text:
    Charles L. NICHOLS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D08-2043, 1D08-2044.
    District Court of Appeal of Florida, First District.
    April 7, 2010.
    James C. Banks of the Law Firm of Banks & Morris, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the sentences entered upon his revocation of probation. The state correctly concedes that, because his original sentences were concurrent, the appellant is entitled to credit for time served on each of the consecutive sentences to which he was resentenced. Accordingly, we reverse and remand to the trial court to award credit for time served to each sentence. See State v. Rabedeau, 2 So.3d 191, 193 (Fla.2009).

REVERSED and REMANDED.

HAWKES, C.J., ROBERTS, and CLARK, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lamont ASBERRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0305.
    District Court of Appeal of Florida, First District.
    April 7, 2010.

      Lamont Asberry, pro se, Petitioner.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner Lamont Asberry was convicted of second-degree murder by a Duval County jury and sentenced to a term of imprisonment. He appealed and this court affirmed the conviction. Asberry v. State, 4 So.3d 1271 (Fla. 1st DCA 2009). He now alleges that he received ineffective assistance of counsel in the direct appeal. We agree, reverse the conviction, and remand for a new trial.

Petitioner’s counsel filed the initial brief in the direct appeal on July 30, 2008, and the state’s answer brief was filed in October 2008. Our opinion issued on March 26, 2009. In the interim, however, we decided Montgomery v. State, — So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), review granted, 11 So.3d 943 (Fla.2009), holding that giving of the standard jury instruction on manslaughter in a case such as petitioner’s was fundamental error. Petitioner argues that his appellate counsel was ineffective in failing to seek supplemental briefing in the direct appeal on the Montgomery issue. In Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005), the court found counsel was ineffective when he did not ask for supplemental briefing based on an appellate decision concerning a self-defense jury instruction in similar circumstances. We adopt the reasoning of Ortiz and conclude that petitioner is entitled to relief. Because the jury instruction here relates to elements of the crime rather than an affirmative defense, we find it unnecessary to order another appeal. The conviction is reversed and the cause is remanded to the trial court for further proceedings. See Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009). In so doing, we certify the same question of great public importance that we certified in Montgomery:

IS THE STATE REQUIRED TO PROVE THAT THE DEFENDANT INTENDED TO KILL THE VICTIM IN ORDER TO ESTABLISH THE CRIME OF MANSLAUGHTER BY ACT?

PETITION GRANTED.

BENTON, VAN NORTWICK, and CLARK, JJ., concur.


author: JACOBUS, J.

text:
    Robert VOWELS, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-114.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2010.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   JACOBUS, J.

The appellant, Robert Vowels, challenges the judgment and sentence entered after a jury found him guilty of aggravated battery with a deadly weapon. Vowels contends that the trial court read an improper jury instruction and, in doing so, denied him a fair trial. We agree that the reading of the improper jury instruction in this case resulted in fundamental error and that Vowels’ conviction and sentence should be reversed.

In November 2001, Vowels was charged by information with aggravated battery with a deadly weapon, a second-degree felony. The charge arose from an incident involving Vowels and Thomas Donaldson, the victim. Both men were long-term residents of the same motel. Vowels intervened when he saw his wife and Donaldson arguing in front of Donaldson’s room. A physical altercation ensued between Vowels and Donaldson. At trial, Donaldson and Mrs. Vowels testified about the events of the evening. Needless to say, there was a substantial dispute in their testimony.

According to Donaldson, he threw a chair at Vowels because he believed he saw a knife in Vowels’ hand. Donaldson then grabbed his work knife to defend himself. At some point during the confrontation, Vowels went to his room and came back with some type of club. Ultimately, Vowels struck Donaldson with the club. In contrast, Mrs. Vowels testified that Donaldson had a knife and he had cut her husband on the neck with it. Thus, her husband was defending himself when he hit Donaldson with the club.

Self-defense was Vowels’ only defense at trial. When the court instructed the jury on the law, it included the forcible-felony exception to self-defense. The instruction was read to the jury without objection. On appeal, Vowels argues it was fundamental error to instruct the jury in this manner because he was not charged with an independent forcible felony. Therefore, the reading of the forcible-felony instruction negated his theory of self-defense, which was his sole defense, and denied him a fair trial.

In Martinez v. State, 981 So.2d 449 (Fla.2008), the supreme court stated that in order to give the forcible-felony exception to the self-defense instruction, there must be a separate and distinct forcible felony. That was not the case here. Vowels was charged with one forcible felony, aggravated battery with a deadly weapon. However, Martinez explains that the erroneous reading of the forcible-felony instruction under these circumstances is not necessarily fundamental error. Rather, the appellate court must thoroughly review the record and determine whether giving the instruction in that particular case rises to the level of fundamental error.

Upon our review of the complete record in this case, we conclude that the erroneous forcible-felony instruction vitiated the fairness of Vowels’ trial and, therefore, constituted fundamental error. We reach this conclusion based on the fact that Vowels’ only defense was self-defense. No other defenses were pursued in this case. Additionally, no forensic evidence was admitted establishing the exact sequence of events. Instead, the only testimony regarding the incident came from eyewitnesses who had significantly different versions of the events. Many key details were in dispute. It was unclear whether Donaldson or Vowels was the initial aggressor. Likewise, it was unclear who had the knife, who was cut, or who threw the chair. By giving the forcible-felony jury instruction, the trial court led the jury to believe that Vowels’ theory of self-defense was not available to him because he conceded that he committed an aggravated battery with a deadly weapon.

This case is distinguishable from this Court’s ruling in Barnes v. State, 12 So.3d 797 (Fla. 5th DCA 2009). In Barnes, it was apparent from the facts of the case that the reading of the forcible-felony exception to self-defense was not fundamental error. There, the claim of self-defense was significantly weaker than it is here because the victim was shot eight times, including once in the back while he fled from a hail of bullets. Here, in contrast, Mrs. Vowels’ testimony supported the self-defense theory and there was no forensic evidence contradicting her version of events.

Because the erroneous jury instruction negated Vowels’ sole defense at trial, we reverse the judgment and sentence and remand for a new trial.

REVERSED and REMANDED for a new trial.

GRIFFIN and PALMER, JJ., concur.


text:
    Neil SIDLOW and Maureen Sidlow, Appellant, v. BOWLES CUSTOM POOL & SPAS, INC., Appellee.
    No. 5D09-1024.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2010.
    James L. Homich, Mt. Dora, for Appellant.
    Barry Kalmanson, Maitland, for Appel-lee.
   PER CURIAM.

In this breach of contract action, the prevailing party is entitled to an award of attorney’s fees pursuant to the terms of the contract. The trial court has broad discretion to determine which party prevailed on the significant issues in the litigation. Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992). A measure of this test is the “result obtained” at the close of the case. Granoff v. Seidle, 915 So.2d 674, 677 (Fla. 5th DCA 2005). “The test is not who was partly at fault in creating the controversy which gave rise to the lawsuit.” Sorrentino v. River Run Condo. Ass’n, 925 So.2d 1060, 1065 (Fla. 5th DCA 2006).

Applying these principles, we affirm the trial court’s order granting Appellee’s request for attorney’s fees as the party who prevailed on the significant issues of the case. We find no abuse of the broad discretion vested in the trial court when considering such matters.

AFFIRMED.

ORFINGER, TORPY and LAWSON, JJ., concur.


author: EVANDER, J.

text:
    Gail Ann SEAVOR, Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, etc., Appellee.
    No. 5D09-1719.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2010.

      Henry G. Ferro, Law Offices Ferro and Gourley, P.A., Ocala, for Appellant.
    Robert Alan Fox, Senior Attorney, Department of Financial Services, Tallahassee, for Appellee.
   EVANDER, J.

In October 2008, the Department of Financial Services (Department) filed an administrative complaint seeking a suspension of Seavor’s license as a life and health insurance agent based on certain alleged statutory and administrative code violations. When Seavor failed to file a timely petition for a hearing, the Department entered a final order that dismissed her petition for an administrative hearing, accepted the factual allegations set forth in the administrative complaint, and imposed an eighteen-month suspension of Seavor’s license. Seavor then filed a motion for rehearing, alleging that the failure to file a timely petition was the result of excusable neglect. The Department denied the motion and this appeal follows.

On appeal, the Department concedes that based on Seavor’s alleged statutory and administrative code violations, it was improper to impose a suspension in excess of twelve months. We otherwise affirm the Department’s order.

Section 120.569(2)(c), Florida Statutes, was amended in 1998 to specifically provide that a petition for hearing “shall be dismissed if ... it has been untimely filed.” As a result of this amendment, Florida’s appellate courts have uniformly concluded that the excusable neglect standard is not available where a party has failed to timely file a petition for hearing. See Aleong v. Dep’t of Prof. Reg., 963 So.2d 799 (Fla. 4th DCA 2007) (doctrine of excusable neglect did not apply to relieve appellant of waiver of right to hearing where petition was untimely filed); Cann v. Dep’t of Children & Family Servs., 813 So.2d 237 (Fla. 2d DCA 2002) (excusable neglect standard does not apply in determining whether to grant untimely request for administrative hearing); see also Patz v. Dep’t of Health, 864 So.2d 79 (Fla. 3d DCA 2003).

Although section 120.569(2)(c) expressly provides that equitable tolling is an available defense to dismissal of an untimely filed petition, that defense was not raised below nor would it have been supported by the facts in this case.

This cause is remanded to the Department for the limited purpose of entering a corrected order reducing Seavor’s license suspension period from eighteen months to twelve months.

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

SAWAYA and COHEN, JJ., concur.

      . The doctrine of equitable tolling is generally applied when a party has been "misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.” Machules v. Dep’t of Admin., 523 So.2d 1132, 1134 (Fla.1988).


text:
    Jonathan A. ROMERO, Appellant, v. DEPT. OF REVENUE on behalf of Alexis C. RIVERA, Appellee.
    No. 5D09-4176.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2010.
    Jonathan A. Romero, Montverde, pro se.
    Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

ON CONFESSION OF ERROR

Pursuant to the Appellee’s confession of error, the order on appeal transferring venue is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

GRIFFIN, LAWSON and JACOBUS, JJ., concur.


text:
    Humberto MAIRENA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-437.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2010.
    Humberto Mairena, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 05-2006-CF-025811-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

MONACO, C.J., TORPY and COHEN, JJ., concur.


text:
    Khrystopher Wayne TOLLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-515.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2010.
    Khrystopher W. Tolley, Milton, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be field with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2008-1204-CF-52, in and for Putnam County, Florida. See Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

PALMER, ORFINGER and EVANDER, JJ., concur.


author: CRENSHAW, Judge.

text:
    W.S.G., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5251.
    District Court of Appeal of Florida, Second District.
    April 9, 2010.

      James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

W.S.G. appeals a disposition order committing him to the Department of Juvenile Justice after the juvenile court adjudicated him delinquent for domestic battery in circuit court case number 08-CJ-2835 and of violating his probation from an earlier offense of battery in circuit court case number 07-CJ-4237. We affirm his adjudication without discussion, but reverse the disposition order and remand for further proceedings.

During the pendency of this appeal, W.S.G. filed a motion to correct disposition error under Florida Rule of Juvenile Procedure 8.135(b)(2). The juvenile court did not rule on the motion within thirty days; thus, the motion is deemed denied. See Fla. R. Juv. P. 8.135(b)(2)(B). In his motion, W.S.G. argued the juvenile court’s disposition order, which revoked his probation in case number 07-CJ-4237, failed to comport with its oral pronouncement, which stated his commitment to the Department of Juvenile Justice was to run consecutively to his underlying probation in case number 07-CJ-4237. We find the juvenile court erred because “[i]f a discrepancy exists between the written sentence and the oral pronouncement, the written sentence must be corrected to conform to the oral pronouncement.” Guerra v. State, 927 So.2d 248, 249 (Fla. 2d DCA 2006); see also N.L. v. State, 4 So.3d 1286, 1287 (Fla. 2d DCA 2009) (reversing a disposition order that failed to comport to the juvenile court’s oral pronouncement and remanding for the limited purpose of entering a corrected disposition order).

In addition, W.S.G. alleged in his motion that the juvenile court erred by entering one order of commitment in two separate cases. We find this was also error because under then-existing rule 8.115(c), “[ejach case requires a separate disposition order.” See A.R. v. State, 27 So.3d 774, 775 (Fla. 2d DCA 2010); G.V. v. State, 863 So.2d 1271, 1272 (Fla. 2d DCA 2004). Accordingly, we reverse the original disposition order and remand to the juvenile court for the entry of new, separate disposition oz'ders in each case that properly reflect the juvenile court’s oral pronouncement.

Affirmed in part, reversed in part, and remanded with instructions.

SILBERMAN and LaROSE, JJ„ Concur.

      . We note that as of January 1, 2010, this rule can be located under rule 8.115(d). See In re Amendments to the Fla. Rules of Juvenile Procedure, 26 So.3d 552, 557 (Fla.2009).


author: THOMAS, J.

text:
    Thomas E. JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2041.
    District Court of Appeal of Florida, First District.
    April 9, 2010.
    Thomas E. Jordan, pro se, Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

The appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The appellant argues that his life sentence for attempted first-degree murder exceeds the statutory maximum for a first-degree felony.

Appellant specifically alleges that his conviction for attempted first-degree murder with a firearm was improperly enhanced from a first-degree felony to a life felony pursuant to section 775.087(1), Florida Statutes (1989), which calls for the enhancement of a first-degree felony to a life felony where a defendant carries, uses, displays or threatens to use a firearm, if the use of a firearm is not an essential element of that crime. He asserts that the state argued two theories of prosecution to obtain a conviction, one of which was attempted first-degree felony murder. Appellant also notes that he was convicted of attempted armed robbery, which was the underlying felony for the attempted felony murder theory of prosecution. He claims that an essential element of the underlying offense, attempted armed robbery, was possession or use of a firearm; thus, use of a firearm was an essential element of his attempted first-degree murder conviction. As such, he asserts that the reclassification of the crime and the resulting life sentence are illegal. See Traylor v. State, 785 So.2d 1179 (Fla.2000) (holding that a trial court could not reclassify attempted first-degree murder conviction to a life felony based on the use of a deadly weapon where the verdict did not indicate whether the conviction was based on a premeditation or felony murder theory, and where the use of a weapon was an essential element of the underlying charge of armed robbery).

The trial court denied the appellant’s motion as successive, noting that the appellant has filed seven prior motions to correct illegal sentence. Under Florida Rule of Criminal Procedure 3.800(a), a defendant is not entitled to successive review of a specific issue that has already been decided on the merits. See State v. McBride, 848 So.2d 287, 291 (Fla.2003); Fuston v. State, 764 So.2d 779 (Fla. 2d DCA 2000). In the instant case, the trial court attached numerous prior orders denying motions to correct an illegal sentence, but the trial court’s attachments do not demonstrate that the claim was ever addressed on the merits.

The state reluctantly concedes that the court’s attachments do not demonstrate that the appellant’s claim has been denied on the merits. Thus, we reverse and remand for the trial court to attach portions of the record indicating that the appellant’s claim has been denied on the merits or to address the claim on the merits. See Walker v. State, 998 So.2d 1196 (Fla. 1st DCA 2009).

REVERSED and REMANDED with directions.

KAHN and DAVIS, JJ., concur.


text:
    Levie BELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6020.
    District Court of Appeal of Florida, First District.
    April 13, 2010.
    Levie Bell, pro se, Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The postconviction court indicated that the appellant previously raised an identical claim in a prior motion. However, the postconviction court failed to provide any attachments that would refute the appellant’s claim or demonstrate that this claim had previously been addressed on the merits.

We therefore reverse the summary denial of the appellant’s rule 3.800(a) motion and remand either for the postconviction court to attach portions of the record that conclusively refute the appellant’s claim or for further proceedings. See Maddox v. State, 870 So.2d 956 (Fla. 1st DCA 2004).

REVERSED AND REMANDED.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    Bruce JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5449.
    District Court of Appeal of Florida, First District.
    April 13, 2010.
    Bruce Johnson, pro se, Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850 arguing that his counsel was ineffective for permitting him to plead to driving while license suspended or revoked because he had previously been designated as a habitual traffic offender pursuant to section 322.264(l)(b), Florida Statutes (2006), and thus could not be convicted of violating section 322.34(2), Florida Statutes (2006). Section 322.34(2) expressly states that it does not apply to those who have been designated “habitual traffic offenders,” as defined in section 322.264. The trial court denied the motion without attaching record portions that would refute the appellant’s claim.

Because the appellant’s claim is facially sufficient, we reverse and remand for the trial court to either attach portions of the record conclusively refuting the appellant’s claim that he cannot be convicted under section 322.34(2) where he has previously been designated as a habitual traffic offender, or, in the alternative, to hold an evidentiary hearing at which the appellant may prove his claim.

REVERSED AND REMANDED.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    Donald S. GORDON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4459.
    District Court of Appeal of Florida, First District.
    April 13, 2010.
    Donald S. Gordon, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the judgments and sentences imposed on July 23, 2008, in Suwannee County case numbers 07-530-CF, 08-023-CF and 08-026-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, LEWIS, and MARSTILLER, JJ., concur.


text:
    Antonio T. NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4546.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2010.
    Antonio T. Neal, Bowling Green, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. Miller v. State, 814 So.2d 1131 (Fla. 5th DCA 2002).

MONACO, C.J., GRIFFIN and TORPY, JJ., concur.


text:
    Larry McGRIFF, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2239.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.
    Larry McGriff, Graceville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Our affirmance is without prejudice to appellant’s right to seek a belated appeal by filing a proper petition ■with this court in accordance with Florida Rule of Appellate Procedure 9.141(c). See Guidry v. State, 972 So.2d 1043 (Fla. 1st DCA 2008).

GROSS, C.J., TAYLOR and CIKLIN, JJ., concur.


text:
    Timothy Scott HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-469.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.
    Rehearing Denied May 13, 2010.
    Timothy Scott Harris, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

We summarily affirm the circuit court’s denial of Harris’s postconviction motion and motion for rehearing. Harris’s petition for writ of certiorari is hereby redes-ignated as a final appeal pursuant to Fla. R.App. P. 9.040(c) and 9.141(b). See Council v. State, 980 So.2d 1205 (Fla. 4th DCA 2008).

Affirmed.

HAZOURI, MAY and GERBER, JJ., concur.


author: SAWAYA, J.

text:
    Gabriel Alberto VALENTIN-RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-749.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2010.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

Gabriel Alberto Valentin-Rodriguez appeals his judgment and sentence after a jury found him guilty of four counts of sexual battery and two counts of false imprisonment. The trial court gave him two concurrent life sentences on two counts of sexual battery, with a mandatory minimum sentence of twenty-five years as a dangerous sexual felony offender and fifteen years concurrent in prison on one count of false imprisonment. Defendant argues: 1) the court erred by allowing use of the word “victim” to describe the victim of the crimes; 2) the court erred in permitting testimony that Defendant threatened suicide; 3) the court gave faulty jury instructions and verdict forms; and 4) two adjudications for false imprisonment violate double jeopardy.

We affirm as to all issues except the last. As to that issue, the State concedes error. Our review of the record confirms that the concession is proper. Accordingly, we reverse Defendant’s conviction for count one, which charges one of the false imprisonment offenses. We remand this case to the trial court to prepare an amended judgment striking Defendant’s conviction for that count. Resentencing will not be necessary because it appears that the trial court did not sentence Defendant on that count in anticipation of reversal based on double jeopardy grounds.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER and JACOBUS, JJ., concur.


text:
    N.J.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2249.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2010.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

N.J.M. was adjudicated guilty of three counts of sexual battery on a child under twelve years of age by a person under eighteen years of age. He was not committed to a residential program but was, instead, placed on probation until his nineteenth birthday. Over objection, the trial court designated N.J.M. as a “serious or habitual juvenile offender” (SHO). On appeal, N.J.M. argues that section 985.47(1), Florida Statutes (2008), permits a SHO designation only when made in conjunction with a commitment to a residential facility. The State properly concedes error.

(1) CRITERIA — A ‘serious or habitual juvenile offender,’ for purposes of commitment to a residential facility and for purposes of records retention, means a child who has been found to have committed a delinquent act or a violation of law, in the case currently before the court, ...

§ 985.47(1), Fla. Stat. (2008) (emphasis added).

On remand, the trial court is directed to strike the SHO designation.

REVERSED and REMANDED.

TORPY, EVANDER and LAWSON, JJ., concur.


author: MONACO, C.J.

text:
    Robert RICKENBACH, Appellant/Cross Appellee, v. Monica KOSINSKI f/k/a Monica Rickenbach, Appellee/Cross Appellant.
    No. 5D08-1877.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2010.

      David T. Roberts of Roberts & Robold, P.A., Orlando, and Shannon L. Akins of Law Offices of Shannon L. Akins, P.A., Orlando, for Appellant/Cross Appellee.
    Thomas D. Marks and Abigail M. Johnston of The Marks Law Firm, P.A., Orlando, for Appellee/Cross Appellant.
   MONACO, C.J.

This is a troubling case. It is troubling because the trial judge fashioned a fair and equitable result after carefully considering the evidence presented to him. Unfortunately, it appears that the relief fashioned was not what either party wanted, and neither seems to have told the court during the course of the trial that the request for the relief that was granted had been withdrawn by stipulation. Thus, we are compelled to reverse.

When the marriage between the parties was dissolved in 2003, the trial judge then presiding entered an order requiring the former husband, Robert Rickenbach, to pay rehabilitative alimony to the former wife, Monica Kosinski, for a period of 36 months during which she was to enter into and complete a dental hygienist program. The trial judge specifically rejected an award of permanent alimony, noting that he considered the marriage of 10 years to be short term. The former wife was admitted to the hygienist program and was progressing satisfactorily when the former husband undertook a series of actions that were apparently intended to undermine the former wife’s progress in her educational endeavor. The court found, in fact, that the former husband had intentionally engaged in behavior designed to thwart and frustrate his former wife’s efforts to comply with her rehabilitative alimony plan, and that as a result of his actions, the former wife did not complete the plan and dropped out of school.

When the former wife dropped out of school, she sought psychiatric help, and then took a job unrelated to dental hygienic work. Thereafter she sought to have the trial court grant alternative relief. She asked the trial court either to extend the rehabilitative period with concomitant alimony, or to convert the alimony to permanent alimony. Before the matter came to trial, however, the parties entered into a stipulation, one provision of which was that the former wife was withdrawing that part of her claim seeking an extension of rehabilitative alimony. That is to say, the former wife was now seeking only a conversion to permanent alimony.

The parties proceeded to trial on the issues raised, but amazingly neither party seems to have advised the trial judge of the stipulation that removed the extension of rehabilitative alimony from his consideration. At the conclusion of the trial the court completely agreed that the former husband’s actions had frustrated the rehabilitative plan, and ordered an extension of the plan to ameliorate the detrimental effects of those inappropriate activities. The trial judge decided, in addition, that he would not grant a conversion to permanent alimony for the former wife. He felt that the principles of res judicata did not permit him to grant that relief because it had been specifically denied by the predecessor judge. In particular he said:

As a matter of law, it is not appropriate for the Court to grant permanent periodic alimony during a post-dissolution modification proceeding when permanent periodic alimony had previously been denied in the original dissolution of marriage proceeding and rehabilitative alimony was awarded at that time instead of permanent periodic alimony.

Both parties moved for rehearing and both parties pointed out in rehearing that neither side actually wanted extended rehabilitative alimony. They alerted the trial judge for the first time that by their earlier stipulation they had removed that issue from the consideration of the court. The trial court conducted an evidentiary hearing, and then denied both motions. In doing so he reiterated that his decision to extend rehabilitative alimony was based on equity, but then added, “My intention was not to give her anything more or anything less but just give her a reasonable shot ... to complete her rehabilitative program without any attempts by the Former Husband to frustrate her attempts to complete that program.” He went on to say that permanent alimony was not appropriate because it would be unfair to the former husband to award it after final judgment had been rendered, “when that was not the original intention on the part of the Court.” In addition, he noted that “matters that are stipulated to are not binding on the Court unless they’re brought to the Court’s attention and the Court expressly approves and adoptfs] those agreements.” Because the court felt that it was not bound by the stipulation, it denied the motions for rehearing. Both parties appealed.

Each party argues that the trial court abused its discretion by not recognizing the joint stipulation in which the former wife withdrew her request for extending rehabilitative alimony. The former wife writes in a brief she filed before this court, for example, that she:

[AJgrees with the [former husband] that the trial court abused its discretion in entering a final judgment of modification providing for an extension of the rehabilitative alimony when the joint pretrial stipulation ... specifically provided that the request for the extension of rehabilitative alimony had been withdrawn.

The former wife asks us to reverse the final judgment requiring extended rehabilitative alimony, and to compel the imposition of permanent alimony. The former husband argues that the court abused its discretion with respect to the order for rehabilitative alimony, but resists any requirement compelling him to pay permanent alimony.

We begin by noting that in every case the “issues in a cause are made solely by the pleadings.” See Hart Props., Inc. v. Slack, 159 So.2d 286, 239 (Fla.1963). Rule 1.190(a), Florida Rules of Civil Procedure, provides that after the initial pleading periods allowed by the rules, “a party may amend a pleading only by leave of court or by written consent of the adverse party.” Thus, the parties here had a clear procedural foundation allowing them to amend the former wife’s claim by a written stipulation, even -without leave of court. See also Sunseald Prods. v. Domino Canning Ass’n, 147 Fla. 700, 3 So.2d 377 (Fla.1941) (stating that parties can enter into stipulations that limit the issues to be tried in court); Griffin v. Griffin, 463 So.2d 569 (Fla. 1st DCA 1985). Furthermore, stipulations narrowing the issues, or as in this case, modifying the former wife’s supplemental counter-petition so as to drop her alternative request to extend her rehabilitative alimony plan, are of value to the legal system as they simplify issues, limit or shorten litigation, save costs to the parties, and preserve judicial economy and resources. Johnson v. Johnson, 663 So.2d 663 (Fla. 2d DCA 1995). Accordingly we conclude that the trial court erred in failing to grant the motions for rehearing to the extent that he did so on the basis that he had to approve this particular stipulation for it to be effective. We reiterate, however, that the parties should unquestionably have called the trial court’s attention to the existence of the stipulation during the course of the trial. Nevertheless, once the court was made aware of the removal of the request for extended rehabilitative alimony from the pleadings, the rehearing should have been granted.

We also conclude that to the extent the trial court held that it could not as a matter of law convert rehabilitative alimony to permanent alimony because the initial judge in the case declined to grant it, the court erred in this respect as well. Rehabilitative alimony is essentially a projection based upon certain assumptions and probabilities. O’Neal v. O’Neal, 410 So.2d 1369 (Fla. 5th DCA 1982). If these assumptions and probabilities develop as predicted within the projected term, the spouse should be able to support himself or herself when the alimony ends. The key issue becomes whether the former spouse who is seeking further alimony has become self-supporting, or whether that former spouse instead must continue to depend upon the support of the former husband or wife. Id.

In order to be entitled to a modification, either to extend the rehabilitative period or to convert the rehabilitative alimony to permanent alimony, the petitioner must show why the original plan of rehabilitation did not work out. Saez-Ortiz v. Saez-Ortiz, 560 So.2d 1375 (Fla. 5th DCA 1990); see also The Florida Bar Continuing Legal Education, Florida Dissolution of Marriage § 13.37 (9th ed. 2009). This court has held that the standard to be applied is that a party seeking an extension or conversion of rehabilitative alimony must show only that he or she has not been rehabilitated despite reasonable and diligent efforts. Id. at 1376; see also Mann v. Mann, 523 So.2d 804 (Fla. 3d DCA 1988); Reaves v. Reaves, 514 So.2d 1147 (Fla. 2d DCA 1987). Thus, when presented with a request to convert rehabilitative alimony into permanent alimony, the trial court must first evaluate the efforts of the petitioner to determine whether the goal for the rehabilitative alimony award has not been met despite the petitioner’s diligent efforts. Pettry v. Pettry, 768 So.2d 8 (Fla. 5th DCA 2000), review denied, 789 So.2d 347 (Fla.2001). “If, through no fault of the petitioner, the goal is not met, the rehabilitative alimony may be extended.” See Brock v. Brock, 682 So.2d 682, 683 (Fla. 5th DCA 1996). While a trial court may unquestionably consider any factors established at the time of the final judgment, the entitlement to conversion is based primarily on events and actions that occurred after the initial award of rehabilitative alimony that kept the former dependent spouse from becoming rehabilitated as envisioned by the trial court at the time the final judgment was entered. O’Neal, 410 So.2d at 1372.

We cannot tell from the record before us how the trial court would have applied these principles at the time it declined to grant permanent alimony, as it appears that the court did not believe that it had the discretion to make that call. Accordingly, we remand with instructions for the trial court to make a determination on conversion in light of this opinion. This court expresses no opinion regarding whether a conversion to permanent alimony is appropriate. We leave the order of the trial court on the motion of the former wife for attorneys’ fees and costs undisturbed, but note that the trial court may wish to revisit this issue if further activities of the parties pursuant to this opmion warrant further consideration of fees and costs.

REVERSED and REMANDED with instructions.

GRIFFIN and EVANDER, JJ., concur.

      . The former husband sought relief as well, but as the trial judge found against him in this endeavor, and as we find no error in that respect, we will not further consider any issues growing out of those matters.

      . Although there are undoubtedly stipulations that would require the approval of the trial court in order to become effective, ones dealing with the modification of pleadings are not among them.


author: PALMER, J.

text:
    Demetrice T. LONGLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4117.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2010.

      James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PALMER, J.

Demetrice T. Longley (defendant) appeals his judgments and sentences which were entered by the trial court after a jury found him guilty of committing the crimes of conspiracy to deliver cocaine and possession of cocaine. Determining that the trial court erred in issuing its jury instruction with regard to the conspiracy count, we reverse and remand for a new trial on that conviction. We affirm as to the possession of cocaine conviction.

The defendant was convicted based upon a drug transaction set up by a confidential informant, Ewanda Stephens. The defendant approached Stephens and offered to sell drugs to anyone that she might know who wanted them. Thereafter, Stephens contacted the police department regarding the defendant’s offer and agreed to work as a confidential informant. Stephens then contacted the defendant and set up a drug sale to a representative of the police department. The drugs were procured by Jerry Brown. On the day of the arranged sale, the defendant and Brown arrived at Stephens’ hotel room. Brown stayed in the hotel room while the defendant and Stephens went to meet the police department representative at his hotel room. The defendant waited in his vehicle while Stephens went into the hotel room. At that time, the defendant was arrested. Based on this evidence, the jury found the defendant guilty of conspiring to deliver cocaine and possession of cocaine.

The defendant contends that the trial court committed fundamental error in instructing the jury on the charge of conspiracy to deliver cocaine. We agree.

The trial court instructed the jury as to an element of the conspiracy charge as follows:

In order to carry out the intent, Deme-trice Longley agreed, conspired, combined, confederated with Jerry L. Brown or Ewanda Stephens to cause delivery of cocaine to be committed either by them or by one of them or by some other person.

(Emphasis added). This instruction improperly authorized the jury to find the defendant guilty of conspiracy solely based upon conspiring with Stephens, who was a confidential informant. See Spera v. State, 656 So.2d 550 (Fla. 2d DCA 1995) (stating that there must be an agreement between the defendant and one other party who is not a law enforcement officer); O’Connor v. State, 590 So.2d 1018, 1019 (Fla. 5th DCA 1991) (considering a confidential informant to be a police agent for purposes of a conspiracy charge). Because the jury returned a general verdict form, it is unknown whether the jury found the defendant guilty of conspiring with Stephens or with Brown. This situation is analogous to cases involving erroneous jury instructions involving a theory of a crime not charged in the information. See Trahan v. State, 913 So.2d 729, 729 (Fla. 5th DCA 2005) (holding that reversible error was committed because the general verdict form made it impossible to determine whether the jury found the defendant guilty of the charged acts or those acts in the jury instructions that were not charged in the information).

The State contends that no error occurred because the initial agreement between the defendant and Stephens occurred before Stephens was acting as a police agent. We disagree. No agreement existed between the defendant and Stephens to enter into a drug transaction until after Stephens contacted the police.

The State also argues that this court should interpret the current conspiracy statute, which was amended in 1975, to allow a defendant to be convicted for conspiring with a law enforcement agent (the unilateral conspiracy approach). The State’s argument is unpersuasive because Florida courts have continued to hold that Florida adheres to the bilateral conspiracy approach; thus, a defendant cannot be found guilty of conspiring with a law enforcement officer. See Spera, 656 So.2d at 551; O’Connor, 590 So.2d at 1019.

Lastly, the State argues that the jury instruction is similar to an instruction given in Isom v. State, 619 So.2d 369 (Fla. 3d DCA 1993). However, this case is distinguishable. In Isom, the Third District held that the jury instruction did not amount to fundamental error because the police agent’s conduct was not a material issue with respect to the particular conspiracy count. Id. at 374-75. Here, as the State properly concedes, the State did rely on the agreement between the defendant and Stephens to prove the conspiracy charge.

Accordingly, we reverse the defendant’s conviction for conspiracy to deliver cocaine and remand for a new trial on that charge. We affirm the defendant’s judgment and sentence for possession of cocaine.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and JACOBUS, JJ„ concur.


text:
    Leroy BYNUM, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2182.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2010.
    Leroy Bynum, Clermont, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Leroy Bynum appeals the order entered by the trial court granting in part and denying in part his motion to correct an illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion Bynum contended that he was entitled to receive an additional 97 days in jail credit. The State candidly acknowledges that the attachments to the trial court’s order do not refute Bynum’s claim, and properly concedes that the order must be reversed. Accordingly, we reverse the trial court’s order and remand this matter with instructions to either attach portions of the record refuting Bynum’s claim or award him appropriate jail credit.

REVERSED and REMANDED.

SAWAYA, J., concurs.

GRIFFIN, J., dissents without opinion.


text:
    Antonio MENDEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-578.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2010.
    Antonio Mendez, Daytona Beach, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the Order denying Mendez’s Motion to Correct Illegal Sentence rendered November 2, 2009 in case number 2006-CF-005964-A-0, in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, ORFINGER and TORPY, JJ., concur.


text:
    BANK OF AMERICA, N.A., Appellant, v. BRAND ENERGY SOLUTIONS, LLC, f/k/a, Brand Scaffold Builders, LLC, a Delaware limited liability company, Appellee.
    No. 1D09-4502.
    District Court of Appeal of Florida, First District.
    April 20, 2010.
    Juan A. Gonzales and Tony Andre of Liebler, Gonzalez & Portuondo, P.A., Miami, for Appellant.
    W. Braxton Gillam, IV, and Robert M. Dees of Milam Howard Nicandri Dees & Gillam, P.A., Jacksonville, for Appellee.
   PER CURIAM.

DISMISSED. See Caldwell v. Wal-Mart Stores, Inc., 980 So.2d 1226, 1229 (Fla. 1st DCA 2008); see also Henderson v. Tandem Health Care of Jacksonville, Inc., 898 So.2d 1191 (Fla. 1st DCA 2005) (dismissing appeal of nonfinal order where previous order rather than order on appeal had determined entitlement to arbitration). In light of the dismissal, all pending motions are denied as moot.

WOLF, LEWIS, and MARSTILLER, JJ., concur.


text:
    HIDDEN HILLS COUNTRY CLUB ESTATES HOMEOWNERS ASSOCIATION, INC., Appellant, v. Margaret BRAY and Katie Bray, Appellees.
    No. 1D09-1903.
    District Court of Appeal of Florida, First District.
    April 20, 2010.
    Scott W. Fallar, of Crabtree & Fallar, P.A., Jacksonville, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

The appellant is a homeowners association which filed a lawsuit against the ap-pellees, wherein the appellant sought in-junctive relief upon alleged violations of certain restrictive covenants. In the lawsuit the appellant requested an award of attorneys’ fees and costs, pursuant to a provision in the covenants. The appellees also requested an award of fees and costs. The lawsuit was resolved without the necessity of an injunction, and the court entered an order making the parties responsible for their own fees and costs.

Although the court apparently misconstrued a provision in the covenants, with regard to a requirement for written notice and an opportunity to be heard, the court found (without regard to that provision) that the appellant had not acted reasonably in pursuing legal action without making an adequate attempt to resolve the matter privately. The court further observed that the dispute on the merits had become moot before the lawsuit was filed, and that the parties each bore some fault in the case having proceeded to trial. Based on those findings, the court was entitled to make the parties responsible for their own fees and costs.

AFFIRMED.

HAWKES, C.J., ROBERTS and CLARK, JJ., concur.


text:
    Kevin GLICK and Lane Glick, Appellants, v. Jim FAISON, Trustee of the Duren Family 1992 Trust, Appellee.
    No. 1D09-0412.
    District Court of Appeal of Florida, First District.
    April 20, 2010.
    Kevin Glick and Lane Glick, pro se, Appellants.
    No appearance for Appellee.
   PER CURIAM.

We dismiss for lack of jurisdiction. See Marinich v. Special Edition Custom Homes, LLC, 1 So.Sd 1197, 1198 (Fla. 2d DCA 2009) (dismissing appeal for lack of jurisdiction because an interrelated counterclaim was pending in trial court).

DISMISSED.

WOLF, WEBSTER, and THOMAS, JJ., concur.


text:
    Victor Phillip MACKOUL, Former Husband, Appellant, v. Lisa Ortega Cruikshank MACKOUL, Former Wife, Appellee.
    No. 1D09-2439.
    District Court of Appeal of Florida, First District.
    April 20, 2010.

      Michael L. Edwards, Jacksonville, for Appellant.
    No appearance, for Appellee.
   PER CURIAM.

Victor Mackoul, the Former Husband, appeals a final judgment of dissolution of marriage which imposed a lien on premarital real property to secure payment of child support and permanent periodic alimony. The trial court did not specify whether the lien only secures arrearages at the time of the Former Husband’s death or whether it was also intended to secure future payments in order to minimize economic harm to the surviving family. Accordingly, that portion of the order is reversed and remanded for further proceedings. We affirm all other issues without discussion.

To the extent necessary to protect payment of alimony or child support, the trial court may require the payor spouse to secure the award in appropriate circumstances to satisfy arrearages or to ensure the financial wellbeing of the family. §§ 61.08(3), 61.13(1)(c), Fla. Stat. (2006); Sobelman v. Sobelman, 541 So.2d 1153,1154-55 (Fla.1989). However, such a requirement may not be imposed absent special circumstances, such as a

spouse potentially left in dire financial straits after the death of the obligor spouse due to age, ill health and/or lack of employment skills, obligor spouse in poor health, minors living at home, supported spouse with limited earning capacity, obligor spouse in arrears on support obligations, and cases where the obligor spouse agreed on record to secure an award....

Smith v. Smith, 912 So.2d 702, 704-05 (Fla. 2d DCA 2005) (quoting Richardson v. Richardson, 900 So.2d 656, 661 (Fla. 2d DCA 2005)). The trial court must set forth specific findings of special circumstances, the payor spouse’s ability to afford the security, and whether the security exists only for arrearages, or alternatively, if the whole or a portion of the security is payable to the surviving family to minimize economic harm. Richardson, 900 So.2d at 660-61; Smith, 912 So.2d at 705; Plichta, v. Plichta, 899 So.2d 1283, 1287 (Fla. 2d DCA 2005); but see Massam v. Massam, 993 So.2d 1022, 1025 (Fla. 2d DCA 2008) (stating an order is sufficiently specific when it states the security is to secure alimony and does not make the payee spouse the beneficiary for more than the amount of arrearages owed upon payor spouse’s death). However, the trial court may not require excessive security. Watford v. Watford, 605 So.2d 1313, 1315 (Fla. 4th DCA 1992) (holding that the trial court abused its discretion by imposing a lien on over a million dollars in assets to secure an award of $100,000 plus permanent periodic alimony).

Here, the record supports the trial court’s imposition of a lien to secure the payment of alimony and child support. The Former Husband is 77 years old and in poor health. The Former Husband is uninsurable but has significant unencumbered assets that he uses to support himself. The Former Wife would potentially be left in dire financial straits after the Former Husband’s death because she is not capable of full-time employment. The Former Wife has significant medical history resulting in some medical disability, and both parties agreed that the Former Wife needs to be home on afternoons and weekends to care for their youngest child, who has been diagnosed with a form of autism and cannot be left alone. The child also may remain dependant even after he reaches majority.

Although the trial court did not abuse its discretion in imposing a lien, the trial court failed to make any specific findings concerning whether, in the context of alimony, the lien only secures arrearages at the time of the Former Husband’s death or if it was also intended to secure future payments in order to minimize future economic harm to the family. Without such findings we are unable to determine whether the amount of the lien was appropriately tailored to the obligation being secured. Therefore, we reverse the portion of the order imposing the lien for security of alimony and child support and remand to the trial court for additional findings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

HAWKES, C.J., WETHERELL and ROWE, JJ., concur.


author: BENTON, J.

text:
    Terry M. DAVIS, Appellant, v. Bonny P. DAVIS, Appellee.
    No. 1D09-4477.
    District Court of Appeal of Florida, First District.
    April 20, 2010.

      Kristin Adamson, Tallahassee, for Appellant.
    Jeffrey P. Whitton, Panama City and Monica Cothran, Panama City, for Appel-lee.
   BENTON, J.

We have for review a dissolution decree finding a special equity in favor of the former wife, Bonny P. Davis, in the marital home to which, when the dissolution petition was filed, the parties held title as tenants by the entireties. Here as below, the former husband, Terry M. Davis, contends that the ruling on special equity was error. We reverse and remand for equitable distribution without regard to any special equity in favor of either party.

Under section 61.075(5)(a)(5.), Florida Statutes (2007), it was presumed that real property the parties to a dissolution proceeding held as tenants by the entireties was a marital asset, even where the real property was originally the sole property of one of the parties to the marriage. Before the statute was amended to abolish special equity outright, see Ch. 08-46, § 1, at 738, Laws of Fla. (now codified as § 61.075(11), Fla. Stat. (2009)), it placed the burden on the party asserting a claim of special equity to prove an absence of donative intent in the event of an inter-spousal conveyance: “The party claiming a special equity and seeking to have the property declared a non-marital asset ... has the burden of overcoming this presumption by proving that a gift was not intended.” Robertson v. Robertson, 593 So.2d 491, 494 (Fla.1991); see also Stough v. Stough, 933 So.2d 603, 607 (Fla. 1st DCA 2006) (same). This presumption, which went unacknowledged in the decree under review, was not overcome here.

The former wife argues that the distribution of marital property was equitable nevertheless and should be affirmed for that reason. But we “conclude that the record in this case will not permit us to affirm on this alternate basis.” Meyer v. Meyer, 25 So.3d 39, 42 (Fla. 2d DCA 2009). See Robertson v. State, 829 So.2d 901, 909 (Fla.2002) (holding that where defendant “never received an opportunity to present evidence or make argument” on an alternative theory, “the Third District improperly relied upon the ‘tipsy coachman’ doctrine”). The decree under review contained no findings on statutory factors that could support the unequal distribution of marital property for any reason(s) other than the special equity on which the trial court improperly relied.

“Equitable distribution of a marital asset should be equal, unless legally sufficient justification for an unequal distribution is given based on the relevant statutory factors.” Foley v. Foley, 19 So.3d 1031, 1032 (Fla. 5th DCA 2009); see also Stough v. Stough, 18 So.3d 601, 604-05 (Fla. 1st DCA 2009) (reversing unequal distribution when factors upon which the trial court relied did not weigh in favor of an unequal distribution), rev. denied, 26 So.3d 582 (Fla.2010). We therefore reverse the decree insofar as it distributes marital property, and remand with directions to treat the entire marital home as marital property — without any special equity in favor of either party — and to effect an equitable distribution of marital property accordingly.

Reversed and remanded with directions.

VAN NORTWICK and CLARK, JJ., concur.


text:
    John H. WAASER, Petitioner, v. L.W.T., INC., Respondent.
    No. 1D09-5236.
    District Court of Appeal of Florida, First District.
    April 20, 2010.
    John H. Waaser, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied as untimely. See Fla. R.App. P. 9.100(c)(1).

HAWKES, C.J., WETHERELL and ROWE, JJ., concur.


author: WARNER, J.

text:
    Tanesha BANNISTER, Petitioner, v. Al LAMBERTI, Sheriff of Broward County, Respondent.
    No. 4D10-1197.
    District Court of Appeal of Florida, Fourth District.
    April 20, 2010.

      Samuel J. Montesino of Samuel J. Mon-tesino, P.A., West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for respondent.
   WARNER, J.

Tanesha Bannister petitions this court for a writ of habeas corpus, challenging the trial court’s order of pretrial detention after she failed to appear at her arraignment for grand theft. The trial court did not make findings that her failure to appear was willful, nor that pretrial detention was necessary because no further conditions of release were likely to assure petitioner’s appearance at subsequent proceedings. We grant the petition because of the trial court’s failure to make a finding that no further conditions of release would assure her presence at trial. However, we also "write to explain that although the court did not make an express finding of willfulness, no such finding was necessary where the petitioner did not place her conduct in failing to appear at issue.

Petitioner had been released on a $1,000 bond after her arrest for grand theft, her first felony arrest according to her attorney’s representation to the court. She failed to appear at her arraignment. A capias was issued, and over a year later petitioner was subsequently arrested. Counsel entered a not guilty plea on her behalf and requested a release on a new bond, suggesting a $2,500-$5,000 bond. Counsel noted that the court is “w[e]ll aware as far as some of the background.” Neither petitioner nor her attorney offered an explanation for her failure to appear. No evidence was taken. The prosecutor advised that petitioner had two other failures to appear — one in 2006 on a trafficking or related charge and one in 2008 for larceny. The trial court determined that bond was not appropriate because of her two prior failures to appear.

As we noted in Blair v. State, 15 So.3d 758 (Fla. 4th DCA 2009), a trial court’s authority to order pretrial detention, even after a failure to appear which violates a bond condition, is circumscribed by the statutes and constitutional provisions. See Art. I, § 14, Fla. Const.; § 907.041(4), Fla. Stat. Our constitution allows pretrial release on reasonable conditions for most non-capital crimes not punishable by life imprisonment. “If no conditions of release can reasonably ... assure the presence of the accused at trial or assure the integrity of the judicial process, the accused may be detained.” Art. I, § 14, Fla. Const. Section 907.041(4)(c)7., Florida Statutes, permits the court to order pretrial detention if a defendant violates one or more conditions of a bond and “the violation, in the discretion of the court, supports a finding that no conditions of release can reasonably ... assure the presence of the accused at trial.”

Petitioner violated her bond condition by failing to appear at her arraignment. Petitioner maintains that the record is devoid of evidence that her failure to appear was willful. The only reference as to why she failed to appear was her attorney’s cryptic explanation that the court was “well aware” of the background. Petitioner offered no record explanation which would have provided an excuse for her conduct.

In Blair we held that pretrial detention may not be ordered based upon a failure to appear unless the court finds that the failure to appear was willful. However, the facts of Blair are considerably different than this case. Blair was held without bond after he failed to appear for a court date in a felony DUI proceeding. He had been arrested for several misdemeanor charges of DUI, but he had never been arrested for the felony charge. As a result, he did not receive notice of the court appearance. Moreover, at a hearing on the misdemeanor crimes, he had been told his court appearance had been cancelled. In concluding that the trial court could not order pretrial detention without finding that his failure to appear was willful, we cited to Lee v. State, 956 So.2d 1292 (Fla. 4th DCA 2007); Johnson v. Jenne, 913 So.2d 740 (Fla. 4th DCA 2005); and Winters v. Jenne, 765 So.2d 54 (Fla. 4th DCA 1999). In each of those cases, as in Blair, the accused had offered some innocent explanation for his or her failure to appear.

Winters relied on Malave v. State, 727 So.2d 1002 (Fla. 4th DCA 1999), where the defendant failed to appear because the person taking the defendant to his court appearance took a detour, causing the defendant to be late. Malave cited to Wilson v. State, 669 So.2d 312, 313 (Fla. 5th DCA 1996), where the court said: “Generally, if there is a failure to appear, the court may simply commit a defendant to custody without determining whether conditions of release are appropriate. However, implicit in the rule [Fla. R.Crim. P. 3.131(g) ] is that the failure to appear occurred after reasonable notice, and was willful.” In Wilson as well as all of the foregoing cases, the defendant presented a genuine issue as to whether the defendant’s failure to appear was willful or a result of other causes, such as lack of service on the defendant of the notice of arraignment.

Given the fact that all of the cases discussing the necessity of a finding of willfulness involved circumstances where the defendant offered an explanation to excuse his or her failure to appear, we understand Blair ⅛ requirement of a willfulness finding to apply where the accused puts at issue the deliberate nature of the failure to appear. Where the accused fails or refuses to explain his or her absence, he or she has essentially conceded that the failure to appear is not excusable and is willful.

In this case, petitioner made no attempt to excuse her failure to appear. The subject was not even mentioned at the hearing. Therefore, the fact that the court did not pronounce her failure to appear as willful does not violate any constitutional provision, statute, or rule, where the issue was not presented to the court.

Nevertheless, we must grant the petition because the trial court failed to make a finding that pretrial detention was necessary to assure her appearance at trial. See Blair, 15 So.3d at 759 (holding that the trial court improperly ordered pretrial detention without finding that “no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process”). Instead, the trial court explained that a bond was not appropriate where the petitioner had failed to appear twice in the past to answer for charges against her, in addition to her current failure to appear. This might be tantamount to a finding that no reasonable conditions would secure her presence, but on this record we will not make that assumption. The original bond on this crime was small. The record contains little about the circumstances surrounding the prior failures to appear. A larger bond might secure her appearance. We are reluctant to deprive petitioner of her constitutional right to pretrial release unless the court makes the required constitutional finding that no reasonable conditions can assure her presence at trial. We grant the petition and remand the case to the trial court to make that determination.

Petition granted.

HAZOURI and MAY, JJ., concur.


text:
    Wallace L. PARKER and wife Sonja Y. Parker, Appellants, v. Paul TINSLEY and wife Susan Tinsley, Appellees.
    No. 1D09-5267.
    District Court of Appeal of Florida, First District.
    April 20, 2010.
    Oscar J. Locklin of Loeklin, Jones & Saba, P.A., Milton, for Appellants.
    Paul Tinsley and Susan Tinsley, pro se, Appellees.
   PER CURIAM.

Appellants seek review of the trial court’s order granting appellees’ motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540. We agree that the trial court committed reversible error by granting the motion because it sought to correct judicial error which is beyond the scope of rule 1.540. See Curbelo v. Ullman, 571 So.2d 443, 444-45 (Fla.1990) (holding that rule 1.540 does not provide relief from judicial error which must be corrected by way of a motion for new trial or rehearing pursuant Florida Rule of Civil Procedure 1.530 or an appeal). Accordingly, we reverse the trial court’s order granting relief under rule 1.540.

REVERSED.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    C.B., Mother of N.F., A.F., and E.F., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 5D09-2485, 5D09-2486, 5D09-2487.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2010.
    Nickole E. Frederick, Orlando, for Appellant.
    Ward L. Metzger, of Department of Children and Families, Jacksonville, for Appellee.
   PER CURIAM.

C.B., the mother, appeals the orders terminating her parental rights to her five children. We affirm in all respects, save one. As the Department of Children and Families (DCF) concedes, the trial court erred by terminating the mother’s parental rights as to N.F. based on multiple out-of-home care placements, as set forth in section 39.806(1)(£), Florida Statutes (2008). This ground was not pled as a basis for termination in the petition and DCF failed to seek amendment of the petition to include this statutory ground as to N.F. See R.S. v. Dep’t of Children & Families, 872 So.2d 412, 413 (Fla. 4th DCA 2004). Despite this error, the court properly terminated the mother’s parental rights as to all five children as other grounds supporting termination were adequately established. See J.C. v. Dep’t of Children & Families, 959 So.2d 431 (Fla. 4th DCA 2007) (holding that despite error in termination order, which incorrectly included abandonment as basis for termination, termination order would still stand where DCF established two other grounds supporting termination).

On remand, the trial court shall strike this finding. In all other respects, the termination orders are affirmed.

AFFIRMED AS MODIFIED.

MONACO, C.J., ORFINGER and JACOBUS, JJ., concur.


text:
    Gary LEWIS, Individually and p/n/f of Minor, etc., Appellant, v. FLORIDA MEMORIAL FUNERAL HOME, et al., Appellee.
    No. 5D09-2043.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2010.
    Michael J. Mortell, of Lewis, Mortell & Lewis, LLP, Stuart, for Appellant.
    Michael R. D’Lugo, of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Gonzalez v. Metro. Dade County Pub. Health Trust, 651 So.2d 673 (Fla.1995); Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950).

MONACO, C.J., ORFINGER and JACOBUS, JJ., concur.


text:
    C.D., Mother of P.S., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D09-2867.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2010.
    Carol Ann Volini, Ocala, for Appellant.
    Kelly A. Swartz, Rockledge, for Appel-lee.
    Hillary S. Kambour, Tavares, for Appel-lee Guardian Ad Litem Program.
   PER CURIAM.

AFFIRMED. § 39.521, Fla. Stat. (2008).

PALMER, TORPY and COHEN, JJ, concur.


author: WALLACE, Judge.

text:
    D.M.G., n/k/a D.M.M. Appellant, v. G.E.M., Appellee.
    No. 2D09-2899.
    District Court of Appeal of Florida, Second District.
    April 23, 2010.
    Allison D. Thompson of The Orsini and Rose Law Firm, Tampa, for Appellant.
    Dominic J. Baccarella of Baccarella & Baccarella, P.A., Tampa, for Appellee.
   WALLACE, Judge.

D.M.M. (the Mother) appeals the circuit court’s order confirming the report of a general magistrate (GM) and changing the primary residential custody of the parties’ minor child, C.E.M., from the Mother to G.E.M. (the Father). Because the Father failed to prove a substantial and material change in circumstances necessary to warrant a modification of the prior judgment awarding primary residential custody to the Mother, we reverse the circuit court’s order and remand for further proceedings.

I. THE FACTS AND PROCEDURAL HISTORY

The Mother and the Father never married. They each have a modest income and very limited assets. After the Mother became pregnant with C.E.M., she and her older daughter, M.G., began living with the Father at his mother’s home. After C.E.M. was born in 2001, the Mother lived with the Father and his mother for approximately eleven months. She then moved out and lived on her own with C.E.M. and M.G. In September 2002, the Father filed a petition to determine paternity with the circuit court. He requested shared parental responsibility, primary residential custody of C.E.M., and child support. The Mother filed a counterpetition requesting shared parental responsibility, primary residential custody, and child support.

In the paternity proceeding, the Father made multiple allegations about the Mother’s fitness to have primary residential custody of C.E.M., including (1) her history of evictions; (2) her lack of stable employment; and (3) the removal of the Mother’s oldest child from her and her former husband, C.G., because of the former husband’s alleged physical abuse of the child and the Mother’s failure to protect the child from harm. Despite the Father’s claims about the Mother’s unfitness, the circuit court entered a final judgment of paternity in April 2003, granting shared parental responsibility to the parties and awarding primary residential custody to the Mother. The circuit court also ordered the Father to pay child support.

In February 2007, approximately four years after the entry of the final judgment of paternity, the Mother filed a pro se supplemental petition to modify custody. This petition started the events that led to the entry of the order under review. In her pro se petition, the Mother alleged that she had remarried in February 2006 and wished to relocate with C.E.M. and her new husband to Oklahoma. She also asked the circuit court to review the child support award because the Father was no longer in school and was working full-time. Later, the Mother filed an amended supplemental petition for modification through counsel. In her amended petition, the Mother reiterated her request to relocate to Oklahoma. She also requested an increase in child support, payment of child support arrearages, the entry of an income deduction order, and a reasonable visitation schedule for the Father.

The Father filed an answer and counter-petition to modify custody through counsel. He alleged that a substantial change of circumstances had occurred when the Mother remarried and decided to relocate to Oklahoma. The Father asserted that the Mother’s relocation with C.E.M. would have a significant impact on his relationship with the child. The Father requested (1) that he be awarded primary residential custody of C.E.M. and child support from the Mother and (2) that the Mother be awarded frequent and liberal visitation.

After the parties filed their initial pleadings, the circuit court ordered a social investigation and study report. In February 2008, the court-appointed investigator filed a report based upon her investigation of the issues of visitation, modification of primary residency, and relocation. The report includes an analysis of the child’s best interest that correlates with the factors set forth at section 61.13(3), Florida Statutes (2006). With respect to the factor listed at section 61.13(3)(f), “[t]he moral fitness of the parents,” the investigator stated:

There has been no supported evidence that [the Father] or [the Mother] is morally unfit. However, [the Mother] seems to have a pattern of partnering with men who engage in unlawful and questionable activity. [The Mother’s] current husband, [D.M.,] was incarcerated in the State of Oklahoma on substance abuse related charges and also admittedly abused substances. This information was disclosed while discussing involvement with counseling. In addition, [the Mother’s] first husband, [C.G.], allegedly physically abused her oldest daughter. This information has not been corroborated through official legal documents from Oklahoma. Seemingly, [the Mother] exhibits a tendency to associate with others who have questionable backgrounds and behavior.

Thus, while conceding the absence of evidence of the Mother’s unfitness, the investigator questioned her judgment in the selection of male partners.

In addition, the investigator’s report echoed charges made by the Father that the Mother had exhibited “employment and residential instability” since leaving the home that he shared with his mother. The investigator expressed concern that the Mother’s relocation to Oklahoma with the child “would [have] a significant impact on the parent/child bond between [C.E.M.] and [the F]ather due to disruption and infrequency of contact.” Viewing the issues before her through the prism of the Mother’s planned relocation to Oklahoma with her current husband, the investigator recommended “that [the Father] be granted primary residential custody of the minor child, [C.E.M.]”

On July 22, 2008, a significant event in the case occurred: the Mother obtained a dissolution of her marriage to D.M., her then current husband. The Mother filed a second amended supplemental petition for modification the next day. In that petition, she withdrew her request to relocate with C.E.M. to Oklahoma. The Mother also alleged that there had been a substantial change in circumstances requiring modification of child support and other relief, including that the Father was in arrears in the payment of his child support obligation and had recently begun to work full-time. She requested, among other things, an increase in child support and the entry of an income deduction order.

A final hearing was held before the GM in September 2008. At the beginning of the hearing, the Father’s counsel noted that since the Mother had filed her petition, she had divorced her husband and no longer planned to relocate to Oklahoma. Counsel also noted that the social study report was completed before the Mother was divorced. Despite these changes in the operative facts in the case, the Father wished to proceed on his petition to modify residential custody.

The Father testified at the hearing that he desired a change in primary residential custody for the following reasons:

I’ve been a stable parent for [C.E.M.] for pretty much her whole life. I’ve only had one place I’ve lived, I’ve worked at Wal-mart for eight years, longer than she’s been alive and [the Mother] has always wanted to move away from Florida and even though right now she thinks she doesn’t want to move now, some time down the road she may and I really don’t want to have my daughter not have me in her life close to everyday.

Thus the Father’s hearing testimony refocused the concern expressed in his coun-terpetition that the Mother was preparing to move with C.E.M. to Oklahoma on the possibility that the Mother might decide “to move away from Florida” at some undetermined date in the future.

In addition, the Father testified that the Mother was “a good mom” but he claimed that she had made some decisions that were not good for C.E.M., including marrying D.M. one month after he had been released from prison and changing her residence frequently. The Father also admitted that he had stopped paying child support in 2005 and that he was currently working full-time. The Father explained that he had stopped paying support for C.E.M. because he had to pay his student loans and because he was taking care of C.E.M. part-time during the day.

The Mother admitted to a history of six or seven moves since she had left the Father’s apartment with C.E.M. and M.G. However, the Mother testified that she was required to move because she was not earning enough money to support herself and the Father was not paying her child support on a regular basis. In other words, she moved in order to find places that she could afford. At the time of the hearing, the Mother was in her second year at her current residence. She planned to stay there for three years and to attempt to purchase a home in 2010.

The GM subsequently filed a report and recommendation on the parties’ petitions. In his report, the GM concluded — in pertinent part — that there had been a substantial change in circumstances warranting modification of the custodial arrangement based on the following findings:

12. The report from the social study and investigation thoroughly addresses — and the testimony and evidence confirmed — that the Respondent/Mother has established “a pattern of partnering with men who engage in unlawful and questionable activity” and that those relationship choices have, among other things, resulted in numerous residential and school changes and a lack of continuity and stability for the parties’ child. The undersigned concludes that these represent substantial changes in circumstances warranting modification of the custodial arrangement.

Accordingly, the GM recommended that the Father serve as the primary residential parent.

The Mother, who was once again proceeding pro se, filed an objection to the GM’s report. She argued that no evidence of a substantial change of circumstances was presented at the hearing. The Mother contended that there was “no pattern of [partnering] with men who engaged in unlawful and questionable activity and no evidence was [submitted] with this pattern.” She noted that from the entry of the final judgment of paternity through the final hearing she had only been “in one relationship.” The Mother added that “[t]here is no evidence in the record that relationship] choices on the part of the [M]other have resulted in] ‘numerous residence and school changes.’ The child has attended the same school since entering kindergarten.”

Upon a review of the GM’s recommendation, the record, and the Mother’s objection, the circuit court agreed with the Mother and — in effect — sustained her objection. In March 2009, the circuit court entered an order on the GM’s recommendation, ruling — in pertinent part — as follows:

4. The magistrate concluded that the Mother has established a “pattern of partnering with men who engage in unlawful and questionable activity” and that those relationship choices have, among other things, resulted in numerous residential and school changes and a lack of continuity and stability for the parties’ child. The record shows that since the original Final Judgment the Mother has had one relationship other than the Father of the Child. This is not enough to establish “a pattern.” Additionally, the magistrate[’]s report and recommendation determined that there had been a substantial change based on the fact that the relationships had resulted in numerous residential and school changes and a lack of continuity and [stability] for the parties’ child. The record does not show that the residential and school changes were a result of the Mother’s relationships. Rather, the record shows that the Mother was forced to move[ ] based on tough financial circumstances. In fact, the Father neglected to pay the Mother child support for some time. Additionally, the child did not have any unnecessary school changes as a result of the Mother[’]s changes in residence. The child was enrolled in a private kindergarten program which did not continue into first grade. Upon entering the first grade, the child has not changed elementary schools.

Based on this ruling, the circuit court concluded that the GM had “misconstrued the legal effect of the evidence as the evidence does not show that a substantial change of circumstances occurred since the entry of the original Final Judgment” and that the GM’s report and recommendation should be vacated. In a separate order, the circuit court remanded the case to the GM for further findings of fact, conclusions of law, and recommendations. The circuit court noted that the GM “shall be authorized to conduct, if necessary, further hearings as to this remand and proceeding.”

On remand, the GM entered an amended report and recommendation. In the amended report, the GM noted that no further formal hearings were conducted. Despite the circuit court’s rejection of the GM’s findings and recommendations in the initial report, the amended report repeated those findings and recommendations without substantial change. In a footnote, the GM noted that the initial report had adopted a finding by the court-appointed custody evaluator that C.E.M. had numerous school changes. Upon a review of the record, the GM “acknowledge^] that the child did not have numerous school changes.” Accordingly, the GM deleted that erroneous finding from the amended report.

Once again, the GM found that a modification of custody was in C.E.M.’s best interest and recommended that the final judgment of paternity be modified to award primary residential custody of C.E.M. to the Father and that the parties continue to exercise shared parental responsibility. The GM also recommended that the Mother pay child support to the Father.

On June 9, 2009, the circuit court entered an order approving and ratifying the GM’s report and recommendations and changing the primary residential custody of C.E.M. from the Mother to the Father. However, the only significant change in the GM’s amended report was the deletion of the erroneous finding concerning “numerous school changes,” a change which was favorable to the Mother. In effect, the circuit court approved a change in primary residential custody from the Mother to the Father based on facts that it had previously found insufficient to support such a modification. This appeal by the Mother followed.

II. DISCUSSION

There is a presumption in favor of an original custody determination, and before a court may modify such a judgment, it “must decide whether there is a ‘factual basis sufficient to show that conditions have become materially altered since the entry of the previous decree.’ ” Wade v. Hirschman, 903 So.2d 928, 933 (Fla.2005) (quoting Frazier v. Frazier, 109 Fla. 164,147 So. 464, 467 (1933)). It then must determine whether “the child’s best interests justify changing custody.” Id. at 931 n. 2 (quoting Cooper v. Gress, 854 So.2d 262, 265 (Fla. 1st DCA 2003)). But “[t]he preliminary question of a substantial and material change is a prerequisite to considering the best interests of the child under section 61.13(2)(d), Florida Statutes.” Mesibov v. Mesibov, 16 So.3d 890, 892 (Fla. 5th DCA 2009). And if “the allegations and evidence are insufficient as a matter of law to satisfy the substantial change test,” an order modifying custody must be reversed. Id.

Here the GM’s erroneous factual findings and erroneous application of the law with respect to his determination that a substantial change of circumstances had occurred since the entry of the final judgment of paternity were clear on the face of the amended report and recommendations. It follows that the circuit court erred in approving and ratifying the amended report and recommendations. See French v. French, 12 So.3d 278, 280 (Fla. 5th DCA 2009) (“Because the errors in the general magistrate’s findings of fact as to expenses were clear on the face of its report, the trial court erred in confirming the report.”). The circuit court had already reviewed the record in response to the Mother’s exceptions to the GM’s original report and recommendations and had concluded that the GM’s factual finding that the Mother had established “a pattern of partnering with men who engage in unlawful and questionable activity” was not supported by competent, substantial evidence in the record. Furthermore, the circuit court had concluded that “[t]he record does not show that the residential and school changes were a result of the Mother’s relationships. Rather, the record shows that the Mother was forced to move[] based on tough financial circumstances. In fact, the Father neglected to pay the Mother child support for some time.” Based upon our review of the record, we agree with the circuit court’s conclusions with respect to the GM’s factual findings.

On remand to the GM following the rejection of the original report and recommendations, there was nothing new. Although the circuit court authorized the GM to conduct further hearings on remand, the GM did not do so. Instead, he made the same recommendation based on the same findings concerning the Mother’s purported “pattern” and residential instability that the circuit court had already determined did not support the recommendation.

The record reflects that the only substantial change that occurred since the entry of the final judgment of paternity was the Mother’s marriage to D.M. and her closely-related decision to relocate to Oklahoma. The Mother’s residential and employment instability were factors that had been considered when the final judgment was entered, and the circuit court had awarded her primary residential custody despite those concerns. As noted by the court-appointed investigator, the Mother’s history of residential and employment instability took on new significance when she decided to move to Oklahoma and to remove C.E.M. from the stabilizing influence of the Father and his extended family. However, as the Father’s counsel conceded at the beginning of the hearing before the GM, that situation had changed and was no longer a factor in the case. Moreover, the record reflects that the Mother’s residential and employment history had become more stable during the two to three years preceding the hearing.

III. CONCLUSION

For the foregoing reasons, the circuit erred in finding that a substantial change of circumstances had occurred and in changing the primary residential custody of C.E.M. from the Mother to the Father. Thus we reverse the circuit court’s order of June 9, 2009. On remand, the circuit court shall enter an order disapproving the GM’s amended report and recommendations. The circuit court shall also enter an order denying the Father’s petition to modify the custody arrangement to designate him as the primary residential parent and to impose a child support obligation to the Mother. Furthermore, the circuit court shall enter an order restoring primary residential custody of C.E.M. to the Mother in accordance with the final judgment of paternity. Finally, the circuit court must address the Mother’s request for an increase in child support and the other relief requested in her second amended supplemental petition. The circuit court may hold such hearings and take such additional evidence as may be necessary to rule on the Mother’s petition.

Reversed and remanded with instructions.

WHATLEY and LaROSE, JJ., Concur.

      . The Father did not file an amended petition alleging a substantial change in circumstances other than the one alleged in his original counterpetition: that the Mother had remarried and wanted to move to Oklahoma. Nevertheless, the Mother did not raise any objection to the absence of a pleading alleging a substantial change in circumstances other than her marriage and planned relocation, matters which were no longer factors in the case.

      . The record does not disclose how many of these moves occurred after the entry of the final judgment of paternity.

      . In fact, C.E.M. had attended the same school since leaving kindergarten.


author: KELLY, Judge.

text:
    Stephanie L. STOLLMACK, n/k/a Stephanie Ferrell, Appellant, v. Rand STOLLMACK, Appellee.
    No. 2D08-5513.
    District Court of Appeal of Florida, Second District.
    April 23, 2010.

      Mark D. Tinker of Banker Lopez Gassier, P.A., St. Petersburg, for Appellant.
    Andra T. Dreyfus of Andra Todd Dreyfus, P.A., Clearwater, for Appellee.
   KELLY, Judge.

Stephanie Ferrell appeals from the order granting Rand Stollmack’s petition to compel her to execute a release of all her rights in an annuity. She also appeals the order imposing sanctions on her under section 57.105, Florida Statutes (2008). We reverse both orders.

Ferrell and Stollmack were married for seven years. During this time, Stollmack was injured in a motor vehicle accident. He filed a personal injury claim, and Ferrell filed a loss of consortium claim against the driver who was at fault in the accident. Stollmack and Ferrell settled their claims against the driver. The settlement was funded through an annuity issued by TransAmerica Occidental Life Insurance Company, which consisted of six scheduled lump sum payments to be paid to Stoll-mack and Ferrell jointly through August 2010, and thereafter, a minimum of 240 monthly payments commencing in 2011. The annuity provided that if Stollmack died, Ferrell would receive payment for her consortium settlement at a rate of fifty percent of the originally scheduled payments for the remainder of her life. If Ferrell died before Stollmack, however, the payment amount would remain the same and he would receive payments for the rest of his life. If Ferrell and Stoll-mack both died before the 240 installments were paid, the estate of the last person to die would receive the remaining payments.

In August 1993, Ferrell and Stollmack began dissolution of marriage proceedings. As part of a property settlement, Stollmack agreed to waive all his interest in Ferrell’s pension and stocks. In return, Ferrell gave up her interest in all joint annuity payments she was entitled to receive during Stollmack’s lifetime. Ferrell’s attorney drafted a property settlement agreement and mailed it to Stoll-mack’s attorney for review and approval. Stollmack’s attorney struck through one sentence in the agreement leaving the rest unchanged. As amended, the agreement appeared, in pertinent part, as follows:

VI. ANNUITY
6.1 The Husband and the Wife are beneficiaries of a settlement annuity insurance policy owned by TransAmerica Annuity Service Corporation, being Policy No. 902220 issued May 28,1991. The Schedule of Benefits under the policy provides guaranteed lump sum payments initiating August 27, 1993, a copy of said annuity being attached hereto and made a part hereof. The Wife hereby waives any and all claims to any of the payments to be made under or by virtue of the terms of the annuity contract to the Husband during his lifetime, and the Wife agrees the Husband, during his lifetime, may receive all of the payments as his own individual property. Wife shall remain- the irrevocable beneficiary and shall be entitled to-receive by the existing annuity contract any remaining benefits payable upon the Husband’s death. Wife agrees to execute upon request any documents necessary to confirm the Husband’s entitlement to receive such payments.

Stollmack put his initials near the strikeout, and his attorney then mailed the agreement back to Ferrell’s counsel. Ferrell likewise initialed the document. Neither the parties nor attorneys discussed what, if anything, Stollmack had intended to accomplish by striking that sentence. The finalized agreement was incorporated into the parties’ final judgment of dissolution.

In 2007, Stollmack demanded that Ferrell sign a release giving up her right to annuity payments after his death. Ferrell refused to sign the release. Consequently, Stollmack filed a verified petition to enforce the final judgment of dissolution asking the court to require Ferrell to execute the release. Stollmack also sought sanctions pursuant to section 57.105.

At the hearing on Stollmack’s petition, Ferrell testified that her intent with regard to the stricken portion of the property settlement agreement was that the document would simply be read as if that sentence did not exist. Stollmack, likewise, testified that the meaning of the strikeout was that the sentence was to be deleted from the document. Stollmack argued that by agreeing to remove that sentence, Ferrell had waived her right to receive payments from the annuity after his death. At the conclusion of the hearing, the trial court ruled that by agreeing to delete the sentence referencing her beneficiary rights under the annuity, Ferrell had waived those rights. The court ordered Ferrell to sign the release before she left the hearing and ordered her to pay $3000 in attorney’s fees as a sanction.

We reverse the order requiring Ferrell to relinquish her rights in the annuity upon Stollmack’s death as well as the order sanctioning her for refusing to do so. The parties’ property settlement agreement included a provision addressing the disposition of the parties’ rights under the annuity. In that provision, Ferrell expressly waived her interest in the annuity payments during Stollmack’s lifetime, nothing more: “The Wife hereby waives any and all claims to any of the payments to be made under or by virtue of the terms of the annuity contract to the Husband during his lifetime, and the Wife agrees the Husband, during his lifetime, may receive all of the payments as his own individual property.” (Emphasis added.) Absent a similar provision waiving her right to payments after Stollmack’s death, that right remained intact. When Ferrell entered into the property settlement agreement she had a vested right to those payments by virtue of the annuity, and nothing in the property settlement agreement altered that right.

Accordingly, we reverse the order granting Stollmack’s petition as well as the order granting his motion for sanctions and remand this case with instructions for the court to order Stollmack to execute any documents necessary to return the parties to their prior positions with regard to the annuity.

Reversed and remanded.

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