author: ROTHENBERG, J.

text:
    Jeff SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2882
    District Court of Appeal of Florida, Third District.
    Opinion filed May 03, 2017.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hidano, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   ROTHENBERG, J.

Jeff Scott, the defendant, appeals from a final judgment of conviction and sentence for three counts of sexual activity with a child by a person in familial or custodial authority, a first-degree felony. § 794.011(8)(b), Fla. Stat. (2014). The defendant argues on appeal that three alleged errors warrant reversal. Specifically, the defendant contends that: (1) the prejudice caused by the victim’s testimony that she tried to commit suicide after the abuse outweighed its probative value; (2) an expert witness’s recommendation that the victim should receive sexual abuse therapy improperly bolstered the victim’s credibility; and (3) the prosecution improperly appealed to the jury’s sympathy for the victim during closing arguments. For the following reasons, we affirm.

I. Standard of Review

If the defendant had properly objected to these claimed errors at trial, we would be reviewing the admission of the victim’s testimony, the expert’s testimony, and the State’s closing arguments for an abuse of discretion. See Cardona v. State, 185 So.3d 514, 520 (Fla. 2016); O’Connell v. State, 480 So.2d 1284, 1286 (Fla. 1985). The defendant, however, concedes that these alleged errors were not properly preserved for appellate review. The defendant must, therefore, establish fundamental error to obtain a reversal.

“Fundamental error is defined as the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” McDonald v. State, 743 So.2d 501, 505 (Fla. 1999) (internal quotation omitted); see also J.B. v. State, 705 So.2d 1376, 1378 (Fla. 1998) (“An error is fundamental when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.”); Hopkins v. State, 632 So.2d 1372, 1374 (Fla. 1994) (stating that “the fundamental error doctrine should be used very guardedly”) (internal quotation marks omitted); Smith v. State, 521 So.2d 106, 108 (Fla. 1988) (“The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.”). No fundamental error has been demonstrated here,

II. The first alleged error: evidence of C.S.’s suicide attempt

During the State’s case-in-chief, C.S. briefly testified that, as a result of the defendant’s abuse, she tried to commit suicide. The defendant argues on appeal that the introduction of this testimony was improper because its probative value was outweighed by the risk of unfair prejudice. Section 90.402, Florida Statutes (2014), provides that “[a]ll relevant evidence is admissible, except as provided by law.” Section 90.403, Florida Statutes (2014), however, states that “[rjelevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

Whether C.S. was sexually abused was the sole, and thus, a material issue in this case. The case law has consistently held that the behavioral changes of a victim following the alleged sexual abuse is probative of whether the sexual abuse occurred. See Petruschke v. State, 125 So.3d 274, 281 (Fla. 4th DCA 2013) (finding that testimony from the victim’s parents that the victim “wet his bed more often, woke up crying with terror, and began counseling” after the alleged abuse was relevant and admissible to prove that the abuse actually occurred”); Elysee v. State, 920 So.2d 1205, 1208 (Fla. 4th DCA 2006) (holding that the mother’s testimony regarding the victim’s “morose behavior” in the days following the alleged sexual abuse was relevant and admissible). As the Fourth District Court of Appeal noted in Elysee, “[i]f the victim had engaged in conduct inconsistent with the charges, for example, attending a party and enjoying herself, immediately after she left the scene, we have no doubt that the appellant would consider that evidence to be relevant.” Elysee, 920 So.2d at 1208.

Based on the facts in the instant ease, we find that the admission of this relevant evidence, which did not become a feature of the trial, did not constitute an abuse of discretion under the balancing test of section 90.403, and certainly did not rise to the level of fundamental error. Under a fundamental error analysis, the defendant has the very high burden of showing that the alleged error reaches down into the foundation of the case, J.B., 705 So.2d at 1378, such “that a verdict of guilty could not have been obtained without the assistance of the alleged error.” McDonald, 743 So.2d at 505 (quoting Urbin v. State, 714 So.2d 411, 418 n.8 (Fla. 1998)). The defendant has failed to satisfy that burden in this ease.

III. The second alleged error: Treto’s therapy recommendation

Annette Treto (“Treto”), a counsel- or employed by the Child Protection Team, whose job description includes interviewing individuals who might have suffered sexual abuse, testified that after she interviewed C.S., she recommended that C.S. “go to the Kristi House for therapeutic services for help—help with her victimization and for DCF to look into the safety of the other children in the home, their concern for the mother’s ability to protect the other children.” Although the defendant concedes that Treto did not directly testify as to C.S.’s credibility or that she believed C.S. was telling the truth, the defendant nevertheless contends that Tre-to’s testimony left the jury with the unmistakable impression that she believed that C.S. was telling the truth. Ramayo v. State, 132 So.3d 1224, 1226 (Fla. 3d DCA 2014) (stating that it is improper for an expert to vouch for the truthfulness or credibility of the victim); Geissler v. State, 90 So.3d 941, 947 (Fla. 2d DCA 2012) (“Even if the expert does not comment directly on the child victim’s credibility, expert testimony is improper if the juxtaposition of the questions propounded to the expert gives the jury the clear impression that the expert believed that the child victim was telling the truth.”) (emphasis added).

The State contends, and we agree, that this statement did not leave the jury with the clear impression that Treto believed that C.S. was telling the truth. The facts in this case substantially differ from the facts in Ramayo and Geissler, where the expert witnesses expressly stated that they believed that the victim had been abused based on nothing more than the victim’s own statements. Ramayo, 132 So.3d at 1226 (finding error where the expert witness expressly stated that he believed that the victim had been abused and where he based his expert opinion on the victim’s statements); Geissler, 90 So.3d at 947 (finding that the expert witness improperly testified that she believed that the victim was abused based on the history of sexual abuse reported by the child). In contrast, Treto did not testify that she believed C.S. had been sexually abused, and defense counsel clarified in the cross-examination of Treto that Treto had not spoken to anyone other than C.S., she did not attempt to verify any of the information provided by C.S., and the verification of C.S.’s allegations was not her job, but the job of DCF and law enforcement. Accordingly, the defendant has not demonstrated error, let alone fundamental error, in the admission of Treto’s recommendation that C.S. receive therapy.

IY. The third alleged error: appealing to the jury’s sympathy for C.S.

At the start of its rebuttal closing argument, the prosecutor made the following comment: “Members of the jury, today is the day that you all get to do justice. Each and every one of you gets to do justice today for C.S.” Additionally, at the end of the State’s rebuttal argument, the prosecutor made the following argument:

And today you get to do justice for her. You get to be her voice. You get to be the voice that she couldn’t have, that she couldn’t tell her mom, that she couldn’t tell a teacher. You get to be her voice. You get to say you don’t do whatever you want. You don’t take whatever you don’t—whatever you want. You don’t take the innocence of this child because you want to. You are her voice today, and you get to say you are guilty of all three counts because you violated this child repeatedly and she is still suffering. You get to be her voice.

These arguments have been uniformly condemned. See Cardona, 185 So.3d at 522 (“The argument that the case is about ‘justice’ for the victim or the victim’s family has been uniformly condemned.”). There is thus no excuse for the continued use of such arguments by lawyers in this state. Although we do not find that these unob-jected-to arguments constitute fundamental error, we caution prosecutors that these arguments must cease and remind opposing counsel and trial courts to be more vigilant in objecting to and precluding such arguments in the future. See Capron v. State, 948 So.2d 954, 956-57 (Fla. 5th DCA 2007) (finding that fundamental error in closing argument only “occurs when the prejudicial conduct, in its collective import, is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury”); see also Chandler v. State, 702 So.2d 186, 191 n.5 (Fla. 1997) (“The prosecutor’s comments ... about Chandler and his counsel were thoughtless and petty, e.g., counsel engaged in ‘cowardly5 and ‘despicable’ conduct and Chandler was ‘malevolent ... a brutal rapist and conscienceless murderer,’ but not so prejudicial as to vitiate the entire trial.”) (second omission in original).

V. Ineffective assistance of trial counsel

The defendant argues, in the alternative, that his trial counsel’s failure to properly object to the above alleged errors constitutes ineffective assistance of counsel. The general rule is that a claim for ineffective assistance of counsel is not cognizable on direct appeal unless “the ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.” Cephus v. State, 52 So.3d 46, 48 (Fla. 3d DCA 2010) (quoting Smith v. State, 998 So.2d 516, 522 (Fla. 2008)); Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002) (“On rare occasions, the appellate courts make an exception to this [general] rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.”).

As we have already discussed, the testimony regarding C.S.’s suicide attempt and Treto’s therapy recommendation were not erroneously admitted at trial. Therefore, there can be no ineffective assistance of counsel by failing to object to the first two issues raised on appeal. As to the third issue, although it was improper for the prosecutor to appeal to the jury’s sympathy for the victim, the claim of ineffective assistance of counsel is not cognizable on direct appeal because we cannot say, based on the face, of the record, that defense counsel did not have a tactical reason for failing to object to these statements and that, but for the improper argument, there is a reasonable probability that the outcome would have been different. See Eure v. State, 764 So.2d 798, 801 (Fla. 2d DCA 2000); see also Moore v. State, 820 So.2d 199, 208 (Fla. 2002) (concluding that the prosecutor’s two comments characterizing the defendant as “the devil” were improper, but too isolated to show ineffective, assistance of counsel).

VI. Conclusion

In summary, we find that the defendant has failed to demonstrate that the introduction of C.S.’s testimony regarding her suicide attempt, Treto’s testimony regarding her therapy recommendation for C.S., and the State’s improper comments during closing arguments constitute fundamental error, either cumulatively or individually. We also -find that the defendant’s claim of ineffective assistance of counsel is not cognizable on direct appeal. Additionally, after full and fair consideration, we find that the defendant’s remaining arguments .are mer-itless, and we therefore decline to specifically address them here.

Affirmed.

      . We acknowledge that under different circumstances not present in this case, the trial court's admission of testimony regarding a victim’s suicide attempt has been held to be an abuse of discretion. Johnson v. State, 40 So.3d 883, 886 (Fla. 4th DCA 2010) (finding that the objected-to testimony about the victim’s suicide attempt "cuts both ways,” and therefore, the statement’s probative value was "minimal at best”); Aho v. State, 393 So.2d 30, 31 (Fla. 2d DCA 1981) (finding that the objected-to testimony of an investigating officer concerning hearsay statements made by the victim about her suicide attempt were improper and were not very probative because they were relayed to the officer ten days after the incident).


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    Anthony ARMAO, Appellant, v. Robert MCKENNEY, as successor trustee of the Russell R. Turnbull Trust, Appellee.
    No. 4D16-49
    District Court of Appeal of Florida, Fourth District.
    May 3, 2017

      Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale, and Stephen J. Simmons of Mombach, Boyle, Hardin & Simmons, P.A., Fort Lauderdale, for appellant.
    Kenneth E. Keechl of Kenneth E. Keechl, P.A., Wilton Manors, for appellee.
   Levine, J.

This case presents several issues for. our consideration. First, whether the evidence supported an oral cohabitation agreement and, if so, whether the evidence supported the damage award. Second, whether the appellant was entitled to partition credits for expenses paid using funds belonging to both parties. Third, whether alleged inconsistencies among the trial court’s pronouncements requires reversal where the trial court confirmed, after a post-judgment hearing, that the final judgment reflected its intent.

We find that the evidence supported an oral cohabitation agreement, but that the damage award should have been for a lesser amount, as conceded by the appel-lee. We further find that the trial court did not abuse its discretion in declining to award partition credits. Finally, we find that any inconsistencies in the trial court’s pronouncements were resolved when the court re-affirmed the final judgment.

In November 2013, Anthony Armao filed a complaint against Russell Turnbull for partition of real property they owned as joint tenants with rights of survivorship. In addition to half of the sale proceeds, Armao sought credits for expenses paid on the property. Turnbull denied that Armao was entitled to any credits and counterclaimed for breach of- an oral cohabitation and support agreement.

In a joint pre-trial stipulation, the parties agreed, inter alia, that their social security checks were deposited into a joint checking account. Numerous expenses related to the home were paid from their joint checking account. They sold property together, made loans together, and filed a joint suit to recover on a loan. Checks payable in both their names were deposited into Armao’s trust account, including proceeds from the sale of joint property.

At trial, Turnbull testified that within a couple of years of meeting Armao, they entered into an oral cohabitation agreement. They discussed how they would work together, live together, provide for each other, and take care of each other. They agreed to move in together, to be a couple, and take care of each other financially and emotionally, “just like a married couple.” They agreed that all their income, investments, assets, and inheritances would be combined and used to pay their current and future expenses.

Additionally, Turnbull presented evidence, and the trial court determined, that the parties’ held themselves out as a couple during their forty-six year relationship. They had a blessing ceremony and anniversary parties. They lived together in Rhode Island and then retired together in Florida. They lived in several different homes until they purchased the home that is the subject of the partition action. They created identical trusts and wills leaving everything to each other.

Armao made the decisions in their relationship, including their financial decisions, and consequently handled all the money. The parties-worked together at Armao’s family’s business. Over-the years, Turnbull earned approximately $500,000. He turned all his paychecks over to Armao.

Prior to entering into a relationship with Armao, Turnbull owned a house.' When that .property was sold, Turnbull turned the proceeds over to Armao. Before purchasing the home at issue in this case, the parties owned a condominium together. When they sold the condominium for $289,000, .the proceeds .from the sale went into Armao’s trust account. The parties purchased a yacht together and, when they sold the yacht for a net profit of $135,000, the sale proceeds went into Armao’s account. The parties also made a number of joint loans together. When Turnbull’s mother died, Turnbull gave his inheritance money—approximately $460,000—to Ar-mao.

The balances in five Wells Fargo accounts in Armao’s name totaled $1,048,448. Turnbull sought half of this amount— $509,224—as representing half of the value of the parties’ combined assets.

After trial,: the trial judge’s judicial assistant sent to the parties an email advising of the court’s ruling. The email concluded by requesting that Turnbull’s counsel prepare the judgment for the judge’s signature. The email stated that Turnbull was to receive ' a total of $750,000 for both the partition and counterclaim. Thereafter, ‘ the trial court entered a final judgment, in which the trial court granted partition of the property and ordered that the sale proceeds be divided equally between the parties without credits to either party. The trial court found that the parties’ funds were “commingled,” and that mortgage payments and living expenses were made with commingled funds. As to the counterclaim, the court found additionally that “50% of the net fair market value of all assets of Plaintiff and Defendant should be awarded to the Defendant” and awarded Turn-bull $750,000 to represent that “50%” interest in the joint assets.

Armao claimed the final judgment was contrary to the court’s intent expressed in the judicial assistant’s email to award a total of $750,000 for both the partition action and counterclaim. During a post-judgment status conference, the trial court stated' that it would review the judgment again and then rule on the motion. Afterward, the trial court confirmed that the final judgment, and not the email, reflected its intent and declined to amend the final judgment. Armao appeals.

We begin by noting that Florida law recognizes that unmarried cohabitants may agree to enter into an enforceable contract that establishes rights and responsibilities towards each other “as long as it is clear there [is] valid, lawful consideration separate and apart from any express or implied agreement regarding sexual relations.” Poe v. Levy’s Estate, 411 So.2d 253, 256 (Fla. 4th DCA 1982); see also Dietrich v. Winters, 798 So.2d 864, 866 (Fla. 4th DCA 2001). “The right to contract is one of the most sacrosanct rights guaranteed by our fundamental law.” Chiles v. United Faculty of Fla., 615 So.2d 671, 673 (Fla. 1993). See also Art. I, § 10, Fla. Const. (“No ... law impairing the obligation of contracts shall be passed.”); James W. Ely, Jr., The Contract Clause: A Constitutional History 252-53 (2016) (“[T]he Florida Supreme Court has signaled its willingness to protect contracts more fully than the federal courts.”). Additionally, nothing in the statute of frauds, section 725.01, Florida Statutes, requires that such an agreement be in writing. Indeed, among the other states that also recognize contracts between unmarried cohabitants, only three—Minnesota, New Jersey, and Texas—have held that such agreements must be in -writing, and all three of those jurisdictions have enacted statutes specifically containing this requirement. See Minn. Stat. Ann. § 513.075; N.J. Stat. Ann. § 25:1-5; Tex. Bus. & Com. Code Ann. § 26.01(a), (b)(3).

Having established that Florida recognizes oral cohabitation agreements between unmarried parties, we next consider whether the evidence was sufficient to show an oral agreement. The existence of an oral contract is an issue for the finder of fact. Welborn v. Kemp, 141 Fla. 89, 192 So. 469, 470 (1939). An appellate court reviews a trial court’s factual findings for competent substantial evidence. Griffin Indus., LLC v. Dixie Southland Corp., 162 So.3d 1062, 1066 (Fla. 4th DCA 2015); see also Klosters Rederi A/S v. Jamaica Sun Tours, Ltd., 270 So.2d 466, 467 (Fla. 3d DCA 1972). “An oral contract ... is subject to the basic requirements of contract law such as offer, acceptance, consideration and sufficient specification of essential terms.” St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004).

We find that competent substantial evidence supports the trial court’s finding that the parties entered into an oral cohabitation agreement. Turnbull’s testimony was sufficiently specific as to the essential terms of an enforceable contract. Turnbull specifically testified that the parties agreed all their income, investments, assets, and inheritances would be combined and used to pay their current and future expenses.

Additionally, the parties’ course of conduct, as established through other evidence, supports the existence of a sufficiently definite agreement. The evidence showed that the parties were in a relationship for over forty years, during which time they commingled their funds. Turn-bull gave Armao his paychecks, social security payments, inheritances, and proceeds from the sales of property. Armao controlled the parties’ finances and paid the mortgage and living expenses with commingled funds. The parties made joint loans together. They created identical wills and trusts, leaving everything to each other. Thus, all of this evidence, coupled with Turnbull’s testimony, constitutes competent substantial evidence sufficient for the trial court to find an oral cohabitation agreement.

The next issue is whether the evidence supports the $750,000 award. A damages award must be supported by competent substantial evidence. Vorsteg v. Thomas, 853 So.2d 1102, 1103 (Fla. 4th DCA 2003). Armao argues, and Turnbull concedes, that the evidence did not support the $750,000 award. We agree with Turn-bull that the evidence supported an award of $509,224, representing half of the value of the parties’ combined assets. As such, we remand for the trial court to amend the final judgment to reflect an award in this amount.

We turn now to the issue of partition credits. “Because partition is a subject of equitable jurisdiction, the trial court will be affirmed unless it is shown that the trial court abused' its discretion in determining whether credits or set-offs are appropriate.” Green v. Green, 16 So.3d 298, 301 (Fla. 1st DCA 2009). We find no abuse of discretion in declining to award Armao any partition credits. Competent substantial evidence supports the trial court’s finding that Armao paid the mortgage and living expenses with commingled funds from both parties.

Finally, we reject Armao’s argument that alleged inconsistencies among the trial court’s pronouncements warrants reversal. After a post-judgment status conference, the trial court confirmed the final judgment reflected its true intent, thus resolving any alleged inconsistencies.

In sum, we affirm the trial court’s finding of the existence of an oral contract, but reverse the $750,000 award and remand for the trial court to amend the final judgment to reflect a $509,224 award. Additionally, we affirm the award of no partition credits.

Affirmed in part, reversed in part, and remanded.

Warner and Taylor, JJ., concur.

      , North Dakota has stated that such agreements should be in writing, but accepts evidence other than a written agreement as evidence of written intent. Kohler v. Flynn, 493 N.W.2d 647, 649 (N.D. 1992); McKechnie v. Berg, 667 N.W.2d 628, 632 (N.D. 2003).


author: Damoorgian, J.

text:
    SUMMITBRIDGE CREDIT INVESTMENTS III, LLC, a Delaware limited liability company, Appellant, v. CARLYLE BEACH, LLC, a Florida limited liability company, Teresa Cardenas, an individual, and Metropolitan Trucking, Inc., a Florida corporation, Appellees.
    No. 4D15-4884
    District Court of Appeal of Florida, Fourth District.
    May 3, 2017

      Jennifer Olmedo-Rodriguez, Mark S. Auerbacher, S. Carey Villeneuve and Blake J. Delaney of Buchanan Ingersoll & Rooney PC, Miami and Tampa, for appellant.
    Ralf R. Rodriguez and Matthew D. Gutierrez of Foley & Lardner LLP, Miami, and Scott Alan Orth of Law Offices of Scott Alan Orth, P.A., Hollywood, for ap-pellees.
   Damoorgian, J.

This appeal concerns a commercial foreclosure action which was initiated by Appellant, Summitbridge Credit Investments III, LLC (“Lender”), against Appellee, Carlyle Beach, LLC (“Borrower”), for failure to comply with financial covenants and timely pay property taxes. Following a bench trial, the court entered final judgment in favor of Lender based on its findings that Borrower failed to remit certain required financial disclosures and did not timely pay the property taxes. Because the breaches were merely technical, however, the court denied Lender any relief on the grounds that foreclosure would be a harsh and inequitable remedy.

On appeal, Lender challenges the court’s findings and argues that: (1) the failure to remit financial disclosures was a material breach justifying foreclosure; (2) Borrower’s belated payment of the property taxes did not preclude foreclosure in this case; (3) the court erred in denying it essential discovery; and (4) the court misapplied equitable concepts in denying it relief on its non-equitable claims. Borrower cross-appeals and argues that: (1) Lender had no standing to initiate the foreclosure action; and (2) the court erred in finding that Borrower committed a technical breach as compliance with the financial covenants was not required at the time of the alleged breach. We affirm the trial court’s rulings challenged in Lender’s issues 2, 3, and 4, and Borrower’s cross-appeal issue 1, without further comment. For reasons discussed below, however, we agree with Borrower on its cross-appeal issue 2 and reverse and remand for entry of final judgment in its favor.

By way of background, Lender purchased Borrower’s commercial loan from the original lender in 2012. Prior to the purchase, there were a series of loan modifications between the original lender and Borrower. Relevant to this appeal is the final loan modification evidenced by a Loan Agreement dated May 27, 2008 (“Loan Agreement”). Section 7 of the Loan Agreement provided, inter alia, that Borrower was required to comply with a number of covenants “so long as credit is available under this Agreement and until the Bank is repaid in full.” Included amongst those different covenants was the requirement that Borrower provide periodic financial statements and related financial documents for both guarantors.

Shortly after purchasing the loan, Lender requested the financial reporting documentation as provided for in Section 7 of the Loan Agreement. Borrower did not comply, prompting Lender to file a foreclosure and breach of contract action against Borrower. At trial, Lender’s position was that Borrower was required to comply with the financial covenants listed in Section 7 of the Loan Agreement up and until the time the loan was paid in full, and that failure to comply with the financial covenants constituted a material breach justifying foreclosure.

Borrower’s position, on the other hand, was that it could not be in breach for failure to remit certain financial documents under Section 7 of the Loan Agreement because the requirements in that section only applied “so long as credit is available.” In support of its argument, Borrower presented the testimony of guarantor Metropolitan Trucking’s owner and corporate representative which established the following. According to the representative, the entire purpose of the future advance mortgage was for Borrower to be able to draw additional funds in the future based on the needs of the company. The original lender accordingly provided Borrower with a commitment letter in 2008 which included a credit-line feature. It was Borrower’s understanding that after receiving the funds from the Loan Agreement, it also had the right to draw money on the credit-line. In May 2009, however, the original lender informed Borrower that the credit-line was no longer available. At no point after 2009 did the original lender ever request any financial documents from Borrower.

Attempting to reconcile the language in the Loan Agreement providing that Borrower was only required to comply with financial reporting “so long as credit is available,” Lender maintained that “credit” essentially meant “loan.” Notably, per the testimony of its own witnesses, at the time Lender requested the financial documents, no credit was available to Borrower under the Loan Agreement. In fact, as of 2009, no loan advances were available to Borrower under the Loan Agreement.

Following the bench trial, the court made the following relevant findings in connection with the issue before us. With regard to the applicability of Section 7 of the Loan Agreement, the court found that the clear and unambiguous language of that section, particularly the sentence providing that “Borrower agrees, so long as credit is available under this Agreement and until the Bank is repaid in full,” required the disclosure of financial information up and until the bank was repaid in full. In other words, the court implicitly found that the “so long as credit is available under this Agreement” and “until the Bank is repaid in full” conditions were one and the same. Therefore, because Borrower conceded at trial that it never provided Lender with the financial disclosures required under Section 7, the court found that Borrower defaulted on the Loan Agreement. However, the court also found “that a default on the Mortgage by [Borrower] was merely technical and not as a result of the [Borrower] deliberately failing to pay the monthly principal,” and that “[Lender] failed to prove that [Borrower’s] failure to comply with the terms of the Loan Agreement placed the security in jeopardy.” Based on the above findings, the trial court entered final judgment in favor of Lender but denied it any relief.

“ ‘The interpretation or construction of a contract that is clear and unambiguous is a matter of law that is reviewed de novo.’ Whether an ambiguity exists in a contract also is a question of law.” Smith v. Shelton, 970 So.2d 450, 451 (Fla. 4th DCA 2007) (quoting Lipton v. First Union Nat’l Bank, 944 So.2d 1256, 1258 (Fla. 4th DCA 2007)). It is well settled that “[i]n the absence of an ambiguity on the face of a contract, ... the actual language used in the contract is the best evidence of the intent of the parties, and the plain meaning of that language controls.” Acceleration Nat’l Serv. Corp. v. Brickell Fin, Servs. Motor Club, Inc., 541 So.2d 738, 739 (Fla. 3d DCA 1989); see also Boat Town U.S.A., Inc. v. Mercury Marine Div. of Brunswick Corp., 364 So.2d 15, 17 (Fla. 4th DCA 1978) (“It is the law in Florida that the language used in a contract is the best evidence of the intent and meaning of the parties.”).

Furthermore, “[i]n construing a contract, the legal effect of its provisions should be determined from the words of the entire contract,” and that construction must give “effect to all of the provisions of the contract.” Sugar Cane Growers Co-op. of Fla., Inc. v. Pinnock, 735 So.2d 530, 535 (Fla. 4th DCA 1999) (holding that the trial court erred in construing a contract because the court’s construction ignored and left out- several words and phrases). This includes giving effect to conjunctions used in phrases. See McDonald v. Browne-McDonald, 125 So.3d 833, 835 (Fla. 4th DCA 2013) (holding that when the word “and” is placed between two conditions in a contract, it “shows that the two conditions are linked, and both must occur”); Buie v. Bluebird Landing Owner’s Ass’n, 172 So.3d 519, 521 (Fla. 1st DCA 2015) (disagreeing with the trial court’s intérpretation of a contract because the interpretation failed to give due effect to the word “and” which “is conjunctive and means that both conditions apply”).

In the present case, Section 7 of the Loan Agreement clearly and unambiguously provides that Borrower agrees to comply with the financial covenants listed in that section: “so long as credit is available under this Agreement and until the Bank is repaid in full.” The plain and ordinary meaning of this provision, including the use of the word “and,” makes clear that compliance with the financial covenants is required if two conditions are met: (1) there is credit available under the Loan Agreement; and (2) the loan has not yet been paid in full. See McDonald, 125 So.3d at 835; Buie, 172 So.3d at 521. It is undisputed that there was no credit available under the Loan Agreement at the time Lender requested the financial disclosures from Borrower.

In finding that the above provision required Borrower to comply with Section 7 s financial covenants until the loan was paid off, the trial court essentially equated the word “credit” as meaning the same thing as “debt.” This interpretation ignores not only the plain language meaning of the words “credit” and “debt” but also ignores the first condition of that provision. See Debt, Black’s Law Dictionary (10th ed. 2014) (defining the word “debt” as meaning “a specific sum of money due by agreement or otherwise” (emphasis added)); Credit, Black’s Law Dictionary (10th ed. 2014) (defining the word “credit” as meaning “[o]ne’s ability to borrow money” and '“[tjhe- availability of funds either from a financial institution o'r under a letter of credit” (emphases- added)); see also Pinnock, 735 So.2d at 535. It is -worth noting that even the Loaii Agreement does not treat the words “credit” and “debt”- the same. For example, Section 9 Of the Loan Agreement, which addresses defaults and remedies, -provides that in the event of default, the bank may “stop making any additional credit, available to the Borrower, and require the Borrower to repay its entire debt immediately.” .

We therefore hold that the phrase “credit is available” means' the availability of an ongoing line of credit. Accordingly, the trial court erred in interpreting Section 7 as requiring the disclosure of financial information up and until ¡the time the entire debt is repaid in full regardless of the availability of credit, and in finding that Borrower committed a technical breach of the Loan Agreement. We reverse the final judgment and remand for entry of a final judgment in favor of Borrower.

Affirmed in part, and reversed in part.

Gerber and Forst, JJ., concur.

      . Appellees Teresa Cardenas and Metropolitan Trucking, Inc. guaranteed the subject loan.


author: PER CURIAM.

text:
    W. W., Father of V.H. and V.H.J., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee
    CASE NO. 1D16-4707
    District Court of Appeal of Florida, First District.
    Opinion filed May 5, 2017

      Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Karla Perkins, Appellate Counsel, Department of Children and Families, Miami, for Appellee.
    Kelly A. Swartz, Appellate Counsel, Guardian ad Litem Program, Sanford.
   PER CURIAM.

W.W., the natural father of V.H. and Y.H.J., appeals a final order terminating his parental rights over the children. Because we conclude termination was not the least restrictive means of protecting the children from harm, we reverse.

The twin children were born in Mississippi in 2010, and moved to Florida with their mother shortly.thereafter. The twins and their two half-siblings lived in Florida in their mother’s care until 2015, except for a brief period in 2012 when they were sheltered due to allegations of neglect. In May 2011, W.W. was sentenced to fourteen years’ imprisonment in Mississippi for sale of cocaine. W.W. had no contact with the twins prior to his incarceration. His paternity was not established until 2012. The only time W.W. met the twins in person was in 2014, when the mother brought the twins to Mississippi while W.W. was on a furlough pass from prison.

In April 2015, the Department of Children and Families (DCF) petitioned for emergency shelter placement for the mother’s four children, due to reports of drug use by the mother, neglect, and unsafe conditions in the home. After a hear-, ing, the twins were sheltered and placed in foster care. Shortly thereafter, the twins were adjudicated dependent. A case plan with the goal of reunification was approved by the court. The case plan included numerous tasks for the mother as the custodial parent. It also required W.W. to have phone visitation with the twins twice a week and to make the case manager aware of any problems reaching the twins at the foster parent’s home. Over the next twelve months, the court conducted several judicial review hearings, and several case plan updates were submitted. W.W. appeared by telephone' at every hearing. The evidence is undisputed that W.W. did not make the required phone calls to comply with the case plan. He testified it was because he was only able to make collect calls in prison.

Twelve months after the children were adjudicated dependent, DCF sought to terminate the parental rights of-the mother and W.W. -over- the twins. The petition alleged three statutory grounds for terminating W.W.’s rights: (1) abandonment under section 39.806(l)(b), Florida Statutes (2016); (2) failure to comply with the case plan under section 39.806(l)(e)l,, Florida Statutes (2016); and (3) harm from a continuing relationship with the incarcerated parent under section 39.806(l)(d)3., Florida Statutes (20Í.6). W.W. was served with the petition on May 11, 2016. He entered a denial1 to the petition.

.But days .after the TPR petition was filed, the mother died in a car accident. However, the proceedings as to W.W. moved forward, and the TPR trial was scheduled for June 22, 2016. On June 17, 2016, DCF filed an amended petition, removing failure to comply with the case plan as a basis for termination and adding a new statutory ground: that WW. would be incarcerated for a significant portion of the twins’ minority, under section 39.806(l)(d)l., Florida Statutes (2016). W.W. moved to continue the TPR trial for “a short period of several weeks,” - asserting that he had not yet been served with the amended petition and further alerting the court that the parole board in Mississippi was to establish a release date for him sometime in July 2016, and that he would know the precise release date by July 1, 2016. DCF also moved to continue the trial, because DCF had not yet served W.W. with the amended petition. Although the Guardian ad Litem did not object to the delay, the court declined to continue the trial except to the extent it would relate to the new ground alleged in the amended petition.

The trial proceeded on the grounds alleged in the initial petition, and after service of the amended petition, the trial continued on July 28, 2016. W.W. testified that he would be released on August 2, 2016, just five days after trial. An officer from the prison where W.W. was incarcerated confirmed that W.W. would be released on that date. W.W. testified that upon release he would live with his aunt, that there was living space in the home for the twins, and that he had arranged employment as a roofer. W.W. testified that he loved the twins and wanted to care for them.

W.W. acknowledged that he had not attempted to make collect phone calls to the twins and had not written to them. He further acknowledged that the twins knew little of him. W.W. stated that although he was given seventy-two-hour furlough passes on a quarterly basis, he was unable to use that time to visit the twins because he was not permitted to leave Mississippi. But he testified that he did call the twins during his furloughs.

Following the trial, the court ruled that DCF established all three statutory grounds alleged in the amended petition, that termination was in the twins’ manifest best interest, and that it was the least restrictive means of protecting the twins from harm. W.W. appeals this order.

Analysis

“Parents have a fundamental liberty interest, protected by both the Florida and federal constitutions, in determining the care and upbringing of their children.” Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 607 (Fla. 2004). However, like all fundamental rights, parental rights are not absolute. Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565 (Fla. 1991). “[P]a-rental rights may be superseded by the State’s compelling duty to protect children.” F.L., 880 So.2d at 608. When the State seeks to terminate a parent’s rights, it must satisfy three conditions: first, it must demonstrate a statutory basis for termination; second, it must prove that termination is in the child’s best interest; and third, it must demonstrate that termination of the parent’s fundamental rights over the child is the least restrictive means of protecting the child from harm. See J.P. v. Fla. Dep’t of Children & Families, 183 So.3d 1198, 1203-05 (Fla. 1st DCA 2016). DCF has the burden to prove these three requirements by clear and convincing evidence. A.H. v. Dep’t of Children & Families, 144 So.3d 662, 665 (Fla. 1st DCA 2014). In turn, the, appellate court reviews whether competent, substantial evidence supports the court’s finding of clear and convincing evidence to support each of the three conditions for termination. J.P., 183 So.3d at 1203. “A finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evi-dentiary support.” N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003).

W.W. challenges the court’s findings with respect to the first and third requirements; that is, W.W. argues the record lacks clear and convincing evidence to support the finding of a statutory basis for termination and the finding that termination is the least restrictive means of protecting the twins from harm. While we conclude there is competent, substantial evidence constituting clear and convincing evidence of a statutory basis for termination, we agree with W.W. that under the unique facts presented here, the evidence is insufficient to demonstrate that termination was the least restrictive means of protecting the twins.

The least restrictive means test “is not intended to preserve the parental bonds at the cost of a child’s future.” Dep’t of Children & Families v. B.B., 824 So.2d 1000, 1009 (Fla. 5th DCA 2002). And “[i]n spite of the name, ‘least restrictive means’ does not mean that no alternative to termination of parental rights is conceivable by a court.” J.P., 183 So.3d at 1204-05. However, “[t]he least restrictive means test in the context of termination of parental rights requires those measures short of termination be utilized if such measures will permit the safe reestablishment of the parent-child bond,” M.H. v. Dep’t of Children & Families, 866 So.2d 220, 223 (Fla. 1st DCA 2004). Where DCF fails to prove “that there are no measures short of termination that could be used to protect the child from harm, then termination will not pass constitutional muster.” J.B. v. Dep’t of Children & Families, 107 So.3d 1196, 1202 (Fla. 1st DCA 2013).

Here, the case plan offered to W.W. during the dependency period was extremely limited due to his incarceration. Instead, DCF’s efforts at reunification were primarily directed toward the mother as custodial parent. However, there is no evidence whatsoever that DCF made any further efforts to reestablish a bond between W.W. and the children. We recognize that where DCF offers a case plan to the parent “to address the issues which caused the child to become dependent,” courts will ordinarily find a sufficient good-faith effort to satisfy the least restrictive means test. J.P., 183 So.3d at 1205. Under the circumstances presented here, however, where the custodial parent died during the proceedings, the other parent was on the verge of release, and there was no evidence that reunification would pose any specific safety risk to the children, DCF failed to prove that no measures short of termination would have been appropriate.

Rather, termination was based almost exclusively on W.W.’s lack of a significant relationship with the twins and the twins’ need for permanency. The court concluded these permanency concerns urged immediate termination of W.W.’s rights, as the twins had been in foster care for a year. But no prospective parent was waiting in the wings to adopt the twins. There was no approved home study for any potential permanent placement at the time of trial. The foster parent did not wish to adopt, and a home study for the maternal grandmother was pending, but had previously been denied. Further, the court noted it “[did] not doubt that [W.W.] loves his children.”

Under these unique facts, termination of W.W.’s parental rights was not the least restrictive means of protecting the children. Accordingly, the order is REVERSED and the case REMANDED.

LEWIS, B.L. THOMAS, and ROWE, JJ., CONCUR.

      . For purposes of this opinion, the factual and procedural history addresses only the twins.

      . W.W, did not appeal the denial of the mo- . tion to continue. TPR proceedings require the t trial court to, balance the fundamental rights of the parent against the best interest of the child to receive permanency. Though it is incumbent upon the trial court to move these proceedings expeditiously to meet the goal of permanency, the court must be careful to balance the need for timeliness with the parties' due process rights.


text:
    John Thomas GOTRO, former Husband, Appellant, v. Catherine Suzanne GOTRO, former Wife, Appellee.
    CASE NO. 1D16-1863
    District Court of Appeal of Florida, First District.
    Opinion filed May 5, 2017

      Brian P. North of Kenny Leigh & Associates, Pensacola, for Appellant.
    Anderson E. Hatfield, Gainesville, for Appellee.
   PER CURIAM.

In this appeal from a final judgment of dissolution of marriage, the former husband raises four issues: (I) the trial court abused its discretion when it awarded $2,500 in permanent alimony to the former wife; (II) the trial court abused its discretion in creating equitable distribution; (III) the trial court abused its discretion when it ordered the former husband to pay all of the former wife’s attorney’s fees and costs; and (IV) the trial court abused its discretion when it ordered the former husband to maintain life insurance on the alimony award. Our reversal of the equitable distribution scheme necessitates reversal on Issues I and III as well. We also reverse Issue IV and remand for further proceedings consistent with this opinion.

The parties were married for approximately thirty-nine years and share four children, none of whom were dependent at the time of dissolution. It was undisputed that the former husband was the bread-winner and had a substantially larger earning potential than the former wife. The former husband had several bank accounts, most of which were properly considered to be marital assets by the trial court. Of particular significance were two BBVA Compass Bank accounts. The former wife submitted evidence that the combined balance of the two BBVA accounts was $8,345.00 at the time the petition for dissolution was filed in May 2015. However, at the final hearing, the former husband provided unrebutted testimony that the combined value of the two BBVA accounts had been significantly reduced to $2,432.00. He further testified that these two accounts had been used for his living expenses and to pay bills associated with the marital home. The former husband asked the trial court to use the balance of the accounts at the date of the final hearing as opposed to the date of filing. The trial court denied the request and used the balances of the accounts at the time of filing, initially dividing the $8,345 combined value of the two accounts equally between the parties. The trial court later redistributed the value assigned because the former wife was to forgo receipt of her cash-out share from the two BBVA accounts ($4,172.50) along with her cash-out from two other assets. This led to the trial court assigning an equalizer payment to the former wife in the amount of $8,612.99. The former husband argues the trial court abused its discretion by including the value of the depleted BBVA accounts, which resulted in a disparate equalizer payment being assigned in favor of the former wife.

In equitable distribution under section 61.075(7), Florida Statutes (2015), the trial court may select a valuation date of the marital asset that the court determines in its discretion to be “just and equitable under the circumstances.” Different assets may be valued as of different dates in the trial court’s discretion. § 61.075(7), Fla. Stat. (2015). However, “[a]s a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings.” Winder v. Winder, 152 So.3d 836, 838 (Fla. 1st DCA 2014) (quoting Roth v. Roth, 973 So.2d 580, 584 (Fla. 2d DCA 2008)). The exception is when a parties’ misconduct during the proceedings results in dissipation of the asset, which misconduct. may serve as a basis for assigning the asset to the spending spouse. Winder, 152 So.3d at 838. However, assignment’due to dissipation must be based on the trial court’s “specific finding of intentional misconduct based on evidence showing that the marital funds were used for one party’s ‘own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.’ ” Id. (quoting Walker v. Walker, 85 So.3d 553, 555 (Fla. 1st DCA 2012)).

The former wife lodged general allegations of misconduct, but they were not directly related to the funds in the two BBVA accounts. More importantly, the trial court made no findings of misconduct. The former husband’s undisputed testimony was that these two accounts were used for his living expenses and to pay bills associated with the home. The former husband was also paying the former wife temporary alimony and temporary attorney’s fees as well as a majority of the marital expenses during the pendency of the proceedings. There was no evidence of misconduct other than generalized allegations, and the undisputed testimony showed the money was diminished to pay. at least some marital expenses during the proceedings. We agree with the former husband that, absent a finding of misconduct, it was error to utilize the value of these two BBVA accounts before dissipation. We reverse the equitable distribution portion of the final order and remand for further proceedings. Because the error in equitablé distribution of the two BBVA accounts was integral to the calculation of the equalizer payment, that portion of the final order is also reversed and remanded.

The former husband also argues that the trial court erred in awarding the former wife $2,500 in permanent alimony. As to the trial .court’s decision to award permanent alimony, the parties’ thirty-nine year marriage was of such a duration that the former wife was entitled to an initial rebuttable presumption favoring permanent alimony. See § 61.08, Fla. Stat. (2015) (a long-term marriage entitled to the re-buttable presumption is defined, as a marriage having a duration of seventeen-years or longer). The trial court’s order determined that the former wife had a need for $2,500 per month in alimony and carefully considered all of the factors in. section 61.08(2)(a)-(i), Florida Statutes (2015). Factors weighing in favor of the former wife’s need were the parties’ high middle-class standard of living during the marriage and the former wife’s inability, due to age, health, and education, to support herself in a fashion consistent with her previous standard of living' After the divorce, the former wife would also' have to pay her living expenses arid secure health insurance as the former husband had paid the majority of expenses during the marriage. In determining the- former husband’s ability to pay, the trial court found his income was approximately 3.67 times greater than the former wife’s earned income. The trial court’s finding that the former husband had the ability to, pay permanent alimony was also supported- by the record. We find no error-.in the trial court’s decision to award permanent .alirno-ny to the former wife. See Broemer v, Broemer, 109 So.3d 284, 289 (Fla. 1st DCA 2013) (“An appellate court will not disturb an alimony award where competent substantial evidence supports the award and the trial court complies with the governing law.”). However, because we are reversing and remanding the equitable distribution portion of the final' order, the alimony award is also remanded for recalculation. See Watson v. Watson, 124 So.3d 340, 343 (Fla. 1st DCA 2013) (finding that the reversal and remand of the equitable distribution portion necessitated remand of the alimony award). We also remand the trial court’s award of attorney’s fees'in Issue III as the fee award is impacted by the reversal of the equitable distribution award as well. See Nolan v. Nolan, 188 So.3d 977, 978 (Fla. 1st DCA 2016) (reversal of equitable distribution scheme necessitated reversal and remand of alimony and attorney’s fees portions of the final judgment as well).

Finally, in Issue IV, the former husband argues that the trial court erred in ordering him to maintain a $100,000 life insurance policy to secure the alimony award. The trial court had the authority to require the former husband to maintain a life insurance policy with the former wife as beneficiary in order to secure the alimony payment. See § 61.08(3), Fla. Stat. (2015); Therriault v. Therriault, 102 So.3d 711, 713 (Fla. 1st DCA 2012). In Ther-riault, this Court held that, in so requiring, the trial court “must make specific eviden-tiary findings as to the availability and cost of insurance, the [former husband’s] ability to pay, and the special circumstances that warrant such security.” Id. (quoting Kotlarz v. Kotlarz, 21 So.3d 892, 893 (Fla. 1st DCA 2009)). Special circumstances that warrant this security include, among other things: a spouse left in “dire financial straits” after the obligor spouse’s death, a supported spouse with limited earning capacity, an obligor spouse in arrears on support obligations, and cases where the obligor spouse agreed on the record to secure an award with a life insurance policy. Therriault, 102 So.3d at 713-14. The amount of insurance must also be related to the extent of the obligation being secured. M. Although the life insurance policy was preexisting and there was testimony that it cost the former husband approximately $213 per month, the trial court failed to make any specific evidentia-ry findings as to the former husband’s ability to pay and the special circumstances that warranted such security. While there may be a basis in the record for such a finding, on remand, the trial court should include the required specific findings to require the security.

REVERSED and REMANDED.

ROBERTS, C.J., ROWE and WINOKUR, JJ., CONCUR.


text:
    STATE of Florida, Appellant, v. Lyndon Nathaniel HOLT, Appellee.
    Case No. 5D16-651
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 12, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Jeri Delgado, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

Based upon Appellee’s proper concession of error, we reverse the order suppressing evidence and remand for further proceedings. See State v. Green, 943 So.2d 1004, 1005 (Fla. 2d DCA 2006) (illuminating interior of vehicle using flashlight does not implicate Fourth Amendment; officer had probable cause to believe vehicle contained cocaine after illuminating inside of vehicle and seeing razor blade with white residue on center console).

REVERSED AND REMANDED.

TORPY and LAMBERT, JJ„ and JACOBUS, B.W., Senior Judge, concur.


text:
    STATE of Florida, Appellant, v. Joseph Richard VANCE, Appellee.
    Case No. 5D16-503
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 12, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Robert E. Wildridge and Jacqueline Rae Luker, Assistant Public Defenders, Dayto-na Beach, for Appellee.
   PER CURIAM.

We reverse the order dismissing the information and remand this cause for further proceedings. See Poillot v. State, 200 So.3d 743 (Fla. 2016) (holding that participation in Work Release Program is still confinement such that deviation from Work Release Program established prima facie case of escape under section 944.40, Florida Statutes (2014)); Early v. State, 678 So.2d 901 (Fla. 5th DCA 1996) (holding that defendant’s failure to return to Work Release Facility as ordered constituted escape under section 944.40, Florida Statutes (1995)). Appellee’s alternative argument that his confinement was “invalid” was not preserved for review by this court.

REVERSED AND REMANDED.

TORPY and LAMBERT, JJ., and ' JACOBUS, B.W., Senior Judge, concur.


text:
    Willie MCKINNON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-985
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 12, 2017
    Willie McKinnon, Malone, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice- of appeal from the August 26, 2015, order denying postconviction motion filed in Case No. 2010-CF-1913-B, in the Circuit Court in and for Osceola County, Florida. See Fla. R. App. P. .9.141(c)(6)(D).

PETITION GRANTED.'

PALMER, TORPY, and EVANDER, jj., concur1.


author: EVANDER, J.

text:
    Richard BARNES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-2798
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 12, 2017

      James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel A. Perrone, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

EVANDER, J.

Upon consideration of the State’s motion for rehearing, we deny the motion but withdraw our earlier opinion and substitute the following revised opinion in its place:

Richard Barnes was convicted, after a jury trial, of first-degree murder. On appeal, he contends that there was insufficient evidence of premeditation to support a first-degree murder conviction. In his supplemental brief, he argued that defense counsel’s failure to raise this issue below constituted ineffective assistance of counsel apparent from the face of the record. We agree. Accordingly, we reverse and remand this case to the trial court with instructions to enter a judgment of second-degree murder and to sentence Barnes accordingly. We conclude that the other issues raised on appeal by Barnes are without merit.

The evidence presented below showed that Barnes was an often-times homeless drug addict living in Orlando, Florida. He had previously been romantically involved with the victim. According to a statement Barnes gave to law enforcement, that romantic relationship ended approximately two months prior to the victim’s murder. The victim had unsuccessfully sought to help Barnes overcome his drug addiction issues, even after their romantic relationship ended. For example, she would safe-keep Barnes’ Electronic Balance and Transfer (“EBT”) card because Barnes had sold or traded the card in the past to obtain illegal drugs.

The victim owned an insurance agency office located in Sanford, Florida. She was murdered at her office around noon on January 6, 2014. Based on the testimony of two neighbors, Barnes was placed at the victim’s office prior to, and immediately after, the sound of four rapid gunshots. Both of the neighbors had previously seen Barnes outside the victim’s office doing odd jobs. One of the neighbors testified that she had previously witnessed Barnes and the victim interacting in a manner that led her to believe that they were involved in a relationship. A client found the victim’s body in the victim’s office within minutes after Barnes was seen quickly walking away from the scene.

The medical examiner’s testimony reflected that the victim had been shot four times. The officers who responded to the scene found some of the victim’s desk drawers pulled open and disheveled in a manner consistent with someone rummaging through them. Other desk drawers appeared untouched. The victim’s' purse was located in one of the “untouched” drawers. Barnes’ EBT card was found in the victim’s purse. There was no evidence that any property had been taken from the victim’s office.

In a statement Barnes gave to the police two days later, he claimed that he had never left Orlando on January 6. However, an Orlando pastor testified that on the evening of January 5, he had provided Barnes with forty dollars, in. part, because Barnes had stated that he needed to obtain a bus pass to travel to Sanford. Notably, the EBT card was scheduled to be “reloaded” on January 9.

At the conclusion of the State’s evidence, Barnes’ counsel unsuccessfully moved for a judgment of acquittal, arguing that there was a lack of evidence that Barnes had committed the homicide or that he possessed an intent to kill the victim. However, defense counsel failed to argue the sufficiency of the evidence (or lack thereof) regarding premeditation.

After the denial of his motion for judgment of acquittal, Barnes testified on his own behalf. He acknowledged that he had known the victim for approximately 'two and one-half years and that they had been involved in a romantic relationship until a few months prior to her death. Barnes candidly acknowledged his drug addiction problem and explained that the victim retained his EBT card because he had previously used the cash on the card to buy illegal drugs. When the card was reloaded on the ninth day of each month, Barnes and the victim would grocery shop together.

According to Barnes, he intended to travel to Sanford on January 9 to obtain his EBT card and go grocery shopping. He admitted receiving forty dollars from the Orlando pastor on the evening of January 5, but stated that he used the money to buy drugs instead of using it to travel to Sanford. Barnes denied being in Sanford on January 6, denied killing the victim, and denied being mad at the victim.

At the conclusion of the defense’s case, Barnes’ counsel renewed the motion for judgment of acquittal. Once again, there was no argument directed to the sufficiency of the State’s evidence on the element of premeditation. After the denial of the renewed motion for judgment of acquittal, defense counsel stipulated to the jury receiving the standard jury instructions on premeditated first-degree murder, second-degree murder, and manslaughter.

On appeal, Barnes argues, inter alia, that the State did not present legally sufficient evidence of premeditation to prove first-degree murder. In support thereof, Barnes observes that there was no evidence that he had previously made thread ening statements to the victim, nor was there any evidence of prior altercations between himself and the victim. Barnes further observes that in its closing argument, the State cited little, if any, evidence of premeditation. Specifically, in summarizing the State’s theory of the case, the prosecutor argued to the jury:

A reasonable inference would be that they had a conversation wherein he requested his EBT card and she told him—I believe he said that she’s very sharp with her words. However, she said, no, thank you. Right? And he got angry. He got so angry that he put four bullets in here [sic]. And after he did that, he freaked out. He freaked out. He put four bullets in a person he’d known for a few years.
So he may not have taken the bus but he got to Sanford because folks saw him there. Now, he got to that office with a .40 caliber firearm. All right? He got there with that gun. He took that between 45 minutes to an hour drive—or half an hour, an hour drive from Orlando to Sanford with the .40 caliber in his pocket, or however he was holding it. Walked in that door, walked up to [the victim]. Now, we know that he’d been doing crack—he’d been doing drugs, so what’s a reasonable inference? He’s all amped up. Where’s my card? Where’s my card? Where’s my card? I’m not giving you your card. Get out of here. Oh, oh, is that how it’s going to be? Pop, pop, pop, pop.

In its initial answer brief, the State correctly argued that Barnes had failed to challenge the sufficiency of the State’s evidence of premeditation below. In its supplemental answer brief, the State argued that the evidence was sufficient to establish premeditation, particularly where the evidence reflected that Barnes shot the victim four times.

“Premeditation” is the essential element that distinguishes first-degree murder from second-degree murder. Green v. State, 715 So.2d 940, 943 (Fla. 1998). As the Florida Supreme Court explained, premeditation “is not just the intent to kill; it is ‘a fully formed conscious purpose to kill. This purpose may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.’ ” Evans v. State, 177 So.3d 1219, 1240 (Fla. 2015) (quoting Bolin v. State, 117 So.3d 728, 738 (Fla. 2013)). Premeditation can be inferred from facts that include: the nature of the weapon used; the presence or absence of adequate provocation; previous difficulties between the parties; the manner in which the homicide was committed; and/or the nature and the manner of the wounds inflicted. Id. Where the evidence presented by the State fails to exclude a reasonable hypothesis that the homicide occurred other than by premeditated design, a verdict of first-degree murder cannot be sustained. Green, 715 So.2d at 944.

In the instant case, the State’s primary evidence that would support an inference that the murder was premeditated was the fact that the victim was shot four times. Multiple wounds to a victim’s vital organs are evidence that can support a finding of premeditation. See Jackson v. State, 180 So.3d 938, 956 (Fla. 2015) (“When a victim is deliberately stabbed with a knife several times in vital organs, as occurred here, the manner of death can provide circumstantial evidence of premeditation.”); Perry v. State, 801 So.2d 78, 85-86 (Fla. 2001) (“Although multiple stab wounds alone do not prove premeditation, the nature and location of these wounds do support the finding of premeditation. ... [T]he deliberate use of a knife to stab a victim multiple times in vital organs is evidence that can support a finding of premeditation.”).

However, the fact that a defendant inflicts more than one potentially fatal injury on a victim does not, in and of itself, establish premeditation. For example, in Kirkland v. State, 684 So.2d 732 (Fla. 1996), the evidence established that the victim suffered “a severe neck wound” that consisted of several slashes, causing her to bleed to death. Id. at 734-35. In addition to the neck wound, the victim suffered other injuries resulting from blunt trauma. Id. at 735. There was evidence that both a knife and a walking cane had been used in the attack. Id. In finding that the State’s evidence was insufficient to establish premeditation, the supreme court stated:

First and foremost, there was no suggestion that EirMand exhibited, mentioned, or even possessed an intent to kill the victim at any time prior to the actual homicide. Second, there were no witnesses to the events immediately preceding the homicide. Third, there was no evidence suggesting that Kirkland made special arrangements to obtain a murder weapon in advance of the homicide. Indeed, the victim’s mother testified that Kirkland owned a knife the entire time she was associated with him. Fourth, the State presented scant, if any, evidence to indicate that Kirkland committed the homicide according to a preconceived plan. Finally, while not controlling, we note that it is unrefuted that Kirkland had an IQ that measured in the sixties.

Id.

Similarly, in Green, the State’s evidence of premeditation was held to be insufficient notwithstanding evidence that the victim had been stabbed three times and had died from manual strangulation. 715 So.2d at 940. In so holding, the supreme court emphasized that “there was little, if any, evidence that Green committed the homicide according to a preconceived plan.” Id. at 944.

Here, the State presented little, if any, evidence that Barnes committed the murder according to a preconceived plan or that he had exhibited, mentioned, or even possessed an intent to kill the victim at any time prior to the actual homicide. Furthermore, there was no evidence that Barnes had previously threatened the victim or that he was angry with the victim prior to arriving at her office on the date of the homicide. Indeed, the State’s theory of the case, as reflected in the prosecutor’s closing argument, was that Barnes went to the victim’s office to retrieve his EBT card and that when the victim refused to give him the card, he got so angry that he shot her and then “freaked out.” The State further suggested that Barnes’ actions were influenced by the fact that he had been using crack cocaine and was “all amped up.”

In summary, the most reasonable inference arising from the State’s evidence was that in a moment of rage and anger, fueled by the use of crack cocaine, Barnes shot the victim four times in rapid succession immediately after she refused to give him his EBT card. Accordingly, we conclude that the State’s evidence1 was insufficient to prove premeditation.

We agree with' the State" that Barnes’ trial counsel failed to properly raise the premeditation issue below. As a result, the error was not preserved. 'Furthermore, we1 are precluded from reviewing the error under the fundamental error doctrine. There are only two' instances in which an unpreserved challenge to the sufficiency of the evidence can be reviewed: (1) the mandatory review by the Florida Supreme Court of the evidence by which a capital defendant was convicted and sentenced to death; and (2) where’ there is insufficient evidence that the1 defendant committed any crime. Monroe v. State, 191 So.3d 395, 404 (Fla. 2016). Neithei’ situation is applicable here."

However, we conclude that this case is one of the rare examples in which the ineffectiveness of trial counsel is cognizable on direct appeal. Ineffective assistance of counsel is found when counsel’s performance falls outside the range of reasonable professional assistance and when there is a reasonable probability that the results of the proceeding would have been different but for the inadequate performance. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As a general rule, claims of ineffective assistance of counsel may not be raised on direct appeal. Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002). However, “appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” Id.

Here, we cannot perceive any strategic or tactical reason for trial counsel’s failure to challenge the sufficiency of the State’s premeditation evidence. Barnes’ defense to the charge of first-degree murder was that he did not kill the victim and, indeed, was not even in Sanford on the day of the murder. That defense would have been equally applicable to a charge of second-degree murder. Furthermore, given our conclusion that the State’s evidence failed to establish premeditation, the prejudice to Barnes is obvious. The failure to seek acquittal on the greater offense caused Barnes to be sentenced to mandatory life imprisonment without the possibility of parole. See Monroe, 191 So.3d at 403-04 (holding that prejudice was obvious where counsel’s failure to seek acquittal on greater offenses caused defendant to be sentenced to mandatory life imprisonment without possibility of parole).

Finally, “it would be a waste of judicial resources to wait until [Barnes] seeks postconviction relief for ineffective assistance of counsel when the unreasonableness of the actions of trial counsel and the prejudice to [Barnes] are indisputable from the face of the record before us.” Id. at 404.

We direct the trial court to vacate Barnes’ first-degree murder conviction, enter a judgment for second-degree murder, and sentence Barnes accordingly. See § 924.34, Fla. Stat. (2014).

AFFIRMED, in part; REVERSED, in part; and REMANDED with directions.

BERGER and WALLIS, JJ., concur.

      . Barnes was not charged with felony murder.

      . This court ordered supplemental briefing on the issue of whether counsel's purported failure to challenge the sufficiency of the State’s evidence regarding premeditation constituted ineffective assistance of counsel apparent from the face of the record.

      . The victim was shot twice in the head, once in the chest, and once in the arm.

      . The State argues that Barnes’ possession of a firearm supports an inference of premeditation. However, there was no evidence that Barnes carried the weapon for the purpose of shooting the victim. Indeed, there was no evidence as to how and when Barnes came into possession of the murder weapon.

      . The State cites to several cases where the evidence was held to be sufficient to establish premeditation. However, in each of those cases, the State’s evidence of premeditation was stronger than the evidence in the instant case. See Griffin v. State, 474 So.2d 777, 780 (Fla. 1985) (during commission of armed robbery, defendant shot store clerk twice, without provocation, even though clerk had complied with defendant’s demands); Squires v. State, 450 So.2d 208, 212-13 (Fla. 1984) (after abducting victim from service station and robbing him of undetermined amount of money and cigarettes, defendant shot victim first with shotgun and then four times with revolver at extremely close range); Washington v. State, 432 So.2d 44, 47 (Fla. 1983) (while deputy was questioning driver during investigatory stop, defendant got out of back seat of car, walked around rear of car, and shot deputy four times); Waterman v. State, 121 Fla. 244, 163 So. 569, 569 (1935) (after:viewing altercation, between victim and housekeeper, defendant went into house, procured pistol, returned to scene of altercation and shot victim six times); Skanes v. State, 821 So.2d 1102, 1105 (Fla. 5th DCA 2002) (defendant was jealous of former girlfriend’s - new boyfriend, had made prior threats, entered former girlfriend’s apartment late at night and held new boyfriend at gunpoint for several minutes before shooting him four times); Hannah v. State, 751 So.2d 79, 81 (Fla. 2d DCA 1999) (defendant shot victim twice after "bursting” into victim’s hotel room,.in early morning hours with gun in hand and with intention to rob victim by use of intimidation); Griggs v. State, 753 So.2d 117, 120 (Fla. 4th DCA 1999) (evidence supported conclusion that during commission of armed robbery, defendant shot at victim five times during continual struggle that commenced .inside store and ended outside store); Alcott v. State, 728 So.2d 1173, 1175 (Fla. 4th DCA 1998) (during commission of armed robbery, defendant shot victim without provocation).

      . Section 924.34, Florida Statutes (2014), provides:
      When evidence sustains only conviction of lesser offense-
      When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.


text:
    Kavon Marquise GREEN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 1D17-0999
    District Court of Appeal of Florida, First District.
    Opinion filed May 16, 2017.

      Kavon Marquise Green, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). We encourage the circuit court to continue its efforts to expeditiously dispose of the motion pending below.

WETHERELL, OSTERHAUS, and M.K. THOMAS, JJ., CONCUR. ' •


text:
    Glenn DAVIS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5839
    District Court of Appeal of Florida, First District.
    Opinion filed May 16, 2017
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant’s appointed counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in this appeal from a judgment and sentence imposed upon revocation of probation. We affirm the revocation of probation and the sentence imposed by the trial court, but direct the trial court on remand to enter a written revocation order specifying the conditions of probation appellant was found to have violated. See Leggs v. State, 27 So.3d 155 (Fla. 1st DCA 2010) (remanding for entry of a written order of revocation of probation specifying the conditions violated in an Anders appeal).

KELSEY, WINOKUR, and WINSOR, JJ., CONCUR.


text:
    Dennis T. HUTTO, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4377
    District Court of Appeal of Florida, First District.
    Opinion filed May 16, 2017
    Dennis T. Hutto, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In response to this court’s show cause order, the state conceded that the trial court first failed to issue an order pursuant to State v. Spencer, 751 So.2d 47 (Fla. 1999), prior to barring appellant from filing any pro se filings without the signature of a member of The Florida Bar. We therefore reverse and remand the order on appeal because the lower court must first comply with Spencer before prohibiting pro se filings.

REVERSED AND REMANDED.

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


text:
    Marcus KAHKONEN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3883
    District Court of Appeal of Florida, First District.
    Opinion filed May 16, 2017
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee; Marcus Kahkonen, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, Tal-lahassée, for Appellee.
   PER CURIAM.

We affirm the judgment and sentence in this case. However, we agree with the appellant’s argument that the restitution order was entered in the absence of jurisdiction. “A trial court does not have jurisdiction to hold a restitution hearing or enter an order of restitution after a notice of appeal has been filed, even though the trial court may have previously ordered restitution and reserved jurisdiction. only as to the amount.” Pearson v. State, 686 So.2d 721, 721 (Fla. 2d DCA 1997) (citing Skaggs v. State, 620 So.2d 1304 (Fla. 2d DCA 1993), and Nguyen v. State, 655 So.2d 1249 (Fla. 1st DCA 1995)). Therefore, we reverse the restitution order. “On remand, the trial court may conduct another hearing and again impose restitution.” Pearson, 686 So.2d at 722.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

ROBERTS, C.J., MAKAR and JAY, JJ., CONCUR.


text:
    K.K., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2611
    District Court of Appeal of Florida, Third District.
    Opinion filed May 17, 2017
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA and LOGUE, JJ.
   PER CURIAM.

Affirmed. See R.C. v. State, 192 So.3d 606, 608 (Fla. 2d DCA 2016); L.L. v. State, 189 So.3d 252, 259 (Fla. 3d DCA 2016); Sinclair v. State, 995 So.2d 552, 555 (Fla. 3d DCA 2008).


text:
    T.S. Mother of A.S., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D17-1054
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 24, 2017
    Ryan Thomas Truskoski, Jeffrey Deen and Lori D. Loftis, of the Office of the Criminal and Civil Regional Counsel, Cas-selberry, for Appellant.
    Kelley Schaeffer, of Children’s Legal Services, Bradenton, for Appellee.
   ON CONCESSION OF ERROR

PER CURIAM.

Upon consideration of the concession of error filed by Appellee, we reverse the trial court’s March 7, 2017 order and remand for an order that establishes a specific visitation schedule for the Mother.

REVERSED and REMANDED.

COHEN, C.J., BERGER and LAMBERT, JJ., concur.


author: ROBERTS, C.J.

text:
    Earnest D. BOLTON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4051
    District Court of Appeal of Florida, First District.
    Opinion filed May 25, 2017
    Earnest D. Bolton, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   ROBERTS, C.J.

Appellant, Earnest D. Bolton, challenges an order summarily denying his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

A movant is entitled to an evidentiary hearing on his motion for post-conviction relief unless the motion and record conclusively show that the movant is not entitled to relief. Valentine v. State, 98 So.3d 44, 54 (Fla. 2012). All factual allegations raised by the movant must be accepted as true unless those allegations are conclusively refuted by the record. Id. In this case, the post-conviction court failed to attach any portion of the record that conclusively shows Appellant is not entitled to relief, and this Court is obligated to reverse. See Holton v. State, 130 So.3d 799 (Fla. 1st DCA 2014).

REVERSED and REMANDED.

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


author: PALMER, J.

text:
    Jarrell Ladundrea LATHAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-389
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 26, 2017
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Jarrell Lathan (the defendant) appeals his judgment and sentence for aggravated battery, entered by the trial court after a jury found him guilty of committing numerous offenses. He argues that the trial court’s reclassification of his aggravated battery conviction from a second-degree felony to a first-degree felony was improper because the trial court instructed the jury on both the use-of-deadly-weapon and great-bodily-harm forms of aggravated battery but the jury returned a general verdict. The State properly concedes error. See Brady v. State, 65 So.3d 599, 602 (Fla. 5th DCA 2011) (holding that reclassification was not proper where the trial court instructed the jury on both forms of aggravated battery and the jury returned a verdict of guilty as charged).

Accordingly, the judgment and sentence entered on the aggravated battery conviction are reversed, and the matter remanded to the trial court for correction of the judgment and sentencing documents to reflect the proper classification of the defendant’s aggravated battery conviction.

REVERSED and REMANDED.

ORFINGER and EVANDER, JJ., concur.

      . See § 784.045(l)(a), Fla. Stat, (2015).

      , For purposes of remand, we note that section 775.087(2)(a)3. of the Florida Statutes (2015) requires a term of imprisonment of at least twenty-five years based on the jury’s special finding that the defendant discharged a firearm resulting in great bodily harm on the aggravated battery count. See Jacobs v. State, 954 So.2d 1268, 1269 (Fla. 2d DCA 2007).


text:
    Eduardo VIERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1604
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017.
    Law Offices of Daniel J. Tibbitt, and Daniel Tibbitt, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   ON MOTION FOR REHEARING OR FOR WRITTEN OPINION

PER CURIAM.

We deny the appellant’s motion for rehearing, but grant his motion for written opinion, withdraw our per curiam affir-mance issued on April 26, 2017, and substitute the following opinion in its place.

We affirm the defendant’s convictions and sentences for aggravated battery, see Boyd v. State, 910 So.2d 167 (Fla. 2005), but remand the cause to the trial court for the sole purpose of entering a written competency order nunc pro tunc. See Fla. R. Crim. P. 3.212(b); Mullens v. State, 197 So.3d 16 (Fla. 2016); Dougherty v. State, 149 So.3d 672 (Fla. 2014).

Affirmed and remanded with directions.


text:
    Judy Ann Jean KEETER, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION; Unknown Tenant(s) in Possession of the Subject Property, Appellees.
    CASE NO. 1D16-3085
    District Court of Appeal of Florida, First District.
    Opinion filed June 1, 2017
    Judy Ann Jean Keeter, pro se, Appellant.
    William David Newman, Jr. and Robert R. Edwards of Choice Legal Group, P.A., Fort Lauderdale, for Appellee Federal National Mortgage Association.
   PER CURIAM.

Pursuant to appellee’s proper confession of error, the final judgment is reversed and the cause is remanded to the circuit court with instructions to provide appellant with a hearing on the motions pending at the time the notice of appeal was filed.

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


text:
    William H. HUBBELL, Appellant, v. Victoria MARTIN, Appellee.
    No. SD16-1463
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017
    Jay M. Levy, P.A. and Jay M. Levy, for appellant.
    Elliot L. Miller, for appellee.
    Before SUAREZ, C.J., and LAGOA and SCALES, JJ. '
   ON MOTION FOR CLARIFICATION

PER CURIAM.

We grant appellant’s motion for clarification, withdraw our prior opinion filed April 12, 2017, and substitute the following in its place.

We affirm the dismissal of the matter below but, pursuant to the parties’ agreement, we remand solely for the trial court to strike the phrase “plaintiff shall take nothing by his complaint against Victoria Martin who shall go hence without further day” and to issue an Order that states simply: “ORDERS and ADJUDGES that the said motion be and the same is herewith GRANTED and this cause is dismissed without prejudice.”

Affirmed, remanded with instructions.