author: STEVENSON, J.

text:
    Benjamin SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3893.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2009.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Benjamin Sanders timely appeals his convictions for one count of first-degree felony murder and four counts of attempted armed robbery. We affirm.

The testimony at trial reflects that Sanders and his codefendant, Rufus Young, were identified as the two armed gunmen who tried to rob a group of men socializing in a front yard in Broward County. Specifically, Sanders approached the group and demanded money, and when one man responded that he had no money, a struggle ensued, resulting in Sanders firing several shots, one hitting and killing Santos Salgado. Sanders was indicted by a grand jury with one count of first-degree felony murder for the killing of Salgado and four counts of attempted armed robbery as to four other men who were in the front yard. During police questioning, Sanders told Detective Berrena that he was with two other individuals on the evening of the crime, and he drove them to the neighborhood to commit the robbery, but he was neither a robber, nor the shooter. Sanders and Young were tried jointly using dual juries. Sanders’ jury returned a verdict of guilty as charged. The trial court sentenced him to life in prison for the felony murder count, to run concurrently with twenty years in prison for the armed robbery counts.

Sanders raises four issues on appeal. First, we affirm without discussion the trial court's denial of Sanders’ motion to suppress his statements to Detective Berrena. Also, we affirm without discussion the trial court’s denial of Sanders’ motion for a new trial, alleging improper jury selection based on the trial court granting, over defense objection, the State’s challenge for cause as to a prospective juror with a hardship. Though we find no error and affirm Sanders’ judgment of conviction and sentence, we write to address the remaining two issues on appeal.

Peremptory strikes

In Melbourne v. State, 679 So.2d 759 (Fla.1996), our supreme court set forth a three-part process for use when a peremptory strike is challenged. First, the objecting party must demonstrate that the prospective juror is a member of a distinct racial group and request the court ask the striking party the reason for its strike. Id. at 764. Then, the burden shifts to the proponent of the strike to come forward with a race-neutral explanation. Id. If the explanation is facially race-neutral, and the court believes that, given all of the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained. Id. This court reviews the trial court’s finding as to the genuineness of the proponent’s explanation for clear error. See Rodriguez v. State, 753 So.2d 29, 41 (Fla.2000) (noting that because the validity of a peremptory strike rests on the trial court’s assessment of credibility, an appellate court should affirm unless the determination is clearly erroneous).

During voir dire, the State used its eighth peremptory strike, out of ten, on prospective juror Wallace. Defense counsel objected, pointing out that Wallace was a member of a protected class. The State responded that it was excluding all prospective jurors who had been arrested previously, and Wallace, who was in his final year of college, had been arrested as an adolescent. See Smith v. State, 799 So.2d 421, 424 (Fla. 5th DCA 2001) (“The fact that a prospective juror has been previously arrested or has a relative who has been is generally considered to be a valid race-neutral reason for the exercise of a peremptory challenge.”). The court pointed out that the State had not challenged prospective juror Ortiz who had been arrested twenty-five years ago. The State explained that Ortiz followed Wallace in the jury order, so it had not yet reached Ortiz but intended to challenge him as well. Defense counsel asserted that the State had not challenged prospective juror Curry from codefendant Young’s panel, who also had been arrested previously. The State responded that Young’s panel should be kept entirely separate and also explained it had not noted that Curry had previously been arrested. The trial court observed other African-American jurors on the panel and permitted the State to use its eighth strike on Wallace.

Then, as promised, the State used its ninth strike on Ortiz. The trial court announced that, as a result, Stanway, Dunn, and Klingshirn would be on the presumptive panel. The State used its tenth and final peremptory challenge on Stanway who had previously been arrested three years ago. As a result, Davis, who had never been arrested, was added to the panel. The State first requested an extra strike for Davis, but quickly changed its mind and decided to leave her on the panel. At this point, defense counsel re-objected to the State’s striking of Wallace, arguing that Klingshirn, a white male who had been arrested in 1994, remained on the panel. The defense accepted the panel subject to its objection as to Wallace.

On appeal, Sanders contends that the State’s reason was pretextual in light of the fact that Curry and Klingshirn, who had both previously been arrested, sat on Sanders’ jury. We disagree. Although the State neglected to strike Curry, that mistake does not render the State’s strike of Wallace pretextual since the trial court accepted the State’s assertion that it had not noted that Curry had been previously arrested when it moved to peremptorily strike Wallace. We note that there was some confusion shown in the record during voir dire as two juries were being selected at the same time, and even defense counsel and the State were unsure as to whether Curry was on Sanders’ jury or his codefen-dant’s jury. As to Klingshirn, the State had exercised all ten of its peremptory challenges prior to Klingshirn’s placement on the panel, so this does not affect the genuineness of the State’s strike of Wallace. Thus, we find no reason on this record to reject the trial court’s finding that the strike of Wallace was genuine.

Motion for Mistrial

During trial, the State called a representative of Metro PCS, the cellular telephone company, to testify about Young’s phone records on the date of the crime. Using the call records, the State attempted to demonstrate that Young was in the vicinity of the crime at the time it occurred. On cross-examination, defense counsel for both Young and Sanders questioned the representative about the identities of the callers and the contents of voicemail messages. The representative explained that this information could have been obtained initially, but was no longer available because records were retained only for a specified length of time which had elapsed. On redirect, the State asked, “If the defense wants to know this information, they can give you a subpoena, can they not?” The defense attorneys simultaneously moved for a mistrial, alleging improper burden shifting. The trial court denied these motions.

This court reviews an order denying a mistrial for an abuse of discretion. Veltre v. State, 957 So.2d 47, 50 (Fla. 4th DCA), review denied, 973 So.2d 1125 (Fla. 2007). “[T]he state cannot comment on a defendant’s failure to produce evidence to refute an element of the crime because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.” Hazelwood v. State, 658 So.2d 1241, 1243 (Fla. 4th DCA 1995). However, in this case, the State’s question amounted to a fair reply to the defense attorneys’ line of questioning. See id. (holding that prosecutor’s comment in closing that defense counsel had the same subpoena power as the State was entirely appropriate where comment was made in response to defense’s argument that State had failed to call certain witnesses). We draw an analogy to Hazel-wood, and affirm the trial court’s denial of defense counsel’s motion for a mistrial, also noting that in the context of the trial, any error would have been harmless.

Affirmed.

GERBER, J., and BROWN, LUCY CHERNOW, Associate Judge, concur.

      . The transcript reveals some confusion regarding Curry. Though defense counsel stated Curry was on Young's panel, Curry was actually always on Sanders’ panel.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Dennis FERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-43.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2009.
    Ana Gomez-Mallada, Oakland Park, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

The appellant, Dennis Fernandez (“Fernandez”), appeals the trial court’s order adjudicating Fernandez guilty of racketeering, conspiracy to commit racketeering, dealing in stolen property, possession of counterfeit motor vehicle title, sale of altered motor vehicle title, false and fraudulent insurance claims, conspiracy to commit false and fraudulent insurance claims, and operating a chop shop. This court has jurisdiction. Fla. RApp. P. 9.030(b)(1)(A).

This appeal addresses the use of a translator-interpreter at trial. During the course of the investigation that led to Fernandez’s arrest and trial, the Broward County Sheriffs Office used two undercover police officers. The undercover officers spoke in Spanish with Fernandez and other co-defendants who are not parties to this appeal. The officers recorded these conversations.

In preparation for trial, the state used a translator, Patricia Dau (“Dau”), to translate the recorded conversations into English. The trial court held a pretrial hearing to determine the admissibility of Dau’s transcripts of the Spanish-language audio tapes and an evidentiary hearing regarding Dau’s qualifications and defense counsel’s claim of bias.

Dau testified that the speakers were initially identified in a manner such as “male” or “male one.” Dau later received assistance from the undercover officers in identifying the speakers on the recordings and assigning names to speakers. However, when the officers provided a name, Dau would listen to the recording to verify that the identified person was consistently referred to in the same manner throughout the transcript.

Dau submitted draft transcripts to the statewide prosecutor’s office and received her transcripts back with some corrections or additions. Some of the speech that Dau had initially marked “unintelligible” had been filled in either in Spanish or in English on the transcript when she received it back from the prosecutor’s office. Dau testified that when this occurred, she would review the tape again together with her transcript, and if she could hear in the tape whatever had been corrected, she would include the corrections in her transcript; otherwise she would not include the corrections.

Dau also worked with the undercover officers in correcting the transcripts, but could not say how many corrections she made with the officers. Dau stated that she would only adopt the officers’ corrections if she was completely sure that she could hear the corrected words on the tape. Dau stated:

So whatever correction was done there, I wouldn’t insert it if I couldn’t hear it, period. I am the one who is certifying to the accuracy of this transcript. It’s not [either officer] who’s certifying to it. If they would be certifying to it they could put in all the corrects [sic] they want and certify it. I’m the one certifying it, so I’m not going to adopt any correction if I’m not a hundred percent sure that I can certify to it.

Dau also stated her belief that because she must certify and testify as to what was contained on the tapes, “it doesn’t matter who made the corrections.”

In response to Dau’s pretrial testimony, and in denying a motion to exclude or disqualify Dau, the trial judge presumably referred to Revision 7 to Article V of the Florida Constitution, an amendment that provided uniform funding for the Florida courts, when stating that:

[T]his Court does not have the ability nor funding to independently hire [Dau]. So it falls to the prosecution who presents the case, or the law enforcement agencies who present the case to hire the interpreter.
Candidly, that does not automatically disqualify the interpreter. Had Ms. Dau been an employee of the Sheriffs’ Department, had Ms. Dau shown or demonstrated to this Court that she accepted the words of law enforcement and she put them into the transcripts just because they were given to her, this Court’s ruling would be very different. But Ms. Dau clearly said even where presented with fill in words by the detectives, if I didn’t hear it, I didn’t see it myself, if I could not certify and vouch for it, I did not insert it. And as such, the motion to exclude Ms. Dau or disqualify her is denied.

The trial court provided a number of procedural safeguards regarding the use of Dau’s transcripts and Dau’s testimony. The trial court did not allow Dau’s transcripts into evidence to be used during deliberations. The trial court also crafted a procedure whereby the Spanish-language tapes were played in open court with Dau testifying regarding what was being said. Dau did not identify the various speakers. The defense had an opportunity to cross-examine Dau on any issues that the defense disputed regarding the in-court translation. At the same time, another witness (presumably one of the undercover officers) testified to the identity of the various speakers on the tape.

Because Dau was a State-enlisted witness, the trial court would not certify Dau as an official court interpreter. Instead, the court stated that it would be left to the jury to determine Dau’s impartiality or bias. Throughout the trial, Dau translated the tapes in court after they were played in Spanish.

The use of an interpreter at trial is a matter within the trial court’s discretion. Watson v. State, 190 So.2d 161, 167 (Fla. 1966); see also Gopar-Santana v. State, 862 So.2d 54, 55 (Fla. 2d DCA 2003); Gil v. State, 266 So.2d 43, 45 (Fla. 3d DCA 1972). An interpreter is required, however, when audio recordings in Spanish are admitted into evidence. See Hernandez v. State, 723 So.2d 857, 859 (Fla. 4th DCA 1998) (stating that the jury should have been provided with an interpreter to translate Spanish-language audio tapes); Hutchens v. State, 469 So.2d 924, 925 (Fla. 3d DCA 1985) (same).

In this appeal, Fernandez claims that the translation used at trial was rendered by one party against another and that it is reversible error for a party to translate material that is used against the party’s opponent at trial. The record simply does not support Fernandez’s argument that the translation used against him was rendered by his opponent. We are equally unpersuaded by Fernandez’s second point on appeal regarding the Confrontation Clause.

We write to note our approval of the trial court’s handling of this unusual issue and the numerous procedural safeguards the trial court provided to ensure that the interpretation provided was fair and accurate. Specifically, we approve of the trial court’s decisions to subject Dau to cross-examination regarding the accuracy of her translations, to leave to the jury the determination regarding Dau’s impartiality or bias, and not to certify Dau as an official court interpreter.

We also consider it significant that Dau testified that even if the officers provided changes to the transcripts, Dau would not include nor certify the changes unless she could hear the purported conversation herself. This testimony is sufficient to support the jury’s implicit finding that Dau was not biased.

Affirmed.

STEVENSON and GERBER, JJ., concur.


author: MAY, J.

text:
    George Anthony WHITEHEAD, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3488.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2009.

      Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his sentence for possession of cannabis less than 20 grams, contributing to the delinquency or dependency of a child, and delivery of a controlled substance to a minor. He argues that the trial court improperly considered a pending charge from another county and violated his right against double jeopardy in sentencing him. We disagree and affirm.

The State charged the defendant with possession of cannabis less than 20 grams, contributing to the delinquency or dependency of a child, and delivery of a controlled substance to a minor. On June 10, 2008, the defendant entered a written plea of not guilty. On August 11, 2008, the defendant changed his plea to no contest. The State agreed to recommend a two-year prison sentence with special conditions to run consecutive to any other sentence. The plea form indicated that the court would not be bound by the recommendation.

That same day, the trial court reviewed the defendant’s change of plea form, the State’s recommendation, and the defendant’s prior criminal history. The trial court indicated its concern over the defendant’s prior history and the current charges and refused to be bound by the State’s recommendation. The defendant agreed to plead open to the court.

The court conducted the sentencing hearing the next day. The court pronounced the sentence of a year in the county jail with credit for ninety-two days on the two first degree misdemeanors, and five years in prison on the second degree felony; all counts to run concurrent with each other. At this point, prior to the court signing the judgment, the fingerprinting of the defendant, or the removal of the defendant from the courtroom, defense counsel inquired whether the sentence was concurrent or consecutive to the sentence the defendant was serving. The court responded that the sentence was to be consecutive. The court then informed the defendant that he had thirty days to appeal the judgment and wished the defendant good luck.

The defendant then asked if he had to do time in the county jail before serving his time in state prison. The court answered no and asked “out of curiosity” what crime the defendant was currently serving. The court then learned for the first time that there were pending charges in Indian River County for unlawful sex acts with a minor. The judge asked the State for more information, which the State did not possess. The judge then ■withdrew his prior pronouncement, and continued the sentencing for a few minutes.

On recall, the court reviewed the affidavit in the pending case, which revealed that the thirty-one-year-old defendant admitted to having sex with a seventeen-year-old girl, who was partially blind and had a mental disability. Defense counsel told the court that he believed only convictions could be considered in sentencing. The court responded that it could consider even non-charged criminal behavior. The court told the defendant that he could say anything he wished, but warned him that his statements could be used in the Indian River case. The defendant advised the court that he had nothing to say. The court then stated:

Okay. Well my guess is that ... this will ... this will end up being either a direct or collateral issue, but I think I’m on firm ground here with respect to vacating the prior sentence upon learning of the, learning of the existence of this case. The Sentencing proceeding had effectively not terminated, Mr. Whitehead had not been fingerprinted, had not moved may be more [than] five feet from the podium, so it was a continuous series. Since this was entered as a joint agreement between the parties in terms of disposition, the State has not deviated from that in a way, shape or form, so that is not an issue. In addition, when I took the plea yesterday I took it with the specific understanding that Mr .... by Mr. Whitehead that this was not binding on the Court. I do think that constitutionally I am permitted to consider the pending case as an appropriate consideration during sentencing here, and I quite frankly agree that this sheds some additional light on Mr. Whitehead’s behavior with respect to juveniles in a way that is relevant taking into consideration the recitation of facts in the St. Lucie County case, and his behavior with juveniles’ in this particular case. That being the case I still wish to give Mr. Whitehead the benefit for the entry of his plea, but it’s not going to be the same benefit. And sir, I think that that information from Indian River County in the form of the Arrest Affidavit just sheds up much greater light on your complete disregard for the impact of your actions on children. Taking that into account along with this abysmal pri- or record what I’ll do is this, and quite frankly sir I ... I think you deserve the 17 years in adding this all up....

(No alterations). The court then sentenced the defendant to a year in county jail on the two misdemeanors and ten years in the Department of Corrections for the second degree felony with all counts to run concurrent. From this sentence, the defendant now appeals.

A defendant must preserve a sentencing error by objecting at the time of sentencing or in a motion under Florida Rule of Criminal Procedure 3.800(b). Fla. R.App. P. 9.140(e). Here, the defendant entered his plea without reserving the right to appeal, but preserved the error by filing a rule 3.800(b) motion. See Brannon v. State, 850 So.2d 452 (Fla.2003).

The defendant makes two arguments in this appeal. First, he argues the trial court improperly considered a pending charge in determining his sentence. In doing so, he relies on State v. Potts, 526 So.2d 63 (Fla.1988) and Seays v. State, 789 So.2d 1209 (Fla. 4th DCA 2001). Second, he argues the court violated his right against double jeopardy by re-sentencing him after having previously pronounced the sentence.

“The United States Supreme Court has held that it is not a violation of a defendant’s constitutional rights to consider other relevant factors when determining an appropriate sentence.” Dowling v. State, 829 So.2d 368, 371 (Fla. 4th DCA 2002) (citing Roberts v. United States, 445 U.S. 552,100 S.Ct. 1358, 63 L.Ed.2d 622 (1980)). We have held:

[A] trial court can consider a defendant’s prior arrests not leading to convictions for purposes of sentencing so long as the court recognizes that these arrests are not convictions or findings of guilt, and the defendant is given an opportunity to explain or offer evidence on the issue of his prior arrests.

Id. (quoting Jansson v. State, 399 So.2d 1061,1064 (Fla. 4th DCA 1981)).

We find no error in the trial court’s consideration of the defendant’s pending charge in Indian River County because it was relevant to the sentencing of the defendant. Unlike Potts and Seays, the defendant was not punished for his pending charge, and he had not been acquitted of the pending charge. Instead, the pending charge was certainly relevant to the sentencing because it involved the defendant’s conduct toward minors. The judge stressed this point during the sentencing. Further, the defendant was given the opportunity to explain or offer evidence on the issue of his prior arrest in Indian River. Thus, the court complied with the requirements of Dowling.

The more troubling issue is the defendant’s double jeopardy argument. A sentence can be changed if it is done at the same sentencing hearing, before the defendant has commenced serving his sentence. See Curtis v. State, 789 So.2d 394, 395-96 (Fla. 4th DCA 2001); see also Chaney v. State, 617 So.2d 844, 845 (Fla. 4th DCA 1993); Moore v. State, 538 So.2d 123, 124 (Fla. 1st DCA 1989). Until the sentencing hearing comes to an end, “the trial court has jurisdiction to modify, vacate, correct, change, amend, alter or vary, increase or decrease, any earlier, in effect inchoate, pronouncement.” Farber v. State, 409 So.2d 71, 73 (Fla. 3d DCA 1982).

The question then becomes whether the sentencing hearing had concluded and the defendant had begun serving his sentence. In Curtis, the trial court pronounced a sentence, the defendant left the courtroom, and the trial court resumed hearing other cases when the State advised the court that it pronounced an illegal sentence. Curtis, 789 So.2d at 395. The defendant returned to the courtroom, and over defense objection, the trial court sentenced the defendant to a longer period of time. Id. The defendant appealed and made the same double jeopardy argument. Id. We held “that the trial court had the authority to increase appellant’s sentence and that the increased sentence did not violate double jeopardy, because appellant had not begun serving his sentence and was still in court custody.” Id. at 396.

As the Fifth Circuit has written: When a defendant has not been transferred from the court’s custody to a place of detention at the time his sentences are altered, service of the sentences has not officially commenced, and defendant’s rights are not impinged by the trial court’s timely alteration of his sentences. [Citations omitted.] Williams had not been removed from the trial court’s custody and thus had not commenced service of his sentence. Therefore, the court’s correction of his sentence was permissible.

Id. at 395 (quoting Williams v. United States, 422 F.2d 1318, 1318 (5th Cir.1970)). “[S]entencing should [not] be a game in which a wrong move by the judge means immunity for the prisoner.” Id. at 396 (quoting Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 91 L.Ed. 818 (1947)).

Here, the defendant had not been fingerprinted, had not left the courtroom, and had not begun to serve his sentence when the trial court continued the sentencing hearing for a few minutes to obtain additional information. Although a few minutes transpired between the initial and final pronouncement of the sentence, the court advised the parties that the hearing was to be continued while the court obtained additional information.

We find that the trial court neither ran afoul of the defendant’s due process rights nor his protection against double jeopardy. The judgment and sentence are therefore affirmed.

Affirmed.

DAMOORGIAN and CIKLIN, JJ„ concur.

      . The defendant filed a motion to correct a sentencing error, but the trial court did not rule on the motion.

      . The defendant argues that the resumed sentencing hearing was actually a rehearing, relying on Ashley v. State, 850 So.2d 1265 (Fla. 2003), Troupe v. Rowe, 283 So.2d 857 (Fla. 1973), and Freeman v. State, 980 So.2d 629 (Fla. 2d DCA 2008). We disagree. Unlike Ashley, the defendant had not begun to serve his sentence. This case is also unlike Troupe and Freeman, where the sentencing hearings had concluded, time had passed, and the lawyers requested the court to revisit the sentence. Here, the judge immediately withdrew his pronouncement and continued the sentencing hearing to obtain additional information.


author: PER CURIAM.

text:
    A.R., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D09-2264.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.
    Herscher & Herscher and llene Herscher, Coral Gables, for appellant.
    Karla Perkins, Assistant District Legal Counsel, for appellee Department of Children and Families; Hillary S. Kambour, for Guardian ad Litem Program.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   CONFESSION OF ERROR

PER CURIAM.

The Father, A.R., appeals from an Order of Adjudication. For the following reasons, this Court vacates the Order of Adjudication and remands the case for further proceedings.

The Florida Department of Children and Family Services (the “Department”) properly concedes that the evidence adduced at trial does not support the trial court’s findings of dependency as to the Father. Indeed, while the Father was found to be at “medium risk” based on an Adult-Adolescent Parenting Inventory Test, the Department concedes that the test administered was invalid as the child, A.R. Jr., is an infant. Moreover, the case manager’s testimony regarding the Father’s lack of parenting skills based on his ability to diaper the infant and correctly position the infant’s head is also insufficient to support the trial court’s finding of dependency.

Accordingly, we reverse the trial court’s Order of Adjudication, and remand for further proceedings.


text:
    Martin VOLEK, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1903.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2009.
    Martin Volek, Avon Park, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Martin Volek seeks review of orders that denied his motion for postconviction relief. We reverse and remand for further proceedings on one issue.

Volek alleged below that his counsel was ineffective for failing to inform him of the possible defenses of insanity and involuntary intoxication based on his use of prescription antipsychotic medication. However, Volek did not allege any facts demonstrating how mere use of the medication entitled him to either of those defenses. Thus, the circuit court found the claim legally insufficient.

Consequently, Volek should be given at least one opportunity to amend his claim on this issue. Spera v. State, 971 So.2d 754 (Fla.2007). Pursuant to Spera, we reverse the circuit court’s summary denial on this issue only and remand for the court to permit the amendment. We affirm the denial of all other claims.

Affirmed in part, reversed in part, and remanded.

POLEN, GERBER and LEVINE, JJ„ concur.


author: CIKLIN, J.

text:
    Wayne David TILLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-897.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2009.

      Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Wayne David Tillman, the defendant below, appeals his convictions of first degree premeditated murder with a firearm and possession of a firearm by a convicted felon. Tillman presents three issues on appeal. First, Tillman asserts that the trial court erred in denying his motion for mistrial where a police officer testified to his guilt. Second, Tillman claims that the trial court erred in not granting his motion for judgment of acquittal as to first degree premeditated murder because the State did not prove premeditation. Third, Tillman argues that the trial court erred in accepting a stipulation of his prior felony convictions without a plea colloquy. We disagree and affirm on all issues.

At trial, the only credible eyewitness to the murder testified that he saw Tillman pull something from the waistband of his pants and hit the seated victim from behind in the back of the head with the object. The eyewitness then heard a single gunshot and identified that the object Tillman had was a gun. When the gun went off, the victim stumbled and the eyewitness ran. Looking back, the eyewitness saw Tillman “nonchalantly” walking away.

Other witnesses testified but did not see what occurred. There was testimony about an argument Tillman had with the victim earlier in the day and threatening statements made by Tillman. One of the witnesses testified that Tillman had a .22 caliber pistol.

A medical examiner, who conducted an autopsy on the victim, testified that there was no stippling or gun powder residue around the wound. This signified that the gun was not pressed up against the victim’s head when the shot was fired.

Although the weapon was not found, a firearm expert determined that the bullet casing found at the scene and the fragments retrieved from the victim’s head were from a .22 caliber bullet.

Tillman denied the allegations and presented one witness who testified that he was near the scene of the murder when someone other than Tillman shot the victim.

The first issue raised occurred during the direct examination of the lead detective investigating the murder. The detective was asked, “Who was the suspect, the shooter, all along in your investigation of this case?” The detective responded that it was “Mr. Tillman.” Tillman’s counsel objected and moved for a mistrial. The trial court sustained the objection, instructed the jury to “disregard the last question and answer,” and, after a bench conference, gave the following curative instruction: “Members of the jury, again, I remind you that it’s your responsibility to weigh the evidence and decide what the facts of this case prove.”

Appellant argues that the detective’s testimony amounted to an opinion as to his guilt. “It is well established that a witness’s opinion as to the guilt or innocence of the accused is not admissible.” Thomas v. State, 837 So.2d 443, 446 (Fla. 4th DCA 2002) (citation omitted). However, the detective’s comment was isolated, made in passing, and indicated only that Tillman was the sole suspect, not that he was guilty. See Santiago v. State, 870 So.2d 198,199 (Fla. 3d DCA 2004) (isolated reference in a four-day trial that the defendant had been unable to make bail and curative instruction were sufficient factors in denying motion for mistrial); Spencer v. State, 645 So.2d 377, 382-83 (Fla.1994) (mistrial not required where prosecutor made isolated reference to a fact not in evidence). The trial court did not abuse its discretion in denying Tillman’s motion for mistrial. See Goodwin v. State, 751 So.2d 537, 547 (Fla.1999) (“[T]he correct appellate standard is whether the trial court abused its discretion in its denial of a mistrial.”).

In the second issue raised, Tillman argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove premeditation for the charge of first degree premeditated murder. Tillman argues that there was no evidence excluding the possibility that the gun fired accidentally when used as a bludgeon to hit the victim.

Rulings on motions for judgment of acquittal are reviewed de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). A motion is properly denied where the State has presented “competent evidence sufficient to enable the jury to exclude every reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187,188 (Fla.1989).

Here, there was evidence presented by the eyewitness and the medical examiner that contradict Tillman’s hypothesis. The eyewitness testified that he saw Tillman hit the victim first with the gun. Then the eyewitness heard a single gunshot. The eyewitness also observed Tillman leave the scene “nonchalantly,” an action more characteristic of intent rather than an accident. The medical examiner testified that there was a lack of stippling on the victim, indicating that the gun was fired at a distance from the victim and that the bullet wound indicated the gun was pointed at the back of the victim’s head when it went off. The trial court did not err in denying the motion for judgment of acquittal.

In Tillman’s final point on appeal, he argues that the trial court erred in convicting him as to the charge of being a felon in possession of a firearm when it accepted his stipulations regarding his pri- or felony convictions without conducting a plea colloquy as to his trial rights and a waiver thereof.

First, Tillman did not preserve this issue for appellate review because he failed to object or move for judgment of acquittal on this issue. See Harrell v. State, 894 So.2d 935, 940 (Fla.2005).

Second, even if this issue was properly preserved, it has no merit. Tillman was questioned by the trial court regarding his stipulation and he verbally agreed to the stipulation and waived his right to have the State prove this element. “[W]hen a criminal defendant offers to stipulate to the convicted felon element of the felon-in-possession of a firearm charge, the Court must accept that stipulation, conditioned by an on-the-record colloquy with the defendant acknowledging the underlying prior felony conviction(s) and acceding to the stipulation.” Brown v. State, 719 So.2d 882, 884 (Fla.1998). The record reflects that the trial court properly questioned Tillman before accepting the stipulation.

Affirmed.

MAY and DAMOORGIAN, JJ., concur.


text:
    Michele PRICE, Appellant, v. FLAGLER COUNTY SCHOOLS, Appellee.
    No. 5B08-4108.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2009.
    Michele Price, Palm Coast, pro se.
    Kristy J. Gavin, of Gobelman, Love Gavin, Wasilenko & Broughan, LLC, Jacksonville, for Appellee.
   PER CURIAM.

Michele Price appeals from a final order of the Florida Commission on Human Relations that dismissed with prejudice her petition for relief from an alleged unlawful employment practice. We affirm. A careful review of the record confirms that the hearing officer’s order was supported by competent, substantial evidence. See Brown v. Agency for Health Care Admin., 890 So.2d 1170 (Fla. 5th DCA 2004).

AFFIRMED.

ORFINGER, LAWSON and EVANDER, JJ., concur.


author: FULMER, Judge.

text:
    Michael Todd HARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4113.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.

      Michael Todd Harrell, pro se.
   FULMER, Judge.

Michael Harrell challenges the summary denial of his Motion for Post-Conviction Relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Harrell entered a negotiated plea of no contest to lewd and lascivious battery, possession of child pornography, and aggravated stalking of a child. He was sentenced on February 21, 2006, in accordance with his plea agreement to a total of ten years in prison. He did not file a direct appeal. In his postconviction motion, filed on November 5, 2007, he raised three grounds of ineffective assistance of counsel. We reverse for further proceedings because the postcon-viction court erroneously concluded that the record conclusively refutes the claims.

According to the factual basis given at the plea colloquy, this case involved a fifteen-year-old girl whom Harrell met online. Harrell began a sexual relationship with the girl, and when she tried to end the relationship, he began stalking her and set up a website to harass her. A search warrant was executed on Harrell’s residence, and Harrell’s computer was confiscated. Sexually explicit pictures of children were found on the computer.

Harrell alleged in Ground One of his motion that his attorney failed to take depositions of the victim and her parents. He alleged that there were many inconsistencies in the case that should have been investigated, and he complained that counsel did not file any pretrial motions. He asserted that counsel should have moved to suppress the illegally obtained computer and CDs and his confession, which he claimed was induced by trickery. He also claimed that counsel should have moved to dismiss based on the removal of three computers from his residence, moved to sever the charges, consulted with him about suppression of identification testimony, and investigated the fact that the victim had made the same allegations against two other men. He claimed he would not have entered the plea if he had “been advised of the relation of the facts to the law.”

The postconviction court based its denial of these claims on a finding that the claims were conclusively refuted by the transcript of the change of plea colloquy. The court also found that Harrell did not identify any defense his counsel could have presented which was unknown to Harrell at the time of the plea and which could have impacted Harrell’s decision to plead guilty.

We disagree with the postconviction court’s conclusion that the claims are refuted by the plea colloquy. See Mondy v. State, 6 So.3d 1251, 1252 (Fla. 2d DCA 2009) (finding that plea colloquy did not refute claim that counsel failed to move for suppression of coerced confession). However, Harrell’s claims are facially insufficient as they are lacking sufficient factual details for a prima facie case of ineffective assistance. See Oquendo v. State, 2 So.3d 1001, 1004 (Fla. 4th DCA 2008) (addressing conclusory allegations of ineffective assistance of counsel). Accordingly, the postconviction court should have stricken the facially insufficient claims but, pursuant to Spera v. State, 971 So.2d 754 (Fla. 2007), given Harrell at least one opportunity to amend the motion.

In Ground Two, Harrell alleged that counsel told him that if he did not take the plea he would receive a life sentence, which amounted to a threat, coercion, and misadvice as the maximum sentence was twenty-five years. He claimed that he was led to believe that if he went to trial he was facing twenty-five years to life in prison and that counsel insisted he should take the proposed plea for ten years. The postconviction court found this claim to be conclusively refuted by the plea colloquy.

The transcript reflects that the trial judge did not discuss the maximum possible sentences for the crimes. Because the record does not conclusively refute the allegation that counsel affirmatively misad-vised Harrell that he was facing life in prison if he went to trial, we reverse the denial of this claim and remand for an evidentiary hearing. See Delacruz v. State, 721 So.2d 763 (Fla. 2d DCA 1998) (reversing denial of claim that appellant was misinformed by his trial counsel as to the maximum penalty he faced if he proceeded to trial and was found guilty).

In Ground Three, Harrell alleged that counsel was ineffective for failing to challenge the existence and validity of the search warrant used to seize three computers from his residence. The postconviction court denied this claim based on the finding that it was conclusively refuted by the change of plea hearing, specifically when Harrell acknowledged satisfaction with counsel. The court also noted that Harrell failed to identify any objection counsel should have presented with respect to the search warrant.

We disagree with the postconviction court’s conclusion that the claim is refuted by the plea colloquy. However, the claim is facially insufficient as Harrell has not identified any objection that counsel should have made with respect to the search warrant. The postconviction court should have stricken this claim but, pursuant to Spent, given Harrell the opportunity to amend.

We therefore reverse the summary denial of the motion and remand for the post-conviction court to strike Grounds One and Three with leave to amend within a reasonable period pursuant to Spent and to conduct an evidentiary hearing on Ground Two.

Reversed and remanded.

CASANUEYA, C.J., and DAVIS, J., Concur.

      . He also claims that counsel failed to advise him that sexual offender registration would attach to this sentence. This aspect of his claim was properly denied. See State v. Part-low, 840 So.2d 1040, 1041 (Fla.2003) (holding that "the sexual offender registration requirement is a collateral consequence of the plea, and therefore failure to inform the defendant of that requirement before he entered the plea does not render his plea involuntary”).


text:
    Aurelio GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2781.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Aurelio Gonzalez appeals his convictions for second-degree murder and aggravated child abuse. We reverse and remand for the trial court to reconsider Gonzalez’s pro se motion to withdraw his plea.

In his motion to withdraw plea, Gonzalez alleged that his counsel gave improper legal advice. In accordance with this court’s precedent, the trial court dismissed the motion as a nullity because Gonzalez did not include an unequivocal request to discharge counsel. While this case was pending on appeal, the supreme court decided Sheppard, v. State, 17 So.3d 275, 277 (Fla. 2009), in which the court recognized a limited exception to the rule of striking pro se pleadings as nullities “where a defendant files a pro se motion to withdraw a plea pursuant to rule 3.170(7), which contains specific allegations that give rise to an adversarial relationship, such as misadvice, affirmative misrepresentations, or coercion that led to the entry of the plea.” The supreme court directed that the trial court is required “to conduct a limited inquiry to determine whether an adversarial relationship exists such that defense counsel can no longer continue to represent his or her client at a hearing in which counsel will likely be an adverse witness.” Id. at 277 (footnote omitted).

Because Sheppard addresses the situation presented by Gonzalez’s pro se motion, we reverse and remand with directions to reconsider the motion to withdraw plea based on the procedure outlined in Sheppard.

Reversed and remanded for further proceedings.

KHOUZAM and MORRIS, JJ., Concur.


author: LaROSE, Judge.

text:
    Sean P. McCANN, Appellant, v. Hillary A. CRUMBLISH-McCANN, Appellee.
    No. 2D08-6227.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.

      Mark S. Howard and Laura H. Howard of Mark S. Howard, P.A., Tampa, for Appellant.
    No appearance for Appellee.
   LaROSE, Judge.

Sean McCann appeals a nonfinal order awarding $1500 per month in temporary alimony to his wife, Hillary Crumblish-McCann. He contends that the trial court failed to make specific findings about the wife’s needs and his ability to pay. He also claims that the trial court incorrectly imputed $1000 in monthly income to him. We affirm, in part, and reverse, in part.

Trial courts have broad discretion to award temporary alimony. See Driscoll v. Driscoll, 915 So.2d 771, 773 (Fla. 2d DCA 2005). Where competent, substantial evidence demonstrates need and ability to pay, we will not reverse for absence of statutory findings in the written order. See id.; Broadfoot v. Broadfoot, 791 So.2d 584, 585 (Fla. 3d DCA 2001); see also Gonzalez v. Gonzalez, 834 So.2d 291, 292 (Fla. 3d DCA 2002) (holding specific findings not necessary where record adequately supports amount awarded).

The trial court imputed income of $1000 per month to the husband because his mother provides rent-free housing. The husband argues that there is no evidence as to the value of the housing or that the free housing will continue. See Meighen v. Meighen, 813 So.2d 173, 176 (Fla. 2d DCA 2002); Rogers v. Rogers, 824 So.2d 902, 903 (Fla. 3d DCA 2002). However, the mother’s testimony that she was not charging anything for housing is sufficient evidence of ongoing free rent. The husband’s financial affidavit also listed his monthly rent expense as $1000. The record contains ample evidence to support the imputation of income.

The husband also argues that the temporary award exceeds his ability to pay. His financial affidavit reflects monthly gross income as $3113. After taxes, his net income is $2733.34. Adding the imputed income raises his net income to $3733.34. The husband’s affidavit reflects monthly expenses, including rent, as $3994.14; this leaves a $260.80 deficit, before paying any support for the wife or children. We note that the husband’s monthly expenses include over $1332 for payments on a new Corvette and for another vehicle, a Tahoe.

Our review of the husband’s financial information establishes that even without the automobile payments, the husband, facing a $1500 per month temporary alimony payment, would still have a several-hundred-dollar monthly deficit. Thus, the temporary award exceeds his ability to pay. See Hotaling v. Hotaling, 962 So.2d 1048, 1051 (Fla. 2d DCA 2007) (holding trial court abused discretion in ordering temporary support that virtually exhausted husband’s income); Barclay v. Barclay, 554 So.2d 1191, 1192 (Fla. 2d DCA 1989) (holding award exceeded ability to pay with $5666 gross earnings and $3278 mortgage payments leaving $2388 before paying $2500 alimony and child support); De Luca v. De Luca, 722 So.2d 947, 948 (Fla. 3d DCA 1998) (finding abuse of discretion in ordering husband to pay alimony and child support in excess of net income).

We reverse and remand with instructions to determine a reasonable amount of temporary support for the wife.

NORTHCUTT and VILLANTI, JJ., Concur.


text:
    Michael Joe WYNPERLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3014.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2009.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

This is an Anders appeal of the revocation of Wynperle’s probation in May 2008, for committing a new law violation. Independent review of the record reveals no issues of arguable merit, but we must remand for entry of a formal order of revocation of probation.

We previously relinquished jurisdiction for the trial court to enter an order of revocation. What we received were judgments and sentences dated December 17, 2008, for the original offenses. While these documents indicate that Wynperle is a probation violator and that he violated the conditions stated in the attached affidavits of violation of probation, those affidavits were not attached to the judgments and sentences, although they are in the original record. However, those affidavits were filed after the revocation of Wyn-perle’s probation that is at issue in this appeal, and they list conditions different from the one that Wynperle admitted to violating in this case.

A “trial court is required to enter a formal order of violation of probation that lists the specific conditions the court determined [the defendant] violated.” Cato v. State, 845 So.2d 250, 251 (Fla. 2d DCA 2003). The transcript of the violation of probation hearing reflects that Wynperle admitted to violating his probation by committing a new law violation and that the trial court revoked his probation based upon that admission. We remand with directions that the trial court enter a formal order of revocation of probation reflecting these facts. See Dolinger v. State, 779 So.2d 419, 421 (Fla. 2d DCA 2000).

Affirmed but remanded with directions.

WHATLEY, KELLY, and LaROSE, JJ., Concur.

      . Anders v. California, 386 XJ.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: DAMOORGIAN, J.

text:
    T.O., the Father and E.R., the Mother, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 4D09-686, 4D09-687.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.
    Rehearing Denied Dec. 11, 2009.

      Jennifer Labbe of The Labbe Law Firm, P.A., West Palm Beach, for appellant, T.O., the father.
    Philip J. Massa, Regional Counsel, J. Patrick Reynolds, Assistant Regional Counsel, and Debbie Maken, Legal Intern, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant, E.R., the mother.
    Patricia M. Propheter of Children’s Legal Services, West Palm Beach, for appel-lee.
   DAMOORGIAN, J.

This appeal arises from the trial court’s termination of T.O.’s (the father) and E.R.’s (the mother) parental rights to their four children, S.O., R.O., E.O., and M.O. These appeals have been consolidated for purposes of this opinion. Because there is competent, substantial evidence in the record to support the trial court’s order, we affirm the termination as to both parents. We write to address two of the issues raised by the parents in their appeals.

On April 21, 2006, Department of Children and Families (DCF) filed a petition for adjudication of dependency for the four girls and their older brother, R.R. In support of the petition, DCF alleged that, on or about March 19, 2006, the father held a rifle to the mother’s head and threatened to “blow [her] head off.” The father also threatened to kill R.R. When law enforcement arrived at the home, the mother stated that she was fearful for her own and her son’s safety because the father had been violent in the past. Soon after he was released from jail for this incident, the father resumed living with the mother and the children. The mother refused to obtain a restraining order against him because she needed his financial support. The family has a history of domestic violence, and both parents have criminal histories.

On May 4, 2006, the trial court adjudicated the children dependent with the parents’ consent, and ordered the parents to enter into a case plan with DCF. DCF created a case plan with concurrent goals of reunification and adoption for the four girls. The plan included, among other things, psychological evaluations, parent effectiveness training, substance abuse evaluations, random drug testing, and domestic violence counseling for the parents. It also included assessments, therapy and counseling for the children.

During the course of the case plan, E.O. began making statements that her father had sexually abused her and began exhibiting sexual behavior. As a result, the trial court ordered that the parents and children submit to psychosexual evaluations. The parents were also required to attend psychosexual counseling and the father was ordered to take a lie detector examination for therapeutic purposes. Through no fault of their own, it appears that the parents never received the psy-chosexual counseling. They completed the rest of the tasks in their case plans.

On December 14, 2007, DCF filed a petition for termination of both parents’ rights to the four girls. The petition reiterated the allegations of domestic violence, and added allegations that the father had sexually abused E.O. and that the mother was aware of the abuse.

Prior to the trial on the petition to terminate parental rights, DCF moved to admit E.O.’s and S.O.’s hearsay statements pursuant to section 90.803(28), Florida Statutes (2008). The trial court conducted a pretrial hearing on the motion, as required by the statute. Various witnesses who had contact with E.O. and S.O. testified that the girls described violence between their parents and between their father and R.R. According to the girls, many of their father’s violent episodes occurred when he was drinking alcohol. S.O. stated that her father threatened to hit her when he was drunk, and that she was scared of him. The witnesses also testified that E.O. made statements indicating that her father had sexually abused her and displayed highly sexualized behavior for her young age. S.O. denied any sexual abuse.

Two of the witnesses testified about E.O.’s reaction to seeing her father during a scheduled visit with her mother. E.O. screamed, could not talk, and clinched her fists. E.O. had a similar reaction when she saw her father at another visit with her mother.

At the conclusion of the hearing, the parents’ attorneys conceded all of the requirements for admitting S.O.’s and E.O.’s hearsay statements except for the reliability of the statements. The trial court found the statements to be reliable and from trustworthy sources, and ruled them admissible.

Both parents testified at the trial. The mother testified that she made up the story about the father holding the gun to her head because she was angry with him for refusing to give her money. After learning the signs of abuse in her domestic violence counseling, she did not believe she had been abused. Although she and the father had loud arguments, they never involved physical violence, and she was usually at fault for starting the arguments. She did not believe that the father had sexually abused E.O. She testified that someone, possibly one of E.O.’s counselors or case workers, was forcing E.O. to make the statements about sexual abuse.

The father also denied threatening the mother with a gun. He testified that E.O. and S.O. were making up the allegations of abuse. He felt that he benefitted from the domestic violence counseling.

E.O. and S.O. were allowed to testify in camera. E.O. answered a few questions about school, and stated that she knew the difference between a truth and a lie, but refused to answer any questions about her parents. S.O. stated that she felt sad and afraid while living with her parents because “they were always hitting each other.” She described physical violence between her parents and between her father and R.R. She believed that E.O. was her father’s favorite child. S.O. also described witnessing her father take out a gun and try to shoot her mother. Her mother’s cell phone was broken because her father stomped on it, so S.O. had to run to a neighbor’s house to call the police.

Dawn Sheehan, a psychologist, testified that she performed psychosexual evaluations on the whole family. She concluded that the father’s psychosexual makeup presented a number of areas of concern because of his pervasive history of violence and aggression and criminal history, but he was not a pedophile. He had a difficult time explaining to Dr. Sheehan the services he had engaged in as part of his case plan. He was not able to relate what groups he was attending and the purposes of those groups. Dr. Sheehan concluded that the father did not have as much investment in the services as one would hope.

Dr. Sheehan was also concerned with the mother’s failure to be forthcoming about the problems in her home. The mother denied any violence in the home, and had difficulty acknowledging personal faults or shortcomings that may have led to her children being removed.

Finally, Dr. Sheehan testified that E.O. had been sexually exposed or abused and that her clinical presentation appeared to be within the spectrum of post-traumatic stress disorder.

Francis Crosby, a licensed clinical psychologist, testified that he evaluated the father in 2006 and in December 2007. In 2006, the father presented a moderate to significant risk for future maltreatment. In December 2007, Dr. Crosby concluded that the father had not progressed and that the risk for future maltreatment had not been lowered, and might have increased. He diagnosed the father with anti-social personality disorder and found that it was highly unlikely that the father’s risk to the children would ever decrease. Dr. Crosby also evaluated the mother in 2006, although he did not re-evaluate her in 2007. In 2006, she presented a moderate to significant risk of future maltreatment.

Lauren Zieman, one of the family’s case managers, testified that she was concerned that the children’s therapy would lapse if they were returned to their parents. She believed that there would be no harm to the children if they were adopted, and that it was in the children’s manifest best interest for the parents’ rights to be terminated. Although the children seem to miss their mother, Zieman did not believe it would be safe for them to return to their mother while she is living with their father.

Charlotte Goode, the children’s guardian ad litem, testified that the allegations of domestic violence and sexual abuse continued to concern her even after the parents completed the tasks in the case plan. She did not believe that the father had benefit-ted from the tasks in the case plan. She testified that the parents continued to lack insight and concern about what is in the best interest of the children. She recommended termination of the parents’ rights.

Goode also testified about E.O.’s reaction to seeing her father during a visit with her mother. E.O. stopped dead, got a vacant stare, became rigid, and would not talk to anyone. Goode tried to talk to the mother about ending her relationship with the father, but the mother became belligerent and accused Goode of stalking her.

On behalf of the parents, several witnesses testified that they were not aware of any violence in the family’s home and that the children all appeared to be well cared-for.

The trial court granted the petition and terminated both parents’ rights to all four girls under section 39.806(l)(c), Florida Statutes (2008). The court found, by clear and convincing evidence, that any further services to the parents would be futile, that there is a high likelihood of harm by the parents if the children were returned to their care, and that there is a high likelihood that the parents’ continuing involvement threatens the life, safety, or well-being of the children. The court relied heavily on Dr. Crosby’s testimony that the parents continued to pose a substantial risk of harm to the children, and that they would not benefit from any future services. From this testimony and the other evidence presented in the case, the court concluded that the parents had not complied with the more psychologically meaningful reason for the services in their case plans, despite technical compliance with the plans. The court also found that the parents’ testimony lacked any credibility and was unworthy of belief.

In addition to the ground stated above, the trial court terminated the parents’ rights to E.O. based on section 89.806(l)(f) and (g), Florida Statutes (2008). Finally, the court found that it was in the manifest best interest of all four children that the parents’ rights be terminated in all respects, and that termination was the least restrictive means of protecting the children from further serious harm or abuse.

The parents contest the termination of their parental rights, raising two major arguments. First, they argue that the trial court improperly admitted E.O.’s hearsay evidence because E.O. did not testify at trial. We agree, but hold that the error was not fundamental because there was sufficient corroborating evidence to support the admission of this evidence. Second, the parents argue that DCF did not show a nexus between the father’s sexual abuse of E.O. and any future risk of harm to S.O., R.O., and M.O. We do not have to reach this issue because there is competent, substantial evidence to support termination of the parents’ rights to all four children under section 39.806(l)(c). Thus, we affirm.

Admission of Child Victim Hearsay Evidence

Section 90.803(23), Florida Statutes (2008), allows for the admission of child victim hearsay statements where the statements describe an act of child abuse or neglect. Before these statements are admissible, the trial court must conduct a hearing and make a preliminary determination that they come from a trustworthy source and are reliable. § 90.803(23), Fla. Stat. (2008). Then, the child must either testify at trial or be declared unavailable as a witness. Id. If the child is unavailable, the hearsay statements are admissible only if the trial court determines that there is other corroborating evidence of the abuse or neglect. Id.

In this case, the trial court conducted a hearsay hearing prior to trial, as required by the statute, and determined that E.O.’s hearsay statements were reliable and from trustworthy sources. The parties expected E.O. to testify at trial to meet the second requirement of section 90.803(23). When she refused to testify about her parents, neither party objected or asked the court to find E.O. unavailable as a witness.

The parents argue that the trial court erred by admitting E.O.’s hearsay statements because she did not testify to the subject-matter of her hearsay statements at trial. This issue was not preserved for review because neither parent objected to E.O.’s failure to testify to the subject-matter of her hearsay statements. And, for the reasons discussed below, we do not find any fundamental error.

The parties disagree about whether the child victim must testify to the subject-matter of the hearsay statements to satisfy the requirement in section 90.803(23), or whether testimony on any matter is sufficient. The Second District dealt with this issue in L.W. v. Department of Health & Rehabilitative Services, 681 So.2d 1181 (Fla. 2d DCA 1996). There, the child victim was unable to testify to any facts relevant to the alleged sexual assault. Id. at 1182. She stated that she did not remember the events. Id. The court held that she was unavailable as a witness because of her lack of memory, and that her hearsay statements were admissible only if other corroborative evidence was presented. Id. at 1183. The court referenced section 90.804(l)(c), Florida Statutes, which states that a witness is unavailable if he “[h]as suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant’s effectiveness as a witness during the trial.”

Similarly in this case, E.O. was unavailable under section 90.804(l)(b), Florida Statutes, which states that a witness is unavailable if he or she “[pjersists in refusing to testify concerning the subject-matter of the declarant’s statement despite an order of the court to do so.” E.O. refused to testify about her parents, despite several attempts to elicit such testimony in different ways, and a court order would have served no purpose under these circumstances. See Peterson v. State, 810 So.2d 1095,1099 (Fla. 5th DCA 2002).

Because E.O. was unavailable to testify, her hearsay statements were admissible only if there was sufficient corroborating evidence of the sexual abuse. Other corroborating evidence is “ ‘evidence other than the alleged child victim’s out-of-court statements which tends to confirm that the charged offense occurred.’ ” Ghelichkhani v. State, 765 So.2d 185, 190 (Fla. 4th DCA 2000). Here, there was sufficient evidence that E.O. displayed overly-sexualized behavior for her age and that she suffered from post-traumatic stress disorder. Moreover, several witnesses testified that, upon seeing her father during scheduled visits with her mother, E.O. displayed concerning behavior. This combination of evidence tends to confirm E.O.’s hearsay statements that her father sexually abused her.

Accordingly, E.O. was unavailable as a witness and there was sufficient evidence to corroborate her hearsay statements. The trial court did not commit fundamental error by admitting those statements at trial.

Termination of the Parents’ Rights

The parents further argue that the trial court erred by terminating their parental rights to the other three children, S.O., R.O., and M.O., based on E.O.’s sexual abuse. They assert that DCF did not establish a nexus between the sexual abuse inflicted on E.O. by her father and potential abuse to the other three children.

Parents have a fundamental liberty interest in the care, custody and companionship of their children. Padgett v. Dep’t of Health & Rehabilitative Sens., 577 So.2d 565, 570 (Fla.1991). Thus, “before parental rights in a child can be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child.” Id. at 571; see also R.E. v. Dep’t of Children & Families, 996 So.2d 929, 930 (Fla. 4th DCA 2008). In addition, termination must be the least restrictive means of protecting the child, and it must be in the child’s manifest best interest. D.B. Sr. v. Dep’t of Children & Families, 993 So.2d 1159, 1160 (Fla. 4th DCA 2008). Where the trial court’s finding is supported by competent, substantial evidence on the record, the appellate court must affirm. D.S. v. Dep’t of Children & Families, 842 So.2d 1071, 1072 (Fla. 4th DCA 2003).

First, we note that the trial court’s decision to terminate both parents’ rights to E.O. is supported by competent, substantial evidence that the father sexually abused E.O. and that the mother refused to end her relationship with the father despite this abuse.

We conclude that it is not necessary to reach the issue raised by the parents as to the other three children because DCF presented sufficient evidence to terminate the parents’ rights to all four children under section 39.806(l)(e), Florida Statutes (2008), based on the continued threat of domestic violence in the home. Section 39.806(l)(c) allows a court to terminate parental rights under the following circumstances:

When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.

There are three evidentiary requirements for terminating parental rights under this section: (1) that the child’s life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services; (2) that there is no reasonable basis to believe the parent will improve; and (3) that termination is the least restrictive means of protecting the child from serious harm. L.D. v. Dep’t of Children & Family Servs., 957 So.2d 1203, 1205 (Fla. 3d DCA 2007). There must be a nexus between the parent’s conduct and the abuse, neglect, or specific harm to the child. See id. (quoting D.P. v. Dep’t of Children & Family Servs., 930 So.2d 798, 801 (Fla. 3d DCA 2006)).

The evidence at trial showed that the parents had a long-standing domestic violence problem that escalated to the point that the father held a gun to the mother’s head and threatened to kill both the mother and R.R. This violence occurred in front of S.O. While the parents denied the violence, there was sufficient evidence from other sources that this incident, and other instances of violence, occurred. Both S.O. and E.O. testified to witnessing their parents engage in violence, and witnessing their father act violently toward R.R. Although these events happened before the children were adjudicated dependent, they are a cause for much concern. DCF’s case plan was designed to remedy this violent situation to make the family’s home safe for the children.

Despite technical compliance with the case plan, however, the evidence showed that the parents did not meaningfully benefit from the services that were provided to them. Dr. Crosby and Charlotte Goode both recommended that the parents’ rights be terminated to protect the children from future harm. Dr. Crosby testified that it was highly unlikely the father’s risk to the children would decrease with any future services. He diagnosed the father with anti-social personality disorder, and testified that this disorder, combined with his other personality traits, make him a continued risk to the children. Goode also testified that the father had not benefitted from the services provided to him, and that both parents lacked insight and concern about the children’s best interest, even after participating in therapy. From this evidence, the trial court concluded that any future provision of services to the parents would be futile and that it was in the children’s manifest best interest to terminate their rights to all four children. We agree. Although the parents were provided with several opportunities to truly remedy the dangerous situation in their home, they merely went through the motions of their case plan without making any significant effort toward improvement.

We note that there was very little evidence presented at trial with regard to M.O. and R.O. It is not clear whether M.O. and R.O. witnessed the violence in the home, although S.O. indicated that all of the girls were crying during the episode where their father threatened to kill their mother and R.R. As a result of this lack of evidence, the case for terminating the parents’ rights to M.O. and R.O. was primarily one of prospective abuse. “In prospective abuse cases, the Department must prove a nexus between the act of abuse and any prospective abuse. The issue in these types of cases is whether future behavior, which will adversely affect the child, can be clearly and certainly predicted. Or, stated another way, whether it is likely to happen or expected.’ ” J.F. v. Dep’t of Children & Families, 890 So.2d 434, 440 (Fla. 4th DCA 2004) (citations omitted). In this case, there is ample evidence that the father will continue to be a risk to all of the children in the future, and that it is highly unlikely that he will ever improve. See L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002) (A court may find prospective abuse where “the parent is so afflicted that no reasonable basis exists for improvement.”). The trial court properly terminated the parents’ rights to all four children.

Finally, although the mother presented less of a direct risk to the children than the father, the trial court properly terminated her rights because she refused to separate herself and the children from the father. She demonstrated that she cannot provide a safe environment for the children, and that termination of her parental rights is the least restrictive means to protecting the children from future harm.

In sum, the trial court properly terminated the parents’ rights to S.O., E.O., M.O., and R.O. under section 39.806(l)(c), Florida Statutes (2008). We agree with the trial court that the parents continually put their own relationship ahead of their children’s best interest, and that DCF did all it could to try to rehabilitate the parents, to no avail. As such, we affirm.

Affirmed.

GERBER and LEVINE, JJ., concur.

      . R.R., the mother’s teenage son, was not subject to the termination order.

      . DCF did not seek to admit any statements made by M.O. or R.O.


text:
    Roberto GONZALEZ, Appellant, v. JOHNNY LONDOFF CHEVROLET, INC., Appellee.
    No. 3D09-839.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 2009.
    Coffey Burlington, Robert K. Burlington, and Natalia M. Salas, Miami, for appellant.
    Peckar & Abramson, Melinda S. Gentile, and Monique S. Cardenas, Fort Lauder-dale, for appellee.
    Before GERSTEN and WELLS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989).


author: ROTHENBERG, J.

text:
    Richard PLAZA, Petitioner, v. Marie PLAZA, Respondent.
    No. 3D09-2453.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Kenneth M. Kaplan, for petitioner.
    Brandon A. Rotbart, Miami, for respondent.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   On Motion for Rehearing

ROTHENBERG, J.

We grant Marie Plaza’s (“the mother”) motion for rehearing, withdraw this Court’s opinion dated October 8, 2009, and issue the instant opinion in its stead.

Upon review of Richard Plaza’s (“the father”) petition for writ of prohibition, the mother’s subsequently filed motion to relinquish jurisdiction and to lift the stay entered by this Court, and the mother’s “Initial Reply Brief and Challenge to Stay,” it is evident that the parties misunderstood the stay issued by this Court on September 9, 2009. The stay was directed towards the order on appeal, not the proceedings below. The effect of the stay should have resulted in the immediate restoration of the father’s custody and visitation with his children pending appellate review of the trial court’s order. We therefore vacate this Court’s order dated September 9, 2009.

On July 29, 2009, the trial court conducted an evidentiary hearing on the mother’s motion for contempt, finding the father in contempt of court, and directing the mother’s counsel to prepare an order. The following day, the father moved to recuse the trial judge, and on August 4, 2009, before issuing his written order holding the father in contempt of court, the trial judge issued an order recusing himself. On August 10, 2009, after issuing the order of recusal, the trial judge issued the order holding the father in contempt, which is the subject of this Court’s review.

As a general rule, once an order disqualifying a judge is entered, the judge is prohibited from any further participation in the case. See Lake v. Lake, 14 So.3d 284, 284 (Fla. 3d DCA 2009) (reversing an order issued by the same judge who issued the instant order after the judge had recused himself, finding that “[o]nce the trial judge recused himself, he had no further authority to enter orders”); Colla-do v. Collado, 858 So.2d 1255, 1255 (Fla. 5th DCA 2003) (granting petition for writ of prohibition and quashing the order under review; finding that because the order was entered after the trial judge had been disqualified, it was void); State ex rel. Cobb v. Bailey, 349 So.2d 849, 850 (Fla. 1st DCA 1977) (holding that the judge’s recu-sal order effectively deprived that judge of authority to preside over the contempt proceedings).

While disqualification of the judge generally requires that the judge take no further action in the case, there is an exception to this rule. The exception is where the trial judge orally announces his ruling, subsequently enters an order of recusal, and thereafter performs the ministerial act of simply entering a written order or judgment reflecting his prior oral ruling. See Florida Bar v. Wilson, 714 So.2d 381, 383 (Fla.1998) (citing Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986) (finding that the trial judge retained authority to reduce his ruling to writing in a dissolution proceeding subsequent to the filing of a motion for disqualification when the case had been tried and orally ruled upon prior to the filing of the motion to disqualify)); Berry v. Berry, 765 So.2d 855, 857 (Fla. 5th DCA 2000) (“An exception to this rule exists in order to allow a judge the opportunity to perform the ministerial act of reducing to writing an oral ruling made prior to the motion to disqualify.”).

The exception to the disqualification rule is, however, unavailing regarding the order issued after disqualification in the instant case. Apparently, there was no court reporter present at the hearing on the mother’s motion for contempt, as neither side has submitted a transcript of the hearing. There is also a disagreement between the parties as to what occurred at the hearing and the oral findings made by the trial judge. Moreover, the trial judge did not reduce his earlier ruling to writing. Instead, the trial judge directed the mother’s attorney to prepare and submit a proposed order for his consideration. Thus, upon receipt of the proposed order, the trial judge was required to exercise discretion in determining whether the proposed order comported with his rulings, and in fact, the order ultimately issued by the trial judge contains his handwritten modifications to the proposed order. Under these circumstances, we cannot say that the order issued after disqualification was a mere ministerial act not requiring the exercise of judicial discretion. See Berry, 765 So.2d at 857 (finding that the narrow exception to the disqualification rule did not apply where the trial judge directed the husband’s attorney to prepare and submit a proposed order, requiring the judge to exercise his discretion in determining whether the proposed order comported with the trial judge’s directions).

The exception to the disqualification rule cannot be applied in this case because the trial judge directed the mother’s attorney to prepare and submit a proposed order reflecting the trial judge’s pronouncements after the hearing, the parties dispute what occurred at the hearing, the trial judge made changes to the proposed order, and there is no transcript to determine whether the order signed by the judge comports with the factual findings and oral pronouncements made by the judge at the hearing.

Accordingly, we grant the petition, quash the trial court’s order of August 10, 2009, and order that the father’s visitation and custody rights be restored forthwith. See Bolt v. Smith, 594 So.2d 864, 864 (Fla. 5th DCA 1992) (“Florida case law is well settled that once a trial judge has recused himself, further orders of the recused judge are void and have no effect.”).

This opinion shall take effect immediately, notwithstanding the filing of any motions for rehearing or rehearing en banc.

Petition granted, order quashed, and case remanded with instructions.


text:
    PALM BEACH POLO, INC., Appellant, v. TJ PALM BEACH ASSOCIATES, L.P., The Taubman Realty Group, L.P., The Taubman Corporation and Smith & Company, Inc., Appellees.
    No. 4D08-310.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.
    Larry A. Zink of Zink, Zink & Zink Co., L.P.A., Hillsboro Beach, for appellant.
    Morris G. (Skip) Miller of Ruden, McClosky, Smith, Schuster & Russell, P.A., West Palm Beach, for appellees.
   DAMOORGIAN, J.

The Appellees, TJ Palm Beach Associates, L.P., The Taubman Realty Group, L.P., The Taubman Corporation, and Smith <& Company, Inc., obtained a final summary judgment in their favor, which was affirmed by this court. The trial court granted the Appellees’ motion for attorney’s fees and costs and ordered that Palm Beach Polo pay $67,665.00 in attorney’s fees to TJ Palm Beach and $41,301.50 in attorney’s fees to the other Appellees, with a maximum exposure of $67,665.00. The trial court also ordered Palm Beach Polo to pay costs and expert witness fees.

Palm Beach Polo appeals from the order granting attorney’s fees and costs, arguing that the trial court failed to make express written findings in the order as to the time reasonably expended by, and the hourly rates of, the Appellees’ attorneys. Although the Appellees concede error on this point, we reverse the order only as to the trial court’s failure to make a specific finding of the reasonable number of hours expended by the Appellees’ attorneys. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985). On remand, the trial court shall set forth this specific finding in its order. The parties note that there is no transcript of the attorney’s fees hearing. As a result, additional proceedings may be necessary if the record is not adequate for the trial court to make this finding.

The trial court’s error in failing to make a specific finding of hourly rates was harmless because the court referenced another portion of the record which listed those rates, thereby adopting the rates as reasonable. Cf. Blits v. Renaissance Cruises, Inc., 647 So.2d 971, 972 (Fla. 4th DCA 1994) (harmless error where the trial court failed to make sufficient written findings of fact in its order awarding attorney’s fees, but stated its findings on the record at the evidentiary hearing). In addition, the trial court’s order i-eflects that Palm Beach Polo agreed to the reasonableness of the rates.

Palm Beach Polo also argues that the trial court erred in awarding certain costs to TJ Palm Beach because TJ Palm Beach did not show that all of the requested costs were reasonably necessary to defend the case. Because there is no transcript of the evidentiary hearing on attorney’s fees and costs, we cannot determine whether the trial court abused its discretion in awarding these costs. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); see also Smith v. Sch. Bd. of Palm Beach County, 981 So.2d 6, 10 (Fla. 4th DCA 2007) (“An award of costs is reviewed using an abuse of discretion standard.”). We must affirm the cost award.

Affirmed in part; Reversed in part and Remanded.

MAY and CIKLIN, JJ., concur.

      . Palm Beach Polo, Inc. v. TJ Palm Beach Assocs., L.P., 12 So.3d 236 (Fla. 4th DCA 2009).


text:
    Donald LINCKS, Appellant, v. Joan KEENAN, et al., Appellees.
    No. 4D08-2807.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.
    Donald Lincks, Fort Lauderdale, pro se.
    No brief filed for appellees.
   PER CURIAM.

Appellant challenges the dismissal of his fifth amended complaint against Joan Keenan, claiming that the court should not have dismissed it as to Keenan when it had earlier granted a default against her. However, the court dismissed the complaint for failure to state a cause of action. Because the entry of a default constitutes an admission of only the well-pleaded factual allegations of the complaint, see Days Inns Acquisition Corp. v. Hutchinson, 707 So.2d 747 (Fla. 4th DCA 1997), a complaint which fails to state a cause of action cannot form the basis of a judgment against the defendant. See GAC Corp. v. Beach, 308 So.2d 550 (Fla. 2d’DCA 1975). The court did not err in dismissing the complaint against Keenan for failure to state a cause of action, even though it had previously granted a motion for default as to Keenan.

Affirmed.

WARNER, LEVINE, JJ„ and McCANN, JAMES W, Associate Judge, concur.

      . Although appellant had brought suit against multiple defendants, Keenan was the only de-fendanl who had been defaulted in the suit.

      . Keenan had filed the motion to dismiss before appellant moved for the default as a sanction for discovery violations, which the court granted. Keenan had filed a motion for rehearing or to vacate the default. That motion was still pending when the court granted the motion to dismiss for failure to state a cause of action.