author: CRENSHAW, Judge.

text:
    STATE of Florida, Appellant, v. Henry JOHNSON, Jr., Appellee.
    Case No. 2D16-1819
    District Court of Appeal of Florida, Second District.
    Opinion filed August 16, 2017.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellant.

      Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellee,
   CRENSHAW, Judge.

After a jury found Henry Johnson, Jr., guilty of four counts of sale of cocaine and two counts of sale of cannabis in violation of sections 893.13(l)(a)(l), and (l)(a)(2), Florida Statutes (2014), the trial court imposed concurrent downward departure sentences of ten months’ jail on each count. Citing State v. Steadman, 827 So.2d 1022 (Fla. 3d DCA 2002), the court based the departure on its finding that law enforcement officers engaged in sentence manipulation by making multiple purchases over the course of their sting operation for no’ reason other than to increase Johnson’s potential sentence. The State now appeals the sentences arguing that the basis for the departure’ is not supported by competent substantial evidence and, even assuming there was sufficient evidence that law enforcement engaged in sentence • manipulation, Johnson’s sentences are still improper under Steadman because they are below what his guideline sentence would have been if he had been arrested after the first sale. Because the trial court erred in departing below the confines of Steadman, we reverse.

The charges in this case arose after a confidential informant provided law enforcement officers with Johnson’s phone number and indicated that Johnson was selling crack cocaine. Using this information, the lead officer made contact with Johnson and purchased $60 worth of cocaine on January 23, 2015, in the parking lot of a large hardware store. On January 27, the officer again contacted Johnson and purchased $60 worth of'cocaine and $40 worth of cannabis at the same location. The following day, the officer purchased another $60 worth ■ of cocaine ' and $20 worth of .cannabis from Johnson at the same location. Finally, on February 3, in the same hardware store parking lot, the officer purchased $60 worth of cocaine. The officer obtained audio and video recordings of each of the transactions. Other officers also observed all of these transactions. For all but the last of these transactions, Johnson did not initially possess the drugs and, instead, obtained the drugs from other individuals who would drive to the parking lot and hand the drugs to Johnson during the. transactions. Officers eventually arrested Johnson for these transactions pursuant to an arrest warrant. Following a jury trial, Johnson was convicted as charged.

At the outset, we note that the State’s argument that.the departure was not’ based on competent substantial evidence is not preserved. See State v. Wiley, 210 So.3d 658, 659 (Fla. 2017) (discussing the components of proper preservation). During sentencing, the State specifically relied on Steadman to argue that the trial court could not depart below Johnson’s lowest permissible sentence when calculated with a scoresheet that only included the first charge. See Steadman, 827 So.2d at 1024 (“An important consideration in our decision .is the fact that the judge imposed a sentence harsher than the guideline sentence had Steadman been arrested after the first sale.”). In support of its argument, the State presented two scoresheets. Under his actual scoresheet, which included ¿11 of the instant convictions, Johnson’s lowest permissible sentence was 46.95 months’ prison. The other scoresheet included, only the first .charge for which Johnson was convicted and indicated a lowest permissible sentence of 31.2 •months’ prison. The State asserted that “if the basis for departure here to go below the 31.2 months is Steadman, the State raises the objection that Steadman doesn’t hold for that.” Thus, the State did not preserve the argument that the departure was not based on competent substantial evidence.

Even assuming the State’s argument was preserved, we conclude that the departure basis was supported by competent substantial evidence. “Appellate courts apply a mixed standard of review when analyzing a downward departure sentence. First, the appellate court must determine whether the trial court applied the correct rule of law, and whether competent, substantial evidence supports the trial court’s reason for imposing a downward departure sentence.” State v. Simmons, 80 So.3d 1089, 1092 (Fla. 4th DCA 2012). The court “must then decide whether the trial court [abused its discretion] in determining that the downward departure sentence was the best sentencing option for the defendant by weighing the totality of the circumstances in the case.” Id. “[T]he trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2)[, Florida Statutes (2008) ], so long as the reason given is supported by competent,' substantial evidence and is not otherwise prohibited.” Id. (citing State v. Stephenson, 973 So.2d 1259, 1263 (Fla. 5th DCA 2008)).

In Florida, the concept of Sentence manipulation as a non-statutory basis upon which to depart downward was first addressed in Steadman, 827 So.2d at 1024. See also Dodier v. State, 125 So.3d 355, 356 (Fla. 5th DCA 2013) (suggesting that counsel’s failure to argue that Steadman applies at sentencing might also provide a basis for postconviction relief).' Explaining that the legislature’s purpose in enacting sentencing guidelines “is undermined when law enforcement is allowed discretion to determine what a criminal’s sentence will be,” the court held that “a trial court has discretion to impose a downward departure sentenee[ ] when law enforcement allows a defendant to continue criminal activities for no reason other than to enhance his or her sentence.” Steadman, 827 So.2d at 1025. After surveying the various standards utilized by federal and other state courts in applying the doctrine of sentence manipulation, the Steadman court concluded that because a showing of “outrageous conduct” on the part of law enforcement officers would constitute entrapment—a complete' defense to the charge—a lower standard should be employed as “[t]he trial court can mitigate a sentence based on conduct that is not sufficient to excuse the crime.” Id. (quoting Hines v. State, 817 So.2d 964, 965 (Fla. 2d DCA 2002)). The court articulated its standard as follows:

When considering sentence manipulation as a basis for downward departure, the trial court’s inquiry should focus on law enforcement intent: was the sting operation continued only to enhance the defendant’s sentence or did legitimate law enforcement reasons exist to support the police conduct, such as to determine the extent of the criminal enterprise, to establish the defendant’s guilt beyond a reasonable doubt, or to uncover any co-conspirators? ■ If legitimate law • enforcement concerns exist, then a downward departure based on .sentence manipulation is not warranted.

Id.

The State does not argue that the Stead-man standard is erroneous or that sentence manipulation is not a valid reason upon which to depart downward. Instead, the State argues that the departure was not based on competent substantial evidence here because law enforcement had legitimate reasons for continuing to make purchases from Johnson. The State also argues the evidence was insufficient because the supervising officer in Steadman testified that the sole purpose of making multiple purchases in that case was to increase Steadman’s sentence, 827 So.2d at 1024, whereas here, there was no similar testimony. We cannot agree.

First, contrary to the State’s suggestion, the Steadman court did not limit its holding to scenarios where law enforcement officers candidly confess their intent to engage in sentence manipulation. To be sure, imposing such a standard would nearly eviscerate the doctrine and incentivize officers to develop pretextual excuses for behavior that would otherwise constitute sentence manipulation.

More importantly, the trial court found that law enforcement officers did not have legitimate reasons for continuing to purchase drugs from Johnson, and its finding is supported by competent substantial evidence. The officer in charge of the operation testified that the legitimate reasons for the repeated transactions were primarily to obtain good audio and video recordings of Johnson’s criminal conduct, in order to make a strong case against Johnson, and to gain information on other mid-level drug dealers. However, through cross-examination of the officer, Johnson showed that these reasons were not legitimate because the officer was not actually pursuing these goals during the investigation.

As for the first goal, the lead officer testified that he obtained good audio and video recordings of each of the transactions. At trial, the State admitted into evidence all of these videos along with still frames clearly showing Johnson engaging in the transactions. Because law enforcement already had the necessary audio and video for a strong case after the first transaction, that goal could not serve as a legitimate basis to continue the transactions with Johnson.

Regarding the desire to meet mid-level dealers, the trial court found that the officers had the opportunity to investigate no fewer than six different individuals who brought the drugs to Johnson during the transactions but they made no effort to do so. The lead officer testified that during the transactions Johnson would “call somebody, and one of his dealers would show up with whatever drug we were ordering.” In fact, during the second and third transactions, when the officer bought both cocaine and cannabis from Johnson, two different dealers—one for each drug—showed up after Johnson called. Additionally, Johnson was almost always accompanied by someone different at each transaction because Johnson was driven to each transaction except for the final one. Despite the presence of all of these additional people and vehicles involved in the transactions, the officers concerned themselves exclusively with Johnson save for one effort made during the first transaction where they obtained the license plate of the car in which Johnson arrived. Although they ran that plate and discovered the identity of the individual driving Johnson, the officers took no further investigatory action as to that individual. The lead officer testified that there were always other members of his team observing, and that he had the ability to record these other potential suspects, yet he decided not to investigate the individuals who showed up at the transactions because he felt it would not lead anywhere. The officer also admitted that although Johnson mentioned a dealer by name during one of the transactions, the officer made no attempt to develop that dealer as a suspect. Tellingly, the lead officer testified that he realized things were “not panning out” before the final transaction but decided to go along with that transaction regardless. These facts belie the officer’s testimony that the legitimate reason for continuing the transactions was to identify mid-level dealers.

Although the trial court observed that there was no testimony that the officers deliberately engaged in sentence manipulation, it determined that because legitimate law enforcement concerns did not exist, the downward departure was warranted as “the purpose obviously was to conduct these sales with this defendant, not pursue anyone else.” The trial court emphasized the officer’s failure to investigate any of the other suspects, and the fact that the officer admitted that he knew Johnson was simply an addict and not a mid-level dealer.

With the exception of the testimony directly revealing the officers’ intent, the facts of this case are similar to Steadman, which involved six transactions on six different dates; transactions principally initiated by, and made exclusively to, undercover officers; transactions all for similar prices, substances, and quantities; and transactions all at the same location. 827 So.2d at 1023-24. In comparison, this case differed only in that it involved six transactions over the course of four different dates and involved transactions for both cocaine and cannabis on two of the dates following the first transaction, but the prices and quantities generally remained the same. Compare Steadman, 827 So.2d at 1023-24, with State v. Robinson, 149 So.3d 1199, 1204 (Fla. 1st DCA 2014) (finding no evidence of sentence manipulation where there was only one drug sale), State v. Hodges, 151 So.3d 531, 536 (Fla. 3d DCA 2014) (finding no competent substantial evidence supporting sentence manipulation where officers observed defendant engage in three hand-to-hand transactions over a period of thirty minutes, the defendant sold to private individuals, each of the purchasers was immediately arrested by officers, and there was no evidence that there were no legitimate reasons for not arresting the defendant after the first sale), United States v. Torres, 563 F.3d 731, 733-36 (8th Cir. 2009) (affirming the denial of a sentence manipulation departure where police engaged in six transactions over six weeks because (1) police could not and did not obtain video surveillance of the transactions, (2) they needed to gain the defendant’s trust, and (3) they explained that the goal of the investigation was to identify coconspirators, the drug source, and to investigate defendant’s ability to sell larger amounts of drugs; the court specifically rejected the argument that the officers’ failure to succeed in identifying coconspirators or the supplier evidenced sentence manipulation because the officers did succeed in ascertaining the quantities defendant was willing and able to deal), and United States v. Shephard, 4 F.3d 647, 649 (8th Cir. 1993) (explaining that sentence manipulation was not present where the government’s repeated transactions were material to breaking up another drug ring in the city and the government presented evidence of other drug dealings by the defendant). Thus, the trial court’s reason for imposing the downward departure was supported by competent substantial evidence.

Although we conclude that the departure basis was supported by competent substantial evidence, we must also conclude that the trial court erred in sentencing Johnson to anything below 31.2 months—what his lowest permissible sentence would have been if only the first of the instant charges had been scored. See Steadman, 827 So.2d at 1025-26 (“We emphasize that our holding is predicated on the fact that the sentence imposed did not go below what Steadman would have received in the absence of the sentence manipulation.”); see also Robinson, 149 So.3d at 1204 (noting that the sentence manipulation downward departure was inappropriate because “the county jail sentence imposed by the trial court in this case was well below the 39.75 month prison sentence that Robinson would have been subject to if he had only been charged with count 1”). On remand the trial court may once again impose departure sentences based upon its finding of sentence manipulation under Steadman. However, the trial court may not depart below what Johnson would have received in the absence of the sentence manipulation.

Accordingly, we reverse Johnson’s sentences and remand for resentencing within the range provided by Steadman.

Reversed and remanded for resentenc-ing.

LaROSE, C.J., and ROTHSTEIN-YOUAKIM, J., Concur.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Jessica Y. CHOI, Petitioner, v. AUTO-OWNERS INSURANCE COMPANY and Haley P. Beutler, Respondents.
    Case No. 2D16-4642
    District Court of Appeal of Florida, Second District.
    Opinion filed August 16, 2017.
    Kristin A. Norse and Stuart C. Mark-man of Kynes, Markman & Felman, P.Á., Tampa; and Joseph Bryant and A. Crosby Crane of Morgan & Morgan, Tampa, for Petitioner.
    Michael L. Forte of Rumberger, Kirk & Caldwell, P.A., Tampa, for Respondent’ Auto-Owners Insurance Company.
    No appearance, for remaining Respondent. ,
   SILBERMAN, Judge.

The underlying dction is an automobile negligence action filed by Jessica Y. Choi against alleged tortfeasor Haley P. Beutler and Choi’s underinsured motorist (UM) insurance carrier, Auto-Owners Insurance Company. Choi seeks certiorari review of an order granting Auto-Owners’ motion to sever the causes of action against the two defendants. We conclude that because all three claims were inextricably interwoven, the circuit court departed from the essential requirements of the law by granting the motion to sever. Accordingly, we grant the petition.

The .automobile accident occurred in September 2014. According to the.amended complaint, Choi was a passenger in a car that was struck by Beutler’s vehicle. Choi was seriously injured, and Beutler was underinsured. In count one, Choi sought recovery from Beutler for the injuries she suffered in the accident under á negligence theory. In count two, Choi sought UM benefits from Auto-Owners for damages she suffered in excess of the amount covered by Beutler’s insurance policy. In count three, Choi sought punitive damages against Beutler based on a claim that Beutler was intoxicated to the extent her faculties were impaired at the time of the accident.

Auto-Owners filed a motion to sever the UM claim against it from the claims against Beutler in counts one and three. Auto-Owners contended that Florida’s nonjoinder statute, section 627.4136(1), Florida Statutes (2014), required separate trials of Choi’s claims against the tortfea-sor and the UM carrier. Auto-Owners also argued it was entitled to severance under Florida Rule of Civil Procedure 1.270(b) to avoid prejudice from the jury’s discovering that Choi had insurance coverage and that Beutler was intoxicated at the time of the accident. The trial court granted the motion finding “Auto-Owners’ arguments to be the more logical and better reasoned view of the current state of the law and application of the rules of procedure in Florida.”

“A petitioner seeking a writ of common law certiorari ’must establish (1) a departure from' the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.’ “ Rogan v. Oliver, 110 So.3d 980, 982 (Fla. 2d DCA 2013) (quoting Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995))." The second and third elements are jurisdictional, and the failure to establish those elements requires dismissal of the petition without considering the merits. Id.

“Certiorari, is an appropriate remedy for orders severing, or bifurcating claims which involve interrelated factual issues because severance risks inconsistent outcomes.” Minty v. Meister Financialgroup, Inc., 97 So.3d 926, 931 (Fla. 4th DCA 2012). (quoting Kavouras v. Mario City Rest. Corp., 88 So.3d 213, 214 (Fla. 3d DCA 2011)). Choi’s claims against Auto-Owners and Beutler involve more than interrelated factual issues. In seeking recovery under the UM benefits available to her, Choi has in essence the same cause of action against her UM insurer, Auto-Owners, that she has against the underinsured tortfeasor, Beutler, for damages for bodily injury. See State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So.2d 632, 634 (Fla. 1982), Thus, an order severing Choi’s UM claim against Auto-Owners from her claims against Beutler may risk inconsistent outcomes and result in material injury that cannot be corrected on postjudgraent appeal.

On the merits, Choi argues that the severance order departs from the essential requirements of the law because it rests on Auto-Owners’ argument that the nonjoin-der statute applies to require severance. However, Auto-Owners has changed its argument from that which it presented below. It no longer asserts that the non-joinder statute requires severance of the UM claim. Rather, it correctly recognizes that joinder is permitted under the circumstances present here. But it asserts that the trial court had the discretion to grant the motion to sever under rule 1.270(b) because the prejudice to Auto-Owners outweighs Choi’s preference to have the claims tried together.

Rule 1.270(b) generally gives courts the discretion to sever claims “in furtherance of convenience or to avoid prejudice.” However, it is well-settled that it is a departure from the essential requirements of the law to sever claims that are inextricably interwoven based on the risk of inconsistent verdicts. See Rocket Grp., LLC v. Jatib, 174 So.3d 576, 576 (Fla. 4th DCA 2015); Minty, 97 So.3d at 931; Kavouras, 88 So.3d at 214; Bethany Evangelical Covenant Church of Miami, Fla., Inc. v. Calandra, 994 So.2d 478, 479 (Fla. 3d DCA 2008); Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So.2d 1022, 1024 (Fla. 1st DCA 1998). Thus, to the extent the trial court relied on rule 1.270(b) to support its decision, it was a departure from the essential requirements of the law.

Furthermore, we note that severance would not avoid prejudice to Auto-Owners arising from the claims against Beutler. First of all, the jury would still learn that Choi had insurance coverage in the severed UM action against her insurer. Second, the jury would also learn that Beutler was intoxicated at the time of the accident in the severed UM action. As we stated previously, Choi’s cause of action against Auto-Owners for damages arising from Beutler’s negligence is at heart the same as her cause of action against Beutler. While Choi need not establish entitlement to punitive damages in her action against Auto-Owners, the facts regarding Beut-ler’s alleged intoxication will be relevant to the issue of fault if Auto-Owners challenges liability, as it asserts it will. See Frazee v. Gillespie, 98 Fla. 582, 124 So. 6, 9-10 (1929) (holding that the intoxication of a driver may be a basis for liability for injuries sustained as a result of an accident if the accident was caused by a negligent or wrongful act that resulted from being intoxicated).

In conclusion, the trial court departed from the essential requirements of the law by granting the motion to sever three inextricably interwoven claims. We therefore grant the petition for certiorari and quash the order granting Auto-Owners’ motion to sever.

Petition granted; order quashed.

CASANUEVA and MORRIS, JJ., Concur.


author: PER CURIAM.

text:
    Michael A. GOSHAY, Petitioner, v. STATE of Florida; Julie L. Jones, Secretary, Florida Department of Corrections, Respondents.
    CASE NO. 1D17-2993
    District Court of Appeal of Florida, First District.
    Opinion filed August 16, 2017
    Michael A. Goshay, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondents.
   PER CURIAM.

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

WOLF, OSTERHAUS, and KELSEY, JJ., CONCUR.


text:
    RING POWER CORPORATION, Diesel Construction Company, and Mark David Quandt, Appellants, v. Gerardo CONDADO-PEREZ and Nancy Rodriguez-Ventura, Appellees.
    Case No. 2D16-3769
    District Court of Appeal of Florida, Second District.
    Opinion filed August 18, 2017
    Carrie Ann Wozniak of Akerman LLP, Orlando, and Katherine E. Giddings of Ak-erman LLP, Tallahassee, for Appellants.
    Barbara Green, Coral Gables, and Bet-sey T. Herd of Morgenstern & Herd, P.A., Tampa, for Appellees.
   PER CURIAM.

In light of the reversal of the underlying judgment on which the attorney’s fee order in this appeal is based, Ring Power Corp. v. Condado-Perez, 219 So.3d 1028, 1030 (Fla. 2d DCA 2017), we reverse the order on attorney’s fees. See ARC Foods, Inc. v. MGI Props., 746 So.2d 514, 514 (Fla. 2d DCA 1999); Siegel v. J.P. Morgan Chase Bank, 100 So.3d 783, 784 (Fla. 4th DCA 2012); S & I Invs. v. Payless Flea Mkt., Inc., 40 So.3d 48, 49 (Fla. 4th DCA 2010).

Reversed.

KHOUZAM, SALARIO, and BADALAMENTI, JJ., Concur.


text:
    Stanley Lynn SEDELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-428
    District Court of Appeal of Florida, Second District.
    Opinion filed August 18, 2017.

      Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Stanley Lynn Sedell appeals the order denying his motion to correct his illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and (b). Based on this court’s opinion in Parks v. State, 223 So.3d 380, 2017 WL 2615844 (Fla. 2d DCA June 16, 2017) (en banc), which recedes from the cases that the trial court relied upon in denying relief, we reverse the trial court’s order and remand for further proceedings.

Pursuant to a negotiated plea agreement Sedell was sentenced on three counts, with the charges reduced on counts two and three. He now challenges his sentences on counts two and three to thirteen years in prison to be followed by ten years of probation. Sedell and the State agree that Sedell’s sentences for the second-degree felonies in counts two and three are illegal because they exceed the statutory maximum of fifteen years.

In its order denying the motion, the postconviction court acknowledged that Se-dell cannot agree to an illegal sentence pursuant to a negotiated plea. See McDuffie v. State, 946 So.2d 99, 100 (Fla. 2d DCA 2006). But the postconviction court determined that the motion was improperly filed under either rule 3.800(a) or (b) and that the motion should have been filed pursuant to rule 3.850, concluding that Se-dell must seek to withdraw from the plea agreement. In doing so, the postconviction court relied upon Dominguez v. State, 98 So.3d 198 (Fla. 2d DCA 2012), and Nedd v. State, 855 So.2d 664 (Fla. 2d DCA 2003). In Parks, this court receded from those cases “to the extent that they can be read as requiring a challenge to a sentence that was imposed pursuant to a plea agreement and exceeds the statutory maximum to be brought only under rule 3.850.” Parks, 223 So.3d at 383.

Like the defendant in Parks, Sedell had entered into a negotiated plea agreement and sought relief from an illegal sentence via rule 3.800(a) when the time to file a motion under rule 3.850 had expired. See 223 So.3d at 381. The Parks opinion relies upon another line of cases to grant relief under rule 3.800. See Armstrong v. State, 145 So.3d 952 (Fla. 2d DCA 2014); McDuffie, 946 So.2d 99; Lang v. State, 931 So.2d 922 (Fla. 2d DCA 2005). Based on these cases, a defendant is entitled to re-lief on a rule 3.800(a) motion when an illegal sentence results from a negotiated plea. See Armstrong, 145 So.3d at 952; McDuffie, 946 So.2d at 100; Lang, 931 So.2d at 922. In that situation, the postcon-viction court should resentence the defendant within the statutory maximum if the State agrees to the resentencing; if the State does not agree, then the court must allow the defendant to withdraw his plea. See Parks, 223 So.3d at 382-83; Armstrong, 145 So.3d at 952; McDuffie, 946 So.2d at 100; Lang, 931 So.2d at 922.

Therefore, based on Parks, we reverse the postconviction court’s order. On remand, the court should impose sentences on counts two and three within the; statutory maximum of fifteen years if the State agrees to resentencing. If the State does not agree, then Sedell should be permitted to withdraw his plea.

Reversed and remanded.

CRENSHAW and SLEET,' JJ., Concur.

      . Because no appeal was pending and the motion was filed outside the time to file a notice of appeal, rule 3.800(b) is not applicable.


text:
    Femi ADOYE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3432
    District Court of Appeal of Florida, First District.
    Opinion filed August 21, 2017
    Candice K. Brower, Regional Conflict Counsel, and Michael Jerome Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Trisha Meggs Pate, Samuel Steinberg, and Jason W., Rodriguez, Assistant Attorneys General, Tallahassee, for Appellee,
   PER CURIAM.

The appellant, Femi Adoye, appeals his dual convictions for grand theft, a third-degree felony under section 812.014(2)(d), Florida Statutes (2015), and dealing in stolen property, a second-degree felony under section 812.019(1), Florida Statutes (2015). The appellant argues his dual convictions violate double jeopardy because both offenses. were committed during a single, ongoing scheme. See § 812.025, Fla. Stat. (2015). The State concedes this error. We reverse and remand to vacate the lesser grand theft, conviction. See Blackmon v. State, 121 So.3d 535, 548 (Fla. 2013); Jackson v. State, 197 So.3d 649 (Fla. 1st DCA 2016).

REVERSED AND REMANDED.

ROBERTS, OSTERHAUS and M.K. THOMAS, JJ., CONCUR.


text:
    CIRCLE-K STORES, INC./ Constitution State Services Company, Appellants/Cross-Appellees, v. Emerita FLORES-ORELLANA, Appellee/Cross-Appellant.
    CASE NO. 1D16-1715
    District Court of Appeal of Florida, First District.
    Opinion filed August 21, 2017
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.A., West Palm Beach, for Appellants/Cross Appellees.
    Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellee/Cross-Appellant.
   PER CURIAM.

In this workers’ compensation case, the Employer/Servicing Agent (E/SA) appeal an order of the Judge of Compensation Claims (JCC) awarding Claimant E/SA-paid attorney’s fees and costs based on Claimant’s success in a proceeding for modification. Claimant cross-appeals the JCC’s determination of the attorney fee amount and denial of a separate attorney’s fee for establishing fee entitlement. We affirm the issue on appeal, as well as the denial of a separate attorney’s fee challenged in the cross-appeal. However, we reverse and remand for a re-calculation of the fee amount because the JCC erred by calculating it using a discount factor based on evidence outside of the record. See § 440.34(1), Florida Statutes (2009).

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

ROWE, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    DNJS HOLDINGS, LLC, Dean Severidt, Justin Severidt & Nikolas Severidt, Petitioners, v. PET DOCTORS OPERATING LLC, Pet Doctors Holdings, LLLP, KLF Investments, Inc., Farzin Darabi, PetVet Care Centers, LLC, PetVet Care Centers (Florida), LLC, KAGC, Inc., and VPP, Inc., Respondents.
    CASE NO. 1D16-5859
    District Court of Appeal of Florida, First District.
    Opinion filed August 21, 2017

      Kansas R. Gooden of Boyd & Jenerette, Jacksonville; and R. Taylor Speer of Turner Padget Graham & Laney, P.A., Green-ville, SC, for Petitioners.
    Zachary R. Roth of Ansbacher Law, Jacksonville, for Respondents Farzin Dar-abi and KLF Investments, Inc.; and J. Rice Ferrelle, Jr. of Ferrelle Burns, P.A., Neptune Beach, for Respondents Pet Doctors Operating, LLC and Pet Doctors Holding, LLLP.
   PER CURIAM.

Petitioners filed a petition for writ of certiorari requesting we quash the trial court’s order granting respondents’ request for a protective order and denying petitioners’ request for discovery related to the 2015 sale of the companies Pet Doctors Operating LLC and Pet Doctors Holdings, LLLP. Petitioners argue discovery pertaining to this sale is essential to their cause of action filed under the Florida Uniform Fraudulent Transfers Act (FUFTA), in which they allege the 2015 sale was fraudulent. They argue the court’s order caused irreparable harm that cannot be remedied on appeal because the order completely prohibits their ability to bring the FUFTA claim.

Respondents have not argued that discovery pertaining to the 2015 sale would be irrelevant to petitioners’ cause of action under FUFTA, nor did the trial court specifically address the FUFTA claim in its ruling.

We find petitioners have demonstrated that information establishing the existence and amount of the 2015 sale is critical to their cause of action alleging that the sale was fraudulent. The order effectively eviscerates petitioners’ cause of action under FUFTA, and there is no other way for petitioners reasonably to obtain the information.

Recently, this court in PDR Grayson Dental Lab, LLC v. Progressive Dental Reconstruction, Inc., 203 So.3d 213 (Fla. 1st DCA 2016), granted certiorari relief where a plaintiff was denied discovery. The plaintiff purchased a laboratory business and later brought a cause of action against the seller for accounting and bookkeeping fraud. Id. at 214. Although the plaintiff obtained financial information from the seller before purchasing the business, he alleged the information he obtained from the seller was fraudulent and that it differed from the information the seller submitted to his accounting firm for tax return preparation. Id. This court found the plaintiff was irreparably harmed by not obtaining the documents because they were essential to his cause of action. Further, this court “could not remedy the harm of non-production on plenary appeal, because we could not ‘determine after judgment how the requested discovery would have affected the outcome of the proceedings.’ ” Id. at 215 (quoting Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So.3d 1232, 1234-35 (Fla. 2d DCA 2009)). See also Simpson v. State, 117 So.3d 412 (Fla. 2013) (finding defendant who sought discovery of physical evidence related to his postconviction claims demonstrated irreparable harm because without access, to that physical evidence, “[t]his would not only eviscerate his ability. to litigate and demonstrate his claims, but would deprive this Court of being able to conduct a meaningful review on appeal”); Anderson v. Vander Meiden ex rel. Duggan, 56 So.3d 830, 831 (Fla. 2d DCA 2011) (finding where defendant sought to raise the defense of setoff based on the plaintiffs settlement with other nonparties, trial court’s denial of request for discovery related to the settlement agreements created irreparable harm that could not be remedied on plenary appeal).

We find this case similar to PDR Gray-son and Giacalone, in which the Second District found a patient’s request for documentation regarding a hospital’s internal cost structure and the discounts granted to the various categories of patients that it served’was “critical” to establishing both his cause of action against the hospital alleging charges for his' treatment were unreasonable and his affirmative defenses against the hospital’s attempt to obtain payment from him. The discovery pertain-' ing to petitioners’ FUFTA claim is éssen-tial to their cause of action, and the court’s order created irreparable harm that cannot be remedied on appeal. Thus, we' GRANT the petition for writ of certiorari and QUASH the trial court’s order.

On remand, -the trial court should evaluate respondents’ request for confidentiality pursuant to Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936, 945 (Fla. 2002).

WOLF, RAY, and BILBREY, JJ.,. CONCUR.


author: PER CURIAM.'

text:
    Jason C. JARRELL, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3896
    District Court of Appeal of Florida, First District.
    Opinion filed August 21, 2017

      Mark V. Murray, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.'

Appellant, convicted of traveling to meet a minor and unlawful use of a computer service, was successful before the trial court in arguing the dual convictions violated his right to double jeopardy protection. The trial court struck -the unlawful use conviction and sentence, but rejected his assertion that he should-be resentenced pursuant to a revised scoresheet which, upon vacation of the unlawful use offense, cut in half his lowest permissible prison sentence. The state has filed an answer brief in this Court in which it concedes that the trial court should consider a revised scoresheet when making its sentencing decision. We therefore reverse and remand for preparation of a revised score-sheet for the trial court to consider upon resentencing. See Lashley v. State, 194 So.3d 1084 (Fla. 1st DCA 2016); Hamilton v. State, 163 So.3d 1277 (Fla. 1st DCA 2015) (both remanding for resentencing following-revision of the scoresheets).

REVERSED AND REMANDED.

ROWE, MAKAR, and JAY, JJ., CONCUR.


author: ROBERTS, J.

text:
    BROWNSVILLE MANOR, LP, Appellant, v. REDDING DEVELOPMENT PARTNERS, LLC, HTG Hammock Ridge, LLC, Florida Housing Finance Corporation, Grove Manor Phase I Ltd., JIC Grand Palms, LLC, Madison Palms, Ltd., and RST, The Pines, LP, Appellees.
    CASE NO. 1D16-2553
    District Court of Appeal of Florida, First District.
    Opinion filed August 21, 2017

      Michael P. Donaldson and Christine Davis Graves of Carlton Fields Jorden Burt, P.A., Tallahassee, for Appellant.
    Hugh R. Brown, General Counsel; Betty C. Zachem and Marisa G. Button, Assistant General Counsels, Tallahassee, for Appellee Florida Housing Finance Corp.
    Maureen M. Daughton of Maureen McCarthy Daughton, LLC, Tallahassee, for Appellee HTG Hammock Ridge.
    Douglas P. Manson and Paria Shirzadi of Manson Bolves Donaldson, P.A., Tampa, for Appellee Madison Palms, LTD.
    Donna E. Blanton of Radey Law Firm, Tallahassee, for Appellee JIC Grand Palms, LLC.
    M. Christopher Bryant of Oertel, Fernandez, Bryant & Atkinson, P.A., Tallahassee, for Appellee Redding Development Partners, LLC.
   ROBERTS, J.

The appellant, Brownsville Manor, L.P. (Brownsville), appeals a final order of the appellee, Florida Housing Finance Corporation (Florida Housing), arguing Florida Housing erred by reversing its determination that Brownsville was eligible for federal low-income tax credit funding. We agree and reverse.

The Competitive Solicitation

Florida Housing is the entity charged with allocating and distributing low income housing tax credits. Because the demand exceeds the supply, the tax credits are awarded competitively to housing developers for qualifying developments as governed by Chapter 67-60, Florida Administrative Code.

In 2015, Florida Housing issued Request for Application 2015-106, Housing Credit Financing for Affordable Housing Developments Located in Medium and Small Counties (the RFA), in which it expected to have up to $10,763,426 of housing credits available for developments serving families or the elderly to be located in medium counties. There were ninety-eight applications submitted in response to the RFA. The RFA applicants were first deemed eligible or ineligible for consideration for funding. The RFA included a point system in which the applicants received up to a total of twenty-eight points in three areas: (1) general development experience (maximum of five points); (2) local government contributions to the proposed development (maximum of five points); and (3) proximity to services needed by the tenants (maximum of eighteen points). The point totals were used to determine threshold eligibility and to rank the applicants. Because many of the applicants could potentially receive the same point total, the applicants were also assigned a randomly generated lottery number.

Relevant to the instant appeal is the proximity-to-services point category. In order to be eligible for proximity points, an applicant had to submit a Surveyor Certification Form that included a mandatory development location point (DLP). The DLP had to be a single point on the site on or within one hundred feet of the existing residential building or the building to be constructed as part of the proposed development. If a proposed development was a “scattered site,” as was Brownsville’s, the RFA stated that the DLP had to be “a single point on the site with the most units that is located within 100 feet of a residential building existing or to be constructed as part of the proposed development.” See also Fla. Admin. Code. R. 67-48.002(33). The DLP served as the starting point from which the distance to identified transit and community services was measured. Depending on how far each service was from the DLP, an applicant could receive a decreasing score based on point graduations set forth in the RFA. A medium county applicant had to achieve at least seven total proximity points in order to be considered eligible for funding.

Brownsville’s Application

Brownsville sought $1,510,000 in annual allocation of housing credits to finance the construction of an eighty-seven-unit development for seniors in Escambia County. Brownsville proposed a scattered site development consisting of two parcels divided by a publicly-maintained road known as North X Street. The parcel west of North X street was zoned “Commercial” as of the application deadline and was 1.45 acres in size. The parcel east of North X Street was zoned “Heavy Commercial/Light Industrial” as of the application deadline and was approximately 1.99 acres in size. The maximum allowable units under the zoning code was thirty-six units on the 1.45 acre parcel and fifty units on the 1.99 acre parcel. Brownsville elected to site its DLP on the smaller parcel.

In support of its-application, Brownsville submitted the required Local Government Verification that the Development is Consistent with Zoning and Land Use Regulations Form. The form was signed by Horace Jones, Escambia County Director of Development. It also submitted the required Surveyor Certification Form and the Acknowledgment and Certification Form, signed under penalty of perjury, which provides assurances the applicant will comply with all of the. RFA requirements. Brownsville’s application was deemed eligible, and it received the maximum available total score of twenty-eight points (including eighteen proximity points). Of the ninety-eight applications submitted, eighty-eight were found eligible, and nine were selected to receive proposed funding. Brownsville was not selected to receive proposed funding.

Bid Protest

Another applicant, Redding Development Partners, LLC (Redding), also received the maximum point score without being selectéd for funding; however, Red-ding had a higher lottery number than Brownsville, meaning it was behind Brownsville in the funding queue. Redding filed a formal written protest pursuant to sections 120.569 arid 1|0.57(1) and (3), Florida Statutes (2016), which challenged the eligibility/point distribution of Brownsville as well as several other applicants. Redding claimed that Brownsville should have received zero proximity points and been found ineligible for funding because it failed to comply with the RFA terms in that its selected DLP was not on the parcel with the most proposed residential units.

Brownsville took the position that at the time the DLP was selected, it had not definitively determined the development’s site configuration as the RFA did not require the applicants to submit a site plan at the application stage. Brownsville argued it submitted the required forms signed by local government, which demonstrated" that its proposed development was consistent with applicable zoning and land-use regulations. It also made clear it intended to comply with all of the requirements of the RFA. Brownsville argued that it intended to pursue “clustering,” which was allowed for under Escambia County’s Land Use Development Code. A clustering approach would treat Brownsville’s two individual parcels as a unified development that would allow up to eighty-seven total units, the majority of which could be placed on the smaller parcel, thus rendering its DLP in compliance with the terms of the RFA. Most importantly, Brownsville argued that this determination would be made at the final site plan approval phase, which occurs during, the credit underwriting process, not at the application stage. Brownsville referenced, the language of the RFA, which provided that for scattered site developments, an applicant must demonstrate that the development meets the requirements of the RFA during the credit underwriting process.

After an evidentiary hearing, which included testimony from Jones, Florida Housing executives, and Brownsville’s representative, the Administrative Law Judge (ALJ) entered a recommended order' finding Brownsville’s application should be deemed ineligible for funding. Specifically, the ALJ disagreed with Brownsville’s decision to rely on the future potential for clustering, finding that while that was a potentially viable process, Brownsville had not started the process before its application and there was no guarantee clustering would be approved as per Jones’s testimony that he was not sure if the density transfer was even a viable option. The ALJ determined this was a material, non-waiva-ble deviation from the terms óf RFA that rendered Brownsville ineligible for funding. Florida Housing entered a final order adopting the recommended order and determining Brownsville was ineligible for funding.

Analysis

This Court’s review of final agency action arising from a bid protest is governed by section 120.68(7), Florida Statutes (2016). Section 120.68(7) gives the Court statutory authprity to, among other things, remand or set aside agency action if such action depends on findings that are not supported by competent, substantial evidence or an agency’s erroneous interpretation of law and a correct interpretation compels a different result. Administrative conclusions of law are subject to de novo review, while findings of fact are reviewed for competent, substantial' evidence. AT & T Corp. v. State, Dep’t of Mgmt. Servs., 201 So.3d 852, 854 (Fla. 1st DCA 2016).

Florida Housing was required to interpret ’ the RFA consistently with its plain and unambiguous language. Creative Choice XXV, Ltd. v. Fla. Hous. Fin. Corp., 991 So.2d 899, 901 (Fla. 1st DCA 2008). Brownsville clearly complied with all of the RFA requirements at the application stage by submitting the required forms, providing a DLP, and providing the appropriate assurances that it intended to comply with all of the RFA terms. The ALJ focused on the fact that Brownsville had not commenced the clustering process at the time of application and there was no guarantee that clustering would be approved.. However, nothing in the RFA required. Brownsville to begin the clustering process or guarantee approval as of the application stage. This is underscored by'.the fact that an applicant was not required to submit a costly site plan at the application stage. Instead, the configuration of a proposed development would be fleshed out in the final site plan approval process, which occurs after the application stage during the credit underwriting. The RFA’s plain language clearly recognized the distinct stages in the process' by providing that a scattered site applicant must demonstrate compliance with the RFA “during the credit underwriting process.” We disagree with the ALJ’s reliance on Jones’s testimony as undermining Brownsville’s ability to secure approval for clustering. Jones testified that he did not yet know whether clustering would be appropriate for Brownsville’s development. This was not an unequivocal statement that clustering was not possible or that Brownsville could not build more than thirty-six units on the smaller parcel. Rather, Jones’s testimony illustrates that the true configuration of the proposed development was unknown at the application stage and could not be solidified until after site plan review, which occurs . during ■ credit underwriting. Brownsville complied with all that was required of it at the application stage under the plain and unambiguous terms of the RFA, Thus, we reverse the final order,as contrary to the. RFA and remand with instructions to reinstate Brownsville’s eligibility for funding.

REVERSED and REMANDED.

OSTERHAUS and M.K. THOMAS, JJ., CONCUR.

      , "Scattered sites" are defined in Florida Ad.ministrative Code Rule 67-48.002(105) as:
      "Scattered Sites,” as applied to a single Development, means a Development site that, when taken as a whole, is comprised of real property that is not contiguous (each such non-contiguous site within a Scattered Site Development, is considered to be a "Scattered Site"). For purposes of this definition "contiguous” means touching at a point or along a boundary. Real property is contiguous if the only intervening real property interest is an easement, provided the easement is not a roadway or street. All of the Scattered Sites must be located in the same county.

      . An RFA is treated as a Request for Proposal for the purposes of a bid protest under section 120.57(3). See Fla. Admin. Code R. 67-60.009(4).


text:
    Dominick DEANGELO, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    CASE NO. 1D17-0218
    District Court of Appeal of Florida, First District.
    Opinion filed August 22, 2017
    Dominick Deangelo, pro se, Petitioner.
    Mark Hiers, Assistant .General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   PER CURIAM.

The petition is denied on the merits.

RAY and KELSEY, JJ., and DOUGLAS, WESLEY R., ASSOCIATE JUDGE, CONCUR.


text:
    STATE of Florida, Appellant, v. Sidney C. FRAISER Jr., Appellee.
    CASE NO. 1D16-3720
    District Court of Appeal of Florida, First District.
    Opinion filed August 22, 2017

      Pamela Jo Bondi, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellant.
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Mobley v. State, 197 So.3d 572 (Fla. 4th DCA 2016), superseded by statute, Ch. 2017-115, § 9, at 8, Laws of Fla.

MAKAR and WINSOR, JJ., and BROWN, JOHN T., Associate Judge, CONCUR.


text:
    Robert T. HALSTEAD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1073
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    Robert T. Halstead, pro se.
   PER CURIAM.

Affirmed. See State v. Mancino, 705 So.2d 1379 (Fla. 1998); Long v. State, 529 So.2d 286 (Fla. 1988); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Vonador v. State, 915 So.2d 1231 (Fla. 2d DCA 2005); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Haynes v. State, 106 So.3d 481 (Fla. 5th DCA 2013); Sanchez v. State, 979 So.2d 1004 (Fla. 3d DCA 2008); Labadie v. State, 840 So.2d 332 (Fla. 5th DCA 2003).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


text:
    Carlos L. JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-80
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
   PER CURIAM.

Affirmed. See Fla. R. App. P. 9.315; Jackson v. Jones, SC17-201, 2017 WL 1398594 (Fla. Apr. 19, 2017); Baker v. State, 878 So.2d 1236 (Fla. 2004); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); State v. Broom, 523 So.2d 639 (Fla. 2d DCA 1988); Farrell v. State, 62 So.3d 20 (Fla. 1st DCA 2011); Branch v. State, 990 So.2d 585 (Fla. 3d DCA 2008); Thier v. State, 967 So.2d 259 (Fla. 3d DCA 2007); Jackson v. State, 837 So.2d 490 (Fla. 3d DCA 2003).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


text:
    Robert Thomas Jesse VANCE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1162
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
   PER CURIAM.

Affirmed. See § 775.21(4)(a)(l)(a), Fla. Stat. (2011); Adaway v. State, 902 So.2d 746 (Fla. 2005); Sheppard v. State, 907 So.2d 1259 (Fla. 2d DCA 2005); State v. Curtin, 764 So.2d 645 (Fla. 1st DCA 2000).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


text:
    John T. ADAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5612
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    John T. Adams, pro se.
   PER CURIAM.

Affirmed.

LaROSE, C.J., and KELLY and BLACK, JJ., Concur.


text:
    David N. JARRETT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1627
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    David N, Jarrett, pro se.
   PER CURIAM.

Affirmed. See McDonald v. State, 957 So.2d 605 (Fla. 2007); Knight v. State, 808 So.2d 210 (Fla. 2002); West v. State, 16 So.3d 1033 (Fla. 2d DCA 2009); Taylor v. State, 114 So.3d 355 (Fla. 4th DCA 2013); Souza v. State, 889 So.2d 952 (Fla. 5th DCA 2004).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


text:
    TRUSTBIZ, LLC, as Trustee Only, Appellant, v. DITECH FINANCIAL, LLC; Samuel C. McCollum; Lisa M. McCollum; and Cypress Meadows Homeowners Association, Inc., Appellees.
    Case No. 2D16-3709
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    Ivan D. Ivanov of The Ivanov Law Firm, P.A., Tampa, for Appellant.
    Erin M. Berger of Kelley Kronenberg, Tampa, for Appellee Ditech Financial, LLC.
    No appearance remaining Appellees.
   PER CURIAM.

Affirmed. See Bonafide Props. v. Wells Fargo Bank, N.A., 198 So.3d 694, 695 (Fla. 2d DCA 2016); Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So.3d 1087, 1089 (Fla. 2d DCA 2016), review denied, No. SC16-945, 2016 WL 6998444 (Fla. Nov. 30, 2016).

SILBERMAN, BLACK, and SALARIO, JJ., Concur.


text:
    Marcus A. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4397
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    Howard L. Dimmig, II, Public Defender, and Richard J, Sanders, .Assistant Public Defender, Bartow, for Appellant,
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed.

LaROSE, C.J., and LUCAS and BADALAMENTI, JJ., Concur.


text:
    Cristian SANCHEZ-PULIDO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5206
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017

      Brett S. Chase, St. Petersburg, for Appellant.
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045 (Fla. 2011); Tucker v. State, 726 So.2d 768 (Fla. 1999); Ellis v. State, 135 So.3d 478 (Fla. 2d DCA 2014); Lee v. State, 130 So.3d 707 (Fla. 2d DCA 2013); Howard v. State, 11 So.3d 967 (Fla. 2d DCA 2008).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


text:
    Takeshia KING, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1230
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    Takeshia King, pro se.
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045 (Fla. 2011); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Sweet v. State, 987 So.2d 747 (Fla. 2d DCA 2008); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Haynes v. State, 106 So.3d 481 (Fla. 5th DCA 2013); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


text:
    Keith Jubar JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1695
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed. See Fla. R. App. P. 9.140(b)(2)(A)(i); see also Leonard v. State, 760 So.2d 114 (Fla. 2000); Henderson v. State, 135 So.3d 1092 (Fla. 2d DCA 2013).

CASANUEVA, LUCAS, and BADALAMENTI, JJ., Concur.


text:
    James Lee ANTHONY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5636
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    James Lee Anthony, pro se.
   PER CURIAM.

Affirmed. See § 775.084(4)(b), Fla. Stat. (Supp. 1988); Johnson v. State, 60 So.3d 1045 (Fla. 2011); Williams v. State, 734 So.2d 1113 (Fla. 2d DCA 1999); Janvier v. State, 123 So.3d 647 (Fla. 4th DCA 2013); Romero v. State, 105 So.3d 550 (Fla. 1st DCA 2012); Pleas v. State, 41 So.3d 980 (Fla. 1st DCA 2010); Lykins v. State, 894 So.2d 302 (Fla. 3d DCA 2005); Thomas v. State, 778 So.2d 429 (Fla. 5th DCA 2001); Bloodworth v. State, 504 So.2d 495 (Fla. 1st DCA 1987).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


text:
    Juaquin E. NELSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1144
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    Juaquin E. Nelson, pro se.
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045 (Fla. 2011); Coppola v. State, 938 So.2d 507 (Fla. 2006); State v. Williams, 667 So.2d 191 (Fla. 1996); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Vidak v. State, 793 So.2d 27 (Fla. 2d DCA 2001); Haynes v. State, 106 So.3d 481 (Fla. 5th DCA 2013).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


author: BLACK, Judge.

text:
    IN the INTEREST OF I.N., a child. E.N., Petitioner, v. Department of Children and Families, Guardian Ad Litem Program, and K.O., Respondents.
    Case No. 2D17-1066
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017

      Susan M. Bodden and Alexander Peterson (withdrew after briefing) of Family First Legal Group, Naples; Susan M. Bod-den of Bodden Law Firm, Mediation & Arbitration, Naples (substituted as counsel of record) (withdrew after briefing), for Petitioner.
    E.N., pro se.
    Meredith K. Hall, Bradenton, for Respondent Department of Children and Families.
    Sara E. Goldfarb, Sanford, for Respondent Guardian ad Litem Program.
    Beverly L. Brennan, Naples, for Respondent K.O.
   BLACK, Judge.

E.N., the Mother of the minor child, I.N., petitions for certiorari review of the Order on Mother’s Motion for Evidentiary Hearing Prior to Reunification, which appointed a reunification therapist and directed the parties to follow the therapist’s directives about how reunification between I.N. and K.O., the Father, should be initiated and implemented. Because the order departs from the essential requirements of the law and causes irreparable harm, we grant the petition and quash the order on review.

I. Background

After I.N.’s birth in 2011, the Mother and the Father, who were never married, ended their relationship. The Mother and the Father shared custody of I.N. equally until I.N. was sheltered from the Father in January 2015. About a month later, the Department of Children and Families filed a petition for the dependency of I.N. solely as to the Father. The petition alleged that I.N. had been sheltered due to the Father’s alleged sexual abuse of I.N.’s “half siblings.” The “half siblings” were the Father’s girlfriend’s two children, who had been living with the Father, the girlfriend, and I.N. when I.N. was in the Father’s custody.

The Father denied the allegations in the petition but consented to I.N.’s dependency. I.N. remained in the Mother’s care, and the Father initially had supervised

visits with I.N. twice a week. But the visits were halted when I.N.’s treating psychologist, Dr. Mary Ellen Frazier, wrote a letter indicating that I.N. demonstrated anxiety and engaged in hypervigilant and aggressive behavior after visiting the Father. I.N. had indicated in therapy sessions that she did not want to visit the Father and consistently avoided the topic of the Father. In Dr. Frazier’s opinion, supervised visitation between the Father and I.N. was- not in I.N.’s best interest at that time. The dependency court entered a no contact order, and prior to the entry of the order on review, the Father had not seen I.N. since March 2015.

The Father was given a case plan with a goal of reunification. The case plan required that the Father complete a comprehensive behavioral health assessment and follow all recommendations; complete a forensic psychological assessment and follow all recommendations; complete a mental health assessment and follow all recommendations; participate in random drug screens twice a month and be clean of any substances; complete a substance abuse evaluation and follow all recommendations; and complete parenting education classes. Although the case plan originally included a psychosexual evaluation, this task was changed to a forensic psychological assessment at the Father’s request due to pending criminal charges against the Father based on the alleged sexual abuse of I.N.’s siblings.

Following resolution of the criminal proceedings and after the Father was released from jail, he sought reunification. The Mother filed a motion for evidentiary hearing prior to reunification to determine if reunification was in I.N.’s best interest. A hearing was held over three days in November 2016 and January 2017.

At the hearing, Dr. Frazier testified that she provided therapy to I.N. between January 2015 and April 2016. Due to I.N.’s age, Dr. Frazier primarily engaged in play therapy with I.N., but she had conversations with I.N. to the extent tolerated by I.N.

Dr. Frazier testified that I.N. had been experiencing behavioral problems, including aggressiveness with peers, sleep disturbances, discomfort with herself, intense avoidance of the topics of the shower— where the alleged sexual abuse occurred— and of the Father, hypervigilant behavior, and behavior that Dr. Frazier described as being frequently employed by children for relief of anxiety caused by exposure to sexual activity beyond their developmental stage. Dr. Frazier diagnosed I.N. with posttraumatic stress disorder (PTSD), with the Father being the trigger for her symptoms.

Dr. Frazier explained that as I.N. became more comfortable in therapy, she began to talk about some of her experiences in the Father’s home. She reported that the Father washed her and her siblings “inside out” and that they' all took turns washing the Father “as far up as they could reach.” It was apparent that I.N. was uncomfortable talking about these incidents. I.N. also reported that the Father would cuddle with her while naked and that he was frequently naked. Although I.N. was too young to discuss the difference between the truth and a lie, Dr. Frazier found her to be “believable and credible.”

■ As a result of the information that came out during therapy, Dr. Frazier wrote a letter to the court, which was introduced into evidence at the hearing. In the letter, Dr. Frazier advised the court' that new information had come to light that .showed that I.N, had not merely tangentially experienced these incidents but that she had individually experienced them. Dr. Frazier explained that I.N.’s status changed “from just having observed perhaps something happening to • other • children to actually experiencing what happens not only to the other children, but to herself and the absorption of that stress and trauma of the experience.’-’

Dr. Frazier testified that from a clinical standpoint,. I.N. “credibly talked about things that were sexually developmentally inappropriate that she experienced both personally and observationally.” Based upon.what I.N. told her about her experiences, Dr. Frazier believed that I.N. was a victim of inappropriate sexual behavior by the Father, which caused her PTSD. I.N.’s symptoms were at their worst when I.N. was having supervised visits with the Father. Once visitation stopped, the symptoms improved with -therapy.

Although Dr. Frazier testified that having no contact with the Father was necessary during the early stages of I.N.’s treatment; she did not have an opinion about whether I.N. should have contact .with the Father at the time of the hearing. But she testified that if I.N. were exposed to the Father, that contact would trigger I.N.’s PTSD symptoms for a period of time. If the court decided to permit reunification, I.N. would probably need counseling again to help her-cope with the symptoms.

Dr. Robert D. Silver, a licensed psychologist, testified that he performed a psychological evaluation of the Father. Dr. Silver described the Father as trying to portray that he was a normal person without pathological tendencies and prove that the sexual abuse allegations were simply misunderstandings about innocent behavior. The Father declined to answer Dr. Silver’s questions about the alleged sexual abuse, as the Father’s criminal case was pending at the time. The Father also declined to undergo a psychosexual evaluation.

Dr. Silver testified that sexual abuse of children is “highly persistent and recurrent, and remains a lifelong, possibility,” such that if the Father did engage in sexual behavior with a child, he would pose a substantial and continual risk to that child. Dr. Silver explained that if it were found that I.N.’s siblings had been sexually abused by the Father, I.N. would also be at risk for sexual abuse. Dr. Silver stated that if the allegations of sexual abuse were supported, the Father’s contact with I.N. should cease for her protection and the Father should participate in treatment to address his psychosexual proclivities. Dr. Silver further explained that “grooming is a pattern of behavior individuals who sexually abuse children use to try to make the child comfortable with the abuse by engaging in small steps of sexual behavior.” Cuddling naked with a child and routinely showering with a child could be, but are not necessarily, examples of grooming.

In Dr. Silver’s opinion, the Father’s “alleged sexual behavior could not be explained by [his] having psychopathology such as being depressed, [or suffering from] manic depression], schizophrenia], [or] a personality disorder.” The only other possible explanation for the alleged behavior would be sexual deviation, but Dr. Silver had insufficient information to reach a conclusion about that. Such a conclusion would require Dr. Silver to evaluate information from other sources about observed inappropriate sexual behavior by the Father. His ability to evaluate the Father for sexual deviance was also limited by the Father’s refusal to complete a psychosexual assessment.

The guardian ad litem (GAL) testified at the hearing. Based upon the reports generated by the child protection team, Dr. Frazier’s testimony, and the other information the GAL learned at the various hearings in the case, she did not believe it was in I.N.’s best interest to have contact with the Father. She did not believe there should be contact until a psychosexual evaluation had been performed on the Father and she had received some assurance that there would be no detriment to I.N. if she had contact with the Father.

Likewise, the case manager testified that reunification was not in I.N.’s best interest. She believed that I.N. would be at risk of sexual abuse if reunified with the Father. When I.N. was in contact with the Father, she displayed concerning behaviors. Since that contact was eliminated, I.N. had improved immensely and had not demonstrated any behavioral issues.

The case manager testified that the Father had completed his case plan tasks. And although she was not aware of the Father displaying any behavior that showed that he had not benefited from his case plan tasks, she did not believe that the tasks addressed the allegations that caused I.N. to be sheltered. She recommended that the Father undergo a psy-chosexual evaluation. She believed that a psychosexual evaluation was necessary to determine whether the Father should have contact with I.N. because it would indicate the risk to I.N. and the Father’s risk of violating his probation. She could not say that the Father had actually benefited from services when the services provided did not address the allegations of sexual abuse.

The Mother testified that she began to notice concerning behavior in I.N. in August 2014. I.N. became increasingly afraid of and resistant to going to the Father’s house. Once, when the Mother told I.N. that she was going to see the Father the next day, I.N. punched her in the face. I.N. would refuse to get into the car if she knew that she was going to the Father’s house. When I.N. talked about the Father, she would lower her voice and get teary-eyed. I.N. had begun picking her lips until they bled and having nightmares about monsters coming after her. The Mother testified that I.N.’s behavior had improved but that she still had nightmares. The Mother did not believe that contact between the Father and I.N. was appropriate or in I.N.’s best interest. She believed that the Father had sexually abused I.N. and her siblings, and she was concerned for I.N.’s safety.

The Father testified that he believed it was in I.N.’s best interest to resume contact with him. He could not understand why contact with him would not be good for I.N. He disagreed with Dr. Frazier’s diagnosis that I.N. had PTSD as a result of trauma caused by him, but he indicated that he would follow the therapist’s advice regarding reunification. He stated that he understood that reunification might be difficult for I.N. because she had not seen him in two years.

Following the hearing, the dependency court entered a written order appointing a reunification therapist and ordering the parties to begin reunification therapy. Thereafter, the Mother filed a petition for certiorari review of the dependency court’s order.

II. Discussion

“There is generally no right to review by appeal of nonfinal orders in child dependency proceedings. However, common law certiorari provides a remedy under appropriate circumstances .... ” A.A. v. Dep’t of Children & Families, 147 So.3d 621, 623 n.2 (Fla. 3d DCA 2014) (citations omitted). “Certiorari review of a nonfinal order is limited to errors that constitute a departure from the essential requirements of the law, causing irreparable injury, for which there is no adequate remedy on direct appeal.” Dep’t of Children & Families v. W.H., 109 So.3d 1269, 1270 (Fla. 1st DCA 2013) (quoting A.W.P. v. Dep’t of Children & Family Servs., 10 So.3d 134, 135 (Fla. 2d DCA 2009)).

The effect of the order at issue is to grant reunification and to begin the reunification process in accordance with the recommendations of the reunification therapist. Cf. J.C. v. Dep’t of Children & Family Servs., 83 So.3d 883, 887-88 (Fla. 2d DCA 2012) (“The order, which has the effect of prohibiting the grandfather from residing with his wife, results in an injury that cannot be remedied on postjudgment appeal.” (emphasis added)). The potential harm to I.N. from that reunification cannot be undone by direct appeal. Therefore, we must determine whether the dependency court’s order departs from the essential requirements of the law.

A. The applicable law on reunification

At the time the dependency court considered the request for reunification in this case, the law required that the court consider the parent’s compliance with the case plan, whether reunification would be detrimental to the child, and whether reunification would be in the child’s best interest. See § 39.522(3), Fla. Stat. (2016); see also W.H., 109 So.3d at 1270. The version of section 39.522(3) applicable for our review in this case provided:

In cases where the issue before the court is whether a child who is placed in the custody of a parent should be reunited with the other parent upon a finding of substantial compliance with the terms of the case plan, the standard shall be that the safety, well-being, and physical, mental, and emotional health of the child would not be endangered by reunification and that reunification would be in the best’ interest of the child.

Id. (emphasis added). Prior to July 1, 2013, courts were required to grant reunification absent a finding of endangerment if the parent seeking reunification had sub-' stantially complied with his case plan, T.N.L. v. Dep’t of Children & Families, 132 So.3d 319, 323 (Fla. 4th DCA 2014). However, the 2013 amendment to section 39.522, which added subsection (3), elevated the best-interest determination to’a status at least equal to that of the question of endangerment. Id. at 324. Thus, a court may deny reunification if it is not in the child’s best interest even if the court does not find that reunification would endanger the child. Id.; see ch. 2013-21, § 3, at 216, Laws of Fla.

Further, in any decision concerning a parent’s request for reunification, the dependency court is required to address the “best interest” factors in its written order:

(a) The compliance or noncompliance of the parent with the case plan;
(b) The circumstances which caused the child’s dependency and whether those circumstances have been resolved;
(c). The stability and longevity of the child’s placement;
(d) The preferences of the child, if the child is of sufficient age and understanding to express a preference;
(e) The recommendation of the current custodian; and
(f)The recommendation of the guardian ad litém, if one has been appointed.

§ 39.621(10).

Orders granting reunification in the absence of written findings addressing the, best interest factors have been held to constitute a departure from the essential requirements of the law. A.A., 147 So.3d at 623; W.H., 109 So.3d at 1270; see also Guardian Ad Litem Program v. Dep’t of Children & Families, 143 So.3d 1075, 1077 (Fla. 2d DCA 2014) (quashing order of reunification when the dependency court failed to make any oral findings related to the child’s best interest at the evidentiary hearing and the written order failed to include a finding that modifying placement was in the child’s best interest; nothing in the record, evidenced the court’s consideration of the child’s best interest in modify-’ ing placement). Orders granting reunification which are not supported by competent substantial evidence also constitute a departure from the essential requirements of the law. M.N. v. Dep’t of Children & Families, 120 So.3d 3, 6 (Fla. 1st DCA 2012); cf. E.H. v. Dep’t of Children & Family Servs., 979 So.2d 363, 364 (Fla. 2d DCA 2008) (granting petition for writ of certiorari where supervised visitation order was not supported by competent substantial evidence).

Here, the dependency court’s failure to expressly determine not only whether I.N. would be endangered by reunification but also whether reunification was in I.N.’s best interest was a departure from the essential requirements of the law. The court also departed from the essential requirements of the law because, while -its written order addresses the best interest factors of section 39.621, its findings are not supported by competent substantial evidence.

B. The dependency court’s order

In its order, after noting the then-applicable ■ requirements of section 39.622(3), the dependency court addressed the best interest factors. Under the circumstances of this case the most pertinent factors are (a), (b), (e), .and (f), and thus we focus on the evidence as to each of those factors.

First, the dependency court concluded that the Father had complied with his case plan because he completed the tasks therein. See § 39,621(10)(a). However, the court did not address this factor in conjunction with the then-applicable language of section 39.622(3), requiring a finding of “substantial compliance with the terms of the case plan,” “ (Substantial compliance’ means that the circumstances which caused the creation of the case plan have been, significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child’s parent.” § 39.01(77). Thus, substantial compliance means more than simply completing tasks. Whether a parent has substantially complied with a case plan “bears directly on the behavior that endangered the child’s safety or well-being,” N.F. v. Dep’t of Children & Family Servs., 82 So.3d 1188, 1192 (Fla. 2d DCA 2012), such that best interest factors (a) and (b) are interrelated. This conclusion is further supported by the amendment to section 39.522(3) and its focus on remediation of the circumstances which ‘caused the out-of-home placement.

In considering factor (b), resolution of the circumstances causing the child’s dependency, the court summarized the allegations of sexual abusé in the petition for dependency. It then focused on the statement in the petition' that the Father’s ¡girlfriend’s children were LN.’s half siblings, finding that the children were not I.N.’s siblings. This finding was made despite the unrefuted testimony that I.N. resided in the same house with the children while in the Father’s custody and referred to the children as her siblings, thus meeting the definition of sibling found in section 39.01(73)(b). The court also found that the Father was no longer involved with the girlfriend and that there was no evidence that he had another girlfriend. Presumably the court made these findings to show that the Father could no longer abuse I.N.’s siblings and that ■ no other children were presently in his life for him to abuse in I.N.’s presence.

These findings do not address the behavior that endangered I.N.’s safety or well-being, resulting in her dependency— the Father’s alleged sexual abuse of I.N.’s siblings. Nor do the findings address the Father’s conduct with respect to I.N. as reported by I.N. to Dr. Frazier—-conduct which Dr. Frazier concluded changed I.N.’s status from observer to victim.

The court’s order states that the case manager “testified [that) the Father has not shown any behavior to suggest he has not benefitted from services” arid that “the Father’s Case Plan Tasks addressed the safety issués that brought the child into shelter but [that] ‘this Case Plan’ does riot address ‘the problem.’” The court interpreted this testimony, “In other words, the Father benefited from services.” It then noted that “‘this Case Plan’ is the only Case Plan the court has to go on” and found that “the Father completed his tasks and benefited from services thereby resolving the circumstances which caused the child’s dependency.”

The court has mischaracterized the case manager’s testimony. The case manager testified that although case plan tasks are generally designed to address the safety issues that brought the child into shelter, this ease plan failed to specifically address the allegations of sexual abuse which caused I.N. to be sheltered. She also testified that this deficiency could be remedied by requiring the Father to undergo a psy-chosexual evaluation.

Moreover, it is illogical to find that the Father had, in fact, benefitted from services based on the case manager’s acknowledgment that she had no evidence that the Father had not benefited from services. It is similarly unsound to find that because the Father had completed case plan tasks only tangentially related to the cause of the child’s dependency, the circumstances which caused I.N. to be sheltered had been resolved. The court ignored the fact that the Father’s case plan did not actually provide the Father with any services to address his alleged sexual abuse of I.N.’s siblings.

The court’s order departs from the essential requirements of the law in failing to address and apply the definition of substantial compliance as it relates to the resolution of the circumstances requiring removal of the child. Further, because the court’s findings are not supported by competent substantial evidence, the order departs from the essential requirements of the law. The record is devoid of evidence supporting the dependency court’s conclusion that the circumstances that caused I.N.’s dependency were resolved.

In considering best interest factor (e), the recommendation of the current custodian, the court noted that the Mother opposed reunification, believed that the Father had sexually abused I.N., and believed that if reunification occurred, I.N. would be revictimized. In rejecting the Mother’s recommendation, the court observed that the Mother relied on Dr. Frazier’s opinion that I.N. was a victim, not merely a witness, but found that Dr. Frazier’s testimony was that I.N. was only a victim of inappropriate sexual behavior, such as showering with the Father and watching his girlfriend and his girlfriend’s children touch the Father’s genitals in the shower, and not a victim of sexual abuse.

Similarly, under factor (f), the recommendation of the GAL, the court noted that the GAL opposed reunification based upon her belief that contact with the Father and reunification therapy would be psychologically, emotionally, and physically harmful to I.N. because I.N. had been sexually abused by the Father and had witnessed the Father’s sexual abuse of her siblings. The court rejected the GAL’s recommendation, again reasoning that the GAL was relying upon Dr. Frazier’s testimony to support her position and that Dr. Frazier had not characterized the Father’s behavior as sexual abuse but as inappropriate sexual behavior.

The dependency court both misconstrued the evidence and failed to apply the correct law in reaching its asserted reason for discrediting the Mother’s and the GAL’s recommendations. The court departed from the essential requirements of the law by not applying the statutory definitions of victim, abuse, harm, and sexual abuse of a child within chapter 39. ‘Victim’ means any child who has sustained or is threatened with physical, mental, or emotional injury identified in a report involving child abuse, neglect, or abandonment, or child-on-child sexual abuse.” § 39.01(80). Section 39.01(2) defines “abuse” as “any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” “Harm” is defined to include “lewd or lascivious acts, as defined in chapter 800,” § 39.01(30)(b), which includes lewd or lascivious molestation, lewd or lascivious conduct, and lewd or lascivious exhibition, § 800.04(5), (6), (7), Fla. Stat. (2016). And section 39.01(70) defines “sexual abuse of a child” to include “(e) [t]he intentional masturbation of the perpetrator’s genitals in the presence of a child” and “(f) [t]he intentional exposure of the perpetrator’s genitals in the presence of a child, or any other sexual act intentionally perpetrated in the presence of a child, if such exposure or sexual act is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose.”

Here, Dr. Frazier’s testimony clearly established that I.N. was a victim of sexual abuse under the applicable statutory definitions. Further, the nomenclature used, sexual abuse or inappropriate sexual behavior, does not alter the substance of Dr. Frazier’s testimony. Dr. Frazier testified that I.N. told her that the Father had forced her to wash him in the shower and that he had washed her “inside and out.” This was conduct that I.N. not only observed her siblings experiencing but which she personally experienced. I.N.’s documented reactions to the Father’s conduct suggested to Dr. Frazier that these were not innocent behaviors, and Dr. Frazier found I.N.’s descriptions and demeanor credible. Dr. Frazier’s unrefuted testimony was that the Father’s behavior caused actual harm to I.N. in the form of PTSD with the Father being the trigger for her symptoms. It was only after undergoing therapy and eliminating contact between I.N. and the Father that I.N.’s symptoms improved. None of the Father’s case plan tasks served to remedy the Father’s behavior, which caused I.N.’s PTSD. Moreover, Dr. Frazier testified that if the court reunified the Father and I.N., I.N.’s symptoms would return. This' evidence established that reunification would harm I.N. and that reunification was not in her best interest.

In discounting the GAL’s recommendation, the court also rejected—on the incorrect basis that the children were not siblings—the suggestion that if the Father had abused the other children, I.N. would be at risk of sexual abuse as a sibling. This is also inconsistent with Dr. Silver’s testimony, which was not isolated to siblings.

Finally, the court found that because the Father’s criminal case had been resolved by a plea of no contest to two counts of child neglect and because he consented to the dependency without admitting any of the allegations in this case, there had been no finding that the Father had committed sexual abuse of LN.’s siblings and thus that he posed a danger to I.N. These findings ignore the evidence that I.N. suffers from PTSD as a result of the Father’s conduct and would again suffer those symptoms upon reunification. See G.V. v. Dep’t of Children & Families, 985 So.2d 1243, 1246 (Fla. 4th DCA 2008) (“A trial court’s findings as to the risks to the child or children’s safety or mental or emotional health, however, must be based on objectively reasonable grounds.”); see also Dep’t of Children & Families v. R.A., 980 So.2d 578, 580 (Fla. 3d DCA 2008) (“[Tjhere was no competent substantial evidence—by way of reliable expert testimony, compliance with a case plan (which had not yet been formulated) or anything other than the trial court’s own plainly insufficient observation and assessment of the mother during her testimony—to support her finding that the mother was ‘stable’ and thus (presumably) that the danger to the children presented by her mental illness had dissipated.”).

After addressing the best interest factors, the court took the position that denying the request for reunification in the absence of a “proposed alternative outcome” would be a de facto termination of the Father’s parental rights without the requisite support to do so. The court did not apply or consider the standard set forth in section 39.522(3): “the standard shall be that the safety, well-being, and physical, mental, and emotional health of the child would not be endangered by reunification and that reunification would be in the best interest of the child.” This is a clear departure from the essential requirements of the law.

III. Conclusion

Because the dependency court failed to apply the standard for reunification, among other applicable statutory provisions, and because its findings under the best interest factors of section 39.621 are not supported by competent substantial evidence, the court departed from the essential requirements of the law in granting the request for reunification, causing irrep-ai’able harm to I.N. We therefore grant the petition for writ of certiorari and quash the order on review.

Petition granted; order quashed.

NORTHCUTT and KELLY, JJ., Concur.

      . Unrefuted testimony at the evidentiary hearing concerning reunification established that I.N. lived with these children and referred to them as her siblings. See § 39,01(73), Fla. Stat. (2016). We will refer to them throughout this opinion as I.N.’s siblings.

      . On March 2, 2015, the State brought criminal charges against the Father. The State charged the Father with three counts of capital sexual battery of a child less than twelve, one count of lewd or lascivious conduct, and two counts of lewd or lascivious molestation with respect to one of I.N.’s siblings. About a year later, the Father pleaded no contest to two counts of child neglect. See § 827.03(2)(d), Fla. Stat. (2014). The other charges were nolle prossed. In accordance with his plea agreement, adjudication was withheld and the Father was sentenced to six months’ county jail followed by four years’ probation on one count and to a consecutive two years' probation on the second count.

      . The Father admitted to Dr. Silver that he routinely showered with I.N.

      . This court on its own motion stayed all actions directed by the order on review until further order of this court or final disposition of this proceeding.

      . Effective July 1, 2017, the text of section 39.522(3) has been amended. Now, "upon a finding that the circumstances that caused the out-of-home placement and issues subsequently identified have been remedied to the extent that the return of the child to the home of the other parent .., will not be detrimental to the child,” tire court must determine "that the safety, well-being, and physical, mental, and emotional health of the child would not be endangered by reunification and that reunification would be in the best interest of the child.”, § 39.522(3), Fla. Stat. (2017); see ch. 2017-151, § 13, at 26-27, Laws of Fla.

      . Effective July 1, 2017, the best interest factors have been renumbered from subsection (10) to subsection (11) of section 39.621. Ch. 2017-151, § 18, at 31, Laws of Fla. The factors themselves have not changed.

      .- Effective July 1, 2017, subsections (35) through (80) of section 39.01 have been renumbered as subsections (36) through (81), respectively; Ch. 2017-151, § 2, at 5, Laws of Fla. Citations to section 39.01 in the remainder of this opinion will be to the 2016 version.

      . In fact, at the time of the hearing, a motion to amend the case plan to include a psycho-sexual evaluation was pending. And while the court took umbrage with what it perceived as an eighteen-month delay in the filing of the motion to amend, the court did not take into account the posture of the Father’s criminal case during that timeframe—a fact that directly bore on the Father’s unwillingness to complete a psychosexual evaluation at the outset.

      . We note that it appears neither the court nor any of the parties considered the Keeping Children Safe Act, § 39.0139(1), in regard to the Father’s request for reunification. Under the Act, where a parent has entered a plea of guilty or nolo contendere to charges under chapter 827, there is a rebuttable presumption of detriment to a child. § 39.0139(3)(a)(2)(f). The burden is on the parent seeking reunification to rebut the presumption of detriment before reunification can occur. § 39.0139(4)(d), Here, there is no question that the Father pleaded to an enumerated offense under the Act, and because the evidence adduced at the hearing established that I.N, is a victim of sexual abuse, the Act’s rebuttable presumption of detriment is applicable. See § 39.0139(3); J.C., 83 So.3d at 888. It does not appear that the dependency court applied the presumption.

      . Again, we note that a motion to amend the case plan to include the requirement that the Father undergo a psychosoxual evaluation was pending at the time the court entered its order. Consideration of the motion would have obviated the court’s concern regarding de facto termination of the Father's parental rights and further informed the court as to the decision before it. Cf. S.P. v. Dep't of Children & Family Servs., 17 So.3d 878, 881 (Fla. 1st DCA 2009) (’’[T]he requirement to make findings presupposes evidence from which the trial court could make an informed decision.”).


text:
    Christopher Alexander AUSTIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1072
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    Christopher Alexander Austin, pro se.
   PER CURIAM.

Affirmed. See McDonald v. State, 133 So.3d 530 (Fla. 2d DCA 2013); Doby v. State, 25 So.3d 698 (Fla. 2d DCA 2009); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


text:
    John B. STARLING, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1035
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
   PER CURIAM.

Affirmed. See Lindquist v. State, 155 So.3d 1193 (Fla. 2d DCA 2014); Durant v. State, 177 So.3d 995 (Fla. 5th DCA 2015) (en banc); Walden v. State, 112 So.3d 578 (Fla. 4th DCA 2013); Thomas v. State, 828 So.2d 1045 (Fla. 4th DCA 2002).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


text:
    David M. O’BLOCK, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    CASE NO. 1D17-2900
    District Court of Appeal of Florida, First District.
    Opinion filed August 24, 2017
    David M. 0 Block, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Dismissed. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

LEWIS, RAY, and JAY, JJ., CONCUR.