author: LEVINE, J.

text:
    CITY OF WEST PALM BEACH, Florida, Appellant, v. Terance Emmanuel CHATMAN, Appellee.
    No. 4D11-2248.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.

      Claudia M. McKenna, City Attorney, and Kimberly L. Rothenburg, Assistant City Attorney, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented for our review is whether a municipal ordinance criminalizing “loitering with intent to commit prostitution” is facially unconstitutional. We find that the ordinance is overbroad and vague, and as such, we affirm the trial court which correctly found this ordinance unconstitutional.

Appellee was charged with violating the City of West Palm Beach ordinance regarding “Loitering with the Intent to Commit Prostitution.” In this case, a law enforcement officer from the West Palm Beach Police Department observed appel-lee “standing in an area known for prostitution activity dressed as a woman.” When asked by the officer what appellee was doing in the area, appellee replied that he was “waiting for his ride.” Appellee was charged with violating the city’s ordinance prohibiting “loitering with the intent to commit prostitution.” Appellee moved to dismiss the charge claiming that the ordinance was facially unconstitutional. The county court granted appellee’s motion to dismiss. The county court certified that the issue emanating from this case was of great public importance pursuant to Florida Rule of Appellate Procedure 9.160. This court accepted jurisdiction pursuant to that rule. The city’s appeal ensues.

We review the facial constitutionality of a municipal ordinance under the de novo standard. State v. J.P., 907 So.2d 1101, 1107 (Fla.2004).

We begin our analysis by reviewing the seminal cases: Wyche v. State, 619 So.2d 231 (Fla.1993), and Holliday v. City of Tampa, 619 So.2d 244 (Fla.1993).

In Wyche, the Florida Supreme Court found that the City of Tampa’s ordinance prohibiting loitering for the purpose of prostitution was unconstitutional as “too vague because a violation of the law is determined based on law enforcement officers’ discretion” and as overbroad by “implicating] protected freedoms” such as “talking and waving to other people.” 619 So.2d at 234-35. The Tampa ordinance in Wyche provided that it was unlawful for any person to “[l]oiter, while a pedestrian or in a motor vehicle, in or near any thoroughfare or place open to the public in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting, or procuring another to commit an act of prostitution, sodomy, fellatio, cunnilingus, masturbation for hire, pandering, or other lewd or indecent act.” Id. at 233 n. 2. The ordinance also listed “circumstances” which law enforcement may consider when determining whether this “purpose is manifested.”

The Florida Supreme Court stated:

The ordinance limits the rights of those who have been previously convicted of prostitution to engage in noncriminal routine activities. The ordinance suggests that it is incriminating when a “known prostitute” “repeatedly beckons to, stops or attempts to stop, or engages passers-by in conversation, or repeatedly stops, or attempts to stop motor vehicle operators by hailing, waving of arms, or any bodily gesture.” Hailing a cab or a friend, chatting on a public street, and simply strolling aimlessly are time-honored pastimes in our society and are clearly protected under Florida as well as federal law. All Florida citizens enjoy the inherent right to window shop, saunter down a sidewalk, and wave to friends and passersby with no fear of arrest.

Id. at 235 (citation and footnote omitted).

The court concluded that

the ordinance, which prohibits loitering “in a manner and under circumstances manifesting the purpose of’ engaging in acts of prostitution, does not require proof of unlawful intent as an element of the offense. Indeed, the ordinance allows arrest and conviction for loitering under circumstances merely indicating the possibility of such intent, such as beckoning to passersby and waving to motorists, which could be occurring without any intent to engage in criminal activity. Thus, the ordinance affects and chills constitutionally protected activity.

Id.

Appellant argues that the West Palm Beach ordinance does not contain the same infirmities as the Tampa ordinance in Wyche, since the West Palm Beach ordinance contains the additional requirement that “[t]he violator’s conduct must be such as to constitute activity which demonstrates a specific intent to induce, entice, solicit or procure another to commit an act of prostitution.”

We find, however, that the ordinance in this case, just like in Wyche, is unconstitutionally overbroad. “The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere” and an enactment “is unconstitutional on its face if it prohibits a substantial amount of protected expression.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 244, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). The language in this ordinance does not require that the conduct proscribed be with specific intent; rather the language merely restricts conduct which “demonstrates” a “specific intent.” Thus, criminalization of the conduct outlawed in the present case could infringe on constitutionally protected activities since an arresting police officer could rely purely on conduct which “demonstrates” to the officer a “specific intent” to entice or solicit another to commit an act of prostitution. Constitutionally protected conduct like waving at passersby and sauntering down a street could be interpreted by officers as constituting conduct which evinces a “specific intent” to solicit prostitution.

The Florida Supreme Court, on the same day it issued Wyche, issued Holliday v. City of Tampa, 619 So.2d 244 (Fla.1993), which invalidated an ordinance making it “unlawful for any person to loiter in a public place in a manner and under circumstances manifesting the purpose of illegally using, possessing, transferring or selling any controlled substance.” Id. at 244 n. 2. This drug loitering ordinance contained another provision which listed circumstances that could be considered when determining if that purpose had been manifested.

Similar to West Palm Beach’s ordinance here, the ordinance in Holliday contained the additional requirement that “the person’s affirmative language or conduct must be such as to demonstrate by its express or implied content or appearance a specific intent to induce, entice, solicit or procure another to illegally possess, transfer or buy a controlled substance.” Id. at 245 n. 2. The Florida Supreme Court, in Holliday, concluded that “[b]ased on the authority of Wyche, we find that the ordinance at issue in this case is unconstitutional” since, among various conclusions, the ordinance was overbroad and vague. Id. at 245.

We find that the ordinance’s language in Holliday, allowing consideration of the circumstances enumerated to determine if one’s language or conduct “demonstrate[d]” the “specific intent” to solicit another to engage in illegal drug activity, is structurally similar to the ordinance’s language in the present case, under which law enforcement may also consider enumerated circumstances in determining whether a loiterer “demonstrates” a specific intent to solicit another to commit an act of prostitution. Just like in Holliday, where the officer’s ability to rely on enumerated conditions demonstrating specific intent could not save the ordinance from constitutional deficiency, we find that the present ordinance is similarly unconstitutionally overbroad.

We also find the ordinance to be unconstitutionally vague. The doctrinal prohibition of vagueness “was developed to assure compliance with the due process clause of the United States Constitution.” Se. Fisheries Ass’n v. Dep’t of Natural Res., 453 So.2d 1351, 1353 (Fla.1984).

For an enactment not to be unconstitutionally vague, it “must provide persons of common intelligence and understanding adequate notice of the proscribed conduct.” State v. Catalano, 104 So.3d 1069, 1075 (Fla.2012). “The objection of vagueness is two-fold: inadequate guidance to the individual whose conduct is regulated, and inadequate guidance to the triers of fact.” Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (citation omitted).

As Justice George Sutherland stated:

That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

The Justice concluded:

The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.

Id. at 393, 46 S.Ct. 126 (citation omitted).

Further, if a statute “fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests” then the enactment “may be impermissibly vague.” City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999).

The Florida Supreme Court in Wyche found the Tampa ordinance to also violate the proscription against impermissibly vague enactments. The court found the ordinance to be vague, especially as it related to the definition of loitering. The supreme court determined:

The question then is whether the additional language in the ordinance qualifies the word “loiter” sufficiently to satisfy the due process clauses of both the United States Constitution and the Florida Constitution. We find that it does not. Many innocent people saunter on the streets and call to friends. The list of circumstances guiding law enforcement officers is not exhaustive and leaves much to individual officers’ discretion. The ordinance encourages the arbitrary and discriminatory enforcement of the law and therefore, is unconstitutional.

619 So.2d at 237.

Similarly, in the present case, we find that the ordinance allows for arbitrary enforcement by law enforcement. The additional language that the violator’s conduct must be activity which “demonstrates” a specific intent does not vitiate the fact that much is left to individual officers’ discretion. The individual officer may still determine subjectively if waving at passersby or strolling down the street “demonstrates” the specific intent to violate the ordinance.

We decline to read the ordinance’s language of “demonstrates a specific intent” as an actual requirement that the violator must specifically intend to solicit another to commit an act of prostitution. If the city commission had meant an actual specific intent requirement, it would have specifically written that into the ordinance. We will not read language into the ordinance, nor rewrite it. “Courts may not go so far in their narrowing constructions so as to effectively rewrite legislative enactments.” Id. at 236.

In conclusion, we find the ordinance to be overbroad and vague, and therefore we affirm the lower court and find the ordinance unconstitutional.

Affirmed.

WARNER and GERBER, JJ., concur.

      . Chapter 54, Article X, Section 54-332 of the City of West Palm Beach Code of Ordinances. In pertinent part, the ordinance provides:
      Sec. 54-332. — Prohibited acts.
      No person shall loiter in or near any thoroughfare or place open to the public in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution. Among the circumstances which may be considered in determining whether such purpose is manifested are the following: that such person is a known prostitute; that such person frequents, either on foot or in a motor vehicle, a known area of prostitution; and that such person repeatedly beckons to, stops, or attempts to stop, or engages passersby in conversation, or repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms, or any other bodily gesture for the purpose of inducing, enticing, soliciting, or procuring another to commit an act of prostitution. The violator’s conduct must be such as to constitute activity which demonstrates a specific intent to induce, entice, solicit or procure another to commit an act of prostitution. No arrest shall be made for a violation of this section unless the arresting officer first affords such persons an opportunity to explain such conduct, and no one shall be convicted of violating this section if it appears at trial that the explanation given was true and disclosed a lawful purpose.
      The ordinance provides definitions for several of its terms:
      Sec. 54-331. — Definitions.
      The following words, terms and phrases, when used in this article shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning:

        Known area of prostitution means a public place where within two years previous to the date of arrest for violation of this article, and within the knowledge of the arresting officer, a person has been convicted of, or arrested for, violating any ordinance of the city or law of the state defining and punishing acts of soliciting, committing, or offering or agreeing to commit an act of prostitution.

        Known prostitute means a person who within two years previous to the date of arrest for violation of this article has, within the knowledge of the arresting officer, been convicted in a court of competent jurisdiction of an offense involving prostitution, or who within two years previous to the date of arrest for violation of this article has, within the knowledge of the arresting officer, been arrested for an offense involving prostitution, or who has made admissions or statements to the arresting officer that such person does engage in acts of prostitution.

        Public place means an area generally visible to public view and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles (whether moving or not), and buildings open to the general public, including those which serve food or drink, or provide entertainment, and the doorways and entrances in buildings or dwellings and the grounds enclosing them.

      . We take these facts from appellee’s motion to dismiss.

      . Under the Tampa ordinance in Wyche, law enforcement was permitted to consider:
      that such person is a known prostitute, pimp, sodomist, performer of fellatio, performer of cunnilingus, masturbator for hire or panderer and repeatedly beckons to, stops or attempts to stop, or engages passers-by in conversation, or repeatedly stops, or attempts to stop motor vehicle operators by hailing, waving of arms or any bodily gesture for the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution, sodomy, fellatio, cunnilingus, masturbation for hire, pandering, or other lewd or indecent act.

        Id. at 233 n. 2

      . In determining whether the loiterer’s requisite purpose was manifested, law enforcement could consider that "the person is a known illegal user, possessor or seller of controlled substances, or the person is at a location frequented by persons who illegally use, possess, transfer or sell controlled substances,” that "the person repeatedly beckons to, stops, attempts to stop or engage in conversation with passers-by, whether such passers-by are on foot or in a motor vehicle, for the purpose of inducing, enticing, soliciting or procuring another to illegally possess, transfer, or buy any controlled substances,” and that "the person repeatedly passes to or receives from passers-by” currency or items "for the purpose of inducing, enticing, soliciting or procuring another to illegally possess, transfer or buy any controlled substance.” Holliday, 619 So.2d at 245 n. 2.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Brandon ROLLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1894.
    District Court of Appeal of Florida, Third District.
    May 8, 2013.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTINAS and LAGOA, JJ.
   SUAREZ, J.

The appellant, Brandon Rolle, appeals his conviction for first-degree murder and robbery with a firearm. He alleges error in the admission of an out-of-court photo lineup identification and the denial of his request to recall a State witness for further cross-examination. We review the first claim de novo, and the second for abuse of discretion. Delhall v. State, 95 So.3d 134, 150 (Fla.2012); McDuffie v. State, 970 So.2d 312, 324 (Fla.2007).

“A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness on appeal, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to the trial court’s ruling.” State v. Manuel, 796 So.2d 602, 604 (Fla. 4th DCA 2001). In ruling whether to suppress an out-of-court identification, the trial court must determine (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification; and, if so (2) whether, under the totality of the circumstances, the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Rimmer v. State, 825 So.2d 304, 316 (Fla.2002).

“Photographs used in lineups are not unduly suggestive if the suspect’s picture does not stand out more than those of the others, and the people depicted all exhibit similar facial characteristics.” State v. Francois, 863 So.2d 1288, 1289-90 (Fla. 4th DCA 2004). In Francois, a witness to an attempted robbery reported recognizing the assailant as a present or former employee and later identified the defendant from a photo lineup. Id. at 1289. The trial court suppressed the out-of-court identification, concluding the failure to include other employees rendered the lineup unnecessarily suggestive. Id. at 1288. On certiorari review, the Fourth District Court of Appeal quashed the order, concluding due process did not require that the lineup include other employees. Id. at 1290.

The appellant makes the same , argument rejected in Francois: that the failure to include other individuals from his neighborhood made the lineup unnecessarily suggestive. We agree with the Fourth District that due process does not require such measures. Because we conclude that the photo lineup was not unnecessarily suggestive, we need not assess the likelihood of irreparable misidentifícation.

We also find that the court did not abuse its discretion in denying the appellant’s request to recall a State witness. The trial court exercises discretion over the scope of cross-examination, within the confines of the Sixth Amendment. Lee v. State, 422 So.2d 928, 931 (Fla. 3d DCA 1982). It does not abuse this discretion by denying a defendant’s request to recall a witness for further cross-examination where the evidence the defendant seeks to elicit is not crucial. Irizarry v. State, 905 So.2d 160, 165 (Fla. 3d DCA 2005). The record here does not support a finding that the witness would have provided “crucial” testimony if recalled. See id. To the contrary, there was no guarantee that she would have provided any favorable testimony for the appellant.

Affirmed.


text:
    COOPER TIRE & RUBBER COMPANY, a foreign corporation, Petitioner, v. Maximo Guzman CABRERA, a/k/a Maximo Guzman, as Personal Representative of the Estate of Paula Cabrera De Guzman a/k/a Paula Guzman; Milady Guzman Cabrera a/k/a Milady Guzman, individually, and Maximo Guzman Cabrera a/k/a Maximo Guzman, individually, Respondents.
    No. 3D12-2922.
    District Court of Appeal of Florida, Third District.
    May 8, 2013.

      Thornton, Davis & Fein and Frederick J. Fein, Miami; Kathleen M. O’Connor, Ohio, for petitioner.
    Harris Penn Lowry DelCampo, admitted Pro Hac Vice, and Jeffrey R. Harris and Stephen G. Lowry and J. Antonio DelCam-po and Kristy B. Sweat, Georgia, for respondents.
    Before SUAREZ, CORTIÑAS and FERNANDEZ, JJ.
   SUAREZ, J.

Cooper Tire & Rubber (“Cooper”) petitions this Court for a writ of certiorari to quash an order below compelling production of documents Cooper claims are protected from discovery by the trade secret privilege. This Court has jurisdiction pursuant to Article V, section 4(b)(3), Florida Constitution and Rule 9.030(b)(2), Florida Rules of Appellate Procedure. See Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995). We grant the petition for writ of certiorari with instructions, as the trial court departed from the essential requirements of law by compelling production of the requested documents without first making the required findings as to whether the documents in question are, in fact, trade secrets and, if so, whether the plaintiff has proven reasonable necessity requiring the documents’ production.

In 2010, the personal representative of the estate of the Guzman family sued Cooper for negligent design and manufacture of its tires after the Guzmans’ Ford Explorer was involved in an accident. The Guzmans’ personal representative submitted a number of discovery requests including the subject interrogatories and requests for production. Cooper objected to some requests on relevancy because the interrogatories and requests for production were not all confined to information about substantially similar tires. Cooper also objected to a number of requests on grounds that the requested documents were protected by the trade secret privilege and, pursuant to court order, filed those documents with the court for in camera inspection. At the same time, Cooper filed Defendant Cooper Tire & Rubber Company’s Motion for Entry of a Protective Order of Confidentiality, pertaining to the privileged documents the trial court ordered produced. The Guzmans’ representative filed a motion to compel with supporting memorandum and exhibits including an affidavit from their tire expert. Cooper filed a response in opposition to the motion to compel with exhibits. At the hearing on the motion to compel, after testimony from the Guzmans’ representative’s tire expert and submission of memo-randa by both parties, the trial court ordered that all documents already produced by Cooper for in camera inspection were relevant, subject to discovery, and were to be produced. With regard to trade secrets, the trial court, in the same order, granted Cooper’s Motion for Entry of a Protective Order of Confidentiality and ordered that:

The Defendant does have an interest in protecting its trade secrets and the court agrees that there is information in the documents produced that may rise to that level. Therefore, this [court] GRANTS Cooper’s Motion for Protective Order of Confidentiality and the documents this court has ordered produced shall be subject to this protection, (emphasis supplied)

This Petition for Writ of Certiorari follows.

Cooper argues on petition for writ of certiorari that the trial court departed from the essential requirements of law and created irreparable injury when it ordered the production of documents claimed to be trade secrets but failed to make specific findings in its order on the reasonable necessity of production of the requested documents. Further, Cooper argues, if the trial court were to determine that reasonable necessity exists, it was obligated to set forth specific findings for the appellate court to have a sufficiently detailed record to review.

Orders improperly requiring the disclosure of trade secrets, even providing for confidentiality limitations, are subject to certiorari review. Grooms v. Distinctive Cabinet Designs, Inc., 846 So.2d 652 (Fla. 2d DCA 2003). Disclosure of discovery material that may reasonably cause material injury of an irreparable nature includes “eat-out-of-the-bag material” that could be used to injure another person or party outside of the context of litigation, such as trade secrets. See Langston, 655 So.2d at 94. If a trial court orders production of a trade secret, it must first demonstrate the reasonable necessity of the production and set forth its findings on why reasonable necessity has been demonstrated. See Arthur Finnieston, Inc. v. Pratt, 673 So.2d 560 (Fla. 3d DCA 1996); Rare Coin-It, Inc. v. I.J.E., 625 So.2d 1277 (Fla. 3d DCA 1993); see also Gen. Caulking Coating Co. v. J.D. Waterproofing, Inc., 958 So.2d 507, 508 (Fla. 3d DCA 2007) (holding that once determination of reasonable necessity has been made, the trial court must set forth its findings in the order requiring production).

The trial court, prior to ordering production of the documents Cooper claimed to be protected from discovery by trade secrets, failed to make any findings as to whether any or all of the documents in question were protected by the trade secret privilege. The trial judge apparently thought that some of the documents contained trade secrets since, in the same order, relying on “an interest in protecting [Cooper’s] trade secrets,” the trial court limited the scope of the production of the trade secret documents by granting Cooper’s Motion for Protective Order of Confidentiality, and authorized disclosure of confidential material only to persons “in connection with trial preparation in this case.” That being so, the trial court failed to set forth in its order the required findings as to why the production of such documents was reasonably necessary. See KPMG LLP v. State Dep’t of Ins., 833 So.2d 285 (Fla. 1st DCA 2002); Rare Coin-It, Inc., 625 So.2d at 1277; Gen. Caulking Coating Co., 958 So.2d at 508.

We therefore grant Cooper’s petition for writ of certiorari and quash the order below. On remand, the trial court is instructed to first make a determination as to what documents in question, if any, are trade secret. As to those that are, the trial court is to then make a determination of reasonable necessity and, if it so finds, it is to supply the findings in support of its determination. See Rare Coin-It, Inc., 625 So.2d at 1277; see also Va. Elec. & Lighting Corp. v. Koester, 714 So.2d 1164 (Fla. 1st DCA 1998) (holding that because the order failed to specify what trade secrets existed and to set forth findings of fact supporting a conclusion that disclosure of the trade secrets was reasonably necessary to resolve the issues in dispute, it constituted a material departure from the essential requirements of law).

Petition for Writ of Certiorari granted, remanded with instructions.


author: DAVIS, Judge.

text:
    Stephen Robert BAKER, Appellant, v. Debra Rae BAKER, Appellee.
    No. 2D12-464.
    District Court of Appeal of Florida, Second District.
    May 8, 2013.
    Stephen Robert Baker, pro se.
    No appearance for Appellee.
   DAVIS, Judge.

Stephen Robert Baker, pro se, challenges the trial court’s order denying his motion to dissolve an injunction for protection against domestic violence. Because Mr. Baker demonstrated that there has been a material change in circumstances since the entry of the permanent injunction, we reverse.

On March 15, 2007, a final judgment of injunction for protection against domestic violence without minor children was entered against Mr. Baker in favor of his estranged wife, Debra Rae Baker. In her petition for injunction, Mrs. Baker alleged that Mr. Baker

came to my home after being released from jail, he broke the door down, had a confrontation with me and said the words he is going to kill me, and called me a whore because my boyfriend was here for my protection.... And during the heat of the argument, he spit in my face, and threatened to burn my house down with me in it. He said he was going to take all my furniture and everything in my house before he burned it down....

In his October 12, 2011, motion to dissolve the injunction, Mr. Baker alleged, among other things, that he has

had no contact, [will] have no contact, and desire[s] no contact with Debra. I am not out to hurt her, and never wanted to hurt her. We are divorced and I have moved on. I’ve got 30 years DOC and this injunction is stopping me from transferring closer to home due to my custody level not lowering because of this injunction.

(Emphasis added.) Following a hearing, the trial court denied the motion, stating that “the respondent has not demonstrated ... a material change in the circumstances since the entry of the injunction.”

The trial court is correct that in order to dissolve the domestic violence injunction, Mr. Baker had to show a change in circumstances since entry of the injunction. See Reyes v. Reyes, 104 So.3d 1206, 1206 (Fla. 5th DCA 2012) (“[F]or a mov-ant to be entitled to obtain relief on a motion to modify or dissolve a domestic violence injunction, the movant must prove a change in circumstances.”); Alkhoury v. Alkhoury, 54 So.3d 641, 642 (Fla. 1st DCA 2011) (“As a general rule, permanent injunctions, which remain indefinitely in effect, may be modified by a court of competent jurisdiction ‘whenever changed circumstances make it equitable to do so.’ ” (quoting Hale v. Miracle Enters. Corp., 517 So.2d 102, 103 (Fla. 3d DCA 1987))).

Mr. Baker maintains that the material change in circumstances here is the fact that since the entry of the final judgment of injunction, he has been sentenced to thirty years’ imprisonment on grand theft and organized fraud charges. At the hearing below, at which he appeared telephoni-cally, he informed the trial court that he currently is incarcerated with an expected release date of 2035. Although he couched the fact of his incarceration in the argument that the injunction was preventing him from acquiring a prison transfer, Mr. Baker did make it clear to the trial court that his imprisonment was something that had changed since entry of the final injunction. As such, we conclude that he has “demonstrate[d] that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose.” Alkhoury, 54 So.3d at 642.

We therefore reverse the denial of Mr. Baker’s motion to dissolve the injunction.

Reversed.

NORTHCUTT and BLACK, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Mark S. WEISSMAN, Petitioner, v. Emily Smith WEISSMAN, Respondent.
    No. 2D12-5081.
    District Court of Appeal of Florida, Second District.
    May 8, 2013.

      Stanford R. Solomon and Matthew E. Thatcher of The Solomon Law Group, P.A., Tampa, for Petitioner.
    Michelle R. Brinner of Older & Lundy, Tampa, for Respondent.
   ALTENBERND, Judge.

The former husband, Mark S. Weiss-man, a medical doctor, seeks certiorari review of a September 5, 2012, order that was entered postjudgment in the dissolution proceeding between him and his former wife. This court previously granted certiorari relief as to a portion of an emergency ex parte order that was entered by the trial court after the entry of this order. See Weissman v. Weissman, 102 So.3d 718 (Fla. 2d DCA 2012). In this case, we also grant relief as to a portion of the order.

We will not repeat in this opinion the background facts that were provided in the earlier opinion. In essence, the former husband has a relationship with another woman who has apparently created significant parenting issues for this divorced couple. While a petition and counterpetition for modification of the final judgment have been pending, the trial court has entered temporary orders that restricted the former husband’s participation in many parental decisions and limited his contact with the children. Although the order challenged in this proceeding is a procedurally uncommon order, we decline to hold that the trial court departed from the essential requirements of the law in entering it.

Two aspects of the order, however, concern us. First, the order gives the former wife “temporary sole parental responsibility over the parties’ three minor children’s health care, including mental health care.” In light of the psychologists’ reports and the discussion in the earlier opinion, we understand the trial court’s decision to exclude the former husband from decisions involving the children’s mental health care. On the other hand, the former husband is a fully trained, licensed physician. If one of his children needed medical care other than mental health care, we see nothing in this record that would justify barring the former husband from participating in such medical decisions.

Second, the order is intended to be temporary, but it provides no guidance as to when these significant restrictions on parental rights will end or what the former husband needs to do for these restrictions to be removed. The order simply recites that it will remain in place “[ujntil further order of the court.” It may be that the trial court anticipates that it will resolve these issues in an order addressing the pending petitions for modification at a hearing in the near future. If so, that is not explained in this order. On the face of this order, it could continue “temporarily” until the children reach majority.

In this procedural context, these errors are not matters that can be adequately addressed in any subsequent direct appeal. Moreover, the first error' impacts his fundamental liberty interest in parenting a child by restricting his participation in medical decisions. The second error raises additional serious due process concerns. We conclude that these errors are proper matters to address by certiorari. Accordingly, we deny relief except to the extent that the trial court shall modify the provision barring the former husband from participating in medical decisions affecting his children and shall further explain the timing and circumstances of the future order intending to replace this temporary order.

Petition for writ of certiorari granted in part and denied in part.

CASANUEVA and KHOUZAM, JJ., Concur.


author: MAY, C.J.

text:
    David M. POMERANCE, Appellant, v. Cassandra POMERANCE, Appellee.
    No. 4D12-1196.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.

      David M. Pomerance, Wellington, pro se.
    No brief filed on behalf of appellee.
   MAY, C.J.

In this pro se appeal, the former husband challenges a Final Judgment of Dissolution of Marriage that incorporated a marital settlement agreement (“MSA”). He raises four issues on appeal. We have reviewed the MSA and the Final Judgment, and find no error. We affirm.

The former wife filed a Petition for Dissolution of Marriage seeking child support and alimony. The parties attended mediation, but could not reach an agreement. Subsequently, the parties entered into an MSA'. The former wife then moved for: (1) a final judgment of dissolution of marriage; (2) an order directing compliance with the MSA; and (3) attorney’s fees. The former husband filed a motion in opposition, arguing that although he would continue to pay child support, he was unable to pay alimony because: (1) the former wife had misrepresented her actual financial condition; and (2) the former husband had experienced a substantial change in circumstances.

The former husband also moved to compel the production of several of the former wife’s financial documents. The trial court ordered a specially-set status hearing. The former wife moved to reschedule or cancel the status conference. The trial court issued an order stating:

1. The hearing now scheduled for February 8, 2012 on the Wife’s Verified Motion for Final Judgment of Dissolution of Marriage, an Order Directing Compliance with the Marital Settlement Agreement and for Attorney’s Fees shall proceed. If the court determines that the case cannot be finalized at that hearing, the hearing shall proceed as a temporary relief hearing.
2. The status conference scheduled for February 17, 2012 shall be cancelled.

The trial court then entered a Final Judgment of Dissolution of Marriage, approving the MSA and incorporating it by reference. The trial court found that the former husband had not complied with the terms of the MSA by failing to pay the agreed-upon amounts of alimony and child support, and determined the arrearages. At the end of the Final Judgment, a handwritten note instructs the former husband to make any arguments concerning substantial change in circumstances through an “appropriate petition to modify.”

The former husband filed a Petition to Modify Court Ordered Alimony and Attorney’s Fees and for a Rehearing. He explained that he had lost his job and was currently unemployed. He argued that he had only $500 in assets, and was unable to pay the amounts set forth in the Final Judgment. The trial court denied the motion, treating it as a Motion for Rehearing.

The former husband filed another Petition for Modification, and argued that a substantial change in his income rendered him unable to pay the alimony agreed upon in the MSA. The record does not include a final order on this petition. The former husband appeals the Final Judgment of Dissolution of Marriage.

On appeal, the former husband makes four arguments: (1) the trial court erred by ordering an evidentiary hearing without first finding that the case was ready for trial; (2) the trial court abused its discretion in denying his Petitions to Modify; (3) the trial court improperly neglected to rule on his motions to compel; and (4) the trial court abused its discretion by improperly setting forth a lump sum of arrearages in its Final Judgment without stating the exact amount he owed in past-due child support and what amount he owed in past-due alimony.

Alimony and child support awards are reviewed for an abuse of discretion. Chovan v. Chovan, 90 So.3d 898, 900 (Fla. 4th DCA 2012).

Pursuant to the MSA, the former husband must pay durational alimony for a period of five years in the amount of $1,875 per month with a direct income deduction order of $865.38 every pay period. He must also pay $600 per month in child support with a direct income deduction order of $276.92 per pay period.

The trial court found the former husband to be $8,821.10 in arrears from October 30, 2011 to February 10, 2012. He was ordered to pay that amount in sixty days. The trial court further ordered him pay $1,142.30 in combined alimony and child support every other week. This sum accurately reflects the child support and alimony sums ordered to be deducted on each pay period under the MSA.

We therefore affirm the Final Judgment, but note that our opinion does not preclude the former husband from proceeding on his pending Petition for Modification, which had not been considered by the trial court at the time he appealed the Final Judgment.

Affirmed.

TAYLOR and GERBER, JJ., concur.


author: PER CURIAM.

text:
    Terrance McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3596.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.
    Terrance McCloud, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the circuit court’s order summarily denying his pro se Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief as to his grand theft conviction. The circuit court denied the motion based on its conclusion that the defendant was represented by-counsel at the time he filed his motion. However, as the state acknowledges, the defendant was not represented by counsel at the time he filed his motion. Therefore, we reverse the circuit court’s order summarily denying the defendant’s motion. We remand for the circuit court to determine whether the defendant’s motion presented any facially valid claims and, if so, to address those claims on the merits.

Reversed and remanded.

MAY, C.J., WARNER and GERBER, JJ., concur.


author: PER curiam;.

text:
    Kevin PULS, Appellant, v. Shilakshanti Lopez PULS, Appellee.
    No. 3D11-3101.
    District Court of Appeal of Florida, Third District.
    May 8, 2013.
    Dirk Lorenzen, Coral Gables, for appellant.
    Albert J. Piantini, Coral Gables, for ap-pellee.
    Before LAGOA, SALTER and LOGUE, JJ.
   PER curiam;.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


text:
    Yveta SVOBODOVA, Appellant, v. IBERIABANK, etc., Appellee.
    No. 3D12-2415.
    District Court of Appeal of Florida, Third District.
    May 8, 2013.
    W.J. Barnes, Boca Raton, for appellant.
    Campbell & Malafy, John Campbell and Richard A. Malafy, Marathon, for appellee.
    Before SHEPHERD, CORTINAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Conlen v. Nat. Credit Union Admin. Bd., 104 So.3d 1208 (Fla. 2d DCA 2012).


text:
    T.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1720.
    District Court of Appeal of Florida, Third District.
    May 8, 2013.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and LAGOA, JJ.
   SUAREZ, J.

Affirmed. A.A. v. State, 461 So.2d 165, 166 (Fla. 3d DCA 1984).


text:
    Pedro SBERT, Appellant, v. Jean L. LABRADA, Appellee.
    No. 3D11-3071.
    District Court of Appeal of Florida, Third District.
    May 8, 2013.
    Jorge L. Gonzalez, Miami, for appellant.
    Elena De Socarraz; Greene Smith & Associates and Cynthia L. Greene, Miami, for appellee.
    Before SUAREZ, ROTHENBERG and LOGUE, JJ.
   SUAREZ, J.

Pedrp Sbert appeals an order related to timesharing of his minor son. As the order expressly contemplates further judicial labor, we dismiss the appeal as premature. This dismissal is without prejudice to appeal this issue upon rendition of a final order. See Moore v. Moore, 50 So.3d 110, 110 (Fla. 1st DCA 2010) (“A judgment that reserves jurisdiction over an integrally related issue is not a final appealable order.”).


author: CLARK, J.

text:
    James FORNEY, Appellant, v. Michael D. CREWS, Secretary Florida Department of Corrections, Appellee.
    No. 1D12-1046.
    District Court of Appeal of Florida, First District.
    May 9, 2013.

      James Forney, pro se.
    Pamela Jo Bondi, Attorney General, C. Ian Garland, Assistant Attorney General, and Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   CLARK, J.

James Forney, a state prisoner, appeals the trial court’s order upon Forney’s petition for writs of certiorari and mandamus. The trial court dismissed the petition in part and denied mandamus relief on the remaining claim. We affirm the trial court’s order for the following reasons.

While serving his sentence in the custody of the Department of Corrections, Mr. Forney received medical care for a digestive condition. He underwent certain medical tests, but was not satisfied with the information he received regarding the results of the tests. He sought additional reports by filing an informal administrative grievance with the correctional facility. Facility officials responded that Mr. For-ney was scheduled to see a nurse practitioner in the near future and he could discuss his questions during that appointment. Mr. Forney then filed a formal administrative grievance, insisting that only the treating specialist physician could properly answer his questions. His formal grievance was denied and he appealed to the Secretary. The Secretary’s response to the administrative appeal determined that Appellant was participating in the chronic illness clinic, was receiving prescription medications for his condition, and that his care was supervised by the Chief Health Officer. Because he was not provided a follow-up consultation with the specialist he had requested, Mr. Forney then filed his petition in circuit court to compel the Department to grant his request for this particular medical appointment.

Appellant has failed to show any error in the trial court’s dismissal of the various claims not presented in his previous administrative grievances. The trial court correctly held that Appellant failed to exhaust his administrative remedies regarding new claims not mentioned in those grievances.

Likewise, Appellant has failed to show any departure from the essential requirements of law in the trial court’s denial of mandamus relief to compel the Department to provide him with an appointment with a specific health care provider for additional consultation. It is well settled that “the trial court wholly lacks authority to regulate the treatment and placement” of prisoners serving sentences in state custody. See Singletary v. Acosta, 659 So.2d 449, 450 (Fla. 3d DCA 1995). The Department cannot be compelled by writ of mandamus to provide an inmate with a particular medical treatment. Hawkins v. Crosby, 910 So.2d 424 (Fla. 4th DCA 2005). Because operation of the state prison system is within the province of the executive and legislative branches of government, the judicial branch has “no authority to dictate” how the detaining authority or its private designates carry out the duty to provide health care to prisoners, so long as no statute or constitutional requirement is violated. See Bradshaw v. Sandler, 955 So.2d 1219 (Fla. 4th DCA 2007); Armor Correctional Health Servs., Inc. v. Ault, 942 So.2d 976 (Fla. 4th DCA 2006).

In his appellate briefs, Mr. For-ney also challenges the trial court’s disposition of his motion to disqualify the trial judge, apparently filed and ruled upon after the entry of the final order and denial of rehearing. See generally Fla. R. Jud. Admin. 2.330. We decline to consider the matter of disqualification first, because the notice of appeal does not mention the trial court’s disposition of the motion. Fla. R. App. P. 9.110(d) (“notice shall contain ... the nature of the order to be reviewed.”). Secondly, this court’s review is limited to “any ruling or matter occurring before filing of the notice.” Fla. R. App. P. 9.110(h) (emphasis added). Although not contained in this record, Appellant’s arguments indicate that the trial court’s disposition of his motion was entered after Appellant filed his notice of appeal. Thirdly, this court’s review is limited to matters contained in the record on appeal. Dep’t of Transp. v. Baird, 992 So.2d 378 (Fla. 5th DCA 2008) (“an appellate court on direct appeal is limited to a review of the lower court proceedings;” improper for appellate court to refer to matter not part of record on appeal); Altchiler v. Dep’t of Prof'l Regulation, 442 So.2d 349 (Fla. 1st DCA 1983) (appellate court may not consider matters outside the record; such materials properly struck). The motion for disqualification of the trial judge and disposition by the trial court are not contained in the record of this appeal. Finally, a challenge to the denial of a motion for disqualification is properly made via petition for writ of prohibition, not by adding the issue to an existing direct appeal of a final order. See Sutton v. State, 975 So.2d 1073 (Fla.2008); Blaxton v. State, 85 So.3d 1150 (Fla. 1st DCA 2012).

For all the foregoing reasons, the order of the trial court is AFFIRMED.

LEWIS and RAY, JJ., concur.


text:
    Hilton RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-363.
    District Court of Appeal of Florida, Fifth District.
    May 10, 2013.

      Terrence E. Kehoe, of Law Office of Terrence E. Kehoe, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Hilton Rodriguez (defendant) appeals his judgments and sentences entered by the trial court after a jury found him guilty of sexual activity with a child 12 years of age or older while in a position of familial or custodial authority, lewd or lascivious molestation of a child 12 to 15 years old, and contributing to the delinquency or dependency of a child. Determining that the trial court erred by admitting irrelevant evidence of the defendant’s collateral crimes or bad acts, we reverse and remand for a new trial.

The State presented the testimony of the victim’s mother, who was the defendant’s girlfriend. On re-direct, the prosecutor asked the girlfriend about the defendant’s handling of financial documents. The defendant objected on the ground of relevancy:

PROSECUTOR: Can you tell us regarding any financial documents that he might have been handling at one point that caused you concern?
DEFENSE COUNSEL: I’d object to relevancy on that.
PROSECUTOR: Your Honor, it’s wholly relevant based on his cross-examination.
THE COURT: I’ll overrule the objection.
PROSECUTOR: What is your understanding as to some of the financial documents [the defendant] had handled in the past?
WITNESS: Well, I know that when he was buying the Mercedes, that he forged some documents as far as what his income was. I didn’t stand over him and watch everything he was doing, but I saw him doing a lot of copying and pasting. He bragged about how he was forging the document.

The trial court erred in overruling the objection. When the defendant objected to the relevance of the prosecutor’s question, the burden shifted to the State to show that the anticipated answer would be relevant. See Herzog v. State, 439 So.2d 1372, 1377 (Fla.1983). The prosecutor’s response that the answer would be relevant based on defense counsel’s cross-examination did not meet that burden, because there was nothing in the girlfriend’s cross-examination suggesting that testimony about financial documents would be relevant. The State properly concedes that this evidence of the defendant’s collateral crimes or bad acts was inadmissible, but argues that the testimony was so irrelevant that it was harmless. We disagree.

“Evidence that suggests a defendant has committed other crimes or bad acts can have a powerful effect on the results at trial.” Bozeman v. State, 698 So.2d 629, 631 (Fla. 4th DCA 1997). “The erroneous admission of evidence of collateral crimes is presumptively harmful.” Downs v. State, 40 So.3d 49, 53 (Fla. 5th DCA 2010). “The State has the burden of demonstrating beyond a reasonable doubt that the error did not contribute to the verdict.” Id.

The State’s evidence was not overwhelming. The alleged victim testified that the defendant had sexually molested her, but there was little physical evidence supporting her testimony. Further, although the State now argues that the forgery evidence was insignificant and thus harmless, the prosecutor below apparently believed otherwise because he chose to refer to it in closing argument. During the rebuttal portion of his closing, the prosecutor reminded the jury:

You know what also wasn’t charged on was fraud or forgery. All that came out, too. It came out that — she testified that he was actually bragging about financial documents that he was able to cut and paste here and there and fabricate something himself. That was never charged on, but it came out.

The prosecutor’s reference to this irrelevant testimony during only the rebuttal portion of his closing contributed to its harmfulness, since the defendant had no opportunity to respond to those comments.

REVERSED and REMANDED.

SAWAYA, PALMER and EVANDER, JJ., concur.

      . See § 794.01 l(8)(b), Fla. Stat. (2009).

      . § 800.04(5)(a), (c)2.

      .§ 827.04(l)(a).


text:
    Samuel Claude SELIG, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-258.
    District Court of Appeal of Florida, Second District.
    May 10, 2013.

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Samuel Claude Selig challenges the revocation of his sex offender probation and his resulting five-year prison sentence. Because the trial court abused its discretion in finding that Selig willfully and substantially violated his supervision, we reverse.

Although the record before this court is limited, it is clear that Selig was originally convicted of a sexual offense in the early 1980s. Following his release from prison, he was convicted of failing to register as a sexual offender and placed on probation for that offense. Seng’s probation subsequently was modified on numerous occasions, resulting in the imposition of additional conditions. On each of these occasions, the State attempted to violate Selig for conditions that were not included in the original terms of his probation. It appears that Selig acquiesced to the inclusion of the additional conditions by modification of the terms of his probation in efforts to remedy each instance of alleged violation.

In June 2011, Selig was alleged to have committed the following three violations of his probation: (1) failing to follow the instructions of his probation officer to relocate (condition nine); (2) failing to account for three unexplained out-of-range alerts between his GPS bracelet and the monitor/charging dock (special condition added in 2009); and (3) failing to restart his sex offender therapy as instructed (special condition added in 2010). After hearing the testimony of two probation officers and Selig, the trial court orally found that Selig willfully and substantially violated all three conditions of probation as alleged.

Selig, a painter, encountered problems in holding a job and a residence. It is undisputed that these problems stemmed from some kind of trauma and infection that resulted in the amputation of his arm. The amputation led to numerous complications and hospital stays, causing him to frequently relocate to different counties to be near hospitals for treatment. When he was not in the hospital for his own treatment, he was spending the majority of his time at medical facilities with his girlfriend, who was undergoing treatment for leukemia. During this time Selig continued to maintain contact with his probation officer and kept his GPS monitor charged and in range. But he stopped attending his therapy sessions either due to a lack of money or because of his medical treatments. His probation officer was aware that these treatments were temporarily suspended.

When Selig was released from the hospital and found himself without a place to stay, he contacted his probation officer and was told to report to the probation office. With the knowledge of the probation officer, Selig lived in a lean-to next to a dumpster behind the probation office while he searched for a place to stay. He used a wall outlet on the outside of the probation office building to charge his GPS monitor at night. During this same time period, Selig’s probation officer told him that because he was out of the hospital, he should make arrangements to restart his required sex offender therapy sessions. Because the landlord of the building was not in favor of Selig’s temporary housing solution behind the probation office building, Selig was given twenty-four hours to find somewhere else to live, which he did not do.

During the time he was living behind the office building, Selig’s GPS monitor alerted three times, indicating that he was not in range of the charging device. The testimony regarding what Selig was told in terms of the GPS distance rules and whether he was ever aware the alerts occurred is ambiguous at best. It is clear that at some point, Selig told his probation officer that he thought the monitor was not functioning properly. The testimony also showed that Selig was always at his “residence” behind the office building on the mornings following each of the alerts. No one was ever sent to check on Selig at the time of the alerts. Selig stated that he never was aware of the alerts and that they all occurred during times when he was asleep. The probation officers could not clearly pinpoint the range of the GPS unit but acknowledged that the distance could vary and that the alerts might have happened due to Selig’s sleep movements.

The trial court erroneously found that the State only had to establish that the alerts occurred in order to find a violation. By law the State was required to establish that the conduct leading to the violations was willful and substantial. See Correa v. State, 43 So.3d 738, 744 (Fla. 2d DCA 2010) (“[T]he State failed to establish that Mr. Correa’s conduct involved deliberate violations of the GPS monitoring rules.”). We recognize that

intentional disregard of the GPS monitoring rules, tampering with the equipment, or actual violations of curfew or other activity restrictions will generally amount to willful and substantial violations of the conditions imposed. But where ... the apparent noncompliance with the rules results from equipment problems or the subject’s unintentional failure to operate the equipment properly, the noncompliance with the rules does not rise to the level of a willful and substantial violation of probation or community control. It follows that the trial court abused its discretion in ruling to the contrary and in revoking [the defendant’s] community control.

Correa, 43 So.3d at 745-46.

Here, the State failed to offer any evidence as to the cause of the GPS monitoring alerts and certainly did not offer evidence that the alerts were the result of Selig’s conduct. And while it is accurate to say that the GPS alerts did not require law enforcement to ascertain Selig’s whereabouts, that does not mean that a failure to do so should not have been factored into the trial court’s determination regarding whether the State met its burden to show that the violations were willful and substantial. See Del Valle v. State, 80 So.3d 999, 1012 (Fla.2011) (“The trial court must ‘consider each violation on a case-by-case basis for a determination of whether, under the facts and circumstances, a particular violation is willful and substantial and is supported by the greater weight of the evidence.’ ” (quoting State v. Carter, 835 So.2d 259, 261 (Fla.2002))). Based on the record before us, we conclude that the trial court abused its discretion in finding that Selig willfully violated this condition of his probation.

Likewise, the trial court abused its discretion in finding that Selig willfully and substantially violated his probation by failing to find a new place to stay within twenty-four hours of being instructed to do so by his probation officer. The probation officer testified that the only shelter with available space did not take sex offenders and that she had no other options to offer Selig for finding a new place to stay. Selig testified that he was attempting to contact friends for housing assistance and indicated that he had succeeded in securing housing after the violation was filed but prior to his VOP hearing. The facts as presented do not show that Selig had the ability to comply with the twenty-four-hour relocation mandate.

“A defendant’s failure to comply with a probation condition is not willful where his conduct shows a reasonable, good faith attempt to comply[ ] and factors beyond his control, rather than a deliberate act of misconduct, caused his noncompliance.” Soto v. State, 727 So.2d 1044, 1046 (Fla. 2d DCA 1999). In Soto, the probationer “testified that when he arrived in California, he found himself in the no-win situation of having to choose between violating his probation by staying in the approved residence with the children or violating his pi-obation by failing to stay in that residence.” Id.; see also Newton v. State, 996 So.2d 960, 962-63 (Fla. 2d DCA 2008) (concluding that State failed to establish a willful and substantial violation for failing to return to the probation office within twenty-four hours as instructed and changing residence without approval where State failed to show that the probationer had the ability to return in that time frame, probation officer attempted to find a new residence for the probationer but could not find a suitable location, and probationer complied as soon as his transportation issues were resolved).

Here, Selig was given the choice of staying behind the probation office and violating a condition of probation for not following the instructions of the probation officer or leaving the probation office without money, housing, and a place to charge the GPS device that he was required to wear as a condition of his supervision. Accordingly, Selig’s failure to comply with condition nine of his probation was not willful, and the trial court abused its discretion in finding it to be so.

Finally, with regard to the violation of the special condition added to Selig’s probation in 2010, Selig’s probation officer testified that near the beginning of June she instructed Selig that he should make arrangements to once again attend the mandated sex offender treatment that he had attended before his arm amputation and other health issues. There is no evidence that Selig was noncompliant prior to the health problems. But it is clear that he had been unable to pay any of the session fees and was in arrears to the treating doctor at the time of the VOP hearing. The probation officer’s instructions to resume therapy after his release from the hospital had no specific date for completion. But the time between the instruction and the violation could have constituted no more than a week or two. Selig testified that he had not been able to call for an appointment because he had either been at the hospital for treatments or at a doctor for daily bandage changes to combat infection for the entire month of June. It was not clear whether Selig was physically able to go to therapy because of his ongoing medical issues or whether his lack of financial ability to pay the provider prevented his receiving the treatment. It is also unclear how Selig was traveling to the different medical facilities in the various counties and whether the sex offender treatment was a significant distance from the probation office.

The deficient record fails to establish that Selig had the ability to access the required treatment and willfully refused to do so. See Butler v. State, 775 So.2d 320, 321 (Fla. 2d DCA 2000) (“From the evidence at the revocation hearing, it appears that Mr. Butler’s failure to comply with this condition resulted from confusion regarding the requirement and because of a transportation problem, not because of a deliberate act of misconduct. Furthermore, the condition did not specify a time by which the classes were to begin[,] and the probation officer did not specify a date certain for compliance. We conclude that the evidence failed to show a willful and substantial violation of this condition.” (citations omitted)).

We do note that a trial court clearly has the discretion to determine whether a failure to attend a program constitutes a willful and substantial violation and that there is no per se rule that prevents a trial court from finding a violation based on confusion or misunderstanding regarding the duty to report to a program required by probation. See Lawson v. State, 969 So.2d 222 (Fla.2007) (receding from any per se rule that could be read into the holding of Butler, 775 So.2d 320, but acknowledging that such confusion or lack of clarity in the instructions a probationer must follow are factors the trial court may consider). But even limiting Butler’s reasoning regarding the lack of clarity in the instructions to a factor rather than a per se rule, that factor, coupled with the transportation, money, health, and housing problems evident on the instant record are sufficient to show that the trial court abused its discretion in finding a willful and substantial violation for Selig’s failure under the instant circumstances to make an appointment within the one- or two-week period after he was instructed to do so.

Because the trial court abused its discretion in finding that Selig willfully and substantially violated the three conditions of his probation at issue, we reverse the revocation of his probation and the resulting sentence.

Reversed.

SILBERMAN, C.J., and CRENSHAW, J., Concur.

      . Whether Selig was adequately represented at these previous hearings and whether the additional conditions of probation were properly applied to Selig is not before this court in the instant case.

      . Although not raised as an issue before this court, the written order of probation erroneously indicates that Selig admitted to violating condition nine of his probation. It is silent regarding the other two conditions that the trial court orally ruled he had violated.


author: NORTHCUTT, Judge.

text:
    SPACEBOX DOVER, LLC, Petitioner, v. LSREF2 BARON LLC, Respondent.
    No. 2D12-3594.
    District Court of Appeal of Florida, Second District.
    May 10, 2013.

      Paul B. Thanasides and Jennifer Erin Jones of McIntyre, Panzarella, Thanasides, Hoffman, Bringgold & Todd, P.L., Tampa, for Petitioner.
    Elliott B. Kula and Daniel M. Samson of Kula & Samson, LLP, Aventura; and Howard R. Behar and Lauren R. Rosen of The Behar Law Firm, Aventura, for Respondent.
   NORTHCUTT, Judge.

Spacebox Dover, LLC, seeks a writ of certiorari to quash the circuit court’s order denying its motion to stay a Florida foreclosure action pending the resolution of a Mississippi action on the underlying promissory note. We grant the petition.

Spacebox is one of several defendants in a suit filed by Regions Bank in Mississippi. In the suit, Regions Bank alleged breaches of promissory notes that are secured by real property in Florida. In its answer, Spacebox raised affirmative defenses to the claimed breach and filed a multicount counterclaim. While the Mississippi suit was ongoing, Regions Bank filed a foreclosure suit in Florida based on breach of the same promissory notes. Spacebox responded to the Florida complaint with an answer and affirmative defenses substantially similar to those raised in Mississippi. Regions Bank then assigned its interest in the promissory notes to LSREF2 Baron LLC, which was substituted as plaintiff in the Florida action. Spacebox sought a stay of the Florida action pending a determination of the case in Mississippi. The circuit court denied the stay, and Spacebox challenges this order by petition for certio-rari.

Certiorari relief is warranted when a lower court order departs from the essential requirements of law, causing material harm that cannot be remedied on appeal. Edgar v. Cape Coral Med. Ctr., Inc., 712 So.2d 1209, 1211 (Fla. 2d DCA 1998) (citing Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995)). An order denying a stay in these circumstances qualifies for certiorari review. Schwartz v. DeLoach, 453 So.2d 454, 455 (Fla. 2d DCA 1984) (“More than once, Florida courts have granted certiorari to quash orders declining to stay cases in favor of prior actions pending in other jurisdictions.”).

This case involves the principle of priority, a matter of comity in which a court in its discretion may stay a pending matter because a substantially similar case is pending in another state’s court, which first acquired jurisdiction. See In re Guardianship of Morrison, 972 So.2d 905, 908 (Fla. 2d DCA 2007). “The purpose ... is to prevent ‘unnecessary and duplicitous lawsuits’ that ‘would be oppressive to both parties.’ ” Id. (quoting Siegel v. Siegel, 575 So.2d 1267, 1272 (Fla.1991)).

Complete identity—of parties or causes of action—is not required for a stay; substantial similarity is sufficient. Id. at 909-10. “[I]t is sufficient that the two actions involve a single set of facts and that resolution of the one case will resolve many of the issues involved in the subsequently filed case.” Id. at 910 (quoting Fla. Crushed Stone Co. v. Travelers Indem. Co., 632 So.2d 217, 220 (Fla. 5th DCA 1994)) (internal quotation marks omitted). That is the situation. here; resolution of the Mississippi action on the promissory notes will resolve many of the issues in the Florida foreclosure action, which is based on the alleged breach of the same promissory notes.

Although the circuit court has discretion when considering a motion for stay, this discretionary power is not without limitation. The stay should be granted unless there are special circumstances, such as undue delay by the first court, that warrant the denial of a stay. “Thus, absent any such special circumstances, a trial court abuses its discretion in refusing to grant a stay based on the principle of priority.” Id. at 910 (citing Norris v. Norris, 573 So.2d 1085, 1086 (Fla. 4th DCA 1991)). The circuit court in this case did not find any special circumstances that would justify denying a stay, and we see no evidence of such.

We reject the appellee’s argument that a stay is not warranted because only the Florida court has jurisdiction over the real property. The notes at issue are the same, and the foreclosure on the real property is based on the alleged breach of the notes. See REWJB Gas Invs. v. Land O’Sun Realty, Ltd., 645 So.2d 1055, 1056 (Fla. 4th DCA 1994) (rejecting argument against stay based on exclusive, in rem jurisdiction of second-filed action because the courts had concurrent jurisdiction over contract interpretation, which was the predominant issue in both cases).

The circuit court abused its discretion when denying Spacebox’s motion for stay, and this abuse of discretion is a departure from the essential requirements of law, causing irreparable harm. See Dykes v. Trustbank Sav., F.S.B., 567 So.2d 958, 958-59 (Fla. 2d DCA 1990) (granting cer-tiorari petition and quashing order that refused to stay a foreclosure action pending resolution of a previously filed action in federal court on the same underlying notes and mortgages). We therefore quash the order denying the stay.

Petition granted; order denying stay quashed.

SILBERMAN, C.J., and CRENSHAW, J., Concur.


text:
    Reilies Wayne MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-6133.
    District Court of Appeal of Florida, Second District.
    May 10, 2013.
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Reilies Wayne Miller challenges his conviction for first-degree murder which was based on evidence that he shot the victim four times while in the back of a parked van. Miller claimed self-defense at trial, and he argues on appeal that the trial court erred in giving the jury a misleading instruction regarding the duty to retreat. Although we agree that the instruction was erroneous, we conclude that the error was harmless in light of the testimony and the physical evidence presented at trial. See Martinez v. State, 981 So.2d 449, 455-56 (Fla.2008); Cancel v. State, 985 So.2d 1127, 1130 (Fla. 5th DCA 2008).

Affirmed.

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


author: SLEET, Judge.

text:
    Howell Ray McCLELLAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2991.
    District Court of Appeal of Florida, Second District.
    May 10, 2013.
    Howell Ray McClellan, pro se.
   SLEET, Judge.

Howell Ray McClellan appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. McClellan was convicted after a jury trial of dealing in stolen property and was sentenced as a habitual felony offender (HFO) to fifteen years in prison. We affirm the denial of grounds one through three, five, and six without comment. However, we reverse the denial of ground four and remand for reconsideration.

In ground four, McClellan claimed that counsel was ineffective for failing to call his employer to testify regarding the metal beams that McClellan was accused of stealing. He asserted that his employer was available and would have testified that McClellan did not obtain the metal that he sold to a scrap yard from the victim’s property but retrieved it from a demolition job at a trailer park during the course of his employment. This testimony would have supported McClellan’s theory that the aluminum came from another site and would have corroborated his testimony to that effect. McClellan claimed that but for counsel’s deficiency, there was a reasonable probability that the outcome of the trial would have been different.

The postconviction court found McClellan was unable to demonstrate prejudice even though the proposed testimony of the employer would have corroborated McClellan’s testimony. The court reasoned that because the evidence at trial indicated that McClellan could have taken the metal from the victim and sold it at the recycling center, no reasonable probability existed that the result of the trial would have been different had the witness testified.

McClellan’s claim of ineffective assistance is facially sufficient, see Meus v. State, 968 So.2d 706, 711 (Fla. 2d DCA 2007), and not conclusively refuted by the record. To convict McClellan of dealing in stolen property, the State had to prove beyond a reasonable doubt that he trafficked in property that he knew or should have known was stolen. See § 812.019(1), Fla. Stat. (2007). Specifically, the State had to prove that the items were stolen. Id. Because McClellan was the only witness for the defense, his credibility was crucial. The employer’s testimony had the potential to corroborate McClellan’s testimony, strengthen his credibility, and kindle reasonable doubt in the minds of the jurors. See, e.g., Balmori v. State, 985 So.2d 646, 650 (Fla. 2d DCA 2008).

Accordingly, we reverse ground four and remand for the postconviction court to either attach portions of the record that conclusively refute this ground or conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded with instructions.

VILLANTI and CRENSHAW, JJ„ Concur.


author: VILLANTI, Judge.

text:
    Peter M. NASCARELLA, Appellant, v. BELMONT WINE EXCHANGE, LLC, a California corporation; Peter Nascarella; Mary Nascarella; Kelly Nascarella; and 8501, LLC, a Florida limited liability company, Appellees.
    No. 2D12-3551.
    District Court of Appeal of Florida, Second District.
    May 10, 2013.
    Jawdet I. Rubaii and Jack F. White, III, of Jawdet I. Rubaii, P.A., Clearwater, for Appellant.
    Scott T. Lyon and Nancy S. Paikoff of Macfarlane Ferguson & McMullen, Clear-water, for Appellee Belmont Wine Exchange, LLC.
    No appearance for remaining Appellees.
   VILLANTI, Judge.

Peter M. Nascarella appeals an order dated May 30, 2012, which amended a final default judgment that was subsequently vacated on August 22, 2012. In view of our affirmance of the order vacating the default final judgment in Belmont Wine Exchange, LLC v. Nascarella, 113 So.3d 5 (Fla. 2d DCA 2013), the order on appeal in this case is reversed.

SILBERMAN, C.J., and MORRIS, J., Concur.


text:
    Michael LANDER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-786.
    District Court of Appeal of Florida, Fifth District.
    May 10, 2013.

      Lanitra Sanchez-Moore, Tampa, for Petitioner.
    Pamela J. 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 order denying his motion for postconviction relief filed October 30, 2012, in Case Nos.2010-CF-588, 2010-CF-589, 2010-CF-602, 2010-CF-60B, and 2010-CF-620, in the Circuit Court in and for Hernando County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, LAWSON and JACOBUS, JJ., concur.


text:
    Devoe THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-690.
    District Court of Appeal of Florida, Fifth District.
    May 10, 2013.
    Devoe Thomas, Jasper, 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 order denying his motion for post-conviction relief issued November 5, 2012, in Case No.2006-CF-015838-A, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, PALMER and JACOBUS, JJ., concur.


text:
    Devon M. EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-76.
    District Court of Appeal of Florida, Fifth District.
    May 10, 2013.
    Devon M. Edwards, Blountstown, 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 in Case No. 10-001955-CFMA, in the Circuit Court in and for St. Johns County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and JACOBUS, JJ., concur.


author: COHEN, J.

text:
    Michael Scott JOHNSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1822.
    District Court of Appeal of Florida, Fifth District.
    May 10, 2013.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Following a jury trial, Michael Scott Johnson, Jr., was convicted of two counts of kidnapping with a firearm, two counts of robbery with a firearm, and one count of sexual battery. After initially sentencing Johnson to four concurrent life sentences on the kidnapping and robbery charges, along with a concurrent fifteen-year sentence on the sexual battery charge, the trial court vacated the life sentences and conducted a new sentencing hearing pursuant to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

The charges in this case stemmed from an incident in which Johnson and two co-defendants ordered two women into a vehicle at gunpoint, forced them to withdraw money from a bank, and took them to a field where they forced the women to engage in sexual acts with each of the assailants. Johnson was sixteen years old when he committed these crimes.

Following a new sentencing hearing at which evidence was taken, the trial court resentenced Johnson to four concurrent forty-year sentences, with the fifteen-year sentence for the sexual battery remaining concurrent. On appeal, Johnson argues the forty-year sentences amount to a de facto life sentence, constituting cruel and unusual punishment because they do not provide a meaningful opportunity for release based on demonstrated maturity and rehabilitation.

Johnson acknowledges the legal argument herein was already rejected by this Court in Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012), where a juvenile defendant received consecutive sentences that totaled ninety years in prison for several non-homicide counts that arose from a single criminal episode. This Court affirmed, determining that the strict language of Graham did not apply to aggregate term-of-years sentences. Id. at 1089.

In Floyd v. State, 87 So.3d 45, 47 (Fla. 1st DCA 2012), the First District Court of Appeal undertook a different analysis, finding a combined eighty-year sentence imposed on a seventeen-year-old for two armed robbery charges was a de facto life sentence because the sentence was longer than Floyd’s life expectancy. The different approaches to interpreting Graham are now before the Florida Supreme Court, and may ultimately be before the United States Supreme Court.

Under either analysis, Johnson’s sentence does not run afoul of Graham. No argument was made below or on appeal that the sentences exceed his life expectancy, and thus, are equivalent to a de facto life sentence under Floyd. In any event, this Court’s opinion in Henry is disposi-tive. Accordingly, we affirm.

AFFIRMED.

LAWSON and EVANDER, JJ., concur.

      . Those sentences were to run consecutively with a prior sentence Johnson was serving for an unrelated robbery with a firearm.

      . See Gridine v. State. 103 So.3d 139 (Fla.2012); Henry v. State, 107 So.3d 405 (Fla.2012).


author: WOLF, J.

text:
    Raymond R. WEBB, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4357.
    District Court of Appeal of Florida, First District.
    May 10, 2013.

      Raymond R. Webb, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

This cause comes before this court on appeal from a denial of a motion for return of property. The trial court denied the motion under the assumption that it lacked jurisdiction over property that was allegedly in the custody of the seizing agency and not in the custody of the court or the clerk of the court. This assumption was in error.

A “trial court has the inherent authority to direct the state to return property seized in connection with criminal proceedings.” McKeever v. State, 764 So.2d 688, 689 (Fla. 1st DCA 2000). This is true regardless of whether the property is in the court’s custody or in the custody of the seizing agency. See, e.g., Stone v. State, 680 So.2d 660, 661 (Fla. 2d DCA 1994) (explaining that if a motion for return of property is not summarily denied, the trial court must ascertain whether the property was confiscated by a law enforcement agency in connection with a criminal prosecution and whether the property is still in the agency’s possession).

We, therefore, reverse and remand for reconsideration of appellant’s motion. See Bailey v. State, 93 So.3d 518, 519 (Fla. 1st DCA 2012) (explaining that if a defendant’s motion for return of seized property is facially sufficient, the court may issue an order to show cause to the State to assist the court in determining whether the defendant’s allegations can be conclusively refuted; if the defendant’s allegations are not conclusively refuted, an evidentiary hearing is required).

REVERSED and REMANDED.

PADOVANO and LEWIS, JJ„ concur.


text:
    Curtis David BOBO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1785.
    District Court of Appeal of Florida, First District.
    May 14, 2013.
    Curtis David Bobo, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied without prejudice to petitioner’s right to file a petition for belated appeal which complies with the requirements of Florida Rule of Appellate Procedure 9.141(c).

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


text:
    Yvelan PIERRE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0396.
    District Court of Appeal of Florida, First District.
    May 14, 2013.
    Yvelan Pierre, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as moot.

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


text:
    Joe M. BOWSER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-6149.
    District Court of Appeal of Florida, First District.
    May 14, 2013.
    Joe M. Bowser, pro se, Petitioner.
    Pamela Jo Bondi,. Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is dismissed as untimely. Petitioner’s alternative request for habeas corpus relief is denied. See Pettway v. State, 776 So.2d 930 (Fla.2000) (holding that when a party has been banned from appearing pro se in a particular tribunal, he or she cannot seek relief in another tribunal to avoid the consequences of the sanction).

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


text:
    Devonta Jarrell MAYBERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3377.
    District Court of Appeal of Florida, First District.
    May 14, 2013.

      Nancy A. Daniels, Public Defender, Ryan Thomas Truskoski, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals his conviction as a principal to attempted armed robbery and second-degree felony murder. Appellant argues that the trial court erred by denying his motion for judgment of acquittal, because the State failed to present sufficient evidence to establish that he was a principal to the crimes. We disagree and affirm. We agree with Appellant, however, that there was insufficient evidence upon which the jury could find that Appellant actually possessed a firearm at the time of the attempted robbery. Consequently, the imposition of the mandatory ten-year minimum sentence the trial court assessed pursuant to section 775.087(2)(a), Florida Statutes, was erroneous. We reverse and remand for resentencing in accordance with this opinion. Appellant need not be present for the resentencing.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

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


author: KELLY, Judge.

text:
    A.A.B., Appellant, v. B.O.C., Jr., Appellee.
    No. 2D11-6273.
    District Court of Appeal of Florida, Second District.
    May 15, 2013.

      Lisa B. Lott of Putnam, Creighton & Airth, P.A., Lakeland, for Appellant.
    No appearance for Appellee.
   KELLY, Judge.

A.A.B., the biological mother of C.D.B., appeals from the final judgment of paternity which grants B.O.C., the biological father, parental rights with respect to the child, who was conceived through artificial insemination. She also appeals from the orders establishing a parenting plan and child support. Because under section 742.14, Florida Statutes (2002), B.O.C. is a sperm donor, and therefore has no parental rights with respect to C.D.B., we reverse.

The appellant, A.A.B., and her partner, S.C., lived together in a committed relationship. They decided to raise a child together and asked S.C.’s brother, appellee B.O.C., to donate his sperm to be used to impregnate A.A.B. B.O.C. agreed, and after three attempts at performing “do-it-yourself’ artificial insemination, the parties were successful at conceiving a child. A.A.B. and S.C. assumed sole responsibility for all prenatal decisions and expenses. When C.D.B. was born in 2002, B.O.C. lived in another state and did not assume a parental role with the child. About three years later, A.A.B. and S.C. ended their relationship. Following the breakup, A.A.B. and S.C. shared rotating custody of the child; however, the relationship deteriorated and A.A.B. refused to allow S.C. to have any further contact with the child.

B.O.C. then filed suit to establish paternity and visitation with C.D.B. A.A.B. disputed that B.O.C. had any parental rights because he had agreed to be a sperm donor only so that A.A.B. and S.C. could have a child together. A.A.B. argued that under section 742.14, B.O.C. relinquished all paternal rights and obligations with respect to C.D.B.

Following a hearing, the trial court found that because the parties employed a “do-it-yourself’ procedure to impregnate A.A.B., rather than a clinical one, section 742.14 did not apply. The court declined to recognize the oral agreement between the parties that B.O.C. was to be merely a sperm donor. Consequently, the court found that B.O.C. had parental rights and it established a parenting plan to provide for visitation and child support. In this appeal, A.A.B. argues that the trial court erred in failing to find that B.O.C. was a sperm donor within the meaning of section 742.14. We agree.

The issue presented in this appeal is whether section 742.14 applies to deny parental rights to a sperm donor whose identity is known to the biological mother and where insemination occurs outside of a laboratory setting, but not in the “old-fashioned way.” Cf. Budnick v. Silverman, 805 So.2d 1112, 1114 (Fla. 4th DCA 2002) (holding that a father who impregnated his child’s mother in “the usual and customary manner” after signing a preconception agreement to forego parental responsibilities was not merely a sperm donor and thus was not statutorily bound to give away his parental rights).

A court’s interpretation of a statute “is a question of law subject to de novo review.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005). A plain reading of section 742.14 reveals that the donor of any sperm shall relinquish all paternal rights and obligations with respect to the resulting children. The only exceptions in the statute are when (1) “a commissioning couple” employs “assisted reproductive technology” or (2) a father has executed a preplanned adoption agreement under the adoption statutes.

This court in Lamaritata v. Lucas, 823 So.2d 316 (Fla. 2d DCA 2002), upheld a written agreement that a sperm donor would relinquish any parental rights or obligations to a child conceived by artificial insemination. The parties entered into the written contract before the insemination; however, after the birth, the donor filed an action to establish paternity. In defense to his filing, the mother alleged that section 724.14 did not allow the donor any parental rights. In holding that Mr. Lucas was merely a sperm donor and therefore had no parental rights, this court stated:

A person who provides sperm for a woman to conceive a child by artificial insemination is not a parent. Both the contract between the parties and the Florida statute controlling these arrangements provide that there are no parental rights or responsibilities resulting to the donor of sperm. See § 742.14. If the sperm donor has no parental rights, the sperm donor is a nonparent, a statutory stranger to the children.

Id. at 319.

Mr. Lucas asserted that he retained parental rights because he and the mother were a “commissioning couple,” and thus the exception to the sperm donor statute applied. This court rejected his argument stating:

There are no facts to show that Mr. Lucas and Ms. Lamaritata have any type of relationship that would fall under the rubric of “couple.” Further, they did not commission or contract to jointly raise the children as mother and father. Rather, they joined forces solely for the purpose of artificially inseminating Ms. Lamaritata, an intent clearly set forth in the parties’ contract.

Id.

The facts in Lamaritata are similar to the facts in this case. A.A.B. and B.O.C.’s sister, S.C., entered into an agreement with B.O.C. whereby B.O.C. would provide the sperm to artificially inseminate A.A.B. in the hope of conceiving a child that S.C. and A.A.B. could raise together. Although the agreement was not reduced to writing, the parties all abided by its terms for over five years until the relationship between A.A.B. and S.C. soured. B.O.C. provided no financial support either before or after the birth, nor was he involved in any decisions concerning the welfare of the child. Although B.O.C. occasionally visited the child, B.O.C. did not assert any parental rights over C.D.B. until his sister’s relationship with the child was jeopardized.

As the trial court in this case correctly found, A.A.B. and B.O.C. were not a “commissioning couple.” See § 742.13(2). A.A.B. testified that she was in a committed relationship with B.O.C.’s sister and had no interest in a relationship with a male. The trial court specifically found in the Final Judgment of Paternity that it was the intent of the parties “that [B.O.C.] would provide the donor sperm with which [A.A.B.] became pregnant and that the child would be raised by [A.A.B.] and [B.O.C.’s] sister as the child’s Parents.”

In a factually similar Texas case, In re H.C.S., 219 S.W.3d 33 (2006), a mother challenged the standing of a sperm donor to pursue a proceeding to establish the paternity of a child conceived through artificial insemination. The mother and her same-sex partner had asked the partner’s brother to act as a sperm donor so that the couple could have a child together. The parties did not put the terms of the agreement as to the status of the donor in writing. After the mother and her partner ended their relationship, the sperm donor filed suit to adjudicate his parental rights. The court looked to the plain language of the Texas statute and determined that the sperm donor lacked standing to pursue the paternity action. See Tex. Fam.Code Ann. § 160.702 (Vernon Supp.2006) (“A donor is not a parent of a child conceived by means of assisted reproduction.”).

The “do-it-yóurself” manner in which the artificial insemination was conducted does not alter the fact that B.O.C. was a sperm donor under section 742.14. The statute does not require that the artificial insemination be performed in a clinical setting to apply. Compare McIntyre v. Crouch, 98 Or.App. 462, 780 P.2d 239 (1989) (holding that, where the donor non-paternity statute did not explicitly reference physician involvement, the statute applied even though the sperm was not provided to a physician), with C.O. v. W.S., 64 Ohio Misc.2d 9, 639 N.E.2d 523 (1994) (holding that the failure to comply with the statutory requirement of physician involvement prevented the mother from claiming that the sperm donor was not a legal parent under the donor nonpaternity statute).

Because B.O.C. was a sperm donor he relinquished his paternal rights and obligations to C.D.B. Accordingly, we reverse the final judgment of paternity and the orders establishing visitation and child support.

Reversed.

CASANUEVA and LaROSE, JJ., Concur.

      . Section 742.14, provides, in pertinent part,
      The donor of any egg, sperm, or preem-bryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under s.63.212, shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.

      . Section 742.13, provides the following definitions:
      (1) "Assisted reproductive technology” means those procreative procedures which involve the laboratory handling of human eggs or preembryos, including, but not limited to, in vitro fertilization embryo transfer, gamete intrafallopian transfer, pronuclear stage transfer, tubal embiyo transfer, and zygote intrafallopian transfer.
      (2) "Commissioning couple” means the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents.

      . See also Unif. Parentage Act § 702 (amended 2000), 9B U.L.A. 355 (2001) ("A donor is not a parent of a child conceived by means of assisted reproduction.”).

      . "[W]hereas the sperm donor for a clinical artificial insemination is usually anonymous, the donor in a do-it-yourself insemination is likely to be known to the recipient. This can result in bitter and complicated custody disputes, especially in those states that have not adopted legislation clarifying the rights and duties of the various parties to artificial insemination.” Reproductive Technology & the Procreation Rights of the Unmarried, 98 Harv. L.Rev. 669 n. 16 (1985). (Citations omitted).