author: LOGUE, J.

text:
    Nelson SANTONI, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D14-609.
    District Court of Appeal of Florida, Third District.
    July 30, 2014.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for respondent.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   LOGUE, J.

Nelson Santoni petitions for a writ of mandamus directing the trial court to accept his guilty plea to second-degree murder. We deny the petition.

The State, by information, charged San-toni with second-degree murder. At the arraignment on the charge, the State informed the trial court that it was seeking a grand jury indictment on first-degree murder, which, unlike second-degree murder, carries as its maximum penalty the sentence of death. Defense counsel immediately announced Santoni’s unconditional offer to plead guilty to second-degree murder. The State objected to the plea due, in part, to the constitutional right of the homicide victim’s next of kin to be present at crucial stages of criminal proceedings. After hearing arguments of counsel, the trial court declined to consider the guilty plea at that hearing. This petition followed.

“In order to be entitled to a writ of mandamus the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy available.” Huffman v. State, 813 So.2d 10, 11 (Fla.2000). The issue in this case is whether the trial court had the discretion to postpone consideration of Santoni’s request to plead guilty. We hold the trial court has such discretion.

Florida Rule of Criminal Procedure 3.160 recognizes the trial court’s discretion in determining when to consider and accept a plea. It provides:

If a person who has been indicted or informed against for an offense, but who has not been arraigned, desires to plead guilty thereto, the person may so inform the court having jurisdiction of the offense, and the court shall, as soon as convenient, arraign the defendant and permit the defendant to plead guilty to the indictment or information.

Fla. R. Crim. P. 3.160(c) (emphasis added). The phrase “as soon as convenient” grants the trial court a modicum of discretion in deciding when to schedule a plea hearing.

This makes sense. Before accepting a guilty plea, the trial court “shall determine that the plea is voluntarily entered and that a factual basis for the plea exists.” Fla. R. Crim. P. 3.172(a). Such an inquiry, which requires the participation of the prosecution and defense, does not permit a defendant to unilaterally dictate when the trial court can accept a plea. For example, before accepting a guilty plea, the trial court may order the defendant to undergo psychological evaluations to determine whether he or she is entering the plea voluntarily. Or, the prosecutor present at the arraignment may be too unfamiliar with the case to provide a factual basis for the plea at that time.

Moreover, Florida’s constitution protects the right of homicide victim’s next of kin to attend crucial stages of criminal proceedings to the extent the right does not interfere with the constitutional rights of the accused. Art. I, § 16(b), Fla. Const. The trial court’s responsibility to ensure that the victim’s rights are properly accommodated also cuts against the claim that a defendant may unilaterally dictate the timing of a plea hearing. The scheduling of such a deliberative process is far from the type of ministerial act that can be compelled by issuance of a writ of mandamus.

As Santoni himself concedes, there is no federal constitutional right to have a trial court accept a guilty plea, much less one that controls the timing of the plea hearing. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (“There is, of course, no absolute right to have a guilty plea accepted.”); North Carolina v. Alford, 400 U.S. 25, 38 n. 11, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (“A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court, although the States may by statute or otherwise confer such a right.”) (internal citation omitted). Florida also has not conferred such a categorical right. See Rigabar v. Broome, 658 So.2d 1038, 1040 (Fla. 4th DCA 1995).

The State, relying on State ex rel. Schieres v. Nimmons, 364 So.2d 1262 (Fla. 1st DCA 1978), farther argues that a trial court may reject an unconditional offer to plead guilty to second-degree murder if the plea is a tactical maneuver designed to avoid a grand jury’s indictment for first-degree murder. We do not reach that issue. We simply hold that a trial court has the discretion to decide when to hold a plea hearing. Because the timing decision lies within the sound discretion of the trial court, mandamus is not available to control the scheduling of the hearing. See Mathews v. Crews, 132 So.3d 776, 778 (Fla.2014) (“It is well-settled that mandamus is neither the appropriate vehicle to seek review of an allegedly erroneous decision by another court, nor is it the proper vehicle to mandate the doing or undoing of a discretionary act.”).

Petition denied.

      . In Florida, first-degree murder must be prosecuted by grand jury indictment. Fla. R. Crim. P. 3.140(1).

      . We do not reach the issue of whether the trial court had discretion to reject the plea if the requirements of rule 3.172 had been met. We note only that the Fourth District, in granting a mandamus petition, held a trial court must accept an unconditional guilty plea where it is (1) knowingly and voluntarily offered, (2) supported by a factual basis, and (3) agreed to by the State. Rigabar, 658 So.2d at 1040.


source: Caselaw Access Project

license: Public Domain

text:
    Rosa MARIN and Smart Cars and Trucks Corporation, Appellants, v. Obed LIMONTE, Frank De La Oliva and Exus Isuzu Parts, Corporation, Appellees.
    No. 3D13-2601.
    District Court of Appeal of Florida, Third District.
    July 30, 2014.
    Jason M. Wandner, P.A., Jason M. Wandner, for appellants.
    Claudio R. Cedrez Pellegrino, for appel-lees.
    Before SUAREZ, SALTER, and LOGUE, JJ.
   ON MOTION TO DISMISS

LOGUE, J.

Appellees, Obed Limonte, Frank De La Oliva, and Exus Isuzu Parts, Corporation, move to dismiss this appeal for lack of subject matter jurisdiction because the notice of appeal was not filed within thirty days of the final judgment. For the reasons set forth below, we deny the motion to dismiss.

On August 23, 2013, the trial court granted summary judgment in favor of appellees. On August 26, 2013, appellants, Rosa Marin and Smart Car and Trucks Corporation, filed a motion for rehearing. On August 29, 2013, the trial court entered a final judgment dismissing appellants’ claims with prejudice. The trial court subsequently denied appellants’ motion for rehearing on September 25, 2013. Appellants filed their notice of appeal on October 2, 2013, which indicates that they are taking an appeal from the order granting summary judgment and subsequent denial of rehearing.

Appellees assert that the motion for rehearing did not toll the time for filing a notice of appeal, because the motion was directed at a non-final, non-appealable order granting summary judgment, and was therefore an “unauthorized” motion. Where, as here, there is “no substantive difference between the rights adjudicated in the order granting summary judgment (i.e., the interlocutory order) and the final summary judgment ... ‘there is no impediment to treating the motion for rehearing as an authorized, premature motion, tolling the time for filing a notice of appeal.’ ” Simpson v. Tarmac Am., LLC, 106 So.3d 87, 88 (Fla. 3d DCA 2013) (quoting Bass v. Jones, 511 So.2d 441 (Fla. 1st DCA 1987)). Accordingly, the motion to dismiss is denied.


author: PER CURIAM.

text:
    MEH BYRON 3, LLC, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 3D12-3035.
    District Court of Appeal of Florida, Third District.
    July 30, 2014.
    Max A. Goldfarb, for appellant.
    Butler & Hosch, P.A., and Justin S. Swartz (Orlando), for appellee.
    Before WELLS, SUAREZ and SCALES, JJ.
   PER CURIAM.

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


text:
    Harsolson DELISCA, Petitioner, v. Michael D. CREWS, etc., et al., Repondents.
    No. 3D14-532.
    District Court of Appeal of Florida, Third District.
    July 30, 2014.

      Amy Weber and Daniel Tibbitt, for petitioner.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for respondents.
    Before SHEPHERD, C.J., and ROTHENBERG and SCALES, JJ.
   PER CURIAM.

Following review of the petition for writ of habeas corpus alleging ineffective assistance of appellate counsel, it is ordered that said petition is hereby denied on the merits.


author: PALMER, J.

text:
    Robert PEEK, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-755.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2014.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General,"Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Robert Peek (defendant) timely appeals two of his sentences. Determining that the trial court misinterpreted the habitual felony offender (HFO) statute to require a sentence greater than the statutory maximum, we vacate the defendant’s two second-degree felony sentences and remand for resentencing.

The defendant entered a negotiated plea on two counts of dealing in stolen property and two counts of providing false verification of ownership. He agreed to be sentenced as a HFO, with a cap on his sentences of fifteen years and one day of imprisonment. The two dealing in stolen property convictions were second-degree felonies, which would normally carry a maximum sentence of fifteen years’ imprisonment, but the HFO statute sets a maximum sentence at thirty years’ imprisonment. At sentencing, the trial court stated that it would have sentenced the defendant to terms of ten years’ imprisonment for the second-degree felonies, but it understood that the law required that a sentence imposed pursuant to the HFO statute must be greater than the applicable statutory maximum. Consequently, the court sentenced the defendant to two terms of fifteen years and one day of imprisonment for the second-degree felonies.

The defendant contends that the trial court erred in misinterpreting the HFO statute as requiring the imposition of a term of imprisonment which is greater than the statutory maximum. We agree.

Section 775.084(4)(a) does not mandate the imposition of a sentence that exceeds the statutory maximum:

775.084; Violent career criminals; habitual felony offenders and habitual violent felony offenders; three time violent felony offender definitions; procedure; enhanced penalties, mandatory minimum prison terms

(4)(a) The court, in conformity with the procedure established in paragraph (3)(a) may sentence the habitual felony offender as follows:
1. In the case of a life felony or a felony of the first degree for life;
2. In the case of a felony of the second degree, for a term of years not exceeding 30;
3. In the case of a felony of the third degree, for a term of years not exceeding 10.

(Emphasis added). Thus, the statute allows for discretion on the part of the trial court in imposing a HFO sentence. See State v. Hudson, 698 So.2d 831, 832 (Fla.1997) (extending the permissive nature of the HFO sentencing to the decision to impose a mandatory minimum sentence); Gibson v. State, 775 So.2d 353, 354 (Fla. 2d DCA 2000)(stating that a sentence of less than the statutory maximum will not be found to be illegal simply because it is less than the statutory maximum). C.f. Lett v. State, 805 So.2d 950, 951 (Fla. 2d DCA 2001) (stating that the sentences provided for in the habitual offender statute have been interpreted by the supreme court to mean “any term of years” up to the maximum specified for the particular offense level, provided the term of years is not more lenient than that required by the habitual offender statute or recommended by the sentencing guidelines).

While the language in the habitual violent felony offender statute, section 775.084(4)(b), mandates the imposition of a minimum sentence, and the three-time felony offender statute, section 775.084(4)(c), mandates the actual sentence to be imposed, the language of the HFO statute does not require a mandatory minimum sentence.

In this case, an incarceration term of ten years would be a legal sentence under the HFO statute. Accordingly, we vacate the defendant’s second-degree felony sentences, and remand for resentencing.

SENTENCES VACATED; CAUSE REMANDED FOR RESENTENCING.

ORFINGER and LAWSON, JJ. concur.

      . See § 775.084(4)(a)(2), Fla. Stat. (2012).


author: ORFINGER, J.

text:
    David E. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-252.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2014.

      David E. Jones, Century, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris and Ann Phillips, Assistant Attorneys General, Daytona Beach, for Appellee.
   ORFINGER, J.

We reverse the trial court’s order summarily denying David E. Jones’s motion for additional jail credit pursuant to Florida Rule of Criminal Procedure 3.801. Rule 3.801, which governs jail credit claims, requires the defendant to raise the claim within one year after the sentence becomes final. However, the rule further provides that “[f]or sentences imposed pri- or to July 1, 2013, a motion under this rule may be filed on or before July 1, 2014.” Fla. R. Crim. P. 3.801(b). Jones’s sentence became final on October 26, 2012, and he filed the rule 3.801 motion on November 4, 2013. Thus, as the State properly concedes, the provision applies, and the trial court erred in denying Jones’s motion as untimely. Nevertheless, the motion is deficient as it did not include the requisite oath pursuant to rule 3.801(c). Because the motion is compliant in all other respects, Jones is entitled to an opportunity to amend his motion pursuant to rule 3.801(e). See Fla. R. Crim. P. 3.801(e) (incorporating Florida Rule of Criminal Procedure 3.850(f)); Fla. R. Crim. P. 3.850(f)(2) (providing that if motion is facially insufficient, trial court must give defendant 60 days to amend).

For these reasons, we reverse and remand with directions to the trial court to strike the rule 3.801 motion for failure to include the requisite oath, and afford Jones an opportunity to file an amended motion compliant with the rule.

REVERSED and REMANDED.

EVANDER and WALLIS, JJ., concur.


text:
    Joseph F. HATTEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-888.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2014.

      Joseph F. Hatten, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Joseph F. Hatten (defendant) appeals the final order entered by the trial court summarily denying his post-conviction motion. Determining that the trial court erred in concluding that the motion was untimely filed, we reverse and remand for consideration as a timely-filed rule 3.850 motion.

Florida Rule of Criminal Procedure 3.850(b) requires a motion under that rule to be filed within two years from the date the defendant’s judgment and sentence become final.

On November 7, 2011, the defendant entered a no contest plea to sex charges in two circuit court cases. Since he did not file a direct appeal in either case, the defendant’s judgments became final 30 days later, on December 7, 2011. See Walk v. State, 707 So.2d 933 (Fla. 5th DCA 1998). Pursuant to the mailbox rule, the defendant filed his second rule 3.850 motion on December 6, 2013, as evidenced by the certificate of service which indicates that it was placed in the hands of prison officials for mailing by the defendant on that date. See Thompson v. State, 761 So.2d 324 (Fla.2000) (holding that a certificate of service provides presumptive proof of filing date under the mailbox rule). As the defendant had until December 7, 2013, to file his motion, the trial court erred in concluding that his December 6th motion was untimely.

In his motion, the defendant asserted that he entered into a negotiated plea to receive the lowest permissible sentence under the Criminal Punishment Code (CPC) scoresheet. The CPC scoresheet stated that the defendant’s lowest permissible sentence was 10.5 years’ imprisonment, which corresponds to the total sentence he received. The defendant contended that his sentence was illegal because his scoresheet contained an error that improperly added 80 victim injury points for penetration.

The trial court considered the motion on its merits by treating it as a rule 3.800(a) motion to correct sentence. In determining whether the defendant’s sentence was illegal, the trial court acknowledged that, in charging the defendant with lewd/lascivious battery, the information alleged that the defendant caused “his penis to penetrate or unite with the vagina of’ the victim. The court concluded that, accordingly, the penetration points could be scored. This conclusion was incorrect.

In the instant case, the defendant entered a plea to a sexual offense with the alternative elements of penetration or union; the charged offense did not specifically allege penetration alone. Under these circumstances, the penetration points cannot be scored. See Mann v. State, 974 So.2d 552 (Fla. 5th DCA 2008) (holding that a defendant who pled guilty to three counts of lewd/lascivious battery and one count of lewd/lascivious molestation was incorrectly sentenced pursuant to score-sheet that scored victim injury points for penetration as to all four counts; the information did not specifically allege penetration in three of the counts, but instead alleged either union or the alternative elements of penetration or union). Accordingly, we reverse the trial court’s order and remand for the court to consider the defendant’s second rule 3.850 post-conviction motion on its merits.

REVERSED AND REMANDED.

PALMER, LAWSON and LAMBERT, JJ., concur.

      . The defendant's second rule 3.850 motion may have been successive, but the trial court did not deny it as such.

      . A defendant in entering a plea to a sexual offense with alternative elements could stipulate that penetration occurred, but the trial court in the instant case did not indicate that there was a stipulation of this nature.


text:
    Cody Lee WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3989.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2014.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Cody Lee White (defendant) appeals his judgment and sentences, alleging that his dual convictions for burglary with a battery enhanced by use of a firearm (count two) and aggravated battery (count five) violate his constitutional protection against double jeopardy. The State concedes error as to this issue. Accordingly, we affirm the defendant’s judgment and sentences, except for those imposed on count five. We vacate the defendant’s conviction and sentence as to that count.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, PALMER and LAMBERT, JJ., concur.


author: ALTENBERND, Judge.

text:
    Jose L. GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-805.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2014.

      Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Jose L. Garcia appeals his judgment and sentence of life in prison for capital sexual battery. We reverse the judgment and sentence and remand for a new trial because the trial court instructed the jury using the wrong standard instruction. This error resulted in the jury receiving an instruction that contained a wrong element of the offense when that element was in dispute and material to the jury’s deliberations.

The amended information in this case charged a single count of capital sexual battery. Specifically, it alleged that on July 31 or August 1 of 2011, Mr. Garcia placed his finger into the vagina of the victim, who was less than twelve years of age. See § 794.011(2)(a), Fla. Stat. (2011). The information also alleged that the act was done in “a lewd, lascivious or indecent manner,” which was not necessary to establish the elements of capital sexual battery.

The trial court prepared the draft jury instructions and verdict form and provided them to the attorneys on the morning of the second day of trial. There was a serious error in these documents, but the lawyers did not object. The trial court properly used Florida Standard Jury Instruction 11.1 as its core instruction for capital sexual battery. But it selected element 2(a) from the options available for that element. Thus, the instruction read: [T]he State must prove the following three elements beyond a reasonable doubt:

2. Jose L. Garcia committed an act upon (victim) in which the finger of Jose L. Garcia penetrated or had union with the vagina of (victim).

This instruction is not intended for use in cases alleging sexual battery where the unlawful contact involves the defendant’s finger.

Element 2(b) of the standard instruction actually applied in this case. That standard instruction reads: “(Defendant) committed an act upon (victim) in which the [anus] [vagina] of (victim) was penetrated by an object.” Admittedly, “an object” is a broad concept. Sometimes this instruction is modified to state that the defendant committed an act upon the victim in which the vagina of the victim was penetrated by the defendant’s finger.

Thus, the offense charged required proof that Mr. Garcia penetrated the victim’s vagina with his finger. The jury instruction actually given allowed the jury to convict him upon evidence that his finger had “union” with the victim’s vagina. Evidence of such “union” would be sufficient to prove lewd or lascivious molestation under section 800.04(5), Florida Statutes (2011), but it would not support a conviction for capital sexual battery.

Because this error was not preserved in the trial court, the primary question is whether the error is fundamental. Recently, in Daniels v. State, 121 So.3d 409, 418 (Fla.2013), the supreme court reconfirmed the test for fundamental error in an instruction involving the elements of the charged offense, which it had earlier announced in Reed v. State, 837 So.2d 366, 369-70 (Fla.2002). It stated:

Accordingly, where the trial court fails to correctly instruct on an element of the crime over which there is dispute, and that element is both pertinent and material to what the jury must consider in order to decide if the defendant is guilty of the crime charged or any of its lesser included offenses, fundamental error occurs.

Daniels, 121 So.3d at 418; see also Haygood v. State, 109 So.3d 735, 741 (Fla.2013) (“[Fundamental error occurs in a jury instruction where the instruction pertains to a disputed element of the offense and the error is pertinent or material to what the jury must consider to convict.”).

A review of the record establishes that the issue of penetration was in dispute and that the distinction between “union” and “penetration” was very pertinent and material to what the jury was required to consider in order to decide if Mr. Garcia was guilty of the crime charged. The victim in this case was about eleven when the event occurred and twelve when she testified. She testified that she fell asleep while sitting next to Mr. Garcia in a recliner. When she woke up, one of his “hands” was in her “underwear.” The transcript then reflects the following questions and answers:

Q. What did you feel?
A. His finger.
Q. Okay. And where was his finger?
A. In my vagina.
Q. Did you call it a vagina back then or was it something else?
A. I called it a killy (phonetic), because that’s what my mom called it.
Q. And you said you felt his hand in your vagina. Was it on the outside or the inside?
A. The inside-ish.
Q. And what was — was his hand just sitting there still or what was going on?
A. It was kind of, like, tapping.
Q. And was that his finger or his whole hand?
A. His finger.
Q. And was it tapping on the whole part or the outside part?
A. I don’t understand.
Q. Where on his — where on your vagina was his finger tapping?
A. Inside.

The difficulty with this testimony, of course, is that it appears very likely that the victim’s “killy” was actually a description of her genital area and not specifically her vagina. Even in the transcript, her use of the word “vagina” seems coached. It is possible that this child was describing a “tapping” with a finger on part of her genital area but not actually a penetration of her vagina. Certainly, with proper instructions a jury could easily have decided that the State had not proven a penetration of the vagina beyond a reasonable doubt.

The child was not examined by a nurse until seventeen days after the event. She told the nurse that Mr. Garcia had put his hands inside her underwear “touching me.” The nurse found no evidence of trauma or tearing but did not expect to, find such evidence in the case of a “fondling.”

During closing argument, the prosecutor explained to the jury:

Element number two is what I anticipate there will be some dispute with from the defense. Jose Garcia committed an act upon (victim) in which the finger of Jose Garcia penetrated or had union with the vagina of (the victim).
And that’s the key element that I assume that’s going to be in dispute today. Where does the evidence come from that shows you that that occurred? We agree with the prosecutor’s assessment of the “key element.”

Admittedly, in this case the defense attorney never argued to the jury that the case might involve a union or touching but not a penetration. The reason for that omission is the same reason that the attorney did not object to the instruction; the attorney obviously did not understand the elements of the offense with which her client was charged.

However, the attorneys’ failure to specifically dispute this element is not comparable to cases where the attorney elects not to dispute an element when the evidence and theory of defense do not create an arguable dispute. By pleading not guilty and arguing that the events did not occur, Mr. Garcia disputed every element of the charged offense. Cf. Griffin v. State, 128 So.3d 88 (Fla. 2d DCA 2018) (holding an erroneous instruction on the lesser-included offense of manslaughter by act was not fundamental error in a prosecution for second-degree murder because the defendant conceded the manner of the crime but presented the defense of mistaken identity), review granted, No. SC13-2450, 2014 WL 700611 (Fla. Feb. 17, 2014); Ingraham v. State, 32 So.3d 761, 767 (Fla. 2d DCA 2010) (holding that failure to instruct on the element of intent to commit larceny in a prosecution for vending machine theft under section 877.08(3), Florida Statutes (2004), was not fundamental error because the only disputed element at trial was the identity of the defendant as the perpetrator).

In Mr. Garcia’s case, with the correct jury instruction, his attorney could have disputed this issue in light of the evidence at trial. In this context, we conclude that the test for whether the issue was in dispute and whether the element was pertinent and material to the jury’s deliberations should not be based on the argument of the lawyer who did not object to the erroneous instruction. Instead, the test should be whether the evidence presented a genuine dispute that was pertinent to the jury’s decision if the correct instruction had been given. Such is clearly the case on the face of this record.

The State argues that we should conclude this error was not fundamental based on the similar holding in Graves v. State, 704 So.2d 147 (Fla. 1st DCA 1997). We note that Graves was decided before Reed, 887 So.2d 366, and that Judge Benton dissented as to this issue. See Graves, 704 So.2d at 149-50 (Benton, J., concurring and dissenting). Moreover, there apparently was evidence in Graves that the defendant injured the victim’s sexual organs. 704 So.2d at 148. The court in Graves explained that the victim’s testimony and her demonstration before the jury were sufficient evidence of the charged offense. Id. Finally, the court in Graves noted that the prosecutor “focused only on the evidence of penetration” and “did not try this case on a union theory.” Id. at 149. We are convinced that Mr. Garcia’s case is closer to some of the cases distinguished in the Graves opinion. See, e.g., Gill v. State, 586 So.2d 471, 472 (Fla. 4th DCA 1991) (finding a similar jury instruction fundamentally erroneous because even though the victim’s testimony indicated that penetration occurred, “a portion of that testimony was sufficiently ambiguous to raise a question for the jury as to whether in fact there had been penetration”).

The instructions and the verdict form prepared by the trial court in this case did not include any lesser offense other than misdemeanor battery. Again, there was no objection. On remand, however, both the prosecutor and the defense counsel may need to give further thought to whether attempted capital sexual battery is a lesser offense and, in light of the allegations in the information that the act was committed in a lewd or lascivious manner, whether section 800.04(5)(b) may be a permissive lesser offense in this case. Cf. Williams v. State, 957 So.2d 595 (Fla.2007).

Reversed and remanded.

NORTHCUTT, J., Concurs.

CASANUEVA, J., Concurs in result only.

      . Section 800.04(5)(a) defines lewd or lascivious molestation as "intentionally touch[ing] in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forcing] or entic[ing] a person under 16 years of age to so touch the perpetrator.”

      . Arguably, our holding in this case could be based on ineffective assistance of counsel on the face of the record. There certainly is no conceivable tactical reason to allow the trial court to give and the prosecutor to rely upon a "union” instruction in this case.

      . We note that section 800.04(5)(b) was added by legislative amendment after our decision in Garcia v. State, 976 So.2d 676 (Fla. 2d DCA 2008) (affirming trial court’s denial of another defendant’s request to instruct jury on lewd or lascivious molestation under section 800.04(5)(a), Florida Statutes (2004), as a permissive lesser-included offense of capital sexual battery where statutory elements of lewd or lascivious molestation were not alleged in the information). See ch. 2008-182, § 3, at 2154, Laws of Fla.


author: SLEET, Judge.

text:
    In the Interest of A.W.J., a child. N.J., Appellant, v. Department of Children and Families, and Guardian ad Litem Program, Appellees.
    No. 2D13-4877.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2014.

      Timothy M. Beasley, The Beasley Law Firm, P.L., Pinellas Park, for Appellant.
    Bernie McCabe, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Appellee Department of Children and Families.
    Laura E. Lawson, Statewide Guardian ad Litem, Sanford, for Appellee Guardian ad Litem Program.
   SLEET, Judge.

N.J., the father, appeals an order finding that the State proved by a preponderance of the evidence that he abused his son, A.W.J., and adjudicating A.W.J. dependent. He argues on appeal that the trial court erred in adjudicating A.W.J. dependent because the State failed to meet its evidentiary burden. We agree and reverse.

According to the. father’s testimony, he placed six-month-old A.W.J. in a Bumbo chair on the floor and went to the kitchen to retrieve a bottle. While the father was in the kitchen, A.W.J. pushed the chair over backwards and hit his head on the exposed concrete floor. The father contacted the mother, who came home from work with the car seat base, and the couple drove A.W.J. to Trinity Medical Center. Trinity doctors determined that A.W. J. sustained a skull fracture extending across his occipital and parietal bones. A.W.J. received further treatment for his injuries at All Children’s Hospital. A.W.J. has since made a full recovery; he suffered no permanent damage as a result of the accident.

At the evidentiary hearing, Detective Grady, who conducted the routine investigation for Pasco County major crimes division, testified that he was not suspicious of the parents’ version of events and that as part of his investigation he independently confirmed online that the Bumbo chair can be unreasonably unstable. Similarly, Detective Gulati, who initially interviewed the parents at the hospital, testified that the parents’ story was consistent with his observations at them home.

Doctor Charlene Weber, AW.J.’s pediatrician, testified that she reviewed the reports generated at both Trinity and All Children’s hospitals. She explained that the report of each physician who examined A.W.J. at the Trinity emergency room made reference to a palpable bruise on the back of his head. She testified that at six months, A.W.J. was large for his age, that he had a larger-than-average head circumference and weight, and that his motor skills were a little developmentally delayed. She was certain that based on A.W.J.’s development and physical characteristics, it was “possible and plausible” that he was injured in the manner described by the parents. She testified that she did not see any inconsistencies in the parents’ accounts of the accident and that the medical reports from both hospitals supported their version of events.

Doctor Sally Smith was the only witness at the hearing who testified that A.W.J.’s head injury was the result of abuse. The record reflects that she was not asked to by the Department and she did not provide her opinion within a reasonable degree of medical probability. She based her conclusion of child abuse primarily on her assessment of the parents’ credibility, not on the available medical reports. Dr. Smith testified that her opinion was based on “significant inconsistencies” in the parents’ accounts of the accident. However, the only inconsistencies she testified to were the father’s ability to see the accident and the presence of a bump on the back of the child’s head. Dr. Smith concluded that the father’s account of the accident was inconsistent because the father told Trinity physicians that he saw the accident occur, but told Dr. Smith that he was in the kitchen. However, the father testified that he could see A.W. J. in the living room from the kitchen; this layout and the ability to see from one room to another was confirmed by the officer who visited the family home.

Dr. Smith also concluded that the parents were not credible because the father misrepresented the presence of a large bump on the back of A.W.J.’s head. Dr. Smith explained that she read the E.R. doctors’ notes and that no bump was reported when A.W.J. first arrived at Trinity Medical Center and that she did not observe a bump on the child’s head when she examined him a few days after the accident. However, she conceded on cross examination that A.W.J.’s CAT scan showed some slight swelling and that her own medical report reflected that the Trinity triage nurse observed a bump on the back of A.W.J.’s head. Thus, Dr. Smith’s trial testimony was inconsistent with her own medical reports regarding the presence of a bump on A.W. J.’s head.

The “trial court may adjudicate a child dependent if the Department proves by a preponderance of the evidence that the child has been abused or neglected or is at substantial risk of imminent abuse or neglect.” C.M. v. Dep’t of Children and Family Servs., 997 So.2d 513, 514-15 (Fla. 2d DCA 2008); see also §§ 39.01(15)(a),(f), .50700(b), Fla. Stat. (2013)). We give great deference to the trial court’s findings of fact and its superior opportunity to judge the credibility of witnesses. We review the final order of dependency for competent substantial evidence. C.M., 997 So.2d at 515. “Competent substantial evidence is tantamount to legally sufficient evidence.” S.T. v. Dep’t of Children and Family Servs., 87 So.3d 827, 833 (Fla. 2d DCA 2012) (quoting R.F. v. Fla. Dep’t of Children and Families, 770 So.2d 1189, 1192 (Fla.2000)). If there is not competent substantial evidence in the record, “the error rises to an abuse of discretion.” S.T., 87 So.3d at 833.

It was the Department’s burden to prove by a preponderance of the evidence that A.W.J. was abused or neglected or is at substantial risk of imminent abuse or neglect. See id. at 834; see also § 39.01(15)(a),(f). The trial court’s finding of abuse was based entirely on the testimony of Dr. Smith, the only witness who testified that the injury could only be the result of physical abuse. Hence, Dr. Smith’s testimony must be examined to determine whether it meets the competent substantial evidence standard while giving due deference to the trial court on factual and credibility issues.

There was no evidence of prior abuse and it was undisputed that the father immediately called the mother after the incident so that they could transport A.W.J. to the emergency room. All witnesses, except Dr. Smith, agreed that AWJ.’s injury was consistent with the parents’ version of events. It was the Department’s burden to produce competent substantial evidence to prove A.W.J. was injured by abuse rather than an accident involving a potentially defective baby chair. To do that, the Department was required to offer an expert opinion within a reasonable degree of medical probability that the injury was the result of abuse. Dr. Smith did not offer any opinion within a reasonable degree of medical probability as to the mechanism of injury nor did the Department posit any theory based on the evidence adduced at trial to demonstrate the injury was caused by abuse. Dr. Smith’s opinion of abuse was not substantiated by record evidence; her subjective opinion of abuse and disbelief of the parents’ version of events does not meet the competent substantial evidence standard. Dr. Smith’s testimony alone was not legally sufficient to support the trial court’s adjudication of dependency. See S.D. v. Dep’t of Children & Family Servs., 42 So.3d 938, 939-40 (Fla. 2d DCA 2010) (reversing an order adjudicating a child dependent when the only evidence of violence was the opinion of the child protective investigator).

Reversed.

KHOUZAM and MORRIS, JJ., Concur.

      . The trial court made no finding of neglect.


text:
    Jonathan LEWIS, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    Nos. 1D12-5677, 1D12-5678.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2014.

      Jonathan Lewis, Appellant.
    Pamela Jo Bondi, Attorney General, and Carrie McNamara, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jonathan Lewis, an inmate, appeals orders dismissing two negligence actions because he did not pay the filing fees. We reverse and remand, because the trial court directed appellant to comply with a portion of section 57.085(7), Florida Statutes (2012), that has been declared unconstitutional.

After appellant asked the lower court to find that he was indigent and to waive court costs, the court determined that appellant had been adjudicated indigent under section 57.081, Florida Statutes (2012), twice in the preceding three years, and thus directed him pursuant to section 57.085(7) to submit a listing of each suit, action, claim, proceeding, or appeal that he had brought in the preceding five years, and to attach a copy of each of these documents and a record of the disposition of each.

Appellant did not comply with the lower court’s order, and instead filed various motions asking the lower court to dispense with these requirements because of the large amount of paperwork involved and the cost, and because the clerk of the court could print out such information from a website. The lower court denied appellant’s motions to be declared indigent and, directed him to pay the filing fees within thirty days. When Appellant did not pay the filing fees, the court dismissed his lawsuits. This was error.

The Florida Supreme Court had held the copying requirement in section 57.085(7) to be unconstitutional. Jackson v. Department of Corrections, 790 So.2d 381, 386 (Fla.2000); Mitchell v. Moore, 786 So.2d 521 (Fla.2001). We cannot determine based upon the record that appellant would have declined to comply had the court only directed him to file a listing of prior actions, which would have warranted denial of appellant’s motion for waiver, and thus we cannot affirm on that basis. See, e.g., Johnson v. Burns, 804 So.2d 345 (Fla. 4th DCA 2001).

Applying the rule of lenity to this pro se litigant, see Esquivel v. McDonough, 946 So.2d 104, 105 n. 1 (Fla. 1st DCA 2007), appellant sufficiently challenged the copy requirement below and on appeal. Because this requirement was unconstitutionally imposed contrary to Jackson and Mitchell, appellant must be given the opportunity to submit a list of his prior actions required by section 57.085(7), minus the copies.

Contrary to the arguments of the parties, the trial court did not definitively determine that appellant is a vexatious litigant, and any such determination must be reached in compliance with section 68.093, Florida Statutes (2012).

REVERSED and REMANDED for further proceedings.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.

      . Because appellant’s lawsuits are negligence actions rather than collateral criminal proceedings, he is not entitled to a waiver of court costs under section 57.081 if he is found to be indigent on remand, but only to a deferral of prepayment of court costs and fees under section 57.085. See John v. Department of Corrs., 124 So.3d 381, 383 (Fla. 1st DCA 2013).


text:
    James Joseph FOUNTAIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0767.
    District Court of Appeal of Florida, First District.
    Aug. 5, 2014.
    James Joseph Fountain, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on June 18, 2012, in Santa Rosa County Circuit Court case numbers 2011-CF-001050 and 2011-CF-001065, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the services of appointed counsel at public expense, the trial court is directed to appoint counsel to represent him in the appeal authorized by this opinion.

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


author: GERBER, J.

text:
    D.J.D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1242.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The juvenile appeals his adjudication for assault on a law enforcement officer. He argues that because the officer was not engaged in the lawful performance of a duty when the assault occurred, the circuit court erred in denying his motion for judgment of dismissal to reduce the charge from assault on a law enforcement officer to the lesser included offense of assault. We agree with the juvenile’s argument and reverse.

At the adjudicatory hearing, an officer who witnessed the assault testified as follows. He and two other uniformed officers received a dispatch to assist a Department of Children and Families (“DCF”) investigation of a woman and her young child at her apartment. When the officers arrived at the apartment, the DCF investigator advised them that she discovered the juvenile living with the woman and her child. The woman told the DCF investigator she believed that the juvenile was an adult. When the woman learned that the juvenile was not an adult, she said that she wanted the juvenile to leave.

The officers contacted the juvenile’s mother and told her to pick him up. The officers then took the juvenile outside and detained him until his mother arrived. The officers instructed him that he was not to come back to the apartment and that he was being turned over to his mother. The juvenile said that he did not want to go with his mother and wanted to walk off on his own. The officers told him that he had “to be turned over to an adult” and could not “walk off when subject to an investigation.” The officer later testified that the juvenile was not the subject of an investigation.

When the juvenile’s mother arrived, the officers explained the situation to her. She told the officers that the juvenile frequently runs away and she could not control him. The officers then instructed the juvenile to get into his mother’s car. The juvenile sat partially in and partially out of the car, and then started arguing with one of the officers who was standing next to the door. The juvenile again said that he did not want to go with his mother and wanted to leave on foot. The officer with whom the juvenile was arguing said, “Come with me ... you’re going to go to jail for trespassing.” At that point, the juvenile became combative. He took a fighting posture, clenched his fists, and said, “I’m not going anywhere” and “I’m going to punch you in your s* * The officer then said, “Okay. Put your hands behind the back of your [head], you’re under arrest,” and grabbed the juvenile’s hand. At that point, the juvenile, with a clenched fist, pushed the officer in the chest. The officer then took the juvenile into custody.

The state ultimately filed a petition for delinquency charging the juvenile with assault on a law enforcement officer under section 784.07(2)(a), Florida Statutes (2011). That statute provides, in pertinent part, as follows:

(2) Whenever any person is charged with knowingly committing an assault ... upon a law enforcement officer ... while the officer ... is engaged in the lawful performance of his or her duties, the offense for which the person is charged shall be reclassified as follows: (a) In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.

§ 784.07(2)(a), Fla. Stat. (2011) (emphasis added).

After the state rested, the juvenile moved for a judgment of dismissal. The juvenile argued, in pertinent part:

In order for the State to show that an assault or a battery takes place on a law enforcement officer ... [the State has] to show that [the] officer was in the legal execution of his duty because a person has a right to resist any unlawful arrest.
[T]here’s no testimony that [the officer] was in the lawful execution of his duty. At [the time of the assault], according to the testimony, the [juvenile] was with the mother. They had fulfilled their obligation. That he was ordered to go, be with his mother, and he could only be turned over to her custody before he could leave. She met with him. If he wanted to walk off that was now the mother’s jurisdiction to decide how to handle that situation. He was off the premises of the apartment [and] he was no longer interfering at all with the investigation by DCF. This is a completely separate incident. Maybe he was mouthy, disrespectful to the officer but that’s not enough to sustain this.

The state responded that because the officers were assisting in a DCF investigation and investigating a possible trespass, they were engaged in the lawful execution of their duty. The court denied the motion.

In the juvenile’s case-in-chief, the juvenile’s mother testified that when she got to the apartment location, she told the juvenile to get into her car. He said that he was going to walk, and started walking. The juvenile’s mother testified she “was okay with that” because she knew he needed to cool down and she knew the area. However, when the juvenile started walking, “the officers pulled their car in front of him and pulled him to the ground; told him to get in [her] car.” The officers then pulled the juvenile back up, and again told him to get in her car. When the juvenile became defiant and did not move, the officers put him in their car.

After the juvenile rested, he renewed his motion for a judgment of dismissal. The juvenile argued, in pertinent part:

[The State has] to show that this officer was in the legal execution of his duty. And there’s a difference between a cop just being on duty and being in a legal execution of a duty here. And that wasn’t established by the State. The child was ordered to go to his mother, he did. The mother had decided the best way to handle this case was to let him cool down, walk off. She had the experience. She knew what she was doing. And the situation and in her estimation was being resolved. The officers took it upon themselves to come back and grab the child at that point [and arrest him].
... They no longer were in lawful execution of a duty, the child was not inhibiting, or delaying, or obstructing the DCF investigation at all. He was not being detained for any sort of investigation at all regarding anything.
Also, with ... the lack of the execution of duty, the child really has no obligation to do anything except ... leave the apartment, which he did and was satisfied. And then fall into the mother’s jurisdiction to handle that. There’s really nothing ... further because the State hasn’t met those elements and established that there was a legal duty at that point.

The circuit court denied the motion for judgment of dismissal. The court then found the juvenile guilty of assault on a law enforcement officer and adjudicated him delinquent.

This appeal followed. The standard of review applicable to the denial of a motion for judgment of dismissal in a juvenile case is de novo. A.R. v. State, 127 So.3d 650, 653 (Fla. 4th DCA 2013) (citation omitted). If the evidence taken in the light most favorable to the state does not support the juvenile’s guilt, then we must reverse the denial of the motion for judgment of dismissal. Id.

The juvenile argues that the circuit court erred in denying his motion for a judgment of dismissal as to the enhanced offense of assault on a law enforcement officer, and that we should remand the case with directions to reduce the adjudication to the lesser included offense of assault.

The state argues that, at the time of the assault, the officer was engaged in the lawful performance of a duty in three ways:

First ... the police were still assisting with the DCF investigation and by not actually leaving the premises, there was a real possibility that [the juvenile] would have returned to the residence, where he had been living, and interrupted or interfered with the investigation. Thus, they had a legal duty to ensure that he left the premises completely. And the only way to ensure this would be if [the juvenile] left in the car with his mother. If [the juvenile] left on foot, as he wanted, he could have easily returned to the residence, contrary to [the woman’s] wishes ....
Second, while [the juvenile] was not initially the subject of the DCF’s investigation of [the woman] and the child, he became the subject of a DCF investigation and subject to detention by the police, until he could be released to a parent, because it was disclosed during the initial investigation that he was under the age of 18 and he was having a sexual relationship with [the woman], an adult. See § 794.011(8), Fla. Stat. (2011) (sexual battery of a child between the ages of 12 and 18 and noting that consent is not a defense); § 39.401(l)-(2), Fla. Stat. (2011) (Taking a child alleged to be dependent into custody; law enforcement officers and authorized agents of the department. — A child may only be taken into custody by a law enforcement officer if the officer has probable cause to support a finding that the child has been abused and if the officer takes the child into custody, the officer shall release the child to the parent of the child)....
Third, when the mother arrived on the scene to pick [the juvenile] up, she told the police that her son was a frequent runaway and she could not control him. At this point, the police were authorized under their community care-taking function to take [the juvenile] into custody and release him to her care. See § 984.13, Fla. Stat. (2011) (authorizing and obligating a law enforcement officer to take a child into custody if the officer has reasonable grounds to believe that the child has run away from his parents); see also D.O. v. State, 77 So.3d 787, 790 (Fla. 3d DCA 2011) [ (Ernas, J., specially concurring) ] (“Law enforcement, in a very real sense, fulfills a role as a ‘community caretaker’ when they encounter ... child runaways ... and children beyond the control of their parents. They have not only the authority, but also a statutory obligation, to quickly reunite the child with their parent or guardian, or return the child to school or the appropriate agency that can provide the services needed in light of the individual circumstances.”) (emphasis added).

We agree with the juvenile’s argument for reduction of the enhanced offense, and conclude that the state’s three arguments for the enhanced offense lack merit. We address each of the state’s three arguments in turn.

The state’s first argument appears to suggest that the officers arrested the defendant for the crime of “possible later trespass” of the woman’s residence. However, no such crime exists. Moreover, the officers could not lawfully arrest the juvenile for trespass in the woman’s residence due to his earlier presence there because he already had left that residence after being told to do so. Cf. F.E.H., Jr. v. State, 28 So.3d 213, 217 (Fla. 4th DCA 2010) (detective who approached juvenile in the parking lot of a closed daycare center lacked reasonable suspicion to make an investigatory stop of the juvenile for trespassing where the parking lot was an open lot on a corner and the juvenile already had left the lot when he was stopped).

The state’s second argument lacks merit as a matter of law. The officer who testified at the adjudicatory hearing conceded that the juvenile was not the subject of a DCF investigation, and the record contains no evidence that the officers were seeking to take the juvenile into custody as a dependent child. Moreover, no legal basis existed for the officers to take the juvenile into custody as a dependent child. The juvenile was not an abuse victim under section 794.01l(8)(b), Florida Statutes (2011), as the state alleges, because the woman with whom he was living was not “a person ... in a position of familial or custodial authority” over him. § 794.011(8)(b), Fla. Stat. (2011). As for the relationship between the juvenile and his mother, the officers had no information to form a probable cause finding that he had been “abused, neglected, or abandoned, or [was] suffering from or [was] in imminent danger of illness or injury as a result of abuse, neglect, or abandonment.” § 39.401(l)(b)l., Fla. Stat. (2011).

The state’s third argument also lacks merit as a matter of law. Although the juvenile’s mother told the officers that he frequently runs away and she could not control him, the record contains no evidence that the officers were seeking to take the juvenile into custody as a runaway. See § 984.13(l)(a), Fla. Stat. (2011). As for the “community caretaker” role described in D.O., the officers already had fulfilled that role by reuniting the juvenile with his mother. Although the juvenile again said that he did not want to go with his mother and wanted to leave on foot, his mother did not request the officers to prevent him from doing so, and he had not done so before the officer at issue told him “you’re going to go to jail for trespassing” and grabbed the juvenile out of his mother’s car. Without more information from the mother or more action from the juvenile, it was premature for the officer at issue to intervene in the mother’s custody of her son at that time, even if well-intentioned.

In sum, because the officer whom the juvenile pushed was not engaged in the lawful performance of his duty at the time of the assault, the circuit court erred in denying the juvenile’s motion for judgment of dismissal to reduce the charge from the enhanced offense of assault on a law enforcement officer to the lesser included offense of assault. We reverse and remand with instructions for the circuit court to adjudicate the juvenile of the lesser included offense of assault, and to conduct any further proceedings necessary as a result of that lesser adjudication.

Reversed and remanded with instructions.

GROSS and CONNER, JJ., concur.


text:
    Joshua C. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4069.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals his conviction for battery upon a jail detainee. He argues that the trial court erred in excluding an exculpatory defense witness at trial without considering any other alternative to exclusion. We agree with the defendant’s argument and reverse.

The investigating officer’s probable cause affidavit stated the following. The victim reported that, while in the jail recreation yard, another inmate named Whitehead hit him in the face with a basketball and started to punch him. The victim said that he tried to defend himself when the defendant (another inmate), ran up and punched him in the face. The victim fell to the ground and both Whitehead and the defendant punched him multiple times. The victim suffered a bloody nose and mouth, a broken jaw, and several cuts to his face. The investigating officer also spoke to two other inmates who saw the incident. They said that Whitehead started to fight the victim, then the defendant ran up and punched the victim, and when the victim went to the ground, Whitehead and the defendant continued to punch him. The investigating officer also spoke to the correctional deputy who was in the jail recreation yard. The deputy said that when he turned around, he observed Whitehead and the defendant on top of the victim, punching him. The investigating officer also interviewed Whitehead and the defendant after reading them their Miranda rights. Whitehead said that he was hit by the victim and the defendant did not hit anyone. The defendant denied hitting the victim and said he was trying to break up the fight.

Based on the foregoing allegations, the state charged the defendant and Whitehead each with one count of aggravated battery upon a jail detainee.

The state’s discovery exhibit in the defendant’s case did not list Whitehead as a person “known to the prosecutor to have information that may be relevant to [the] offense charged or any defense thereto[.]” See Fla. R. Crim. P. 3.220(b)(1)(A). The only mention of Whitehead in the state’s discovery exhibit was in response to the category of “any written or recorded statements and the substance of any oral statements made by a codefendant”: ‘Whitehead told [the investigating officer] that [the victim] hit him and that [the defendant] did not hit anyone.” See Fla. R. Crim. P. 3.220(b)(1)(D).

Within the state’s discovery exhibit, the state demanded the defendant, within fifteen days, to furnish to the prosecutor a written list of the names and addresses of all witnesses whom the defendant expected to call at the trial. See Fla. R. Crim. P. 3.220(d)(1)(A). However, the defendant never furnished the prosecutor with any witness list.

The case proceeded to jury selection on a Monday. At the outset of jury selection, when the trial court asked the prosecutor to announce to the jury pool the names of any witnesses she expected to call to testify, the prosecutor announced several names, but did not announce Whitehead’s name. When the court asked defense counsel if he had any additional names to announce, defense counsel announced: “[W]e may call any and all State witnesses as well as Devante Whitehead.” The state did not object or request a Richardson hearing at that time. The jury was selected and sworn at the end of that Monday and told to return on Friday for trial.

That Friday morning, before opening statements, the following exchange occurred between the prosecutor and the court regarding the need for a Richardson hearing:

PROSECUTOR: During jury selection[,] [defense counsel] mentioned the name of a potential witness that he may call, which is the former codefendant, Devante Whitehead. [Defense counsel] has never filed any type of witness list. So the State is going to ask for a Richardson hearing.
COURT: No problem. As soon as [defense counsel], if he calls the witness, we’ll have a Richardson hearing right on the spot.
PROSECUTOR: Okay.

The record does not indicate why the court did not immediately conduct the Richardson hearing or why the state and the defense did not object to the delay in conducting the Richardson hearing until the defense called Whitehead as a witness.

When the court called upon the prosecutor to make an opening statement, the prosecutor asked for a bench conference. At the bench, the prosecutor said that she just noticed Whitehead, whom she referred to as “the potential codefendant witness,” sitting in the hallway with the state witnesses. The prosecutor notified the court of her concern in that regard. However, the prosecutor did not follow up on her request for a Richardson hearing regarding Whitehead as a potential defense witness.

The state, during its case-in-chief, called seven witnesses: the investigating officer, the two inmates who witnessed the fight, the victim, two corrections deputies who were involved in investigating the fight, and the doctor who treated the victim for his injuries. All testified consistently with the probable cause affidavit.

Immediately after the court excused the jury for their lunch break, the court announced that it would conduct the Richardson hearing at that point. Because of the hearing’s significance, we recite the hearing’s transcript in detail:

COURT: Let me ask [defense counsel], do you intend to call Devante Whitehead?
DEFENSE: Yes, your Honor.
COURT: And why would you not list him as a witness?
DEFENSE: I was not instructed until jury selection my client was directing me to list him.
COURT: ... Well, under the Richardson test the violation was not willful from [defense counsel’s] part, but ... [Whitehead has] been known to everybody since [the date of the incident]. The discovery rules are there for a reason. I understand ... the defendant may want [Whitehead] to testify, but that’s not the way the system operates. You want to list him as a witness, you have every right to do so. You have not listed [Whitehead] as a witness yet and [he] will not be permitted to testify in this case.
DEFENSE: ... [R]espectfully, Judge ... [T]hat’s the most extreme remedy. COURT: Yeah, it’s extreme, that’s why it is extreme in this case because we’re talking about people who were listed late. This witness wasn’t listed late, this witness is not listed. The jury’s been sworn and still not listed. That’s my final ruling. This witness is not testifying in this case. That’s that ....
DEFENSE: ... Judge, I don’t see how the State’s prejudiced. They knew ... all this ....
COURT: ... [S]o did you. You knew he is a witness in this case since day one. You could have listed him as a witness. You chose not to do so. You made that decision and we’re not going to change it now to take advantage of it.
PROSECUTOR: Judge ... because the case law is very clear ... excluding the witness is the most severe sanction[,] I would like to put a couple things on the record in case this is reviewed by ... [an] appellate court, that this witness ... has still not been listed. It was just orally announced during jury selection. ... [T]he state would be prejudiced by his testimony because I would have prepared this case somewhat differently had I known Mr. Whitehead was going to testify. ... Mr. Whitehead has been out of custody for some time. I would have ordered jail calls with the defendant to see if the two had been talking [a]bout the case.... I would have ... gotten an investigator to hunt him down.... I think that’s kind of moot at this point because he showed up though ... I don’t know how ... he showed up.
And, Judge, the State asked, because I was willing to try to depose him ... I asked [defense counsel] ... yesterday morning, are you going to call him, if you are, can you make him available for me to depose him[?] ... [Defense counsel] still has not responded and I still have not been able to take his deposition. So my argument is that it is a willful violation, not only on the part of the defendant for telling his attorney that, but if [defense counsel] really wanted to remedy the situation and I was doing my part to try to help that, he would have made him available for me to take his deposition.
DEFENSE: Judge, I was not able to get him under subpoena until late yesterday. ... He’s here today.... She can depose him now.
COURT: ... We’re going to be back here in an hour and ten minutes from now [to resume the trial].
DEFENSE: ... [The prosecutor] can depose him. She could have called him. She did neither. He’s on probation. She can make the probation officer have bim come here. She knows that because she put him on probation.
PROSECUTOR: ... Judge, I do have a case too that I’ll cite for the record. It’s Wolski v. State, 515 So.2d 433 [ (Fla. 4th DCA 1987) ] ... where it was a codefen-dant very similar to this situation.... [I]t upheld an exclusion of the codefen-dant as a witness because the court did conduct a proper and adequate Richardson hearing....
COURT: And this kind of thing is just ... unacceptable in this kind of case ... not listing witnesses on purpose. Whether it’s the defendant’s fault or counsel that chose not to do it, I don’t know, but the witness never was listed in this case and ... it was willful and it’s a clear violation and the final decision is Mr. Whitehead will not testify ....
DEFENSE: Judge, just one thing. With regards to willfulness, I wasn’t instructed by my client until ... jury selection that day when I announced it_I haven’t been sitting on this witness.
COURT: ... I understand. I’m not accusing you of ... any misconduct, I’m just ... telling you that ... this witness could have been listed a long time ago under the normal discovery process.... But ... we’re going to conduct the case like this ... and that’s my final word on it ....
DEFENSE: Your Honor-I’m sorry to rehash something.... The case that [the prosecutor] provided, that witness was ... introduced after the judgment of acquittal. So the procedural prejudice in that case was more apparent.
COURT: [Whitehead] is not testifying. That’s the way that’s going to be. We’re not going to do all this dancing around at the end of a trial when ... your client knew about ... [Whitehead’s] existence from [the date of the incident] ... [then] decides he wants to call [Whitehead] ... during jury selection. I don’t think so. That’s just a willful [violation to] try to create error in the record.

(emphasis added).

Defense counsel later proffered testimony from Whitehead outside the jury’s presence. Whitehead testified that he hit the victim first, and the only time he saw the defendant was when the defendant pulled him off the victim. He said he did not see the defendant do anything else in the fight.

After the jury returned, the defendant testified that he saw Whitehead and the victim exchange punches. He said that his role was just trying to break up the fight by grabbing Whitehead because he did not want to see Whitehead get in trouble. He denied hitting the victim.

The jury convicted the defendant of the lesser-included offense of battery of a prison detainee.

This appeal followed. The defendant argues that the trial court erred in excluding Whitehead as an exculpatory witness without considering any other alternative to exclusion. We review the court’s decision for an abuse of discretion. See Delhall v. State, 95 So.3d 134, 160 (Fla.2012) (“A trial court’s decision on a Richardson hearing is subject to reversal only upon a showing of abuse of discretion.”) (citation and quotation marks omitted).

We agree with the defendant’s argument. We conclude that the trial court erred in excluding Whitehead as an exculpatory witness without considering any other alternative to exclusion.

The emphasized portion of the Richardson hearing makes clear that the trial court decided to exclude Whitehead as a witness without conducting an adequate Richardson hearing and without considering any other alternative to exclusion. As our supreme court most recently stated in Delhall:

Where a discovery violation occurs, we held in Richardson v. State, 246 So.2d 771 (Fla.1971), that the trial court must conduct an inquiry as to whether the violation: (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party’s trial preparation. Id. at 774-75. This Court will review the record to determine if the inquiry was properly made and if the trial court’s actions pursuant to the inquiry were proper.... Often, a Richardson violation involves a discovery violation by the State. The same rules apply, however, regardless of which party is at fault. The following questions will be examined in turn: Whether the trial court conducted an adequate Richardson inquiry; whether the trial court erred in excluding the [evidence]; and whether any error was harmless beyond a reasonable doubt.

95 So.3d at 160-61.

Here, the trial court did not conduct an adequate Richardson inquiry before deciding to exclude Whitehead as a witness. The court addressed only whether the violation was willful, and initially stated the violation was not willful from defense counsel’s part. The court did not address whether the violation was substantial or trivial or had a prejudicial effect on the state’s trial preparation before announcing its decision to exclude Whitehead as a witness. Thus, we are compelled to conclude from this record that the court excluded Whitehead as a witness because of the defendant’s failure to comply with the discovery rules, standing alone. This was error. See Delhall, 95 So.Sd at 162 (“[T]he failure of either the State or a defendant to comply with a discovery deadline, standing alone, is not dispositive for purposes of determining whether the sanction of exclusion of a witness or other evidence is appropriate and the inquiry must involve a determination of whether the violation resulted in substantial prejudice to the opposing party.”) (citation and internal quotation marks omitted).

The prosecutor clearly attempted to protect the court from its error by informing the court how the state was prejudiced by the defendant’s untimely decision to call Whitehead as a witness, and by informing the court that she sought to depose Whitehead between jury selection and opening statements. However, we cannot ignore the plain fact that the circuit court decided to exclude Whitehead as a witness without considering that information and without considering any other alternative to exclusion. Moreover, although the court ultimately stated its finding that the defendant’s violation was willful, the court never made any findings for our review as to whether the violation was substantial or trivial or had a prejudicial effect on the state’s trial preparation.

The trial court also erred in excluding Whitehead without considering any other alternative to exclusion. As our supreme court stated in Delhall:

It is well-settled that when a discovery violation is committed by the State, exclusion of the evidence is viewed as an extreme sanction to be employed only as a last resort and only after the court determines no other reasonable alternative exists to overcome the prejudice and allow the witness to testify.... [T]his rule applies with equal or greater force when a defense witness or evidence is sought to be excluded for a defense discovery violation, because there are few rights more fundamental than the right of an accused to present evidence or witnesses in his [or her] own defense. The extreme sanction of excluding defense evidence should be used only as a last resort and it is incumbent upon the trial court to determine whether any other reasonable alternatives can be employed to overcome possible prejudice. Here, exclusion of the evidence was actually the first resort, not the last.

95 So.3d at 162-63 (internal quotation marks, citations, brackets, and footnote omitted). Here, as in Delhall, it also appears that exclusion of the evidence was the first resort, not the last. Accordingly, we conclude that the trial court erred when it failed to conduct an adequate Richardson inquiry and excluded the testimony of the defense witness without considering less extreme alternatives. See McDuffie v. State, 970 So.2d 312, 322 (Fla.2007) (same holding under similar circumstances).

The court’s error was not harmless beyond a reasonable doubt. Our supreme court has defined the harmless error test as placing “the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Here, a reasonable possibility exists that the error contributed to the conviction. Besides the defendant himself, Whitehead was the defendant’s only potentially exculpatory witness. Although the state presented other witnesses who appeared to provide overwhelming evidence of the defendant’s guilt, the harmless error test “is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test.... The question is whether there is a reasonable possibility that the error affected the verdict.” Id. at 1139. Here, if the jury were to have believed Whitehead’s testimony over the other witnesses’ testimony, then a reasonable possibility exists that the error in excluding his testimony without considering any other alternative affected the verdict.

This case is distinguishable from Wolski v. State, 515 So.2d 433 (Fla. 4th DCA 1987), upon which the state relied in the trial court. In Wolski, at the close of the state’s case, the trial court granted the co-defendant’s motion for a judgment of acquittal. The defendant then announced his intention to call the co-defendant as a witness. The state objected and argued that the defendant’s failure to list the co-defendant as a witness constituted a discovery violation. The trial court agreed and found that the state would suffer prejudice if it allowed the co-defendant to testify. Upon his conviction, the defendant sought a new trial based on the trial court’s exclusion of the co-defendant’s testimony at trial.

We found no error in the trial court’s exclusion of this testimony. Id. at 433. In a brief opinion, we concluded that the trial court conducted an adequate hearing as required by Richardson, and that the record supported the exclusion of the witness based on prejudice to the state. Id. We also noted that the defendant admitted he could, and in fact did, present the same testimony with two other witnesses. Id.

Unlike the trial court in Wolski, the trial court here did not conduct an adequate hearing as required by Richardson and never made a finding of prejudice to the state. We also question whether the record supported the exclusion of the witness based on prejudice to the state, when the prosecutor knew of Whitehead and of the substance of his testimony from the probable cause affidavit, as confirmed by the state’s discovery exhibit. See Patterson v. State, 419 So.2d 1120, 1123 (Fla. 4th DCA 1982) (exclusion was too severe a sanction where the prosecutor “knew of the excluded witness and of the substance of the witness’s testimony before the trial commenced,” and “[although the prosecutor claimed that he was surprised, he did not indicate ... that the prejudicial surprise, if any, could not be cured by a less severe remedy”). Also, unlike the defendant in Wolski, the defendant here could not present the same testimony as Whitehead with another witness other than himself.

Before completing this opinion, we wish to convey the additional point that the defendant and the state also should bear responsibility for the trial court’s error.

The trial court correctly observed that the defendant knew that Whitehead was “a witness in this case from day one,” “could have listed him as a witness,” and “chose not to do so.” The trial court also was appropriately frustrated that it should not have had to “do all this dancing around at the end of a trial” when the defendant knew about Whitehead’s existence from the date of the incident, and then decided that he wanted to call Whitehead during jury selection. Clearly, the defendant’s failure to serve a witness list ultimately led to the court’s error.

The state also contributed to the court’s error by failing to object or request a Richardson hearing when, at the outset of jury selection on a Monday, defense counsel announced that he may call Whitehead as a witness. Without the state speaking up, the court had no reason to know that an issue existed. If the state had done so, then the court, without a continuance, could have allowed the state to depose Whitehead, obtain certified copies of his criminal record for impeachment, discover any other impeachment information, and plan a rebuttal case. The record also contains no information that a brief continuance, if necessary to accomplish these reasonable remedies, would have prejudiced either the state, the defense, or the court.

The last contribution to the error occurred when, on the morning of trial, the state finally requested a Richardson hearing, and the court made the unprompted decision to delay the Richardson hearing from before opening statements until the defense called Whitehead as a witness. The record does not indicate why the court did not immediately conduct the Richardson hearing or why the state and the defense did not object to the delay in conducting the Richardson hearing until the defense called Whitehead as a witness. While we appreciate that the court and counsel may not have foreseen a problem with the delay, perhaps this appeal could have been avoided if the Richardson hearing occurred at that moment. While we know of no rule or supreme court case requiring that a court conduct a Richardson hearing immediately upon request or soon thereafter, the more prudent course in the future' may be for the court and the parties to consider conducting the Richardson hearing sooner rather than later when remedies other than exclusion of a witness are more readily available. But see Sears v. State, 656 So.2d 595, 596 (Fla. 1st DCA 1995) (“Once the asserted discovery violation was brought to the court’s attention, the trial judge was required to conduct an inquiry, rule on whether a violation occurred, and determine whether the evidence was admissible.”) (citations omitted).

In sum, because the trial court decided to exclude Whitehead as a witness without conducting an adequate Richardson hearing and without considering any other alternative to exclusion, the court erred. The error was not harmless. Based on the foregoing, we are compelled to reverse the defendant’s conviction and remand for a new trial.

Reversed and remanded for new trial.

GROSS and CONNER, JJ., concur.


author: STEVENSON, J.

text:
    Shawn BOYD, Appellant, v. WELLS FARGO BANK, N.A., as Trustee for Option One Mortgage Loan Trust 2006-1 Asset-Backed Certificates Series 2006-1; Mortgage Electronic Registration Systems, Inc., as Nominee for Home Loan Center, Inc., d/b/a Lending Tree Loans; Stephen G. Boyd a/k/a Stephan G. Boyd; John Doe; Jane Doe, as Unknown Tenant(s) in possession of the subject property, Appellees.
    No. 4D13-208.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.
    Russell L. Akins of Jeffrey A. Smith Law Group, Stuart, for appellant.
    K. Denise Haire and Michael A. Rodriguez of Blank Rome LLP, Boca Raton, for appellee Wells Fargo Bank, N.A.
   STEVENSON, J.

Shawn Boyd appeals from a final judgment of foreclosure. Because Wells Fargo failed to prove it had standing at the time it filed its foreclosure complaint, we reverse.

Wells Fargo filed its foreclosure complaint in February of 2008. Attached to this complaint was a mortgage showing DCS Mortgage, Inc., as the lender. DCS Mortgage then assigned the mortgage to Option One. Nowhere in the record is there an indication that Option One assigned the mortgage to Wells Fargo.

A de novo standard of review applies when reviewing whether a party has standing to bring an action. Dixon v. Express Equity Lending Grp., LLLP, 125 So.3d 965, 967 (Fla. 4th DCA 2013) (citing Westport Recovery Corp. v. Midas, 954 So.2d 750, 752 (Fla. 4th DCA 2007)).

“‘The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.’ ” Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010) (quoting Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010)). To satisfy this burden, Wells Fargo was required to submit either “the note bearing a special endorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note.” Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012) (citing Servedio, 46 So.3d at 1107).

Here, Wells Fargo has provided no documentation which establishes that it had standing at the time it filed the foreclosure complaint. See Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011) (“A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.”). Although Wells Fargo eventually did file an Allonge to Note bearing a special endorsement in favor of it, the Allonge itself contains no date. See Rigby, 84 So.3d at 1196 (“The Bank has not shown that it was holder of the note at the time the complaint was filed. The note containing a special endorsement in favor of Bank was not dated.”). Moreover, Wells Fargo was apparently never assigned the mortgage and the note. The only assignment in the record is from DCS to Option One. Finally, Wells Fargo did not submit “an affidavit of ownership proving its status as holder of the note.” Id. (citing Servedio, 46 So.3d at 1107).

Accordingly, we reverse the final judgment of foreclosure.

Reversed.

CIKLIN and FORST, JJ., concur.


author: DAMOORGIAN, C.J.

text:
    Justin Edward JOHNSON, Appellant, v. Samantha Nicole McCULLOUGH, Appellee.
    No. 4D13-3358.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.

      Justin Edward Johnson, West Palm Beach, pro se.
    Samantha Nicole Gonzalez (McCullough), Reedsport, OR, pro se.
   DAMOORGIAN, C.J.

Justin Edward Johnson (“Father”) appeals the trial court’s final order granting Samantha Nicole McCullough’s (“Mother”) petition to relocate with the parties’ minor children and recalculating child support. We affirm the trial court’s order as it pertains to relocation, but reverse the child support recalculation and remand for an evidentiary hearing.

By way of background, the parties were never married, but had two children together (one born in 2005 and the other born in 2008) while living in West Virginia. The parties split up in 2009 and a West Virginia, court entered an order naming Mother as the primary parent, granting Father visitation for one week a month plus summers, and requiring Father to pay $495.45 in child support a month. In 2010, both Mother and Father relocated to Florida but continued to abide by the West Virginia order.

While living in Florida, Mother met and married a Coast Guard service-member who was eventually transferred to a base in Oregon. Accordingly, Mother filed a Notice of Intent to Relocate in West Virginia, but the West Virginia court ruled that jurisdiction properly existed in a Florida court. Mother then filed a Verified Petition for Domestication and Enforcement of Foreign Order in Palm Beach County, requesting that the court domesticate and enforce the West Virginia court’s order. She also filed a Petition to Relocate with the children. Father objected to Mother’s Petition to Relocate, and, after a failed mediation, the parties proceeded to trial.

At the trial, the parties presented evidence regarding the children’s current living situation and how relocation would affect them. After considering the evidence as applied to the statutory factors set forth in section 61.13001(7), Florida Statutes (2012), the court provided a detailed ruling granting Mother’s petition for relocation.

After the court issued its oral ruling on relocation, Father’s counsel raised the issue of child support, arguing that any costs incurred visiting the children should be deducted from his support obligations. The court then stated that “the child support guidelines have to be recalculated, anyway, as part of the judgment, so I’m going to ask that you do that.” A few days later, Mother filed a Child Support Guidelines Worksheet with the court. Father did not stipulate to Mother’s Worksheet and filed an amended financial affidavit reflecting different numbers than those used in Mother’s Worksheet. The court then entered a written order memorializing its relocation ruling and recalculating Father’s child support obligation at $499.14 per month, plus arrears. This number came straight from Mother’s Worksheet. Father now appeals both the trial court’s ruling on Mother’s motion for relocation and its child support calculation.

With respect to the relocation, we hold that the court’s determination was supported by substantial competent evidence, and affirm without further comment. See Botterbusch v. Botterbusch, 851 So.2d 903, 904-05 (Fla. 4th DCA 2003) (appellate courts do not engage in reweighing the evidence presented in conjunction with a petition for relocation, but rather look to see if there is substantial competent evidence supporting the court’s findings). However, the child support award was not supported by competent, substantial evidence and, therefore, we must reverse.

In making an award of child support, the trial court is required to determine the net income of each parent pursuant to section 61.30, Florida Statutes, and to include such findings in the final judgment. See Deoca v. Deoca, 837 So.2d 1137, 1138-39 (Fla. 5th DCA 2003); see also § 61.30(2) (includable income), (3) (allowable deductions), (4)(5) (determination of net income), Fla. Stat. (2012). The court’s findings may be based solely on the parties’ child support guideline worksheet, but only if it is “offered into evidence pursuant to stipulation, and subject to a contemporaneous objection.” Reddick v. Reddick, 728 So.2d 374, 375 (Fla. 5th DCA 1999).

Here, the court’s child support findings were based exclusively on Mother’s Worksheet. However, the Worksheet was not admitted into evidence at the trial nor was it stipulated to by Father. Further, there is no other evidence in the record establishing the monthly net income attributed to Father in Mother’s Worksheet, and the Worksheet contradicts the amounts listed in Father’s financial affidavit. Accordingly, we reverse and remand for a new hearing limited to the recalculation of child support.

Affirmed in part, Reversed in part, and Remanded.

FORST, J., and HANZMAN, MICHAEL, Associate Judge, concur.