author: CRENSHAW, Judge.

text:
    John A. VODA, Appellant/Cross-Appellee, v. Karen J. VODA, Appellee/Cross-Appellant.
    No. 2D11-4086.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 2013.
    Allison M. Perry and Stacey A. Rickies of Law Office of Allison M. Perry, P.A., Tampa; and Linda I. Braithwaite of The Family Law Source, P.A., Trinity, for Appellant/Cross-Appellee.
    Melissa A. Tartaglia of Tartaglia Law, P.A., Port Richey, for Appellee/Cross-Ap-pellant.
   CRENSHAW, Judge.

Karen Voda (Former Wife) filed for dissolution of marriage from John Voda (Former Husband) in 2009; the trial court equitably distributed the assets and awarded Former Wife permanent, periodic alimony of $500 monthly for five years and $1 monthly nominal alimony thereafter. Former Husband challenges the alimony award on appeal; Former Wife challenges the equitable distribution scheme and a few other points on cross-appeal. Because the trial court erred by failing to determine Former Husband’s ability to pay alimony, we reverse as to that issue only and note a ministerial detail to be considered on remand. The cross-appeal is affirmed without comment.

DISCUSSION

Standard of Review

Essentially all of the issues in this appeal are reviewed for an abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1202-03 (Fla.1980). In Cana-karis, the supreme court clarified,

“Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”
In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

Id. at 1203 (citation omitted).

Merits

Need for Alimony Award

The Former Wife requested various types of alimony including a lump-sum award of the marital property because of her greater need. The trial court declined to award property as lump-sum alimony, but did award permanent, periodic alimony in the amount of $500 monthly for five years and nominal $1 monthly thereafter to Former Wife particularly in light of her increased insurance needs. See Schmidt v. Schmidt, 997 So.2d 451, 454 (Fla. 2d DCA 2008) (“[W]hen one party is entitled to permanent[,] periodic alimony ... the trial court should award a nominal sum of permanent[,] periodic alimony, which will give the court jurisdiction to reconsider the award....”). The trial court found that Former Wife had a need for the alimony in order to pay for health insurance because she had suffered from cancer. Also, her insurance premiums would be significantly higher than they were during the marriage because she would no longer be on Former Husband’s policy. Neither the findings of need nor the amount of alimony constitutes an abuse of discretion because they are supported by competent, substantial evidence. See Zinovoy v. Zinovoy, 50 So.3d 763, 766 (Fla. 2d DCA 2010) (reviewing for competent, substantial evidence the amount of an alimony award); Hornyak v. Hornyak, 48 So.3d 858, 861 (Fla. 4th DCA 2010) (reviewing for competent, substantial evidence the need for an alimony award). Accordingly, we affirm on this issue.

Ability to Pay Alimony

Former Husband posits that he has no ability to pay alimony. We conclude that neither the final order nor the record reflects whether the trial court determined Former Husband’s ability to pay. The trial court must make findings as to a spouse’s ability to pay. See Crick v. Crick, 78 So.3d 696, 698 (Fla. 2d DCA 2012) (citing § 61.08(2), Fla. Stat. (2010)). A failure to state such findings can be harmless error when we can determine from the order itself or from the transcripts that such findings were in fact made. Williams v. Williams, 923 So.2d 606, 608 (Fla. 2d DCA 2006) (“The failure to make the required findings [regarding alimony] may constitute harmless error when our review is not hampered by their absence.”); see also Gray v. Gray, 103 So.3d 962, 967 (Fla. 1st DCA 2012) (reversing where the final order lacked requisite statutory findings regarding ability to pay). Even if the trial court did consider the Former Husband’s ability to pay, we cannot determine such consideration took place. Therefore, we reverse for the trial court to determine Former Husband’s ability to pay while making the necessary specific findings.

Finally, the Former Husband asks us to require the trial court to correct the alimony award for its failure to include language that the alimony must terminate upon the Former Wife’s death or remarriage. Section 61.08(8), Florida Statutes requiring the termination of alimony in either one of those two circumstances, did not exist when Former Wife commenced this dissolution action. Even now, it does not mandate specific language in an alimony award. Accordingly, the failure of the order to include the relevant language does not merit reversal. However, because we reverse on the ability-to-pay issue, we encourage the trial court to specifically state on remand that any new award of alimony terminates upon death or remarriage.

CONCLUSION

We reverse the trial court’s alimony award for failure to determine Former Husband’s ability to pay alimony. The cross-appeal is affirmed.

Reversed and remanded with directions on appeal; affirmed on cross-appeal.

WALLACE and KHOUZAM, JJ., Concur.

      . Although not an issue in this appeal, we note that "automatic changes in alimony payments based upon the occurrence of future events are generally disfavored” though they "may be appropriate when they are 'carefully conditioned upon specifically articulated changes in circumstances....." Walker v. Walker, 818 So.2d 711, 713 (Fla. 2d DCA 2002) (quoting Kangas v. Kangas, 420 So.2d 115, 116 (Fla. 2d DCA 1982)).


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Joel C. TEAGUE, Appellant, v. Lora L. TEAGUE, Appellee.
    No. 4D12-2832.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.

      Nancy A. Hass of Nancy A. Hass, P.A., Hallandale Beach, for appellant.
    Kenneth M. Kaplan, Miami, for appellee.
   WARNER, J.

The trial court entered a qualified domestic relations order (“QDRO”) to distribute to appellee, former wife, one-half of the husband’s 401 (k) plan with his employer based upon a mediated agreement between the parties. The order directed the inclusion of the value of outstanding loans taken out by the former husband in the calculation of the former wife’s share of the account. The husband contends that the court erred in including the loans in calculating the amount to be distributed, because this would result in the wife receiving more than half of the balance and would leave the corresponding loan repayment obligation as an undistributed marital liability. We agree that the order should not have directed inclusion of the outstanding loans in the balance subject to distribution to the former wife and reverse.

At the time the parties were married in 1997, the husband had a 401(k) retirement account with his employer. Throughout the parties’ marriage, the account grew due to additions and earnings, and the husband took loans against the balance. After the parties began divorce proceedings in 2011, they mediated their differences. As to the retirement account, the mediated settlement provided:

The husband has a 401K with his employer. The parties agree that the wife is entitled to half of the marital portion of this retirement plan. The parties agree that the wife is entitled to 50% of the amount accumulated from the date of the marriage through January 1, 2008. The wife will be entitled to a Qualified Domestic Relations Order transferring her share of the plan as described above. The parties agree and acknowledge that loans and [withdrawals] taken during the marriage and not repaid will be taken into account for distribution purposes. The husband will cooperate with providing the wife any and all necessary documents reasonably requested in order to have the Qualified Domestic Relations Order Prepared. The parties will equally share in the cost of the preparation of the Qualified Domestic Relations Order.

The agreement also noted that the parties had divided all of their other personal property. It provided for some bridge-the-gap alimony and child support as well as a parenting plan. The wife was represented in the proceedings; the husband was not.

The trial court incorporated the mediated settlement in its final judgment and reserved jurisdiction to enforce, interpret, or modify the terms of the final judgment and agreement. A couple of months after the final judgment, the wife submitted a proposed QDRO to the court, which the court signed. No copy was provided to the husband either prior to or after its execution. In the section designated “Benefit Payable To The Alternate Payee — Defined Contribution Plan(s),” the order assigned “to the alternate payee an amount equal to 50% of the participant’s vested account balance under the Plan ... as of January 1, 2008.” The court checked the box on the order which provided that amount assigned to the alternate payee “[w]ill include earnings and losses” and that the “participant’s vested account balance ... [w]ill not be reduced by the value of outstanding loans before the alternate payee’s portion of the benefit is determined.” The order defines the “vested account balance” as “the participant’s benefit as if he or she terminated employment and received a distribution on the valuation date.”

Pursuant to the order, the plan administrator made distribution. The former husband received a letter from the administrator that the total market value of the assets transferred to the account established for the alternate payee (the former wife) was $47,505.96. The letter stated: “The QDRO provides that the Alternate Payee is entitled to 50% of the above referenced account as of 01/01/2008, plus earnings (or minus losses) through the date of segregation.” An account summary following the $47,505.95 transfer indicates an ending balance to the former husband’s 401(k) account at $13,697.43 with an outstanding loan balance of $35,311.53.

Believing that the loan amount was not to be calculated in the distribution to the former wife, the former husband filed a motion for relief from the order based upon mistake or fraud. He claimed that he had never received a copy of the proposed order or the executed order and had not approved its terms. Its terms did not comport with the settlement agreement, because the agreement provided that the loans would be taken into account in determining the accumulated balance, not added to the balance in his account.

The trial court held a hearing and determined first that the agreement was ambiguous as to how to treat the loans. The court then heard testimony from both the former husband and former wife. The husband introduced into evidence a statement from his plan administrator from the plan’s commencement through January 1, 2008, the valuation date for purposes of the QDRO. That statement showed an “Ending Balance” of $60,734.50. As part of that balance, the statement included the amount of loan repayments. In another part of the statement, as “additional information” it listed the “Vested Balance” as $60,734.50 and listed “outstanding loans” as $25,048.90. It then states: “Loans are an asset of your account but are not included in your ending balance.”

The husband testified that he took several loans from his plan to support the parties’ lifestyle. When he agreed to give the wife 50% of the plan amount accrued during the marriage, he believed that it would be the balance and not include any outstanding loans he had taken from the plan and not paid back. The wife testified that while she knew about the husband’s 401 (k) plan, she had not seen any plan statements. She knew that the husband had taken loans against the plan and did not contradict his claim that these were to support their lifestyle. Her understanding of the agreement was that she would get 50% of the amount of the plan and that the loans would be included. However, when questioned by her own attorney, she then stated “I thought.... the paid loans would be back in there.” (emphasis supplied).

Following argument of counsel, the court denied relief to the former husband. It determined that the agreement required the inclusion of the outstanding unpaid loans in the distribution to the wife. It found:

The sentence is paragraph 3 of the Mediated Settlement Agreement which states “The parties agree and acknowledge that loans and withdrawals taken during the marriage and not repaid will be taken into account for distribution purposes” has to be qualified by the previous sentence which states “The parties agree that the wife is entitled to 50% of the amount accumulated from the date of the marriage through January 1, 2008”, and this is a gross number to the Court.

From this order, the former husband appeals.

The former husband argues that the trial court erred in interpreting the agreement by determining that the QDRO order correctly included outstanding loans before calculating the distribution due to the former wife, providing her with substantially more of the 401(k) account than the former husband. “ ‘The interpretation of the wording and meaning of the marital settlement agreement, as incorporated into the final judgment, is subject to de novo review.’ ” Reilly v. Reilly, 94 So.3d 693, 696 (Fla. 4th DCA 2012) (quoting Kipp v. Kipp, 844 So.2d 691, 693 (Fla. 4th DCA 2003)).

A marital settlement is construed in accordance with its terms, as with any contract:

[w]here the terms of a marital settlement agreement are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document. It is only when a term in a marital settlement agreement is ambiguous or unclear that the trial court may consider extrinsic evidence as well as the parties’ interpretation of the contract to explain or clarify the language.

Jones v. Treasure, 984 So.2d 634, 636 (Fla. 4th DCA 2008) (quoting Levitt v. Levitt, 699 So.2d 755, 756 (Fla. 4th DCA 1997)). On review, the appellate court considers whether the contractual provision was actually ambiguous; if not, “the language itself is the best evidence of the parties’ intent, and its plain meaning controls.” Richter v. Richter, 666 So.2d 559, 561 (Fla. 4th DCA 1995) (citing Fecteau v. Se. Bank, N.A., 585 So.2d 1005, 1007 (Fla. 4th DCA 1991)). In determining whether a provision is ambiguous, the court should consider “a reading of the entire agreement [to] clarify what the parties meant” by including the provision. Bacardi v. Bacardi, 386 So.2d 1201, 1203 (Fla. 3d DCA 1980). A provision is ambiguous if “it is fairly susceptible to different constructions.” Mariner Cay Prop. Owners Ass’n, Inc. v. Topside Marina, Inc., 714 So.2d 1130, 1132 (Fla. 4th DCA 1998).

The parties agreed in their mediated settlement to a distribution to the former wife, through a QDRO, of one-half of the marital portion of the former husband’s retirement account. They defined that as 50% of the amount accumulated from the date of their marriage to January 1, 2008. They qualified that amount by stating “that loans and [withdrawals] taken during the marriage and not repaid will be taken into account for distribution purposes.”

The trial court found that the agreement was ambiguous, because the phrase “taken into account” could have several meanings. It therefore allowed the testimony of both the former husband and former wife. In sum, however, their testimony was consistent. The former husband testified that the loans he had taken from his account were all used to fund the parties’ lifestyle and to the extent that they were still unpaid they were not intended to be included in the accumulated total of the account. The former wife testified that she knew about the loans and thought that they had been repaid. She testified that her understanding was that loans which had been repaid would be included in the amount due to her. According to the plan statement introduced in evidence, the repayments on loans increased the account and were part of the ending balance of $60,734.50. Thus, both parties agreed that paid loans, not unpaid loans, would be part of the distribution. The trial court overlooked the testimony of the former wife in denying relief from the QDRO. Thus, its interpretation of the provision was contrary to the understanding of the parties.

The parties’ interpretation is consistent with an equitable distribution of the 401(k) plan as a marital asset through a QDRO. “A QDRO is, in pertinent part, a ‘domestic relations order ... which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.’ ” DeSantis v. DeSantis, 714 So.2d 637, 638 (Fla. 4th DCA 1998) (quoting 29 U.S.C. § 1056(d)(3)(B)©). “Thus, a QDRO is intended to protect one spouse’s right to the other’s pension or profit sharing plans by recognizing that spouse’s entitlement to a portion of the future payments.” Id. Regarding QDROs, this Court has explained that “a retirement pension must be viewed as a marital asset, but only the marital portion may be equitably distributed.” Blaine v. Blaine, 872 So.2d 383, 384 (Fla. 4th DCA 2004) (citing Bogard, v. Bogard, 490 So.2d 43 (Fla.1986)).

A participant may take loans and withdrawals from a 401 (k) account. The only Florida case involving a loan against a retirement plan is Kadanec v. Kadanec, 765 So.2d 884 (Fla. 2d DCA 2000). There a husband argued that the trial court erred in including a $15,000 loan as part of the value of the retirement account, similar to what has occurred in this case. The appellate court rejected his claim, because the proceeds of the loan were used by him to purchase a home for himself in North Carolina. Thus, he retained the benefit of the $15,000 loan proceeds.

Kadanec’s reasoning supports the exclusion of the outstanding loans from the value of the retirement account in this case. Here, the loans were used to support the parties’ lifestyle, and both parties received the benefit from the loans. Because they both received the benefit of the loans, the loans should be excluded from the accumulated amounts to the extent that they are unpaid.

Moreover, if the loans were an asset of the retirement account, then they represent a corresponding liability of the former husband, as they must be repaid by the plan participant. Because these loans were incurred during the marriage and for a marital purpose, they are presumed to be a marital debt. See generally § 61.075, Fla.' Stat. (2012). Thus, if the loans are treated as assets of the retirement account subject to distribution, then they should be offset by the marital liabilities created. If they are not treated as part of the retirement account, then the marital liabilities need not be considered. In other words, both the marital asset and marital liabilities should be included in the distribution, or neither should be included. The latter solution is consistent with not considering the amount of the outstanding loans when calculating the distribution of the 401 (k) through the QDRO.

Smilack v. Smilack, 858 So.2d 1072 (Fla. 5th DCA 2003), provides an analogous situation to this case. In a dissolution judgment, the trial court awarded the former wife the marital residence including its equity but offset that by requiring her to repay a promissory note jointly executed by both husband and wife and to pay to the husband a sum of cash. The wife failed to pay the husband the cash or pay the note. In an enforcement action, the trial court granted the husband a judgment for the amount of cash due but refused to include the amount of the promissory note which the husband had to pay to a third party.

On appeal, the Fifth District noted that “[t]o enforce a prior judgment, a court may modify a final judgment to provide for reimbursement for a party’s share of marital debts.” Id. at 1075 (citing Kennedy v. Kennedy, 638 So.2d 577 (Fla. 3d DCA 1994)). The court concluded that “a dissolution judge must equitably distribute the parties’ assets and liabilities pursuant to section 61.075, Florida Statutes (1997).” Id. Failing to give relief to the husband for his payment of the note would have upset the equitable distribution scheme of the final judgment, which would be an impermissible modification. Id.

The same principle applies to the treatment of the outstanding unpaid loans in this case. If they are treated as assets but not as offsetting liabilities, the equitable distribution of the retirement account is upset, and the former wife receives substantially more than the former husband from the retirement account. Yet the parties’ intent as expressed in the mediated agreement is that they will divide the balance of the account.

In denying relief, the trial court overlooked the consistent testimony from the parties that only paid loans would be added back to the account. Including the outstanding loan balances in the amount to be distributed to the former wife would result in an inequitable distribution and windfall to her and would leave undisposed the marital liabilities represented by the loans. Interpreting the agreement to exclude the outstanding loans would dispose of both the loans as assets and the corresponding liabilities, as they offset each other. We therefore reverse and remand for the court to grant the motion and modify the QDRO to provide that outstanding unpaid loans, as they existed on the date of valuation (January 1, 2008), will not be included in the distribution to the former wife.

Reversed and remanded.

CONNER, J., and LEVENSON, JEFFREY R., Associate Judge, concur.

      . It appears that the administrator may have erroneously included the amount of outstanding loans at the date of distribution rather than the amount as of the valuation date of January 1, 2008.


author: GERBER, J.

text:
    James BETHEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2493.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, Assistant Attorney General, West Palm Beach, for appel-lee.
   GERBER, J.

The defendant appeals his conviction and sentence for grand theft of a motor vehicle and burglary of a dwelling. He argues that the trial court erred in denying his cause challenge to a potential juror who was an assistant state attorney in the same state attorney’s office as the prosecutor. We agree with the defendant and reverse for a new trial.

Because the state’s answer brief relies heavily on the potential juror’s responses and the trial court’s statements during voir dire, we provide a detailed recitation of those portions of the record here.

During the trial court’s questioning of potential jurors, Juror 7 identified herself as an assistant state attorney working in the same state attorney’s office as the prosecutor. The following exchange then occurred between the court and Juror 7:

Court: If you are selected as a juror in this case, I’m going to give you an instruction that you have to judge this case strictly on the law as I give it to you which means you have to put out of your mind anything you think you might know about criminal law, anything you learned in law school or that you have learned as a result of your practice. Can you do that?
Juror 7: Yes.

After the court completed its questioning of the potential jurors, defense counsel expressed concern about Juror 7:

Defense: Your Honor, my only concern was with [Juror 7], because she is a current prosecutor with the State Attorney’s Office in Broward. Frankly, I think that alone would be enough for a “for cause” strike but my concern is that she is on the panel now and we ask her questions, that might lead to some tainting of the jury down the road. It might just be better to strike her at this point.
Court: I guess you are going to have to be careful how you question her. The thing about it is, I don’t agree with you. I don’t think that a person’s occupation is a valid basis, if you will, for a cause challenge. I just don’t see it that way. So, just because she is an assistant state attorney or for that matter an attorney doesn’t mean that she can’t be a good juror.
Defense: Your Honor, she works [in] the prosecutor’s office that is currently prosecuting my client, and she is a prosecutor, she is just not ... clerical staff. Court: You are aware that they take an oath?
Defense: Absolutely.
Court: They take an oath to be not only—
Defense: I understand.

During the state’s questioning of Juror 7, the following exchange occurred:

State: How long have you worked for the State Attorney’s Office?
Juror 7: A little over two months.
State: So you are pretty new.
Juror 7: Yes.
State: What division do you work in?
Juror 7: Juvenile.
State: ... [H]ave we ever met before?
Juror 7: No.

During defense counsel’s questioning of Juror 7, the following exchange occurred:

Defense: Obviously, [the prosecutor] also works for the State Attorney’s Office. I obviously don’t. Is that going to factor into your analysis at all, maybe because she works for your office, you might be inclined to believe what she has to say?
Juror 7: No.
Defense: If, ultimately, you were on the jury and you were to find [the defendant] not guilty, you wouldn’t be worried about how that would sort of play in your office, if other people found out that you’re a state attorney and you are on the jury and you found [the defendant] not guilty?
Juror 7: I would hope not.
Defense: What about the officers that are involved in this case, do you think that as a state attorney that you have a higher opinion of them than maybe a general member of the public would?
Juror 7: I don’t think so.
Defense: Have you had any interaction with any of the police officers in Bro-ward County through your cases that you have almost gone to trial with?
Juror 7: Yes.
Defense: And you rated them pretty solidly, you have a pretty solid impression of those?
Juror 7: I have rated them an 8, not a 10. I mean. No one’s job is perfect. There is room for improvement. We can all do our job a little better, and sometimes we don’t foresee some of the mistakes you do make or not make until later on.
Defense: Now, you as a state attorney would have access to presumably [the prosecutor’s] file if you really wanted it; correct? If you ordered it, they would give it to you? Not today, but?
Juror 7: I don’t know. I’m in juvenile. This is felony so I’m not sure what access I have to that.
Defense: Do you guys have a computer system where you keep track of all your cases?
Juror 7: Yes. But the documents are not there. It is just basically like dates or who the attorney is.
Defense: So background?
Juror 7: Yes.
Defense: So it is your contention that you could be fair and impartial on this jury, even though you are a state attorney?
Juror 7: Yes.

After voir dire concluded, the defense moved to strike Juror 7 for cause. The following exchange occurred:

Defense: She is currently a prosecutor with the Broward State Attorney’s Office. I think it is inappropriate for the State Attorney to be both prosecuting the case and deciding the case. There is one sitting on this table, and there is one in the jury box. I think that there is just inherent conflict based on that employment alone. Again, it is not that she is on the administrative staff with the prosecutor’s office. She is actually a prosecutor prosecuting cases.
Court: I will deny your challenge for cause on that basis.

The defense ultimately used a peremptory challenge on Juror 7. After exhausting its remaining peremptory challenges, the defense requested the court to grant an additional peremptory challenge. In support of the request, the defense argued that because the court would not strike Juror 7 for cause, the defense used a peremptory challenge on Juror 7. The defense then stated that, if the court granted an additional peremptory challenge, the defense would use that challenge on Juror 4. The court denied the request. Juror 4 was selected for the jury.

After the jury was selected, but just before the jury was sworn, the following exchange occurred between the court and the defense:

Court: Are these the jurors that you want to try your case?
Defendant: No.
Court: ... [C]an you tell me what problems you have with any of these jurors?
Defendant: [Juror 4],
Court: What is your problem with [Juror 4]? I didn’t hear any challenge for cause. Just you don’t like him?
Defendant: He was quiet, too quiet.
Defense counsel: [T]he thing we didn’t like about him was ... he was very quiet. He slouched back when we talked to him. He didn’t seem very interested in being here. He gave off a lot of negative body language. When I asked him questions about certain legal issues, he didn’t really have an opinion. For those reasons I would have struck [Juror 4].

The jury found the defendant guilty as charged. The court adjudicated the defendant guilty and sentenced him to a term of years in prison.

The defendant filed a motion for new trial. In the motion, the defendant argued that he was “erroneously forced to exercise a peremptory challenge upon a juror [Juror 7] that should have been struck for cause.” The trial court entered an order denying the motion for new trial.

This appeal followed. The defendant argues that the trial court erred in denying his cause challenge to Juror 7. As a preliminary matter, we conclude that the defendant preserved this argument for appeal pursuant to Trotter v. State, 576 So.2d 691 (Fla.1990). In Trotter, our supreme court stated:

Where a defendant seeks reversal based on a claim that [the defendant] was wrongfully forced to exhaust [the defendant’s] peremptory challenges, [the defendant] initially must identify a specific juror whom [the defendant] otherwise would have struck peremptorily. This juror must be an individual who actually sat on the jury and. whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after [the defendant’s] peremptory challenges had been exhausted.

Id. at 693 (footnotes omitted). Applying Trotter here, the defense identified Juror 4 as the juror whom he otherwise would have struck peremptorily had he not been wrongfully forced to exhaust his peremptory challenges due to the court’s denial of his cause challenge on Juror 7. Juror 4 became an individual who actually sat on the jury and whom the defendant objected to after his peremptory challenges had been exhausted. Thus, the defendant preserved his argument for appeal pursuant to Trotter.

Having concluded that the defendant preserved his argument for appeal, we turn to the merits. Specifically, we consider whether the trial court abused its discretion in denying the defendant’s cause challenge to Juror 7. See Franqui v. State, 804 So.2d 1185, 1191 (Fla.2001) (“The trial court has the duty to decide if a challenge for cause is proper, and its ruling will be sustained on appeal absent an abuse of discretion.”) (citations omitted). An abuse of discretion in the denial of a cause challenge occurs when the record reveals a reason to doubt the potential juror’s impartiality. Ranglin v. State, 55 So.3d 744, 746 (Fla. 4th DCA 2011) (citation omitted).

We conclude that the trial court erred in denying the defendant’s cause challenge to Juror 7. We base our conclusion on our previous holding and reasoning in Denson v. State, 609 So.2d 627 (Fla. 4th DCA 1992).

In Denson, the trial court denied a defendant’s challenge for cause to a juror who was an assistant state attorney and the supervisor of the assistant state attorney actually trying the case against the defendant. Id. at 628. We held that “it was error to do so, as it not only conflicts with the statutory grounds for disqualification and challenges for cause, but it tends to impair the integrity of the judicial process to believe that a ‘fair and impartial jury’ as required by the constitution could include the attorney for the state in whose name the charges against a defendant are instituted.” Id. We reasoned:

Surprisingly, the statutes governing disqualification do not expressly prohibit attorneys of parties involved in litigation from sitting on juries who will try the particular case. However, section 40.013(3), Florida Statutes (1991) states that “No person interested in any issue to be tried therein shall be a juror in any cause.” Certainly, the attorney representing the state is “interested in any issue to be tried.” Each assistant state attorney upon appointment is required to take an oath that she will faithfully perform the duties of assistant state attorney, section 27.181(2), Florida Statutes (1991), including the prosecution of all criminal informations and indictments. Thus, they are all attorneys for the state, the party in interest in the prosecution of the [defendant]. Each assistant state attorney serves at the pleasure of the elected state attorney in whose name all informations are filed, including the one in this case. The state attorney has the power to hire, fire, and set the salary of each assistant. This is sufficient interest to warrant disqualification.
While the assistant state attorney here stated that she could be a fair juror, that assurance is not determinative of the question, but the trial court must look at all of the evidence before it. Here, the prospective juror was the supervisor of the assistant state attorney trying the case, and one of her duties was to evaluate her performance. Also, as noted above, she was an employee at will of [the] State Attorney ... in whose name all prosecutions are brought....
Not only for the reasons cited above but also for the integrity of the judicial process and the guarantee of the defendant’s constitutional right to trial by a fair and impartial jury, we hold that it is error to fail to excuse from jury service an assistant state attorney from the very office charged with prosecuting a defendant.

Id. at 628-29 (emphasis added; internal citations omitted). Denson’s holding and reasoning apply equally here.

The state, in support of affirmance, raises four arguments: (1) Denson is distinguishable on its facts from the instant case; (2) the Florida Legislature has not enacted a law disqualifying as jurors all assistant state attorneys from the prosecuting office; (3) Juror 7’s responses indicated she could render a verdict based solely on the evidence and the court’s instructions on the law; and (4) the record fails to establish that Juror 4 was an objectionable juror. These arguments are unpersuasive. We address each in turn.

First, we acknowledge that Denson is distinguishable on its facts from the instant case. As the state points out, unlike the potential juror in Denson, Juror 7 had been an assistant state attorney for only two months, was not a supervisor of the prosecutor trying the case, did not know the prosecutor trying the case, and was not employed in the division prosecuting the case. However, those distinguishing facts do not overcome our primary reasoning in Denson, that each assistant state attorney in an office charged with prosecuting a defendant has a sufficient interest to warrant disqualification from that defendant’s jury pursuant to section 40.013(3), Florida Statutes (2012). We stand by that reasoning here.

Second, we acknowledge that the Florida Legislature has not enacted a law disqualifying as jurors all assistant state attorneys from the prosecuting office. However, our holding in Denson, that it is error to fail to excuse from jury service an assistant state attorney from the very office charged with prosecuting a defendant, continues to have force and effect. Cf. Aurora Grp., Ltd. v. Dep’t of Revenue, 487 So.2d 1132, 1133 (Fla. 3d DCA 1986) (“It is ... clear that the common law shall have continuing force and effect where the Legislature has not acted to change it.”).

Third, we acknowledge that Juror 7’s responses, as quoted earlier in this opinion, indicated she could render a verdict based solely on the evidence and the court’s instructions on the law. Such responses generally would satisfy the test for determining juror competency, that is, “whether the juror can lay aside any bias or prejudice and render [a] verdict solely upon the evidence presented and the instructions on the law given ... by the court.” Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). However, as we stated in Denson, “that assurance is not determinative of the question.” 609 So.2d at 628. Like the juror’s assurances in Denson, Juror 7’s assurances do not overcome our conclusion that each assistant state attorney in an office charged with prosecuting a defendant has a sufficient interest to warrant disqualification from that defendant’s jury pursuant to section 40.013(3), Florida Statutes (2012).

Fourth, we acknowledge that the record fails to establish that Juror 4 was an objectionable juror per se. The reasons which the defense provided in support of its request for an additional peremptory challenge, to strike Juror 4 — that he “gave off a lot of negative body language” and “didn’t really have an opinion” on legal issues, etc. — may not have sufficed if such reasons had been provided in an attempt to defeat a Melbourne objection to a peremptory challenge. See Dorsey v. State, 868 So.2d 1192, 1199 (Fla.2003) (“[T]he proponent of a strike based on nonverbal behavior may satisfy its burden of production of a race-neutral reason during the second step of the process described in Melbourne only if the behavior is observed by the trial court or otherwise has record support.”). However, the defense was not attempting to defeat a Melbourne objection. The defense was requesting an additional peremptory challenge. In the latter situation, it is not necessary for the challenging party to explain why the juror was objectionable; rather, the challenging party merely has to identify the juror as objectionable to them. See Shannon v. State, 770 So.2d 714, 716 (Fla. 4th DCA 2000) (“Neither Trotter, nor any other authority cited by the state, requires an explanation as to why the juror who sat was objectionable. Nor should an explanation be required since a peremptory challenge is, by definition, a challenge that need not be supported by any reason, although a party may not use such a challenge in a way that discriminates against a protected minority.”) (citation and quotations omitted). Thus, the defendant met his burden under Trotter merely by identifying Juror 7 as the potential juror whom he sought to strike with the additional peremptory challenge.

In sum, because the trial court erred in denying the defendant’s cause challenge to Juror 7, we reverse the defendant’s conviction and sentence, and remand for a new trial.

Reversed and remanded for a new trial.

WARNER and CIKLIN, JJ, concur.


author: CONNER, J.

text:
    Brock D. MARDIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-338.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.

      Jonathan R. Kaplan of Richard G. Lu-bin, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Brock D. Mardis appeals his conviction for sexual battery on grounds the trial court erred in precluding him from introducing evidence that the victim had financial reasons for falsely testifying against him. We agree with one aspect of Mar-dis’s contention and reverse.

Factual and Procedural Background

The victim (“T.M.”) met Mardis while she was in high school in Kentucky. They became boyfriend and girlfriend. After graduating, she moved to Florida. A few months later, Mardis followed, and they lived together in an apartment rented by T.M. At some point, Mardis was hired by an employer (“the Employer”) to be a handyman or personal assistant. Mardis would work for the Employer daily. The Employer was very generous, even paying off the couple’s credit card debt. Sometimes, Mardis would stay the night at the Employer’s residence, and T.M. would stay with him. Eventually, Mardis wanted to live at the Employer’s house with T.M., but T.M. didn’t want to live there. T.M. and Mardis mutually decided to break off their relationship.

According to T.M.’s testimony at trial, after the breakup, she and Mardis continued to see each other and would occasionally have sex. On the night of the incident, they were together earlier in the evening. Later, while she was sleeping, Mardis called her. Mardis told her that he was coming to see her to discuss some things. T.M. could tell Mardis was intoxicated. T.M. let Mardis into her apartment when he arrived because she didn’t want him driving around drunk. Mardis became sick and threw up in T.M.’s bathroom, so T.M. offered to let him sleep on the couch for the night. T.M. went to bed, and at some point, Mardis came into her bedroom. T.M. told him to leave. Instead of leaving, Mardis got into bed with T.M., told her he wanted to snuggle, and then started to rub her stomach and legs. T.M. told him to stop and leave, and Mardis became angry and started to pace the room. Mardis got on the bed and told T.M. that “if [she] wasn’t going to have sex with him then he was going to have sex with [her] whether [she] liked it or not.” He then forced T.M. to have sex with him and later threatened to commit suicide. T.M. fled and called 911.

After Mardis was arrested, he was interviewed by police. In the interview, Mardis claimed that although he and T.M. were separated, they were still regularly having sex. The night of the alleged assault, he claimed T.M. invited him into bed and never asked him to sleep on the couch. Mardis admitted that T.M. told him to stop touching her when he put his hand down her underwear. Mardis claimed that he thought she was “playing” him because in the past, she would refuse sex and then agree to have sex. However, later in the interview Mardis seemed to admit to assaulting T.M. because T.M. allegedly told his family that he was having a homosexual relationship with the Employer. He then admitted to feeling so ashamed that he threatened to kill himself.

At trial, Mardis testified that he and T.M. began having financial problems when Mardis was not properly managing his diabetes and could not work to pay his part of the rent. Mardis got a job with the Employer as his personal assistant, but he was paid in kind instead of with money, which caused a further strain in their relationship. Once Mardis moved in with the Employer, his sexual relationship with T.M. began to diminish, and they eventually broke off their relationship.

According to Mardis, the night of the alleged assault, Mardis had a couple of glasses of wine and had just taken his insulin. Mardis was driving to T.M.’s apartment to talk to her. When he arrived, T.M. was dressed only in a sports bra and panties, which Mardis thought was intentionally provocative. They talked, watched TV, and then went to bed. Mar-dis again claimed T.M. did not ask him to sleep on the couch. They had sex, and Mardis claimed that T.M. did not seem angry or upset until afterwards, because he did not use a condom.

At trial, Mardis made a proffer in an attempt to introduce evidence of bias on the part of T.M. He proffered testimony from the Employer and others that T.M., through a friend (“S.G.”), attempted to solicit money from the Employer to pay money she needed to cancel the rental agreement for the apartment she shared with Mardis. S.G. became T.M.’s roommate after Mardis moved out. Mardis also attempted to introduce testimony from the Employer about two telephone conversations with S.G. in which S.G. and T.M. were soliciting money to drop the charges against Mardis. Although the Employer admitted on cross-examination that he did not speak directly to T.M. on the phone during either call, he testified he heard T.M. speaking to S.G. in the background and, in essence, participating in what S.G. was saying on the phone. The trial court prohibited introduction of the testimony presented on proffer to the jury. Regarding the solicitation of money to cancel the rental agreement, the trial court concluded the proffered evidence was not relevant to the initial report of rape by T.M. The trial court did not specifically explain why it was not allowing the admission of testimony that T.M. solicited the Employer for money to drop the charges.

Legal Analysis

Mardis argues on appeal that the trial court improperly excluded evidence that T.M. was financially motivated to lie about being sexually battered by him. He attempted to present two lines of evidence to support that theory of defense: evidence that she was seeking money to get out of a rental contract and evidence that she was seeking money to drop the charges. We conclude the trial court did not err in refusing to admit evidence she sought money to get out of the rental agreement, but we conclude the court improperly excluded evidence of her attempts to obtain money in exchange for dropping charges.

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. Harden v. State, 87 So.3d 1243, 1246 (Fla. 4th DCA 2012). The trial court’s discretion, however, is limited by the rules of evidence. Id.

Section 90.608(2), Florida Statutes (2009), allows a party to attack the credibility of a witness by showing that the witness is biased. “Matters that demonstrate bias include prejudice, an interest in the outcome of a case, and any motivation for a witness to testify untruthfully.” Williams v. State, 912 So.2d 66, 68 (Fla. 4th DCA 2005) (citation omitted). “Because liberty is at risk in a criminal case, a defendant is afforded wide latitude to develop the motive behind a witness’s testimony. The ability to expose an improper impetus for a witness’s testimony is an essential component of the right to a jury trial.” Id. (citations omitted). As we wrote in Smith v. State, 98 So.3d 632, 637 (Fla. 4th DCA 2012):

“The ability to expose an improper impetus for a witness’ testimony is an essential component of the right to a jury trial.” Love v. State, 971 So.2d 280, 285 (Fla. 4th DCA 2008) (quoting Jones v. State, 678 So.2d 890, 892 (Fla. 4th DCA 1996)). In Love, the court noted the defendant’s right to confront adverse witnesses, and that “the Sixth Amendment narrows a trial court’s discretion to exclude evidence of a witness’ bias under section 90.403.” Id. at 285-86. “[W]hen cross-examination alone is not sufficient to expose the possibility of improper motives in a witness, a defendant may present other impeachment testimony to demonstrate bias.” Hair v. State, 428 So.2d 760, 762 (Fla. 3d DCA 1983). Extrinsic evidence is admissible for collateral impeachment as “evidence which would discredit a witness by pointing out the witness’s bias, corruption or lack of competency.” Correia v. State, 654 So.2d 952, 954 (Fla. 4th DCA 1995) (citing Dempsey v. Shell Oil Co., 589 So.2d 373, 377 (Fla. 4th DCA 1991)).

We have made clear that a defendant has a “strong interest in discrediting a crucial state’s witness by showing bias, an interest in the outcome, or a possible ulterior motive for his in-court testimony.” Purcell v. State, 735 So.2d 579, 580 (Fla. 4th DCA 1999); Jones v. State, 385 So.2d 132 (Fla. 4th DCA 1980). However, the defense’s right to present such evidence has limits. “Evidence of bias may be inadmissible if it unfairly prejudices the trier of fact against the witness or misleads the trier of fact.” Breedlove v. State, 580 So.2d 605, 609 (Fla. 1991).

We agree with the State that the trial court did not abuse its discretion by denying admission of evidence that T.M. was seeking money to get out of a rental contract. In the trial court’s view “all the testimony, the statements, the depositions” relating to solicitation of money to get out of a rental contract was not relevant to the initial report of rape by T.M. Mardis did not argue at trial or on appeal that T.M.’s statements about the incident changed after her initial report to law enforcement or as she was seeking money.

The solicitation of money to drop charges is another matter. Such evidence supports an inference that there may have been a motivation to fabricate the charge in the first place. The fact that the Employer admitted that he did not speak directly to T.M. during the two telephone conversations when the solicitation was allegedly made does not make the evidence inadmissible hearsay. The Employer testified that he heard T.M. talking in the background, he heard what she said, and absent more rigorous cross-examination by the State showing otherwise, it appears T.M. was participating, if not encouraging, S.G. to do the talking and negotiation for the solicitation. It was for the jury to decide the credibility of the Employer’s testimony. We also conclude the exclusion of the Employer’s testimony regarding the solicitation of money to drop charges was not harmless error. Thus, we reverse and remand for a new trial.

Reversed and remanded for a new trial.

TAYLOR and MAY, JJ., concur.

      . It is unclear from the record whether the trial court concluded the testimony that T.M. solicited money to drop charges was hearsay or overlooked making a ruling on that evidence. During argument on the proffer, the State argued that the two conversations were between S.G. and the Employer; the State did not address the Employer's testimony that he heard T.M. speaking in the background and participating in the conversation.

      . Absent proof T.M. was altering her version of what happened, the evidence presented on proffer is arguably excludable under section 90.403, Florida Statutes (2010) as tending to be misleading, even if the evidence is arguably relevant to support an inference of fabrication. There is a difference between someone fabricating a false charge from the beginning to get money and someone using a legitimate criminal charge as leverage to seek money for the payment of bills.


author: SLEET, Judge.

text:
    Emmanuel TURCOTTE, Appellant, v. Michelle TURCOTTE, Appellee.
    No. 2D12-1474.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 2013.

      Michael Moran of the Law Offices of Michael Moran, Sarasota, for Appellant.
    Susan Hartmann Swartz of the Law Office of Stanley R. Swartz, Bradenton, for Appellee.
   SLEET, Judge.

Emmanuel Turcotte (the Former Husband) challenges a final judgment dissolving his thirteen-year marriage to Michelle Turcotte (the Former Wife). The Former Husband argues that the trial court erred by (1) granting the Former Wife sole parental responsibility of the parties’ two minor children; (2) making an unequal distribution of the parties’ assets and liabilities; and (3) ordering the Former Husband to pay the Former Wife nominal alimony. We affirm on the first two issues without further comment. But, because the trial court failed to include findings of fact in its final judgment supporting its award of nominal alimony to the Former Wife, we reverse the portion of the final judgment awarding the Former Wife nominal alimony and remand for the trial court to provide factual findings as required under section 61.08, Florida Statutes (2008).

The parties in this case were married for thirteen years. The Former Husband and Former Wife once owned a tile business that was quite successful. The Former Husband conducted service visits and the Former Wife managed the retail shop. Shortly after the parties’ relationship began to deteriorate, so did the parties’ business. The Former Wife now works as a sales manager for a tile retailer, and the Former Husband obtained his general contractor’s license.

In awarding the Former Wife nominal alimony the trial court found that although the Former Husband was currently earning less than the Former Wife, the Former Husband’s work history and general contractor’s license evidenced that the Former Husband had the potential to earn significant income. Thus, the trial court awarded the Former Wife nominal alimony of $10 per month. On appeal, the Former Husband argues that the trial court abused its discretion in awarding the Former Wife nominal alimony because it failed to make sufficient factual findings as required under section 61.08.

Generally, a party is entitled to alimony when that party has an actual need for alimony and the other party has the ability to pay. Lin v. Lin, 37 So.3d 941, 942 (Fla. 2d DCA 2010). An award of nominal alimony is appropriate where the recipient spouse would be entitled to alimony but for the paying spouse’s current inability to pay, which is reasonably expected to change in the future. See Lightcap v. Lightcap, 14 So.3d 259, 260 (Fla. 3d DCA 2009) (affirming an award of nominal alimony where the former wife was earning more than the former husband, but the former husband earned more than the former wife over the course of their marriage and had the potential for increased earnings in the future); see also Schmidt v. Schmidt, 997 So.2d 451, 454 (Fla. 2d DCA 2008) (“[W]hen one party is entitled to permanent periodic alimony but the other spouse has no current ability to pay, the trial court should award a nominal sum of permanent periodic alimony, which will give the court jurisdiction to reconsider the award should the parties’ financial circumstances change.”). In determining whether a party is entitled to nominal alimony, the trial court must find that one party has a need for alimony and must weigh the factors enumérated under section 61.08(2), which include:

(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party.
The court may consider any other factor necessary to do equity and justice between the parties.

Further, the trial court’s final judgment awarding or denying alimony must contain findings of fact relative to the factors enumerated in section 61.08(2). See § 61.08(1). “The requirement that the final judgment contain specific findings of fact is to facilitate meaningful appellate review of the trial court’s award ... of alimony.” Williams v. Williams, 923 So.2d 606, 607 (Fla. 2d DCA 2006). Failure to include the requisite findings of fact amounts to reversible error. See Kennedy v. Kennedy, 60 So.3d 466, 468 (Fla. 2d DCA 2011); Esaw v. Esaw, 965 So.2d 1261, 1264 (Fla. 2d DCA 2007).

In this case, the parties’ thirteen-year marriage falls within the “gray area” between short-term and long-term marriages and is not entitled to the presumption for permanent, periodic alimony. See Mobley v. Mobley, 18 So.3d 724, 727 (Fla. 2d DCA 2009) (finding that a ten-year marriage is in the gray area where there is no presumption for or against alimony); Walker v. Walker, 818 So.2d 711, 713 (Fla. 2d DCA 2002) (concluding that a twelve-year marriage falls within the gray area). When a marriage falls within the “gray area,” factual findings are essential to facilitate appellate review. See Kennedy, 60 So.3d at 469; Mobley, 18 So.3d at 728.

Here, the trial court’s final judgment merely states that “[s]uch an [alimony] award is appropriate upon consideration of the factors set forth in [s]ubsection (2) of [section] 61.08.” Otherwise, the final judgment entirely omits findings of fact related to the Former Wife’s need for support; the standard of living established during the marriage; the age and physical and emotional condition of each party; the Former Wife’s financial resources; the contribution of each party to the marriage; and the sources of income available to either party.

Although several of the factors can be established through the record, the record does not adequately establish the factors relating to the Former Wife’s need for alimony. Specifically, the record does not adequately establish the parties’ standard of living during the marriage, the contribution of each party to the marriage, or the sources of income available to the Former Wife. In fact, the record indicates that the Former Wife is performing well at her new job and that her company has recently seen an increase in business. Furthermore, the record does not provide adequate information regarding the Former Wife’s current living expenses and whether her current income is capable of meeting those expenses.

Because it is difficult to discern the facts supporting the Former Wife’s need for alimony, the trial court’s omission of factual findings in its final judgment confounds meaningful appellate review. Accordingly, we reverse the final judgment as it relates to the award of nominal alimony and remand for reconsideration and factual findings as required under section 61.08.

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

NORTHCUTT and VILLANTI, JJ„ Concur.

      . Briefly, in regard to the Former Husband’s second argument, we would encourage both parties to take heed of the following language contained in the trial court's final order under the subsection titled "Debts and Liabilities”: "Each party shall use their respective best efforts to resolve and compromise any indebtedness in connection with their award of the real properties.” (Emphasis added).

      . We note that the record indirectly indicates that the parties’ standard of living during the marriage was substantial, at least at one point in time, but because the trial court did not make a conclusion regarding the standard of living, appellate review has been inhibited. See Ondrejack v. Ondrejack, 839 So.2d 867, 871 (Fla. 4th DCA 2003).


author: VILLANTI, Judge.

text:
    David Gregory Raynard BELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3202.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 2013.

      Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

David Gregory Raynard Bell seeks review of his convictions and sentences for one count of felon in possession of a firearm and one count of felon in possession of ammunition, contending that the dual convictions violate double jeopardy. Applying the “a/any test” for statutory construction set forth in Grappin v. State, 450 So.2d 480 (Fla.1984), and State v. Watts, 462 So.2d 818 (Fla.1985), to the statutory language at issue, we agree that both convictions cannot stand.

Bell was stopped for a traffic violation, and during that stop an officer determined that Bell was driving in violation of certain restrictions on his driver’s license. Pursuant to Bell’s arrest for this violation, the officer searched him and found a speed loader containing six rounds of live ammunition in Bell’s pocket. A subsequent search of the vehicle Bell was driving revealed a loaded handgun in the glove compartment.

The State charged Bell with one count of felon in possession of a firearm based on Bell’s possession of the handgun and one count of felon in possession of ammunition based on Bell’s possession of the ammunition in the speed loader. Bell subsequently pleaded no contest to both charges, and the trial court sentenced him to concurrent terms of twenty-four months in prison. Bell now contends, his pleas notwithstanding, that the dual convictions violate double jeopardy.

Both of Bell’s convictions are for violations of section 790.23(1), Florida Statutes (2011), which provides, in pertinent part:

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:
(a) Convicted of a felony in the courts of this state[.]

(Emphasis added.) The question here is whether the use of the term “any” before the list of prohibited items precludes separate convictions for the simultaneous possession of two separate items.

In Grappin, the defendant was charged with five counts of grand larceny after he stole five separate firearms during a single burglary. 450 So.2d at 481. The applicable statute read:

(b) It is grand theft of the second degree and a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084, if the property stolen is:
3. A firearm.

Id. (quoting § 812.014(2)(b)(3), Fla. Stat. (1981)). Grappin argued that the multiple charges violated double jeopardy, but the supreme court disagreed, reasoning that “the use of the article ‘a’ in reference to ‘a firearm’ in section 812.014(2)(b)3 clearly shows that the legislature intended to make each firearm a separate unit of prosecution.” Id. at 482. The supreme court contrasted the use of the article “a” with the use of the article “any” and pointed out that federal courts had held that the use of “the term ‘any firearm’ is ambiguous with respect to the unit of prosecution.” Id. (citing United States v. Rosenbarger, 536 F.2d 715 (6th Cir.1976); United States v. Kinsley, 518 F.2d 665 (8th Cir.1975)). Referring to the rule of lenity, the court noted that if the legislature does not describe the prohibited conduct without ambiguity, “the ambiguity is to be resolved against turning a single transaction into multiple offenses.” Id. However, when “legislative intent as to punishment is clear, ... the rule of lenity does not apply.” Id. Thus, because the statute under which Grappin was charged clearly referred to “a firearm” as the unit of prosecution, the supreme court reversed the order dismissing the original multi-count complaint and remanded to allow the State to prosecute Grappin on five separate charges.

While the Grappin decision was pending, the defendant in Watts challenged his convictions for two counts of possession of prison-made knives that arose out of a single criminal episode, arguing that the dual convictions were improper. 462 So.2d at 813. However, unlike the statute at issue in Grappin, the statute under which Watts was charged provided in relevant part:

(l)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:
5. Any firearm or weapon of any kind or any explosive substance.
(c) It is unlawful for any inmate of any state correctional institution or any person while upon the grounds of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.

Id. at 814 (quoting § 944.47, Fla. Stat. (1981)). The First District held that Watts could be convicted of only one charge, see Watts v. State, 440 So.2d 505 (Fla. 1st DCA 1983), and the State appealed. Applying the “a/any test” from Grap-pin, the supreme court looked at the applicable statutory language and concluded that the use of the term “any” in section 944.47 rendered the unit of prosecution ambiguous. 462 So.2d at 814. Thus the court held that the State was precluded from convicting Watts of separate offenses for possession of two knives at the same time, and it reversed and remanded for the trial court to vacate one of Watts’ convictions. Id.

Recently, in Boyd v. State, 17 So.3d 812 (Fla. 4th DCA 2009), the Fourth District applied the “a/any test” in the context of a case that is quite similar to Bell’s. There, officers obtained a search warrant for Boyd’s home. Id. at 814. Inside, they found a loaded .357 firearm next to the bed. Id. They also found ammunition for a 9mm firearm on a shelf in a closet. Id. The State charged Boyd with one count of felon in possession of a firearm and a separate count of felon in possession of ammunition under section 790.23(1), Florida Statutes (2005). Id. at 813. Boyd was subsequently convicted of both charges, and on appeal he argued that the dual convictions violated double jeopardy. Id. at 815. In reversing and remanding for the trial court to vacate one of the convictions, the Fourth District “determined that because the word ‘any” precedes the list of items a felon is prohibited from possessing, ‘the prohibition against double jeopardy precludes more than one conviction for the possession at the same time of multiple firearms by a convicted felon.’ ” Id. at 818 (quoting Hill v. State, 711 So.2d 1221, 1224-25 (Fla. 1st DCA 1998)). And while the court recognized that Boyd had not possessed multiple firearms, it noted that because ammunition was also listed after the word “any” in the statute, the simultaneous possession of both a firearm and ammunition could not support separate convictions. Id. See also Strain v. State, 77 So.3d 796, 797 (Fla. 4th DCA 2011) (following Boyd on similar facts relating to convictions for possession of a firearm and separate ammunition).

In this case, as in Boyd and Strain, the applicable statute prohibits Bell’s possession of “any firearm, ammunition, or electric weapon or device.” § 790.23(1). The statute does not define “any”; however, the word “any” is generally defined as “one, some, every, or all without specification.” American Heritage Dictionary of the English Language 81 (4th ed. 2000). Thus, by definition the word “any” is linguistically ambiguous. In the face of this ambiguity, we are required to construe the statute in the manner most favorable to Bell, see § 775.021(1), Fla. Stat. (2011), and doing so prohibits Bell’s dual convictions. While we do not believe that the legislature necessarily intended this result in this type of situation, we note that the legislature has not changed the statutory language in the almost thirty years since Grappin and Watts were decided, and we are powerless to rewrite it ourselves. Therefore, as our sister districts did in Boyd and Strain, we reverse Bell’s dual convictions and remand to the trial court for it to vacate one of the convictions and resentence Bell accordingly.

Reversed and remanded for further proceedings.

NORTHCUTT and SLEET, JJ., Concur.

      . Because a double jeopardy violation constitutes fundamental error, Bell may raise this argument for the first time on appeal. Gisi v. State, 848 So.2d 1278, 1281 (Fla. 2d DCA 2003); Johnson v. State, 747 So.2d 1027, 1028 (Fla. 2d DCA 1999).


author: PER CURIAM.

text:
    Ralph PATINO, Appellant, v. Yolanda PATINO, Appellee.
    No. 4D12-2944.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.

      Chester G. McLeod, Pembroke Pines, for appellant.
    Cynthia J. Dienstag of Cynthia J. Dien-stag, P.A., Miami, for appellee.
   PER CURIAM.

We again remind trial judges of the importance of making explicit findings as to all statutorily mandated factors for the determination of alimony in final judgments, as well as establishing a value (even if zero or de minimus) for all marital assets and liabilities when devising an equitable distribution scheme. Because the trial court failed to do so in this case, we reverse and remand for further proceedings.

We acknowledge the trial court entered a final judgment with findings of fact and conclusions of law, but as we discuss below, we find the final judgment deficient.

Alimony

Section 61.08(2), Florida Statutes (2010), mandates that the trial court evaluate “any relevant economic factors, including standard of living during the marriage, age, earning ability, value of each party’s estate and contribution to the marriage.” Ryan v. Ryan, 927 So.2d 109, 112 (Fla. 4th DCA 2006). The statute provides a specific, non-exhaustive list of factors. Lule v. Lule, 60 So.3d 567, 569 (Fla. 4th DCA 2011). In conducting the required evaluation, the trial court must make findings of fact regarding each listed factor. Ryan, 927 So.2d at 112; Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003) (“A failure to consider all of the mandated factors is reversible error.”) (citation omitted); Koski v. Koski, 98 So.3d 93, 96 (Fla. 4th DCA 2012) (reversing because appellate court could not determine if trial court considered all applicable section 61.08(2) factors).

Here, the trial court explained in the final judgment that it considered six of the ten factors, but no mention was made of the other four factors. Further, the order completely fails to make any factual findings regarding the missing four factors; as a result, the order is insufficient to support an award of alimony. Therefore, we reverse so that the trial court may have an opportunity to make factual findings in accordance with section 61.08(2). Segall v. Segall, 708 So.2d 983, 986-87 (Fla. 4th DCA 1998) (“Although the court’s final judgment tracked the language of section 61.08(2) in discussing the factors it considered, it failed to make findings of fact relative to those factors.”).

Equitable Distribution

Section 61.075, Florida Statutes (2011), provides that in any contested action, specific written findings must be made identifying, valuing, and distributing the marital and non-marital assets and liabilities. “These factual findings required by section 61.075(3) are necessary, in order to facilitate effective appellate review of the trial court’s property distribution scheme.” Fulmer v. Fulmer, 961 So.2d 1081, 1082 (Fla. 1st DCA 2007).

In Whelan v. Whelan, 736 So.2d 732, 733 (Fla. 4th DCA 1999), a final judgment awarded the husband’s interest in marital property to the wife but failed to value some of the assets. This court explained: “Even when no trial transcript is provided to the reviewing court, failure to make sufficient findings regarding value of property and identification of marital assets and debts constitutes reversible error and requires remand for appropriate findings to be made.” Id. (alteration, internal quotation marks, and citation omitted).

Here, the final judgment distributes marital property without stating the value of each asset and distributes marital debts without stating the amount of each liability. Because the final judgment as to equitable distribution is not supported by the required factual findings, it is insufficient, and we reverse so that the trial court may enter an order including these values.

Attorneys’ Fees

Where equitable distribution or alimony is disturbed due to a reversal on appeal, it may be appropriate to reexamine attorneys’ fees to determine if the redistribution of assets and liabilities affects the award. Segall, 708 So.2d at 989 (“[WJhere ... the results of an appeal materially change the parties’ abilities to pay, the issue of attorneys’ fees must be revisited upon remand to the trial court.”). The trial court may determine the parties’ relative needs and ability to pay, but only after the trial court clarifies the equitable distribution scheme and alimony. See Lee v. Lee, 56 So.3d 819, 821 (Fla. 2d DCA 2011). If, after reexamination of the equitable distribution scheme, the trial court redistributes the parties’ assets and liabilities and adjusts incomes through alimony, it may also be necessary to reexamine the parties’ need and ability to pay attorneys’ fees. Therefore, we reverse the award of attorneys’ fees so that the trial court may have such an opportunity.

Reversed and remanded.

DAMOORGIAN, C.J, CIKLIN and CONNER, JJ., concur.

      . The Husband raised four issues on appeal. The Wife recast the Husband’s four issues into seven issues. We affirm, without discussion, Issues I and IV as framed in the initial brief. Because we reverse and remand for lack of written findings regarding alimony and equitable distribution, we deem the recast issues framed by the Wife to be moot.


text:
    Alan Scott McPHERSON, Petitioner, v. Dana Earle McPHERSON, Respondent.
    No. 4D13-3170.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.
    Claire Cubbin, Fort Lauderdale, for petitioner.
    Steven R. Braten, Delray Beach, for respondent.
   PER CURIAM.

We grant this petition for writ of prohibition and quash the trial court’s order denying petitioner Alan Scott McPherson’s motion to disqualify. Disqualification is warranted because the circuit court order takes issue with the facts alleged in the motion to disqualify. Fla. R. Jud. Admin. 2.330(f). Though the motion was legally insufficient, the comments on the validity of the grounds created an independent basis for disqualification. Dominguez v. State, 944 So.2d 1052 (Fla. 4th DCA 2006); City of Hollywood v. Witt, 868 So.2d 1214 (Fla. 4th DCA 2004). As in Dominguez, we withhold issuance of the writ, trusting that the trial court will act in conformity with this opinion.

Petition Granted.

STEVENSON, LEVINE and KLINGENSMITH, JJ., concur.


text:
    Pearly BELGRAVE-SIMMONDS, Petitioner, v. Christopher BELGRAVE, Respondent.
    No. 4D13-1421.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.
    Pearley Belgrave-Simmonds, Boynton Beach, pro se.
    Christopher Belgrave, Miami, pro se.
   PER CURIAM.

Pearly Belgrave-Simmonds petitions this Court for a writ of mandamus following the court’s denial of her motion to disqualify the trial judge. Because the motion was ruled upon approximately three months after it was filed, we grant the petition. See Fla. R. Jud. Admin. 2.330(j) (“The judge shall rule on a motion to disqualify immediately, but no later than thirty days after the service of the motion ... ”)•

The petitioner filed a motion to disqualify the trial judge on November 20, 2012; the motion was not ruled upon until February 23, 2013. The ruling was more than thirty days from the time that the petitioner filed the disqualification motion. Thus, the motion should have been deemed granted. The petitioner may seek an order from the court directing the clerk to reassign the case. See Schisler v. State, 958 So.2d 503, 504 (Fla. 3d DCA 2007) (granting mandamus petition where trial judge failed to rule on motion to disqualify within 30 days of service of the motion as required under Florida Rule of Judicial Administration 2.330 and remanding for the circuit court to enter an order directing the clerk to reassign the case to a different judge); see also Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299 (Fla.2003) (“A motion for judicial disqualification filed pursuant to Florida Rule of Judicial Administration 2.160 [current Rule 2.330] must be ruled on within thirty days following its presentation to the court.”)

We grant the mandamus petition, quash the order on review, and direct the trial court to enter an order directing the clerk to reassign this case to a different judge.

WARNER, CIKLIN and CONNER, JJ., concur.


author: ROTHENBERG, J.

text:
    ASAP SERVICES, LLC, a Florida limited liability company, Appellant, v. SA FLORIDA INTERNATIONAL, LLC, a foreign limited liability company, d/b/a OEC Latin America, Appellee.
    No. 3D13-606.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 2013.

      Koch Parafinczuk & Wolf, P.A., and Justin R. Parafinczuk and Chelsea E. Zeller, Ft.Lauderdale, for appellant.
    Gastesi & Associates, P.A., and Raul Gastesi, Jr., Miami Lakes, for appellee.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   ROTHENBERG, J.

The issue presented in this appeal is whether a pending post-judgment motion to set aside a final default judgment tolls the thirty-day time requirement for serving a motion for attorney’s fees and costs under Florida Rule of Civil Procedure 1.525. As we conclude that the time requirement is not tolled, we affirm the order denying ASAP Services, LLC’s motion for attorneys’ fees and costs.

Rule 1.525 provides that “[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment ... which judgment ... concludes the action as to that party.” In Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 600 (Fla.2006), the Florida Supreme Court noted that in adopting rule 1.525, it “established a bright-line time requirement for motions for costs and attorney fees which the Rules of Givil Procedure had not previously contained.” (emphasis added). In Saia Motor, the Florida Supreme Court determined that the thirty-day time requirement to serve a motion for attorneys’ fees and costs set forth in rule 1.525 applied even though the final judgment “reserve[d] jurisdiction to award the Plaintiff costs and to consider Plaintiffs claim for attorneys’ fees upon a determination of entitlement thereto.” Id. at 599 (alteration in original). The Florida Supreme Court, however, noted that “[f]ol-lowing the adoption of rule 1.525, the time requirement could be enlarged in accord with Florida Rule of Civil Procedure 1.090.... ”/d at 600 n. 3.

Since Saia Motor, the Florida Supreme Court has recognized only one exception to rule 1.525’s bright-line time requirement. In Amerus Life Ins. Co. v. Lait, 2 So.3d 203, 206-07 (Fla.2009), the Florida Supreme Court found that the thirty-day time requirement did not apply when the trial court in its final judgment determined that the party was entitled to an award of attorneys’ fees and costs, but reserved jurisdiction to determine the amount. In determining that rule 1.525 was not applicable, the Florida Supreme Court stated:

Because the purpose for adopting rule 1.525,avoidance of prejudice and unfair surprise, is satisfied once the trial court determines entitlement to attorneys’ fees and costs, the thirty-day time requirement for filing motions for attorneys’ fees and costs under rule 1.525 is no longer necessary. The parties are on notice with the trial court’s ruling on entitlement that the amount of the award will be determined at a later date. Accordingly, we find ... that where entitlement to attorneys’ fees and costs has already been determined by the trial court in its final judgment, rule 1.525, requiring the filing of a motion for fees and costs within thirty days of the final judgment, does not apply. Amerus was therefore not required to file its motion to determine the amount of attorneys’ fees and costs within the time period set by rule 1.525.

Id at 207.

In the instant case, ASAP Services, filed its motion for attorneys’ fees and costs more than thirty days after the final default judgment was filed without seeking an enlargement of time under rule 1.090. Moreover, unlike the final judgment in Amerus Life, the final default judgment in the instant case did not determine ASAP Services’ entitlement to an award of fees and costs. Thus, the sole exception to rule 1.525’s. “bright-line” time requirement is not applicable.

ASAP Services argues that this Court should carve out an additional exception to rule 1.525’s “bright-line” time requirement by concluding that a pending post-judgment motion to set aside a judgment tolls the thirty-day time requirement for serving a motion for attorneys’ fees and costs under Florida Rule of Civil Procedure 1.525. As this Court lacks rule-making authority, we decline ASAP Services’ invitation. Accordingly, we affirm the order under review.

Affirmed.


text:
    Jeffrey FROESCHLE, Appellant, v. Leonore FROESCHLE, Appellee.
    No. 2D12-4924.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 2013.
    Jane H. Grossman, St. Petersburg, for Appellant.
    Peter N. Meros of Meros, Smith, Laz-zara, Brennan & Olney, P.A., St. Peters-burg, for Appellee.
   SLEET, Judge.

Jeffrey Froeschle, the former husband, appeals a postdissolution order granting his supplemental petition for modification of alimony and support. Because we are able to determine from the record that the trial court considered the applicable factors in section 61.08(2), Florida Statutes (2011), we affirm the portion of the order granting a downward modification of the former husband’s alimony obligation but denying the termination of alimony without further comment. We reverse, however, the portion of the order that requires the former husband to maintain a $250,000 life insurance policy to secure the payment of alimony and the portion of the order that contains a scrivener’s error regarding Leonore Froeschle’s, the former wife, current monthly net income.

The parties’ twenty-eight year marriage was dissolved in 2006. They entered into a marital settlement agreement, which the trial court ratified in 2007. The agreement contained a provision that required the former husband to maintain a $500,000 life insurance policy to secure his alimony obligation to the former wife. Prior to the hearing on the former husband’s petition, the parties agreed to reduce the policy amount to $132,000. The court ratified this agreement and entered an agreed order concerning the life insurance policy in February 2012.

During the bifurcated hearing on the petition in April and July 2012, the former husband offered evidence that the $500,000 life insurance policy was terminated when he resigned from his law firm. Additionally, the former husband testified that he obtained a $132,000 life insurance policy through his current law firm. There was no other evidence offered to support his request to terminate the life insurance requirement.

During closing arguments, the former wife’s attorney conceded that the $132,000 life insurance policy was sufficient to cover the former husband’s alimony obligation. Inexplicably, however, the court changed the life insurance requirement to $250,000 in the order. We reverse this portion of the order because there was no evidence adduced at the hearing regarding whether the former husband could afford the required life insurance policy. See Milo v. Milo, 718 So.2d 343, 345 (Fla. 2d DCA 1998) (“In imposing such a requirement, the trial court should consider its financial impact on the payor.”); see also Kremer v. Kremer, 595 So.2d 214, 218 (Fla. 2d DCA 1992) (holding that a trial court must consider the financial impact of imposing a life insurance requirement upon the obligated spouse). Moreover, the trial court did not make a finding that a $250,000 life insurance policy is necessary to secure the alimony obligation. See Plichta v. Plichta, 899 So.2d 1283, 1287 (Fla. 2d DCA 2005) (“[I]n determining whether to secure support awards, the trial court should consider the need for such insurance.”).

On remand, the trial court shall amend the life insurance requirement in the order to reflect the $132,000 life insurance policy agreed to by the parties. Also, the trial court shall correct the order to reflect the former wife’s current net monthly income of $4,937.22 to which the parties likewise stipulated.

Affirmed in part, reversed in part, and remanded.

KELLY and VILLANTI, JJ„ Concur.


text:
    Juan E. RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2152.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 2013.

      Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed without prejudice to any right Ramirez may have to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 8.850.

SILBERMAN, VILLANTI, and WALLACE, JJ., Concur.


text:
    Anthony FRANCEL, Appellant, v. Cheryl DOUMA, f/k/a Cheryl Francel, Appellee.
    No. 2D11-6277.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 2013.
    Anthony Francel, pro se.
    Cheryl Douma, pro se.
   VILLANTI, Judge.

Anthony Francel (the Father) appeals an order that granted a motion to enforce child support filed by Cheryl Douma (the Mother) and the judgment entered against him for back child support. We affirm the trial court’s ruling on the Mother’s motion and the resulting judgment without comment.

The Father also raises several issues in this appeal concerning a “Supplemental Petition for Modification of Child Support” he filed on May 12, 2009. This petition was set for hearing several times, but it has never actually been heard, and “[w]e cannot address on appeal an issue not ruled upon by the circuit court.” Miller v. Miller, 709 So.2d 644, 645 (Fla. 2d DCA 1998) (citing McGurn v. Scott, 596 So.2d 1042, 1043 (Fla.1992), and Sierra v. Pub. Health Trust of Dade Cnty., 661 So.2d 1296 (Fla. 3d DCA 1995)). Hence, we do not address the issues raised by the Father relating to the merits of his petition.

However, given the length of time that the Father’s petition has been pending, on remand the circuit court should schedule an evidentiary hearing and enter an order ruling on its merits as soon as possible.

Affirmed and remanded with instructions.

SILBERMAN and WALLACE, JJ., Concur.


text:
    Lloyd A. NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-6273.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 2013.
    Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
   PER CURIAM.

Lloyd A. Neal appeals the summary denial of his motion filed under Florida Rule of Criminal Procedure 3.850. The post-conviction court denied the motion on the merits when Mr. Neal failed to timely amend his motion to conform to the page limitations in rule 3.850(c). The court was within its discretion to deny the motion on this basis, and we affirm the postconviction court’s order. See Herron v. State, 34 So.3d 206, 206-07 (Fla. 2d DCA 2010) (directing the posteonviction court to enter a final order disposing of defendant’s claims if defendant failed to file an amended rule 3.850 motion); cf. Adams v. State, 104 So.3d 1141, 1142 (Fla. 2d DCA 2012) (excluding attached exhibits from the trial record in calculating rule 3.850(c)’s page limit).

However, this appeal was filed after Neal’s postconviction attorney filed a petition for belated appeal in this court. The same circumstances that excused the timely filing of the appeal appear to have affected Mr. Neal’s ability to amend his motion in a timely manner, and those circumstances were never brought to the postconviction court’s attention by Mr. Neal’s counsel. Therefore, our affirmance is without prejudice to permit Mr. Neal to file an amended motion in conformance with rule 3.850(c) within thirty days of the date that this opinion becomes final. The amended motion shall not be considered untimely or successive.

Affirmed.

KELLY, CRENSHAW, and BLACK, JJ., Concur.