author: SCALES, J.

text:
    U.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D17-633 & 3D17-293
    District Court of Appeal of Florida, Third District.
    Opinion filed October 3, 2018.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before LAGOA, LOGUE and SCALES, JJ.
   SCALES, J.

U.T., a juvenile, appeals two contempt orders and respective sentencings, entered on January 17, 2017, in which the trial court found that U.T. committed indirect contempt of court by his repeated violations of home detention orders. Because the trial court did not violate the statutory blueprint of chapter 985 of the Florida Statutes, as it relates to a juvenile who has been committed to the care and custody of the Florida Department of Juvenile Justice ("DJJ"), we affirm.

I. Relevant Facts and Procedural Background

On February 3, 2016, the trial court found U.T., then age fourteen, delinquent in five cases, involving the charges of petit theft (twice), strong arm robbery, burglary and resisting an officer with violence. Pursuant to section 985.441(1)(b) of the Florida Statutes, the trial court committed U.T. to DJJ at a "minimum risk nonresidential" restrictiveness level. Under the terms of the commitment, U.T. would live at home with his mother and attend a day treatment program at AMIkids Miami-Dade ("AMI").

U.T.'s behavior problems persisted after his commitment to DJJ. He stopped attending the AMI program. He was arrested again in May of 2016, on a new charge of grand theft (lower court case number J16-1474). At a pivotal hearing on June 20, 2016 - a docket sounding on U.T's new criminal charge - DJJ requested that the trial court place U.T. on home detention with an electronic monitor around his ankle. The trial court agreed to this procedure with the idea that once U.T.'s daily life became stable the electronic ankle monitor could be removed. At this hearing, the trial court asked U.T.'s counsel whether there was any reason the court should not impose home detention on U.T. U.T.'s defense counsel offered no objection. The trial court also set August 1, 2016, as the trial date on the grand theft charge. During the summer of 2016, however, U.T.'s behavior worsened.

From June 20, 2016 through August 1, 2016, U.T. routinely violated his home detention by leaving home. On July 5, 2016, U.T. cut off the electronic ankle monitor and went missing for almost a month. U.T. was back in court on August 1, 2016, and, again with no objection from U.T.'s counsel, the trial court entered a second home detention order, again with electronic monitoring. At this hearing, the trial court warned U.T. that U.T. could be held in contempt of court if U.T. continued violating court orders. Because U.T.'s family living situation was unstable, the trial court urged U.T.'s mother to establish a structured living environment for U.T., either at home or in another place, and to determine whether AMI would allow U.T. to return to its day treatment program.

The trial court's admonitions proved unsuccessful. From August 1, 2016 through September 7, 2016, U.T. continued to violate the August 1, 2016 detention order. Notwithstanding U.T.'s ungovernable behavior, at no time did DJJ hold an administrative transfer hearing pursuant to section 985.441(4) of the Florida Statutes. Rather, DJJ continued to file affidavits of violation for U.T.'s ongoing violations of the trial court's home detention orders; and, for the violations that occurred after August 1, 2016, these affidavits included a request that the trial court find U.T. in contempt and place U.T. in secure detention.

The trial court responded to these affidavits by entering a September 9, 2016 order directing U.T. to show cause why he should not be held in indirect criminal contempt for twelve alleged violations of the trial court's prior orders. On September 13, 2016, the trial court conducted a hearing on the contempt charges and found U.T. guilty of ten of the twelve charges. While the trial court deferred sentencing, the court, at the end of the hearing, admonished U.T. to follow the rules associated with the previously ordered home detention.

Yet, in the days after the September 13th hearing, U.T. committed additional home detention violations and, on October 7, 2016, U.T. picked up additional criminal charges of burglary, grand theft and resisting an officer without violence (lower court case number J16-2574). This behavior caused the trial court, on October 11, 2016, to issue a second show cause order alleging five additional violations of prior court orders. On October 28, 2016, the trial court started, but did not conclude, both (i) the deferred sentencing hearing based on the findings of the September 13th contempt hearing, and (ii) the second indirect contempt trial based on the trial court's October 11th show cause order. These proceedings continued on January 9, 2017, and the trial court ultimately found U.T. guilty of three of the five charges alleged in the October 11th show cause order.

At the conclusion of the January 9, 2017 hearing, the trial court entered a Judgment of Guilt-Contempt, memorializing its adjudication of the September 9, 2016 show cause order (from which the trial court found U.T. guilty of ten violations). In this order, the trial court sentenced U.T. to one hundred forty days of secure detention; however, factoring concurrent sentences for two of the ten counts, the net sentence for these violations amounted to one hundred twenty-five days. U.T. timely appealed this judgment (case number 3D17-293).

In its judgment adjudicating its second show cause order (involving the October 11, 2016 show cause order where the trial court found U.T. guilty of three additional violations), the trial court sentenced U.T. to twenty days of secure detention to run concurrently with the secure detention sentence related to the September 9, 2016 show cause order. U.T. timely appealed this judgment (case number 3D17-633). We granted U.T.'s motion to consolidate his two appeals.

II. Analysis

A. Introduction

On appeal, U.T. asserts that, because U.T. had been "committed" to DJJ pursuant to section 985.441(1)(b) of the Florida Statutes, U.T.'s only disciplinary remedy was for DJJ to conduct a transfer hearing pursuant to section 985.441(4). U.T. argues that the trial court lacked the statutory authority to enter the two home detention orders, and that the resulting contempt findings were therefore unlawful. U.T. further asserts that the alleged error - entering the home detention orders without the requisite statutory authority - is "jurisdictional" in nature, so as not to require any contemporary objections. Because we conclude that the subject home detention orders were authorized by the relevant provision of Chapter 985, we affirm on this basis, and therefore, do not reach U.T.'s argument that the alleged error can be raised for the first time on appeal.

B. Commitment Provisions of Chapter 985

At a disposition hearing on February 3, 2016, the trial court committed U.T. to the care and custody of DJJ for a "Minimum Risk Non-Residential Program." From that point forward, U.T's treatment and anticipated rehabilitation were governed by the provisions of chapter 985. Specifically, U.T.'s commitment was authorized by section 985.441(1)(b) of the Florida Statutes (2016). The general terms and conditions of commitment are outlined in section 985.455(3) of the Florida Statutes (2016).

If commitment does not succeed in rehabilitating a child, DJJ may invoke an administrative "transfer" option to find another facility or program to address the child's ongoing behavior problems. § 985.441(4), Fla. Stat. (2016). The trial court may agree to the transfer or hold a hearing to review the proposed transfer. Id. In this case, DJJ did not seek to transfer U.T. to another program after U.T. failed to attend AMI on a regular basis. U.T. argues that, because DJJ sought and obtained home detention of U.T., rather than a transfer to another rehabilitative program, the trial court violated chapter 985's commitment protocol when it complied with DJJ's request. Concomitantly, U.T. argues that because the goal of chapter 985 is the rehabilitation of a committed child, rather than punishment, the trial court's contempt orders violated the spirit of chapter 985.

C. Nonsecure detention provisions of Chapter 985

Chapter 985 does not give explicit instruction as to whether a court may place a committed child in secure or nonsecure detention. When U.T. appeared before the trial court on June 20, 2016, for a docket sounding on his new felony charge (J16-1474), however, he was not merely a child committed to DJJ's care. U.T. was also a juvenile facing a new grand theft charge. At this June 20, 2016 hearing, the trial court placed U.T. on home detention and ordered that he wear an electronic ankle monitor. Home detention, a form of nonsecure detention, is defined in section 985.03(18). "Detention care" means "the temporary care of a child in secure or nonsecure detention, pending a court adjudication or disposition...." § 985.03(18), Fla. Stat. (2016). In relevant part, this statutory provision defines "nonsecure detention" as:

... temporary, non-secure custody of the child while the child is released to the custody of the parent, guardian, or custodian in a physically nonrestrictive environment under the supervision of the department staff pending adjudication, disposition or placement. Forms of nonsecure detention include, but are not limited to, home detention, electronic monitoring.... Nonsecure detention may include other requirements imposed by the court."

§ 985.03(18)(b), Fla. Stat. (2016).

When the trial court conducted this June 20, 2016 hearing, U.T. was "pending a court adjudication" on the new felony charge. On August 1, 2016, when the trial court extended U.T.'s home detention due to repeated violations of the June 20 home detention order (including U.T.'s cutting off his electronic ankle monitor), U.T. was still "pending a court adjudication" in that felony case. In fact, case J16-1474 did not resolve until October 25, 2016, when the State dropped the charge; and U.T. was "pending a court adjudication" in two additional cases (J16-2574 and J16-2946) until those cases were disposed on February 22, 2017, when the trial court found U.T. delinquent in both cases.

Section 985.03(18) does not exclude the placement of a committed child such as U.T. from detention care, and U.T. has provided us with no authority for the proposition that the nonsecure detention expressly authorized by section 985.03(18)(b) is unavailable for juveniles who, like U.T., are also "committed" to DJJ. We read the plain and unambiguous language of section 985.03(18)(b) to authorize a trial court to order home detention to a committed child who has incurred a new criminal charge for which adjudication is pending. See DMB Inv. Tr. v. Islamorada, Vill. of Islands, 225 So.3d 312, 317 (Fla. 3d DCA 2017) (giving fresh expression to the well-established rule that, where a statute is plain and unambiguous, there is no occasion to resort to statutory interpretation).

III. Conclusion

U.T.'s repeated violations of trial court home detention orders were the source of the two judgments holding U.T. in indirect contempt of court. Chapter 985 grants the trial court contempt powers over a juvenile for violation of court orders. § 985.037, Fla. Stat. (2016). Because we conclude that the trial court's home detention orders - requiring U.T. to serve home detention with an electronic ankle monitor - were authorized by Section 985.03(18)(b), we affirm the findings of contempt and sentencing that resulted from U.T.'s violation of such orders.

Affirmed.

      See § 985.03(44)(a), Fla. Stat. (2016).

      Although the trial court had set August 1, 2016, as the date of trial on U.T.'s outstanding grand theft charge, the trial did not occur on this date. The State entered a nolle prosequi on this charge on October 25, 2016, after the victim and a witness failed to appear.

      On November 18, 2016, in yet another incident, U.T. was charged with battery (lower court case number J16-2946). On February 22, 2017, the trial court found U.T. delinquent in both J16-2574 (for the lesser included offense of petit theft only) and J16-2946.

      While not relevant to the issues in this appeal, we note that, while U.T. was serving his sentence for contempt, he pleaded guilty in three open delinquency cases, and the parties agreed that U.T. would be placed on a waiting list for commitment to a high-risk residential facility. Because U.T. would not be transported to this facility until his contempt sentence was complete, U.T. requested that the trial court mitigate his sentence. The trial court denied this request, but directed DJJ to advise the court when and if a placement at a high-risk residential facility became available during U.T.'s contempt sentence.

      The statute reads in relevant part:
      (1) The court that has jurisdiction of an adjudicated delinquent child may ...
      ....
      (b) Commit the child to the department at a restrictiveness level defined in s. 985.03. Such commitment must be for the purpose of exercising active control over the child, including, but not limited to, custody, care, training, monitoring for substance abuse, electronic monitoring, and treatment of the child and release of the child from residential commitment into the community in a postcommitment nonresidential conditional release program.
      § 985.441(1)(b), Fla. Stat. (2016).

      In 2018, the Florida Legislature amended section 985.03(18) to change "nonsecure detention" to "supervised release," eliminating home detention as a type of custody for a child subject to supervised release. Ch. 2018-86, § 2, Laws of Fla. Because the effective date of this amendment is July 1, 2019, this change has no effect on our adjudication.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Arnaldo VALLS, M.D., Petitioner, v. State of Florida, DEPARTMENT OF HEALTH, Respondent.
    No. 3D18-1825
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Patino & Associates, P.A., and Ralph G. Patino, Coral Gables, for petitioner.
    Christine E. Lamia (Tallahassee), Chief Appellate Counsel, for respondent.
    Before EMAS, LOGUE and LUCK, JJ.
   PER CURIAM.

INTRODUCTION

Dr. Arnaldo Valls petitions this court for review of a nonfinal agency action by the Florida Department of Health ("the Department"), which issued an Order of Emergency Restriction of License ("the Order") against Dr. Valls' license to practice as a physician performing suction-assisted lipectomy and fat transfer in the State of Florida. For the reasons that follow, we deny the petition for review.

BACKGROUND

Below is a summary of the factual allegations relied upon by the Department, as set forth in the Order on review:

On December 4, 2017, Dr. Arnaldo Valls performed a suction-assisted lipectomy and fat transfer, a surgical procedure commonly marketed and referred to as a "Brazilian Butt Lift." The Brazilian Butt Lift is a surgical procedure in which the patient undergoes liposuction of fat from the abdominal area, which is then injected into the gluteal area. Dr. Valls removed fat from the patient's abdomen and then turned the patient over to begin the transfer of fat to her gluteal area. As Dr. Valls was injecting fat into the patient's gluteal area, the patient's oxygen levels fell. Dr. Valls and the surgical team turned the patient over, began CPR and called emergency medical services. Miami-Dade Fire Rescue responded and transported the patient to the hospital. However, the patient could not be resuscitated and was pronounced dead.

Ten days later, an autopsy was performed on the patient. The medical examiner determined that the cause of death was fat embolism associated with liposuction and fat transfer. The medical examiner discovered the presence of fat emboli in the heart and lungs, and a hemorrhage of the right inferior gluteal vessel.

The Department thereafter requested Dr. Christopher Salgado, M.D., to conduct a review of this matter. Dr. Salgado is a board certified plastic surgeon with expertise in liposuction with fat transfer to the gluteal region. Based upon his review of the case (which included a review of the autopsy report and Dr. Valls' curriculum vitae), Dr. Salgado opined, inter alia :

• Dr. Valls' treatment of the patient fell below the minimum standard of care;
• Dr. Valls' treatment fell below the standard of care because he injected fat into the deeper plane rather than the superficial plane. In doing so, Dr. Valls injected fat into the inferior gluteal vein, which then traveled to the lungs, causing immediate cardiac arrest ;
• Dr. Valls received training in general surgery but not in plastic and reconstructive surgery. General surgical training does not include training in liposuction for fat injection;
• Dr. Valls did not receive sufficient training to be able to perform this procedure;
• Dr. Valls practiced outside the scope of his training when he performed this procedure on the patient;
• A reasonable physician with Dr. Valls' training and experience would not have performed this procedure.

Relying upon the autopsy findings and the expert review conducted by Dr. Salgado, the Order concluded that Dr. Valls' treatment of the patient failed to meet the minimum standard of care, resulting in a significant medical emergency and, ultimately, the death of the patient. The Department further concluded that, because Dr. Valls practiced outside the scope of his training in performing this procedure, the danger caused by Dr. Valls' continued unrestricted practice of suction-assisted lipectomy and fat transfer is likely to continue, posing an immediate serious danger to public health, safety or welfare.

On August 8, 2018, the Department issued the Order, signed by the State Surgeon General, which included the above-described allegations, findings of fact and conclusions of law. The Order restricted Dr. Valls' license to practice as a physician by prohibiting him from performing suction-assisted lipectomy and fat transfer in the State of Florida, pending a full administrative proceeding, concluding that any lesser restriction would be insufficient to stop the harm and protect the public from the immediate serious danger posed by Dr. Valls' continued unrestricted practice as a medical doctor.

DISCUSSION

Section 458.331(1)(v), Florida Statutes (2017), subjects a physician to discipline, including license restriction, for practicing beyond the scope permitted by law or accepting and performing professional responsibilities which the physician knows or has reason to know he or she is not competent to perform.

Section 120.60(6), Florida Statutes (2017) authorizes the Department to take emergency action to restrict a physician's license under the following circumstances and with the following safeguards in place:

(6) If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, the agency may take such action by any procedure that is fair under the circumstances if:
(a) The procedure provides at least the same procedural protection as is given by other statutes, the State Constitution, or the United States Constitution;
(b) The agency takes only that action necessary to protect the public interest under the emergency procedure; and
(c) The agency states in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. The agency's findings of immediate danger, necessity, and procedural fairness are judicially reviewable. Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.

Where such an order of emergency restriction has been issued by the Department, the licensee may seek immediate review of that nonfinal agency action by a petition for review filed with an appellate court. § 120.60(6)(c), Fla. Stat. (2018) ; § 120.68(1) - (2), Fla. Stat. (2018) ; Fla. R. App. P. 9.100(c)(3).

Where, as here, the order of emergency restriction is issued prior to a hearing, our review is limited to the four corners of the order itself, and every element necessary to its validity must appear on the face of the order. Nath v. Dep't of Health, 100 So.3d 1273, 1276 (Fla. 1st DCA 2012) ; Bio-Med Plus, Inc. v. Dep't of Health, 915 So.2d 669, 673 n. 3 (Fla. 1st DCA 2005) ; Witmer v. Dep't of Bus. and Prof'l Reg., 631 So.2d 338, 341 (Fla. 4th DCA 1994). The factual allegations in the order of emergency restriction must show the complained of conduct is likely to continue, the order is necessary to halt the emergency, and the order is sufficiently narrowly tailored to be fair. Kaplan v. Dep't of Health, 45 So.3d 19, 21 (Fla. 1st DCA 2010) ; Bio-Med Plus, 915 So.2d at 672.

We deny the petition for review of this nonfinal agency action, and hold that, on its face, the specific and detailed nine-page Order of Emergency Restriction amply demonstrates that Dr. Valls' continued performing of suction-assisted lipectomy and fat transfer would present an immediate, serious danger to public health, safety or welfare, and that this conduct is likely to continue in the absence of the Order. Robin Hood Group, Inc. v. Fla. Office of Ins. Reg., 885 So.2d 393, 396 (Fla. 4th DCA 2004) ; Broyles v. Dep't of Health, 776 So.2d 340, 341 (Fla. 1st DCA 2001). We further hold that the Order is narrowly tailored to be fair, as it does not prohibit Dr. Valls from performing all plastic surgery or all surgery in general; rather it restricts Dr. Valls' license by specifically prohibiting him from performing suction-assisted lipectomy and fat transfer. See Nath, 100 So.3d at 1276 ; Sanchez v. Dep't of Health, 225 So.3d 964 (Fla. 1st DCA 2017).

Petition denied.


text:
    R.M.V., Jr., a/k/a R.M.V., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D18-1156
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    R.M.V, Jr., a/k/a R.M.V., the Father, in proper person.
    Karla Perkins, Miami, for Department of Children and Families; Thomasina Moore and Laura J. Lee (Tallahassee), for Guardian ad Litem Program; Children & Youth Law Clinic, and Robert Latham and Kele Stewart, for N.V., the Minor Child, for appellees.
    Before SUAREZ, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Jimenez v. Dep't of Health & Rehab. Servs., 669 So.2d 340 (Fla. 3d DCA 1996).


text:
    N.A., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D18-1061
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018.
    N.A., the Mother, in proper person.
    Karla Perkins, Miami, for Department of Children and Families; Thomasina Moore and Laura J. Lee (Tallahassee), for Guardian ad Litem Program; Children & Youth Law Clinic, and Robert Latham and Kele Stewart, for N.V, the Minor Child, for appellees.
    Before SUAREZ, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Jimenez v. Dep't of Health & Rehab. Servs., 669 So.2d 340 (Fla. 3d DCA 1996).


author: LOGUE, J.

text:
    M.F., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2306
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

The juvenile defendant argues on appeal that the trial court erred by not finding procedural prejudice when it conducted a Richardson hearing to address an alleged discovery violation by the State. The trial court initially ruled that the State had inadvertently committed a discovery violation by not producing the property receipt for evidence which had been impounded at the scene. However, the transcript of the adjudicatory hearing demonstrates that after a subsequent sidebar conference, the court determined that the "document was provided in discovery. So there's no violation." The ruling that no violation occurred moots any inquiry into whether there was procedural prejudice.

Affirmed.

      Richardson v. State, 246 So.2d 771 (Fla. 1971).


text:
    Francisco X. MARTINEZ, Appellant, v. Maria Guadalupe VALERIO and Antonio Ortega, Appellees.
    No. 3D17-1731
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Yinet Pino P.A., and Yinet Pino, Miami; A. Fiallo Law Office, and Arnaldo Fiallo, for appellant.
    Cristobal D. Padron & Assoc. P.A., and Cristobal D. Padron, Hialeah, for appellees.
    Before SALTER, EMAS, and LOGUE, JJ.
    ON MOTION FOR REHEARING
   LOGUE, J.

Upon consideration of Appellant Francisco X. Martinez's Motion for Rehearing, we withdraw this Court's opinion issued June 27, 2018, based on the Supreme Court of Florida's opinion in Simmonds v. Perkins, 247 So.3d 397 (Fla. 2018), and substitute the following opinion in its stead.

Appellant sought review of the entry of an order dismissing his paternity petition under Tijerino v. Estrella, 843 So.2d 984 (Fla. 3d DCA 2003) ("A putative father does not have standing to seek to establish paternity of a child, where the child was born into an intact marriage, and where the married woman and her husband object to the paternity action."), without first conducting an evidentiary hearing to determine whether he had standing to maintain the petition. This Court affirmed.

In Simmonds, the Supreme Court of Florida disapproved Tijerino and unequivocally opined that "the presumption of legitimacy is rebuttable," and "does not bar an action to prove paternity at the outset." Simmonds, 247 So.3d at 403. Rather, to maintain a paternity petition where the presumption of legitimacy is in question, one must establish standing to bring the action; meaning "the biological father of a married woman's children has the right to bring an action to establish his parental rights as the father as long as he has 'manifested a substantial and continuing concern for the welfare of the children.' " Id. at 401, 402 (quoting Kendrick v. Everheart, 390 So.2d 53, 61 (Fla. 1980) ).

Accordingly, we withdraw this Court's opinion issued June 27, 2018, grant Appellant's Motion for Rehearing, and reverse and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

      The Supreme Court of Florida's opinion in Simmonds issued on June 28, 2018. On July 2, 2018, this Court issued an order directing the parties to address the impact of Simmonds. Appellees Maria Guadalupe Valerio and Antonio Ortega filed a Confession of Error in response.


text:
    C.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-267
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Carlos J. Martinez, Public Defender, and Stephen Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LINDSEY, JJ.
   PER CURIAM.

C.A., a juvenile, was charged by petition with committing strongarm robbery. At the conclusion of the adjudicatory hearing, C.A. moved for a judgment of dismissal, contending that the evidence did not support strongarm robbery or robbery by sudden snatching, but merely petit theft. The trial court agreed the evidence was insufficient to establish strongarm robbery, but sufficient to prove the lesser offense of robbery by sudden snatching. The trial court found C.A. delinquent, but withheld adjudication and placed C.A. on probation.

C.A. appeals the trial court's determination, asserting that the evidence did not establish robbery by sudden snatching, but only petit theft. We find this argument without merit. See A.M. v. State, 147 So.3d 98, 100 (Fla. 3d DCA 2014) (holding that robbery by sudden snatching "does not require that the offender use or threaten to use any force or violence in order to commit the crime of robbery by sudden snatching. In fact, no force whatsoever is required 'beyond that effort necessary to obtain possession of the money or other property' ") (quoting section 812.131, Fla. Stat. (2014) and Fla. Std. J. Inst. (Crim.) 15.4) ).

We also reject C.A.'s argument that the evidence established the victim consented to C.A.'s taking of the property. While there were inconsistencies in the evidence, such inconsistences presented questions of weight and credibility to be accorded the evidence. These issues were resolved by the trial court as the finder of fact, and we will not substitute our judgment for that of the factfinder. Miller v. State, 328 So.2d 544 (Fla. 3d DCA 1976). Viewing the evidence in a light most favorable to sustaining the trial court's determinations, we hold that the evidence was sufficient to conclude that the victim did not consent to the taking, and that a prima facie case of guilt was established for the crime of robbery by sudden snatching. J.H. v. State, 220 So.3d 508, 510 (Fla. 3d DCA 2017) (citing C.E.L. v. State, 995 So.2d 558, 560 (Fla. 2d DCA 2008) (approved, 24 So.3d 1181 (Fla. 2009) ).

Affirmed.

      See Fla. R. Juv. P. 8.110(k) (providing: "If at the close of the evidence for the petitioner, the court is of the opinion that the evidence is insufficient to establish a prima facie case of guilt against the child, it may, or on the motion of the state attorney or the child shall, enter an order dismissing the petition for insufficiency of the evidence.")

      We review de novo the trial court's denial of C.A.'s motion for judgment of dismissal. Importantly, in moving for a judgment of dismissal, C.A. "admits all facts and evidence adduced" at the adjudicatory hearing, and "all reasonable inferences that may be drawn from such evidence must be viewed in a light most favorable to the state." Espiet v. State, 797 So.2d 598, 601 (Fla. 5th DCA 2001). See also M.R. v. State, 101 So.3d 389, 392 (Fla. 3d DCA 2012) (applying same standard in a delinquency proceeding).


text:
    Renan VIART-SOTOLONGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1411
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Eric J. Eves, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and LOGUE and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See State v. Craycraft, 704 So.2d 593, 593 (Fla. 4th DCA 1997) (holding that a warrant was not necessary for officers' second "entry" into a property where exigent circumstances made the officers' first entry lawful, the evidence seized during the second entry was observed during the first entry, and "[t]he second 'entry' was clearly part of one continuous episode.")


author: ROTHENBERG, C.J.

text:
    Delbert Ellis AGUILA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1975
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018.
    Marcia J. Silvers, P.A., and Marcia J. Silvers, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and G. Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.
   ROTHENBERG, C.J.

The defendant, Delbert Ellis Aguila, appeals from a final judgment of conviction and sentence for two counts of sexual battery upon a child twelve years of age or older but less than eighteen years of age, by a person in familial or custodial authority in violation of section 794.011(8)(b), Florida Statutes (2013). The sole issue on appeal is whether the trial court abused its discretion by admitting Williams rule evidence of a collateral child molestation committed by the defendant while in familial authority. Finding no abuse of discretion, we affirm. See Brookins v. State, 228 So.3d 31, 37 n.6 (Fla. 2017) (providing that a trial court's ruling as to the admission of collateral crimes evidence is reviewed for an abuse of discretion); Beckman v. State, 230 So.3d 77, 84 (Fla. 3d DCA 2017) (same).

Facts and Procedural History

The defendant was charged with two counts of sexual battery upon A.C., a child twelve years of age or older but less than eighteen years of age, by a person in familial or custodial authority in violation of section 794.011(8)(b), and two counts of lewd and lascivious molestation of A.C. in violation of section 800.04(5)(c)2., Florida Statutes (2013). Prior to trial, the State filed a notice of intent to introduce Williams rule evidence of the defendant's other crimes, wrongs, or acts of child molestation under section 90.404(2)(b), Florida Statutes (2013). Specifically, the State sought to introduce the testimony of J.R., the defendant's former "stepdaughter."

At the hearings conducted on the State's notice of intent, the trial court focused, among other things, on the facts surrounding the collateral act of child molestation and the charged offenses.

The evidence presented at the hearing includes the following. The victim in the instant case, A.C., never met her biological father because he has been in prison for most of her life, and her mother has suffered from drug problems and instability during parts of A.C.'s life. The defendant and A.C.'s mother began living together when A.C. was two or three years old, and A.C. called the defendant "Dad." A.C.'s mother and the defendant had a son together when A.C. was four years old. Although the defendant moved out of the family home when A.C. was approximately six years old, he continued to financially support A.C., A.C's mother, and A.C.'s brother. A few years later, the defendant gained primary custody of A.C.'s brother, while A.C. continued to live with her mother. Despite living in separate homes, A.C. maintained a close relationship with her brother and the defendant, A.C. continued to call the defendant "Dad," and the defendant continued to financially assist A.C.

When A.C. was thirteen years old, the defendant, who was then forty-four years old, sexually assaulted A.C. for the first time. At that time, A.C. was overweight, lacked confidence, performed poorly in school, and did not have a good relationship with her mother. On the day of the assault, the defendant took A.C. and her brother to the defendant's mother's home, which A.C. had visited on prior occasions. When they arrived, no one was home, and A.C. and her brother began to watch television. After a while, the defendant called A.C. to the defendant's mother's bedroom and locked the door. While in the bedroom, the defendant pulled down A.C.'s pants and panties, pulled down his shorts, vaginally penetrated A.C. with his penis, pulled his penis out of A.C.'s vagina, and then he ejaculated.

The second assault occurred a few months later. The defendant and A.C.'s brother picked A.C. up from school, and they went to the defendant's mother's home. Once again, no one was home, the defendant called A.C. to his mother's bedroom, and like the first assault, the defendant vaginally penetrated A.C. with his penis, pulled out, and then ejaculated.

At the pre-trial hearing, the State presented the following evidence regarding the defendant's sexual assault upon another child within the defendant's familial authority, J.R. The defendant and J.R.'s mother began a relationship while the defendant was incarcerated. In 1992, after being released from incarceration, the defendant, who was twenty-three years old, moved in with J.R.'s mother, J.R., and J.R.'s younger siblings. J.R. considered the defendant to be her stepfather. J.R.'s mother, who was mentally unstable and a drug addict, could not financially provide for J.R. and her siblings. After the defendant moved in, he began to financially provide for J.R. and her siblings.

However, shortly after moving into J.R.'s home, the defendant began sexually assaulting J.R. When the sexual assaults began, J.R. was twelve years old, overweight, was doing poorly in school, lacked confidence, and did not have a relationship with her biological father because he had been incarcerated for most of her life. The first sexual assault occurred in the kitchen after J.R.'s mother and J.R.'s siblings had fallen asleep for the evening. The defendant pulled down J.R.'s pants and panties, pulled down his pants and underwear, penetrated J.R.'s vagina with his penis, pulled out his penis from J.R.'s vagina, and then he ejaculated.

The defendant continued to sexually abuse J.R. on a frequent basis until he impregnated her when she was sixteen years old. Shortly after J.A. gave birth to her son, she moved to Tampa, but continued to have contact with the defendant.

Following the hearings on the State's notice of intent to rely on Williams rule evidence, the trial court stated that it had considered both the similarities and differences between the collateral crimes evidence and the charged offenses, and found that they were "sufficient similarities within these cases ... to believe that the probative value of the evidence outweighs the prejudicial value." In making this determination, the trial court considered: (1) the ages of A.C. and J.R. when the alleged sexual assaults commenced; (2) the manner in which the alleged sexual assaults occurred; (3) A.C.'s and J.R.'s attributes when the sexual assaults commenced; (4) that the collateral crimes evidence and the charged offenses occurred while the defendant was in familial authority; and (5) that both A.C.'s and J.R.'s mothers relied on the defendant financially. The trial court, however, ruled that the collateral crimes evidence could not become a feature of the trial.

During the State's opening statement, the prosecutor made the following brief statement regarding the collateral crimes evidence:

Finally, you are going to hear from another witness, a woman named [J.R.]. Twenty years ago the defendant was in a relationship with [J.R.'s] mother and he was a stepfather to [J.R.]. She's going to tell you that when she was young the defendant sexually abused her. She does not know A.C. and A.C. does not know her and you will be able to consider her testimony to corroborate A.C.'s testimony about A.C.'s sexual abuse.

At trial, the State called Detective Rigau, who investigated the report that the defendant had sexually assaulted A.C.; A.C., who testified that the defendant vaginally penetrated her with his penis on two occasions; and J.R.

Prior to J.R.'s testimony, the trial court addressed with defense counsel and the prosecutor its limitation of the collateral crimes evidence and also gave the following cautionary instruction to the jury:

The evidence that you are about to receive concerning other crimes wrongs or acts allegedly committed by the defendant will be considered by you for the limited purpose of corroborating the testimony of A.C. and you shall consider it only as it relates to that issue. However, the defendant is not on trial for a crime wrong or act it [sic] is not include in the information.

Following this cautionary instruction, the State called J.R. as a witness over defense objection. The State's examination of J.R. was limited to when J.R. was twelve and thirteen years old. Therefore, the jury did not hear about the continuation of the defendant's sexual assaults upon J.R. or that the defendant impregnated J.R. when she was sixteen years old. J.R.'s entire testimony was as follows:

BY THE PROSECUTOR:
Q. [J.R.], can you introduce yourself to the jury.
A. Hi, [J.R.].
Q. How old are you, [J.R.]?
A. Thirty-five.
Q. What is you date of birth?
A. [Month and date], 1980.
Q. Where do you currently live, just the city?
A. Tampa.
Q. Do you work?
A. Yes.
Q. Do you know Delbert Aguila?
A. Yes.
Q. Going to ask if you see him in the courtroom and if you could point to him and identify him by an article of clothing that he's wearing?
A. Teal shirt.
[PROSECUTOR]: Thank you. Let the record reflect the witness has identified the defendant.
THE COURT: The record will so reflect.
Q. How do you know him?
A. He was my stepfather.
Q. When was he your stepfather?
A. When I was 12 through 18.
Q. Okay. Was he in a relationship with your mother at that time?
A. Yes.
Q. What year did that begin?
A. 1992.
Q. Do you want me to call him the defendant, Delbert?
A. The defendant.
Q. Okay. How old was he at that time?
A. Twenty-three.
Q. Did you know your biological father growing up?
A. No. I know who he was.
Q. Where was he when you were growing up?
A. In prison.
Q. In 1992, the defendant moved in with your mother and you?
A. Yes.
Q. Do you have siblings?
A. Yes, brother and sister.
Q. Can you describe what your mother was like during that time period?
A. She was an unfit mother. She didn't care about us. She used drugs.
Q. Who did you rely on to provide to [sic] you from around, 1992, 1993?
A. Either my grandmother or I would rely on him.
Q. What were you like at age 12 and 13.
A. Just no self-confidence.
Q. Was there a time the defendant did something to you that made you uncomfortable?
A. Yes. At 12 he had sex with me.
Q. Was this in Miami?
A. Miami.
Q. Do you remember the first incident? Describe for the jury please.
A. I was in the kitchen and everybody had gone to sleep already and he pulled me in the kitchen and he pulled down my underwear and he pulled down his underwear and he did it.
Q. Did he penetrate your vagina with his penis?
A. Yeah.
Q. Did he wear a condom?
A. No.
Q. Did he pull out and ejaculated?
A. Yeah.
Q. Did he say anything to you afterwards?
A. He told me don't tell your mom.
Q. Did this continue when you were 12 and 13?
A. Yeah.
Q. Did you at that time disclose this abuse to anyone?
A. No.
Q. Why not?
A. I didn't have anybody to tell.
Q. Have you ever met someone by the name of A.C.?
A. No.
[PROSECUTOR]: Thank you, no further questions.
THE COURT: Cross.
BY DEFENSE COUNSEL:
Q. Good afternoon, [J.R.].
A. Hello.
Q. You say this incident took place when you were 12 and 13 years old, correct?
A. Yes.
Q. I believe you said you are 35?
A. Yes.
Q. So that's 20 years, correct?
A. Yes.
Q. You remember a lot of details of what happened during that time, correct?
A. Yes.
Q. Actually, it makes you feel very emotional today?
A. Yes.
Q. And you never reported it to anyone at the time, correct?
A. No.
[DEFENSE COUNSEL]: I have no further questions.
THE COURT: Any redirect?
[PROSECUTOR]: No.

After the State rested, the defense called the defendant's mother. She testified that the defendant did not have a copy of her house key in 2013, when the charged offenses occurred.

At the conclusion of the case, the jury found the defendant guilty of the two counts of sexual battery, but found the defendant not guilty of the two counts of lewd and lascivious molestation. The defendant was sentenced, and this appeal followed.

Analysis

The defendant argues that the trial court abused its discretion by admitting the Williams rule evidence to corroborate A.C.'s testimony. Section 90.404(2)(b) provides that prior acts of child molestation are admissible in a criminal case in which the defendant is charged with a crime involving child molestation, and "may be considered for its bearing on any matter to which it is relevant." Section 90.404(2)(b)"broadly provides that evidence of the defendant's commission of other acts of child molestation is admissible regardless of whether the charged and collateral offenses occurred in the familial context or whether they share any similarity." McLean v. State, 934 So.2d 1248, 1259 (Fla. 2006).

However, despite the relaxed standard of admissibility in child molestation cases under section 90.404(2)(b), the Florida Supreme Court noted in McLean that the evidence of other acts of child molestation must be relevant and that the evidence "remains subject to weighing under section 90.403." Id. at 1259 ; see also Seavey v. State, 8 So.3d 1175, 1177 (Fla. 2d DCA 2009) (noting that under McLean, "[r]elevancy is 'the threshold question,' and the collateral crime's similarity to the charged offense is helpful to determine whether the evidence is relevant"). As the McLean Court explained:

[T]he similarity of the prior act and the charged offense remains part of a court's analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be "substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403.
The similarity of the collateral act of molestation and charged offense is a critical consideration for the trial court in conducting an appropriate weighing under section 90.403. The trial courts are gatekeepers in ensuring that evidence of prior acts of child molestation is not so prejudicial that the defendant is convicted based on the prior sexual misconduct.

McLean, 934 So.2d at 1259.

The McLean Court set forth several requirements that must be satisfied prior to the admission of other acts of child molestation under section 90.404(2)(b). In addition to finding that the evidence of other acts of child molestation is relevant, the trial court is required to determine that the evidence clearly and convincingly shows that the defendant committed the prior act of child molestation, see McLean, 934 So.2d at 1262, and the trial court must assess "whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice." Id. To provide future guidance to trial courts, the McLean Court instructed:

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.

Id. In addition to the above requirements, the trial court "must guard against allowing the collateral-crime testimony to become a feature of the trial," and "[i]f requested, the trial court shall give an appropriate cautionary instruction both at the time the evidence is presented and in its final charge to the jury." Id.

In the instant case, the trial court's admission of the collateral crimes evidence satisfied the requirements of McLean. First, the record clearly and convincingly established that the defendant committed the prior act of child molestation. Second, although the trial court permitted the State to introduce the collateral crimes evidence, the trial court limited the evidence at trial so that the probative value of the collateral crimes evidence would not be substantially outweighed by its prejudicial effect upon the jury. Third, the trial court weighed the similarities and differences between the charged crimes and the collateral crimes and concluded that there were sufficient similarities between the collateral crimes evidence and the charged offenses to render the collateral crimes evidence relevant to corroborate A.C.'s testimony, and that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.

The record clearly supports this finding because the charged offenses and the collateral crimes are strikingly similar. The evidence showed that both the collateral child molestation and the charged child molestation occurred within the familial context in which J.R. and A.C. considered the defendant to be their stepfather. Additionally, the collateral crimes victim (J.R.) and the victim in the instant case (A.C.) were approximately the same age (J.R. was twelve years old and A.C. was thirteen years old) when the alleged sexual assaults commenced; both J.R. and A.C. lacked self-confidence at that age; J.R's. and A.C.'s fathers were not present in their lives due to their incarcerations; J.R. and A.C. did not have a good relationship with their mothers and both mothers had either past or present drug abuse issues; J.R.'s and A.C.'s mothers became financially dependent on the defendant; and the defendant penetrated the vaginas of both victims with his penis but pulled out his penis prior to ejaculation.

Although the collateral crimes evidence and the charged offenses were allegedly committed twenty years apart, the intervening time is insufficient to render the collateral crimes evidence inadmissible. See McLean, 934 So.2d at 1263 (affirming introduction of a collateral child molestation under section 90.404(2)(b) that occurred fifteen years prior to the charged offenses); Delatorre v. State, 45 So.3d 817, 818 (Fla. 3d DCA 2010) (concluding that the trial court did not abuse its discretion by allowing the introduction of evidence that the defendant sexually assaulted his younger sister twenty years earlier ); Seavey, 8 So.3d at 1177 (finding that "the trial court did not abuse its discretion in determining that the collateral crimes evidence [admitted under section 90.404(2)(b) ] was relevant and that its probative value outweighed any danger of unfair prejudice," even though the collateral crimes occurred sixteen and twenty-five years prior to the charged crime of child molestation); Triplett v. State, 947 So.2d 702, 704 (Fla. 5th DCA 2007) (finding that the trial court did not abuse its discretion by introducing prior acts of child molestation where "[t]he previous acts or purported child molestation by Mr. Triplett shared numerous similarities with the charged offense"); Mendez v. State, 961 So.2d 1088, 1091 (Fla. 5th DCA 2007) ("Although the charged crimes and the uncharged crimes were not exactly the same, precise similarity is clearly not required when the collateral crime evidence is offered on an issue other than identity.").

In addition, as requested, the trial court provided the jury with a cautionary instruction prior to the introduction of the collateral crimes evidence, and the collateral crimes evidence did not become a feature of the trial. The State did not mention the collateral crimes evidence during voir dire; the State briefly mentioned the evidence during its opening statement; the State limited its examination of J.R. to when she was twelve and thirteen years old; and the state omitted evidence of the continued sexual assaults upon J.R. and her impregnation by the defendant at age sixteen; and the State's questioning of J.R. was short and to the point. The record also reflects that the State's closing argument did not focus on J.R.'s testimony or the collateral crimes evidence. We, therefore, conclude that the trial court did not abuse its discretion by admitting the collateral crimes evidence of the defendant's sexual assaults upon J.R.

Conclusion

Based on the above analysis, we find that the trial court did not abuse its discretion by admitting the collateral crimes evidence under section 90.404(2)(b) where the evidence was relevant to corroborate A.C.'s testimony; the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice; the trial court, as requested, gave the jury a cautionary instruction prior to J.R.'s testimony; and the collateral crimes evidence did not become a feature of the trial.

Affirmed.

      Williams v. State, 110 So.2d 654 (Fla. 1959).

      The defendant and J.R.'s mother were never married. However, between the ages of twelve and eighteen, J.R. considered the defendant to be her stepfather.

      During Detective Rigau's investigation, he asked A.C. to make a controlled call to the defendant. During the call, A.C. told the defendant that she thought she became pregnant after the last time they had sex. Shortly, thereafter, the defendant called A.C. back. The C.D. of those two calls were played for the jury without objection.

      As used in section 90.404(2)(b), "child molestation" includes, among other crimes, the sexual battery counts charged under section 794.011(8)(b) and the lewd and lascivious counts charged under section 800.04(5)(c)2. See § 90.404(2)(b) 2.

      Section 90.403 provides, in part: "Relevant 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."


author: Per Curiam.

text:
    Kimberly BRINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3586
    District Court of Appeal of Florida, First District.
    October 16, 2018
    Kimberly Brinson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant seeks review of an order denying postconviction relief rendered by filing with the clerk of the lower tribunal on June 12, 2017. Fla. R. App. P. 9.020(i). The notice of appeal, filed on July 25, 2018, failed to invoke the Court's jurisdiction in a timely manner. Fla. R. App. P. 9.140(b)(3). Accordingly, the appeal is dismissed. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Lewis, Wetherell, and Winokur, JJ., concur.


text:
    John J. DIGLIO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3183
    District Court of Appeal of Florida, First District.
    October 15, 2018
    John J. Diglio, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied as the Petitioner fails to allege that he made a timely request of counsel to file an appeal on his behalf and that counsel failed to do so. See State v. Trowell , 739 So.2d 77 (Fla. 1999).

Roberts, Rowe, and Ray, JJ., concur.


text:
    Buywade A. BABORAM, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM, O/B/O Gabriella D.M. JOSEPH, Appellee.
    No. 4D18-1375
    District Court of Appeal of Florida, Fourth District.
    October 17, 2018
    Buywade Baboram, Mirimar, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for appellee Department of Revenue.
   Per Curiam.

Affirmed . See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150 (Fla. 1980).

Warner, May and Forst, JJ., concur.


text:
    John F. KITTRELL, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, Respondent.
    No. 1D18-2517
    District Court of Appeal of Florida, First District.
    October 16, 2018
    John F. Kittrell, pro se, Petitioner.
    No appearance for Respondent.
   Per Curiam.

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

B.L. Thomas, C.J., and Kelsey and Winokur, JJ., concur.


text:
    Charles PEARCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1984
    District Court of Appeal of Florida, First District.
    October 16, 2018
    Charles Pearce, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The amended petition alleging ineffective assistance of appellate counsel is denied on the merits.

Rowe, Osterhaus, and Kelsey, JJ., concur.


text:
    Alberto ARREOLA-ALBA, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3083
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 19, 2018
    James S. Purdy, Public Defender, Daytona Beach, and John M. Sheldon, Assistant Public Defender, Daytona Beach, for Petitioner
    No appearance 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 July 31, 2018 order denying Petitioner's motion for post-conviction relief filed in Case No. 1999-34822-CFAES Judicial Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, EISNAUGLE and GROSSHANS, JJ., concur.


text:
    Miguel TRUJILLO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2333
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 19, 2018
    Miguel Trujillo, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We reverse the trial court's summary denial of Ground 1 of Appellant's Florida Rule of Criminal Procedure 3.850 Motion for Postconviction Relief because Appellant should have been afforded the opportunity to amend his facially insufficient claim. See Taylor v. State , 248 So.3d 280, 281 (Fla. 5th DCA 2018) ("Because [appellant] had not previously sought or been given leave to amend his rule 3.850 motion, and because the pleading deficiency in his motion is likely correctable, he should be given the chance to do so.") The trial court's order is otherwise affirmed.

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

COHEN, C.J., ORFINGER and EVANDER, JJ., concur.


text:
    T.M.F., a child, Appellant, v. STATE of Florida, Appellee.
    Case Nos. 5D17-2299 & 5D17-2300
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 19, 2018
    James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm, without discussion, the trial court's order withholding adjudication of delinquency and placing T.M.F. on juvenile probation for five counts of burglary of a conveyance, six counts of criminal mischief, and a single count of resisting a law enforcement officer without violence. We also affirm the trial court's finding that these new law violations, as well as a curfew violation, constituted violations of probation (VOPs) in two separate cases. However, because the VOP orders fail to conform to the oral pronouncement and fail to specify the conditions of probation T.M.F. violated, we remand for entry of new written orders specifying that T.M.F. violated condition 1 of the orders of probation, as well as the special condition imposing a curfew. See Rodriguez v. State, 777 So.2d 1175, 1175 (Fla. 4th DCA 2001) (holding the written probation revocation order "must conform to the trial court's oral pronouncement" (citing Robinson v. State, 763 So.2d 1058, 1059 (Fla. 4th DCA 1999) ) ); see also Manis v. State, 30 So.3d 586, 587 (Fla. 5th DCA 2010) (finding that the trial court in a VOP case "must specify in the written order or judgment what conditions the defendant violated" (quoting Mormon v. State, 976 So.2d 1188, 1189 (Fla. 5th DCA 2008) ) ); accord Kadyebo v. State, 15 So.3d 928 (Fla. 5th DCA 2009) (citing Young v. State, 4 So.3d 1265 (Fla. 5th DCA 2009) ).

AFFIRMED; REMANDED FOR ENTRY OF NEW ORDER.

ORFINGER, EVANDER and BERGER, JJ., concur.

      Case numbers 5D17-2299 and 5D17-2300 were consolidated for appeal.

      The trial court's written order on the motion to correct sentencing error was not in conformance with its oral pronouncements as it failed to mention the curfew violation.


text:
    Bernard WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3665
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 26, 2018
    James S. Purdy, Public Defender, and Glendon George Gordon, Jr., Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
    ON CONFESSION OF ERROR
   PER CURIAM.

Based upon Appellee's confession of error, with which we agree, we remand this cause with instructions for the trial court to render a written order on the issue of competency. See Davis v. State, 239 So.3d 202 (Fla. 5th DCA 2018).

REVERSED and REMANDED.

EVANDER, LAMBERT and EDWARDS, JJ., concur.


text:
    Terrell Eugene BATTLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4118
    District Court of Appeal of Florida, First District.
    October 24, 2018
    Terrell Eugene Battle, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied on the merits.

Roberts, Bilbrey, and Winsor, JJ., concur.


text:
    Paul AARONS, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-5133
    District Court of Appeal of Florida, First District.
    October 23, 2018
    Paul Aarons, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Leslie A. Healer, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is denied on the merits.

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


text:
    Keith A. HALPERN, Appellant, v. Nikoleta G. KOIKOS, Appellee.
    No. 1D17-792
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Keith A. Halpern, pro se, Appellant.
    No appearance, for Appellee.
   Per Curiam.

Appellant challenges the injunction against domestic violence entered January 26, 2017, after the final hearing held that same date. Appellant argues that the injunction was not supported by competent substantial evidence. However, after our order allowing Appellant to supplement the record with a transcript of the hearing or stipulated statement of the evidence, he did not do so. See Fla. R. App. P. 9.200(b)(4), (f)(2). Accordingly, we must affirm. Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150 (Fla. 1979) ; Murphy v. Blubaugh , 43 Fla. L. Weekly D1712, 252 So.3d 809 (Fla. 2d DCA 2018) ; Jackson v. Echols , 937 So.2d 1247 (Fla. 3d DCA 2006) ; Ricketts v. Ricketts , 790 So.2d 1265 (Fla. 5th DCA 2001) ; Ain v. Ain , 778 So.2d 1029 (Fla. 4th DCA 2001).

AFFIRMED .

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


text:
    Stacy Marie YORK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-217
    District Court of Appeal of Florida, First District.
    October 26, 2018
    Charlie Cofer, Public Defender, Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Steven E. Woods, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is DENIED on the merits.

Lewis, Makar, and M.K. Thomas, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. J.F., Father of J.M.F., a Child and H.K. Mother of J.M.F., a Child, Appellees.
    Case No. 5D18-3091
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 2, 2018
    Kelley Schaeffer, Appellate Counsel, Children's Legal Services, Bradenton, for Appellant.
    Heather Morcroft, Winter Park, for Appellee, J.F., Father of J.M.F.
    Divinne Smith, Orlando, for Appellee, H.K., Mother of J.M.F.
    Thomasina Moore, Statewide Director of Appeals and Joanna Summers Brunell, Appellate Counsel, Florida Statewide Guardian ad Litem Office, Tallahassee, for Guardian ad Litem Program.
   PER CURIAM.

The Department of Children and Families ("DCF") appeals an order terminating its supervision and the court's jurisdiction over J.M.F. ("Child"), J.F. ("Father"), and H.K. ("Mother"). We reverse because in entering the order, the trial court ignored the provisions of section 39.521(7), Florida Statutes (2018), which require DCF to maintain supervision and the court to retain jurisdiction over the parties until six months after reunification. See also Dep't of Child. & Fams. v. T.T., 42 So.3d 962, 964 (Fla. 5th DCA 2010). In this case, the court terminated supervision and jurisdiction less than two months after Child had been reunified with Father. Accordingly, we reverse and remand the portion of the order terminating DCF's supervision and the court's jurisdiction. See In Interest of S.E., 249 So.3d 764, 764 (Fla. 2d DCA 2018).

REVERSED and REMANDED.

COHEN, C.J., EVANDER and WALLIS, JJ., concur.


text:
    S. J. D., Petitioner, v. M. E. L., Respondent.
    No. 1D18-2519
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Joseph Alan Alvarez and Katherine B. Johnson of Zisser Law, PLLC, Jacksonville; and Michael M. Giel of Giel Family Law, P.A., Jacksonville, for Appellant.
    Boris Galustov, David P. Grigaltchik, and Adam Rowe of Grigaltchik & Galustov, P.A., Jacksonville, for Appellee.
   Per Curiam.

DENIED . See Simmonds v. Perkins , 247 So.3d 397 (Fla. 2018).

Lewis, Wetherell, and Winokur, JJ., concur.