author: DAVIS, Judge.

text:
    Neil N. MALAMUD, Appellant/Cross-Appellee, v. Jim D. SYPRETT, Appellee/Cross-Appellant.
    No. 2D12-409.
    District Court of Appeal of Florida, Second District.
    April 5, 2013.

      Steven J. Chase and Hunter G. Norton of Shumaker, Loop & Kendrick, LLP, Sarasota, for Appellant/Cross-Appellee.
    Martin Garcia of Matthews Eastmoore, Sarasota, for Appellee/Cross-Appellant.
   DAVIS, Judge.

Neil N. Malamud challenges the trial court’s final judgment awarding Jim D. Syprett $179,222.42 as damages in Mr. Sy-prett’s action against Mr. Malamud for unjust enrichment. Mr. Syprett cross-appeals, arguing that the trial court erred in granting summary judgment in Mr. Malamud’s- favor on his claim of equitable contribution and in ruling in Mr. Malamud’s favor on his claim of equitable subrogation. We affirm all aspects of the trial court’s final judgment.

Twelve investors formed Osprey Inn, LLC (OIL), for the purpose of operating the Osprey Inn in Sarasota County. The individual members of OIL owned varying interests in the business based upon the amount of their individual investments. Mr. Malamud owned a 22% interest in OIL, and Mr. Syprett owned a 7% interest. In April 2004, OIL borrowed $2.8 million from Bank of America. As part of the transaction, Bank of America required each of OIL’s individual members to sign a personal guaranty for the loan. The loan was later modified to provide additional funding. Again the individual investors signed guarantees acknowledging the modified loan amount, which was increased to $3,137,500. Each guarantor’s individual guaranty was capped at 120% of his or her individual ownership interest. So based on his 7% interest in OIL, Mr. Syprett’s guaranty was limited to 8.4% of the amount that would be owed in the event OIL was to default on the modified loan. And Mr. Malamud’s guaranty was limited to 26.4% of the amount that would be owed upon default.

In June 2006, Mr. Malamud sold his interest in OIL but remained personally liable for his share of the Bank of America loan based on the personal guaranty he signed. The Osprey Inn subsequently encountered financial difficulties, and OIL borrowed $250,000 from Maleo Industries, Inc., an entity controlled solely by Mr. Malamud. A second mortgage on the property served as collateral for the loan, and the loan was not secured by individual guaranties.

Bank of America declared its loan to be in default on January 23, 2009. . The amount owed to the bank at that time was $3,148,599. Notices of default were given to both OIL and the individual guarantors. Mr. Malamud decided to protect his invest-; ment and himself by forming NNM2009, LLC, a limited liability company of which he was the sole member. Through that entity, Mr. Malamud purchased the note held by Bank of America for a discounted price of $3,017,94o. This price represented only the outstanding principal owed on the note. Upon purchasing the note, NNM also received an assignment of the mortgage on the real estate and assignments of each of the individual guaranties signed by OIL’s members.

NNM then made demands on the guarantors pursuant to their individual guaranties. However, NNM agreed to apply each guarantor’s respective percentage to the reduced amount that it had paid for the note instead of the entire outstanding obligation, which included the principal plus interest and back taxes. In response to this demand, Mr. Syprett paid to NNM $253,507, which represented 8.4% of the $3,017,940. In addition, three other guarantors paid their respective shares, one paying the same amount as Mr. Syprett, another paying $380,231.34, and a third making a partial payment of $20,000. The remaining guarantors failed to respond to NNM’s demand, resulting in NNM filing a civil action against them based on their individual guaranties.

NNM then learned that OIL had entered into a contract for the sale of the real property. NNM therefore delayed further action against the remaining guarantors. The sales transaction closed on July 10, 2009. At NNM’s direction, $283,092.85 of the sales proceeds was applied to the principal and interest that OIL owed Maleo Industries on the second mortgage.

NNM then contacted the remaining guarantors and collected a total of $521,000 from them. To each guarantor who paid on the debt, NNM gave a release from liability, and the lawsuit against the remaining investors was voluntarily dismissed. However, even though NNM did not collect any funds from Mr. Malamud individually on his personal guaranty of the Bank of America loan, he did receive a release from NNM on his personal guaranty. NNM offered partial refunds to Mr. Syprett and the other two investors who had paid their full share of the default obligation. Mr. Syprett refused the refund, asserting that he was owed more than what was being offered. He maintained that the amount that he would have paid after applying an offset for the partial refund would still be more than his 8.4% share of the obligation as a guarantor if his 8.4% was applied to the default obligation minus the sales proceeds. This was underscored by the facts that Mr. Malamud individually received a release from his personal guaranty without making any payment to NNM and that NNM was made whole even without any payment from Mr. Malamud.

Mr. Syprett then filed this action against Mr. Malamud individually, alleging counts for equitable contribution, equitable subro-gation, and unjust enrichment. The trial court found that there was no common obligation that would render the guarantors joint and severally liable. Based on this finding, the trial court ruled in Mr. Malamud’s favor on the counts for equitable contribution and equitable subrogation. However, the trial court allowed the claim for unjust enrichment to go forward.

In order to state a cause of action for unjust enrichment, Mr. Syprett had to allege and prove (1) that he conferred a benefit upon Mr. Malamud; (2) that Mr. Malamud was aware of the benefit; and (3) that Mr. Malamud’s acceptance and retention of the benefit without paying for it was an unjust enrichment to Mr. Malamud and inequitable to Mr. Syprett. See Ruck Bros. Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So.2d 205, 207 (Fla. 2d DCA 1995). Mr. Syprett alleged these elements in his complaint.

The trial court determined that Mr. Malamud did accept and enjoy a benefit in that he individually was relieved of any liability under the guaranty without making any payment on the obligation. Further the court determined that NNM released Mr. Malamud personally from the guaranty because it had been made whole by the payment of the investors, including Mr. Syprett’s payment in excess of the 8.4% of the amount owed after application of the sale proceeds. The trial court therefore concluded that it was Mr. Sy-prett, by his overpayment, who had conferred the benefit upon Mr. Malamud. Accordingly, the trial court ruled that Mr. Syprett had proven his claim of unjust enrichment and entered a judgment against Mr. Malamud individually in the amount of $179,222.42, which represented Mr. Syprett’s overpayment of $155,158 plus prejudgment interest. It is this final judgment that Mr. Malamud now challenges.

Mr. Malamud argues (1) that the record does not support a claim for unjust enrichment because Mr. Syprett did not confer any direct benefit on Mr. Malamud and (2) that a claim for unjust enrichment cannot be brought by Mr. Syprett in these circumstances because Mr. Syprett has a remedy at law — namely, a breach of contract claim against NNM. We reject both arguments.

As to his first argument, Mr. Malamud maintains that any benefit he received in the form of a release from his personal guaranty without payment was a benefit conferred by NNM — not Mr. Syprett. Mr. Malamud argues that NNM is a separate legal entity that purchased the note and the guaranties from Bank of America and that Mr. Syprett’s overpayment to NNM may only be seen to have conferred a benefit on NNM. We do not agree.

We acknowledge that in order to support a claim of unjust enrichment, a plaintiff must show that the defendant received a direct benefit from the plaintiff. See Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So.3d 400, 404 (Fla. 3d DCA 2009). However, in its final judgment, the trial court determined that Mr. Malamud’s release from paying his share of the debt pursuant to his personal guaranty was a specific benefit he received. This benefit was possible only because Mr. Syprett overpaid on his share of the outstanding obligation. Although the trial court did not use the term “direct benefit,” the implication of the finding is that the benefit was directly related to Mr. Syprett. .

The evidence presented at trial demonstrated that Mr. Malamud was the sole member of NNM. As such, he was fully aware of Mr. Syprett’s overpayment to NNM — in fact, he requested it. Additionally, the manner in which the proceeds of the sale of the real estate were distributed supports the conclusion that Mr. Malamud was personally aware of, and in fact directing, the financial dealings of Maleo Industries and NNM. When the Osprey Inn was sold, there were two mortgages on the real property. The first mortgage, originally held by Bank of America, was held by NNM at the time of the closing. The second mortgage was held by Maleo Industries. The sale price on the property was insufficient to satisfy the first mortgage. However, the closing documents reflect that $283,000 of the sale price was used to satisfy the second mortgage and earned interest owed to Maleo Industries, with only the remaining proceeds applied to the first mortgage held by NNM. For the second mortgage holder to be paid prior to the the first mortgage holder would require the acquiescence of the first mortgage holder — NNM, whose sole member was Mr. Malamud. This favoring of the second mortgage held by Maleo Industries, an entity also controlled by Mr. Malamud, was to accomplish what Mr. Malamud had told Mr. Syprett he intended to do, i.e., protect himself. As Mr. Malamud testified at trial, he was directing these transactions with the understanding that all the money involved was his personally, whether titled in the name of Maleo Industries or NNM or Neil Malamud.

NNM, as the holder of the note, was repaid all of the money it had paid for the purchase of the note after applying the proceeds of the sale and collecting the payments from the guarantors without Mr. Malamud’s having to contribute any of his 26.4% of the $3,017,940. Because this benefit was made possible only by Mr. Sy-prett’s overpayment, Mr. Malamud personally was unjustly enriched by a benefit conferred to him by Mr. Syprett. See Huntsman Packaging Corp. v. Kerry Packaging Corp., 992 F.Supp. 1439, 1446 (M.D.Fla.1998) (concluding that a claim for unjust enrichment is actionable against the principal of a corporation which received value from the plaintiff where the principal was directing corporate operations and noting that “it would be most inequitable for [the principal] to accept the benefit conferred by plaintiffs without compensating them”). Accordingly, Mr. Malamud should be held personally responsible to Mr. Syprett for that unjust enrichment.

Mr. Malamud also argues on appeal that the claim for unjust enrichment is barred because there is an action in contract available to Mr. Syprett against NNM. We do not agree.

It is true that by signing the personal guaranty, Mr. Syprett entered into a contract with Bank of America and that subsequently that contract was assigned to NNM. That contract obligated Mr. Syprett to pay a portion of any amounts owed by OIL upon its default on the note and mortgage given to Bank of America. At the time Mr. Syprett paid NNM on that contract, Mr. Syprett paid what was rightfully due under the contract. It was only after Mr. Syprett paid NNM pursuant to the contract that NNM collected the real estate sales proceeds and released Mr. Malamud from his guarantee. Nothing in the contract between Mr. Syprett and NNM addressed NNM’s treatment of other guarantors. As such, Mr. Syprett cannot establish a breach of that contract and does not have a remedy at law.

On appeal, Mr. Malamud also argues that if a judgment for unjust enrichment is appropriate, the trial court’s determination of damages is in error because the other investors who underpaid their contractually obligated amounts also are receiving a benefit based on Mr. Syprett’s overpayment. This argument was not made below, and we will not consider it for the first time on appeal. See W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 13 (Fla.2012) (“ ‘[A] reviewing court will not consider points raised for the first time on appeal.’ ” (quoting Castor v. State, 365 So.2d 701, 703 (Fla.1978))).

Mr. Syprett also cross-appeals, arguing that the trial court erred by denying his claims of equitable subrogation and equitable contribution. We affirm these rulings of the trial court without comment.

Affirmed.

CRENSHAW and MORRIS, JJ., Concur.

      . Mr. Malamud contacted Mr. Syprett seeking Mr. Syprett’s involvement in the purchase of the note to protect himself from liability on the guaranty. Mr. Syprett declined the offer but was aware of Mr. Malamud’s attempt to protect himself personally from loss.

      . The total NNM received from these four investors was $907,245.34.

      . The lawsuit filed by NNM did not name Mr. Malamud as a defendant.

      . Each of these payments was less than what would have been required to satisfy the obligation owed by OIL to NNM as holder of the note. Mr. Malamud instructed these guarantors that there would be no closing of the sale until these funds were paid.

      . The other two investors who had overpaid accepted the partial refund and released Mr. Malamud personally and Mr. Malamud's entities from further liability for the transaction.

      . Although the trial court did not make a finding that NNM was but the alter ego of Mr. Malamud, the facts support that Mr. Malamud, Maleo Industries, and NNM were, in essence, all the same entity. This, at least, was Mr. Malamud's understanding. When asked whether he personally had paid any amount on his personal guaranty, he responded that he had paid $330,000. Mr. Syprett’s attorney then asked if this sum represented the monies paid by NNM as the partial refund to the other two investors who had paid their full obligations before the application of the proceeds of the sale. Mr. Malamud responded "That is correct.” In response to a separate question, Mr. Malamud responded: "I paid $330,000 of money that was my money. 'Mine,' meaning NNM2009, and Maleo Industries.” He then clarified that this $330,000 is in fact the same money that he asserts he paid pursuant to his personal guaranty. In other words, Mr. Malamud himself was suggesting that the funds of NNM and Maleo Industries, Inc., were considered by him to be "my money.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Glenn SMITH, Appellant, v. Capt. L.L. HATCHER, Sgt. Jeffrey Pippin, C.O. Christopher Lister, and C.O. Jan D. Heffel, Appellees.
    No. 1D11-5937.
    District Court of Appeal of Florida, First District.
    June 10, 2013.
    Rehearing Denied July, 11, 2013.
    Glenn Smith, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joey D. Dingess, Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

Appellant, Glenn Smith, seeks review of an order dismissing with prejudice his civil complaint against Appellees, employees of the Department of Corrections who Appellant alleges committed criminal acts and intentional torts against him in the scope of their employment, and an order deeming him to be a vexatious litigant pursuant to section 68.093, Florida Statutes. In finding that Appellant was a vexatious litigant, the trial court explained, as follows:

[T]his Court finds that the Florida Vexatious Litigant Law of Section 68.093 ... applies to this action and the procedures of that section should be implemented prior to ruling on the other issues which have been raised. The Court reserves ruling on those issues and may do so without further notice or hearing. This Court finds that the Plaintiff met the threshold for being declared a vexatious litigant under Section 68.093 ... at the time of the original filing of this action and that the Plaintiff is not likely to prevail on the merits of this action against the moving Defendants. Accordingly, the Plaintiff shall be required to furnish security in the amount of $6,000.00. If he fails to do so as required, this case shall be dismissed with prejudice as to the moving Defendants.
It must be noted that the Plaintiff is hardly an inexperienced litigant. He is a state prisoner serving a life sentence. By his own count, he has filed over 150 cases during his incarceration. He has filed cases in circuit courts, district courts, the Florida Supreme Court, and the federal court. He has been declared a vexatious litigant in the Nineteenth Circuit, which was affirmed by the Fourth District Court of Appeal.... The Twentieth Circuit has also declared the Defendant to be a vexatious litigant, and the Second District Court of Appeal affirmed.... The Defendant has been barred from filing pro se pleadings by the Second Circuit, which was affirmed by the First District Court of Appeal .... Additionally, the United States District Court for the Southern District of Florida has prohibited the Plaintiff from petitioning to proceed in forma pauperis before any court of the United States in any civil action or appeal of a judgment in a civil action, on grounds he has filed three cases in that district alone which were dismissed for failure to state a claim....

We find no error in the trial court’s determination that Appellant is a vexatious litigant, and we reject Appellant’s arguments that the trial court deprived him of his right to due process, was not impartial, and abused its discretion in not appointing counsel for him. We also reject Appellant’s argument that section 68.093 is unconstitutional. See Smith v. Fisher, 965 So.2d 205 (Fla. 4th DCA 2007); see also Smith v. Hernandez, 20 So.3d 905 (Fla. 2d DCA 2009).

AFFIRMED.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Keith B. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5964.
    District Court of Appeal of Florida, First District.
    June 18, 2013.
    Rehearing Denied July 25, 2013.

      Keith B. Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Monique Rolla, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The writ of prohibition is denied on the merits. See Marquez v. State, 11 So.3d 975 (Fla. 3d DCA 2009).

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


text:
    Damian L. KING, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D13-1913.
    District Court of Appeal of Florida, First District.
    June 18, 2013.
    Damian L. King, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, and Barbara Debelius, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Any remedy appellant may have with regard to his claim that he did not receive the March 11, 2013, Order Denying Petition for Writ of Habeas Corpus, lies with the lower tribunal.

BENTON, C. J., THOMAS and CLARK, JJ., concur.


text:
    Thelton Vester HALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3468.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2013.
    James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Simpson v. State, 824 So.2d 280, 281 (Fla. 4th DCA 2002).

TORPY, C.J., GRIFFIN and WALLIS, JJ., concur.


author: SLEET, Judge.

text:
    B.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4050.
    District Court of Appeal of Florida, Second District.
    July 10, 2013.
    Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   SLEET, Judge.

B.B., a juvenile, challenges an adjudication of delinquency for: (1) providing false identification to a law enforcement officer resulting in adverse consequences to another, § 901.36(2), Fla. Stat. (2011); (2) possession of cannabis, § 893.13(6)(b), Fla. Stat.; (3) possession of drug paraphernalia, § 893.147(1), Fla. Stat.; and (4) possession of alcohol by a person under twenty-one years of age, § 562.11(1), Fla. Stat. At her adjudicatory hearing, B.B. moved for judgment of dismissal on the false-identification charge and the possession-of-alcohol charge, arguing that the evidence was insufficient to support a finding of guilt on those charges. The trial court denied the motion, adjudicated B.B. delinquent on all four charges, and committed her to a level six, moderate-risk residential facility.

On appeal, B.B. raises two issues. We agree with B.B. that the State presented insufficient evidence to support a finding of guilt on the false-identifieation charge and the possession-of-alcohol charge. Thus, we reverse those charges. B.B.’s remaining argument is without merit and does not warrant further discussion.

On June 16, 2010, a deputy of the Polk County Sheriffs Office attempted to conduct a traffic stop of a speeding vehicle. As the vehicle came to a stop, the driver exited the vehicle and fled into a nearby wooded area. The deputy approached the vehicle with her gun drawn and observed two other occupants in the vehicle. B.B. was the front-seat passenger. The deputy asked B.B. her name, and B.B. responded with S.B., which the police later discovered was B.B.’s sister’s name.

After additional officers arrived on the scene to look for the driver, the deputy conducted a search of the vehicle. The search did not reveal contraband, but the deputy found two beverages. One of the beverages, located on the driver’s side, contained an unidentified liquid in a clear glass cup. The second beverage, located between the driver’s seat and front passenger seat, was an open Four Loco can, a common brand of alcoholic beverage. The can was cold and dewy. Because S.B. was identified as a minor, the deputy arrested B.B: for possession of alcohol by a person under age twenty-one. Although the deputy did not see B.B. drink from the can, she did not check B.B.’s hands to determine whether they felt cold, she did not detect an odor of alcohol emanating from B.B., and she did not conduct a breathalyzer test to determine whether B.B. had consumed alcohol. Additionally, the deputy did not test the contents of the can to determine whether the beverage was alcohol, nor did she otherwise examine the contents to identify the substance contained within. The deputy issued a citation in S.B.’s name for possession of an open container in a vehicle. The Four Loco can and its contents were disposed of. As B.B. was prepared for arrest, another officer noticed an unusual bulge in B.B.’s clothing, and the deputy retrieved a cellophane baggie containing marijuana.

After B.B. was arrested and transported to the county jail, the police discovered that B.B. was not S.B. and that B.B. had provided the deputy with her sister’s name. The citation issued by the deputy was amended to replace S.B.’s name with B.B.’s name, and B.B. was booked under her own name.

We review the denial of a motion for judgment of dismissal in a delinquency case de novo. E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). As to the possession-of-alcohol charge, the State was required to prove that B.B. (1) had dominion and control over the alcohol, (2)had knowledge of the illicit nature of the alcohol, and (3) had knowledge that the alcohol was within her presence. See E.A.M. v. State, 684 So.2d 283, 284 (Fla. 2d DCA 1996) (citing Skelton v. State, 609 So.2d 716, 716-17 (Fla. 2d DCA 1992)). To meet its burden, the State must present evidence that the Four Loco can found in the vehicle actually contained alcohol. S.C.S. v. State, 831 So.2d 264, 264 (Fla. 1st DCA 2002).

However, the State’s case lacked any evidence identifying the substance inside the can. The deputy did not perform a breathalyzer test on B.B., nor did she smell, test, or otherwise examine the liquid in the can to determine whether the beverage was alcohol. Both the can and its contents were disposed of, and B.B. denied she possessed the can and did not admit or stipulate that the can contained alcohol. See id. at 264 (concluding that the State failed to present a prima facie case of possession of alcohol by a minor where the State presented no evidence regarding the contents of the container that allegedly contained alcohol). Even if this court accepted that Four Loco is a common brand of alcoholic beverage, the can was open when discovered by the deputy; thus, the label of the can cannot conclusively establish that the can contained alcohol. As such, the State presented insufficient evidence to prove that B.B. possessed alcohol.

Alternatively, we note that even if the State established that the can contained alcohol, the State would still have failed to establish a prima facie case of possession of alcohol by a minor because it presented inadequate evidence of B.B.’s constructive possession of the alcohol in a jointly-occupied vehicle. See Cruz v. State, 744 So.2d 568, 569 (Fla. 2d DCA 1999); B.S. v. State, 638 So.2d 154, 155 (Fla. 2d DCA 1994).

Next, as to the false-identification charge, section 901.36(2) requires the State to prove that B.B. provided a false name to a law enforcement officer and that such act resulted in adverse consequences to the individual whose name was unlawfully provided. B.B. provided her sister’s name, S.B., to the deputy when she was originally detained. It was not until B.B. was transported to the police station that her deception was revealed. Nevertheless, the State presented no evidence that the victim, S.B., suffered adverse consequences as a result of B.B.’s unlawful use of her identity. According to the deputy, S.B. would have had a criminal record if the booking process had not been interrupted by discovery of B.B.’s true identity. Such evidence is insufficient to show an adverse consequence to S.B.; rather it is evidence of a possible adverse consequence. The plain language of section 901.36(2) does not contemplate punishment for mere possibilities. Granted, the deputy originally issued a citation for possession of an open container in S.B.’s name, but the citation was amended to reflect the correct name, and the State provided no evidence that the citation resulted in adverse consequences to S.B. Thus, the State also failed to present sufficient evidence to prove that B.B. provided false identification to a law enforcement officer resulting in adverse consequences to another.

Accordingly, we reverse B.B.’s adjudication of delinquency for possession of alcohol by a person under age twenty-one. We also reverse B.B.’s adjudication of delinquency for providing false identification to a law enforcement officer resulting in adverse consequences to another and remand with instructions to adjudicate B.B. delinquent on the lesser-included delinquent act of providing a false name to a law enforcement officer in accordance with section 901.36(1). We affirm B.B.’s remaining adjudications of delinquency.

Affirmed in part; reversed in part; remanded with directions.

CASANUEVA and KHOUZAM, JJ., Concur.

      .Although the parties refer to the motion as a motion for judgment of acquittal, the proper motion in a juvenile case would have been a motion for judgment of dismissal. See Fla. R. Juv. P. 8.110(k). Because the two motions are essentially the same and the misnomer does not affect our review, the terminology error is irrelevant. See J.P. v. State, 855 So.2d 1262, 1264 n. 1 (Fla. 4th DCA 2003).

      . To protect the privacy of B.B.’s sister, we have elected to use her initials.

      . This is the record spelling of the beverage. On appeal, the State contends that the correct spelling of the beverage is "Four Loko.” Because the parties do not contest the testimony that "Four Loco” is a brand of alcoholic beverage, we adopt the record spelling.


author: ALTENBERND, Judge.

text:
    Raja J. ABOUL-HOSN, Appellant, v. FROST VAN DEN BOOM & SMITH, P.A., Appellee.
    No. 2D12-6477.
    District Court of Appeal of Florida, Second District.
    July 10, 2013.
    Paul K. Silverberg and Kraig S. Weiss of Silverberg & Weiss, P.A., Weston, for Appellant.
    Bradford L. Stewart of Frost Van Den Boom & Smith, P.A., Bartow, for Appellee.
   ALTENBERND, Judge.

Raja J. Aboul-Hosn appeals an order denying his motion to transfer venue. We reverse the order, but we do not compel the trial court to grant the transfer on remand. We conclude that the trial court should require Frost Van Den Boom & Smith, P.A. (Frost), to amend its complaint to better describe its claim before a decision is made on venue.

Frost sued Mr. Aboul-Hosn in Polk County where the law firm has its office. The complaint alleges that Mr. Aboul-Hosn is a client who entered into a written contingent fee contract with Frost. Frost allegedly performed legal services for Mr. Aboul-Hosn that resulted in a presuit agreement with Nationwide Mutual Insurance Company. Nationwide allegedly sent checks totaling over $200,000 to Frost. Frost alleges in general terms that it “performed all conditions precedent” and that Mr. Aboul-Hosn refused to pay Frost more than $75,000 in fees. However, the complaint also explains that Mr. Aboul-Hosn “refused to otherwise fulfill the terms of the presuit agreement of the parties with Nationwide.”

Mr. Aboul-Hosn responded to the complaint with a motion to transfer venue to Osceola County. The motion and related affidavit explain that Mr. Aboul-Hosn lives in Osceola County and that his claim against Nationwide related to property in Osceola County. He has refused to sign the checks that Nationwide sent to Frost. The trial court denied the motion to transfer venue.

It does not appear from the limited record in this nonfinal appeal that Frost is seeking fees under its contract as a discharged law firm. Instead, it appears to be seeking fees on a contingency basis even though the law firm has not yet convinced its client to conclude the settlement. From the record, little or nothing can be ascertained about the alleged presuit agreement and the resulting disagreement with the client. The complaint does not even disclose whether Nationwide is Mr. Aboul-Hosn’s property insurer or an insurer for a tortfeasor that damaged his property. The issue of venue is difficult to resolve because the complaint fails to contain a short and plain statement of the ultimate facts showing that Frost has earned a contingency fee.

If this lawsuit is merely a lawsuit by a creditor against a debtor, then venue in Polk County may be appropriate. See James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487, 489 (Fla. 2d DCA 1970) (recognizing that when a debtor-creditor contract involves the payment of money and does not specify place of payment, venue is proper where the creditor has an established place of business); Michael Schiffrin & Assocs., P.A. v. Koraly, 957 So.2d 655, 658 (Fla. 3d DCA 2007) (holding that law firm’s suit for client’s breach of contingency fee agreement could be filed where law firm had its principal place of business when agreement did not specify place of payment). On the other hand, if this is actually a lawsuit to determine Mr. Aboul-Hosn’s obligations under the presuit agreement or to compel him to settle his cause of action against Nationwide that concerns property in Osceola County, then Osceola County may be the appropriate venue. See § 47.011, Fla. Stat. (2012) (“Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.”); see also Symbol Mattress of Fla., Inc. v. Royal Sleep Prods., Inc., 832 So.2d 233, 236 (Fla. 5th DCA 2002)(“ ‘[A] suit for declaratory relief does not itself constitute a cause of action for venue purposes, but rather, it is the underlying relief sought which determines venue.’ ”) (quoting Royal Jones & Assocs., Inc. v. Cigna Ins. Co., 575 So.2d 309 (Fla. 2d DCA 1991)).

An examination of this complaint fails to help us determine the underlying cause of action that is the basis for the lawsuit, and as a result, we are unable to determine venue. We conclude that the trial court erred in deciding the issue of venue in favor of the plaintiff’s chosen venue when the complaint failed to allege sufficient information to determine the true nature of the pending claim.

Reversed and remanded.

KELLY and SLEET, JJ„ Concur.


author: LaROSE, Judge.

text:
    Simon HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5296.
    District Court of Appeal of Florida, Second District.
    July 10, 2013.
    Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Simon Holmes, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

In this Anders appeal, Simon Holmes argues that the trial court erred in imposing restitution. He claims that he received no notice of the restitution hearing and did not waive his presence at the hearing. We have jurisdiction. See U.S. Const. Am. VI; Baker v. State, 979 So.2d 453, 455 (Fla. 2d DCA 2008); Fla. R.App. P. 9.140(b)(1)(G). We reverse, in part, and remand for a new restitution hearing with proper notice to Mr. Holmes. In all other respects, we affirm Mr. Holmes’ judgment and sentence for DUI manslaughter. See Fla. R.App. P. 9.140(b)(2)(A)(i)-(ii).

Mr. Holmes pleaded guilty in September 2011. His plea form recites that he agreed to restitution in the amount of “$ T.B.D.” The form also provides that if the amount of restitution was not decided on the day of his plea, he “waive[s] any right to notice [and hearing] which I may have before such restitution may be imposed.”

The plea form, as it relates to restitution, is not signed or initialled by Mr. Holmes. The plea colloquy did not address the provision in any respect. At the plea hearing, Mr. Holmes’ counsel noted that he would likely file an objection to the restitution amounts. Indeed, several days later, counsel filed a written objection and requested a restitution hearing. On October 10, 2011, the trial court held a “restitution status check” and entered a restitution order of over $60,000. The trial court noted Mr. Holmes’ absence but did not inquire whether Mr. Holmes had been noticed or had waived his right to be present. Our record reflects no notice to or waiver by Mr. Holmes. The record suggests that Mr. Holmes may have been on his way to state prison at the time of the hearing. Mr. Holmes timely filed his notice of appeal.

As we stated in Baker,

“A defendant has the constitutional right to be present at all stages of the trial at which fundamental fairness might be thwarted by his absence.” M.W.G. v. State, 945 So.2d 597, 599-600 (Fla. 2d DCA 2006) (citing Coney v. State, 653 So.2d 1009 1013 (Fla.1995)). A restitution hearing has long been considered such a stage. Id. at 600. Therefore, unless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence. Id.; Miller v. State, 833 So.2d 318, 319 (Fla. 2d DCA 2003).

979 So.2d at 455; see also Windh v. State, 113 So.3d 150, 151 (Fla. 2d DCA 2013) (holding that pursuant to the Sixth Amendment, a criminal defendant has a right to be present at a restitution hearing as it is a critical stage of criminal proceedings); Bryant v. State, 99 So.3d 607 (Fla. 2d DCA 2012) (holding that imposing restitution as a lien constituted reversible error where there was no evidence that defendant, who was not present at the restitution hearing, had received notice of the hearing or voluntarily waived his presence, and there was no evidence presented to establish the amount of the lien); C.C.N. v. State, 1 So.3d 1151 (Fla. 2d DCA 2009) (stating that a defendant has the constitutional right to be present at a restitution hearing; for effective waiver of that right and presence through counsel, court must conduct proper inquiry to determine that waiver is knowing, intelligent, and voluntary; State also must offer proper evidence to show that defendant was given actual notice of hearing).

Nothing in our record suggests that Mr. Holmes waived his right to appear at the restitution hearing or that he even knew of the hearing. The State did not suggest that it had noticed Mr. Holmes and Mr. Holmes’ counsel did not suggest that he had informed his client of the hearing. The evidence was insufficient to carry the State’s burden to show a voluntary and knowing waiver. See Baker, 979 So.2d at 455.

Because it was error for the trial court to conduct the hearing in Mr. Holmes’ absence, we must reverse the restitution order. At a new restitution hearing, Mr. Holmes must either be present or the State must present evidence that Mr. Holmes has knowingly and voluntarily waived his presence. See Windh, 113 So.3d 150. Furthermore, if the State seeks restitution on remand, it must do so based on admissible evidence to support the amount of the award. Id.

Affirmed in part, reversed in part, and remanded for further proceedings.

NORTHCUTT and SILBERMAN, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We struck the initial and answer Anders briefs with directions to counsel to address the restitution issue. The amended Anders briefs tangentially address Mr. Holmes’ rights. See Windh v. State, 113 So.3d 150, 150 n. 1 (Fla. 2d DCA 2013).


author: VILLANTI, Judge.

text:
    Alton Jamal RIVERA, a/k/a Alton Anderson, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2187.
    District Court of Appeal of Florida, Second District.
    July 10, 2013.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese C. Taylor, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

In this Anders appeal, Alton Jamal Rivera challenges the revocation of his community control and the sentences imposed upon revocation in three separate circuit court cases. We affirm the revocation of Rivera’s community control and his sentences without further comment. However, we remand for correction of a scrivener’s error in the written sentences in two of the cases.

In circuit court case number 10-CF-14489, Rivera was on community control for two second-degree felonies (counts 1 and 3), and one third-degree felony (count 4). In circuit court case number 10-CF-16592, Rivera was on community control for one second-degree felony (count 1) and one third-degree felony (count 2). After Rivera admitted to violating his community control, the trial court revoked it and orally sentenced Rivera to 77.7 months in prison on the second-degree felony convictions and 60 months in prison on the third-degree felony convictions. Despite these oral pronouncements, the written sentences reflect 77.7 months’ imprisonment on all counts in both of these cases.

Because the written sentences do not comport with the trial court’s oral pronouncement, we must remand for correction of the written sentences to reflect the oral pronouncement. See, e.g., Holmes v. State, 84 So.3d 421, 422 (Fla. 2d DCA 2012) (remanding for correction of written sentences to conform to oral pronouncements); Rivera v. State, 34 So.3d 207, 208 (Fla. 2d DCA 2010) (recognizing that the written sentences must conform to the oral pronouncement). In all other respects, we affirm.

Affirmed and remanded with instructions.

ALTENBERND and KHOUZAM, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The trial court also revoked Rivera’s community control in circuit court case number 10-CF-18311; however, the written judgment and sentence in that case comport with the trial court's oral pronouncement. Therefore, no corrections are necessary in that case.


author: BLACK, Judge.

text:
    C.B.H., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3874.
    District Court of Appeal of Florida, Second District.
    July 10, 2013.
    Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

C.B.H., a juvenile, challenges the revocation of his probation and his commitment to the Department of Juvenile Justice based thereon. We agree with C.B.H.’s contention that the revocation was based solely upon hearsay and, accordingly, we reverse.

During the violation of probation hearing, Officer Richard Schmidt testified that on February 23, 2012, he went to the home of C.B.H., who was in the care and custody of his mother, in response to a report for a runaway juvenile. The officer testified that he spoke with C.B.H.’s mother outside of the home and that she told him C.B.H. was not home, in violation of his curfew. The officer also testified that he did not search the house. C.B.H.’s mother did not testify at the hearing. The trial court found C.B.H. to be in violation of his probation for failing to adhere to his curfew, adjudicated him delinquent, and committed him to the Department of Juvenile Justice.

Though hearsay testimony is admissible to assist in establishing a probation violation, “ ‘a revocation of probation finding cannot be based solely upon hearsay testimony.’ ” Miffin v. State, 19 So.3d 377, 378 (Fla. 2d DCA 2009) (quoting Dean v. State, 948 So.2d 1042, 1044 (Fla. 2d DCA 2007)). C.B.H. correctly asserts that the trial court revoked his probation based solely upon the hearsay testimony of the officer. See Grimsley v. State, 830 So.2d 118, 119 (Fla. 2d DCA 2002) (concluding that testimony of officer that an individual from probationer’s approved residence told her that probationer no longer lived there was hearsay and, without nonhearsay evidence, was insufficient to support probation revocation); Smith v. State, 690 So.2d 733, 734 (Fla. 4th DCA 1997) (concluding same); see also Kipp v. State, 657 So.2d 931, 932 (Fla. 2d DCA 1995) (concluding that testimony of officer that probationer did not report as required, which was based solely on her review of the probation office sign-in log not admitted into evidence, was hearsay and insufficient to support probation revocation).

On the record before us, we find that the only evidence offered to prove the violation was hearsay. We must, therefore, reverse the revocation of C.B.H.’s probation and his commitment.

Reversed.

WALLACE and KHOUZAM, JJ., Concur.


author: MORRIS, Judge.

text:
    Keith Jerod ODOM, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5122.
    District Court of Appeal of Florida, Second District.
    July 10, 2013.
    Keith J. Odom, pro se.
   MORRIS, Judge.

Keith Jerrod Odom appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm grounds one through six without comment. However, because it appears that the post-conviction court did not consider grounds seven and eight, we reverse and remand for further proceedings on these grounds only.

Affirmed in part, reversed in part, and remanded.

KELLY and KHOUZAM, JJ., Concur.


text:
    Mahmoud NASSIROU, Appellant, v. Nellie Borba NASSIROU, Appellee.
    No. 1D12-3804.
    District Court of Appeal of Florida, First District.
    July 15, 2013.

      Mahmoud Nassirou, Jacksonville, for Appellant.
    William S. Graessle, Jacksonville, for Appellee.
   PER CURIAM.

Mahmoud Nassirou, the former husband, challenges that part of a final judgment of dissolution which distributes the entire value of his 401 (k) account to Nellie Borba Nassirou, the former wife. For the reasons that follow, we reverse.

By the final judgment, the trial court ordered the former husband to pay child support and to pay $595 per month as part of the tuition for a private school for the oldest child. The debts and assets of the parties were evenly distributed except for the assets of the former husband’s 401 (k) account. With respect to this asset, which was not assigned a value in the final judgment, the trial court ordered that it be awarded to the former wife explaining:

The Husband has a 401(k) held at Wells Fargo. The Court Finds that the Husband’s criminal acts of domestic violence against the Wife in front of the minor children, violation of the Final Judgment of Injunction, and that the Husband did not contribute his pro-rata share of the oldest minor child’s private school education for the 2011-2012 school year warrant an unequal distribution of this asset.

As noted, in a separate provision of the final judgment, the former husband was ordered to pay for private school tuition so long as the oldest child attends private school. While the trial court found an arrearage existed as to the tuition owed for the 2011-2012 school year, the trial court did not make a finding as to the amount of the arrearage. While the 401(k) account may be subject to distribution to satisfy that arrearage, the account cannot be distributed to the former wife for punitive reasons.

By statute, the starting point of equitable distribution is a 50-50 split of marital assets and liabilities. See Bell v. Bell, 642 So.2d 1173 (Fla. 1st DCA 1994) (reversing unequal distribution of marital assets in favor of the wife because the husband’s conviction for child molestation did not result in any depletion of marital assets or visitation of liability upon the wife). An unequal distribution is permitted on “relevant factors” which includes the “intentional dissipation, waste or destruction of marital assets” or on “[a]ny other factors necessary to do equity and justice between the parties.” § 61.075(l)(i)(j), Fla. Stat. However, marital misconduct is not a valid basis for a distribution scheme. As the court in Green v. Green, 501 So.2d 1306, 1309 (Fla. 4th DCA 1986), explained: “[t]he issue of fault, removed by the legislature as a requirement for dissolution of marriage, should not be expanded beyond that expressly intended by the legislature, in deciding the economic issues between the parties whose union is ending.”

Section 61.075(3), Florida Statutes (2010), requires that any distribution of marital assets or debts be supported by factual findings in the judgment including “the individual valuation of significant assets.” As noted, the judgment provided neither a valuation for the former husband’s 401 (k) account nor an amount for any arrearage in tuition payments. Thus, it cannot be determined from the judgment how much of that account must be distributed to satisfy the tuition arrearage. Any amount above the tuition arrearage should be equitably distributed.

Accordingly, the judgment of dissolution is REVERSED in part, and the cause is REMANDED for further proceedings consistent with this opinion.

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


text:
    Steven COVINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2642.
    District Court of Appeal of Florida, First District.
    July 15, 2013.
    Steven Covington, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Vreeland v. State, 72 So.3d 802 (Fla. 1st DCA 2011). Cf. Henderson v. State, 919 So.2d 652 (Fla. 1st DCA 2006).

WOLF, ROBERTS, and RAY, JJ., concur.


text:
    Leo TOBY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2870.
    District Court of Appeal of Florida, First District.
    July 15, 2013.
    Leo Toby, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, ROBERTS, and RAY, JJ., concur.


text:
    Eric K. BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3093.
    District Court of Appeal of Florida, First District.
    July 15, 2013.
    Eric K. Brooks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, ROBERTS, and RAY, JJ., concur.


text:
    Eric Scott MYERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2958.
    District Court of Appeal of Florida, First District.
    July 15, 2013.
    Eric Myers, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Wood v. State, 750 So.2d 592 (Fla.1999).

WOLF, ROBERTS, and RAY, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    Bill M. HEARNS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2527.
    District Court of Appeal of Florida, Third District.
    July 17, 2013.

      Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS and LOGUE, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Hearns again appeals from a judgment resentencing him to life imprisonment as a habitual violent felony offender [HVFO], which was entered after the last remand of the case to the trial court in Hearns v. State, 54 So.3d 500 (Fla. 3d DCA 2010). We find the present judgment to be unacceptably contrary to several of our prior opinions and mandates in Hearns’s case and therefore vacate the judgment under review with specific directions.

It is unnecessary to detail the depressing story of the lower court’s and the state’s failure to follow our, and the supreme court’s, repeated, express, and emphatic holdings that, because one of the three offenses relied upon to establish Hearns’s status as a “violent career criminal” [VCC], as elements of the substantive charge of possession of a firearm by such a person, that is, battery on a law enforcement officer, did not qualify for that designation, Hearns could simply not be convicted and sentenced as one. See Hearns v. State, 54 So.3d 500, 502 (Fla. 3d DCA 2010) (“By our mandate, we foreclosed the possibility of resentencing as a violent career criminal. We thus reverse and remand with directions that Hearns be resentenced in case number 98-34265 without any violent career criminal enhancement.”); State v. Hearns, 961 So.2d 211, 219 (Fla.2007) (“[W]e approve the district court’s reversal of Respondent’s life sentence because BOLEO is not a forcible felony under section 776.08.... ”); Hearns v. State, 912 So.2d 377, 379-80 (Fla. 3d DCA 2005) (“Hearns did not qualify for sentencing as a VCC. We reverse the order denying post-conviction relief and remand with directions that Hearns be resentenced in case number 98-34265 without VCC enhancement.”).

Notwithstanding this history, we are now faced with an appeal from another life sentence imposed on Hearns “for possession of a firearm by a violent career criminal” [VCC]! This has got to and will stop. We will not engage in another futile endeavor to give the lower court still another opportunity to follow the law. See Zelman v. Metropolitan Dade County, 645 So.2d 57 (Fla. 3d DCA 1994). Instead, we ourselves hereby vacate the conviction and sentence below and directly order, as permitted by section 924.35, Florida Statutes (2009), that Hearns be found guilty and convicted of the lesser included offense of possession of a firearm by a convicted felon, contrary to section 790.23, and sentenced with a habitual violent felony offender [HVFO] enhancement under section 775.084(4)(b)(2) (which requires “only” two offenses) to a maximum sentence of thirty years with a minimum mandatory term of ten years. The cause is remanded solely for sentencing accordingly.

Rehearing is dispensed with. The mandate shall issue immediately.

      . “And we mean it this time." See Hearns v. State, 54 So.3d 500, 502 n. 1 (Fla. 3d DCA 2010).

      . The information alleges:
      And the aforesaid Assistant State Attorney, under oath, further information makes that Bill Monroe Hearns on or about September 27, 1998, in the County and State aforesaid, did unlawfully and feloniously own or have in the defendant’s care, custody, possession, or control a firearm or electric weapon or device, or did carry a concealed weapon, to wit: FIREARM, when at said time and place the defendant met the violent career criminal criteria pursuant to s. 775.084(l)(c), having previously been adjudicated or convicted of three or more enumerated violent felonies, to wit: a conviction on March 28, 1995, for the felony crime of AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER AND UNLAWFUL POSSESSION OF A CONCEALED WEAPON BY A CONVICTED FELON in the court of the ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY FLORIDA, on [sic] conviction on Aug. 30, 1985 for the felony crime of BATTERY ON LEO & RESISTING W VIOLENCE in the court of the ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY FLORIDA, a conviction on March 21, 1988, for the felony crime of ROBBERY AND POSSESSION OF COCAINE in the court of the ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY FLORIDA, the defendant having been incarcerated in a state or federal prison and the defendant having been previously convicted of at least one of the aforestated felonies within the past five years, or having been released from serving a prison sentence on one of the aforestated felonies within the past five years, in violation of s. 790.235 Fla. Stat. contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida, (emphasis added).

      . See Hearns v. State, 912 So.2d 377, 379 (Fla. 3d DCA 2005) ("Following Perkins, with no record evidence that Hearns' conduct against a law enforcement officer was a forcible felony, it cannot be used as a qualifying prior for purposes of VCC sentencing.”)

      . State v. Ferguson, 691 So.2d 578, 578 (Fla. 2d DCA 1997) ("However, unlike section 775.084(l)(c), section 790.235 is a substantive offense statute, not a sentencing statute”); Jackson v. State, 729 So.2d 947, 950 (Fla. 1st DCA 1998) (“In section 790.235, the legislature has created a new substantive offense which does not apply retroactively to earlier offenses but operates prospectively.”).

      .The basis of the ruling seems to have been the fact that Hearns had been convicted of still another offense which did qualify under the law for VCC status. Because, however, that conviction was not contained in the information, its substitution for the unqualified offense — and because the charge in question is substantive, requiring the designation of the particular crimes in the charging document— would amount to the forbidden result of convicting the defendant of a crime with which he was not charged. See Pittman v. State, 22 So.3d 859 (Fla. 3d DCA 2009).
      Of course, right or wrong, the lower court had no choice but to obey what we (and the supreme court) has required. See Russell v. McQueen, 115 So.3d 1084 (Fla. 5th DCA 2013).


author: KHOUZAM, Judge. DAVIS, Chief Judge,

text:
    Mark Aaron YUDIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2366.
    District Court of Appeal of Florida, Second District.
    July 17, 2013.

      Howard L. Dimmig, II, Public Defender, and Joseph N. D’Achille, Jr., Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Mark Aaron Yudin appeals his convictions and sentences following a jury trial for burglary of a dwelling and grand theft. Yudin raises two issues on appeal, but the only one which merits discussion is his argument that the trial court erred in denying his motion for judgment of acquittal made at the close of the evidence. Because the evidence was sufficient to withstand the motion, we affirm.

Sometime between the morning of May 4 and the morning of May 5, 2009, a Highlands County home was burglarized. A number of items were taken, including two televisions, a desktop computer, a laptop computer, various pieces of women’s jewelry, a men’s Seiko wristwatch, and a dresser drawer full of the victim’s personal documents such as passports, a social security card, credit cards, and health insurance cards.

Yudin’s father testified at trial that Yu-din lived with him at the time the burglary took place. The house they jointly occupied sits approximately 1.5 miles from the victim’s house. According to Yudin’s father, on the evening of May 4 Yudin was out but “came in about ten, went out again, [and] came back about four” in the morning on May 5. Yudin left again around 5:45 that morning.

David Cavanaugh testified that Yudin and a man named Jerry Costa arrived at his house in the early afternoon on May 5. Cavanaugh had a history of purchasing secondhand property from Costa, and Cos-ta called Cavanaugh that day claiming he “had some things” Cavanaugh might want to buy. Cavanaugh told Costa to bring the items over, and a short time later, Costa arrived in a vehicle driven by Yudin. The circumstances of their arrival apparently caused enough suspicion that Cavanaugh’s grandson called the police with “a concern about a vehicle with some items that were being off-loaded.”

Before the police arrived, Costa removed a laptop and a desktop — later identified by the victim as the stolen computers — from Yudin’s car and placed them on a bench for Cavanaugh to inspect. Cava-naugh testified that although Costa was the one who called about bringing the computers by and also the one who physically took the computers out of Yudin’s car, Yudin was the one who showed Cavanaugh the computers and described them during the attempted sale. According to Cava-naugh, on that day his “primary conversation was with Mr. Yudin” and they did not reach the issue of price only because they were interrupted when the police arrived.

A responding officer testified that upon arriving at Cavanaugh’s residence, he plainly observed a large disheveled pile of items in the back seat of Yudin’s car. Poking out of the pile was a dresser drawer containing a variety of the victim’s personal documents including his passport, social security card, and work identification card. A box of vinyl gloves was also found in the pile. Yudin was wearing a men’s Seiko wristwatch when the police arrived. The police seized the items, and Yudin was taken into custody, but Costa was allowed to leave after removing personal property from the trunk of Yudin’s ear. Later the police were called back to Cavanaugh’s residence, where they were able to determine that more of the victim’s property had been left inside.

Yudin testified in his own defense. He stated that during the night of May 4, he went to a friend’s house and spent most of the night on her couch because he had had too much to drink. He awoke around four in the morning on May 5 because Costa called him, and the two made arrangements to drive to West Palm Beach later that morning. After his conversation with Costa, Yudin went home, arriving just before 5:00 a.m.

Yudin testified further that shortly after returning home that morning, he drove to meet Costa in the parking lot of a bar, where Costa and another man were waiting for him. Costa and the other individual loaded Yudin’s car with various items, the only one of which Yudin could identify was a desktop computer. When Yudin was asked at trial if he inquired where the property came from, he testified that Cos-ta had told him it came from a storage unit that had been abandoned and auctioned off. From the bar, he drove to Costa’s apartment, where he waited in the car while Costa unloaded some of the property.

Yudin testified that he later dropped Costa off at a pawn shop and left to have breakfast with his girlfriend. Yudin entered into evidence a pawn receipt dated May 5, 2009, at 12:01 p.m. indicating that Costa had received approximately $600 for various pieces of jewelry. Yudin testified that when he later picked Costa up from the pawn shop, Costa offered him the Seiko watch and he accepted it. From the pawn shop, Yudin drove himself and Costa to Cavanaugh’s. Yudin denied participating in the offer to sell Cavanaugh the computers.

The defense moved for a judgment of acquittal, arguing that there was insufficient evidence to support a conviction. Yudin claimed that the evidence merely showed that Costa committed the crimes and that Yudin met up with him only intermittently to provide transportation, fully unaware of Costa’s criminal activities. The trial court denied the motion, and the jury found Yudin guilty as charged. Yu-din was sentenced to fifteen years in prison. He timely appealed.

An appellate court reviews the denial of a motion for judgment of acquittal de novo and affirms the conviction if it is supported by competent, substantial evidence. Boyd v. State, 910 So.2d 167, 180 (Fla.2005). “A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974). “Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts,” the case must go to the jury. Id.

The “ ‘unexplained possession of recently stolen property is not only sufficient to support a theft conviction, but when a burglary necessarily occurs as an adjunct, the inference of guilt from the unexplained possession of the recently stolen goods also supports a conviction for burglary.’ ” Francis v. State, 808 So.2d 110, 134 (Fla.2001) (quoting T.S.R. v. State, 596 So.2d 766, 767 (Fla. 5th DCA 1992)). Where the defendant’s explanation for the possession of recently stolen property is only arguably reasonable, the ease goes to the jury. See Wilson v. State, 884 So.2d 74, 76 (Fla. 2d DCA 2004) (discussing “arguably” versus “patently” reasonable explanations). Possession in this context must be “exclusive,” but this “does not mean that defendant’s possession must be separate from the possession of all other persons. The joint possession of two or more persons acting in concert is ‘exclusive’ as to any one of them.” Scobee v. State, 488 So.2d 595, 598 (Fla. 1st DCA 1986).

Here, the State introduced evidence that hours after the burglary occurred, Yudin drove a car — in which the victim’s property could plainly be seen in a pile in the back seat — to the residence of a third party and engaged in what can only fairly be characterized as an attempt to sell some of the property. Although Costa was the one to set up the deal and the one to physically remove the computers from the car, Yudin drove the car and Cava-naugh testified that Yudin was the one who showed him the computers during the attempted sale. Even assuming for the sake of argument that this does not constitute “joint possession of two or more persons acting in concert,” Yudin conceded to wearing the victim’s watch, establishing his actual possession of recently stolen property-

Viewing the evidence and all reasonable conclusions therefrom in the light most favorable to the State, as we must, we believe that the motion for judgment of acquittal was properly denied. The evidence supported Yudin’s possession of at least three separate pieces of recently stolen property: his joint possession of the two computers he attempted to sell and his exclusive possession of the watch encircling his wrist. The jury could fairly and reasonably conclude from this evidence that Yudin acquired the property illegally. See Scobee, 488 So.2d at 598 (“There are two similar, yet separate and distinct, inferences that can be made from proof of possession of recently stolen property: (1) an inference that the possessor stole the property ... and (2) an inference that the possessor knew or should have known the property was stolen.”); see also T.S.R., 596 So.2d at 767 (“Although there is no direct physical evidence linking the defendant to the crimes the finder of fact has the right to infer guilt of theft from the unexplained possession of recently stolen goods.”).

Yudin’s explanation for his possession of the recently stolen goods does not compel a different outcome. We do not agree with the concurring opinion’s determination that Yudin’s explanation was patently reasonable. Instead, we conclude that his explanation was at best only arguably reasonable and that the issue was therefore properly sent to the jury, even though the State did not present any evidence which directly conflicted with it. See Wilson, 884 So.2d at 76 (“ ‘If, on the other hand, the explanation is only arguably reasonable or if there is any evidence which places it in doubt, the court should permit the jury to make the decision.’ ” (emphasis added) (quoting Coleman v. State, 466 So.2d 395, 397 (Fla. 2d DCA 1985))).

Because the evidence was sufficient to withstand Yudin’s motion for judgment of acquittal, the trial court did not err in denying it.

Affirmed.

CRENSHAW, J., Concurs.

DAVIS, C.J., Concurs with opinion.

DAVIS, Chief Judge,

Concurring.

I concur with the majority in affirming the trial court’s decision to deny Yudin’s motion for judgment of acquittal but for reasons not expressed in the majority opinion. The State’s case against Yudin is entirely based on section 812.022(2), Florida Statutes (2009), which provides that “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property” was stolen and would support a conviction of theft. This same inference will support a burglary conviction if the stolen property was taken during a burglary. Francis v. State, 808 So.2d 110,134 (Fla.2001).

The key part of this legal inference is whether the possession is “satisfactorily” or reasonably explained. In this case, the issue is whether Yudin offered a reasonable explanation of his possession of the stolen property that is inconsistent with his guilt of the theft and burglary that would as a matter of law require the granting of his motion for judgment of acquittal. I agree with the majority that the denial of the motion for judgment of acquittal at the conclusion of the State’s case was proper. As the State argued before the trial court, as of that time Yu-din had not presented a satisfactory explanation of his possession of the stolen property that would support his motion.

However, during the defense case, Yu-din did give an explanation of his possession of the property that required an examination by the trial judge in order to determine whether Yudin’s renewed motion, made at the close of all of the evidence, should be granted or whether the issue of the reasonableness of Yudin’s explanation should be determined by the jury.

In Coleman v. State, 466 So.2d 395 (Fla. 2d DCA 1985), this court determined that whether the jury decides the issue depends on whether the explanation is patently reasonable or arguably reasonable.

[Wjhere a defendant gives a patently reasonable explanation for his possession of recently stolen goods which is totally unrefuted, and there is no other evidence of guilt, the court must direct a judgment of acquittal. If, on the other hand, the explanation is only arguably reasonable or if there is any evidence which places it in doubt, the court should permit the jury to make the decision.

Id. at 397. Accordingly, for us to affirm the trial court’s denial of the motion after Yudin’s explanation had been presented, we must determine that his explanation was only arguably reasonable.

Yudin’s explanation on its face was reasonable and credible. He testified that although he lived with his parents in Highlands County, he had been working for his girlfriend’s father in Palm Beach County and was staying in West Palm Beach. On Sunday, May 3, 2009, he drove back to Highlands County to his parents’ home. He was accompanied by Jerry Costa, whom he had met through his girlfriend’s father. He dropped Costa off in the Spring Lake area of Highlands County as Costa requested and then went to his parents’ home in Lake Placid. After spending that day and Monday, May 4, at home, he met friends that evening and spent the night at a friend’s home in Sebring. Early the next morning, Tuesday, May 5, he got a telephone call from Costa inquiring where they should meet for the return trip to West Palm Beach. He left his friend’s home, went to Wal-Mart to buy his mother a Mother’s Day gift, drove to his parents’ home to deliver the gift, and then proceeded to the Circle K store to purchase gas for the trip back to West Palm Beach. While obtaining the gas, he called Costa to set the exact location of where to meet. After arriving at that location, a blue Plymouth Voyager pulled up and Cos-ta exited the vehicle. Costa and another person, who had been driving the minivan, started loading Yudin’s car with a “lot of stuff.” Yudin testified that the only thing he actually remembered seeing was a desktop computer. He asked Costa where these items came from, and Costa advised him that he purchased them at an auction of an abandoned storage unit.

After loading the car, Yudin and Costa drove back to Palm Beach County. Upon arriving in West Palm Beach, they first went to Costa’s apartment, where they unloaded some of the “stuff.” At Costa’s request, Yudin then drove Costa to the Pawn Unlimited Shop in Lantana, where Costa got out of the car carrying a bag with him. Yudin drove to his girlfriend’s home, and at about 11 a.m., he and his girlfriend went for breakfast at the Village Inn. After dropping his girlfriend off at her home, Yudin then returned to the pawn shop to pick up Costa. Upon entering the car, Costa offered Yudin a Seiko watch. Yudin testified that he assumed that Costa had been unable to pawn the watch as it was an ordinary Seiko and would not be worth much. Yudin put the watch on his wrist and proceeded to drive to David Cavanaugh’s home. Costa told Yudin that Cavanaugh was a friend who might purchase some of the items Costa obtained at auction. Yudin did not know where Cavanaugh lived, but he followed Costa’s directions.

Upon arriving at Cavanaugh’s home, Yu-din stood under a tree and watched while Costa unloaded the car. Costa placed a computer and a couple of bags on a bench by the exterior door of the residence. Ca-vanaugh arrived soon after and engaged Yudin and Costa in conversation. During that conversation, Costa offered to sell Ca-vanaugh the computer. Yudin testified that he never claimed ownership of the computer and that he did not offer to sell it to Cavanaugh.

At trial, Yudin presented additional evidence that validated his explanation. First he introduced a pawn ticket from the Pawn Unlimited Shop on Lake Worth Road in Lantana. It was dated May 5, 2009, and time stamped 12:01 p.m. It showed that several items of jewelry were pawned by Costa at that time. The amount paid to Costa for the jewelry was $607. Because the victims testified that they did not receive any of the jewelry back, there is no evidence to tie the pawned jewelry to the burglary. However, Yudin also presented a pawn ticket dated April 30, 2009, showing that Costa had pawned jewelry at that time as well. Additionally, there was testimony that items of jewelry were found in the car but that none of it was returned to the victims. All of this suggests that it was reasonable for Yudin to believe that Costa was involved in purchasing and selling such items.

Yudin also presented the testimony of David Cavanaugh, who stated that he met Costa at a rehabilitation program and that they were friends. It was Cavanaugh’s understanding that Costa cleaned out garages and abandoned storage units and sold any items of value to individuals or at flea markets. In the past, Cavanaugh had purchased from Costa items including a “couple” of computers, a ladder, a barbeque grill, and a silver coin. Costa called Cavanaugh on May 5, 2009, and told him that he was coming over with some items for Cavanaugh to look at for possible purchase. Cavanaugh was not at home but told Costa to go to the residence. When Cavanaugh arrived, Costa and Yudin already had been there and had placed two computers on the bench at the front of the house as he had instructed. They then returned after he arrived. The items Cos-ta wanted to show Cavanaugh included a laptop computer and a desktop computer. Cavanaugh opened the laptop as he was inspecting it. Cavanaugh testified:

Jerry really didn’t know anything about computers, so Mr. Yudin was showing me the computers. Actually, we never — like I said, we never fired them up, so we never got very far in any conversation as to what they were or — but what little there was said, I talked to [Yudin] about.

Cavanaugh said that the conversation was cut short due to the arrival of the police.

After the police decided that Costa could leave, Costa removed clothing and a closed bag from the trunk of the car and Cava-naugh drove Costa to the motel where he lived. Cavanaugh saw Costa soon after this incident but later learned that Costa had moved to Philadelphia.

The State’s evidence also lends reasonableness to Yudin’s explanation. Yudin’s father testified for the State that Yudin did not stay at home on the night of Monday, May 4, but returned home around 5 a.m. on Tuesday to deliver a Mother’s Day present. When Yudin went to the car to retrieve the gift, a stepladder, his father could see inside the car as the dome light illuminated the interior of the vehicle. Yu-din’s father did not see anything in the backseat but did admit that if items were on the floor behind the front seat or were small enough not to be viewed over the front seat, he would not have been able to see them. When asked if he saw a fifty-two-inch television set, Yudin’s father replied that not only did he not see it but that it would have been impossible to get a fifty-two-inch set in the back seat of Yu-din’s car. He also advised that he did not see a thirty-seven-inch television.

The evidence produced at trial established the existence of a person named Jerry Costa who was known to sell used property, especially jewelry and computers. It established that Costa did pawn some jewelry described by Yudin. The evidence supports the explanation that Costa was the one who placed the stolen items in the backseat of Yudin’s car without Yudin’s involvement or knowledge of the origin of the property. The State produced no testimony or evidence that in any way challenged the reasonableness of Yu-din’s explanation of his possession of the recently stolen property. Thus, as far as the facts as presented by the majority opinion shows, Yudin’s explanation was patently reasonable and the trial court should not have sent the issue of the reasonableness to the jury.

However, Yudin’s testimony also included a factor that the jury would have considered in determining the reasonableness of his explanation. On the stand, Yudin acknowledged that he previously had been convicted of nineteen felonies. Prior convictions can be used in considering the credibility of a witness, § 90.610, Fla. Stat. (2010), and based on his prior convictions, the jury could have concluded that Yudin was not a credible witness, even though his explanation otherwise was patently reasonable. Therefore, I concur with the majority in affirming the trial court’s denial of the motion for judgment of acquittal but for reasons that are not included in the majority opinion. See Coleman, 466 So.2d at 897 (“Appellant, whose credibility was impeached by his admission that he had been convicted of three prior felonies, was found trying to sell the stolen items just a few hours after they had been stolen.... The jury was entitled to conclude that appellant’s explanation was unsatisfactory”).

      . Cavanaugh testified that from his house, he drove Costa to a motel. Cavanaugh testified that Costa later "went to Philadelphia” to pursue a job opportunity. Costa’s whereabouts were thereafter unknown, and he was neither charged as a defendant nor called as a witness in this case.

      . This patently reasonable/arguably reasonable distinction has been followed by this court in subsequent cases. See Wilson v. State, 884 So.2d 74 (Fla. 2d DCA 2004); Hau-gabrook v. State, 827 So.2d 1065 (Fla. 2d DCA 2002); State v. Grimmage, 522 So.2d 523 (Fla. 2d DCA 1988).

      . Cavanaugh testified that he was not at home when first contacted by Costa. He said that his grandson, who was at the home with some others doing some remodeling work, called the police when a suspicious car drove up to the house and the occupants of the car began to take items from the car to the house. Because he did not know who these persons were or why they were there, he called the police to report the suspicious car.

      . The victims testified that two televisions of these sizes were taken in the burglary and that they did not receive either of the televisions after the police apprehended Yudin. The victims further testified that the only items that were returned to them were the desktop computer, the laptop computer, the dresser drawer with the personal items (insurance cards, passports, etc.), and a ring. They testified that in addition to the two televisions, other jewelry was taken.


text:
    DAVIS FAMILY DAY CARE HOME, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 2D12-1191.
    District Court of Appeal of Florida, Second District.
    July 17, 2013.

      Charlann Jackson Sanders of Law Office of Charlann Jackson Sanders, P.A., Lake-land, for Appellant.

      Gregory D. Venz, Assistant General Counsel, Tallahassee, and Stacy N. Robinson, Assistant Regional Counsel, Lakeland, for Appellee.
   BLACK, Judge.

Davis Family Day Care Home appeals an administrative order of the Department of Children and Family Services. The order grants the renewal application of a family day care license on a probationary basis and denies the initial application for a large family child care home license. Davis Family Day Care Home (Daycare) contends the Department of Children and Family Services (DCF) erroneously rejected the Administrative Law Judge’s conclusion of law that DCF was required to prove the allegations set forth in its administrative complaint by clear and convincing evidence. We agree and reverse.

I. Background

The Daycare was initially licensed as a family day care home by DCF in 2007. See generally §§ 402.302(8), .308(1), .313, Fla. Stat. (2007). It has been continuously licensed since that time. In 2011, the Daycare applied for a license to operate as a large family child care home. See §§ 402.302(11), .308(1), .3131, Fla. Stat. (2010). One of the requirements for such license is that a family day care must have “operated as a licensed family day care home for 2 years.” §§ 402.302(9), .3131(1). On March 23, 2011, DCF notified the Daycare of its proposed denial of the Daycare’s annual application to renew its family day care home license. See generally §§ 402.308(1), .310(3), .313. On April 11, 2011, DCF notified the Daycare of its proposed denial of the Daycare’s initial application for a large family child care home license. See generally §§ 402.308(1), .310(3).

DCF proposed to deny the large family child care home license based on alleged violations of the Florida Administrative Code and under the authority of section 402.310, “Disciplinary actions; hearings upon denial, suspension, or revocation of license or registration; administrative fines.” The proposed denial advised the Daycare that “[t]his letter is considered an administrative complaint of [sic] the purposes of section 120.60(5), F.S.” Section 120.60(5) addresses the revocation, suspension, annulment, or withdrawal of any license. § 120.60(5), Fla. Stat. (2010).

The statutes cited in the proposed denial establish that DCF considered its denial of the Daycare’s application a sanction or disciplinary action. DCF’s actions comport with the requirements of the applicable statutes and with the Florida Administrative Code. See Fla. Admin. Code R. 28-106.2015. As it was entitled to do, the Daycare filed a petition for administrative hearing, challenging DCF’s proposed denials. See § 402.10(2); see also § 120.57(1). Following a full administrative hearing, the Administrative Law Judge (ALJ) issued an order recommending that DCF enter a final order renewing the family day care home license on a probationary basis. DCF’s final order approved and adopted this recommendation. The ALJ’s order also recommended that DCF enter a final order provisionally granting the initial application for the large family child care home license. DCF rejected this recommendation and denied the application. Only the denial of the large family child care home initial license is at issue on appeal.

II. Standard of Review

Florida’s Administrative Procedure Act (APA) provides the standard of review appellate courts must use when reviewing an agency determination. This court is required to “remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate,” when the court finds that “[t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular aetion[.]” § 120.68(7), Fla. Stat. (2011); see Gross v. Dep’t of Health, 819 So.2d 997, 1002 (Fla. 5th DCA 2002). We may also set aside or remand an agency’s decision when “[t]he agency’s action depends on any finding of fact that is not supported by competent, substantial evidence in the record of a hearing conducted pursuant to ss. 120.569 and 120.57[J” § 120.68(7)(b). “It follows that an appellate court reviews the agency’s conclusions of law de novo.” M.H. v. Dep’t of Children & Family Servs., 977 So.2d 755, 759 (Fla. 2d DCA 2008) (citing Wise v. Dep’t of Mgmt. Servs., 930 So.2d 867, 871 (Fla. 2d DCA 2006)).

III. Burden of Proof

In its first issue on appeal, the Daycare claims it was error for DCF to reject the ALJ’s recommendation that the Daycare be granted a provisional large family child care license. In the recommended order, the ALJ found that “[t]he standard of proof with respect to a contested denial of the family day care renewal application and [to] the denial of the large family day care application is by clear and convincing evidence,” relying on Coke v. Department of Children & Family Services, 704 So.2d 726, 726 (Fla. 5th DCA 1998). The ALJ went on to find that where, as here, DCF proposed to deny a license based on specific statutory or rule violations, DCF bears the burden of proof. The statutory and rule violations forming the basis of DCF’s proposed denial of the Daycare’s large family child care home initial license related to a violation of the child-to-caregiver ratio as well as an alleged incident of corporal punishment.

DCF’s final order rejected the ALJ’s statement as to the burden of proof, rejected the ALJ’s recommendation to grant a provisional large family child care license, and denied the Daycare’s application. In so doing, DCF stated that its burden of proof at the administrative hearing was not clear and convincing evidence but competent, substantial evidence and that it had met its burden. DCF relied upon Department of Banking & Finance v. Osborne Stern & Co., 670 So.2d 932 (Fla.1996), and Comprehensive Medical Access, Inc. v. Office of Insurance Regulation, 983 So.2d 45 (Fla. 1st DCA 2008), for the proposition that DCF need only produce competent, substantial evidence to support the denial of an initial application for a large family child care home. The final order states:

The ALJ, therefore, concluded the Department failed to persuade her that [the Daycare] was responsible for the injury, not that the Department failed to present competent substantial evidence. The Department also presented competent substantial evidence on the allegation petitioner lied to Department staff about the number of children in the home on December 2.... Although the Department did not persuade the fact-finder of this allegation, competent substantial evidence was presented.

DCF accepted and adopted the ALJ’s remaining relevant findings.

A. Competent, Substantial Evidence

In this case, DCF has misused a standard of review as a burden of proof. DCF has again “failed to perceive the difference between the burden of proof on a party and the legal requirement that findings of fact shall be sustained if supported by competent, substantial evidence.” Pic N’ Save Cent. Fla., Inc. v. Dep’t of Bus. Reg., 601 So.2d 245, 249 (Fla. 1st DCA 1992). DCF’s “use of the ‘competent substantial evidence’ standard as a burden of proof reflects a fundamental misapprehension of the entirely distinct functions of evidentiary standards of proof and appellate standards of review.” M.H., 977 So.2d at 762; see Haines v. Dep’t of Children & Families, 983 So.2d 602, 607 (Fla. 5th DCA 2008) (“DCF’s conclusion that the competent, substantial evidence standard, which is an appellate standard of review, should be used as an evidentiary standard of proof in a de novo administrative hearing to resolve disputed issues of fact was plainly unreasonable.”). We reiterate that the Florida Supreme Court’s decision in Osborne does not “stand for the proposition that the so-called ‘competent substantial evidence’ standard is applicable as an evidentiary standard in a hearing conducted in accordance with section 120.57.” M.H., 977 So.2d at 760. DCF’s rejection of the ALJ’s conclusion of law based on DCF’s erroneous interpretation of the law mandates reversal. Id.; Pic N’ Save, 601 So.2d at 250. To the extent Comprehensive Medical Access holds that competent, substantial evidence is a burden of proof to be applied in administrative proceedings under chapter 120, we certify conflict.

B. The Appropriate Burden of Proof

Because licensure as a large family day care home requires prior licensure as a family day care, the posture of this case is unusual. The large family day care license is, in effect, a “step up” from the family day care home license. And here, the denial of the initial large family day care license is a disciplinary action for violations allegedly committed under the family day care home license. The statute relied upon by DCF in its proposed denial, section 402.310, provides that DCF “may administer any of the following disciplinary sanctions for a violation of any provision of ss. 402.301-402.319, or the rules adopted thereunder: ... (3) Deny, suspend, or revoke a license or registration.” § 402.310(l)(a)(3). It also states that “[w]hen the department has reasonable cause to believe that grounds exist for the denial ... it shall determine the matter in accordance with procedures prescribed in chapter 120.” § 402.310(2). The statute is clear that (1) it is disciplinary in nature, and (2) the procedures of chapter 120 apply. See also Op. Att’y Gen. 03-15 (2003). And because the Daycare was challenging the proposed denial of its application based upon factual determinations, section 120.57, governing hearings involving disputed issues of material fact, was applicable to the Daycare’s hearing.

“[Pjarties are held to varying standards of proof at the fact-finding stage in administrative proceedings depending on the nature of the proceedings and the matter at stake.” Osborne, 670 So.2d at 933. And this court “look[s] to the nature of the proceedings and their consequences to determine the degree of proof required to justify” DCF’s actions. Id. at 935. “Generally speaking, the standard of proof applicable in administrative hearings is a preponderance of the evidence.” M.H., 977 So.2d at 762. However, section 120.57(l)(j) specifically states that “[fjind-ings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute .... ” (Emphasis added.)

The seminal case cited by both parties is Osborne. The holding of Osborne was that the preponderance of the evidence burden of proof, not the clear and convincing burden, is applicable to license application proceedings. 670 So.2d at 935. Moreover, Osborne was decided prior to the 1997 amendments to the APA, one of which amended section 120.57(1). Previously, section 120.57 provided that findings of fact “shall be based exclusively on the evidence of record and on matters officially recognized”; no burden of proof was mentioned. § 120.57(l)(b)(8), Fla. Stat. (1995). The 1997 amendments to chapter 120 added section 120.57(l)(h), now section 120.57(l)(j), stating that “[fjindings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.” See ch. 97-176, § 8, Laws of Fla. This amendment effectively codified Osborne, at least in part. And although the legislature did not provide the burden of proof to be applied in penal or disciplinary proceedings in chapter 120, it has done so in other statutes where disciplinary proceedings are governed by chapter 120. See, e.g., §§ 456.50(2); 459.015(3), Fla. Stat. (2010).

Unfortunately, the legislature did not provide a burden of proof in section 402.310. And DCF’s rules do not purport to provide a burden of proof. We note that in Osborne the supreme court reaffirmed its decision in Ferris v. Turlington, 510 So.2d 292 (Fla.1987), a case involving the revocation of a license. In Ferris, the supreme court adopted this court’s holding in Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2d DCA 1966), that sanctions should be proven by clear and convincing evidence. 510 So.2d at 295. Both Ferris and Reid address professional licenses and proceedings which implicate the loss of livelihood. And it is clear that where an agency intends to deny the renewal of a professional license, it must prove its case by clear and convincing evidence. Georges v. Dep’t of Health, 75 So.3d 759, 761 (Fla. 2d DCA 2011). We do not agree with the Daycare’s argument that this is a case involving a professional license. Cf. Ferris, 510 So.2d 292; Russell v. Dep’t of Ins., 668 So.2d 276 (Fla. 2d DCA 1996); Avalon’s Assisted Living, LLC v. Agency for Health Care Admin., 80 So.3d 347 (Fla. 1st DCA 2011). Nor is this a case involving the loss of livelihood given that the Daycare continues to hold its family day care home license. However, we do agree the ALJ appropriately applied a more onerous standard than the preponderance of the evidence in this disciplinary proceeding.

We reiterate that the proceedings here were determined by DCF in its proposed denial, a self-proclaimed administrative complaint, to be disciplinary in nature. And DCF must prove its case based upon the allegations set forth in that document. See M.H., 977 So.2d at 757. As a result, the ALJ was constrained to apply a standard other than the preponderance of the evidence. This court too must apply the clear language of section 120.57(l)(j).

We are cognizant that the Fifth District has reached a different conclusion in Haines. See 983 So.2d 602. There, although stating that “[c]learly, the proceeding below was a ‘penal or licensure disciplinary proceeding’ ” under section 120.57(l)(j), 983 So.2d at 604, the court held “the ALJ properly applied the preponderance of evidence standard of proof,” id. at 608. We certify conflict with Haines on this point.

IV. DCF’s Interpretation of Section 402.309

The Daycare also argues that DCF’s interpretation of section 402.309, “Provisional license or registration,” in its rejection of the ALJ’s recommendation to grant a provisional large family day care license is incorrect. We agree.

Section 402.309 clearly contemplates that initial licenses for large family home child care homes may be provisional. § 402.309(1) (“[T]he department ... may issue a provisional license for ... large family child care homes.”). It also authorizes DCF to “adopt rules specifying the conditions and procedures under which a provisional license or registration may be issued, suspended, or revoked.” § 402.309(5). In that regard, we note that while DCF referenced Florida Administrative Code rule 65C-22.001(2)(d) as a basis to support its conclusion that a provisional license is not a de facto probationary license, that conclusion is irrelevant to the ALJ’s recommendation and to whether a provisional license may be granted under the statute. The language of the statute is plain. And the ALJ’s findings of fact are supported by competent, substantial evidence.

V. Conclusion

Based on the foregoing, we reverse DCF’s order to the extent that it denies the Daycare’s large family child care home license. We remand with instructions that DCF enter a final order adopting that portion of the ALJ’s recommended order granting a provisional large family day care home license to the Daycare. We certify conflict with Comprehensive Medical Access, 983 So.2d 45, and with Haines, 983 So.2d 602.

Reversed and remanded.

KELLY and LaROSE, JJ., Concur.

      . In addition, even if DCF had been correct in its determination that the ALJ applied the incorrect burden of proof, it cannot reweigh the evidence put forth in the ALJ's finding of fact under its own burden of proof rather than remanding the case to the ALJ for reconsideration of the facts under the correct burden.