author: DAVIS, Judge.

text:
    Terrance Mack CURTIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3775.
    District Court of Appeal of Florida, Second District.
    April 28, 2010.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Terrance Mack Curtis challenges his judgments and sentences for possession of cocaine, possession of a controlled substance, and possession of drug paraphernalia. Curtis entered no contest pleas to the charges while appearing pro se. On appeal, he argues that the trial court failed to make an adequate Faretta inquiry before allowing him to proceed pro se and that this was fundamental error requiring reversal. We agree.

The trial court originally appointed counsel to represent Curtis in the case. However, as the case proceeded, Curtis filed a motion to dismiss his attorney, alleging that the attorney had failed to perform an adequate pretrial investigation. After conducting a Nelson hearing, the trial court denied this motion. The trial court then conducted a hearing on a motion to suppress filed by defense counsel. After this motion was denied, Curtis filed a pro se motion requesting a Faretta hearing, seeking to discharge his appointed counsel and proceed pro se. In that motion Curtis also set forth new allegations of ineffectiveness on the part of his appointed counsel based on counsel’s failure to call necessary witnesses at the suppression hearing and to adequately prepare for the hearing. Curtis specifically requested that he be allowed to represent himself and identified the need for the trial court to conduct a Faretta hearing.

Curtis and his appointed counsel appeared before the trial court on July 16, 2007. At the outset, the trial court noted that while the motion only requested a Faretta hearing, the allegations of ineffectiveness raised issues requiring a second Nelson hearing. After inquiring of Curtis regarding his dissatisfaction with his attorney, the trial court concluded that although counsel was not ineffective, a breakdown of the attorney-client relationship had occurred. Based on this breakdown, the trial court discharged appointed counsel and advised Curtis that conflict-free counsel would be appointed.

Curtis objected because the appointment of new counsel would cause delay in the proceedings, during which he would remain in jail. He then advised the trial court that he would accept the State’s previous plea offer. Curtis’ original, discharged counsel, who was still present at the hearing, made it clear that he was not appearing as counsel for the purpose of the plea hearing. Thus Curtis represented himself during the plea colloquy, which was conducted by the State rather than the trial court. During the colloquy, the State sought to establish the voluntary nature of the plea and Curtis’ awareness and understanding of the trial rights he was forfeiting by making the requisite inquiries regarding Curtis’ age, education, and mental capacity. However, no formal Faretta inquiry was ever conducted.

Pursuant to Florida Rule of Criminal Procedure 3.111(d)(2), “[a] defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused’s comprehension of that offer and the accused’s capacity to make a knowing and intelligent waiver.” In conducting a hearing pursuant to Faretta and rule 3.111, the trial court is “required to inquire about [the defendant’s] age, education, mental condition, and experience and knowledge of criminal proceedings. Further, the trial court [is] required to inform [the defendant] of the disadvantages and dangers of self-representation.” Watkins v. State, 959 So.2d 386, 388 (Fla. 2d DCA 2007) (citing Jones v. State, 658 So.2d 122, 125 (Fla. 2d DCA 1995)). It is only after the court is satisfied that the accused has made a knowing and intelligent waiver of counsel that the accused should be allowed to proceed pro se. Id.

On appeal, the State argues that the plea colloquy itself not only reflects that Curtis entered his plea knowingly and intelligently but also that he knowingly and intelligently waived counsel despite the fact that a separate, formal Faretta hearing was never conducted. We do not agree. The record shows that during the plea colloquy, neither the State nor the trial court advised Curtis of the disadvantages and dangers of self-representation and that no inquiry was made regarding his familiarity with the legal system. These are the inquiries required by Faretta before the trial court may allow self-representation. Watkins, 959 So.2d at 387.

We note that the record before us does reflect that Curtis expressed a desire to waive counsel and enter a plea that day. Nevertheless, we must reverse because the trial court committed fundamental error by failing to fully comply with the Faretta requirements and not ensuring that Curtis’ decision was made knowingly and intelligently. See State v. B.P., 810 So.2d 918, 919 (Fla.2002) (“[E]ven absent a motion to withdraw a plea, failure to advise ... of [the] right to counsel ... is reviewable and correctable on appeal.”); Clary v. State, 818 So.2d 686, 688 (Fla. 5th DCA 2002) (concluding that even if the accused waives counsel on the record, the trial court must make the inquiries required by Faretta and rule 3.111(d) in order to ensure that such waiver is knowingly and intelligently made, otherwise “[the] plea ... is fatally flawed”). Accordingly, we reverse the judgments and sentences and remand for the trial court to set aside the plea and properly advise Curtis of his right to the assistance of counsel before proceeding.

Reversed and remanded with instructions.

KHOUZAM and CRENSHAW, JJ., Concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      .Although the State actually conducted the colloquy and the trial court did not directly participate, we do not find that to be determinative of whether Curtis knowingly and intelligently waived his right to counsel.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Kenneth L. INGRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4541.
    District Court of Appeal of Florida, Second District.
    April 28, 2010.

      James Marion Moorman, Public Defender, and Lisa B. Lott, Special Assistant Public Defender, Bartow, for Appellant.
    Kenneth L. Ingraham, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Kenneth L. Ingraham challenges the judgments and sentences imposed on him after a jury found him guilty of unlawful possession of a concealed handcuff key, a violation of section 843.021(2), Florida Statutes (2004), and felony vending machine theft, a violation of section 877.08(3), (4), Florida Statutes (2004). The trial court sentenced Mr. Ingraham to five years in the state prison on each offense. The sentences were designated to run concurrently with each other and consecutively to Mr. Ingraham’s sentence in another case.

On appeal, Mr. Ingraham addresses four points. First, he argues that he was improperly convicted of felony vending machine theft when the information omitted to state an essential element of that offense, to wit: that he intended to commit larceny. Second, with respect to the felony vending machine theft charge, the trial court committed fundamental error by failing to instruct the jury on the element of the requisite intent to commit larceny. Third, the trial court failed to conduct adequate Nelson and Faretta inquiries before permitting Mr. Ingraham to discharge his court-appointed counsel and represent himself at his trial and at his sentencing. Fourth, the trial court erred in imposing investigative costs in the amount of $225 in the absence of appropriate documentation from the State.

We reject Mr. Ingraham’s first and second arguments for the reasons discussed below. We grant relief in part to Mr. Ingraham with respect to his third argument, vacate his sentences, and remand for resentencing after a proper Faretta inquiry. Because we are vacating Mr. Ingraham’s sentences, his fourth argument is moot.

I. THE FACTS

In the early morning hours of February 20, 2005, a citizen informant was working late at his real estate office in Palm Harbor, Florida, when he heard a loud banging noise coming from a nearby automotive business. The informant went outside to investigate and saw a man swinging “a sledge hammer or something like that” at a beverage machine outside the automotive business. A brown panel van was parked near the man. The informant immediately returned to his office and called 911. While talking to the dispatcher, the informant continued to watch as events unfolded outside. When a Pinellas County Sheriffs patrol car approached the scene, the man attacking the beverage machine jumped into the passenger seat of the van. The driver, a woman, immediately pulled away and began travelling south on U.S. Highway 19.

Pinellas County deputies stopped the van and had the occupants, Mr. Ingraham and the driver, get out of the van. Mr. Ingraham was dressed in combat fatigues and boots. Some of the keys on the key ring he carried were of the type commonly used to open vending machines. The deputies found numerous tools in the van, including two crowbars. One of the crowbars showed signs of recent use. The deputies also found a lock beneath the front passenger seat of the van that was similar to locks used on vending machines. Notably, one of the items the deputies found in the van was a money bag.

Mr. Ingraham admitted to the deputies that he had come from the location of the automotive business. At the scene, the deputies inspected the vending machine and found that it had sustained damage of the sort consistent with an attempt to break into it or pry it open. The damage to the machine appeared to be recent; there were still pieces of the machine on the ground. In addition, the lock for the machine was missing.

A pat-down search of Mr. Ingraham revealed that he was carrying a set of handcuffs in a case. One of the deputies asked Mr. Ingraham about the location of the key to the handcuffs. Mr. Ingraham replied that he had left the key at home. After Mr. Ingraham was handcuffed and placed in the back of one of the patrol cars, the deputies observed him “squirming” and “fidgeting.” Mr. Ingraham’s behavior aroused the deputies’ suspicions, and they removed him from the patrol car. A search of the back compartment of the patrol car revealed a handcuff key beneath the seat cushion. The deputy responsible for that patrol car testified that he had checked the vehicle the day before and had pulled the seat out to look beneath it. Since checking the vehicle the day before, no one but Mr. Ingraham had been in the back seat.

Mr. Ingraham represented himself at trial with the assistance of standby counsel. Although he did not take the stand in his own defense, Mr. Ingraham played an active role in the trial. He participated in jury selection, cross-examined the State’s witnesses, called three defense witnesses, and made a brief closing argument to the jury.

The jury returned verdicts finding Mr. Ingraham guilty as charged on both counts of the information. After the jury returned its verdicts, the State presented proof that Mr. Ingraham had a prior conviction for vending machine theft.

II. THE DEFECT IN THE INFORMATION

Section 877.08 defines offenses relating to coin-operated vending machines and parking meters. Section 877.08 provides, in pertinent part, as follows:

(2) Whoever maliciously or mischievously molests, opens, breaks, injures, damages, or inserts any part of her or his body or any instrument into any coin-operated vending machine or parking meter of another, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.088.
(3) Whoever molests, opens, breaks, injures, damages, or inserts any part of her or his body or any instrument into any coin-operated vending machine or parking meter of another with intent to commit larceny is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(4)Whoever violates the provisions of subsection (3) a second time, and is convicted of such second separate offense, either at the same term or a subsequent term of court, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added.) Thus the offense of vending machine tampering or damaging under section 877.08(2) does not require proof of intent to commit larceny. This offense is categorized as a second-degree misdemeanor. On the other hand, the offense of vending machine theft under section 877.08(3) does require proof of intent to commit larceny. Vending machine theft is also defined as a second-degree misdemeanor. However, in accordance with section 877.08(4), a second offense of vending machine theft constitutes a felony of the third degree.

In this case, count two of the information charged that on February 20, 2005, Mr. Ingraham

did maliciously or mischievously molest, open, break, injure or damage a coin-operated vending machine, the property of that certain business entity known as Ace Auto Repair, the said KENNETH L. INGRAHAM having been previously-convicted of molestation of a coin machine on April 28, 1994; contrary to Chapter 877.08(4), Florida Statutes, and against the peace and dignity of the State of Florida.

The caption of the information designated the crime charged in count two as “MOLESTATION OF A COIN MACHINE, 8° F.” Thus the State apparently intended to charge Mr. Ingraham with the crime of felony vending machine theft under section 877.08(8) and (4) but omitted to allege the required element of intent to commit larceny. However, Mr. Ingraham failed to move to dismiss count two of the information in the trial court. He raises the sufficiency of the information to charge the crime of felony vending machine theft for the first time on appeal.

In assessing Mr. Ingraham’s argument about the sufficiency of count two of the information to charge vending machine theft, we must address the distinction between an information that is fundamentally defective and one that is merely incomplete or imprecise.

There is a difference between an information that completely fails to charge a crime and one where the charging allegations are incomplete or imprecise. The former is fundamentally defective. However, where the information is merely imperfect or imprecise, the failure to timely file a motion to dismiss under Rule 3.190(c) waives the defect and it cannot be raised for the first time on appeal. The test to determine if an information is fatally defective is whether there is a total omission of an essential element of the crime, or whether the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or expose him after conviction or acquittal to the substantial danger of a new prosecution for the same offense.

Jones v. State, 415 So.2d 852, 853 (Fla. 5th DCA 1982) (citations omitted); see also State v. Wimberly, 459 So.2d 456, 458-59 (Fla. 5th DCA 1984) (quoting Jones for the foregoing proposition). Having this distinction in mind, we turn to an examination of count two of the information in this case.

As noted above, the information reflects that the State charged Mr. Ingraham with a third-degree felony in accordance with section 877.08(4), which requires two convictions under section 877.08(3) to prove the felony offense. A second or successive conviction for vending machine tampering or damaging under section 877.08(2) is never a felony, and thus Mr. Ingraham was on notice that the State sought to establish his violation of section 877.08(3) to meet the prerequisite for conviction under section 877.08(4).

Moreover, count two of the information recites the appropriate statute, section 877.08(4), alleged to be violated. Subsection (3) — which is incorporated into subsection (4) by reference — clearly includes the omitted words, “with intent to commit larceny,” and the information’s allegation that Mr. Ingraham acted “maliciously or mischievously” can be disregarded as mere surplusage. Under the circumstances, the omission of the required element of intent to commit larceny from count two of the information did not prejudice Mr. Ingraham in his defense. See Jones, 415 So.2d at 853 (“If the information recites the appropriate statute alleged to be violated, and if the statute clearly includes the omitted words, it cannot be said that the imperfection of the information prejudiced the defendant in his defense.”). Thus, because the information was not fundamentally defective and because Mr. Ingraham failed to move to dismiss count two, it follows that Mr. Ingraham is not entitled to relief on his first argument.

III. THE OMISSION TO CHARGE THE JURY ON AN ELEMENT OF THE CRIME

When the trial court instructed the jury, it mistakenly read the standard jury instruction for vending machine tampering or damaging under section 877.08(2) instead of the instruction for vending machine theft under section 877.08(3). Thus the jury was not instructed on the element of intent to commit larceny. However, Mr. Ingraham did not object to the defective jury instruction in the trial court. On appeal, Mr. Ingraham argues that the trial court’s failure to instruct the jury on the required element of intent to commit larceny constituted fundamental error.

With regard to jury instructions, “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.” State v. Delva, 575 So.2d 643, 645 (Fla.1991) (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982)). Accordingly, the failure to instruct the jury on an element of the crime is fundamental only when that particular element is disputed at trial. Reed v. State, 837 So.2d 366, 369 (Fla.2002). “Where an element of the crime is not accurately defined but is undisputed at trial, ‘the error is not fundamental error.’ ” Barrientos v. State, 1 So.3d 1209, 1216 (Fla. 2d DCA 2009) (quoting Reed, 837 So.2d at 369). Thus, for an error in instructing the jury to reach the level of fundamental error, “the error must reach 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.” Delva, 575 So.2d at 644-45 (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)).

Mr. Ingraham’s conduct evidenced a methodical and businesslike approach to the conduct in which he was engaged before his flight and subsequent arrest. Mr. Ingraham acted at an hour when he was unlikely to be observed or attract the attention of others. His attire of combat fatigues and boots was appropriate for someone who intended to work with tools and machinery rather than to engage in casual activities. The presence of a driver improved Mr. Ingraham’s chances for a speedy getaway if detected and provided him with a lookout while he was engaged in his work. Mr. Ingraham had keys of the type that could be used to open vending machines. His van carried an array of tools, including two crowbars. The money bag found in the van could be used to hold coins taken from vending machines. Taking these facts into account, the State introduced ample evidence from which the jury could have reasonably concluded that Mr. Ingraham had the intent to commit larceny and was not merely engaged in malicious mischief.

In addition, the element of intent to commit larceny was not a disputed issue at Mr. Ingraham’s trial. With respect to the vending machine theft charge, the only disputed element at trial was the identity of Mr. Ingraham as the perpetrator. The citizen informant did not identify Mr. Ingraham at trial as the man whom he had seen attacking the beverage machine. In his closing argument, Mr. Ingraham contended only that the State had not proven his identity as the perpetrator beyond a reasonable doubt. He did not raise the issue of his intent. In the absence of any dispute at trial concerning the element of intent, Mr. Ingraham has failed to demonstrate that the State could not have obtained his conviction for vending machine theft but for the defect in the jury instructions. Accordingly, the error in instructing the jury on the elements of vending machine theft does not rise to the level of fundamental error.

IV. THE NELSON AND FARETTA ISSUES

Mr. Ingraham also argues that the trial court committed error by failing to conduct adequate Nelson and Faretta inquiries after Mr. Ingraham expressed dissatisfaction with his court-appointed counsel and requested to represent himself. After a thorough review of the record, we conclude that the trial court gave Mr. Ingraham multiple opportunities to articulate the reasons for his dissatisfaction with court-appointed counsel. Despite these opportunities, Mr. Ingraham never articulated a reason which would have warranted discharging his court-appointed counsel and appointing substitute counsel. Thus the trial court complied with its obligations under Nelson and properly denied Mr. Ingraham’s requests to replace his court-appointed counsel with substitute counsel. See Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004) (“If the reasons for the request [to discharge counsel] do not indicate ineffective assistance of counsel, then no further inquiry is required. If no further inquiry is required, or if after further inquiry there is no reasonable cause to believe that court-appointed counsel is not rendering effective assistance, and the defendant persists in a desire to discharge counsel, then the court must inform the defendant that he is not entitled to a court-appointed substitute counsel and that he would be exercising his right to represent himself.” (citations omitted)).

We also conclude that the trial court adequately informed Mr. Ingraham of the disadvantages of representing himself. The record demonstrates that Mr. Ingraham knowingly and voluntarily waived his right to be represented by counsel at his trial. See Potts v. State, 718 So.2d 757, 759 (Fla.1998) (“[0]nce a court determines that a competent defendant of his or her own free will has ‘knowingly and intelligently’ waived the right to counsel, the dictates of Faretta are satisfied, the inquiry is over, and the defendant may proceed unrepresented.” (quoting State v. Bowen, 698 So.2d 248, 251 (Fla.1997))); Rogers v. Singletary, 698 So.2d 1178, 1180 (Fla.1996) (“Faretta requires that once a defendant asserts the right of self-representation, the court must conduct an inquiry to determine whether the defendant knowingly and intelligently waived the right to counsel.”). The trial court also appointed standby counsel to assist Mr. Ingraham at his trial, and Mr. Ingraham availed himself of standby counsel’s advice during the trial.

However, the trial court erred by failing to renew its offer of counsel to Mr. Ingraham at his sentencing proceeding. Florida Rule of Criminal Procedure 3.111(d)(5) provides that “[i]f a waiver [of counsel] is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.” “Sentencing is a critical stage of a criminal proceeding, and a trial court must renew the offer of counsel even if the defendant has previously waived counsel.” Beard v. State, 751 So.2d 61, 62 (Fla. 2d DCA 1999). Accordingly, we must vacate Mr. Ingraham’s sentences and remand for resentencing after a proper Faretta inquiry. Beard, 751 So.2d at 62; Descault v. State, 20 So.3d 990, 991 (Fla. 1st DCA 2009); Travis v. State, 969 So.2d 532, 533 (Fla. 1st DCA 2007).

V. INVESTIGATIVE COSTS

Mr. Ingraham argues that the $225 fee imposed on him for “investigative costs” under section 938.27(1), Florida Statutes (2004), should be struck because the State failed to provide any documentation for these costs. This is a moot point because, as discussed above, the sentences imposed on Mr. Ingraham must be vacated. If the State seeks to reimpose these costs on remand, it must comply with the applicable statute.

VI. CONCLUSION

Accordingly, we affirm Mr. Ingraham’s judgments for carrying a concealed handcuff key and for vending machine theft. We vacate the sentences imposed on him for these offenses, and we remand for resentencing after a proper Faretta inquiry.

Judgments affirmed, sentences vacated, and case remanded.

KELLY, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . Mr. Ingraham's appellate counsel originally filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because we determined that several issues of potential merit existed in Mr. Ingraham's case, we ordered supplemental briefing in accordance with Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . The record reflects that at several hearings before trial, Mr. Ingraham unsuccessfully tried to demonstrate that his court-appointed attorneys were ineffective and that he was entitled to the appointment of substitute counsel. On at least one of these occasions, the trial court also discussed the dangers of self-representation with Mr. Ingraham at length. At some point before trial, the trial court permitted Mr. Ingraham to proceed pro se and appointed private, standby counsel. At the beginning of the trial, Mr. Ingraham indicated that he would "be ending up representing myself” and that he was "re-establishing my representation of myself." After a lengthy discussion, including reference to prior conversations and renewed warnings about the dangers of self-representation, the trial court permitted Mr. Ingraham to proceed pro se. The attorney who had been appointed as standby counsel to Mr. Ingraham before trial continued to serve as Mr. Ingraham’s standby counsel during the trial proceedings.

      . As noted above, Mr. Ingraham had several opportunities before trial to explain to the trial court why he believed his counsel was ineffective.

      . As noted above, the trial court discussed the dangers of self-representation with Mr. Ingraham before trial and again at trial before permitting Mr. Ingraham to proceed pro se with standby counsel.

      . The legislature amended section 938.27(1), effective July 1, 2008, to eliminate the documentation requirement. Ch. 08-111, § 44, at 725, Laws of Fla.; see also Del Valle v. State, 26 So.3d 650, 652 n. 1 (Fla. 2d DCA 2010) (noting same). We do not address whether the amended statute may be applied retroactively to Mr. Ingraham. See Griffin v. State, 980 So.2d 1035 (Fla.2008) (determining retro-activity of an amendment to a cost statute).


author: PER CURIAM.

text:
    Carlos SOLEDISPA a/k/a Carlos L. Soledispa and Nora Soledispa, et al., Appellants, v. LA SALLE BANK NATIONAL ASSOCIATION, as Trustee for Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-H1, Appellee.
    No. 4D10-998.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2010.
    John H. Ruiz of La Ley Con John H. Ruiz, P.A., Miami, for appellants.
    No appearance for appellee.
   PER CURIAM.

We dismiss appellants’ appeal because the notice of appeal was filed with the clerk more than thirty days after the rendition of the final judgment. As we explained in Strax Rejuvenation and Aesthetics Institute, Inc. v. Shield, 24 So.3d 666, 669 (Fla. 4th DCA 2009), “pursuant to rule 1.080(e), the clerk’s date stamp is disposi-tive on the issue of the date of filing a paper with the trial court.” Here, the clerk stamped the notice of appeal as being filed February 23, 2010, from a final judgment rendered January 13, 2010, thus making the notice untimely. While appellant has filed affidavits stating that a courier delivered the notice of appeal to the Broward County Clerk’s office on February 11, 2010, the filing stamp date governs the filing date. As we did in Strax, we certify conflict with Weintraub v. Alter, 482 So.2d 454 (Fla. 3d DCA 1986). We also certify conflict with Ocr-EDS, Inc. v. S & S Enterprises, Inc., 32 So.3d 665 (Fla. 5th DCA 2010).

GROSS, C.J., WARNER and STEVENSON, JJ., concur.


text:
    Bassam ABIFARAJ and Rayya Abifaraj, as Co-Personal Representatives of the Estate of Samer Abifaraj and Bassam Abifaraj, individually and Rayya Abifaraj, individually, Appellants, v. PLANTATION GENERAL HOSPITAL LIMITED PARTNERSHIP d/b/a Columbia Plantation General Hospital, John L. Rinella, M.D., Jonathan D. Ralph, M.D., Rinella, Hudanich, Greenberg, Ralph & Sinjin, P.A., Anis Mohammed, Joaquin Taranco, M.D., and Tar & Associates Anesthesiology Group, P.A. d/b/a Plantation-Tamarac Anesthesiology Group, P.A., Appellees.
    No. 4D10-138.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2010.
    Walter G. Campbell of Krupnick, Campbell, Malone, Buser, Slama, Hancock, Li-berman & McKee, P.A., Fort Lauderdale, for appellant.
    Rachel Turner Davant of Billing Cochran, Fort Lauderdale, for appellee.
   PER CURIAM.

On December 11, 2009, the trial court entered final judgment in favor of Appellee/Defendant Plantation General Hospital Limited Partnership d/b/a Columbia Plantation General Hospital, based on Bayfront Medical Center v. Florida Birth-Related Neurological Injury Compensation Ass’n., 982 So.2d 704 (Fla. 2d DCA 2008). The Florida Supreme Court quashed Bayfront in Florida Birthr-Related Neurological Injury Compensation Ass’n. v. Department of Administrative Hearings, 29 So.3d 992 (Fla.2010).

The parties, having entered into a joint stipulation of error, conceded that the Florida Supreme Court’s opinion controls the facts of this case. As such, we reverse the final judgment and remand for further proceedings.

Reversed and Remanded.

TAYLOR, GERBER and LEVINE, JJ., concur.


text:
    Jacquelyn BENNETT and Bobbie Sue Miller, Appellants, v. Marie-Christine BERGES, Christian Devocht, and Jean-Luc Devocht, Appellees.
    No. 4D08-4986.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2010.
    Diane H. Tutt of Diane H. Tutt, P.A., Davie, and Charles D. Franken of Charles D. Franken, P.A., Plantation, as co-counsel, for appellants.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Jody Leslie of Leslie & McLaughlin, LLP, Fort Lauderdale, for appellees.
   PER CURIAM.

Appellants appeal an order discharging the personal representative and orders compelling reimbursement of estate assets. Because the estate was probated pursuant to the terms of a settlement agreement, the enforceability of which is disputed, we reverse.

The decedent passed away in 2005 survived by his wife, who passed away shortly thereafter, and the appellee children. Appellants sought to admit into probate a will executed in 2005 pursuant to which appellant Bennett would receive 68% of a profit sharing plan with $2.2 million in assets and the remaining parties would each receive 8%. Appellees challenged the validity of the 2005 will and sought to admit a will executed the previous year under which appellees would receive the decedent’s assets and appellants would receive nothing.

The parties entered into a mediation settlement agreeing to admit the 2005 will into probate, subject to certain modifications, chief of which was an agreement to distribute the profit sharing plan such that appellants would receive a lesser percentage than that provided under the 2005 will and appellees would receive a greater percentage. The court approved the settlement in February 2006. The court vacated the order approving the settlement some seventeen months later when it came to light that the executed settlement was different from the version submitted to the court for approval.

Despite the order vacating the settlement, the estate continued to be probated pursuant to the terms of the settlement. The court entered orders requiring the parties to pay income taxes, accounting fees, and estate expenses pursuant to the terms of the settlement. The court also authorized the personal representative to make distributions from the profit sharing plan in proportion to the parties’ percentages under the settlement. The court ultimately entered an order discharging the personal representative. From these orders, appellants appeal.

Appellants assert that there is no enforceable settlement agreement because the court vacated the order approving the settlement. Appellees argue the court vacated only the order approving the incorrect version of the settlement and that the correct version of the settlement upon which the parties agreed in mediation is valid and enforceable. From the record, it is unclear whether an enforceable settlement agreement exists. Because a factual determination needs to be made, we reverse and remand for an evidentiary hear-mg on whether the settlement agreement is enforceable and should be accepted; if not enforceable, then the case should proceed to a trial on the merits. See Barone v. Rogers, 930 So.2d 761 (Fla. 4th DCA 2006) (noting that an evidentiary hearing was required to determine whether there was a meeting of the minds regarding terms of settlement agreement or, if not, whether the disputed term was an essential element such that without assent to the term no contract came into existence); Architectural Network, Inc. v. Gulf Bay Land Holdings II, Ltd., 933 So.2d 732 (Fla. 2d DCA 2006) (remanding for an evidentiary hearing where parties disputed whether a settlement had been reached).

Reversed and remanded for further proceedings.

TAYLOR, GERBER and LEVINE, JJ„ concur.


author: ALTENBERND, Judge.

text:
    Douglas E. JONES, Appellant, v. Vicki L. JONES, Appellee.
    No. 2D09-351.
    District Court of Appeal of Florida, Second District.
    April 30, 2010.

      Blair H. Chan of Ruden, McClosky, Smith, Schuster <& Russell, P.A., Tampa, for Appellant.
    James H. Buzbee, Plant City, for Appel-lee.
   ALTENBERND, Judge.

Douglas E. Jones appeals the trial court’s order granting a final injunction for protection against domestic violence in favor of his former wife, Vicki L. Jones. Because Ms. Jones did not present competent, substantial evidence to support a finding that she possessed an objectively reasonable fear of imminent domestic violence, we reverse. See Oettmeier v. Oettmeier, 960 So.2d 902 (Fla. 2d DCA 2007).

The Joneses were divorced by a decree of a Virginia court in November 2008. During their marriage, Mr. and Mrs. Jones were members of the armed forces. Since the divorce, they have maintained joint custody over their daughter. Ms. Jones and the couple’s daughter have lived in Florida since 2007.

In December 2008, Ms. Jones filed her petition for injunction for protection against domestic violence in Hillsborough County. On December 16, the court held a hearing on the injunction. During the hearing, Ms. Jones first recounted an incident in 2005, prior to the Joneses’ divorce, in which Mr. Jones had pushed Ms. Jones and hit a tray on which she was carrying a sandwich. She also recalled a comment Mr. Jones made in 1997, while in a Special Forces unit of the military, that he often thought about his ability to seriously harm people who were in his field of vision.

Regarding the most recent incidents supporting her request, Ms. Jones said her daughter had called her over Thanksgiving 2008 from a hotel room while the daughter was visiting Mr. Jones in Orlando. Ms. Jones testified that her daughter was upset about the visitation arrangement. Ms. Jones did not mention any threat Mr. Jones had made against Ms. Jones or the daughter.

Ms. Jones further testified that on December 3, 2008, Mr. Jones emailed her, seeking the return of some of his personal belongings and other items that were identified in the divorce decree. Mr. Jones thereafter arrived at the pediatric clinic where Ms. Jones worked as a military employee and spoke with people at the front desk, asking how to obtain copies of his daughter’s medical records from the military. After learning of this visit, Ms. Jones called Mr. Jones and asked why he had been at the clinic. He explained that he had requested his daughter’s records and mentioned his effort to pick up his personal belongings. Mr. Jones then indicated he would be at Ms. Jones’s residence that evening. Ms. Jones responded that she took his statement as a threat. Ms. Jones asked Mr. Jones if he was threatening her and, according to Ms. Jones, he responded, “Not yet.” According to Ms. Jones, after this phone call, the military relocated her to a different residence. The following day, an alarm went off at her previous residence. No testimony was given to explain this alarm. There is no evidence connecting the sounding of this alarm to Mr. Jones.

In his testimony, Mr. Jones, who lives in another state, explained that he had stayed with his daughter at hotels in Orlando during his November 2008 visit. At the time, he had been trying to obtain some of his daughter’s medical records, to which the divorce decree ensured joint access. On December 3, because he was still in Florida, Mr. Jones went to the clinic where Ms. Jones worked, asked how to request his daughter’s medical records, and was provided the necessary paperwork to request the records.

At the conclusion of the hearing, the trial court granted the injunction for a period of one year. The injunction prohibited Mr. Jones from contacting Ms. Jones and required that custody exchanges of the Joneses’ daughter take place at the local sheriffs office.

“A court may issue an injunction when it appears that the petitioner is either the victim of domestic violence or ‘has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.’ ” Ambrefe v. Ambrefe, 993 So.2d 98, 98 (Fla. 2d DCA 2008) (quoting § 741.30(1)(a), Fla. Stat. (2007)). In determining whether the victim’s fear is reasonable, “the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.” Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001) (citing Gustafson v. Maude, 743 So.2d 614, 616 (Fla. 1st DCA 1999)); see also § 741.30(6)(b), Fla. Stat. (2008).

Ms. Jones did not present any evidence that she had been the victim of domestic violence. She relied exclusively on the theory that she had a reasonable fear that she was in imminent danger of becoming a victim of domestic violence. Her primary basis for requesting the injunction was a circumstance in which Mr. Jones had sought items to which he was ensured access under the divorce decree. Viewed in the context of the parties’ relationship, Mr. Jones’s appearance at Ms. Jones’s place of employment — following his Thanksgiving custody visit — could not be reasonably interpreted as a threat of violence. As recounted by Ms. Jones, Mr. Jones did not make any threat of violence. These circumstances did not involve any violence or any threat of violence against Ms. Jones or the Joneses’ daughter. See, e.g., Moore v. Hall, 786 So.2d 1264, 1266-67 (Fla. 2d DCA 2001) (holding incidents twelve years prior did not support issuance of injunction where there had been no further violence or threats); Gustafson, 743 So.2d at 615 (holding husband’s telephone messages asking the wife to contact him did not support issuance of injunction). Accordingly, we reverse and remand with directions to vacate the final judgment of injunction.

SILBERMAN and VILLANTI, JJ., Concur.

      . Presumably, this injunction has already expired and was not renewed. We do not treat the order on appeal as moot because we are concerned about the potential collateral effects of such an order on Mr. Jones.


author: KELLY, Judge.

text:
    Sam VANCE, Appellant, v. TIRE ENGINEERING AND DISTRIBUTION, LLC, a Florida Limited Liability Company, d/b/a Alpha Tyre Systems, d/b/a Alpha Mining Systems, Appellee.
    Nos. 2D08-889, 2D08-1795, 2D08-1796.
    District Court of Appeal of Florida, Second District.
    April 30, 2010.

      Ceci Culpepper Berman of Fowler White Boggs, P.A., Tampa, for Appellant.
    Jennifer B. Compton and Jason A. Collier of Abel Band, Chartered, Sarasota, for Appellee.
   KELLY, Judge.

In these consolidated appeals, Sam Vance appeals the default final judgment entered against him and in favor of Tire Engineering and Distribution, LLC, (TED), as well as the order awarding TED exemplary damages and attorney’s fees and costs. He argues that the trial court erred in denying his motion to dismiss the complaint for lack of personal jurisdiction. We agree and reverse.

TED is a Florida limited liability company with its principal place of business in Florida. TED does business as Alpha Tyre Systems and Alpha Mining Systems. TED is a joint venture between BCATCO ARL, which also does business as Alpha Mining Systems, and Guizhou Tire Company (GTC), a Chinese company. TED is involved in the engineering, distribution, and wholesaling of imported commercial, industrial, and mining tires. Alpha Mining designs, develops, markets, and sells the tires, and GTC manufactures them. Vance did consulting and marketing work for Alpha Mining from approximately 1997 or 1998 through May 2005. After Vance ended his relationship with Alpha Mining, TED sued him alleging various intentional torts including tortious interference with business relationships and misappropriation of trade secrets.

Vance moved to dismiss for insufficiency of service of process and for lack of personal jurisdiction, stating that he is a resident of Virginia and that he had conducted all his TED-related business in either Virginia or China. TED responded ■with an affidavit designed to show that Vance had sufficient contacts with Florida to permit its courts to exercise personal jurisdiction over him. The trial court referred the matter to a magistrate who, without elaboration, concluded that the complaint alleged sufficient facts to show a basis for personal jurisdiction under the long-arm statute. The magistrate also found that the parties’ affidavits could be harmonized and that the facts in the affidavits demonstrated sufficient contacts between Vance and Florida to satisfy constitutional due process requirements. Based on the magistrate’s recommendation, the trial court denied Vance’s motion to dismiss for lack of personal jurisdiction, and Vance appealed. This court uses a de novo standard to review a trial court’s ruling on a motion to dismiss for lack of personal jurisdiction. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002).

To determine whether a Florida court can exercise jurisdiction over a nonresident defendant, the trial court must make a two-part inquiry. First, it must determine whether the complaint alleges sufficient jurisdictional facts to subject the defendant to long-arm jurisdiction under section 48.193, Florida Statutes (2005), the long-arm statute. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). If the plaintiff has met this requirement either by pleading facts or, alternatively, by pleading the language of the long-arm statute, the court must then determine whether the plaintiff has demonstrated that the defendant has sufficient contacts with Florida to satisfy constitutional due process requirements. Id. If the complaint does not allege a sufficient basis to assert long-arm jurisdiction over the defendant, the court need not reach the issue of whether the defendant has the requisite minimum contacts with the state. See Ernie Passeos, Inc. v. O’Halloran, 855 So.2d 106, 108 (Fla. 2d DCA 2003); Hewitt v. Taffee, 673 So.2d 929, 932 (Fla. 5th DCA 1996).

Vance’s motion to dismiss was a challenge to the legal sufficiency of the jurisdictional allegations in TED’s complaint. See Venetian Salami, 554 So.2d at 502. The complaint does not plead the language of the long-arm statute; thus, to withstand a motion to dismiss it must contain factual allegations demonstrating that Vance is subject to jurisdiction under the long-arm statute. The only factual allegations in the complaint that pertain to jurisdiction are that Vance had been a marketing manager for Alpha Mining for eight years, that Alpha Mining is the engineering and marketing arm of TED, and that TED is a Florida company with its principal place of business in Florida. Without more, these allegations do not demonstrate that Vance is subject to jurisdiction under the long-arm statute. Because the plaintiff did not meet this threshold requirement, the trial court should have dismissed the complaint rather than going on to consider the parties’ affidavits for the purpose of determining whether Vance had sufficient contacts with Florida to satisfy constitutional due process requirements.

Accordingly, we reverse the final default judgment along with the order awarding exemplary damages and attorney’s fees and costs. On remand the circuit court shall vacate the order denying Vance’s motion to dismiss, shall enter an order dismissing the complaint with leave to amend, and may conduct further proceedings consistent with this opinion.

Reversed and remanded.

VILLANTI and CRENSHAW, JJ., Concur.


text:
    Tyrone SALTERS, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM on behalf of Ganté L. MOBLEY, Appellee.
    No. 2D08-4632.
    District Court of Appeal of Florida, Second District.
    April 30, 2010.
    Anett Lopez of Anett Lopez, P.A., New Port Richey, for Appellant.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   WALLACE, Judge.

Tyrone Salters appeals a final administrative support order and an income deduction order entered by the Department of Revenue, Child Support Enforcement Program (the Department). The orders were entered with respect to Mr. Salters’ two minor children. The Department requested financial information from Mr. Salters and provided him with two notices advising him of his right to participate and to request a hearing. But Mr. Salters failed to provide the requested information or to participate in the proceedings below, thus waiving or failing to preserve a number of the arguments he now raises on appeal. For this reason, we affirm with respect to all of Mr. Salters’ arguments on appeal, save one. Because the Department disregarded information in its files and calculated Mr. Salters’ retroactive child support obligation using an incorrect income amount for the periods of July to December 2005 and January to December 2006, we reverse and remand for recalculation of retroactive child support and for any necessary adjustments to Mr. Salters’ monthly contribution to that arrearage and to the income deduction order.

When calculating Mr. Salters’ retroactive child support obligation, the Department used a monthly income figure of $4415.18 for the period of July 2005 to August 2008. This figure is based upon information the Department had concerning Mr. Salters’ income from the City of Largo and JMA Enterprises during the last three quarters of 2007 and the first quarter of 2008.

In calculating Mr. Salters’ monthly income for the periods of July to December 2005 and January to December 2006, the Department did not consider the information it had in its possession concerning Mr. Salters’ income from the City of Largo before 2007. The information in the Department’s file reflects that his rate of pay with the City of Largo increased sometime after January 2006. In addition, the Department had available Mr. Salters’ actual monthly income from the City of Largo for the period of July to December 2005 and his actual quarterly income for the last three quarters of 2006. The Department should have used that information (together with the information it had from JMA Enterprises) to calculate retroactive child support for the periods of July to December 2005 and January to December 2006. Although Mr. Salters failed to participate below or to provide any information to the Department concerning his income, the Department ought not to ignore the information in its own files. Cf. § 61.30(17)(a), Fla. Stat. (2005) (“Failure of the obligor to ... demonstrate [his actual income] shall result in the court using the obligor’s income at the time of the hearing in computing child support for the retroactive period.”).

Because we find no error with respect to the Department’s determination of Mr. Salters’ current support obligation, we affirm the final administrative support order to that extent. We reverse the order with respect to the calculation of Mr. Salters’ retroactive support obligation and remand for the Department to recalculate his retroactive child support for the periods of July to December 2005 and January to December 2006, using the information it has with respect to his actual income from the City of Largo during those periods. After recalculating Mr. Salters’ retroactive support for these periods, the Department should recalculate the total retroactive child support obligation and, if necessary, adjust Mr. Salters’ monthly contribution towards the arrearage. Based upon our reversal of the final administrative support order, the income deduction order is also reversed. The Department may reissue an appropriate income deduction order after recalculating the retroactive support obligation and making any necessary adjustments to Mr. Salters’ monthly contribution towards the arrearage.

Affirmed in part, reversed in part, and remanded.

VILLANTI and LaROSE, JJ, Concur.

      . See § 409.2563, Fla. Stat. (2005); Macias v. Dep't of Revenue ex rel. Garcia, 16 So.3d 985, 986 (Fla. 3d DCA 2009) (holding that a father could not "seek modification of a Final Administrative Support Order on appeal by presenting facts that were not initially presented to the administrative law judge”); Fernandez v. Dep’t of Revenue, 971 So.2d 875, 877-78 (Fla. 3d DCA 2007) (holding that a father was not entitled to reversal of a support order based upon the Department's failure to hold a hearing when he was twice given notice of his right to request a hearing and did not do so).

      . Mr. Salters is not without a remedy. He may seek a modification of the final administrative support order as set forth in section 409.2563(12), or he may seek a superseding order in the circuit court pursuant to section 409.2563(10)(c). See Miley v. Dep’t of Revenue ex rel. Barker, 23 So.3d 1284, 1284 (Fla. 4th DCA 2010) (noting same).

      . The Department also calculated retroactive support for the periods of January to December 2007, January 2008, and February to August 2008. It then added all of the periods of retroactive support together to determine Mr. Salters’ total retroactive support obligation and required him to make monthly payments towards the total arrearage.


author: CASANUEVA, Chief Judge.

text:
    Angela Carmen BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-259.
    District Court of Appeal of Florida, Second District.
    April 30, 2010.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Chief Judge.

The State charged Angela Carmen Brown with several offenses related to a multi-car collision. Among them was driving under the influence with damage to the property of another, specifically, a 1997 Chevy truck that Ms. Brown was driving. But the State did not produce any evidence of the truck’s ownership. Ms. Brown moved for a judgment of acquittal on this basis, which was denied. The jury subsequently found her guilty. Ms. Brown appealed. Because the State did not prove the existence of the charged offense, we conclude that the trial court erred in denying the motion for judgment of acquittal on this charge and reverse.

“In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002) (citing Tibbs v. State, 397 So.2d 1120 (Fla.1981)). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan, 830 So.2d at 803 (citing Banks v. State, 732 So.2d 1065 (Fla.1999)).

To determine whether the State presented sufficient evidence for the jury to find that Ms. Brown was driving under the influence with damage to the property of another, we review the statute defining the offense:

(3) Any person:
(a) Who is in violation of subsection (1) [by driving or being in actual physical control of a vehicle while under the influence of drugs or alcohol to a certain degree];
(b) Who operates a vehicle; and
(c) Who, by reason of such operation, causes or contributes to causing:
1. Damage to the property or person of another commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

§ 316.193(3), Fla. Stat. (2007).

Subsection (3)(c)(l) requires the State to prove that the damaged property belonged to someone other than the defendant. But the State provided no evidence that someone other than Ms. Brown owned the 1997 Chevy truck. Without evidence of this element, no rational trier of fact could have found that the State had proven the existence of the charged offense. Because the trial court should have granted the motion for judgment of acquittal, we reverse and remand for the trial court to vacate the conviction and sentence for driving under the influence with damage to the 1997 Chevy truck. We affirm Ms. Brown’s other convictions and sentences without comment.

Affirmed in part, reversed in part, and remanded.

DAVIS and LaROSE, JJ„ Concur.


author: MORRIS, Judge.

text:
    Todd P. BOETZEL and Boetzel Landscaping, Inc., Appellants, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 2D09-260.
    District Court of Appeal of Florida, Second District.
    April 30, 2010.

      Gregory T. Elliott of Elliott — Berger, P.A., Largo, for Appellants.
    Garnet W. Chisenhal, Tallahassee, for Appellee.
   MORRIS, Judge.

Todd P. Boetzel and Boetzel Landscaping, Inc. (collectively referred to as Boet-zel), appeal a final administrative order denying Boetzel’s petition for attorney’s fees and costs incurred in a proceeding filed by the Department of Business and Professional Regulation against Boetzel. On appeal, Boetzel argues that the administrative law judge (ALJ) erred in summarily denying Boetzel’s petition without first conducting an evidentiary hearing. We agree and reverse and remand for further proceedings.

The Department filed an administrative complaint against Boetzel for the unlicensed practicing of landscape architecture and electrical contracting. After a final hearing, the ALJ recommended that the Department find Boetzel not guilty of the charged violations. The Department entered a final order adopting the ALJ’s recommendations.

Boetzel then filed a petition for attorney’s fees and costs pursuant to section 57.111, Florida Statutes (2008). On November 17, 2008, the ALJ entered an initial order, directing the Department to file a response “no later than twenty days from the date of this [o]rder.” The initial order also stated:

3. Within ten days of the filing of [the Department’s] response, [Boetzel] may request an evidentiary hearing.
4. In case of a timely request, the [ALJ] will schedule an evidentiary hearing, and may do so sua sponte in any event. The evidentiary hearing will take place in Tallahassee, unless the [ALJ] orders otherwise. Unless [Boet-zel] or [the Department] timely requests one, an evidentiary hearing is waived, and the [ALJ] will decide for or against the award and the amount, if any, on the basis of the pleadings, the supporting documents, and the file of the Division of Administrative Hearings in the underlying proceeding.

The Department filed its response on December 8, 2008. Pursuant to the initial order, Boetzel had until December 18, 2008, to request an evidentiary hearing. See Fla. Admin. Code R. 28-106.103 (“In computing any period of time allowed by this chapter, by order of a presiding officer, or by any applicable statute, the day of the act from which the period of time begins to run shall not be included.”). However, the ALJ entered its order denying Boetzel’s petition on December 17, 2008, before the time had expired for Boet-zel to request an evidentiary hearing. It is clear from paragraph 4 of the initial order that an evidentiary hearing would have been held “[i]n case of a timely request.” The ALJ thus erred in denying Boetzel’s petition while Boetzel still had time to make a timely request for a hearing.

In addition, the statute under which Boetzel sought attorney’s fees and costs provides for an evidentiary hearing. Section 57.111(4)(d) states in pertinent part that the ALJ “in the case of a proceeding under chapter 120[] shall promptly conduct an evidentiary hearing on the application for an award of attorney’s fees and shall issue ... a final order.” Thus, section 57.111(4)(d) clearly provides for an evidentiary hearing to be held on a petition for attorney’s fees and costs.

The Department argues that an eviden-tiary hearing is not required, relying on federal case law interpreting the federal statute after which section 57.111 was modeled. See, e.g., Launtzen v. Lehman, 736 F.2d 550, 559 n. 12 (9th Cir.1984). Section 57.111 “will take the same construction in the Florida courts as its prototype has been given in the federal courts, insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject.” Dep’t of Prof'l Reg., Div. of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 717 (Fla. 1st DCA 1989). Unlike Florida’s version, the federal statute does not specifically provide for an evidentiary hearing but states that an award of fees should be based on the record in the underlying proceeding. See 28 U.S.C. § 2412(d)(1)(B) (2006). Therefore, we need not construe section 57.111(4)(d) consistently with federal cases on this issue.

Because Boetzel should have been given the full opportunity to request an eviden-tiary hearing as provided for in both the ALJ’s initial order and section 57.111(4)(d), we reverse the order denying its petition for fees and costs and remand for further proceedings consistent with this opinion.

SILBERMAN and LaROSE, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Gary V. MORELAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-315.
    District Court of Appeal of Florida, Second District.
    April 30, 2010.

      Gary V. Moreland, pro se.
   SILBERMAN, Judge.

Gary V. Moreland appeals the summary dismissal of his timely motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. This motion, deemed filed on December 12, 2008, when he placed it in the hands of prison officials, was Mr. Moreland’s third rule 3.850 motion. On June 13 and August 21, 2007, the postconviction court denied Mr. More-land’s first and second motions. Several claims were denied as procedurally barred; others — including the two claims of ineffective assistance of counsel asserted in the current motion — were denied as facially insufficient. But neither prior denial order provided Mr. Moreland with leave to amend to correct the facial insufficiencies.

In the order now before us, the postcon-viction court recognized that Mr. Moreland was entitled to at least one opportunity to amend timely filed but facially insufficient claims. And the court recognized that it had not provided Mr. Moreland with a specific time for amendment. The court nevertheless dismissed this motion on the ground that the time for amendment is not unlimited, see Bryant v. State, 901 So.2d 810, 819 (Fla.2005), and by waiting over sixteen months to file this new motion, Mr. Moreland was precluded from attempting to remedy the facially insufficient claims.

This case highlights the procedural difficulties that can arise when a postconviction court denies or dismisses a motion as facially insufficient without giving the mov-ant at least one opportunity to amend within a specified amount of time. Mr. Moreland’s first two motions were filed and denied before the supreme court issued its opinion in Spera v. State, 971 So.2d 754 (Fla.2007). There, the court held that a legally insufficient motion should be stricken with leave to amend, adding that “[w]e do not envision that window of opportunity would exceed thirty days and may be less.” Id. at 761. In disposing of Mr. Moreland’s third motion, the postconviction court should have considered the operative principles embodied in not only Spera but also rule 3.850(f). That rule permits the filing of successive motions within the two-year period contained in rule 3.850(b) if the claims or issues have not previously been decided on the merits. An exception exists for abuse of procedure. See Wilson v. State, 13 So.3d 83, 85 (Fla. 2d DCA 2009). But because Mr. Moreland was never advised that he had a limited period of time in which to file amended claims, rather than the remaining balance of the two-year period after his judgment and sentence became final, it cannot be said that his attempt to assert grounds that were never decided on the merits constitutes such an abuse. See Spera, 971 So.2d at 759.

Accordingly, we reverse the postconviction court’s order. On remand the post-conviction court shall consider the two claims of ineffective assistance of counsel as a timely amendment of those claims dismissed in 2007. The resulting final order will be “a disposition on the merits for all claims that were or could have been raised in that motion.” Lawrence v. State, 987 So.2d 157, 159 (Fla. 2d DCA 2008).

Reversed and remanded.

CRENSHAW and MORRIS, JJ., Concur.


author: LaROSE, Judge.

text:
    Nigel GIBNEY and Christine Gibney, Appellants, v. Randy PILLIFANT and Helen Pillifant, Appellees.
    No. 2D09-1284.
    District Court of Appeal of Florida, Second District.
    April 30, 2010.
    John F. Hooley of Garber, Hooley & Holloway, LLP, Naples, for Appellants.
    Benjamin B. Brown, Andrew G. Tretter, and Kevin R. Lottes of Quarles & Brady, LLP, Naples, for Appellees.
   LaROSE, Judge.

The trial court, after a nonjury trial, entered a final judgment ruling that Nigel and Christine Gibney breached a contract to buy a house from Randy and Helen Pillifant. The judgment awards the Gib-neys’ $124,000 deposit to the Pillifants. The trial court erred in determining that an appraisal contingency in the contract was ambiguous and interpreting that provision in a manner that differed from the written terms. We reverse and remand with directions that the trial court enter judgment for the Gibneys.

By way of background, we note that the Gibneys contracted to buy a house under construction in Naples from the Pillifants. The purchase price was $620,000. The Gibneys insisted on adding a provision to protect them from a drop in property values. Their language, to which the Pilli-fants agreed, provided that the contract was “conti[n]gent upon this property appraising for no less than $620,000 to be conducted by a local appraiser.” Pursuant to the contract, the Gibneys escrowed a $124,000 deposit.

Before closing, the Gibneys obtained a $560,000 appraisal. Convinced that the property was worth more, the Pillifants secured a $635,000 appraisal. Notwithstanding the second appraisal, the Gibneys refused to close and terminated the contract because the property appraised at less than $620,000. The Pillifants sued for breach of contract and sought to recover the deposit as liquidated damages.

The Pillifants argued to the trial court that the appraisal contingency was ambiguous. In their view, it did not specify the parties’ respective rights or duties. The Pillifants claimed that the Gibneys drafted the provision; thus, it should be construed against them. See City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla.2000). The Pillifants contended that any appraisal of $620,000 or more obligated the Gibneys to close. The Gibneys responded that they could terminate the contract if any appraisal valued the property at less than $620,000. The trial court allowed parol evidence about the parties’ intent and conduct relating to the contingency.

Ultimately, the trial court rejected the Gibneys’ argument, ruling that the Pilli-fants’ $635,000 appraisal satisfied the contingency, that the Gibneys breached the contract by failing to close, and that the Pillifants were entitled to the Gibneys’ deposit. The Gibneys appealed. We review the trial court’s interpretation of the contract de novo. Leopold v. Kimball Hill Homes Fla., Inc., 842 So.2d 133, 136 (Fla. 2d DCA 2003).

Absent an ambiguity, “ ‘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.’ ” Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1003 (Fla. 2d DCA 1995) (quoting Acceleration Nat’l Serv. Corp. v. Brickell Fin. Servs. Motor Club, Inc., 541 So.2d 738, 739 (Fla. 3d DCA 1989)); see Waksman Enters., Inc. v. Oregon Props., Inc., 862 So.2d 35, 40 (Fla. 2d DCA 2003). Although inartful, the appraisal contingency is not ambiguous. In our view, “appraising for no less than $620,000” means that no appraisal may be less than $620,000. The Pillifants’ $635,000 appraisal did not obligate the Gib-neys to close; the property also appraised for the lesser value of $560,000. The appraisal contingency allowed the Gibneys to terminate the contract if any appraisal valued the property at less than $620,000.

In Emergency Associates, we held that the phrase “five (5) square miles,” in a provision prohibiting the seller from practicing medicine within a certain area, was not ambiguous, and that the trial court erred in receiving extrinsic evidence to vary the contract terms by interpreting the phrase to mean “within a five-mile radius.” 664 So.2d at 1003. In Metro Development Group, L.L.C. v. 3D-C & C, Inc., 941 So.2d 11, 12 (Fla. 2d DCA 2006), we held that an option contract requiring payment “on or before the forty-fifth day after the effective date” was not ambiguous as to whether “day” could mean “business day.” Here, the trial court erred in receiving extrinsic evidence to vary the contract terms by interpreting the phrase, as urged by the Pillifants, to mean “contingent upon any appraisal of at least $620,000.”

Perhaps the Pillifants subjectively thought they were bargaining for their view of the appraisal contingency. But, they did not reserve a right to a competing appraisal nor did they provide that any such appraisal would be controlling. As the facts establish, the Gibneys’ appraisal was less than $620,000. The contingency triggering an obligation to close did not occur. The Gibneys could walk away without penalty. We will not “rewrite a contract or interfere with the freedom of contract or substitute [our] judgment for that of the parties ... in order to relieve one of the parties from the apparent hardship of an improvident bargain.” Beach Resort Hotel Corp. v. Wieder, 79 So.2d 659, 663 (Fla.1955); Metro Dev. Group, 941 So.2d at 14.

Reversed and remanded with directions.

VILLANTI, J., and FULMER, CAROLYN K, Senior Judge, Concur.


text:
    JUSTICE ADMINISTRATION COMMISSION, Petitioner, v. Mark A. GOETTEL, Esq., Respondent.
    No. 2D09-5162.
    District Court of Appeal of Florida, Second District.
    April 30, 2010.
    Christian D. Lake, Assistant General Counsel, Tallahassee, for Petitioner.
    Mark A. Goettel, pro se.
   CASANUEVA, Chief Judge.

The Justice Administration Commission seeks certiorari relief from an order to pay attorney Mark A. Goettel for his appointed representation of a mother during a termination of parental rights proceeding. The mother surrendered her rights to her child in writing. Section 29.007, Florida Statutes (2008), authorizes payment for an attorney’s services only when the client has a right to court-appointed counsel. At issue is whether the mother had a right to court-appointed counsel during these proceedings. We hold that she did not. Florida law does not provide for court-appointed counsel in termination proceedings when the parent has voluntarily surrendered her rights to the child.

The trial court appointed Mr. Goettel to represent the mother at the beginning of dependency proceedings. One year and four months later, the mother signed a written surrender of her child and filed a petition for termination of parental rights based upon that written surrender. Shortly thereafter, the trial court appointed Mr. Goettel to continue his representation through the termination proceedings. After termination was final, Mr. Goettel sought payment from the JAC for his services in both proceedings. The JAC paid him for the dependency proceedings but refused to pay for the termination proceedings. Mr. Goettel filed a motion for compensation in the trial court. The trial court ordered the JAC to pay Mr. Goettel $1000 for his services during the termination proceedings.

The JAC argues that it only has authority to pay private attorneys who are “appointed by the court to represent indigents or other classes of litigants in civil proceedings requiring court-appointed counsel in accordance with state and federal constitutional guarantees and federal and state statutes.” § 29.007(2) (emphasis added). If the mother had a right to appointed counsel, then the JAC should pay Mr. Goettel for his representation in the termination proceedings.

Section 39.807(l)(a), Florida Statutes (2008), provides that an indigent parent has a right to court-appointed counsel in a termination proceeding. But subsection (l)(d) states that subsection (l)(a) “does not apply to any parent who has voluntarily executed a written surrender of the child and consent to the entry of a court order therefor.” Because the mother executed a written surrender, she had no right to appointed counsel for her termination proceeding. The trial court erred in ordering the JAC to pay for counsel’s representation when he was improperly appointed for the termination proceeding.

To warrant certiorari relief, the JAC must demonstrate that the trial court’s order was a departure from the essential requirements of law that resulted in a miscarriage of justice. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). In a similar case, the Fifth District held that an order erroneously requiring the JAC to pay for improperly appointed counsel met this stringent standard. Justice Admin. Comm’n v. Harp, 24 So.3d 779 (Fla. 5th DCA 2009). We agree that this error warrants relief and quash the order on review.

Petition for writ of certiorari granted; order quashed.

NORTHCUTT and MORRIS, JJ., Concur.


text:
    David Ray McCORMICK, Appellant, v. Bridget M. SHANNON, Appellee.
    No. 2D09-2362.
    District Court of Appeal of Florida, Second District.
    May 5, 2010.
    David Ray McCormick, pro se.
    No appearance by Appellee Bridget M. Shannon.
   CASANUEVA, Chief Judge.

In 2002, Bridget Shannon obtained a permanent injunction against David Ray McCormick for protection against repeat violence. In 2009, Mr. McCormick filed a motion to vacate the injunction order. He alleged that he had unfailingly complied with the injunction order, that he had no interest in contacting Ms. Shannon, and that the injunction prevented him from participating in certain prison work programs while under state supervision. The trial court denied the motion without a hearing. Mr. McCormick appealed, arguing that he should have been given an evidentiary hearing on his motion.

Due process requires a trial court to give a person moving to vacate an injunction a meaningful opportunity to be heard. Colarusso v. Lupetin, 28 So.3d 238 (Fla. 4th DCA 2010); Betterman v. Kukelhan, 977 So.2d 702 (Fla. 4th DCA 2008); Reed v. Reed, 816 So.2d 1246 (Fla. 5th DCA 2002); Madan v. Madan, 729 So.2d 416 (Fla. 3d DCA 1999). Because the trial court erred in summarily denying Mr. McCormick’s motion, we reverse the order on appeal and remand for further proceedings consistent with this opinion.

Reversed and remanded.

DAVIS and CRENSHAW, JJ., Concur.


author:
PER CURIAM.
     KNOLL, Justice, WEIMER, J.,

text:
    In re John T. SCOTT.
    No. 2009-B-2364.
    Supreme Court of Louisiana.
    April 5, 2010.
   JjATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, John T. Scott, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The underlying facts of this matter are not in dispute, having been stipulated to by the parties.

Respondent represented John Kelly in a workers’ compensation matter. In December 2004, respondent reached a settlement agreement with the defendant which provided for a lump sum settlement of $75,000. The workers’ compensation hearing officer approved the settlement and ordered the funds disbursed to the client, as appropriate under the agreed settlement.

Instead of disbursing the entire amount as ordered, respondent deducted $9,500 as his fee and only disbursed $15,000 to Mr. Kelly. Respondent falsely informed Mr. Kelly that he was trying to secure the remainder of the $75,000 and converted those funds to his own use to pay his personal and business obligations.

Approximately three months later, Mr. Kelly became dissatisfied with respondent’s alleged failure to obtain the remaining funds and complained to the ^workers’ compensation hearing officer. When the hearing officer confronted respondent, he acknowledged that he had improperly retained Mr. Kelly’s funds. The hearing officer instructed respondent to pay Mr. Kelly the balance of the funds within fourteen days and to refund to Mr. Kelly the $9,500 in attorney’s fees he had deducted. Respondent complied.

DISCIPLINARY PROCEEDINGS

In April 2005, the workers’ compensation hearing officer filed a complaint against respondent with the ODC. In October 2008, the ODC filed one count of formal charges, alleging respondent’s conduct in the Kelly matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(c) (contingency fee agreements), 1.15 (safekeeping property of clients or third persons), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent answered the formal charges and denied any misconduct.

This matter proceeded to a formal hearing on the merits. The parties introduced a joint stipulation of facts, wherein respondent stipulated to the above facts and stipulated that he violated the Rules of Professional Conduct as alleged in the formal charges. Respondent also testified on his own behalf and on cross-examination by the ODC. In his testimony, respondent admitted that he “made a bad choice” when he converted Mr. Kelly’s settlement funds. Respondent explained that he was having financial problems at the time, primarily related to his law practice, but expressed remorse and contrition for his conduct and stated that he would not convert client funds to his own use in the future. He further testified that at the time of the 13conversion, his wife had just been diagnosed with uterine cancer, and he did not want to discuss his financial issues with her while she was undergoing medical treatment and did not want to ask her to sign documents to refinance their mortgage. Respondent also testified that his son was having shoulder problems, which could affect his chances of getting a swimming scholarship, and he was also experiencing his own shoulder problems and pain.

Hearing Committee Report

After considering the testimony presented at the hearing, the hearing committee accepted the joint stipulation of facts as its factual findings. The committee also found respondent’s testimony was credible. Based on these factual findings, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined respondent knowingly failed to disburse Mr. Kelly’s funds to him but did not do so with the intent to permanently deprive Mr. Kelly of his funds. Rather, the committee believed respondent would have disbursed all of the funds due Mr. Kelly, after he refinanced his house, even without being ordered to do so by the judge. The committee also believed respondent will not convert client funds in the future.

In aggravation, the committee found vulnerability of the victim and substantial experience in the practice of law (admitted 1984). In mitigation, the committee found the following factors: absence of a prior disciplinary record, timely good faith effort to make restitution, and a cooperative attitude toward the disciplinary proceeding.

|4The committee determined that respondent’s conduct was similar to the misconduct in In re: Keller, 08-1080 (La.12/12/08), 998 So.2d 40, wherein an attorney converted her client’s funds to her own use during a time of extreme stress and disruption caused by Hurricane Katrina. Likewise, in the instant case, the committee reasoned respondent was under extreme stress when his wife was diagnosed with uterine cancer and while he and his son were suffering from shoulder problems. The committee further found that “[r]espondent’s conduct was intentional and not negligent as in Keller

Despite the fact that the court imposed an actual period of suspension in Keller, the committee recommended that respondent be suspended from the practice of law for three years, fully deferred, subject to a three-year period of supervised probation.

The ODC filed an objection to the committee’s recommendation. The ODC asserted that a fully deferred suspension is too lenient for respondent’s misconduct and that the probationary period cannot exceed two years under the provisions of Supreme Court Rule XIX.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board accepted the hearing committee’s factual findings and application of the Rules of Professional Conduct. The board determined that respondent violated duties owed to his client, the legal system, and the legal profession. With respect to respondent’s mental state, the board found he acted intentionally, as opposed to knowingly, when he converted Mr. Kelly’s funds to his own use. However, the board agreed with the committee that respondent did not intend to permanently deprive Mr. Kelly of his money. | ...Furthermore, respondent’s intentional conduct caused actual harm to Mr. Kelly by depriving him of his funds for three months. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is disbarment.

The board found the following aggravating factors present: a dishonest or selfish motive, vulnerability of the victim, and substantial experience in the practice of law. The board found the following mitigating factors present: absence of a prior disciplinary record, personal or emotional problems, timely good faith effort to make restitution, a cooperative attitude toward the proceedings, imposition of other penalties or sanctions, delay in the disciplinary proceedings, and remorse.

After reviewing prior jurisprudence involving similar misconduct and mitigating factors, the board recommended respondent be suspended from the practice of law for three years, with all but six months deferred, followed by two years of supervised probation.

Although neither respondent nor the ODC filed an objection to the board’s recommendation, on February 24, 2010, we ordered briefing addressing the issue of an appropriate sanction. The ODC filed a brief; respondent sent a letter to the clerk’s office indicating that he would not be submitting a brief.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

lfiThe facts of this case are not disputed and have been stipulated by respondent. Essentially, respondent intentionally converted to his own use more than $50,000 of his client’s workers’ compensation settlement funds, and he intentionally misled his client about the status of the funds. Such conduct constitutes a violation of Rules 1.3,1.4,1.15, and 8.4(c) of the Rules of Professional Conduct, as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Because respondent has clearly engaged in misconduct, the sole question presented to the court is the appropriate sanction to be imposed. As in other conversion cases, we consult Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), to establish the baseline sanction. In Hinrichs, we determined that disbarment is appropriate in case involving the following conduct:

In a typical case of disbarment for violation of [Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.

| yApplying the guidelines of Hinriehs, we find the baseline sanction in this case is disbarment. Respondent acted intentionally and committed a dishonest act by misleading Mr. Kelly as to the status of his settlement funds. Additionally, he caused actual harm to Mr. Kelly by depriving him of a substantial amount of funds for over three months, and he only made restitution after being ordered to do so by the workers’ compensation hearing officer.

The mitigating factors present are: absence of a prior disciplinary record, personal or emotional problems, timely good faith effort to make restitution, a cooperative attitude toward the proceedings, imposition of other penalties or sanctions, delay in the disciplinary proceedings, and remorse. Considering the numerous mitigating circumstances, we will deviate downward from the baseline sanction of disbarment and impose a three-year suspension from the practice of law.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record and the brief filed by the ODC, it is ordered that John T. Scott, Louisiana Bar Roll number 14894, be and he hereby is suspended from the practice of law for a period of three years. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

KNOLL, J., dissents and would disbar respondent.

WEIMER, J., concurs in part and dissents in part and assigns reasons.

KNOLL, Justice,

dissenting.

Ill dissent and would disbar respondent.

WEIMER, J.,

concurring in part; dissenting in part.

| n While I agree a three-year suspension is appropriate, I would defer a portion of the suspension noting the hearing committee recommended the suspension be fully deferred and the disciplinary board recommended all but six months be deferred. I also note both the hearing committee and the disciplinary board specifically found that respondent did not intend to permanently deprive the elient of his money. While the actions of the respondent are clearly wrong and unacceptable, deferring a portion of his suspension would serve the purposes of the disciplinary system.

      . Chief Justice Kimball not participating in the opinion.

      . Respondent also testified that his financial problems were related to bank loans coming due and not medical bills.

      . In Keller, the court imposed a one-year suspension from the practice of law, with all but six months deferred, followed by one year of unsupervised probation with conditions.