author: WARNER, J.

text:
    Dorothea DANIELS, as Personal Representative of the Estate of Shea Daniels, deceased, Appellant, v. Jonathan GREENFIELD, M.D., Jonathan Greenfield, M.D., P.A., and Tenet St. Mary’s, Inc., Appellees.
    No. 4D08-3612.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.

      Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for appellant.
    Lawrence E. Brownstein of Lawrence E. Brownstein, P.A., West Palm Beach, for appellees Jonathan Greenfield, M.D. and Jonathan Greenfield, M.D., P.A.
    Robert S. Covitz and Norman M. Waas of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Fort Lauderdale, for appellee Tenet St. Mary’s, Inc.
   WARNER, J.

The personal representative of the estate of Shea Daniels appeals a summary judgment which determined that Daniels’s son, Javon Daniels, was not a survivor under the Wrongful Death Act, because at the time of Javon’s birth, his mother was married to another man, although the mother had not seen her husband for several years. We hold that under the unique circumstances of this case, the court erred in determining as a matter of law that the child is not a survivor in accordance with the wrongful death statute. We reverse.

Javon Daniels was born to Rozine Ce-rine and the decedent, Shea Daniels. Ro-zine had been married to Willie Washington in 1999, but they separated in 2000 when Washington moved away and joined the military. She met Shea in May 2000, and Javon was born in September 2001. Shea’s name was listed on the birth certificate as the father.

Shea and Rozine had a difficult relationship, but he supported Rozine and Javon by paying support of $50-70 per week. He also bought clothes for Javon. His mother, Dorothy, visited with Javon on occasion.

Rozine filed a petition to determine paternity and for child support against Shea in October 2004. Shea answered, demanding a DNA test, which was ordered but never conducted because Shea failed to appear. He was defaulted in the paternity proceeding, but a judgment establishing paternity was never entered. In November 2004, Rozine obtained a divorce from Willie Washington. The record does not contain a copy of the divorce decree.

Shea committed suicide in 2005, and his mother brought a wrongful death action on behalf of Javon against a psychiatrist and hospital. Both answered and claimed that Javon was not a survivor, because the presumption of legitimacy required that Willie Washington be deemed Shea’s legal father. Thus, Javon could not be a surviv- or of Shea.

During the proceedings, the plaintiff conducted a paternity test which showed that Shea was the biological father of Ja-von. Although the court questioned whether such a test should have been authorized, it had granted a continuance for the plaintiff to obtain the test. The test merely confirmed what the birth certificate already recorded. Shea was Javon’s father.

Despite the evidence supporting the fact that Shea was not only the biological father but also the only father that Javon knew, the court held that because Rozine was married to Willie Washington when Javon was born, the presumption of legitimacy required it to declare as a matter of law that Washington was Javon’s legal father in the wrongful death action. The court granted the motion, excluding Javon as a survivor of his biological father. It also refused a request to abate the wrongful death action to permit a paternity action to be instituted to declare Shea’s paternity of Javon. The personal representative appeals.

The personal representative argues that the trial court erred in refusing to allow her to prove that the decedent was Javon’s father, because resolution of paternity may occur in a wrongful death case. The ap-pellees contend that the trial court correctly granted summary judgment because the child was born during the mother’s marriage to another man who, by operation of law, was the legal father of the child and his parental rights had not been legally divested. We hold that the presumption is not a conclusive presumption and the issue of survivorship is to be determined in the wrongful death proceeding.

Florida’s Wrongful Death Act is codified in sections 768.16-768.26, Florida Statutes. The purpose of the Wrongful Death Act is to “shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.” § 768.17, Fla. Stat. See also Fla. Convalescent Ctrs. v. Somberg, 840 So.2d 998, 1008 (Fla.2003) (stating that purpose of the Act is “to provide recovery to those who need it, specifically the surviving spouse, children, and dependents of the decedent”) (citation omitted). The Act is remedial in nature and must be liberally construed. § 768.17, Fla. Stat.

The personal representative sought to recover damages on behalf of Javon under section 768.21, Florida Statutes, which permits a survivor to recover for loss of services and allows a minor child to recover damages for loss of parental companionship as well as mental pain and suffering. A “survivor” is defined under the Act as:

the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.

§ 768.18(1), Fla. Stat. A “minor child” is defined as a child “under 25 years of age, notwithstanding the age of majority.” § 768.18(2), Fla. Stat.

Two courts have considered and reached opposite conclusions on the issue of whether a child born during a marriage can maintain a claim as a survivor of a third party decedent where the decedent is the child’s biological father but the husband’s parental rights have never been divested. The Fifth District in Achumba v. Neustein, 793 So.2d 1013 (Fla. 5th DCA 2001), answered this question in the negative, while the Third District in Coral Gables Hospital, Inc. v. Veliz, 847 So.2d 1027 (Fla. 3d DCA 2003), concluded the opposite. We side with Veliz on the issue and find Achumba distinguishable on the facts from this case.

In Achumba, the personal representative, Achumba, brought a claim on behalf of her child, Smoot, under the Wrongful Death Act against a doctor for negligent medical treatment of the decedent, Honor, whom she alleged was the child’s biological father. The doctor moved for summary judgment because at the time of the child’s birth, the mother was married to another man, Beekford, and Beekford’s name was on the child’s birth certificate. The trial court granted summary judgment in favor of the doctor, and the majority affirmed. The court explained:

Because Smoot was born during the marriage of Achumba and Beekford, and Beekford is listed on Smoot’s birth certificate as the father, there is a presumption of paternity in favor of Beckford. Contino v. Estate of Contino, 714 So.2d 1210, 1214 (Fla. 3d DCA 1998). Under Florida law, Beekford is Smoot’s “legal father.” See Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305, 307 (Fla.1993). Hence, she was not, as asserted by Achumba, born “out of wedlock of the father.” To recognize Honor as Smoot’s father would necessarily impugn Beckford’s parental rights. A child’s legally recognized father has an unmistakable interest in maintaining the relationship with his child unimpugned. See id.; see also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

Id. at 1014-15 (emphasis supplied) (footnote omitted). The court opined that unless and until Beckford’s status as the legal father is changed Honor could not be recognized as the child’s father no matter what his biological relationship to her may be, as “Florida does not recognize dual fathership.” Id. at 1015. Moreover, the child’s paternity could not be resolved in the context of a wrongful death action, because chapter 742, Florida Statutes, is the exclusive remedy for establishing paternity in Florida and the husband’s due process rights as the child’s legal father were not considered in the pending wrongful death action.

In a cogent dissent, Judge Griffin doubted both “the accuracy and the wisdom of the premise on which the majority opinion is based.” Id. at 1016. She looked to this court’s opinion of In re Estate of Robertson, 520 So.2d 99 (Fla. 4th DCA 1988), in which we held that the illegitimate daughter of the decedent could inherit from his estate, even though her mother was married to another man at her birth. Judge Griffin argued:

If Robertson is correct that the existence of a legal father does not prevent a natural child from inheriting by intestate succession, the Wrongful Death Act should likewise be interpreted to allow the natural child to be a wrongful death claimant. Contrary to the view of the majority, allowing a child to share in the estate of the natural father through intestate succession or through a wrongful death proceeding in no way impugns or alters the legal father’s relationship with the child.

Id. at 1017. She also noted that practical considerations make it desirable for this issue to be raised and determined in the wrongful death proceeding, such as the shortness of the two-year statute of limitations for bringing a wrongful death claim. She criticized the judicial rule requiring the child to choose between fathers, at least one of whom is deceased, by undertaking a paternity suit to which the legal father, if living, must be joined as a real party in interest. She maintained, “There is no reason the relationship of the natural child to the wrongful death victim cannot simply be alleged and proved up in a wrongful death action.” Id.

Adopting Judge Griffin’s position and conflicting with the majority in Admmba, the Third District in Veliz held that the determination of paternity for purposes of survivorship in a wrongful death action could be made by the jury. The court noted that the defendant hospital could not show how it could be prejudiced by determining the issue in the context of a wrongful death action. Although the court certified conflict, the case was dismissed in the supreme court.

We begin our own analysis with the statutory text. A survivor “includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.” § 768.18(1), Fla. Stat. The “child born” can refer only to a biological child. “Out of wedlock” means that the father and mother of the child were not married. Thus, the clear meaning of the phrase is that a biological child born to a father not married to the child’s mother may be a “survivor” under the wrongful death act if the biological father recognized a responsibility of the child’s support. The statute does not require a legal determination of paternity: It merely requires recognition by the biological father of a responsibility of support. There is no presumption of legitimacy within the statute which would preclude Javon from his ability to claim loss based upon his survivorship status. Thus, the statute appears to benefit the child by permitting recovery from the biological father without undermining the relationship that the child might have with a “legal father.” Under the clear language of the statute, the motion for summary judgment should not have been granted, because Javon is a “survivor” of Shea based upon the evidence of Shea’s support of Javon and the DNA test, as well as the birth certificate listing Shea as the father.

Admmba is distinguishable from the present case, because the birth certificate in Admmba listed the husband of the mother as the child’s father. It is the listing of the father on the birth certificate which provides the presumption of legitimacy. Indeed, in Department of Health & Rehabilitative Services v. Privette, 617 So.2d 305, 307 (Fla.1993), the court equated the “legal father” with “the one listed on the birth certificate.” In this case, Shea, and not the husband, is listed as the father of the child. Thus, according to Privette, Shea is both the biological father and the legal father of Javon.

Some confusion has occurred in supreme court analysis, because in Florida Department of Revenue v. Cummings, 930 So.2d 604 (Fla.2006), in discussing the necessity of notice to the legal father of pending actions for paternity between a mother and a putative father, the court said, “The issue before us is whether a legal father He., a man married to the child’s mother at the time of birth) is an indispensable party in a paternity action .... ” Id. at 605 (emphasis supplied). However, it is clear from the analysis that the court assumes that the legal father and the husband of the mother are the same, and the husband’s name will be on the birth certificate of the child, citing section 382.013(2)(a), Florida Statutes (2000) (“If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.”). Id. at 608. Paternity proceedings may require that the “legal” father be removed from the birth certificate.

In this case, the birth certificate lists Shea as Javon’s father. Therefore, on the same analysis as the Cummings court required, Shea’s interest as Javon’s legal father cannot be ignored. Cummings states that the legal father, i.e., the father listed on the birth certificate, is an indispensable party to paternity proceedings. Here, Washington, the husband, was not the “legal father” of Javon. Therefore, he was not an indispensable party to these survivorship proceedings.

The appellees suggest that the statute requiring the husband’s name on the birth certificate trumps the listing of Shea’s name on the birth certificate. In a case where the biological father was listed on the birth certificate, instead of the husband of the mother, the Second District Court of Appeals agreed that the listing was in error. See S.B. v. D.H., 736 So.2d 766 (Fla. 2d DCA 1999). Under such circumstances, it held that “a putative biological father, cannot maintain this paternity action concerning a child conceived by a married woman when both the married woman and her husband object.” Id. at 767 (emphasis supplied). Here, of course, the husband does not object and in fact is divorced from the mother.

Finally, historically the presumption of legitimacy of a child born during wedlock is a strong one, aimed at preventing a husband of the mother avoiding responsibilities to the child. In Eldridge v. Eld,ridge, 153 Fla. 873, 16 So.2d 163, 163-64 (1944), the court discussed the historical underpinnings:

Where the legitimacy of a child born in wedlock is questioned by the husband and reputed father, one of the strongest rebuttable presumptions known to the law is required to be overcome before the child can be bastardized. At common law the presumption was at one time virtually conclusive. Law of Illegitimacy by Hooper, p. 202; Anon v. Anon (1856), 22 Beav. 481, 23 Beav. 273. The rule was relaxed later in England and the latter case was overruled in 1903 in The Poulett Peerage A.C. 395. See also Hargrave v. Hargrave, 9 Beav. 552, 50 English Reprint 458. The rule is well established in this country that the husband may make the attack, but in so doing he must overcome the strong presumption of legitimacy by clear and satisfactory testimony. Marriage, Divorce, Separation and Domestic Relations by Schouler (6d) Vol. 1, p. 760, Lay v. Fuller, 178 Ala. 375, 59 So. 609; 7 C.J. 953, 10 C.J.S., Bastards, § 3, page 18, § 15, page 76. The better rule is that the husband is not required to prove his contention beyond all reasonable doubt, yet his proof must be sufficiently strong to clearly remove the presumption of legitimacy.

Later in Sacks v. Sacks, 267 So.2d 73, 75 (Fla.1972), in a divorce proceeding involving the husband’s attack on the legitimacy of his child, the court noted that the presumption of legitimacy should not “obscure the true issue before the Court; that is, the child. The child’s welfare is paramount. Too often this is forgotten.” See also Blitch v. Blitch, 341 So.2d 251 (Fla. 1st DCA 1976).

Thus, the presumption of legitimacy is just that — a presumption. It is a presumption which operates in family law settings to prevent a husband’s rights from being terminated and for the child’s best interests in his or her legitimacy and support from his or her father. If the presumption of legitimacy has any place in wrongful death survivorship questions, it may be overcome by clear and strong evidence to rebut that presumption. Here, there is ample evidence, including the mother’s attestation of Shea’s fatherhood, the birth certificate, and the DNA results. It is certainly not in the child’s best interest to blindly apply this presumption of legitimacy to these proceedings and prevent the personal representative from asserting claims on behalf of Javon for the loss of his father, the only father he has ever known.

Because the trial court erred in determining that Javon was not a survivor of Shea, we reverse. The issue of survivor-ship has not been finally determined, as no competing or cross-motion for summary judgment has been made. We therefore remand for further proceedings to resolve the issue either pretrial or before the jury as occurred in Veliz.

POLEN and TAYLOR, JJ., concur.

      . Although we asked at oral argument, neither party could tell us whether the decree of divorce had any recitation regarding Javon or any child born of the marriage. If there was, then this may be evidence which might be presented to the jury on the issue of survivor-ship.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Antonio LING, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1251.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2009.

      Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his conviction for possession of firearm by a convicted felon. The trial court had bifurcated the proceeding on this offense. Appellant argues on appeal that the trial court erred in denying his motion for judgment of acquittal because the state failed to establish the identity of Appellant as the perpetrator of the prior felonies. We agree and reverse the conviction and sentence for the possession of firearm by a convicted felon offense. We affirm Appellant’s remaining convictions and sentences.

As part of its prima facie case in prosecuting Appellant for possession of a firearm by a convicted felon, the state must prove that the historical fact of a prior felony conviction and the identity of the Appellant as the perpetrator. See Killingsworth v. State, 584 So.2d 647 (Fla. 1st DCA 1991). Mere identity of the name appearing on the prior judgment and the name of the defendant on trial does not satisfy the states obligation to present affirmative evidence that they are the same person. Id. at 648.

Although the state argued that Appellant was identified by his date of birth as well as his name, the certified judgments and sentences do not contain a date of birth for the perpetrator. The state also presented testimonial evidence of Appellants alleged arrest fingerprints matching the fingerprints on the judicially noticed judgments and sentences. However, the trial court sustained Appellants objection to the introduction of the actual arrest fingerprints into evidence. Thus, while a witness testified that the fingerprints matched, the state failed to prove that it was Appellants fingerprints on the arrest record. The trial witness did not generate the fingerprints on the arrest record and did not see the person identified by the arrest record actually being printed. Therefore, the state needed to produce additional evidence that Appellant was the perpetrator of the prior felonies but failed to do so. Accordingly, a reasonable trier of fact could not find the existence of the elements of the crime beyond a reasonable doubt. See Pagan v. State, 830 So.2d 792 (Fla.2002); Banks v. State, 732 So.2d 1065 (Fla.1999).

AFFIRMED in part; REVERSED in part; and REMANDED for the trial court to discharge Appellant from the possession of a firearm by a convicted felon offense.

ALLEN, PADOVANO and BROWNING, JJ., concur.


author: ROBERTS, J.

text:
    Joseph Allen HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5499.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2009.
    Nancy A. Daniels, Public Defender, and Alice B. Copek, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; Trisha Meggs Pate, Chief-Criminal Appeals; and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   ROBERTS, J.

In this criminal appeal, the appellant challenges his conviction for attempted lewd and lascivious molestation on a person under 12 years of age by an offender over 18 years of age, in violation of section 800.04(5)(b), Florida Statutes (2007). The appellant argues that the trial court erred in giving the jury an attempt instruction because the evidence proved either a completed crime or no crime at all. After carefully reviewing the evidence, we agree and reverse and remand.

Florida Rule of Criminal Procedure 3.510(a) provides in pertinent part that a trial court shall not instruct a jury on an attempt charge if there is no evidence to support the attempt and the only evidence proves a completed crime. If a trial court does so over a defendant’s objection, the trial court abuses its discretion. Cf. Brock v. State, 954 So.2d 87, 88 (Fla. 1st DCA 2007) (“When a judge gives an instruction on a lesser-included offense over a defendant’s objection and no evidence has been presented to support that instruction, the judge abuses his or his discretion, and error occurs.”).

In the instant case, the appellant was charged with lewd or lascivious molestation. At trial, the only evidence presented proved either completed lewd or lascivious molestation or no crime at all. Nevertheless, over the appellant’s objection, the trial court gave an instruction on attempted lewd or lascivious molestation. This was error.

By finding the appellant guilty of attempted lewd and lascivious molestation, the jury necessarily found the appellant not guilty of the charged lewd and lascivious molestation. Accordingly, the prohibition against double jeopardy prohibits the State from retl’ying the appellant on that charge. See id. at 88-89. On remand, the State may only retry the appellant for battery in violation of section 784.03, Florida Statutes (2007), the only other lesser-included offense on which the jury was instructed. See id.

We REVERSE the appellant’s conviction for attempted lewd and lascivious molestation and REMAND for further proceedings consistent with this opinion.

HAWKES, C.J., and PADOVANO, J., concur.


text:
    Lorenzo COLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3544.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2009.
    Lorenzo Cole, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Greg D. HOLLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3615.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2009.
    Greg D. Holland, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. RApp. P. 9.141(c)(4)(B).

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


text:
    Jack Stephens LEGG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0363.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2009.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   ROBERTS, J.

The petitioner is charged with two counts of sale of marijuana and two counts of possession of marijuana with intent to sell. As a result of the criminal proceeding, the trial court found that the petitioner was incompetent to proceed with trial and placed him on conditional release. Additionally, the trial court found that the petitioner was “required to surrender his Florida Driver’s License pursuant to [section] 322.2505 [Florida Statutes].” We grant the petition for writ of certiorari and quash the order of the trial court directing the petitioner to surrender his driver’s license.

Section 322.2505, Florida Statutes (2008), provides:

Whenever a person is adjudicated mentally or physically incapacitated pursuant to s. 744.331 the court shall require such person to surrender to it all of the driver’s licenses held by such person, and the court shall forward the same, together with a record of the adjudication to the department.

Section 744.331, Florida Statutes (2008), provides the procedures for determining incapacity under the Florida Guardianship Law. Section 916.106(11), Florida Statutes (2008), determines competency for the purpose of trial and provides:

“Incompetent to proceed” means unable to proceed at any material stage of a criminal proceeding, which shall include trial of the case, pretrial hearings involving questions of fact on which the defendant might be expected to testify, entry of a plea, proceedings for violation of probation or violation of community control, sentencing, and hearings on issues regarding a defendant’s failure to comply with court orders or conditions or other matters in which the mental competence of the defendant is necessary for a just resolution of the issues being considered.

“When the language of a statute is clear, unambiguous, and conveys clear and definite meaning, there is no reason for resorting to the rules of statutory interpretation and construction, and the statute must be given its plain and obvious meaning.” Vreuls v. Progressive Employer Servs., 881 So.2d 688, 690 (Fla. 1st DCA 2004). Section 322.2605, Florida Statutes (2008), plainly provides that the court shall require a person adjudicated incompetent pursuant to section 744.331 to surrender his or her driver’s license. It references no other statute.

The state argues that the procedures for determining incompetency under sections 744.331 and 916.106 are similar. This ignores the fact that these adjudications for incompetency serve very different purposes. Even if identical standards were required for both statutes, it does not obviate the need to follow the statute.

The writ is GRANTED and the Order Directing Defendant to Surrender Driver’s License Pursuant to Florida Statute 322.2505 is

QUASHED.

WEBSTER and BENTON, JJ., concur.


author: CLARK, J.

text:
    Jeffrey T. LYNCH, Appellant, v. SOLID WASTE HAULERS FLORIDA, LLC, and Payroll Management, Inc., d/b/a PMI, Appellees.
    No. 1D09-0100.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2009.

      John Westberry, Pensacola, for appellant.
    Tanya Mihelich Davis and Allison H. Hauser of Marks Gray, P.A., Jacksonville for Appellees.
   CLARK, J.

Appellant challenges the trial court’s order that, inter alia, directs the parties to comply with an arbitration agreement. Appellant claims Appellees each waived their respective rights to arbitration by actively participating in litigation. Specifically, Appellant argues that Payroll Management, Inc., waived its arbitration right by filing a motion to dismiss, and Solid Waste Haulers of Florida, LLC, waived its right to arbitration by filing an answer that failed to include a demand for arbitration, prior to either entity’s filing a motion to compel arbitration. We find that Appellees did not engage in litigation that would waive their rights to arbitration, and we therefore affirm the trial court’s order to the extent it directs the parties to comply with the arbitration agreement.

“Waiver” has been defined as “the voluntary and intentional relinquishment of a known right, or conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Fin. Serv, Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). When determining whether waiver has occurred in the arbitration agreement context, the question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the right to arbitrate. See id. In the instant case, neither Solid Waste Haulers’ nor Payroll Management’s actions constituted a waiver of the right to arbitration. See Bouati v. Clark, 975 So.2d 440 (Fla. 2nd DCA 2007) (where a defendant files an answer and raises an arbitration agreement as an affirmative defense, defendant does not waive his right to arbitration); see also Houchins v. King Motor Co. of Fort Lauderdale, 906 So.2d 325 (Fla. 4th DCA 2005) (internal citations omitted) (filing a motion to dismiss for failure to state a cause of action does not alone constitute active participation in litigation that would result in a waiver of a right to arbitration, regardless of whether such motion was filed prior to a motion to compel arbitration). As such, we affirm the trial court’s order to the extent it directs the parties to comply with the arbitration agreement.

AFFIRMED.

BENTON and LEWIS, JJ., concur.


author: THOMAS, J.

text:
    Vincent L. CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0092.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2009.
    Vincent L. Cummings, pro se, Appellant.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant seeks review of the trial court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial in all respects.

Additionally, due to Appellant’s apparent abuse of the legal process by his repeated pro se filings raising similar or identical attacks on his convictions and sentences, this court issued an order directing Appellant to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his conviction and sentence”). Appellant’s response to the order does not provide a legal basis to prohibit the imposition of sanctions.

As such, because it is apparent that Appellant’s continued and repeated attacks on his convictions and sentences have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Fourth Judicial Circuit Court case number 94-7184. The Clerk of the Court is directed not to accept any future pro se filings concerning this case unless they are filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for disciplinary procedures, as provided in section 944.279, Florida Statutes.

AFFIRMED.

DAVIS and BROWNING, JJ., concur.


text:
    James Earl RIPPY, Appellant, v. James SHEPARD, Appellee.
    No. 1D07-6626.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2009.

      Robert J. Healy, Jr., of Salter, Healy, LLC, St. Petersburg, for Appellant.
    Jennifer Cates Lester of Dell Graham, PA, Gainesville, for Appellee.
    Caryn L. Bellus and Sharon C. Degnan of Kubicki Draper, P.A., Miami for Amicus Florida Defense Lawyer’s Association.
   ROBERTS, J.

The appellant, James Earl Rippy, appeals a final order granting a motion to dismiss his complaint against the appellee, James Shepard. The issue below and in the instant case is whether a farm tractor is a dangerous instrumentality. We find that it is not and affirm the order of dismissal.

Because the issue of whether a farm tractor is a dangerous instrumentality is one of law, we review the issue de novo. See Emerald Corr. Mgmt. v. Bay County Bd. of County Comm’rs, 955 So.2d 647, 651 (Fla. 1st DCA 2007).

The dangerous instrumentality doctrine finds its roots in the law of master and servant, and principal and agent. Canull v. Hodges, 584 So.2d 1095, 1097 (Fla. 1st DCA 1991). “The master who entrusts a servant with a dangerous agency ... is liable for any injury occasioned by its negligent use.” Id. The doctrine states that “the owner of an instrumentality which [has] the capability of causing death or destruction should in justice answer for misuse of this instrumentality by anyone operating it with his knowledge and consent.” Meister v. Fisher, 462 So.2d 1071, 1072 (Fla.1984). In Florida, the doctrine is invoked only by a judicial decision that “an instrumentality of known qualities is so peculiarly dangerous in its operation” as to justify the doctrine. Canull, 584 So.2d at 1097. In 1920, the doctrine was extended to include automobiles. See S. Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). In doing so, the court reasoned:

The principles of common law do not permit the owner of an instrumentality that is not dangerous per se, but is peculiarly dangerous in its operation, to authorize another to use such instrumentality on the public highways without imposing upon such owner liability for negligent use. The liability grows out of the obligation of the owner to have the vehicle, that is not inherently dangerous per se, but peculiarly dangerous in its use, properly operated when it is by his authority on the public highway.

Anderson v. S. Cotton Oil Co., 73 Fla. 432, 74 So. 975, 978 (1917). Therefore, the doctrine “imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.” Aurbach v. Gallina, 753 So.2d 60, 62 (Fla.2000).

The appellant argues that a farm tractor is a dangerous instrumentality because the legislature defines a farm tractor as a “motor vehicle” and extensively regulates their use. This argument is without merit. Although a farm tractor meets the statutory definition of a “motor vehicle,” at least three of our sister courts have held that statutory definitions of “motor vehicle” are not controlling in determining whether a device is a dangerous instrumentality. See §§ 316.003(12) & 322.01(19), Fla. Stat. (2008); Festival Fun Parks, LLC v. Gooch, 904 So.2d 542, 545-46 (Fla. 4th DCA 2005) (holding that the statutory definition of motor vehicle is not controlling); Edwards v. ABC Transp. Co., 616 So.2d 142, 143 (Fla. 5th DCA 1993) (holding that a trailer is not a dangerous instrumentality notwithstanding the fact that it meets the statutory definition of a motor vehicle); Harding v. Allen-Laux, Inc., 559 So.2d 107, 108 (Fla. 2d DCA 1990) (holding that, although it does not meet the statutory definition of a motor vehicle, a forklift is a dangerous instrumentality).

Moreover, farm tractors are not extensively regulated by the legislature. Cf. S. Cotton Oil Co., 80 Fla. at 456, 86 So. at 634 (“It is idle to say that the Legislature imposed all these restraints, regulations, and restrictions upon the use of automobiles, if they were not dangerous agencies which the Legislature felt it was its duty to regulate and restrain for the protection of the public.”). The only requirements for operating a farm tractor on a public highway is that it be outfitted with lights, reflectors, slow moving emblems, and proper tires. See 316.2295, Fla. Stat. (2008) (a farm tractor operating on a public roadway shall have lights, reflectors, and slow moving emblems); 320.51, Fla. Stat. (2008) (a farm tractor shall have proper tires). In fact, farm tractors are exempt from most motor vehicle regulations. See 320.51, Fla. Stat. (2008) (exempting farm tractors from motor vehicle registration, payment of license taxes, and display of license plate); 322.04, Fla. Stat. (2008) (exempting person temporarily operating a farm tractor on a public highway from obtaining a drivers license); 316.215, Fla. Stat. (2008) (exempting farm tractors from safety regulations); 450.061, Fla. Stat. (2008) (allowing 14 and 15 year olds to drive farm tractors for work); 316.614, Fla. Stat. (2008) (exempting farm tractors from Florida’s Safety Belt Law); 316.613, Fla. Stat. (2008) (exempting farm tractors from child restraint requirements); 316.239, Fla. Stat. (2008) (allowing farm tractors to have only one beam of light projecting from the front of the farm tractor instead of two).

The appellant also argues that a farm tractor is a dangerous instrumentality because it is of such size and character as to be peculiarly dangerous in its operation. This argument is also without merit. In a case dealing with similar machinery, this Court held that a road grader is not a dangerous instrumentality. Canull, 584 So.2d .at 1098. Farm tractors, like road graders, are neither used as a mode of transportation nor routinely operated in public places as to pose a sufficient danger to the public.

Accordingly, we hold that a farm tractor is not a dangerous instrumentality.

AFFIRMED.

ALLEN and PADOVANO, JJ., concur.

      . Road graders are tractors with a large blade used to create a flat surface.


author: THOMPSON, JR., E., Senior Judge.

text:
    Alione ARMOUR, Appellant, v. Kelly McMILLER, Appellee.
    No. 5D08-3676.
    District Court of Appeal of Florida, Fifth District.
    Aug. 7, 2009.

      Carlton Pierce, of Carlton Pierce, P.A., Orlando, for Appellant.
    No Appearance for Appellee.
   THOMPSON, JR., E., Senior Judge.

Alione Armour (“Alione”) appeals a final judgment of paternity and an income deduction order, both dated 23 September 2008, with respect to a minor child born to Alione and Kelly McMiller (“Kelly”). Finding that only one issue has merit: the lack of findings to support the child support award, we reverse and remand.

The minor child was born on 20 March 2005. Kelly filed a pro se petition to determine the child’s paternity on 28 March 2007. She asked for sole custody of the child; for child support; for arrearages back to the date of the child’s birth; that Alione pay for health insurance for the child; and for $500 in medical bills she expended for the child. Alione responded that he and Kelly had lived together until March of 2007, when Kelly asked him to leave. He sought to reduce or eliminate arrearages.

Kelly’s financial affidavit indicated that she was a cashier for Home Depot, and that her earnings for 2006 were $25,340.14 (gross), or $20,553.60 (net). Her affidavit also showed a $300 per month deduction for health insurance from her employer. Alione’s financial affidavit for 2006 showed he was then employed with Connextions, Inc., and that his monthly gross was $1,760 (gross). The parties were ordered to go to mediation, and on 30 October 2007, they resolved their dispute by entering into a mediated settlement agreement, which included that Alione pay $441.03 per month to Kelly as child support. There was no provision for child support arrearages, and no provision that required either party to provide health insurance for the child. At some point, Kelly ceased paying the child’s health insurance.

On 23 June 2008, Kelly filed a motion to amend her child support worksheet and for entry of final judgment. Her amended child support worksheet showed that for 2007, her gross income had increased to $2,747 per month, and she alleged Alione’s gross income for 2007 to be $3,457 per month.

A hearing before a magistrate was held on 11 August 2008. There is no transcript, but the court notes indicate that the parties disagreed about the amount of Alione’s income, and that Kelly’s lawyer requested that Alione file an amended financial affidavit. In response to Kelly’s claim of increased income, Alione stated there was a “lot of over time [sic] that is no longer available;” that the original child support worksheet had been prepared at mediation; and that his taxes had not been prepared at that time. Kelly’s lawyer insisted Alione had a second job and he responded that he had not been employed by anyone else since July of 2007, when he filed his financial affidavit. Lastly, Kelly told the court that although she did not have health insurance for the child, she would be able to afford it in January with child support. The court granted Kelly’s request that Alione file an amended financial affidavit, and granted the request for entry of the final judgment, ordering Kelly’s attorney to prepare it.

Alione’s amended financial affidavit of 21 August 2008, showed that for 2007, he was working for Identifax of Greater Orlando as a private investigator. His gross wages were $1,820 per month; and he listed bonuses of $769 a month, for a total gross income of $2,589 per month. This amount was $868 per month less than Kelly attributed to Alione on her amended worksheet.

On 22 September 2008 the trial court executed the final judgment of paternity, setting child support at $870 per month, based on the sole finding that the “amounts in the Child Support Guidelines Worksheet filed by the Mother are correct.” The court also awarded Kelly ar-rearages of $7,270, payable at the rate of an additional $100 per month, but it did not set forth the date that the arrearages began to accrue. There was also no requirement that either party provide health insurance for the child as an aspect of child support.

While Kelly’s figures alleging Al-ione’s income are mathematically correct, Alione’s “allowable deductions” of $648 per month are not specified, and this court has no way of knowing whether they are, in fact, either allowable or correct. Nor is there anything in the record to support the trial court’s fueling that the “amounts in the Child Support Guidelines Worksheet filed by the Mother áre correct.” Child support awards must be supported by substantial competent evidence. Reddick v. Reddick, 728 So.2d 374 (Fla. 5th DCA 1999).

The failure to make adequate findings requires remand for determination of child support. Crouch v. Crouch, 898 So.2d 177 (Fla. 5th DCA 2005). See also Aguirre v. Aguirre, 985 So.2d 1203 (Fla. 4th DCA 2008); Ondrejack v. Ondrejack, 839 So.2d 867, 871-72 (Fla. 4th DCA 2003); Esfahani v. Esfahani, 676 So.2d 527 (Fla. 4th DCA 1996).

In making an award of child support, the trial court is required to determine the net income of each parent pursuant to section 61.30, and to include findings in the final judgment. See Deoca v. Deoca, 837 So.2d 1137, 1138 (Fla. 5th DCA 2003); § 61.30(2) (includable income), (3) (allowable deductions), (4)-(6) (determination of net income), Fla. Stat. The trial court failed to do so in this case, requiring us to reverse the child support award and remand for further proceedings.

In reversing and remanding to the lower court, we also note that health insurance is an aspect of child support, and pursuant to section 61.30(l)(b), each order for child support “shall” contain a provision for health insurance coverage for the minor child, when that coverage is reasonably available.

AFFIRMED in Part, REVERSED in Part, and REMANDED.

MONACO, C.J., and COHEN, J., concur.

      . The statute provides that health insurance "coverage is reasonably available if either the obligor or obligee has access at a reasonable rate to a group health plan.”


author: GRIFFIN, J.

text:
    Edgar Ivan GIL, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3192.
    District Court of Appeal of Florida, Fifth District.
    Aug. 7, 2009.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Edgar Ivan Gil [“Gil”] appeals his convictions and sentences for trafficking in cocaine, conspiracy to traffic in cocaine, unlawful use of a two-way communication device, and resisting a law enforcement officer without violence. On appeal, Gil argues that the trial court erred by denying his motion to dismiss the information. He contends that law enforcement officer William Powell’s [“Officer Powell”] act of notarizing two affidavits that had been signed by a confidential informant using a fictitious name, amounted to a violation of his due process rights, justifying dismissal of the prosecution.

The trial court conducted a hearing on Gil’s motion to dismiss, during which it heard testimony from Officer Powell. Officer Powell testified that he was a narcotics agent in the Orlando Police Department’s Metropolitan Bureau of Investigation [“MBI”] and that he became involved in an investigation of Gil and Jose Pereda [“Pereda”] as a result of information provided by a confidential informant named Stephen Bator. He testified that both Gil and Pereda were arrested after he and the confidential informant made an “undercover purchase of trafficking amounts of cocaine” from Gil and Pereda.

Officer Powell testified that Stephen Bator had entered into a substantial assistance agreement and had chosen the pseudonym, Shaun Alexander, which was reflected on a MBI Source Profile Sheet. When asked about the MBI Source Profile Sheet, Officer Powell explained:

When I was — get a subject that signs up for substantial agreement, it’s usually a person that’s trying to right a wrong. He — he—he was a drug trafficker, he did wrong and now he’s trying to come over and make up for his wrongs. We sign him up as a confidential informant. The form that he signs usually stays with MBI. It has his name, his address, other pertinent information that — that we would like to keep protected.
On the second page we will have him sign his real signature. Under that is a pseudo signature that we will try to use to protect his identity until ordered to bring his real identity — when we get an individual, he usually has 60 days to complete his substantial assistance agreement. If in the first week we go out and the confidential informant makes a case, usually these cases he is doing is with a small circle that he’s dealt with in the past.
What we’re trying to do for obvious reasons is keep his name from getting out there as being a confidential informant right off the bat. If so, it — it will compromise not only his ability to make future cases, it will compromise his safety and also my safety, because a lot of times I will go undercover with him. And if the word gets out that this individual is working as a confidential informant, it will put us in jeopardy. So therefore we — with this sheet, we will have him sign his correct name and then under that, his pseudo name that he will use for a signature on his statement.

When asked whether there was “any intent to defraud or cheat people or any evil motive associated with [his] work on [the handwritten] document that [was] signed Shaun Alexander,” Officer Powell answered:

There was not, sir. It was just — as I explained in the very beginning, we did not want his name out there. This is public record immediately, so with a pseudo — with a pseudo name on there, the confidential informant’s name does not get out onto the street as working with the police until hopefully 60 days after his — once his contract is up within 60 days.

Finally, when asked “what should have been [done] to clarify that Shaun Alexander was a pseudo signature as opposed to a real signature,” Officer Powell responded: “What’s being done now, is again in big block letters, off to the side — off to the side of the signature I will put alias, highlight that, so there’s no misunderstanding.”

The trial court entered an order denying Gil’s motion to dismiss the information, stating in pertinent part:

[D]efense counsel argues [] the case should be dismissed because of the outrageous conduct of law enforcement. Having given this matter much thought, the court respectfully disagrees. Law enforcement’s efforts in this matter, however misdirected, were based upon an effort to conceal the identity of the confidential informant. This is both for future use of the same informant, as well as for a legitimate concern about the safety of the confidential informant. While I share counsel’s concern that this practice should not be continued, it does not fall into the category of conduct which is so outrageous that it violates the core sense of fairness and justice. See State v. Williams, 623 So.2d 462 (Fla.1993).

Gil then entered pleas of nolo contendere as charged, reserving the right to appeal this issue.

On appeal, Gil relies upon State v. Williams, 623 So.2d 462 (Fla.1993) and State v. Glosson, 462 So.2d 1082 (Fla.1985). In each of these cases, the Florida Supreme Court found that law enforcement’s conduct violated the defendant’s right to due process. In Williams, law enforcement had manufactured crack cocaine in order to use it in a reverse-sting operation; and in Glosson, law enforcement had entered into a contingency fee arrangement with a confidential informant wherein the confidential informant “had to testify and cooperate in criminal prosecutions in order to receive his contingent fee from the connected civil forfeitures.” Williams, 623 So.2d at 467; Glosson, 462 So.2d at 1085. Here, Officer Powell’s conduct in the prosecution of Gil does not rise to that same level and does not cause offense to a court’s sense of justice or fairness. See Williams, 623 So.2d at 467. During the hearing on Gil’s motion to dismiss, Officer Powell testified that (1) use of the pseudonym was for purposes of protection, (2) he erred but did not intend to commit a fraud when he notarized the two affidavits, (3) he disclosed the actual name of the confidential informant during his deposition, and (4) he learned from his mistake and now includes the term “alias” on an affidavit when a confidential informant signs using a pseudonym.

We find no error in the trial court’s denial of Gil’s motion to dismiss.

AFFIRMED.

TORPY and LAWSON, JJ., concur.


author: MONACO, C.J.

text:
    Emanuel Jason KADYEBO, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2008.
    District Court of Appeal of Florida, Fifth District.
    Aug. 7, 2009.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, C.J.

The appellant, Emanuel Kadyebo, seeks review of the sentence he received after the trial court’s revocation of his probation. We find no error and affirm. We note, however, that there appears to be no written order that comports with the oral pronouncements made by the trial judge in open court concerning which conditions of probation were violated. While we recognize that the trial court made findings from the bench that were supported by competent, substantial evidence, the appellant is unquestionably entitled to a correct written revocation order that conforms to the oral pronouncements finding him in willful violation of probation. See Young v. State, 4 So.3d 1265 (Fla. 5th DCA 2009); Patt v. State, 876 So.2d 1278 (Fla. 5th DCA 2004); Brown v. State, 847 So.2d 1020 (Fla. 5th DCA 2003). Accordingly, we affirm the revocation of probation and the sentence announced, but remand this matter to the trial court for entry of a proper violation order.

AFFIRMED and REMANDED.

GRIFFIN and TORPY, JJ., concur.


author: SAWAYA, J.

text:
    A.W., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2920.
    District Court of Appeal of Florida, Fifth District.
    Aug. 7, 2009.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

A.W., a juvenile adjudicated delinquent for possession of cocaine, contends that the trial court erred in denying his motion for dismissal at the conclusion of the evidence portion of the trial. As to that issue, we affirm without further discussion.

A.W. also contends that the trial court erred in imposing costs of prosecution pursuant to section 938.29, Florida Statutes (2009), in the amount of $150. We agree. It is clear that section 938.29 does not authorize the imposition of costs of prosecution in delinquency cases, and the State concedes that imposition of these costs is error.

Accordingly, the order of delinquency is affirmed. That part of the order assessing the costs of prosecution is reversed.

AFFIRMED in part; REVERSED in part.

MONACO, C.J. and COHEN, J., concur.


author: VAN NORTWICK, J.

text:
    Terrance Cornelius HATCHER, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5750.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2009.

      Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Terrance Cornelius Hatcher appeals his conviction for possession of cocaine, arguing that the trial court erred in denying his motion to suppress. Because the evidence was insufficient to establish that appellant had constructive possession of the baggie containing cocaine, the appellant’s detention and arrest, and the search incident to the arrest, were unlawful. Accordingly, we reverse.

Appellant was charged with possession of cocaine and moved to suppress physical evidence seized as well as statements made by him following his warrantless arrest. Following an evidentiary hearing, the trial court entered an order denying suppression. In this order, the trial court made the following findings of fact:

On November 7, 2007, in conjunction with special drug interdiction operations in the community of Brownville in Pensacola, Florida, Escambia County Sheriffs deputies drove past 20 Loretta Street, known to be a high narcotics area. Four (4) Escambia County Sheriffs deputies were in an unmarked patrol vehicle. Outside of the fence in front of the house at 20 Loretta Street, a table is located between the fence and the street. The Defendant and another individual were at the table.
Officer Milstead and the other deputies jumped out of the patrol car. They observed a “small corner bag” sitting on top of the table within twelve (12) to eighteen (18) inches of the Defendant and closest to Mr. Hatcher. Based upon his immediate proximity to the corner bag, Mr. Hatcher was detained. A cobalt test was conducted on the bag, which tested positive. Mr. Hatcher was thereafter searched, and a quantity of a controlled substance was found on the Defendant’s person.
After being arrested, Deputy Levensel-ler transported the Defendant to the county jail. During transport, the Defendant made certain admissions to possession of some of the seized material and denying possession of the other.
The Defendant testified and contradicted the testimony of Deputy Milstead. The Court finds that the credible substantial evidence establishes that Mr. Hatcher was in control of the “small corner bag” observed within twelve (12) to eighteen (18) inches of his person. While the observation was made at night, there was adequate light to make the relevant observations.

A trial judge’s ruling on a motion to suppress is clothed with a presumption of correctness with regard to determinations of fact and a trial court’s resolution of conflicting evidence will not be disturbed on appeal if that determination is supported by substantial, competent evidence. Fitzpatrick v. State, 900 So.2d 495, 513 (Fla.2005). This court is to review de novo whether the trial court’s application of the law to the historical facts establishes an adequate basis for the trial court's ruling. Id.

Probable cause for arrest exists when the totality of the facts and circumstances within an officer’s knowledge would cause a reasonable person to believe that an offense has been committed by the person being arrested. Chavez v. State, 832 So.2d 730, 747 (Fla.2002). As this court explained in Edwards v. State, 532 So.2d 1311, 1314 (Fla. 1st DCA 1988), “[m]ere proximity to contraband found in a public place and in the vicinity of several other people does not warrant a finding that the police officer had probable cause to believe that the person or persons closest to the contraband possessed it.” See also Tarver v. State, 961 So.2d 1094 (Fla. 2d DCA 2007); Bell v. State, 792 So.2d 608 (Fla. 4th DCA 2001); McGowan v. State, 778 So.2d 354, 357 (Fla. 2d DCA 2001); Thompson v. State, 551 So.2d 1248 (Fla. 1st DCA 1989). In McGoivan, the reviewing court held that, to support a finding of probable cause to arrest on a constructive possession theory, the State must establish that the arresting officer reasonably believed the accused had dominion and control over the contraband, knew it was in his presence, and knew of its illicit nature. 778 So.2d at 357.

Here, there was no evidence that appellant acknowledged that the baggie containing cocaine was his, that appellant exercised dominion and control over the baggie, or that he knew of its illicit contents before his arrest. The trial court did find that appellant was the closest person to the bag. A review of the testimony adduced at the suppression hearing, however, does support such a finding. The arresting officer, Deputy Milstead, testified that appellant was sitting at the table “directly in front of’ the baggie. He also testified that appellant was “a foot, foot and a half’ away from the bag and that he arrested appellant as a result of seeing the cocaine in the baggie. But, Milstead acknowledged that another man was also at the table, and Milstead never stated that appellant was closest to the baggie. Even if appellant had been the closest person to the baggie, mere proximity to contraband, without more, does’ not establish probable cause to arrest. Edwards. As correctly and professionally acknowledged by the State on appeal, the evidence adduced at the suppression hearing did not establish constructive possession so as to justify the warrantless arrest of appellant. Accordingly, we reverse the order denying the motion to suppress and remand the cause to the lower court for the discharge of appellant.

REVERSED AND REMANDED.

KAHN, J., concurs, and BENTON, J., concurs in result.


text:
    James TUCKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3489.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 2009.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction of grand theft and his sentence as an habitual felony offender. We find no abuse of discretion in the trial court’s denial of a motion for continuance shortly before the commencement of trial. See Lawson v. State, 884 So.2d 540, 545-46 (Fla. 4th DCA 2004); McKay v. State, 504 So.2d 1280, 1282 (Fla. 1st DCA 1986). We remand to the circuit court to correct the scrivener’s error in the judgment of conviction, which indicates that appellant entered a plea of nolo contendere, rather than correctly showing that appellant was found guilty after a jury trial.

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


text:
    Michael C. DONOVAN, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-5835.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2009.
    Michael C. Donovan, pro se, Appellant.
    Bill McCollum, Attorney General, and Lance Eric Neff, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellee’s motion to dismiss is granted. This proceeding is hereby dismissed as moot. Because official records indicate that appellant 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).

KAHN, BENTON, and VAN NORTWICK, JJ„ concur.


text:
    Melissa WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5192.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2009.
    Nancy A. Daniels, Public Defender, and Alice B. Copek, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this criminal appeal, we affirm the conviction. Appellant, however, correctly asserts that the trial court lacked jurisdiction to enter a restitution order after appellant filed a notice of appeal as to the judgment and sentence. See Horan v. State, 990 So.2d 1264, 1265 (Fla. 1st DCA 2008); Williams v. State, 952 So.2d 616 (Fla. 1st DCA 2007); Brantley v. State, 723 So.2d 909 (Fla. 1st DCA 1999) (noting the State conceded that filing the notice of appeal divested the trial court of jurisdiction to set the amount of restitution); Nguyen v. State, 655 So.2d 1249 (Fla. 1st DCA 1995). Pursuant to Brantley, Williams, Horan, and Nguyen, upon the return of jurisdiction to the trial court, that court may conduct another restitution hearing and rule in accordance with the evidence presented.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    Jonathan COMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3664.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2009.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the appellant’s conviction and sentence, but reverse and remand for correction of a scrivener’s error.

The jury found the appellant guilty of section 810.02(3)(a), Florida Statutes, burglary of a dwelling. The trial court properly pronounced judgment, but the written judgment indicates that the appellant was convicted of section 810.02(2)(b), Florida Statutes. The trial court is therefore directed to conform the written judgment to its oral pronouncement.

WEBSTER, BENTON, and ROBERTS, JJ., concur.


text:
    James L. MURPHY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0184.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2009.
    James L. Murphy, pro se, Petitioner.
    Bill McCollum, Attorney General; Giselle Denise Lylen and Brooke Poland, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and James L. Murphy is hereby afforded a belated appeal of the June 21, 2007, order denying motion for postconviction relief in case number 99-02-CF in the Circuit Court for Taylor County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The circuit court is directed to appoint counsel to represent petitioner in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

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


text:
    Kevin Earl TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0783.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2009.
    Kevin Earl Taylor, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion for postconvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, appellant alleges that he was improperly ordered to pay restitution without the trial court’s conducting a hearing with appellant present, to determine appellant’s ability to pay. We REVERSE and REMAND for the trial court to attach documentation conclusively refuting appellant’s claim or for an evidentiary hearing. See Donaldson v. State, 985 So.2d 63 (Fla. 2d DCA 2008); Durden v. State, 582 So.2d 1256 (Fla. 1st DCA 1991).

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


text:
    Charles L. NICHOLS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1286.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2009.
    James C. Banks of Banks and Morris, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Charles L. Nichols is hereby afforded a belated appeal from judgment and sentence in case number 2006CF3876 in the Circuit Court for Leon County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent petitioner in the appeal, if he qualifies for such an appointment.

PETITION GRANTED.

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


text:
    Lisa WARNER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Florida Quality Components, Inc., Appellees.
    No. 1D09-2263.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2009.
    Lisa R. Warner, pro se, Appellant.
    John W. Kunberger, Tallahassee, for Appellee, Florida Unemployment Appeals Commission; No appearance for Appellee Florida Quality Components, Inc.
   PER CURIAM.

Appellee’s motion to dismiss, filed June 30, 2009, is granted. The appeal is hereby dismissed.

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


author: SALTER, J. SCHWARTZ, Senior Judge

text:
    Derrick KNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2612.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 2009.
    Rehearing Denied Sept. 1, 2009.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

Derrick Knight appeals his conviction and sentence for manslaughter, aggravated battery, shooting a deadty missile into a vehicle, possession of cocaine, and possession of drug paraphernalia. On appeal, he contends that the trial court erred in overruling objections to the admission into evidence of photographs of three handguns, a shotgun, and ammunition that allegedly “had nothing to do with this case.” We affirm, finding that: (a) the admission of the photographs was not an abuse of discretion, and (b) even if concluded to be an abuse of discretion, admission of the photographs was harmless error in light of Knight’s counsel’s numerous references during voir dire to “gun collections” and acknowledgment to the jury in opening statement (“yes, he [Knight] does collect guns”).

The Shooting

The evidence at trial showed that the manslaughter victim, Chris Marson, drove with Luis Romero and Jonathan Ramesar to Knight’s home around midnight in October 2003. Conflicting testimony indicated that the three were visiting to buy drugs or to rob Knight. After parking the car in front of Knight’s house, Romero walked toward the front door. By two witnesses’ accounts, Romero had a .357 Glock pistol in his hand, concealed by a shirt wrapped around the hand, and he fired two or more gunshots when asked what was hidden in the shirt.

One of the eyewitnesses gave a statement the morning after the shooting relating that when Romero fired the first shot, she and another witness “went in Derrick’s home and we let him know there was a guy shooting in front of his house. At the time he reached behind a dresser by his bed and grabbed an AK-47 and with that he went walking towards outside.” The 2003 statement also included her account that Knight was outside pointing the AK-47 at “the guy with the gun.”

What was uncontroverted, however, was that nine spent casings matching the rounds fired from his AK-47 were in Knight’s front lawn, Marson was mortally wounded, Romero had sustained a grazing gunshot wound to his head, and the three visitors’ car itself was riddled with multiple gunshots. Two other gunshots randomly struck a residence down the street. Detectives responded first to find the car on the side of the road with Marson slumped over the wheel.

The Search

In a consensual search of Knight’s residence shortly after the gunfire, detectives .found and photographed in his bedroom three handguns, a shotgun, and various types of ammunition. Receipts for purchase and a Florida concealed weapons license were also voluntarily provided.

Upon further investigation in the attic crawl space above the residential ceiling, however, a law enforcement officer also found and photographed Knight’s AK-47 concealed in the insulation.

“Collecting Guns” and the Photos

During voir dire, defense counsel inquired whether prospective jurors had “any particular feelings about firearms or people possessing them or collecting them?” To another member of the venire, defense counsel inquired, “How do you feel about people holding guns or collecting guns?” Another prospective juror was asked by the defense, “Do you collect guns?” Another was asked what he or she would think if “somebody” used part of a gun collection in self defense because their life was being threatened.

During opening statement, the defense affirmatively acknowledged Knight’s collection of various firearms:

They wake [Knight] up and say, somebody is shooting outside at us and at your brother, because Derrick’s brother was outside with those people. Derrick gets up and yes, he does collect guns, yes, he has guns, and we talked about it in jury selection about what it is to have guns and that, if you purchased them legally and you collect them and as you heard, it is not an unusual thing jurors on the panel collect guns and have guns and every gun that was in that house, he owned legally and had receipts for because he purchased them legally in a store as any one of us can do, legally in the state of Florida or anywhere in the United States, including this rifle, this AK-47.

While these questions and comments were not evidence and did not “open the door” (in the usual sense of that term) to the admission of the photos of those guns found during the search of Knight’s bedroom (but not used in the shooting charged in the information), they may explain why the trial court thought it likely that the other guns would be an issue during the trial. In denying the objection to the admission of the photos, the trial judge referred to her notes regarding the “gun collection” exchanges during jury selection, and she explained that the “other guns” were found quickly in Knight’s bedroom during the consensual search, while “the murder weapon was hidden in the crawl space.”

Evidence of concealment of a murder weapon, or of other efforts to distract investigators, is generally relevant because it reflects “consciousness of guilt.”

We review the trial court’s ruling on admissibility for an abuse of discretion. A “trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion.” Heath v. State, 648 So.2d 660, 664 (Fla.1994); see Castro v. State, 547 So.2d 111, 114 (Fla.1989). In the context of the trial proceedings to that point, reasonable trial judges might well disagree on whether the defense objection should have been overruled or sustained, and thus no abuse of discretion has been shown.

Harmlessness

We also conclude that the alleged error in admitting the photos of the other weapons and ammunition was harmless beyond a reasonable doubt. The evidence regarding Knight’s ownership and discharge of the AK-47, and regarding the death of one victim and the wounding of another, was overwhelming. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Though self defense was claimed, the evidence was clear that Knight’s other weapons were not used in the shooting. Mere proof of legal ownership of the other weapons was, as defense counsel elicited from the venire, not to be considered prejudicial. See Herman v. State, 396 So.2d 222, 229 (Fla. 4th DCA 1981).

Conclusion

For these reasons, we affirm the circuit court conviction and sentence.

SCHWARTZ, Senior Judge

(concurring).

I concur only because any error with respect to the firearms issue was harmless beyond a reasonable doubt. I would go no further.

      . Knight raised a second argument as well, relating to a law enforcement officer's use of the term “killing machine” in describing the AK-47 assault rifle used to shoot and kill the victim in the case. The trial court denied a defense motion for mistrial regarding that characterization, but issued a curative instruction. Following the curative instruction, defense counsel immediately used the term three times in cross-examination. We find no abuse of discretion in the trial court's denial of the motion for mistrial.

      . At the time of trial, the witness testified that she could not recall the details in her statement and that she was scared to testify. When she did not respond to a trial subpoena, her attendance was compelled by writ of bodily attachment.

      . Had investigators limited themselves to the four weapons in Knight's bedroom found early in the consensual search, they would have been unable to tie a weapon to the shell casings and projectiles found outside.

      . Alessi v. State, 969 So.2d 430, 433-34 (Fla. 5th DCA 2007).


author: COPE, J.

text:
    KEYBANK NATIONAL ASSOCIATION, Appellant, v. KNUTH LTD.; Scott M. Sutter; The Scott Sutter Trust U/A 11/18/03; Accredited Surety and Casualty Co., Appellees.
    No. 3D09-996.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 2009.
    Arnstein & Lehr and Alan G. Kipnis and Joseph F. Poklemba, Fort Lauderdale, for appellant.
    Samuel J. Kaufman, Key West and James W. McQuade, for appellees.
    Before COPE, WELLS, and SUAREZ, JJ.
   COPE, J.

This is an appeal of a non-final order which denied a motion to appoint a receiver. We conclude that the motion should have been granted and remand for further proceedings.

KeyBank National Association (“the lender”) made a mortgage loan on property in Key West, Florida, owned by Knuth, Ltd., Scott M. Sutter, and The Scott Sut-ter Trust U/A 11/18/03 (“the borrowers”). The borrowers have defaulted and the outstanding principal and interest is approximately $2 million.

The property consists of rental units. In January, 2009, the trial court entered an order enforcing the assignment of rents clause which is contained in the mortgage. The order was effective as of December 15, 2008. The court ordered that (a) the rents could only be used to maintain and operate the property; (b) any excess was to be deposited in the registry of the court; and (c) a complete and full accounting was to be provided monthly to the court and the lender.

In March, 2009, the lender filed a verified emergency motion for appointment of receiver. See Fla. R. Civ. P. 1.620. The trial court conducted a hearing and denied the motion. The lender has appealed. See Fla. R.App. P. 9.130(a)(3)(D). .

At the hearing it was undisputed that the borrowers had not complied with the order enforcing assignment of rents. The borrowers had not deposited any of the rents into the registry of the court and had not provided an accounting. By the time of the hearing, over three months had passed since the December 15, 2008 effective date of the order enforcing the assignment of rents.

“A receiver will not be appointed unless certain requirements are met. First, the party seeking a receiver must show that there is a substantial likelihood that it will prevail on the merits at the conclusion of the case.” Manuel Farach, Florida Real Estate § 28:9 (2008) (citing Colley v. First Fed. Sav. & Loan Ass’n, 516 So.2d 344, 345 (Fla. 1st DCA 1987)). That requirement is met here, for it is undisputed that the mortgage is in default and the borrowers did not show any meritorious defense in the proceedings below.

“If the rents and profits are pledged as additional security, then not using the rents and profits to pay the mortgage is a basis for appointment of a receiver.” Manuel Farach, Florida Real Estate § 28.9 (citing Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241, 248 (1930)); Colley, 516 So.2d at 345-46. In this case, the rents and profits are pledged as additional security. The borrowers have not obeyed the order enforcing the assignment of rents.

The Florida Supreme Court has said:

Where the rents and profits are expressly made a part of the security, and the mortgagor is receiving them but refusing to apply them to the mortgage debt, which he is allowing to go in default, thus dissipating a part of the security while allowing the debt to increase, a court of equity should appoint a receiver unless the mortgagor makes it clear that the real property covered by the mortgage will sell for enough to pay the debt and charges due the mortgagee and thus affords ample and entirely adequate security. Having voluntarily pledged the rents and profits as part of the security, a mortgagor in default who is misapplying them should not be heard to object to their being impounded by the court pending foreclosure proceedings, regardless of his solvency, unless he satisfies the court that the remaining real estate security is entirely adequate, and that there is no equitable need to disturb the possession accorded him by the statute, or gives security to account for such rents and profits.

Carolina Portland Cement Co., 128 So. at 249-50 (emphasis added); Barnett Bank of Alachua County, N.A. v. Steinberg, 632 So.2d 233, 234 (Fla. 1st DCA 1994); Florida Reinvestment Corp. v. Cypress Sav. Ass’n, 509 So.2d 1352, 1354 (Fla. 4th DCA 1987) (en banc); Colley, 516 So.2d at 346.

The lender in this case carried its burden. The borrowers failed to show that the real property covered by the mortgage would sell for enough to pay the debt and charges. Alternatively, the borrowers did not provide “security approved by the court, to account for the rents and profits.” Florida Reinvestment, 509 So.2d at 1354.

The trial court reasoned that the motion to appoint a receiver was premature, because earlier in the same hearing, the court had issued an order to the borrowers to show cause why they should not be held in contempt for failing to comply with the order enforcing the assignment of rents. The show cause order was to be returnable at a future date. While a show cause order was perfectly appropriate in light of the borrowers’ noncompliance, the case law cited above explains that on the showing made here, a receiver should have been appointed.

The trial court also commented that “no admissible evidence was tendered to the Court demonstrating that the present value of the property is insufficient to meet Plaintiffs claims.” The lender correctly points out that this places the burden on the wrong party. As stated in the cases cited above, the burden is on the borrowers to demonstrate that the value of the property is sufficient to pay the debt and charges due to the lender. The motion for a receiver should have been granted. In light of the foregoing, we need not address the lender’s additional argument that the borrowers are committing waste by allowing city-imposed fines to accumulate on the property.

For the stated reasons, we reverse the order now before us and remand with directions to grant the motion to appoint a receiver. This ruling is effective immediately, and will not be delayed by the filing of a motion for rehearing or other postcle-cision motion.


text:
    Rodolfo G. ORTIZ, Petitioner, v. The FLORIDA PAROLE COMMISSION, Respondent.
    No. 3D08-2484.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 2009.

      Rodolfo G. Ortiz, in proper person.
    Sarah Rumph, Acting General Counsel, and Anthony Andrews, Assistant General Counsel, Florida Parole Commission, for respondent.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   COPE, J.

The question before us is whether the Florida Parole Commission had the authority to impose a curfew as a condition of conditional release, where the underlying crimes were committed in 1990. We conclude that the answer is yes.

Rodolfo G. Ortiz entered a guilty plea to the offense of robbery in Miami-Dade County Circuit Court case number 90-6933, as well as robbery, kidnapping, and other charges in Miami-Dade County Circuit Court case number 90-13954 (collectively “the 1990 cases”). The crime dates were February and January, 1990, respectively. Defendant-petitioner Ortiz was sentenced to nine years of incarceration. Subsequently he was released on conditional release. See § 947.1405, Fla. Stat. (1989).

In 1996, the defendant committed a new crime in Miami-Dade County case number 96-41769. He was found guilty at a jury trial and was sentenced to incarceration. His conditional release was revoked.

The defendant states that in 2008, he was placed on conditional release for all three cases. One of the conditions was “a mandatory curfew where you shall be confined to your residence during the hours from 7:00 p.m. to 7:00 a.m., except for work, treatment needs, and religious and educational activities as verified and approved by your conditional release supervisor.”

The defendant filed a petition for writ of prohibition in the circuit court, contending that the Parole Commission did not have the authority to impose a curfew on him. The trial court denied relief in Miami-Dade County Circuit Court case number 90-6933, and the defendant has appealed.

We first address a procedural issue. We agree with the Parole Commission that a petition for a writ of prohibition is an incorrect remedy. The defendant is complaining about an action which has already taken place: the inclusion of a curfew as a condition of his conditional release. Prohibition “cannot be used to revoke an order already entered.” State ex rel. Sarasota County v. Boyer, 360 So.2d 388, 392 (Fla.1978).

The Parole Commission explains that judicial review of Commission action is usually accomplished through a petition for writ of mandamus or habeas corpus. “[Rjeview of the Commission’s orders remains available by petitions for habeas corpus or mandamus filed in the circuit court.” Richardson v. Fla. Parole Comm’n, 924 So.2d 908, 910 (Fla. 1st DCA 2006). The Commission acknowledges that such a petition can be utilized to challenge a condition imposed by the Commission. We therefore disagree with the order entered below, insofar as it reasoned that the trial court was without jurisdiction to review the legality of a condition imposed as part of a conditional release order.

The defendant filed a notice of appeal. The Florida Supreme Court has explained that in this circumstance, the correct procedure for review in this court is certiorari. Sheley v. Fla. Parole Comm’n, 720 So.2d 216, 217 (Fla.1998); Grace v. Fla. Parole Comm’n, 985 So.2d 1213, 1214 (Fla. 1st DCA 2008). We therefore treat the notice of appeal as a petition for writ of certiora-ri.

Turning to the merits, we reject the defendant’s argument on authority of the Grace decision, which explains that the Commission’s discretionary authority for imposition of special conditions is found in subsection 947.1405(6), Florida Statutes (1990). Grace, 985 So.2d at 1214-15.

The defendant also argues that the Commission was without authority to place him on conditional release, and maintains that he has completed his sentence. That argument is without merit. The conditional release program was in effect at the time the defendant committed his crimes in 1990. Under section 947.1405, Florida Statutes (1989), release on conditional release is mandatory for inmates who qualify. See Duncan v. Moore, 754 So.2d 708, 710-11 (Fla.2000).

The defendant relies on Starling v. Florida Parole Comm’n, 959 So.2d 753 (Fla. 1st DCA 2007), and King v. Florida Parole Comm’n, 898 So.2d 1100 (Fla. 1st DCA 2005). Those cases are not on point. In those cases the defendants claimed that the Parole Commission imposed the terms of subsection 947.1405(7), Florida Statutes, on defendants who committed their crimes prior to the effective date of subsection 947.1405(7). Neither case involved the question now before us, namely, whether the Commission has discretionary authority to impose special conditions under subsection 947.1405(6), Florida Statutes (1990). The Commission had the authority to enter the order now before us. For the stated reasons, we deny the petition for writ of certiorari on the merits.

Certiorari denied.

      . On the Court’s own motion, the court amends the style of the case to reflect that the Florida Parole Commission is the respondent.

      . According to the Department of Corrections website, the 1996 offenses were possession of cocaine and resisting an officer with violence.

      .The defendant filed the petition in all three of his circuit court cases. Three denial orders were entered, because each of the defendant’s cases was before a different circuit judge. The present appeal involves only the order in No. 90-6933.

      . By interim order this court initially treated the notice of appeal as a petition for writ of prohibition, but pursuant to Sheley, we now treat the notice of appeal as a petition for writ of certiorari.


author: ROTHENBERG, J.

text:
    Julia E. BONILLA, Appellant, v. YALE MORTGAGE CORPORATION, Appellee.
    No. 3D08-2160.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 2009.

      Tramont, Guerra & Núñez, and Paulino A. Núñez, Coral Gables, for appellant.
    Weitz & Schwartz, and Eric R. Schwartz, Ft. Lauderdale, for appellee.
    Before COPE, SHEPHERD, and ROTHENBERG, JJ.

      . The promissory note provides in part as follows:
      This Note may not be prepaid in part. Any prepayment in full of this Note shall include a charge equal to Seven Percent (7%) of the then outstanding principal for the first year of the loan.... The following prepayment penall[y] shall also apply in the event the Borrower defaults under the terms and conditions of this Note and the Lender shall be entitled to recover the prepayment penalty after and in addition to the Lender’s acceleration and die collection of default interest.

   ROTHENBERG, J.

Julia E. Bonilla (“Bonilla”) appeals from a final summary judgment of foreclosure entered in favor of Yale Mortgage Corporation (“Yale Mortgage”), and from the denial of her motion for rehearing. Based on the record before us, we reverse the denial of the motion for rehearing, and instruct the trial court to vacate the final summary judgment and allow Bonilla to respond to the complaint on the merits.

In the fall of 2007, Bonilla and Yale Mortgage entered into a mortgage loan transaction in the amount of $140,000, at an annual interest rate of 11.99%. After Bonilla failed to make a single mortgage payment, Yale Mortgage commenced a foreclosure action in the Circuit Court in Miami-Dade County. Bonilla filed a timely motion for extension of time to file the answer, explaining that she was attempting to retain counsel. The trial court granted the motion; however, as no specific amount of time was requested in the motion, and because the trial court’s order granting the extension of time cannot be located by the Clerk of the Circuit Court, we do not know how much additional time was allotted by the trial court.

Seven days after the extension was granted, but before Bonilla was able to retain counsel or file her answer, Yale Mortgage filed its motion for summary judgment, attaching the affidavit of its Chief Financial Officer, Woody Kahn. Mr. Kahn averred that the sums due to Yale Mortgage included a “prepayment penalty” in the amount of $9,800, which equals 7% of the outstanding principal balance, and interest through a specific date in the amount of $18,848.22. Although the affidavit does not indicate the annual percentage rate for the interest charged, a calculation reflects an annual interest rate of 18%.

At the hearing on the motion for summary judgment, Bonilla was not present, and had not yet filed an answer. However, an attorney appeared at the hearing and informally requested a continuance. The attorney explained that on the previous day, he received a referral package to represent Bonilla through the Put Something Back Pro Bono Project, and because he had not been able to communicate with Bonilla, he could not file a notice of appearance on her behalf. The trial court denied the attorney’s request for a continuance, and entered a final summary judgment of foreclosure in favor of Yale Mortgage. The final judgment reflects that the trial court adopted the figures set forth in Mr. Kahn’s affidavit, including the interest due on the Note, which equals an annual rate of 18%, plus a 7% “prepayment penalty.”

Thereafter, Bonilla retained the attorney who was present at the summary judgment hearing, and the attorney filed a motion for rehearing on Bonilla’s behalf. The motion for rehearing raised numerous issues, including whether the interest charged by Yale Mortgage was usurious. Specifically, Bonilla argued that the 7% “prepayment penalty” must be characterized as interest upon default, and therefore, when added to the interest charged in the final judgment, which equals 18% annually, the total annual interest charged by Yale Mortgage is usurious, as it exceeds the 18% permitted by law. See § 687.02(1), Fla. Stat. (2008) (providing that “[a]ll contracts for the payment of interest upon any loan ... or upon any obligation whatever, at a higher rate of interest than the equivalent of 18 percent per annum simple interest are hereby declared usurious”); § 687.071, Fla. Stat. (2008) (pertaining to criminal usury). Bonilla requested that the trial court grant her motion for rehearing, vacate the order granting summary judgment, and allow her to respond to the complaint on the merits. The trial court denied Bonilla’s motion for rehearing. Bonilla’s appeal followed.

Bonilla contends that the trial court abused its discretion by denying her motion for rehearing. See Monarch Cruise Line, Inc. v. Leisure Time Tours, Inc., 456 So.2d 1278, 1279 (Fla. 3d DCA 1984) (holding that the denial of a motion for rehearing is reviewed for an abuse of discretion). Based upon the following circumstances, we agree with Bonilla that the trial court abused its discretion by denying Bonilla’s motion for rehearing: (1) Yale Mortgage moved for summary judgment seven days after Bonilla (who was unrepresented by counsel) filed and was granted an extension of time to obtain counsel and answer the complaint; (2) the attorney who received the pro bono referral package appealed at the hearing and requested a continuance, explaining that he had not yet spoken to Bonilla and therefore could not file a notice of appearance; (3) the trial court denied the request to continue the hearing; (4) pro bono counsel subsequently filed a notice of appearance and a timely motion for rehearing on Bonilla’s behalf, raising several issues; (5) the trial court did not address the issues articulated by Bonilla in her motion for rehearing; (6) the final summary judgment of foreclosure indicates that Bonilla was charged interest at an annual rate of 18% plus a 7% “prepayment penalty”; and (7) the trial court failed to resolve a critical legal issue: whether the 7% “prepayment penalty” qualifies as additional interest upon default, and if it does, when added to the 18% interest charged to Bonilla by Yale Mortgage, is the total interest charged by Yale Mortgage upon default usurious and unlawful. We, therefore, reverse the denial of the motion for rehearing, and instruct the trial court to vacate the final summary judgment, and to allow Bonilla to respond to the complaint on the merits.

Reversed and remanded.

      . The note provides that upon default, Yale Mortgage will charge Bonilla the highest interest rate permitted by law, which is 18% per annum simple interest for loan transactions. See § 687.02(1), Fla. Stat. (2008).

      . “The Put Something Back Pro Bono Project is the official program for providing pro bono, or free legal assistance to the needy population of Miami-Dade County. It is designed to increase access to the civil legal system by serving as an umbrella agency for referral to all other legal service providers and as a clearinghouse for attorneys who volunteer to help the indigent of the community.” http:// www.judl 1 .flcourts.org/programs_and_ services/psb_and_aqs7.htm.


text:
    Julia Jane BALKOM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2325.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2009.
    Nancy Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Julia Bal-kom is hereby afforded a belated appeal from judgment and sentence entered in case number 2006CF1475 in the Circuit Court for Escambia County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The circuit court is directed to appoint counsel to represent petitioner in the appeal if she qualifies for such an appointment.

PETITION GRANTED.

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