text:
    Herman F. PARRAMORE, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D14-1449.
    District Court of Appeal of Florida, First District.
    May 13, 2014.
    Herman F. Parramore, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Daily v. Soloway, 125 So.3d 363 (Fla. 1st DCA 2013).

ROWE, SWANSON, and MAKAR, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gary DOUGHTEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1668.
    District Court of Appeal of Florida, First District.
    May 13, 2014.

      Gary Doughten, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROWE, SWANSON, and MAEAR, JJ., concur.


text:
    Isaiah Alexander BOSTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1815.
    District Court of Appeal of Florida, First District.
    May 13, 2014.
    Isaiah Alexander Boston, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tal- ' lahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assis- ' tance of appellate counsel is denied on the merits.

ROWE, SWANSON, and MAKAR, JJ., concur.


author: BLACK, Judge.

text:
    Melva GAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1706.
    District Court of Appeal of Florida, Second District.
    May 14, 2014.

      Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Melva Gay challenges her judgment and sentence for possession of five methylphe-nidate pills (brand name Ritalin), a controlled substance; possession of drug paraphernalia (the aftermarket pill box in which she had the Ritalin); and possession of a prescription drug without a prescription (tramadol). She was sentenced to twelve months’ probation on the methyl-phenidate charge (a third-degree felony) and six months’ probation on the remaining charges (both misdemeanors), all to run concurrently. Gay pleaded no contest but expressly reserved the right to appeal the denial of her dispositive motion to suppress. We reverse her conviction and sentence.

Facts

Gay’s motion to suppress was based, in pertinent part, on the grounds that the pills and pill box were illegally seized without a warrant and were obtained as the result of an illegal investigatory detention. At the hearings on the motion, the arresting officer testified that he stopped the vehicle driven by Mr. Gay (the driver), in which Melva Gay was a passenger, for the traffic infraction of failing to come to a complete stop at a stop sign. After determining not to issue a citation, the officer asked the driver to step out of the vehicle and inquired whether he could search the vehicle for illegal narcotics. The driver consented to the search. The officer then asked Gay to step out of the vehicle. Gay did not take her purse with her when she exited the vehicle.

The officer testified that he immediately noticed a “faint odor” of cannabis upon beginning his search of the passenger compartment of the vehicle. He continued his search of the passenger compartment, including searching Gay’s purse. During his search of Gay’s purse, the officer found “a small, metal pill container — an aftermarket pill container” available for purchase in many drugstores. He removed the pills and box from the vehicle and returned to his patrol car where he learned, via the website Drugs.com, that some of the pills were Ritalin and trama-dol. He then returned to the vehicle, read Gay her Miranda rights, and began to question her about the pills. The officer testified that at the time he found the pills he did not know what they were; he identified them only through the Drugs.com website. The officer testified that although he knew the purse belonged to Gay and not the driver, he did not seek consent from Gay to search the purse. He confirmed that he did not ask Gay for permission to search the pill box or permission to take the pills or pill box from the vehicle back to his patrol car. The officer also confirmed that he would not have allowed Gay to leave the scene at that point and that no marijuana was found in the vehicle.

Analysis

Review of the denial of a motion to suppress presents a mixed question of law and fact. Crawford v. State, 980 So.2d 521, 523 (Fla. 2d DCA 2007). We defer to the trial court’s factual findings provided they are supported by competent, substantial evidence. Id. However, we review de novo the questions of reasonable suspicion and probable cause as both are legal conclusions. See id.

Although initially a stop due to the traffic violation, once the officer determined not to cite the driver and asked the driver for consent to search the vehicle, the encounter became consensual. See Smith v. State, 95 So.3d 966, 969 (Fla. 1st DCA 2012). At this juncture, the encounter was consensual as to Gay as well.

However, once the officer searched Gay’s purse and pill box, removed the pill box from the vehicle, and took the box to his patrol car, the encounter again became an investigatory detention. An investigatory detention requires reasonable suspicion that an individual has committed or is about to commit a crime; the officer must have “ ‘a well-founded, articulable suspicion of criminal activity.’ ” Smith, 95 So.3d at 968 (quoting § 901.151(2), Fla. Stat. (2010)). “An officer’s mere suspicion or hunch is not enough to permit this type of detention.” Id. (citing Popple v. State, 626 So.2d 185, 185 (Fla.1993)). Here, like in Smith, “[t]he deputy’s actions constituted a show of authority that would lead a reasonable person to conclude he or she was not free to end the encounter and leave.” See id. at 969. It was only upon his return to Gay with the knowledge that at least some of the pills in the box were controlled substances that the officer inquired of Gay as to whether she knew what the pills were and whether she had a prescription for them. Cf. Keller v. State, 946 So.2d 1233, 1234 (Fla. 4th DCA 2007) (affirming a trafficking conviction and concluding that the officer had probable cause to believe, at the time the pills were seized, that the pills were hydrocodone and that they did not belong to the defendant based upon the facts that the prescription pill bottle was visible from the officer’s position outside of the vehicle, that the label on the bottle provided a name different than the name on the defendant’s driver’s license, and the officer asked the defendant what was in the bottle before removing the bottle from the vehicle).

“ ‘Probable cause must exist before an object can be seized; after-the-fact discovery of contraband does not render the seizure legal ....’” Crawford, 980 So.2d at 525 (quoting E.B. v. State, 866 So.2d 200, 204 (Fla. 2d DCA 2004)). And, under the “plain view” doctrine — argued by the State at both the suppression hearing and on appeal — it must be “immediately apparent to the officer that the [seized] object constitutes evidence of a crime.” M.L. v. State, 47 So.3d 911, 912 (Fla. 3d DCA 2010). “ ‘[I]mmediately apparent’ means that ‘at the time police view the object to be seized, they must have probable cause to believe that the object is contraband or evidence of a crime.’ ” Id. at 913 (alteration in original) (quoting Jones v. State, 648 So.2d 669, 678 (Fla.1994)). “‘Probable cause does not exist when the circumstances are equally consistent with noncriminal activity as with criminal activity.’ ” Crawford, 980 So.2d at 525 (quoting E.B., 866 So.2d at 204).

Here, neither the illegal nature of the possession of the pills nor the type of pills was known to the officer at the time he removed them from the vehicle. Nothing about the pills or pill box gave him a reasonable suspicion that Gay had committed, was committing, or was about to commit a crime. Nor did he know that any of the pills were controlled substances at the time he seized them. Pursuant to his own testimony at the suppression hearing, the officer did not know what the pills were when he opened the container so he took them back to his car. As in Smith, the officer did not testify that in his experience people carry illegally possessed prescription drugs in aftermarket pill boxes. See 95 So.3d at 969. Nor did he state that he believed they were pills of an illicit nature or that Gay was in “unlawful possession of a controlled substance.” See Smith, 95 So.3d at 969; see also Oliveira v. State, 527 So.2d 959, 959 (Fla. 4th DCA 1988) (concluding “the [S]tate failed to present evidence that the officer had probable cause to believe the ‘prescription medicine’ he seized was an illegal substance”). “[T]he incriminating nature of the pills was not immediately apparent to the deputy” such that he could have immediately asked Gay for a prescription. See Smith, 95 So.3d at 969; see also M.L., 47 So.3d at 913. “The deputy did not testify as to any markings on the pills, or lack thereof, which helped him identify what they were .... ” Smith, 95 So.3d at 970. Moreover, the circumstances surrounding the officer’s search of the purse and the box do not justify such a suspicion.

The facts of our case are even less concerning than those found inadequate in Smith. See id. at 969 (“Appellant appeared passed out on the ground; when aroused he appeared intoxicated with slurred speech; and he tried to obscure the bag of pills.... The circumstances may have justified a reasonable belief that Appellant was under the influence of whatever was in the pills, which in and of itself [given the facts presented] is not criminal activity.”). The officer testified to a “faint odor” of marijuana but found no marijuana in either the purse or pill box. And the mere observation of pills in an aftermarket container is equally consistent with noncriminal activity as with criminal activity. See Crawford, 980 So.2d at 525. Thus, “ ‘[tjhere must be at least an additional objective and reasonably specific element justifying the state agent’s inference of wrongdoing.’ ” M.L., 47 So.3d at 913 (quoting Caplan v. State, 531 So.2d 88, 92 (Fla.1988)). “‘Under a probable cause standard ... the officer at the scene must be able to explain to an objective magistrate or judge just how it is possible to distinguish’ ” the unlawfully possessed prescription pills from lawfully possessed prescription pills or from nonprescription pills. See id. (quoting Caplan, 531 So.2d at 92).

The investigatory detention and seizure of the pills and pill box was unauthorized; the officer lacked reasonable suspicion of criminal activity and probable cause to seize the evidence. Gay’s motion to suppress should have been granted. We reverse Gay’s conviction and sentence and remand to the trial court to grant the motion and discharge Gay.

Reversed and remanded.

CASANUEVA and MORRIS, JJ., Concur.

      . Two hearings were held on the motion for reasons not relevant to the resolution of this appeal.

      . In its order denying the motion to suppress, the trial court determined that the "faint odor” of marijuana provided the officer with probable cause to search Gay's purse, citing Wyoming v. Houghton, 526 U.S. 295, 301-02, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999), for its holding that where probable cause to search the passenger compartment of a car exists, the ambit of the search includes a passenger's personal belongings remaining in the vehicle. Gay raised the issue on appeal, and under the facts of this case and a review of the totality of the circumstances, we question whether the officer did indeed have probable cause to search Gay’s purse. However, we make no determination on that issue and our holding is based solely on the invalid detention of Gay and illegal seizure of evidence.

        . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: LEVINE, J.

text:
    Robert BLECHMAN, Appellant, v. Katherine DELY, as the Personal Representative of the Estate of Bertram Blechman, and Arlene S. Roogow, Appellees.
    No. 4D12-4193.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2014.

      Laura Bourne Burkhalter and Clifford B. Hark of Hark Burkhalter Yon, PL, Boca Raton, for appellant.
    Chad R. Laing of Laing & Weicholz, Boca Raton, for appellee Arlene Roogow.
   LEVINE, J.

Appellant appeals the trial court’s order finding him in contempt and removing him as personal representative of the Estate of Bertram Blechman. We find that the trial court violated appellant’s due process rights by finding him in indirect criminal contempt without complying with the procedures outlined in Florida Rule of Criminal Procedure 3.840 and by removing him as personal representative without complying with the procedures set forth in Florida Probate Rule 5.440. For these reasons, we reverse.

The decedent, Bertram Blechman, died in 2011. He was survived by his wife; his son, appellant; and his daughter. At the time of the decedent’s death, he resided with appellee, Arlene Roogow.

In 2000, decedent executed a will and a revocable living trust. The will directed that the personal representative pay all of the decedent’s debt, funeral expenses, and administrative expenses. The will devised the residue and remainder of the estate to the living trust. The will appointed appellant as the personal representative. Upon the decedent’s death, the trust named appellant as trustee and provided that the trustee distribute the trust estate equally to the decedent’s children.

In 2009, the decedent and Roogow purchased a residence in Boynton Beach. Later that year, they quitclaimed the residence to the decedent’s revocable living trust, while reserving a life estate for Roo-gow. In 2010, an amendment to the trust provided a gift to Roogow of the decedent’s interest in the residence as well as one half of the distributions from Laura Investments, LLC, a company in which the decedent owned a 50% interest. The amendment also directed that upon the decedent’s death, Roogow shall remain in the residence and receive $5,000 per month to pay for the maintenance of the residence.

In April 2011, the trial court admitted the will into probate and appointed appellant as the personal representative. Appellant published notice to creditors. The decedent’s wife, appellant, appellant’s daughter, and Roogow all filed statements of claims. The decedent’s wife also filed an election to take an elective share.

In September 2011, Roogow filed a motion to compel payment, claiming that appellant, as personal representative, failed to pay $5,000 per month to maintain the residence, as outlined in the trust amendment. In November 2011, the trial court granted, in part, the motion to compel payment and ordered the following:

C. The Personal Representative shall obey the directions of Article V of the Last Will & Testament of Bertram Blechman until such time as this Court orders otherwise.
D. The provisions of the Amendment to the Bertram Blechman Revocable Living Trust, Dated August 20, 2010, shall be complied with until such time as this Court orders otherwise.

Article V of the will devised the remainder of the estate to the trust.

Prior to the rendition of the trial court’s order, appellant stated in a motion that the estate’s expenses and limited liquidity rendered him unable to fund the residuary request at that time. The trial court denied appellant’s motion.

In July 2012, Roogow filed a motion for order to show cause, alleging that appellant failed to comply with the trial court’s order of November 2011 and failed to distribute monies into the trust. Roogow requested that the trial court issue an order to show cause why appellant should not be held in indirect criminal contempt for failure to comply with the trial court’s order. Appellant responded that the estate had limited liquidity and all of the estate’s liquid assets were necessary to complete the estate’s administration.

The trial court issued an order to show cause, which stated:

The Personal Representative, Robert Blechman, shall show good cause before the Honorable John Phillips on Sept. 19, 2012 at 9:80 a.m.... as to why he should not be held in contempt of court and for other sanctions for failure to comply with this Court’s November 21, 2011 Order.
If Mr. Blechman fails to appear as ordered, Mr. Blechman shall be deemed to have waived the right to a hearing.

Appellant did not appear at the hearing, but he was represented by counsel. During the hearing, Roogow requested that the trial court remove appellant as the personal representative. The trial court orally found appellant in indirect civil contempt for failure to obey the trial court’s November 2011 order. The trial court further stated that appellant could purge the contempt by filing an accounting and handing over the reins of the estate to a new personal representative.

In a written order, the trial court removed appellant as personal representative, finding he failed to comply with the powers and duties of a personal representative. The trial court also found appellant “guilty of indirect criminal contempt for his willful and intentional disregard of this Court’s prior order.” (emphasis added). The court ordered appellant to provide a final accounting and deliver the record of the estate to the new personal representative within thirty days. Finally, the court appointed a professional personal representative recommended by Roogow.

Appellant contends that the trial court’s order finding him in indirect criminal contempt violated his due process rights because it did not follow the procedures as set forth in Florida Rule of Criminal Procedure 3.840. Roogow responds that rule 3.840 does not apply because the trial court found that appellant committed indirect civil contempt. We agree with appellant that the order was one of criminal, not civil, contempt.

The denial of due process is fundamental error that can be raised for the first time on appeal. Weiser v. Weiser, 132 So.3d 309, 311 (Fla. 4th DCA 2014). “[T]he failure to comply with rule 3.840 is fundamental error and no objection is required.” Hagerman v. Hagerman, 751 So.2d 152, 154 (Fla. 2d DCA 2000).

As our supreme court has explained, “the purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court.” Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985) (emphasis omitted). “A civil contempt order must contain a specific purge provision that adequately informs the contemnor what he or she must do to purge the contempt.” Lanza v. Lanza, 804 So.2d 408, 409 (Fla. 4th DCA 2001). “The purpose of criminal contempt, on the other hand, is to punish. Criminal contempt proceedings are utilized to vindicate the authority of the court or to punish for an intentional violation of an order of the court.” Bowen, 471 So.2d at 1277 (emphasis omitted).

In the present case, the trial court removed appellant as a punishment pursuant to its powers of indirect criminal contempt, and not to obtain compliance with an earlier order pursuant to its powers of indirect civil contempt. Unlike a civil contempt order, appellant’s removal as personal representative rendered him unable to comply with the November 2011 order he allegedly violated. Additionally, the contempt order did not contain a purge provision that would enable appellant to avoid removal as personal representative. Moreover, in her motion for order to show cause, Roogow requested that the court find appellant in criminal contempt, not civil contempt. Finally, the trial court’s written order found appellant in indirect criminal contempt.

The trial court erred in finding appellant in in indirect contempt, as the proceedings did not comply with rule 3.840. Under rule 3.840, an order to show cause must “stat[e] the essential facts constituting the criminal contempt charged and requir[e] the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.” Fla. R. Crim. P. 3.840(a). “Strict compliance with Rule 3.840 is required in indirect criminal contempt proceedings.” Fiore v. Athineos, 9 So.3d 1291, 1293 (Fla. 4th DCA 2009). The proceedings below did not comply with rule 3.840, as the order to show cause did not set forth the “essential facts” constituting the contempt charged and did not even state whether the contempt was civil or criminal. See Grant v. State, 464 So.2d 650, 651 (Fla. 4th DCA 1985) (holding that an order to show cause failed to comply with rule 3.840 because it did not state any facts constituting contempt, or even state whether contempt was civil or criminal).

We further find that appellant did not receive proper notice prior to his removal as personal representative. Section 733.504(3), Florida Statutes (2012), permits the removal of a personal representative for “[fjailure to comply with any order of the court.” “The removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered.” In re Murphy’s Estate, 336 So.2d 697, 699 (Fla. 4th DCA 1976). Florida Probate Rule 5.440 sets forth the procedures that must be followed for removal of a personal representative. It provides, in pertinent part:

(a) Commencement of Proceeding. The court on its own motion may remove, or any interested person by petition may commence a proceeding to remove, a personal representative. A petition for removal shall state the facts constituting the grounds upon which removal is sought, and shall be filed in the court having jurisdiction over the administration of the estate.

In the present case, no petition for removal was filed. Instead, Roogow filed only a motion for order to show cause, requesting that the court impose indirect criminal contempt sanctions on appellant. It was not until the order to show cause hearing that Roogow orally requested that appellant be removed as personal representative. Because the removal was ordered without notice or an evidentiary hearing, it did not comply with the requirements of due process. Lezcano v. Estate of Hidalgo, 88 So.3d 306, 307 (Fla. 3d DCA 2012).

In sum, we reverse and remand with instructions for the trial court to vacate the contempt order and to reinstate appellant as personal representative of the estate.

Reversed and remanded.

MAY and CIKLIN, JJ., concur.


author: CIKLIN, J.

text:
    Thomas W. GARVEY, Appellant, v. Marguerite GARVEY, Appellee.
    No. 4D13-1085.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2014.

      Abigail Beebe of Sasser, Cestero & Sas-ser, P.A., West Palm Beach, for appellant.
    Philip M. Chopin of Chopin & Chopin, LP, West Palm Beach, for appellee.
   ON MOTION FOR CLARIFICATION

CIKLIN, J.

We grant the appellant’s motion for clarification, withdraw our previous opinion dated March 26, 2014, and substitute the following.

The appellant (“the former husband”) challenges the order denying his petition to modify alimony and the award of attorneys’ fees. He raises two issues on appeal: 1) the court’s denial of his modification petition based on a finding that, at the time the former husband entered into the marital settlement agreement, he contemplated that his multiple sclerosis (“MS”) would deteriorate to the extent he would be unable to work, and 2) the award of attorneys’ fees and costs to the appellee (“the former wife”). Because the trial court’s factual findings did not support the conclusion that the change in circumstances was contemplated at the time of the settlement agreement, and the trial court did not reach the issues of whether the change in circumstances was substantial, sufficient, material, involuntary and permanent, we reverse the order denying modification and remand for further proceedings. With respect to the attorneys’ fees, we find that to the extent the award was based on need and ability to pay, the former husband did not establish reversible error.

Pertinent Facts

In 2000, the former husband and the former wife entered into the settlement agreement which provided, among other things, that the former husband would pay the former wife permanent periodic alimony of $5000 per month. At the time the agreement was entered, the former husband had MS and was employed full time. The settlement agreement was silent as to the former husband’s MS.

In 2011, after the former wife filed a motion for contempt and enforcement related to alimony, the former husband filed his Supplemental Petition for Modification of Alimony. He alleged that due to his MS, he resigned from his position as a chief financial officer. He characterized the resignation as involuntary. He also alleged that he suffered an exacerbation of his condition in 2011 when he had an “MS attack and seizure,” and that “[d]ue to the advancement of the illness, the Former Husband has a continuing growth of lesions on his brain and spinal cord which results in unpredictable speech, physical and cognitive functions.” The former wife counter-petitioned for attorney’s fees and costs based on her need and the former husband’s ability to pay.

At a hearing on the petitions, the former husband testified to the following. When he was diagnosed, he was told MS was “very unpredictable,” but that he could lose his sight and ability to walk. He testified that about twelve years after his diagnosis, a doctor informed him he had “benign” MS and that there was no need for medication. In 2011, he had an MS “attack.” This caused difficulty speaking and breathing and partial paralysis. After treatment, he was able to walk again. At the time of the hearing on the petitions, he was experiencing cognitive and emotional issues, fatigue, and problems with his balance and bladder control.

The former husband’s neurologist testified to the following. MS is a chronic disease which means the condition could last a lifetime. Chronic does not mean the same thing as progressive. The initial symptoms of MS are “highly variable.” In the worst cases, MS can lead to paralysis. It is possible for a patient to go several years with no symptoms. The initial symptoms are not predictive of the course the disease will take. However, a “majority of patients will have a progressive course in which they develop more symptoms as time goes on.” About eighty to ninety percent of patients have the relapsing and remitting course of the disease, which involves a cycle of “flare ups” but with periods of improvement. The others, usually older patients, have primary progressive or secondary progressive disease, where they do not improve. The former husband’s neurologist believed his patient probably had the relapsing and remitting-type of MS but “may be developing secondary progressive.” It was “very possibly” foreseeable that over time, a person with MS is going to develop conditions like vision and cognitive problems and fatigue. It was “more likely” that a person diagnosed with MS would have the form that exacerbates over time rather than remains benign. However, the neurologist did not give patients prognoses as to their future condition when rendering a diagnosis because “[y]ou really can’t predict that.” He has had patients who “live perfectly normal lives ... I think the longer the patient does well, the less likely they are to have an exacerbation.”

The court entered a judgment denying the modification petition. The court found the former husband experienced symptoms during and after his marriage to the former wife, and that these symptoms “indicated that at some point in the future he probably would have more severe symptoms that would affect his ability to maintain employment and his earning capacity.” The court also found the following:

The Former Husband was diagnosed with MS during the marriage, knew it was a progressive disease, and knew it was foreseeable that his condition would worsen. The medical evidence supports the likelihood of this progression. As such, while the Former Husband’s condition may prevent him from holding certain employment, this condition was foreseeable at the time of the dissolution.

The denial was based on a finding that the “alleged change in circumstances was a foreseeable and contemplated event,” and that the former husband failed to meet his burden, “particularly since his burden is higher since the alimony was originally agreed to by the parties.” The court noted that it was not necessary to consider the other elements necessary for modification since the former husband did not establish that the change was unforeseeable.

The court awarded attorneys’ fees and costs to the former wife on two grounds— her demonstrated need juxtaposed against the former husband’s ability to pay, and a prevailing party provision in the settlement agreement.

On appeal, the former husband argues that because his neurologist testified that MS is not a predictable disease, and the former husband could not have contemplated what course the disease would have taken after he entered into the settlement agreement, the trial court erred in finding that the former husband’s deteriorating condition was contemplated and foreseeable when he executed the agreement.

Analysis

The standard of review for an order on a motion to modify alimony is abuse of discretion. Zeballos v. Zeballos, 951 So.2d 972, 974 (Fla. 4th DCA 2007) (citation omitted). Section 61.14(1)(a), Florida Statutes, governs modification of support and provides the following in pertinent part:

When the parties enter into an agreement for payments for ... alimony ... and the circumstances or the financial ability of either party changes ... either party may apply to the circuit court ... for an order decreasing or increasing the amount of ... alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial abilities of the parties ....

§ 61.14(l)(a), Fla. Stat. (2011). Further, “the proof required to modify a settlement agreement and the proof required to modify an award established by court order shall be the same.” § 61.14(7), Fla. Stat. (2011). This court has explained:

In petitioning to modify alimony, the moving party must show three fundamental prerequisites:
First, there must be a substantial change in circumstances. Second, the change was not contemplated at the time of final judgment of dissolution. Third, the change is sufficient, material, involuntary, and permanent in nature.

Zeballos, 951 So.2d at 974 (quoting Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992)).

Generally, a deterioration in health can support a reduction in the alimony obligation. See Scott v. Scott, 109 So.3d 804 (Fla. 5th DCA 2012) (affirming reduction of alimony obligation where the former husband suffered two heart attacks which substantially reduced his heart’s functioning capacity, and was receiving social security disability after being determined to be totally disabled, but reversing for further reduction); Boone v. Boone, 3 So.3d 403 (Fla. 2d DCA 2009) (reversing for further reduction in alimony where record supported court’s finding that there was a substantial change in circumstances, as husband’s deteriorating health rendered him unable to work).

Whether it be a change of health or any other curveball life indiscriminately throws, predictability of the occurrence is the cornerstone to any analysis. In Mendes v. Mendes, 947 So.2d 450 (Fla. 4th DCA 2006), this court recognized the “well-established principle that modification may not be based upon factors affecting income known to the parties at the time a final judgment is entered.” Id. at 452 (citation omitted). “The reason for this doctrine is an obvious one: if the likelihood of a particular occurrence was one of the factors which the court or the parties considered in initially fixing the award in question, it would be grossly unfair subsequently to change the result simply because the anticipated event has come to pass.” Jaffee v. Jaffee, 394 So.2d 443, 445 (Fla. 3d DCA 1981) (emphasis added).

In Jaffee, the court reversed an order reducing the former husband’s alimony obligation because all of the changes in circumstances he alleged — that the children would turn 21 years old and leave home, that the former wife would receive funds from the sale of the marital home, and that the former wife would work more when the children moved out of the home — were “known, anticipated, and bargained about when the parties formulated their agreement.” Id. at 446. In contrast, our Mendes opinion found that the subject alimony amount was calculated based on the husband’s 2002 income “without taking into account the possibility of future decline.” Mendes, 947 So.2d at 452. This court reasoned that “while the possibility of fluctuating market conditions affecting Mr. Mendes’s income may have been known to the parties at the time of the settlement agreement and final judgment, the character of the actual change and consequences to income were not known at the time of the final judgment. A possibility that income will decrease is not knowledge that it will do so.” Id. (citation and quotation marks omitted).

Here, the trial court essentially found that the neurologist’s testimony established the likelihood of deterioration in those diagnosed with MS. However, as in Mendes, while the parties may have been aware of a particular possibility at the time they entered into the settlement agreement, this does not equate to knowledge of the “character of the actual change and consequences to [the former husband’s medical condition along with the resultant effect on his] income.” Id. Additionally, there is no indication in the record that at the time he entered into the settlement agreement, the parties considered the possibility that the former husband’s condition would deteriorate to the extent he would no longer be able to work. Record evidence indicates that although the former husband was diagnosed in 1986, he was still working full time when the parties entered into the settlement agreement in 2000, and he continued working full time for years afterward.

A First District case also supports the proposition that knowledge of a possibility, standing alone, is insufficient to preclude a modification of alimony when the possibility materializes or otherwise comes to fruition. In Bedell v. Bedell, 523 So.2d 166 (Fla. 1st DCA 1988), the parties entered into a marital settlement agreement requiring the husband to pay the wife a set monthly amount of permanent alimony. Id. at 167. After the wife’s parents died and left the wife a substantial inheritance, the husband petitioned for modification, claiming the wife’s need had decreased. Id. The trial court found that the wife’s inheritance was contemplated and thus could not support a modification. Id. The First District disagreed and opined:

Initially, we agree that the possibility of the wife receiving a substantial inheritance from her parents may well have been contemplated by the parties when they entered into the settlement agreement. At the time of dissolution, the wife’s mother was 85 years old and her father 87. The record discloses that the parents had already given substantial gifts to the husband and wife during their marriage. Notwithstanding that the parties contemplated that the wife might receive an inheritance from her parents, the actual receipt of the inheritance and the amount received were nonetheless neither certain nor guaranteed; at best they could be only fairly described as an expectancy.... Such a future expectancy cannot properly be considered a contemplated change of circumstances necessarily barring an application for modification of alimony if in fact the circumstance occurs.

Id. at 167-68.

The former wife argues that the former husband could have addressed his medical condition in the settlement agreement. Our supreme court rejected such an argument in Pimm v. Pimm, 601 So.2d 534 (Fla.1992), where the changed circumstance was voluntary retirement. The Court acknowledged that it would be preferable to address the circumstance of retirement in an agreement or final judgment, but it found that “silence in that regard should not preclude consideration of a reasonable retirement as part of the total circumstances in determining if sufficient changed circumstances exist to warrant a modification of alimony.” Id. at 537. Likewise, silence in the agreement here should not act as an automatic bar to the court’s consideration of whether the former husband’s alleged changed condition was sufficient to warrant modification.

Finally, we note that the trial court’s denial of the modification petition was based “particularly” on the court’s finding that the former husband failed to meet a heavier burden because the subject alimony award was set by an agreement between the parties. However, the applicable statute was amended in 1993 to provide that the proof required in modification proceedings involving alimony set by agreement versus alimony set by the court is the same. See Pratt v. Pratt, 645 So.2d 510, 511 n. 1 (Fla. 3d DCA 1994) (recognizing that section 61.14, Florida Statutes, was amended in 1993 to provide for the same burden of proof to apply to modification of alimony set by agreement and alimony set by the court); § 61.14(7), Fla. Stat. (2011).

Based on the foregoing, we find the trial court erred in denying the modification petition based on its finding that the former husband was aware of the likelihood that his medical and financial conditions would worsen. Accordingly, we reverse and remand for the trial court to determine whether the former husband established a substantial change in circumstances that was not contemplated and “sufficient, material, involuntary, and permanent in nature.” Woolf v. Woolf, 901 So.2d 905, 912 (Fla. 4th DCA 2005) (citations and quotation marks omitted).

With respect to the award of attorneys’ fees, the trial court awarded fees based both on a provision in the marital settlement agreement and a statutory provision. The former husband challenges the contractual basis for the award, but does not question the statutory basis which we find was within the discretion afforded to the trial judge and thus affirm.

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

STEVENSON and KLINGENSMITH, JJ., concur.

      . He was diagnosed in 1986.

      . Earlier in the order, the court stated the former husband "has not established a substantial change in circumstances,” and "has not established that the change is sufficient, material, permanent and involuntary.” However, later in the order, the court made it clear it did not reach those issues as it based its denial on the issue of whether the change was contemplated.

      . We are aware that language in Urbanek v. Urbanek, 484 So.2d 597 (Fla. 4th DCA 1986), could be read as holding that knowledge of a multiple sclerosis diagnosis at the time a settlement agreement is entered precludes modification based on the condition. In that case, the parties had entered into an antenuptial agreement providing for a specified amount of lump sum alimony payable to the wife upon dissolution of the marriage after four years of marriage. In the dissolution proceedings, the wife sought additional lump sum alimony based on a diagnosis of multiple sclerosis. This court reversed the trial court’s award of additional lump sum alimony and rejected the former husband's argument that the former wife’s attempt at modification was frivolous. The court wrote that the former wife’s modification petition was made in good faith as ‘‘[t]here was evidence supporting a finding that [the former wife] did in fact have the disease, and that it was not a matter known to the parties or contemplated when the antenuptial agreement was executed.” Id. at 601. We find Urbanek inapplicable as the court was not directly addressing the issue raised in this case.

      . Section 61.16(1), Florida Statutes (2011), provides in part that the trial court "may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.”


text:
    C.L.P., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2492.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2014.
    Carey Haughwout, Public Defender, and Daniel Mark Cohen, Special Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant, C.L.P., appeals his adjudication of delinquency and disposition of time served. He was found guilty of attempted battery on a school board employee, an offense the trial judge designated a first-degree misdemeanor under an incorrect interpretation of section 784.081, Florida Statutes (2012). On appeal, C.L.P. argues that the offense of attempted battery on a school employee does not exist. We agree.

As we previously held in W.T.D. v. State, 906 So.2d 333, 334 (Fla. 4th DCA 2005), section 784.081 does not create the offense of attempted battery on a school employee but rather acts as an enhancement statute. Where the offense of assault, aggravated assault, battery, or aggravated battery is committed against a school official or employee, section 784.081 reclassifies the offense to a felony or misdemeanor of a higher degree and enhances the penalty for each. Id.

In W.T.D. — under an almost identical set of facts — we remanded the matter with instructions to reduce the judgment from a finding of guilt on attempted battery on a school employee, a purported third-degree felony, to attempted battery, a misdemeanor. Id. at 334-35. W.T.D.’s commitment to a level six facility was vacated and the trial court was instructed to hold a new disposition hearing. Id. at 335.

Similarly, C.L.P. should have been found guilty of attempted battery — not attempted battery of a school employee. Unlike W.T.D., however, C.L.P. received time served and therefore a new disposition hearing is not necessary.

Accordingly, we reverse and remand with instructions for the trial court to enter an adjudication of delinquency for attempted battery, a second-degree misdemeanor. §§ 777.04, 784.03, Fla. Stat. (2012).

Reversed and remanded with instructions.

MAY, CIKLIN and LEVINE, JJ., concur.


text:
    Ronald Jay MOREL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-447.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2014.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Sue-Ellen Kenny and Matthew Ocksrider, Assistant Attorneys General, West Palm Beach, for appellee.
   PER CURIAM.

Ronald Morel (“Defendant”) appeals the denial of his motion to dismiss the State’s petition for civil commitment as a sexually violent predator (“SVP”) for lack of subject matter jurisdiction. Based on the Florida Supreme Court’s decisions in State v. Phillips, 119 So.3d 1233 (Fla.2013), Larimore v. State, 2 So.3d 101 (Fla.2008), and State v. Atkinson, 831 So.2d 172 (Fla.2002), the trial court did not have jurisdiction over Defendant at the time of his civil commitment. Accordingly, we reverse, and grant Defendant’s motion.

FACTS AND PROCEDURAL HISTORY

While serving his sentence after being convicted in 1996 of two counts of sexual battery, Defendant filed a Rule 3.850 post-conviction relief motion to correct his sentence. The trial court found that Defendant was entitled to an evidentiary hearing on the motion. At the commencement of the hearing, the State conceded that there had to be a correction of the sentence and that it was willing to resolve Defendant’s allegations with respect to his sentencing. The parties agreed that Defendant would withdraw his Rule 3.850 motion and, instead, go forward on a motion pursuant to Rule 3.800(a), which addresses the correction of illegal sentences. As a result of the parties’ agreement, Defendant agreed to a sentence of 120 months, nunc pro tunc to the date of Defendant’s initial sentence (March 6, 1996), with the sentence further reduced by credit for prior county jail and prison time served, as well as credit for gain time previously earned. The trial court’s resentencing order was entered on April 17, 2002, and the Florida Department of Corrections (“DOC”) was requested to recalculate Defendant’s date of release. On April 18, 2002, DOC notified the court that, in light of the agreement, Defendant’s sentence expired on January 29, 2002 (approximately two and a half months prior to the hearing). Neither party disputes that the recalculated release date was January 29, 2002. Defendant was then scheduled to be released on April 18, 2002.

However, on April 18, 2002, DOC notified DCF that Defendant would be immediately released from custody, and DCF identified Defendant as a potential “Jimmy Ryce” inmate. Defendant was then placed on a 72-hour hold and involuntarily transferred to the Florida Civil Commitment Center (“FCCC”) for evaluation by a multi-disciplinary team to determine whether Defendant qualified as a SVP to be civilly committed for treatment. At the conclusion of the 72-hour hold, DCF determined that Defendant met the criteria for identification as an SVP and that he required intensive treatment before being released to rejoin the community. DCF .thus recommended prosecution under the Jimmy Ryce Act.

On April 23, 2002, the State filed a petition to have Defendant declared an SVP, requesting the lower court to commit Defendant to DCF for control, care, and treatment until Defendant is found safe to rejoin the community. The petition alleged that Defendant had previously been convicted of the crimes of sexual battery and kidnapping, and that he suffered from a mental abnormality or a personality disorder which made it likely that he would engage in acts of sexual violence if he were not involuntarily committed and confined to a secure facility for control, care, and treatment. The same date the petition was filed, the trial court found probable cause to believe that Defendant is an SVP, eligible for commitment, and that he should be placed in the custody of DCF while the State’s SVP petition was pending. Several days later and after consultation with appointed counsel, Defendant agreed in both open court and in writing to waive his right under section 394.916(1), Florida Statutes (2002), to have a commitment trial held within thirty days of the court’s probable cause determination.

On May 23, 2002, Defendant filed a Motion for Immediate Release from his civil commitment, claiming that he was not in lawful custody in April 2002, because his sentence had expired in January 2002, and, thus, the trial court lacked jurisdiction to civilly commit him. After a hearing on the motion, it was denied by the trial court.

Defendant’s trial with respect to the court’s probable cause determination was delayed for nearly ten years on account of Defendant’s “tactical” decision to “purposefully delay his trial.” Morel I, 84 So.3d at 247. During that time period, Defendant remained a noncommitted, pretrial detainee at the FCCC in the custody of DCF.

Nearly ten years after the trial court had denied his Motion for Immediate Release, on January 10, 2012, Defendant filed a Motion to Dismiss for Lack of Jurisdiction, again claiming that he was not in lawful custody at the time the civil commitment proceedings were initiated and thus no trial court had subject matter jurisdiction to hear the SVP petition. The trial court denied the motion, finding that DOC acted appropriately in processing Defendant’s release and that the 72-hour hold on Defendant was valid under the Jimmy Ryce Act.

After the trial court denied his request for reconsideration, Defendant entered into a stipulation with the State whereby he would waive his right to a trial on the April 23, 2002 SVP petition, and commit himself voluntarily to the FCCC, while specifically reserving his right to appeal the decision on his Motion to Dismiss for Lack of Jurisdiction. The trial court agreed to the parties’ stipulation and so ordered on January 11, 2012. Thus, after nearly ten years of confinement at the FCCC, Defendant was, for the first time, eligible for full exposure to the Sexual Offender Treatment Program.

Defendant, who is still under civil commitment, continues to argue in this appeal that the denial of his motion to dismiss must be reversed because no court had subject matter jurisdiction to initiate civil commitment proceedings against him where his sentence, as recalculated, had already expired and therefore he was not in “lawful custody” at the time civil commitment proceedings were initiated.

ANALYSIS

We review the issue of subject matter jurisdiction de novo. Sanchez v. Fernandez, 915 So.2d 192, 192 n. 1 (Fla. 4th DCA 2005) (“We note that the de novo standard of review used here for this issue is in conflict with the abuse of discretion standard of review used in the third and fifth districts.”).

Our decision is controlled by post-April 23, 2002 Florida Supreme Court decisions interpreting the immediate release provision, section 394.9135(1) of the Jimmy Ryce Act, and its application only to those “persons currently in custody who have been convicted of a sexually violent offense ....”§ 394.925, Fla. Stat. (2012) (emphasis added). The immediate release provision states:

If the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility.

§ 394.9135(1), Fla. Stat. (2012).

Recently in State v. Phillips, the Florida Supreme Court concluded:

[S]ection 394.9135 was enacted as a safety valve for certain situations, including where a postconviction court or an appellate court rules in the defendant’s favor, thereby entitling the defendant to credit for time previously served and/or gain-time. We do not find, however, any intention on the part of the Legislature to authorize the State to first travel under section 394.9135 after an inmate’s sentence expires. To the contrary, the staff analyses explain that section 394.9135 addresses situations where a release “will become immediate” or “becomes imminent.” Thus, section 394.9135 would be utilized in situations where the award of credit and/or gain-time causes an incarcerative sentence to expire in the immediate future. ...
We hold that lawful custody under section 394.9135(1) requires the State to initiate commitment proceedings prior to the expiration of sentence date. When the anticipated release of a corrected sentence is imminent, the DOC may properly initiate the transfer of the individual to the custody of DCF prior to the expiration of the individual’s in-carcerative sentence .... Conversely, if the State first initiates commitment proceedings under section 394.9135(1) after the actual expiration of sentence date— which was accelerated due to credit for time-served and/or an award of gain-time — the individual is not in lawful custody and the circuit court is without jurisdiction to adjudicate the commitment petition.

Phillips, 119 So.3d at 1242 (emphasis added); see also Larimore, 2 So.3d at 117; Bishop v. Sheldon, 68 So.3d 259, 261 (Fla. 2d DCA 2010) (“On the merits, we conclude that Bishop may be entitled to relief under Larimore if his sentence had indeed expired before the State initiated commitment proceedings under the Act.”).

In accord with these decisions, Defendant was not in lawful custody on April 18, 2002, when the civil commitment proceedings were initiated, because his sentence as recalculated had expired on January 29, 2002 (two and a half months prior). Thus, no court in Florida had jurisdiction to allow the State to initiate civil commitment proceedings against Defendant on April 18 once the State entered into the agreement with Defendant on April 17 to reduce the sentence to 120 months, creating the situation where Defendant was then continuing to serve time on an expired sentence, not a sentence to expire in the future. See Phillips, 119 So.3d at 1242. Pursuant to Phillips, the State cannot utilize the immediate release provision of the Jimmy Ryce Act on April 18, 2002, to cover its failure to fully think through the consequences of the agreement it entered into on April 17, 2002.

Whereas the defendants in Larimore and Phillips had sentences found to be illegal because of the lower courts’ failure to appropriately factor in credit for time served, the defendant in the instant case was resentenced on his original convictions pursuant to an agreement between Defendant and the State, without an express finding by the trial court that Defendant’s original sentence was illegal (we note, however, that the record evidences that the resentencing was for the purpose of correcting an apparently illegal sentence). Nonetheless, Larimore and Phillips did not hold that a defendant’s sentence being adjudicated to be illegal was a necessary factor to the determination that the defendant was not in lawful custody when civil commitment proceedings were initiated. Notwithstanding the State’s invitation to do so, we cannot conclude that the situation in the instant case is sufficiently distinguishable from the situation in Phillips to permit us to not apply that decision’s ruling to the case at hand. Accordingly, we reverse the trial court’s denial of Defendant’s motion to dismiss the State’s civil commitment petition for lack of jurisdiction and remand for the trial court to order Defendant’s release from his current civil commitment.

Reversed and Remanded.

LEVINE, CONNER and FORST, JJ., concur.

      . This discussion is based on the record developed at the trial court as well as from Morel v. Wilkins ("Morel I"), 84 So.3d 226 (Fla.2012). Prior to his waiving trial in 2012, Morel was a "noncommitted pretrial detainee” precluded by the Department of Children and Families’ (DCF) policy from the full range of the sexual offender treatment program. In Morel I, the Florida Supreme Court affirmed the trial court’s denial of Morel's petition seeking full access to the program.

      . The Involuntary Civil Commitment of Sexually Violent Predators Act, sections 916.31-.49, Florida Statutes (1999), is commonly referred to as "the Jimmy Ryce Act.”


author: VILLANTI, Judge.

text:
    Jason LEXELL and Jennifer Lexell, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for GSAA Home Equity Trust 2006-8 Asset-Backed Certificates, Series 2006-8, Appellee.
    No. 2D13-1968.
    District Court of Appeal of Florida, Second District.
    May 14, 2014.
    Michael Alex Wasylik of Ricardo & Wa-sylik, PL, Dade City, for Appellants.
    Nancy M. Wallace and Michael J. Larson of Akerman LLP, Tallahassee; William P. Heller of Akerman LLP, Fort Lauderdale; and Heather L. Fesnak of Akerman LLP, Tampa (withdrew after briefing); Manuel S. Hiraldo of Blank Rome, LLP, Boca Raton (substituted as counsel of record), for Appellee.
   VILLANTI, Judge.

Jason and Jennifer Lexell appeal the trial court’s order denying their combined motion for attorney fees and costs. Finding no abuse of discretion, we affirm that portion of the order denying their attorney fees without comment. However, based upon proper concession of error by Appel-lee Deutsche Bank National Trust Company, we reverse that portion of the order which denied the Lexells their taxable costs. To avoid any confusion on remand, we reject the Lexells’ argument that, under the circumstances of this case, a determination of any recoverable costs should include attorney fees.

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

LaROSE and KHOUZAM, JJ., Concur.


text:
    Clevon GHENT, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2125.
    District Court of Appeal of Florida, Second District.
    May 14, 2014.
    Dane K. Chase of Tim Bower Rodriguez, P.A., Tampa, for Appellant.
   PER CURIAM.

Clevon Ghent challenges the postconviction court’s order denying his motion filed under Florida Rule of Criminal Procedure 3.850. Because the attachments to the order do not conclusively refute Mr. Ghent’s claim, we reverse and remand for further proceedings.

After a jury found Mr. Ghent guilty of three counts of sexual battery, the court sentenced him to thirty years’ imprisonment, followed by ten years’ probation. In his postconviction motion, Mr. Ghent alleged counsel was ineffective for failing to move to suppress his confession on the basis that it was involuntary because it was induced (1) by a false promise from police that in exchange for his confession, he would receive only six months’ jail time and (2) by what Mr. Ghent describes as “coercive injections of Christianity” made by police during the interrogation. Specifically, Mr. Ghent asserted that he was employed as a preacher at the time of the questioning and that police exploited his religious beliefs by extensively referencing Christian scriptures during the interrogation. The postconviction court initially ordered the State to show cause as to why relief should not be granted. In its response, the State attached the entire transcript of the interrogation and argued that the conversation, taken as whole, did not show that Mr. Ghent was actually coerced by the religious references. However, the State conceded that an evidentiary hearing was required as to Mr. Ghent’s allegation that he was coerced by a promise of leniency. Despite the State’s concession, the postconviction court attached the State’s response and attachment and denied relief explaining that “the response conclusively refutes Defendant’s motion and the Court adopts as its own the arguments contained therein.”

“On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.” Fla. R.App. P. 9.141(b)(2)(D); see also Rodriguez v. State, 8 So.3d 507, 508 (Fla. 2d DCA 2009) (reversing and remanding when posteon-viction court’s reliance on the State’s response did not conclusively refute appellant’s claims). As conceded by the State, the transcript of the interrogation does not refute Mr. Ghent’s allegation that his confession was induced by a promise of leniency. Although the State argued that the transcript refutes Mr. Ghent’s allegation that he was coerced by religious references, the two allegations are intertwined because “[i]n order for a confession to be voluntary, the totality of the circumstances must indicate that such confession is the result of free and rational choice.” Johnson v. State, 696 So.2d 326, 329 (Fla.1997).

Accordingly, we reverse the postconviction court’s order and remand for the court to either attach portions of the record that conclusively refute Mr. Ghent’s claim or conduct an evidentiary hearing.

ALTENBERND, CRENSHAW, and MORRIS, JJ., Concur.


text:
    Armando TORRES a/k/a Armondo Torres, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3527.
    District Court of Appeal of Florida, Second District.
    May 14, 2014.
    • Colleen M. Glenn, Bradenton, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

We affirm without prejudice to Armando Torres’ right, if any, to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850.

CASANUEVA, SILBERMAN and VILLANTI, JJ., Concur.


text:
    Rashod NOBLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1853.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2014.
    Rehearing Denied June 10, 2014.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Ruger v. State, 941 So.2d 1182 (Fla. 4th DCA 2006).

MAY, CIKLIN and KLINGENSMITH, JJ., concur.


text:
    Justin GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4639.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2014.
    Justin Green, Fort Worth, Texas, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. This court’s affirmance is without prejudice to appellant filing a motion in the trial court to dismiss the April 2012 detainer. Appellant alleges that the State filed a detainer in connection with the criminal contempt sentence imposed in June 2011, which he immediately and completely served.

LEVINE, FORST and KLINGENSMITH, JJ., concur.


text:
    Anthony L. DAVIDE, Appellant, v. EASTERN NATIONAL BANK, Appellee.
    No. 3D12-2934.
    District Court of Appeal of Florida, Third District.
    May 14, 2014.
    Anthony L. Davide, in proper person.
    Sacher, Zelman, Hartman, Paul, Beiley & Sacher, P.A., and Roy M. Hartman and Jorge R. Escobar, for appellee.
    Before SHEPHERD, C.J., and WELLS and SCALES, JJ.
   PER CURIAM.

Upon review of the briefs and record in this case, we dismiss the appeal for lack of standing on the part of Appellant, Anthony L. Davide, who was not a beneficiary under the land trust at issue in this case. See Fla. R.App. P. 9.020(g)(1) (defining “Appellant” as a “party”); Portfolio Invs. Corp. v. Deutsche Bank Nat’l Trust Co., 81 So.3d 534, 536 (Fla. 3d DCA 2012) (“Generally, a non-party in the lower tribunal is a ‘stranger to the record’ and, therefore, lacks standing to appeal an order entered by the lower tribunal” (citing Barnett v. Barnett, 705 So.2d 63, 64 (Fla. 4th DCA 1997))).

Appeal dismissed.


author: MARSTILLER, J.

text:
    Angelo HARDISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3826.
    District Court of Appeal of Florida, First District.
    May 14, 2014.
    Melissa Joy Ford, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Wesley Paxson III, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Angelo Hardison appeals his conviction and sentence for second-degree murder, arguing the trial court committed fundamental error in instructing the jury on justifiable use of deadly force. He asserts the standard instruction given on justifiable use of deadly force was fundamentally erroneous. Specifically, he argues the instruction is inconsistent with current law because it effectively makes the defense available only to persons not engaged in unlawful activity. We find, however, the modification the trial court made to the instruction at Hardison’s request nullifies his claim of fundamental error. Accordingly, we affirm his conviction and sentence.

On the day of the fatal shooting for which Hardison was convicted, Hardison and three other people, including Calen Girtman, drove to the home of Girtman’s stepmother so Girtman could drop off his laundry. Girtman’s sister, Latoya Stevens, and her one-year-old daughter lived there, as well. While Girtman went inside the house, Hardison and the others waited outside in the car.

As they waited, Johnny Banks, the father of Stevens’ daughter, drove up. Har-dison and Banks were on unfriendly terms stemming from a marijuana purchase for which Banks claimed Hardison still owed him one hundred dollars. Banks was a large man — physically larger than Hardi-son — and, according to Hardison, had threatened to kill him over the unpaid money. Said threat, and other threatening messages, were conveyed by Girtman, who, for one or two weeks prior to the shooting, tried to mediate the disagreement between Hardison and Banks. Also according to Hardison, Banks regularly carried a gun, and had a reputation such that, “if it got down to it, he would probably hurt you.”

Hardison recognized Banks’s vehicle as it approached the house. In anticipation of his arrival, Hardison armed himself with a gun provided by one of his companions, then got out of the car and waited for Banks to pull up. Banks arrived, exited his vehicle, and approached Hardison, whereupon the men argued briefly. Har-dison saw Banks reach for his waistband, pointed his gun at Banks, and told Banks to show his hands. Banks neither complied nor pulled a gun of his own. Instead, he tried to slap the gun out of Hardison’s hand. The gun went off, and the men began wrestling for it. Either during the fight, or upon managing to break free, Hardison fired his gun at Banks several times. After the shooting, it was discovered Banks was unarmed.

At Hardison’s trial, the court instructed the jury on the justifiable use of deadly force. In pertinent part, based on Standard Jury Instruction (Criminal) 3.6(f), the court stated:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Angelo Hardison is charged if the death of Johnny Banks resulted from the justifiable use of deadly force. Deadly force means force likely to cause death or great bodily harm. A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent, one, imminent death or great bodily harm to himself; or, two, the imminent commission of felony battery against himself.
In deciding whether defendant was justified in the use — use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual. However, to justify the use of deadly force the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoid[ed] only through the use of that force.... If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.
Possession of a firearm by a convicted felon is an unlawful activity.

The trial court then read the following provisions to the jury, as requested by Hardison’s counsel:

However, in certain circumstances, a convicted felon may lawfully possess a firearm. Those circumstances are, one, the felon must be in present, imminent and impending peril of death or serious bodily injury, or reasonably believed himself or others to be in such danger; two, the felon must not have intentionally or recklessly placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct. Three, the felon must not have any reasonable, legal alternative to possession the firearm. Four, the firearm must be made available to the felon without preconceived design. And, five, the felon must give up possession of the firearm as soon as necessity or apparent necessity ends.

Discussion

Where, as in this case, the challenged jury instruction involves an affirmative defense, fundamental error only occurs if the instruction is so flawed as to deprive the defendant of a fair trial. Martinez v. State, 981 So.2d 449, 455 (Fla. 2008). “In determining whether the jury instructions constituted fundamental error, we must consider ‘the effect of the erroneous instruction in the context of the other instructions given, the evidence adduced in the case, and the arguments and trial strategies of counsel.’” Floyd v. State, -So.3d-,-, 2014 WL 30573, 39 Fla. L. Weekly D76, D77 (Fla. 1st DCA Jan. 3, 2014) (quoting Smith v. State, 76 So.3d 379, 383 (Fla. 1st DCA 2011)).

Two statutory provisions are relevant here. Section 776.012, Florida Statutes, entitled “Use of force in defense of person,” provides:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.

§ 776.012, Fla. Stat. (2009).

Section 776.013, Florida Statutes, generally governs use of deadly force in defense of oneself or another in a dwelling, residence or occupied vehicle. Subsection (3), however, states that:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonable believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

§ 776.013(3), Fla. Stat. (2009).

Hardison contends that Standard Jury Instruction 3.6(f), as currently worded, misstates the law because, in explaining the circumstances under which a defendant has the right to use deadly force in self-defense without the duty to retreat, the instruction effectively limits the right to persons “not engaged in unlawful activity.” He argues that, although section 776.013(3) includes such a restriction, section 776.012 does not; rather, under subsection (1), any person, who reasonably believes deadly force is necessary to prevent imminent death or great bodily harm, or an imminent forcible felony, may use such force without retreat, and without regard to whether the person is engaged in unlawful activity. Because the standard instruction failed to state there is no duty to retreat in the face of imminent death or great bodily harm, Hardison argues he was unfairly deprived of his only defense: the justifiable use of deadly force in self-defense when faced with what he believed to be an imminent and deadly threat. Hence, fundamental error occurred, requiring reversal of his conviction.

We have found two decisions from sister courts that, although they do not consider the justifiable use of deadly force jury instruction, discuss the scope of the defense under sections 776.012(1) and 776.012(3), and, in some measure, tend to support Hardison’s argument. First, the Second District, in Little v. State, 111 So.3d 214 (Fla. 2d DCA 2013), considered whether a person may claim justifiable use of deadly force under section 776.012(1), and therefore, immunity from criminal prosecution under section 776.032(1), even though he or she was engaged in unlawful activity at the time. Although not central to its holding in the case, the court, answering the State’s “Tipsy Coachman” argument,, determined:

Section 776.013(3) applies when a person is (1) not engaged in an unlawful activity and (2) attacked in any place outside the “castle” as long as (3) he or she has a right to be there. A person who does not meet these three requirements would look to section 776.012(1) to determine whether the use of deadly force was justified....
The requirements under sections 776.012(1) and 776.013(3) are not identical. A person proceeding under section 776.013(3) would have to prove that he or she reasonably believed the use of deadly force was “necessary ... to prevent death or great bodily harm ... or to prevent the commission of a forcible felony.” Under section 776.012(1), a person would have to prove that he or she reasonably believed the use of deadly force was “necessary to prevent imminent death or great bodily harm ... or to prevent the imminent commission of a forcible felony.”

Little, 111 So.3d at 221 (emphasis in original). The court went on to certify the question to the Florida Supreme Court as one of great public importance. Id. at 222-23.

Next, in State v. Wonder, 128 So.3d 867 (Fla. 4th DCA 2013), which also dealt with stand-your-ground immunity from prosecution, the State challenged the trial court’s decision to grant the appellant’s motion to dismiss under section 776.012(1), arguing that the court erroneously concluded the appellant was not engaged in unlawful activity. Concurring with the analysis in Little, the Fourth District concluded the matter of unlawful activity was irrelevant in any event, because the appellant sought immunity only under section 776.012(1), not section 776.013, and “[t]he exception for a defendant’s engagement in ‘unlawful activity’ does not exist under section 776.012.” Wonder, 128 So.3d at 869.

These decisions suggest that Standard Jury Instruction 3.6(f) could stand revision to clarify the circumstances under which the use of deadly force is justified. However, we make no such assertion today, and we decidedly do not hold that the standard instruction is fundamentally flawed. We do hold, however, that even if Hardison is correct that the portion of the standard instruction corresponding to section 776.012(1) erroneously omits the “no duty to retreat” statutory language, such omission did not result in fundamental error in his case.

Hardison testified at trial, admitting to being a convicted felon. Thus, his being in possession of a firearm was relevant. Hardison asserts that his defense hinged on his reasonable belief he was under threat of imminent death or great bodily harm. The trial court instructed the jury, based on the standard instruction, that:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Angelo Hardison is charged if the death of Johnny Banks resulted from the justifiable use of deadly force. Deadly force means force likely to cause death or great bodily harm. A •person is justified in using deadly force if he reasonably believes that such force is necessary to prevent, one, imminent death or great bodily harm to himself, or, two, the imminent commission of felony battery against himself.

(Emphasis added.) Further, at the request of defense counsel, the court included the following modification, based on Marrero v. State, 516 So.2d 1052 (Fla. 3d DCA 1987), to the portion of the standard instruction discussing unlawful activity:

However, in certain circumstances, a convicted felon may lawfully possess a firearm. Those circumstances are, one, the felon must be in present, imminent and impending peril of death or serious bodily injury, or reasonably believed himself or others to be in such danger; two, the felon must not have intentionally or recklessly placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct. Three, the felon must not have any reasonable, legal alternative to possession the firearm. Four, the firearm must be made available to the felon without preconceived design. And, five, the felon must give up possession of the firearm as soon as necessity or apparent necessity ends.

(Emphasis added.) Had the instruction not included the language based on Marre- to, thereby potentially leading the jury to judge Hardison’s defense solely on his unlawful possession of a firearm, we might be inclined to find merit in his claim of fundamental error. But when we consider the complete instruction on justifiable use of deadly force given in this case, we find the jury was sufficiently instructed that, absent a reasonable belief he was under threat of imminent death or great bodily harm, or imminent commission of a forcible felony, Hardison’s use of deadly force in self-defense was not justified. The evidence put before the jury could support a finding that, Hardison’s belief that the threat was imminent was unreasonable, whether or not he was engaged in unlawful activity. For these reasons, we conclude no fundamental error occurred, and, we AFFIRM Hardison’s conviction and sentence.

ROBERTS and WETHERELL, JJ„ concur.

      .776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—
      (1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer ... who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

      § 776.032(1), Fla. Stat. (2010).

      . The Second District found the trial erred in ruling that the appellant was not entitled to stand-your-ground immunity under circumstances permitted in section 776.012(1) because appellant had re-engaged his assailant after retreating to safety. Little, 111 So.3d at 216-18. The State urged affirmance, arguing that the appellant was not entitled to protection under section 776.012(1) because he was engaged in unlawful activity — felon in possession of a firearm — at the time. Id. at 218-19.

      . See generally Powell v. State, 120 So.3d 577, 590 (Fla. 1st DCA 2013) (explaining tipsy coachman doctrine).

      . Marrero sets forth the elements of the "necessity" or "justification" defense against a charge of possession of a firearm by a convicted felon. Marrero, 516 So.2d at 1055; see also Wade v. State, 610 So.2d 664, 666-67 (Fla. 1st DCA 1992) (holding trial court erred by failing to give jury instruction on necessity defense in prosecution for attempted second-degree murder, aggravated battery with firearm, and possession of firearm by convicted felon, even though court gave instruction on justifiable use of deadly force).


author: VAN NORTWICK, J.

text:
    Courtney McCORD (Parent) and Ben McCord (Minor), Appellants, v. Karen CASSADY (Parent) o/b/o Alexander Cassady (Minor), Appellees.
    No. 1D12-5936.
    District Court of Appeal of Florida, First District.
    May 14, 2014.
    Michelle M. Roth, Ft. Lauderdale, for Appellants.
    A. Collin Cherry, Tallahassee, for Appel-lees.
   VAN NORTWICK, J.

Courtney McCord, the parent of the minor Ben McCord, challenges the entry of an injunction for protection against repeat violence entered on the authority of section 784.046, Florida Statutes (2012). This injunction issued for the benefit of another minor, Alex Cassady, whose parent, Karen Cassady, petitioned for injunctive relief on her son’s behalf. Because Ms. Cassady failed to establish that she was entitled, on behalf of her son, to an injunction for protection against repeat violence, we reverse the final judgment.

For a time, Alex Cassady and Ben McCord attended the same middle school, attended the same church, and lived near one another. In April 2011, Ms. Cassady sought an injunction for protection against repeat violence on behalf of her minor son Alex, who was then 14 years of age. Attached to the petition for an injunction was a sworn affidavit in which Alex Cassady detailed instances of actual and threatened harm against him by Ben McCord. A temporary injunction issued, but was dissolved when the parties later stipulated to a “no contact” order. By this order, Ben McCord was directed to have no contact with Alex Cassady and to stay 500 feet away from the Cassady residence, Swift Creek Middle School, and Capital City Christian Church. Ben McCord was further ordered not to commit any acts of violence against Alex Cassady; and he was prohibited from possession of any firearm, ammunition, or “any form of weapon including archery equipment or knives.” Neither the temporary injunction nor the “no contact” order contained findings of fact as to any acts of violence or stalking committed by Ben McCord.

On July 30, 2012, Ms. Cassady filed a “Motion for Modification of Injunction for Protection Against Repeat Violence.” By this pleading, Ms. Cassady sought to add a specific provision regarding Alex’s high school which he was scheduled to soon attend. In response, Ms. McCord sought to dismiss the previously issued “no contact” order, arguing that such an order was unauthorized by law.

An evidentiary hearing was granted on Ms. Cassady’s motion of July 30, 2012, and thereafter, the trial court entered an order styled “Order Ruling on Pending Motions and Clarifying Injunction.” In this order, the trial court notes that Ms. McCord moved to dismiss the previously entered “no contact” order, but the trial court did not specifically rule on the motion to dismiss. The trial court did make detailed factual findings regarding instances of violence or stalking committed by Ben McCord upon Alex Cassady. The trial court made no findings, however, as to the dates of the commission of these acts of violence or stalking. A separate injunction against repeat violence thereafter issued on November 14, 2012, broadly prohibiting contact of Alex Cassady by Ben McCord.

To be granted an injunction for protection against repeat violence, a petitioner must show that he or she has actually been the victim of repeat violence. § 784.046(4)(a), Fla. Stat. (2012). In order to establish “repeat violence,” the governing statute provides that it must be shown that at least “two incidents of violence or stalking [were] committed by the respondent, one of which must have been within six months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(l)(b); see Cannon v. Thomas, 133 So.3d 634 (Fla. 1st DCA 2014).

On appeal, Ms. McCord argues that the injunction lacks a sufficient factual basis. The trial court was free to accept the testimony of Alex Cassady. That testimony alone could have supported the issuance of an injunction had he testified as to an act of violence or stalking within six months of the filing of the motion of July 30, 2012. See Windom v. State, 886 So.2d 915, 927 (Fla.2004) (“This Court has held that it will not substitute its judgment for that of the trial court on questions of fact, and likewise on the credibility of witnesses and the weight given to the evidence so long as the trial court’s findings are supported by competent, substantial evidence.”). There was no evidence, however, that Ben McCord committed an act of violence or stalking within six months of the filing of the motion of July 30, 2012. Indeed, all of the conduct found by the trial court to have constituted acts of violence or stalking by Ben McCord occurred no later than April 2011.

Because the stipulated “no contact” order contained no factual findings which would support issuance of an injunction for protection against repeat violence pursuant to section 784.046, the order cannot be construed as such an injunction. As this court has explained, in the absence of proof of the statutory prerequisites, we cannot deem a no contact order as being, in effect, an injunction for protection against repeat violence. Horne v. Endres, 61 So.3d 428, 431 (Fla. 1st DCA 2011). In fact, the “no contact” order does not purport to be issued on the authority of section 784.046, although it does repeatedly employ the term “injunction.”

Furthermore, by entry of the injunction under review, the trial court did not simply modify the previously entered “no contact” order despite the fact that the parties could, by the express provisions of that order, move to modify or dismiss it. Instead, the trial court entered, for the first time, a final judgment of injunction for protection against repeat violence on the authority of section 784.046. In so doing, the trial court utilized Form 12.980(Z), the standard form approved by Florida Supreme Court for use in the entry of a final judgment of injunction for protection against repeat violence. Thus, we are constrained to reverse the injunction because there is no evidence of an act of violence or stalking within six months of the filing of Ms. McCord’s motion of July 30, 2012, which the trial court treated as a petition for an injunction for protection against repeat violence. See § 784.046(l)(b). The final judgment of injunction cannot relate back to the original petition of April 2011 because, by stipulating to the “no contact” order, Ms. Cassady effectively abandoned her request for relief accorded by section 784.046. As noted, a “no contact” order such as the one issued below is not the equivalent of an injunction issued on the authority of section 784.046. See Home, 61 So.3d 428.

REVERSED.

WOLF and CLARK, JJ., concur.

      . The propriety of the consent order is not before us as that order was not the subject of the notice of appeal. We note that neither the "Order Ruling on Pending Motions and Clarifying Injunction” nor the final judgment of injunction entered on November 14, 2012, expressly vacates that order.

      . Originally adopted in In re Amendments to the Florida Family Law Rules, 713 So.2d 1 (Fla. 1998).


text:
    Natalia PEYSINA, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D14-8.
    District Court of Appeal of Florida, Third District.
    May 14, 2014.

      Parrish & Yarnell, P.A., and Jon D. Parrish (Naples), for appellant.
    Morris, Laing, Evans, Brock & Kennedy, CHTD, and Jeremy W. Harris, Khari E. Taustin, Masimba M. Matamba, and Angela Barbosa Wilborn (West Palm Beach), for appellee.
    Before WELLS, LAGOA, and LOGUE, JJ.
   PER CURIAM.

We affirm because competent, substantial evidence supports the trial court’s finding that Deutsche Bank National Trust Company conducted an adequate search to locate Natalia Peysina prior to constructive service. See generally Giron v. Ugly Mortg., Inc., 935 So.2d 580, 582 (Fla. 3d DCA 2006) (“If there is a challenge to constructive service, the trial court has the duty of determining ... whether the plaintiff conducted an adequate search to locate the defendants. Our standard of review determines whether there was competent substantial evidence to support the decision of the trial judge.”) (internal citation omitted).


text:
    JOHNS EASTERN COMPANY and Indian River County BCC, Appellants, v. Jerald BELLAMY, Appellee.
    No. 1D13-3613.
    District Court of Appeal of Florida, First District.
    May 14, 2014.
    William H. Rogner and Paul L. Westcott of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellants.
    Stacy J. Ford of Litigation and Appeals Advocacy, PLLC, Saint Cloud, for Appel-lee.
   ON APPELLANTS’ MOTIONS FOR CLARIFICATION, REHEARING, REHEARING EN BANC AND AP-PELLEE’S MOTION FOR REHEARING

PER CURIAM.

Appellants’ motions for clarification, rehearing, and rehearing en banc are denied. Appellee’s motion for rehearing is granted. For this reason, we have, by separate order, vacated this Court’s April 21, 2014, order denying fees. Upon review of the motion, we provisionally grant Appel-lee/Claimant’s motion for appellate attorney’s fees under section 440.34(5), Florida Statutes (2011), conditioned on Claimant’s success before the Judge of Compensation Claims (JCC). Specifically, if the JCC determines that the E/C successfully rebutted the occupational causation presumption, attorney’s fees shall be denied by the JCC. If, however, the JCC finds that the presumption was not rebutted, attorney’s fees shall be awarded in an amount to be determined by the JCC in accordance with the procedures set forth below.

Should appellate attorney’s fees be awarded, the parties may stipulate to the amount of attorney fees and costs and submit the stipulation to the JCC for approval pursuant to Florida Administrative Code Rule 60Q-6.124. Should appellate fees be awarded and the parties not stipulate, Claimant shall serve, and file with the lower tribunal, a verified petition to determine the amount of appellate attorney’s fees and costs within 15 days from the date of the order entered on remand. The verified petition shall include:

1. a statement of the facts relied upon including, but not limited to, a detailed chronological listing of all time and corresponding services devoted to the appeal, the usual hourly rate(s) of the attorney or attorneys performing the services, and any special circumstances relevant under any of the factors set forth in rule 4-1.5(b)(l) of the Rules Regulating the Florida Bar. The verified petition shall also include an opinion as to what amount or range of dollar values would constitute a reasonable hourly rate in the particular case and a reasonable fee amount;
2. a list of all exhibits to be offered in support of the amount of the fee award; copies of documents to be submitted as exhibits shall be attached to the petition;
3. a detailed list of all taxable costs advanced or incurred; and
4. a list of all witnesses to be called and a short statement, based on diligent investigation, of what each witness is expected to testify to.

Within 20 days after the verified petition is served, the opposing party or parties shall respond to the petition and shall include a recitation of all matters alleged in the verified petition which are disputed. If the time allegedly spent is in dispute, any party disputing the allegation of time spent shall, along with the verified response, produce a detailed chronological listing of all time devoted to the appeal by the disputing party on each entry on which there is any dispute. The respondent may also state opinions and facts as to any factor not addressed by the party filing the verified petition. In all other respects, the verified response shall be prepared in the same manner as the verified petition.

All parties shall promptly provide any amended or updated information in the same form in which the original information was provided.

The parties may waive a formal hearing before the JCC in which case the JCC shall decide the motion based on the verified pleadings. Mediation shall not be required. If there are disputed issues of fact and the parties do not waive an evi-dentiary hearing, the JCC shall hold the evidentiary hearing within 45 days of the date Claimant files and serves the verified petition for attorney’s fees. Accordingly, jurisdiction is hereby relinquished to the lower tribunal for a period of 90 days from the date of this order to determine entitlement to (based on the criteria provided above), and (if entitlement is awarded) the amount of, attorney’s fees.

Review shall be in accordance with Florida Rule of Appellate Procedure 9.400(c).

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    David Matthew MOORE, Petitioner, v. U.S. BANK, N.A., Respondent.
    No. 1D14-1092.
    District Court of Appeal of Florida, First District.
    May 14, 2014.
    Sheldon J. Vann of the Law Offices of Sheldon J. Van, Jacksonville, for Petitioner.

      Jeremy W. Harris, Khari E. Taustin, Masimba Mutamba, and Angela Barbosa Wilborn of Morris, Laing, Evans, Brock & Kennedy, CHTD, West Palm Beach, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is dismissed as untimely. We decline petitioner’s suggestion that we treat the petition as seeking prohibition relief. See Campbell v. Lungstrum, 732 So.2d 437 (Fla. 1st DCA 1999).

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


text:
    Thomas KELSEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0731.
    District Court of Appeal of Florida, First District.
    May 15, 2014.
    Thomas Kelsey, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Slocum v. State, 95 So.3d 911 (Fla. 1st DCA 2012).

LEWIS, C. J., THOMAS and OSTERHAUS, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Little Robert ROBERTSON, Petitioner, v. STATE of Florida, Respondent.
    No. 2D13-4264.
    District Court of Appeal of Florida, Second District.
    May 16, 2014.
    Little Robert Robertson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

Little Robert Robertson seeks a writ of certiorari to quash a circuit court order dismissing as untimely his motion to mitigate his sentence. We grant the petition.

In September 2011, Robertson was sentenced to a ten-year probationary term for extortion. He filed a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850, challenging two conditions of probation. The State conceded that they were special conditions and that they had not been orally pronounced. The postconviction court granted Robertson’s motion and struck the two conditions.

Within sixty days of that order, Robertson filed a motion to mitigate his sentence under rule 3.800(c). Robertson scheduled a hearing on the motion, but he was given a hearing date that was beyond the sixty-day window permitted in the rule. He then filed a motion for enlargement of time. See Fla. R.Crim. P. 3.050. Instead, the circuit court summarily dismissed the motion to mitigate. The court concluded that the motion was untimely because it was filed more than sixty days after the original sentence was imposed and that the court thus lacked jurisdiction.

A certiorari petition is the proper method for challenging the dismissal of a rule 8.800(c) motion as untimely. Moya v. State, 668 So.2d 279 (Fla. 2d DCA 1996). Rule 3.800(c) provides in pertinent part as follows:

A court may reduce or modify ... a legal sentence imposed by it, sua sponte, or upon motion filed, within 60 days after the imposition, or within 60 days after receipt by the court of a mandate issued by the appellate court on affir-mance of the judgment and/or sentence on an original appeal, or within 60 days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, within 60 days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari.

(Emphasis added.)

Citing the language of the rule, Robertson points out that his initial sentence was illegal because it contained improper probation conditions. He argues that his legal sentence occurred when the circuit court granted his motion to correct his initial sentence. Thus, his motion to mitigate, filed within 60 days of the latter order, was timely. We agree that, under the plain language of rule 3.800(e), Robertson’s motion was timely. See Griffin v. State, 979 So.2d 1253,1255 (Fla. 4th DCA), review granted, 987 So.2d 1210 (Fla.2008), review dismissed, 4 So.3d 1218 (Fla.2009) (holding that period for mitigating sentence under rule 3.800(c) began when defendant was resentenced following appellate reversal of order denying motion to correct illegal sentence).

We grant the petition for writ of certio-rari and quash the order dismissing Robertson’s rule 3.800(c) motion as untimely.

Petition granted.

VILLANTI and WALLACE, JJ„ Concur.


text:
    Brian WILKS, Appellant/Cross-Appellee, v. Kasey L. CRONIN, Appellee/Cross-Appellant.
    No. 5D13-1685.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2014.

      K. Scott Schlegel, of Schlegel Law Group, Orlando, for Appellant/Cross-Ap-pellee.
    Michael E. Morris, of Morris & Hancock, P.A., Orlando, for Appellee/Cross-Appellant.
   PER CURIAM.

The former husband, Brian Wilks, appeals the Order Granting Former Wife’s Motion To Dismiss rendered following an evidentiary hearing. The Order is directed to Wilks’ motion to modify the parties’ parenting plan, particularly his request to modify the time-sharing component regarding their young child. Because there is no competent, substantial evidence to support the trial court’s conclusion that there was no substantial change of circumstances, and because the trial court failed to consider all of the elements of sections 61.13(2)(c) and (3), Florida Statutes (2013), we reverse and remand for further proceedings.

Wilks and the former wife are both police officers. Wilks worked the night shift at the time the parenting plan was agreed to by the parties and approved by the court. Wilks’ change to the day shift gave Wilks the ability to be available to the child in a more significant way, leading Wilks to file his modification request to increase his share of time with the child. The former wife opposed the request.

In order to modify the time-sharing provisions of a parenting plan, sections 61.13(2)(c) and (3) require that the modification be in the best interest of the child and be based upon a substantial, material, and unanticipated change in circumstances. The trial court determined that the requested modification was not based on a substantial change of circumstances, but there is no competent, substantial evidence in the record to support that conclusion. In addition, the trial court held that the shift change was voluntary, but involuntariness of the change is not a requirement under the statute; consequently, the trial court erred in basing its decision on that finding. Furthermore, the trial court never considered the best interest of the child or whether the change was material, as required by the statute. Accordingly, we reverse the order under review and remand this case to the trial court for a hearing to determine the statutory requirements under sections 61.13(2)(c) and (3).

REVERSED; and REMANDED.

TORPY, C.J., SAWAYA, and BERGER, JJ., concur.

      . Although the Order is titled as one granting a motion to dismiss, the Order contains the necessary findings and conclusions that dispose of the case on the merits with finality; hence, it is a final order reviewable by this court.

      . The former wife’s issue on cross-appeal is without merit and does not warrant further discussion.