text:
    Haldeane SMITH and Jennifer Smith, Appellants, v. BRINKS, INC., Appellee.
    No. 4D12-3557.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2014.
    Kennedy Legler, III, of Legler & Flynn, Bradenton, for appellants.
    Elaine D. Walter and Christienne Sher-ouse of Gaebe, Mullen, Antonelli & DiMat-teo, Coral Gables, for appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Appellants Haldeane Smith and Jennifer Smith appeal the trial court’s order granting Appellee Brinks, Inc.’s motion to dismiss Appellants’ complaint. The trial court concluded that Appellants had committed a fraud upon the court. After first denying Appellee’s motion, the trial court, upon reconsideration, granted the motion and dismissed the complaint with prejudice. However, the trial court did not list any factual findings with respect to the purported fraud in the dismissal order.

Appellants first argue on appeal that the legal requirements for fraud upon the court have not been met, including the requirement that the trial court must provide actual findings of fact demonstrating fraud in an order granting dismissal. To this point, Appellee has filed a confession of error and concedes that the trial court erred in failing to provide the requisite factual findings in its dismissal order. We agree and find this dispositive of the appeal. See Chacha v. Transp. USA, Inc., 78 So.3d 727, 731 (Fla. 4th DCA 2012) (“[A]n order granting a dismissal or default for fraud on the court must include express written findings demonstrating that the trial court has carefully balanced the equities and supporting the conclusion that the moving party has proven, clearly and convincingly, that the non-moving party implemented a deliberate scheme calculated to subvert the judicial process.”) (emphasis supplied). Without any factual findings in the order, the record on appeal is insufficient for the reviewing court to determine whether the trial court considered the proper factors and carefully balanced the competing policies. Id.; Arzuman v. Saud, 843 So.2d 950, 952 (Fla. 4th DCA 2003).

Therefore, we reverse the final order granting dismissal and remand for the trial court to make express written findings while being free to reconsider the ultimate ruling.

Reversed and Remanded.

TAYLOR, MAY and FORST, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Raymond MOSSBURG, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1722.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2014.
    Raymond Mossburg, Avon Park, Pro Se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James Carney, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Raymond Mossburg appeals a circuit court order summarily denying two claims he raised in a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of his second claim without the need for further discussion, but reverse the summary denial of his first claim in which Mossburg sought additional jail time credit. The claim was legally sufficient, and it appears from the State response on which the circuit court relied that this claim was overlooked altogether.

Therefore, we remand for the trial court to consider the claim for jail time credit.

Affirmed in part, Reversed and Remanded for further proceedings.

TAYLOR, LEVINE and CONNER, JJ., concur.


author: DAMOORGIAN, C.J.

text:
    LYTAL, REITER, SMITH, IVEY & FRONRATH, L.L.P., Petitioner, v. Janet MALAY, as Personal Representative of the Estate of Maurice Baker, Respondent.
    No. 4D13-4016.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2014.
    Margaret Bichler of Lytal, Reiter, Smith, Ivey & Fronrath, West Palm Beach, for petitioner.
    Heather Wallace-Bridwell of Peterson Bernard, Stuart, for respondent.
   DAMOORGIAN, C.J.

In the underlying negligence action arising from an automobile accident, the trial court ordered the law firm to “provide a list of all payments made to Dr. Theofilos [the plaintiffs treating physician] over the last 3 years (all client or patient information shall be redacted).” The discovery encompasses all payments made in connection with the present or past litigation. The doctor in this case is expected to provide expert opinions at trial. The law firm petitions for a writ of certiorari to quash the discovery order.

A law firm’s financial relationship with a doctor is discoverable on the issue of bias. See Morgan, Colling & Gilbert, P.A. v. Pope, 798 So.2d 1, 2 (Fla. 2d DCA 2001) (“Limiting discovery of this information would affect the truth-seeking function of a jury, for the failure to present any ultimately admissible information would diminish the jury’s right to assess the potential bias of the witnesss.”). At his deposition, the doctor denied having any records and provided “nebulous testimony” in connection with the number of his patients who were represented by the law firm. Under these circumstances, the law firm is an appropriate source of this information. Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So.3d 200, 206 (Fla. 4th DCA 2012). The trial court did not depart from the essential requirements of law.

Petition Denied.

TAYLOR and LEVINE, JJ., concur.


author: SILBERMAN, Judge.

text:
    In re GUARDIANSHIP OF Carol Padlina RAWL, an incapacitated person, Lance M. McKinney, Appellant, v. Gregory R. Rawl, as Guardian of the Property of Carol Padlina Rawl, an incapacitated person, Appellee.
    No. 2D12-5373.
    District Court of Appeal of Florida, Second District.
    March 7, 2014.

      Stacy L. Sherman of Stacy L. Sherman, P.A., Fort Myers, for Appellant.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, and Kenneth E. Kemp, II, of Patrone & Kemp, P.A., Fort Myers, for Appellee.
   SILBERMAN, Judge.

Lance M. McKinney, an attorney who represented the ward in a guardianship proceeding, seeks review of the final order awarding him a reduced amount of attorney’s fees and charging him with costs. We reverse because the trial court’s finding that McKinney’s services did not benefit the Ward is not supported by competent, substantial evidence.

In May 2011, Gregory R. Rawl filed a petition for appointment of guardian based on the alleged incapacity of his mother, Carol Padlina Rawl (the Ward). The trial court appointed attorney Amy McGarry to represent the Ward, and attorney McKinney filed a notice of appearance as co-counsel for the Ward. The court also appointed Mr. Rawl as the temporary emergency guardian of the property of the Ward. The proceedings became contentious when objections to Mr. Rawl’s petition for appointment of guardian and competing petitions for appointment of guardian were filed.

Meanwhile, the trial court appointed a three-person committee to examine the Ward and file reports to assess the Ward’s capacity to exercise certain rights. The committee members submitted their reports in June 2011. The first report was submitted by Karen Lee, a nurse who concluded that the Ward lacked all capacity and was in need of a plenary guardianship. The second report was submitted by Dr. Oakes-Lottridge, a medical doctor who also recommended a plenary guardianship. However, on the portion of the assessment form where a “yes” or “no” answer must be circled as to the Ward’s various capacities, Dr. Oakes-Lottridge circled both and noted that the Ward’s capacity varied depending upon the time of day. The third report was submitted by Dr. Spellman, a - psychologist who found that the Ward lacked capacity in most areas but nonetheless recommended a limited guardianship.

Days before the September 2011 capacity hearing date, McKinney filed a reassessment report prepared by committee member Karen Lee. This reassessment was performed at the request of attorney McKinney’s law firm. In the reassessment report, Lee changed her recommendation from a plenary guardianship to a limited guardianship.

At the capacity hearing, the attorneys pointed out the internal inconsistencies in the reports of committee members Oakes-Lottridge and Spellman. When the discussion turned to Lee’s report, Mr. Rawl argued the reassessment report should be stricken because it was not obtained in compliance with the statutory procedures providing for examinations by committee members set forth in section 744.331(3), Florida Statutes (2010). Attorney McKinney argued that section 744.331(3) did not prohibit the Ward’s attorney from contacting the examining committee members or obtaining a reassessment. McKinney asserted that he had not discussed the content of Lee’s first report with her but simply had a staff member call and ask Lee to reassess the Ward. McKinney claimed that the reassessment report was actually the best evidence of the Ward’s present condition because it was more recent than any of the original reports.

The court concluded that it was “inappropriate” for McKinney to contact an examining committee member to obtain a reassessment. The court determined that it was similarly inappropriate for McKinney to file a reassessment report containing a changed recommendation without sufficient notice. As a result, the court struck the reassessment report.

However, the court did not proceed to determine the Ward’s competency based on the committee’s three original reports. Instead, the court appointed another examining committee to evaluate the Ward and continued the capacity hearing until those reports were available. Although the court struck Lee’s reassessment report, the court was troubled by the fact that Lee’s recommendation had changed since the original assessment. The court also noted the inconsistencies in Dr. Oakes-Lottridge’s report and stated that it needed more current information regarding the Ward’s capacity.

The second examining committee reported that the Ward was totally incapacitated and recommended a plenary guardianship. After the continued capacity hearing, the court adjudicated the Ward totally incapacitated and concluded that a plenary guardianship was necessary. The court appointed Mr. Rawl as guardian of the property and a professional guardian as guardian of the person.

Attorneys McGarry and McKinney thereafter filed a joint petition for attorney’s fees and expenses to which Mr. Rawl objected. Among other things, Mr. Rawl argued that McKinney was not entitled to any fees associated with the second committee’s examinations “since the second examining committee was appointed due to inappropriate tampering with the examining committee of court appointed counsel.”

The court held an evidentiary hearing on the joint petition. Stephen Buckley, an attorney with forty-three years of experience in guardianship matters, testified as an expert for McKinney. The expert stated that, apart from a minor billing error, McKinney’s attorney and paralegal fees were both reasonable in hourly rate and in number of hours spent. When asked about the reassessment, the expert said he did not believe McKinney obtained the reassessment report with the intention of having a second committee appointed. Instead, the expert explained McKinney had legitimate doubts about the accuracy of Lee’s original assessment based on the circumstances under which the Ward was examined. The expert believed that it benefitted the Ward to have a second committee appointed because of the inconsistencies in the original reports and the Ward’s intervening decline in capacity.

McKinney’s paralegal provided unrefot-ed testimony regarding how the reassessment came about. According to the paralegal, the Ward called McKinney’s office after she saw Lee’s report and asked if Lee could return for a “do-over.” The Ward indicated she had not been at her best when Lee examined her because she had some friction with her son the night before Lee’s examination and she had not slept well. The paralegal spoke with McKinney, and he asked her to see if Lee would return and conduct a morning examination. The paralegal did so, and Lee then contacted the Ward to schedule the appointment.

The trial court ruled that McKinney’s hourly rate and number of hours were reasonable. But the court decided that the reassessment delayed the proceedings and cost the Ward additional money. The court did not believe that McKinney procured the reassessment in bad faith but found it “inappropriate.” The court noted that there was no evidence that McKinney’s office provided any information to Lee, but the court suggested that McKinney should have moved to strike Lee’s report and brought the issue before the court rather than contacting the examining committee member directly.

The court considered disallowing all of the fees related to the appointment of the second examining committee but declined to do so. The court appeared to recognize that there were other reasons it appointed the second committee. The court acknowledged that, due to their internal inconsistencies, the reports of the other two members of the first examining committee “would have been very difficult to work with.” And the court admitted it probably would have ordered a reassessment anyway due to the Ward’s intervening decline in capacity.

Without explanation, the court decided to reduce McKinney’s attorney’s fees by $3,766.25, or half of the total fees McKinney incurred related to the appointment of the second examining committee. The court stated at one point that the disallowed amount was not of benefit to the Ward, although the court’s comments suggest that the reduction was made as a sanction. The court also imposed the total $900 cost of the appointment of the second examining committee against McKinney. The court stated that even though a reassessment was probably needed “at some point anyway,” it was reducing McKinney’s fees by that additional $900. This, too, appears to have been a sanction. In its written order, the court ruled that these fees “were not proven to be for the benefit of the [W]ard.” As for the costs, the court ruled that the “effort to obtain a re-examination was not permissible” and resulted in the striking of the original examining committee reports.

On appeal, McKinney argues that the trial court abused its discretion in reducing his fee award and charging him for costs based on conduct that is not prohibited by law and which did not form the sole basis for the court’s appointment of the second examining committee. McKinney contends that he was entitled to all of his fees pursuant to section 744.108 because he established that all of his services benefited the Ward.

Section 744.108(1) provides that “an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.” An award of fees and costs under this section is subject to the requirement that the attorney’s services must benefit the ward or the ward’s estate. Thorpe v. Myers, 67 So.3d 338, 345 (Fla. 2d DCA 2011). The attorney seeking fees under this statute bears the burden of proving that his or her services benefitted the ward or the ward’s estate. Ansley, 94 So.3d at 714.

To the extent that attorney’s fees for the ward’s services involved unproductive litigation in pursuit of goals that did not benefit the Ward, the trial court has the discretion to reduce the fee award by the fees attributed to those pursuits. Thorpe, 67 So.3d at 345-46. A fee award that is reduced based on services that do not benefit the ward will be upheld on appeal if there is competent, substantial evidence to support it. Ansley, 94 So.3d at 714; Thorpe, 67 So.3d at 341.

We conclude that the trial court’s finding that $3,766.25 of McKinney’s fees were not for the Ward’s benefit is not supported by competent, substantial evidence. McKinney provided unrebutted testimony that he obtained the reassessment at the Ward’s request because the Ward believed the accuracy of the examination was affected by her emotional state. Certainly, under the circumstances described by the testimony, the act of seeking a reassessment pursuant to the Ward’s request, based on concerns about the accuracy of the report, would seem to be a benefit to the Ward. And as noted previously, the court itself commented regarding the inconsistencies in and problems with the original reports.

The more difficult question is whether the benefit to the Ward was negated by the method in which McKinney obtained the reassessment. The trial court determined that it was inappropriate for McKinney’s office to contact an examining committee member to request a reassessment. But section 744.331 does not specifically prohibit the Ward’s attorney from contacting an examining committee member to request a reassessment. Further, the trial court declined to find that McKinney acted in bad faith in so doing. That said, it is arguable that the reassessment did not benefit the Ward because the court struck the reassessment report based, at least in part, on the court’s view that McKinney’s conduct was inappropriate.

It is also arguable that the court could have simply stricken Lee’s reassessment report and charged McKinney with the fees and costs associated with that report. But instead, the court struck all three reports and appointed a new committee. The evidence does not support a finding that this was attributable to any misconduct by McKinney. Rather, it appeared to result from the trial court’s concern with the accuracy of the original committee members’ reports both due to internal inconsistencies and the Ward’s intervening decline in capacity. To the extent that McKinney’s actions brought the problems with the original committee’s reports to the court’s attention, these actions benefit-ted the Ward.

In fact, McKinney’s expert testified that the appointment of the second committee benefitted the Ward. The expert asserted that the concerns about the quality of the first committee’s reports and the Ward’s intervening decline in capacity were legitimate. It would only benefit the Ward for the court to consider the most accurate information available to the court prior to its capacity determination.

We recognize, as did the trial court, that McKinney could have avoided this outcome if he had moved to strike Lee’s original report and brought the issue before the court rather than contacting Lee. And we do not condone or recommend McKinney’s actions. But it is worth noting that, had McKinney brought his concerns about the original assessment reports to the court’s attention in the manner suggested by the court, the Ward would have still incurred additional fees because of the problems with those reports. Lee may well have been authorized by the court to conduct a reassessment, and the court would have had the same information before it as to the problems with the original reports that caused it to strike the original panel and reports.

In summary, we understand the court’s concerns as to McKinney procuring Lee’s reassessment. But we conclude that the trial court’s finding that $8,766.25 of McKinney’s fees did not benefit the Ward is not supported by competent, substantial evidence. Similarly, the evidence and the court’s findings and observations regarding the problems with the original reports do not support sanctioning McKinney by reducing his fees by half or by charging him the $900 in costs. As stated above, McKinney’s actions in obtaining the reassessment were not clearly prohibited by law, and the court found that McKinney did not act in bad faith.

We therefore reverse the final order awarding McKinney a reduced amount of attorney’s fees and charging him with the costs of the second examining committee. On remand, the trial court shall reconsider McKinney’s petition for attorney’s fees and expenses. To the extent the court again determines that any reduction is warranted for services that did not benefit the Ward, the trial court must make findings as to the time entries or costs being disallowed and the basis for the reduction.

Reversed and remanded.

NORTHCUTT and SLEET, JJ., Concur.

      .The record does not reflect the circumstances under which McKinney became co-counsel for the Ward. We decline to address Mr. Rawl's appellate argument that McKinney was not entitled to any fees because he was not court-appointed and the court did not enter an order allowing him to appear as co-counsel. Mr. Rawl waived this argument by failing to raise it in the trial court. Indeed, his trial counsel acknowledged that McKinney was entitled to fees.

      . See § 744.33l(3)(e), Florida Statutes (2010). Those rights include the right to marry, vote, apply for government benefits, have a driver’s license, travel, seek or retain employment, contract, sue and defend lawsuits, manage property or make any gift or disposition thereof, determine his or her residence, consent to medical and mental health treatment, and make social decisions. § 744.3215(2), (3).

      . In a plenary guardianship, the guardian exercises all of the delegable rights and powers of the Ward. § 744.102(9)(b).

      . We find no merit in Mr. Rawl’s assertion that affirmance is required based on his other objections to McKinney’s petition for attorney’s fees and expenses.

      . The trial court asked questions of the expert and observed that the first examining committee members' reports "were all over the place,” while the reports from the second committee were consistent.

      . Indeed, the court’s suggested procedure has been recognized as an appropriate method of challenging the sufficiency of a committee member’s assessment. See Levine v. Levine, 4 So.3d 730, 731 n. 1 (Fla. 5th DCA 2009).

        . See § 744.108(1); In re Guardianship of Ansley, 94 So.3d 711, 714 (Fla. 2d DCA 2012).


author: DAVIS, Chief Judge.

text:
    Keitha Elise GRIFFITH, Appellant/Cross-Appellee, v. Everett Edward GRIFFITH, Appellee/Cross-Appellant.
    No. 2D13-1303.
    District Court of Appeal of Florida, Second District.
    March 7, 2014.

      Keith D. Miller of Boswell & Dunlap, LLP, Bartow, for AppellanVCross-Appel-lee.
    Jean Marie Henne of Jean Marie Hen-ne, P.A., Winter Haven, for Appel-lee/Cross-Appellant.
   DAVIS, Chief Judge.

Keitha Elise Griffith, the Former Wife, challenges the trial court’s Final Judgment on Modification of Final Judgment of Dissolution of Marriage, in which the court changed the shared parental and custodial responsibility for the parties’ two minor children to award sole parental and custodial responsibility to Everett Edward Griffith, the Former Husband. On cross-appeal, the Former Husband challenges that portion of the final judgment on modification which failed to make the Former Wife’s child support obligation retroactive to the date he filed his petition for modification. We affirm as to the cross-appeal without comment. But because the trial court did not include certain statutorily required findings in its order, we must reverse the final judgment of modification on direct appeal.

The parties’ divorce became final on December 1, 2008, and pursuant to the final judgment of dissolution, the parties were to share parental responsibility for their two minor children, with the Former Wife having primary residential responsibility. On March 13, 2012, the Former Husband filed a petition for modification, seeking a change in residential parent and/or supervised time-sharing. In his petition, the Former Husband alleged a substantial change of circumstances in that since the final dissolution of marriage, the Former Wife had moved residences several times with the children, was not financially stable, was not providing a stable and secure environment for the children, engaged in physically abusive relationships with men, exposed the children to such abuse, and had been arrested four times for domestic violence.

A hearing on the petition was held on April 3, 2012, but the Former Wife did not attend. The trial court heard testimony and at the close of the hearing entered a temporary order modifying time-sharing to make the Former Husband the primary residential parent and allowing the Former Wife supervised time-sharing.

A final hearing was held January 17, 2013. The Former Wife appeared pro se. At the close of the hearing, the trial court found a substantial change in circumstances warranting modification and ordered that the Former Husband be named primary residential parent with supervised time-sharing for the Former Wife.

On appeal, the Former Wife argues that the trial court erred in finding that a substantial change of circumstances had occurred and in failing to consider the best interests of the children pursuant to section 61.13(8), Florida Statutes (2012). We must agree.

“[A] time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.” § 61.13(8). Here, the trial court did make a specific finding that there was a substantial change in circumstances; however, neither the final order of modification nor the court’s oral pronouncement specifies what that substantial change is. Furthermore, there is nothing in the record to specifically suggest that the trial court considered the best interests of the children. See § 61.13(3) (stating that “[d]eterminati()n of the best interests of the child shall be made by evaluating” certain enumerated factors).

Accordingly, we must reverse the trial court’s final order of modification and remand for reconsideration. On remand, the trial court’s temporary order modifying the time-sharing arrangement by naming the Former Husband primary residential parent will remain in effect while the cause remains pending.

Affirmed in part, reversed in part, and remanded.

WALLACE and LaROSE, JJ., Concur.

      . We find no merit to the other arguments the Former Wife makes on appeal.


author: NORTHCUTT, Judge.

text:
    Mason Ryan PIERCE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-707.
    District Court of Appeal of Florida, Second District.
    March 7, 2014.

      Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Mason Pierce appeals a restitution order entered after a hearing in Pierce’s absence. We reverse.

Pierce entered no contest pleas in two cases involving the same victim. When accepting the pleas, the circuit court ordered $15 in restitution in one case and reserved jurisdiction to determine restitution in the other. At the subsequent hearing, the assistant public defender who had represented Pierce at the change-of-plea proceeding was present, but Pierce was not. The public defender was unaware of Pierce’s whereabouts and did not know whether Pierce had received notice of the hearing. Over the public defender’s objection, the court conducted the hearing in Pierce’s absence and entered a restitution award of $1070.

A restitution hearing is a critical stage of a criminal proceeding, and a defendant has a Sixth Amendment right to be present. Windh v. State, 113 So.3d 150, 151 (Fla. 2d DCA), review denied, No. SC13-1250, 2013 WL 6331684 (Fla. Dec. 4, 2013). “[U]nless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence.” Id. (quoting Thar v. State, 8 So.3d 1204, 1205 (Fla. 2d DCA 2009)).

To prove such a knowing and voluntary waiver, the State must establish that the defendant had notice of the hearing and that he intentionally did not appear or that he left the court during the proceeding. Baker v. State, 979 So.2d 453, 455 (Fla. 2d DCA 2008) (reversing restitution order entered after a hearing conducted in defendant’s absence; prosecutor admitted mailing notice to wrong address and defense attorney had been unable to locate client in time, so no evidence showed defendant had actual notice or knowledge of hearing and therefore did not show he waived his presence); see also Holmes v. State, 117 So.3d 447, 448 (Fla. 2d DCA 2013) (reversing restitution order entered after hearing conducted in defendant’s absence because nothing suggested defendant had notice or had waived his presence: “The State did not suggest that it had noticed Mr. Holmes and Mr. Holmes’ counsel did not suggest that he had informed his client of the hearing.”); M.W.G. v. State, 945 So.2d 597 (Fla. 2d DCA 2006) (reversing restitution order entered after hearing conducted in defendant’s absence; although record showed that defendant had been given notice of hearing date, State failed to carry its burden of showing defendant knowingly and voluntarily waived right to be present).

In this case there was no showing that Pierce received notice of the hearing, and the State presented no evidence to show that he waived his right to be present. See Donaldson v. State, 985 So.2d 63, 64 (Fla. 2d DCA 2008) (noting that State properly conceded error in restitution order when the defendant had not been present for the restitution hearing and the circuit court failed to determine that the defendant’s waiver of his presence was knowing, intelligent, and voluntary). The State contends that Pierce failed to preserve this issue by filing a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). But it was unnecessary for Pierce to do so because the error was preserved by the public defender’s objection at the hearing. See Fla. R. Crim. P. 3.800 (court cmt.) (“A motion pursuant to this rule is needed only if the sentencing error has not been adequately preserved for review at an earlier time in the trial court.”). We reverse and remand for a new restitution hearing.

Reversed.

VILLANTI and WALLACE, JJ., Concur.


author: WALLACE, Judge.

text:
    John FILMORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1550.
    District Court of Appeal of Florida, Second District.
    March 12, 2014.

      Howard L. “Rex” Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

John Filmore appeals the revocation of his community control following an affidavit of violation alleging an unauthorized absence from his approved residence and failure to comply with the instructions of his community control officer (the CCO). Because the trial court abused its discretion in determining that Mr. Filmore’s violations of the conditions of his community control were substantial, we reverse and remand for the reinstatement of Mr. Fil-more to supervision.

I. THE FACTS AND PROCEDURAL HISTORY

In trial court case number 2011-CF-011473, the State charged Mr. Filmore with burglary of a structure, burglary of a conveyance, and petit theft. These offenses allegedly occurred orí January 29, 2011. In trial court case number 2011-CF-015918, the State charged Mr. Filmore with kidnapping, aggravated battery, aggravated assault, and two counts of being a felon in possession of a firearm. These offenses allegedly occurred on May 12, 2011.

On November 26, 2011, the State nolle prossed the two counts of felon in possession of a firearm in exchange for Mr. Filmore’s open plea of guilty to the remainder of the charges. The trial court adjudged him to be guilty on each charge. In case number 201 1-CF-011473, the trial court sentenced him to time served on the petit theft charge and to two years’ community control followed by three years’ probation on the two burglary charges. In case number 2011-CF-015918, the trial court sentenced Mr. Filmore to concurrent terms of 127.05 months in prison on the kidnapping and aggravated battery charges. However, the trial court suspended the 127.05-month prison terms. In lieu of the prison terms, the trial court placed Mr. Filmore on concurrent periods of two years’ community control followed by three years’ probation.

In pertinent part, the conditions of Mr. Filmore’s community control provided as follows:

(9) You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you.
(16) You will remain confined to your approved residence except for one half hour before and after your approved employment, public service work, or any other special activities approved by your officer.

The CCO instructed Mr. Filmore on these and the other conditions of his community control on January 11, 2013. Eleven days later, on January 22, 2013, the CCO filed an affidavit alleging that Mr. Filmore had violated the conditions of his community control on January 16, 2013, as follows:

Violation of Condition of the Order of Community Control, by failing to remain confined to his approved residence except for one half hour before and after employment, public service work, treatment, or other activities approved by the officer, and as grounds for belief that the offender violated his community control, [the CCO] states the offender was away from his approved residence located at [the address of Mr. Filmore’s Tampa apartment], on 1/16/13, at 6:10 P.M., without prior approval of the officer, as evidenced by the subject not being at his residence on 1/16/13 at 6:10pm and was approved on his schedule [sic].
Violation of Condition (9) of the Order of Community Control, by failing to comply with all lawful instructions given to him by the community control officer, and as grounds for belief that the offender violated his community control, [the CCO] states that on 1/11/13, the offender was instructed to follow his community control schedule and the offender did fail to carry out this instruction by not being at his approved residence on 1/16/13 at 6:10pm.

Mr. Filmore contested the alleged violations, and the trial court conducted an evidentiary hearing on the matter on February 28, 2013.

At the time of the alleged violations, Mr. Filmore was unemployed. However, he had recently obtained a position with a garbage hauler. Mr. Filmore lived in an apartment complex in Tampa with his wife and their two children. One of the amenities provided by the apartment complex was a child care center for the children of residents. The center was located on the premises in the building adjacent to the building where Mr. Filmore resided. According to the CCO, the Tampa Police Department maintained a substation less than one-quarter mile from the apartment complex.

At the hearing, the CCO testified that each week she set up a schedule with Mr. Filmore based on his planned activities during the coming week. On January 16, 2013, the date of the alleged violations, Mr. Filmore was scheduled to pick up “the kids” from a bus stop at the apartment complex. The record is unclear concerning the identity of “the kids” that Mr. Filmore was scheduled to pick up. According to the schedule, Mr. Filmore was to accomplish this task between 3:00 and 4:00 p.m.

Mr. Filmore had fallen asleep on the afternoon in question. When he awoke and realized that he had overslept, he left his apartment and went to the center in the adjacent building to pick up “the kids.” As luck would have it, the CCO came by to check on Mr. Filmore at 6:10 p.m. When the CCO arrived at the apartment, Mr. Filmore was not present. According to the CCO’s testimony, upon her arrival, she initially observed Mr. Filmore’s neighbor, Demario Campbell, holding Mr. Filmore’s younger child (an infant) on the front steps to the apartment building. The CCO testified that the neighbor had told her that he was walking by and heard the baby crying, and not seeing Mr. Filmore, picked up the baby and began “rocking him, waiting for John to come out.” Next, the CCO observed “a little girl” leaving the apartment and asked her if her dad was home, to which the girl answered, “No.” The evidence at the hearing did not establish the identity of the “little girl” that the CCO observed leaving the apartment. At this point, the CCO left the apartment complex “really quick” and went to the nearby police substation. She returned almost immediately, accompanied by a Tampa Police Officer.

When the CCO returned to the apartment building, Mr. Filmore was there with his younger child in his arms. The CCO testified that Mr. Filmore told her that he had gone to the center to pick up a neighbor’s child. According to the CCO’s testimony, the total period of time that had elapsed between her initial arrival at Mr. Filmore’s apartment and her return to the apartment from the Tampa Police substation was between five and eight minutes. The CCO apparently had Mr. Filmore arrested immediately. On the day of the hearing, he had been in jail for forty-three days.

Mr. Filmore’s neighbor, Demario Campbell, testified at the hearing. He said that he had been at Mr. Filmore’s residence since noon. Mr. Campbell said that the only time that Mr. Filmore was away from the residence was when he went to the center to pick up his other daughter and that this is what he told the CCO. According to Mr. Campbell, Mr. Filmore returned from the center within thirty seconds or a minute after the CCO had left for the police substation. Mr. Campbell testified that Mr. Filmore was gone from his apartment for “about five, eight minutes at the most.”

Mr. Filmore testified that after realizing that he had overslept and the center was about to close, he called the CCO’s office and did not receive an answer. Then, he left his apartment and went to the onsite child care center located “in the next building over.” According to Mr. Filmore, he picked up his older daughter and the daughter of a neighbor. When the prosecutor asked Mr. Filmore why he did not send Mr. Campbell to pick up his daughter, he explained that the center would not release the child to Mr. Campbell because they did not know him. Mr. Filmore also testified that his neighbor was unable to pick up her child before the center closed. Mr. Filmore estimated that he was gone from his apartment for approximately five to seven minutes.

As the trial court noted at the conclusion of the hearing, there are inconsistencies in the CCO’s testimony concerning what Mr. Filmore and Mr. Campbell said to her on the day in question and their testimony at the hearing. It is also unclear from the evidence whether Mr. Filmore picked up one child or two children from the center. We cannot reconcile these inconsistencies in the evidence. That said, the salient points are undisputed. Mr. Filmore overslept and failed to pick up “the kids” during the hour scheduled for that purpose. When he woke up and realized his error, he called the CCO’s office and received no answer. Because the center was about to close, he left his apartment for about five to ten minutes to retrieve “the kids.” He returned with a child or children that the center released to him. In his brief absence, the CCO arrived at the apartment and found him missing. The CCO departed, then returned a few minutes later, only to find Mr. Filmore at his apartment where he was supposed to be. Mr. Campbell’s testimony confirmed that Mr. Fil-more was at his apartment from noon until shortly after 6:00 p.m. when he left to go to the nearby child care center. Mr. Fil-more did not venture beyond the limits of the apartment complex where he resided, and the period of his absence from his apartment was not more than fifteen minutes by any account.

II. THE TRIAL COURT’S RULING

Mr. Filmore’s counsel conceded at the hearing that his violation of the schedule was willful. However, she argued that the violation was not substantial and asked the trial court to return him to his community control. The trial court ruled that “any time you are on probation for a first-degree felony punishable by life, ... any violation is willful and substantial.” The trial court found Mr. Filmore in violation of Condition 9, revoked his community control, and sentenced him to 127.05 months in prison on the kidnapping and aggravated battery charges and to five years in prison on the remaining charges. The trial court designated the sentences to run concurrently.

III. THE APPLICABLE LAW

“In deciding whether to revoke a defendant’s community control, the trial court must determine whether the facts and circumstances of the case demonstrate a willful and substantial violation that is supported by the greater weight of the evidence.” Anthony v. State, 854 So.2d 744, 747 (Fla. 2d DCA 2003) (citing State v. Carter, 835 So.2d 259, 261 (Fla.2002)). On review, an appellate court must first determine whether the trial court’s finding of a willful and substantial violation is supported by competent substantial evidence. Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013). Our standard of review regarding the trial court’s decision to revoke probation or community control is abuse of discretion. Id. at 623.

IV. DISCUSSION

Upon a thorough review of the record, we conclude that the trial court abused its discretion in revoking Mr. Fil-more’s community control. See Brown v. State, 86 So.3d 1225, 1226 (Fla. 2d DCA 2012) (concluding that an alleged curfew violation, which occurred because the probationer was waiting for his brother, who was assisting the probationer with job applications, was not substantial, that the State had not shown that the probationer was unfit for probation, and that revocation was “patently unfair”); Ortiz v. State, 54 So.3d 1020, 1021-22 (Fla. 2d DCA 2011) (holding that the probationer’s misstatement about the time he left work in his explanation to his probation officer about why he was late did not demonstrate that the probationer was unfit for probation and was not a substantial violation); Cruz v. State, 81 So.3d 501, 503 (Fla. 4th DCA 2012) (holding that the probationer’s violation of probation by leaving his approved residence — a tent pitched by an 1-95 ramp — to use a nearby restroom was not a substantial violation and did not demonstrate that the probationer was unfit for probation).

Here, the conduct for which the CCO violated Mr. Filmore — leaving his approved residence for a short period of time to “pick up the kids” — was an approved activity. The only problem was that he performed this essential act outside the window of time in which this activity was supposed to occur. But Mr. Filmore was only gone from his apartment for a few minutes; he did not leave his own apartment complex and did not even cross the street. Although there were minor inconsistencies in the testimony that cannot be reconciled, the State did not offer any evidence that challenged the important elements of Mr. Filmore’s version of events.

We grant that Mr. Filmore’s negligence in oversleeping during the middle of the day caused the dilemma in which he found himself. However, this behavior is, at best, a single instance of negligence, analogous to other situations that this and other courts have concluded are insufficient to justify a revocation of supervision. “A violation of probation will not be found where the violation is due to negligence or ineptitude.” Garcia v. State, 701 So.2d 607, 609 (Fla. 2d DCA 1997) (holding that a probationer’s failure to obtain a psychological evaluation as directed by his probation officer was insufficient to prove that he had deliberately failed to follow instructions and the probationer had made “reasonable attempts” to comply, but had been thwarted by lack of finances and transportation); Buckins v. State, 789 So.2d 1184, 1186 (Fla. 4th DCA 2001) (holding that a probationer’s failure to attend a required program absent a showing that the failure was a product of a knowing and willful act and not merely the result of negligence or ineptitude could not support the revocation of the defendant’s probation); Thomas v. State, 672 So.2d 587, 588-89 (Fla. 4th DCA 1996) (holding that a probationer’s inept or negligent failure to return to a halfway house on time because of car trouble and his departure early the next morning to retrieve his car without first speaking to the program director because he was worried that his car would be towed did not amount to a willful violation of probation); Stevens v. State, 599 So.2d 254, 255 (Fla. 3d DCA 1992) (holding that the defendant’s act of missing a single meeting of a sex offender’s program despite his “quixotic and inept” attempts to make it there on time, “does not support the conclusion that the defendant willfully or deliberately missed the meeting”).

Community control is “a form of intensive, supervised custody in the community, including surveillance on weekends and holidays.” § 948.001(3), Fla. Stat. (2012); see also United States v. Wright, 607 F.3d 708, 715 (11th Cir.2010) (explaining that community control “contain[s] conditions specifically designed to rehabilitate the offender and promote respect for the law while simultaneously protecting the public.”). Despite the strict conditions imposed on the controlee, community control is not intended to be a punitive regime. Instead, like electronic monitoring, community control “helps the subject to conform his or her conduct to society’s requirements by discouraging behaviors that are likely to lead to new law violations or other violations of supervision.” Correa v. State, 43 So.3d 738, 745 (Fla. 2d DCA 2010). When confronted with a violation of the terms and conditions of community control that is both willful and substantial, the trial court certainly has the discretion to enter an order of revocation. However, community control should not function as a thinly disguised trap whereby the contro-lee’s slightest misstep results in revocation and a substantial prison term at the whim of the controlee’s community control officer.

In this case, when Mr. Filmore woke up late and was unable to reach his CCO’s office by telephone, he was faced with a difficult choice: commit a technical violation by performing the otherwise-authorized activity of picking up “the kids” outside of the agreed-upon hour, or avoid the technical violation by abdicating his personal and parental responsibilities to the children. Under the circumstances in which he found himself, any fair-minded person would agree that Mr. Filmore made the responsible choice by leaving his apartment for a few minutes to pick up “the kids.” This behavior did not show an obstinate resistance to supervision or an obdurate refusal to conform to society’s reasonable expectations. Moreover, the State did not offer any evidence that Mr. Filmore had a pattern of failing to follow his schedule or provide any other examples of his violation of the conditions of his community control.

Finally, the trial court’s comment that “any time you are on probation for a first-degree felony punishable by life ... any violation is willful and substantial” is, standing alone, an abuse of discretion requiring reversal, because it applied a prohibited “per se” rule in revoking Mr. Fil-more’s community control.

Such a per se rule strips the trial court of its obligation to assess any alleged violations in the context of a defendant’s case. Trial courts must consider each violation on a case-by-case basis for a determination of whether, under the facts and circumstances, a particular violation is willful and substantial and is supported by the greater weight of the evidence. In other words, the trial court must review the evidence to determine whether the defendant has made reasonable efforts to comply with the terms and conditions of his or her probation.

See also State v. Carter, 835 So.2d 259, 261 (Fla.2002). As this court has previously observed:

In broadly declaring all terms of probation “serious,” the trial court seems to have believed revocation was automatically appropriate because a curfew violation had been proven. The trial judge made no findings on willfulness or sub-stantiality other than his blanket assertion that all curfew violations are “extremely serious.” This was an abuse of discretion because the trial court revoked [the probationer’s] probation without addressing the violation in the context of his case.

Brown, 86 So.3d at 1228. In this case, the trial court’s declaration that any violation is willful and substantial not only fails to address the violation in the context of all the facts and circumstances, it also deprives the concepts of willfulness and sub-stantiality of all meaning. The trial court’s failure to make any findings about the substantial nature of the violation bolsters our conclusion that Mr. Filmore’s alleged violations were not substantial.

V. CONCLUSION

Although “[t]here may arise instances where careless or negligent conduct of a probationer rises to the level of deliberateness,” Garcia, 701 So.2d at 609, under the specific facts presented in this case, we conclude that the State failed to prove-that Mr. Filmore’s violation was substantial and that he was unfit for community control. See Brown, 86 So.3d at 1227 (“[T]he decision to revoke a defendant’s probation should be made ‘only when the probation violation is both willful and substantial so as to indicate that probation will not work for that defendant.’ ” (quoting Carter, 835 So.2d at 262)). For these reasons, we conclude that the trial court abused its discretion in determining that Mr. Fil-more’s violations were substantial and in revoking his community control. Accordingly, we reverse the order of revocation of community control and the prison sentences imposed on Mr. Filmore. On remand, the trial court shall promptly restore Mr. Filmore to supervision.

Reversed and remanded with directions.

KELLY and BLACK, JJ., Concur.

      . The State charged Mr. Filmore as a principal on all counts. The information specifically alleged that Mr. Filmore’s codefendant alone possessed the firearm and committed the overt acts constituting the crimes charged. The codefendant was convicted on all charged offenses in a jury trial and received sentences ranging from twenty to thirty-five years in prison on these charges. This background may explain the trial court’s initial decision to suspend Mr. Filmore's prison sentences and to impose a relatively short period of community control following his open plea.

      . At the hearing, the witnesses referred to the mother of Mr. Filmore’s children both as his wife and as his girlfriend. We are unable to determine her status definitively from our record.

      . During the hearing in the trial court, both the witnesses and the attorneys referred to this facility as "the center” without further explanation. Thus the record is ambiguous concerning whether this facility was a daycare center or if it only provided after-school care. Based on a few hints in the record, we are inclined to believe that it was the latter.

      . Neither of the parties introduced the written schedule into evidence.

      . This initial reference to a "bus stop” immediately morphed into references to "the center.” The same shift in terminology occurs in the parties’ appellate briefs. Neither party has addressed this inconsistency. More importantly, no one has suggested that Mr. Fil-more committed a violation of the terms of his community control by going to the center, as opposed to the bus stop, to retrieve "the kids.” We surmise that the children arrived at the apartment complex from school on a bus by mid-afternoon. If the children were not met by an adult at the bus stop, the children would go to the center, where they would wait until an adult came to retrieve them.

      . Notably, the CCO never contacted anyone at the center to verify what Mr. Filmore and Mr. Campbell had told her.

      . The latter choice suggests a variety of potential consequences. For example, what would happen to "the kids” if he did not pick them up on time? Would the center be available to him and his wife as a resource in the future? And, with regard to the alleged violation of the agreed-upon schedule, would it not have been a more severe breach to fail to pick up the children at all than to pick them up late?


text:
    Kendrick Jermaine WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5067.
    District Court of Appeal of Florida, Second District.
    March 12, 2014.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

In Kendrick Jermaine Walker’s appeal of the revocation of his youthful offender probation and resulting sentences in five circuit court cases, defense counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This court struck the Anders brief and directed the parties to address three issues. In its brief, the State has properly conceded error on all three issues. Although we affirm the revocation of Walker’s probation, we reverse the revocation order and sentences and remand for their correction. In addition, we direct the trial court to strike Walker’s judgments and sentences for grand theft in circuit court cases 06-CF-21423 and 06-CF-22456.

First, the trial court erred in failing to continue Walker’s youthful offender designation upon the revocation of his probation. Once a trial court imposes a youthful offender sentence, the court must continue that status upon resentencing for a violation of probation. See Yegge v. State, 88 So.3d 1058, 1060 (Fla. 2d DCA 2012); Lee v. State, 67 So.3d 1199, 1202 (Fla. 2d DCA 2011). Therefore, we reverse the sentences and remand for the trial court to correct the sentences to reflect Walker’s youthful offender designation.

Second, Walker did not enter a plea to grand theft in case numbers 06-CF-21423 and 06-CF-22456. Therefore, the grand theft convictions and sentences in those two cases must be stricken from the written judgments and sentences.

Third, the written order revoking Walker’s probation states that Walker was found in violation of conditions 1 and 6. However, at the conclusion of the probation revocation hearing, the trial court found Walker in violation of condition 8 of his probation, and that finding is supported by the evidence. Thus, we reverse the revocation order and remand for the trial court to enter a corrected order reflecting that Walker violated condition 8 of his probation.

Affirmed in part, reversed in part, and remanded.

KELLY and MORRIS, JJ., Concur.

      . Before filing the merits brief, defense counsel filed a motion to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The motion is deemed denied because the trial court failed to rule on the motion within sixty days. See Fla. R. Crim. P. 3.800(b)(1)(B), (b)(2)(B).


author: CASANUEVA, Judge.

text:
    Bobby Charles CARR, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3653.
    District Court of Appeal of Florida, Second District.
    March 12, 2014.
    Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Bobby Charles Carr appeals his judgments and sentences for forgery, uttering a forged instrument, and petit theft. We affirm without discussion the judgments and sentences for uttering a forged instrument and petit theft. However, we agree with Mr. Carr that the trial court erred in denying his motion for judgment of acquittal as to the forgery charge, and we therefore reverse that judgment and sentence.

During Mr. Carr’s trial for the three offenses, Sophia Luxin testified that she is a teller at Amscot and was working when Mr. Carr attempted to cash a check belonging to John Holmes. She thought the check was suspicious because earlier that day another person, Jennifer Thompson, cashed a check from Mr. Holmes for the same amount. Ms. Thompson claimed that the check was for house cleaning. Ms. Luxin called Mr. Holmes and he informed her that his checkbook had been stolen.

Ms. Luxin then contacted Amscot’s corporate office and law enforcement. About thirty to forty-five minutes elapsed from the time Mr. Carr presented the check until law enforcement arrived at Amscot, and Ms. Luxin continued to hold Mr. Carr’s identification during this time period. While Mr. Carr was waiting in the lobby, he became nervous and started pacing back and forth closer to the door. Mr. Carr then left before law enforcement arrived without saying anything to Ms. Lux-in even though she retained his identification. Ms. Luxin identified Mr. Carr in court as the person who attempted to cash the stolen check.

Jennifer Thompson testified that she previously dated Mr. Carr and while they were dating, he asked her to cash a check for him because he could not find his identification. The check was completely filled out when he handed it to Ms. Thompson.

John Holmes testified that he last saw the stolen checks in the armrest of his vehicle. He gave a ride to a man named Joseph Dubose and a woman named Christina. The following morning he noticed that the checks were missing, but he did not know who took the checks. He did not know Mr. Carr and did not fill out the check that Mr. Carr had attempted to cash. He noted that the check was written for lawn work and that Mr. Carr had never done lawn work for him.

Section 831.01, Florida Statutes (2011), provides that the crime of forgery is committed when a person “falsely makes, alters, forges or counterfeits ... an order ... for money ... with intent to injure or defraud any person ....” In closing argument, the State alleged that Mr. Carr either wrote on the check himself or that he acted as a principal in the forgery: “So either Bobby Carr forged that check ... or somebody else forged that check, Bobby Carr knew they forged that check, and he’s assisting them to commit this forgery by presenting this check to Amscot.” However, there was no evidence presented at trial that Mr. Carr forged the check, that he assisted someone in committing the forgery, or that he even knew who forged the check.

This case is similar to Watkins v. State, 826 So.2d 471, 472-73 (Fla. 1st DCA 2002), where the appellant and two other men cashed counterfeit checks, but there was no evidence regarding whose handwriting was on the checks. The First District noted that “the crime of forgery requires the making of a writing that falsely purports to be the writing of another, with the intent to defraud.” Id. at 474 (citing Walters v. State, 245 So.2d 907, 908 (Fla. 1st DCA 1971)).

The court held that where the State asserts that the appellant was a principal to forgery, the issue is whether the State established that the appellant intended that the forgery be committed and did some act to assist another person to commit the forgery. Id. Similar to the present case, there was no testimony in Watkins establishing that the

appellant falsely made, altered, forged or counterfeited the check or that he did some act or said some word that was intended to and did incite or cause another individual to counterfeit the check. Because the State produced no evidence as to who actually counterfeited the check, it based its case for forgery solely upon the evidence that appellant uttered the counterfeit check. Therefore, taking the evidence in a light most favorable to the State, while appellant’s conduct in uttering the counterfeit check established a prima facie case of uttering a forgery, this evidence, standing alone, did not establish a prima facie case of the separate and distinct crime of forgery.

Id. at 474-75.

Here, the State presented no evidence to establish whose handwriting was on the check or any evidence as to who participated in the forgery. As in Watkins, the case for forgery was based solely on the evidence that Mr. Carr and his girlfriend uttered the counterfeit checks. Because there was no evidence that Mr. Carr acted as a principal to the forgery or committed the actual forgery, the trial court erred in denying his motion for judgment of acquittal.

Accordingly, we reverse Mr. Carr’s judgment and sentence for forgery. His judgments and sentences for uttering a forged instrument and petit theft are affirmed.

Affirmed in part; reversed in part.

ALTENBERND and CRENSHAW, JJ., Concur.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, As Trustee for Morgan Stanley ABS Capital I Inc. Trust 2006-HE8, Mortgage Pass-Through Certificates, Series 2006-HE8, Appellant, v. Robert PLAGEMAN and Mary Plageman, Appellees.
    No. 2D12-5974.
    District Court of Appeal of Florida, Second District.
    March 12, 2014.
    Nancy M. Wallace and Michael J. Larson of Akerman Senterfitt, Tallahassee, and William P. Heller of Akerman Senter-fitt, Fort Lauderdale, for Appellant.
    Alan Workman of Alan Workman, P.L., Cape Coral, for Appellees.
   SILBERMAN, Judge.

Deutsche Bank National Trust Company-seeks review of a final order dismissing its second amended foreclosure complaint. At issue in this case is whether a loan servicer’s verification of a foreclosure complaint on behalf of a foreclosure plaintiff must be accompanied by evidence documenting the servicer’s authority to sign. We answer this question in the negative and reverse.

Deutsche Bank’s first amended foreclosure complaint was verified by an assistant vice president of Bank of America, N.A. (BANA) “as authorized agent and loan ser-vicer for Deutsche Bank.” Deutsche Bank alleged that BANA is authorized to execute the verification as Deutsche Bank’s agent and loan servicer. Defendants Robert and Mary Plageman filed a motion to dismiss this complaint because it was verified by an alleged agent rather than by Deutsche Bank as the plaintiff. At a hearing on the motion, the Plagemans alternatively argued that the verification was improper because Deutsche Bank did not attach evidence of BANA’s authority to sign the verification. The trial court granted the motion to dismiss with leave to amend, stating that BANA could verify the complaint provided its right to do so was substantiated by evidence.

Deutsche Bank filed a second amended complaint which contained the same allegation as to BANA’s authority to execute the verification. The complaint included another notarized verification by the “AVP, Sr. Operations Manager” of BANA “as authorized agent and loan servicer for Deutsche Bank.” Deutsche Bank did not attach or file any evidence to support the verification. After the Plagemans filed another motion to strike or dismiss, the trial court held a hearing and stated it would dismiss the second amended complaint with leave to amend. Deutsche Bank said it would stand on the second amended complaint as written and requested a final, appealable order dismissing the case. The court refused and ordered that the second amended complaint be dismissed with leave to amend within twenty days. When the twenty days passed without amendment, the court entered a final order dismissing the second amended complaint without further leave to amend. It is from this order that Deutsche Bank appeals.

Preliminarily, we reject the Plagemans’ argument that Deutsche Bank is not entitled to relief from the order on review because Deutsche Bank requested entry of a final order of dismissal. Deutsche Bank did not request dismissal for its own benefit but to obtain a final, appealable order that would trigger this court’s review jurisdiction. See, e.g., BAC Home Loan Servicing, L.P. v. Stentz, 91 So.3d 285, 236 n. 2 (Fla. 2d DCA 2012).

We also reject the Plagemans’ argument that Deutsche Bank is precluded from raising this issue on appeal because it did not file a notice of appeal from the earlier orders dismissing the complaint with leave to amend based on the improper verification. Deutsche Bank could not have appealed the court’s earlier orders when entered because they were non-final, non-appealable orders. See Klein v. Pinellas Cnty., 685 So.2d 945, 946 (Fla. 2d DCA 1996). And in its appeal of the final order, Deutsche Bank is authorized to challenge interlocutory orders “ ‘directly related to and an aspect of the final [order]’ under review.” Portis v. Seatruck, Inc., 98 So.3d 1234, 1235 (Fla. 3d DCA 2012) (quoting Cygler v. Presjack, 667 So.2d 458, 461 (Fla. 4th DCA 1996)).

On the merits, Florida Rule of Civil Procedure 1.110(b) sets forth the following verification requirements for foreclosure complaints:

When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

This court has recently concluded that rule 1.110(b) does not preclude the verification of a foreclosure complaint by an employee of the plaintiff bank’s loan servicer. See U.S. Bank N.A. v. Manon, 122 So.3d 398, 399 (Fla. 2d DCA 2013); Deutsche Bank Nat’l Trust Co. v. Prevratil, 120 So.3d 573, 575 (Fla. 2d DCA 2013). However, this court has not addressed the issue of whether such a verification must be accompanied by evidence supporting the servicer’s authority to sign.

In ruling that such evidence was required, the trial court relied on the Fourth District Court of Appeal’s decision in Elston/Leetsdale, LLC v. CWCapital Asset Management LLC, 87 So.3d 14 (Fla. 4th DCA 2012). In Elston, the owner and holder of the loan was a trust. Id. at 16. The trust’s servicer filed a verified foreclosure complaint in its own name and filed motions seeking to require the defendant to make loan payments during the pen-dency of the action. The defendant responded by filing a motion to dismiss the complaint for lack of standing. The servi-cer argued that it had standing to bring the action in its role as servicer and because the trust had authorized it to do so. The court declined to dismiss the complaint and entered a payment order. Id.

On appeal, the Fourth District concluded that the real party in interest rule authorizes a servicer to prosecute an action as an agent of the loan owner and holder. Id. at 17. But the agent must present evidence that the real party in interest joined or ratified the agent’s action. Because the servicer did not provide any such evidence, the court held that it did not establish standing. Id. at 17-18.

We find Elston to be wholly inapplicable to the facts of this case. The issue in Elston was the servicer’s standing to file a foreclosure complaint in its own name on behalf of the owner and holder of the loan. The issue in this case is the servicer’s authority to verify a complaint filed, in the name of the owner and holder of the loan. These issues are governed by completely different rules of civil procedure. The standing issue in Elston is governed by the “real party in interest rule, Fla. R. Civ. P. 1.210(a).” Id. at 17. However, the verification issue is governed by rule 1.110(b).

Thus, Elston does not provide authority to support the trial court’s evidentiary requirement in this case. And we can find no such authority in rule 1.110(b). Courts have consistently construed rule 1.110(b)’s verification requirement strictly by limiting it to its plain language. In Prevratil, this court rejected the argument that rule 1.110(b) required the servicer verifying the foreclosure complaint to assert it was the loan servicer or had some knowledge of the allegations therein. See 120 So.3d at 574. Instead, this court held that rule 1.110(b) allowed for verification without such language because it was authorized by a power of attorney. Id. at 575. This court simply explained, “In granting the motion to dismiss, the trial court imposed a verification requirement that rule 1.110(b) does not.” Id. at 576.

This court used similar reasoning to conclude that the dismissal of a foreclosure complaint was not warranted because the verification was attached to, rather than incorporated within, the amended complaint. See Stentz, 91 So.3d at 236-37. This court explained that “there is no requirement in rule 1.110(b) that the verification be contained within the complaint, and ‘[njothing in the rule prohibits the verification from starting on a separate page.’” Id. at 236 (quoting Becker v. Deutsche Bank Nat’l Trust Co., 88 So.3d 361, 362 (Fla. 4th DCA 2012)).

The Fifth District has concluded that a trial court erred in dismissing a foreclosure complaint because the verification did not relate the signer’s position. See U.S. Bank, N.A. v. Wanio-Moore, 111 So.3d 941, 941 (Fla. 5th DCA 2013). The court relied on Stentz to hold that “the rule does not require any information about the signer’s positional authority, and a court cannot ‘read more into [rule 1.110(b) ] than its plain language dictates.’ ” Id. at 942 (quoting Stentz, 91 So.3d at 236).

The plain language of rule 1.110(b) does not require a servicer to file evidence with the complaint proving that it has the authority to verify the foreclosure complaint. Adding such a requirement would be inconsistent with the courts’ strict construction of rule 1.110(b). And, because Elston does not address the specific issue before us, it does not support the imposition of such an evidentiary requirement.

We are not persuaded by the Plage-mans’ argument that the trial court’s decision is supported by the purposes for adding the verification requirement to rule 1.110(b) as stated in In re Amendments to the Florida Rules of Civil Procedure, 44 So.3d 555, 556 (Fla.2010). In fact, this court has rejected the argument that the policy language in In re Amendments precludes an agent from verifying a complaint under rule 1.110(b). See Prevratil, 120 So.3d at 575. Instead, the court focused on the plain language of rule 1.110(b).

In conclusion, the trial court erred in dismissing Deutsche Bank’s foreclosure action based on Deutsche Bank’s failure to attach to its complaint or to file evidence in response to the motion to dismiss. There is no basis to require Deutsche Bank to prove that its servicer had the authority to verify the foreclosure complaint at that stage of the litigation. Accordingly, we reverse the final order of dismissal and remand for further proceedings.

Reversed and remanded.

KELLY and BLACK, JJ., Concur.

      . In Prevratil, the lender filed a copy of the power of attorney in response to the motion to dismiss. 120 So.3d at 575.

      . The court described those purposes as follows:
      The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verily its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded "lost note" counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. In re Amendments, 44 So.3d at 556.

      . Our decision should not be read as precluding a defendant from challenging the authority of the person verifying the complaint if the defendant has a legitimate basis to do so. Rather, our decision resolves only the issue of whether evidence supporting that authority must be submitted with the complaint. We leave for another day consideration of whether such a challenge may be addressed through other mechanisms such as an affirmative defense, by attacking the complaint as a sham, through summary judgment, or otherwise. Similarly, we do not address the evidentiary burdens that must be met to resolve the issue.


author: BLACK, Judge.

text:
    Kevin TOUHEY, Appellant, v. Frank SEDA, Appellee.
    No. 2D12-6338.
    District Court of Appeal of Florida, Second District.
    March 12, 2014.
    Andrew J. Banyai of Aiken, O’Halloran & Banyai, Fort Myers, for Appellant.
    No appearance for Appellee.
   BLACK, Judge.

Kevin Touhey appeals a final judgment of injunction for protection against stalking entered in favor of Frank Seda. Mr. Touhey contends that there was insufficient evidence of stalking to support the injunction. We agree and reverse.

Newly-enacted section 784.0485, Florida Statutes (2012), provides injunctive relief from stalking. Given the statute’s recent enaction, support for our holding comes from cases analyzing allegations of stalking in the context of section 784.046, which applies to injunctions for protection against repeat violence, sexual violence, and dating violence.

Stalking is defined as the “willful[ ], malicious[ ], and repeated[ ] following], harassing], or cyberstalk[ing] [of] another person.” § 784.048(2). ‘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.” § 784.048(l)(a); see also § 784.048(l)(b) (defining “ ‘[cjourse of conduct’ ” as “a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose”), (d) (defining “ ‘Myberstalk’ ” as “engaging] 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”). Courts apply “ ‘a reasonable person standard, not a subjective standard,’ ” to determine whether “ ‘an incident causes substantial emotional distress.’ ” Goudy v. Duquette, 112 So.3d 716, 717 (Fla. 2d DCA 2013) (quoting Slack v. Ming, 959 So.2d 425, 426 (Fla. 2d DCA 2007)). Each incident of stalking must be proven by competent, substantial evidence to support an injunction against stalking. See generally id. at 717.

On October 26, 2012, Mr. Seda filed a sworn petition for injunction for protection against stalking. In the petition, Mr. Seda asserted that he has been afraid of Mr. Touhey since January 2012 as a result of Mr. Touhey repeatedly attempting to contact Mr. Seda and because Mr. Touhey threatened and harassed him and his employees. At the hearing on November 6, 2012, however, Mr. Seda testified that the alleged stalking occurred only since about late September 2012, when Mr. Touhey’s son pulled a gun on Mr. Seda. Mr. Seda claimed that Mr. Touhey sent him a text message at that time, stating “[W]e can resolve this problem.” Mr. Seda admitted that he dined with Mr. Touhey and was a guest at Mr. Touhey’s home on various occasions between March 2012 and June 2012.

The circuit court asked Mr. Seda to provide specific examples of the alleged stalking, to which Mr. Seda testified that Mr. Touhey called and visited his office, asking Mr. Seda’s employees about his whereabouts. Mr. Seda did not indicate that any threats were made; rather, he claimed that Mr. Touhey was trying to intimidate him. Mr. Seda testified that he “fears for [his] life” as a result of the incident with Mr. Touhey’s son, though only Mr. Touhey, not his son, was named on the petition.

Mr. Seda produced three witnesses to support his stalking claims, which primarily involved indirect contact. See Jones v. Jackson, 67 So.3d 1203, 1204 (Fla. 2d DCA 2011) (“Indirect contact can constitute harassment.”). All three witnesses worked with both Mr. Seda and Mr. Touh-ey in some capacity. The first witness testified that he did not have any firsthand knowledge of the alleged incidents, the second witness testified that Mr. Touhey went to Mr. Seda’s office once and called the office twice in the past month but made no threats and simply asked for Mr. Seda, and the third witness testified that he was not aware of any stalking.

We conclude that the record lacks a sufficient basis for the circuit court’s finding that Mr. Seda proved “inappropriate contact” constituting stalking. The testimony only established a single incident of “following,” which was not malicious. Further, a reasonable person would not suffer “substantial emotional distress” as a result of Mr. Touhey visiting once and calling twice to inquire about Mr. Seda’s whereabouts or the single text message following the incident with Mr. Touhey’s son. Cf. Goudy, 112 So.3d at 717-18 (reversing injunction for protection from repeat violence because one willful and malicious incident of following coupled with one telephone call and three other following incidents did not constitute stalking; since a reasonable person would not suffer emotional distress from the call or three non-malicious following encounters, there was no evidence of “repeated harassment or malicious following”); Jones, 67 So.3d at 1204 (reversing injunction for protection from repeat violence because the threatening phone calls and text messages did not amount to harassment and “without harassment there was no proof of stalking”); Slack, 959 So.2d at 426 (reversing injunction for protection against repeat violence because the two voicemails, in which the respondent asserted that he would make an “arrangement” if the petitioner did not stay away from his wife, were insufficient for a reasonable person to suffer substantial emotional distress). Based upon Mr. Seda’s testimony, it appears that his fear and distress actually stemmed from the incident with Mr. Ton-ey's son.

Furthermore, Mr. Touhey had a legitimate purpose for trying to get in touch with Mr. Seda. Mr. Seda and Mr. Touh-ey’s wife, Kristin Touhey, were business partners, and Mr. Touhey worked for his wife and handled some of the management responsibilities of the business. Though the testimony regarding Mr. Seda and Mrs. Touhey’s current business relationship was somewhat disputed, it appears that they were in the process of dissolving their business relationship. Thus, Mr. Touhey had a legitimate purpose for attempting to contact Mr. Seda, as Mr. Touhey participated, to some extent, in Mr. Seda’s business. See § 784.048(l)(a); cf. Goudy, 112 So.3d at 717 (concluding that respondent had a legitimate purpose for contacting petitioner where both parties agreed that the call addressed respondent’s daughter’s participation in a dance competition); Alter v. Paquette, 98 So.3d 218, 220 (Fla. 2d DCA 2012) (concluding that respondent had a legitimate purpose for contacting petitioner where respondent testified that she was seeking repayment of a loan).

Because there was insufficient evidence that Mr. Touhey stalked Mr. Seda, we reverse the injunction for protection against stalking and remand with instructions to the circuit court to dismiss Mr. Seda’s petition.

Reversed and remanded.

CASANUEVA and CRENSHAW, JJ., Concur.

      . Section 784.0485 became effective October 1, 2012, "creating] a cause of action for an injunction for protection against stalking.” See ch. 2012-153, §§ 3, 6, Laws of Fla. (2012).

      . The “statutory cause of action for an injunction for protection against stalking ... is similar to the current cause[] of action for [an] injunction[] against repeat violence.” SB 950 (2012), Staff Analysis (Jan. 24, 2012), http://www.flsenate.gov/Session/Bill/2012/ 0950/ Analyses/2012s0950.pre.ju.PDF.


author: ALTENBERND, Judge.

text:
    Jeffrey INGRAM, Appellant, v. Shelly INGRAM, Appellee.
    No. 2D13-1530.
    District Court of Appeal of Florida, Second District.
    March 12, 2014.

      Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant.
    Barry Ben Butler, Sr., Brandon, for Ap-pellee.
   ALTENBERND, Judge.

Jeffrey Ingram, the Former Husband, filed a supplemental petition in his dissolution proceeding from Shelly Ingram, the Former Wife. The circuit court dismissed his petition for lack of jurisdiction, reasoning that it could not modify an award of equitable distribution that had been determined in a 1993 final judgment. Although the trial court is probably correct about its limited power to alter such an old award of equitable distribution, we conclude that the petition is not actually making such a request. We reverse and remand for further proceedings.

This couple obtained a divorce in July 1993. Our record contains no documentation from that period except for the final judgment. The judgment reflects that the couple had been married for eleven years and that the Former Husband was in the active military during the marriage. His dates of military service are not established in our record.

The parties entered into a marital settlement agreement that was incorporated into the final judgment. In part, that agreement provides:

The parties agree that [the Former Wife] is entitled to one-half of [the Former Husband’s] military pension which has accrued to date. Which results in her being entitled to 27.5 percent of the disposable retired pay [the Former Husband] will receive upon his retirement a[sic] the end of twenty years service. And by and through this agreement [the Former Husband] assigns and relinquishes to [the Former Wife] that 27.5 percent of the disposable retired pay. Her portion of the pension is to be paid to her upon his retirement according to the Uniformed Services Former Spouses’ Protection Act. Should [the Former Husband] retire or resign before completing twenty years in military service, then the Court will have juridiction [sic] to re-determine [the Former Wife’s] interest in his pension.

The final judgment, in addition to adopting the marital settlement agreement, finds:

The parties were married for eleven years, during which time [the Former Husband] was in active military service. [The Former Wife] is entitled, under the laws of the State of Florida, to 27.5 percent of [the Former Husband’s] disposable retired pay upon his retirement from military service.

This finding results in an adjudication that states:

[The Former Wife] is hereby awarded 27.5 percent of [the Former Husband’s] disposable retired pay upon his retirement from military service. The court retains jurisdiction to reconsider the percentage of retired pay should [the Former Husband] retire before completing twenty years of military service.

Extrapolating from these statements, it appears that the Former Husband had been in the military for approximately eleven years. To give the Former Wife one-half of the pension “accrued to date,” it was necessary to give her 27.5 percent of his anticipated pension after twenty years. The court retained jurisdiction because, if the Former Husband retired before twenty years, the percentage would need to be increased in order for the Former Wife to receive the correct percentage of the pension accrued during the marriage.

But the Former Husband stayed in the military for thirty years. The Former Wife demanded 27.5 percent of his thirty-year pension. The Former Husband filed his supplemental petition seeking to establish that the Former Wife was entitled only to the 27.5 percent of the amount of the pension available after twenty years of service.

The Former Wife moved to dismiss the supplemental petition, characterizing the petition as a motion filed pursuant to Florida Rule of Civil Procedure 1.540(b). See also Fla. Fam. L. R. P. 12.540. Initially, the Former Wife did not prevail on this motion and the matter was referred to a magistrate. The magistrate ruled in favor of the Former Husband. However, when the matter ultimately was reviewed by the circuit court, it concluded that it had no jurisdiction to award the requested relief. The court determined that the final judgment could not be modified since the Former Husband’s petition failed to adhere to the filing deadlines under rules 1.540 and 12.540.

We conclude that the Former Wife mis-characterized the supplemental petition. The Former Husband was not actually trying to change the final judgment; he was trying to enforce its terms as he understood them. In 1993, the circuit court had the power to equitably distribute the marital assets, which included “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, [and] pension ... plans.” See § 61.075(5)(a)(4), Fla. Stat. (1993) (emphasis added); see also Boyett v. Boyett, 703 So.2d 451, 452 (Fla.1997) (holding that post-dissolution contributions to a retirement plan are not considered marital assets that accrue during the marriage); Brathwaite v. Brathwaite, 58 So.3d 398, 400-01 (Fla. 1st DCA 2011) (holding that pre-marriage contributions to a retirement plan are not considered marital assets acquired during the marriage). Because the pension was a military pension, special information needed to be included in the judgment. See § 61.076, Fla. Stat (1993). Pursuant to section 61.076(2)(c), the amount of the pension to be distributed to the Former Wife could be expressed “in dollars” or “as a percentage of the disposable retired or retainer pay.” If a percentage was used, it was intended to distribute the benefits “accrued during the marriage.” § 61.076(1).

The final judgment used the 27.5 percent calculation as a method to give the Former Wife 50 percent of the amount accrued during the marriage. The amount of the pension that accrued after the marriage affected this percentage calculation, but the court was not and, at least in the absence of some special agreement between the parties, could not distribute pension benefits that accrued after the dissolution of the marriage. The finding in the judgment and the adjudication must be read in conjunction with the marital settlement agreement. The marital settlement agreement, as previously quoted, was in full accord with Florida law when it determined the Former Wife’s entitlement to a percentage of the Former Husband’s pension.

Because the Former Husband served for more than twenty years, the pension he has earned is larger than a twenty-year pension. However, from the face of this record, the wife’s entitlement in the final judgment is based on the amount of a twenty-year pension.

We reverse, holding only that the circuit court had the jurisdiction to consider the supplemental petition. The circuit court is not authorized to increase or decrease the amount of equitable distribution, but it is entitled to determine and clarify the dollar amount of the pension that was described by percentage in the final judgment. Because the record does not contain evidence or findings of fact, our description does not create any findings that are binding on the court on remand and it is free to conduct further evidentiary proceedings as needed to clarify the judgment.

Reversed and remanded.

CASANUEVA and CRENSHAW, JJ., Concur.

      . The Former Wife was entitled to one half of the Former Husband’s military pension that accrued during the 11-year marriage. The 11-year portion of a 20-year pension is 55 percent of the total pension. One half of 55 percent is 27.5 percent.


text:
    Willie Arthur SCULLOCK, II, Appellant, v. Hillsborough County Sheriff David GEE and Deputy Joseph Akos, Appellees.
    No. 2D12-3976.
    District Court of Appeal of Florida, Second District.
    March 12, 2014.
    Willie Arthur Sculloek, II, pro se.
    Jason G. Gordillo, Tampa, for Appellees.
   NORTHCUTT, Judge.

Willie Sculloek appeals the dismissal with prejudice of his civil action alleging false arrest by a sheriffs deputy. We reverse.

Scullock’s suit was based on an allegedly false arrest that occurred on April 9, 2007. A cause of action for false arrest accrues on the day of the arrest. Leatherwood v. City of Key West, 347 So.2d 441, 442 (Fla. 3d DCA 1977) (citing Gordon v. City of Belle Glade, 132 So.2d 449 (Fla. 2d DCA 1961)). The statute of limitations for actions based on false arrest is four years. § 95.11(3)(o), Fla. Stat. (2010). Measuring from the date of the arrest, the four-year period ended on April 9, 2011, which was a Saturday. Thus, the statute of limitations for this suit would have expired on Monday, April 11, 2011. See Fla. R. Civ. P. 1.090(a); Fla. R. Jud. Admin. 2.514(a)(1)(C).

Scullock’s complaint was filed on April 12, 2011, but the certificate of service was dated April 6, 2011. Sculloek was in jail on that date, and the complaint was notarized by a Hillsborough County deputy on that date. Under the so-called mailbox rule, the timeliness of a pro se inmate’s pleading is measured from the date the inmate places the document in the hands of the prison (or jail) official for mailing. Haag v. State, 591 So.2d 614 (Fla.1992) (citing United States Supreme Court’s adoption of mailbox rule in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)). A pro se inmate’s certificate of service creates a rebuttable presumption that the document was placed in the official’s hands on that date. Thompson v. State, 761 So.2d 324, 325 (Fla.2000). According to the unrebutted certificate of service in this case, Scullock’s complaint is deemed to have been filed on April 6, 2011. It was therefore timely, and the circuit court erred by dismissing the action based on the statute of limitations.

The Sheriff argues that Scullock’s reliance on the mailbox rule is unavailing because this is a civil proceeding. But he cites no authority for this proposition, and we have found no cases limiting the mailbox rule to criminal proceedings. To the contrary, this court and the Florida Supreme Court have applied the rule in a variety of civil contexts. See Griffin v. Sistuenck, 816 So.2d 600, 601 (Fla.2002) (mailbox rule applied to filing of notice of appeal from dismissal of civil rights suit); Ross v. Ross, 93 So.3d 495, 496 (Fla. 2d DCA 2012) (applying mailbox rule to service of pro se inmate’s motion for rehearing and for amendment of final judgment of dissolution of marriage); Wimbush v. Pasco Cnty. Sheriff's Office, 829 So.2d 296, 297 (Fla. 2d DCA 2002) (rule applied to prisoner’s motion for rehearing directed to dismissal of his replevin action); Martin v. Dep’t of Revenue ex rel. Martin, 827 So.2d 367, 368 (Fla. 2d DCA 2002) (rule applied to prisoner’s petition for administrative hearing in proceeding for nonpayment of child support).

Scullock timely filed his lawsuit within the statute of limitations. We therefore reverse the order of dismissal and remand for further proceedings.

CASANUEVA and SILBERMAN, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Edward BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2491.
    District Court of Appeal of Florida, Second District.
    March 12, 2014.
    Howard L. Dimmig, II, Public Defender, and Maggie Jo Hilliard, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Edward Baker appeals his judgment and sentence entered after his probation was revoked. The conditions of probation listed in the amended revocation order do not appear to conform to the circuit court’s oral findings regarding which conditions Baker violated. Because a violation of any of these conditions would justify revocation, we affirm. However, we remand for the amended revocation order to be corrected to list the conditions that Baker was found to have violated.

Affirmed; remanded with directions.

ALTENBERND and BLACK, JJ., Concur.


text:
    Antonio WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0313.
    District Court of Appeal of Florida, First District.
    March 12, 2014.
    Antonio Ward, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of habeas corpus seeks review of a judgment and sentence in Duval County Circuit Court case number 98^802-CFD. The petition is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

Due to petitioner’s apparent abuse of the legal process by his repeated pro se filings attacking his conviction and sentence, this court issued an order directing petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence.”). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

As such, because petitioner’s continued and repeated attacks on his conviction and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Duval County Circuit Court case number 98-4802-CFD. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. See Fla. R.App. P. 9.410.

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    Antonio WARD, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D13-979.
    District Court of Appeal of Florida, First District.
    March 12, 2014.

      Antonio Ward, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jamie M. Braun, Assistant Attorney General, Tallahassee, for Appellee. Jennifer Parker, General Counsel, Department of Corrections, Tallahassee.
   PER CURIAM.

Antonio Ward appeals from a final dismissal of his civil complaint against twenty-seven defendants. He challenges the court’s decision to set aside a prior judgment of default and the court’s subsequent decision to dismiss the lawsuit for failure to serve the defendants within the time frame the court had specified pursuant to Florida Rule of Civil Procedure 1.070(j). We find no reversible error in the decisions to set aside the default judgment and to dismiss the lawsuit as to twenty-two of the defendants. The court erred, however, in finding that Appellant failed to serve five of the defendants during the required time frame, as the requested proof of service had been filed before the court issued its final order. Accordingly, we affirm the final order as to the twenty-two un-served defendants but reverse and remand for further proceedings concerning the claims against Defendants Aviles, Wiggs, Coleman, Snow, and Springer only.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

THOMAS, RAY, and MAKAR, JJ., concur.

      . It appears that the court's error was inadvertent, as the court later granted an extension of time for three of those defendants to respond to the complaint.


text:
    Kevin D. GALES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4912.
    District Court of Appeal of Florida, First District.
    March 12, 2014.
    Kevin D. Gales, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. This dismissal is without prejudice to appellant’s right to seek a belated appeal or other postconviction relief.

LEWIS, C. J„ WETHERELL and ROWE, JJ., concur.


text:
    Roderick M. FARLIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5889.
    District Court of Appeal of Florida, First District.
    March 13, 2014.

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

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

BENTON, PADOVANO, and ROBERTS, JJ., concur.


text:
    John CRIMLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0217.
    District Court of Appeal of Florida, First District.
    March 13, 2014.
    John Crimley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Girley v. State, 933 So.2d 656 (Fla. 1st DCA 2006).

BENTON, PADOVANO, and ROBERTS, JJ., concur.


text:
    Robert DELONEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0833.
    District Court of Appeal of Florida, First District.
    March 13, 2014.
    Robert Deloney, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, PADOVANO, and ROBERTS, JJ., concur.