text:
    Herman P. MAESTAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4774
    District Court of Appeal of Florida, Fourth District.
    [February 22, 2017]

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We affirm the revocation of the appellant’s probation as supported by competent evidence showing his willful and substantial violations. We also agree with the State’s concession of error, and remand for entry of a written order specifying each condition of probation the appellant violated. See Oertel v. State, 82 So.3d 152, 157 (Fla. 4th DCA 2012); Robinson v. State, 74 So.3d 570, 572 (Fla. 4th DCA 2011) (“Even though the record is clear, a formal, written order specifying each condition of probation violated must be entered in this case.”); King v. State, 46 So.3d 1171, 1172 (Fla. 4th DCA 2010).

Revocation affirmed, but remanded for entry of revocation order consistent with this opinion.

Levine, Klingensmith and Kuntz, JJ., concur.


source: Caselaw Access Project

author: Singhal, Raag, Associate Judge.

license: Public Domain

text:
    Johnny Lee LASTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-2068
    District Court of Appeal of Florida, Fourth District.
    [February 22, 2017]

      Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Singhal, Raag, Associate Judge.

Johnny Lee Laster (“appellant”) appeals his conviction and ten-year prison sentence for one count of robbery. He raises two issues: first, that the trial court was required to sua sponte have the appellant evaluated for competency; and second, that he was denied effective assistance of counsel where there was no objection to the State’s peremptory strike of a prospective juror. Finding no error, we affirm his conviction and sentence and write only to address the competency issue.

Factual Background

On September 3, 2008, the appellant attacked a victim and attempted to snatch her purse. He was arrested on September 17, 2008 and proceeded to trial on March 9, 2009 with a public defender. He filed a pro se motion to dismiss, which was denied as a nullity because he was represented by counsel.

During the six months from his arrest through trial, no issues arose regarding his competency. At trial, the State called six witnesses, including the victim. The defense rested without calling any witnesses, and, after a guilty verdict was returned, sentencing was set off for two weeks to allow the State time to order paperwork for prison release reoffender sentencing. For various reasons not explained in the record, sentencing was continued five times until late July 2009. At that time, and for the first time, defense counsel moved for appointment of experts to evaluate the appellant’s competence to proceed to sentencing.

With conflicting reports, the trial court declared the appellant not competent to proceed to sentencing. Ultimately, he was found competent more than one year later and, in December 2011, agreed to a term of ten years in state prison with credit for time served. A review of the entire record on appeal reveals no indicia of incompetence at any time until months after the guilty verdict.

Analysis

We review the trial court’s decisions regarding competency hearings under an abuse of discretion standard. Delisa v. State, 910 So.2d 418, 420 (Fla. 4th DCA 2005). In determining whether the court below abused its discretion, we must consider the statutory framework as well as case law governing competence to stand trial.

I. Florida Rule of Criminal Procedure 3.210

This rule, entitled “Incompetence to Proceed: Procedure for Raising the Issue,” provides the statutory authority regarding procedures and obligations for competency examinations. Subsection (b) of the rule states in pertinent part:

Motion for Examination. If at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the State, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition ....

Fla. R. Crim. P. 3.210(b).

The rule is clear and unambiguous. The plain meaning of the rule requires the court on its own to immediately order a hearing regarding a defendant’s competence, but only if there exists a reasonable ground to believe appellant is not competent. “[T]he trial court has no independent obligation to hold a competency hearing if there is nothing to alert the court that the defendant may lack competency.” Blackmon v. State, 32 So.3d 148, 150 (Fla. 4th DCA 2010).

Here, there was not even a scintilla of evidence to support a finding that a sua sponte competency evaluation was warranted. The record is devoid of anything that would support a reasonable ground to believe appellant was not mentally competent to proceed in this case. Any evidence regarding incompetence began to develop four months after the appellant’s trial concluded.

The appellant asks this court to create a new rule not only broadening the circumstances for conducting a sua sponte competency evaluation, but also requiring a retrospective evaluation and competency determination if, after trial, evidence comes to light supporting mental illness earlier in life. Because neither the legislature nor our supreme court have crafted such a rule, and because such a rule would be unworkable, we decline his request.

II. Case Law Regarding Retrospective Competency Evaluations

Florida courts have long rejected the idea of retroactive hearings to determine a defendant’s competency. See, e.g., Scott v. State, 420 So.2d 595, 598 (Fla. 1982). The difficulty in establishing competency retrospectively has also been recognized by the United States Supreme Court in the seminal case that governs all competency evaluations. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

Two cases worth noting appear to open the door to conducting retrospective competency evaluations. In Dougherty v. State, 149 So.3d 672 (Fla. 2014), our supreme court wrote: “Generally, the remedy for a trial court’s failure to conduct a proper competency hearing is for the defendant to receive a new trial, if deemed competent to proceed on remand.” Id. at 678-79. The court also found that “[a] new trial is not always necessary where the issue of competency was inadequately determined pri- or to trial; a retroactive determination of competency is possible.” Id. at 679. In Dougherty, the issue of competency had been initially raised while the case was pending, and prior to trial. Id.

In United States v. Wingo, 789 F.3d 1226 (11th Cir. 2015), Judge Rosenbaum found that the trial court had reasonable grounds to believe the defendant there was not competent to plead guilty, and remanded the case for a retrospective determination of competence. Id. at 1239. In Wingo, among other things, at least three medical doctors had expressed doubts about the defendant’s competence during the pendency of the case and prior to his guilty plea. Id. at 1237.

Here, the case was pending sentencing when competency concerns first surfaced. Some four months after the conclusion of his trial and determination of guilt, competency issues were raised in the form of a motion for evaluation regarding competence to proceed to sentencing. Faced with this motion, the trial court properly conducted evaluations and hearings over a three year period before- finally sentencing appellant. Unlike Dougherty and Wingo, no issue existed prior to the conclusion of the guilt portion of the case. Therefore earlier evaluations were not mandated.

Conclusion

We affirm the appellant’s conviction and sentence, finding no error by the trial court. The plain meaning of Florida Rule of Criminal Procedure 3.210 requires that a trial court sua sponte order competency evaluations only where there exists a reasonable ground to believe appellant is not competent to proceed. This case presents no facts that would trigger the obligation codified in the rule.

Affirmed,

Warner and Gross, JJ., concur.


author: Per Curiam.

text:
    M.S., The Father, Appellant, v. STATE of Florida DEPARTMENT OF CHILDREN AND FAMILIES and the Guardian ad Litem Program, Appellees.
    Nos. 4D16-3905 and 4D16-3906
    District Court of Appeal of Florida, Fourth District.
    [March 3, 2017]
    Crystal J. Marsh of Marsh Law Firm, P.A., Port Saint Lucie, for appellant.
    Kelley Schaeffer of Children’s Legal Services, Bradenton, for appellee State of Florida Department of Children and Families.
    Laura J. Lee, Sanford, for appellee Guardian ad Litem Program.
   Per Curiam.

Appellant' appeals separate orders terminating his parental rights as to A.S. (Case No. 16-3905) and M.S. (Case No. 16-3906). We have consolidated these appeals for all purposes. Based on appellees’ confessions of error, we reverse the final orders terminating the appellant’s parental rights and remand this case to the trial court for further proceedings consistent with the best interest of the children.

Reversed and Remanded.

Gross, Taylor and Damoorgian, JJ., concur.


author: PER CURIAM.

text:
    Gaston CARTY and Marlene J. Carty, Appellants, v. BANK OF AMERICA, N.A., Appellee.
    No. 4D16-635
    District Court of Appeal of Florida, Fourth District.
    [March 8, 2017]
    Anthony J. Badway and Kendrick Alma-guer of The Ticktin Law Group, PLLC, Deerfield Beach, for appellants.
    Adam M. Topel of Liebler Gonzalez & Portuondo, Miami, for appellee.
   PER CURIAM.

We reverse the summary final judgment of foreclosure because a genuine issue of material fact was created by the two different versions of the note filed by the appellee bank. Attached to the original complaint was a copy of the original note which contained three indorsements on the last page of the note. Attached to the amended complaint and to the summary judgment motion was a purported copy of the original note which contained two in-dorsements on the last page of the note and a third indorsement on an allonge. Appellants’ amended answer raised lack of standing as an affirmative defense and challenged the validity of the allonge. In support of its motion for summary judgment, the bank neither addressed the discrepancy between the notes nor countered the lack of standing defense.

Reversed and remanded.

Gross, May and Damoorgian, JJ., concur.


author: May, J.

text:
    Amy MCCLURE, Appellant, v. James BECK, Jr., Appellee.
    No. 4D15-3173
    District Court of Appeal of Florida, Fourth District.
    [March 8, 2017]
    Kate Watson of Vastóla & Kirwan, P.A., North Palm Beach, for appellant.
    Allison M. Perry of Florida Appeals & Mediation, P.A., Tampa, and Margaret K. McCain of Margaret Keys McCain, P.A., Vero Beach, for appellee.
   May, J.

The former wife appeals an order modifying the time-sharing aspects of a final judgment of dissolution. She raises four issues. We find merit in her argument that the trial court erred in giving the former husband ultimate decision-making authority without specifying the areas over which the parent could exercise that authority. We therefore reverse that aspect of the order, but affirm in all other respects.

The final judgment of dissolution incorporated a marital settlement agreement (“MSA”). The MSA provided each parent with equal time-sharing over their three children. It also provided that the parties shall reside in Indian River County, Florida.

Several years later, the former wife filed a petition to relocate to California with the children. Her petition proposed a parenting plan, which afforded the former husband 108 overnights with the children and every major holiday break from school. The trial court denied the former wife’s petition for relocation. The court found that changing the equal time-sharing provisions was not in the best interests of the children. Nevertheless, the former wife remained in California.

The former husband then petitioned to modify the final dissolution of marriage. He proposed the parties continue their shared parental responsibility and jointly make all major decisions regarding the welfare of the children, but he asked to have ultimate decision-making authority if they were unable to agree. He asked to modify the time-sharing schedule to provide for the children to reside with him during the school year and to give the former wife four to six weeks in the summer, alternate Thanksgivings, one week during winter break, every spring break, and weekends in Florida. He asked that the former wife be ordered to pay all travel expenses necessary for her time-sharing.

The former wife filed a counter-petition, in which she asked for 137 overnights, including the entire summer vacation, spring break, Thanksgiving break every year, winter break in odd years, and the first week of winter break in even years. She also requested that the anticipated travel expenses be allocated to the parties in the same guidelines ratio that governed other child care expenses.

A magistrate heard the matter and made the following findings and recommendations. The former wife’s proposal would be “unfair” to the former husband and children, and financially untenable. It recommended that the former husband be responsible for purchasing the roundtrip airline tickets for the three children for summer time-sharing with the former wife, and for the former wife to be responsible for the cost of the children’s tickets for her Thanksgiving, winter, and spring break time-sharing.

The magistrate recommended the former wife have time-sharing with the children for five consecutive weeks beginning one week after the last day of school, every spring break, and alternate winter breaks. Each parent received alternate Thanksgiving breaks, and the former wife received two consecutive weekends in Florida with the children in February and October. The former wife was given the option of two weekends per month with the children in Florida if she elected to travel and provided the former husband proper notice.

In short, the former wife was awarded 59 overnights per year while the former husband was awarded 306 overnights per year. The former husband was given ultimate decision-making authority should the parties disagree on major decisions regarding the welfare of the children.

The former wife filed exceptions to the magistrate’s recommended final judgment, claiming the recommendations were not focused on the best interests of the children. The trial court denied the exceptions, found the recommendations were supported by competent substantial evidence, and approved the recommended final judgment. The trial court denied the former wife’s motion for rehearing. From this order and the underlying judgment, the former wife now appeals.

On appeal, the former wife argues the trial court erred in awarding the former husband ultimate decision-making authority over all aspects of the children’s lives because there was no competent, substantial evidence to support such a decision. The former husband responds that competent, substantial evidence supports the trial court’s decision.

A trial court’s decision to adopt a magistrate’s conclusions is reviewed for an abuse of discretion. Glaister v. Glaister, 137 So.3d 513, 516 (Fla. 4th DCA 2014). We have de novo review of the “trial court’s decision that the findings of fact ... are supported by competent, substantial evidence and are not clearly erroneous while giving both the magistrate and the trial court the benefit of the presumption of correctness.” Id.

We have previously held that giving the primary residential parent unlimited decision making authority over all matters regarding the children is incompatible with shared parental responsibility. Schneider v. Schneider, 864 So.2d 1193, 1195 (Fla. 4th DCA 2004). But, giving one parent ultimate authority over specific matters in situations where the parties are unable to come to an agreement is allowed. Id. The final judgment must therefore delineate the “specific aspects of the child’s welfare” over which the parent shall have ultimate responsibility to comply with section 61.13(2)(b)2.a., Florida Statutes (2015). Id. at 1194 (emphasis in original).

Here, the final judgment fails to delineate the specific aspects of the children’s welfare over which the former husband will have ultimate decision-making authority. The order dictates that the parties shall confer and attempt to agree on all major decisions affecting the welfare of the children. “Major decisions include, but are not limited to, decisions about the children’s education, healthcare, and other responsibilities unique to this family. If the parties are unable to agree the Father shall have ultimate decision-making authority.” (Emphasis added).

The order fails to specify concrete aspects of the children’s lives that the former husband will have ultimate decision-making authority over. By using the phrase, “include, but are not limited to,” the court left the father’s decision-making authority open-ended. This problem is compounded by the additional language: “and other responsibilities unique to this family,” This leaves open all decisions affecting the children.

The most analogous case is Kuharcik v. Kuharcik, 629 So.2d 224 (Fla. 4th DCA 1993). There, the final judgment stated that, the “[pjarents are to consult each other on long range and major decisions, and if no agreement can be reached, the primary residential parent will decide.” Id. at 225. We reversed because the trial court failed to delineate the specific aspects of the child’s welfare the parent would have ultimate responsibility over. Id. But see Schneider v. Schneider, 864 So.2d 1193, 1195 (Fla. 4th DCA 2004) (language complied with section 61.13 by identifying three aspects of the children’s lives— health, education, and travel).

Here, however, the final judgment failed to identify specific areas over which the former husband had final decision-making authority. For this reason, we reverse and remand for the court to address this issue only.

Affirmed in part, reversed in part and remanded.

Gross and Damoorgian, JJ., concur.


text:
    D.A.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2645
    District Court of Appeal of Florida, Fourth District.
    [March 8, 2017]
    Carey Haughwout, Public Defender, and Virginia Murphy, West Palm Beach, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, West Palm Beach, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant D.A.H. challenges his juvenile disposition, in which the trial court departed upwards from the Department of Juvenile Justice (“DJJ”) recommended disposition of probation and committed him to a non-seeure residential program, without requesting a restrictiveness level recommendation for this commitment from DJJ. The State concedes that this was reversible error. See E.A.R. v. State, 4 So.3d 614 (Fla. 2009); D.R. v. State, 178 So.3d 478, 479 (Fla. 4th DCA 2016). We find that the issue was properly preserved. See H.D. v. Shore, 134 So.3d 1062, 1063 (Fla. 4th DCA 2013); A.L.B. v. State, 23 So.3d 190 (Fla. 5th DCA 2009). We therefore reverse for a new disposition hearing.

Reversed and remanded.

Warner, Gerber and Kuntz, JJ., concur.


author: Gerber, J.

text:
    A.L.Y., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D15-4391, 4D15-4392, 4D15-4394, 4D15-4395 and 4D15-4416
    District Court of Appeal of Florida, Fourth District.
    [March 8, 2017]

      Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, J.

In these consolidated cases, the juvenile appeals from the circuit court’s ruling that he violated his probation. He argues that the court erred by failing to hold a hearing to determine his mental condition after the court had reasonable grounds to believe he was incompetent to proceed. We agree with his argument, and reverse and remand for a nunc pro tunc competency hearing, if possible under the circumstances, and for entry of a written order concerning the juvenile’s competence to proceed.

Procedural History

The circuit court placed the juvenile on probation for five cases which have been consolidated in this appeal. The underlying offenses included: resisting without violence, two counts of battery, disrupting a school function, criminal mischief, and domestic battery.

The Department of Juvenile Justice (DJJ) later alleged that the juvenile violated probation by committing a domestic battery against his mother.

Before the final probation violation hearing, the juvenile’s attorney filed a “motion to appoint experts for a competency evaluation with certificate of good faith.” The juvenile’s attorney outlined several reasons to support the motion, including that “[t]he [juvenile] does not exhibit proper courtroom behavior,” “[t]he [juvenile] appears to lack the capacity to interact appropriately with his lawyer in discussing his case,” and “[c]ounsel for the [juvenile] cannot communicate effectively with the [juvenile] in order to obtain pertinent information in order to provide a proper defense.”

Based on the motion, the court issued an order appointing two experts to determine the juvenile’s competency.

Later, during a status check hearing at which the juvenile was not present, the DJJ’s in-court liaison said that the juvenile had been “evaluated by the doctors.” The in-court liaison further stated, “And I spoke to [one of the court appointed doctors] yesterday.... [The juvenile is] competent on both cases.” The court then reset the hearing.

At the next hearing, the juvenile was not present again. The court decided to set the matter for a final probation violation hearing at which the juvenile’s presence was required. In doing so, the circuit court stated, “He’s competent; ready to go.”

At the final probation violation hearing, the following discussion occurred at sidebar:

[JUVENILE’S ATTORNEY:] So, we’re in the hallway, talked to my client and he claims that we’ve already had this hearing. He claims that he’s already testified in front of you. He claims that this is all done and he’s just coming here for statuses.
I’m not exactly sure where to go with this. I’m just putting it on the record. We’ve already had a competency. He came back competent.

After the sidebar, the state proceeded with its evidentiary presentation regarding the probation violation. The court found that the juvenile violated his probation.

Following the court’s finding, another sidebar occurred as follows:

[JUVENILE’S ATTORNEY:] Judge, when we were doing the final violation hearing my client kept on talking to me about his mother[,] demanding a DNA test, demanding that she wasn’t his mother.
Stating that he wanted a blood test taken. That he is extremely agitated throughout the entire proceeding. But kept on insisting that she was not his mother and wanted a DNA test.
And ... my trial partner had to calm him down so he wouldn’t shout that out. I’m just letting the record [be] clear.... We had two competency evaluations where he came back competent. At the table he ... sure wasn’t acting that way. And I could not get a lot of cooperation from my client in assisting in his defense, however.
[COURT:] However, when he wants to cooperate he can be very cooperative. He can be extremely articulate. I heard a lot of information from him one time that really showed some insight of what was going on in that house.... Of what the situation is. I need your advice right now to keep the situation calm....
[JUVENILE’S ATTORNEY:] Your Honor, I can’t guarantee what would happen. That’s all I have to say. I know that I asked the mom right after the testimony ... “Is he on medication?” and she said, “No.”
[ASSISTANT STATE ATTORNEY:] And Mom indicated to me, though, when I was speaking to her prior to trial, that even two days ago and yesterday he’s [been] putting his hands on her and her little ten-year-old daughter. And she still feels in fear of her safety around her child....

Ultimately, the court sentenced the juvenile to a non-secure residential treatment program. However, nothing in the record indicates that a competency hearing took place or that the court reviewed the competency evaluations, aside from the court’s statement that “[the juvenile’s] competent; ready to go.”

This appeal followed. The juvenile argues that the court erred by failing to hold a hearing to determine his mental condition after the court had reasonable grounds to believe he was incompetent to proceed. The state responds that the juvenile failed to preserve this issue for appeal because he failed to object to the expert evaluations’ findings and failed to object to the court’s oral pronouncement that he was competent to proceed. Alternatively, the state argues that the court, with the juvenile’s agreement, properly relied on the expert evaluations concluding the juvenile was competent, and made an oral pronouncement to that effect.

Whether the circuit court fundamentally erred in failing to hold a competency hearing presents a pure question of law subject to de novo review. Presley v. State, 199 So.3d 1014, 1017 (Fla. 4th DCA 2016).

Analysis

We agree with the juvenile’s argument. The court had reasonable grounds to believe the juvenile was incompetent to proceed, and thus the court was required to stay the proceedings and schedule a competency hearing.

Florida Rule of Juvenile Procedure 8.095(a)(2) states:

If at any time prior to or during the adjudicatory hearing or hearing on a violation of juvenile probation the court has reasonable grounds to believe the child named in the petition may be incompetent to proceed with an adjudicatory hearing, the court on its own motion or motion of counsel for the child or the state shall immediately stay the proceedings and fix a time for a hearing for the determination of the child’s mental condition.

When the competency question is raised by the juvenile’s attorney or the state, the court “shall ... appoint no more than 3, nor fewer than 2, disinterested qualified experts to examine the child as to competency ....” Fla. R. Juv. P. 8.095(c)(1) (2015).

However, expert evaluations are not dis-positive and the parties may introduce “other competent evidence” at a competency hearing for the court’s consideration. Id. “The appointment of experts by the court shall not preclude the state or the child from calling other expert witnesses to testify at ... the hearing to determine the mental condition of the child.” Id. If, at the hearing required by rule 8.095(a)(2), the juvenile is found competent to proceed, “the court shall enter an order so finding and proceed accordingly.” Fla. R. Juv. P. 8.095(a)(3) (2015).

The procedural rules governing competency determinations in juvenile cases parallel the procedural rules in the adult criminal cases. Compare Fla. R. Juv. P. 8.095 (2015) and § 985.19(1), Fla. Stat. (2015), with Fla. R. Crim. P. 3.210 (2015) and Fla. R. Crim. P. 3.212(b) (2015). As such, our recent decision in Deferrell v. State, 199 So.3d 1056 (Fla. 4th DCA 2016), is instructive.

In Deferrell, the defendant underwent three competency evaluations, all of which opined that the defendant was competent to proceed. Id. at 1059-60. Although the court set a date for the competency hearing and a status conference occurred on that date, no competency hearing occurred and no discussion regarding the reports occurred on the record. Id. at 1060. The court also never issued any order finding the defendant competent to proceed. Id. at 1061. On appeal, the defendant argued the court erred in failing to hold a competency hearing and enter an order determining his competency status. Id. at 1060. In response, the state argued that it was not necessary to conduct a competency hearing because all three evaluations found the defendant competent to proceed. Id. at 1061. The state also argued that the defendant waived his right to a hearing by not insisting on a hearing. Id.

We concluded the state’s arguments lacked merit, reasoning:

The written reports are advisory to the trial court, which itself retains the responsibility of the decision. Under these circumstances a defendant may not waive his or her right to a competency hearing even if the experts unanimously find the defendant competent to proceed.
Two important details arise from this analysis. First, even if the evaluations unanimously agree that the defendant is competent, the court still must conduct a hearing. Second, in response to the State’s argument that [the defendant] waived his right to a hearing by not continuously requesting one, .,. even an express waiver of a hearing does not comport with the statute. It logically follows then, that an implicit waiver also would not serve to bypass the requirements of the statute.

Id. (internal citations and quotation marks omitted).

The state’s arguments in Deferrell mirror its arguments here. As a preliminary consideration, it is difficult to accept the state’s contention that the juvenile’s attorney’s comments regarding the competency evaluations functioned as a formal stipulation. On the contrary, the record reflects that the juvenile’s attorney continued voicing her doubts as to the juvenile’s competency to proceed despite the evaluations’ conclusions.

Nevertheless, even if we accept the state’s suggestion that the juvenile’s attorney stipulated to the competency findings, the court still was required to hold a hearing and make an independent competency finding. “That task is expressly left to the trial judge and that authority may not be delegated to the lawyers in the case.” S.B. v. State, 134 So.3d 528, 529-30 (Fla. 4th DCA 2014) (citation omitted). In other words, although the parties and the court may agree that the court may decide the issue of competency on the basis of the written reports alone, the juvenile can neither implicitly concede nor explicitly stipulate to the ultimate issue of his own competency. Id,

The state’s reliance on the court’s statement, “[the juvenile’s] competent; ready to go,” as the court’s competency finding, is unavailing based on our recent precedent. See Presley v. State, 199 So.3d 1014, 1019 (Fla. 4th DCA 2016) (even though the court informed the parties that it had received information indicating the defendant had been reevaluated and his competency had been restored, it was “unclear from the record whether the trial court actually reviewed the expert’s report declaring appellant competent to proceed”). The court’s statement here was made during a status check hearing, at which the juvenile was not present, and the discussion topic was scheduling, not competency. Thus, the court’s statement was not made in a context suggesting the court intended to pronounce an oral finding of the juvenile’s competency to proceed.

Moreover, the court’s statement cannot represent an independent factual finding that the juvenile was competent to proceed where nothing in the record indicates that the court reviewed the reports, instead of merely relying on the DJJ’s in-court liaison’s statements that the juvenile had been “evaluated by the doctors” and was “competent on both cases.” See id. (“[W]hile defense counsel did make representations below to the effect that appellant’s competency had been restored, the court was not permitted to simply rely on defense counsel’s representations”).

As for a remedy, the juvenile is not automatically entitled to a new probation violation hearing. “Rather, where the issue of competency was inadequately determined below, a retroactive determination of competency may be possible where there are enough expert and lay witnesses who examined or observed the [juvenile] contemporaneous with the relevant stage of the proceeding and are available to offer pertinent evidence at a retrospective hearing.” Id.

Thus, on remand, if the court is able to make a nunc pro tunc finding as to the juvenile’s competency in a manner which comports with due process considerations, then it should do so and enter a written order accordingly. Id. On the other hand, if the court should find, for any reason, that an evaluation of the juvenile’s competency at the time of the proceeding on the probation violation cannot be conducted in such a manner as to assure the juvenile due process of law, then the court should hold a new probation violation hearing upon the court determining that the juvenile is competent to proceed. Id.

Based on the foregoing, we reverse and remand for a nunc pro tunc competency determination, if it is possible under the circumstances.

Reversed and remanded for proceedings consistent with this opinion.

Warner and Kuntz, JJ., concur.


text:
    Luis CASTILLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3081
    District Court of Appeal of Florida, Fourth District.
    [March 15, 2017]
    Luis Castillo, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant challenges the denial of his post-conviction relief motion brought pursuant to Florida Rule of Criminal Procedure 3.801. The trial court denied the motion as untimely. Appellant filed the motion within one year of the appellate mandate. Rule 3.801(b) provides that no motion “shall be filed or considered pursuant to this rule if filed more than 1 year after the sentence becomes final.” A sentence becomes final when the appellate mandate issues. See generally Ghent v. State, 27 So.3d 121, 123 (Fla. 4th DCA 2010). Consequently, we accept the State’s concession and remand the case to the trial court for further review of the motion.

Reversed and Remanded.

Gross, May and Klingensmith, JJ., concur.


text:
    LUCAS GAMES, INC., a Florida corporation, a/k/a Lucas Gaming, Inc., d/b/a Vegas Fun, and Luc Marcoux, individually, Appellants, v. MORRIS AR ASSOCIATES, LLC, a foreign limited liability company, and Barrick Enterprises, Inc., a Florida corporation, Appellees.
    No. 4D16-0040
    District Court of Appeal of Florida, Fourth District.
    [March 15, 2017]
    Carrie Ann Wozniak of Akerman LLP, Orlando, and Jonathan S. Robbins of Aker-man LLP, Fort Lauderdale, for appellants.
    Michael I. Feldman of Krinzman, Huss & Lubetsky, Miami, for appellee.
   Per Curiam.

This is an appeal of the award of attorneys’ fees based upon the court’s order granting partial summary judgment in favor of the landlord. In a separate appeal we reversed the underlying summary judgment order. See Lucas Games Inc. v. Morris AR Assocs., LLC, 197 So.3d 1183 (Fla. 4th DCA 2016). We now reverse the award of attorneys’ fees that was based upon that order. See Siegel v. J.P. Morgan Chase, 100 So.3d 783, 783 (Fla. 4th DCA 2012).

Reversed.

Warner, Gerber and Kuntz, JJ., concur.


author: Taylor, J.

text:
    Per Jonas Ingvar GUSTAFSSON and Tressa D. Stiles, Appellants, v. AID AUTO BROKERS, INC., a Florida corporation, Great American Insurance Company, a foreign corporation, and Ally Financial Inc., a foreign corporation, Appellees.
    No. 4D15-1951
    District Court of Appeal of Florida, Fourth District.
    [ January 25, 2017 ]

      Michele K. Feinzig, Of Counsel, Law Offices of Robin Bresky, Boca Raton, and Rebecca J. Covey of Rebecca J, Covey, LLC, Fort Lauderdale, for appellant/cross-appellees.
    James S. Myers and Thomas S. Burgess of McRae & Metcalf, P.A., Tampa, for Appellee/Cross-Appellant Great American Insurance Company.
   Taylor, J.

The plaintiffs, Per Jonas Ingvar Gus-tafsson and Tressa Stiles, seek review of the following orders: (1) an amended order enforcing a Mediated Settlement Agreement (“MSA”) and finding Great American Insurance (“GAI”) liable for the plaintiffs’ attorney’s fees under the terms of the MSA; (2) an order granting GAI’s motion to limit its liability for fees to the $25,000 sum of the surety bond it issued to another defendant; and (3) a final order directing GAI to pay the plaintiffs $25,000.

On appeal, the plaintiffs argue that the trial court erred in limiting GAI’s liability under the MSA to the penal sum of its surety bond. GAI cross-appeals, arguing that it is not liable to the plaintiffs for attorney’s fees under the terms of the MSA.

We agree with GAI’s argument on cross-appeal, which we find to be dispositive of the case. Accordingly, we reverse the orders on appeal and remand with instructions for the trial court to deny the plaintiffs motion to enforce the MSA.

Background

The plaintiffs bought a used car from Aid Auto, a motor vehicle dealer. The plaintiffs later sought to rescind the transaction and obtain a refund, claiming that Aid Auto had fraudulently concealed facts about the vehicle’s condition. The plaintiffs also sent a demand letter to GAI, which had issued a $25,000 motor vehicle dealer surety bond to Aid Auto.

The plaintiffs eventually filed suit against Aid Auto and GIA, as well as the assignee of the sales contract, Ally Financial. In the amended complaint, the plaintiffs alleged causes of action for: (1) violation of Chapter 501, Florida’s Deceptive and Unfair Trade Practices Act (“FDUT-PA”), against Aid Auto and Ally Financial; (2) fraud or negligent misrepresentation against all defendants; and (3) declaratory judgment against GAI. The plaintiffs requested attorney’s fees against Aid Auto and Ally Financial under Chapter 501, Florida Statutes. However, the plaintiffs requested attorney’s fees against GAI under section 627.428, Florida Statutes.

The parties ultimately settled the case and entered into the MSA, which provided for: (1) the return of the vehicle to Aid Auto; (2) cancellation of the sales contract; (3) payment of $20,000 to the plaintiffs; (4) payment of court costs of $1,238.48; (5) dismissal of Aid Auto’s counterclaim; and (6) Ally Financial’s agreement to clear the plaintiffs’ credit report.

The MSA contained the following provision on the issue of attorney’s fees:

4. On the question of GUSTAFS-SON/STILES’ legal fees, we agree that: Plaintiff is entitled to reasonable attorneys’ fees pursuant to § 501, Fla. Stat. only. Plaintiffs to submit to counsel for AID [i.e., Aid Auto] her timesheet within 10 days of date of settlement. If agreement cannot be reached regarding the amount of the fees the Court will determine the fees.

The MSA also contained the following mutual release provision: “In exchange for the settlement payments pursuant to ¶ s 1-6 above, made to GUSTAFSSON/STILES and the agreement of DEFENDANTS to the settlement, we each hereby RELEASE AND FOREVER DISCHARGE the other ...(italics added).

The plaintiffs later filed a motion for attorney’s fees, seeking an award of attorney’s fees under FDUTPA in an amount the court deemed reasonable. At the fee hearing, the plaintiffs’ counsel represented that the plaintiffs were not seeking fees against GAI: “Actually Judge, we’re seeking only our fees under 501 against the dealer, we’re not seeking fees against the bond company.”

The trial court determined the reasonable amount of the plaintiffs’ fees and costs and entered a final judgment against Aid Auto in the amount of $70,150. In the meantime, however, Aid Auto went out of business. After it became clear that Aid Auto would not pay the fee award, the plaintiffs filed a Motion to Enforce Settlement Agreement against GAI, arguing that GAI was obligated under the MSA to pay their attorney’s fees.

The trial court entered an amended order on the plaintiffs’ motion to enforce the MSA, finding that GAI was liable to the plaintiffs for attorney’s fees under the terms of the MSA. However, the trial court granted GAPs motion to limit its liability to the $25,000 penal sum of the bond, and later entered a final order directing GAI to pay the plaintiffs $25,000.

The plaintiffs appealed and GAI cross-appealed.

Standard of Review

The standard of review applicable to a trial court’s interpretation of a contract is de novo, provided that “the language is clear and unambiguous and free of conflicting inferences.” N. Star Beauty Salon, Inc. v. Artzt, 821 So.2d 356, 358 (Fla. 4th DCA 2002).

Principles of Contract Interpretation

Settlement agreements are contractual in nature and are interpreted in accordance with principles of contract law. Barone v. Rogers, 930 So.2d 761, 763-64 (Fla. 4th DCA 2006). “When interpreting a contract, a court should give effect to the plain and ordinary meaning of its terms.” Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So.2d 827, 829 (Fla. 4th DCA 2004). Moreover, “an interpretation which gives a reasonable meaning to all provisions of a contract is preferred to one which leaves a part useless or inexplicable.” Premier Ins. Co. v. Adams, 632 So.2d 1054, 1057 (Fla. 5th DCA 1994).

“Courts may not rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.” Harrington v. Citizens Prop. Ins. Corp., 54 So.3d 999, 1002 (Fla. 4th DCA 2010) (citations and internal quotation marks omitted). Where a settlement agreement’s terms “are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document.” Levitt v. Levitt, 699 So.2d 755, 756-57 (Fla. 4th DCA 1997). An unambiguous contract must be enforced as written. Harrington, 54 So.3d at 1001-02 (Fla. 4th DCA 2010). Finally, “[i]t is fundamental that the laws of Florida are a part of every Florida contract.” Dep’t of Ins., State of Fla. v. Teachers Ins. Co., 404 So.2d 735, 741 (Fla. 1981).

Did the MSA require GAI to pay the plaintiffs’ attorney’s fees?

The threshold issue in this case is whether GAI has any liability to the plaintiffs for attorney’s fees under the terms of the MSA. Because this threshold issue is the subject of GAI’s cross-appeal, we address the cross-appeal first.

Here, under the plain language of the MSA, GAI was not obligated to pay the plaintiffs’ attorney’s fees. The attorney’s fees provision of the MSA states in relevant part: “On the question of GUSTAFS-SON/STILES’ legal fees, we agree' that: Plaintiff is entitled to reasonable attorneys’ fees pursuant to § 501, Fla. Stat. only.” (italics added). The MSA thus limited the plaintiffs entitlement to attorney’s fees to Chapter 501, which does not apply to entities—such as sureties—that are regulated by the Department of Financial Services. See § 501.212(4)(d), Fla. Stat. (2015) (stating that FDUTPA does not apply to the following: “Any person or activity regulated under the laws administered by the former Department of Insurance which are now administered by the Department of Financial Services.”); see also Hubbel v. Aetna Cas. & Sur. Co., 758 So.2d 94, 94-98 (Fla. 2000) (in an action alleging a motor vehicle dealer’s violation of FDUTPA, attorney’s fees could not be recovered from a surety bond under the statute requiring motor vehicle dealers to obtain surety bonds for customers' who suffered “any loss” resulting from a dealer’s failure to comply with a contract).

Because the MSA stated that the plaintiffs’ entitlement to attorney’s fees was limited to Chapter 501, the MSA necessarily excluded GAI from any obligation to pay the plaintiffs’ attorney’s fees. This interpretation is consistent with the second sentence of paragraph 4 of the MSA, which confirms that only Aid Auto was responsible for attorney’s fees under the MSA: “Plaintiffs to submit to counsel for AID her timesheet within 10 days of the date of settlement.” This interpretation is also consistent with the fact that the plaintiffs never pleaded entitlement to attorney’s fees against GAI under Chapter 501—instead, their request for attorney’s fees against GAI was limited to section 627.428.

By contrast, the trial court’s interpretation of the MSA essentially rewrote the agreement. The trial court’s interpretation failed to give full effect to the language limiting the plaintiffs’ entitlement to attorney’s fees to “§ 501, Fla. Stat. only.” Contrary to the plaintiffs’ suggestion, the MSA did not say that Chapter 501 was merely a mechanism for calculating the amount of fees—rather, the MSA stated that the plaintiffs’ entitlement to attorney’s fees was pursuant to Chapter 501 only. The plaintiffs cannot reap the benefits of the favorable fee calculation under Chapter 501, while disavowing their election to limit their fee entitlement to a statute that does not apply to GAI.

The plaintiffs’ argument that the “we agree that” language obligated GAI to pay the plaintiffs’ attorney’s fees is unpersuasive. The phrase “we agree that” simply meant that all parties agreed that the plaintiffs were “entitled to reasonable attorneys’ fees pursuant to § 501, Fla. Stat. only.” In light of the language restricting the plaintiffs’ entitlement to attorney’s fees to Chapter 501, we do not interpret the phrase “we agree that” as imposing liability on all defendants for the payment of the plaintiffs’ attorney’s fees. In fact, there were several other provisions in the MSA using the same “we agree that” prefatory language, but those provisions did not necessarily create any obligations on the part of GAI. For example, the provisions regarding the return of the car and the cancellation of the sales contract both began with the phrase “we agree that,” but those provisions clearly did not impose any obligations upon GAI.

The plaintiffs also contend that GAI’s interpretation of the MSA is “absurd” because it would mean that the plaintiffs “agreed to release GAI yet receive nothing from GAI” and that the MSA thus lacked consideration. This argument is without merit. Paragraph 2 of the MSA stated that the plaintiffs would receive $20,000 in damages. Had Aid Auto failed to make the $20,000 damages payment, GAI would have been responsible for that payment under the MSA. This obligation was sufficient consideration to support the MSA as between the plaintiffs and GAI. See Ashby v. Ashby, 651 So.2d 246, 247 (Fla. 4th DCA 1995) (“It is axiomatic that a promise, no matter how slight, can constitute sufficient consideration so long as a party agrees to do something that they are not bound to do.”).

Conclusion

In sum, because the MSA stated that the plaintiffs’ entitlement to attorney’s fees was pursuant to Chapter 501 only, GAI was not obligated to pay the plaintiffs’ attorney’s fees under the MSA. We reverse as to the cross-appeal, rendering the main appeal moot.

Finally, we note that the parties disagree as to what the trial court’s instructions should be on remand. The plaintiffs argue that if we reject their interpretation of the MSA, we should nonetheless remand the case for a trial on the merits of their claims against GAI. We decline to do so. Instead, we remand for the trial court to enter an order denying the plaintiffs’ motion to enforce the MSA

Reversed on cross-appeal and Remanded.

Levine and Conner, JJ., concur.

      . In Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362, 370-71 (Fla. 2013), the Florida Supreme Court construed FDUT-PA as allowing recovery for the hours an attorney dedicated to litigating a civil action involving a FDUTPA claim unless the attorney's services clearly were not related in any way to establishing or defending an alleged FDUTPA violation.


text:
    Anthony Maurice THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3424
    District Court of Appeal of Florida, Fourth District.
    [ March 8, 2017 ]
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

Taylor, J.

We deny the state’s motion for rehearing, but withdraw our previous opinion and substitute the following in its place to address the Florida Supreme Court’s recent opinion in Knight v. State, 186 So.3d 1005 (Fla. 2016) (clarifying that the circumstantial evidence standard of review applies only where all of the evidence of a defendant’s guilt is circumstantial).

Anthony Maurice Thomas appeals his conviction and sentence for possession of cocaine with intent to sell. His sole argument is that the trial court erred in denying his motion for judgment of acquittal because the state’s evidence was legally insufficient to prove the elements of the charged offense. Even when viewed in the light most favorable to the state, the evidence at trial of intent to sell was not to the exclusion of reasonable doubt. We therefore reverse appellant’s conviction for possession of cocaine with intent to. sell and remand for entry of a judgment of conviction for simple possession of cocaine.

A Fort Pierce police officer on road patrol stopped appellant’s vehicle after observing appellant fail to signal before making a turn. The officer ordered appellant to exit and stand behind the vehicle while he radioed for a backup unit. The officer saw appellant toss a white and orange object over the front of his vehicle. When the officer retrieved the tossed item, he discovered it was a pill container (a white tube or vial with an orange tip) that contained 3.31 grams of crack cocaine. A backup officer who arrived on the scene found a second container in an area nearby, which was similar to the other container, except green in color. This container held 0.19 grams of crack cocaine. Appellant was handcuffed, and a search of his person and vehicle revealed no drug paraphernalia or other contraband items. Appellant had $1086 on his person, consisting of $655 in his wallet and $431 outside his wallet, but all bills were inside the same pocket. Most of the money was denominated in twenty-dollar bills. The officers did not know the source of the money. Before the traffic stop, the officers did not observe appellant engage in any criminal conduct or behavior consistent with drug dealing.

Appellant was charged by information with possession of 3.5 grams of cocaine with intent to sell or deliver, driving without a valid driver’s license, and attempted tampering with physical evidence. The state dropped the tampering charge, and a jury found him guilty of driving without a valid license. The jury failed to reach a verdict on the charge of possession of cocaine with intent to sell. Appellant was later tried a second time.

At the second trial, the state called a St. Lucie County Sheriff’s deputy as its expert witness. The deputy testified that he was certified in narcotics detection and had extensive experience in undercover drug transactions. He said that after reviewing the state’s evidence, he concluded that appellant’s possession of the cocaine was with the intent to sell. He explained that the small pieces of cocaine recovered from appellant were similar to those he typically saw on the streets and that the pieces were worth anywhere between five and ten dollars each. He conceded, however, that some of the pieces of crack in the container were smaller than usual and not ideal for street level sales. More important, he acknowledged that it was just as likely that these smaller pieces of cocaine possessed by appellant were for his personal use. He also opined that the officer’s failure to find any drug paraphernalia in appellant’s possession indicated that he was not a drug user.

Although there was no evidence indicating the source of the money found in appellant’s pocket, the officer testified that the twenty-dollar bills were not inconsistent with money paid for ■ the cocaine pieces, because confidential informants working for his unit often spent twenty to forty dollars on lower-priced cocaine pieces.

Appellant moved for a judgment of acquittal, arguing that the state failed to prove that he possessed cocaine with the intent to sell. The trial court denied the motion, and the jury found appellant guilty as charged. He was sentenced to ten years in prison.

The applicable standard of review for a trial court’s decision on a motion for judgment of acquittal is de novo. Harris v. State, 72 So.3d 804, 806 (Fla. 4th DCA 2011). Ordinarily, an appellate court will not reverse a conviction that is supported by competent, substantial, evidence. Id. A conviction is supported by sufficient evidence where, after viewing the evidence in the light most favorable to the state, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. Knight v. State, 186 So.3d 1005, 1012 (Fla. 2016) (citation omitted). That burden was not met in the instant ease.

Although the quantity or packaging of drugs may indicate an intent to sell, these circumstances do not automatically establish intent to sell. This is particularly so where the quantity of drugs is relatively small. See Valentin v. State, 974 So.2d 629, 631 (Fla. 4th DCA 2008) (finding that 17 bags containing a total of 8.3 grams were not indicative of intent to sell where there was testimony that the possession could be for sale but may also be for personal use); Alleyne v. State, 42 So.3d 948, 949-50 (Fla. 4th DCA 2010) (evidence of the defendant’s possession of 18 plastic Ziploc bags containing marijuana weighing less than 20 grams was as consistent with possession for personal use as it was with possession with intent to sell); Harris, 72 So.3d at 809 (evidence of the defendant’s possession of 50 cocaine rocks which were not individually packaged was insufficient to establish the intent to sell element); Jackson v. State, 818 So.2d 539, 541 (Fla. 2d DCA 2002) (finding insufficient evidence of intent to sell where defendant possessed $400 and six baggies of cocaine, weighing a total of five grams).

Here, the evidence was equally consistent with the theory that appellant possessed the cocaine for personal use. This is tantamount to reasonable doubt. The aggregate weight of the cocaine, 3.5 grams, was relatively small, and the cocaine was not individually packaged. Although the state’s expert witness testified that appellant’s possession of the cocaine was consistent with an intent to sell, he also acknowledged that it could have been for personal use. See Valentin, 974 So.2d at 631 (an officer’s testimony that was consistent with the defendant being a user as well as a seller did not lead to the conclusion that the defendant was guilty of possession with intent to sell cocaine). Further, the fact that appellant did not possess any sort of drag paraphernalia for smoking the cocaine was an insufficient basis for concluding that the amount was not for personal use, but for sale. See Harris, 72 So.3d at 809; Lesane v. State, 895 So.2d 1231, 1233 (Fla. 4th DCA 2005); Glenn v. State, 824 So.2d 1046, 1049-50 (Fla. 4th DCA 2002).

More than half of the $1086 in cash found on appellant’s person was in his wallet and the remaining cash was loose in his pocket. None of it was packaged or co-mingled with the drugs. No evidence connected the money to illegal drug sales, and the state’s expert conceded that there was not much he could say about the money in the wallet because it was not readily accessible. Moreover, there was no testimony excluding any other personal reasons why appellant would have that amount of cash on his person.

Finally, there were no other suspicious circumstances to suggest appellant's intent to sell the cocaine he possessed. Before the arresting officer stopped appellant for the traffic violation, he did not observe appellant conducting a sale of cocaine or engaging in any conduct consistent with illegal drug sales. No rational trier of fact could find that the evidence at trial established beyond a reasonable doubt that appellant had an intent to sell the cocaine he possessed. In sum, the state’s evidence was legally insufficient to prove an intent to sell the cocaine, especially in light of the state’s expert’s opinion testimony that appellant’s possession of some of the cocaine pieces could have been either with an intent to sell or for his own personal use.

We reverse appellant’s conviction for possession of cocaine with intent to sell and remand for entry of a judgment of conviction for simple possession of cocaine, pursuant to section 924.34, Florida Statutes (2016), and for resentencing. See Valentin, 974 So.2d at 631; McCullough v. State, 541 So.2d 720, 722 (Fla. 4th DCA 1989).

Reversed and Remanded.

Ciklin, C.J., and Forst, J., concur.


author: SALTER, J.

text:
    M.T., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 3D15-2360.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 2016.

      Stephanie Langer, for appellant.
    Llamilys Bello, Fort Lauderdale, for ap-pellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

M.T., a young man diagnosed with Len-nox-Gastaut syndrome and afflicted with seizures that are continuous and non-responsive to any known medical treatment, appeals a final order by Florida’s Agency for Persons with Disabilities (APD) and a hearing officer denying M.T.’s mother’s application (on M.T.’s behalf) for enrollment in APD’s Home and Community-Based Services Waiver Program (the “HOBS Waiver Program”). We reverse.

Facts and Procedural History

M.T.’s mother applied for participation in the HOBS Waiver Program under the “intellectual disability” statutory definition, section 393.063(21), Florida Statutes (2016):

“Intellectual disability” means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior which manifests before the age of 18 and can reasonably be expected to continue indefinitely. For the purposes of this definition, the term:
(a) “Adaptive behavior” means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.
(b) “Significantly subaverage general intellectual functioning” means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the agency.

The application was denied by APD in a written notice stating summarily that M.T. had been determined not to have an intellectual disability as defined in the statute. As provided by APD’s rules and procedures, M.T.’s mother then sought and was granted an administrative hearing. M.T.’s mother and APD introduced testimony and written exhibits over the course of two days. In September 2015, the hearing officer issued a final order containing findings of fact, analysis, and a decision denying M.T.’s appeal. This further and timely appeal followed. We have jurisdiction pursuant to section 120.68, Florida Statutes (2015), and Florida Rule of Appellate Procedure 9.080(b)(1)(C).

Standard of Review

Although we review an administrative hearing officer’s findings of fact to determine whether they are supported by competent, substantial evidence in the record before us, the hearing officer’s conclusions of law are subject to de novo review. Diaz & Russell Corp. v. Dep’t of Bus. & Prof'l Regulation, 140 So.3d 662, 664 (Fla. 3d DCA 2014). While a state agency’s interpretation of the laws it is charged with enforcing is entitled to great deference, that deference does not apply when the agency’s interpretation is clearly erroneous. Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla.2002); S.C. v. Agency for Pers. with Disabilities, 159 So.3d 1033, 1036 (Fla. 3d DCA 2015).

Analysis

An applicant who seeks benefits under the programs administered by APD bears the burden of establishing eligibility “by a preponderance of the evidence, to the satisfaction of the hearing officer.” Fla. Admin. Code R. 65-2.060(1). The evidence admitted on behalf of M.T. established that: (a) at age 10, M.T. scored in the borderline range on a visual motor integration test, in the average range for visual-perception skills, and in the extremely low range for adaptive functioning; (b) when M.T. was 14, his Philadelphia physician reported (in writing) a diagnosis of “Chronic Static Encephalopathy resulting in mental retardation;” (c) at age 21, M.T. was assessed by the Miami-Dade County Public Schools and had an IQ score of 61; (d) four months later, M.T.’s Miami doctor tested him and M.T. scored an estimated IQ of 75; M.T.’s cognitive decline, brain damage, and deficits in adaptive functioning had manifested themselves before he turned 18 years of age.

APD relied on its own notice of ineligibility, its “diagnostic and evaluation team screening committee form,” and its argument that M.T. was ineligible because his mother had not provided an IQ test result as administered before M.T. turned 18 years of age. APD’s only witness was an “operations management consultant” who served as chair of the APD eligibility committee on M.T.’s case. The consultant did not evaluate M.T. in person, nor did he contradict any of the assessment reports and testimony by medical professionals admitted into evidence on behalf of M.T. APD’s witness testified that the IQ test offered by M.T.’s current neurologist “was conducted after the developmental years, that is, after age 18, as defined by statutes.” He further testified that the test “can be accepted,” and that “the main thing is that prior to the age of 18 we don’t have any document that substantiates the presence of an intellectual disability.”

The hearing officer, apparently accepting APD’s legal argument that the statutory definition of “intellectual disability,” together with the pertinent administrative rules promulgated by APD, require an applicant to provide a qualifying IQ test score administered prior to the applicant’s eighteenth birthday, continued the hearing to permit M.T.’s mother to obtain and provide that evidence. At that hearing, M.T.’s mother offered additional evidence, including the report from M.T.’s physician in the Division of Neurology at the Children’s Hospital in Philadelphia that “M.T. is now a 14-year-old with chronic static encephalopathy of unknown etiology resulting in mental retardation and intractable generalized epilepsy.” (Emphasis provided).

In response, APD reiterated its legal position that the statutory eligibility criteria includes a qualifying “full scale IQ score before the age of 18.” The hearing officer affirmed APD’s determination of ineligibility in the final order based on the following interpretation of section 393.063(21) and Florida Administrative Rule 65G-4.014: “Specifically, there is no record of a full-scale IQ score below 70 prior to age eighteen (18) as required by the regulations.”

APD and the hearing officer reached this conclusion based on the provisions of Rule 65G-4.014:

(3) Mental Retardation or Intellectual Disability—is evidenced by the concurrent existence of:
(a) Significantly subaverage general intellectual functioning evidenced by an Intelligence Quotient (IQ) two or more standard deviations below the mean on an individually administered standardized intelligence test, and
(b) Significant deficits in adaptive functioning in one or more of the following areas:
1. Communication skills,
2. Self-care, home living,
3. Social and interpersonal skills,
4. Use of community resources and self-direction,
5. Functional academic skills,
6. Work, leisure, health and safety awareness and skills,
(c) Which are manifested prior to age 18; and
(d) Constitute a substantial handicap which is reasonably expected to continue indefinitely.

M.T. provided an individually administered standardized test reflecting a full-scale IQ of 61, which APD concedes is two or more standard deviations below the mean. APD does not dispute that M.T. also established the requisite “deficits in adaptive functioning” specified in the statute and rule, and the existence of those deficits both before and after M.T. turned 18.

Instead, APD relies exclusively on the fact that the IQ test was administered when M.T. was 21 years of age, rather than when he was age 18 or younger. In taking that position, however, APD has ignored (and the hearing officer did not address) M.T.’s written diagnosis of “mental retardation” by Dr. Berqvist, an M.D. neurologist at the Children’s Hospital of Philadelphia, when M.T. was fourteen years old. Reports by Dr. Berqvist dated June 3 and July 10, 2007, were introduced and admitted to the record in this case without objection. M.T. was born in June, 1998. Each report states that in addition to “intractable mixed epilepsy,” M.T. was determined to be mentally retarded. That diagnosis was established, and thus “manifested,” before M.T. was 18. In its definition of intellectual disability, the Legislature did not impose a requirement that an applicant for the HCBS Waiver Program provide an IQ test administered before the applicant turned 18.

Based on that dispositive legal issue, we reverse the decision below and remand with directions to APD to grant M.T.’s application for benefits under the HCBS Waiver Program.

Reversed and remanded with instructions.

      .The National Institute of Neurological Disorders and Stroke (a part of the National Institutes of Health, in Bethesda, Maryland), describes the syndrome:
      Lennox-Gastaut syndrome is a severe form of epilepsy. Seizures usually begin before 4 years of age. Seizure types, which vary among patients, include tonic (stiffening of the body, upward deviation of the eyes, dilation of the pupils, and altered respiratory patterns), atonic (brief loss of muscle tone and consciousness, causing abrupt falls), atypical absence (staring spells), and myoclonic (sudden muscle jerks). There may be periods of frequent seizures mixed with brief, relatively seizure-free periods. Most children with Lennox-Gastaut syndrome experience some degree of impaired intellectual functioning or information processing, along with developmental delays, and behavioral disturbances. Lennox-Gas-taut syndrome can be caused by brain malformations, perinatal asphyxia, severe head injury, central nervous system infection and inherited degenerative or metabolic conditions, In 30-35 percent of cases, no cause can be found.
      http://www.ninds.nih.gov/disorders/lennox gastautsyndrome/lennoxgastautsyndrome.htm (last visited Aug. 3, 2016).
      The NINDS description also states that “There is no cure for the disorder." Id.

        . Although M.T. is represented here by counsel, it is noteworthy that M.T.’s mother, pro se, presented M.T.'s evidence and arguments during the administrative hearing, and did so in a polite and effective way.

      . The definition was renumbered as section 393.063(24), effective June 30, 2016.

      . "Intellectual disability” has since replaced "mental retardation” in federal and Florida statutory provisions as well as the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.

      . The doctor, a Clinical Associate Professor in the Department of Neurology at the University of Miami Miller School of Medicine, reported that the earlier Miami-Dade Schools IQ test was "a more accurate indicator of [M.T.’s] level of functioning” because the later assessment was conducted using only four of the eleven tests administered by the Schools. The doctor concluded that M.T. "is performing within the Mentally Deficient range of overall intelligence and additionally presents multiple neuropsychological impairments in measures of language, learning and memory, and processing speed among others that are disabling and warrant comprehensive services and interventions to maximize his functioning and independence in his activities of daily living.”

      . In 2007, "intellectual disability” had not yet been substituted for “retardation” and "mentally retarded” by many practitioners and in the diagnostic literature. For example, the federal government did not make the change until 2010, when "Rosa’s Law” was enacted, and Florida did not make the substitution in Chapter 393.063 until the enactment of Chapter 2013-162, Laws of Florida, effective July 1, 2013. The American Association on Intellectual and Developmental Disabilities specifies that "every individual who is or was eligible for a diagnosis of mental retardation is eligible for a diagnosis of intellectual disability. ’ ’ https://aaidd. org/intellectual-disability/definition/faqs-on-intellectual-disability# ,V6INWGT6vuh (site last visited Aug. 3, 2016).

      . We need not, and therefore do not, address M.T.'s additional argument that APD's interpretation of the pertinent statute is unconstitutional. "When a case may be resolved on grounds other than constitutional grounds, the Court will ordinarily refrain from proceeding to decide the constitutional question.” The Fla. Bar v. Gold, 937 So.2d 652, 655 (Fla.2006).


text:
    BANK OF AMERICA, N.A., Appellant, v. John A. LEONARD and Judith J. Leonard, et al., Appellees.
    No. 1D16-831.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2016.

      Bart Heffernan of Marinosci Law Group, P.C., Fort Lauderdale, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

This is an appeal from a final order dismissing appellant’s mortgage foreclosure action without prejudice on the ground that the certification filed with the complaint failed to comply with section 702.015(4), Florida Statutes (2013). See Valcarcel v. Chase Bank USA NA, 54 So.3d 989, 990 (Fla. 4th DCA 2010) (“An order dismissing an action without prejudice and without granting leave to amend is a final appealable order.”). Appellant correctly argues that dismissal was improper because the certification executed by appellant’s counsel complied with the statute. Accordingly, we reverse and remand for reinstatement of the foreclosure action.

Section 702.015, Florida Statutes, provides in pertinent part:

(4) If the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original promissory note. The certification must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified. Correct copies of the note and all allonges to the note must be attached to the certification. The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note.

The certification that appellant was in possession of the original promissory note was not rendered defective because it was filed by appellant’s attorney. While section 702.015(4) requires the plaintiff to file a certification that the plaintiff is in possession of the original promissory note, it does not preclude the plaintiffs attorney from being the “individual giving the certification” or “the person who personally verified such possession.” “Generally, an attorney serves as agent for his client; the attorney’s acts are the acts of the principal, the client.” Andrew H. Boros, P.A. v. Arnold P. Carter, M.D., P.A., 537 So.2d 1134, 1135 (Fla. 3d DCA 1989). Appellant’s attorney, as the agent of appellant, was entitled under the statute to certify that appellant was in possession of the original note based on counsel’s review of the collateral file, which contained the original note and was provided to counsel in connection with legal proceedings to enforce the note. Because the certification complied with section 702.015(4), we reverse the order of dismissal and remand for reinstatement of the foreclosure action.

REVERSED and REMANDED.

LEWIS, WETHERELL, and JAY, JJ., concur.

       Even if the certification was defective, the filing of the certification is not a prerequisite to suit such that any defect in the certification would require dismissal of the complaint. See Campbell v. Wells Fargo Bank, N.A., 204 So.3d 476, 479, 41 Fla. L. Weekly D1560, D1561, 2016 WL 3611036 (Fla. 4th DCA July 6, 2016) (“The certification requirement of the statute was not intended to be a prerequisite to suit but was instead intended to expedite the foreclosure process.”).