author: WARNER, J.

text:
    Daniela RUDEL, Appellant, v. Thomas E. RUDEL, Appellee.
    Nos. 4D11-2616, 4D11-2617.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.

      Paul Morris of. Law Offices of Paul Morris, P.A., and Gerald I. Kornreich of Law Offices of Kornreich & Associates, Miami, for appellant.
    Gregory Anderson of Stack Fernandez Anderson & Harris, P.A., Miami, for ap-pellee.
   WARNER, J.

The wife appeals the trial court’s order dismissing her petition for dissolution of marriage and petition for injunction for protection against domestic violence. The court determined that it did not have subject matter jurisdiction of the dissolution of marriage petition, because the wife was only a temporary resident of Florida. The court further determined that it did not have personal jurisdiction over the defendant for purposes of the domestic violence injunction, because he had been lured into this country for the sole purpose of service of process. Because we defer to the trial court on its factual findings, we affirm as to the dismissal of the dissolution of marriage petition, but we reverse as to the domestic violence injunction, as the trial court prematurely entered final judgment dismissing it.

The parties and their child are all German citizens, the daughter being born in Germany. Although the parties married in Florida in 2002 while on vacation, they executed a prenuptial agreement under German law and continued to live in Germany. The husband owns an interest in a company in Germany, and all of the parties’ income and property is located in Germany.

In July 2009 the wife and the daughter moved to Boca Raton for the daughter to study here and also to distance themselves from the husband, whom the wife accused of domestic violence. They entered the United States on a non-immigrant tourist visa. To maintain her status in this country, the wife filed required certificates of eligibility with the immigration authorities every several months, including forms filed both before and after she filed the petition for dissolution of marriage. In renewing her tourist visa, she swore on each affidavit that she sought to remain in the United States temporarily and “solely for the purpose of pursuing a full course of study.” To comply with the tourist visa, she would also leave the United States periodically and return to Germany. She returned to Germany in December 2009 and stayed until the end of January 2010.

When asked in her deposition whether she had filed any document with the United States indicating that she intended to stay permanently in this country, she testified that she had not. When asked whether she intended to do so, she answered “Maybe, yes.” She also admitted that she had not notified the German government of her removal from her home district in Germany, something she is required to do under German law when she moves out of a district. She also testified that she had not taken all of her personal effects when she left Germany.

The husband had agreed to allow the child to come to Florida to attend school. He paid the lease on the Florida home rental and supported the wife and his daughter. Originally, he had agreed to the child staying for six months but agreed to support the wife and child in Florida until the end of the school year. He testified that they had return airfare tickets home in the end of the summer in 2010.

He visited them in Florida in October 2009 and March 2010. The couple tried to reconcile but after the husband’s visit in March of 2010, the wife determined that the marriage could not be saved.

After the husband returned to Germany in March 2010, he subsequently texted and emailed the wife from March until August. The wife did not respond to all of his emails, testifying that she was afraid of him because of domestic violence. In July, the husband filed a petition for dissolution of their marriage in Germany. That suit is active, although there is an issue regarding proper service on the wife. Several emails discussed the wife’s financial needs, as well as whether the husband could take the child on vacation. The wife did not respond but did send the husband an email on August 1st apparently acknowledging his vacation request. She wrote in part, “Let me know when you arrive so I can arrange everything.” He then wrote her of his plans to leave Germany on August 10th to pick up the child. A few other emails between them indicated the wife’s desire to settle the dissolution proceeding filed in Germany without litigation.

On August 6, 2010, the wife received an email from the husband that he was flying into Miami International Airport on August 11, 2010, to pick up the child for a vacation to the Bahamas. Again, the wife did not respond until August 10th, telling him that they would meet him at the airport. Despite this, she had no intention of allowing the child to accompany the father on the vacation. On that same day, the wife filed a petition for protection from domestic violence, and the trial court granted an ex parte temporary injunction prohibiting the husband from contact with the wife or child. The next day the wife filed a petition for dissolution of marriage. A private process server served the husband with the domestic violence petition, the temporary injunction, and the petition for dissolution of marriage at the Miami airport on August 11th when the husband arrived. The husband then returned to Germany immediately.

The husband moved to dismiss the petition for dissolution of marriage because of lack of subject matter jurisdiction, as the wife was not a domiciliary of the state, for lack of personal service on him, and for forum non conveniens. He moved to abate the action because of the pendency of his prior filed petition for dissolution of marriage in Germany, which was pending when the wife filed her petition in Florida. The trial court conducted an evidentiary hearing on the issues of subject matter and personal jurisdiction, and, over objection on grounds of lack of notice, on the issue of the domestic violence injunction. The husband did not testify in order to preserve his objection to personal jurisdiction on which the trial court had not ruled. The court heard from experts on German law with respect to the forum non conve-niens claim, as well as the testimony of the wife and her friend as to her intention to stay in this country and her fear of her husband. The court also heard testimony from the child’s psychologist regarding the child’s fear of the husband.

Based upon the facts, the court granted the motion to quash service of process and the motion to dismiss for lack of subject matter jurisdiction and personal jurisdiction over the husband in the dissolution of marriage case. It found that it did not have jurisdiction because the wife had not proved her permanent residence or intention to remain in Florida when the wife filed repeated affidavits to renew her passport which certified that she was in the country temporarily. In addition, the court considered that she failed to notify the German government, as required by law, that she was no longer a resident of Germany. The court determined that it did not have jurisdiction over the husband because service was obtained through the wife’s deceptive conduct in luring the husband to the jurisdiction for the sole purpose of serving him with the petition for dissolution of marriage. It also made findings that the German courts had jurisdiction over both the marriage, the child, and the property of the parties, and the court declined to exercise jurisdiction under these circumstances.

As to the petition for protection from domestic violence, even though not noticed for hearing, the court dismissed the petition on the merits, concluding that the wife was not credible in her claim that she feared further violence from the husband. The wife testified to an act of physical violence in Germany prior to the wife moving to Florida for the child’s schooling. The wife indicated that she was very fearful of the husband’s return to Florida. The court determined, however, that the wife could not be fearful, because she had no intention of coming to the airport in Miami with the child. The court specifically found the wife’s testimony not to be credible. By a separate order the court dismissed the temporary injunction on the ground that the evidence was insufficient to permit the granting of it pursuant to the statutes. The wife appeals both orders.

We first address the court’s determination that it did not have subject matter jurisdiction, because the wife did not satisfy the residency requirement of section 61.021, Florida Statutes. The court’s determination of its jurisdiction is a question of law which is reviewed de novo. Lande v. Lande, 2 So.3d 878, 380 (Fla. 4th DCA 2008). Where, however, an order on the motion to dismiss is based on a finding of fact, we review the findings based upon a competent, substantial evidence standard. See, e.g., Machtinger v. Inertial Airline Servs., Inc., 937 So.2d 730, 734-35 (Fla. 3d DCA 2006).

Section 61.021 provides that to obtain a divorce one of the parties must reside 6 months in the state before filing a petition for dissolution. “Residence” as used in section 61.021 means “ ‘an actual presence in Florida coupled with an intention at that time to make Florida the residence.’ ” Jenkins v. Jenkins, 556 So.2d 441, 442 (Fla. 4th DCA 1990) (quoting Gillman v. Gillman, 413 So.2d 412, 413 (Fla. 4th DCA 1982)) (emphasis supplied). “Whether or not a party is a resident (of the State of Florida within the meaning of Section [61.021], supra) is both a question of law and fact to be settled or determined from the facts of each particular case.” Fowler v. Fowler, 156 Fla. 316, 22 So.2d 817, 819 (1945) (citing Kiplinger v. Kiplinger, 147 Fla. 243, 2 So.2d 870 (1941)).

The wife argues that the court made an implicit finding that she could not have an intention to reside in Florida as a matter of law because of the various immigration forms she signed indicating that she was only in the U.S. on a “temporary” basis. The wife argues that this is contrary to the holding of Weber v. Weber, 929 So.2d 1165 (Fla. 2d DCA 2006). In Weber both the husband and wife were present in the United States on nonimmigrant visas for several years before and after their marriage here. Their child was born here, and the wife was in school. The trial court denied the husband’s motion to dismiss the wife’s petition for dissolution for lack of subject matter jurisdiction on the ground that the wife’s nonimmigrant status prohibited her as a matter of law from claiming domicile in Florida. On petition for writ of prohibition, the court held that the wife’s nonimmigrant status did not, as a matter of law, preclude her from establishing Florida residency pursuant to section 61.021.

Weber looked to Perez v. Perez, 164 So.2d 561 (Fla. 3d DCA 1964), and Nicolas v. Nicolas, 444 So.2d 1118 (Fla. 3d DCA 1984), as authority for its ruling. In Perez, a Cuban exile, who was a political refugee, sought dissolution of marriage, and the trial court dismissed the petition because the exile had not established that he could permanently remain in the United States, thus being incapable as a matter of law from establishing residency. The Third District reversed, concluding that residency and domicile can be established, even though its permanency may be subject to the discretion of the immigration authorities.

In Nicolas, a trial court dismissed the wife’s petition for dissolution for lack of subject matter jurisdiction, because the wife had not been accorded permanent residency status in the United States by the Immigration and Naturalization Service. In line with Perez, the Third District concluded that the lack of permanent residency status did not as a matter of law prevent the petitioner from establishing residency for purposes of state court jurisdiction to dissolve the marriage. The court explained:

[A]n alien’s foreign citizenship or non-permanent immigration status in this country does not constitute in itself an absolute residency bar to the maintenance of a marriage dissolution action by the alien in the Florida courts, although these factors are certainly evidentiary on the issue of domiciliary intent under Section 61.021, Florida Statutes (1981).

444 So.2d at 1120 (emphasis supplied). Both Perez and Nicolas stand for the proposition that a trial court does not lack subject matter jurisdiction as a matter of law based upon the non-permanent status of the petitioning party, but that status may be taken into consideration in the factual determination of domiciliary intent.

We conclude that the trial court in this case did not determine that the wife could not establish residency as a matter of law but determined based upon the facts presented that the wife had not established actual residency with an intent to remain permanently. It emphasized, as powerful evidence of her lack of intent, the affidavits that the wife signed as late as May 2010, in which she swore that she did not intend to remain permanently in the United States. The trial court is not compelled to disregard her sworn statements in determining her intent.

Moreover, there was other evidence at the hearing which would support the trial court’s conclusion. She had never notified the German government that she had moved from her home district, something she knew she was required to do. In her deposition, the wife was equivocal as to her intent to apply for permanent residency status in the United States. At the hearing. as well as in her deposition, she testified that she and her daughter first came to Florida so her daughter could go to school and to put some distance between her and her husband. She did not state that she was intending at the time to move to Florida permanently, and she left personal possessions in Germany. She spent the month of January in Germany. When she returned, the husband came for a visit in March at which time they were still trying to reconcile the marriage. Obviously, if they were attempting reconciliation, that would entail her moving back to Germany, the parties’ home and workplace. Thus, the court could conclude that the wife had not determined to stay in Florida until she filed for dissolution of marriage, and the intent and the act of residency had not concurred for the prescribed period. See Bloomfield v. City of St. Petersburg Beach, 82 So.2d 364, 369 (Fla.1955).

Because the trial court did not rule as a matter of law that the wife’s tourist visa prevented the court from acquiring subject matter jurisdiction but ruled, based upon the facts, that she had not established the intent to remain, we affirm the trial court’s ruling dismissing the dissolution petition for lack of subject matter jurisdiction as it is supported by competent substantial evidence.

The wife argues on appeal that under the UCCJEA the court had jurisdiction over the wife’s petition insofar as she sought child custody and child support. As this involves the issue of subject-matter jurisdiction, it may be raised for the first time on appeal. MCR Funding v. CMG Funding Corp., 771 So.2d 32, 35 (Fla. 4th DCA 2000) (citations omitted). It was not raised in the trial court. However, even if the trial court did have jurisdiction pursuant to section 61.514, Florida Statutes, it is apparent that the court dismissed the action on the grounds that Florida was an inconvenient forum. See § 61.520, Fla. Stat. At the hearing on the husband’s motions, the court heard evidence on the factors in section 61.520(2) that a court should consider in determining whether Florida is an inconvenient forum. Again, in ruling, the court found: “[T]here is no rational basis for this Court to assume jurisdiction over the German court in a case involving German citizens, a minor child who is a German citizen, and all marital real and personal property interests in Germany.” Therefore, we hold that the court did not err in dismissing the petition even as to child custody.

The court could also have jurisdiction over temporary child custody and child support pursuant to the petition for an injunction for the protection against domestic violence. See § 741.30, Fla. Stat. The court recognized that it did have jurisdiction, although the husband disputes whether the petition served upon him properly alleged jurisdiction. A final hearing on the injunction petition was not noticed for hearing, and the court continually reminded the wife’s attorney that with only the issues of jurisdiction noticed, the court did not see the relevance of much of the evidence the wife sought to introduce regarding domestic violence against both her and the child. Because the husband would not testify on the merits of the issue so as to preserve his claim of lack of personal jurisdiction, no evidence contrary to the wife’s testimony was presented, and the wife presented other witnesses to corroborate her fear of the husband. Nevertheless, the court dismissed the petition, finding the wife not credible.

The wife appropriately cites Duncanson v. Service First, Inc., 157 So.2d 696 (Fla. 3d DCA 1963). As the court stated in Duncanson:

We are duty bound not to disturb the findings of fact of a trial judge in a case heard without a jury where such findings are based upon conflicting competent evidenced ] However, where the testimony on the pivotal issues of fact is not contradicted or impeached in any respect, and no conflicting evidence is introduced, these statements of fact can not be wholly disregarded or arbitrarily rejected. Rather, the testimony should be accepted as proof of the issue for which it is tendered, even though given by an interested party, so long as it consists of fact, as distinguished from opinion, and is not essentially illegal, inherently improbable or unreasonable, contrary to natural laws, opposed to common knowledge, or contradictory within itself. [ ]

Id. at 699 (footnotes omitted). Here, the facts of various acts of domestic violence were testified to and not contradicted. Therefore, the wife presented sufficient evidence to require the husband to counter that evidence. The court should not have dismissed the domestic violence injunction based upon the undisputed evidence which established acts of domestic violence and her ensuing fear of the husband. The court’s conclusion that the wife lured the husband to Florida to serve him with papers may be valid, but it still does not defeat the undisputed evidence of acts of domestic violence.

We thus reverse the dismissal of the petition for ' injunction for protection against domestic violence. We remand for a new hearing on the issue, because the husband did not have the opportunity to present evidence on the issue, as his challenge to personal jurisdiction was still outstanding. Should the court determine it has jurisdiction over the husband on the domestic violence petition, it should then hold a final hearing at which both the husband and wife may present evidence.

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

CIKLIN and LEVINE, JJ., concur.

      . The court granted the husband’s motion to dismiss for lack of personal jurisdiction in the dissolution action based upon the deceptive conduct of the wife in luring the husband to Florida in order to serve him with the complaint. We do not disturb that ruling. However, the wife re-served the petition for the domestic violence injunction in Germany. Although the husband disputes the adequacy of that service, those issues were not addressed by the trial court.


source: Caselaw Access Project

license: Public Domain

text:
    Lesley CHANIN, Appellant, v. Joel FEIGENHEIMER, individually, Shari Gherman, individually, Jach, Inc., a Florida domestic corporation, and China Grill Management, Inc., a Florida domestic corporation, I. Salver CPA, a Certified Public Accountant, and John Polsenberg, individually, Appellees.
    No. 4D12-549.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.
    Michele Watt of the Law Office of Michele Watt, Greenacres, for appellant.
    Deborah P. FitzGerald and Kelly Vogt of Walton Lantaff Schroeder & Carson, LLP, Fort Lauderdale, for appellees I. Salver, CPA, and I. Salver, CPA, P.A.
    Cory S. Carano and Roderick F. Coleman of Coleman & Associates, P.A., Boca Raton, for appellees Joel Feigenheimer, Shari Gherman, and Jach, Inc.
    John S. Trimper and Matthew T. Ra-menda of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appel-lees China Grill Management, Inc., John Polsenberg and Jack Polsenberg.
   WARNER, J.

Appellant, who was divorced from appel-lee Feigenheimer, filed a petition for modification of child support as well as various counts of fraud, deceptive and unfair trade practices, and negligence against Feigen-heimer’s company, its managers, as well as the company’s C.P.A., for their alleged assistance in helping Feigenheimer hide his income so as to lower his child support. The trial court, who presided in the Family Division of the circuit, dismissed all of the fraud, statutory violation, and negligence counts without prejudice to appellant filing them in the civil division. Appellant challenges that dismissal, claiming that the court had jurisdiction to hear all claims. We agree that the circuit court had jurisdiction, and dismissal was an improper remedy.

The parties concede that, “[a]ll circuit court judges have the same jurisdiction within their respective circuits.” In Interest of Peterson, 364 So.2d 98, 99 (Fla. 4th DCA 1978). Nevertheless, the appel-lees claim that dismissal is proper because the fraud and negligence claims should have been brought in the civil division. See, e.g., Partridge v. Partridge, 790 So.2d 1280 (Fla. 4th DCA 2001). Because the circuit court had jurisdiction, however, the court should not have dismissed the case. “If an action is filed in the incorrect division, the proper remedy is to transfer the case to the correct division, subject to the payment of any filing fee and subject to the requirements of any local administrative rule.” Fort v. Fort, 951 So.2d 1020, 1022 n. 2 (Fla. 1st DCA 2007).

While the appellees note that the appellant did not request transfer, she opposed dismissal, and dismissal was not the proper remedy. We distinguish Garcia-Roque v. Roque-Velasco, 855 So.2d 668 (Fla. 3d DCA 2003), relied upon by the appellees. In Gareia-Roque, the appellate court refused to order transfer from the family division to the civil division when the appellant had not requested transfer in the circuit court. There, the family court judge had dismissed for lack of subject-matter jurisdiction the petition seeking to enforce a post-dissolution judgment oral agreement, because in the final judgment of dissolution, the court had reserved jurisdiction only to enforce its judgment and not any subsequent agreement. The trial court’s order dismissing the petition for lack of subject matter jurisdiction was a proper remedy. In this case, the parties do not argue that the court lacked subject matter jurisdiction, only that the civil division should hear the case because of administrative efficiency.

The appellees also request that we affirm based upon the tipsy coachman principle and find that none of the causes of action state viable claims against the defendants. We decline to do so, as the trial court permitted the wife to re-file and amend her claims.

Reversed for reinstatement of the petition and to transfer the case to the civil division of the Fifteenth Judicial Circuit Court.

CIKLIN and LEVINE, JJ., concur.


author: PALMER, J.

text:
    Paul B. WALKER and Bright House Networks, LLC, Petitioners, v. Gary RUOT and Jennifer Ruot, Respondents.
    No. 5D12-1403.
    District Court of Appeal of Florida, Fifth District.
    April 19, 2013.
    Daniel S. Liebowitz and Sarah E. Wade, of Cruser & Mitchell, LLP, Orlando, for Petitioner.
    Nicholas A. Shannin, The Shannin Law Firm, P.A. and Alan Stagmeier, Jr., of Morgan & Morgan, P.A., Orlando, for Respondents.
   PALMER, J.

Bright House Networks, LLC, filed a petition seeking certiorari relief from the trial court’s discovery order compelling it to produce the personnel file of its former employee, Paul Walker. We grant the petition, concluding that the trial court departed from the essential requirements of law by requiring the production of the entire personnel file without first conducting an in camera review.

Gary and Jennifer Rout filed an automobile negligence action against Bright House and Walker after the couple sustained injuries when Walker, while driving a Bright House van, rear-ended their vehicle. The Routs served on Bright House a request to produce Walker’s personnel file. Bright House objected on the grounds that the file contained irrelevant information and that production of the entire file would reveal Walker’s confidential information and thus violate his privacy rights.

The Routs filed a motion to compel. At a hearing held on the motion, the Routs argued that information in Walker’s file was discoverable because it might support claims for negligent entrustment, negligent hiring, and/or negligent retention. Further, they argued that the information might aid them in locating Walker to effectuate service of process. Bright House again objected on relevancy grounds, but properly conceded that it lacked standing to assert Walker’s privacy rights.

Without conducting an in camera inspection, the trial court entered an order compelling the production of Walker’s entire file, holding that the documents in the file were clearly relevant to the subject matter of the lawsuit. This petition timely followed.

While Bright House lacked standing to assert Walker’s privacy rights in his personnel file, it possessed standing to oppose the production of private information within the file on the ground that the information was not relevant to the litigation. Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936, 945 (Fla. 2002). It is axiomatic that discovery in civil cases must be relevant to the subject matter of the case. See Fla. R. Civ. P. 1.280(b)(1). “In exercising its discretion to prevent injury through abuse of the action or the discovery process within the action, trial courts are guided by the principles of relevancy and practicality.” Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla.2003).

Personnel files undoubtedly contain private information. See, e.g., Alterra, 827 So.2d at 946 (referencing employees’ privacy rights in their personnel files); Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648-49 (10th Cir.2008) (noting that, while not categorically out of bounds, personnel files contain sensitive personal information, and trial court was not unreasonable to be “cautious about ordering their entire contents disclosed willy-nilly”); Ladson v. Ulltra E. Parking Corp., 164 F.R.D. 376, 377 n. 1 (S.D.N.Y.1996) (“Legitimate privacy concerns exist with regard to personnel files.”). Here, Walker was named as a defendant, but he had not been served with the complaint as his whereabouts were unknown, so he lacked the opportunity to personally assert a privacy objection. “This does not necessarily mean, however, that such important nonparty rights should not be considered, or that the right to privacy and the right to know should not be weighed, during the discovery process.” Alterra, 827 So.2d at 944. When privacy rights are implicated, discovery should be narrowly tailored to provide access to discoverable information while safeguarding privacy rights.

It is likely that Walker’s personnel file contains information about his compensation, benefits, pension, and the like which would not be relevant to this lawsuit, but would be highly intrusive to Walker’s privacy interests if disclosed. In contrast, any information regarding Walker’s training, competence, abilities, and disciplinary history may be relevant to the underlying automobile negligence action. As such, the trial court erred in not conducting an in camera inspection of Walker’s file in order to segregate the relevant documents which were discoverable from the irrelevant documents which were not. Cf. id, 827 So.2d at 945-46; Beverly Enterprises-Florida, Inc. v. Deutsch, 765 So.2d 778, 783 (Fla. 5th DCA 2000), disapproved on other grounds, id, 827 So.2d 936. Accordingly, the trial court departed from the essential requirements of law by ordering Bright House to disclose Walker’s entire personnel file without first conducting an in camera inspection.

PETITION GRANTED.

COHEN and BERGER, JJ., concur.

      . Certiorari is the appropriate vehicle to review an interlocutory order requiring disclosure of allegedly private information. See Al-terra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936, 945 (Fla.2002).


author: EVANDER, J. LAWSON, J.,

text:
    James M. McINTURFF, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1863.
    District Court of Appeal of Florida, Fifth District.
    April 19, 2013.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

James Mclnturff appeals his judgment and sentence for trafficking in hydroco-done. He contends that the trial court erred in denying his motion to withdraw his guilty plea without affording him the opportunity to be heard on the motion. We agree and reverse.

After entering a guilty plea, Mclnturff subsequently appeared before the trial court for sentencing. Prior to imposition of sentence, defense counsel requested the trial court permit Mclnturff to withdraw his plea. The State responded by arguing that a motion to withdraw plea must be in writing:

A [Motion to Withdraw Plea] needs to be brought to the Court in the form of a written motion and giving the State time to prepare.... In this case, I would like to see the written motion that the Defense would be bringing on this, if that’s truly what they’re asking for, so I can prepare a response accordingly.

The trial court then summarily denied the motion, finding that it was “untimely” and didn’t “follow the requirements.”

We initially observe that Mclnturffs motion was not untimely. Florida Rule of Criminal Procedure 3.170(f) provides that “[t]he court may in its discretion, and shall on good cause” permit a guilty plea to be withdrawn at any time before sentencing. See Lehmkuhle v. State, 20 So.3d 971 (Fla. 2d DCA 2009) (defendant entitled to be heard on his presentence motion to withdraw plea made during sentencing hearing); see also Morales v. State, 973 So.2d 679 (Fla. 2d DCA 2008); Gunn v. State, 643 So.2d 677 (Fla. 4th DCA 1994). Additionally, there is no requirement that a motion to withdraw a guilty plea be in writing. See Hughen v. State, 96 So.3d 1114, 1115 (Fla. 2d DCA 2012); Lehmkuhle; Morales.

We vacate Mclnturffs judgment and sentence and remand this case to the trial court to give Mclnturff an opportunity to be heard on his motion to withdraw the guilty plea.

REVERSED and REMANDED.

COHEN, J., concurs.

LAWSON, J., dissents, with opinion.

LAWSON, J.,

dissenting.

After James Mclnturff violated his substantial assistance agreement with the State and absconded, he was arrested and brought before the court for sentencing on the charge to which he had earlier pled. Mclnturffs attorney asked the trial judge to allow Mclnturff to withdraw his plea and proceed to trial, but offered no legal grounds to support a motion to withdraw plea and did not request an additional opportunity to present argument or evidence in support of the motion. Then, when the State erroneously argued that the motion to withdraw plea was technically deficient (because it was not in writing), defense counsel presented no argument to the contrary. Because the arguments for reversal presented on appeal were not first made to the trial court, I would affirm. See, e.g., Johnson v. State, 969 So.2d 938, 954 (Fla.2007) (“An argument is preserved for appeal only if the same argument was made below.”) (citations omitted).

      . In addition, I question the majority’s assertion that the trial court “summarily denied” the motion. After the prosecutor argued that the motion should be in writing and requested time to respond to the motion, the court observed that the oral motion was "untimely” and "didn't follow the requirements.” Defense counsel did not challenge the prosecutor or the court’s statements. However, instead of proceeding directly to sentencing, the court entertained discussion (both on and off of the record), and nevertheless considered the substance of Mclnturffs conduct after the plea, as stipulated to by the defense, before proceeding to sentencing.


author: PER CURIAM.

text:
    Gerald Duane CRIBBS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5420.
    District Court of Appeal of Florida, First District.
    April 22, 2013.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Gerald Duane Cribbs, Appellant, seeks review of his conviction and sentence for felony battery, arguing that the trial court erred by allowing several improper prose-cutorial comments, variously over objection and without objection. We agree with Appellant that certain prosecutorial comments, made over objection, shifted the burden of proof to the defense. Because of this preserved, harmful error, we reverse. The other issues raised by Appellant are therefore moot.

The only contested issue in this case was Appellant’s identity as the perpetrator. The State presented evidence that, on an evening in October 2010, Appellant entered a convenience store owned by the victim and proceeded to harass the victim’s female customers. After the customers complained, the victim asked Appellant to leave the store. He complied but returned a short time later and continued the harassment. The victim asked Appellant to leave a second time, and the same scenario played out again. At the victim’s third request for Appellant to leave, Appellant angrily exited the store, threatening the victim and the store. After customers came into the store and complained that Appellant was still outside bothering people, the victim went outside to ensure Appellant’s departure. After the victim was satisfied that Appellant was leaving the premises, the victim turned to go back to the store. On his way back to the store, the victim was hit in the back of the head and sustained serious injuries from the blow.

At trial, the victim testified that just before the strike, he heard Appellant’s voice threatening to kill him and turned to see Appellant. The State also relied on the testimony of the Jacksonville Sheriffs Office’s lead investigator for the case. This officer responded to the scene, observed the victim, and interviewed both the victim and another witness, William Williams, who saw Appellant in the vicinity shortly after the crime occurred. The officer testified that the victim identified Appellant as the perpetrator on the night of the offense. In addition, he testified that he saw a trail of blood on the road pointing in the direction of a home where he found Appellant, who had cuts on his knuckles at the time, on the evening of the offense. The officer also admitted making several mistakes in his investigation, including by recording inaccurate information in his police report and omitting other pertinent information to which he testified at trial.

The defense called its own investigator to the stand to impeach the victim’s testimony. In his brief testimony, the defense investigator testified that he called the victim in April 2011 and that the victim said he did not know who hit him. The State cross-examined the defense investigator about what he did and did not do to ascertain the facts of the case. The State later emphasized this point in its closing argument with the following remarks:

Now, defense counsel is going to get up here and talk about the discussion with their investigator who made a phone call or two phone calls, I’m not really clear on that, to our victim, Mr. Shentema. And he apparently said he didn’t know who hit him in April. Do you know when the incident occurred, I asked him. No. Why didn’t you ask him, that’s part of — you’re an investigator. Well, I mean, that wasn’t part of the predetermined guidelines I was supposed to ask about. Oh. Well, what were you supposed to ask about? About the incident. Oh. Did you go talk to Mr. Williams? No. No. Somebody else did that. Did you go to the gas station and look at the scene? No. So you get a predetermined set of guidelines to ask the victim of a crime what’s going on and that’s it, hang up the phone?

Appellant objected on the ground of burden-shifting. The court made the following announcement in response:

I’m going to overrule the objection to the extent that I’m going to allow the State of Florida to continue their argument. I just want to, once again, remind the jury — and we’ll go over this in a more further detailed jury instruction — the burden is on the State of Florida to prove beyond a reasonable doubt the charges against Mr. Cribbs.

The State resumed its argument with further comments on the inadequacy of the defense investigator’s approach to the case. Later, the prosecutor returned to the same theme, noting that the defense investigator did not go to the store to talk to the victim and suggesting that the investigator had “just [left] it, after getting a pre-set guideline of questions to investigate.”

As a matter of due process, the State is required to prove all elements of a crime beyond a reasonable doubt. Hayes v. State, 660 So.2d 257, 265 (Fla.1995) (citation omitted). It is error for a prosecutor to make comments that “shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.” Gore v. State, 719 So.2d 1197, 1200 (Fla.1998). A defendant is not obligated to present evidence or witnesses. Hayes v. State, 660 So.2d 257, 265 (Fla.1995) (citation omitted). Although the State has the right to comment on testimony produced by the defense, such commentary is improper if it implies an obligation on the part of the defense to refute the State’s evidence. See Ealy v. State, 915 So.2d 1288, 1291 (Fla. 2d DCA 2005). That type of implication constitutes improper burden-shifting. Id.

The only issue the defense investigator’s testimony fairly raised was whether the victim in fact told the investigator that he did not remember who hit him. To the extent the prosecutor’s comments in this case tested the reliability of the defense investigator’s recollection of his conversation with the victim, they were proper. The comments, however, went further, delving into extraneous investigatory matters such as whether the defense investigator spoke to other witnesses and went to the scene. Because these comments implied that the defense had a duty to investigate, the decision to overrule the objection and allow the argument to continue was outside the bounds of the trial court’s discretion.

We recognize that even though the trial court overruled the objection and allowed the argument to continue, it attempted to mitigate the damage by reminding the jury of the State’s burden of proof. To determine whether this effort was sufficient to render the error in allowing the argument harmless, we find Hayes v. State, 660 So.2d 257 (Fla.1995), instructive and Paul v. State, 980 So.2d 1282 (Fla. 4th DCA 2008), persuasive.

In Hayes, the prosecutor responded to the defense’s focus on the State’s failure to test certain blood stains by eliciting testimony that the defense had not requested such testing either. 660 So.2d at 265. The prosecutor made similar comments in closing argument, adding that the defense failed to test hams found at the crime scene. Id. Although the court overruled the defendant’s objection to the questioning concerning the defendant’s failure to request testing, as here, the court offered a curative instruction. Id. at 266. The court advised the jury that, “although the defense had no obligation to test the evidence collected at the crime scene, it did have an opportunity to have it tested.” Id. This instruction was insufficient, as the jury was not likely to have drawn a distinction between the “obligation” and the “opportunity.” Id.

In Paul, the State’s case consisted of only one witness, Mr. Laboy. 980 So.2d at 1288. During closing, the prosecutor commented, “[I]f [the defense attorney] wants to present theories of how she believes this case should play out, there’s got to be some level of proof from that [sic] Mr. Laboy was lying.” Id. The trial court overruled the objection, explaining, “It’s a comment on the evidence, or should I say, while the State always has the burden of proof, both lawyers have a right to comment on their perception of the evidence and as I told you before you’re free to accept it, or reject it.” Id. The trial court’s general reminder of the burden of proof was insufficient as a curative instruction because it “failed to specifically rebuff the State’s comment that Paul had. the burden to show Laboy was lying” and because “the trial court appeared to consent to the accuracy of the prosecutor’s comment when it overruled the objection and stated to the jury that the State is allowed to comment on the evidence.” Id.

Here, as in Paul, the trial court appeared to endorse the prosecutor’s comment by specifically overruling the objection, stating that the prosecutor would be allowed to continue the argument, and failing to admonish the jury to disregard the improper comment. Cf. Grant v. State, 753 So.2d 760, 761 (Fla. 4th DCA 2000) (finding a burden-shifting question harmless where the court “gave a curative instruction ordering the jury to disregard the question” and the prosecutor “did not mention the matter again”). While the reminder of the burden of proof may have been of some benefit, it is not likely to have removed the confusion caused by the prosecutor’s focus on the defense’s lack of investigation. In the context of this trial, the comment invited the jury to compare investigations rather than hold the State to its burden to establish the elements of the offense beyond a reasonable doubt, and the trial court did not dispel the notion that a comparison of investigations would be proper. Unable to conclude that the improper comment was harmless beyond a reasonable doubt, we reverse and remand for a new trial.

REVERSED and REMANDED.

LEWIS, CLARK, and RAY, JJ., concur.

        Stires v. State, 824 So.2d 943 (Fla. 5th DCA 2002), is distinguishable due to the brevity of the comment at issue in Stires and the prosecutor’s efforts in that case to cure the State's own error.


text:
    Josef WILLIAMS, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-1228.
    District Court of Appeal of Florida, First District.
    April 22, 2013.
    Josef Williams, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Josef Williams seeks a writ of prohibition preventing the circuit court in the county in which he is confined from transferring his petition for writ of habeas corpus to his sentencing court. The habeas petition Williams intends to file will argue that his judgment and sentence is void because the sentencing judge did not take the required oath of office. We deny relief, concluding that petitioner has failed to establish that the transfer of his petition would amount to an act outside of or in excess of the circuit court’s jurisdiction, so as to warrant prohibition relief. See English v. McCrary, 348 So.2d 293, 296 (Fla. 1977) (prohibition may only be granted when it is shown that the lower court is without jurisdiction or attempting to act in excess of its jurisdiction).

The remedy of habeas corpus is not available in Florida to obtain the kind of collateral postconviction relief available by motion in the sentencing court pursuant to Florida Rule of Criminal Procedure 3.850. See Baker v. State, 878 So.2d 1236 (Fla. 2004). Under current law, habeas petitions are proper only to address issues regarding a defendant’s incarceration, not the sentence leading to the incarceration. See Farrell v. State, 62 So.3d 20 (Fla. 1st DCA 2011). Petitioner’s habeas claim is clearly a matter cognizable by motion for postconviction relief, and the remedy of habeas corpus is .therefore unavailable to him. If petitioner is procedurally barred from seeking relief in his sentencing court, dismissal of his petition rather than its transfer may in fact be the appropriate outcome. See Zuluaga v. State, Department of Corrections, 32 So.3d 674 (Fla. 1st DCA 2010). Either disposition, however, would clearly not amount to an act outside of or in excess of the jurisdiction of the circuit court. Williams has therefore failed to state a basis for prohibition relief.

PETITION FOR WRIT OF PROHIBITION DENIED.

LEWIS, THOMAS, and MAKAR, JJ., concur.


text:
    George A. HILL, Sr., Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D13-1148.
    District Court of Appeal of Florida, First District.
    April 22, 2013.
    George A. Hill, Sr., pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Parker v. McNeil, 9 So.3d 761 (Fla. 1st DCA 2009) (stating that the remedy of belated appeal is unavailable for an order denying mandamus relief).

BENTON, C.J., ROWE and MARSTILLER, JJ., concur.


text:
    Raney RICHARDSON, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D12-5030.
    District Court of Appeal of Florida, First District.
    April 22, 2013.
    Raney Richardson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

Because petitioner has failed to show that he has brought the pending motion to the attention to the trial court or made an express and distinct demand for performance, the petition for writ of mandamus is denied. See Thomas v. State, Dep’t of Revenue, 74 So.3d 145 (Fla. 1st DCA 2011); Al-Hakim v. State, 783 So.2d 293 (Fla. 5th DCA 2001).

BENTON, C.J., ROWE and MARSTILLER, JJ., concur.


text:
    John C. SPAULDING, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D13-0929.
    District Court of Appeal of Florida, First District.
    April 24, 2013.
    John C. Spaulding, pro se, Appellant.
    Jennifer Parker, General Counsel, Department of Corrections, Tallahassee; Pamela Jo Bondi, Attorney General, and Daniel A. Johnson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005); Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005) (concluding “proper remedy is to file a motion in the circuit court seeking [removal of lien and restoration of funds collected], secure a ruling, and if necessary raise the issue when appellate review is sought of any final order in the proceedings below”).

PADOVANO, ROBERTS, and CLARK, JJ., concur.


text:
    S.G., Mother of A.P. And L.P., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D12-3605.
    District Court of Appeal of Florida, Fifth District.
    April 24, 2013.

      Mark A. Skipper, Office of the Criminal Conflict and Civil Regional Counsel, Orlando, and Jeffrey Deen, Regional Counsel of the Office of the Criminal Conflict and Civil Regional Counsel, Casselberry, for Appellant.
    Laura E. Lawson, of Guardian Ad Li-tem, Tavares, for Guardian ad Litem.
    Rosemarie Farrell, Orlando, for Appel-lee.
   PER CURIAM.

S.G. (“Mother”) timely appeals the Orders rendered by the trial court placing her two children in separate permanent guardianships and terminating protective supervision. Mother raises several issues. In response, the Department of Children and Families and the Guardian ad Litem submitted respective Concessions of Error, conceding several errors that require reversal. Both the Department and the Guardian ad Litem request that this court remand this case for further proceedings to protect Mother’s due process rights and determine the best interests of the children given the current circumstances. Based on the Concessions of Error and our review of the record, we reverse the Orders under review and remand this case for further proceedings.

REVERSED and REMANDED.

SAWAYA, EVANDER and BERGER, JJ., concur.


author: GRIFFIN, J.

text:
    GALILEAN FAMILY WORSHIP CENTER, Appellant, v. CENTRAL FLORIDA DISTRICT CHURCH, etc., Appellee.
    No. 5D12-235.
    District Court of Appeal of Florida, Fifth District.
    April 26, 2013.
    Brooke Girley and Jerry Girley, of The Girley Law firm, Orlando, for Appellant.
    Robert Alden Swift, of Cole Scott & Kissane, P.A., Orlando, for Appellee.
   GRIFFIN, J.

Galilean Family Worship Center [“Worship Center”] appeals a final order dismissing its amended complaint against Central Florida District Church of the Nazarene Church [“Nazarene Church”]. The dispute centers on the decision by Nazarene Church to declare the Worship Center a “church in crisis” and to “disorganize” it as a member of the Church of the Nazarene. At the time this action was taken, Worship Center occupied premises owned by Nazarene Church. Nazarene Church demanded that Worship Center vacate Nazarene Church property as of the effective date of their “disorganization.” Worship Center attributed the strain to arbitrary pastoral assignments by Nazarene Church and to what it viewed as a “cultural divide” with Nazarene Church leaders. Because Worship Center was of the view that “proper channels” had not been followed to disorganize it, Worship Center failed to return possession of the property to Nazarene Church. Nazarene Church responded by locking Worship Center out of the property.

Worship Center filed suit against Nazarene Church, seeking damages for “wrongful eviction,” “wrongful foreclosure,” unjust enrichment and conversion. We find no error in the trial court’s dismissal of those claims, save for the conversion claim. According to Worship Center’s pleading, at the time Nazarene Church took back control of the property formerly occupied by Worship Center, there was personal property owned by Worship Center that Nazarene Church has refused to turn over to Worship Center. Worship Center’s occupation of the premises was governed by agreements between the two entities, but Nazarene Church has offered no legal basis for any claim to this personal property and no excuse for its retention of this property. Nor can we find in the record any basis to apply the church autonomy doctrine to this claim. Accordingly, as to the conversion claim only, we reverse the order of dismissal and remand for further proceedings.

AFFIRMED in part; and REVERSED in part.

TORPY and JACOBUS, JJ., concur.


text:
    Rita RICE, Petitioner, v. Martin HAINES and Carol Haines, Respondents.
    No. 5D13-1218.
    District Court of Appeal of Florida, Fifth District.
    April 26, 2013.
    Robert Gregory King of King Law Firm, Ocala, for Petitioner.
    T.R. Unice, Jr., Jeffrey D. Jensen and David M. Rosenbaum of Unice Salzman Radel, P.A., Palm Harbor, for Respondents.
   ON MOTION FOR STAY

PER CURIAM.

The Petitioner has filed an Emergency Motion to Stay Issuance and Service of Subpoenas pending review in this case, arguing that a denial of a stay will cause irreparable harm in the form of disclosure of the very things which are the subject of the pending petition. The Respondents do not object and this court agrees.

STAY GRANTED, pending the disposition of Petition.

LAWSON, COHEN and JACOBUS, JJ., concur.


text:
    Shawn WORDEN, by and through her Next Best Friend, Lori SCHWARTZ, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D12-1530.
    District Court of Appeal of Florida, First District.
    April 29, 2013.
    Jodi Siegel, Gabriela M. Ruiz, and Kirsten Clanton of Southern Legal Counsel, Inc., Gainesville, for Appellant.
    Richard C. Beliak, Tallahassee, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Spencer v. Agency for Persons with Disabilities, 86 So.3d 1250, 1251-52 (Fla. 1st DCA 2012).

THOMAS and MARSTILLER, JJ., concur.

WOLF, J., dissents without opinion.


text:
    Phillip W. MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1523.
    District Court of Appeal of Florida, First District.
    April 30, 2013.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the August 17, 2012, order denying the defendant’s motion for post-conviction relief, in Escambia County Circuit Court case number 2003-CF-005654A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

PADOVANO, ROBERTS, and CLARK, JJ., concur.


text:
    Joseph A. WILLIAMS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0271.
    District Court of Appeal of Florida, First District.
    April 30, 2013.
    Joseph A. Williams, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the August 24, 2012, judgment and sentence, in Leon County Circuit Court case number 2010-CF-3747-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.Ápp. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PADOVANO, ROBERTS, and CLARK, JJ., concur.


author: VICTORY, J.

text:
    STATE of Louisiana v. Isaiah OVERSTREET, Jr.
    No. 2012-KA-1854.
    Supreme Court of Louisiana.
    March 19, 2013.
    James D. Caldwell, Attorney General, Colin Andrew Clark, Assistant Attorney General, East Baton Rouge Parish District Attorney’s Office, Hillar Clement Moore, III, District Attorney, for Appellant.
    Benn Hamilton, Esq., Baton Rouge, LA, for Appellee.
   VICTORY, J.

| iThis case comes to us on appeal from a district court’s ruling that La. R.S. 15:541(7) and 15:542, laws requiring registration for sex offenders, are unconstitutional as applied to a person who pled and was found not guilty by reason of insanity to a sex offense. Having reviewing the record and the applicable law, we reverse the judgment of the district court because the respondent failed to sufficiently particularize any basis for finding the statutes unconstitutional.

FACTS AND PROCEDURAL HISTORY

On November 16,1993, respondent, Isaiah Overstreet, Jr., who was 32 years old, quit his job, began living in his ear, and started preaching on the grounds of college campuses. On April 25, 1994, at about 6 a.m. police were dispatched to a Southeastern dormitory where respondent, after failing to force his way into one room, entered another, forced a student onto her bed, and struggled with her before fleeing. At 11:30 p.m. on the same day, police were dispatched to the Electrical Engineering building at Louisiana State University where respondent had grabbed |2a student as she waited for campus transit, dragged her into the bushes, pinned her to the ground, and attempted to remove her clothing before fleeing. Also on that day, respondent tried to gain entry to another dormitory by breaking a window and pulling the handle on a fire door. On June 24, 1994, respondent was charged by bill of information with aggravated burglary and two counts of attempted aggravated rape.

On May 26, 1994, defense counsel asked the district court to appoint a sanity commission to evaluate respondent’s capacity at the time of the offense and his competency to proceed. The experts agreed that respondent was extremely delusional and unable to assist in his defense. After a hearing on August 18, 1994, the district court found that respondent was not competent to proceed and ordered him transferred to the Feliciana Forensic Facility for evaluation and treatment. Respondent was then released on bond by mistake but the bond was revoked eight days later. While in parish jail awaiting transfer, respondent was examined by a psychologist who diagnosed him as schizophrenic. Respondent was admitted to Feliciana on March 28,1995.

On May 31, 1995, Feliciana’s clinical director informed the district court that respondent had been restored to competency. The district court then directed the experts to reexamine respondent and they concurred. After a hearing held on September 19, 1997, the district court found, with the consent of the district attorney and pursuant to La.C.Cr.P. art. 558.1, that the respondent was not guilty by reason of insanity. Respondent, at age 36, was admitted to Feliciana again on January 12, 1998. He was treated there with low doses of anti-psychotic medication and his symptoms generally went into remission. In May 2009, the district court, in accordance with a review panel’s recommendation, ordered that ^respondent be transferred to the civil division of the Eastern Louisiana Mental Health System.

Respondent denies any memory of the attacks and has consistently refused to participate in sex offender assessment or treatment. On March 8, 2010, respondent filed a motion to be released. Because of his refusal to participate in sex offender treatment, the review panel recommended against release. In 2011, respondent was informed by staff that if he is transferred to a group home, he will be required to register as a sex offender. On May 18, 2011, respondent filed a motion for declaratory judgment in which he asked the district court to determine whether he is classified as a sex offender and subject to the sex offender registration requirements of La. R.S. 15:542. On October 10, 2011, respondent filed what he captioned as a “motion to declare provision of law unconstitutional and for a determination of rights,” in which he contended that La. R.S. 15:541(7) and La. R.S. 15:542 are unconstitutional as applied to anyone found not guilty of a sex offense by reason of insanity. Specifically, respondent asserted the following:

The defendant now alleges that the provisions of La. R.S. 15:541(7) are unconstitutional to the degree and extent that he is classified as a convicted felon or convicted sex offender despite having been declared an acquitee and Not Guilty By Reason of Insanity.

In addition, he, at age 50 and having been involuntarily confined as a danger to others for almost 14 years, asked to be released from the Eastern Louisiana Mental Health System. By supplement filed March 19, 2012, respondent clarified that the application of these provisions of law to a person found not guilty by reason of Rinsanity violates federal guarantees of equal protection and due process as well as several sections of the Louisiana constitution:

Defendant alleges that the provisions of R.S. 15:541(7) and R.S. 15:542, as applied, are unconstitutional and violate the United States Constitution, Fourteenth Amendment (Due Process of Law and Equal Protection of the Law) and also violate the Louisiana State Constitution, Article I, Sections 2, 3, 5, 20, and 24 (Due Process of Law, Equal Protection and Individual Dignity, Right to Privacy, Right to Humane Treatment and Other Unenumerated Rights).

Apparently, respondent filed this supplement in response to the state’s objection at a hearing held on March 15, 2012, that respondent had not identified any constitutional provisions that are violated by the statutes. Unfortunately, a transcript of the March 15 hearing does not appear in the record.

After a hearing on May 30, 2012, the district court declared La. R.S. 15:541(7) and 15:542 unconstitutional as applied to any person found not guilty by reason of insanity. At this hearing, respondent through counsel conceded that the statutory provisions apply. However, counsel argued that the law is “arbitrary, capricious, and make no sense” because “if on the one hand, he is acquitted, he cannot then be considered convicted.” Counsel further asserted that “you cannot put him in the status of being a sex offender, when he was not convicted of any offense.” The district court then clarified that it was respondent’s position that the legislature acted arbitrarily and capriciously when it enacted a provision that effectively declares a person to be a convicted sex offender who has not been convicted of a sex offense. Respondent appeared to agree, characterized this as an equal protection violation, and further contended that it “is offensive to the notion of the constitution” to subject a person who has been found not guilty to consequences that are reserved for persons who are convicted. The district court then volunteered additional concerns:

What about this declaration of rights in our constitution, section 20, the right to humane treatment? No law should subject any person — and I’m just reading some parts of it — to cruel, excessive, or |fiunusual punishment. Could this registration requirement be, perhaps considered to be excessive, or unusual punishment, for someone who is in the category of a person adjudicated of this sanction — of this application of not guilty by reason of insanity?

Respondent replied that it is “obviously excessive” to require a person who “has no capability of understanding the consequences” to register as a sex offender. The district court also voiced concern about the ability of a person with diminished capacity because of mental illness to comply with the sex offender registration law:

How can someone register when he lacks capacity to — he had the capacity to register, I assume. So he has some capacity, but not the capacity to engage in criminal act, but he’s — on the one hand he has the capacity to engage in civil acts of registration and then complying with zone requirements? [Sic] Order I am looking at is someone is told you must comply with the civil obligations, register, do it on a timely basis, adhere to zone requirements, et cetera, et cetera, which is presupposing that he has some capacity to engage in civil obligations required by the statute. On the other hand that he lacks capacity under criminal law. To defend himself in a criminal proceeding [sic]. Which as we know, that standard is significant. I mean, you are adjudged to have that level of delamination [sic] in terms of capacity; substantial reduced capacity.

The district court then verbally ruled as follows:

I declare title 15:541(7), title 15:542 as unreasonably applied to this category of persons. Specifically, I find that these statutes violate the right to his individual dignity, under title section 3 of our state constitution. I also find that it violates the right to humane treatment under section 20 of article I of our statute constitution.

However, the district court also issued a conflicting written ruling:

It is adjudged and decreed that the provisions of La. R.S. 15:541(7) and La. R.S. 15:542 as applied to a defendant adjudged not guilty by reason of insanity, are unconstitutional and violate the Louisiana State Constitution, Article I Sections 2 and 20.

Based on this conflict, the state asked the district court for a per curiam clarifying which constitutional provisions are violated. The state also appealed directly to this Court under the authority of La. Const, art. V, § 5, which provides that “a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional.”

| Jn its application to this Court, the state contends that (1) respondent insufficiently particularized the grounds of his claim and (2) the sex offender registration provisions do not violate La. Const, art. I, §§ 2, 3, or 20. Regarding the former, the state notes that respondent provided no basis to declare the statutes unconstitutional in his original filing and thereafter provided only citations to constitutional provisions in his supplement. The state argues that a conclusory assertion that the statutes are unconstitutional under the provisions listed in the supplement does not overcome the presumption of constitutionality and demonstrate that constitution denies the legislature the power to enact the statutes in question. The state then contends that, regardless, the sex offender registration provisions pass muster under the all constitutional provisions addressed in the district court’s first two conflicting rulings. (The state’s brief was filed before the trial judge issued the clarifying per curiam, which is addressed below.) As an initial matter, the state emphasizes that a plea of not guilty by reason of insanity is an acknowledgement of guilt of each element of the offenses charged and has never been considered equivalent to an acquittal. Under La. Const, art. I, § 2, the state then argues that requiring all persons who commit sex offenses to register, whether convicted and punished or found exempt from criminal punishment because of insanity, is reasonably related to the government’s interest in protecting the public from all sex offenders. Under La. Const, art. I, § 3, the state argues sex offenders who are found not guilty by reason of insanity may be treated the same as those who are convicted because the legislature reasonably believes that all persons who commit sex offenses present a substantial risk of recidivism. Under La. Const, art. I, § 20, the state argues requiring a person found not guilty by |7reason of insanity to register as a sex offender cannot constitute excessive punishment when this Court has consistently held that the sex offender registry law is not punitive in nature.

Respondent argues that it is inconsistent and absurd for La. R.S. 15:541(7) to classify him as a sex offender when he was declared not guilty of a sex offense by reason of insanity. According to respondent, substantive due process bars arbitrary and capricious governmental acts such as this. He argues that there is no reasonable basis for what he characterizes as converting the finding that he was not guilty by reason of insanity into a conviction. Respondent also disputes this Court’s characterization of the sex offender registration law as not punitive, particularly when applied to a person who was found not guilty by reason of insanity. Respondent argues that, because he was insane at the time, he is exempt from all criminal punishment including the sex offender registration law. Finally, respondent characterizes his filings and argument in the district court as a succinct showing that the statutes at issue violate principles of equal protection and due process by arbitrarily classifying and punishing him as a sex offender, and he claims that no further particularization of the grounds is necessary considering that the issue is clear and uncomplicated.

The state’s brief was filed on August 17, 2012, and the respondent’s brief on September 26, 2012. Thereafter, on January 8, 2013, the district court’s per curiam was filed. In this ruling, dated November 19, 1012, the district court clarified the basis of its ruling as follows:

It is further adjudged and decreed that the provisions of La. R.S. 15:541(7) and La. R.S. 15:542 as applied to a defendant adjudged Not Guilty By Reason of Insanity, are unconstitutional and violate the Louisiana State Constitution, Article I, Sections 2 and 20.
|RThe principal concern is capacity. The court believes to require a defendant who has been found Not Guilty By Reason of Insanity to register as a sex offender violates his right to due process of law and that provisions requiring continual registrations are procedurally onerous and therefore excessive as applied with respect to the collateral consequences. Procedural due process requires that before an individual is deprived of a property or liberty right, the individual must be provided with notice and an opportunity to be heard. However, if an individual lacks capacity, these requirements cannot be satisfied.
According to Louisiana Code of Criminal Procedure article 641, mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. In other words, a person who is mentally incompetent may not be subjected to trial. Following this line of reasoning, a person who is mentally incapacitated could habitually violate the Registration of Sex Offender laws due to his lack of capacity. Therefore, it is unreasonable to expect a person the law determines to be Not Guilty by Reason of Insanity to follow a set of rules and requirements which he literally cannot comprehend, much less adhere to.
For the foregoing reasons, the court concludes that it is unconstitutional to require a defendant who has been adjudged Not Guilty By Reason of Insanity to register and provide notification as a sex offender.

Thus, the district court based its ruling on a determination that persons who are adjudged not guilty by reason of insanity lack the capacity to comply with the sex offender registration law.

DISCUSSION

In summary, anticipating release from confinement for mental health treatment as a danger to others, respondent initially asserted that La. R.S. 15:542(7), which defines persons subject to sex offender registration to include those found not guilty by reason of insanity, is “unconstitutional”. In response to the state’s objection, respondent provided a list of constitutional provisions that he claimed prohibit the legislature from enacting the statute at issue. At the hearing on this motion, respondent argued that the statute is unconstitutional because it arbitrarily and capriciously converts an acquittal into a conviction. The per curiam, however, reveals that the district court declared the statute uneonstitu-tional | Sbased on its own concern, raised by the court sua sponte and never asserted by respondent, that all persons adjudged not guilty by reason of insanity lack the capacity to comply with the law.

In State v. Hatton, 07-2377 (La.7/1/08), 985 So.2d 709, this Court reversed a district court’s ruling that quashed a bill of information on the basis that a subsection of the statute defining the crime of computer-aided solicitation of a minor violated two state constitutional provisions. This Court found that the district court erred by basing its ruling on constitutional grounds that were not raised by the mov-ant and therefore not properly before it. This Court stated:

Statutes are generally presumed to be constitutional and the party challenging the validity of the statute bears the burden of proving it is unconstitutional. State v. Fleury, 01-0871, p. 5 (La.10/16/01), 799 So.2d 468, 472; State v. Brenner, 486 So.2d 101, 102 (La.1986); State v. Rones, 228 La. 839, 67 So.2d 99, 105 (1953). Unlike the federal constitution, a state constitution’s provisions are not grants of power, but instead are limitations on the otherwise plenary power of the people of a state, exercised through its legislature. Bd. of Comm’rs of N. Lafourche Conservation, Levee & Drainage Dist. v. Bd. of Comm’rs of Atchafalaya Basin Levee Dist., 95-1353, p. 3 (La.1/16/96), 666 So.2d 636, 639. Therefore, the legislature may enact any legislation the state constitution does not prohibit. Id. Moreover, this Court has consistently held that legislative enactments are presumed valid and them constitutionality should be upheld when possible. State v. Caruso, 98-1415, p. 1 (La.3/2/99), 733 So.2d 1169, 1170 (citing State v. Griffin, 495 So.2d 1306, 1308 (La.1986)). Accordingly, as a result of this presumption, if a party wishes to challenge the constitutionality of a statute, the party must do so properly. We now consider the proper procedure for challenging the constitutionality of a statute.
While there is no single procedure for attacking the constitutionality of a statute, it has long been held that the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized. State v. Schoening, 00-0903, p. 3 (La.10/17/00), 770 So.2d 762, 764 (citing Vallo v. Gayle Oil Co., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-65). This Court has expressed the challenger’s burden as a three step analysis. First, a party must raise the unconstitutionality in the trial court; second, the unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the basis of unconstitutionality must be particularized. Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-865. The purpose of these procedural rules is to afford interested parties sufficient time to brief and prepare arguments defending the constitutionality of the |inchallenged statute. State v. Schoening, 00-0903, p. 3 (La.10/17/00), 770 So.2d 762, 764 (citing Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 865). The opportunity to fully brief and argue the constitutional issues provides the trial court with thoughtful and complete arguments relating to the issue of constitutionality and furnishes reviewing courts with an adequate record upon which to consider the constitutionality of the statute. Id.
The final step of the analysis articulated above requires that the grounds outlining the basis of the unconstitutionality be particularized. This Court has thoroughly considered the standard for particularizing the constitutional grounds. The purpose of particularizing the constitutional grounds is so that the adjudicating court can analyze and interpret the language of the constitutional provision specified by the challenger. State v. Expunged Record (No.) 249,044., 03-1940, p. 4 (La.7/2/04), 881 So.2d 104, 107 (citing Louisiana Mun. Ass’n v. State, 00-0374, p. 5 (La.10/6/00), 773 So.2d 663, 667 (“In adjudicating [a] constitutional challenge, the court must analyze and interpret the language of the constitutional provision specified by the challenger.”)). This basic principle dictates that the party challenging the constitutionality of a statute must cite to the specific provisions of the constitution which prohibits the action. State v. Fleury, 01-0871, p. 5 (La.10/16/01), 799 So.2d 468, 472 (citing Moore v. Roemer, 567 So.2d 75, 78 (La.1990)); see also State v. Granger, 07-2285, p. 3 (La.5/21/08), 982 So.2d 779; State v. Herring, 211 La. 1083, 31 So.2d 218, 219-220 (1947) (citing City of Shreveport v. Pedro, 170 La. 351, 127 So. 865 (La. 1930)); A. Sulka & Co. v. City of New Orleans, 208 La. 585, 23 So.2d 224, 229 (1945) (“It is elementary that he who urges the unconstitutionality of a law must especially plead its unconstitutionality and show specifically wherein it is unconstitutional.... ”).
In addition to the three step analysis for challenging the constitutionality of a statute, the specific plea of unconstitutionality and the grounds therefor must be raised in a pleading. See State v. Schoening, 00-0903, p. 4 (La.10/17/00), 770 So.2d 762, 765, citing Williams v. State, Dept. of Health and Hospitals, 95-0713, p. 6 (La.1/26/96), 671 So.2d 899, 902 (recognizing that “Louisiana jurisprudence requires that the constitutionality of a statute be specially pleaded in a petition, exception, written motion, or answer and that the grounds be particularized, so that the parties are given sufficient time to brief and prepare arguments regarding their position on a constitutional question.”); State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972)(wherein this Court refused to consider grounds of unconstitutionality not raised in the defendant’s Motion to Quash); State v. Herring, 211 La. 1083, 31 So.2d 218, 219-220 (1947) (“This Court has consistently refused to consider an attack on the constitutionality of a law where such issue is not raised by the pleadings. The attack on the constitutionality of a law must be urged by special plea setting forth therein grounds on which it is claimed that the law is unconstitutional.”).
InThus, in light of the foregoing jurisprudential rules, in order to properly confect a constitutional challenge, a party must raise the constitutional issue in the trial court by raising the unconstitutionality and the grounds outlining the basis of the alleged unconstitutionality in a pleading.

Hatton, 985 So.2d at 719-20 (footnote omitted). Applying those principles, this Court found that defendant in Hatton had properly raised two grounds but that “neither of the grounds properly raised by the defendant in his Motion to Quash were the basis of the trial court’s ruling”. Hatton, 985 So.2d at 721. Thus, this Court found that “[bjecause the trial court’s ruling was based on constitutional grounds not properly raised, and indeed not raised at all, by the defendant, it erred in granting the defendant’s Motion to Quash on the basis that La. R.S. 14:81.3 is unconstitutional.” Id. This Court further noted that a district court that rules on constitutional grounds other than those asserted by a litigant is acting similarly to a court that sua sponte declares a statute unconstitutional:

Although the issue of raising constitutional grounds not particularized in the trial court generally arises under circumstances in which a party raises a new or additional constitutional ground before an appellate court, this Court has • consistently found that the purpose of the three step analysis for challenging the constitutionality of a statute is to give the parties an opportunity to brief and argue the constitutional grounds and to prepare an adequate record for review. State v. Schoening, 00-0908, p. 8 (La.10/17/00), 770 So.2d 762, 764. Clearly, these purposes are not satisfied if the trial court is permitted to rule on grounds not properly raised by the party challenging the constitutionality of a statute. Further, we note that this situation is similar to those instances in which a trial court sua sponte declares a statute unconstitutional when its unconstitutionality has not been placed at issue by one of the parties in a pleading. Id. (citing Bd. of Comm’rs of Orleans Levee Dist. v. Connick, 94-3161, p. 6 (La.3/9/95), 654 So.2d 1073, 1076). A judge’s sua sponte declaration of unconstitutionality is a derogation of the strong presumption of constitutionality accorded legislative enactments. Id. pp. 3-4, at 765 (citing Bd. of Comm’rs of Orleans Levee Dist. v. Connick, 94-3161, p. 6 (La.3/9/95), 654 So.2d 1073, 1076). In the instant matter, the trial court’s basis for its ruling was on constitutional grounds not before it and, similar to those instances in which a trial court sua sponte rules on a constitutional issue not raised by the parties, such ruling is improper.

Hatton, 985 So.2d at 721. Following Hatton, this Court in State v. Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738, found as a preliminary matter that a district court erred in declaring La.C.Cr.P. art. 782 unconstitutional based on grounds other than those asserted by a movant:

As neither defendant specified, briefed, or argued that the statute violated the Constitution’s guarantee of equal protection under the law, any reliance by the trial court in its ruling on such grounds was based on constitutional grounds not properly raised, and was, therefore, improper.

Bertrand, 6 So.3d at 741.

CONCLUSION

The state in the present case contends that respondent has not sufficiently particularized the grounds of his claim that the statutory provision requiring sex offender registration is unconstitutional. The state’s contention has merit. This Court has expressed the challenger’s burden as a three-step process. First, a party must raise the unconstitutionality in the trial court; second, the unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the basis of unconstitutionality must be particularized. Further, a district court may not sua sponte rule that a statute is unconstitutional, nor can it declare a statute unconstitutional on grounds other than those asserted by a movant.

At best, respondent merely claimed the law was “arbitrary, capricious and makes no sense” because he was not convicted of a crime, but instead pled not guilty by reason of insanity. He seemed to be claiming an equal protection violation, but never explained the basis of that claimed violation. As a result of this lack of particularization, the state was afforded insufficient opportunity to brief and argue in response. In addition, as in Hatton and Bertrand, the trial court’s landing here was based on constitutional grounds not properly raised, and indeed not raised at all, by respondent. Accordingly, we reverse the district court on this basis.

DECREE

For the reasons stated herein, the judgment of the district court, declaring La. R.S. 15:541(7) and La. R.S. 15:542 unconstitutional as applied to a defendant judged not guilty by reason of insanity, is reversed, and the case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

Judge JEFFERSON D. HUGHES III, assigned as Justice pro tempore, sitting for KIMBALL, C.J., for oral argument. He sits as an elected Justice at the time this opinion is rendered.

       Judge Jefferson D. Hughes III, assigned as Justice pro tempore, sitting for Kimball, C.J., for oral argument. He sits as an elected Justice at the time this opinion is rendered.

      . La. R.S. 15:541(7), defines a "conviction or other disposition adverse to the subject,” for purposes of sex offender registration, as "any disposition of charges, except a decision not to prosecute, a dismissal, or an acquittal, except when the acquittal is due to a finding of not guilty by reason of insanity and the person was committed.”

      . La. R.S. 15:542(A)(1) requires the following persons to register and provide notification as a sex offender: "Any adult residing in this state who has pled guilty to, has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of, or any conspiracy to commit ... (a) [a] sex offense as defined in R.S. 15:541 ...” La. R.S. 15:541(24)(a) defines attempted aggravated rape as a "sex offense.”

      .La.C.Cr.P. art. 558.1 provides: "The court may adjudicate a defendant not guilty by reason of insanity without trial, when the district attorney consents and the court makes a finding based upon expert testimony that there is a factual basis for the plea.”

      . Sex offender treatment has been offered to respondent on a monthly basis throughout the entire period of confinement. With the exception of when he agreed to participate in such treatment on June 15, 2006 (but then refused to follow through), he has refused sex offender treatment.

      . In the alternative, he asked to be allowed unsupervised weekend visits with his parents.

      . Respondent also asked the district court whether he is ordered to participate in sex offender treatment and whether he is considered a convicted felon.

      . Respondent also asked the district court whether he is considered a convicted felon, whether he is classified as a sex offender, whether he is ordered to participate in sex offender treatment, and whether he must comply with La. R.S. 15:542 if he is released.

      . See Jones v. United States, 463 U.S. 354, 363, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (an adjudication of not guilty by reasons of insanity "establishes ... the defendant committed an act that constitutes a criminal offense”); State v. Branch, 99-1484 (La.3/17/00), 759 So.2d 31, 32 ("a verdict of not guilty by reason of insanity rests on a determination by the factfinder that the defendant committed the acts charged against him

      . Respondent appears to concede that the legislature has a legitimate interest in protecting the public from sex offenders whether "sane or insane” but argues that this "becomes problematical when the state pronounces a defendant a sex offender and the trial court has declared him an acquittee."

      . See generally City of Shreveport v. Pedro, 170 La. 351, 353, 127 So. 865, 865 (1930): It is elementary that all laws are presumed to be constitutional until the contrary is made clearly to appear, and that he who urges the unconstitutionality of a law must specially plead its unconstitutionality, and show specifically wherein it is unconstitutional. The plea, in this instance, is too vague to put at issue the unconstitutionality of the laws attacked. The court cannot be expected to make an examination to ascertain the various laws under which plaintiff may have acted and to ascertain wherein they violate the due process clause of the Constitution of the United States, or are otherwise unconstitutional, and, if they are, in what respect they are so, nor can the opposite party to the litigation, under these circumstances, be expected to meet the attack, for he is not sufficiently informed by the plea to undertake the task, and, moreover, the burden is not upon him to show that they are constitutional. See State v. Hudson, 162 La. 543, 110 So. 749 (1926).