author: BLACK, Judge.

text:
    Trenton M. HERRON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-6025.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2012.

      James Marion Moorman, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Trenton Herron challenges his judgments and sentences for robbery with a firearm, grand theft motor vehicle, and felonious possession of firearms. Of the issues Herron raises on appeal, we find merit only in his argument that the trial court reversibly erred in failing to address his unequivocal requests to discharge appointed counsel and represent himself. As a result, we are compelled to reverse for a new trial.

Following appointment of regional counsel, Herron filed a handwritten motion seeking to dismiss his attorney and represent himself. The motion stated, in its entirety: “The Defendant, Trenton M. Herron, pro se[,] pursuant to rules 3.111(d) and 3.160(e) of Fla. R.Crim. P. (2010), does hereby waive his right to be represented by an attorney in the above styled cases and does ‘hereby asserts [sic] his constitutional right to represent himself as established in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).” A week later, Herron filed a second motion to dismiss counsel using a standard, pre-typed form similar to the form described by this court in Jackson v. State, 33 So.3d 833, 835 (Fla. 2d DCA 2010). Herron crossed through two portions of the form order, both of which asked for replacement counsel, again indicating his desire to represent himself.

Nothing in our record, including the clerk’s progress docket, indicates that a hearing was held or that the court ruled upon either motion.

“Under the United States Supreme Court’s ruling in Faretta, an accused has the right to self-representation at trial.” Tennis v. State, 997 So.2d 375, 377 (Fla.2008). “[O]nce a defendant elects to make an unequivocal request for self-representation, pursuant to Faretta and this Court’s precedent, the trial court is obligated to hold a hearing ‘to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.’ ” McCray v. State, 71 So.3d 848, 864 (Fla.2011) (quoting Tennis, 997 So.2d at 378). The “failure to take the preliminary step of holding a hearing on a defendant’s unequivocal pro se request results in per se reversible error.” Id.

There is no question that Herron’s initial motion to dismiss regional counsel was an unequivocal request to represent himself. Because the trial court committed per se reversible error in failing to hold a hearing on the motion, “our review is not amenable to a harmless error analysis,” and we must reverse and remand for a new trial. See Flournoy v. State, 47 So.3d 403, 403 (Fla. 2d DCA 2010); Cruz v. State, 59 So.3d 322, 322 (Fla. 3d DCA 2011).

In conjunction with his claim that the court failed to conduct a Faretta inquiry, Herron also argues that the court committed per se reversible error in failing to conduct a Nelson inquiry. Because our ruling on the Faretta issue necessitates a new trial, we need not address this second issue. We note only that a trial court reversibly errs when it denies a motion to dismiss counsel “without at least making a preliminary inquiry” pursuant to Nelson. Jackson, 33 So.3d at 835; see Torres v. State, 42 So.3d 910, 912 (Fla. 2d DCA 2010); Milkey v. State, 16 So.3d 172, 173-74 (Fla. 2d DCA 2009).

Finally, we are not persuaded by the State’s argument that Herron waived these issues by proceeding to trial with his appointed counsel. Florida Rule of Criminal Procedure 3.111(d)(2) provides:

A defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused’s comprehension of that offer and the accused’s capacity to make a knowing and intelligent waiver. Before determining whether the waiver is knowing and intelligent, the court shall advise the defendant of the disadvantages and dangers of self-representation.

(Emphasis added.)

Rule 3.111(d)(3) states that a court “shall not deny a defendant’s unequivocal request to represent himself ... if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel.” (Emphasis added.) Here, the trial court neither made a thorough inquiry nor a determination of record. See Lindsey v. State, 69 So.3d 363, 365 (Fla. 5th DCA 2011) (concluding a defendant “must still be made aware of the dangers and disadvantages of self-representation so that the record will establish the defendant made the choice with open eyes”). “This is not a case where the defendant ceased complaining about his counsel and proceeded to trial after having an opportunity to express to the court the reasons for his dissatisfaction with counsel.” Milkey, 16 So.3d at 178; see also State v. Kelly, 999 So.2d 1029, 1036 (Fla.2008) (reiterating the well-established principle that courts may not presume waiver of constitutional rights from a silent record); Lindsey, 69 So.3d at 366 (concluding that “the passage of a few months and a subsequent trial do not amount to a waiver” of a request to discharge counsel); Cf. Morrison v. State, 818 So.2d 432, 441 (Fla.2002) (concluding the court made sufficient inquiry into defendant’s motions where court gave defendant opportunity to express his concerns at a hearing); Lowe v. State, 650 So.2d 969, 975 (Fla.1994) (concluding no error where defendant told the court “[njever mind ... just forget it,” after being given an opportunity to discuss his motion to dismiss counsel).

Accordingly, because the trial court failed to conduct a Faretta inquiry, we are constrained to reverse the judgments and sentences and remand for a new trial.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Margaret GRASSO, individually and as a purported Cotrustee of the Olga Grasso Revocable Trust, and Michelle Grasso, individually and as a purported Cotrustee of the Olga Grasso Revocable Trust, Appellants, v. Olga T. GRASSO, Appellee.
    No. 2D11-1992.
    District Court of Appeal of Florida, Second District.
    March 9, 2012.

      Marie Tomassi and Bruce Marger of Trenam, Kempker, Scharf, Barkin, Frye, O’Neill & Mullins, P.A., St. Petersburg, for Appellants.
    Joseph W. Fleece, III, and Debra J. McPherson of Baskin Fleece, Clearwater, for Appellee.
   NORTHCUTT, Judge.

In this litigation over a trust, Margaret and Michelle Grasso appeal the circuit court’s order on their motion to dismiss for lack of personal and subject matter jurisdiction and its order temporarily enjoining them from disposing of trust assets. We dismiss the appeal of the former order, and we affirm the latter.

Olga Grasso, who for the most part is a Florida resident, created a trust while she was living in Oklahoma. Margaret Grasso is the widow of Olga’s son, and Michelle Grasso is Olga’s granddaughter. Both of them are residents of Oklahoma, and they variously are or were purported trustees of the aforementioned trust. Olga filed suit in Florida against Margaret and Michelle individually and in their capacities as trustees, and she sought a temporary injunction prohibiting them to sell or transfer trust assets.

The complaint, the motion for temporary injunction, and a notice of hearing on the motion were served in Oklahoma just a few days before the noticed hearing. Margaret and Michelle quickly retained Florida counsel, who entered a special appearance and filed a motion to dismiss for lack of personal and subject matter jurisdiction on the day of the hearing. At the conclusion of the hearing, the court determined that it would grant the temporary injunction and revisit it after it ruled on the defendants’ motion to dismiss. The court rendered a written order to that effect.

The circuit court heard the motion to dismiss several days later. After hearing argument, the court granted the motion with leave for Olga to amend her complaint. Margaret and Michelle timely appealed both nonfinal orders.

Florida Rule of Appellate Procedure 9.130(a)(S)(C)(i) confers jurisdiction on this court to review nonfinal orders that determine the jurisdiction of the person. See also Fla. R.App. P. 9.030(b)(1)(B). To the extent that the order on appeal addresses the issue of subject matter jurisdiction, it is not an appealable, nonfinal order. See generally Fla. R.App. P. 9.130. We have also concluded that the order is nonappealable because it does not actually determine jurisdiction at all. Rather, it grants a motion to dismiss but allows Olga time to amend her complaint, presumably to properly plead the existence of personal and subject matter jurisdiction. If the court had actually decided the jurisdictional issues, there would be no point in allowing such an amendment. In effect, the court has left its determination of jurisdiction for another day, and we lack jurisdiction under rule 9.130(a)(3)(C)(i) to review such a nonfinal order.

Accordingly, we dismiss the appeal as it pertains to the dismissal order. Recognizing the likelihood that the jurisdiction issues will again be presented in further proceedings below, we note that the affidavits filed in support of and in opposition to the motion to dismiss were in conflict regarding Michelle’s claimed status as the sole trustee of the trust and Olga’s assertion that she has never resigned or been disqualified or removed as a trustee. In such circumstances, the determination of a motion to dismiss for lack of personal jurisdiction would require a limited eviden-tiary hearing to resolve the disputes of fact. See Canale v. Rubin, 20 So.3d 463, 469 (Fla. 2d DCA 2009) (stating that where facts recited in a sworn affidavit cannot be reconciled with facts set forth in a sworn complaint, the court must hold an eviden-tiary hearing).

The temporary injunction is reviewable under rule 9.180(a)(3)(B). However, the appellants have not challenged the injunction on its merits. See, e.g., Kountze v. Kountze, 20 So.3d 428 (Fla. 2d DCA 2009) (reversing temporary injunction concerning use of trust assets where moving party did not present evidence on the four prongs that would authorize the injunction: (1) irreparable harm; (2) no adequate legal remedy; (3) clear right to relief; (4) public interest). Their only assertion in its regard is that the circuit court lacked jurisdiction to enter it for the reasons set forth in their motion to dismiss. Because those issues remain undecided, we affirm the temporary injunction with the understanding that the circuit court may revisit it after resolving the jurisdictional questions.

Dismissed in part; affirmed in part.

DAVIS and CRENSHAW, JJ., Concur.


text:
    Jonathan M. MORRELL, Appellant, v. Felicia A. MORRELL, Appellee.
    No. 2D10-3003.
    District Court of Appeal of Florida, Second District.
    March 14, 2012.

      Kevin M. Kohl of Kohl Law Group, Lake Wales, for Appellant.
    Shelley Harrell Shelton, Winter Haven, for Appellee.
   NORTHCUTT, Judge.

When Jonathan and Felicia Morrell’s marriage was dissolved in 2005, the final judgment incorporated their agreement concerning permanent periodic alimony to be paid to Mrs. Morrell. In 2009, Mr. Morrell filed a supplemental petition to reduce his monthly alimony obligation, alleging a substantial decline in his income since the entry of the final judgment. Mrs. Morrell in turn sought to hold her former husband in contempt for failure to pay alimony, and she requested attorney’s fees for the court proceedings. The circuit court denied the supplemental petition and granted Mrs. Morrell’s motion for fees. Mr. Morrell challenges both rulings. ' Because the order granting fees did not establish the amount to be awarded, it is not final and not appealable at this time. See McIlveen v. McIlveen, 644 So.2d 612 (Fla. 2d DCA 1994). We dismiss the appeal as it. pertains to that order. But we reverse the denial of Mr. Morrell’s modification petition.

The circuit court’s order denying the modification contains a finding not supported by competent substantial evidence, i.e., that Mr. Morrell was in a “supportive relationship.” We note that, for purposes of the alimony statute, a supportive relationship refers- only to a payee’s relationship, not to a payor’s. See § 61.14(l)(b)(l), Fla. Stat; (2009) (providing that a court may reduce or terminate alimony if “a supportive relationship has existed between the obligee and a person with whom the obligee resides”). The statute recognizes that “relationships do exist that provide economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances.” § 61.14(l)(b)(3). Thus, the “supportive relationship” concept is relevant only to the payee spouse’s need for alimony. See Baumann v. Baumann, 22 So.3d 719 (Fla. 2d DCA 2009) (discussing supportive relationships and the shifting burdens of proof concerning the recipient spouse’s needs once such a relationship is established).

That said, a live-in companion’s contributions to a party’s living expenses may be considered when assessing the party’s financial circumstances for purposes of support issues. See McCall v. McCall, 616 So.2d 607 (Fla. 2d DCA 1993). Here, however, there was no evidence that Mr. Morrell’s companion contributed to his living expenses.

Testimony at the hearing reflected that Mr. Morrell lived and worked in New York. He had a romantic relationship with a woman who lived in Florida. She purchased a two-family house in New York, which she jointly titled in his and her names for tax reasons. Mr. Morrell occupied one of the apartments in the house. He paid his friend rent in the same amount that the tenants paid for the other apartment, which was identical in size. Mr. Morrell’s companion visited him in New York and stayed in the house for approximately ten weeks, in 2010. But there was no proof that she in any way helped him with expenses. Indeed, the opposite was shown — he was paying her a seemingly reasonable rent for his residence.

The parties’ financial affidavits showed that Mr. Morrell’s income had declined since the parties entered into the marital settlement agreement and that his expenses exceeded his income. Mrs. Mor-rell’s income, including alimony, appeared to exceed her expenses. We recognize that the circuit court did not ascribe to Mr. Morrell a specific financial benefit based on his relationship. But the court’s finding that he was in a supportive relationship strongly suggests that it factored the relationship into its decision to deny Mr. Morrell’s modification petition. That finding, even if it were appropriately applied to a payor spouse, was simply unsupported by the evidence. See Buxton v. Buxton, 963 So.2d 950, 954 (Fla. 2d DCA 2007) (noting that in determining whether a supportive relationship exists, prior case law concerning cohabitation is helpful, and in those cases the question of support turned on whether either cohabitant benefitted financially from the other’s contributions).

We are unable to discern the extent to which the circuit court’s inaccurate finding that Mr. Morrell was in a supportive relationship affected its assessment of his financial circumstances. Therefore, we reverse the order denying the modification petition, and we remand with instructions to reconsider the petition without regard to Mr. Morrell’s relationship. See McCall, 616 So.2d at 608.

Reversed and remanded with directions.

DAVIS and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    John WERTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4536.
    District Court of Appeal of Florida, Second District.
    May 4, 2012.
    John Werts, pro se.
   PER CURIAM.

John Werts appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm; however, as to his claim alleging the improper forfeiture of gain time, our affirmance is without prejudice to pursue his administrative remedies with the Florida Department of Corrections. If he is unsuccessful after exhausting those remedies, he may seek mandamus relief in the appropriate circuit court. See State v. Taylor, 738 So.2d 988, 989 n. 1 (Fla. 2d DCA 1999); Alexander v. State, 697 So.2d 1017, 1017 (Fla. 4th DCA 1997).

Affirmed.

VILLANTI, KHOUZAM, and MORRIS, JJ., Concur.


author: KELLY, Judge.

text:
    Jose FERRER, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3050.
    District Court of Appeal of Florida, Second District.
    June 8, 2012.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Jose Ferrer appeals from his judgments and sentences for trafficking in marijuana, possession of a place used for trafficking, and renting a place used for trafficking. He argues that the trial court erred in denying his motion to suppress evidence collected pursuant to a search warrant that authorized a search of his home. He contends that because the information used to support the search warrant was obtained when officers engaged in an improper search of the curtilage of his home, the evidence seized pursuant to the warrant should be suppressed. We agree and accordingly reverse Ferrer’s judgment and sentences.

The evidence presented at the hearing on Ferrer’s motion to suppress established that he owned a two-story home in Collier County that officers from the sheriffs department suspected was being used to grow marijuana. Access to Ferrer’s property was barred by an electric gate at the end of the driveway and a fence around the perimeter of the land. Accordingly, the officers investigating Ferrer conducted surveillance from the vacant lot next door and from the street. While they were conducting surveillance, Ferrer came to the gate to retrieve some trash cans from the street. The officers approached him and spoke to him from outside the gate. The officer who spoke to Ferrer testified that he “spoke with the subject at the gate, advised him we believed there was criminal activity occurring at the residence, and asked if we could enter the property to speak with him about it.” The officer further testified that he “asked if we could speak to him on the other side of the gate.”

Ferrer opened the gate with a remote control. One of the officers asked Ferrer for identification and then followed him down the driveway that encircled the house so that Ferrer could get identification out of a car parked on one side of the house. While Ferrer and the officer went to retrieve the identification, two other officers went to the back of the house and up the stairs to the second story porch where they smelled marijuana. One of those officers claimed to have smelled marijuana from the bottom of the stairs. Based on the odor of marijuana, the officers detained Ferrer until they could obtain a warrant to search the house. The search yielded contraband that was the subject of the motion to suppress.

After the hearing, the court entered a written order denying the motion to suppress which contained no factual findings and no explanation for the denial. During the hearing, however, the court stated: “[0]n the evidence that I’ve heard, how did they get from inside the gate, [Prosecutor], meeting with him, which I said is appropriate, to the curtilage area to smell the marijuana?” Thus, while it is unclear what legal basis the trial court relied on to deny the motion, the court’s comments at the hearing indicate that as a factual matter, it recognized the limited scope of Ferrer’s consent.

Searches conducted without a warrant are per se unreasonable under the Fourth and Fourteenth Amendments unless they are conducted within one of the recognized exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Consent is one of those exceptions. A consensual search is manifestly reasonable so long as it remains within the scope of the consent. Florida v. Jimeno, 500 U.S. 248, 251-52, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id. at 251, 111 S.Ct. 1801 (citing Illinois v. Rodriguez, 497 U.S. 177, 183-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). “The scope of a search is generally defined by its expressed object.” Id. A consensual search may not legally exceed the scope of the consent supporting it. Walter v. United States, 447 U.S. 649, 656-57, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980); see also 4 Wayne R. LaFave, Search & Seizure § 8.1(c), at 32 (4th ed. 2004) (“[Cjonsent should be construed as authorizing only that intensity of police activity necessary to accomplish the stated purpose.”).

In this case, the officers asked Ferrer to open the gate so they could talk to him on the other side, and he agreed to that request. We conclude that it was not objectively reasonable for the officers to conclude that Ferrer’s limited consent to entry for the purposes of talking to them on the other side of the gate authorized them to roam freely around the property. See Soldo v. State, 583 So.2d 1080, 1082 (Fla. 3d DCA 1991) (holding that the permission given to the officer by the defendant to enter the residence and sit on the living room couch did not include consent to walk down a hallway to a back bedroom). Because the officers did not have permission for a search of the property, the trial court should have granted Ferrer’s motion to suppress.

We reject the State’s contention that once Ferrer open the locked gate, general “knoek-and-talk” principles authorized the deputies to proceed to the front door area. See, e.g., State v. Navarro, 19 So.3d 370, 372-73 (Fla. 2d DCA 2009). The State argues that because the officers were free to proceed to the front door of the house to knock and talk, the evidence of marijuana was legally obtained under the “plain smell” doctrine. The flaw in this argument is that it does not recognize that the deputies’ encounter with Ferrer at the gate was a knock and talk encounter. Rather than leaving his property open for any member of the public to enter, Ferrer had taken steps to keep out uninvited visitors by fencing it and erecting an electric gate across his driveway, thereby demonstrating an expectation of privacy. Cf. Nieminski v. State, 60 So.3d 521, 525-27 (Fla. 2d DCA 2011) (finding no violation of privacy where officers entered fenced property through a closed, but unlocked, gate). Thus, while officers were free to approach the gate to conduct a knock and talk — which they did — the area inside the fence fell under the same constitutional protections as the residence itself, and the officers were not at liberty, absent consent, to approach the residence. Compare Fernandez v. State, , 63 So.3d 881, 883-84 (Fla. 3d DCA 2011) (holding that the defendant had a reasonable expectation of privacy in the fenced yard adjacent to his residence and that the momentary opening of the gate to allow the defendant to leave was not an invitation for police to enter); with State v. Triana, 979 So.2d 1039, 1045 (Fla. 3d DCA 2008) (finding no constitutional violation where the police had a consensual encounter with the defendant outside of the locked gate to the defendant’s property and the defendant agreed to a search and opened the gate to allow the police to enter).

It is undisputed that the only thing Ferrer consented to was to speak to the officers “on the other side of the gate.” As explained above, when the officers proceeded to the front door they exceeded the scope of the consent given by Ferrer. The plain smell doctrine does not apply because the officers were not in a location where they had a legal right to be when they detected the odor. Cf. State v. Pereira, 967 So.2d 312, 314 (Fla. 3d DCA 2007) (holding that officers did not violate the defendant’s right to privacy by detecting the odor of marijuana from the front porch where the porch was not enclosed by a fence and was open to public access). Accordingly, we reverse the order denying Ferrer’s motion to suppress and remand with instructions to discharge Ferrer.

Reversed and remanded.

ALTENBERND and CRENSHAW, JJ„ Concur.


author: DAVIS, Judge.

text:
    Dwight DUBOSE, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4121.
    District Court of Appeal of Florida, Second District.
    June 8, 2012.
    Melissa Montle and Seth E. Miller, Innocence Project of Florida, Inc., Tallahassee, for Appellant.
   DAVIS, Judge.

Dwight Dubose appeals the summary denial of his motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 8.853. We reverse the postconviction court’s denial and remand for further proceedings.

On August 16, 2001, a jury convicted Dubose of first-degree murder and attempted robbery. He was sentenced to life imprisonment on the murder charge and a consecutive five-year term on the attempted robbery charge. On April 19, 2011, Dubose filed the current motion for DNA testing. After finding the motion to be facially sufficient, the postconviction court ordered a response from the State. Following the response, the postconviction court denied Dubose’s motion as well as a subsequently filed motion for rehearing.

In order to raise a facially sufficient claim pursuant to rule 3.853(b), a motion must include the following:

(1) a statement of the facts relied upon in support of the motion, including a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained;
(2) a statement that the evidence was not previously tested for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result establishing that the movant is not the person who committed the crime;
(3) a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the mov-ant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime;
(4) a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received;
(5) a statement of any other facts relevant to the motion; and
(6) a certificate that a copy of the motion has been served on the prosecuting authority.

The language pertaining to how the DNA testing will exonerate the defendant contained in subsections (3) and (4) has been interpreted to mean that DNA testing procedures should be allowed if the results would create a “reasonable probability that the defendant would have been acquitted if the DNA evidence had been admitted at trial.” Knighten v. State, 829 So.2d 249, 252 (Fla. 2d DCA 2002).

Ultimately, the validity of Dubose’s claim depends upon his ability to meet the standard prescribed in the rule and to show that identity was a genuinely disputed issue at trial. In his rule 3.853 motion, Dubose addressed how each piece of evidence for which he requested testing would produce evidence of his innocence. These items included the victim’s gloves, clothing, and left-hand fingernail exemplars. Dubose then recounted the facts of the crime, asserting that the assailant necessarily would have deposited his DNA on the victim’s hand, fingernails, gloves, and clothing. In support, Dubose noted that it was undisputed that for between as little as twenty seconds and as long as ten minutes, the assailant had the victim in a chokehold while the victim struggled to free himself. Dubose maintained that such a struggle would more likely than not have caused the assailant’s DNA to transfer to the victim’s clothing and would have involved the victim’s clawing at the assailant’s arms, thus transferring the assailant’s DNA to the victim’s fingernails.

In further support, Dubose noted that great weight is given to fingernail evidence and that Florida courts routinely have granted requests for DNA testing where there was even less concrete evidence of a struggle. See Schofield v. State, 861 So.2d 1244, 1245 (Fla. 2d DCA 2003) (concluding that in a case where the only evidence of physical contact was defensive stab wounds on the victim, DNA evidence revealing material from a third party “would create a reasonable probability that [the defendant] would [have been] acquitted”); Reddick v. State, 929 So.2d 34, 36 (Fla. 4th DCA 2006) (concluding that in a case where the victim was beaten and sexually assaulted, the presence of DNA from someone other than the defendant “would create a reasonable probability that [the defendant] would be acquitted of the charges”). Finally, Dubose alleged in his motion that while DNA found on the victim’s fingernails may be given greater weight, the same argument based on the nature of the struggle would support DNA testing of the victim’s clothing. Therefore, Dubose claimed that a foreign male DNA profile that excludes both himself and the victim would demonstrate that he could not have been the assailant.

With respect to the identification issue, Dubose was required to state and explain why “identification of the movant is a genuinely disputed issue in the case.” See Fla. R.Crim. P. 3.853(b)(4). Dubose conceded that four witnesses were introduced at trial, three of whom identified him as the assailant. However, Dubose claimed that he was arrested and convicted solely on the conflicting testimony of individuals who were convicted felons with additional felony charges pending at trial. Furthermore, Marcus Seymore, the first witness to come forward, was initially a suspect in the investigation. The two other witnesses who were able to later make an identification were acquaintances of Sey-more. Finally, the only witness not familiar with Seymore failed to identify Dubose either in a photopak or in court, claiming that it was too dark to make an identification despite the fact that he claimed to be only four feet away from the struggle. Taken as a whole, the four separate accounts of the crime were rife with inconsistencies regarding the details of the incident, the length of the struggle, and even the number of people involved.

In his motion, Dubose maintained that this court has stated that eyewitness identification of the defendant as the perpetrator does not remove any genuine dispute as to identity. See, e.g., Zollman v. State, 820 So.2d 1059, 1062 (Fla. 2d DCA 2002) (“[T]he fact that the victim identified Zollman as her assailant at trial does not mean that identity was not genuinely disputed at trial for purposes of postconviction DNA testing.”). In addition, Dubose maintained that this has been held to be the case even in situations where the defendant was identified by multiple eyewitnesses who also knew the defendant. See Ortiz v. State, 884 So.2d 70, 72 (Fla. 2d DCA 2004) (“Although Ortiz was apparently known to the victim, his identity as the perpetrator was at issue, and DNA testing would speak directly to this point....”); Knighten, 829 So.2d at 250 (holding that the trial court was incorrect in finding that identification was not at issue simply because both victims identified the movant as their attacker at trial). As such, Dubose claimed that in light of his continued assertions of innocence, identification was still a genuinely disputed issue.

Rule 3.853(c)(3) provides that upon review of the State’s response, the postcon-viction court must either enter an order on the merits or set a hearing. When the court does enter an order on the motion, it must make the findings outlined in rule 3.858(c)(5):

(A) Whether it has been shown that physical evidence that may contain DNA still exists.
(B) Whether the results of DNA testing of that physical evidence likely would be admissible at trial and whether there exists reliable proof to establish that the evidence containing the tested DNA is authentic and would be admissible at a future hearing.
(C) Whether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.

In this case, the postconviction court focused primarily on the fact that Dubose was positively identified by three separate witnesses. While one witness was unable to identify Dubose, all of the witnesses agreed that there was only one assailant involved in the actual murder, and no evidence was introduced that this assailant was anyone other than Dubose. In addition, the postconviction court found that the lack of Dubose’s DNA on the evidence at issue — or the existence of a third party’s DNA — would not conclusively establish anything. Finally, the post-conviction court noted that despite the potentially questionable credibility of the witnesses and inconsistencies in their testimonies, each witness was subject to cross-examination and Dubose’s counsel emphasized the inconsistency and credibility concerns in closing arguments. Ultimately, the jury accepted the testimony as viable. Having examined the trial evidence, the postconviction court concluded that Dubose had not demonstrated that he would have been acquitted had this new DNA evidence been admitted at his trial.

However, despite the postconviction court’s findings, neither its order nor the attachments thereto conclusively refute Dubose’s claim that the items at issue would contain the DNA of the assailant or that this DNA would result in Dubose’s acquittal. The aforementioned decisions of this court establish that rule 3.853 is not to be construed in a manner that would bar testing based on the notion that it might substitute a postconviction court’s judgment for that of the jury. On the contrary, it offers a chance to ensure the validity of the jury’s verdict in certain unique situations. Dubose has shown that his is that type of situation; based on the nature of the crime, inconsistencies between testimony, and the questionable credibility of the witnesses, identification is indeed a genuinely disputed fact, and there is a reasonable probability that DNA evidence would have acquitted him.

Because Dubose has raised a facially sufficient claim for postconviction DNA testing under rule 3.853(b), we reverse the postconviction court’s denial and remand for an evidentiary hearing pursuant to rule 3.853(c).

Reversed and remanded.

VILLANTI and MORRIS, JJ., Concur.

      . The victim’s left glove was found on the ground, leaving his left hand exposed.


author: WHATLEY, Judge.

text:
    James Robert MOULTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3189.
    District Court of Appeal of Florida, Second District.
    June 8, 2012.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Appellate counsel for James Robert Moulton filed his brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm without comment Moulton’s judgments and sentences, but we remand for the trial court to correct a form titled, “Findings on Specified Sex Offenses.” This form provides trial courts with a checklist to make specific findings which courts are required to do in accordance with section 943.0435(l)(a), Florida Statutes (2007), which provides for the registration of sexual offenders with the Department of Law Enforcement.

In circuit court case number CRC08-16250CFANO, Moulton entered a guilty plea to lewd or lascivious conduct, § 800.04(6), Fla. Stat. (2007), lewd or lascivious exhibition, § 800.04(7), and contributing to the delinquency of child, § 827.04(1), Fla. Stat. (2007). On the form “Findings on Specified Sex Offenses,” section A is correctly completed, but sections B and C of the form are checked, incorrectly indicating that Moulton was convicted of lewd or lascivious battery, § 800.04(4), and lewd or lascivious molestation, § 800.04(5).

In circuit court case number CRC08-02283CFANO, Moulton entered a guilty plea to three counts of attempted capital sexual battery, § 794.011, Fla. Stat. (2007), and three counts of contributing to the delinquency of a child, § 827.04(1). On the form “Findings on Specified Sex Offenses,” section A again is correctly completed, but section B of the form is checked, incorrectly indicating that Moulton was convicted of lewd or lascivious battery.

Accordingly, we remand this case for the trial court to correct the form in both cases.

Judgments and sentences affirmed; remanded for correction of form titled “Findings on Specified Sex Offenses.”

DAVIS and WALLACE, JJ., Concur.


text:
    Cesely BAEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1022.
    District Court of Appeal of Florida, Second District.
    June 8, 2012.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Cesely Baez appeals her judgments and sentences for robbery and attempted robbery following the revocation of her community control/probation. We affirm the order revoking Baez’s community control/probation without further comment. However, we agree with Baez, and the State concedes, that remand is required to correct a scrivener’s error in the amended judgment and for entry of an amended revocation order.

The trial court granted Baez’s motion to correct sentencing error filed under Florida Rule of Criminal Procedure 3.800(b) and ordered that Baez’s sentence for attempted robbery (count II), a third-degree felony, be reduced from fifteen to five years’ imprisonment. See §§ 812.13(2)(c), 777.04(4)(d), 775.082(3)(d), Fla. Stat. (2009). The amended judgment, however, continues to show attempted robbery as a second-degree felony instead of a third-degree felony. We therefore remand with instructions to correct the amended judgment to properly reflect the degree of this felony conviction. Upon remand, the trial court is also directed to enter an amended revocation order accurately reflecting Baez’s five-year sentence on count II.

Affirmed; remanded with directions.

ALTENBERND and KHOUZAM, JJ., Concur.


text:
    James ROBERTS, a/k/a James Lewis Roberts, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5201.
    District Court of Appeal of Florida, Second District.
    June 27, 2012.

      James Roberts, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

James Roberts appeals the denial of his motion for postconviction relief, which he filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse and remand in part.

Roberts’ pro se motion asserted four grounds for relief: his sentence was illegal (ground 1), his due process rights were violated (ground 2), his Fourth Amendment rights were violated (ground 3), and his trial counsel was ineffective (ground 4). This fourth ground was divided into fourteen subclaims.

Initially, the postconviction court denied grounds 2 and 3, finding them procedurally barred, and those claims are not the subject of Roberts’ appeal. The court ordered the State to respond to grounds 1 and 4. After the State filed its response, the court granted Roberts a hearing on two sub-claims: claim 4(C), alleging ineffective assistance of counsel for failure to call witness Travis Downey to testify at trial; and claim 4(M), alleging ineffective assistance of counsel for failure to object to certain costs imposed at sentencing. At that point, the postconviction court’s order did not dispose of any of the other pending claims.

After an evidentiary hearing, the post-conviction court denied Roberts relief on claim 4(C) and granted him relief on claim 4(M) by vacating certain costs. We affirm without discussion the postconviction court’s ruling on claim 4(C). However, the court’s final order also summarily denied all other pending claims without any explanation, nor was one provided at the hearing. Roberts argues in this appeal that the court erred in its summary denial of those claims. We agree and reverse and remand for further proceedings as to those claims.

In its response to Roberts’ postconviction motion below, the State argued that the court should deny ground 1, as well as claims 4(A), (B), (D), (E), (F), (G), (I), (J), (K), (L), and (N) because they were allegedly refuted by the record. The State’s response argued that claim 4(H) was facially insufficient, but acknowledged that a facially insufficient claim should be dismissed with leave to amend. The postcon-viction court’s order summarily denied all these claims without leave to amend and without stating the basis for denial. Under the facts of this case, this was error since it effectively foreclosed our ability to fully review the order on appeal.

If a postconviction court denies a claim as facially insufficient, it must grant the defendant an opportunity to amend the motion within a specified period of time. Spera v. State, 971 So.2d 754, 761 (Fla.2007). And if the court summarily denies a facially sufficient claim based on the record, it must either state its rationale in its order or attach those parts of the record that conclusively refute each of the defendant’s claims. See Barnes v. State, 38 So.3d 218, 219 (Fla. 2d DCA 2010); Holley v. State, 67 So.3d 443 (Fla. 4th DCA 2011). Here, the postconviction court did neither.

We recognize that the rules of criminal procedure do not preclude a post-conviction court’s order from simply adopting and incorporating the State’s response — without having to make specific findings or attaching records to its order— when the State has provided record documents that conclusively refute a claim. See, e.g., Barnes, 38 So.3d at 219-20; Thier v. State, 84 So.3d 365 (Fla. 4th DCA 2012). However, in this case the order did not expressly adopt and incorporate the State’s response. Additionally, we cannot simply conclude based on the record that the postconviction court sub silentio adopted or incorporated the State’s response as part of its order. For example, the State’s response specifically stated that claim 4(H) should be dismissed as facially insufficient, but that Roberts should be granted leave to amend that claim. Yet, the court’s order summarily denied all remaining claims and inexplicably ignored the State’s response as to claim 4(H). Thus, on these facts we cannot infer — nor should we have to — the postconviction court’s reasons for denying the claims as we cannot with certainty conclude that the postconviction court implicitly adopted and incorporated the State’s response.

We therefore reverse and remand for specific consideration of the claims that were summarily denied after the State filed its response. If the court again summarily denies those claims, its order shall explain the rationale for its denial, or it shall attach those portions of the record that conclusively refute those claims.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

VILLANTI, LaROSE, and CRENSHAW, JJ., Concur.

      . As we have done in the past, we again reiterate "that the better practice is for the court to either attach those specific parts of the record that refute each claim or to discuss its rationale in its order.” Barnes, 38 So.3d at 220.


text:
    Luis A. ROMERO, Appellant, v. ERIK G. ABRAHAMSON, P.A., and Uiterwyk & Barnes, P.A., d/b/a Abrahamson, Uiterwyk & Barnes; Medical Rehabilitation Centers of Florida, Inc., Appellees.
    No. 2D11-5037.
    District Court of Appeal of Florida, Second District.
    July 11, 2012.

      Luis A. Romero, pro se.
    Justin W. Pimenta of Abrahamson & Uiterwyk, Tampa, for Appellees Erik G. Abrahamson, P.A., and Uiterwyk & Barnes, P.A. d/b/a Abrahamson, Uiterwyk & Barnes.
    No appearance for remaining Appellee.
   DAVIS, Judge.

Luis A. Romero challenges the trial court’s nonfinal case management order in the action between Romero and plaintiffs below, Erik A. Abrahamson, P.A., and Ui-terwyk & Barnes, P.A., d/b/a Abrahamson, Uiterwyk & Barnes (collectively “the law firm”). In the order, the trial court restricted the parties from communication with noncourt personnel regarding issues related to the litigation. Because on its face the order exceeds the scope of case management by preventing the parties from engaging in future case-related speech without making the necessary findings to support the entry of an injunction, we reverse.

Romero initially sought to collect money he claimed the law firm owed him and his medical clinic. Eventually the law firm brought an action against Romero, and it is alleged that during the litigation Romero engaged in tactics such as picketing outside the law firm and posting derogatory comments about the law firm and the pending case online. As a result, the law firm twice sought a temporary injunction to prevent Romero from engaging in activities related to dispersing defamatory information about the firm. The trial court denied both motions. The second motion was denied in conjunction with a case management hearing, after which the trial court entered the instant case management order that purports to prevent Romero from speaking about the case in the future to anyone other than court personnel.

On appeal, Romero argues that this case management order is an injunction resulting in the prior restraint of his speech-related activities and that it thus violates his First Amendment rights. He further argues that the trial court failed to make the specific findings that are statutorily required before speech can be enjoined. The law firm, however, argues that the order is merely a case management order in which the trial court sought to protect the discovery process from Romero’s future picketing and online activity.

We conclude that by granting the same relief requested in the second motion for temporary injunction, which the trial court simultaneously denied, the order on appeal, on its face, goes beyond the stated intent of case management. See generally Fla. R. Civ. P. 1.200. We therefore agree with Romero that the order is an injunction for the purposes of this review. Accordingly, we must determine whether the injunction is an unauthorized prior restraint on speech or whether it is a proper exercise of the trial court’s authority to control the dissemination of information gleaned through the court’s process or as a protection of that process. See Forrest v. Citi Residential Lending, Inc., 73 So.3d 269, 275-76 (Fla. 2d DCA 2011).

In Forrest, this court affirmed the trial court’s injunction specifically prohibiting the dissemination of information gleaned from the discovery process. Id. at 277. By contrast, the prohibition in the instant order goes beyond information learned in discovery and broadly prohibits “any communication regarding any and all issues involved in or related to the subject action with any person outside the [cjourt process.” The order restricted Romero’s otherwise protected speech. Such limitations on protected speech must be considered presumptively invalid and may be justified only if the purpose that is intended to be accomplished is a compelling state interest and does so by the least restrictive means. See Animal Rights Found. of Fla., Inc. v. Siegel, 867 So.2d 451, 457 (Fla. 5th DCA 2004) (reversing injunction which resulted in a prior restraint of constitutionally protected freedom of expression and noting that “[u]nder strict scrutiny, ... a court must review the [regulation] to ensure that it furthers a compelling state interest through the least intrusive means” (second alteration in the original) (internal quotation marks omitted)). Thus the order is one of prior restraint, and it is clear from the trial court’s denial of the two motions for temporary injunction that the necessary findings required to prevent Romero from engaging in such future speech were not made by the trial court before entering the order. See Animal Rights Found., 867 So.2d at 454-55 (applying the applicable standards that must be proven in granting a temporary injunction prohibiting picketing and speech).

Accordingly, we reverse the trial court’s order that prevents Romero from engaging in future case-related speech.

Reversed.

WHATLEY and WALLACE, JJ., Concur.

      . We treat this order as one related to an injunction and have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B).

      . We note that nothing in this opinion should be read to conclude that the trial court could not have made the necessary findings and entered an order of temporary injunction.


text:
    STATE of Florida, Appellant, v. Robert C. LEIGHTON, Appellee.
    No. 2D11-1372.
    District Court of Appeal of Florida, Second District.
    July 20, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   PER CURIAM.

Dismissed as moot.

NORTHCUTT, KELLY, and BLACK, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Michael ESTRADA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4149.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2012.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Michael Estrada appeals his conviction and sentence for robbery with a weapon for an incident that occurred on June 19, 2009. After sentencing, Mr. Estrada filed a timely pro se motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(7), which was denied after a hearing at which the prosecutor appeared and Mr. Estrada appeared without representation. We reverse the denial of the motion to withdraw plea and remand for the appointment of conflict-free counsel.

At the time Mr. Estrada filed his pro se motion to withdraw plea, his appointed trial counsel had not filed a notice of appeal on behalf of Mr. Estrada and the time for filing a notice of appeal had not expired. Nothing in the appellate record reflects that Mr. Estrada’s appointed counsel had sought to withdraw from representation, that counsel had been discharged from representation, or that substitute counsel had been obtained or appointed. Thus, trial counsel’s obligation to Mr. Estrada was not at an end. See Fla. R.Crim. P. 3.111(e)(1)(A), (e)(3). Unfortunately, it appears that Mr. Estrada’s counsel was not provided with the writ of habeas corpus ad prosequendum, which included the time, date, and place of the hearing on Mr. Estrada’s pro se motion to withdraw plea, or with any other notice of hearing on the motion to withdraw plea.

The hearing on the motion to withdraw plea was a critical stage of the proceeding at which Mr. Estrada was entitled to be present and to have counsel represent him. See Kepford v. State, 64 So.3d 189, 192 (Fla. 2d DCA 2011). As in Kepford, the defendant’s written motion in conjunction with his allegations at the hearing demonstrated an adversarial relationship between himself and his attorney. Therefore, as we did in Kepford, we reverse the denial of the motion to withdraw plea and remand for the trial court to allow Mr. Estrada to present his motion or an amended motion with the assistance of conflict-free counsel.

We note that Mr. Estrada entered a guilty plea to robbery with a weapon in exchange for an agreed-upon disposition of ten years’ imprisonment as a habitual felony offender. The State also expressly waived a prison releasee reoffender disposition. Mr. Estrada could face a sentence of life imprisonment on this first-degree felony if he qualifies for sentencing as a habitual offender, and he could face a mandatory minimum term of thirty years’ imprisonment if he qualifies for sentencing as a prison releasee reoffender. Conflict counsel might be able to assist Mr. Estrada in making a decision as to whether it would be in his best interest to seek a withdrawal of his plea.

Reversed and remanded.

SILBERMAN, C.J., and DAVIS, J., concur.


text:
    STATE of Florida, Appellant, v. Ronald JACKSON, Appellee.
    No. 2D11-5597.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
   PER CURIAM.

We reverse the order granting Ronald Jackson’s motion to dismiss on the basis that section 898.13, Florida Statutes (2011), is unconstitutional. See State v. Adkins, 96 So.3d 412 (Fla.2012). We remand for further proceedings.

Reversed and remanded.

NORTHCUTT, LaROSE, and CRENSHAW, JJ., Concur.


text:
    AVANTE AT BOCA RATON, INC.; Avante at Inverness, Inc.; Avante Villa at Jacksonville Beach, Inc.; Avante at Lake Worth, Inc.; Avante at Leesburg, Inc.; Avante at Melbourne, Inc.; Avante at Mt. Dora, Inc.; Avante at Orlando, Inc.; Avante at Ormond Beach, Inc.; and Avante at St. Cloud., Inc., Appellants, v. SENIOR CARE PHARMACY OF FLORIDA, LLC, Appellee.
    No. 2D11-220.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2012.

      Gary M. Farmer, Sr., of Farmer Jaffe Weissing Edwards Fistos & Lehrman, P.L., Fort Lauderdale, for Appellants.
    Peter C. Vilmos and Sheena A. Thakrar of Burr & Forman, LLP, Orlando, and Stephen J. Bumgarner, of Burr & Forman, LLP, Birmingham, Alabama, and Dale R. Sisco of Sisco-Law, Tampa, for Appellee.
   DAVIS, Judge.

Avante at Boca Raton, Inc.; Avante at Inverness, Inc.; Avante Villa at Jacksonville Beach, Inc.; Avante at Lake Worth, Inc.; Avante at Leesburg, Inc.; Avante at Melbourne, Inc.; Avante at Mt. Dora, Inc.; Avante at Orlando, Inc.; Avante at Or-mond Beach, Inc.; and Avante at St. Cloud, Inc. (collectively, the Nursing Homes), challenge the final judgment entered after jury trial in favor of Senior Care Pharmacy of Florida, LLC. The final judgment awarded Senior Care $1,608,104.72 on a breach of contract claim. We reverse and remand.

Senior Care is a pharmaceutical company that sells medications and related services to nursing homes, assisted living facilities, and specialty care assisted living facilities. Each of the Avante Nursing Homes entered into a separate contract with Senior Care for the purchase of medications needed for their nursing home residents. Senior Care performed pursuant to the contracts by delivering medications to the Nursing Homes and invoicing the Nursing Homes accordingly. And initially, the Nursing Homes paid the invoiced amounts.

However, there came a time when the Nursing Homes stopped paying the invoices, complaining that they were being overcharged. The parties met and entered into a.stipulation whereby the Nursing Homes would immediately pay Senior Care $470,000 in at least partial payment of their obligation and, in return, Senior Care would provide the Nursing Homes with the necessary documents to determine what remaining amount, if any, they owed under the contract. During these discussions, it became obvious to the parties that they had a difference of opinion as to what the contract term describing the price to be charged actually meant.

The contract specified that Senior Care would charge and the Nursing Homes would pay the “Pharmacy’s current usual and customary charge to Medicaid.” Senior Care understood this to mean that the contract price would be the normal charge that Senior Care would invoice when Medicaid was to pay for a prescription whether or not Medicaid actually paid the full amount of the invoice. The Nursing Homes’ position was that .this term, as used in the industry, meant that the contract price was to be the amount that Medicaid would actually pay (reimburse) for a prescription. This amount may be a lesser amount than what Senior Care invoiced when Medicaid was involved. Based on their understanding of the contractual provision, the Nursing Homes argued that the invoices were in excess of the amount they agreed to pay under the contract.

Once it became apparent that the parties would be unable to resolve their different understandings of the contract term, Senior Care filed its complaint, alleging one count of breach of contract and one count of open account. The Nursing Homes filed their answer, denying (1) that they had failed to pay in accordance with the agreement, (2) that Senior Care had billed in accordance with the agreement, and (3) that the amounts billed were based on an agreed-upon sales price. Additionally, the Nursing Homes raised several affirmative defenses. The underlying theory of the affirmative defenses was that Senior Care had not billed pursuant to the term of the contract as the Nursing Homes understood it. They alleged (1) that Senior Care had waived its rights under the contract by breaching the pricing term, (2) that Senior Care had failed to fulfill the conditions precedent by sending improper invoices, (3) that the Nursing Homes had fully paid for the medications based on the terms of the contract, and (4) that Senior Care was precluded from alleging a breach of the contract by the Nursing Homes because Senior Care breached the contract first by sending invoices for amounts that exceeded the agreed-to price. It is clear from the pleadings that the issue to be resolved by the trial court was the meaning of the contractual term “current usual and customary charge to Medicaid.”

Prior to trial, the trial court determined that the contractual term was ambiguous. The court concluded that the term was susceptible to two potential meanings and that parol evidence would be received to determine the intent of the parties. The case then proceeded to a jury trial on the two counts. At issue in the breach of contract claim was the meaning of the pricing provision of the contract and once that was determined, the amount of damages, if any, that Senior Care should recover for the Nursing Homes’ failure to meet their contractual obligations.

At trial, witnesses for Senior Care testified as to the meaning of the term “current usual and customary charge.” The evidence presented showed that Senior Care believed that term to mean the actual amount it charged Medicaid, which was the average wholesale price (AWP), a figure provided by a national data service, less 10% plus a $4.75 dispensing fee per prescription. Senior Care showed that this was the charge it submitted for the Medicaid-paid medications but also acknowledged that Medicaid did not always pay (reimburse) the full amount invoiced.

To that end, witnesses, including a Senior Care co-owner, testified that Medicaid determines what amount it actually pays (reimburses) for a prescription pursuant to a procedure described in its own program’s handbook. Under the specified procedure, Medicaid reimburses the lesser of the prices resulting from application of three different formulas, one being an AWP formula that is calculated differently than the AWP formula Senior Care uses to invoice Medicaid. According to the Nursing Homes’ evidence, the AWP formula used by Medicaid is AWP less 15.45% plus a dispensing fee of $4.23 per prescription. The other two formulas considered by Medicaid in arriving at its reimbursement price are the wholesale acquisition cost (WAC) and the maximum allowable cost (MAC). Because Medicaid pays (reimburses) the lesser of the three prices resulting from these formulas, in some instances the amount actually paid by Medicaid may be less than the amount billed by Senior Care.

While •witnesses for both parties agreed with the above described explanation of how Medicaid determines the amount it actually pays for a prescription, the parties differed as to whether the price they agreed upon in their contract was actually the AWP formula charged by Senior Care or the amount reimbursed by Medicaid. Representatives from the Nursing Homes did acknowledge that they had received medications for which they owed something, but they insisted that such did not amount to a breach of contract because the amounts invoiced exceeded the prices they agreed to pay in the contract.

At the conclusion of all the evidence, Senior Care moved for a directed verdict on both the breach of contract and that amount of any resulting damages, but the trial court initially denied the motions. However, in considering the jury instructions a lengthy discussion ensued regarding the status of the case. Counsel for the Nursing Homes suggested to the tidal court that if the jury agreed with them on the meaning of the contractual term — that it was the actual amount reimbursed by Medicaid after Medicaid applied its three formulas — a $0 verdict would have to be entered because Senior Care had failed to present any evidence from which the jury could determine damages. Counsel for Senior Care, on the other hand, argued that because it was the Nursing Homes’ position that the contract provision meant the amount Medicaid actually paid, it was the Nursing Homes’ burden to present evidence that would provide the jury the basis for determining damages based on that theory. Senior Care then moved to amend its motion for directed verdict, asking that the trial court determine that there had been a breach of the 'contract leaving only the issue of damages to be considered by the jury.

The trial court agreed with counsel for Senior Care and essentially entered a “directed verdict” on liability. The trial court did not specifically grant the motion, but by its ruling on the jury instructions, it is clear that the trial court concluded that the Nursing Homes had breached the contract. That is, the jury was instructed how to calculate damages if it agreed with Senior Care’s interpretation of the pricing term of the contract and how to calculate damages if it agreed with the Nursing Homes’ position. The jury was not asked if there had been a breach of the contract. During the discussion, the trial court noted that there was a contract, that Senior Care had performed under the contract, and that the Nursing Homes had acknowledged that they owed some amount for the products they received under the contract. The court therefore concluded that the Nursing Homes had admitted to breaching the contract and that the only remaining issue was damages.

The trial court further reasoned that because the' only evidence presented to the jury of how to calculate the damages was Senior Care’s version of the AWP formula (AWP - 10% + $4.75) and Medicaid’s version of the AWP formula (AWP - 15.45% + $4.28), the jury had to determine which interpretation to give to the contract term and then apply the associated formula and ascertain the amount of damages.

Therefore, when the trial court charged the jury as to the meaning of the term “current usual and customary charge” for this contractual relationship, the court instructed that if the jury agreed with Senior Care that the contract called for the prescriptions to be priced at the normal charge it made to Medicaid (AWP -10% + $4.75), then the damages would be $1,249,720.26. The trial court further instructed the jury that if it agreed with the Nursing Homes’ definition of the contract price — the amount Medicaid actually pays for such a prescription — the damages would be $1,249,720.26 “less [5.4%] of the total amount billed, less an additional [$.52] for each hundred thousand prescriptions filled.” This instruction was based on the trial court’s conclusion that the only evidence of the amount actually paid by Medicaid was the Nursing Homes’ version of the AWP formula.

The jury returned a verdict adopting the Nursing Homes’ interpretation of the contract pricing term and awarding damages as calculated under Medicaid’s AWP formula. This damage calculation was consistent with the trial court’s instructions.

On appéal, the Nursing Homes argue that the trial court erred in entering a directed verdict as to the breach of contract issue. The Nursing Homes maintain that the pricing term was an essential part of the contract and that until the jury decided which interpretation applied, neither the jury nor the court could determine if there was a breach. We agree.

Until the jury determined the meaning of the pricing term of the contract and what amount was owed pursuant to the contract, it could not make a finding as to whether the Nursing Homes had, in fact, breached the contract by failing to pay that amount. Had the jury found that Senior Care’s version of the AWP formula was the proper interpretation of the contract’s pricing term, the breach of contract and the damages would have been proven. However, if the jury were to find — as it ultimately did — that the contract’s pricing term meant the amount actually paid by Medicaid, then the jury could not determine if, in fact, the Nursing Homes had breached the contract because it was not presented any evidence as to what would be the prices under the WAC and MAC formulas. Without evidence of all three formulas, the jury could not ascertain the actual amount reimbursed by Medicaid and consequently could not determine if the Nursing Homes had breached by failing to pay that amount.

The Nursing Homes further argue on appeal that the trial court erred in concluding that the burden for providing the evidence of all three formulas belonged to them. The Nursing Homes maintain that it was Senior Care’s duty to present evidence that would enable the jury to determine, first, whether there was a breach of contract and second, the amount of any damages that may have resulted. Again, we agree.

“It is well-settled in Florida law that the plaintiff is required to prove every material allegation of its complaint which is denied by the party defending against the claim.” Berg v. Bridle Path Homeowners Ass’n, 809 So.2d 32, 34 (Fla. 4th DCA 2002). Furthermore, “[i]t is ... the plaintiffs burden in a case to establish proof of damages by competent evidence.” R & B Holding Co. v. Christopher Adver. Grp., 994 So.2d 329, 335 (Fla. 3d DCA 2008). Senior Care’s failure to present evidence of all three formulas employed by Medicaid in arriving at the amount it pays for prescriptions not only precluded the jury from determining whether the Nursing Homes breached the contract, it also limited the jury’s ability to calculate the amount of damages that should be awarded if in fact there was a breach.

Because the trial court erred in entering the directed verdict as to the breach of contract, we reverse the final judgment and the finding that Senior Care was the prevailing party, and we remand for further proceedings consistent with this opinion. We do note that in any further proceedings, the definition of the contractual term “current usual and customary charge to Medicaid” has been determined by the jury’s verdict.

Reversed and remanded.

NORTHCUTT and WALLACE, JJ., Concur.

      . The prescriptions at issue in this case were to be used by the Nursing Homes’ residents who were covered by Medicare. Medicare pays a per diem amount to the Nursing Homes for each resident's care, and the Nursing Homes are responsible for providing the prescribed medication to the resident. Accordingly, the contracts to purchase the medications are between Senior Care and each individual Avante Nursing Home.

      . See Florida Medicaid Prescribed Drug Services Coverage Limitations and Reimbursement Handbook (2001).

      . During their case, the Nursing Homes attempted to enter into evidence a computer compilation showing the prices for each of the prescriptions under each of the three formulas that are used by Medicaid. However, upon objection by Senior Care the compilation was excluded. This was the only evidence of the application of the WAC and MAC formulas. The Nursing Homes challenge the trial court’s exclusion of this evidence. However, our disposition here moots that issue, and we do not address it.

      . The trial court also entered directed verdicts against the Nursing Homes on each of their affirmative defenses. Since the jury had not yet determined the amount that Senior Care was entitled to charge under the contract, the directed verdict on the Nursing Homes’ affirmative defense that Senior Care breached the contract first by overcharging was also premature. However, the Nursing Homes did not put forth this argument on appeal.

      . We note that the trial court was given the opportunity to resolve these issues when the Nursing Homes filed their posttrial motions for directed verdict and new trial on damages. The trial court denied both motions: however, these rulings have not been challenged on appeal.


text:
    T.A.W., Appellant, v. STATE of Florida, Appellee. D.B.W., Appellant, v. State of Florida, Appellee.
    Nos. 2D11-4585, 2D11-4613.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 2012.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

T.A.W. and D.B.W. each appeal orders withholding adjudication of delinquency and dispositions placing them on probation. Their petitions each allege that the two teenagers committed burglary of an occupied dwelling. The two cases were tried together, and we consolidate the two appeals for purposes of this opinion. We reverse the orders, concluding that the trial court should have granted the motions for judgment of dismissal.

■ On May 28, 2011, at approximately 9:00 p.m., these two teenagers, a girl and a boy, quietly stepped up on the front porch and approached the door of a small home owned by an elderly woman. It is undisputed that D.B.W. kicked the door. The door frame broke, and the door came open. He testified that he put his back to the door and kicked it hard with his foot. He left a footprint on the door that is consistent with his explanation.

The woman inside the small house was in the front room, but she was sitting in a day bed and was facing a television on the wall opposite the door. She may have been dozing off while watching the TV when the teenagers came to the door. There is no question that she was very startled and upset by this intrusion. Her testimony is somewhat confusing, but she believes that at least one person was at the door and that the person was a short distance inside the doorway for a brief time. Her neighbor apparently heard the noise and called out. The two teenagers ran off and were apprehended by the police a few minutes later on a nearby street.

Both teenagers testified at the trial. They testified that they were playing a “game” of knock-and-run. D.B.W. admitted that he hit the door hard with his foot, but denied that he intended to break the door or cause it to open. T.A.W. claimed that she was back from the door and was merely watching the game. Both teenagers denied that D.B.W. entered the home.

The trial court did not believe that the teenagers were telling the truth about the “game” and was understandably concerned that they had frightened the elderly woman. The court withheld adjudication for burglary of an occupied structure and placed the two teenagers on probation for an indefinite period, not to exceed their nineteenth birthdays. Both teenagers appeal these rulings.

We note that it is likely the State could have charged one or both teenagers with criminal mischief, but it did not. See § 806.13, Fla. Stat. (2010). In order to prove burglary, the State had to prove that the teenagers entered the home for the purpose of committing an offense therein. See § 810.02, Fla. Stat. (2010). Burglary, of course, is a specific intent crime. See Presley v. State, 388 So.2d 1385, 1386 (Fla. 2d DCA 1980). Thus, the State must establish that, at the time of entry, the teenagers had the specific intent to commit some offense inside the dwelling. See State v. Waters, 436 So.2d 66, 69 (Fla.1983).

In many burglary cases, the defendant actually commits a theft or other crime inside the dwelling. In such a case, establishing intent is less difficult. In this case, the State emphasizes that the teenagers stepped onto the porch in a “stealthy” manner. While it is true that stealthily entering a structure can create prima facie evidence of intent to commit an offense inside the structure, we are unconvinced that the teenagers’ stealth in stepping on the outside porch, which was apparently available to the public, satisfies this statute. See § 810.07(1). This is particularly true given the very noisy manner in which the door itself was opened.

As a result, the evidence of intent in this case is completely circumstantial. In such a situation, the State was required to present proof not only consistent with its theory of the case, but also inconsistent with any reasonable hypothesis of innocence. See E.T.R. v. State, 873 So.2d 571, 572 (Fla. 2d DCA 2004); R.R.W. v. State, 915 So.2d 633, 634 (Fla. 2d DCA 2005).

The trial court never stated the offense that it believed the teenagers intended to commit inside the home. The evidence in the light most favorable to the State indicated that D.B.W. was inches inside this home for a matter of seconds. The evidence simply does not refute the reasonable explanation that the teenagers were playing an ill-advised prank that went astray. Even if the trial court did not believe this testimony, there is no other evidence to establish an intent to commit an offense at the time of entry. Under the standards described in E.A.B. v. State, 851 So.2d 308 (Fla. 2d DCA 2003), the teenagers were both entitled to a dismissal at the end of the trial.

Because trespass is a lesser offense of burglary, we have considered whether the trial court could enter similar orders on remand based on this lesser offense. See Fla. R. Juv. P. 8.110Q). Trespass requires proof that the accused entered the property “willfully.” § 810.08. There is no evidence in this record to suggest that the teenagers were trespassing when they were walking onto the front porch of this house and up to the door. From the evidence presented, and for reasons similar to those discussed above, the State did not prove that D.B.W. willfully entered the home. Instead, there is a reasonable possibility that he simply lost his balance when he was kicking on the door and accidentally stepped inside when the door broke open.

These two teenagers should be ashamed of their ill-advised conduct, but the State did not establish that the conduct rose to the level of burglary of an occupied dwelling.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ, Concur.