author: WALLACE, Judge. ALTENBERND, J.

text:
    Claudia PASSAMONDI, Appellant, v. Steve Dominic PASSAMONDI, Individually and as Personal Representative of the Estate of Anthony Passamondi, deceased, Edward Frank Passamondi, and Stephanie Cuebas, Appellees.
    No. 2D12-768.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2014.

      Herman H. Tarnow of Tarnow Law Firm, PL, Naples, for Appellant.
    No appearance for Appellees.
   WALLACE, Judge.

Claudia Passamondi (the Former Wife) challenges the trial court’s order dismissing her claims for the determination of property issues in a bifurcated dissolution of marriage proceeding. The dismissal followed the death of Anthony Passamondi (the Former Husband). Because the trial court erred in determining that it lacked jurisdiction because of the death of the Former Husband, we reverse and remand for further proceedings.

I. THE FACTS AND PROCEDURAL BACKGROUND

The Former Husband and the Former Wife were married in 1988. In January 2006, the Former Husband filed a petition seeking the dissolution of the parties’ marriage. The Former Wife answered the petition and counter-petitioned for dissolution of the marriage and for other relief.

When the Former Husband filed his petition, he was suffering from a terminal illness. For this reason, he filed a motion requesting a bifurcation of the proceedings. The trial court granted the motion. On May 24, 2006, the trial court entered a final judgment dissolving the parties’ marriage. In the final judgment, the trial court specifically “reserve[d] jurisdiction over this cause and each of the parties to enter such further Orders, Judgments, and Decrees as may be necessary at any time in the future to resolve all equitable distribution issues and any other issues which have been pled.”

The Former Husband died on July 26, 2006. One of the Former Husband’s three children, Steve Dominic Passamondi, filed a petition for the administration of the Former Husband’s estate in the Collier County Circuit Court. The probate court granted the petition and appointed Steve Dominic Passamondi as the personal representative of his father’s estate. The Former Wife filed a claim in the probate estate on October 24, 2006. The Former Wife described the basis for her claim as her “undetermined marital interest in all of the real, personal and intangible property of decedent preceding his death as so determined in” the pending dissolution of marriage proceeding.

The Former Wife also filed a supplemental petition for relief in the dissolution of marriage proceeding against the Former Husband’s estate and his three children, Steve Dominic Passamondi, Edward Frank Passamondi, and Stephanie Cuebas. These additional parties filed answers to the Former Wife’s supplemental petition. After the passage of approximately four years, the circuit court set all pending matters in the dissolution of marriage proceeding for a final hearing on October 17, 2011. In the meantime, on May 17, 2011, the probate court entered an order terminating the probate proceeding.

When the parties appeared for the final hearing, the trial court declined to hear and to determine the remaining issues. In a written order, the trial court memorialized its ruling, in pertinent part, as follows:

H. That by virtue of the death of the Former Husband and the opening of a Probate Estate for him, the Probate Court was vested with exclusive control over the Former Husband’s assets and the Probate Court had exclusive jurisdiction to determine the proper manner of distribution of the Former Husband’s assets after payment of all creditors of the Estate of which the Former Wife was one....

Based on this ruling, the trial court concluded that it did not have jurisdiction to hear and to determine the claims of the Former Wife. Accordingly, the trial court dismissed the Former Wife’s claims. The Former Wife filed a motion for rehearing and cited case law in support of her position that the trial court did have jurisdiction to hear and to determine her claims. The trial court denied the motion without explanation. This appeal followed.

II. DISCUSSION

We begin our discussion by noting that the appellees have not seen fit to favor this court with a brief. As this court has previously observed concerning the failure of an appellee to file a brief in support of the trial court’s order or judgment:

Failure to file a brief places an undue burden on the appellate court and reflects an omission of appellee’s responsibility to support the trial court. If the ruling of the trial court is not worthy of support, then appellee ought to confess error and join with the appellant in seeking reversal.

Geisler v. Geisler, 397 So.2d 1216, 1217 n. 1 (Fla. 2d DCA 1981). We turn now to the merits.

If a trial court bifurcates a proceeding for dissolution of marriage by entering a judgment dissolving the marriage but retaining jurisdiction to determine property issues, the subsequent death of a party does not deprive the trial court of jurisdiction to determine the issues reserved. See Fernandez v. Fernandez, 648 So.2d 712, 714 (Fla.1995). In this case, the trial court had entered a final judgment dissolving the parties’ marriage and retaining jurisdiction to determine all other issues before the death of the Former Husband. Therefore, the trial court incorrectly concluded that it did not have jurisdiction to hear and to determine the Former Wife’s claims. It follows that the trial court’s dismissal of the Former Wife’s remaining claims constituted error. For this reason, we reverse the trial court’s order and remand this case to the trial court for further proceedings.

Reversed and remanded.

BLACK, J., Concurs.

ALTENBERND, J.

Concurs with opinion.

I agree that the death of the Former Husband after the entry of the final judgment of dissolution in this bifurcated proceeding did not divest the circuit court of jurisdiction. That said, this case is procedurally quite different from Fernandez v. Fernandez, 648 So.2d 712 (Fla.1995). The Former Wife filed a timely claim in the probate proceeding for her marital interest in the Former Husband’s estate. It is unclear from our limited record what occurred in the probate proceeding, but the probate proceeding has been closed for more than two years. I do not understand what marital assets may remain under the jurisdiction of the circuit court in the dissolution proceeding or what claims might exist against third parties in that case. Thus, I agree that the court continues to have jurisdiction in this dissolution proceeding at least as to claims against Edward Frank Passamondi, Stephanie Cuebas, and Steve Dominic Passamondi, individually, but I express no opinion on the court’s ability to distribute marital assets or to enter orders against the personal representative of a closed probate estate.

      . The probate proceedings are not included in our record. Thus we are unable to determine with certainty why the probate court closed the proceedings for the administration of the Former Husband's estate. However, the Former Wife stated in a pleading filed in the proceeding for dissolution of marriage that "the Probate matter was terminated without any action taken with respect to the claim of Claudia Passamondi. It appears that the termination of the action was done because of the failure of the Administrator to take any further action.”


source: Caselaw Access Project

author: SHEPHERD, C.J.

license: Public Domain

text:
    James R. COURTNEY, Appellant, v. CATALINA, LTD., etc., Appellee.
    No. 3D12-1209.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2014.
    Arthur J. Morburger, for appellant.
    James H. Pinkert, for appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and LAGOA, JJ.
   SHEPHERD, C.J.

James R. Courtney appeals an order denying his motion to vacate a final order of dismissal for want of prosecution rendered under Florida Rule of Civil Procedure 1.420(e). Courtney contended below, and continues to maintain here, that his motion should have been granted because it is undisputed in the record that he did not receive either the notice of inactivity or the final order of dismissal. We agree and reverse the order of the trial court.

FACTS AND PROCEDURAL HISTORY

On May 15, 2009, James R. Courtney filed this action against Catalina, Ltd. On February 11, 2011, the trial court issued a computer-generated Notice of Lack of Prosecution in compliance with Florida Rule of Civil Procedure 1.420(e). The notice stated that no activity appeared of record during the preceding ten months, and the case would be dismissed at a hearing scheduled for that purpose on May 20, 2011, unless, not later than five days before the date of hearing, Courtney filed a copy of the docket exhibiting record activity within sixty days of the date of notice, or otherwise showed cause to the court in writing, filed by the same deadline, and appeared at the hearing as well. The court’s notice of service, found at the foot of the Notice of Lack of Prosecution, which also appears to be computer-generated, reads as follows: “cc: Counsel/Parties of Record.” On May 20, 2011, the trial court dismissed the case sua sponte for want of prosecution, with the same notice of service at the foot of the order.

On April 13, 2012, Courtney’s attorney filed a verified motion to vacate the order of dismissal pursuant to Florida Rule of Civil Procedure 1.540(b)(4), which authorizes a trial court to afford relief to a party when “[a] judgment or decree is void.” Attached to the verified motion was counsel’s affidavit asserting that the notice and order were never served on him or co-counsel. Opposing counsel has not argued to the contrary. The trial court denied the motion on the ground that the availability to counsel of the online docket satisfied the notice requirement.

ANALYSIS

Florida Rule of Civil Procedure 1.420(e) requires that a notice of inactivity be “serve[d]” upon all parties. Fla. R. Civ. P. 1.420(e). Rule 1.080(a) likewise requires “all orders” issued by a trial court to be “served in conformity with the requirements of Florida Rule of Judicial Administration 2.516.” Florida Rule of Judicial Administration 2.516 delineates the permissible methods of service of pleadings and other documents by parties and court orders. Postings to an online court docket are not encompassed by the rule. See Fla. R. Jud. Admin. 2.516(b).

There is no evidence in the record refuting Courtney’s counsel’s contention that he did not receive service of the notice of inactivity or dismissal order. The failure of a court to properly effect service of a notice of inactivity deprives a plaintiff of the “opportunity to avail [himself] of the sixty-day period provided by rule within which to act.” Boosinger v. Davis, 46 So.3d 152, 154 (Fla. 2d DCA 2010). Counsel for the defendant, Catalina, Ltd., has neither offered evidence nor argued to the contrary either below or here on appeal. We conclude the trial court abused its discretion in refusing to vacate the order of dismissal. Deutsche Bank Nat’l Trust Co. v. Basanta, 88 So.3d 216, 218 (Fla. 3d DCA 2011) (quoting Boosinger, 46 So.3d at 153).

We reverse the order denying the motion to vacate and remand with the direction that the order of dismissal be vacated.


author: ROTHENBERG, J.

text:
    Pleadro J. SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 3D13-3131.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2014.

      Pleadro J. Scott, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   ROTHENBERG, J.

Pleadro J. Scott (“Scott”) seeks a writ of mandamus compelling the Miami-Dade Corrections and Rehabilitation Department (“the Department”) to issue him an envelope and postage for the purpose of sending legal mail. After a jury conviction and subsequent appeal, Scott filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, asserting ineffective assistance of counsel. The trial court denied Scott’s rule 3.850 motion on October 29, 2013 as legally insufficient, but gave him forty-five days to amend his motion. Scott, however, is currently incarcerated, indigent, and unable to afford the requisite manila envelopes and stamps to mail his amended petition. Scott has requested postage on numerous occasions, but the Department refuses to provide anything more than a regular envelope and a single stamp, which are insufficient to send Scott’s amended 3.850 motion.

“Mandamus is a recognized remedy to require a public official, who is clothed with the authority, to discharge his duty.” Dante v. Ryan, 979 So.2d 1122, 1123 (Fla. 3d DCA 2008) (quoting Alexander v. City of Coral Gables, 745 So.2d 1004, 1005 (Fla. 3d DCA 1999)). Writs of mandamus are extraordinary remedies that “may not be used to establish the existence of an enforceable right, but rather only to enforce a right already clearly and certainly established in the law.” Fla. Caucus of Black State Legislators, Inc. v. Crosby, 877 So.2d 861, 863 (Fla. 1st DCA 2004) (quoting Sancho v. Joanos, 715 So.2d 382, 385 (Fla. 1st DCA 1998)). Typically, a prisoner must exhaust all administrative remedies before seeking such a writ. See Dante, 979 So.2d at 1123 (“Prior to issuing an extraordinary writ, however, all administrative remedies must be exhausted.”); but cf. Henry v. Santana, 62 So.3d 1122, 1129 (Fla.2011) (finding that a court may not sua sponte raise a prisoner’s failure to exhaust administrative remedies in order to dismiss a writ of habeas corpus when the prisoner is seeking immediate release).

According to the record, Scott has submitted several grievances to the Department regarding his mailing issue, all of which were denied. Additionally, Scott specifically wrote that he needed a manila envelope to file his pleadings after his initial grievance was denied, and the Department informed Scott, in writing, “Rejected grievances can not [sic] be appealed.” The Department is incorrect in this assertion, see Fla. Admin. Code R. 33-103.007 (allowing appeals from grievances to the Office of the Secretary), but we nonetheless hold that Scott has sufficiently exhausted his administrative remedies for a court to address his claim.

This Court, however, is not the proper court to decide that issue. The Florida Constitution vests circuit courts with the power to issue writs of mandamus necessary or proper to the exercise of their jurisdiction, Fla. Const. Art. 5, § 5, and also vests district courts of appeal with the power to issue writs of mandamus necessary to complete the exercise of their respective jurisdiction, Fla. Const. Art. 5, § 4; see also Fla. R. App. P. 9.030. Although both courts have original jurisdiction to issue writs of mandamus, circuit courts typically have authority over mandamus actions stemming directly from a department of correction’s failure to act, see Bush v. State, 945 So.2d 1207, 1210 (Fla.2006) (“[0]nce a prisoner has exhausted administrative remedies, he or she generally may seek relief in an original proceeding filed in circuit court as an extraordinary writ petition.”) (emphasis added), while district courts typically address mandamus actions requiring a circuit court judge to act, see, e.g., Estevez v. Gordon, 386 So.2d 43, 45 (Fla. 3d DCA 1980) (issuing a writ of mandamus to the trial court judge directing him to exercise jurisdiction over the case). As such, Scott should have filed this mandamus petition in the Circuit Court for Miami-Dade County. This is especially so where, as here, Scott is currently housed in the Miami-Dade County jail across the street from the criminal division of the Miami-Dade County Circuit Court; his motion for postconviction relief relates to case number F09-60982, which was tried in Miami-Dade Circuit Court, and the Miami-Dade County Circuit Court has permitted Scott to file an amended rule 3.850 motion and has jurisdiction to assist Scott, who is indigent, in effectuating the filing of his amended motion.

We also note that Scott has available extra-legal remedies. It appears Scott is currently being housed in the Miami-Dade County Jail because he has another open and pending criminal case. Thus, Scott may be able to either ask his current counsel to assist him in the filing of his amended motion; or Scott can calendar his motion with the circuit court, request that he be brought to court, and file the motion in open court.

We therefore deny without prejudice Scott’s petition.

Chief Judge SHEPHERD concurs in result only.


text:
    Ellen SORDO, Appellant, v. Gerard Joseph CAMBLIN, Appellee.
    No. 3D13-353.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2014.

      Lisa A. Baird, Miami, for appellant.
    Cynthia J. Dienstag, Miami, for appel-lee.
    Before ROTHENBERG, LAGOA and EMAS, JJ.
   ROTHENBERG, J.

This appeal arises from the trial court’s modification of the parties’ timesharing plan. Because the trial court’s failure to make specific findings in the final order was not raised in the appellant’s motion for rehearing, and the trial court’s order is supported by competent substantial evidence, we affirm.

The parties, Ellen Sordo (“the mother”) and Gerard Joseph Camblin (“the father”) have been engaged in a highly contentious child custody dispute for over five years since their marriage was dissolved in October 2008. Both parties petitioned the trial court for modification of the timesharing plan because the original plan adopted in the parties’ marital settlement agreement created a rotating four-week schedule that proved to be unworkable, unstable, and contrary to the children’s best interests.

After a four day trial, in which the trial court heard substantial testimony from all interested parties, the trial court ordered modification that provided the parties with nearly equal timesharing and provided more stability for the children. The modification resulted in a three day per month increase, on average, for the father. The order did not specifically make findings of fact to address whether or not the modification was supported by a substantial change in circumstances or was in the best interest of the children, as is typically required under Wade v. Hirschman, 903 So.2d 928 (Fla.2005). The mother filed a motion for rehearing based on several alleged points of error, which the trial court denied. Notably missing from the mother’s motion for rehearing is any objection to the trial court’s failure to make the required findings under Wade.

We review a trial court’s modification of timesharing for an abuse of discretion, and we must affirm if the trial court’s order is supported by competent substantial evidence. McKinnon v. Staats, 899 So.2d 357, 359 (Fla. 1st DCA 2005). Although we agree the trial court should have made specific factual findings on the two required prongs under Wade, the mother has waived this argument by failing to bring it to the trial court’s attention in her motion for rehearing. Hentze v. Denys, 88 So.3d 307, 310-11 (Fla. 1st DCA 2012); Pensacola Beach Pier, Inc. v. King, 66 So.3d 321, 324 (Fla. 1st DCA 2011). We have also performed our independent review of the record and, despite the form of the judgment, it is clear the trial court considered the evidence presented, and the evidence was competent and substantial that there has been a substantial change in circumstances and that the modification is in the best interests of the parties’ three children.

As a final point, we caution the parents in this matter that a continuation of the conduct previously exhibited in this case, which includes the making of false allegations and the alienation of the .children against the other parent, may result in further modification of the timesharing order. If the parties truly care about the welfare and mental health of their children, and wish to enjoy the benefits of parenting their children, they must discontinue such destructive behavior.

Affirmed.


author: EMAS, J.

text:
    R.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-39.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2014.
    Carlos J. Martinez, 'Public Defender, and Brian L. Ellison and Natasha Baker-Bradley, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before WELLS, SUAREZ and EMAS, JJ.
   EMAS, J.

R.M. appeals an order finding him guilty of attempted battery and an order withholding adjudication and sentencing him to probation until his nineteenth birthday. For the reasons that follow, we reverse.

R.M. became engaged in an argument with his father. The argument escalated when his father said “let’s take this outside.” Once outside, the two of them engaged in a physical fight in which R.M. struck his father, Kurt Marshall. The father also struck R.M. during the fight. The fight ended when R.M. and his father were pulled apart and R.M. was restrained by several relatives and the father’s coworkers. R.M. was arrested and charged with battery. The petition for delinquency charged:

Count I: Battery
This Child ... did unlawfully commit battery upon KURT MARSHALL by actually and intentionally touching or striking said person against said person’s will, in violation of s. 784.03 Florida Statutes.

At the adjudicatory hearing, the trial court heard the testimony of R.M.’s father and R.M. There was no dispute that the two of them argued, that the father unbuttoned his shirt and said “let’s take this outside” and that, once outside, the two of them physically fought. At the end of the father’s testimony, in response to a generic question (“What happened next?”), R.M.’s father testified that R.M. “spit at” him after the fight had ended and while R.M. was being restrained by the others. There were no follow-up questions by the State, nor was the father questioned on cross-examination by defense counsel regarding the father’s testimony that R.M. spit at his father after the fight had ended. When R.M. testified, he was not questioned on direct or cross examination whether he spit at his father. Further, neither party in opening statements indicated there would be evidence that R.M. spit at his father, and there was no indication in the delinquency petition, discovery, motions or other pleadings that this act of spitting at (not on) the father was a part of the battery charge.

R.M. moved for a judgment of dismissal and argued that the evidence was insufficient to support a finding of delinquency. During closing arguments, the court made it clear it did not believe the State had proven the battery charge arising from the fight itself because the father had unbuttoned his shirt and told R.M. that they should “take it outside.” The court found this was an invitation to fight, and therefore, a consent by the father to the “touching” that followed. However, the court found that R.M. was delinquent for attempted battery because “spitting at an individual is not a defensive maneuver in any fashion. And certainly beyond a reasonable doubt was not a defensive maneuver in this case.”

The trial court later withheld adjudication of delinquency, and subsequently placed R.M. on probation until his nineteenth birthday. R.M. appeals, asserting that the attempted battery by spitting was a separate act, not part of the allegations of the petition, and R.M. was not reasonably placed on notice of this charge. We agree.

It is axiomatic that “a conviction on a charge not contained in the charging document is considered denial of due process.” N.H.M. v. State, 974 So.2d 484 (Fla. 2d DCA 2008). The exception to this general rule applies when the offense is a necessarily lesser-included offense of the charged offense. Id. If “the offense is a ‘category 2’ or permissive lesser-included offense — the trial court cannot convict the defendant of the lesser crime unless the allegations of the charging document include the elements of that crime.” Id. at 486. The State argues that the delinquent act of “attempted battery” is a permissive lesser-included offense of battery, and that the allegations in the petition and the evidence at trial support a finding of delinquency on that charge.

While an attempted battery can serve as a permissive lesser-included offense of battery, the elements of which are technically alleged in the petition, the State’s argument overlooks the fact that the court determined (and we concur) that the fight (and the actual battery alleged) had already ended at the time of the spitting. There was a temporal break when the four individuals separated R.M. and the father, and R.M. was being restrained at the time R.M. allegedly spat at his father. This act of spitting is not itself alleged in the petition, and there is nothing in this record to indicate that R.M. or his counsel were ever placed on notice (until the court raised the issue during closing argument) that this act of spitting was to be considered a part of the petition or serve as a basis for an adjudication of delinquency. The absence of notice is supported by the fact that neither attorney mentioned the alleged spitting in their opening statement, no evidence or testimony, other than the single unsolicited statement by the father, was introduced into evidence, and the State did not argue or even address the act of spitting in closing. We cannot agree, from the record presented, that R.M. reasonably could have been placed on notice that his adjudicatory hearing was to include this separate allegation that he committed an attempted battery by spitting at his father after the fight had concluded.

Further, the trial court specifically found that the spitting occurred when R.M. was “restrained and the hostilities [had] subsided.” The trial court thus recognized a temporal break between the fight itself and the subsequent act of spitting.

A defendant has a constitutional right to be informed of the nature and cause of the accusations against him. Rose v. State, 507 So.2d 630, 632 (Fla. 5th DCA 1987). A violation of that right constitutes fundamental error. Id. “Proof of another separate and distinctly different crime rather than the one charged constitutes a fatal variance in proof.” Id. Fundamental notions of due process require that we reverse and remand with directions to vacate the adjudication and order of probation and enter a judgment of dismissal.

Reversed and remanded.

      . The act of spitting at (but not on) someone could only constitute, at most, an attempted battery. There was no logical reason for R.M. or his counsel to believe that the battery charge in the petition would subsume the charge of a post-fight attempted battery by spitting. By contrast, if the testimony had established, for example, that during the course of the fight R.M. had never actually struck the father but instead R.M. swung at his father and barely missed hitting him, the allegations in the petition would certainly have placed R.M. on notice of such a permissive lesser included offense and could validly support a finding óf an attempted battery.

      . Of course, because we hold that R.M. was never charged with attempted battery for the alleged act of spitting at his father, there is no double jeopardy bar to the filing of a petition of delinquency which charges such an act. Jaramillo v. State, 659 So.2d 1238 (Fla. 2d DCA 1995).


author: PER CURIAM.

text:
    Celestino P. CASTELLON, M.D., Appellant, v. FLORIDA DEPARTMENT OF HEALTH, Appellee.
    No. 3D13-642.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2014.
    Bill Ullman, for appellant.
    Therese A. Savona and Diane Kay Kies-ling, Florida Department of Health, Tallahassee, for appellee.
    Before SHEPHERD, C.J, and LAGOA and SALTER, JJ.
   PER CURIAM.

Dr. Castellón appeals a final disciplinary order entered by the Florida Department of Health, Board of Medicine, imposing penalties for a violation of section 456.072(l)(cc), Florida Statutes (2012). We affirm in part and reverse in part.

The Department of Health has conceded that there was no basis for the imposition of $5,000.00 in costs in the final order. It has provided record support for the apparent scrivener’s error. The Board of Medicine discussed and ultimately recommended an administrative fine of $5,000.00, as authorized by section 456.072(2)(d), rather than a costs award in that amount. We thus reverse the erroneous paragraph of the final order and remand the case to the Department for the issuance of a corrected final order.

We affirm the final order in all other respects for two reasons. First, Dr. Castellón elected an informal hearing under section 120.57(2), Florida Statutes (2012), only available because of his stipulation that there were no disputed issues of material fact. The allegations of fact in the Department’s administrative complaint alleged that: a sponge had been left in the patient at the conclusion of an operative procedure performed by Dr. Castellón; the sponge was readily palpable; and a subsequent operative procedure was necessary to remove the sponge. These facts established a prima facie case for a consideration of discipline under section 456.072(l)(ce).

Dr. Castellón presented evidence that addressed mitigation rather than those critical facts. He established, and medical records substantiated, that three assistants (one of them a surgeon licensed in Nicaragua, but not yet licensed in Florida) had confirmed through four sponge counts that all sponges had been removed before Dr. Castellón began to close the incision. A second procedure removed the sponge and the patient fully recovered. Dr. Castellón had a forty-year record devoid of disciplinary action. He performed the surgery without charge for a patient unable to pay. All these submissions were addressed to mitigation rather than the critical facts relating to the sponge left in the patient.

The statute is not a strict liability statute; findings as to an enumerated act and as to penalties are expressly permissive rather than mandatory. Abram v. Dep’t. of Health, Bd. of Medicine, 13 So.3d 85 (Fla. 4th DCA 2009). But this brings us to the second reason for affirming the Board regarding its findings that an enumerated act occurred and that discipline should be imposed. The ten-doctor Board which heard the informal appeal thoroughly discussed the mitigating factors, the availability of detection devices that might have prevented the incident, and the possibility that Dr. Castellón relied on the three assistants and four sponge counts as he completed the operation. Two members of the Board voiced substantial concern at the prospect of punishing the surgeon for relying on counts performed by other professionals.

After that discussion, however, all ten members voted to enter the findings in the Department’s final order regarding the enumerated act and the discipline to be imposed. Other than the scrivener’s error detailed above, we find no misinterpretation of law, no procedural error, and no abuse of discretion. The Board of Medicine’s findings are supported by substantial, competent evidence. See Malave v. Dep’t. of Health, Bd. of Med., 881 So.2d 682 (Fla. 5th DCA 2004); § 120.68(7), Fla. Stat. (2012).

The Board of Medicine’s final order is thus reversed with respect to the scrivener’s error pertaining to the fine; affirmed with respect to all other findings and conclusions; and remanded for the correction of the conceded scrivener’s error and issuance of an amended final order.

      . The statute provides that the Board "may” impose discipline for enumerated acts; in this case, the alleged act was leaving a sponge in a patient following a surgical procedure.

      . A later paragraph of the final order correctly assessed costs of $1,200.36 against the appellant.


author: DAVIS, Chief Judge.

text:
    Nova FORMOLO, Petitioner, v. STATE of Florida, Respondent.
    No. 2D13-1207.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2014.
    Nova Formolo, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Respondent.
   DAVIS, Chief Judge.

In this petition for writ of certiorari, Nova Formolo, pro se, challenges the denial of her motion to reduce sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). On December 10, 2012, Formolo filed a timely rule 3.800(c) motion following the entry of her pleas and the resulting sentences in two cases. Under rule 3.800(c), the trial court had ninety days to rule on this motion, after which the motion would be deemed denied. On February 13, 2013, the trial court denied Formolo’s rule 3.800(c) motion, finding that ninety days had elapsed from the date the motion was filed without the entry of an order resolving the motion. The State properly has conceded that the ninety-day time for the trial court to rule on the motion did not end until March 10, 2013, and that the trial court erred by denying the motion on that basis in February. A denial of a rule 3.800(c) motion based on an erroneous calculation of time is one of the limited bases on which certiorari relief is available for rulings on motions to modify or reduce sentences. See generally Lancaster v. State, 821 So.2d 416, 417 (Fla. 2d DCA 2002). Accordingly, we grant Formolo’s petition and quash the order denying her 3.800(c) motion.

Absent any guidance from caselaw, the entry of the order on February 13, 2013, at least acted to toll the remaining portion of the ninety-day period that would have otherwise expired on March 10, 2013. The trial court should have the time remaining from the date of tolling until the expiration of the ninety-day period to rule on the motion, and the trial court may extend the time for ruling pursuant to rule 3.800(c).

Granted.

CRENSHAW and BLACK, JJ., Concur.


text:
    Javier Enrique ORDUNEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2264.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2014.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed without prejudice to any right Ordunez may have to file a motion for postconviction relief. See Fisher v. State, 35 So.3d 143 (Fla. 2d DCA 2010).

SILBERMAN, WALLACE, and MORRIS, JJ., Concur.


author: SUAREZ, J.

text:
    Rodney LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1683.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2014.
    Rodney Lee, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and SALTER.
   ON MOTION TO RELINQUISH JURISDICTION

SUAREZ, J.

Rodney Lee moves this Court to relinquish jurisdiction to the trial court in order for his timely filed, amended post-conviction petition to be heard in lower case number F08-30344. We relinquish jurisdiction to the circuit court for thirty days for the court to enter a final order encompassing all of Lee’s claims. The circuit court clerk shall immediately supplement the record upon rendition of the final order.

Jurisdiction relinquished with directions.


text:
    Aaron MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4034.
    District Court of Appeal of Florida, First District.
    Jan. 22, 2014.
    Aaron Moore, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Falcon v. State, 111 So.3d 973 (Fla. 1st DCA 2013); Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012); see also Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012).

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


text:
    Michael A. TRIMUAR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5942.
    District Court of Appeal of Florida, First District.
    Jan. 22, 2014.

      Michael A. Trimuar, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Department of Corrections, for Respondent.
   PER CURIAM.

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

LEWIS, C. J., PADOVANO and MARSTILLER, JJ., concur.


text:
    Danny O. DAVIS, Appellant, v. STATE of Florida, et al., Appellee.
    No. 1D13-5558.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2014.
    Danny 0. Davis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of December 11, 2013, the Court has determined that it lacks jurisdiction to review the. order on appeal. Accordingly, the appeal is dismissed.

CLARK, WETHERELL, and RAY, JJ., concur.


text:
    Anthony D. BRAGGS, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-5564.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2014.
    Anthony D. Braggs, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED as untimely. See Dale v. State, 981 So.2d 1222 (Fla. 1st DCA 2008).

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


text:
    Billy Ray CHANCE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5793.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2014.
    Billy Ray Chance, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED without prejudice to the appellant’s right to file a petition for a belated appeal.

CLARK, WETHERELL, and RAY, JJ., concur.


author: ALTENBERND, Judge.

text:
    In the Interest of J.B. and J.B., children. J.B., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D13-4044.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2014.

      Cynthia I. Waisman of Cynthia I. Wais-man, P.A., Clearwater, for Appellant.
    Bernie McCabe, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Appellee Department of Children and Family Services.
    Laura E. Lawson, Tavares, for Appellee Guardian ad Litem Program.
   ALTENBERND, Judge.

J.B., the father, appeals an order placing his two children in a permanent guardianship and terminating protective supervision. This case involves essentially the same error that occurred in P.P. v. Dep’t of Children & Family Servs., 86 So.3d 556 (Fla. 2d DCA 2012). Although the decision reached in the order on appeal might ultimately prove to be the best outcome for one of the children, J.B. was entitled to adequate notice and an opportunity to prepare for the permanency hearing on these issues. Moreover, the procedure used did not result in an adequate evidentiary hearing to establish the factual issues necessary to support an order of permanent guardianship. The trial court seemed to be confused as to the options that would be available to the parents after the permanent guardianship was established and protective supervision was terminated. Accordingly, we reverse and remand for further proceedings.

The Department commenced a dependency proceeding in this case in mid-2012 against both the father and the mother concerning their two children, a four-year-old daughter and a fourteen-year-old son. The mother apparently had addiction issues and was not then living in the marital home. At the time the proceeding commenced, the father had health issues that prevented him from driving. He allegedly was walking the young daughter three miles each way to daycare. The children were declared dependent in July 2012 and placed in non-relative foster care.

At the time of a review in December 2012, both parents were detained or incarcerated. By the time of a status review in February 2013, it was clear that the mother struggled with addiction issues, the father was partially compliant with his case plan, and the teenage son was emotionally detached from his parents. In the order addressing the matters that»arose at the February status review, the court set the case for a “judicial review” on June 18, 2013.

Each parent had not fulfilled a case plan by the time of the scheduled judicial review in June. The day before the hearing, the Department apparently abandoned the goal of reunification and decided to seek a permanent guardianship. The hearing, however, was noticed under Florida Rule of Juvenile Procedure 8.415 as a judicial review; it was not noticed as a permanency hearing under Florida Rule of Juvenile Procedure 8.425, much less as a permanency hearing at which the court was expected to enter a final permanency order. The Department filed nothing before the hearing to reveal its change of plans. We have located no motion or other appropriate filing in this record seeking to establish a permanent guardianship and terminate supervision.

The transcript of the hearing in mid-June reflects that the court initially had discussions with the mother about her limited progress on her case plan. The court had a lengthy discussion with the mother about her need to complete a three-month residential program to overcome addiction if she wanted to regain custody of her children. The court confirmed with the Department that the mother could enroll “anytime” in this program. The court had a shorter discussion with the father about his progress on his case plan.

Following these discussions, the attorney for the Department announced that “[i]t would be the recommendation today to request a change of goal to permanent guardianship.” The attorney for the Department represented that the foster parents wanted to become the permanent guardians and had “completed the request for permanent guardianship.” The court file does not appear to contain any written request from the foster parents to become permanent guardians. They were at work, did not attend the hearing, and did not otherwise provide any evidence to support the order on appeal.

The attorney for the Department then represented that “if [the mother] decides to engage in her case plan and do her [drug rehabilitation program] and complete her case plan, she can certainly motion the Court to reopen her case for reunification.” At this stage in the hearing, the Department’s attorney knew that the Department wanted to obtain an order of permanent guardianship and a termination of supervision at this hearing. Presumably, she knew that the Department would not need to continue to work with either parent on a case plan or to provide attorneys to assist the parents in modifying the permanent guardianship. This court doubts that funding for the drug rehabilitation program would be provided to the parents after the entry of the order on appeal, but this file contains no evidence one way or the other as to this issue. Thus, the Department’s explanation of the status of this case to the court and to the parents at this point in the hearing appears to be inaccurate.

But at this stage in the hearing, both the trial judge and the father’s attorney reasonably believed that the Department merely wanted to change the recommended goal — not to proceed to terminate services at the end of the hearing. After additional discussion the trial court explained:

Okay. We’re going to change the goal to permanent guardianship with the non-relative today. That just means that you can still work your case plan. You both can still get the help you want. But, in this case, the non-relatives will be the custodians. Now, that’s a temporary situation. It could change.

At this point, the father himself objected that he did not understand why his mother could not have custody of the children. The trial judge asked the Department’s attorney whether that option had been explored, and she explained merely that the children had been in non-relative placement for over a year and the Department did not want to disrupt the placement. Although the foster parents were not in attendance at the hearing, the grandmother was. She attempted to make her own case for why she should have custody.

Following more discussion, the court again confirmed that it was changing the goal to permanent guardianship but that this would be with “liberal visitation”' for the parents and grandparents. The parties then discussed ways to obtain more treatment for the father.

Forty-three pages into the .transcript the Department first explained that it actually wanted an order at the conclusion of this hearing establishing a permanent guardianship and a termination of supervision. The father’s attorney immediately objected, explaining that he was open to a change in goal but not to an order of permanency. His surprise is palpable even on the face of the transcript. After asking a few questions and without any additional evidence, two pages later in the transcript the trial court decided to grant the Department’s motion.

Even at this point in the hearing, the trial court did not seem to understand the impact of its ruling. There was continued discussion on steps the father needed to take to expand his visitation. The father’s attorney renewed his objection and better articulated that he had had no notice that anything other than a change in goal might be addressed at this hearing. The trial court overruled the objection, turned to the Department’s attorney, and stated: “All right. State, when are we coming back? When do we need to come back?” The Department’s attorney explained to the court: “We do not need to come back, Your Honor.”

The order placing the two children in a permanent guardianship and terminating protective supervision appears to be a standard form. It contains standard con-clusory language to support the decision to create a permanent guardianship. For example, it finds that “the proposed permanent guardian is suitable and able to provide a safe and permanent home for the children” and that “the proposed permanent guardian has made a commitment to provide for the children until the children reaches [sic] the age of majority and to prepare the children for adulthood and independence.” These findings, of course, were made without any evidence from the proposed permanent guardians, who did not attend the hearing.

More than a year before this hearing this court reversed another judge in the Sixth Circuit when the Department did not obey section 39.621(3)(a), Florida Statutes (2011). See P.P., 86 So.3d 556. Despite the fact that the father’s appellate counsel cited P.P. in the initial brief, the Department has not even acknowledged the existence of this controlling case. As we stated in P.P.:

We do not agree that the State properly noticed the mother for the permanency hearing. Section 39.621(3)(a) states:
At least 3 business days before the permanency hearing, the department shall file its judicial review social services report with the court and serve copies of the report on all parties. The report must include a recommended permanency goal for the child, suggest changes to the case plan, if needed, and describe why the recommended goal is in the best interest of the child.

Id. at 559.

In this case, the documents that the Department filed the day before the hearing do not even claim to be a permanency review, and even the judge did not understand it was intended to be a permanency hearing until the end of the hearing.

Section 39.6221, Florida Statutes (2012), authorizes a court to establish a permanent guardianship of a dependent child. But the statute clearly requires the trial court to first make a reasoned decision that reunification or adoption are not in the best interest of the child. See § 39.6221(1). Despite the language of the order, the court did not make that determination in this case and does not appear to have had a factual basis to have made such a determination. Subsection 39.6221(2) and rule 8.425(d) contain detailed requirements for the written order establishing a permanent guardianship. It is obvious that the legislature intends case specific explanations in such orders. Rule 8.425(d)(7) emphasizes the specific findings required when the permanent guardians are not relatives. A form order to assist judges in granting a permanent guardianship may be appropriate but not at the omission of the information that the statute requires the trial court to specify. See § 39.6221(2); see also J.S. v. Dep’t of Children & Family Servs., 18 So.3d 712, 714 (Fla. 2d DCA 2009).

Subsection 39.6221(5) explains that the entry of a permanent guardianship requires the court to “discontinue regular review hearings” and it relieves the Department “of the responsibility for supervising the placement of the child.” The court does retain jurisdiction over the case to modify the order of guardianship. But the order of guardianship is a type of permanency order and, thus, the process to modify a permanent guardianship is performed under rule 8.430. The process is not simple, and at least under usual circumstances, the parent has no attorney to assist in the process. Accordingly, while a permanent guardianship interferes far less with a parent’s fundamental constitutional right to parent than does an order of termination, a permanent guardianship is still a very serious step that must be performed with care and a full measure of due process.

We reverse the order on appeal and remand for further proceedings consistent with this opinion.

CASANUEVA and KELLY, JJ., Concur.


author: LaROSE, Judge.

text:
    Artesha WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5467.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2014.

      Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Artesha Williams appeals her conviction and sentence after pleading no contest to drug possession charges. See §§ 898.13, .147, Fla. Stat. (2012). We have jurisdiction. See Fla. R. App. P. 9.140(b)(2)(A)®. Ms. Williams argues that the trial court erred in denying her dispositive motion to suppress evidence. The magistrate properly issued the search warrant, and the trial court properly denied Ms. Williams’ motion. We affirm.

Background

A confidential informant (Cl) reported to Tampa police officers that a thirty-to thirty-five-year-old black female, known as Teesha, sold crack cocaine from her home. The Cl claimed to have purchased crack cocaine from Teesha multiple times during the prior six months. The Cl told the officers that Teesha always had crack cocaine available for sale.

The Cl identified Ms. Williams, her home, and her vehicle. Police officers set up two controlled buys between the Cl and Ms. Williams at her home. During the first buy, the officers gave the Cl twenty dollars to purchase one piece of crack cocaine; they maintained visual and audio contact with the Cl. The Cl purchased the drugs from Ms. Williams inside her home. Police observed a car registered to Ms. Williams parked outside during the controlled buy. Police officers executed a similar controlled buy the next day.

After the second controlled buy, the Cl advised police officers that Ms. Williams might have narcotics and a gun in her vehicle. Police officers stopped Ms. Williams for a traffic violation and searched her vehicle. They found neither drugs nor firearms.

Based on the success of and the information obtained from the controlled buys, the investigating police officer filed an affidavit in support of a request for a search warrant. The affidavit contained no information regarding the traffic stop or the Cl’s failed tip. The magistrate issued the warrant twenty-eight days after the second controlled buy. Police officers executed the warrant three days later. They recovered five pieces of crack cocaine, three razor blades with cocaine residue, two digital weight scales, one baggie of marijuana, and one revolver.

Ms. Williams moved to suppress the evidence, arguing that the supporting affidavit was insufficient to establish probable cause, was stale, and excluded material facts that undermined the Cl’s credibility. The trial court denied her motion. Ms. Williams entered a no-contest plea, reserving her right to appeal the denial of her dispositive motion.

Analysis

In reviewing an order denying a motion to suppress, we defer to the trial court’s factual findings, but review the application of the law to the facts — including determinations of probable cause — de novo. Nelson v. State, 922 So.2d 447, 449 n. 1 (Fla. 2d DCA 2006) (citing Connor v. State, 803 So.2d 598, 605 (Fla.2001); State v. McCabe, 845 So.2d 327, 328 (Fla. 2d DCA 2003)).

Before issuing a search warrant for a home, the magistrate must examine the supporting affidavit and determine whether probable cause justifies the search warrant. U.S. Const. amend. IV; § 933.07(1), Fla. Stat. (2011). That examination is limited to the four corners of the supporting affidavit. Art. I, § 12, Fla. Const. A legally sufficient affidavit must establish two elements: “first, that a particular person has committed a crime — the commission element, and second, that evidence relevant to the probable criminality is likely located at the place to be searched — the nexus element.” Burnett v. State, 848 So.2d 1170, 1173 (Fla. 2d DCA 2003) (citing United States v. Vigeant, 176 F.3d 565, 569 (1st Cir.1999)). The reviewing magistrate must “make a practical, common-sense decision whether, given all the -circumstances set forth in the affidavit [,] ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We assay the affidavit’s allegations and surrounding circumstances to determine whether evidence relevant to Ms. Williams’ probable criminality of possession and sale of drugs was likely located at her home.

In State v. Jones, 110 So.3d 19 (Fla. 2d DCA 2013), we reversed the trial court’s order granting a motion to suppress evidence found during a home search pursuant to a search warrant. Id. at 24. The supporting affidavit contained information from a reliable Cl and detailed two controlled buys occurring within the home’s curtilage. Id. at 21. The magistrate issued the warrant three weeks later. Id. at 24. We held that the supporting affidavit established sufficient probable cause for the warrant and subsequent search. Id. Similarly, the affidavit here portrays a reliable Cl and two controlled buys in Ms. Williams’ home. The Cl had known Ms. Williams for at least six months and had made numerous unverified drug purchases from Ms. Williams.

A warrant must also be issued and executed timely. Ms. Williams contends that the twenty-eight day gap between the last controlled buy and issuance renders the warrant stale. See State v. Lewis, 605 So.2d 590, 591 (Fla. 2d DCA 1992). Generally, we adhere to a thirty-day rule of thumb between the events described in the affidavit and issuance of the warrant. Pilieci v. State, 991 So.2d 883, 890 (Fla. 2d DCA 2008). Under that standard, Ms. Williams’ argument fails. We acknowledge, however, that there is no bright-line rule. Id.; see State v. Felix, 942 So.2d 5, 9 (Fla. 5th DCA 2006) (“Staleness should be evaluated in light of the particular facts of a given case, the nature of the criminal activity, and the evidence hoped to be found.” (citing United States v. Lacy, 119 F.3d 742, 745 (9th Cir.1997))).

While the expiration of a thirty-day period commonly results in a finding of staleness, courts may extend the general rule based on the “freshness” factors established in Montgomery v. State, 584 So.2d 65 (Fla. 1st DCA 1991). These factors include evidence of a pattern of ongoing criminal activity; the nature of the object sought; the nature of the criminal activity involved; whether there was a continuing flow of information or an ongoing investigation; and the size or supply of the contraband as it relates to the suspect’s ability to dispose of it quickly. Id. at 67 (citations omitted); Pilieci, 991 So.2d at 891 (citing Montgomery, 584 So.2d at 67). An application of these factors to our facts also renders Ms. Williams’ argument unavailing.

In Pilieci, we held that the supporting affidavit failed to establish probable cause because there was “only a single sale of an undescribed quantity of cocaine from an unidentified person temporarily located at the [search location] on a single occasion,” which occurred twenty-nine days before the warrant’s issuance. 991 So.2d at 894-87. In contrast, here, the Cl made two separate controlled buys at a specific location, for a particular amount of cocaine, and from an identifiable source. During each controlled buy, Ms. Williams retrieved the drugs from a larger bag of contraband, suggesting the means to sustain ongoing criminal activity. This evidence, coupled with Ms. Williams’ constant availability to dispense contraband, validates the conclusion that contraband was located in her home twenty-eight days after the last controlled buy.

Finally, Ms. Williams contends that the affidavit omitted material facts regarding the CI’s reliability. The Cl advised police officers that Ms. Williams “possibly5’ had drugs and a gun in her vehicle; no such items were found in a subsequent traffic stop. We “must determine whether the omitted facts, if added to the affidavit, would have defeated probable cause and whether the omission resulted from intentional or reckless police conduct that amounts to deception.” Pagan v. State, 830 So.2d 792, 807 (Fla.2002).

The erroneous tip did not alter the nexus between the crime and the probability of finding contraband in Ms. Williams’ home. The magistrate’s finding of probable cause was not adversely impacted. See State v. Gieseke, 328 So.2d 16, 18 (Fla. 1976) (holding that a “controlled buy alone is sufficient factual premise from which the Affiant and the Magistrate could conclude that additional contraband remained on the premises”). The omission resulted from the affiant’s desire to provide relevant information regarding the search of Ms. Williams’ home, not her vehicle. Our record discloses no intentional or reckless conduct by police officers. Finally, even if the search warrant was invalid for this omission, the evidence still would be admissible under the good-faith exception established in United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (holding where affidavit shows sufficient evidence to create disagreement among reasonable judges as to probable cause, officers’ reliance on magistrate’s probable cause determination is objectively reasonable and evidence seized is admissible under good-faith exception even where warrant is subsequently found deficient as stale or lacking in Cl credibility).

The magistrate properly issued the search warrant, and the trial court properly denied Ms. Williams’ motion to suppress.

Affirmed.

KELLY and MORRIS, JJ., Concur.


text:
    Angela WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4722.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2014.

      Angela Woods, pro se.
   PER CURIAM.

Angela Woods appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of ground one without comment. Because the postconviction court erred in summarily denying ground two of Woods’ motion, we reverse and remand.

In ground two, Woods alleged that her counsel was ineffective for failing to impeach Detective Vince Newman with a pri- or inconsistent statement. At trial, Detective Newman testified he went undercover to a house to purchase Roxicodone from someone named Angie in a deal set up by a confidential informant. At the house, the seller was uncomfortable selling to a new buyer and insisted on negotiating the deal through the bathroom door. Detective Newman purchased Roxicodone and crack cocaine from the seller. Despite her efforts at concealing her identity, Detective Newman testified he was able to see the seller through the two-to-three-inch opening between the door and the doorjamb, or doorframe, on the hinged side of the door. Prior to the transaction, Detective Newman had not met Woods. However, Detective Newman identified Woods in open court and recognized the picture he used to identify her after the buy. Detective Newman also testified that there was a mirror behind the sink and when the seller turned around to retrieve the drugs, he “could clearly see her in the mirror reaching down.” Woods alleged that this statement contradicted Detective Newman’s deposition testimony that there was not a mirror in the bathroom.

On cross-examination, Detective Newman stated that he did not look through the opened side of the door. Rather, he peered through the two-to-three-inch gap on the hinged side. While Detective Newman testified that the entire transaction probably lasted less than five minutes, he conceded he was not sure exactly how much of the time he was able to see Woods. Detective Newman also stated that he located Woods by searching “Angie” or “Angela” in a database. Counsel then brought Detective Newman’s attention to his earlier deposition. Counsel asked: “Do you recall me asking you specifically as to whether or not you saw a mirror in the bathroom?” Detective Newman responded: “I don’t remember.” Counsel went no further with this line of inquiry. She neither read nor played the inconsistent statement in court. After a couple more unrelated questions, counsel ended cross-examination. Woods insisted that had counsel followed through with her attempt at impeachment, there is a reasonable probability that the outcome would have been different because Detective Newman’s testimony was the only evidence identifying her as the seller.

The postconviction court denied this claim, finding that counsel impeached Detective Newman sufficiently. The court noted that Detective Newman admitted to only viewing Woods briefly through a small opening on the hinged side of the bathroom door and that Detective Newman conceded he could not remember whether there was a mirror in the bathroom that enabled him to see the person selling drugs from behind the door.

The postconviction court erred in summarily denying this claim. The court’s finding that Detective Newman conceded not being able to remember whether there was mirror is not supported by the record. When Detective Newman stated, “I don’t remember,” he was not testifying that he did not remember whether there was a mirror — he was responding to counsel’s question as to whether he recalled being asked if there was a mirror in the bathroom. ' Detective Newman was stating that he did not remember counsel asking him previously about the mirror.

The proposed impeachment is significant because Wood’s sole defense at trial was mistaken identity and it is not cumulative. See Bentley v. State, 867 So.2d 515, 516 (Fla. 1st DCA 2004) (finding counsel ineffective for failing to sufficiently impeach the State’s key witness where counsel impeached with a prior felony conviction but failed to inquire into other avenues of impeachment). Here, the only evidence identifying Woods as the seller was Detective Newman’s testimony. While counsel attacked Detective Newman’s opportunity to observe the matters to which he testified, “the fact that a witness is impeached on other matters does not necessarily render the additional impeachment cumulative.” Cardona v. State, 826 So.2d 968, 974 (Fla.2002) (evaluating prejudice in a Brady analysis).

Given the circumstances of the identification, Woods stated a facially sufficient claim, and the postconviction court erred in denying it on the basis that Detective Newman was adequately impeached. Accordingly, the postconviction court’s summary denial of ground two of the motion is reversed and remanded. On remand, the postconviction court shall either attach portions of the record conclusively refuting Woods’ claim or hold an evidentiary hearing. It appears that Woods is scheduled for release in June 2014. Therefore, the proceedings below shall be expedited.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, SILBERMAN, and SLEET, JJ., Concur.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


author: SLEET, Judge.

text:
    Deborah K. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4476.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2014.
    Howard L. Dimmig, II, Public Defender, and Richard Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Deborah Williams challenges her judgment and sentences for second-degree murder and aggravated assault. We affirm the trial court’s denial of her motion to withdraw plea without comment. However, we write to address Williams’ argument that the trial court erred when it failed to enter an order finding her competent to proceed after initially finding her incompetent to proceed. Though we affirm her judgment and sentences, we remand for the trial court to enter a written order of competency.

It appears that on November 2, 2011, the trial court held a hearing and determined that Williams was competent to proceed to trial, after finding her incompetent on August 10, 2011. However, the trial court failed to enter a written order finding Williams competent to proceed. See Corbitt v. State, 744 So.2d 1130, 1130 (Fla. 2d DCA 1999) (“[Wjhere the trial court has entered an oral finding that the defendant is competent, but no written order of competency has been entered, the proper remedy is to affirm the judgment and to remand the case to the trial court for entry of a nunc pro tunc order finding the defendant competent to stand trial.”). Accordingly, we remand for the trial court to enter a written order of competency, nunc pro tunc to November 2, 2011.

Affirmed, but remanded with instructions.

VILLANTI and WALLACE, JJ., Concur.


text:
    J.E.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-836.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2014.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

J.E.P. appeals several orders, including an order denying his petition for writ of habeas corpus. We affirm all orders on appeal except for the order denying his petition for habeas corpus.

J.E.P. has had a series of juvenile delinquency proceedings. On July 20, 2011, alone, the first eight separate petitions were filed against this juvenile. The cases have been handled in a consolidated fashion, which makes the record somewhat confusing. He appeals an order of adjudication on a newer petition and an order of probation entered on violation of probation in six separate earlier proceedings. We affirm these orders without comment.

On January 11, 2013, the attorney representing this juvenile filed a petition for writ of habeas corpus in the eight original proceedings. The petition alleges that the juvenile did not enter a knowing plea in these proceedings and that the original attorney representing the juvenile had committed ineffective assistance of counsel. The Florida Rules of Juvenile Procedure do not contain a rule comparable to Florida Rule of Criminal Procedure 3.850. As a result, a petition for habeas corpus is still the proper method to seek postdispo-sition relief. See D.E.R. v. State, 993 So.2d 1030 (Fla. 2d DCA 2008); J.M.B. v. State, 750 So.2d 654, 655 (Fla. 2d DCA 1999).

The juvenile court did not hold a hearing on this petition for habeas corpus. Instead it entered a short order denying the petition without explanation. The contents of the petition appear facially sufficient. Admittedly, the procedural rules for handling such relatively rare petitions are not well established. We do not believe that the procedures in this context need to be as complex as those for handling motions under rule 3.850. The provisions addressing habeas corpus in chapter 79, Florida Statutes (2011), are also not well suited for these motions. However, when the motion is facially sufficient, the juvenile is entitled to greater due process than when an order denies the petition without any explanation. At a minimum, the juvenile court should hold a hearing on the petition to determine an adequate method to resolve the allegations of the petition.

Accordingly, we reverse and remand only as to the petition for habeas corpus with instructions that the juvenile court hold a hearing on that petition.

Affirmed in part, reversed in part, and remanded.

LaROSE and MORRIS, JJ., Concur.


text:
    Robert Provin NIXON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6180.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2014.
    Robert Provin Nixon, 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.

CLARK, WETHERELL, and RAY, JJ., concur.


text:
    Mose HARRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6221.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2014.

      Mose Harris, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(d)(5).

CLARK, WETHERELL, and RAY, JJ., concur.


author: SUAREZ, J. SHEPHERD, C.J.,

text:
    Federico Torrealba NAVAS, et al., Appellants, v. Craig A. BRAND, Appellee.
    No. 3D12-2683.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2014.

      Armas & Borron and J. Alfredo De Ar-mas, for appellants.
    Craig A. Brand, Miami, for appellee.
    Before SHEPHERD, C.J., and WELLS and SUAREZ, JJ.
   SUAREZ, J.

Federico Torrealba Navas, Gian-na Cersosimo, and certain members of the Costa Rican law firm of Fació and Cañas (“F & C”), appeal from a non-final order denying their motions to dismiss for lack of jurisdiction and inconvenient forum. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(c). See also WEG Indus., S.A. v. Compania De Seguros Generales Granai, 937 So.2d 248 (Fla. 3d DCA 2006). We review de novo a non-final order denying a motion to dismiss for lack of jurisdiction. Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co. Ltd., 752 So.2d 582, 584 (Fla.2000). We review an order denying a motion to dismiss based on inconvenient forum for abuse of discretion. Kinney Sys., Inc. v. Continental Ins. Co., 674 So.2d 86, 90-92 (Fla.1996); Ryder Sys., Inc. v. Davis, 997 So.2d 1133, 1134 (Fla. 3d DCA 2008); see also, Court Commentary to Rule 1.061 (“Orders granting or denying dismissal for forum non conveniens are subject to appellate review under an abuse-of-discretion standard.”).

Craig A. Brand, the plaintiff below, is a Florida lawyer and businessman with an address in Miami, Florida. Brand lived in Costa Rica for several years and established business interests there. The defendants, some of whom reside in Miami-Dade County (the “Florida Defendants”), alleged that Brand coerced them to invest, either directly or indirectly, in his Costa Rican businesses, and then defrauded them. Brand alleges that the Florida Defendants, in an attempt to recoup their investments, hired the Costa Rican lawyers Torrealba and Cersosimo to file a “public” criminal investigation against Brand and others for theft and fraud in his dealings with the Florida Defendants and other non-parties. Brand alleges that the Florida Defendants, through Torrealba and Cersosimo, successfully obtained a Costa Rican immigration stay order that prevented him from leaving Costa Rica. Brand alleges that, as a result of the fraudulent criminal investigation, suppliers refused to offer credit and his pharmaceutical business was forced to close.

In 2009, the Costa Rican prosecutor’s office advised Torrealba and Cersosimo that there was no evidence with which to proceed criminally against Brand, and it would dismiss the criminal investigation and drop the immigration hold against him. Brand immediately moved to Florida. The record indicates that Torrealba traveled to Florida to meet with the Florida Defendants. Shortly thereafter, Torre-alba and Cersosimo, through the Costa Rican law firm of F & C, and the Florida Defendants converted the criminal case into a private civil case against Brand, which they filed in Costa Rica and which remains pending there.

Brand sued the Florida Defendants and the Costa Rican lawyers in Miami-Dade County for intentional tort pursuant to the Civil Remedy for Criminal Practices Act, intentional tort of conspiracy to defraud, injunctive relief, and two counts of false imprisonment (solely against the Florida investors). Brand alleged in his complaint that the Florida Defendants intentionally and fraudulently brought, or caused others to bring, frivolous criminal and civil suits and investigations against him in Costa Rica and the United States, in an attempt to recoup investments the Florida investors made in Brand’s Costa Rican business ventures. The Florida Defendants, and Torrealba and Cersosimo (now members of the F & C law firm), moved to dismiss for lack of jurisdiction and inconvenient forum.

As agreed by the parties, the trial court relied on the documents and evidence provided by the parties to resolve the motions. In a thirty-three page order, the trial court determined that Brand alleged sufficient jurisdictional facts to satisfy Florida’s Long-Arm Statute, and that the defendants failed to overcome their burden to rebut those assertions. The trial court found the defendants had sufficient minimum contacts with Florida, both direct and indirect, to satisfy due process considerations, concluding that, although Brand may have suffered monetary damages in Costa Rica, the injuries originated in Florida with the Florida Defendants. On analysis of the motion to dismiss for forum non conveniens, the trial court determined, upon examination of the evidence, that Florida was an adequate alternative forum; the private interests favored Brand’s choice of forum; a substantial number of the witnesses are located in, or are residents of, Florida; Brand has the greater private interest in keeping the action in Florida, as against Florida residents (the Florida Defendants), and the unopposed evidence suggests Brand could not reinstate his action in Costa Rica under Costa Rican law. The trial court denied the motions to dismiss based on lack of jurisdiction and forum non conveniens. The trial court also denied the defendants’ alternative motion to stay the proceedings on the basis of comity while the civil suit continues in Costa Rica, reasoning that the causes of action and the parties are different between the two suits. Torrealba, Cersosimo, F & C, and several additional attorneys within the F & C firm appeal.

The trial court judge was exceedingly thorough in his analysis of both jurisdiction and inconvenient forum as appliéd to the Costa Rican attorneys and the F & C law firm. Machtinger v. Inertial Air line Servs., Inc., 937 So.2d 730, 733-34 (Fla. 3d DCA 2006), provides:

A plaintiff seeking jurisdiction over a non-resident defendant must plead the basis for jurisdiction. A defendant contesting jurisdiction must file affidavits in support of his motion to dismiss. The plaintiff must then support the grounds upon which he claims jurisdiction with affidavits. If the two sets of affidavits cannot be reconciled, the court must hold an evidentiary hearing to resolve the factual conflicts and determine the issue of jurisdiction. Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989).

In the case before us, the defendant attorneys and defendant law firm provided verified motions to dismiss, but the record contains no affidavits in support of their contention that jurisdiction does not exist or that Costa Rica is the more appropriate forum. The lack of affidavits, coupled with the agreed order to travel on the documents submitted in support of the motions to dismiss, effectively negate the Defendants’ argument on appeal that they should have received an evidentiary hearing.

JURISDICTION

To determine whether personal jurisdiction exists over a non-resident defendant, the trial court must conduct a two-step inquiry. First, the trial court must determine whether sufficient jurisdictional facts are alleged in the complaint such that the action falls within Florida’s long-arm statute, section 48.193, Florida Statutes. See Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002); Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). In doing so, the trial court must strictly construe the statute in favor of the non-resident defendants. Blumberg v. Steve Weiss & Co., 922 So.2d 361, 363 (Fla. 3d DCA 2006) (citing Wendt, 822 So.2d at 1256). Next, the trial court must determine whether “sufficient minimum contacts exist between Florida and the defendant to satisfy due process requirements.” Id. at 363 (citing Wendt, 822 So.2d at 1256); Venetian Salami, 554 So.2d at 502. “[D]ue process requires that the nonresident defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Pres-Kap, Inc. v. Sys. One, Direct Access, Inc., 636 So.2d 1351, 1352 (Fla. 3d DCA 1994). The applicable due process test asks whether the conduct of the nonresident defendant in connection with the forum state is such that the defendant could reasonably anticipate being haled into court there. Id. Our first jurisdictional inquiry on de novo review follows this same route. We note that the appropriate inquiry is whether the tort as alleged in the complaint occurred in Florida, and not whether the alleged tort actually occurred. See Walter Lorenz Surgical, Inc. v. Teague, 721 So.2d 358 (Fla. 1st DCA 1998).

The record on appeal supports the trial court’s conclusion that Brand demonstrated Torrealba and Cersosimo had sufficient minimum contacts with Florida to satisfy due process concerns, such that the maintenance of the suit does not “offend traditional notions of fair play and substantial justice.” See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla.1989). The appellants traveled from Costa Rica into Florida to meet with the Florida Defendants, in furtherance of suits filed against plaintiff in Costa Rica; the record shows that Torrealba and Cersosimo obtained signatures from the Florida Defendants in order to file criminal and civil actions against Brand in Costa Rica. The appellants hired local counsel to file a Florida Bar complaint against Brand and requested Homeland Security to investigate him.

In addition, there were sufficient acts by which the defendant law firm, F & C, purposely availed itself of the privilege of conducting activities within the state, invoking the benefits and protection of its laws. F & C admits to conducting business for more than fifty clients who reside in, or are citizens of, Florida. Torrealba and Cersosimo, as employees of F & C, made phone calls and sent emails to the Florida Defendants in furtherance of suits filed against Brand in Costa Rica. The contact requirement can be met by telephonic contact, email or written communication alone. Wendt v. Horowitz, 822 So.2d 1252, 1252 (Fla.2002). F & C hired Torrealba and Cersosimo, who continued to represent the Florida Defendants. F & C argues it has no direct connection with Florida. However, it is unlawful for anyone employed by an enterprise to, directly or indirectly, participate in criminal activity — including extortion, which is sufficiently alleged in Brand’s complaint. The trial court’s analysis of jurisdiction with respect to the two Costa Rican attorneys and their law firm is thorough. On de novo review, having examined the record on appeal, we agree with the trial judge’s legal conclusion that the Florida court can appropriately exercise jurisdiction over the parties and we affirm the denial of the defendants’ motion to dismiss for lack of jurisdiction.

FORUM NON CONVENIENS

We necessarily follow Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86, 94 (Fla.1996) and progeny in evaluating the trial court’s decision on the defendants’ motion to dismiss for forum non conveniens. Each of the considerations set forth by Kinney was fully addressed by the trial court in its order. The defendants submitted no affidavits in support of their contention that Costa Rica was a more adequate or convenient forum than Florida. Brand, on the other hand, submitted the affidavit of a well-respected Costa Rican attorney, jurist, and legal academic, who opined that Brand would have no remedy under Costa Rican law for the damages he seeks in this lawsuit. The Defendants assert that Brand could file a counterclaim in the civil suit now pending against him in Costa Rica, but Defendants provide no expert legal opinion to support this conclusion.

Our review of the complaint and record demonstrates that, based on the test set forth in Kinney, Florida is a more convenient forum to litigate the issues than Cos-ta Rica. Based on our standard of review we cannot re-weigh the evidence and we conclude that the trial court did not abuse its discretion by denying the defendants’ motion to dismiss on forum non conveniens grounds.

Affirmed.

SHEPHERD, C.J.,

concurring.

I concur in the affirmance of this case. I believe the allegations of the complaint and affidavits in support are sufficient to hale these defendants into the courts of this state on the allegation that they conspired to commit a tortious act, causing injury in the State of Florida. See § 48.193(1)(a)2, Fla. Stat. (2013), formerly § 48.193(1)(b), Fla. Stat.; NHB Advisors, Inc. v. Czyzyk, 95 So.3d 444, 448 (Fla. 4th DCA 2012) (stating where plaintiff successfully alleges the existence of a conspiracy and the other members of the conspiracy committed tortious acts in Florida, all of the conspirators are subject to jurisdiction in Florida); Machtinger v. Inertial Airline Servs., Inc., 937 So.2d 730, 736 (Fla. 3d DCA 2006) (holding one who commits a tortious act in Florida reasonably can expect to be haled into a Florida court to answer for the tort). It also appears from the supported allegations of the complaint that the defendants engaged in the transmission of telephone, electronic, and written communications into this state, establishing an independent basis for the exercise of jurisdiction over them. See Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla.2002) (stating telephonic, electronic or written communications into Florida may form the basis for personal jurisdiction under section 48.193(l)(b) if the alleged cause of action arises from the communications). Of course, jurisdictional determinations are quite different from decisions on the merits, and the plaintiff ultimately will have to prove the allegations he makes in his complaint to the satisfaction of a trier of fact.

Finally, I note that the majority’s affir-mance of that portion of the order of the trial court denying the defendants’ motion to dismiss on the ground of forum non conveniens also is supported by the recent decision of the Florida Supreme Court in Cortez v. Palace Resorts, Inc., 123 So.3d 1085 (Fla.2013), which was not available to the trial judge at the time of his decision.

      . The Order on appeal separately analyzed the three separate defendant groups: 1) the Florida Defendants, 2) the Costa Rican attorneys Torrealba and Cersosimo, and 3) the F & C law firm. Only Torrealba and Cersosimo and the F & C law firm appeal from the order below.

      . (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of áction arising from the doing of any of the following acts:
      (a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
      (b) Committing a tortious act in this state.

      . It is unlawful for any person:
      (1) Who has with criminal intent received any proceeds derived, directly or indirectly, from a pattern of criminal activity or through the collection of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise.
      (2) Through a pattern of criminal activity or through the collection of an unlawful debt, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property.
      (3) Employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of criminal activity or the collection of an unlawful debt.
      (4) To conspire or endeavor to violate any of the provisions of subsection (1), subsection (2), or subsection (3).
      § 772.103, Fla. Stat. (2013).


text:
    Michele SCHUTT, Appellant, v. David M. ALFRED, Appellee.
    No. 3D13-1389.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2014.

      Robertson & Hunter and Loriellen Robertson, Key West, for appellant.
    David M. Alfred, in proper person.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   EMAS, J.

This is an appeal from a final order of permanent injunction for protection against dating violence. For the reasons that follow, we reverse.

On March 2, 2013, Appellee, David Alfred, filed a petition for an injunction for protection against dating violence as to Appellant Michele Schutt. In his petition, Alfred alleged the following:

1. Alfred and Schutt knew each other since 2002 and started dating at that time.
2. The two were involved in an on-and-off physical, romantic relationship that ended when Alfred moved from Kentucky to Florida in May of 2011. Schutt remained in Kentucky.
3. After his move, the two initially had limited communication with each other; however, this changed after Alfred began dating someone else, and Schutt began harassing Alfred.
4. Schutt has stated she does not want Alfred to marry anyone else but her.
5. The specific incidents cited by Alfred in his petition included:
a. On January 27, 2013, Schutt faxed a letter to Alfred’s brother’s girlfriend stating that Alfred “has a bullet with his name on it and so does his bitch Linda [Alfred’s then-current girlfriend];”
b. In August 2012, Schutt mailed a package containing animal feces to Alfred’s workplace while Alfred was out of town;
c. On various dates, Schutt has left voicemails at Alfred’s place of work and has signed up for magazine subscriptions under Alfred’s name and had them delivered to Alfred’s work;
d. In November or December of 2012, Schutt sent a card to Alfred’s sister in Kentucky with a picture of excrement stating, “This is You Next Xmas” and containing another hateful message;
e. On August 13, 2012, Schutt emailed Alfred’s supervisor at work making it appear that it was an email from Alfred to his supervisor.

Significantly, in the petition for permanent injunction, signed and sworn to by Alfred, he was asked the following question and provided the following answer:

Have the Petitioner [Alfred] and Respondent [Schutt] been involved in a dating relationship within the past six months? _ Yes X No

A temporary injunction for protection against dating violence was entered by the trial court, and a final hearing on the petition was held on April 30, 2013. Although there was extensive testimony presented at that hearing, our decision requires that we include only the following relevant and unrebutted testimony:

Alfred testified that he had no relationship with Schutt and had not been in a dating relationship with her since November of 2011, approximately six months after he moved from Kentucky to Key West.

Schutt testified that she had never been to Key West until she came down for the final hearing in the instant case. She was not in a dating relationship with Alfred and did not want to have any contact with Alfred.

Section 784.046(2), Florida Statutes (2013) provides separate causes of action for an injunction for protection in cases of repeat violence, sexual violence, or dating violence. In the instant case, Alfred filed a petition for protection against dating violence. With respect to dating violence, the statute provides as follows:

(d) “Dating violence” means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on the consideration of the following factors:
1. A dating relationship must have existed within the past 6 months;
2. The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties;
and
3. The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.
The term does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context.

§ 784.046(1)(d), Fla. Stat. (2013).

Based upon Alfred’s own testimony at the final hearing, as well as his sworn petition, the evidence did not and could not support a finding of dating violence. There was no evidence that a “dating relationship” existed “within the past 6 months” before the petition was filed. Indeed, the unrebutted evidence established that any such relationship ended, at the latest, in December of 2011. The petition was filed in March 2013, more than fifteen months later. Because the statute, by its express terms, requires that a “dating relationship must have existed within the past 6 months,” and there was not competent substantial evidence to support such a finding, we are constrained to reverse and remand with directions to vacate the permanent injunction. We do so, however, without prejudice to Alfred filing a timely and viable petition for injunction for protection against stalking. See § 784.0485, Fla. Stat. (2013).

Reversed and remanded.

      . Section 784.0485 created a cause of action for an injunction for protection against stalking. Section 784.048(2) defines “stalking” as "[a] person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking -"
      Section 784.048(l)(a) provides:
      ‘Harass’ means "to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” Section 784.048(l)(d) provides:
      ‘Cyberstalk’ means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.


text:
    Sheila M. NAVARRO and Guillermo Arteaga, Appellants, v. AURORA LOAN SERVICES, LLC, Appellee.
    No. 3D13-1560.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2014.
    Sheila M. Navarro and Guillermo Artea-ga, in proper persons.
    Akerman LLP, and Nancy M. Wallace (Tallahassee), Michael J. Larson (Tallahassee), William P. Heller (Fort Lauderdale), and Tracy T. Segal (Fort Lauderdale), for appellee.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   ROTHENBERG, J.

Affirmed. See Zarate v. Deutsche Bank Nat’l Trust Co., 81 So.3d 556, 557 (Fla. 3d DCA 2012) (holding that it is the appellant’s burden to present a record to overcome the presumption of correctness of the trial court’s findings); 7550 Bldg., Inc. v. Atl. Rack & Shelving, Inc., 999 So.2d 663, 664 (Fla. 3d DCA 2008) (holding that the appellant’s failure to provide a transcript of the proceedings was fatal to its claims because “[without a record of the trial proceedings, the appellate court can not [sic] properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”) (quoting Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979)).


text:
    Lorna BEACH-ALLEN, Appellant, v. Truvada N. HENDERSON, Appellee.
    No. 3D13-428.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2014.
    Lorna Beach-Alien, in proper person.
    Truvada N. Henderson, in proper person.
    Before SHEPHERD, C.J., and ROTHENBERG and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).