author: LEWIS, J.

text:
    Justin PENNINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4182.
    District Court of Appeal of Florida, First District.
    April 30, 2010.

      Justin Pennington, pro se.
    Bill McCollum, Attorney General, Trisha Meggs Pate, Bureau Chief, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

Justin Pennington, Appellant, seeks review of an order denying his motion for postconviction relief after an evi-dentiary hearing. Among other things, he argues that the trial court erred in failing to find ineffective assistance of counsel where his attorney neglected to tell him the maximum sentence he could face when discussing a plea offer with him, and the State later withdrew the offer, cutting off his opportunity to accept it. For the reasons explained below, the trial court’s order is inadequate to show that the motion was properly denied. Accordingly, we re-verse and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

Appellant was sentenced to community control for burglary of an occupied structure. Later, the State filed a third amended affidavit charging him with violating community control by failing to remain confined to his approved residence and by committing several new law violations: aggravated assault; possession of a firearm by convicted felon; felony fleeing or attempting to elude a law enforcement officer; possession of a controlled substance; possession of a legend drug without a prescription (four counts); resisting an officer without violence; and petit theft. After an additional amendment to the affidavit, Appellant pled nolo contendere to violating community control, aggravated assault, felony fleeing or attempting to elude a law enforcement officer, possession of a controlled substance, possession of a legend drug without a prescription, and resisting an officer without violence. The trial court accepted the plea, revoked community control, and sentenced Appellant to fifteen years in prison for burglary of an occupied structure. For the remaining offenses, Appellant was sentenced to fifteen years of probation to follow his term of imprisonment. He did not appeal.

Thereafter, he timely filed a motion for postconvietion relief pursuant to Florida Rule of Criminal Procedure 3.850, arguing that his trial counsel rendered ineffective assistance in advising him not to accept a favorable plea offer from the State. According to Appellant’s motion and its attachments, the State offered to support concurrent sentences of five years’ imprisonment followed by two years’ probation in exchange for nolo contendere pleas as to violation of community control, aggravated assault, fleeing or attempting to elude a law enforcement officer, possession of a controlled substance, possession of new or legend drug, and resisting an officer without violence. The trial court held an evi-dentiary hearing on Appellant’s claim.

Evidence submitted at the hearing confirmed that the State had made such an offer and that Appellant and his counsel had discussed the offer at arraignment. When asked whether he had ever advised Appellant of the maximum sentence he could face as a result of all the charges, counsel testified that he would have discussed “whatever was in the plea agreement.” He admitted that the proposed plea agreement did not provide the statutory maximum for the violation of community control. The plea agreement itself reveals that the State provided the five-year statutory maximum on three offenses (aggravated assault, fleeing and eluding, and possession of a controlled substance) but neglected to indicate the statutory maximum for the violation of community control, possession of a new or legend drug, and resisting an officer without arrest. Thus, the plea agreement failed to mention that the total penalty Appellant could face based on the statutory maximum for each of the offenses listed was thirty-one years and sixty days’ imprisonment.

Based on counsel’s testimony that the information he shared about the statutory maximum was “whatever was in the plea agreement,” it appears that he failed to advise Appellant that his total exposure was thirty-one years, and not just the fifteen years listed on the proposed agreement. Notably, the thirty-one-year maximum includes only the offenses the State agreed to pursue if Appellant accepted the plea offer, not the remaining offenses that are listed on the third amended affidavit but not on the plea offer. Thus, Appellant was facing a maximum sentence of at least thirty-one years’ imprisonment when presented with an offer of five years’ imprisonment followed by two years of probation.

Appellant did not accept the offer at arraignment, and the State withdrew it fifteen days later. Counsel testified that Appellant was “agitated” at arraignment and did not want to accept the State’s offer. Counsel further testified that he was “going back and forth” with Appellant about it and that Appellant “got a little nervous about his attitude” as the arraignments proceeded. Counsel explained that he then told Appellant to “just wait and see what the evidence is all about.” Appellant testified that trial counsel advised him to reject the offer and that he did not discuss the statutory maximum with him until a year after arraignment. He further testified that he did not know the statutory maximum at arraignment but that he was planning to accept the offer until trial counsel advised him against it.

The trial court denied Appellant’s post-conviction motion, finding that it was within the broad range of reasonably competent performance for counsel to advise Appellant not to accept the offer until he could further investigate the case. The trial court also accepted counsel’s testimony that Appellant did not want to accept the State’s offer. Further, the trial court found that Appellant had not met his burden to show “that counsel misinformed him concerning the sentence he faced.” Appellant now seeks review of the denial of his motion.

II. Analysis

A. Standards Governing Claims of Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel is a mixed question of law and fact. Stephens v. State, 748 So.2d 1028, 1032 (Fla.1999). While appellate courts must give deference to trial courts factual findings, they must review trial courts application of law to facts de novo to ensure uniformity in determining what constitutes deficient performance. Id. at 1033-34. Factual findings are reviewed for competent, substantial evidence. Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997). Additionally, the defendant has the burden to prove a claim of ineffective assistance of counsel at an evidentiary hearing on a Rule 3.850 motion. Williams v. State, 974 So.2d 405, 407 (Fla. 2d DCA 2007). Once the defendant presents evidence to support the claim, however, the State has a burden to present contradictory evidence. Id.

To prove a claim for ineffective assistance of counsel, a defendant must show that trial counsels performance was deficient and that the deficiency was prejudicial to the defendant. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The deficiency prong requires the defendant to establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. Id. at 688, 104 S.Ct. 2052. There is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. In determining whether an attorney’s performance was deficient, courts should make “every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Evans v. State, 975 So.2d 1035, 1043 (Fla.2007). The prejudice prong requires the defendant to establish “a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. When the defendant fails to establish either Strickland prong, it is unnecessary to consider the other. Waterhouse v. State, 792 So.2d 1176, 1182 (Fla.2001).

B. The Performance Prong of Strickland

The specific deficiency at issue in this case is trial counsel’s failure to advise his client of the statutory maximum when discussing a plea offer. Appellant correctly notes that an attorney must advise a client of the statutory maximum before advising the client to reject or accept a plea offer. See Williams v. State, 924 So.2d 897, 898 (Fla. 1st DCA 2006) (finding an ineffective assistance of counsel claim facially sufficient where the defendant alleged that counsel advised him to reject a plea offer without first advising him of the statutory maximum); Tidwell v. State, 844 So.2d 701, 702 (Fla. 1st DCA 2003) (same); Fla. R.Crim. P. 3.171(c)(2) (providing that defense counsel shall advise the defendant of all plea offers and “all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant”). In at least two cases, Williams v. State, 924 So.2d at 898, and Tidwell v. State, 844 So.2d at 702, this Court has required an evidentiary hearing where the defendants alleged (1) that their attorneys advised them to reject plea offers without first informing them of the maximum possible sentences they faced, (2) that they would have accepted the plea offers had they been advised of the statutory maximum, and (3) that they ultimately received harsher sentences than the ones proposed in the plea offers.

In Morgan v. State, 991 So.2d 835 (Fla.2008), the Florida Supreme Court confirmed that ineffective assistance of counsel claims based on advice to reject a plea offer are cognizable. The Morgan court also confirmed that defendants are entitled to relief on such claims when they allege and prove three factors: “(1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced, (2) the defendant would have accepted the plea but for counsel’s failures, and (3) acceptance of the plea would have resulted in a lesser sentence than was ultimately imposed.” 991 So.2d at 839-40. The Morgan decision is consistent with the supreme court’s earlier recognition, in Cottle v. State, 738 So.2d 963, 969 (Fla.1999), that “an inherent prejudice results from a defendant’s inability, due to counsel’s neglect, to make an informed decision whether to plea bargain.” See Morgan, 991 So.2d at 839-40. This language reiterates the established principle that it is a client’s, not an attorney’s, decision to either accept or reject a plea offer. See Cottle, 733 So.2d at 969.

Here, the trial court found that Appellant had “not shown that counsel misinformed him concerning the sentence he faced.” This finding does not address Appellant’s argument that his counsel’s ineffective assistance was based in part on his failure to advise him of the statutory maximum. It also does not take into account the shifting of the burden of proof once a postconviction defendant presents evidence to support a Rule 3.850 claim. Appellant did not allege that counsel gave him wrong information; rather, he alleged that counsel neglected to provide information necessary to full consideration of the plea offer. Appellant presented evidence to support his claim that counsel did not inform him of the statutory maximum in the form of his own testimony, trial counsel’s testimony, and the plea form. The State’s evidence did not refute Appellant’s evidence that counsel neglected to tell him the statutory maximum for at least the violation of community control and the two misdemeanors at issue in the third amended affidavit.

At the hearing, counsel explained why he did not advise Appellant to accept the offer at arraignment. However, he did not address why he failed to inform Appellant of the full statutory maximum when assisting him in making the decision of whether to accept the plea offer. This information was readily accessible to counsel and pertinent to Appellant’s decision.

Our precedent requires attorneys to inform their clients of the maximum sentences they may face when advising them as to whether to reject a plea offer. Although counsel in the instant case was advising his client to leave an offer open, rather than to reject it outright, knowledge of the statutory maximum was vital to an informed decision as to whether to accept the offer or leave it open, thus risking its withdrawal. Because Appellant’s evidence that counsel did not inform him of the statutory maximum for violating his community control sentence was unre-futed, we must reject the trial court’s finding that Appellant did not meet his burden on this issue. Because our precedent establishes that such information is vital to an informed decision regarding a plea offer, we also must reject the trial court’s conclusion that trial counsel performed reasonably when discussing the offer with Appellant.

Our conclusion that counsel’s performance was deficient does not end the inquiry, however. Appellant also must establish that he was prejudiced by this deficiency. See Waterhouse v. State, 792 So.2d 1176, 1182 (Fla.2001) (observing that Strickland requires a defendant to establish both prongs to prevail on a claim of ineffective assistance of counsel).

C. The Prejudice Prong of Strickland

As noted above, when an ineffective assistance of counsel claim arises out of a defendant’s failure to accept a plea offer, the prejudice prong requires a showing that, but for counsel’s deficient perform-anee, the defendant would have accepted the offer, which would have resulted in a lesser sentence than what was ultimately imposed. Morgan v. State, 991 So.2d 835, 839-40 (Fla.2008). The standard of proof is a “reasonable probability.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, to demonstrate prejudice under Morgan and Strickland, Appellant needed to show a reasonable probability that but for trial counsel’s failure to advise him of the statutory maximum, he would have accepted the State’s offer, which involved a lesser sentence than the one he ultimately received. See Morgan, 991 So.2d at 839-40; Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Here, the trial court found that Appellant had not established prejudice because he told counsel at arraignment that he did not want to accept the State’s offer. While the trial court was entitled to accept counsel’s testimony that Appellant did not want to accept the offer, this testimony does not settle the issue. The key issue is whether there is a reasonable probability that Appellant would have accepted the offer had he been informed of the statutory maximum. Appellant’s desire not to accept the offer when he was inadequately informed of the risk of not accepting it is unremarkable. The trial court’s order does not specifically address whether Appellant would have left the offer open after arraignment had he been advised of the statutory maximum. Consequently, it inadequately addressed the prejudice prong.

III. Conclusion

We conclude that the trial court erred as a matter of law in finding counsel’s failure to inform Appellant of the statutory maximum reasonable. Further, we conclude that the trial court failed to resolve conflicts in the evidence "with respect to the legal standard governing the prejudice prong in the instant case. Accordingly, we reverse and remand for additional findings on the prejudice prong, vacation of the order appealed from, and entry of a new order consistent with this opinion.

REVERSED and REMANDED with instructions.

VAN NORTWICK and ROWE, JJ., concur.

      . We have reached this decision without the benefit of argument from the State. Citing Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the State filed a notice that it would not file an answer brief unless requested to do so. This notice was improper because Toler concerns summary denials of motions filed under Rule 3.850, not denials issued after evidentiary hearings. See 493 So.2d at 491 (adopting discretionary standards for this Court’s approach to the "streamlined procedure for the handling of appeals from orders denying 3.850 motions without hearing " under Florida Rule of Appellate Procedure 9.140(g) (emphasis added)). Briefing is required in an appeal from a non-summary denial of a Rule 3.850 motion. Williams v. State, 24 So.3d 1252, 1252 n. 1 (Fla. 1st DCA 2009); accord Ketion v. State, 548 So.2d 778, 780 n. 5 (Fla. 1st DCA 1989) (noting, after excusing the State from filing an answer brief in an appeal from a denial of a petition for writ of habeas corpus, that ''[cjomplete briefing is appropriate where a motion for post-conviction relief is disposed of after an evi-dentiary hearing”).

      . The details of the additional amendment are not relevant to this appeal because the amendment occurred after the time frame relevant to counsel's alleged ineffective assistance.

      . Because Appellant was on community control for burglary of an occupied structure, a second-degree felony, the maximum sentence he could face for violating community control was fifteen years in prison. See §§ 921.002(1 )(g), 810.02(3)(c), 775.082(3)(c), Fla. Stat. (2004). Resisting an officer without violence is a first-degree misdemeanor punishable by up to one year of imprisonment. §§ 843.02, 775.082(4)(a), Fla. Stat. (2005). Possession of a legend drug is a second-degree misdemeanor punishable by up to sixty days of imprisonment. §§ 499.03(3), 775.082(4)(b), Fla. Stat. (2005).

      . The third factor does not appear to be contingent on a finding that the trial court would have actually accepted the plea arrangement offered by the State. See Cottle v. State, 733 So.2d 963, 969 (Fla.1999).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Watson H. JERNIGAN and Voncille Jernigan, Appellees.
    No. 1D09-1716.
    District Court of Appeal of Florida, First District.
    May 5, 2010.
    Elliot H. Scherker, Elliot B. Kula, and Daniel M. Samson of Greenberg Traurig, P.A., Miami; Mark J. Upton of Daniell, Upton, Perry & Morris, P.C., Daphne, Alabama, for Appellant.
    Charles P. Young and Matthew M. Villmer of Emmanuel, Sheppard & Con-don, P.A., Pensacola, for Appellees.
   PER CURIAM.

AFFIRMED. Fla. Farm Bureau Cas. Ins. Co. v. Mathis, 33 So.3d 94 (Fla. 1st DCA 2010).

VAN NORTWICK, LEWIS; and ROWE, JJ., concur.


text:
    KENDALL 162 AVENUE CORPORATION, d/b/a Sedamo’s Supermarket No. 29, Petitioner, v. Carol PINEDA, Respondent.
    No. 3D10-936.
    District Court of Appeal of Florida, Third District.
    May 5, 2010.
    Angones, McClure & Garcia, and Frank Angones; Billbrough & Marks, and G. Bart Billbrough, for petitioner.
    Friedland Law Group, and Jonathan R. Friedland, for respondent.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   PER CURIAM.

Petitioner seeks a writ of prohibition to disqualify the trial court from continuing to preside over this action. The petitioner’s motion to disqualify the trial judge rested on the fact that petitioner’s counsel had sued the trial judge during the course of a recent judicial election.

As the record demonstrates, and as the respondent’s counsel has appropriately agreed, the motion to recuse should have been granted. See Siegel v. State, 861 So.2d 90 (Fla. 4th DCA 2003). As such, we grant prohibition.

Prohibition granted.


author: WELLS, Judge.

text:
    Jose Manuel ALCARAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-798.
    District Court of Appeal of Florida, Third District.
    May 5, 2010.
    Yveline F. Paul, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

Affirmed. See Canseco v. State, — So.3d —, 2010 WL 1609796 (Fla.2010); State v. Green, 944 So.2d 208, 219 (Fla.2006) (providing a two year grace period, or through October 26, 2008, for all those whose cases were already final, to challenge a plea made without advice regarding deportation consequences).


author: LAGOA, J.

text:
    Dana CHILD, Appellant, v. Amy L. CHILD, Appellee.
    No. 3D08-3237.
    District Court of Appeal of Florida, Third District.
    May 5, 2010.

      DeVane & Dorl and William N. DeVane, Jr., Marathon; Greene Smith and Cynthia L. Greene, for appellant.
    Hershoff, Lupino & Yagel and Jay A. Hershoff and Jessica B. Reilly, Tavernier, for appellee.
    Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

Dana Child appeals from the final judgment dissolving his marriage to Amy Child. Although we affirm the trial court’s ruling that the husband’s income was greater than he reported, the trial court’s determination concerning imputation of a specific amount of additional income to the husband, as well as the trial court’s ruling that the husband obtain term life insurance to secure the alimony award, were not based upon competent, substantial evidence. We, therefore, reverse those portions of the judgment. We must also reverse the trial court’s awards of permanent periodic alimony and retroactive support because they are based upon the trial court’s incorrect determination of the husband’s income. With respect to these awards, we direct the trial court to recalculate the amount of the awards based upon reconsideration of the husband’s imputed income. In all other respects, we affirm the final judgment.

A. IMPUTATION OF INCOME

As to the imputation of income, we disagree with the husband’s contention that the record does not contain the required evidence or that the trial court did not make sufficient factual findings to support its conclusion that he is underemployed or concealing his true income. It is within the trial court’s discretion to impute income to a spouse in order to determine the support awards. See §§ 61.08(2), 61.30(2)(b), Fla. Stat. (2008). In addition, “Florida case law has long recognized that self-employed spouses, in contrast to salaried employees, have the ability to control and regulate their income. Their testimony, tax returns, and business records accordingly may not reflect their true earnings, earning capability, and net worth.” Ugarte v. Ugatte, 608 So.2d 838, 840 (Fla. 3d DCA 1992).

Here, the husband is a self-employed marine electronic technician, reporting a gross monthly income of $1759. He has been in this business for the past twenty years and operates his business with minimal cost at a property owned by his sister. He does not advertise his services and obtains customers based on referrals. The husband testified that he charges $85 an hour for installation of equipment, but sometimes does not charge for other business-related work. Although he was unable to testily as to the number of hours he worked per week, he admitted that if he worked two hours a day, he could make $850 a week. The husband does not have separate bank accounts or credit card accounts for his personal and business expenses. In addition, there was evidence and the husband’s testimony that he paid his monthly credit card bill in full, and during the pendency of the divorce proceedings from 2005 until the 2008 trial, he voluntarily paid the mortgage and expenses for the marital home where his wife and two children reside. The household expenses totaled approximately $1300 a month. He also voluntarily paid approximately $500 in monthly expenses for the parties’ two minor children. The credit card bills varied from approximately $3000 to $15,000 a month. The husband submitted tax returns showing a reported range of gross income from $13,004 to $27,772. In his latest financial statement, he stated that his monthly living expenses are $1749.33 greater than his net monthly income of $1449.

This record justifies the trial court’s conclusion that the husband’s financial documents and testimony did not demonstrate the accuracy of his reported income and that the negative cash flow, which the trial court concluded was not satisfactorily explained, supports a ruling that the husband’s income was greater than he reported. See Tomaszewski v. Tomaszewski, 793 So.2d 1156 (Fla. 4th DCA 2001); Beniaminov v. Beniaminov, 789 So.2d 494 (Fla. 3d DCA 2001); Johnson v. Johnson, 725 So.2d 1209 (Fla. 3d DCA 1999); Bromson v. Dep’t of Revenue, 710 So.2d 154 (Fla. 4th DCA 1998); Silberman v. Silberman, 670 So.2d 1109 (Fla. 3d DCA 1996); Ugarte, 608 So.2d at 838. Based on this evidence, we affirm the trial court’s ruling.

We find merit, however, in the husband’s argument that the record lacks competent, substantial evidence to support the trial court’s imputation of the specific amount of an additional $3000 in monthly income to the husband. At trial, the court did not explain how it arrived at this figure, and the final judgment and the record do not disclose any basis for finding that the husband actually earned or is capable of earning $3000 in additional income each month. We therefore must reverse the trial court’s ruling as to this specific amount. See Ponce, 997 So.2d at 1120; Griffin v. Griffin, 993 So.2d 1066 (Fla. 1st DCA 2008); Narcis v. Nanis, 707 So.2d 936 (Fla. 3d DCA 1998). On remand, the trial court shall reconsider the amount of the husband’s imputed income.

B. LIFE INSURANCE

As to the life insurance, the husband argues that the trial court erred in requiring him to obtain insurance based on the absence of evidence of special circumstances and the absence of evidence as to the cost, amount, or availability of such insurance. We agree only with the latter contention.

It is within the trial court’s authority to order the husband to provide term life insurance to protect the child support and alimony payments. See §§ 61.08(3), 61.13(l)(e), Fla. Stat. (2008); Sobelman v. Sobelman, 541 So.2d 1153, 1154 (Fla.1989). “[I]n determining whether to secure support awards, the trial court should consider the need for such insurance, the cost and availability of such insurance, and the financial impact upon the obligor.” Plichta v. Plichta, 899 So.2d 1283, 1287 (Fla. 2d DCA 2005). See also Byers v. Byers, 910 So.2d 336, 346 (Fla. 4th DCA 2005). Absent special circumstances, however, the trial court may not impose such requirement. See Massam v. Massam, 993 So.2d 1022 (Fla. 2d DCA 2008); Melo v. Melo, 864 So.2d 1268 (Fla. 3d DCA 2004); Frechter v. Frechter, 548 So.2d 712 (Fla. 3d DCA 1989). “ ‘Such special circumstances include a spouse potentially left in dire financial straits after the death of the obli-gor spouse due to ... ill health and/or lack of employment skills ... minors living at home, [and] supported spouse with limited earning capacity....’” Kotlarz v. Kotlarz, 21 So.3d 892, 893 (Fla. 1st DCA 2009) (quoting Richardson v. Richardson, 900 So.2d 656, 661 (Fla. 2d DCA 2005)).

We reject the husband’s contention that there was no showing of special circumstances to justify this provision of the judgment. Here, the record clearly indicates the requisite circumstances to support imposition of this requirement, including minor children residing in the home, the wife’s disability, her diminished earning capacity, and her dependence on the husband for financial support. See Massam, 993 So.2d at 1022; Davidson v. Davidson, 882 So.2d 418 (Fla. 4th DCA 2004).

We agree, however, that this requirement may not stand absent evidence or findings as to the cost, amount, or the availability of such insurance. See Massam, 993 So.2d at 1022; Rubinstein v. Rubinstein, 866 So.2d 80 (Fla. 3d DCA 2003); Zimmerman v. Zimmerman, 755 So.2d 730 (Fla. 1st DCA 2000); Schere v. Schere, 645 So.2d 21 (Fla. 3d DCA 1994). Accordingly, we reverse this provision of the final judgment. Because the trial court, on remand, must reconsider the husband’s imputed income and the resulting amount of permanent alimony and retroactive support awards, it shall also consider evidence as to the cost, amount, or availability of insurance.

For the foregoing reasons, the judgment is affirmed in part, and reversed in part, and remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

      . Because the trial court merely determined entitlement to attorney’s fees, but did not set an award amount, we lack jurisdiction to address the husband's contentions that the trial court erred in finding that the wife was entitled to attorney's fees. See Zuberer v. Zuberer, 28 So.3d 993 (Fla. 2d DCA 2010); Ponce v. Ponce, 997 So.2d 1120, 1122, n. 1 (Fla. 3d DCA 2008); Jacobs v. Jacobs, 868 So.2d 568 (Fla. 3d DCA 2004).

      . The financial statement includes $235 for children's expenses.

      . On remand, it is within the trial court's discretion to consider additional evidence. See Rodriguez v. Rodriguez, 958 So.2d 436, 437 n. 3 (Fla. 3d DCA 2007). This Court expresses no opinion as to whether the evidence on remand will support a determination of imputed additional income that is greater than, less than, or equal to the $3000 figure.

      . The record establishes that the wife is legally blind.


text:
    Ronald C. HAINES, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3107.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2010.
    Ronald C. Haines, Carrabelle, pro se.
    No appearance required for appellee.
   PER CURIAM.

Dismissed. See Gardner v. State, 23 So.3d 1189 (Fla. 2d DCA 2009).

GROSS, C.J., POLEN and LEVINE, JJ., concur.


author: ROTHENBERG, J.

text:
    J.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1270.
    District Court of Appeal of Florida, Third District.
    May 5, 2010.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and SALTER, JJ.
   ROTHENBERG, J.

The trial court withheld adjudication of delinquency, placed J.M. on probation, and ordered J.M. to serve fifteen days in secure detention after finding J.M. guilty of carrying a concealed firearm and possession of a firearm by a minor. J.M. appeals only the finding of guilt as to the charge of possession of a firearm by a minor. We affirm.

The facts are as follows. Officer Lopez was dispatched regarding a fight. When he arrived at the address provided, he observed four or five juveniles fleeing from the scene. Officer Lopez drove up alongside the juveniles and ordered them to stop. Three of the juveniles stopped, however J.M. continued to run, and Officer Lopez observed him remove a gun from his waistband and throw the gun underneath a parked car. J.M. was taken into custody, and the gun and magazine containing hollow point ammunition were recovered from beneath the car. Following J.M.’s arrest, he was given his Miranda warnings, which he voluntarily waived. J.M. told Officer Lopez that he found the gun when he was running away from an earlier fight and he picked it up and held onto it to protect himself. When asked what his date of birth was, J.M. responded that he was born on July 14, 1991, which made him sixteen years of age at the time of his arrest.

The sole issue raised by J.M. in this appeal is whether the trial court erred in admitting, over defense objection, the evidence as to J.M.’s age. J.M. argues on appeal that his statement regarding his age was an incriminating statement made in response to questioning by Officer Lopez prior to being advised of his Miranda warnings, and therefore this statement should have been suppressed.

We begin our analysis by noting that while it is clear that J.M. provided his date of birth in response to Officer Lopez’s inquiry, it is unclear whether the statement was made pre-or post-Miranda, as neither the State nor the defense asked the officer that question and there is no evidence in this record to indicate either way. Officer Lopez was asked if J.M. provided his date of birth and Officer Lopez testified that he did. When Officer Lopez was also asked if he read J.M. his Miranda rights, he testified that he read J.M. his Miranda rights per card and that J.M. voluntarily waived his rights and agreed to speak with him. He was not asked to specify the timing of these events. J.M. does not dispute that he was properly advised of his rights and that he voluntarily waived them. He merely argues, without any record evidence establishing the relevance of his argument, that prior to being asked any questions regarding his age, Officer Lopez was required to read him his rights.

Although the evidence is unclear as to whether J.M.’s statement regarding his date of birth was made pre- or post-Miranda, we conclude that even if it was made pre-Miranda, it was properly admitted. The Florida Supreme Court and the District Courts of Appeal in this state have routinely held that Miranda does not apply to questions designed to obtain basic booking information.

In Holland v. State, 773 So.2d 1065, 1073-74 (Fla.2000), the Florida Supreme Court found that the trial court did not abuse its discretion in denying Holland’s motion to suppress his statements to the police. The facts are as follows. After Holland was arrested, the police obtained his name and fingerprints. After obtaining this information, Holland was advised of his Miranda rights, and upon invoking his rights, the interview ceased. Several hours later, when the police determined that Holland had given them a false name (his fingerprints did not match the name Holland gave to the police), a detective went to Holland’s cell and asked Holland for his real name, which Holland provided. Holland moved to suppress this statement. The Florida Supreme Court, relying on this Court’s opinion in Avila v. State, 545 So.2d 450, 451 (Fla. 3d DCA 1989) (concluding that a question aimed at discovering the real name of a defendant is not an interrogation within the scope of Miranda ) and the Fifth District’s opinion in State v. McAdams, 559 So.2d 601, 602 (Fla. 5th DCA 1990) (holding that basic identification data, such as name, age, current address, and social security number, is not generally subject to Miranda), concluded that because the detective’s contact with Holland was to ascertain his real name, not to speak with him about the case, the trial court did not err in denying Holland’s motion to suppress his statements. See also Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (holding that routine booking questions do not violate the constitutional protection against self incrimination as they do not constitute interrogation); Allred v. State, 622 So.2d 984, 987 (Fla.1993) (finding that “routine booking questions do not require Miranda warnings because they are not designed to lead to an incriminating response; rather, they are designed to lead to essential biographical data,” and specifying that name, address, height, weight, eye color, date of birth, and current age are routine booking questions not requiring Miranda warnings).

J.M. argues that while basic booking information generally does not require Miranda warnings, where, as here, the defendant’s age “goes to the heart of the charged offense” (possession of a firearm by a person under the age of eighteen), Miranda warnings were required. This argument, however, was rejected by the Fifth District in McAdams, a case relied on by the Florida Supreme Court in Holland. In McAdams, the Fifth District rejected McAdams’ and co-defendant Harper’s claim that because Harper’s booking information (his address) was used in an investigative manner, it should have been suppressed. The Fifth District concluded that “[wjhile it is true that after the recorded conversation the address took on added significance, this does not mean that booking information otherwise appropriate should now be suppressed.” 559 So.2d at 602.

Likewise, the Fourth District in Timmons v. State, 961 So.2d 378, 380 (Fla. 4th DCA 2007), found that inquiries made by the officer after he arrested the defendant in a hotel parking lot for possession of marijuana regarding where the defendant was staying in the hotel did not require Miranda warnings. Although this information was used to further the officer’s investigation, which resulted in additional marijuana being found in Timmons’ room and Timmons being charged with possession with intent to sell, a more serious crime, the Fourth District noted that questions regarding basic identification data required for booking, such as name, age, current address, and social security number, are not subject to Miranda. The Fourth District also found that the fact this information was not obtained during the actual booking process made no difference. Id.

We, therefore, find that even if Officer Lopez obtained J.M.’s date of birth prior to reading him his Miranda rights, the trial court did not err in failing to suppress this statement. J.M.’s date of birth is basic biographical booking information, not requiring Miranda warnings. It is also immaterial that J.M.’s date of birth was obtained prior to the actual booking process. As the Fifth District aptly noted: “In any event, an address is the type of information that would be readily available through independent sources or would inevitably be discovered once the recorded conversation was reviewed.” McAdams, 559 So.2d at 602. J.M.’s date of birth not only would inevitably have been discovered during the booking process, it would have been required prior to the booking process because juveniles must be transported to the Department of Juvenile Justice and law enforcement officers are required to comply with additional requirements when dealing with juveniles. Even though J.M.’s age later took on an added significance, this does not mean that the information obtained should be suppressed because it was obtained prior to J.M. being advised of his Miranda warnings. J.M.’s age is the type of information law enforcement is required to obtain and inevitably would have been discovered. Accordingly, we find no error and we affirm the order under review.

Affirmed.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: COPE, J.

text:
    17315 COLLINS AVENUE, LLC, and Wavestone Properties, LLC, Appellants, v. FORTUNE DEVELOPMENT SALES CORP., Appellee.
    No. 3D09-2056.
    District Court of Appeal of Florida, Third District.
    May 5, 2010.
    Rehearing and Rehearing En Banc Denied May 5, 2010.

      Gray Robinson, P.A., and Monterey Campbell, III, Kristie Hatcher-Bolin, Lakeland, and Gary Carman, for appellants.
    Kenny Nachwalter, P.A., and Richard H. Critchlow, Christina M. Ceballos-Levy and Robert J. Alwine, II, Miami, for appellee.
    Before COPE, CORTIÑAS and ROTHENBERG, JJ.
   CORRECTED OPINION

COPE, J.

On consideration of the appellants’ motion for rehearing and rehearing en banc, the court withdraws its previous opinion and substitutes the following corrected opinion.

This is an appeal of a temporary injunction and an order granting leave to record a judgment. With some qualifications, we affirm.

I.

As stated in the parties’ earlier appeal:

Plaintiff Fortune Development Sales Corporation obtained a final judgment for $1,509,899 against defendant-appellant Wavestone Properties, LLC. The judgment was entered after a bench trial determining that Wavestone had breached an exclusive real estate listing agreement between Fortune, as broker, and Wavestone.
Wavestone and defendant-appellant 17315 Collins Avenue, LLC are parent and subsidiary companies. The subsidiary, 17315, owns real estate at 17315 Collins Avenue on which a condominium building is being developed. The parent company, Wavestone, owns the membership interests in 17315, and is the managing member of 17315.
In 2003, Wavestone and Fortune entered into the exclusive real estate listing agreement whereby Fortune would market and sell the condominium units. Wavestone later terminated that agreement. After a bench trial, the court found Wavestone had breached the contract. The court awarded $1,509,899 in damages.
Fortune initiated proceedings supplementary. See § 56.29, Fla. Stat. (2007). At a hearing, the trial court imposed a temporary injunction freezing the net proceeds from the closing of sales of the condominium units. The court also pierced the corporate veil and allowed the judgment against Wavestone to operate as a lien against the real estate owned by 17315.

Wavestone Properties, LLC v. Fortune Development Sales Corp., 978 So.2d 830, 830-31 (Fla. 3d DCA 2008). We affirmed the temporary injunction as to Wavestone, but reversed all relief against 17315 because of insufficient notice. Id. at 831-32.

On remand Fortune moved for injunc-tive and other relief and gave proper notice. By order dated June 24, 2009, the court imposed a temporary injunction enjoining 17315 from disbursing proceeds of the closing of sales of condominium units, net of existing debt. The court also authorized the recording of Fortune’s judgment as a lien against the real property of 17315. As clarified at oral argument, Fortune must release the judgment lien as to each condominium unit as closings occur. 17315 and Wavestone have appealed.

II.

The main question is whether the trial court erred by piercing the corporate veil in this case. “[T]he corporate veil may not be pierced absent a showing of improper conduct.” Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1121 (Fla.1984). We have said:

“[T]o pierce the corporate veil under Florida law, it must be shown not only that the wholly-owned subsidiary is a mere instrumentality of the parent corporation but also that the subsidiary was organized or used by the parent to mislead creditors or to perpetrate a fraud upon them.” In determining whether the corporate veil should be pierced, the relationship between the parent corporation and its subsidiary must be examined.

Ocala Breeders’ Sales Co. v. Hialeah, Inc., 735 So.2d 542, 543 (Fla. 3d DCA 1999) (citations omitted).

First, the record supports the determination that the two companies operated as alter egos. The actual owner, developer, and operating entity was 17315. Wavestone owns the membership interests of 17315 and is the managing member. Wavestone does not, however, conduct any operations, have any employees or payroll, or have any bank accounts. All expenses are paid by the subsidiary 17315. Both companies were single purpose entities which existed solely for the development of the 17315 property. The principal of Wavestone acknowledged that there was little distinction between the entities.

The next question is whether the parent Wavestone, used the subsidiary 17315 for an improper purpose. We conclude that the answer is yes.

In September 2003, 17315 purchased vacant land located at 17315 Collins Avenue in Miami-Dade County. At the time 17315 purchased the land, Wavestone owned seventy-five percent of the membership interests in 17315 and subsequently became the owner of one hundred percent of the membership interests. Wavestone is the managing member of 17315. Wavestone and 17315 planned to (and eventually did) build a high-rise condominium building.

In October 2003 Wavestone and Fortune entered into an Exclusive Agency Listing Agreement (“the Fortune Agreement”) whereby Fortune would be the exclusive sales agent for the condominium units in the building.

In November 2003, Wavestone terminated the Fortune Agreement. 17315 then entered into an Exclusive Agency Listing Agreement with a different company, Prodigy Development Sales, LLC (“the Prodigy Agreement”). The Prodigy Agreement contained an indemnification provision, whereby Prodigy agreed to indemnify Wavestone and 17315 for claims that Fortune might make as a result of the termination of the Fortune Agreement.

In February 2004, Fortune filed suit against Wavestone alleging breach of the Fortune Agreement. In October 2004, 17315 obtained a construction loan of approximately $47 million, secured by a mortgage on the property. At the same time, Wavestone obtained a mezzanine loan of $10 million (later increased to $13 million), the proceeds of which also went to 17315 for construction of the condominium project. 17315 acted as the developer, and ultimately constructed a condominium building consisting of twenty-three stories and 147 units.

In March 2007, the trial court entered judgment against Wavestone, and in favor of Fortune, for $1,509,889 for breach of the Fortune Agreement. Thereafter Fortune initiated proceedings supplementary to execution. See § 56.29, Fla. Stat. (2007).

In April 2008, Wavestone and 17315 invoked the indemnity provision of the Prodigy Agreement. Thereafter 17315 withheld $250,000 in real estate commissions from Prodigy at the closings on the sale of a number of condominium units. The purpose was to make funds available for partial payment of the amounts which Wave-stone owed Fortune under its judgment.

The condominium project encountered financial difficulties. Wavestone placed the $250,000 in 17315’s operating accounts. Thus the funds which had been intended for Fortune (and withheld from Prodigy) were instead taken and used for the condominium project.

In our view, Wavestone used the corporate entities for an improper purpose when it depleted the $250,000 amount. See Steinhardt v. Banks, 511 So.2d 336, 338-39 (Fla. 4th DCA 1987). Fortune was unable to reach these or any other proceeds of the closings, because its contract was with, and the judgment was against, Wavestone only, not 17315. Acting as manager of 17315, Wavestone was in a position first to create a fund within 17315 which was earmarked for Fortune but was beyond its reach. Wavestone then caused the same funds to be depleted by 17315 without paying the obligation. We affirm the trial court’s decision to pierce the corporate veil.

III.

The trial court also found that Fortune had been misled by Wavestone at the time that Fortune and Wavestone entered into the Fortune Agreement. Wavestone and 17315 argue that this finding is not supported by the record. Because we have affirmed the temporary injunction on the grounds stated in the previous section, we need not reach this particular issue.

The trial court also found that the mezzanine loan in this case amounted to a fraudulent conveyance. We specifically disapprove that determination. The sole purpose of Wavestone and 17315 was the development of this condominium property, and the proceeds of the mezzanine loan were disbursed to 17315 for that purpose.

17315 argues that it is impermissible to use a temporary injunction in this context. We disagree. This case is now in proceedings supplementary. A temporary injunction is a permissible remedy. See Tabet v. Tabet, 644 So.2d 557, 560 (Fla. 3d DCA 1994); Zeuda Corp. v. Grancolombiana Corp. Financiera, S.A., 610 So.2d 509, 510 (Fla. 3d DCA 1992); Warten v. Caguas Cent. Federal Sav. Bank, 567 So.2d 42 (Fla. 3d DCA 1990).

Finally, 17315 argues that the bond is inadequate. This issue was not presented during the evidentiary hearing. Our affir-mance of the order now before us is without prejudice to 17315 and Wavestone to file an appropriate motion in the trial court to increase the bond.

IV.

In conclusion, the temporary injunction is affirmed. We affirm the order allowing the imposition of the judgment lien against the property of 17315, with the express condition that Fortune must release the judgment lien as to each condominium unit as closings occur. Wavestone and 17315 may file a motion in the trial court to increase the bond. These rulings are effective immediately and will not be delayed by the filing of a motion for rehearing or other postdecision motion.

Affirmed.

      . The trial court subsequently entered an Agreed Charging Order against Wavestone's membership interests in 17315. See § 608.433(4), Fla. Stat. (2008).

       This court's previously-entered stay is vacated.


text:
    The GENCOM GROUP, Petitioner, v. GARCIA STROMBERG, LLC, et al., Respondent.
    No. 3D10-658.
    District Court of Appeal of Florida, Third District.
    May 5, 2010.
    Arnstein & Lehr LLP and Andrea Cox and Jeffrey B. Shapiro, Miami, for petitioner.
    David Ben Israel, for respondent.
    Before COPE, GERSTEN and SALTER, JJ.
   COPE, J.

This is a petition for writ of mandamus or certiorari which seeks to compel a ruling on the question whether the petitioner is required to proceed to arbitration. We conclude that the petition is well taken.

Garcia Stromberg, LLC (“the Architect”) is an architectural firm which entered into two contracts with RC Rose Island Hotel Company, Ltd. for architectural services. The contracts call for arbitration for dispute resolution. The contracts were signed by an officer of Rose Island. The contracts list petitioner, The Gencom Group, as the owner representative, but the contracts were not signed by Gencom.

The Architect also entered into a contract with The Logwood Hotel Development Co., Ltd. for architectural services. The contract calls for arbitration for dispute resolution. The contract was signed by Logwood’s managing director. The contract identifies Gencom as Logwood’s agent but was not signed by Gencom.

Disputes arose. The Architect filed a demand for arbitration with the American Arbitration Association (AAA) against various parties, including Gencom, Rose Island, and Logwood, among others.

Gencom filed an action in circuit court under subsection 682.03(4), Florida Statutes (2009), seeking a ruling that it was not obligated to arbitrate, and requesting a stay of the arbitration as to Gencom. The statute provides:

On application the court may stay an arbitration proceeding commenced or about to be commenced, if it shall find that no agreement or provision for arbitration subject to this law exists between the party making the application and the party causing the arbitration to be had. The court shall summarily hear and determine the issue of the making of the agreement or provision and, according to its determination, shall grant or deny the application.

Fla. Stat. § 682.03(4) (2009).

The trial court conducted a hearing. Gencom argued that it was not required to arbitrate because, among other things, Gencom did not sign the agreements containing the arbitration clauses. The Architect replied that under the facts of the case, Gencom fell into the exceptional situation in which a contract can be enforced against a nonparty. See generally Arthur Andersen LLP v. Carlisle, — U.S. —, —, 129 S.Ct. 1896, 1902, 173 L.Ed.2d 832 (2009); Liberty Communications, Inc. v. MCI Telecommunications Corp., 733 So.2d 571, 574 (Fla. 5th DCA 1999).

At the conclusion of the proceedings the trial court entered a written order which refused to stay the AAA proceeding, and stayed the circuit court proceeding pending the completion of arbitration. While the court’s oral pronouncement suggested that Gencom was not required to arbitrate, this point was not addressed in the written order.

Gencom is correct in saying that under the statute, it is entitled to a specific ruling stating whether it is, or is not, required to arbitrate. We therefore return the matter to the trial court for entry of an amended order addressing this issue. We express no opinion on the merits of the parties’ respective arguments. While we grant the petition, we are confident it will be unnecessary formally to issue our writ.

This ruling is effective immediately and its effectiveness will not be delayed by the filing of a motion for rehearing or other postdecision motion.

Petition granted.

       Gencom's request for a stay of the arbitration proceeding was a request for a stay as to Gencom only. As already explained, the Architect, Rose Island, and Logwood signed contracts containing arbitration clauses and, so far as this record reflects, those entities will proceed with the AAA arbitration.


author: DAMOORGIAN, J.

text:
    James F. MILLER, Ken Bastani and Centennial Bank, (as successor by merger with Marine Bank), Appellants, v. Gary KRESSER and Castles Construction and Development LLC, Appellees. Jerry Miller, as Trustee of the James F. Miller Irrevocable Trust, Ken Bastani and Centennial Bank, (as successor by merger with Marine Bank), Appellants, v. Gary Kresser, James F. Miller, Castles Construction and Development, LLC, Barbara Miller, and Castles Unlimted Inc., a Florida Corporation, Appellees.
    Nos. 4D09-759, 4D09-760.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2010.
    Rehearing Denied June 11, 2010.

      Norman L. Schroeder, II, of Norman L. Schroeder, II, P.A., Lake Worth, for appellant, James F. Miller.
    Rebecca M. Plasencia and Christopher N. Bellows of Holland & Knight LLP, Miami, for appellants, Ken Bastani and Centennial Bank.
    Brian M. O’Connell, Ashley N. Girolamo of Casey Ciklin Lubitz Martens & O’Con-nell, West Palm Beach for appellant, Jerry Miller, as Trustee of the James F. Miller Irrevocable Trust.
    Ronald M. Gaché and Scott A. Simon of Broad and Cassel, West Palm Beach, for appellee, Gary Kresser.
   DAMOORGIAN, J.

James F. Miller, Jerry Miller, as Trustee of the James F. Miller Irrevocable Trust, Ken Bastani, and Centennial Bank appeal a final judgment in proceedings supplementary. We reverse the portion of the final judgment in which the trial court terminated the trust’s spendthrift provision and allowed Gary Kresser to reach undistributed trust assets.

In April 2004, Elizabeth Miller established the James F. Miller Irrevocable Trust (“the James Trust”) for the benefit of her son, James. She named her other son, Jerry, sole trustee. The James Trust is a discretionary trust under which Jerry has absolute discretion to make distributions for James and James’s qualified spouse.

The James Trust contains a spendthrift provision and a provision under Article V(B) which gives Jerry, as trustee, the complete discretion to terminate the trust by distributing the entire principal to the beneficiary for any reason.

After forming the James Trust, Elizabeth transferred to the trust a one-third interest in a residence located in Islamora-da, Florida. She transferred another one-third interest in that property to the Jerry E. Miller Irrevocable Trust, and retained the final one-third interest. At that time, the property had a value in excess of one million dollars.

On June 21, 2007, Gary Kresser obtained a judgment against James Miller and Castles Construction and Development, LLC, for $1,019,095.82. The judgment arose out of Kresser’s involvement in a business deal with James and Castles.

Before creating the James Trust, Elizabeth had established her own testamentary trust (“the Elizabeth Trust”), whereby she provided for dispositions upon her death to James and Jerry. A few days after the trial court entered the final judgment in favor of Kresser, Elizabeth amended the Elizabeth Trust to eliminate all dispositions to James, individually, replacing them with dispositions directly to the James Trust. Elizabeth died on September 10, 2007.

When Kresser was unable to collect on his judgment from James or Castles, he brought proceedings supplementary against them and impleaded Jerry, as trustee of the James Trust. Kresser asserted that he was entitled to execute on the James Trust’s assets, including its one-third interest in the Islamorada property, because James exercised dominion and control over all of the trust assets and over Jerry, as trustee. Kresser also recorded a lis pendens in Monroe County, Florida on the Islamorada property.

While the proceedings supplementary were ongoing, Ken Bastani purchased the Islamorada property. Centennial Bank provided the mortgage financing for which it received a mortgage from Bastani which encumbered the Islamorada property. The James Trust received one-third of the sale proceeds.

The trial court conducted a non-jury trial in the proceedings supplementary, at which the relevant issue was whether the spendthrift provision in the James Trust could be invalidated or pierced and the trust’s assets executed upon by Kresser, as judgment creditor. In a written final judgment, the trial court found that the spendthrift provision in the James Trust was valid at the time the trust was settled, and that Elizabeth transferred several assets to the James Trust, including the one-third interest in the Islamorada property.

The trial court then set forth a detailed account of James’s significant control over the James Trust and over Jerry, as trustee. The court found that Jerry had almost completely turned over management of the trust’s day-to-day operations to James. James controlled all important decisions concerning the trust assets, including investment decisions. Jerry never independently investigated these decisions to determine whether they were in the best interest of the trust, and some of the decisions have turned out to be unwise. The trial court concluded that Jerry simply rubber-stamped James’s decisions and “serve[d] as the legal veneer to disguise [James’s] exclusive dominion and control of the Trust assets.”

Ultimately, the court held that James’s exclusive dominion and control over the James Trust served to terminate the trust’s spendthrift provision, allowing Kresser to reach all of the trust’s assets to satisfy his judgment. The court further concluded that Jerry, by giving James control over the trust and complete access to the trust’s assets, effectively turned over to James all of the trust’s assets pursuant to Article V(B) of the trust, thereby subjecting the assets to execution.

After dealing with the other trust assets, the court ruled that the conveyance of the Islamorada property to Ken Bastani was subject to the outcome of the proceedings supplementary because of the lis pendens. Accordingly, the court directed the clerk to issue a writ of execution to the Sheriff of Monroe County for the execution, levy and sale of the trust’s one-third interest in the property.

The first issue on appeal is whether a court can invalidate a spendthrift provision in a discretionary trust where the beneficiary has no express control over the trust, and thereby allow the beneficiary’s creditors to reach trust assets before they are distributed. The second issue is whether a merger occurred such that the James Trust terminated by law or through Article V(B) of the trust. These issues are purely legal and are subject to de novo review by this court. See City of Hollywood v. Petrosino, 864 So.2d 1175, 1177 (Fla. 4th DCA 2004).

Florida law recognizes the validity of spendthrift trusts. See Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603, 605 (1947). A spendthrift trust is a trust “created with a view of providing a fund for the maintenance of another, and at the same time securing it against his own improvidence or incapacity for self-protection.” Croom v. Ocala Plumbing & Elec. Co., 62 Fla. 460, 57 So. 243, 244 (1911). When a trust includes a valid spendthrift provision, a beneficiary may not transfer his interest in the trust and a creditor or assignee of the beneficiary may not reach any interest or distribution from the trust until the beneficiary receives the interest or distribution. § 736.0502(3), Fla. Stat. (2009). However, when a trust requires mandatory distributions to a beneficiary, a creditor or assignee of the beneficiary may reach those distributions if the trustee has not made them within a reasonable time after the designated distribution date. § 736.0506(2), Fla. Stat. (2009).

Courts have invalidated spendthrift provisions where a trust provides a beneficiary with express control to demand distributions from the trust or terminate the trust and acquire trust assets. See Croom, 57 So. at 244-45; see, e.g., Dollinger v. Bottom (In re Bottom), 176 B.R. 950, 952 (Bankr.N.D.Fla.1994); First Fla. Nat’l Bank, N.A. v. Smith (In re Smith), 129 B.R. 262, 264-65 (M.D.Fla.1991); Putney v. May (In re May), 83 B.R. 812, 814-15 (Bankr.M.D.Fla.1988); In re Gillett, 46 B.R. 642, 644-45 (Bankr.S.D.Fla.1985); Nixon v. P.J. Pedone & Co. (In re Nichols), 42 B.R. 772, 776 (Bankr.M.D.Fla.1984). In these cases, the beneficiary’s express control over the trust determines the extent to which the spendthrift provision is invalid. If the trust allows the beneficiary to control all of the trust assets by terminating the trust or demanding distribution of the entire trust corpus, a court will allow the beneficiary’s creditor to reach the entire trust corpus. See, e.g., In re Smith, 129 B.R. at 264-65; In re Gillett, 46 B.R. at 644-45; Croom, 57 So. at 244-45. Likewise, if the trust allows for the beneficiary to demand a distribution of only a portion of the trust property, the courts have allowed a creditor to attach that portion over which the beneficiary has express control. See, e.g., In re May, 83 B.R. at 814; In re Monahan, 68 B.R. 997, 1000 (Bankr.S.D.Fla.1987).

The James Trust does not give James any express control over distributions of the assets. Jerry, as trustee, has sole discretion to distribute income or principal to James, or to terminate the trust under Article V(B). Nevertheless, the trial court concluded that James’s exercise of significant control over the trust invalidated the spendthrift provision, allowing James’s creditors to reach the entire trust corpus. While we agree that the facts in this case are perhaps the most egregious example of a trustee abdicating his responsibilities to manage and distribute trust property, the law requires that the focus must be on the terms of the trust and not the actions of the trustee or beneficiary. In this case, the trust terms granted Jerry, not James, the sole and exclusive authority to make distributions to James. The trust did not give James any authority whatsoever to manage or distribute trust property.

When a trust document provides the trustee with complete discretion over distributions, a creditor may only reach those distributions the trustee chooses to make. § 736.0504(2), Fla. Stat. (2009). The creditor may not compel a distribution from the trustee or attach any interest in the trust before the trustee makes a distribution. Id. This applies whether or not the trustee has abused his discretion in managing the trust. § 736.0504(1), Fla. Stat. (2009). There is no law in Florida suggesting that a beneficiary’s creditors may reach trust assets in a discretionary trust simply because the trustee allows the beneficiary to exercise significant control over the trust. It is only when a beneficiary has received distributions from the trust, or has the express right to receive distributions from the trust, that the creditor may reach those distributions.

In this case, James may ask Jerry for as many distributions as he wants, and Jerry may choose to fulfill all of those requests. However, because Jerry has sole discretion to make distributions, he may also choose to deny James’s requests at any time, and James would have no recourse against him unless he were abusing his discretion as trustee. Until Jerry makes a distribution to James, Kresser and other creditors may not satisfy James’s debts through trust assets. Accordingly, the trial court erred in invalidating the James Trust’s spendthrift provision and allowing Kresser to reach trust assets before they have been distributed to James.

To conclude otherwise would ignore the realities of the relationship between a beneficiary and trustee of a discretionary trust — the beneficiary always pining for distributions which he feels are rightfully his, and the trustee striving to allow only those distributions that coincide with the settlor’s express intent, as set forth in the trust documents. It is the settlor’s prerogative to choose the trustee she believes will best fulfill the conditions of the trust. In the case before us, it is not the role of the courts to evaluate how well the trustee is performing his duties. We are instead limited, by statute, to evaluating the express language of the trust to determine the extent of the beneficiary’s control and the extent to which a creditor may reach trust assets. It is the legislature’s function to carve out any exceptions to the protections afforded by discretionary and spendthrift trusts.

As an additional ground for allowing Kresser to reach trust assets, the trial court concluded that Jerry had effectively turned over all of the James Trust’s assets to James, triggering Article V(B) of the trust. Article V(B) allows Jerry to terminate the trust by distributing the entire principal to James. The court held that there had been a merger of the trustee and beneficiary by virtue of James’s control over the trust. The court clarified, however, that it was not terminating the trust altogether.

“In order to sustain a trust entity, there must be a separation between the legal and equitable interests of the trust.” Contella v. Contella, 559 So.2d 1217, 1218 (Fla. 5th DCA 1990) (citing Axtell v. Coons, 82 Fla. 158, 89 So. 419, 420 (1921)). When no separation exists, legal and equitable interests merge and the trust may be terminated. Id. However, “merger applies only when the legal and equitable interests are held by one person and are coextensive and commensurate — i e., the legal estate and the equitable estate are the same.” Id. at 1219.

Upon the establishment of the James Trust, Jerry held legal title and James held equitable title. See Hansen v. Bothe, 10 So.3d 213, 216 (Fla. 2d DCA 2009) (“Upon the establishment of a trust, the legal title is held by the trustee, but equitable title rests with the beneficiary.”). For the merger doctrine or Article V(B) to apply, Jerry would have to convey legal title of the trust principal to James. This conveyance never occurred. Moreover, the trial court did not terminate the trust, as would be required with a merger or under Article V(B). Thus, to the extent that the trial court relied on these mechanisms to allow Kresser to reach trust assets, it erred.

We therefore reverse the final judgment in proceedings supplementary to the extent that it invalidates the James Trust’s spendthrift provision and allows Kresser to reach trust assets before they are distributed to James. In so doing, we also quash the writ of execution on the Islamo-rada property.

Reversed.

HAZOURI and MAY, JJ., concur.

      . We sua sponte consolidate cases 4D09-759 and 4D09-760 for purposes of this opinion.

      . Article X, the trust’s spendthrift provision, states the following:
      The right of any person to receive any amount, whether of income or principal, pursuant to any of the provisions of this agreement, shall not, in any manner, be anticipated, alienated, assigned or encumbered, and shall not be subject to any legal process or bankruptcy or insolvency proceeding or to interference or control by creditors or others.

      .Article V(B) of the trust, entitled "Discretionary Payments by Independent Trustee,” states the following:
      In granting the trustee discretion over the payment of the income and principal of the trusts under this agreement, it is the settlor’s intention that the independent trustee ... (2) shall have complete discretion to terminate any trust by distributing the entire principal to the beneficiary or beneficiaries eligible to receive distributions from such trust (and if more than one, in equal or unequal shares and to the exclusion of any one or more of them) without further accountability to anyone if the independent trustee determines that continuation of such trust is inadvisable in view of the size of the trust or for any other reason.


text:
    Ken BASTANI and Centennial Bank, (as successor by merger with Marine Bank), Appellants, v. Gary KRESSER, JAMES F. Miller, Castles Construction and Development LLC, Barbara Miller, Castles Unlimited, Inc., a Florida corporation, and Jerry Miller, as Trustee of the James F. Miller Irrevocable Trust, Appellees.
    No. 4D09-1452.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2010.
    Christopher N. Bellows and Rebecca M. Plasencia of Holland & Knight LLP, Miami, for appellants.
    Ronald M. Gaché and Scott A. Simon of Broad and Cassel, West Palm Beach, for appellee, Gary Kresser.
   DAMOORGIAN, J.

The Intervenors, Ken Bastani and Centennial Bank, appeal an order denying their motion for Rehearing and/or Relief from Judgment. That judgment is the subject of our opinion in Case Nos. 4D09-759 and 4D09-760. There, we reversed the underlying judgment. We therefore reverse the trial court’s order in this case, and remand the case to the trial court for proceedings consistent with this opinion.

HAZOURI and MAY, JJ., concur.


author: LEVINE, J.

text:
    Leonard MINUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4811.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2010.
    Rehearing Denied June 8, 2010.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   LEVINE, J.

The issue presented is whether there is sufficient competent evidence that appellant willfully and substantially violated the terms and conditions of his probation. The trial court found that appellant did, in fact, willfully and substantially violate the terms of probation. Willfulness of a violation of probation is a question of fact, and a finding of willfulness will be overturned only where the record contains no competent evidence to support the finding. Green v. State, 23 So.3d 820, 821 (Fla. 4th DCA 2009). We agree with appellant that the evidence was insufficient to show a willful violation in this case, and we reverse.

Appellant was ordered, as a condition of probation, to have no “direct or indirect contact” with the victim, T.B. At the violation of probation hearing, the State presented evidence that appellant called and spoke to T.B.’s mother. The trial court found that this call constituted “indirect contact” with the victim and found the violation to be willful and substantial.

In Wilson v. State, 781 So.2d 1185, 1187 (Fla. 5th DCA 2001), the probationer contacted the victim’s mother even though there was a prohibition on making “direct or indirect contact” with the victim. The State presented no evidence that the probationer made any actual contact with the victim or that the contact with the mother was an attempt “to get to” the victim. The Fifth District concluded that a probationer “cannot be found to have had contact with the victim when there was no evidence that he had any contact” or that he attempted contact with the victim. Id.

We concur with the Fifth District’s reasoning in Wilson and hold that evidence that appellant telephoned T.B.’s mother, by itself, is insufficient to show a willful and substantial violation of the conditions of appellant’s probation. In this case, there was evidence that appellant knew T.B.’s mother prior to the underlying case, which resulted in appellant being placed on probation. Further, the record lacked sufficient evidence that appellant was notified by the trial court or by the probation officer that “indirect contact” would include contacting T.B.’s mother or T.B.’s family, nor was there any evidence presented that T.B. lived with her mother or that the phone number appellant called was T.B.’s residence.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded with directions to reinstate probation and community control

WARNER and DAMOORGIAN, JJ., concur.


text:
    Mark LARNER, Appellant, v. STATE of Florida, DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
    No. 1D09-1517.
    District Court of Appeal of Florida, First District.
    May 6, 2010.

      Richard W. Ervin, III of Fox & Loquas-to, P.A., Tallahassee, and Byron E. Townsend of Stolberg & Townsend, Tampa, for Appellant.
    Thomas E. Wright, Assistant General Counsel, Department of Management Services, for Appellee.
   PER CURIAM.

Mark Larner appeals a final order of the State of Florida Retirement Commission denying his claim for in line of duty disability benefits under section 121.091(4)(a)l.a., Florida Statutes (2004). Because the Commission’s findings of fact regarding causation are not supported by competent and substantial evidence, we reverse and remand for further proceedings.

While working as a correctional officer at the Hardee County Jail, Larner suffered an injury to his back on December 28, 2001. Over the course of the next several years, Larner received extensive medical treatment for his back, including fusion surgery on November 12, 2002, by Ashvil Patel, M.D. The surgery did not have desired outcome, and Larner continued to suffer back pain. He was treated and examined by several other medical providers thereafter, including Frederick J. McClimans. Larner left his employment with Hardee County on January 2005 because, he testified, he was asked to leave by his employer. No contrary evidence was presented on this point.

Larner eventually sought in line of duty disability retirement benefits, but was denied benefits by the disability administrator. He appealed to the Retirement Commission which also denied disability retirement benefits. The Commission found in its Final Order, in pertinent part:

11. At present it appears that Petitioner is not able to work but the Commission cannot merely grant total and permanent disability. Most of his conditions are the result of aging, possible prior accidents, and a botched surgery. The Commission finds no in line of duty accident was the contributing cause to Mr. Larner’s condition.

This court reviews the Commission’s conclusions of law de novo and affirms findings of fact if they are supported by competent, substantial evidence. Costal v. State, Dep’t of Mgmt. Servs., Div. of Ret., 21 So.3d 134, 135 (Fla. 1st DCA 2009). The findings made in paragraph 11, quoted above, are not supported by competent, substantial evidence. Lar-ner testified that he did suffer a lone accident resulting in a back injury prior to his employment with Hardee County, but he also testified, without contradiction, that the prior injury was fully resolved before his employment with Hardee County began. It is undisputed that Lar-ner passed a pre-employment physical before beginning work at the jail. There is no evidence of record, that we have been directed to, indicating any other accident causing injury to his back. Further, the record lacks competent, substantial evidence that Larner’s back condition is causally connected to his age. Finally, while Larner’s fusion surgery did not alleviate all his symptoms, the record does not support the conclusion that the surgery was “botched.” In any event, it was the surgeon’s testimony that the need for surgery was the back pain which arose after the injury incurred at the jail on December 28, 2001. This testimony was not disputed.

Accordingly, because the Commission’s findings are not supported by competent, substantial evidence, the Final Order is REVERSED, and the cause is REMANDED for further consideration by the Commission as to the issue of causation. See Crystal.

VAN NORTWICK and CLARK, JJ., and BERGER, WENDY, Associate Judge, concur.


author: MARSTILLER, J.

text:
    ESTATE OF James M. SMITH, Etc., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D09-0467.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Fred H. Flowers, Flowers Law Group, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Courtney Brewer, Deputy Solicitor General, Tallahassee, for Appellee.
   MARSTILLER, J.

James M. Smith was an employee of the Florida State Hospital in Chatahoochee when he suffered a fatal heart attack at work after intervening in a violent physical confrontation between an inmate and a coworker and was himself beaten, kicked, and choked by the inmate. At the time of his death, Mr. Smith was a unit training rehabilitation specialist in the hospital’s forensic unit which houses people deemed incompetent to stand trial or found not guilty by reason of insanity. Mr. Smith’s estate (“Estate”) filed a wrongful death lawsuit against the Department of Children and Families (“Department”), which operates Florida State Hospital. The complaint alleged the Department had engaged in conduct that is virtually certain to cause injury or death to an employee. We affirm the trial court’s Order of Dismissal finding the lawsuit barred by sovereign immunity.

In its complaint, the Estate alleged that injury to or death of an employee in the hospital’s forensic unit was foreseeable to the Department and “virtually certain to occur.” It further alleged that inmates in the forensic unit “tend to be physically violent, aggressive, unpredictable and receive psychiatric treatment via psychotropic medication,” and that inmates had attacked employees numerous times in the years just prior to Mr. Smith’s death. But the Department “concealed and failed to disclose” the criminal and violent background of the particular inmate who injured Mr. Smith. Consequently, Mr. Smith was unaware of the risk of danger as to the inmate and was unable to exercise informed judgment as to whether to perform his assigned duties.

The allegations closely tracked the language in section 440.11(l)(b), Florida Statutes (2006), which contains an exception to the requirement that workers’ compensation be the exclusive remedy for work-related injury or death. An employer is liable for an intentional tort causing the injury or death of an employee if it is proven by clear and convincing evidence that:

The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

§ 440.11(l)(b)2., Fla. Stat. (2006).

The Estate argues the trial court erred when it found the language in the complaint tantamount to an allegation of wanton and willful disregard for Mr. Smith’s safety, conduct for which, under section 768.28(9)(a), Florida Statutes, the state has not waived sovereign immunity. We find the lower court’s ruling correct under Elliott v. Dugger, 579 So.2d 827 (Fla. 1st DCA 1991). There, we stated that even if, as provided by section 440.11(l)(b), a complaint alleges conduct by a public employer which is virtually certain to cause injury or death, the “suit would be barred by section 768.28(9)(a), which makes the state immune from suit for acts of employees committed in bad faith, or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Id. at 830-31. Unfortunately, this ease, like Dugger, is one in which the provisions of sections 440.11(1) and 768.28(9)(a) conflict, and when that occurs “it is the provisions of section 768.28(9)(a) which control.” Id. at 831 (citing McClel land v. Cool, 547 So.2d 975, 976 (Fla. 2d DCA 1989)).

AFFIRMED.

DAVIS and BENTON, JJ., concur.


author: ROBERTS, J.

text:
    Amanda E. LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1419.
    District Court of Appeal of Florida, First District.
    May 6, 2010.

      Nancy A. Daniels, Public Defender, and Phil S. Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; Charmaine Millsaps and Natalie D. Kirk, Assistant Attorneys General, Tallahassee, for Appellee.
   ROBERTS, J.

The appellant, Amanda Lewis, was charged and convicted of aggravated child abuse and first-degree felony murder in the drowning death of her seven-year-old daughter. She raises four issues on appeal, only one of which merits discussion. She argues that her convictions must be set aside because the merger doctrine precludes the use of aggravated child abuse as the underlying felony in a felony murder charge if only a single act of abuse led to the child’s death. We disagree and affirm.

At English common law, the crime of felony murder occurred when a person caused the death of another in the commission of any felony without regard to the dangerousness of the underlying felony. Wayne R. LaFave, Substantive Criminal Law § 14.5 (2d ed. 2003). The felony murder rule effectively relieves the prosecution of the need to prove the requisite mens rea to obtain a first-degree murder conviction. As the number of felonies increased to include those that were malum prohibitum rather than malum in se, it became necessary to limit the scope of the felony murder rule to avoid the harshness of convicting a defendant of murders which flowed from felonies such as filing a false tax return or embezzling. Id.

One such limitation on the scope of the felony murder rule is the merger doctrine. The leading case explaining the application of the merger doctrine to the felony murder rule is People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 (1969). In Ireland, a felony murder instruction was given where a man shot and killed his wife — the underlying felony being assault with a deadly weapon. Id. at 589. The court held that a “felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.” Id. at 590.

The rationale behind the merger doctrine is to ensure that varying degrees of murder, manslaughter, and other homicides remain distinct categories. Douglas Van Zanten, Felony Murder, the Merger Limitation, and Legislative Intent in State v. Heemstra: Deciphering the Proper Role of the Iowa Supreme Court in Interpreting Iowa’s Felony-Murder Statute, 93 Iowa L. Rev. 1565, 1574 (2008) (citing State v. Branch, 244 Or. 97, 415 P.2d 766, 767 (1966)). Without the merger doctrine, all felonious assaults that resulted in death would be bootstrapped up to first-degree murder regardless of whether the requisite mens rea existed.

Classifying the crime of murder into varying degrees is a statutory creation and is not required by the constitution. The legislature could, if it so desired, create only one crime of murder. Thus, in states where the felonies that are predicate crimes for the felony murder rule are specifically enumerated by statute and no catch-all category reminiscent of the common law felony murder rule exists, the merger doctrine is not appropriate. Van Zanten, 93 Iowa L. Rev. at 1576 (citing State v. Godsey, 60 S.W.3d 759, 774-75 (Tenn.2001)).

In Godsey, the defendant was convicted of first-degree felony murder during the perpetration of aggravated child abuse. 60 S.W.3d at 764, 769. The Court of Criminal Appeals affirmed the conviction. Id. at 764, 770. On appeal to the Supreme Court of Tennessee, the defendant argued that the merger doctrine precluded a felony murder conviction based on aggravated child abuse. Id. at 774. The court disagreed, explaining

Courts have generally declined to hold that the merger doctrine implicates any principle of constitutional law. Instead, courts have viewed the merger doctrine as a principle for discerning legislative intent and, more specifically, as a principle that preserves “some meaningful domain in which the Legislature’s careful graduation of homicide offenses can be implemented.” Accordingly, the merger doctrine has not been widely accepted. The doctrine has been applied largely in those states where the felony murder statute fails to specifically list the felonies capable of supporting a felony murder conviction. Where a “legislature explicitly states that a particular felony is a predicate felony for felony-murder, no ‘merger’ occurs.”

Id. at 774-75 (citations and footnote omitted).

Another limitation on the scope of the felony murder rule, and the one used in this state, is to apply the rule only to those felonies specifically enumerated by statute. In Florida, a defendant may be convicted of first-degree murder if the unlawful killing of a human being is: 1) perpetrated from a premeditated design to cause the death of a human being; 2) caused by a person perpetrating certain enumerated felonies or 3) caused by the distribution of certain specified controlled substances. See § 782.04(l)(a)l.-3, Fla. Stat. (2007). The second category is commonly referred to as the “felony murder statute,” which provides:

(l)(a) The unlawful killing of a human being:
* * *
2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:
a. Trafficking offense prohibited by s. 893.135(1),
b. Arson,
c. Sexual battery,
d. Robbery,
e. Burglary,
f. Kidnapping,
g. Escape,
h. Aggravated child abuse,
i. Aggravated abuse of an elderly person or disabled adult,
j. Aircraft piracy,
k. Unlawful throwing, placing, or discharging of a destructive device or bomb,
l. Carjacking,
m. Home-invasion robbery,
n. Aggravated stalking,
o. Murder of another human being,
p. Resisting an officer with violence to his or her person,
q. Felony that is an act of terrorism or is in furtherance of an act of terrorism; or
* * *
is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.

§ 782.04(l)(a)2., Fla. Stat. (2007) (emphasis added).

The appellant urges us to reverse her convictions of aggravated child abuse and felony murder on the basis of Brooks v. State, 918 So.2d 181 (Fla.2005). In that case, Brooks was charged with two counts of first-degree murder on the alternative theories of premeditated murder and felony murder with a weapon for the stabbing deaths of a woman and her three-month-old daughter. Id. at 186, 217. The underlying felony for the felony murder theory was aggravated child abuse as provided in section 782.04(l)(a)2.h. Brooks was not charged separately with aggravated child abuse. Id. at 217. Upon retrial, Brooks was convicted by a general jury verdict of two counts of first-degree murder and sentenced to death. Id. at 187, 217.

On direct appeal to the Florida Supreme Court, Brooks argued, inter alia, that the merger doctrine precluded the use of aggravated child abuse as the underlying felony. Id. at 197-98. The Court agreed, stating

[H]ad Brooks been charged with aggravated child abuse, he could not have been convicted of that crime.... In light of the fact that Brooks delivered a single stabbing blow that resulted in [the child’s] death, the act constituting the aggravated child abuse merged into the infant’s homicide.
[T]he instant case involved the single act of stabbing which caused a single injury. In a case such as this where ... a single act caused both an aggravated battery and a homicide, aggravated battery cannot then serve as the underlying felony of the felony murder charge. It makes no difference that Brooks was not charged or convicted of aggravated child abuse because that crime, under these facts, merges with the homicide itself. In the instant matter, the action underlying the aggravated child abuse factor constituted the fatal stab wound that killed [the child]. Because there is no separate offense of aggravated child abuse, that crime cannot logically serve as the underlying felony in a felony murder charge.

Id. at 198-99 (citations omitted). Inexplicably, however, the Court ultimately affirmed Brooks’ convictions. Id. at 211.

When a court makes a pronouncement of law that is ultimately immaterial to the outcome of the case, it cannot be said to be part of the holding in the case. In Brooks, the Court’s statements that aggravated child abuse cannot serve as the underlying felony in a felony murder charge if only a single act led to the child’s death was not a holding in the case. The statements had no effect on the Court’s decision to affirm Brooks’ convictions. Consequently, in the context of the instant case, the statements are dicta and not binding on this court.

Moreover, the felony murder statute specifically provides that aggravated child abuse is a predicate offense for felony murder. The plain, unambiguous language of the statute demonstrates that the legislature intended that a defendant who kills a child during the perpetration of the crime of aggravated child abuse may be charged and convicted of both aggravated child abuse and felony murder, regardless of the number of acts of abuse which caused the child’s death. In his dissent in Brooks, Justice Lewis explained,

The plain text of the statute ... affords no indication that the Legislature intended to exclude application of the felony murder doctrine in those instances of aggravated battery on a child that involve a solitary stab wound, a lone blow to the head, one gunshot wound, or any other single act of violence ... [T]he felony murder statute clearly captures all instances of aggravated child abuse, regardless of whether a single violent act constitutes the abuse and simultaneously causes the child’s death in this context.... The plain statutory language reflects a policy decision to protect the children of this state by subjecting those whose acts of child abuse produce death to the highest possible penalty.

918 So.2d at 219 (Lewis, J., concurring in part and dissenting in part) (footnote omitted).

Assuming arguendo that the statements in Brooks are not dicta and are applicable to the instant case, we would still affirm. Based on the child’s injuries and the manner of her death, it is clear that more than a single act of abuse led to her death. The appellant’s actions in holding her child beneath the surface of a swimming pool long enough to produce unconsciousness and then death cannot be considered a single act. Indeed, we question whether drowning a child could ever be considered a single act. See e.g., Dorsey v. State, 942 So.2d 983 (Fla. 5th DCA 2006) (questioning whether shaking a child could ever be considered a single act).

Nevertheless, in light of the seriousness of the issue, we certify the following question to be one of great public importance:

WHETHER BROOKS V. STATE, 918 So.2d 181 (Fla.2005), HOLDS THAT AGGRAVATED CHILD ABUSE CANNOT SERVE AS THE UNDERLYING FELONY IN A FELONY MURDER CHARGE IF ONLY A SINGLE ACT OF ABUSE LED TO THE CHILD’S DEATH.

AFFIRMED.

KAHN and BENTON, JJ., concur.