author: GRIFFIN, J.

text:
    Anthony Michael MIGLIACCIO, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-742.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2014.

      Anthony Michael Migliaccio, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Anthony Michael Migliaccio [“Migliac-cio”] appeals his conviction, after a jury trial, on one of two charged counts of battery on a law enforcement officer. The charge arose out of an incident at the St. Johns county jail. Defendant has a history of mental health issues and treatment and a record of miscellaneous low-level prior offenses. At the time, he was serving a 364-day jail sentence for felony battery.

On July 10, 2012, deputies were escorting Migliaccio to have his hair cut as required by jail rules (hair off the collar, off the ears) before moving the following day to the jail annex where sentenced inmates were housed. He did not want a haircut, however. He was offended that the barber was not a “licensed professional,” and he claimed that having this hair cut would be a violation of his particular understanding of his Catholic faith. At trial, he testified that, when he balked, as the corrections officers led him in the direction of the barber chair, one of the guards, John Hag-berg [“Hagberg”], grabbed him by the arm, and he pushed Hagberg “in self-defense” (“I grabbed him by whatever he was wearing” and I “tried to ... throw him.”) For his part, the deputy testified that although verbally defiant, Migliaccio got as far as the barber chair but then jumped up, struck him with a “double fist kind of push-punch to the chest” and ran away.

Migliaccio elected to represent himself at trial with stand-by counsel, and then he filed a pro se notice of appeal and brief. Although the brief is hard to decipher, the trial transcript shows him to be articulate and resourceful. Nevertheless, the testimony at trial — even his own trial testimony alone — would be sufficient to convict him. The jury could find that Hagberg was engaged in the lawful performance of a legal duty and that the battery was not justified.

AFFIRMED.

PALMER and COHEN, JJ., concur.

      . The trial court ordered Migliaccio to be evaluated by a mental health professional to determine whether he was mentally competent to be tried. The psychologist who evaluated him reported that Migliaccio told him that he had previously been diagnosed as "bipolar.” The psychologist diagnosed a nonspecific depressive disorder, but found that he was competent.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    R.A.J., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-626.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2014.
    Robert Wesley, Public Defender, and Lauren Senningei’, Assistant Public Defender, Kissimmee, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

R.A.J. petitions for a writ of habeas corpus, arguing that she should be immediately released from home detention with GPS monitoring based upon her reading of section 985.439(4), Florida Statutes. That section details some of the sanctions that may be imposed upon a juvenile after a finding that the child has violated conditions of probation. Subsection (4)(a) provides that the court may place the child “in a consequence unit ... for up to 5 days for a first violation and up to 15 days for a second or subsequent violation.” Subsection (4)(b) provides that the court may place the child on home detention with electronic monitoring if a residential consequence unit is not available. Petitioner argues that the time limitations from subsection (4)(a) should also apply to the home detention sanction authorized by subsection (4)(b). We agree with the State that Petitioner’s argument is inconsistent with the plain language of the statute — which unambiguously authorizes the sanction of home detention with electronic monitoring without the time limitations required for a residential consequence unit. Cf. Beach v. Great W. Bank, 692 So.2d 146, 152 (Fla. 1997) (“[W]hen the legislature has used a term ... in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded.” (quoting Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995))).

PETITION DENIED.

TORPY, C.J., LAWSON and COHEN, JJ., concur.


text:
    TIMUCUAN PROPERTIES, INC., Appellant, v. The BANK OF NEW YORK MELLON, etc., et al., Appellees.
    No. 5D13-2020.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2014.
    Robert Saylor, of Timucuan Properties, Inc., West Palm Beach, for Appellant.
    Brian L. Rosaler and Mary Pascal, of Popkin & Rosaler, P.A., Deerfield Beach, for Appellee Bank of New York Mellon.
    No Appearance for other Appellees.
   PER CURIAM.

AFFIRMED. See Intermediary Fin. Corp. v. McKay, 111 So. 531, 531 (Fla. 1927) (“This court is committed to the doctrine that a purchaser pendente lite is not entitled to intervene.”); see also Peninsular Naval Stores Co. v. Cox, 49 So. 191, 194 (Fla.1909); SADCO, Inc. v. Countrywide Funding, Inc., 680 So.2d 1072 (Fla. 3d DCA 1996); Andresix Corp. v. Peoples Downtown Nat’l Bank, 419 So.2d 1107 (Fla. 3d DCA 1982).

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


text:
    Maria T. NEVILLE, Appellant, v. J.C. PENNEY CORP., Wellington Green Mall, Chartis Insurance Company and Chartis, Appellees.
    No. 1D13-5156.
    District Court of Appeal of Florida, First District.
    April 2, 2014.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Richard B. Robbins and Theodore N. Goldstein of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appel-lees.
   PER CURIAM.

In this matter’s second appearance before this Court, Claimant argues the Judge of Compensation Claims (JCC) erred in compensating her attorney for fewer hours than those claimed in the verified petition for attorney’s fees by failing to explain or indicate as to why the time was reduced. For the reasons that follow, we reverse.

This case made its first appearance when Claimant sought review of an order denying entitlement to an Employer/Carrier (E/C)-paid fee based upon the filing of two petitions for benefits. See Neville v. JC Penney Corp., 130 So.3d 235 (Fla. 1st DCA 2013). This Court affirmed the denial of an E/C-paid fee for a July 2009 petition, but held Claimant entitled to a fee from the E/C for success on the November 2009 petition. Id. The matter was reversed and remanded for a determination of the amount of that fee. Id. at 236.

On remand, Claimant filed a verified petition seeking a fee based on 50.8 hours spent securing the dental care at issue and 66.3 hours for establishing entitlement to that fee, rounding the total request off to 116 hours. The E/C countered with a verified response, positing that 81.4 hours were reasonable for securing the dental care and 10 hours were reasonable for establishing entitlement to the fee.

The JCC found simply that “[u]pon consideration of the time claimed and objections to certain entries outlined in the 9/6/18 Verified Response,” 37.55 hours were reasonable for securing the dental care and 22.6 hours were reasonable for proving entitlement to the fee. No explanation was provided by the JCC in the final order detailing what objections were accepted or rejected. Claimant appropriately filed a motion for rehearing suggesting that the findings were insufficient. Nevertheless, the JCC declined to elaborate further, advising at the motion hearing that she determined what she thought was a proper fee based upon the number of hours she found were reasonable to secure the benefits.

The reasonableness of an attorney’s fee award is reviewed for competent substantial record evidence in support of the award. See Minerd v. Walgreens, 962 So.2d 955, 956 (Fla. 1st DCA 2007). Over time, this Court has provided guidance on what is expected of JCCs in awarding E/C-paid fees. In Levine, Busch, Schnepper & Stein, P.A. v. Winn Dixie Stores, Inc., 695 So.2d 798, 799-800 (Fla. 1st DCA 1997), because the JCC made no specific findings as to why he reduced the guideline statutory fee, this Court reversed and remanded the matter with instructions to the JCC to “determine on remand the fee to which Levine, Busch is entitled, and articulate his specific findings in the final order.” Even when this Court has determined that a fee less than the guideline statutory fee was reasonable, the Court was “nonetheless constrained to reverse the order because the judge failed to make adequate factual findings on each of the statutory factors enumerated in section 440.34(1)[, Florida Statutes].” Wheeler v. S. Fla. State Hosp., 752 So.2d 1285, 1286 (Fla. 1st DCA 2000).

The attorney fee awarded must be based on record evidence. In Smith v. U.S. Sugar Corp., 624 So.2d 315, 319 (Fla. 1st DCA 1993), this Court reversed the JCC’s determination that a reasonable hourly rate was $150 per hour when the only testimony was that $200 per hour was reasonable. In Feinberg v. Miami-Dade County, 788 So.2d 417 (Fla. 1st DCA 2001), even though “the JCC considered the various statutory factors of section 440.34, Florida Statutes (1997), there is no indication of how the award of $13,440.00 was derived.” On remand, the JCC was instructed to clearly articulate her findings. Id. In Sanchez v. Woenier Management, Inc., 867 So.2d 1173, 1174 (Fla. 1st DCA 2004), this Court determined the JCC erred when he reduced the claimant’s attorney’s hours by almost half, noting the “decreases appear to rest entirely upon the JCC’s subjective belief and personal experience of what to him seemed reasonable for the amount of time represented by counsel in serving his client.”

In Marshall v. City of Miami, Department of Conventions & Marinas, 920 So.2d 107, 108 (Fla. 1st DCA 2006), this Court determined the JCC erred in finding $150 per hour was a reasonable hourly rate when the testimony supported only a finding that $275 per hour was reasonable, and the JCC further erred in deducting 20 hours for unspecified reasons. Finally, in Minerd, 962 So.2d at 956, this Court reversed the JCC’s finding that $200 per hour was reasonable when the claimant’s attorney testified that a reasonable rate was $265 per hour and the E/C’s attorney testified that $225 per hour was reasonable. The Minerd Court also determined that competent substantial evidence did not support the JCC’s reduction of the claimant’s attorney’s time for establishing entitlement to an attorney’s fee to 18 hours. Id. at 956-57. The Minerd Court explained that the JCC made reductions he deemed appropriate as the E/C failed to dispute any entries or offer any differing evidence. Id. at 957. As a result, it was determined that “informed appellate review is impossible here because it appears that the JCC’s reductions and deletions were based solely on the JCC’s own subjective and personal experience of what he deemed reasonable and not on competent, substantial evidence.” Id.

Here, the JCC did review the various factors and made general findings. She did not, however, explain the specific basis for reducing Claimant’s attorney’s hours from 116 to 60.15. Accordingly, because it is impossible to ascertain how the JCC arrived at the specific fee awarded, the order is reversed and remanded for further proceedings, with directions that the JCC make findings that will allow meaningful appellate review.

WOLF, PADOVANO, and RAY, JJ„ concur.


author: CLARK, J.

text:
    Marc COHEN, Appellant, v. Donna B. CORBITT, Appellee.
    No. 1D13-0684.
    District Court of Appeal of Florida, First District.
    April 2, 2014.

      Samuel S. Jacobson of Bledsoe, Jacobson, Schmidt, Wright & Wilkinson, Jacksonville, for Appellant.
    Donald E. Brown and Corrine A. Bylund of Zisser, Brown, Nowlis & Carey, P.A., Jacksonville, for Appellee.
   CLARK, J.

Marc Cohen appeals the final judgment for the plaintiff below and awarding her $53,153,199 plus costs and interest at the statutory rate. Because the evidence presented at the final hearing did not support the cause of action for fraudulent misrepresentation or any other legal ground upon which the judgment could be based, the judgment is reversed and this cause remanded for entry of judgment for Appellant.

The facts were undisputed that the parties jointly purchased real property in November, 2004. Appellee contributed the down payment on the property using the proceeds from her previous residence, amounting to approximately $111,000.00. The parties paid the remainder of the purchase price by obtaining a twenty year mortgage in both their names. Both parties’ names appeared on the deed. The parties were never married to each other. Appellee used the property as her residence while Appellant maintained other residences.

For the first four years after the purchase, Appellant paid the mortgage payments in their entirety. In July, 2008, Appellant ceased making the mortgage payments and for the next four years, Appellee paid the mortgage payments with no contribution from Appellant. The property was sold in 2012. Immediately prior to the sale of the home, Appellant executed a quitclaim deed to Appellee and Appellee retained all of the proceeds from the sale of the residence, approximately $107,000.00.

Appellee brought suit against Appellant in circuit court in 2008, seeking monetary damages to recover the funds she expended to pay the mortgage payments. The complaint alleged four causes of action, including breach of contract and fraudulent misrepresentation. By the time the final judgment was entered in January, 2013, Appellee had conceded and abandoned all but the fraudulent misrepresentation claim.

Based on the testimony presented at the final hearing, the trial court found that both parties had a legal obligation to the lender to pay the mortgage payments. The court further found, based on Appel-lee’s testimony, that Appellant had orally “agreed to pay the mortgage payments.” It was undisputed that there was no writing signed by Appellant to this effect. The only written documents were the note, the mortgage, and the deed to the property, all reflecting joint ownership and joint obligation for the debt. Without specifying the cause of action upon which the judgment was based, but with only Count I of the complaint (fraudulent misrepresentation) surviving at the time the final judgment was entered, the trial court entered judgment for Appellee (the plaintiff) as described above.

The parties correctly conceded, prior to the conclusion of the trial proceedings, that section 725.01, Florida Statutes, bars lawsuits upon promises to pay another’s debt and agreements which are not to be performed within one year, unless the agreement is in writing and signed by the party to be charged. Accordingly, Appel-lee and the trial court relied on her allegation of fraudulent misrepresentation which induced her to incur debt under the mortgage, an amount of debt both parties “understood” she could not afford alone.

The trial court’s judgment does not contain findings of fact corresponding

to the elements of fraudulent misrepresentation. These elements are: “(1) a false statement concerning a material fact; (2) the representor’s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation.” Butler v. Yusem, 44 So.3d 102, 105 (Fla.2010). The trial court did not specify a false statement upon which the judgment was based. Appellee argued at the final hearing, and in this appeal, that Appellant’s false statement that he was not married induced Appellee to enter into the mortgage and incur the injury of excessive debt in reliance on this false statement. However, the written documents — the note, mortgage, and deed — are not dependent upon either party’s marital status. Accordingly, even if Appellant did make a false statement regarding his marital status, it was not material to the written documents obligating Appellee to pay the mortgage and conferring a property interest in the real property upon Appellee. In addition, the facts adduced at the final hearing did not establish any financial injury to Appellee resulting from her reliance on Appellant’s supposed marital status. Each party paid four years’ worth of mortgage payments and when the property was sold, Appellee retained the proceeds, recouping well over half the amount of the down payment she supplied for the initial purchase.

The trial court made a finding of fact that “Dr. Cohen agreed to make the mortgage payments.” If the trial court concluded that this was the false statement which induced Appellee’s reliance and action incurring the debt, the oral statement was contrary to the written terms of the mortgage and note and cannot support an action in tort for fraudulent misrepresentation. The law is settled that “an action for damages cannot be maintained on the ground of fraud in refusing to perform the contract, even though the defendant at the time of the making of the oral contract may have had no intention of performing it.” LynkUs Commc’ns, Inv. v. WebMD Corp., 965 So.2d 1161, 1166 (Fla. 2d DCA 2007). Appellee cannot avoid the statute of frauds simply by couching her claim in terms of the tort of fraudulent misrepresentation rather than breach of an oral contract. See India Am. Trading, Co., Inc. v. White, 896 So.2d 859 (Fla. 3d DCA 2005).

Finally, as noted above, the evidence adduced at the final hearing does not establish any monetary damage to Appellee. Her payment of the mortgage for four years followed four years of payments by Appellant. As for the down payment Ap-pellee paid at the time of the purchase, Appellant transferred his ownership interest to her prior to the sale, entitling Appel-lee to retain the entire proceeds from the sale of the property. Assuming equal responsibility for both parties, the evidence was undisputed that Appellee recovered not only the portion of the down payment she paid on Appellant’s behalf, but nearly all of her own portion as well.

Because there is no theory or principle of law in the record which would support the final judgment, the final judgment is REVERSED and this cause remanded for entry of judgment in favor of Appellant, the defendant in the trial proceedings.

WETHERELL and RAY, JJ., concur.


text:
    Erlin RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5446.
    District Court of Appeal of Florida, First District.
    April 2, 2014.
    Opinion filed April 2, 2014.
    Luke Newman of Luke Newman, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was charged with driving while under the influence of alcohol causing serious bodily injury and property damage, and with driving without a valid driver’s license. Appellant is from Honduras and speaks very broken English, and he was provided with an interpreter at the pretrial hearing, jury selection, and the trial, but not at the sentencing hearing. At sentencing, defense counsel told the court that their interpreter was not able to come, and did not ask for a replacement. The state agrees with appellant that the trial court committed fundamental error by sentencing appellant without the aid of an interpreter, as the courts have similarly concluded in Monte v. State, 443 So.2d 339 (Fla. 2d DCA 1983), Quintana v. State, 520 So.2d 313 (Fla. 2d DCA 1988); and Benitez v. State, 57 So.3d 939 (Fla. 3d DCA 2011). “[W]e hold that it was reversible error in this case for the court to fail to appoint an interpreter at the sentencing proceeding even though defense counsel failed to raise the issue at that hearing. Once the trial court agreed [appellant] had a language problem and appointed an interpreter for the plea hearing, fundamental fairness ... requires an interpreter be appointed for sentencing as well[.]” Monte, 443 So.2d at 342.

We agree and reverse appellant’s sentence and remand for resentencing with the assistance of a qualified interpreter.

Reversed and remanded for further proceedings.

PADOVANO, CLARK, and SWANSON, JJ., concur.


text:
    Alva W. FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5661.
    District Court of Appeal of Florida, First District.
    April 2, 2014.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Alva W. Fleming appeals his judgment of conviction and sentences for attempted first degree murder, possession of a firearm by a convicted felon, and solicitation to commit a capital felony. We find no merit in the arguments raised on appeal regarding the judgment of conviction. Also, with regard to the mandatory minimum sentence for Count II (possession of a firearm by a convicted felon) imposed consecutively to Count I (attempted first degree murder), such a consecutive sentence is mandated. See Walton v. State, 106 So.3d 522 (Fla. 1st DCA 2013), and Smart v. State, 114 So.3d 1048 (Fla. 1st DCA 2013).

AFFIRMED.

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


text:
    DEUTSCHE BANK NATIONAL TRUST CO., Appellant, v. Mark Christian GOMBERT, as Co-Trustee of the Christian W. Gombert Family Trust Dated January 23, 2001, Gregory Dean Gombert as Co-Trustee of the Christian W. Gombert Family Trust Dated January 23, 2001, Christy Christine Gombert a/k/a Christy C. Gombert, Russell W. Gombert, Paul Jason Gombert, Tammy D. Gombert and Eric Stephen Gombert, et al., Appellees.
    No. 1D13-2563.
    District Court of Appeal of Florida, First District.
    April 2, 2014.

      Kimberly N. Hopkins of Shapiro, Fish-man & Gaché, LLP, Tampa, for Appellant.
    No appearance, for Appellees.
   PER CURIAM.

The trial court dismissed the foreclosure complaint of appellant Deutsche Bank National Trust Company because, as the final order states, “there has been no record activity for a year as of December 19, [2012].” However, appellant had moved to amend the complaint on November 1, 2012, and the trial court granted that amendment on the same date. The motion to amend was a sufficient filing to avoid dismissal for failure to prosecute under rule 1.420(e), Florida Rules of Civil Procedure. Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786 (Fla.2011).

The final order of dismissal is REVERSED, and the cause is REMANDED for further proceedings consistent with this opinion.

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


author: EVANDER, J.

text:
    Sandra Lee ALBANESE, Appellant, v. Maxwell ALBANESE, Appellee.
    No. 5D13-4469.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2014.
    Billie Jo Hopwood, of Platt Hopwood Attorneys At Law PLLC, Melbourne, for Appellant.
    Richard J. Feinberg, Indialantic, for Ap-pellee.
   EVANDER, J.

Sandra Albanese (Wife) appeals from a temporary order granting Maxwell Alba-nese (Husband) permission to have the parties’ minor children relocate with him to the New York City area. Wife argues that not only does the trial court’s order fail to include a finding that relocation would be in the children’s best interest, but that there was a lack of competent, substantial evidence to support such a finding. We agree and, accordingly, reverse.

The parties separated on or about February 1, 2013, at which time Husband filed his petition for dissolution of marriage. On April 17, 2013, the trial court entered an agreed order providing for the parties to have equal time sharing with their two sons (ages six and five). Three months later, Husband filed an amended petition for dissolution of marriage seeking, inter alia, permission to relocate his residence with the parties’ minor children to the New York City area. In support of his request, Husband alleged that he was a student in good standing at the Touro College of Pharmacy in New York City and that he desired to return to school for the semester commencing in January 2014. Husband further alleged that the relocation would be in the best interest of the minor children because he would “be able to provide for all of the minor children’s needs and furnish an excellent elementary education for the children” and would “be able to complete his own pharmaceutical education, thereby greatly increasing his earning capacity which would translate to significant economic benefits for the minor children.”

Wife filed a detañed written objection to Husband’s relocation request and the matter proceeded to a temporary hearing on November 12, 2013.

Both parties testified at the hearing. Suffice it to say, their testimony conflicted on numerous points. The facts as set forth below are taken almost exclusively from Husband’s testimony.

In August 2012, Husband moved to New York City to attend Touro College of Pharmacy. Husband successfully completed the first semester of his studies before returning to Florida in February 2013 “to attend to his children’s needs.” He desired to return to Touro to complete the school’s pharmacy program. His anticipated graduation date would be May 2017. Husband’s plan was to live with his two sons in a single-family house in a middle-class neighborhood in East Rutherford, New Jersey. Husband testified that the children would attend Lincoln Elementary School and that he had spoken with the principal once and “by e-mail with the prospective teachers once.” He had also “looked at” the school online. Husband did not intend to obtain employment while attending Touro so that he would be able to properly care for the chüdren. His mother, who lived near the parties’ marital residence in Brevard County, had agreed to move to New Jersey to assist Husband, when needed, in caring for the children. Notwithstanding his intent to not seek employment, Husband advised the trial court that he would be willing to pay all transportation costs for the children to spend time with their mother in the summer, during spring and winter school breaks, and on extended holiday weekends. His testimony reflected that he would pay for his living expenses, and the children’s transportation costs, from his $720/month VA benefits and his student loan proceeds. Husband further believed that relocation was necessary to improve his economic circumstances.

Husband went on to testify that the children could experience museums, historical monuments, theaters, plays, shows, parks, and major sporting events in the New York City area. Although Husband opined that he believed relocation would be in the best interest of the children, he provided little or no evidence as to the children’s educational, recreational, and cultural opportunities in Florida. For example, there was no evidence reflecting that the children would receive a better education in East Rutherford, New Jersey than they had, or would receive in Brevard County.

Additionally, Husband provided little or no evidence as to the strength of the bond between Wife and the children and the potential emotional effect on the children from the proposed relocation. As a result, Wife’s testimony on these points was largely uncontroverted. Wife testified that she had a close, loving relationship with her sons, and that relocation would cause the children great emotional harm.

In addition to receiving live testimony from the parties and Wife’s adult daughter, the parties agreed that the trial court could consider the custodial evaluation report prepared by Dr. Robert Lehton. It would be an understatement to say that Dr. Lehton was critical of both parties’ behavior. Indeed, he opined that their divorce was “the most adversarial, chaotic, and destructive process between a couple that [he had] participated as an examiner in the last 43 years.” Dr. Lehton found that neither parent was capable of demonstrating the disposition to honor a time-sharing schedule, that the environments in both households was “chaotic,” and that both parents lacked veracity in their statements and history. Dr. Lehton did conclude that Husband was more likely to provide structure in the children’s lives and less likely to delegate parenting responsibilities to third persons. Dr. Lehton believed that one of the two children had a closer relationship with Husband than Wife, but nevertheless recommended an equal time-sharing arrangement. He also, with little elaboration, recommended against relocation of the children at the present time.

On December 4, 2013, the trial court entered an order granting Husband’s request to temporarily relocate with the minor children. In its order, the trial court found that the children clearly had a bond with each of their parents, but that the children had been affected negatively by their parents’ combative and adversarial divorce action. The trial court acknowledged that relocation would change the relationship between the boys and their mother but found that Husband was likely to comply with a substitute time-sharing arrangement. In granting Husband’s relocation request, the court stated:

The relocation, if permitted, will allow the father to continue his interrupted education. He has about three and a half years more to complete his pharmacy degree. Upon completion, his earning capacity will be greatly enhanced. The father’s school schedule would be similar to the children’s school schedule, which would allow him to spend significant time assisting them with their homework, and provide the children with a consistent routine in their household.
The undisputed evidence indicates that the Father began attending pharmacy school in New York in the fall of 2012. He returned home to Florida on several occasions in the fall, and then took a leave of absence from the school for the next term based on the turmoil that was happening in the parties’ marriage and in their home. He testified that he desired to relocate so that he could resume his studies, and that he desired to have the boys relocate with him so that he can be available to them on a daily basis. The court finds that this relocation is sought in good faith.

The trial court did acknowledge that Dr. Lehton did not recommend relocation and that it “ha[d] concern regarding the emotional health of these children, and their continued relationship with both of these parties.” Notably, the order was devoid of any finding that relocation would be in the best interest of the children.

Section 61.13001(6)(b), Florida Statutes (2013), authorizes a trial court to grant a temporary order permitting relocation of a child. In the case of a contested relocation, the Legislature has determined that “[a] presumption in favor of or against a request to relocate with the child does not arise if a parent or other person seeks to relocate and the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent or other person.” § 61.13001(7), Fla. Stat. (2013). In reaching its decision regarding a proposed temporary or permanent relocation, the court is required to consider the following:

(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.
(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.
(d) The child’s preference, taking into consideration the age and maturity of the child.
(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
(f) The reasons each parent or other person is seeking or opposing the relocation.
(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.
(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(l)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.

Id. The parent wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. § 61.13001(8), Fla. Stat. (2013).

In the instant case, we conclude that the trial court erred in granting Husband’s relocation request because of the lack of competent, substantial evidence to support a finding that relocation was in the children’s best interest. See Eckert v. Eckert, 107 So.3d 1235, 1237-38 (Fla. 4th DCA 2013) (trial court’s decision on relocation request will be affirmed only if statutory findings are supported by substantial competent evidence; trial court abused its discretion in permitting relocation where there was no competent substantial evidence to support it); Muller v. Muller, 964 So.2d 732, 734-35 (Fla. 3d DCA 2007) (trial court abused its discretion in granting relocation request where record was devoid of corroborating facts supporting nearly every subsection of relocation statute). We find it significant that the primary reason(s) given by the trial court for its decision is that Husband will be able to continue his interrupted education and, if successful in attaining a pharmacy degree, will have a greatly enhanced earning capacity. While we do not disagree with this finding by the trial court, we would observe that any financial benefit to the children would not accrue for at least three and one-half years and that Husband already has two bachelor’s degrees — one in molecular microbiology and one in international finance and economics — that have apparently not resulted in a “high-paying” salary.

While the evidence might have supported a finding that a move to the New York City area was in Husband’s best interest, it was insufficient to establish that it was in the children’s best interest. Berrebbi v. Clarke, 870 So.2d 172, 173 (Fla. 2d DCA 2004) (relocation statute directs court to consider best interests of child, not just petitioning parent; error to permit relocation where move would only be in best interest of parent). The evidence was undisputed that Wife had a strong bond with her sons; yet, the trial court made no finding regarding the feasibility of preserving the relationship between Wife and her sons through substitute time-sharing arrangements. Additionally, Wife’s testimony that the boys would suffer emotional harm from the relocation was not addressed by the trial court other than to acknowledge its concerns regarding the emotional health of the children. Furthermore, there was no finding (and little or no evidence) that the relocation would enhance the general quality of life or educational opportunities for the minor children.

Because Husband failed to present competent, substantial evidence that the proposed relocation was in the best interest of the parties’ two minor children, reversal is required.

REVERSED.

COHEN and WALLIS, JJ., concur.

      . The two children had resided their entire lives in Brevard County, Florida.

      . At the time of the hearing, Husband already had approximately $130,000 to $150,000 in student loans.

      . Wife was granted time sharing with the boys in Florida for their spring break and all but two weeks during their summer break. Husband would be responsible for the accompanying costs of transportation.

      . At the time of the hearing, Husband was working part-time as a certified pharmacy technician earning $9.40/hour.


text:
    Valerie K. FAIRCHILD, Appellant/Cross-Appellee, v. Patrick G. FAIRCHILD, Appellee/Cross-Appellant.
    No. 5D11-2755.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2014.
    Jamie Billotte Moses, of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dunlap, P.A., for Appellant/Cross Appellee.
    Shannon McLin Carlyle and Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellee/Cross-Appellant.
   PER CURIAM.

Valerie K. Fairchild (“Ms.Fairehild”) timely appeals a final judgment of dissolution, raising five issues. On cross-appeal,Patrick G. Fairchild (“Dr.Fairchild”) raises six issues. Relief is warranted as to four issues raised by Ms. Fairchild, and one issue raised by Dr. Fairchild.

First, the parties agree the trial court erred in its equitable distribution worksheet by crediting Dr. Fairchild with $144,000 in equitable distribution for his contributions toward the upkeep of a Cler-mont home during the pendency of the divorce. As Dr. Fairchild properly concedes, the correct credit should be $72,000 (one-half of the monies he expended in connection with upkeep of the Clermont property).

Second, we agree with Ms. Fairchild that she is also entitled to a credit for one-half of the $10,754.22 that she spent to maintain the Clermont property during the pendency of the divorce proceeding (a credit of $5,377.11).

Third, Ms. Fairchild is correct that she is entitled to half the 401(k) benefits forfeited to Dr. Fairchild from the accounts of three employees terminated from his medical practice prior to the date of the filing of the petition for dissolution. Ms. Fair-child’s half totals $8,425.54, plus or minus gains or losses attributable to these funds. Because Dr. Fairchild’s right to this money was vested when these employees were terminated, prior to the divorce filing, the funds should have been treated as marital funds. See § 61.075(6)(a)l.d., Fla. Stat. (2011) (defining marital assets to include “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs”); § 61.076(1), Fla. Stat. (2011) (instructing that “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution”).

Fourth, the parties agree that the final judgment should include the month, day and year that the reduction or elimination of child support will become effective, and that the trial court erred in ordering the parties to split the cost of their minor child’s uncovered medical expenses 50/50. As Dr. Fairchild properly concedes, these expenses should be split on a pro rata basis. See, e.g., Zinovoy v. Zinovoy, 50 So.3d 763, 764 (Fla. 2d DCA 2010) (recognizing that absent some logically established rationale in the final judgment to the contrary, collateral child support expenses must be allocated in the same percentage as the child support allocation); Edel v. Walker, 927 So.2d 989, 992 n. 1 (Fla. 5th DCA 2006) (noting that former husband should pay the son’s uncovered medical expenses in accordance with his percentage share of child support). Although not conceded by Dr. Fairchild, we also agree with Ms. Fairchild that she should not be required to pay any part of the child’s medical expenses that would be covered by insurance but for Dr. Fair-child’s unilateral decision to not submit the expenses for payment by the insurance carrier.

Finally, we agree with Dr. Fairchild that the trial court erred in failing to credit him with half of the marital funds that Ms. Fairchild used during the pendency of the dissolution to pay her attorney’s fees. The record reflects that although Dr. Fairchild paid his attorney’s fees from non-marital funds, Ms. Fairchild used a marital account to pay her attorney $114,000. If Ms. Fairchild is in need of assistance with her fees after the equitable distribution equalizing payment is made (as recalculated based upon our resolution of issues affecting that calculation on appeal), she may file a motion for fees pursuant to section 61.16, Florida Statutes.

We have carefully considered the other issues raised on appeal and cross-appeal, but affirm the trial court’s order in all other respects.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

PALMER, ORFINGER and LAWSON, JJ., concur.


author: SILBERMAN, Judge.

text:
    Riley Nathan MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-6481.
    District Court of Appeal of Florida, Second District.
    April 9, 2014.
    Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Riley Nathan Mitchell appeals his convictions and sentences for burglary of an unoccupied dwelling and grand theft after a jury trial. Mitchell raises three issues on appeal, and we affirm without discussion regarding issues one and three.

On issue two, Mitchell contends that the State failed to present sufficient evidence to prove that the value of the property stolen from a remodeled residential unit, consisting of copper piping and an air-conditioning condenser unit, was $300 or more, the amount necessary to support a grand theft conviction. See § 812.014(2)(e)(l), Fla. Stat. (2010). Based on the Florida Supreme Court’s decision in Marrero v. State, 71 So.3d 881 (Fla.2011), we must reverse the grand theft conviction because the State failed to meet its burden of proof regarding value on the grand theft charge. Under the theft statute, the State must prove value by “ ‘the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.’ ” Id. at 888 (quoting § 812.012(10)(a)(l)). Here, the evidence of value only supports a conviction for first-degree petit theft. See § 812.014(2)(e) (value of $100 or more, but less than $300); see also Schultz v. State, 105 So.3d 1280, 1280 (Fla. 2d DCA 2013) (vacating conviction for grand theft and remanding for conviction for first-degree petit theft).

Therefore, we affirm the conviction and sentence for burglary of an unoccupied building and vacate the conviction and sentence for grand theft. On remand, the trial court shall enter a judgment and sentence for first-degree petit theft.

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

KELLY and BLACK, JJ., Concur.


author: KELLY, Judge.

text:
    Victor Lee LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-854.
    District Court of Appeal of Florida, Second District.
    April 9, 2014.

      Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Victor Lee Lopez, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Victor Lee Lopez appeals from his Prison Releasee Reoffender (PRR) sentence for felony battery with a weapon. See § 775.082(9)(a), Fla. Stat. (2010). He argues that under Alleyne v. United States, — U.S.-, 138 S.Ct. 2151, 186 L.Ed.2d 314 (2013), a judge may no longer determine whether a defendant’s release date from a state correctional facility subjects him or her to PRR sentencing based on a preponderance of evidence; rather, a jury must make such a finding beyond a reasonable doubt. In Alleyne, the Supreme Court held that any fact that increases the mandatory minimum sentence is an element of the offense that must be submitted to the jury. 133 S.Ct. at 2155 (citing Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that due process requires a jury to determine that the defendant is guilty of every element of an offense beyond a reasonable doubt)). Lopez contends that because the jury did not determine that he met the statutory requirements for PRR sentencing, his PRR designation must be reversed.

The State responds that the jury is not required to make the PRR factual determination because Apprendi carved out a specific exception for recidivist statutes. We agree. The Supreme Court in Apprendi stated that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). In this case, it is not the fact that Lopez has a prior conviction that increases his sentence under the PRR statute. Rather, it is the date that Lopez was released from prison for the prior offense that is the fact that may increase his sentence. However, as this court stated in Calloway v. State, 914 So.2d 12, 14 (Fla. 2d DCA 2005), “[wjhile we recognize that the fact of [the defendant’s] date of release from his prior prison sentence is not the same as a bare fact of a prior conviction, we conclude that it is directly derivative of a prior conviction.” Therefore, because Lopez’s date of release from prison is a part of his prior record, that fact determination did not need to be presented to a jury and proved beyond a reasonable doubt. The determination of the date Lopez was released from prison for the prior offense was a ministerial act the trial judge properly made incident to sentencing. See id. at 15; Gurley v. State, 906 So.2d 1264, 1265 (Fla. 4th DCA 2005) (holding that even though the judge, rather than the jury, determined that Gurley’s conviction fell within three years of his release from prison, the date of release from prison was analogous to the fact of a prior conviction and could be found by a judge without violating Apprendi). Accordingly, we affirm Lopez’s PRR sentence.

Affirmed.

WALLACE and LaROSE, JJ., concur.


text:
    In the Interest of A.P. and J.P., Jr., minor children. J.P., Sr., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D13-4135.
    District Court of Appeal of Florida, Second District.
    April 9, 2014.
    Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Meredith Hall, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Sanford, for Appel-lee Guardian ad Litem Program.
   KELLY, Judge.

J.P., Sr. (the Father), appeals from the trial court’s order that finds his children, A.P. and J.P., Jr., to be dependent on the grounds of neglect. Because the evidence fails to support the basis for a finding of dependency, we reverse.

The Department filed a dependency petition after the Father was arrested at his sister’s home where he was living with his children and an unsecured gun was found in a bedroom. The police officers confiscated the weapon, and the charges against the Father were ultimately dropped. In finding the children dependent, the court found sufficient proof of neglect where both children lived in the home and J.P., Jr., was in an adjoining room when the gun was found. The court stated that “Meglect encompasses a situation where a child’s environment causes the children [sic] physical, mental or emotional health to be significantly impaired or be in danger of being significantly impaired.”

Chapter 89 of the Florida Statutes defines a “dependent” child as one who is found by the court to have been “abandoned, abused, or neglected by the child’s parent or parents” or one who is “at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents.” § 39.01(15)(a), (f), Fla. Stat. (2013). There being no evidence of actual harm to the children within the meaning of subsections 39.01(32)(f) or (44), the adjudication in this case rests upon the existence of a substantial risk of imminent harm to the children within the meaning of section 39.01(15X0.

The trial court based the finding of neglect entirely on the fact that the Father had an unsecured gun in the home. However, the police officers confiscated the gun and therefore, any danger to the children was removed. The Department presented no evidence at trial showing that any risk of harm to the children remained. In fact, the trial court reunified the Father with his children, and the only obligations placed on the Father in his case plan were to maintain stable housing and employment.

The application of section 39.01(15)(f) requires “the necessity of a continuing risk — not just a risk that existed sometime in the past, but a risk that is alive and merits judicial interference in the parent-child relationship to protect the child’s welfare.” J.O. v. Dep’t of Children & Family Servs., 970 So.2d 395, 399 (Fla. 3d DCA 2007) (Shepherd, concurring). “The purpose of a dependency proceeding is not to punish the offending parent but to protect and care for a child who has been neglected, abandoned, or abused.” R.F. v. Dep’t of Children & Families, 770 So.2d 1189, 1193 (Fla.2000). See § 39.501(2). Because the evidence was insufficient to prove by a preponderance of the evidence that the children were dependent, we reverse.

Reversed.

ALTENBERND and CASANUEVA, JJ., Concur.

      . Section 39.01(32)(f) states, in pertinent part: (f) Neglects the child. Within the context of the definition of "harm,” the term "neglects the child” means that the parent or other person responsible for the child’s welfare fails to supply the child with adequate food, clothing, shelter, or health care, although financially able to do so or although offered financial or other means to do so.

      . Section 39.01(44) states, in part:
      "Neglect” occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.


text:
    Valentin ALARCON, Jr., Appellant, v. Alexis E. ALARCON, Appellee.
    No. 2D13-1476.
    District Court of Appeal of Florida, Second District.
    April 9, 2014.
    Vana Renejuste of Renejuste Law & Associates, Fort Myers, for Appellant.

      Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellee.
   SILBERMAN, Judge.

In this postdissolution proceeding, Valentin Alarcon, Jr. (the Former Husband), appeals a supplemental final judgment that modifies timesharing and child support and determines entitlement to attorney’s fees in favor of Alexis E. Alarcon (the Former Wife). We affirm without discussion on the timesharing and child support. However, we dismiss the appeal as premature regarding the issue of attorney’s fees.

Because the trial court’s ruling only addressed entitlement to fees and not the amount that the Former Husband is obligated to pay, that portion of the supplemental judgment is not ripe for appeal. See Shadwick v. Shadwick, 132 So.3d 915 (Fla. 2d DCA 2014); Zuberer v. Zuberer, 28 So.3d 993, 993-94 (Fla. 2d DCA 2010). Thus, we dismiss the appeal in part as premature with respect to the attorney’s fees portion of the supplemental final judgment.

Affirmed in part and dismissed in part.

BLACK and SLEET, JJ., Concur.


text:
    Walter Lee DORTLY, Petitioner, v. AVALON HEALTHCARE CENTER, Respondent.
    No. 1D13-4485.
    District Court of Appeal of Florida, First District.
    April 9, 2014.
    Walter Lee Dortly, pro se, Petitioner.
    Glenn S. Banner of Hinshaw & Culbertson LLP, Jacksonville, for Respondent.
   PER CURIAM.

This petition for writ of prohibition seeks to disqualify the trial judge in a pending civil matter.

Petitioner’s properly served motion to disqualify the trial judge was pending when the trial court ruled on a motion to dismiss. “[W]hen a motion for disqualification or recusal is pending, it is the court’s duty to rule on that motion before ruling on anything else.” Sibley v. Sibley, 885 So.2d 980, 983 (Fla. 3d DCA 2004) (citing Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2000). In addition, because the motion to disqualify was not ruled upon within the requisite 30 days, it is deemed to have been granted under rule 2.330(j), Florida Rules of Judicial Administration. Schisler v. State, 958 So.2d 503, 505 (Fla. 3d DCA 2007)) (“The trial court’s failure to rule on [movant’s] motion [for disqualification] within 30 days of its service therefore entitles [movant] to an order directing the clerk of the court to reassign this case.”).

We therefore grant the petition for writ of prohibition, direct the trial judge to enter an order of disqualification and direct that the Chief Circuit Judge appoint a successor judge.

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


text:
    Travis JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5219.
    District Court of Appeal of Florida, First District.
    April 9, 2014.
    Travis Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the August 28, 2012, order denying defendant’s second motion to correct sentence in Leon County Circuit Court case number 2006-CF-1004B. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

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


text:
    Seveyon PORTER, JR., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5343.
    District Court of Appeal of Florida, First District.
    April 9, 2014.
    Seveyon Porter, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the September 17, 2013, judgments and sentences in Escambia County Circuit Court case numbers 12-CF^4973C and 12-CF — 4974C. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

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


text:
    Arness RITTMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5921.
    District Court of Appeal of Florida, First District.
    April 9, 2014.
    Arness Rittman, pro se, Petitioner.

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

Petitioner is granted a belated appeal of the July 17, 2013, order denying motion to correct illegal sentence in Gadsden County Circuit Court case number 2010-CFA-0624. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(6)(D).

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


text:
    Dustin MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5929.
    District Court of Appeal of Florida, First District.
    April 9, 2014.
    Dustin Moore, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the February 13, 2013, judgments and sentences in Bay County Circuit Court ease numbers 12-001319-CFMA and 12-003076-CFMA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

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