source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    D.F.H. v. J.D.G. and D.A.G.
    2120220.
    Court of Civil Appeals of Alabama.
    April 19, 2013.

      Charles R. Jenkins, Opelika, for appellant.
    W. Larry Ray, Opelika, for appellee.
   THOMPSON, Presiding Judge.

J.D.G. (“the husband”) filed a complaint seeking a divorce from D.A.G. (‘The wife”). In his divorce complaint, the husband alleged that he and the wife had been married since 1996 and that a child (“the child”) had been born of the marriage in 2008. The husband alleged that the wife had informed him that he was not the biological father of the child. The husband sought a divorce on the ground of adultery and, among other things, requested that the trial court order a DNA paternity test. On June 25, 2012, the trial court ordered that the wife, the husband, and the child submit to DNA paternity testing.

After conducting a pendenté lite hearing, on July 16, 2012, the trial court entered a pendente lite order pertaining to financial and custody issues while the divorce action was pending. In addition, in that July 16, 2012, order, the trial court specifically found that, although DNA testing had revealed that the husband was not the biological father of the child, the husband was “persisting in his status as the legal father, and, therefore, under § 26-17-607, Ala.Code 1975, he remains the only legal father of this child.”

On July 17, 2012, the wife filed a “motion to reconsider” the July 16, 2012, pen-dente lite order. In that motion, the wife argued that, because he had sought a determination of the paternity of the child, the husband could no longer persist in his claim that he is the child’s father. On July 18, 2012, the trial court entered an order denying the wife’s “motion to reconsider,” concluding that the husband’s seeking paternity testing was not inconsistent with persisting in his status as the child’s legal father and noting that the paternity test also served as evidence on the issue of the wife’s adultery.

Thereafter, the wife filed an answer and a counterclaim seeking a divorce. The wife also filed a motion, which the trial court granted, requesting that a guardian ad litem be appointed for the child.

On November 9, 2012, D.F.H. filed a motion seeking to intervene in the divorce action between the wife and the husband. In his motion, D.F.H. alleged that he is the biological father of the child born while the wife and the husband were married, and he sought an adjudication of his paternity. In his motion to intervene, D.F.H. alleged that the husband had acknowledged that D.F.H. was the biological father of the child, and, therefore, D.F.H. argued, the husband had placed the issue of the child’s paternity before the court.

The husband objected to D.F.H.’s motion to intervene, contending that he “vigorously persists in his status as the legal father” of the child.

On November 12, 2012, the trial court entered an order in which it denied D.F.H.’s motion to intervene. In that order, the trial court again determined that the husband persisted in his status as the child’s legal father and that, therefore, under § 26-17-607, no other person could seek to disprove the husband’s paternity of the child. In addition, the trial court stated:

“The court finds that the presumption that [the husband] is the father of the child born of his marriage is among the weightiest of presumptions in the law, and the relationship between [the child and the husband] as daughter and father should not be overcome even if the allegations of [D.F.H.] are true. [D.F.H.] assumed the risk that this very circumstance would occur when he entered into a sexual relationship with [the wife]. While [D.F.H.’s] consequences are substantial, the court does not have the authority to overturn the long-standing law in the area — law which protects innocent children from the mistakes of adults.”

On November 19, 2012, the child’s guardian ad litem filed a motion asking the trial court to suspend the husband’s visitation. The guardian ad litem stated that he had interviewed the child after the child had made certain statements about bathing with and sleeping naked with the husband. Based on that conversation, the guardian ad litem believed that an investigation should be made into the child’s statements.

The trial court conducted an emergency hearing on the guardian ad litem’s motion on November 20, 2012. That same day, the trial court entered an order in which it temporarily suspended the husband’s visitation with the child pending an investigation by the Department of Human Resources (“DHR”) and another child-services agency. In its November 20, 2012, order, the trial court specifically ordered that “the [husband], the [wife], [D.F.H.], and their families are not to discuss [the concerns raised by the wife and the guardian ad litem regarding the husband’s conduct] with the child.” The trial court then stated that it had ordered that the investigation into the guardian ad litem’s and the wife’s concerns be expedited.

On November 24, 2012, D.F.H. filed a motion asking the trial court to reconsider its November 12, 2012, denial of his motion to intervene. The trial court denied that motion on December 3, 2012.

D.F.H. filed a notice of appeal on December 13, 2012, arguing that the trial court had erred in denying his motion to intervene and that the trial court had violated his right to due process in entering its November 20, 2012, order.

As an initial matter, we note that none of the parties has addressed this court’s jurisdiction to consider that part of D.F.H.⅛ appeal challenging the November 20, 2012, order. D.F.H. has argued that the trial court violated his right to due process by ordering that he could not discuss with the child the concerns raised by the guardian ad litem and into which DHR was conducting an investigation. Specifically, D.F.H. contends that the trial court could not enjoin him, a nonparty to the divorce action, from taking certain action with regard to the child.

The trial court’s November 20, 2012, order clearly was an interlocutory order intended to remain in effect while DHR conducted its investigation and while the husband’s visitation rights were temporarily suspended. Even assuming D.F.H. was a party to the action such that he could appeal that interlocutory order, such an order will not support an appeal. T.C. v. Mac.M., 96 So.3d 115, 119 (Ala.Civ.App.2011).

However, in his arguments pertaining to the November 20, 2012, order, D.F.H. insists that that part of the November 20, 2012, order prohibiting him from discussing the guardian ad litem’s allegations with the young child constitutes an injunction. A nonparty whose conduct has been enjoined by an order of the trial court may appeal the order; therefore, assuming that the challenged aspect of the November 20, 2012, order amounts to an injunction, D.F.H. has standing to appeal that order. Ex parte State Pers. Bd., 45 So.3d 751, 754 (Ala.2010). Assuming, as D.F.H. argues, that the trial court’s November 20, 2012, order constituted a preliminary injunction, we conclude that D.F.H. may seek appellate review of that preliminary injunction by way of an appeal. However, such an appeal must be timely filed. “The timely filing of a notice of appeal is a jurisdictional act.” Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985).

An appeal of an order granting an injunction must be filed within 14 days. Rule 4(a)(1), Ala. R.App. P.; Momar, Inc. v. Schneider, 823 So.2d 701, 703-04 (Ala. Civ.App.2001). D.F.H.’s appeal of the November 20, 2012, order was filed on December 13, 2012, in excess of 14 days after the entry of the order. Accordingly, insofar as the November 20, 2012, order granted injunctive relief, this court lacks jurisdiction over D.F.H.’s appeal of that order. Rule 2(a)(1), Ala. R.App. P.; Rudd v. Rudd, supra; and Boykin v. International Paper Co., 777 So.2d 149, 151 (Ala.Civ.App.2000). We therefore dismiss that part of D.F.H.’s appeal pertaining to the November 20, 2012, order. Woods v. Sun-Trust Bank, 81 So.3d 357, 363 (Ala.Civ.App.2011).

However, an order denying a motion to intervene is sufficiently final to support an appeal. Jim Parker Bldg. Co. v. G & S Glass & Supply Co., 69 So.3d 124, 130 (Ala.2011); Jones v. Joines, [Ms. 2110790, Dec. 21, 2012] — So.3d -, - (Ala.Civ.App.2012); Farmers Ins. Exch. v. Raine, 905 So.2d 832, 833 (Ala.Civ.App.2004) (same). This court has held that a postjudgment motion filed after the denial of a motion to intervene tolled the time for appealing the denial of the motion to intervene. R.D.B. v. A.C., 27 So.3d 1283, 1285 (Ala.Civ.App.2009). Accordingly, we conclude that D.F.H. timely appealed the trial court’s denial of his motion to intervene in the divorce action between the wife and the husband.

Various provisions of the Alabama Uniform Parentage Act (“AUPA”), § 26-17-101 et seq., Ala.Code 1975, govern this dispute. Under the AUPA, a man is the presumed father of a child born during his marriage to the child’s mother. § 26-17-204(a)(1), Ala.Code 1975. Under § 26-17-607(a) of the AUPA, a presumed father “may bring an action to disprove paternity at any time.” However, “[i]f the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.” § 26-17-607(a).

In interpreting the predecessor to § 26-17-607(a), our supreme court held that “[a] man not presumed to be the father, but alleging himself to be the father, may institute an action to have himself declared the father only when the child has no presumed father.” Ex parte C.A.P., 683 So.2d 1010, 1012 (Ala.1996).

D.F.H. argues in his brief on appeal that he was seeking to intervene in the divorce action as a matter of right pursuant to Rule 24(a), Ala. R. Civ. P., and that the trial court erred in refusing to grant his motion to intervene.

“ ‘The standard of review applicable in cases involving a denial of a motion to intervene as of right is whether the trial court has acted outside its discretion. See City of Dora v. Beavers, 692 So.2d 808, 810 (Ala.1997). Typically, persons desiring to intervene in a civil action as of right will claim entitlement to intervention under Rule 24(a)(2), Ala. R. Civ. P., which mandates intervention upon timely application if “the applicant claims an interest relating to the property or transaction which is the subject of the action” and is “so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” Thus, the Alabama Supreme Court has held that under Rule 24(a)(2), the trial court has discretion to determine “whether the potential intervenor has demonstrated: (1) that its motion is timely; (2) that it has a sufficient interest relating to the property or transaction; (3) that its ability to protect its interest may, as a practical matter be impaired or impeded; and (4) that its interest is not adequately represented.” City of Dora, 692 So.2d at 810.’ ”

Baker v. Kennedy, 51 So.3d 339, 340-41 (Ala.Civ.App.2010) (quoting Black Warrior Riverkeeper, Inc. v. East Walker Cnty. Sewer Auth., 979 So.2d 69, 72 (Ala.Civ.App.2007)).

D.F.H. is correct that a biological father does have a right to intervene in a custody action involving a child he claims to have fathered. R.D.B. v. A.C., 27 So.3d 1283, 1287 (Ala.Civ.App.2009). “However, although such a man has a right to intervene, ... the pivotal issue of the biological father’s standing to actually prove his paternity ... turns on whether the legal father persists in his presumption of paternity.” Id.

On appeal, D.F.H. acknowledges that he may not institute an action or intervene to assert a claim seeking to establish his paternity of the child if the husband, pursuant to § 26-17-607(a), “persists in his status as the legal father of the child.” Indeed, our supreme court has explained:

“[T]he legal question is whether a man has standing to bring an action seeking to declare a child illegitimate and to have himself declared the father of that child. This is not permitted under the [AUPA], as long as there is a presumed father, pursuant to [former] § 26-17-5(a)(1) [now § 26-17-204], who has not disclaimed his status as the child’s father; consequently, another man ... has no standing to challenge the presumed paternity of that child. Put another way, so long as the presumed father persists in maintaining his parental status, not even the subsequent marriage of the child’s mother to another man can create standing in the other man to challenge the presumed father’s parental relationship.”

Ex parte Presse, 554 So.2d 406, 418 (Ala.1989).

D.F.H. argues that because the husband in this case requested the DNA paternity testing in his divorce complaint, the husband “challenged his own parental relationship with the child.” Therefore, D.F.H. maintains, the husband has not met the requirements of § 26-17-607 because, D.F.H. claims, the husband cannot be said to be persisting in his claim to be the legal father of the child.

In asserting that argument, D.F.H. equates the husband’s seeking a determination of paternity in his divorce action ■with an action by the husband seeking to disprove paternity under § 26-17-607(a). However, the record does not support a determination that the husband sought to disprove his own paternity of the child. As the trial court noted in its July 18, 2012, order, a request for a DNA test to determine paternity is not necessarily inconsistent with maintaining a claim asserting one’s status as the child’s legal father. Rather, such a test can be requested in the hopes that it confirms the existence of a biological relationship between the man and the child. Another reason for requesting a paternity test would be to ensure an accurate medical history for the child. Also, and as the trial court noted, it appears to be relevant in this case because the results of the DNA paternity testing can be used as evidence on the issue of a wife’s adultery, a finding of which can affect issues such as property division and alimony in a divorce action. See Keating v. Keating, 122 So.3d 1259, 1267 (Ala.Civ.App.2013) (the relative fault of the parties in contributing to the breakdown of the marriage is a factor the trial court may consider in its division of property and alimony award).

In this case, the trial court conducted a hearing immediately after the results of the DNA paternity testing became known. In the July 16, 2012, order entered after that hearing, the trial court specifically found that, although the husband was not the biological father of the child, the husband was persisting in his status as the legal father of the child. D.F.H. makes no argument that, in the divorce action, the husband is not asserting his status as the child’s presumed father pursuant to § 26-17 — 204(a)(1). Rather, D.F.H. argues that the husband’s admission or acknowledgment that he is not the biological father of the child is sufficient to defeat his legal claim that he is the child’s presumed father.

However, there is no requirement that, in persisting in a claim as the legal or presumed father of a child, one must believe or have evidence demonstrating that he is the biological father of the child. In Ex parte C.A.P., supra, the mother ended her relationship with the biological father of the child and married a different man two months before the child’s birth. Our supreme court, citing the predecessor to § 26-17-607, held that the child’s biological father had no standing to seek to have his paternity established. “A man not presumed to be the father, but alleging himself to be the father, may institute an action to have himself declared the father only when the child has no presumed father.” Ex parte C.A.P., 683 So.2d at 1012. In that case, as in this case, the mother’s husband was the child’s presumed father, and, therefore, no other man could seek to have his paternity of the child determined.

In Baker v. Kennedy, supra, R.K. was born of the mother’s relationship with Baker, but the mother later married Kennedy. Kennedy and the mother later obtained an order of legitimation and identified Kennedy as the child’s father on the child’s birth certificate, and Kennedy acted as a father to the child. When Kennedy and the mother divorced, they entered into an agreement that addressed custody issues pertaining only to A.K., the child born of their marriage. Thereafter, Kennedy moved to set aside the agreement and sought visitation rights not only with A.K., but also with R.K. The trial court entered an order granting the motion to set aside the divorce judgment as to the custody issues. While the matter remained pending, the mother resumed her relationship with Baker and married him. The trial court denied Baker’s motion to intervene in the action between the mother and Kennedy, and Baker appealed.

This court held that, under the predecessor to § 26-17-204, Kennedy was the child’s presumed father by virtue of his marriage to the mother and his placing his name on the child’s birth certificate. This court then concluded that

“because Kennedy is a presumed father under former § 26-17-5(a)(3)b. [now § 26-17-204(a)(4) ], Baker would not have the right to intervene in the divorce action under the former act, provided Kennedy persists in his status as a presumed father. See former § 26-17-6(a) [now § 26-17-607(a) ] and Ex parte Presse, 554 So.2d 406, 418 (Ala.1989) (‘[S]o long as the presumed father persists in maintaining his paternal status, not even the subsequent marriage of the child’s mother to another man can create standing in the other man to challenge the presumed father’s parental relationship.’); see also Hooten v. Hooten, 754 So.2d 634, 635 (Ala.Civ.App.1999) (‘Our supreme court has held that no one, including the mother of the child, has standing to challenge a presumed father’s paternity as long as the presumed father persists in claiming paternity of the child.’).”

Baker v. Kennedy, 51 So.3d at 342. This court noted that the evidence indicated that Kennedy had persisted in his presumption of paternity, and, therefore, it affirmed the trial court’s denial of Baker’s motion to intervene. Baker v. Kennedy, supra.

In Cravens v. Cravens, 936 So.2d 538 (Ala.Civ.App.2005), the wife and the husband in that case married two months before the birth of the child at issue in that case, and, during a divorce action initiated three years later, the wife requested a paternity test to disprove the husband’s paternity. The trial court granted the wife’s request, and the DNA paternity test excluded the husband as the child’s biological father. In its divorce judgment, the trial court, among other things, awarded the parties joint legal and physical custody of the child. In doing so, the trial court determined that, because the husband was presumed to be the father of the child born during the marriage, the DNA-paternity-test result did not defeat that presumption. The wife appealed, and this court affirmed. In so holding, this court stated that the husband had persisted in his claim as the presumed father of the child even after the paternity test demonstrated that he was not the child’s biological father. In addition, this court also noted the policy considerations identified by our supreme court, specifically that “ ‘the obvious objectives of the Alabama Uniform Parentage Act ... are to provide for the psychological stability and general welfare of the child and to afford legitimacy to children whenever possible.’ ” Cravens v. Cravens, 936 So.2d at 541 (quoting Ex parte C.A.P., 683 So.2d at 1012).

The foregoing authorities demonstrate that, in order for a man to persist in maintaining his paternity or his claim as the presumed or legal father of a child, there is no requirement that the man believe he is, or that he actually be, the biological father of the child. Rather, when he is a presumed father of a child under § 26-17-204, a man may persist in maintaining his status as the father of the child even with the certain knowledge that he is not actually the child’s biological father. Therefore, contrary to the argument asserted by D.F.H., it is irrelevant that the husband has acknowledged that he is not the biological father of the child. Likewise, given the possible reasons a person might seek a determination of a child’s paternity, the facts of this case, and the trial court’s findings, we conclude that the fact that the husband sought a determination of his paternity did not operate to waive the presumption in favor of his status as the father of the child created by § 26-17-204.

D.F.H. has failed to demonstrate that the husband has not continued to persist in his claim as the legal or presumed father of the child. Accordingly, D.F.H. has not demonstrated that the trial court erred in denying his motion to intervene.

APPEAL DISMISSED ' IN PART; JUDGMENT DENYING MOTION TO INTERVENE AFFIRMED.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

      . D.F.H. also contends in his brief on appeal that, in acknowledging the results of the DNA paternity test, the husband has not held himself out publically to be the father of the child. A presumption arises that a man is the father of a child if, among other things, he holds himself out to the public as the child’s father. § 26-17-204(a)(5), Ala.Code 1975. That presumption is one of several alternative presumptions set forth in § 26-17-204(a). D.F.H. has cited no authority supporting the proposition that a man’s acknowledgment that he is not the biological father of a child of whom he is the presumed father equates to a finding that the man has not held himself out publicly to be the father of the child. Even assuming that such authority existed, any failure to publicly assert paternity does not affect the presumption in favor of the husband afforded by § 26 — 17—204(a)(1) because of his status as the man married to the child's mother at the time of the child’s birth.

      . Former § 26-17-5(a), repealed and replaced by § 26-17-204(a)(4), provided, in pertinent part:

        "(a) A man is presumed to be the natural father of a child if any of the following apply:

      "(3) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with the law although the attempted marriage is or could be declared invalid, and
      "a. He has acknowledged his paternity of the child in writing, the writing being filed with the appropriate court or the Office of Vital Statistics; or
      "b. With his consent, he is named as the child’s father on the child's birth certificate.”

      . We note that D.F.H. briefly contends that § 26-17-607(b) applies to the facts of this case and allows him to rebut the presumption of paternity in favor of the husband. That section provides:
      "(b) A presumption of paternity established under this section may be rebutted in an appropriate action only by clear and convincing evidence. In the event two or more conflicting presumptions arise, that which is founded upon the weightier considerations of public policy and logic, as evidenced by the facts, shall control. The presumption of paternity is rebutted by a court decree establishing paternity of the child by another man.”

        D.F.H. does not contend that he is a presumed father or that he was entitled to such a presumption under that section. Rather, he contends that the husband "gave rise to two or more conflicting presumptions” when he requested the DNA paternity test. D.F.H. fails to identify those purported conflicting presumptions or explain his argument further. Therefore, we conclude that D.F.H. has failed to properly develop and support his argument as required by Rule 28, Ala. R.App. P., and we decline to create or substantiate an argument on his behalf. See Board of Water & Sewer Comm’rs of City of Mobile v. Bill Harbert Constr. Co., 27 So.3d 1223, 1262-63 (Ala.2009); and Downs v. Lyles, 41 So.3d 86, 91-92 (Ala.Civ.App.2009).

      . D.F.H. states in the conclusion of the argument section of his brief on appeal that he was entitled to a hearing on his challenge of whether the husband persists in his assertion of his status as the child's presumed or legal father. D.F.H. has failed to cite any authority in support of that argument, in contravention of Rule 28, Ala. R.App. P. We note, out of an abundance of caution, that the pleadings, motions, and orders in the record on appeal render a hearing on that issue unnecessary in this case; it is clear that the husband persists in the presumption afforded him by § 26-17-607(a)(1).


author: WHATLEY, Judge.

text:
    John M. ARMEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-331.
    District Court of Appeal of Florida, Second District.
    July 9, 2010.
   WHATLEY, Judge.

John M. Armey appeals a nonfinal order dismissing without prejudice his amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The nonfinal order grants Armey thirty days to file a “properly sworn” motion. In his motion for rehearing filed with the postconviction court, Armey states he will not file another amended motion and a review of the circuit court docket establishes that Armey has not filed another motion. We recognize that, pursuant to Christner v. State, 984 So.2d 561 (Fla. 2d DCA 2008), we must first relinquish jurisdiction for the entry of a final, appealable order before we can address the merits of the postconvietion court’s decision.

Accordingly, we relinquish jurisdiction to the postconviction court with instructions to enter a final order within thirty days. See Christner, 984 So.2d at 563.

KELLY and WALLACE, JJ„ Concur.


author: DAVIS, Judge.

text:
    Allen SMITH, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 2D10-559.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2011.

      James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant/Cross-Appellee.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee/Cross-Appellant.
   DAVIS, Judge.

Allen Smith pleaded no contest to one count of driving while his license was revoked, and the trial court sentenced him to one year and one day in prison. Smith challenges his judgment and sentence, arguing that the trial court erred in denying his motion to withdraw plea. The State cross-appeals, challenging Smith’s sentence, which was a downward departure from the 15.4-month lowest permissible sentence indicated on Smith’s guidelines scoresheet. We conclude that the trial court did not abuse its discretion in denying Smith’s motion to withdraw his plea. However, because the trial court failed to state on the record valid reasons for imposing a downward departure sentence, we reverse.

When Smith entered his plea, the trial court agreed to sentence him to one year and one day in prison provided that he appear on time for sentencing and not incur any new charges in the interim. At the time, the prosecutor objected, noting that he was “unaware of any legal basis to depart in this case.” Prior to sentencing, Smith sought to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(f). The trial court denied the motion because Smith’s basis for the motion was fully addressed prior to the entry of his plea. At that hearing, the State renewed its objection to Smith’s sentence, but the trial court imposed the agreed to sentence of one year and one day in prison.

Because Smith failed to show good cause why he should be permitted to withdraw his plea, the trial court did not abuse its discretion in denying his motion to withdraw plea. See Luedtke v. State, 6 So.3d 653, 655 (Fla. 2d DCA 2009) (“Under rule 3.170(f), the trial court may, in its discretion, and shall, on good cause, at any time before sentencing, permit a plea of guilty or no contest to be withdrawn. Where less than good cause is shown, the trial court’s ruling will not be reversed absent an abuse of discretion.”). However, it was error for the trial court to impose a downward departure sentence over the State’s objections without stating valid reasons for the departure. See State v. McCray, 31 So.3d 871, 872 (Fla. 3d DCA 2010); see also State v. Barnes, 753 So.2d 605, 607 (Fla. 2d DCA 2000). Accordingly, we reverse the judgment and sentence and remand for the trial court to allow Smith to choose either to withdraw his plea or be resentenced within the sentencing guidelines. See State v. McKnight, 35 So.3d 995, 998 (Fla. 5th DCA 2010).

We note the likelihood that neither party is well-served by the relief afforded in this opinion. Smith faces the possibility of a longer sentence than the one he is currently serving, and an overburdened system adds a case to its docket in what amounts to a dispute over a possible three-month difference in sentence length.

Reversed and remanded.

ALTENBERND and VILLANTI, JJ., Concur.


author: PER CURIAM.

text:
    Carl GONGAGE and Lidya Gongage, Appellants, v. NATIONSTAR MORTGAGE, LLC, Appellee.
    No. 5D12-1359.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.
    Richard W. Withers, Craig L. Lynd, Ryan Ghantous and Jamison A. Rayfield of Kaufman, Englett and Lynd, PLLC, Orlando, for Appellants.
    Morgan B. Swenk and Robert R. Ed-wardsof the Law Offices of Marshall C. Watson, P. A., Ft. Lauderdale, for Appel-lee.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to “Appellee’s Concession of Limited Error on Appeal and Joint Motion to Reverse, Vacate and Remand with Specific Instructions”, filed July 31, 2012, the circuit court’s February 29, 2012 order denying “Defendant’s Motion for Relief from Final Judgment” is reversed and this Cause is remanded to the circuit court with instructions to vacate said order.

REVERSED and REMANDED.

LAWSON, TORPY and JACOBUS, JJ., concur.


text:
    Rahmaan LEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-659.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2012.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

TAYLOR, CIKLIN and LEVINE, JJ., concur.


author: CONNER, J.

text:
    CITY OF PEMBROKE PINES, Appellant, v. SCHOOL BOARD OF BROWARD COUNTY, Florida, Appellee.
    No. 4D11-2799.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2013.

      Samuel S. Goren of Goren Cherof Doody & Ezrol, P.A., Fort Lauderdale, and Edward J. Pozzuoli and Stephanie Alexander of Tripp Scott, P.A., Fort Lauderdale, for appellant.
    Anthony J. Carriuolo of Berger Singer-man LLP, Fort Lauderdale, for appellee.
   CONNER, J.

City of Pembroke Pines (“City”) appeals the final summary judgment entered in favor of the School Board of Broward County (“School Board”). City raises four issues, one of which argues four sub-issues. The two inquiries central to most of the issues are whether the trial court erred in: (1) granting summary judgment after being apprised that a grand jury report found School Board to be corrupt in its capital construction processes, and (2) not granting an evidentiary hearing on the grand jury report prior to entering summary judgment. After considering all the issues raised, we affirm.

City owns and operates five charter schools. At the heart of City’s assertions before the trial court and on appeal is the contention that section 1011.71(2), Florida Statutes (2007), required School Board to include City’s request for capital outlay funds as part of its 2007 budget. Section 1011.71(2) is the statutory authority that gives school districts the discretion to levy taxes, up to a specified maximum rate, for capital improvements. Prior to 2006, section 1011.71(2) did not authorize school boards to use any portion of this tax revenue for charter schools. Effective July 1, 2006, the legislature amended section 1011.71(2) to grant school districts the discretion to allocate some of their discretionary tax revenues to charter schools. City contends School Board ignored its request due to corruption.

We first note that the grand jury report did not investigate issues of corruption regarding the funding of capital outlays for charter schools. More importantly, the grand jury report was not summary judgment evidence. Because a grand jury operates using a probable cause burden of proof, see Shadwick v. City of Tampa, 237 So.2d 231, 233 (Fla. 2d DCA 1970), the grand jury report could never be used as summary judgment evidence. Further, City failed to preserve error because it never requested a continuance of the summary judgment hearing to develop discovery of summary judgment evidence. We find no abuse of discretion when the trial court implicitly denied the request for an evidentiary hearing on the grand jury report.

We agree with the trial court that City is seeking judicial intervention for inclusion in school board discretionary budgets after the legislature has declined to mandate inclusion, despite lobbying efforts by charter schools.

Affirmed.

POLEN, J., and KEYSER, JANIS BRUSTARES, Associate Judge, concur.

      . A grand jury was impaneled by the Florida Supreme Court to investigate School Board. On February 18, 2011, the grand jury filed its report. City contends the report was scathing in its conclusion that School Board was corrupt in its capital construction processes.

      . Section 1011.62, Florida Statutes (2007), entitled "Charter Schools Capital Outlay Funding,” is a separate statute which creates funding for charter school capital improvements. Section 1011.62 remains in effect, even after the amendment to section 1011.71(2) granted school boards the discretion to use revenues under that section for charter schools.

      . In 2007, section 1011.71(2) stated in relevant part: "... [E]ach school board may levy not more than 2 mills against the taxable value for school purposes for district schools, including charter schools at the discretion of the school board ...(emphasis added).

      . The trial court did not verbally announce a ruling on the request for an evidentiary hearing or enter an order denying the request, but we view the entry of the final summary judgment as a clear indication the trial court denied the request.


author: STEVENSON, J. PER CURIAM.

text:
    Steven Joseph KOPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2590.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2013.
    Opinion on Rehearing Feb. 20, 2013.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

The Appellant, Steven Joseph Kopson, was driving with a suspended license when he struck two pedestrians, killing one and causing serious bodily injury to the other, also hitting an unoccupied vehicle. Kop-son entered an open plea of guilty to seven counts, including DUI manslaughter with unlawful blood-alcohol level (UBAL) (count I), DUI manslaughter (impairment) (count II), DUI with serious bodily injury (count III), DUI with serious bodily injury (UBAL) (count IV), felony DUI based upon a fourth conviction (count V), DWLS causing death (count VI), and DUI with property damage (count VII). His blood alcohol levels were .39 and .37. Kopson had four prior DUIs stemming from three different criminal episodes. The trial court adjudicated Kopson guilty on all counts.

The trial court suspended sentences on counts I, IV, and VI on double jeopardy grounds; however, it was fundamental error to adjudicate Kopson guilty on all counts. See Ivey v. State, 47 So.3d 908 (Fla. 3d DCA 2010). Count VI violates double jeopardy in relation to count II because a defendant cannot be convicted of both DUI manslaughter and DWLS causing death where there is only a single death; count IV violates double jeopardy in relation to count III because a defendant cannot be convicted of both DUI with serious bodily injury while impaired and DUI with serious bodily injury with an unlawful blood alcohol level under the same statute; and count I violates double jeopardy in relation to count II because a defendant cannot be convicted of DUI manslaughter twice for the same death. See State v. Cooper, 634 So.2d 1074, 1074-75 (Fla.1994). We direct the trial court on remand to vacate the adjudications on counts I, IV, and VI. Resentencing is also necessary as the trial court erroneously believed it did not have discretion to grant Kopson’s motion for a downward departure. See Colletta v. State, 126 So.3d 1090 (Fla. 4th DCA 2012); State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012); Ficklin v. State, 686 So.2d 708, 709-10 (Fla. 1st DCA 1996).

Affirmed in part; Reversed in part; and Remanded for new sentencing hearing.

WARNER and POLEN, JJ., concur.

On Motion for Rehearing

PER CURIAM.

Appellant, in his motion for rehearing, requests that this court issue a ruling on certain arguments raised in his brief but not mentioned in our prior opinion. We grant appellant’s motion to clarify that we found no merit in the remaining issues presented in this appeal.

WARNER, POLEN and STEVENSON, JJ., concur.


author: GROSS, J.

text:
    Andrew RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4927.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee. • •
   GROSS, J.

After a jury trial, Andrew Ramirez was convicted of trafficking in hydroeodone and possession of cocaine with intent to sell. We reverse the trafficking conviction because the failure to charge the jury on a “prescription defense” constituted fundamental error in a case where a question from the jury should have highlighted the absence of the instruction for the trial court and defense attorney.

Armed with a search warrant, fifteen SWAT team members forcibly entered and secured a home owned by Ramirez’s mother where they found Ramirez and his girlfriend asleep in a bedroom. On a nightstand next to the bed where the couple had been sleeping, a detective found an ID card belonging to Ramirez and a pill bottle, prescribed to Ramirez’s mother, containing fourteen hydroeodone tablets. The prescription had been filled six months prior to the search and the mother had a valid prescription for fifteen pills.

In a second room, likely used for storage, officers found a bag of cocaine on a television stand, another small bag of cocaine in a cabinet, a digital scale with cocaine residue on it, and baking soda, commonly used to mix with cocaine. Officers also found mail in the second room addressed to Ramirez; no belongings attributable to any other person were found in the room. According to two detectives, Ramirez said that he took the hydroeodone pills from his mother for his own use, but he was not selling them.

In the defense case, Ramirez denied making this statement. Rather, he testified that the, detectives relentlessly badgered him about whether or not he was taking the pills, so he told them to “put down whatever you want” in the police report.

Addressing the cocaine and scale found within the home, Ramirez testified that the cocaine was in his brother’s room and he was otherwise unaware of its presence. The mail addressed to him that was found inside the room was old and just happened to be there.

The mother testified that three of her sons lived in the home that was searched. Each brother had his own room, and each frequently came in and out of the home to record rap music. As for the hydroeodone pills, the mother stated that she received a valid prescription after injuring her back during a slip and fall incident. As a result, she always carried her pill bottles with her since her back frequently flared up. Because she resided elsewhere, she was uncertain how her pill bottle got to the home used by her sons; she assumed she left it there during one of the many times she stopped by to clean for her sons.

Ramirez testified that he and his girlfriend had forgotten to pay the electric bill at his girlfriend’s house, so the electricity had been shut off. Therefore, the night before Ramirez’s arrest, they were forced to relocate to his mother’s house. When they arrived at the house at about 1 to 2 a.m., Ramirez saw that his mother had left the pills in an open area of the house. Since his two brothers also lived at the home and frequently invited guests over to record rap music, Ramirez took the pills into his own room to safeguard them until his mother returned.

During closing argument, the prosecutor argued that her obligation was merely to prove the four elements of trafficking in hydrocodone contained in the standard jury instruction quoted several paragraphs below:

To prove the crime of trafficking in illegal drugs, the State must prove the following four elements beyond a reasonable doubt, four elements, nothing more, nothing less.

(Emphasis added). The prosecutor preemptively attacked the anticipated defense claim that the pill bottle belonged to his mother, arguing:

Now, did he knowingly possess a certain substance?
Well, he testified that he had the bottle in his hand, he knew it was there. Now, whether you believe that the mom left it there or he took it from the mom, that’s obviously a question for you to determine.
Did he knowingly possess it?
It was in his nightstand next to his ID, right next to where he was sleeping.

It is difficult to determine the precise nature of defense counsel’s closing argument other than exploration of the theme, “This isn’t fair.” The essence of the argument appears to have been that Ramirez was entitled to temporarily possess the pills, and thus should be acquitted of the trafficking charge, since his mother had a viable prescription and he was not using them for an illegal purpose. Defense counsel conceded that the pills were located “next to [Ramirez’s] bed” but argued instead that it would be illogical for Ramirez not to keep the pills in the second room with the cocaine if he were selling them. Moreover, the fact that there were still fourteen of the fifteen pills still in the prescription bottle showed, in defense counsel’s opinion, that Ramirez was not taking or selling the drugs.

The trial court instructed the jury on the four elements of the offense of trafficking in hydrocodone as follows:

To prove the crime of Trafficking in Illegal Drugs, the State must prove the following four elements beyond a reasonable doubt:
1. [Ramirez] knowingly possessed a certain substance.
2. The substance was hydrocodone or a mixture containing hydrocodone.
3. The quantity of the substance involved was 4 grams or more, but less than 14 grams.
4. [Ramirez] knew that the substance was hydrocodone or a mixture containing hydrocodone.

The court did not instruct the jury on any affirmative defense, and defense counsel did not ask for an instruction that would have placed the general “fairness” theme of his closing in the context of a recognized defense.

Even if Ramirez’s trial counsel was ineffective, the jury perceived that something was unfair in the law as instructed. In a lengthy, detailed written question, the jury asked, if it found that the State had proven the four elements of trafficking beyond a reasonable doubt, whether it

therefore must find the Á guilty? Or in the alternative, can this Honorable Court please advise if this jury, pursuant to the aforementioned analysis, has properly considered all pertinent issues surrounding this individual charge?

In response, the trial judge told the jurors that they “must rely on the evidence presented at the trial, as well as the instructions on the law, and base [their] decision on that.” Defense counsel did not object or request any additional instruction on the law.

Fundamental error occurred in this case because the court failed to instruct on a prescription defense — the defense that obviously applied to the trafficking charge. A trial court’s omission of a jury instruction is “subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred.” State v. Delva, 575 So.2d 643, 644 (Fla.1991) (citing Castor v. State, 365 So.2d 701 (Fla.1978); Brown v. State, 124 So.2d 481 (Fla.1960)). Where a court has failed to in struct on an affirmative defense, fundamental error occurs where a jury instruction is “so flawed as to deprive defendants claiming the defense ... of a fair trial.” Smith v. State, 521 So.2d 106, 108 (Fla.1988). “This is a rigorous standard, for fundamental error occurs only in those rare cases such as ‘where the interests of justice present a compelling demand for its application.’ ” Smith v. State, 76 So.3d 379, 385 (Fla. 1st DCA 2011)(quoting Ray v. State, 403 So.2d 956, 960 (Fla.1981)).

Since the charge of trafficking may be proven through possession of a certain amount of a controlled substance, “[an affirmative] prescription defense is ... available to those who have a valid prescription written directly on their behalf for the pills in their possession.” McCoy v. State, 56 So.3d 37, 39 (Fla. 1st DCA 2010) (citations omitted). Specifically, section 893.13(6)(a), Florida Statutes (2009), provides,

It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter.

(Emphasis added); see also Wagner v. State, 88 So.3d 250, 252 (Fla. 4th DCA 2012) (“A valid prescription is a complete defense to trafficking and a defendant is entitled to a jury instruction on the defense.” (citing O’Hara v. State, 964 So.2d 839, 847 (Fla. 2d DCA 2007))).

The prescription defense is not limited to the person holding a valid prescription, but may also be asserted by “any individual authorized by the prescription holder to hold the medications on his or her behalf.” State v. Latona, 75 So.3d 394, 395 (Fla. 5th DCA 2011) (citing McCoy, 56 So.3d at 39). This extension derives from sections 465.003(6) and 893.04(2)(a), Florida Statutes (2009), which allow pharmacists to dispense prescription drugs to a patient’s agent. McCoy, 56 So.3d at 39.

In the cases developing this area of law, the applicable legal theory is that the “agent” in possession of the controlled substance received express authority from the prescription holder. See, e.g., Ayotte v. State, 67 So.3d 330, 331 (Fla. 1st DCA 2011)(finding the prescription defense available to a person holding his girlfriend’s pills at her request); McCoy, 56 So.3d at 39 (finding the same where a wife was holding her husband’s pills on his behalf). However, express authority is not required to create a valid agency relationship: rather, the prescription holder may provide his or her agent with implied au thority to act, or in this case hold the pills. See, e.g., Masuda v. Kawasaki Dockyard Co., 328 F.2d 662, 664-65 (2d Cir.1964). In such circumstances, implied authority may be inferred from the facts and circumstances surrounding the parties’ relationship. See Thomkin Corp. v. Miller, 156 Fla. 388, 24 So.2d 48, 49 (1945) (observing that an “agent’s authority ... may be inferred from the related facts of the case”); Beardslee v. Fla. Elections Comm’n, 962 So.2d 390, 392 (Fla. 5th DCA 2007) (stating that agency is a relationship that “may also be inferred from past dealings between the parties”); Restatement (Second) of Agency § 7 cmt. c (1958). Here, had the jury been properly instructed, it could have found that Ramirez had the implied authority to safeguard the pills for his mother until he could return them. Any other application of the law would turn a prescribed controlled substance into a hot potato if the drugs were accidentally left somewhere, with the potential to turn an unsophisticated possessor into a drug trafficker.

The prescription defense was Ramirez’s primary defense to the trafficking charge. Where a jury is not instructed on the law of a crucial defense, a “defendant is deprived of a fair trial if the error divests the defendant of his or her ‘sole, or ... primary, defense strategy’ and that defense is supported by evidence adduced at trial that could not be characterized as ‘weak.’ ” McCoy, 56 So.3d at 40 (quoting Martinez v. State, 981 So.2d 449, 455-57 (Fla.2008)). The justification for this rule follows logic. “An affirmative defense does not concern itself with the elements of the offense at all; it concedes them. In effect, an affirmative defense says, Tes, I did it, but I had a good reason.’ ” State v. Cohen, 568 So.2d 49, 51-52 (Fla.1990). Therefore, if a jury is not instructed as to a defendant’s affirmative defense, and that affirmative defense remains the defendant’s sole or primary defense to the charge, then the jury, confining itself to the instructions provided by the court, would be required to convict.

For example, in McCoy, much like the case at hand, the defendant argued for reversal of her conviction for trafficking in hydrocone on the grounds that the trial court’s failure to sua sponte instruct the jury on her prescription defense constituted fundamental error. 56 So.3d at 40. At trial, “[t]he defendant did not deny that she possessed the drug, but she claimed that she was merely carrying the drug in her purse for her husband, who held a valid prescription.” Glovacz v. State, 60 So.3d 423, 425 (Fla. 1st DCA 2011) (discussing the facts of McCoy).

In reversing, the McCoy court held that the defendant satisfied the two elements of Martinez, finding that the prescription defense “constituted [the defendant’s] only defense to the charge and there was substantial, albeit conflicting, evidence concerning the defense[.]” McCoy, 56 So.3d at 41. Under these circumstances, the court found that “[w]hile the State introduced contradictory evidence refuting the [prescription] defense, the jury was never instructed they had a choice to accept [the defendant’s] defense.” Id. at 40. This error was compounded by the prosecutor’s statement during closing argument that it was not “a defense for th[e] defendant to have the pills because her husband has a prescription” and that “anyone can be charged with trafficking for having pills in their possession.” Id.

Likewise, in Ayotte, the defendant’s “sole theory of innocence” for challenging his charge of trafficking in hydrocodone was that “he was holding the pills for his girlfriend, who had a valid prescription^]” 67 So.3d at 331. In reversing, the first district, citing McCoy, found dispositive the “failure by all participants and the standard jury instructions to acknowledge the statutory exceptions for possession pursuant to a valid prescription, failure by the state to refute [the defendant’s] role as his girlfriend’s agent, and the prosecutor’s argument that possession alone was sufficient to convict.” Id. at 332; see also, e.g., Glovacz, 60 So.3d at 425-26 (finding fundamental error for failure to instruct on a prescription defense where defendant held her husband’s prescribed pills in her purse at his request).

In this case, Ramirez’s primary defense to trafficking in hydrocodone was that he was legally holding his mother’s prescribed pills for safekeeping. Although disputed by the State’s evidence, this contention was hardly “weak,” as the seized pills were prescribed to Ramirez’s mother, she claimed to carry the pills with her because her back frequently flared up, and fourteen of the fifteen pills were still in the bottle. In closing, the prosecutor emphasized that the case was limited to whether the State had proved the four elements of trafficking, “nothing more, nothing less.” In a remarkable turn of events, it was the jury, and not the judge or trial counsel, that recognized that something was lacking in the court’s instructions on the law, as indicated by its question asking whether the jury “must ” convict if the State proved the four elements of trafficking. This question should have been sufficient to alert the court and defense counsel that something was amiss in the instructions— namely, the failure to apprise the jury of its ability to apply the prescription defense to the case.

For these reasons, we reverse the conviction for trafficking in hydrocodone and remand for a new trial.

Ramirez also challenges several improper statements made by the prosecutor during the closing argument, to which his trial counsel did not object. To obtain a reversal for these errors, Ramirez must establish fundamental error. See Mendoza v. State, 964 So.2d 121, 133 (Fla.2007)). Improper comments rise to the level of fundamental error only when they

either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, [are] so harmful or fundamentally tainted as to require a new trial, or [are] so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.

Walls v. State, 926 So.2d 1156, 1167 (Fla.2006)(quoting Spencer v. State, 645 So.2d 377, 383 (Fla.1994)); see also Kilgore v. State, 688 So.2d 895, 898 (Fla.1996)(stat-ing that fundamental error “reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” (quoting Delva, 575 So.2d at 644-45)).

Here, the prosecutor suggested that the testimony of the “15 SWAT guys” would have been cumulative to other testimony and that certain lost pictures would have corroborated “every single thing” that a detective said. These statements were clearly improper. See, e.g., Tillman v. State, 647 So.2d 1015, 1015-16 (Fla. 4th DCA 1994)(“[T]he prosecutor’s representation to the jury of additional corroborating evidence which he saw no need to present to them was highly improper and prejudicial, necessitating reversal.” (citing Thompson v. State, 318 So.2d 549, 552 (Fla. 4th DCA 1975)); see also Landry v. State, 620 So.2d 1099, 1102 (Fla. 4th DCA 1993). However, in the context of this case, these arguments did not rise to the level of fundamental error.

We affirm the conviction for possession of cocaine with intent to sell, reverse the conviction for trafficking in hydrocodone, and remand for a new trial.

MAY, C.J., and GERBER, J., concur.

      .This is one of those rare cases where ineffective assistance of trial counsel is “apparent on the face of the record.” Grant v. State, 864 So.2d 503, 505 (Fla. 4th DCA 2004) (citations omitted). However, we do not decide the case on this ground because Ramirez does not argue this basis on appeal.

      . See § 465.003(6), Fla. Stat. (2009)(defining "dispense" as "the transfer of possession of one or more doses of a medicinal drug by a pharmacist to the ultimate consumer or her or his agent. ”)(emphasis added)).

      . See § 893.04(2)(a), Fla. Stat. (2009) ("The pharmacist may dispense the controlled substance, in the exercise of her or his professional judgment, when the pharmacist or pharmacist’s agent has obtained satisfactory patient information from the patient or the patient's agent.") (emphasis added)).

      . Agent is defined as "[o]ne who is authorized to act for or in place of another.” McCoy, 56 So.3d at 39 (quoting Black's Law Dictionary 68 (8th ed.2004)).


text:
    Nathaniel KIMBROUGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1767.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.
    Nathaniel Kimbrough, Crestview, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 870 So.2d 166 (Fla. 2d DCA 2004).

WARNER, GROSS and TAYLOR, JJ., concur.


author: PER CURIAM. GROSS, J., GERBER, J.,

text:
    Pierre DOMVILLE, Petitioner, v. STATE of Florida, Respondent.
    No. 4D12-556.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.
    Denzle G. Latty, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for respondent.
   ON MOTION FOR REHEARING AND MOTION FOR CERTIFICATION

PER CURIAM.

We deny the motion for rehearing but grant the motion for certification. Pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we certify the following to be a question of great public importance:

Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “Mend,” would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?

GROSS and LEVINE, JJ., concur.

GROSS, J. concurs specially with opinion.

GERBER, J., concurs in part and dissents in part, with opinion.

GROSS, J.,

concurring specially.

I concur in the certification of the question because I recognize that the ability to participate in social media is of great importance to many and there are disagreements between reasonable persons about the way that a judge may take part in social media sites such as Facebook. I also concur in the denial of the motion for rehearing because I believe the case was correctly decided.

Judges do not have the unfettered social freedom of teenagers. Central to the public’s confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal. Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance. Unlike face to face social interaction, an electronic blip on a social media site can become eternal in the electronic ether of the internet. Posts on a Facebook page might be of a type that a judge should not consider in a given case. The existence of a judge’s Facebook page might exert pressure on lawyers or litigants to take direct or indirect action to curry favor with the judge. As we recognized in the panel opinion, a person who accepts the responsibility of being a judge must also accept limitations on personal freedom.

GERBER, J.,

concurring in part and dissenting in part.

I concur in the majority’s denial of the state’s motion for rehearing. I respectfully dissent from the majority’s granting of the state’s motion for certification of a question of great public importance.

The majority does not provide its reasoning for its conclusion that the certified question is one of great public importance. The only reasoning for its conclusion appears to be stated in the concurring opinion. I disagree with the concurring opinion’s reasoning.

The concurring opinion reasons that the ability of judges to participate in social media with attorneys who appear before them “is of great importance to many.” However, the concurring opinion does not cite any authority for that statement. On the contrary, as the concurring opinion recognizes, common sense suggests that the public, without question, would appear to desire otherwise: “Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance ... [A] person who accepts the responsibility of being a judge must also accept limitations on personal freedom.”

Our original panel opinion, Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012), addressed the narrow issue which has led to the certified question. We concluded that, where the presiding judge in a criminal case had accepted the prosecutor assigned to the case as a Facebook “friend,” a reasonably prudent defendant would fear that he or she could not receive a fair and impartial trial, so that the defendant’s motion for disqualification should be granted. The occurrence of those facts in this case appears to be an isolated event, and understandably so. I see no basis to certify a question of great public importance.

      . The state’s motion for certification argued that this court’s original panel opinion raised a question of great public importance because the opinion allegedly "found unethical, reprimanded and disqualified [a sitting Circuit Judge] ... based on a trumped up 'ethical violation,’ without the Judge being given an opportunity to defend himself, or take corrective measures of the ethical impropriety.” It should go without saying that an appellate opinion granting a petition challenging the denial of a motion to disqualify in no way suggests that the subject judge is "unethical" or has been "reprimanded,” and we have not done so in this case. Further, it is well-established that ”[t]he judge against whom an initial motion to disqualify ... is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.” Fla. R. Jud. Admin. 2.330(f) (2012). "If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.” Id.


author: GERBER, J.

text:
    Rubin DELGADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2649.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals from a final judgment finding him to be a sexually violent predator and civilly committing him for treatment pursuant to the Jimmy Ryce Act, sections 394.910-394.932, Florida Statutes (2006). The defendant argues that, in the second phase of the bifurcated trial, the state improperly relied upon inadmissible hearsay regarding a 1988 battery conviction and a 2000 lewd or lascivious conduct acquittal to show that the defendant was a sexually violent predator. We conclude that the state properly relied upon the 1988 battery conviction. However, we conclude that the state improperly relied upon the 2000 acquittal, and that such reliance was not harmless. Therefore, we reverse and remand for a new second phase trial.

In 1988, the police alleged that the defendant, while walking home his wife’s fifteen-year-old girlfriend, pulled her alongside a building. He grabbed her throat and she began screaming. He told her, “If you don’t shut up, I’m going to kill you.” He then ripped open her pants and pulled them down to her ankles. He threw her on the ground while continuing to choke her. He then said, “Please don’t fight me or I will have to kill you.” Two people walked by and the defendant let go of the victim. She pulled up her pants and ran away. Despite those allegations, the state filed a “no information” for attempted sexual battery. Instead, the state charged the defendant with simple battery, to which the defendant pled guilty. The defendant was sentenced to time served.

Later in 1988, the police alleged that the defendant took an eighteen-year-old worn-an against her will to another location and made her perform oral and vaginal sex. During the attack, he threatened her numerous times and grabbed her around the neck, choking her. He put her in his car trunk and drove her around. When she began screaming, he stopped the car and threatened her with a tire iron. He then drove to a wooded area. He took her from the car, said he was going to kill her, and again grabbed her around the neck, choking her and turning her head as if trying to break her neck. He put her back in the trunk, drove her to another location, and finally let her go, naked. The defendant pled guilty to armed kidnapping, attempted first degree murder, and sexual battery with slight force. He was sentenced to prison for a term of years.

In 1999, when the Department of Corrections gave notice that it intended to place the defendant on conditional release, the state petitioned to have the defendant committed as a sexually violent predator based on the two offenses described above. A jury voted 5-1 that the state did not prove the defendant was a sexually violent predator. As a result, the defendant was placed on conditional release.

In 2000, the state charged the defendant in two cases with lewd or lascivious conduct involving persons under sixteen years of age. In one case, the state alleged that the defendant attempted to pull down a girl’s pants while she was sleeping. In the other case, the state alleged that the defendant touched a girl’s vaginal area and reached under her shirt to feel her breasts. On the first case, a jury found the defendant guilty of the lesser included offense of simple battery. On the second case, a jury found the défendant not guilty. The conviction in the first case resulted in the defendant’s conditional release being revoked. The defendant was returned to prison.

In 2006, as the defendant neared the end of his prison sentence, the state petitioned to have the defendant committed as a sexually violent predator based on the two 1988 convictions in conjunction with the 2000 battery conviction. The court bifurcated the trial into two phases. In the first phase, the jury would determine whether the 2000 battery conviction was sexually motivated. If the jury made that determination, then in the second phase, the jury would determine, based on the defendant’s overall history, whether he was a sexually violent predator.

During the first phase, thé juiy unanimously found that the 2000 battery conviction was sexually motivated. Before the second phase began, the defendant moved in limine to prohibit the state’s expert from introducing hearsay evidence regarding the 1988 battery conviction and the charge underlying the 2000 acquittal. The defendant argued that such evidence was unreliable because the state did not prove the original charge of attempted sexual battery in the 1988 case or the lewd or lascivious conduct charge in the second 2000 case. The court permitted the expert to testify regarding the 1988 battery conviction as long as the expert did not mention that: (1) the police originally charged the defendant with attempted sexual battery; or (2) the defendant threatened to kill the victim. The court permitted the expert to testify about the charge underlying the 2000 acquittal without restriction.

The second phase then began. The state’s expert psychologist testified that the defendant should be committed as a sexually violent predator. In support, the expert recounted the allegations supporting the 1988 battery conviction, the 1988 sexual battery conviction, the 2000 battery conviction, and the charge underlying the 2000 acquittal. The expert testified that, during an interview, the defendant admitted to the accuracy of some of the allegations underlying the 1988 battery conviction. However, the defendant disputed the allegations of the charge underlying the 2000 acquittal.

The jury unanimously found the defendant to be a sexually violent predator. After the trial court committed the defendant, the defendant filed a motion for new trial. The defendant argued that the state improperly relied upon the 1988 battery conviction and the charge underlying the 2000 acquittal to show that the defendant was a sexually violent predator. The trial court denied the motion.

This appeal followed. The defendant again argues that the state improperly relied upon the 1988 battery conviction and the charge underlying the 2000 acquittal to show that he was a sexually violent predator. We review the court’s admission of this evidence for an abuse of discretion. See Pesci v. State, 963 So.2d 780, 785 (Fla. 3d DCA 2007) (“A trial court’s ruling on the admissibility of evidence [in a Jimmy Ryce Act trial] will not be disturbed absent a finding that the trial court abused its discretion.”).

Section 394.9155(5), Florida Statutes (2006), provides, in pertinent part, that during a Jimmy Ryce Act trial, “[hjearsay evidence ... is admissible ... unless the court finds that such evidence is not reliable.” § 394.9155(5), Fla. Stat. (2006). Based on this standard, we conclude that the state’s hearsay evidence regarding the 1988 battery conviction was reliable. The defendant pled guilty to allegations which could have supported a charge of attempted sexual battery. The fact that the state chose to charge those allegations only as a battery is irrelevant to those allegations’ reliability based on the defendant’s plea. See Washington v. State, 973 So.2d 611, 612-13 (Fla. 3d DCA 2008) (affirming the trial court’s admission of the victim’s deposition testimony where the defendant used that testimony to successfully negotiate for a reduction of a sexual battery offense to a non-sexual offense); Pesci, 963 So.2d at 785 (affirming the trial court’s admission of hearsay evidence regarding an out-of-state sexual offense for which the defendant was not convicted; the defendant fled to Florida pending trial on that offense, changed his name, and during an interview admitted to the accuracy of most of the hearsay evidence presented). Thus, the state’s hearsay evidence regarding the 1988 battery conviction was reliable.

However, we conclude that the state improperly relied upon the charge underlying the 2000 acquittal. The defendant not only disputed that charge, but a jury acquitted him of that charge. Thus, there is nothing in the record which causes the state’s hearsay evidence regarding that charge to be rehable. Accordingly, the trial court erred in admitting evidence of that charge. See Jenkins v. State, 803 So.2d 783, 787 (Fla. 5th DCA 2001) (“[The defendant] was committed, to a large extent, on the testimony of out-of-court witnesses given through the mouths of police officers, which testimony lacked the indicia of reliability resulting from a trial which ended either in a conviction by the factfin-der or in a plea to an offense relating to the critical allegations ... The introduction of this unreliable evidence was so prejudicial that it tainted the entire proceedings.”).

The trial court’s error in permitting the state to rely upon the 2000 acquittal was not harmless. We have held that under the harmless error test for a civil case, “the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict.” Special v. Baux, 79 So.3d 755, 771 (Fla. 4th DCA 2011), rev. granted sub. nom. Special v. W. Boca Med. Ctr., 90 So.3d 273 (Fla.2012). But see Pesci, 963 So.2d at 787-88 (applying the “beyond a reasonable doubt” standard to the harmless error test in a Jimmy Ryce Act appeal).

Here, the state has not shown it is more likely than not the error did not contribute to the verdict. Other than the 2000 battery conviction and charge underlying the 2000 acquittal, the state’s evidence in the instant petition was virtually the same as the state’s evidence in the 1999 petition, upon which a jury found 5-1 that the state did not prove the defendant was a sexually violent predator. The state has not shown that the jury still would have found the defendant to be a sexually violent predator without hearing of the charge underlying the 2000 acquittal, which involved a child and was similar in nature to the 2000 battery conviction also involving a child.

Based on the foregoing, we reverse the trial court’s commitment of the defendant and remand for a new second phase trial. As for the defendant’s other two arguments in this appeal seeking dismissal of the petition, we affirm without further discussion.

Affirmed in part, reversed in part, and remanded for new second phase trial.

MAY, C.J., and GROSS, J., concur.


text:
    CITIZENS FOR SUNSHINE, INC., a Florida not-for-profit corporation, Appellant, v. The SCHOOL BOARD OF MARTIN COUNTY, Florida, Sue Hershey, Laurie Gaylord and David Anderson, Appellees.
    No. 4D12-2978.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.

      Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for appellant.
    Allen C. Sang of Carman, Beauchamp & Sang, P.A., Winter Park, for appellee The School Board of Martin County, Florida.
    Andrew Baumann of Lewis, Longman & Walker, P.A., West Palm Beach, Jennifer R. Cowan of Lewis, Longman & Walker, P.A., Bradenton, and Scott Konopka of Page Mrachek Fitzgerald Rose Konopka & Dow, P.A., Stuart, for appellees Sue Hershey, Laurie Gaylord and David Anderson.
   GERBER, J.

The plaintiff appeals the circuit court’s non-final order denying the plaintiffs motion for a temporary injunction against the defendants. The plaintiff primarily argues that the court erred in concluding that the plaintiff did not establish a substantial likelihood of success on the merits. We affirm, but under reasoning slightly different than that which the circuit court articulated. We write to describe the evidence elicited at the circuit court’s hearing, and then to discuss our reasoning.

At three school board meetings, various persons expressed concerns about the operation of the district’s adult education school. At two of the meetings, the superintendent asked her adult education director to address the concerns. After the superintendent did so on the last occasion, one of the board members, defendant Sue Hershey, interjected:

Well, actually, I’m a little bit more interested in the whole, looking at it from a global standpoint, and I think ... [the student is] welcome to talk with [the coordinator] but I think there’s just too much going on.
.... I think we need to ... look at the Adult [Education] School and also look at [another alternative school] and see where we’re at here.
Programs are our responsibility. All programs are the Board’s responsibility. They are not the superintendent’s responsibility. They are by statute assigned to us. Whether a program goes on or is terminated is a board decision. It is not a superintendent decision. So when I say we need to discuss it, we really need to discuss it....
... And I think we need to address these programs and address them in an expedient manner.

The next day, Hershey and two other board members, defendants Laurie Gay-lord and David Anderson, visited the adult education school. They had not provided any notice of their visit.

The school visit prompted the plaintiff to file a complaint alleging that the defendants violated the Sunshine Law by conducting the visit without providing reasonable notice. The complaint sought declaratory and injunctive relief, specifically an injunction prohibiting the school board from implementing any action, or continuing any proceeding, related to the school visit. The plaintiff later filed an amended emergency motion for temporary injunction seeking the same injunc-tive relief.

At the evidentiary hearing on the motion, the adult education school’s coordinator testified about what occurred during the school visit. Hershey told the coordinator that “some very disturbing things [were] said at the school board meeting last night” about the school. The board members then asked the coordinator about: the coordinator’s duties; a summary of which teachers were on contract; the support which the school received; appropriate teaching materials; rumors about whether the school would remain open or would close; and staff morale at the school. The board members also toured classrooms and spoke with teachers and students. According to the coordinator, the board members did not take any formal action during their visit and did not deliberate or decide anything. In the coordinator’s words, “They came, and they saw and they left.”

Hershey testified that the coordinator’s testimony was an accurate recollection of what occurred during the visit. She testified that she and the other board members visited the adult education school because a member of the public expressed concerns about the school’s operation. She also testified that after the visit, she and other board members did not discuss what they saw and heard during the visit, and the school board took no action as a result of the visit. She further testified that if she had seen or heard something during the visit which bothered her, then she would have notified the superintendent.

The superintendent testified that school board meetings occurring after the visit did not pertain directly to the adult education school, but instead pertained to district-wide matters. One matter discussed was the superintendent’s recommendation for the appointment or reappointment of the district’s employees, including the adult education school’s employees. Another matter discussed was a district-wide purchase order of equipment and supplies, including purchases for the adult education school.

During closing arguments, the plaintiff contended that this was a simple case, in that the defendant board members visited the adult education school without providing reasonable notice. The defendants argued that the court should deny the motion for temporary injunction because the plaintiff had not shown that the school board took any action as a result of the visit, or that a pattern of Sunshine Law violations existed. The defendants argued that even if the school visit constituted a Sunshine Law violation, the board cured the violation by having full and open meetings after the school visit, and the plaintiff did not show the likelihood of a future violation requiring an injunction.

After the hearing, the circuit court entered a detailed order denying the motion for temporary injunction. The order stated, in pertinent part:

3. In order to obtain a temporary injunction[,] the Plaintiff must show an irreparable injury for which there is no legal remedy, a substantial likelihood of successfully proving the claim, and that the requested injunction serves the public interest.
4. In order to prove a violation of the Government-In-The-Sunshine law, the Plaintiff must prove that two or more of the School Board members met without reasonable notice to the public and took some official act or had discussions about some matter on which foreseeable action will be taken by the Board.
5. As evidence of actions allegedly formulated on [the day of the visit to the adult education school], the Plaintiff offers three subsequent actions by the School Board which were foreseeable: (1) adoption of the Superintendent’s annual recommendation to reappoint hundreds of teachers including about five adult education teachers, (2) adoption of the Superintendent’s annual recommendation to reappoint non-instructional employees including at least one adult education employee, and (3) adoption of a recommended purchase order for all 21 schools in the district. It is unreasonable to think that the actions of the Defendant Board members on [the day of the visit] had any connection with these subsequent actions....
6. Contrary to the Plaintiffs claim, the evidence does not show that the three subsequent actions ... or any other pending or foreseeable action by the School Board were the focus of any questions and statements by [the] School Board members who visited the adult education [school] on [the day of the visit]....
7. Without proof of discussions about some matter on which foreseeable action will be taken by the Board, the element of substantial likelihood of success on the merits is not proven.
8. Furthermore, the injunction • requested by the Plaintiff would effectively stop the operation of all of the district’s schools at the beginning of the school year and forbid the School Board to attempt to rectify the matter. This cannot be said to be in the public interest.

This appeal followed. The plaintiff argues that the circuit court erred in concluding that the plaintiff was not entitled to a temporary injunction on the merits. For this argument, we employ a mixed standard of review. See Meadows v. Med. Optics, Inc., 90 So.3d 924, 925 (Fla. 4th DCA 2012) (“This court reviews a temporary injunction under a mixed standard of review. To the extent the trial court’s order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review.”) (citation and quotation omitted).

The circuit court’s order correctly stated the elements which the plaintiff had to demonstrate to obtain a temporary injunction. “In order to obtain a temporary injunction, one must demonstrate that (1) irreparable harm will result if the temporary injunction is not entered; (2) an adequate remedy at law is unavailable; (3) there is a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest.” Burtoff v. Tauber, 85 So.3d 1182, 1183 (Fla. 4th DCA 2012) (citation and quotation omitted).

The circuit court’s order also correctly summarized the Sunshine Law. Article I, section 24(b), of the Florida Constitution provides:

All meetings of any collegial public body of the executive branch of state- government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.

Further, section 286.011(1), Florida Statutes (2012), provides, in pertinent part:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, ... at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

§ 286.011(1), Fla. Stat. (2012). Our supreme court has added that:

[The Sunshine Law] should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken.

Sarasota Citizens for Responsible Gov’t v. City of Sarasota, 48 So.3d 755, 762 (Fla.2010) (citation and quotation omitted).

Based on the foregoing authorities, the circuit court erred in not concluding that the plaintiff demonstrated a substantial likelihood of success of proving a Sunshine Law violation. The undisputed evidence showed that the defendant board members, without providing notice, conducted a meeting at the adult education school relating to matters on which foreseeable action would have been taken. The coordinator and the defendant school board members discussed: the coordinator’s duties; a summary of which teachers were on contract; the support which the school received; appropriate teaching materials; rumors about whether the school would remain open or would close; and staff morale at the school. As Hershey testified, if she had seen or heard something during the visit which bothered her, then she would have notified the superintendent. It is foreseeable that if Hershey or the other two board members notified the superintendent about having seen something during the visit which bothered them, then action would have been taken based on those observations. Thus, a Sunshine Law violation occurred. See Finch v. Seminole Cnty. Sch. Bd., 995 So.2d 1068, 1072-73 (Fla. 5th DCA 2008) (school board’s non-public bus tour to consider rezoning plans violated the Sunshine Law, even though the school board members were separated from each other during the tour, no opinions were expressed, and no vote was taken during the trip, because “it undoubtedly had the opportunity at that time to make decisions outside of the public’s scrutiny”).

Nevertheless, we affirm, because the circuit court reached the right result, but for the wrong reasons. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

“Sunshine Law violations can be cured by independent, final action in the sunshine, [as] distinguished from mere ceremonial acceptance or perfunctory ratification of secret actions and decisions.” Sarasota Citizens, 48 So.3d at 765 (citation and quotations omitted). Here, the record indicates that any subsequent school board actions which may have been related to the adult education school occurred during noticed school board meetings. Those actions do not appear to be mere ceremonial acceptance or perfunctory ratifications of secret actions and decisions. See id. at 765-66 (“[A]ny violations committed in email discussions between board members were cured by the Board’s public meetings ... This simply is not the case of a ceremonial acceptance of secret actions or merely a perfunctory ratification of secret decisions at a later meeting open to the public”) (original alteration, citation, and quotations omitted); Tolar v. Sch. Bd. of Liberty Cnty., 398 So.2d 427, 428 (Fla.1981) (even though private discussions between the superintendent-elect and school board members violated the Sunshine Law, the school board held a public meeting and took independent final action in the sunshine; “This action taken in the sunshine will not now be voided.”); Finch, 995 So.2d at 1073 (although school board’s non-public bus tour to consider rezoning plans violated Sunshine Law, subsequent “full, open and independent public hearings” cured any violation). Therefore, the school board’s noticed meetings cured any Sunshine Law violation arising from the unnoticed visit.

Finally, to the extent the plaintiff requested the circuit court to enjoin the defendants from holding additional unnoticed meetings in general, such a blanket request is legally insufficient. See Port Everglades Auth. v. Int’l Longshoremen’s Ass’n, Local 1922-1, 652 So.2d 1169, 1173 (Fla. 4th DCA 1995) (“[W]hile a court cannot issue a blanket order enjoining any violation of the Sunshine Law on a showing that it was violated in particular respects, a court may enjoin a future violation that bears some resemblance to the past violation. The future conduct must be specified, with such reasonable definiteness and certainty that the defendant could readily know that it must refrain from doing without speculation and conjecture.”) (citation and quotation omitted).

In sum, we do not condone the defendant board members’ Sunshine Law violation. See Canney v. Bd. of Pub. Instruction of Alachua Cnty., 278 So.2d 260, 264 (Fla.1973) (“Even though their intentions may be sincere, [] boards and agencies should not be allowed to circumvent the plain provisions of the [Sunshine Law].”). In fact, if a pattern of Sunshine Law violations existed before this violation, then perhaps we may have found that any subsequent school board actions were merely “perfunctory ratificationfs] of secret actions and decisions.” Sarasota Citizens, 48 So.3d at 765. However, based on the facts and our reasoning above, the plaintiff did not show this to be the case. Thus, we affirm the circuit court’s denial of the motion for temporary injunction.

Affirmed.

MAY, C.J., and GROSS, J., concur.

      . The plaintiff also argues that the circuit court erred in not allowing the plaintiff to enter certain items into evidence. We affirm as to that argument without further discussion.


text:
    D’Andre SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1626.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.
    D’Andre Smith, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See § 958.045(5)(c), Fla. Stat. (2006); Ch. 2006-270, § 1, at 2841-42, Laws of Fla. (effective July 1, 2006) (“If the [youthful] offender violates the conditions of probation, the court may revoke probation and impose any sentence that it might have originally imposed.”); see also Love v. State, 24 So.3d 704, 705 n. 1 (Fla. 4th DCA 2009), subsequent appeal, 60 So.3d 1071 (Fla. 4th DCA 2011); accord Negron v. State, 90 So.3d 948, 950 (Fla. 5th DCA 2012).

MAY, C.J., TAYLOR and LEVINE, JJ., concur.


text:
    Michelle HERRINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1158.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, CIKLIN and LEVINE, JJ., concur.


text:
    M.F.C., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-514.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Bullard, 891 So.2d 1158 (Fla. 4th DCA 2005).

WARNER, CIKLIN and LEVINE, JJ., concur.


text:
    Victor GARCIA, Appellant, v. STATE Of Florida, Appellee.
    No. 4D11-4613.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, CIKLIN and LEVINE, JJ., concur.


text:
    Thomas J. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2665.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.

      Ashley N. Minton of Fender & Minton, P.A., Fort Pierce (withdrawn), and Thomas J. Allen, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Thomas J. Allen appeals an order summarily denying his rule 3.850 motion. We reverse as to his second ground and otherwise affirm.

Defendant was charged with (I) DUI— impairment, with three priors; and (II) refusal to submit to testing, with one prior. Following a jury trial, he was found guilty as charged on both counts.

In the second ground of his motion, he claimed his trial counsel was ineffective for failing to sever the refusal count from the DUI count, such failure being tantamount to informing the jury that he had a prior DUI, because the predicate for the refusal charge was a prior refusal. A trial court should sever charges “before trial on a showing that the severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” Fla. R.Crim. P. 3.152(a)(2)(A) (2009). “Courts have recognized that the danger of improper consolidation lies in the fact that evidence relating to each of the crimes may have the effect of bolstering the proof of the other.” Dupree v. State, 705 So.2d 90, 95 (Fla. 4th DCA 1998) (citing Crossley v. State, 596 So.2d 447, 450 (Fla.1992)). The presumption of innocence may be destroyed by proof of a similar related offense. State v. Harbaugh, 754 So.2d 691, 693 (Fla.2000).

Because Defendant did not have a direct appeal, the record did not contain a transcript of the trial. The state conceded that, without a transcript, it could not determine whether Defendant’s trial counsel had made a strategic decision not to request severance of the refusal charge from the DUI charge, and thus an evidentiary hearing was needed on this ground for relief.

The trial court rejected the state s concession. It pointed out that a “pros and cons” list, which Defendant had attached to his motion as exhibit A, demonstrating what Defendant and counsel discussed in deciding whether to plead or proceed to trial, showed that counsel was aware of the problem of not severing the counts, because the list included, as a negative, “jury will know priors b/c felony count.” (Ex. 1 to order; Defendant’s ex. A) Based on Defendant’s argument and his exhibit A, the trial court found that trial counsel considered severing the counts but took the strategic course of rejecting doing so. The only question was whether that course was unreasonable. Based on the evidence of Defendant’s DUI, through the video of his attempting to complete the field sobriety tests or the testimony of the officers, the trial court concluded that counsel’s decision not to sever was reasonable. Furthermore, given the compelling evidence against Defendant, even if counsel’s failure to sever constituted a deficiency, Defendant could not show that it had any conceivable effect on the outcome of the proceeding. The trial court did not attach to the order any portions of a trial transcript showing the testimony of the state’s witnesses against Defendant.

One of the elements the state must prove to establish a violation of section 316.1939, Florida Statutes (2008), refusal to submit to testing, is the following:

6. (Defendant’s) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his][her] [breath] [blood] [urine].

Fla. Std. Jury Instr. (Crim.) 28.13 (2009).

Florida Standard Jury Instruction (Crim.) 28.2 (2009), concerning the offense of felony DUI, provides that the jury first is instructed on the elements of DUI; then, if it finds the defendant guilty, the jury is required to determine, in a bifurcated procedure, whether the state proved the prior convictions. Harbaugh, 754 So.2d at 693.

We conclude that ground two constituted a facially sufficient ground for relief and remand for either the attachment of additional portions of the record conclusively refuting the claim or an evidentiary hearing. See Johnson v. State, 14 So.3d 1282, 1283 (Fla. 2d DCA 2009) (reversing in part summary denial of rule 3.850 motion, including ground alleging counsel was ineffective for failing to sever charges, even if properly joined, where counsel failed to move to sever DUI counts from driving on a suspended license counts, which caused jury to be confronted with Johnson’s driving history, admitted to prove the driving on suspended license counts).

We affirm the summary denial of Defendant’s other two grounds without further discussion.

Affirmed in Part, Reversed in Part, and Remanded.

DAMOORGIAN, GERBER and LEVINE, JJ., concur.

      . In a footnote, Defendant conceded that the pros and cons list contained, as a negative, that the jury would know about the priors because he was charged with a felony DUI; however, he took the position that most jury panels would not include a juror who knew that, for a DUI to be prosecuted in circuit court, the defendant must have had prior DUI convictions.


text:
    Glenn Alan DAVIDOW, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2563.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Sloss v. State, 925 So.2d 419 (Fla. 5th DCA 2006).

STEVENSON, GERBER and CONNER, JJ., concur.