts & Bowen, LLP, Miami, for appellant.

      No brief filed for appellee.
   TAYLOR, J.

Appellee, Anchors Aweigh Marine, Inc., sued appellant, Remington Financial Group, Inc., alleging fraud and violation of Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) in connection with their consulting agreement. Appellant moved to compel arbitration and stay the case pending arbitration. The trial court granted the motion but ordered that the arbitration occur in Florida, instead of Arizona, although the arbitration clause provided for arbitration in Arizona and appellee did not move to strike the venue provision. Appellant seeks reversal of the portion of the order requiring that arbitration take place in Florida.

We agree with appellant that the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, controls over the arbitration clause at issue in the case and that the trial judge erred in unilaterally changing a portion of the arbitration provision. See BDO Seidman, LLP v. Bee, 970 So.2d 869 (Fla. 4th DCA 2007) (holding that trial court was required to enforce arbitration clause as it was written since it was not unconscionable as a whole). We affirm the portion of the trial court’s order compelling arbitration in lieu of litigation, but reverse the portion of the order requiring arbitration in Florida.

Affirmed in pari, Reversed in part, and Remanded.

MAY and LEVINE, JJ., concur.


author: DAMOORGIAN, J.

text:
    STATE of Florida, Appellant, v. Michael WATERMAN, Appellee.
    No. 4D08-415.
    District Court of Appeal of Florida, Fourth District.
    July 1, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellee.
   DAMOORGIAN, J.

The State of Florida timely appeals the trial court’s downward departure sentence imposed on Michael Waterman on a charge of escape. In this appeal, the State argues that the trial court erred in granting Waterman a downward departure sentence pursuant to section 921.0026(2)(j), Florida Statutes (2008), because the record shows that his escape charge was not an isolated incident, one of the requirements for a mitigated sentence under that subsection of the statute. We agree and vacate Waterman’s sentence on the charge and remand for resentencing.

By way of background, Waterman was charged with one count of escape, as well two counts of battery on a law enforcement officer and four misdemeanors, including a DUI. He entered an open no contest plea to all charges and moved to be sentenced as a youthful offender. His sentencing scoresheet showed a lowest permissible prison sentence of 23.625 months. The scoresheet also showed that Waterman has a criminal record consisting of misdemeanor charges for possession of cannabis, battery, petit theft, and trespass, and one felony charge for aggravated battery with a deadly weapon. In addition, defense counsel proffered that Waterman had a prior DUI conviction within twelve months of his current charges, although this conviction does not appear on his scoresheet.

At the conclusion of the sentencing hearing, the State recommended that Waterman be sentenced to five years in prison. The defense requested a youthful offender sentence consisting of a term of probation. With respect to the escape charge, the trial court denied the motion for a youthful offender sentence, and instead granted a downward departure, withheld adjudication, and sentenced Waterman to six months of community control followed by six and one-half years of drug offender probation. This downward departure sentence was based on the trial court’s determination that the escape was committed in an unsophisticated manner and was an isolated incident for which Waterman had shown remorse. The trial court characterized Waterman’s criminal record as “a serious background,” “a terrible juvenile record,” and a “[b]ad record.” Nevertheless, the court expressed its desire to keep Waterman out of the adult prison system because “[h]e is not going to come out better.” The State objected to the downward departure sentence.

The State argues that the trial court erred in granting Waterman a downward departure sentence because his escape charge was not an isolated incident. Waterman contends that all of his prior crimes occurred while he was a juvenile, so they should not be considered when determining whether his present crime was an isolated incident under section 921.0026(2)©, Florida Statutes (2008).

The imposition of a downward departure sentence is a two-step process, described as follows:

First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1). Legal grounds are set forth in case law and statute, and facts supporting the ground must be proved at trial by a preponderance of the evidence. This aspect of the court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling. ... Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case.

Banks v. State, 732 So.2d 1066, 1067-68 (Fla.1999) (citations omitted). Section 921.0026(2)(j), Florida Statutes (2008), permits a trial court to depart from the lowest permissible sentence when “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” To support a downward departure based on this particular mitigator, all three elements must be shown: (1) the crime was committed in an unsophisticated manner, (2) the crime was an isolated incident, and (3) the defendant has shown remorse. State v. Gaines, 971 So.2d 219, 220 (Fla. 4th DCA 2008).

The second element of the miti-gator — that the crime was an isolated incident — is the focus of this appeal. Neither the legislature nor the courts have established a bright-line rule for determining whether an offense is an isolated incident. See id. at 221. Instead, the courts have set forth the standard that “[a] defendant’s extensive prior criminal record precludes a showing than an offense was ‘an isolated incident.’ ” State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005); see, e.g., Gaines, 971 So.2d at 221 (where the defendant had eighteen prior convictions); State v. Stephenson, 973 So.2d 1259, 1263-64 (Fla. 5th DCA 2008) (where the defendant had at least seventeen prior convictions). This standard applies even if the defendant’s record does not include the same offense for which he is presently being sentenced. Ayers, 901 So.2d at 945; State v. Knox, 990 So.2d 665, 669 (Fla. 5th DCA 2008).

A trial court is not, however, precluded from giving a defendant a downward departure sentence just because the defendant has any prior criminal history. See, e.g., State v. Fontaine, 955 So.2d 1248, 1251 (Fla. 4th DCA 2007) (Warner, J., concurring) (the defendant’s current offense was an isolated incident where his criminal record included two misdemeanors that were committed ten years earlier); State v. Randall, 746 So.2d 550, 552 (Fla. 5th DCA 1999) (the defendant’s current offense was an isolated incident where he had only one prior criminal conviction).

Thus, the issue for this Court is whether Waterman’s criminal history is so extensive that it precludes a downward departure sentence under section 921.0026(2)(j), Florida Statutes (2008). Waterman’s history consists of at least four misdemeanors, a felony aggravated battery with a deadly weapon for which he was sentenced about two years before he committed the current offenses, and a DUI that occurred less than a year before the current offenses. On one hand, his history is certainly not as extensive as the defendants in Ayers and Gaines, and the escape and accompanying charges were his first criminal charges as an adult. Nevertheless, his history is distinguishable from the defendants’ histories in Fontaine and Randall because he has more than just one or two misdemeanor charges on his record. In addition, his history shows an emerging pattern of alcohol-related crimes, in that his current escape charge arose out of his second arrest for DUI within a year.

Waterman’s record is more similar in scope to the defendant’s record in State v. Tice, 898 So.2d 268 (Fla. 5th DCA 2005). In Tice, the defendant’s scoresheet indicated that he was previously convicted of resisting an officer without violence, two violations of probation, aggravated battery with a deadly weapon, and fleeing or attempting to elude a police officer. Id. at 269. Thus, the defendant’s record fell somewhere in the middle of the spectrum of criminal records, where on one end lies the defendant with a clearly excessive record, and on the other end lies a defendant with no prior criminal record. The Fifth District Court of Appeal held that the defendant’s record, while mid-spectrum, precluded his current offense from being labeled “isolated.” See id. Thus, the statutory mitigator did not apply. Id. We agree with that analysis, and hold that Waterman’s record is too extensive for his escape charge to be labeled “isolated” under section 921.0026(2)(j), Florida Statutes (2008).

Accordingly, there is not competent, substantial evidence to support the trial court’s ruling that Waterman’s escape charge was an isolated incident. His criminal history precludes him from receiving a downward departure sentence under section 921.0026(2)(j), Florida Statutes (2008). Moreover, his argument that one of the other statutory mitigators might apply is not supported by the record. Thus, the trial court erred in departing downward from the sentencing guidelines to sentence Waterman on Count 1, escape. We reverse Waterman’s downward departure sentence for Count 1 and remand for re-sentencing.

Reversed and Remanded.

STEVENSON and HAZOURI, JJ., concur.

      . The State does not contest that Waterman committed the escape in an unsophisticated manner. The State does contend that Waterman did not show remorse for the escape, but admits that it did not preserve this issue for appellate review.


author: KHOUZAM, Judge.

text:
    STATE of Florida, Appellant, v. K.R.G., Appellee.
    No. 2D08-1260.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    No appearance for Appellee K.R.G.
   KHOUZAM, Judge.

The State appeals a disposition order in which adjudication was withheld for a delinquent act that was committed by K.R.G. on December 7, 2007. The State correctly asserts that the disposition was illegal because the juvenile court refused to comply with the statutory requirements concerning the revocation of K.R.G.’s driver’s license. See State v. S.S., 8 So.3d 425 (Fla. 2d DCA 2009). The juvenile court did not have discretion to forego the dictates of section 322.056(l)(a)(l), Florida Statutes (2007), which required it to direct the Department of Highway Safety and Motor Vehicles to revoke or to withhold issuance of KR.G.’s driver’s license or driving privilege for a period of “[n]ot less than 6 months and not more than 1 year” on her first-time violation of chapter 893. In S.S., as in this case, the juvenile committed the delinquent act of marijuana possession in violation of the 2007 statutes, and the juvenile court withheld adjudication, placed the juvenile on probation, and declined to comply with the mandatory provisions of section 322.056(l)(a)(l). As in S.S., the court was required to comply with the statute. Accordingly, we reverse the disposition order and remand the matter to the juvenile court for the entry of an order directed to the Department as required by section 322.056(l)(a)(l).

Reversed and remanded.

LaROSE and CRENSHAW, JJ., Concur.


text:
    Calvin POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3426.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.
   KHOUZAM, Judge.

Calvin Powell appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. Because the postconviction court correctly denied Powell’s motion as facially insufficient, we affirm.

We note, however, that the court also sought to deny the motion on its merits by attaching record excerpts to refute Powell’s assertion that identification was a genuinely disputed issue in his case. This was error.

Rule 3.853(c)(2) states that upon receipt of the motion, the court shall review the motion and deny it if it is facially insufficient. A court may not summarily deny a rule 3.853 motion even when the record conclusively shows that the defendant is not entitled to relief. Zollman v. State, 820 So.2d 1059, 1063 n. 2 (Fla. 2d DCA 2002). If the motion is facially sufficient, the court must order a response. Id. Once the response is received, the court may enter an order on the merits of the motion or set the motion for hearing. Id.

Accordingly, we affirm the postconviction court’s denial of the motion because it is facially insufficient. Our affirmance is without prejudice to Powell’s right to file a facially sufficient rule 3.85B motion. See, e.g., Murray v. State, 978 So.2d 176 (Fla. 2d DCA 2007); Harvey v. State, 925 So.2d 1111 (Fla. 2d DCA 2006); Scarborough v. State, 906 So.2d 379 (Fla. 2d DCA 2005).

Affirmed.

WALLACE and CRENSHAW, JJ., Concur.


author: COBB, W., Senior Judge.

text:
    Jeffrey M. KING, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3553.
    District Court of Appeal of Florida, Fifth District.
    July 10, 2009.

      James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COBB, W., Senior Judge.

The appellant, Jeffrey Michael King, was convicted of aggravated assault on Jeffrey Lee King in violation of section 784.021(1), Florida Statutes (2007), and of animal cruelty in the death of a dog in violation of section 828.12(2), Florida Statutes (2007). The charges arose as the result of an altercation between JMK and King at the latter’s home.

At trial there were few conflicts in the testimony as to the factual events. JMK did not testify. King’s version was that he forcefully ejected JMK from his home after an argument. Apparently King’s dog, an Akita and German Shepherd mix, went outside of the home at the same time. JMK’s teenage son, Kyle, who was staying at King’s home with his mother, was also present during the incident. Both King and Kyle testified that the dog had never bitten anyone and did not growl or bark at JMK inside the house. A man named Burke, who had driven JMK to the home, was parked outside in his SUV waiting for him.

Some thirty seconds after King had closed the door behind JMK, he and Kyle heard the dog yelp outside. King opened the front door and the dog, whimpering and dripping blood from a chest wound, came limping back into the house and died within a matter of minutes. None of the witnesses — King, Kyle, or Burke — heard any disturbance prior to the dog’s yelp.

After letting the dog back into the house, King went outside and approached Burke’s vehicle. JMK was sitting in the passenger side of the SUV with the door closed and the window rolled up. King angrily struck the windshield with his fist and yelled at JMK to get out of the vehicle. The testimony of King and Burke was in conflict as to whether the SUV was stationary or backing up at this point in time. It is undisputed, however, that at that point JMK brandished an open pocket knife with a four or five inch blade and asked King, “[Y]ou want some too.” King testified that he was in fear that JMK would exit the vehicle and use the knife on him. JMK then told Burke to leave, and they drove away.

JMK raises three issues on appeal, challenging: (1) the trial court’s rejection of his request for a jury instruction on misdemeanor animal cruelty as a necessary lesser included offense of felony animal cruelty; (2) the trial court’s refusal to charge the jury on self-defense in respect to the animal cruelty count; and (3) the trial court’s denial of his motion for judgment of acquittal as to aggravated assault perpetrated against King.

The first issue involves construction of section 828.12, Florida Statutes, which provides in relevant part:

(1) A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both.
(2)A person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, is guilty of a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both.

§ 828.12(l)-(2), Fla. Stat. (2007). Subsection (1), the misdemeanor provision, criminalizes the unnecessary killing of an animal. Subsection (2), the felony provision, proscribes an intentional act resulting in an animal’s cruel death. The Florida Standard Jury Instructions lend no support to appellant’s argument. See In re Standard Jury Instructions in Criminal Cases-Report No. 2007-03, 976 So.2d 1081, 1096 (Fla.2008) (listing no lesser included offenses for felony animal cruelty); Welsh v. State, 850 So.2d 467, 469 (Fla.2008) (quoting Welsh v. State, 816 So.2d 175, 176-77 (Fla. 1st DCA 2002)). As pointed out by the State, it is conceivable that an animal could be necessarily killed in a cruel manner; this would violate subsection (2) of the statute (felony) but not subsection (1) of the statute (misdemean- or). See State v. Wimberly, 498 So.2d 929, 932 (Fla.1986) (“A ‘necessarily lesser included offense’ is, as the name implies, a lesser offense that is always included in the major offense.”) Accordingly, we find no merit in the appellant’s argument in regard to a lesser included offense.

The second issue raised by the appellant presents more difficulty. We believe the case law supports his argument that he was entitled to a jury instruction on the issue of self-defense in regard to the animal cruelty charge. There was some evidence, albeit marginal, of self-defense. See Sipple v. State, 972 So.2d 912, 915-16 (Fla. 5th DCA 2007); Wright v. .State, 705 So.2d 102, 104-05 (Fla. 4th DCA 1998); Kilgore v. State, 271 So.2d 148, 152 (Fla. 2d DCA 1972).

JMK did not testify on his own behalf so there was no direct evidence of the physical encounter between him and the dog. The only trial evidence indicating that King’s dog bit JMK came in the form of testimony from one Dr. Mammone, who saw puncture marks on JMK’s lower left thigh two weeks after the incident. Dr. Mammone opined that the injury was consistent with JMK’s statement to him that he had been bitten by a dog. Despite the paucity of evidence in regard to the physical encounter between JMK and the dog, we believe the trial court should have given the requested instruction. A defendant is entitled to a jury instruction on the theory of his defense if there is any evidence in the record to support it. Arthur v. State, 717 So.2d 193, 194 (Fla. 5th DCA 1998). Therefore, the appellant is entitled to a new trial on the charge of animal cruelty.

In respect to the third issue, we have no difficulty in rejecting JMK’s contention that he could not be guilty of aggravated assault because he did not have the apparent ability to carry out his threat to knife King since the two were separated by the door and window of the SUV in which JMK was sitting. JMK’s reliance on our opinion in L.C. v. State, 799 So.2d 330 (Fla. 5th DCA 2001), is unjustified. In that case, the putative victim was separated from the threatening juvenile offender by a locked apartment door and there was no attempt or apparent ability to enter on the part of the defendant. All the victim had to do to avoid danger was simply stay inside behind a locked door and call the police, which she did.

In the instant case, the victim King was outside his home and it was in JMK’s control whether to exit the vehicle and attack King, who was standing within a few feet of the vehicle. The State rightly contends there was sufficient evidence that the victim in this case was reasonably put in fear of imminent violence from the knife-wielding defendant who had just stabbed King’s dog. See Willard v. State, 386 So.2d 869 (Fla. 1st DCA 1980).

We therefore affirm the appellant’s conviction for aggravated assault. We reverse his conviction for animal cruelty and remand for retrial of that charge.

AFFIRMED in Part; REVERSED in Part; and REMANDED.

EVANDER and TORPY, JJ., concur.

      . Given the similarity of the names of the defendant below (Jeffrey Michael King) and the putative victim of the aggravated assault (Jeffrey Lee King) we will refer to them respectively as JMK (or appellant) and King.


text:
    Vernon ROBINSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D09-2778.
    District Court of Appeal of Florida, First District.
    July 13, 2009.
    Vernon Robinson, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. Bowles v. McNeil, 34 Fla. L. Weekly D661, — So.3d-, 2009 WL 792457 (Fla. 1st DCA Mar. 27, 2009).

DAVIS, BROWNING, and THOMAS, JJ., concur.


text:
    Clint Martin STAGG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2440.
    District Court of Appeal of Florida, First District.
    July 13, 2009.
    Clint Martin Stagg, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied as premature. See Johnson v. State, 871 So.2d 294 (Fla. 1st DCA 2004).

KAHN, PADOVANO, and LEWIS, JJ., concur.


text:
    Derrick L. GRACE, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D09-0144.
    District Court of Appeal of Florida, First District.
    July 13, 2009.

      Derrick L. Grace, pro se, Appellant.
    Kathleen Von Hoene, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, for Appellee.
   PER CURIAM.

Derrick Grace seeks review of a final order dismissing his petition for writ of habeas corpus in which he challenged the calculation of his sentence by the Department of Corrections. We grant appellee’s motion to dismiss the proceeding as moot. Because official records indicate that Mr. Grace was released from prison during the pendency of this proceeding, the proceeding is moot. See Phillips v. McDonough, 962 So.2d 375 (Fla. 1st DCA 2007).

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


text:
    Walter N. RHODES, Jr., Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D08-5482.
    District Court of Appeal of Florida, First District.
    July 17, 2009.
    Walter N. Rhodes, Jr., pro se, Petitioner.
    Sarah J. Rumph, Acting General Counsel, and Anthony Andrews, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is granted and the final order of the circuit court is quashed. The cause is remanded for further proceedings pursuant to Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996).

WOLF, WEBSTER, and CLARK, JJ„ concur.


author: LAWSON, J.

text:
    Jermaine MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2328.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2009.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Jermaine Moore appeals his two convictions and sentences for resisting an officer without violence, arguing that the dual convictions violate double jeopardy where he fled from two officers in a single episode. With respect to this issue, the State properly concedes error. See Wallace v. State, 724 So.2d 1176 (Fla.1998). Moore also challenges his habitual felony offender (“HFO”) designation and sentence, arguing that the State did not timely serve its written notice of intent to seek an HFO sentence. With respect to this issue, the prosecutor announced his intent to seek an HFO sentence at the end of the trial, forty-three days before sentencing, in open court with Moore and his counsel present. Because Moore had actual notice of the State’s intent to seek HFO sentencing, and ample time to prepare for sentencing after having received this notice, the State’s failure to timely serve its written notice was harmless. See Massey v. State, 609 So.2d 598 (Fla.1992).

Accordingly we remand this matter to the trial court with directions to vacate one of the convictions and sentences. Resen-tencing is not required.

AFFIRMED IN PART; REMANDED WITH DIRECTIONS.

ORFINGER, J., and PLEUS, JR., R., Senior Judge, concur.

      . Although the court in Massey was dealing with the 1989 statute, the 2007 version applicable to Moore contains the same language. See § 775.084(3)(a)2„ Fla. Stat. (2007).


author: PER CURIAM. COHEN, J.,

text:
    KY McATEER INSURANCE AGENCY, INC., Appellant, v. Stephen N. D’AMICO, et al., Appellee.
    No. 5D08-2400.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2009.
    H. Clay Parker, of Parker & Associates, P.A., Altamonte Springs, for Appellant.
    Edward P. Jordan, II, of Edward P. Jordan, II, P.A., Minneola, for Appellee.
   PER CURIAM.

AFFIRMED. See Paul v. Johnson, 604 So.2d 883 (Fla. 5th DCA 1992).

SAWAYA, J., and COBB, W., Senior Judge, concur.

COHEN, J., concurs specially with opinion.

COHEN, J.,

concurring.

This appeal is from an order finding Stephen D’Amico, D’Amico & Associates, Inc., (hereinafter collectively referred to as “D’Amico”) and Cindy Neuschwanger not guilty of indirect criminal contempt and indirect civil contempt. The underlying dispute involved a non-compete agreement which prohibited D’Amico and Neuschwan-ger from soliciting or selling insurance and financial products within a twenty-five mile radius of the Ky McAteer Insurance Agency, located in Clermont, Florida. After the parties had entered into a settlement agreement, Ky McAteer successfully sought an order enforcing that agreement which required payment of certain sums and enjoined and prohibited D’Amico and Neuschwanger from engaging in the sale of insurance and financial products. That order was ultimately incorporated into a final judgment.

Subsequently, Ky McAteer filed a motion for contempt of court alleging D’Ami-co and Neuschwanger violated the order and judgment by engaging in the sale of insurance and financial products through a series of specified acts. The motion concluded, “Such conduct has resulted in Defendants selling a majority of their insurance products to customers residing well within the twenty-five (25) mile restriction.” A hearing was held on the motion for contempt over the course of two days. Because we have no transcript of those proceedings, the nature of our review is limited.

The majority opinion correctly cites Paul v. Johnson, 604 So.2d 883 (Fla. 5th DCA 1992), for the proposition that holding a person in contempt of a court order requires the language of the order to be clear and precise and the behavior of the person must clearly violate the order. The trial court found the phrase “engaging in the sale of insurance and financial products” to be ambiguous. However, the order adjudicating D’Amico and Neuschwan-ger not guilty of contempt went beyond any perceived ambiguity and addressed the merits of the claim. It found no proof that D’Amico and Neuschwanger accepted applications for insurance (or, presumably, for other financial products), from within the prohibited area. Because we have not been provided with a transcript of the hearing, the trial court’s order is presumed to be correct. See Eicoff v. Denson, 896 So.2d 795, 798 (Fla. 5th DCA 2005).

      . The prohibition was for a period of two years.


text:
    Jessie James BLACKHALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2757.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2009.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm appellant’s convictions and sentences. However, we remand with directions that the trial court enter a written order finding Appellant competent to proceed nunc pro tunc to the date that the trial court made its oral finding of competency. See Smith v. State, 967 So.2d 1002 (Fla. 5th DCA 2007); Molina v. State, 946 So.2d 1103, 1105, n. 1 (Fla. 5th DCA 2006).

AFFIRMED and REMANDED with Directions.

SAWAYA, PALMER and EVANDER, JJ., concur.


text:
    Antonio MARTELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4410.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2009.
    Oscar J. Rodriguez, of Law Offices of Oscar J. Rodriguez, Coral Gables, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Antonio Martell appeals the summary dismissal of his amended motion to vacate judgment and plea filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. The circuit court entered an order that found the motion to be facially insufficient because Martell failed to allege that he could not have ascertained the immigration consequences of his plea with the exercise of due diligence within the two-year limitation period of rule 3.850 and granted Martell leave to amend. Martell filed an amended motion that again failed to include that allegation, and the court dismissed the amended motion with prejudice. Because Martell’s motion was filed within two years of State v. Green, 944 So.2d 208, 218 (Fla.2006), Martell was not required to plead his inability to determine the immigration consequences of his plea. See Burrell v. State, 989 So.2d 713 (Fla. 1st DCA 2008). Accordingly, the order summarily dismissing Martell’s amended motion is reversed and the case is remanded for consideration on the merits.

REVERSED and REMANDED.

SAWAYA, EVANDER, JJ., and PLEUS, JR., R., Senior Judge, concur.


author: HAZOURI, J.

text:
    SUNTRUST BANK a/k/a Suntrust Banks, Inc., Appellant, v. Margaret HODGES, Appellee.
    No. 4D08-3452.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.

      Roberta G. Mandel of Stephens, Lynn, Klein, Lacava, Hoffman & Puya, P.A., Miami, and Houston S. Park, III, of Stephens, Lynn, Klein, Lacava, Hoffman & Puya, P.A., West Palm Beach, for appellant.
    Christopher M. Brown of Law Offices of Brown & Associates, P.A., Fort Lauder-dale, for appellee.
   HAZOURI, J.

Suntrust Bank appeals from the denial of its motion for relief from final judgment and its motion for rehearing on its motion for relief from final judgment. Margaret Hodges contends that this court lacks jurisdiction and this matter should be dismissed. We agree.

The underlying ease arises from a negligence action by Hodges against Suntrust asserting that she sustained personal injuries when she tripped and fell on an uneven sidewalk adjacent to Suntrust’s parking lot. As the matter proceeded, the trial court entered an order referring this case to non-binding arbitration pursuant to Florida Rule of Civil Procedure 1.820. The arbitrator rendered his decision on May 15, 2008, certifying service, and then filed it with the trial court on May 20, 2008. The arbitrator ruled in favor of Hodges, awarding her damages in the amount of $206,000.

On June 10, 2008, twenty-one days after the findings were filed, Hodges filed a motion for entry of a judgment in accordance with the arbitrator’s decision. She stated that, pursuant to Florida Rule of Civil Procedure 1.820(h), Suntrust had not filed a motion for trial de novo within the twenty days of service, and that the decision of the non-binding arbitrator was therefore final. The trial court granted Hodges’s motion and entered a final judgment.

On June 16, 2008, Suntrust filed its motion for relief from final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). In Suntrust’s motion for relief from final judgment, it asserted inter alia that counsel for Suntrust had inadvertently failed to place the motion for trial de novo on the firm’s “tickler” system and, accordingly, the trial court should grant relief based upon excusable neglect. On July 15, 2008, the trial court held a hearing on Suntrust’s motion finding no excusable neglect. It then entered an order on July 16, 2008, denying Suntrust’s motion for relief from final judgment.

On July 25, 2008, Suntrust filed a motion entitled Defendant, Suntrust Bank’s, Motion for Rehearing on Defendant, Suntrust Bank’s Motion for Relief from Final Judgment Pursuant to Fla. R. Civ. P. 1.540(b). On August 18, 2008, the trial court entered an order denying the motion for rehearing. It is from this order that Suntrust filed its notice of appeal on August 25, 2008. The notice of appeal from the order of July 16, 2008, is more than thirty days from the entry of the final judgment. This deprives us of jurisdiction.

Suntrust argues that its motion for rehearing filed on July 25, 2008, tolled the running of the thirty day period and that this court’s decision in City of Hollywood v. Cordasco, 575 So.2d 301 (Fla. 4th DCA 1991), supports its assertion. We disagree and find Cordasco inapplicable.

In Cordasco, the defendant filed a motion to vacate a default entered in favor of the plaintiff. This was filed before a judgment was entered. The trial court found that the defendant had not shown excusable neglect and initially denied the motion. The defendant filed a motion for rehearing. The opinion does not make clear whether it was filed before or after a default judgment was entered. The motion included affidavits that expanded on the defendant’s explanation of its neglect. The trial court also denied the motion for rehearing. On appeal, this court held:

Although a legally insufficient motion to vacate a default cannot be corrected as a matter of right by a motion for reconsideration or hearing [sic], a trial court does have the inherent discretional power to reconsider any order entered prior to the rendition of final judgment in the cause.

Id. at 302 (emphasis added) (citation omitted). Based upon this discretionary power, this court held “that the trial court may permit a party to cure a defective motion to vacate by filing a subsequent motion for rehearing which corrects the deficiency of the original motion to vacate.” Id. Because the motion for rehearing included the necessary affidavit to sufficiently establish excusable neglect, this court reversed the order denying the motion for rehearing.

Cordasco is not applicable to the circumstances here because in the instant case, the motions for relief were filed after the final judgment was entered. Thus, consideration of the motion for rehearing was not discretionary. Second, although Cordasco was reviewed by this court and it assumedly found jurisdiction, the opinion does not say whether there were any jurisdictional issues raised.

In Halpem v. Houser, 949 So.2d 1155 (Fla. 4th DCA 2007), this court held:

A party against whom judgment has been entered pursuant to the rule requiring entry of judgment when the party fails to move for a trial de novo within twenty days of service of the arbitrator’s decision is entitled to file a motion to vacate judgment under rule 1.540(a), Florida Rules of Civil Procedure. Preferred Mut. Ins. Co. v. Davis, 629 So.2d 259, 260 (Fla. 4th DCA 1993).

Halpern, 949 So.2d at 1157. See also Kalman v. Pasco-Hernando Surgical Assocs., P.L., 974 So.2d 1219, 1219 (Fla. 2d DCA 2008). However, in Intercoastal Marina Towers, Inc. v. Suburban Bank, 506 So.2d 1177 (Fla. 4th DCA 1987), this court held:

However, although appellants filed a timely motion for rehearing and the court actually considered it, there is no provision in the appellate rules for filing a petition to rehear an order entered upon a motion for relief under Florida Rule of Civil Procedure 1.540(b) and, therefore, rendition of said order is not affected by a motion for rehearing.

Id. at 1178 (citations omitted). See also Frantz v. Moore, 772 So.2d 581, 581 (Fla. 1st DCA 2000) (“Because a motion for rehearing of an order denying a motion for relief from judgment is not authorized, the motion for rehearing did not toll the time for filing a notice of appeal.”).

By dismissing this case for lack of jurisdiction, we need not reach the merits of the case. However, upon reviewing the record on appeal, we conclude the trial court did not err in denying Suntrust’s motion to set aside the judgment, as there was a failure on the part of Suntrust to demonstrate excusable neglect.

Dismissed.

FARMER and CIKLIN, JJ., concur.

      . There were no issues as to whether Suntrust had a meritorious defense or acted with due diligence.

      . Although Halpern and Preferred Mutual refer to rule subsection (a) on clerical mistakes, the opinions are discussing the application of rule 1.540(b) for excusable neglect.

      . Effective January 1, 2009, the Florida Supreme Court codified the following in Florida Rule of Appellate Procedure 9.130(a)(5), which states:
      (5) Orders entered on an authorized and timely motion for relief from judgment are reviewable by the method prescribed by this rule. Motions for rehearing directed to these orders will not toll the time for filing a notice of appeal.


text:
    Joseph ALEXIS, Appellant, v. STATE of Florida & Fort Pierce Police Department, Appellees.
    No. 4D08-3623.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.

      Joseph Alexis, Zephyrhills, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee State of Florida.
   PER CURIAM.

Appellant, Joseph Alexis appeals from an order denying his motion for return of certain property that was confiscated from him at the time of his arrest. The trial court granted his motion except for that portion concerning the return of confiscated currency. The trial court denied the motion as to the currency and ordered the Fort Pierce Police Department to remit to the clerk of the circuit court the sum of $575 representing mandatory court costs (“mandatory costs”) and $500 representing an appellate filing fee and transcript costs for an appeal previously filed by the appellant (“appellate costs”).

At the sentencing hearing, at which time the trial court initially imposed the mandatory costs, the appellant failed to object when the mandatory costs were announced in open court and he filed no motion pursuant to Florida Rule of Criminal Procedure 3.800(b) in that regard. Accordingly, this issue is not preserved for appellate review. See Sanders v. State, 710 So.2d 1052 (Fla. 1st DCA 1998).

With respect to the appellate costs, we agree with appellant’s argument because such items are discretionary in nature and as a result, the court should have given the defendant notice and an opportunity to be heard which it did not do. As such, this matter is remanded to the trial court with instructions to enter an order requiring the return of the appellant’s appellate costs totaling $500. Alternatively, the trial court may reimpose the appellate costs if the requirements of documentation, notice and opportunity for the appellant to be heard are met. See Gilchrist v. State, 938 So.2d 654 (Fla. 4th DCA 2006).

Reversed in part and remanded.

GROSS, C.J., WARNER and CIKLIN, JJ., concur.