author: GROSS, C.J.

text:
    Louis W. DORCELY, Appellant, v. STATE of Florida DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION and Thrity Malhotra, Appellees.
    No. 4D08-4472.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.

      Arthur Vincent, Fort Lauderdale, for appellant.
    Garnett W. Chisenhall, Chief Appellate Counsel, Tallahassee, for appellant State of Florida Department of Business and Professional Regulation, for appellee.
   GROSS, C.J.

Louis Dorcely timely appeals a final order of the Department of Business and Professional Regulation, Florida Real Estate Commission, denying his claim for payment from the Florida Real Estate Recovery Fund. See §§ 475.482-475.486, Fla. Stat. (2008). We affirm, finding that the claim was untimely filed and that competent, substantial evidence supports the conclusion that this was not the type of real estate transaction that qualifies for reimbursement.

In general, the Fund provides for recovery of damages “by reason of any act committed, as part of any real estate brokerage transaction involving real property in this state,” by a real estate broker or sales associate who held a “current, valid, active real estate license” at the time the wrongful act was committed. § 475.482(l)(a), Fla. Stat. (2008).

Dorcely and his former wife signed an agreement with Thrity Malhotra, a Chapter 475 licensee. The agreement provided that Malhotra could “take over” the property, bring the mortgage up to date, and make “all necessary improvements needed to make the house marketable.” Pursuant to the agreement, Dorcely moved out of the house. Malhotra took over the property, brought all bills current, and made renovations.

In addition to the agreement, Dorcely executed a “land trust warranty deed” that transferred the property to Malhotra, “his heirs and assigns, forever.” The warranty deed provided that:

[Malhotra] shall have full power and authority to deal in and with the property including the power and authority to protect, conserve, sell, lease or encumber and otherwise manage and dispose of the Property, or any part thereof, it being the intent to vest in [Malhotra] full rights as grantee of the Property as authorized and contemplated by Section 689.071, Florida Statutes, [“Land trusts transferring interests in real estate; ownership vests in trustee”].

In late 2004, Malhotra sold the property to a third party, without Dorcely’s knowledge or consent. In January, 2005, Dorcely learned from a neighbor that the property had been sold, so he contacted Malhotra about his share of the profits. Even though the sale netted $150,000, Malhotra gave only $15,090 to Dorcely and his former wife.

Dorcely filed a lawsuit against Malhotra. On April 1, 2008, the circuit court entered a final judgment requiring Malhotra to pay $113,900 in damages.

On June 16, 2008, Dorcely filed a claim with the Real Estate Commission for $113,900 from the Fund. After a hearing, the Commission denied the claim, based on two grounds. First, the Commission con-eluded that Dorcely did not file his claim within two years of becoming aware of Malhotra’s fraudulent act, as required by section 475.483(l)(c), Florida Statutes (2008). The Commission found Dorcely became aware of the fraud in January 2005, but did not file a claim until June 16, 2008. Second, the Commission ruled that Malhotra had “acted as a buyer by accepting title to the disputed property as trustee and as [a] seller in conveying the said property to a third party,” so that Dorcely’s claim ran afoul of section 475.482(l)(b), Florida Statutes (2008), which provides that the wrongdoing licensee be “neither the seller, buyer, landlord, or tenant in the transaction” for there to be a recovery from the Fund.

In an appeal from final administrative action, this court reviews the administrative agency’s findings of fact to determine whether they are supported by competent, substantial evidence. § 120.68(7)(b), Fla. Stat. (2008); see also Maynard v. Fla. Unemployment Appeals Comm’n, 609 So.2d 143, 145 (Fla. 4th DCA 1992). This court will not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. See § 120.68(10), Fla. Stat. (2008); Maynard, 609 So.2d at 145. We review the agency’s conclusions of law de novo. § 120.68(7)(d); see, e.g., SW Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 778 So.2d 594, 597 (Fla. 1st DCA 2000).

Subsection 475.482(1), Florida Statutes (2008), sets forth the requirements of a valid claim for reimbursement from the Florida Real Estate Recovery Fund:

The ... Recovery Fund shall be disbursed ... on order of the commission, as reimbursement to any person ... adjudged by a court of competent civil jurisdiction in this state to have suffered monetary damages by reason of any act committed, as part of any real estate brokerage transaction involving real property in this state, by any broker ... who:
(a) Was, at the time the alleged act was committed, the holder of a current, valid, active real estate license issued under this part;
(b) Was neither the seller, buyer, landlord, or tenant in the transaction ...; and
(c) Was acting solely in the capacity of a real estate licensee in the transaction;
provided the act was a violation proscribed in s. 475.25 or s. 475.42.

Further, the statute imposes time limitations on a claim against the Fund. To be “eligible to seek recovery” a person must make a claim for recovery:

within 2 years from the time of the act giving rise to the claim or within 2 years from the time the act is discovered or should have been discovered with the exercise of due diligence.

§ 475.483(l)(c), Fla. Stat. (2008).

As the Commission found, Dorcely failed to comply with the time limitations of section 475.483(l)(c). He discovered the fraud in January, 2005, when he learned that the house had been sold, but did not file a claim against the fund until June, 2008, outside the two year time limitation.

Dorcely’s argument to avoid the two year limitation period is not well taken. Dorcely contends that his claim was timely because it was filed within two years of the 2008 final judgment. He points to section 475.482(1), which provides that a requirement for disbursal from the Fund is that a “court of competent civil jurisdiction” adjudge that the claimant has “suffered monetary damages by reason of any act committed as a part of any real estate brokerage transaction.” However, this section does not alter the plain language of section 475.483(l)(c), which measures the two-year limitations period from “the time the [wrongful] act is discovered or should have been discovered with the exercise of due diligence,” not from the time a final judgment is obtained.

Substantial, competent evidence supports the Commission’s alternative conclusion — that Malhotra acted as a buyer and a seller in the transaction — so that the claim did not qualify under 475.482(l)(b), which provides that the wrongdoing licensee be “neither the seller, buyer, landlord, or tenant in the transaction” for there to be a recovery from the Fund. Dorcely relies on Riggs v. Department of Professional Regulation, Florida Real Estate Commission, 530 So.2d 980 (Fla. 5th DCA 1988), but that case does not control here. Riggs broadly construed the term “real estate transaction” in section 475.483(2)(c), Florida Statutes (1985), to include a situation where a real estate salesman purchased property with his client’s down payment and entered into a written, unrecorded contract for deed with the client. Id. at 980. In the 1985 statute, the current version of section 475.482 did not exist. Compare § 475.482, Fla. Stat. (1985) with § 475.482, Fla. Stat. (2008). The current version of the statute contains subsection (l)(a)-(c), upon which the Commission here relied, which have the effect of narrowing the circumstances when reimbursement from the Fund is appropriate. The broad statutory construction of Riggs is no longer justified in light of the later amendments to the statute.

Affirmed.

TAYLOR and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: STEVENSON, J.

license: Public Domain

text:
    Stephen RAPHAEL and Marjorie Raphael, Appellants, v. Saul M. SILVERMAN, Richard M. Kleid, Edwin Masinter, Mike Sutton, Seymore I. Scharer, Ba-Bette Wolff and Beach Point Condominium Association, Inc., a Florida Non-Profit Corporation, Appellees.
    No. 4D08-2210.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.

      Larry M. Mesches of McLaughlin & Stern, LLP, West Palm Beach, for appellants.
    Carlos D. Cabrera and A. Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellees Saul M. Silverman, Richard M. Kleid, Edwin Masinter, Mike Sutton, Seymore I. Scharer and Ba-Bette Wolff.
   STEVENSON, J.

Stephen and Marjorie Raphael timely appeal a final order dismissing their amended complaint against the individual members of the Beach Point Condominium Association’s Board of Directors. We find the factual allegations contained in the amended complaint are insufficient to rise to the level of self-dealing required to overcome the individual directors’ statutory immunity and affirm the dismissal. However, we remand the matter to afford the Raphaels an opportunity to file a second amended complaint, alleging additional ultimate facts.

Beach Point is a condominium project comprised of three buildings. The north and south buildings sit perpendicular to the ocean, and the west building, wherein the Raphaels own a unit, sits between them, facing the water. Originally, privacy dividers with a basket-weave design separated the balconies of the units. During the summer of 2006, the board installed new transparent dividers. When the board refused to permit the Raphaels to modify their dividers to restore their privacy, they filed a complaint against the association and the individual members of the board, alleging a breach of fiduciary responsibility to the Raphaels as unit owners and seeking damages arising out of the Raphaels’ inability to sell their unit and its diminution in value.

The individual directors filed a motion to dismiss, citing sections 607.0881(1) and 617.0834(1), Florida Statutes, which provide that condominium association directors are immune from liability in their individual capacity absent fraud, criminal activity, or self-dealing/unjust enrichment. In response, the Raphaels amended their complaint, adding that “[t]he individual Defendants derived an impermissible personal benefit from their decision to allow this unauthorized material alteration to the common elements, as they improved their indirect ocean view from their respective units, which had previously been obstructed by the privacy dividers as originally constructed.” The individual directors again moved for dismissal and the trial court dismissed the action against them. This court reviews an order granting a motion to dismiss de novo. Wendt v. La Costa Beach Resort Condo. Ass’n, 14 So.3d 1179, 1181 (Fla. 4th DCA 2009) (citing Wallace v. Dean, 3 So.3d 1035, 1045 (Fla.2009); Whigum v. Heilig-Meyers Furniture, Inc., 682 So.2d 643, 646 (Fla. 1st DCA 1996)).

Derivation of an improper “personal benefit” is an exception to the individual directors’ usual immunity. See §§ 607.0831(l)(b)2., and 617.0834(l)(b)2., Fla. Stat. (2008). But, Florida courts have consistently interpreted the statutory term “personal benefit” as requiring some form of “self-dealing” on the part of the director before individual liability may be imposed. See Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 27 (Fla. 5th DCA 2004) (“It is well established in Florida that absent fraud, self-dealing and betrayal of trust, directors of condominium associations are not personally liable for the decisions they make in their capacity as directors of condominium associations.”) (emphasis added); Perlow v. Goldberg, 700 So.2d 148, 150 (Fla. 3d DCA 1997) (affirming dismissal of complaint against individual directors of condominium association where “[t]here was no allegation in the owners’ complaint of criminal activity, fraud, willful misconduct or self-dealing ”) (emphasis added). Compare B & J Holding Corp. v. Weiss, 353 So.2d 141, 143 (Fla. 3d DCA 1977) (finding the evidence sufficient to hold condominium association’s initial directors personally liable where the directors’ deliberate decision to forego collection of funds from the developer benefitted them in their separate role as developers). Here, the alleged “personal benefit” was derived simply because the directors owned units within the condominium project and were thereby also able to enjoy the alterations or improvements to the common areas. Accordingly, we find the Raphaels’ bare assertion that the individual directors derived a “personal benefit” unsupported by any proper allegation of ultimate fact that establishes self-dealing. See Fla. R. Civ. P. 1.110(b).

Based on the allegations, as they stand, we affirm the dismissal but reverse the portion of the order stating it was with prejudice.

Affirmed in part; reversed in part; and remanded.

POLEN and GERBER, JJ., concur.

      . This rule provides, in part:
      A pleading which sets forth a claim for relief ... must state a cause of action and shall contain ... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief....


author: PER CURIAM.

text:
    Henry S. KEEL, Appellant, v. CENTRAL MORTGAGE COMPANY, Appellee.
    No. 4D08-3106.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.
    Rehearing Denied Jan. 5, 2010.
    Kraig S. Weiss of Silverberg & Weiss, P.A., Weston, for appellant.
    Les C. Shields of Ben-Ezra & Katz, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

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

POLEN, MAY and GERBER, JJ., concur.


author: HAWKES, C.J.

text:
    Michelle A. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3948.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Special Counsel, Criminal Appeals, Tallahassee, for Appel-lee.
   HAWKES, C.J.

Michelle A. Johnson entered into a plea bargain and participated in a plea colloquy. She then decided she did not wish to plead guilty and filed a series of motions to withdraw the plea pursuant to Florida Rule of Criminal Procedure 3.170 (2008). The trial court summarily denied her motions. Due to the principles announced in Sheppard v. State, 17 So.3d 275 (Fla.2009), the trial court was not required to appoint conflict-free counsel to assist Johnson in bringing these motions. Accordingly, we affirm.

Plea Agreement

Prior to entering her plea, Johnson signed a plea agreement,- writing her initials next to each of the following provisions:

• I hereby enter my plea of guilty because I am guilty. Before entering such a plea of guilty, I was advised of the nature of all the charges against me, the statutory offenses included within such charges, the range of maximum allowable punishments for each charge, all the possible defenses to each charge, and all circumstances in mitigation of such charges.
• I have been advised of all other facts essential to a full and complete understanding of all offenses with which I have been charged.
• I have been advised of all direct consequences of the sentence to be imposed.
• I admit that there is a factual basis for the charges to which I am pleading.
• I understand that by pleading guilty I give up the following constitutional rights: [including] the right to trial by judge or jury, the right to be represented by counsel at trial, the right to have counsel appointed to represent me if I cannot afford to retain counsel, the right to present witnesses in my own behalf and to compel the attendance of those witnesses, the right to confront the witnesses against me, the right to require the State to prove its case against me beyond a reasonable doubt, and for purposes of this plea hearing, my right against self-incrimination.
• My attorney has taken all actions requested by me, or has explained to my satisfaction and agreement why such actions should not be taken, and I concur with my attorney’s decision in that regard. I am completely satisfied with the services rendered by my attorney on my behalf in this case.
• My sentence has been negotiated in this case, and I understand that it is as follows: Adjudicated Guilty: Sentenced to Cap of 20 Years.
• I have entered into and signed this plea of guilty and negotiated sentence freely and voluntarily.

Plea Colloquy

The case then proceeded to a plea hearing. At the beginning of the hearing, Johnson’s attorney requested that the trial court “make it clear that I’ve explained [the plea agreement] to her and that she understands it.” Johnson was then placed under oath and the trial court began the colloquy:

The Court: Ms. Johnson, your attorney has indicated you wish to enter a plea of guilty today to the first degree felony charge of conspiracy to traffic[ ] in [oxy-codine]; is that correct? [ ]
The Defendant: Yes.
The Court: That’s a first degree felony. The maximum penalty you could receive would be 30 years in prison with a three-year minimum mandatory and a $50,000 minimum mandatory fíne. Do you understand that?
The Defendant: Yes.
The Court: However, the State is recommending that I pass your case for sentencing and at the time of sentencing you will be sentenced to an adjudication of guilt and up to a cap of 20 years. There is no agreement as to a specific sentence but merely zero to 20 years. Do you understand that?
The Defendant: Yes.

The colloquy continued as the trial court asked if Johnson understood she was agreeing to give truthful testimony if asked, provide substantial assistance upon request, and make weekly contact with the caseworker to whom she was assigned. Johnson replied that she did. The trial court then asked if Johnson understood it would be a violation of the terms of her sentence if she failed to appear when called by the State for any purpose related to the plea. Johnson replied that she did. The trial court then asked if Johnson understood any violation of her sentence would enable the State to ask for the maximum penalty. Johnson replied that she did.

The trial court next asked:

The Court: By entering this plea, you’re waiving the following rights: [t]he right to trial by jury and to have your attorney assist you during trial, to compel witnesses to attend on your behalf and to confront and cross-examine witnesses who are presented against you, the right to remain silent and require the State to prove your guilt beyond a reasonable doubt, and the right to appeal all matters relating to the judgment in your case. You understand you are waiving those rights?

The Defendant: Yes.

Then, trial court asked if Johnson understood that if she was not a United States citizen, her plea and conviction could subject her to deportation under the Federal Immigration laws. Johnson replied that she did. The trial court then asked if Johnson understood she could be subject to involuntary civil commitment upon completion of her criminal sentence if the instant offense was sexually motivated. Johnson replied that she did.

The colloquy concluded with the following exchange:

The Court: Has anyone threatened you, coerced you or made you any promises?
The Defendant: No.
The Court: Are you under the influence today of any §.ubstance or mental condition that would affect your ability to understand what you’re doing?
The Defendant: No.
The Court: By your plea are you acknowledging that you are, in fact, guilty of the charge?
The Defendant: Yes.
The Court: What is the highest grade you completed in school?
The Defendant: Graduated.
The Court: From high school?
The Defendant: Yes.
The Court: So you’re able to read and write?
The Defendant: Yes, ma’am.
The Court: Is this your signature on the plea form?
The Defendant: Yes.
The Court: Did your attorney go over this form with you in detail?
The Defendant: Yes.
The Court: Did he answer all of your questions?
The Defendant: Yes.
The Court: Do you have any other questions you need to ask your attorney or the Court?
The Defendant: No.
The Court: This form has a place for your signature for each paragraph. Did you read each paragraph and initial each paragraph?
The Defendant: Yes.
The Court: Is there any paragraph that you did not understand?
The Defendant: No, ma’am.
The Court: Are you fully satisfied with your attorney’s representation?
The Defendant: Yes.

The trial court then asked the prosecutor to provide a factual basis for the plea. The prosecutor responded that, had the case proceeded to trial, the evidence would have shown that, at some point between November 15, 2005, and November 27, 2005, Johnson knowingly conspired to sell, purchase, manufacture, deliver, or traffic four grams or more of oxycodone. Since there were no legal exceptions or objections, the trial court accepted Johnson’s plea, finding it to be “freely and voluntarily entered with a full understanding of the nature and consequences.”

Johnson’s motions to withdraw her plea

Following the acceptance of the plea, but before the sentencing hearing, Johnson filed a motion to withdraw her plea pursuant to Florida Rule of Criminal Procedure 3.170(f) (2008). In the motion, which was prepared with the assistance of counsel, she claimed she did not fully understand the plea agreement and how it would affect her and her minor children.

At Johnson’s sentencing hearing, the trial eourt addressed Johnson’s motion to withdraw her plea. It read to Johnson extensive excerpts from her plea colloquy and stated her declarations during the colloquy refuted the claims raised in her motion. The trial court then denied Johnson’s motion to withdraw the plea and sentenced her to ten years of imprisonment followed by ten years of probation.

Following sentencing, Johnson filed a pro se motion to withdraw her plea pursuant to Florida Rule of Criminal Procedure 3.170(Z) (2008). Johnson asserted two arguments as to why her plea should be withdrawn. First, she reiterated her earlier claim that she did not understand the consequences of the plea agreement. Second, she made the general claim that she was coerced into pleading guilty. The trial court summarily denied the motion without appointing substitute counsel. This appeal followed.

Analysis

In Sheppard v. State, 17 So.3d at 287 the Supreme Court detailed the procedure which should be followed when a defendant brings a pro se postconviction motion to withdraw a plea based on conflict with counsel:

[W]hen a represented defendant files a pro se rule 3.170(0 motion based on allegations giving rise to an adversarial relationship such as counsel’s misadviee, misrepresentation, or coercion that led to the entry of the plea ... the trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.

Id. Accordingly, under Sheppard, there is a two-step process which must be followed when a defendant moves to withdraw his/ her plea pursuant to rule 3.170(() based on allegations of “misadvice, misrepresentation or coercion.” First, the trial court must hold a limited hearing to determine whether the allegations have merit. See Smith v. State, 21 So.3d 72 (Fla. 1st DCA 2009). Second, if the trial court determines that an adversarial relationship exists, it must determine whether the record conclusively refutes the allegations in the motion. Id.

We must use this caselaw to analyze Johnson’s motions to withdraw. Johnson’s pre-sentencing motion to withdraw the plea alleged only that she was confused by the terms of her plea agreement. Simply because a defendant is confused does not mean he/she has a conflict with counsel. See Wendt v. State, 19 So.3d 1024 (Fla. 3d DCA 2009). Therefore, the trial court could deny the pre-sentencing motion without appointing substitute counsel.

However, the post-sentencing motion to withdraw the plea alleged, in part, that Johnson was coerced into taking the plea. Allegations of coercion may indicate an adversarial relationship with counsel. See Sheppard, 17 So.3d at 287. Here, Johnson never specifically alleged that her attorney coerced her. Assuming she meant she was coerced by her attorney, the trial court should have held a hearing to determine whether the allegation of coercion was legitimate. However, its failure to do so may be considered harmless error if the allegation in the motion was conclusively refuted by the record. Id.; see also Smith, 21 So.3d at 76 (stating that despite the trial court’s failure to hold a hearing, defendant’s “allegation that his counsel misadvised him regarding what sentence he could expect was harmless error because that ground is conclusively refuted by the record”).

When determining “whether an allegation is conclusively refuted by the record, [a trial court] may rely on the sworn testimony the defendant has given in the plea colloquy. Any allegations that contradict those answers should not be entertained.” Id. (citations omitted); see also Wallace v. State, 939 So.2d 1123, 1124-25 (Fla. 3d DCA 2006) (finding a motion to withdraw was properly denied as its grounds were refuted by, among other things, admissions in the plea colloquy); Jewel v. State, 954 So.2d 757, 758 (Fla. 4th DCA 2007) (stating “where the transcript of a plea colloquy conclusively refutes the claim, there is no point in appointing conflict-free counsel or holding an evidentiary hearing”). Here, the allegation of coercion was refuted by Johnson’s answers in both her plea colloquy and plea agreement.

In her plea colloquy, Johnson was asked whether anyone had “threatened,” “coerced,” or “made [her] any promises” regarding the plea. She answered “no.” When asked whether she was “acknowledging that [she was], in fact, guilty of the charge,” she answered “yes.” Finally, when asked if she was “fully satisfied with [her] attorney’s representation,” she indicated that she was.

Johnson’s plea agreement was even more specific. In it, she stated “I hereby enter my plea of guilty because I am guilty.” She also affirmed “there [was] a factual basis for the charges to which I am pleading.” She went on to state “I am completely satisfied with the services rendered by my attorney on my behalf in this case.” She concluded the agreement by emphasizing she “entered into and signed this plea of guilty and negotiated sentence freely and voluntarily.”

These statements in the plea colloquy and plea agreement conclusively refuted Johnson’s broad allegation that she was coerced by someone, possibly her attorney, into entering the plea. Accordingly, under Sheppard, Johnson was not entitled to conflict-free representation for this claim. The trial court’s failure to hold a hearing on this claim is, therefore, harmless error.

Given the foregoing, the trial court was not required to appoint substitute counsel on either of Johnson’s motions to withdraw her plea. The summary denials of these motions are AFFIRMED.

WETHERELL, J., concurs; BENTON, J., concurs in result only.

      . Counsel also did not need to be appointed for Johnson’s claim in her post-sentencing motion that she was confused by the proceedings which took place. As previously described, allegations of confusion do not imply a conflict between counsel and a defendant.


text:
    Paula LOVETT, Appellant, v. STATE of Florida, DEPARTMENT OF FINANCIAL SERVICES and Division of Risk Management, Appellees.
    No. 1D09-2259.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2009.
    Paul M. Anderson of Anderson & Hart, P.A., Tallahassee, for Appellant.
    Hinda Klein and Kristen A. Tajak of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.
   PER CURIAM.

AFFIRMED. See Hamilton v. R.L. Best Int'l, 996 So.2d 233 (Fla. 1st DCA 2008).

HAWKES, C.J., BENTON and THOMAS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Angelo Davinci FLOWERS, Appellee.
    No. 1D09-1835.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2009.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Goodwin v. State, 826 So.2d 1022 (Fla. 3d DCA 2001).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Jean R. ESTEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5176.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2009.
    Jenna D. Lopes of the Law Office of Jenna Lopes, P.A., Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

HAWKES, C.J., BARFIELD and CLARK, JJ., concur.


author: DAMOORGIAN, J.

text:
    Garry WHITEHEAD, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3651.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 2009.
    Rehearing Denied Jan. 5, 2010.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Garry Whitehead appeals the revocation of his probation and argues that the trial court impermissibly relied solely on hearsay. We disagree. A trial court is authorized to revoke probation based on a single violation of probation alone, and the State alleged nine violations of probation. We conclude that the trial court erred by relying on three of the alleged violations in choosing to revoke Whitehead’s probation and in sentencing. We find insufficient evidence in the record to support these alleged violations. As to the three unsupported violations, we reverse. However, the remaining six violations of probation were supported by evidence otherwise admissible in a criminal proceeding. As to the remaining six violations, we affirm. We remand for the trial court to reconsider Whitehead’s sentence without the three unsupported violations and to correct the record to remove the unsupported violations.

First, we reverse as to the following three counts because there is no admissible evidence in the record to support the necessary elements of the alleged crimes. Count I alleged that Whitehead burglarized a dwelling; however, there is no evidence in the record to show that Whitehead actually entered the dwelling. Count III alleged that Whitehead obstructed with violence; however, there is no evidence in the record to show that Whitehead acted violently or threatened to do violence. Count V alleged sexual battery of a child under twelve years old; however, there is no evidence in the record to show that Whitehead penetrated or made union with the mouth, anus, or vagina of the alleged victim.

Next, we address the remaining six counts. Hearsay is admissible in probation revocation hearings, but the hearsay must be supported by non-hearsay evidence for a court to revoke probation. Russell v. State, 982 So.2d 642, 646 (Fla.2008). “[P]robation can be revoked on the basis of hearsay inadmissible at a criminal trial in combination with evidence admissible as an exception to the hearsay rule.” Wilcox v. State, 770 So.2d 733, 736 (Fla. 4th DCA 2000); Thomas v. State, 711 So.2d 96, 97 (Fla. 4th DCA 1998). The State is only required to prove a violation of probation under a “greater weight of the evidence” standard. Anderson v. State, 711 So.2d 106, 108 (Fla. 4th DCA 1998).

We agree with the trial court that the State satisfied its burden to prove the violations by the greater weight of the evidence. We write only to highlight that in the record there was either non-hearsay evidence or evidence that fell within a hearsay exception to support the court’s revocation of probation. Count II alleged possession of burglary tools and was supported by the non-hearsay testimony of the officer who apprehended Whitehead. Count IV alleged obstructing without violence and was supported by the non-hearsay testimony of the officer whom Whitehead obstructed. Count VI alleged burglary with assault or battery and was supported by physical evidence that demonstrated that Whitehead had entered the residence of another and committed a battery. Count VIII alleged burglary based on a separate incident and was also supported by physical evidence that demonstrated that Whitehead was in the residence of another.

Count VII alleged sexual battery and Count IX alleged simple battery for acts arising from a single criminal episode; these allegations were supported by testimony of the nurse who treated the victim. The treating nurse’s testimony regarding the victim’s statements as to how the victim’s injury occurred was admissible under the hearsay exception for statements made for the purpose of medical diagnosis or treatment. § 90.803(4), Fla. Stat. (2008). Pursuant to our holdings in Wilcox and Thomas, testimony that falls under a hearsay exception satisfies the requirement that hearsay must be supported by evidence that is otherwise admissible in a criminal proceeding to justify the revocation of probation.

Therefore, we reverse to the extent that the trial court relied on Counts I, III, and V to revoke Whitehead’s probation. We affirm to the extent that the trial court relied on Counts II, IV, VI, VII, VIII, and IX to revoke Whitehead’s probation. We remand to allow the trial court to consider the sentence imposed based upon the six supported violations. The trial court can choose to leave the sentence in place, but must correct the order revoking probation to remove the three unsupported violations.

Affirmed in part; Reversed in part and Remanded.

MAY and CIKLIN, JJ., concur.


text:
    Leo GREENFIELD, Petitioner, v. Thomas J. NORTHCUTT and Kayelynne Northcutt, Respondents.
    No. 3D08-2224.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.
    Leo Greenfield, in proper person.
    Houlihan & Partners and Gerald J. Houlihan, Miami, for respondents.
    Before COPE, WELLS, and CORTINAS, JJ.
   PER CURIAM.

We treat this appeal as a petition for a writ of prohibition. “If a judge has been previously disqualified on motion for alleged prejudice or partiality ... a successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case.” Fla. R. Jud. Admin., Rule 2.330(g). See also § 38.10, Fla. Stat.; Kokal v. State, 901 So.2d 766, 773-75 (Fla.2005). Accordingly, we deny the petition.


text:
    The HAVEN CENTER, INC., Appellant, v. Homero MERUELO, Appellee.
    No. 3D09-407.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.

      Kurzban Kurzban Weinger & Tetzeli, and Steven M. Weinger, and Helena M. Tetzeli, Miami, for appellant.
    Gonzalo R. Dorta, Miami, for appellee.
    Before COPE, LAGOA, and SALTER, JJ.
   On Motion for Reheating or Clarification

PER CURIAM.

Following the Court’s consideration of the appellee’s motion for rehearing or clarification, the Court denies the motion for rehearing, grants in part the motion for clarification, and issues the opinion which follows in place of the opinion filed October 21, 2009.

The Haven Center, Inc., appeals a final summary judgment disposing of both its counterclaims against Homero Meruelo, the plaintiff below. That judgment did not, however, include an adjudication of Meruelo’s claims against Haven Center for declaratory judgment and specific performance of a real estate contract. Mer-uelo’s claims remain pending, and Haven Center’s counterclaims arose out of the same contract, transactions, and occurrences that were involved in Meruelo’s claims.

The adjudication of compulsory counterclaims such as these is “not appeal-able until a final disposition of the original cause has obtained on the merits.” Campbell v. Gordon, 674 So.2d 783, 785 (Fla. 1st DCA 1996); Northcutt v. Pathway Financial, 555 So.2d 368 (Fla. 3d DCA 1989). Meruelo nevertheless encouraged the trial court to add the words of finality, that Haven Center “take nothing on its counterclaim and go hence without day,” over Haven Center’s objection. We reverse the judgment to the extent that it includes the phrase “go hence without day” because it is not, in fact, a final judgment, but we do so (a) without disturbing the trial court’s entry of summary judgment on the counterclaim and (b) without prejudice to the right of the parties to appeal when both the claims and the counterclaims have been fully adjudicated.

Clarification granted; Reversed in part.


text:
    D.A.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-393.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 2009.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

The appellant, D.A.R., a child, appeals his Adjudication of Delinquency and Disposition. He was charged by way of a juvenile petition with resisting an officer without violence (Count I), battery on a police officer (Count II), resisting an officer with violence (Count III), possession of marijuana less than twenty grams (Count IV), and giving a false name upon being arrested or detained (Count V)- The appellant argues, and the State concedes, that his adjudications of delinquency for resisting an officer with violence and resisting an officer without violence arose out of a single continuous episode and, therefore, violate double jeopardy. See Goodman v. State, 801 So.2d 1012, 1014 (Fla. 4th DCA 2001). We agree and reverse his adjudication for resisting an officer without violence and remand with directions to vacate this adjudication.

At trial, Deputy Joseph Piatchek testified that he made a traffic stop on a vehicle with darkly-tinted windows. Once the vehicle stopped, Piatchek got out of his patrol car and saw the appellant exit the vehicle. Piatchek told the appellant to get back into the vehicle, but the appellant ignored the command and took off running. During the chase, Piatchek ordered the appellant to stop running, but the appellant continued to run until he reached a fence. The appellant tried to hop over the fence, but Piatchek grabbed him and pulled him off. As he was pulled off the fence, the appellant spun around to try to get away and pushed Piatchek in the shoulder, knocldng him off balance. The appellant began to run again, but fell down. Piatchek ultimately apprehended the appellant and took him into custody. At trial, defense counsel argued that the appellant could not be adjudicated delinquent for both resisting arrest with violence and resisting arrest without violence. The State disagreed, arguing that the charges arose from separate facts. The trial court agreed with the State.

This case is directly analogous to Goodman, 801 So.2d 1012. There, the defendant fled from a police officer after the officer stopped his vehicle. Id. at 1013. The officer chased the defendant to a fence, which the defendant attempted to climb over. Id. The officer grabbed the defendant to pull him off the fence. Id. The defendant resisted, grabbed the officer, and began striking him. Id. We held that the defendant’s convictions for resisting arrest with violence and resisting arrest without violence violated double jeopardy because they arose out of a single continuous episode. Id. at 1014; see Preston v. State, 785 So.2d 713, 713 (Fla. 4th DCA 2001); Madison v. State, 777 So.2d 1175, 1176 (Fla. 5th DCA 2001) (“[A] continuous resistance to the ongoing attempt to effect a defendant’s arrest constitutes a single instance of resisting an officer.”).

Reversed and remanded with instructions to vacate Appellant’s adjudication of delinquency for resisting an officer without violence.

HAZOURI, J., and RODRIGUEZ-POWELL, MILY, Associate Judge, concur.


author: COPE, J.

text:
    C.T., Appellant, v. STATE of Florida DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 3D09-1526.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.

      Thomas J. Butler, Miami Beach, for appellant.
    Karla Perkins, Assistant District Legal Counsel, for appellee Department of Children and Families; Hillary Kambour, for appellee the Guardian ad Litem Program.
    Before RAMIREZ, C.J., and COPE and SALTER, JJ.
   COPE, J.

This is an appeal of a final judgment terminating the parental rights of the mother, C.T. We affirm.

The Department filed a petition for termination of the mother’s parental rights to her five children, C.T., D.G., T.T., B.W., and C.W. After a bench trial, the trial court found the petition to be proven under paragraphs 39.806(l)(c), (f), and (g), Florida Statutes (2008). The trial court found, among other things, that “the evidence is clear and convincing that the Mother abused [D.G.] and [C.T.] repeatedly and such abuse constitutes egregious abuse.”

With regard to the remaining three children, T.T., B.W., and C.W., the trial court relied on paragraph S9.806(l)(f), Florida Statutes, which provides that a ground for termination exists when “[t]he parent ... engaged in egregious conduct .... that threatens the life, safety, or physical, mental, or emotional health of the child or the child’s sibling.” (Emphasis added). The court concluded that a ground for termination existed with respect to T.T., B.W., and C.W., because the trial court had found the mother had committed egregious abuse of D.G. and C.T.

In addressing this issue, the trial court said:

k. The Court is governed by the Third District Court of Appeal’s ruling in T.P. v. DCF, 935 So.2d 621 (Fla. 3d DCA 2006), that Section 39.806(l)(f), Florida Statutes, provides a mechanism for protecting children from the threat of abuse in that it permits the trial court to terminate parental rights to a child who has suffered egregious abuse, and to any siblings of such child. It appears that pursuant to the Third District Court of Appeal’s ruling, the egregious abuse directed .at one sibling is sufficient, without more, to support the termination of parental rights to another sibling. If this is the case, the Court seems to require the trial judge to terminate rights to the other children even in the absence of proof of prospective abuse of the other children. It is on that basis alone, that this court terminates the parent’s rights to the three children...
... This court is concerned that the Court’s opinion in T.P. v. DCF, raises issues of the constitutionality of the statute as construed by the Court. Hopefully the Court will clarify their opinion for the guidance the trial bench and bar.

As we interpret the trial court’s question, the court is asking whether, once the Department proved egregious abuse of C.T. and D.G., termination must be automatic with regard to the siblings, T.T., B.W., and C.W. We believe the answer to that question is actually contained within the T.P. decision itself.

Each termination case involves three questions: (1) Does a ground for termination of parental rights exist? See § 39.806, Fla. Stat. (2008). (2) Is termination in the manifest best interest of the child? See id. § 89.810.(3) Is termination the least restrictive means of protecting the child from harm? See Padgett v. Dept. of Health and Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991); see also Fla. Dept. of Children and Families v. F.L., 880 So.2d 602, 609-11 (Fla.2004).

This court’s opinion in T.P. primarily addressed the text and rationale for paragraph 39.806(l)(f), Florida Statutes, which provides that egregious abuse directed at one sibling is a ground for termination of parental rights as to another sibling. T.P., 935 So.2d at 624-25. That analysis relates to question (1), whether a ground for termination exists. The T.P. court then went on to address questions (2) and (3). The T.P. panel stated, “The trial court’s determination that it was in the manifest best interest of the children to terminate the father’s parental rights, and that there were no less restrictive means to protect the children, is supported by substantial competent evidence.” Id. at 625. As demonstrated by T.P., finding that a ground for termination exists is the first question, but the other two questions must also be addressed: manifest best interest and least restrictive means.

The T.P. panel relied on the Fifth District’s opinion in Dept, of Children and Families v. B.B., 824 So.2d 1000, 1007 (Fla. 5th DCA 2002). As pertinent here, the Fifth District has said, “In short, under the statute [paragraph 39.806(l)(f) ], the egregious sexual abuse of A.B. would be independent statutory authority for termination of parental rights to other children, assuming, of course, the ‘manifest best interests’ requirement for parental rights’termination is met.” Id.

While the trial court erred in saying that termination was automatic upon establishing egregious abuse of a sibling, the error was harmless. In the judgment, the trial court properly included a segment entitled “manifest best interests.” That analysis states in part:

c. The Mother does not have the capacity to care for the Children to the extent that their safety, well-being, and physical and emotional health will not be endangered upon their return to the Mother’s home. The Mother[’]s char-acterological tendency to engage in violence toward her children, despite the provision of services, demonstrates that the Children cannot safely return to the Mother. The Mother’s uncontrolled, violent tendencies indicate that she does not have the capacity to safely care for her Children. This factor, by far, is the most overriding consideration in this case: the Children cannot be returned to a Mother who does not have the capacity to prevent their re-entry into the system whether by direct abuse or by abandonment.

The judgment goes on to say that “there are no less restrictive means legally available to establish permanency under section 39.621, Florida Statutes, other than termination of parental rights for the adoptive placement.” This analysis appropriately supports the termination judgment.

In support of the trial court’s ruling, the Department also relies on Florida Department of Children and Families v. F.L., 880 So.2d at 610. In that case the Court wrote about an analogous ground for termination, paragraph 39.806(l)(i), Florida Statutes, which states that it is a ground for termination that “[t]he parental rights of the parent to a sibling of the child have been terminated involuntarily.” In addressing least restrictive means, the Court said that prior history was highly relevant. “Specifically, if the parent’s conduct that led to the involuntary termination involved egregious abuse or neglect of another child, this will tend to indicate a greater risk of harm to the current child.” 880 So.2d at 610. “A very recent involuntary termination will tend to indicate a greater current risk.” Id.

In the present case the trial court addressed the appropriate factors and the judgment is supported by the record. The termination of parental rights is affirmed.

       Although not an issue here, another portion of the B.B. decision discusses the rebuttable presumption that the Fifth District had recognized in termination cases. Id. at 1007-08 (discussing A.B. v. Dept. of Children and Families, 816 So.2d 684 (Fla. 5th DCA 2002)). The Florida Supreme Court disapproved A.B.'s rebuttable presumption in Florida Department of Children and Families v. F.L., 880 So.2d at 609. The rebuttable presumption as outlined in A.B. shifted to the parents the burden to show a lack of substantial risk of harm to the current child.


author: PER CURIAM. GRIFFIN, J., ORFINGER, J.,

text:
    BOYS & GIRLS CLUBS OF MARION COUNTY, INC., Petitioner, v. J.A., as Natural Parent and Guardian, etc., Respondent.
    No. 5D09-1373.
    District Court of Appeal of Florida, Fifth District.
    Dec. 4, 2009.
    Betty D. Marion and Kenneth A. Glas-pey of The Marion Law Firm, LLC, Ocala, for Petitioner.
    Roy D. Wasson of Wasson & Associates, Chartered, Miami, Marianne R. Howanitz of Daniel L. Hightower, P.A., Ocala, for Respondent.
   PER CURIAM.

DENIED.

TORPY, J., concurs.

GRIFFIN and ORFINGER, JJ, concur and concur specially with opinions.

GRIFFIN, J.,

concurring specially.

This petition for a writ of certiorari arises out of a civil suit filed by the mother of an eight-year-old child who she claims was sexually assaulted in 2005 on Petitioner’s premises by an older boy. The theory of liability appears to be that Petitioner was negligent in its supervision, although of what or whom is unclear because we do not have the complaint.

Petitioner sought to take the deposition of the child and Respondent moved for a protective order, asserting that testifying would be emotionally harmful to the child. The order under review grants the motion, in toto, at least temporarily. The order declares that the child may not ever be questioned about the assault at all and requires defense counsel to submit his proposed discovery on any other aspect of the case for prior evaluation and opinion by the child’s psychologist to determine whether it would adversely affect the child to be asked or to answer the questions. According to the order, the court will then decide whether any deposition may be had and, if so, what questions may be asked. I agree that this order is not appropriate for certiorari review at this time. While Petitioner may be unhappy with the procedure the trial court has chosen to follow, the real issue is what discovery Petitioner ultimately will receive and when. Like most other orders denying discovery, this will almost certainly have to await the trial of the case. And it is not yet even clear that the court will not eventually allow the discovery to which Petitioner is entitled.

I write in this case, as I have in others, only because I have my eye on the ultimate appeal in this case and because it has been my experience that whoever is on the losing side of an order disallowing discovery has a difficult time tying the lack of discovery to the unfavorable outcome. This is so because they cannot usually show the appellate court what they did not find out. They can only establish that there was a category of information they were not allowed to seek out. Appellate courts are reluctant to reverse a jury verdict and send a case back for what might amount to nothing. We do and we will, if necessary, but a more fair outcome is reached if this is correctly resolved at the trial level.

Here Petitioner has offered not to inquire about the assault itself — at least for now — but wants to find out from the child where he was, who he was with and what he was doing beforehand and other matters relating to the negligent supervision theory. Petitioner also wants to inquire about damages. Respondent seeks to shield the child, who is now twelve years old, from all discovery, relying on Florida Rule of Civil Procedure 1.280(b)(1), claiming it would embarrass, or oppress the child to testify because of the nature of the underlying events. But the rule does not mean a plaintiff can avoid legitimate discovery because the events are distressing or embarrassing to recount. The law is well settled that a plaintiff is not entitled to both his silence and his lawsuit. Brancaccio v. Mediplex Mgt. Inc., 711 So.2d 1206, 1210 (Fla. 4th DCA 1998).

This is a civil proceeding, voluntarily pursued, where money damages are sought to be extracted from Petitioner. Petitioner is entitled to the discovery contemplated by the rules in order to ascertain the facts and fairly present its defenses. According to what I read in the record, it has not yet even been determined whether the child might testify at trial. Unless Petitioner commits to not calling the child, it would seem that Petitioner has a clear right to learn what the child will and will not say. Even if Respondent elects to try to prove this case without the victim, the Petitioner has the right, by some reliable means, to learn what evidence the child may have that may be of benefit to its defense. This is unlike a juvenile or a criminal proceeding where the child’s only status is as victim or witness in a proceeding brought by the State. In such a case, every effort is made to protect the victim to the extent possible consistent with the accused’s due process rights. In a civil case, on the other hand, the plaintiff has elected to sue a third party for damages and the public policy concerns that motivate efforts to protect the victim have less weight. I do not suggest that no accommodation need be made or that sensitivity cannot be required, but this would involve how the discovery is done, not whether it is done. People who have been harmed and who file a civil suit, but who, for whatever reason, are unwilling to participate in legitimate discovery, simply cannot prosecute their lawsuit.

ORFINGER, J.,

concurring specially.

Because the standard for certiorari review of a discovery order is so high, I agree, albeit reluctantly, that the petition must be denied. At the same time, I agree entirely with Judge Griffin’s opinion. A plaintiff cannot have both his silence and his lawsuit. Subject to reasonable accommodations, even this child plaintiff must participate in reasonable and meaningful discovery.

      . The court order, in part, provides:
      It is further Ordered that Defendant shall prepare a list of known issues that Defendant intends to cover in the deposition of T.A. so that the Plaintiff's psychologist, Ava C. Land, Ph.D., can review said issues and enter an opinion as to whether any deposition or testimony of T.A. should be had or, if deposition should be had, give court direction as to scope, terms and conditions of said deposition, who should attend, how it should be conducted, what issues should be covered.

      . There is a recording of a statement recounting sexual abuse given by the child shortly after the event, but in the subsequent juvenile proceeding, he testified he did not remember anything. Respondent appears to assume this recording will be admissible in evidence at trial.


author: PER CURIAM. COHEN, J,

text:
    Steven E. FISCHER, Appellant, v. Mary E. FISCHER, Appellee.
    No. 5D08-2428.
    District Court of Appeal of Florida, Fifth District.
    Dec. 4, 2009.
    Anne Marie Gennusa of The Law Offices of Anne Marie Gennusa, PA, St. Augustine, for Appellant.
    Amy E. Newby, of Law Office of Amy E. Newby, P.A., Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED.

MONACO, C.J. and SAWAYA, J., concur.

COHEN, J., concurs specially, with opinion.

COHEN, J,

concurring specially.

The issue on appeal is straightforward. Appellant argued the lower court abused its discretion in making a cumulative award of ninety-five percent of his gross income to the former wife, an error that was apparent on the face of the final judgment. Appellee took the position that the lack of a transcript or statement of facts pursuant to Florida Family Law Rules of Procedure 9.200(b)(4) precluded review.

Per curiam disposition of this case is appropriate. While a final judgment ordering one spouse to pay so high a percentage of gross income would normally merit close scrutiny, see Dennison v. Dennison, 852 So.2d 422 (Fla. 5th DCA 2003), two critical facts were omitted from Appellant’s brief. First, the final judgment reflects that Appellant agreed, at trial, to pay the two mortgages on the marital residence until the property sold. Second, and more importantly, the trial court stayed the mortgage payment requirement postjudgment, no doubt recognizing the impossibility of Appellant’s ability to pay the amounts ordered and to also support himself. Thus, Appellant was left with a permanent periodic alimony obligation of $650 per month plus $483.77 in monthly child support, neither of which are specifically being challenged on appeal, nor would they constitute an abuse of discretion, particularly in the absence of a transcript.


author: ZAMBRANO, R.,

text:
    Mary Lombardo SAUSVILLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4053.
    District Court of Appeal of Florida, Fifth District.
    Dec. 4, 2009.
    John P. Flannery, II, of Campbell, Miller, and Zimmerman, P.C., Leesburg, Virginia and Jeffrey S. Weiner, Miami, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ZAMBRANO, R.,

Associate Judge.

Mary Lombardo Sausville appeals her violation of probation sentence on four counts of vehicular homicide. Although Ms. Sausville has presented an interesting argument, this Court is foreclosed from considering it because the issues were not properly raised or preserved below. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) (“[F]or an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”); Montes v. State, 994 So.2d 1210, 1212 (Fla. 5th DCA 2008). As a result, Ms. Saus-ville’s sentence is affirmed. Notwithstanding, Ms. Sausville is free to raise her trial counsel’s failure to seek a recusal of the sentencing judge and present mitigating evidence at sentencing by way of a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

LAWSON and EVANDER, JJ., concur.


text:
    Jennifer CARDINAL, Appellant, v. Terrance COTANT, Appellee.
    No. 5D09-435.
    District Court of Appeal of Florida, Fifth District.
    Dec. 4, 2009.
    Jennifer Cardinal, Farmington, MI, pro se.
    Terrance E. Cotant, Orlando, pro se.
   PER CURIAM.

The former wife, Jennifer Cardinal, appeals the supplemental final judgment rendered by the trial judge after an evi-dentiary hearing in which the trial court revoked the former wife’s status as primary residential parent to the children of this marriage, reset visitation, modified child support, and made other changes to the previously ordered conditions for the care and well-being of the children. We have carefully reviewed the record in this case and have found no abuse of discretion or legal error committed by the trial court. We note that we have been hampered in our review by the lack of a transcript of the proceedings or any approved substitute for it, even though the court considered the testimony of at least four witnesses. Accordingly, we affirm.

AFFIRMED.

MONACO, C.J., LAWSON and JACOBUS, JJ., concur.


author: PALMER, J.

text:
    N.R., a Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D08-4328, 5D08-4329.
    District Court of Appeal of Florida, Fifth District.
    Dec. 4, 2009.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

N.R. appeals the final orders entered by the trial court adjudicating him delinquent and committing him to a high-risk, level 10 commitment program, rejecting the Department of Juvenile Justice’s (DJJ) recommended sentence of Level 6, moderate-risk commitment program. As the State properly concedes, reversal is required.

The Florida Supreme Court issued its opinion in E.A.R. v. State, 4 So.3d 614 (Fla.2009), while this appeal was in the pipeline. In that case, the Supreme Court set forth a more rigorous analysis for a trial court to follow before it can depart from DJJ’s recommendation regarding placement. Understandably, the trial court’s explanation for departing from the recommendation of the DJJ is not in accordance with this newly articulated standard. Accordingly, we reverse and remand for the entry of an order which complies with the requirements of E.A.R.

REVERSED and REMANDED.

MONACO, C.J. and SAWAYA, JJ., concur.


author: SHEPHERD, J. SCHWARTZ, Senior Judge

text:
    James PITTMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2524.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 2009.

      Carlos J. Martinez, Public Defender, and Robert Kalter and Jessica Zagier Wallace, Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellee.
    Before GERSTEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   ON MOTION FOR REHEARING

SHEPHERD, J.

On consideration of the State’s motion for rehearing and motion for rehearing en banc, this Court grants the motion for rehearing, withdraws its previous opinion, and substitutes the following opinion.

Appellant, James Pittman, seeks review of a jury verdict finding him guilty of lewd or lascivious battery, § 800.04(4)(a), Fla. Stat. (2006), as a lesser included offense of the primary charge of sexual battery, § 794.011(3), Fla. Stat. (2006). Pittman argues the information by which he was charged, which correctly specified the age range for the charge of sexual battery— victims twelve years of age or older — did not adequately inform him he would be subject to conviction on the lesser charge of lewd or lascivious battery, which specifies an age range of twelve years of age or older but less than sixteen years. We find Pittman’s argument has merit and reverse the judgment of conviction and sentence in this case.

FACTS AND PROCEDURAL HISTORY

On April 12, 2006, the State charged Pittman with sexual battery with a deadly weapon in violation of section 794.011(3), and kidnapping with a weapon in violation of sections 787.01(2) and 775.087 of the Florida Statutes (2006). The next year, interpreting the 1999 amendments to section 800.04, see ch. 99-201, § 6, Laws of Fla., the Florida Supreme Court held in Williams v. State, 957 So.2d 595 (Fla. 2007), that despite its absence from the Schedule of Lesser Included Offenses for sexual battery contained in the Standard Jury Instructions in Criminal Cases, see Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, § 800.04, the crime of lewd or lascivious battery under section 800.04(4)(a) is a permissive lesser included offense of a sexual battery found under section 794.011(3).

Armed with this new authority, the prosecutor in this case announced in open court just before jury selection that, in an effort not to delay the trial, she intended to request the jury be charged on both sexual battery with a deadly weapon and lewd or lascivious battery. Although invited by the court to do so, she declined to amend the information to expressly allege a section 800.04(4)(a) violation.

Defense counsel strenuously objected to the State’s announcement, noting the lewd or lascivious battery charge would undermine her prepared defense of consent, and arguing she would have sought an independent analysis of the DNA evidence provided by the State had she known the State intended to pursue lewd or lascivious battery, a charge for which consent was not a defense. See § 800.04(2), Fla. Stat. (2006). The court overruled the defense objection and allowed the instruction to be given to the jury, who ultimately acquitted Pittman of kidnapping and sexual battery, crimes which could be undermined by a defense of consent, but convicted him of lewd or lascivious battery, which could not be.

ANALYSIS

Article I, section 16(a) of the Florida Constitution, states:

In all criminal prosecutions the accused shall ... be informed of the nature and cause of the accusation, and shall be furnished a copy of the charges, and shall have the right ... to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed.

This provision of Florida’s Declaration of Rights, together with a nearly identical provision in the United States Constitution, see U.S. Const., amend. VI, establishes one of the cornerstones of western jurisprudence, that those against whom the State wishes to exercise its power and authority be accorded due process of law. See, e.g., Smith v. State, 968 So.2d 108, 110 (Fla. 4th DCA 2007) (noting due process consists of “adequate notice and an opportunity to be heard ‘at a meaningful time and in a meaningful manner’ ”) (quoting Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)); Ray v. State, 403 So.2d 956, 959 (Fla.1981) (“No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal”) (quoting Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948)). See also Bedford v. State, 970 So.2d 935, 938 (Fla. 4th DCA 2008) (“Generally it is a denial of due process to convict on a crime not charged.”).

One area that has long vexed Florida courts in light of the above-quoted principle of “meaningful notice” is ensuring this due process requirement is met in cases dealing with lesser included offenses. In Brown v. State, 206 So.2d 377, 380 (Fla.1968), overruled, in part, on other grounds, In re Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981), modified, 431 So.2d 599, the Florida Supreme Court sought to comprehensively address the issue of lesser included offenses in an effort to provide “a definitive statement of applicable rules for the guidance of Florida courts.” After exploring the historical evolution of lesser included offenses dating back to Blackstone, see id., the court set forth four categories — later reduced to two in In re Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d at 596—of possible lesser included offenses: “(1) Crimes divisible into degrees[;] (2)[a]t-tempts to commit offenses[;] (3)[o]ffenses necessarily included in the offense charged[; and] (4)[o]ffenses which [m]ay or may not be included in the offense charged, depending on the accusatory pleading and the evidence.” Id. at 381 (emphasis added).

The Brown court held that in this final category of offenses, those “which [m]ay or may not be included in the offense charged,” id., — now commonly known as permissive lesser included offenses — the permissibility of the charges was “depend[ent] upon, (a) the accusatory pleading, and (b) the evidence at the trialt,]” and explained that:

In this category, the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense.... If the accusation is present, then the judge must determine from the evidence whether it supports the allegation of the lesser included offense. If the allegata and probata are present then there should be a charge on the lesser offense.

Id. at 383 (emphasis added). Applying this rule in Williams, the Florida Supreme Court was satisfied that both requirements were met. As the Court stated, the State charged both that the defendant committed an act meeting the definition of sexual activity [within the meaning of section 800.04 of the Florida Statutes], and that the victim was twelve years of age or older but less than sixteen years of age. Williams, 957 So.2d at 599 (emphasis added) (An instruction on a permissive lesser included offense is appropriate only if the allegations of the greater offense contain all the elements of the lesser offense and the evidence at trial would support a verdict on the lesser offense.). In contrast, the age range for the offense of lewd or lascivious battery was not alleged in the case presently before us. Indeed, there was nothing in the information from which Pittman could divine the State wished to punish him for this crime. As Williams suggests, such error is fundamental in our constitutional system and compels redress.

Although it is doubtful that a showing of prejudice is required in cases such as this, where the error is structural in nature, see, e.g., Price v. State, 995 So.2d 401, 405 (Fla.2008); State v. Gray, 435 So.2d 816, 818 (Fla.1983) (holding that where the charging instrument completely fails to charge a crime, the conviction violates due process), it nevertheless is clear the States eleventh-hour announcement on the day of trial prejudiced the defendant in this case.

For these reasons, we reverse the judgment of conviction and sentence. In accordance with a proper acknowledgment by counsel for Appellant, our reversal is without prejudice to the State to file a further information as to lewd or lascivious battery.

Reversed and remanded with directions.

GERSTEN, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

I cannot believe, much less agree, that the meaningless, super-technical “mistake” in this case — the failure of the information to allege specifically what everyone knew to be true, that the victim was under sixteen — should result in the negation, for a new, wrenching and utterly senseless trial, of an otherwise spotless conviction for a crime not only fully established by the evidence but essentially uncontradicted. See Bowden v. State, 642 So.2d 769 (Fla. 1st DCA 1994), review denied, 651 So.2d 1192 (Fla.1995); Padgett v. State, 519 So.2d 663 (Fla. 4th DCA 1988), cause dismissed, 525 So.2d 880 (Fla.1988); Blow v. State, 386 So.2d 872 (Fla. 1st DCA 1980), petition for review denied, 392 So.2d 1372 (Fla.1981).

In my view, the reversal in this case makes a mockery of the rules against indulging legalisms for the sake of indulging legalisms. See Langdon v. State, 947 So.2d 460, 464, n. 11 (Fla. 3d DCA 2006) (Schwartz, Senior Judge, dissenting); Doctor v. State, 677 So.2d 1372, 1373-74 (Fla. 3d DCA 1996) (Schwartz, C.J., specially concurring), approved, 698 So.2d 1224 (Fla.1997). Indeed, the fact that the defendant succeeded at the trial as to his only defense to the sexual battery charge, consent, which is not a defense to the lesser lewd and lascivious charge of which he was convicted and sentenced below, conclusively establishes the complete propriety of that result. It is a mystery, apparently resolvable only by combining the jurisprudential observations of Mr. Bumble, see Kukral v. Mekras, 647 So.2d 849, 851 & n. 1 (Fla. 3d DCA 1994) (Jorgenson, J., dissenting), quashed, 679 So.2d 278 (Fla.1996), and Benjamin N. Cardozo, see Langdon; Dottor, why the majority decides otherwise.

      . The Sixth Amendment to the United States Constitution reads as follows:
      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

      . This is so even though defense counsel almost certainly knew, or at least had the ability to know through discovery provided by the State, that the victim was fourteen-years old at the time of the offense. In any criminal case, facts creating the elements of additional uncharged crimes might arise during pretrial discovery, but the State ultimately might choose not to charge those crimes. It is apodictic that discovery supplied by the State or actual knowledge by defense counsel cannot function as a substitute for constitutionally required notice.


author: WHATLEY, Judge.

text:
    In the interest of D.H., a child, B.F., Appellant, v. Department of Children and Family Services, and Guardian Ad Litem Program, Appellees.
    No. 2D09-1757.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 2009.

      Jackson S. Flyte, Regional Counsel, Second District, and Jeffrey Sullivan, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bar-tow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and David J. Lopez, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Orlando, for Appel-lee Guardian Ad Litem Program.
   WHATLEY, Judge.

The Mother appeals the order terminating her rights to her daughter, D.H., based on section 39.806(l)(c), Florida Statutes (2008) (continuing involvement of parent threatens child irrespective of provision of services). The Department of Children and Family Services and the Guardian ad Litem concede that termination on this ground was not supported by clear and convincing evidence. Our review of the evidence presented at the termination hearing leads us to concur.

Accordingly, we reverse and remand for further proceedings.

CRENSHAW and MORRIS, JJ., Concur.


text:
    Paul WILLARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-398.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 2009.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Paul Willard, appeals the trial court’s order denying his motion to correct sentencing error, filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Willard contends that the trial court erred by denying his request to correct the amount of the restitution award in the final judgment following revocation of probation. We agree.

Because a motion to correct a sentencing error involves a “purely legal issue,” an appellate court’s standard of review for such a motion is de novo. See T.L.S. v. State, 949 So.2d 290, 291 (Fla. 5th DCA 2007) (stating that the review of a juvenile’s motion to correct a sentencing error is conducted under the de novo standard of review).

“Florida Rule of Criminal Procedure 3.800 allows a trial court to correct a sentencing error.” Bell v. State, 900 So.2d 776, 778 (Fla. 2d DCA 2005). This includes a “scrivener’s error.” A scrivener’s error occurs when a trial court fails to state the correct amount of restitution still owed to a victim in a final judgment following revocation of probation. See Cherry v. State, 718 So.2d 294, 295 (Fla. 2d DCA 1998).

In this case, the trial court erred by committing a scrivener’s error via its failure to state the correct amount of restitution still owed by Willard in the final judgment following Willard’s revocation of probation. It should have corrected this sentencing error via Willard’s rule 8.800 motion. Specifically, Willard, after pleading guilty to dealing in stolen property, was, as part of his probation, ordered to pay $56,000.00 in restitution. Willard paid part, but not all, of the restitution owed during his probationary period. Upon revoking Willard’s probation, the trial court should have stated the amount still owed in restitution in the final judgment following revocation of probation — not the original amount awarded.

We, therefore, reverse the trial court’s order denying Willard’s Rule 3.800(b)(2) Motion to Correct Sentence and remand with directions for the trial court to correct the final judgment following revocation of probation to state the proper amount of restitution still owed by Willard.

Reversed and Remanded With Directions.

HAZOURI, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Anthony PICKLE, Appellee.
    No. 4D08-4961.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Dismissed. See § 924.07(l)(e), Fla. Stat. (2009), and State v. Hewitt, 21 So.3d 914 (Fla. 4th DCA 2009).

WARNER, FARMER and LEVINE, JJ., concur.


text:
    In re Serena E. POLLACK.
    No. 2008-OB-0925.
    Supreme Court of Louisiana.
    Sept. 30, 2009.
    The Schiff Law Corporation, Leslie J. Schiff, for applicant.
    Richard Anthony Goins, New Orleans, Monique Rene Drake, Lawrence Joseph Centola, Jr., for respondent.
   LON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

Petitioner, Serena E. Pollack, an attorney licensed to practice law in the States of Wisconsin and Illinois, successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) declined to certify petitioner for admission to the Bar, on the ground that she engaged in the unauthorized practice of law by enrolling pro hac vice in several pending cases without complying with the provisions of Supreme Court Rule XVII, § 13.

On petitioner’s application, we appointed a commissioner to take evidence and report to this court whether she possesses the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana. We also authorized the Office of Disciplinary Counsel to conduct an investigation into petitioner’s qualifications to be admitted to the bar.

The commissioner conducted a character and fitness hearing, pursuant to Supreme Court Rule XVII, § 9(D)(6). The commissioner received documentary evidence and heard testimony from petitioner on a variety of issues in addition to the pro hac vice matters, including petitioner’s 2006 bankruptcy filing and other related financial issues. At the conclusion of the hearing, the commissioner filed his report with this court, recommending that petitioner be conditionally admitted to the practice |2of law. The Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(D)(11).

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana, subject to the following conditions:

1. The term of this conditional admission shall be for two years from the date of admission.

2. During the period of this conditional admission, petitioner shall timely repay her student loan in accordance with her agreement with her student loan creditor.

3. During the period of this conditional admission, petitioner shall complete 200 hours of community service assisting agencies which provide legal service to indigents.

4. In addition to her ordinary mandatory continuing legal education requirements, petitioner shall complete an additional 12.5 hours of continuing legal education for each year of her probationary period.

5. Petitioner shall cooperate with the Office of Disciplinary Counsel, and shall comply with any and all requirements imposed upon her by the Office of Disciplinary Counsel.

6. Within thirty days of petitioner’s admission, she shall enter into a formal plan with the Office of Disciplinary Counsel incorporating the foregoing conditions.

7. Within thirty days prior to the expiration of the conditional admission, the Office of Disciplinary Counsel shall file a report in this court in which it shall recommend to the court that the conditional admission be allowed to terminate or be extended.

|sShould petitioner fail to make a good faith effort to satisfy these conditions, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.


text:
    In re William A. ROE.
    No. 2009-B-2117.
    Supreme Court of Louisiana.
    Oct. 14, 2009.
   ORDER

Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel,

IT IS ORDERED that William A. Roe, Louisiana Bar Roll number 11384, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

/s/ Jeffrey P. Victory

Justice, Supreme Court of Louisiana