author: MORRIS, Judge.

text:
    Polytimi EMMENEGGER, Appellant, v. Andre EMMENEGGER, Appellee.
    No. 2D12-4244.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Rehearing Denied Oct. 8, 2013.
    Michelle R. Brinner of Older & Lundy, Tampa, for Appellant.
    Ingrid Anderson, Clearwater, for Appel-lee.
   MORRIS, Judge.

Polytimi Emmenegger, the mother, appeals an amended order setting the amount of child support to be paid by Andre Emmenegger, the father, for the support of the parties’ three minor children after the parties’ oldest child reached majority age. We reverse and remand for the trial court to recalculate the father’s child support obligation in a manner consistent with this opinion.

I. Background

The parties divorced in 2003. The final judgment of dissolution adopted a marital settlement agreement that provided that the father would pay $2184 per month in child support for the parties’ four children and $5000 a month in alimony to the mother. In 2005, the trial court entered a stipulated supplemental final judgment adopting another agreement by the parties. This 2005 agreement and judgment increased the child support to $2400 per month and reduced the alimony to $4000 per month. The judgment specifically stated that “[t]he parties[’] visitation arrangements outlined herein will not be considered as the [f]ather[’s] having 40% of time with the children.” At the time, if a parenting schedule provided that a parent spend 40% of the overnights with their children, that parent was entitled to an adjustment in his or her child support obligation. See § 61.30(ll)(b)(10), Fla. Stat. (2005).

In 2007, the trial court entered a second supplemental final judgment reducing child support and alimony. This 2007 judgment was not entered as the result of an agreement but was entered after a final hearing before the trial court. In this 2007 judgment, the trial court found that the father suffered a 22.32% reduction in his income and the trial court reduced his alimony and child support to represent 48.86% of his income, noting that the trial court “intend[ed] to preserve the approximate ratio [that was used] at the time of the Final Judgment of Dissolution of Marriage.” The trial court accordingly reduced the child support to $2078 per month and the alimony to $2750 per month. The 2007 judgment specifically stated that “[a]ll paragraphs in the Final Judgment of Dissolution of Marriage and the Stipulated Supplemental Final Judgment other than those modified by this Order shall remain in full force and effect.”

In 2010, the father filed a supplemental petition for modification, seeking to modify his child support based on his oldest son’s reaching majority age. He claimed that he had unsuccessfully tried to get the mother to agree to reduce the child support for the remaining three minor children to $1760.88 per month, which represented the guidelines amount that did “not include a credit for 20% of overnights.” The 20% was a reference to the amended version of section 61.30(ll)(b), which provides that “ ‘substantial amount of time’ means that a parent exercises time-sharing at least 20 percent of the overnights of the year.” § 61.30(ll)(b)(8), Fla. Stat. (2010); ch.2010-199, § 5, at 2418 Laws of Fla. The father filed an amended supplemental petition, alleging one count for modification of child support, one count for modification of time-sharing, and one count for modification of alimony based on the mother’s financial situation. In response, the mother sought an increase in alimony based on the father’s increased income. The father filed an amendment to his amended supplemental petition, adding a count for declaratory relief.

The mother filed a motion for summary judgment, and after a hearing on November 24, 2011, the trial court entered an order on the mother’s motion for summary judgment. The trial court granted the mother’s motion as it related to the father’s counts for modification of child support and time-sharing, pursuant to a stipulation by the father. The trial court found that an issue of material fact existed on the issue of alimony and subsequently held a hearing on alimony on April 24 and 25, 2012. As a result of the hearing, the trial court found that the mother did not have an increase in income but that the father had an 18.17% increase in his net income since the 2007 final judgment. Therefore, the trial court increased the father’s alimony obligation to $3200 per month, which was approximately 23% of the father’s income as it was in the 2007 judgment. The court reserved jurisdiction to determine all issues regarding child support.

Due to the increase in the mother’s alimony award, the father filed a motion to determine child support payment, claiming that he should pay $1010 per month for three children. He also filed a motion for reduction in child support. This time, the father’s calculations did include an adjustment in the father’s proposed child support obligation on the basis of substantial time-sharing, using the specific figure that the father exercises 42.47% of the overnights with the children. The trial court held a hearing on July 10, 2012. The parties stated that they could not agree on whether the father’s amount of overnights should result in the father’s receiving a credit towards his child support obligation under section 61.30(ll)(b). The mother argued that in the 2005 agreement, the father “waived his right to [receive a statutory credit for] substantial time[-]sharing” and that as a result, the current child support amount “should not take into account substantial time[-]sharing.”

And ... I’m coming into court to ask the Court to continually follow what the parties have done in their contract....
The purpose of their [ajgreement was really clear. He does not obtain the benefit of substantial time[-]sharing. And therein, when there was a prior hearing [in 2007] when they adjusted the child support, and he was having the same 156 overnights, and there was no adjustment for substantial time[-]sharing.
And then this agreement in 2005 when he had adjusted his child support, when he had 156 overnights and they did not adjust child support based upon time[-]sharing....
So, I don’t understand why I’m looked upon as this unique kind of argument. This a very straightforward argument based upon their contract, their prior behavior and agreement, and what the law provides you [the] ability to do in these kind of situations.

The mother went on to argue that the father’s pleading never asked that the father receive a credit for substantial time-sharing. The mother argued that the 2007 supplemental judgment “did not apply the substantial time-sharing to his child support calculations.” Regarding the change in the statute from 40% to 20%, the mother argued that the change in the statute “does not modify the intentions of the parties under their prior stipulation.”

The trial court ruled that the 2005 agreement “does not say that if the law changes, or if the father gets a certain amount of time-sharing, that in the child support calculation that he will not receive any sort of threshold time[-]sharing.”

I don’t think there is any doubt that it’s inferred that he won’t get up to 40 percent. So, I’m going to calculate it at 39 percent, which is less than the 40 percent, which is exactly what the Agreement says.
The Agreement doesn’t say that the father won’t get any sort of threshold on the amount of overnights for time[-] sharing. It says that he won’t get 40 percent or he won’t be considered to have 40 percent. So since he has actually more than 40 percent, we’ll assume that he has 39 percent which is 142.
So, we’ll plug in 142 overnights with everything else and that’s the answer.

The trial court entered a written order consistent with its oral rulings, reducing the father’s child support obligation to $1178 per month for three children.

II. Analysis

On appeal, the mother first argues that the trial court unreasonably interpreted the provision in the 2005 agreement when it calculated the father’s child support obligation in 2012. The mother contends that in 2005, the parties “agreed that [the father] would not receive the benefit of the concomitant reduction in his child support obligation based upon a substantial shared time[-]sharing schedule.” The mother contends that “[t]he only logical and reasonable interpretation of the term in the [2005 judgment] ... is that the parties intended for this to have special meaning related to child support.” The mother argues that any other interpretation would render the 2005 provision meaningless.

This court applies a de novo standard of review to the trial court’s interpretation of the parties’ 2005 agreement. See Johnson v. Johnson, 848 So.2d 1272, 1273 (Fla. 2d DCA 2003) (citing Kipp v. Kipp, 844 So.2d 691, 691 (Fla. 4th DCA 2003); McIlmoil v. McIlmoil, 784 So.2d 557, 561 (Fla. 1st DCA 2001)). “Settlement agreements are to be interpreted in accordance with laws governing contracts.” Id. “Courts must ‘construe contracts in such a way as to give reasonable meaning to all provisions,’ rather than leaving part of the contract useless.” Publix Super Mkts., Inc. v. Wilder Corp. of Del., 876 So.2d 652, 654 (Fla. 2d DCA 2004) (quoting Hardwick Props., Inc. v. Newbern, 711 So.2d 35, 40 (Fla. 1st DCA 1998)). “When interpreting a contract, a court should ascribe terms their plain meaning and attempt to place itself as close as possible to the position occupied by the parties at the time the contract was executed, keeping in mind the goal to be accomplished by the agreement.” Conway v. Conway, 111 So.3d 925, 927 (Fla. 1st DCA 2013) (citing Delissio v. Delissio, 821 So.2d 350, 353 (Fla. 1st DCA 2002)).

At the time the parties entered into the stipulated agreement in 2005, section 61.30(ll)(b) allowed an adjustment in the child-support calculations when the parenting arrangement provides for the child or children to “spend a substantial amount of time with each parent.” § 61.30(ll)(b), Fla. Stat. (2005). For purposes of this statutory adjustment, “ ‘substantial amount of time’ means that the noncustodial parent exercises visitation at least 40 percent of the overnights of the year.” § 61.30(ll)(b)(10). Generally, the case law holds that this statutory adjustment is mandatory and that a party need not request it in order for a party to receive its benefit. See Keeley v. Keeley, 899 So.2d 387, 388 (Fla. 2d DCA 2005); Migliore v. Harris, 848 So.2d 1250 (Fla. 4th DCA 2003); Santiago v. Santiago, 830 So.2d 922, 923 (Fla. 4th DCA 2002). But the issue in this case is whether the father expressly waived his right to this statutory reduction.

The provision at issue in the 2005 agreement specifically states that “[t]he parties[’] visitation arrangements outlined herein will not be considered as the [f]a-ther[’s] having 40% of time with the children.” It is clear from the wording of the provision and the other provisions in the agreement relating to child support and visitation that the parties intended for the father’s visitation schedule to have no effect on the father’s child support obligations. Specifically, the parties intended that the father would pay a specific amount of child support, that the father would receive 40% of the overnights with the children, and that the father would not receive the adjustment in his child support obligation that he would otherwise legally be entitled to under section 61.30(ll)(b). The goal to be accomplished by the agreement was that the father would provide a particular amount of support for his children without consideration of his substantial time-sharing. There is no other reasonable reading of this provision; there was no reason why the father’s 40% visitation would need to be “considered” other than for the purpose of child support.

The father claims that the parties “could have agreed that [the father] would not get the benefit of a statutorily-mandated reduction for substantial time-sharing” but that they did not expressly agree to that. But the father has not given any other meaning to this provision or explained why the 40% visitation would be relevant to any issue other than the statutory reduction in child support in the 2005 version of section 61.30(ll)(b)(10). The trial court interpreted the provision at issue to be merely an acknowledgement by the father that he did not receive 40% of the visitation with the children in the 2005 agreement, but this interpretation is inconsistent with a clear reading of the visitation schedule provided in that 2005 agreement and with the father’s admission that he received at least 40% of the overnights with the children.

We note that when the trial court reduced the father’s child support in 2007, it did not adjust the father’s obligation in accordance with the statutory adjustment in section 61.30(ll)(b)(10). The trial court stated in the 2007 order that in reducing the father’s alimony and child support, it was effectively “preserving] the approximate ratio” that the father agreed to pay in his final judgment in 2003. The 2007 judgment did not alter the provision at issue in the 2005 agreement; rather, the 2007 judgment specifically provided that “[a]ll paragraphs in ... the Stipulated Supplemental Final Judgment other than those modified by this Order shall remain in full force and effect.”

Because the provision in the 2005 agreement clearly indicates the parties’ intention to not give the father a statutory adjustment in his child support based on his substantial time-sharing, the trial court erred in applying the adjustment in section 61.30(ll)(b), absent some substantial change in circumstances that would justify overlooking the father’s earlier waiver of his right to that statutory reduction. See Knight v. Knight, 702 So.2d 242, 243 (Fla. 4th DCA 1997) (noting the “well[-]established rule that when ‘the child support was based on an agreement by the parties that was subsequently incorporated into an order, a heavier burden rests on the party seeking a reduction than would otherwise be required’ ” (quoting Overbey v. Overbey, 698 So.2d 811, 814 (Fla.1997))); cf. Seiberlich v. Wolf, 859 So.2d 570 (Fla. 5th DCA 2003) (holding that in modification proceeding, trial court should have adjusted child support based on substantial time-sharing even though the father had earlier agreed to pay child support without such an adjustment; trial court found that circumstances had changed based on father’s reduction in income). The father sought the instant reduction in child support based on the parties’ oldest child’s reaching majority age and no other factual change in circumstances. He did not seek the reduction in child support based on any reduction in his income; in fact, the father’s income had increased since his child support had been reduced in 2007. The father does argue on appeal that the 2010 amendment to section 61.30(ll)(b) is relevant. He contends that the 2005 agreement did not address “a potential future mandatory change in the law,” but he does not explain how this change in the law now entitles him to the statutory re-duetion that he waived when he entered into the 2005 agreement.

The father contends that the trial court did not err because the statutory adjustment for child support based on substantial time-sharing is mandatory. But the cases holding that the adjustment is mandatory do not involve a parent who expressly agreed to waive the right to have his child support adjusted. Cf., e.g., Migliore, 848 So.2d 1250.

The mother raises other issues on appeal, but in light of our reversal, such issues are rendered moot. We reverse the amended order setting amount of child support and remand for the trial court to recalculate the father’s child support obligation in accordance with the parties’ prior agreement and without the statutory adjustment for the father’s substantial time-sharing.

Reversed and remanded.

CRENSHAW, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . The order also sets the amount of child support the father must pay when the parties’ second child reaches majority age.

      . The parties both agree on appeal that the visitation schedule in the 2005 agreement gave the father more than 40% of the overnights with the children. And when the father sought a reduction in child support after the alimony had been increased, the father submitted child support worksheets confirming that the father has at least 40% of overnights with the children.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Joseph BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2531.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Joseph Bush appeals “judgments” and sentences that were entered on revocations of his probation in two cases. We dismiss this appeal as moot because Mr. Bush has fully served his sentences. We write to discuss the difficulty of providing meaningful relief in appeals from short sentences and to identify a significant problem with the standard forms that were used to revoke probation in these two cases from Pasco County.

In 2009, Mr. Bush was on probation in case numbers 04-00131-CFAWS and 05-00577-CFAWS when an affidavit of violation was filed in each case. Following an evidentiary hearing in April 2011, the trial court found that Mr. Bush had violated the conditions of his probation and sentenced him to concurrent terms of five years’ imprisonment. Mr. Bush then filed this appeal.

The State properly and candidly conceded error on one issue raised by Mr. Bush with respect to case number 05-00577-CFAWS, which could have resulted in a reversal and remand for reinstatement of Mr. Bush’s probation in that case. However, in January 2013, while this appeal was pending, Mr. Bush was released from custody by the Department of Corrections. This primarily occurred because Mr. Bush had more than one thousand days of jail credit when the sentences were imposed. Thus, with jail credit and gain time, he had fully served his sentences in both cases before the end of January 2013. As a result, this court suspected that it could afford no meaningful relief to Mr. Bush.

This court ordered Mr. Bush’s counsel, Richard J. Sanders, to respond as to whether the issues raised in this appeal had become moot. Mr. Sanders is an experienced and respected assistant public defender who admitted that the case was moot. In his response, he commented that, from his twenty-nine years of experience, this problem was not uncommon. As he explained, an appellant with a short “net” sentence can rarely perfect an appeal of a sentencing issue before the sentence has been fully served. Mr. Sanders recognized that a solution to this problem would require some type of expedited proceeding that may be difficult to implement.

Although it is true that such a solution might be difficult to implement, it may be that the State and the defendant could occasionally stipulate to an immediate relinquishment to the trial court to correct such errors. Given that defendants should be entitled to more than mere procedural due process in appeals of sentencing issues, this court would be open to any method that the State and the public defenders might devise to address such sentencing errors, so long as it does not significantly delay the disposition of other cases.

We now turn to the significant problem in the standard forms that were used by the trial court. In both of these cases, the trial court used a form judgment that may be unique to Pasco County. The form deviates from the supreme court’s approved forms in Florida Rules of Criminal Procedure 3.986(b), 3.986(d), and 3.995. The form judgment has a location where it can be checked for use at a hearing on a violation of probation or community control, a retrial, or a resentencing. Below the standard section in which the defendant is either adjudicated guilty or has guilt withheld, the form has an additional line that states: “_The Court finds that the defendant violated all the conditions alleged in the affidavit, a copy of which is attached.” This is the box that was checked on both of the judgments on appeal. The trial court never entered an order of revocation similar to the form appearing in rule 3.995.

This form, especially as used in this case, creates several problems. First, it causes multiple judgments of guilt to be entered in a single ease. This court has previously explained that a violation of probation concerning a defendant who has already been adjudicated guilty should not be resolved by the entry of another judgment of guilt. See Johnson v. State, 17 So.3d 1290 (Fla. 2d DCA 2009).

Second, the language of the order merely finds that the “defendant violated all of the conditions alleged in the affidavit.” Putting aside the problem a trial court would have using this form in a case like this one where at least one violation was not proven, this language does not actually revoke probation. Obviously, it is common for defendants to be found in violation of probation and not have their probation revoked. If the trial court had revoked probation on the record in open court, we would be less concerned in this case. But the record reflects that the trial court only found violations of probation; the court never actually revoked Mr. Bush’s probation. In the absence of written revocation orders, the trial court had no authority to enter new sentences of imprisonment. See Dawkins v. State, 936 So.2d 710, 712 (Fla. 2d DCA 2006).

On return of this record to the trial court, we would encourage the trial court to examine carefully the forms that are currently in use to address both violations of probation that do not result in revocation and those that do.

Appeal dismissed as moot.

On Motion for Rehearing

The appellant’s attorney has filed a motion for rehearing explaining that his concession that the appeal was moot overlooked some possible collateral consequences. If Mr. Bush was unlawfully incarcerated as a result of an improper revocation of probation, then it is at least arguable that he can avoid liability for certain incarceration costs and other correctional costs. The State concedes that the rehearing has merit. Accordingly, we reinstate this appeal.

Although the State properly concedes reversible error in the revocation of Mr. Bush’s probation in case number 05-00577-CFAWS, it does not concede error in the revocation of Mr. Bush’s probation in case number 04-00131-CFAWS. Competent, substantial evidence established a willful and substantial violation of probation in case number 04-00131-CFAWS, and the trial court did not abuse its discretion in revoking Mr. Bush’s probation and in sentencing him to five years’ imprisonment in that case. Furthermore, despite the procedural incongruities mentioned in our original opinion, we have not found reversible error as to the revocation of probation in that case. We thus affirm the revocation of Mr. Bush’s probation and the resulting sentence of five years’ imprisonment in case number 04-00131-CFAWS. However, in light of the possibility that the costs of incarceration or other collateral consequences might be slightly different for these two cases, we reverse the order of revocation and the resulting sentence in case number 05-00577-CFAWS. On remand, the trial court shall reinstate the order of probation in case number 05-00577-CFAWS, which has now been fully served.

Affirmed in part, reversed in part, and remanded.

BLACK, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . Although the affidavits of violation are in the record on appeal, they were not actually attached to the judgments as represented.

      .This court often relinquishes jurisdiction to the trial court by nonpublished order to enter an order of revocation when the issues raised in an appeal involve the revocation of a defendant’s probation or community control and a written revocation order has not been rendered by the trial court. See Dawkins v. State, 936 So.2d 710, 712 (Fla. 2d DCA 2006). In rare instances, we treat a second judgment as a final appealable order effectively revoking probation. Id. at 712. Occasionally, we require that the order be entered on remand from this court. See, e.g., Dolinger v. State, 779 So.2d 419 (Fla. 2d DCA 2000). Because the issues raised in this appeal were rendered moot by Mr. Bush's completion of his sentences and his release from the custody of the Department of Corrections, we declined to issue an order relinquishing jurisdiction and in this opinion we have not remanded this matter for the entry of proper revocation orders.

      . Indeed, in 2005, Mr. Bush violated the conditions of his probation in both cases. He negotiated a plea concerning the violations that contemplated a modification of his probation in each case rather than a revocation. At that time, the trial court simply entered another standard order of probation in each case that adjudged Mr. Bush guilty of the "offense.” Thus, in this record he has six judgments of guilt when he is supposed to have only two.

      . To the extent that our original opinion suggests that a case might become moot merely because a defendant has fully served his or her sentence, we acknowledge that this would not be correct in all cases.


author: KELLY, Judge.

text:
    Richard S. SCOLARO and Scolaro, Shulman, Cohen, Fetter & Burstein, P.C., Petitioners, v. M. Ashley BUTLER, PH.D., as Guardian of Claudine B. O’Connor, Commerce Trust Company, a Division of Commerce Bank, N.A., as Co-Trustee of the Claudine B. O’Connor Revocable Trust Agreement dated January 27, 1984, as amended on August 22, 2002, and Lester B. Cox, as Co-Trustee of the Claudine B. O’Connor Revocable Trust Agreement dated January 27, 1984, as amended on August 22, 2002, Respondents.
    No. 2D12-4496.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Rehearing Denied Nov. 18, 2013.

      James E. Moon of Quintamos, Prieto, Wood & Boyer, P.A., Fort Myers, for Petitioners.
    Brian L. Trimyer and Adam Moham-madbhoy of Harllee & Bald, P.A., Braden-ton; and Erika Dine of Dine Law, P.L., Sarasota, for Respondents.
   KELLY, Judge.

Petitioners, Richard S. Scolaro and the law firm of Scolaro, Shulman, Cohen, Fetter & Burstein, P.C., seek certiorari review of the order requiring Scolaro to submit to a mental examination under Florida Rule of Civil Procedure 1.360. The petitioners assert that the trial court departed from the essential requirements of the law: (1) by failing to require the respondents to establish the grounds for a mental examination under rule 1.360; and (2) by allowing counsel for respondent M. Ashley Butler, Ph.D, to be present at Sco-laro’s examination. We grant the petition only to the extent that it allows Butler’s counsel to be present at the examination.

The petitioners provided trust and estate services to Claudine O’Connor for many years. O’Connor’s mental health began to decline and, as a result, she became a ward of the court under the guardianship of Butler. Butler sued the petitioners for declaratory and injunctive relief, alleging that they breached their legal duties to O’Connor by allowing family members to exploit her and to dispose of her assets against her express wishes. When Butler served interrogatories and a request for production of documents on Scolaro and notified Scolaro’s counsel that she wished to schedule a deposition, Scolaro’s counsel filed a motion for protection from discovery. The motion alleged that Scolaro “suffers from medical conditions which would render his ability to participate in depositions and/or respond to interrogatories impossible” and claimed that Seolaro’s condition was “progressive.”

In reply, the respondents filed a motion for compulsory examination under rule 1.360(a)(1)(B), which the trial court granted. In their certiorari petition, the petitioners argue that the trial court departed from the essential requirements of the law in ordering the examination because Butler did not establish that Scolaro’s medical condition was “in controversy” or that there was “good cause” for the examination of Scolaro to occur. See Fla. R. Civ. P. 1.360(a)(1) & (2) (“A party may request any other party to submit to ... examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.... An examination under this rule is authorized only when the party submitting the request has good cause for the examination.”). We need not decide whether the trial court departed from the essential requirements of law in that regard, however, because the petitioners have not demonstrated that ordering Scolaro to be examined will result in irreparable harm.

Scolaro has sought to avoid being deposed. A person from whom discovery is sought can move for protection from discovery or have discovery limited to certain conditions if good cause exists to protect the party. Fla. R. Civ. P. 1.280(c). “ ‘A strong showing [of good cause] is required before a party will be denied entirely the right to take a deposition.’ ” Bush v. Schiavo, 866 So.2d 136, 138 (Fla. 2d DCA 2004) (quoting Deltona Corp. v. Bailey, 336 So.2d 1163, 1169-70 (Fla.1976)). Good cause may be shown when the person is incapable of expressing himself or incapable of understanding the duty to tell the truth. § 90.603, Fla. Stat. (2011). In order to avoid discovery, Scolaro will be required to have an examination to determine if he is competent to testify. See Belcher v. Johnson, 834 So.2d 422, 422 (Fla. 2d DCA 2003) (quashing a protective order and remanding to the trial court to conduct a hearing to determine whether a deponent suffering from dementia should be disqualified from testifying). At best, the petitioners’ argument amounts to a complaint that the trial court used the wrong procedural means to order the examination, not that it should never have ordered the examination at all. Thus, we conclude that the petitioners have not met their burden to show that the order results in irreparable harm.

We do, however, agree that the trial court’s inclusion of a provision allowing Butler’s counsel to be present at Scola-ro’s examination departed from the essential requirements of the law and will cause material injury that cannot be remedied on appeal. See Chavez v. J & L Drywall & Travelers Ins. Co., 858 So.2d 1266, 1268 (Fla. 1st DCA 2003). The party who moves for the examination of the other party does not have the right to have counsel present at the examination. Prince v. Mallari, 36 So.3d 128, 131 (Fla. 5th DCA 2010). The party being examined has a privacy interest that deserves protection; the party seeking the examination already is represented by the examiner. Id. at 132.

Accordingly, we grant the petition for writ of certiorari and quash the order to the extent that it allows Butler’s counsel to be present at Scolaro’s mental examination. We reject Scolaro’s argument that the trial court’s order failed to adequately set forth the manner, conditions, and scope of any examination.

Petition denied in part and granted in part.

SILBERMAN and SLEET, JJ„ Concur.


text:
    Evelyn PELHAM, Appellant, v. Josephine Latasha WALKER, Appellee.
    Nos. 2D11-6128, 2D12-1972.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.

      Andrew A. Harris of Burlington and Rockenbach, P.A., West Palm Beach, and Jason D. Weisser of Schuler, Halvorson, Weisser & Zoeller, P.A., West Palm Beach, for Appellant.
    Kathryn L. Smith of Cole, Scott & Kis-sane, P.A., Miami, for Appellee.
   MORRIS, Judge.

Appellant Evelyn Pelham appeals a final judgment entered in her favor after a jury awarded Pelham partial damages resulting from the negligence of appellee Josephine Walker. We find merit in Pelham’s arguments that the trial court erred in denying her challenge to a juror for cause and that the trial court erred in not allowing her to inform the jury about her Social Security disability status after defense counsel opened the door to such evidence. Pelham also appeals an order denying her motion to tax costs against Walker. We reverse both the final judgment and the order on costs for the reasons expressed below.

I. Final judgment on damages

The parties were involved in a motor vehicle accident in 2008. Pelham brought a negligence action against Walker. Walker admitted that she was at fault for the accident. The jury returned a verdict awarding Pelham $36,400 in past medical expenses and past lost earnings. The jury found that there was no permanent injury and awarded zero future lost earnings, zero future medical expenses, and zero noneconomic damages. The following facts are pertinent to the issues on which we reverse.

A. Voir Dire

During jury voir dire, Pelham’s counsel asked the venire how they felt about noneconomic damages, such as pain and suffering or loss of enjoyment for the capacity of life. A veniremember, Juror G, stated, “I don’t like them, but I can follow the law.” When asked why she does not like noneconomic damages, she stated that she was a risk manager and that such damages seemed “punitive against the other side.” She explained that for the past twelve years, she had assessed worker’s compensation and general liability claims and reviewed about 300 to 400 claims per year. Pelham’s counsel asked Juror G if she “might be slightly more defense-oriented,” and she answered, ‘Tes. Yes, absolutely.” Pelham’s counsel asked if her past experiences might “make it difficult for [her] to be fair and impartial sitting as a juror in this particular case.” Juror G answered that “without knowing any more than I do right now,” she could not say yes or no. The following exchange then occurred:

[PELHAM’S COUNSEL]: Is there that thought in the back of your head that when, if you got selected on the jury, you might be sitting there thinking, oh, I just know from my experience I’d be looking for certain things because of what I’ve analyzed during the past? [JUROR G]: Yes.

At the conclusion of Pelham’s counsel’s questioning of the venire, he asked whether the panel members could not base their decisions on sympathy and whether the panel members would base their decisions solely on the facts, evidence, and law as instructed by the judge. The transcript in this case does not reflect that any venire-member responded to either question.

During defense counsel’s questioning of the venire, defense counsel generally asked whether the panel members could follow the law as instructed by the judge even if they did not agree with it and whether the panel members could set aside their preconceived notions and prejudices. There is no indication in the transcript if any panel member answered these questions. Defense counsel specifically addressed Juror G and asked if she could “fairly and truly try the issues that are presented in this courtroom and follow the law” given her knowledge and experiences. Juror G answered, “Yes, I do.”

At the conclusion of defense counsel’s questioning, he asked if everyone agreed that they could “hear this evidence fairly, give both sides ... their fair consideration and reach a verdict that’s based on the evidence.” The transcript indicates that the venire panel answered, “Yes.”

Pelham’s counsel moved to strike Juror G from the proposed jury for cause, arguing that her answers indicated that she could not be fair and impartial. The trial court denied Pelham’s challenge for cause. Because he was out of peremptory challenges, Pelham’s counsel moved for an additional peremptory challenge. The trial court also denied that request. Pelham’s counsel objected to the jury, but the trial court denied the objection, and the jury was seated and sworn with Juror G as a member.

We apply the abuse of discretion standard to a trial court’s decision to deny a challenge for cause to a potential juror. See Ault v. State, 866 So.2d 674, 684 (Fla.2003). Although the trial court has discretion in determining a challenge for cause, the challenge must be granted if there is any reasonable doubt regarding a potential juror’s impartiality. See Darr v. State, 817 So.2d 1093, 1093 (Fla. 2d DCA 2002). “[A]mbiguities or uncertainties about a juror’s impartiality should be resolved in favor of excusing the juror.” Carratelli v. State, 961 So.2d 312, 318 (Fla.2007); see also Caldwell v. State, 50 So.3d 1234, 1237 (Fla. 2d DCA 2011).

In Pacot v. Wheeler, 758 So.2d 1141, 1142 (Fla. 4th DCA 2000), jurors stated during voir dire that they would have difficulty following the law regarding damage awards for pain and suffering. The Fourth District held that the trial court abused its discretion in denying cause challenges to the jurors where the jurors were not rehabilitated. The potential juror in this case, Juror G, agreed that she was defense-oriented and expressed concern with awarding noneconomic damages, thereby indicating that the defense would be starting the case with an advantage over the plaintiff. See Hill v. State, 477 So.2d 553, 556 (Fla.1985) (“A juror is not impartial when one side must overcome a preconceived opinion in order to prevail.”); Weinstein Design Grp. v. Fielder, 884 So.2d 990, 995 (Fla. 4th DCA 2004) (holding that jurors should have been dismissed for cause where they agreed that one party was starting the case off with “an edge”); Jaffe v. Applebaum, 830 So.2d 136, 138 (Fla. 4th DCA 2002) (holding that juror should have been dismissed for cause where his answers indicated that plaintiffs would be starting off with a “half strike against them”). Some of Juror G’s answers were equivocal, but she was “absolutely” certain when she stated that she was defense-oriented.

The subsequent questions asked by both attorneys did not serve to rehabilitate Juror G. Even though Juror G later said that she could be fair and that she could follow the law, she never “recanted or receded from [her] earlier expressed view” that she was “absolutely” defense-oriented and believed that noneconomic damages are punitive to the defense. See Algie v. Lennar Corp., 969 So.2d 1135, 1138 (Fla. 4th DCA 2007) (holding that juror, who believed that every slip-and-fall victim was “at least partially responsible and that this would factor into his decision[,]” was not rehabilitated; even though he subsequently stated that he could be fair, he “never recanted or receded from his earlier expressed view”). In light of Juror G’s answers regarding her work experience and how it affected her view on noneconomic damages, we imagine that it would have been difficult, if not impossible, to rehabilitate her so that she could sit as a fair and impartial juror in this .particular case. See Jaffe, 830 So.2d at 138 (noting that neither party attempted to rehabilitate juror who expressed bias towards defense surgeons but concluding “that any attempt to rehabilitate [the juror] would have been futile in light of his responses to [plaintiffs’ counsel’s] questions”); Club W., Inc. v. Tropigas of Fla., Inc., 514 So.2d 426, 427 (Fla. 3d DCA 1987) (holding that her prior equivocal answers required that juror be dismissed for cause and noting that juror’s subsequent change in opinion, arrived at after further questioning, should be “viewed with some s[k]epticism”). With regard to the issue of rehabilitating a potential juror, the Florida Supreme Court said it best:

It is difficult, if not impossible, to understand the reasoning which leads to the conclusion that a person stands free of bias or prejudice who having voluntarily and emphatically asserted its existence in his mind, in the next moment under skillful questioning declares his freedom from its influence. By what sort of principle is it to be determined that the last statement of the man is better and more worthy of belief than the former?

Johnson v. Reynolds, 97 Fla. 591, 121 So. 793, 796 (1929).

We conclude that Juror G’s answers during voir dire demonstrated a reasonable doubt about her ability to be impartial and that the trial court therefore abused its discretion in denying Pelham’s challenge for cause to Juror G.

B. Pelham’s Disability Status

Prior to trial, defense counsel filed a motion in limine to prohibit any evidence of Pelham’s disability, including that Pel-ham had been determined by the Social Security Administration to be disabled and that Pelham is receiving disability benefits. Pelham agreed. The trial court ruled that such evidence would be excluded.

At trial, defense counsel questioned Pel-ham’s daughter about the fact that her mother did not work, that her mother had not made any effort to seek work, and that her mother “basically lays around and watches TV all day.” After this line of questioning, Pelham’s counsel made an oral motion for the admission of Pelham’s disability status, claiming that the door had been opened by the defense’s questioning. Pelham argued that defense counsel had created a misleading picture for the jury by giving them the impression that Pelham had been voluntarily doing nothing all day, every day when in fact she had been declared disabled by the Social Security Administration. The trial court denied Pelham’s motion.

We review the trial court’s evi-dentiary rulings for an abuse of discretion. See Hudson v. State, 992 So.2d 96, 107 (Fla.2008) (citing Williams v. State, 967 So.2d 735, 747-48 (Fla.2007); Johnston v. State, 863 So.2d 271, 278 (Fla.2003)). A trial court’s discretion on such matters is limited by the rules of evidence. Id. (citing Johnston, 863 So.2d at 278); Masaka v. State, 4 So.3d 1274, 1279 (Fla. 2d DCA 2009) (citing McDuffie v. State, 970 So.2d 312, 326 (Fla.2007); Johnston, 863 So.2d at 278). In addition, the error must be harmful in order to warrant reversal. Fla. Inst. for Neurological Rehab., Inc. v. Marshall, 943 So.2d 976, 978 (Fla. 2d DCA 2006).

Although the parties had agreed before trial, and the trial court ruled accordingly, that evidence of Pelham’s disability would not be introduced, this matter became relevant when the defense opened the door by eliciting Pelham’s daughter’s testimony that Pelham did not work and was not seeking work. With regard to opening the door to otherwise inadmissible evidence, the Florida Supreme Court has instructed:

“[T]he concept of ‘opening the door’ allows the admission of otherwise inadmissible testimony to ‘qualify, explain, or limit’ testimony or evidence previously admitted.” Lawrence v. State, 846 So.2d 440, 452 (Fla.2003) (quoting Rodriguez v. State, 753 So.2d 29, 42 (Fla.2000)). “The concept of ‘opening the door’ is ‘based on considerations of fairness and the truth-seeking function of a trial[,]’ ” and without the fuller explication, the testimony that opened the door “would have been incomplete and misleading.” Lawrence, 846 So.2d at 452; see also Overton v. State, 801 So.2d 877, 900-01 (Fla.2001) (agreeing that the State is permitted to fill in the gaps in the testimony to correct a false impression left by the defendant).

Hudson, 992 So.2d at 110. Here, the defense’s questioning of Pelham’s daughter misled the jury to believe that Pelham is lazy and so unmotivated to work that she had not bothered looking for employment. The defense did so knowing that Pelham had been declared disabled by the Social Security Administration and that Pelham was prohibited from introducing any evidence of her disability status due to the trial court’s ruling in limine. Fairness considerations required that once the defense introduced the incomplete and misleading testimony, Pelham should have been allowed to offer the complete picture to the jury by explaining that she was receiving disability benefits based on a determination that she is disabled. See State Farm Mut. Auto. Ins. v. Gordon, 712 So.2d 1138, 1139-40 (Fla. 3d DCA 1998) (recognizing that defense should have been permitted to introduce evidence of collateral sources once plaintiff opened the door by purposely misleading the jury by suggesting plaintiff, who had been a successful attorney, was living in abject poverty). The trial court abused its discretion in not allowing such evidence after the defense opened the door.

We note that evidence of collateral sources is generally inadmissible to establish malingering by the plaintiff or to rebut or impeach the plaintiffs stated motivation to return to work. See id. at 1139 (citing Gormley v. GTE Prods. Corp., 587 So.2d 455 (Fla.1991)). But that general rule benefits the plaintiff because collateral source evidence is generally prejudicial to the plaintiff. Here, Pelham sought to introduce evidence of her disability status and benefits once the defense opened the door by questioning her motivation to work. Pelham’s credibility was a central issue in the trial, and we conclude that the trial court committed reversible error in not allowing Pelham to introduce evidence explaining why she does not work once that subject was raised by the defense.

C. Conclusion

In sum, we reverse the final judgment entered after the jury verdict for the two reasons expressed above and we remand for a new trial on damages. We do not address the two other issues raised by Pelham on appeal from the final judgment.

II. Order on costs

The trial court concluded that Pelham was not entitled to costs, even though a final judgment was entered awarding her partial damages. Pelham correctly argues, and Walker concedes, that because Pelham recovered judgment, she was entitled to an award of costs. See § 57.041(1), Fla. Stat. (2011); Wolfe v. Culpepper Constructors, Inc., 104 So.3d 1132, 1136 (Fla. 2d DCA 2012) (en banc). But because the final judgment is being reversed, the order on costs is also reversed, subject to further proceedings on remand.

Final judgment and order on costs reversed; remanded for further proceedings.

DAVIS, C.J., and CRENSHAW, J., Concur.

      . The appeal of the final judgment (2D 11-6128) and the appeal of the order on costs (2D12-1972) were consolidated for all purposes.


author: VILLANTI, Judge.

text:
    Suliany Ivette GARCIA-MEDINA, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-665.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.

      Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Suliany Ivette Gareia-Medina appeals the revocation of her probation and the resulting adjudication of guilt and prison sentence, contending that her probation expired before the violation affidavit was filed and that therefore the trial court was without jurisdiction to revoke her probation. Because the record bears out this contention, we must vacate the order of modification and the resulting revocation order, adjudication of guilt, and sentence.

On July 23, 2009, Gareia-Medina pleaded guilty to one count of third-degree grand theft. The trial court withheld adjudication and sentenced Gareia-Medina to eighteen months’ probation. As imposed, the probationary sentence was set to expire on January 23, 2011.

On November 2, 2010, the trial court entered an order that purported to modify Garcia-Medina’s probationary sentence from a term of eighteen months to a term of five years. While this modification order states that it was entered “due to a violation brought before the court,” no affidavit of violation of probation was filed before the modification order was entered, no warrant for arrest or notice to appear was served on Gareia-Medina, and no hearing on the alleged violation was held. Moreover, while the modification order contains a section in which the probation officer is to certify that the order was delivered to the probationer, that section is blank. Hence, nothing in the record establishes that the modification order was ever served on or otherwise provided to Gareia-Medina.

On December 14, 2011, the Department of Corrections filed an affidavit of violation of probation alleging that Gareia-Medina had violated her probation by using marijuana and by failing to make the required payments toward her restitution. Gareia-Medina admitted to the alleged violations, and the trial court revoked her probation, adjudicated her guilty, and sentenced her to one year and one day in prison with credit for time served.

Gareia-Medina now appeals the revocation of her probation, the adjudication of guilt, and the resulting sentence, contending that the trial court was without jurisdiction over her when it purported to revoke her probation. She argues that the November 2010 modification order was a nullity because the trial court did not follow the procedures required by section 948.06, Florida Statutes (2010), before it purported to modify her probation; that because the November 2010 modification order is a nullity, her probation ended by its own terms on January 23, 2011; and that because the affidavit of violation of probation at issue here was filed after January 23, 2011, the trial court lacked jurisdiction to revoke her probation. The record supports these arguments, thus mandating that we vacate the challenged orders, judgment, and sentence.

The supreme court addressed a somewhat analogous situation in Lippman v. State, 683 So.2d 1061 (Fla.1994). There, the Department of Corrections filed an affidavit of violation of probation alleging that Lippman violated three conditions of his probation. Id. at 1062-63. The trial court found that the allegations did not relate to valid conditions of Lippman’s probation, and it refused to find Lippman in violation. Id. at 1063. At that point, the State made an oral motion to modify Lipp-man’s probation to “clarify” the conditions of his probation. Id. The trial court granted this oral motion and modified certain conditions of Lippman’s probation in such a way that Lippman was forced to leave his employment, move from his residence, and have no contact with his siblings. Id. Lippman’s modified probation was subsequently revoked after he had contact with his siblings, and he was sentenced to twelve years in prison. Id. In finding that the modification of the conditions of Lipp-man’s probation was unauthorized, the supreme court explained:

Both the United States Constitution and the Florida Constitution guarantee that no individual will be put in jeopardy more than once for the same offense. The guarantee against double jeopardy consists of three separate constitutional protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted) (emphasis added).
It is the third protection against multiple punishments for the same offense that is implicated in this case. Probation is a sentence in Florida. Larson v. State, 572 So.2d 1368, 1370 (Fla.1991). Thus, the double jeopardy protection against multiple punishments includes the protection against enhancements or extensions of the conditions of probation. See Williams v. State, 578 So.2d 846 (Fla. 4th DCA 1991) (finding that extension of probationary period at subsequent restitution hearing when sentence already imposed at earlier sentencing hearing violated double jeopardy).
Section 948.06, Florida Statutes (1987), “provides the sole means by which the court may place additional terms on a previously entered order of probation or community control.” Clark v. State, 579 So.2d 109, 110 (Fla.1991). Before probation may be enhanced, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge. Id. at 110-11; § 948.06(1), Fla. Stat. (1987). Absent proof of a violation, the court cannot change an order of probation by enhancing the terms. Clark, 579 So.2d at 110-11. In the instant case, the court specifically found no violation of probation, yet proceeded to enhance the terms of Lipp-man’s probation. This violated the double jeopardy prohibition against multiple punishments for the same offense. Thus, the order modifying probation must be vacated. The consequences that resulted from Lippman’s violation of that modified probation must be vacated as well, including the order revoking probation, the adjudication of guilt, and the sentence imposed.

Lippman, 633 So.2d at 1064 (emphasis added; footnotes omitted). The Lippman court relied on Clark v. State, 579 So.2d 109, 110-11 (Fla.1991), which held, in pertinent part:

Before probation or community control may be enhanced, either by extension of the period or by addition of terms, a violation of probation or community control must be formally charged and the probationer must be brought before the court and advised of the charge following the procedures of section 948.06. Absent proof of a violation, the court cannot change an order of probation or community control by enhancing the terms thereof, even if the defendant has agreed in writing with his probation officer to allow such a modification and has waived notice and hearing.

See also Nichols v. State, 672 So.2d 825, 825 (Fla. 2d DCA 1995) (“Absent proof of a violation of probation, a trial court cannot modify an order of probation by enhancing its terms.”); Eddie v. State, 933 So.2d 570, 571 (Fla. 1st DCA 2006) (“Before probation may be enhanced, either by extension of the period or by addition of terms, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge, following the procedures of section 948.06, Florida Statutes (1993).”); Frederick v. State, 405 So.2d 1344, 1345 (Fla. 3d DCA 1981) (holding that the trial court’s sua sponte order that purported to modify the defendant’s probation violated double jeopardy and was also an unauthorized extension under section 948.06). This is true even if the trial court has specifically reserved jurisdiction for the purpose of adding a special condition, see Dennis v. State, 630 So.2d 605 (Fla. 1st DCA 1993), or if the defendant “has agreed in writing with his probation officer to allow such a modification and has waived notice and hearing,” Clark, 579 So.2d at 111.

Here, the record plainly shows that the trial court enhanced Garcia-Medina’s probationary term from eighteen months to five years, but nothing in the record shows that the trial court complied with the requirements of section 948.06 in doing so. Section 948.06(l)(b) requires that the Department of Corrections file an affidavit of violation and serve the probationer with either a warrant or a notice to appear. However, no affidavit of violation is in the record, and the record does not show that Garcia-Medina was served with either a warrant or a notice to appear. Moreover, there is no record of any hearing of any kind taking place before the modification order was rendered.

There is some indication in the record that the Department of Corrections may have submitted a “notification letter” of a “technical violation ... in lieu of a violation report” as permitted by section 948.06(l)(e). While no such notification letter appears in the record, even if we assume that one was properly submitted to the court, section 948.06(2) still requires that the trial court hold a hearing before any violation may be found and before any modification to the terms of probation may be made. While a trial judge who receives a notification letter of a technical violation may have various options available for dealing with that notification letter, bypassing the notification and hearing requirements of section 948.06 is not one of those options if the court intends to modify any of the terms of probation. Hence, because the trial court did not comply with the requirements of section 948.06 before it purported to modify Garcia-Medina’s probation, the November 2010 modification order is a nullity. And because the revocation order and judgment and sentence under review rely on the invalid November 2010 modification order to find a violation of probation, the revocation order and the resulting adjudication and sentence must be vacated.

In this appeal, the State contends that Gareia-Medina waived this issue when she failed to appeal the November 2010 modification order. We reject this argument for two reasons. First, the record does not show — and the State does not argue — that either Gareia-Medina or her attorney was ever served with the order of modification or had any knowledge that an appealable order had been rendered. Waiver is the relinquishment of a known right. See Blanton v. State, 978 So.2d 149, 155 (Fla.2008). Absent some evidence of knowledge of the rendered modification order, we will not find a waiver.

Second, as the supreme court stated in Lippman, “[t]he prohibition against double jeopardy is ‘fundamental.’ ” 633 So.2d at 1064 (quoting Benton v. Maryland, 395 U.S. 784, 795-96, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)). Thus, the failure to raise a double jeopardy claim in a direct appeal from the modification order does not waive that claim. Id. (citing State v. Johnson, 483 So.2d 420, 423 (Fla.1986)). Florida courts regularly vacate revocation orders based on void modification orders without reference to whether or not a direct appeal was taken from the original modification order. Cf. Clark, 579 So.2d at 111 (vacating an order revoking community control, the adjudication of guilt, and the resulting sentence and ordering that a prior modification order be vacated because the trial court had not followed the requirements of section 948.06 when modifying Clark’s probation and thus had no jurisdiction to subsequently revoke it); Dennis, 630 So.2d at 605 (vacating a revocation of probation that was based on an earlier modification order when the modification order was entered in violation of section 948.06). Moreover, the trial court’s lack of jurisdiction over a probationer is not a defect that can be waived. See Eddie, 933 So.2d at 571. Therefore, contrary to the State’s assertions, Gareia-Medina has not waived this argument or her entitlement to relief.

Accordingly, we vacate the November 2010 order purporting to modify Garcia-Medina’s probation which was entered without jurisdiction and in violation of the requirements of section 948.06. On remand, the consequences stemming from the vacated modification order — including the order of revocation of probation, the adjudication of guilt, and the sentence of imprisonment — must also be vacated.

Vacated and remanded with instructions.

ALTENBERND and KHOUZAM, JJ„ Concur.

      . The modification order is unusual in another respect as well. The substantive portion of the order states: “Modify Probation to Include: Put on job search, if no job in 60 days we need to bring her into court and send her to PRC in Orlando. Also extend to full 5 years to pay Restitution." (Emphasis added.) The emphasized language, together with the lack of the paperwork usually generated as a result of a violation of probation, leads us to suspect that the modification order was actually prepared by the probation officer and submitted ex parte to the trial court. Such a procedure — if this is, in fact, what occurred — raises a wealth of due process concerns.

      . Section 948.06 was substantially revised in 2011. See Ch.2011-38, § 2, at 511-12, Laws of Fla. This provision now appears in section 948.06(l)(g), Florida Statutes (2012).


author: PER CURIAM.

text:
    Brian R. HAMILTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6207.
    District Court of Appeal of Florida, First District.
    March 13, 2014.
    Rehearing Denied April 22, 2014.
    Brian R. Hamilton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, PADOVANO, and ROBERTS, JJ., concur.


text:
    Raymond CLAUDIO, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D13-4376.
    District Court of Appeal of Florida, First District.
    March 18, 2014.
    Rehearing Denied April 22, 2014.
    Raymond Claudio, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and David W. Grimes, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We treat appellant’s motion to strike as a response to appellee’s motion to dismiss, and dismiss the appeal as moot. Appellant seeks review of a nonfinal order transferring his mandamus petition to the circuit court in Leon County, but his release from incarceration makes it impossible for this court, the transferor court, or the transferee court to grant him any meaningful relief on the claims he raises.

DISMISSED.

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


text:
    Marie Carol HOBBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4733.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
   PER CURIAM.

Affirmed. See §§ 322.28(2), 322.283(1), 782.071(l)(a), Fla. Stat. (2004).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Rashane D. BARBER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4821.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    Rashane D. Barber, pro se.
   PER CURIAM.

Affirmed. See Guilford v. State, 88 So.3d 998 (Fla. 2d DCA 2012); Carpenter v. State, 884 So.2d 385 (Fla. 2d DCA 2004); Boyd v. State, 880 So.2d 726 (Fla. 2d DCA 2004); Williams v. State, 907 So.2d 1224 (Fla. 5th DCA 2005); Pruitt v. State, 801 So.2d 143 (Fla. 4th DCA 2001).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    David LEAKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4817.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    David Leaks, pro se.
   PER CURIAM.

Affirmed. See Young v. State, 739 So.2d 553 (Fla.1999); Zink v. State, 951 So.2d 34 (Fla. 2d DCA 2007); Curl v. State, 36 So.3d 853 (Fla. 3d DCA 2010); Cala v. State, 854 So.2d 840 (Fla. 3d DCA 2003).

CRENSHAW, BLACK, and SLEET JJ., Concur.


text:
    Johnnie D. JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4753.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
   PER CURIAM.

Affirmed. See Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Campbell v. State, 884 So.2d 190 (Fla. 2d DCA 2004); Robbins v. State, 641 So.2d 934 (Fla. 2d DCA 1994); Holloway v. State, 668 So.2d 627 (Fla. 5th DCA 1996).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Lorenzo William SILER, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3432.
    District Court of Appeal of Florida, First District.
    April 2, 2014.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Lorenzo William Siler appeals the trial court’s denial of his Florida Rule of Criminal Procedure 3.800(b)(2) motion. He argues that the trial court was under a mistaken belief of law when it imposed his sentence. We agree.

In 2011, Siler pleaded no contest to four counts of burglary of a dwelling and was sentenced as a youthful offender to two years’ imprisonment followed by four years’ probation. After his release from prison in 2013, an affidavit of violation of probation was filed against Siler. He admitted to the technical violations. At the sentencing hearing, defense counsel requested reinstatement of Siler’s probation, and the State did not object to this request. The trial court expressed its belief that it could either reinstate Siler’s probation or sentence him to six years’ imprisonment. Ultimately, the trial court revoked Siler’s probation and sentenced him to six years’ imprisonment. Based on the trial court’s comments at the sentencing hearing, Siler filed a motion to correct sentencing error, arguing that the court improperly believed that it had no choice but to sentence him to six years’ imprisonment if it revoked his probation. The trial court denied the motion; this appeals follows.

A motion to correct sentencing error is reviewed de novo. State v. Flynn, 95 So.3d 436, 437 (Fla. 4th DCA 2012). Our review of the court’s statements at the sentencing hearing reveals that the court did not appear to be aware of all of its sentencing options. When a trial court revokes probation that has been imposed pursuant to the youthful offender statute, the defendant may be sentenced to any sentence that could have originally been imposed pursuant to the statute. Hudson v. State, 989 So.2d 725, 726 (Fla. 1st DCA 2008). This includes any combined sentence of probation and imprisonment, as long as it does not exceed six years, or any sentence of imprisonment not exceeding six years. § 958.04(2), Fla. Stat. (2010).

Because the trial court did not consider all of the sentencing options, we remand for resentencing. We recognize that the trial court may impose the same sentence on remand; however, the court needs to exercise its discretion and consider all of the youthful offender sentencing options before imposing sentence. Goldwire v. State, 73 So.3d 844, 846-47 (Fla. 4th DCA 2011).

REVERSED and REMANDED.

ROWE, MARSTILLER, and RAY, JJ., concur.


text:
    Timothy J. HAHN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4889.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    Timothy J. Hahn, pro se.
   PER CURIAM.

Affirmed. See Johnson v. State, 969 So.2d 938 (Fla.2007); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Tecoy Marquise CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4914.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.

      Tecoy Marquise Campbell, pro se.
   PER CURIAM.

Affirmed. See DuBoise v. State, 520 So.2d 260 (Fla.1988); State v. Akers, 104 So.3d 1259 (Fla. 2d DCA 2018); Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991); McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001); Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Santino LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4925.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    Santino Lopez, pro se.
   PER CURIAM.

Affirmed. See Moore v. State, 882 So.2d 977 (Fla.2004); Carpenter v. State, 884 So.2d 385 (Fla. 2d DCA 2004); Lane v. State, 981 So.2d 596 (Fla. 1st DCA 2008); Williams v. State, 907 So.2d 1224 (Fla. 5th DCA 2005).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Arthur Lee ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4935.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    Arthur Lee Ross, pro se.
   PER CURIAM.

Affirmed. See Boss v. State, 59 So.3d 117 (Fla. 2d DCA 2011) (table decision); Harris v. State, 111 So.2d 994 (Fla. 2d DCA 2000).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Joseph DILLARD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4937.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
   PER CURIAM.

Affirmed. See Ward v. State, 946 So.2d 33 (Fla. 2d DCA 2006); Macaluso v. State, 912 So.2d 694 (Fla. 2d DCA 2005); Greenlee v. State, 591 So.2d 310 (Fla. 2d DCA 1991); Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008); Rangel v. State, 937 So.2d 1218 (Fla. 3d DCA 2006).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Norman ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4940.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
   PER CURIAM.

Affirmed. See Galindez v. State, 955 So.2d 517 (Fla.2007); Allen v. State, 63 So.3d 759 (Fla. 2d DCA 2011) (table decision); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Cortez DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4941.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
   PER CURIAM.

Affirmed. See § 782.04(2), Fla. Stat. (2006); Betancourt v. State, 804 So.2d 313 (Fla.2001); Carpenter v. State, 884 So.2d 385 (Fla. 2d DCA 2004); Burttram v. State, 846 So.2d 1201 (Fla. 2d DCA 2003); Lane v. State, 981 So.2d 596 (Fla. 1st DCA 2008); Williams v. State, 907 So.2d 1224 (Fla. 5th DCA 2005).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Frederick J. McKENNIE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4979.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.

      Frederick J. McKennie, pro se.
   PER CURIAM.

Affirmed. See Blackmon v. State, 121 So.3d 535 (Fla.2013); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    David SHEREN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5019.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
   PER CURIAM.

Affirmed. See Metellus v. State, 900 So.2d 491 (Fla.2005); Coughlin v. State, 932 So.2d 1224 (Fla. 2d DCA 2006) (en banc); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Larry Rosser HARPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-504.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    Larry Rosser Harper, pro se.
   PER CURIAM.

Affirmed. See Campbell v. State, 125 So.3d 733 (Fla.2013); Harper v. State, 110 So.3d 451 (Fla. 2d DCA 2013) (table decision); Harper v. State, 78 So.3d 543 (Fla. 2d DCA 2011) (table decision); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Harper v. State, 999 So.2d 650 (Fla. 2d DCA 2009) (table decision); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Anderson v. State, 779 So.2d 345 (Fla. 2d DCA 2000); Harris v. State, 111 So.2d 994 (Fla. 2d DCA 2000); Green v. State, 765 So.2d 825 (Fla. 2d DCA 2000); State v. McClain, 509 So.2d 1360 (Fla. 2d DCA 1987); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001); State v. Vesquez, 755 So.2d 674 (Fla. 4th DCA 1999).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Cameron Tyler CHERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0856.
    District Court of Appeal of Florida, First District.
    April 2, 2014.
    Rehearing Denied April 22, 2014.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant raises several issues on appeal from his conviction for murder and sentence of life imprisonment. We find one issue to be dispositive and requires us to reverse and remand for a new trial. The trial court abused its discretion in admitting a statement as a past recollection recorded without the proper predicate being presented. In making its ruling, the trial court relied on the reasoning of the Fifth District Court of Appeal in Polite v. State, 41 So.3d 935 (Fla. 5th DCA 2010), and that reasoning was also adopted by this court in McNeal v. State, 109 So.3d 268 (Fla. 1st DCA 2013). After the trial court ruled on the admission of the evidence in question, the Florida Supreme Court rejected the reasoning of the Fifth District in Polite and clarified the proper predicate which must be presented to admit a statement as a past recollection recorded. See Polite v. State, 116 So.3d 270 (Fla.2013).

Based upon the supreme court decision, we REVERSE and REMAND for a new trial.

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


text:
    Charles Leon DORSEY, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-2120.
    District Court of Appeal of Florida, First District.
    April 8, 2014.
    Charles Leon Dorsey, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005); Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

LEWIS, C.J., PADOVANO and MAKAR, JJ., concur.


text:
    Thelonius PRINCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0498.
    District Court of Appeal of Florida, First District.
    April 8, 2014.
    Thelonius Prince, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., PADOVANO and MAKAR, JJ., concur.


text:
    Travis McKINNEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1009.
    District Court of Appeal of Florida, First District.
    April 8, 2014.
    Travis McKinney, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., PADOVANO and MAKAR, JJ., concur.


text:
    Randolph CLARK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1074.
    District Court of Appeal of Florida, First District.
    April 8, 2014.
    Randolph Clark, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., PADOVANO and MAKAR, JJ., concur.


text:
    Jackie Junior LIGE, II, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1080.
    District Court of Appeal of Florida, First District.
    April 8, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., PADOVANO and MAKAR, JJ., concur.


text:
    Adrian Francis WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1126.
    District Court of Appeal of Florida, First District.
    April 8, 2014.
    Adrian Francis Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., PADOVANO and MAKAR, JJ., concur.


text:
    Lavario C. RAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0932.
    District Court of Appeal of Florida, First District.
    April 9, 2014.
    Lavario C. Ray, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as untimely and successive. See Fla. RApp. P. 9.141(d)(5) and (d)(6)(C).

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


text:
    Renee SCHAEDEL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0869.
    District Court of Appeal of Florida, First District.
    April 11, 2014.
    Renee Schaedel, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(c)(5)(A).

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.


text:
    Charles SANMANN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1276.
    District Court of Appeal of Florida, First District.
    April 11, 2014.
    Petition for — Original Jurisdiction.
    Charles Sanmann, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004).

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.


text:
    Patrick Allen McCALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1311.
    District Court of Appeal of Florida, First District.
    April 11, 2014.
    Patrick Allen McCall, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.


text:
    James BEEBE, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D13-5916.
    District Court of Appeal of Florida, First District.
    April 11, 2014.
    James Beebe, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Sprint v. Parole Comm’n, 933 So.2d 1218 (Fla. 1st DCA 2006).

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.


text:
    Bhaktivinod FRANKLIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6062.
    District Court of Appeal of Florida, First District.
    April 11, 2014.
    Bhaktivinod Franklin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.


author: PALMER, J.

text:
    James V. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2747.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2014.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

James V. Martin timely appeals his judgment and sentences, entered by the trial court after a jury found him guilty of attempted second degree murder and aggravated battery. We conclude that there is no reversible error with regard to those convictions and sentences; therefore, we affirm same. However, the written judgment erroneously included a conviction for attempted voluntary manslaughter, even though that conviction had been dismissed by the trial court on double jeopardy grounds. The State properly concedes error.

Accordingly, we affirm the defendant’s judgment and sentences for attempted second degree murder and aggravated battery, but remand for correction of the written judgment to reflect the dismissal of the attempted first degree murder conviction.

AFFIRMED; REMANDED for correction of judgment.

EVANDER and BERGER, JJ., concur.


text:
    Daniel ROBIDA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-4079.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2014.
    Daniel Robida, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence entered December 22, 2011, in Case No. 42-2010-CF-004530-AA, in the Circuit Court in and for Marion County, Florida. See Fla. R.App. P. 9.141 (c)(6)(D).

PETITION GRANTED.

TORPY, C.J., EVANDER and BERGER, JJ., concur.


text:
    Bhupendra Ravi SINGH, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-988.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2014.
    Tyler S. Van Voorhees, of Reed Law Firm, Clermont, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm, without discussion, the trial court’s finding that Bhupendra Ravi Singh (Appellant) violated his probation by committing new criminal offenses. However, the trial court failed to make the required written finding pursuant to section 948.06(8)(e)l., Florida Statutes (2012), as to whether Appellant “poses a danger to the community.” We remand for the trial court to make that determination and to resentence Appellant accordingly.

REVERSED and REMANDED.

EVANDER, COHEN and WALLIS, JJ., concur.

      . The sentence may not exceed the 43.55-month prison sentence previously imposed.


text:
    James E. HOLDEN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-107.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2014.
    James E. Holden, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence entered June 7, 2012, in Case No. 2011-CF-1605, in the Circuit Court in and for Osceola County, Florida. See Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, LAWSON and COHEN, JJ., concur.


text:
    Johnny L. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-80.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2014.
    Johnny Jones, Mayo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We reverse the trial court’s dismissal of Appellant’s second motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. See Boule v. State, 64 So.3d 753 (Fla. 5th DCA 2011) (trial court has concurrent jurisdiction during the pendency of appeal from order denying postconviction relief to consider subsequent postconviction motion that raises issues unrelated to those presented in prior motion). We express no opinion on the merits of Appellant’s motion.

REVERSED and REMANDED.

ORFINGER, EVANDER, and COHEN, JJ., concur.


text:
    Melvin Theodore SCHLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4900.
    District Court of Appeal of Florida, First District.
    April 11, 2014.
    Melvin Schley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(c)(5)(A).

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.


text:
    Cliff O. HANSON, Petitioner, v. OFFICE OF CRIMINAL CIVIL CONFLICT AND REGIONAL COUNSEL, Respondent.
    No. 1D13-5604.
    District Court of Appeal of Florida, First District.
    April 11, 2014.
    Cliff Hanson, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for mandamus is denied. See Moore v. Correctional Medical Services, 817 So.2d 963, 964 (Fla. 1st DCA 2002).

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.


text:
    Ryan J. URBIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3753.
    District Court of Appeal of Florida, First District.
    April 14, 2014.
    Ryan Urbin, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Case remanded for disposition of defendant’s amended motion to correct illegal sentence.

CLARK and RAY, JJ., concur and WETHERELL, J., concurs in result only.


author: VAN NORTWICK, J.

text:
    C.B.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5263.
    District Court of Appeal of Florida, First District.
    April 16, 2014.
    Nancy A. Daniels, Public Defender, and Colleen D. Mullen, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Kristen Bonjour, Assistant Attorney General, and Trisha Meggs Pate, Bureau Chief — Criminal Appeals, Tallahassee, for Appellee.
   VAN NORTWICK, J.

C.B.B., a child, appeals a final disposition order entered following a bench trial on the charge of robbery and following the denial of his motion for a judgment of dismissal. Because the State failed to establish a prima facie case of robbery, we conclude that the trial court erred in denying the motion for a judgment of dismissal. Accordingly, we reverse.

C.B.B., then 14 years of age, was charged with delinquency for the alleged commission of the offense of robbery. More particularly, C.B.B. was accused, along with two middle school friends, Z.B. and D.C., of robbing the bicycle of another middle schooler, O.A. According to the testimony of the victim O.A. at the bench trial below, he was riding his bicycle when Z.B. grabbed his handlebars. C.B.B. then struck the victim in the back of the head. The victim abandoned his bicycle and fled on foot. When he later returned to the scene with his mother, the bicycle was gone. It was located the next day in the vicinity of Z.B.; appellant and another minor were nearby. C.B.B., Z.B., and D.C. were all charged. There was a suggestion at the ensuing trial that a confrontation was expected between the victim and appellant because of prior interactions between the two. More particularly, appellant claimed that he punched the victim because the victim previously spit a mouthful of water in his face after losing a basketball game; appellant also claimed the victim threw rocks at him and verbally taunted him prior to the knocking of O.A. from his bicycle. Appellant argued below he did not take the bicycle and had no intent to deprive the victim of his bicycle. The victim testified in pertinent part below:

Q. [by the Prosecutor]: Okay. You did not talk to [C.B.B.] that day at your grandmother’s house?
A. Oh, yes, sir.
Q. Okay. And what did you say to him?
A. I asked him why he wanted to fight me.
Q. And what did he say to you?
A. He said I spit water on him at the park.
THE COURT: I was not able to hear you. What did you say?
THE WITNESS: He said I spit water on him at the park.
THE COURT: You spit water on him at the park?
THE WITNESS: Yes, sir.
THE COURT: Okay.
Q [by the Prosecutor]: He said that you spit water on him?
A. Yes, sir.
Q. Okay. What did you do after you spoke with [C.B.B.]?
A. We shook hands, and he said he was not going to fight me.
Q. Okay. And what did you do after that?
A. I called my momma and told her to come pick me up. She said it was too late, to come home. So, she told me to ride my bike home.
Q. So, you were riding your bike home?
A. Yes, sir.
Q. And did you get stopped again?
A. Yes, sir.
Q. Who stopped you?
A. [C.B.B.].
Q. Was it [C.B.B.]?
A. Yes, sir.
Q. I’m sorry, who stopped you first?
A. Oh, [Z.B.],
Q. And how did he stop you?
A. He grabbed my handlebars and then twisted it.
Q. Did you fall off your bike at that point?
A. Yes, sir.
Q. Okay. And what happened next after you fell?
A. [C.B.B.] ran up behind me and hit me in the back of my head.
Q. And what happened after that?
A. I ran to my grandmother’s house.
Q. Did anyone take your bike?
A. [D.C.]. The next day he told my momma it was his bike.
THE COURT: I was not able to hear you. Hold your head up.
THE WITNESS: The next day he told my momma it was his bike.
MS. BENSON: Objection, You Honor. Hearsay.
THE COURT: I’m not sure what is the question. What is the question Mr. Sherwin?
By Mr. Sherwin:
Q. After [C.B.B.] punched you, did somebody take your bike?
A. [D.C.].
Q. [D.C.] took your bike?
A. Yes, sir.
Q. Okay, that is it. Thank you.

On cross-examination, the victim further testified:

[Defense Counsel]: Q. [O.A.], you just testified that there was a spitting incident earlier in the day?
A. Yes.
Q. And you spit on [D.C.]?
A. No, sir.
Q. Who was it that you spit on,
[C.B.B.]?
A. Yes, sir. He said I spit on him.
Q. And then immediately before the incident occurred, isn’t it true that you were riding your bike in the area in the same place that these three boys were in?
A. No, sir.
Q. Isn’t it true that you threw a rock at one of the boys?
A. No, sir.
Q. But it is true that you abandoned the bike and ran way?
A. Yes, sir.
Q. Okay. And so you were not there when the bike was taken?
A. No, sir.
Q. Okay. So, you did not see anybody take your bike?
A. No, sir.
Q. Okay. And you do not know why that bike was taken; is that correct?
A. Yes, sir.
Q. Okay. And so the fight occurred because of the earlier incident; isn’t that true?
A. Yes, sir.
Q. I’m sorry?
A. I believe so.
Q. Okay. And so it was not part of the plan to take your bike, that just sort of happened later, right?
A. Yes, sir.

It was further established on cross-examination that, during the students’ talk about the fight, there was no mention of appellant’s bicycle, according to the victim. He denied intentionally spitting on appellant, although he conceded he may have accidently done so. He also denied calling appellant’s girlfriend an unkind word and denied hitting appellant with a rock. Cross-examination concluded with the following exchange between defense counsel and the victim:

Q. So, between you and the boys, [C.B.B. Z.B. and D.C.], you guys were kind of in a beef, right? You were just mad at each other.
A [by the victim]. Yes.
Q. So, the taking of your bike was something separate from this fight, wasn’t it?
A. Yes, ma’am.

In addition, Z.B. also testified that the fight was motivated by the desire to retaliate for the spitting incident and not to obtain the bicycle.

At the conclusion of the prosecution’s case-in-chief, C.B.B. moved for a judgment of dismissal arguing the State had failed to prove a prima facie case of robbery. The motion to dismiss was renewed at the close of evidence. The trial court summarily denied both motions. This appeal ensued.

The grant of a motion for a judgment of dismissal is required only if “the evidence is insufficient to establish a prima facie case of guilt against the child.” Fla. R. Juv. P. 8.110(k); I.M. v. State, 917 So.2d 927, 929 (Fla. 1st DCA 2005). “The standard of review that applies to a motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal case.” C.E.L. v. State, 995 So.2d 558, 560 (Fla. 2d DCA 2008), aff'd, 24 So.3d 1181 (Fla.2009) (quoting A.P.R. v. State, 894 So.2d 282, 284 (Fla. 5th DCA 2005)). “We review the trial court’s [disposition] of the motion for dismissal under the de novo standard,” viewing the evidence “in the light most favorable to the State.” C.E.L., 995 So.2d at 560 (quoting R.R.W. v. State, 915 So.2d 633, 634-35 (Fla. 2d DCA 2005)). “If, upon reviewing the evidence in a light most favorable to the State, a rational fact-finder could find the elements of the crime proven beyond a reasonable doubt, then the evidence is sufficient to sustain the adjudication of delinquency.” I.M. v. State, 917 So.2d at 929.

As noted above, appellant was charged as being a delinquent for commission of a strong-armed robbery. As defined in Florida law, robbery is “the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.” § 812.13(1) Fla. Stat. (2013). Larceny, in turn, has been defined as the carrying away of another’s property with felonious intent. Daniels v. State, 587 So.2d 460, 462 (Fla.1991).

The evidence adduced by the State below showed that the force used by appellant against the victim was not in furtherance of a plan to obtain the victim’s bicycle. Further, there is no basis for finding C.B.B. had an intent to rob the bicycle. As the victim himself admitted, C.B.B. had a pre-existing “beef’ with the victim, and the blow to the head by C.B.B. had nothing to do with the bicycle.

On appeal, the State suggests that C.B.B. could have participated in the attack on the victim knowing someone else intended to commit the robbery. However, as the reviewing court observed in S.G. v. State, “[i]n order to be convicted as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime.” 591 So.2d 294, 295 (Fla. 3d DCA 1991) (citing Staten v. State, 519 So.2d 622 (Fla.1988)). Further, “[m]ere knowledge that an offense is being committed is not the same as participation with criminal intent, and mere presence at the scene ... is not sufficient to establish participation.” Collins v. State, 438 So.2d 1036, 1038 (Fla. 2d DCA 1983). Because there is no basis in the record for finding that, when C.B.B. attacked the victim, he knew another juvenile would take the bicycle, the State failed to carry its burden below. Compare R.H. v. State, 649 So.2d 299 (Fla. 2d DCA 1995) (holding that because the evidence only established that the juvenile participated in attacking the victim and did not establish that the juvenile had an intent to participate in the taking of the victim’s jewelry, the adjudication of delinquency for robbery had to be reversed).

Because the trial court erred in denying the motion for a judgment of dismissal, the disposition order is REVERSED.

BENTON, J., concurs, and THOMAS, J., dissents without opinion.