author: Conner, J.

text:
    James Edward TERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3978
    District Court of Appeal of Florida, Fourth District.
    [January 16, 2019]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Conner, J.

Appellant, James Edward Terry, appeals his judgment and sentence for possession of cocaine, asserting the trial court erred in connection with three rulings during his trial and denying his second motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b). The second 3.800(b) motion sought a new sentencing proceeding because the prior resentencing hearing was not recorded. We affirm without discussion the trial court's rulings concerning the asserted errors during trial. We also affirm the denial of Appellant's second 3.800(b) motion and explain our analysis. We conclude that Appellant's failure to seek relief pursuant to Florida Rule of Appellate Procedure 9.200(b)(4) precluded rule 3.800(b) relief.

Background

Appellant was charged by amended information with sale or possession of oxycodone with intent to sell within 1000 feet of a school, felon in possession of a firearm, and possession of cocaine. Subsequently, the counts were severed. Appellant proceeded to trial on the felon in possession of a firearm charge first, was found guilty, and was sentenced to five years in prison. Appellant appealed that conviction and sentence, which we affirmed per curiam .

Terry v. State , 226 So.3d 845 (Fla. 4th DCA 2017).

A few months after the first trial, Appellant proceeded to trial on the possession of cocaine charge, which is the subject of this appeal. After the jury returned a verdict of guilty, Appellant was sentenced to four years in prison, consecutive to the sentence for the firearm charge. The original sentencing hearing for the cocaine charge was conducted on November 18, 2016. Thereafter, Appellant gave notice of the instant appeal.

During the pendency of this appeal, Appellant filed a motion to correct his sentence in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), on grounds that the scoresheet improperly included two open cases. The trial court granted Appellant's motion and directed that a separate order would be entered setting a resentencing hearing.

In June 2017, the trial court conducted a status hearing with regards to the rule 3.800(b)(2) motion. At the status hearing, the trial court asked defense counsel what the sentencing error had been and if there had been a trial. After defense counsel explained the scoresheet error, he reminded the trial court that there were two trials for Appellant:

One was the felon in possession of a firearm at his house on the search warrant. The second one was the .1 grams of crack cocaine, Riviera Beach. I don't know if that's ringing any bells with you. We did two trials. This was the sentencing on the second trial.

Defense counsel also informed the trial court that Appellant's appeal from the first case had just been affirmed by this Court. When the trial court asked what Appellant's sentence had been in that case, defense counsel explained that Appellant's sentence in the first case was five years "and the second case was four years consecutive, so -" and the trial court then interjected, "Oh, I must have been mad."

A resentencing hearing was conducted on September 20, 2017, with Appellant present. At resentencing Appellant was again sentenced to four years in prison, consecutive to the five-year sentence for the felon in possession of a firearm charge. Subsequently, Appellant moved to supplement the appellate record with the transcript of the September 20 resentencing hearing. This Court granted the motion. However, it appears that the resentencing hearing could not be transcribed because it was inadvertently not recorded. Therefore, there is no transcript available for the September 20 resentencing.

As a result, on October 31, 2017, Appellant filed a second motion to correct sentencing error under rule 3.800(b)(2), seeking a new resentencing hearing because the trial court failed to ensure that the September 20 resentencing was transcribed. On November 16, 2017, the trial court "on its own motion," entered an order scheduling a hearing for November 21, 2017, to recreate the record ("the sua sponte order"). The sua sponte order instructed the parties to be prepared to articulate as closely as possible their positions and arguments made at the September 20 resentencing, noting that the court would not entertain new argument. Notably, the order made no reference to the pending second rule 3.800(b)(2) motion.

At the November 21, 2017 proceeding to recreate the record, the State stated its recollection of its arguments made at the September 20 hearing and further stated that it was seeking the same sentence. When it was defense counsel's turn to articulate his recollection of the September 20 resentencing, he explained that he apparently did not save his notes from the hearing and did not have an independent recollection of what was said during the proceeding. For that reason, defense counsel asserted it would be more appropriate to have a completely new resentencing hearing on the record. The trial court then advised that although defense counsel did not have a recollection for purposes of reconstruction, the trial court did have a clear recollection of this case. The trial court explained:

The defendant was tried twice with a verdict coming in on [February 23] and then again on November 8th. So I had a full opportunity to see the defendant and to hear the testimony on both of these cases.
In addition, the defense has filed a motion to correct sentencing error. Quite a nice motion. And the State has filed a response to the defendant's motion. So I'm confident that that outlines both parties' position on the matter. And I have a specific recall of it.
I was not even remotely considering sentencing at the bottom of the guidelines, based on the testimony and what I saw during both trials. And whether or not those two new counts were nolle prosequied or not would not have affected this Court's position on what the appropriate sentence is.

Thereafter, the trial court orally stated it was resentencing Appellant to four years imprisonment consecutive to the felon in possession of a firearm charge. Subsequently, Appellant filed an initial brief in this Court asserting errors during the trial and the proceeding conducted on November 21, 2017.

Appellate Analysis

The standard of review for a motion to correct a sentencing error is de novo . Willard v. State , 22 So.3d 864, 864 (Fla. 4th DCA 2009). The standard of review regarding a trial court's exercise of case jurisdiction while an appeal is pending is de novo . See Rogers v. State , 33 So.3d 805, 806 (Fla. 1st DCA 2010) (applying de novo review regarding "whether the trial court had jurisdiction, after appellant filed his notice of appeal, to issue written orders memorializing its prior oral pronouncements").

Regarding his sentence, Appellant claims that reversal is required because the trial court (1) did not have jurisdiction to enter the sua sponte order and conduct the proceeding on November 21; and (2) erred in denying his second 3.800(b) motion because there was no transcript of the resentencing on September 20 and the only appropriate remedy was to grant another sentencing hearing, since defense counsel could not recall what was said at the September resentencing. We construe Appellant's argument regarding jurisdiction to refer to case jurisdiction, meaning whether the trial court had the authority to act. MCR Funding v. CMG Funding Corp. , 771 So.2d 32, 35 (Fla. 4th DCA 2000) (" 'Case' jurisdiction is the 'power of the court over a particular case that is within its subject matter jurisdiction.' " (quoting T.D. v. K.D. , 747 So.2d 456, 457 n.2 (Fla. 4th DCA 1999) ) ); Trerice v. Trerice , 250 So.3d 695, 698 (Fla. 4th DCA 2018) ("The concept of 'the power of the court over a particular case' is rooted in the notion that given the procedural posture of the case , the court is without authority to act.").

An initial issue is the proper characterization of the November 21 proceeding. In the briefs, the parties fluctuate between referring to the November 21 proceeding as a "resentencing" hearing and as a hearing to "reconstruct the record." The lack of clarity understandably flows in part from the fact that the sua sponte order is entitled "Order Resetting Resentencing," yet the body of the order makes no reference to the second rule 3.800(b) motion and clearly states the purpose of the hearing is to reconstruct the record. Adding to the confusion is the fact that the trial court made an oral pronouncement at the conclusion of the November 21 proceeding that it was sentencing Appellant to four years for possession of cocaine, consecutive to the sentence for possession of a firearm by a felon, nunc pro tunc the original sentencing date, yet failed to enter a written sentence after the proceeding. Additionally, the trial court did not enter a written order approving a statement of the evidence and proceeding after the conclusion of the November 21 proceeding.

Appellant argues that since the sua sponte order and the November 21 proceeding made no reference to his second rule 3.800(b) motion, the motion is deemed denied because the trial court did not rule on it within sixty days. See Fla. R. Crim. P. 3.800(b)(1)(B). Appellant argues such denial was error. The State argues the trial court properly denied the second motion by the November 21 proceeding, and there was no error as to the "resentencing" on that date.

Addressing the fluctuations in characterizations, we do not construe the November 21 proceeding as a resentencing hearing because the record is clear that Appellant was not present at that time, and no written sentence was entered thereafter. Instead, as stated in the body of the order setting the hearing, we construe the November 21 proceeding as an attempt to reconstruct the record.

We first address the denial of Appellant's second rule 3.800(b) motion. Because we construe the sua sponte order and the November 21 proceedings to be an attempt to reconstruct the record, we conclude that the order and proceeding do not constitute a denial of the motion. Instead, we conclude that the motion is deemed denied by the trial court's failure to file an order ruling on the motion within sixty days. Fla. R. App. P. 3.800(b)(2)(B).

Appellant argues the trial court erred in denying the second motion because the trial court failed, as to the September 20 resentencing, to comply with its obligations under Florida Rule of Criminal Procedure 3.721 and Florida Rule of Judicial Administration 2.535(h)(1). Rule 3.721 provides that "[t]he sentencing court shall ensure that a record of the entire sentencing proceeding is made and preserved in such a manner that it can be transcribed as needed." Fla. R. Crim. P. 3.721. Rule 2.535(h)(1) provides that "[a]ll proceedings required by law, court rule, or administrative order to be reported shall be reported at public expense." Fla. R. Jud. Admin. 2.535(h)(1).

We begin our analysis with the long-recognized principle that on appeal, "the defendant bears the burden of demonstrating that an error occurred in the trial court." Jones v. State , 923 So.2d 486, 488 (Fla. 2006) (quoting Goodwin v. State , 751 So.2d 537, 544 (Fla. 1999) ). As part of that burden, appellants must submit to the appellate court a record adequate to support the appeal. Carter v. Carter , 504 So.2d 418, 419 (Fla. 5th DCA 1987).

Appellant is correct that under rules 3.721 and 2.535(h)(1), the trial court had an obligation to create a recording of the resentencing conducted on September 20. It is also true that "[o]nce a criminal defendant has chosen to exercise his right to appeal, he is entitled to a full transcript of the trial record." Hamilton v. State , 573 So.2d 109, 110 (Fla. 4th DCA 1991) (citation omitted). However, the case law is replete with cases in which, for a myriad of reasons, all or portions of trial proceedings were not recorded or a transcript of the proceedings was not available.

Although neither party devotes much analysis to the application of Florida Rule of Appellate Procedure 9.200(b)(4) to this case, we find it controlling. The rule provides that:

(4) If no report of the proceedings was made, or if the transcript is unavailable , a party may prepare a statement of the evidence or proceedings from the best available means, including the party's recollection. The statement shall be served on all other parties, who may serve objections or proposed amendments to it within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be filed with the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.

Fla. R. App. P. 9.200(b)(4) (emphasis added). It is precisely because all human endeavors are prone to occasionally experience oversights or mishaps that the supreme court promulgated rule 9.200(b)(4).

The case law is clear that in certain instances, the fact that a transcript is not available has required a new trial or proceeding. See, e.g., Delap v. State , 350 So.2d 462, 463 (Fla. 1977). However, our research reveals that in every instance in which a new trial or proceeding was ordered because of the lack of a transcript, the appellate court also determined that a statement of the evidence or proceedings pursuant to rule 9.200(b)(4) was unobtainable. See Jackson v. State , 851 So.2d 837 (Fla. 2d DCA 2003) (determining that the absence of a sentencing hearing transcript and the inability of the parties or the court to reconstruct the record required reversal and remand for resentencing); Thomas v. State , 828 So.2d 456, 457 (Fla. 4th DCA 2002) (remanding case for a new trial because missing portion of the transcript was necessary for a complete review and omissions could not be reconstructed); Felton v. State , 523 So.2d 775, 776 (Fla. 3d DCA 1988) ("[I]n the event that, after determined efforts of the trial participants, reconstruction of the trial is found to be impossible, the trial court should so certify" to the appellate court).

Additionally, "not all omissions of transcript result in reversal for a new trial." Velez v. State , 645 So.2d 42, 44 (Fla. 4th DCA 1994). When transcripts are not available, "[t]he question to be asked is whether the portions are necessary for a complete review." Id. (emphasis omitted). In Velez , we agreed with an analysis by the Eleventh Circuit, regarding the effect of missing parts of the trial record, that it is incumbent on the appellant to demonstrate how the defective transcript prejudiced his direct appeal in order to be entitled to appellate relief. Id. The conviction in Velez was affirmed because the missing portions of the record were not necessary for a full review, since the matters raised as error could be disposed of as a matter of law. Id.

The legal principles and analysis articulated in Velez were cited and approved by our supreme court in Darling v. State , 808 So.2d 145 (Fla. 2002) and Jones . In Darling , a death penalty case, the appellant argued that because there were no records of certain pretrial hearings, precluding meaningful review of his claims, he was entitled to a new trial. 808 So.2d at 163. Comparing the case to the situation presented in Velez , the court concluded that Darling's claim lacked merit because he failed to demonstrate what specific prejudice to complete appellate review, if any, was caused by the missing transcripts. Id.

Likewise, Jones is particularly instructive for our analysis in this case. In Jones , appellate counsel filed a motion to relinquish jurisdiction to reconstruct the record because the transcript of jury selection was not available. 923 So.2d at 487. During an evidentiary hearing to reconstruct the record, trial counsel testified that he could not accurately recall the jury selection proceedings but that he typically makes objections during the voir dire. Id. The defendant testified as to some vague memory of the voir dire proceedings suggesting his counsel made a Neil- Slappy objection to a peremptory challenge by the State. Id. After the hearing, the trial court ruled that the record could not be reconstructed, prompting Jones to assert on appeal that he was entitled to a new trial because his appellate counsel was unable to determine if prejudicial error occurred during jury selection. Id. at 488. We rejected that argument, relying in part on Darling and Velez . See Jones v. State , 870 So.2d 904, 905 (Fla. 4th DCA 2004).

After analyzing a series of its decisions confronting issues of appellate review where transcripts were missing or unavailable, on further review our supreme court said: "It is therefore clear that under our precedent, this Court requires that the defendant demonstrate that there is a basis for a claim that the missing transcript would reflect matters which prejudice the defendant." Jones , 923 So.2d at 489. Thus, because defense counsel in Jones could not remember if Neil - Slappy challenges were made and Jones's testimony about the challenges was vague, the court concluded that Jones's assertions on appeal were based on pure conjecture and his memory of possible objections made by his trial counsel, unsupported by any of the other evidence, did not show reversible error. Id. at 490.

Similar to Jones , in the instant case, Appellant has not articulated a clear explanation of an error by the trial court at the September 20 resentencing. Appellant speculates, based on a comment by the trial court during a status hearing leading up to the September 20 resentencing, that the trial court "must have been mad" at the resentencing. However, as the State points out, Appellant has not clearly asserted a contention that the trial court sought to punish Appellant for going to trial, and instead apparently seeks a transcript to see if such a claim can be made. Additionally, as the State points out, Appellant has not sought to disqualify the trial judge. Thus, at this point, Appellant's contentions that another resentencing is warranted appears to be based on speculation.

In the instant case, upon discovering there was no transcript of the resentencing on September 20, Appellant did not seek to obtain a statement of evidence and proceedings pursuant to rule 9.200(b)(4). Instead, Appellant sought relief by filing a second rule 3.800(b) motion. Because there is no transcript of the September 20 resentencing or an adequate substitute, Appellant has not demonstrated he is entitled to relief under rule 3.800(b).

Finally, we address Appellant's argument that the trial court lacked jurisdiction to enter the sua sponte order and conduct the November 21 proceeding. We assume the trial court was aware of rule 9.200(b)(4) and that knowledge prompted the sua sponte order setting a hearing to recreate the record of the September 20 resentencing.

We disagree with Appellant's argument that the trial court did not have case jurisdiction to recreate the record without a relinquishment order from this Court. See Udell v. Udell , 998 So.2d 1168, 1170 (Fla. 2d DCA 2008) ("For the edification of the parties and the trial court, we note that the rule [9.200(b)(4) ] authorizes - indeed, requires - the lower court's participation in this process, and no order from this court should be necessary." (underlined emphasis added) ). We also note that the purpose of rule 9.200(b)(4) is different from Florida Rule of Appellate Procedure 9.200(f), which is designed to address situations in which the trial record exists, but may have errors or may not have been fully submitted to the appellate court. We further construe the time limit regarding concurrent jurisdiction established by Florida Rule of Appellate Procedure 9.600(a), which ends when the trial court record is docketed in the appellate court, to apply to rule 9.200(f) and not rule 9.200(b)(4). We reach that construction because rule 9.200(f) references a time limit, whereas rule 9.200(b)(4) does not. Compare Fla. R. App. P. 9.200(f) ("If there is an error or omission in the record, the parties by stipulation, the lower tribunal before the record is transmitted , or the court may correct the record." (emphasis added) ), with Fla. R. App. P. 9.200(b)(4) ("If no report of the proceedings was made, or if the transcript is unavailable, a party may prepare a statement of the evidence or proceedings from the best available means, including the party's recollection."). Thus, we conclude the trial court did have case jurisdiction to reconstruct the record in this case.

Despite its jurisdiction to reconstruct the record, we note that the trial court did not follow proper procedure under rule 9.200(b)(4) for preparing a statement regarding the evidence or proceedings. As can be seen from the rule, the proper procedure begins with one of the parties preparing a statement based on the party's recollection. Fla. R. App. P. 9.200(b)(4). The statement prepared by one of the parties is to be served on the opposing party, who may serve objections or proposed amendments. Id. "Thereafter, the statement and any objections or proposed amendments shall be filed with the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record." Id.

Below, the trial court did not order the parties to file and serve any written statements, objections, or proposed amendments in advance of the November 21 hearing. Prior to attending the November 21 proceeding, neither party knew what the other would recall about the evidence and statements made at the September 20 resentencing. Instead, the trial court required the parties to present an oral presentation of their recollections during the hearing. From a due process viewpoint, such a procedure, for something as complicated as a resentencing, is problematic. Sometimes a discussion of what one participant remembers jogs a memory for another participant. Additionally, and perhaps more importantly, the trial court did not comply with rule 9.200(b)(4) by failing to enter a written order settling and approving the statement of evidence and proceedings.

We note that Appellant has not specifically framed his argument around noncompliance with rule 9.200(b)(4). Thus the issue is waived. See Thier v. State , 84 So.3d 365, 366 (Fla. 4th DCA 2012).

Having determined that Appellant has not demonstrated reversible error, we affirm the trial court.

Affirmed.

Taylor and Kuntz, JJ., concur.

      State v. Neil , 457 So.2d 481 (Fla. 1984) ; State v. Slappy , 522 So.2d 18 (Fla. 1988).

      We note that in addition to rule 9.200(b)(4), another option for reconstructing the record is for the parties to enter into a stipulated statement regarding the record pursuant to Florida Rule of Appellate Procedure 9.200(a)(3).


source: Caselaw Access Project

author: M.K. Thomas, J.

license: Public Domain

text:
    Philip P. OLDHAM, Petitioner, v. Hillary E. GREENE, Respondent.
    No. 1D17-2238
    District Court of Appeal of Florida, First District.
    December 27, 2018
    Brian P. North of Kenny Leigh & Associates, Fort Walton Beach, for Petitioner.
    Jill W. Warren of the Law Office of Jill W. Warren, PLLC, Pensacola, for Respondent.
   M.K. Thomas, J.

Philip Oldham ("Father") seeks certiorari review of an order compelling him to undergo psychological testing as part of dissolution of marriage and custody proceedings with Hillary Greene ("Mother"). He argues the order is a departure from the essential requirements of law, because: 1) it does not meet the "in controversy" and "good cause" requirements of Florida Family Law Rule of Procedure 12.360 ; and 2) it does not specify the manner, conditions, and scope of the examination. We agree and grant the petition.

I. Facts

In 2017, Father petitioned for dissolution of the parties' marriage. In response, Mother filed an Answer and Counter-Petition for Determination of Paternity and answers to standard family law interrogatories. Standard Interrogatory 6(c) inquires, "[i]f the mental or physical condition of a spouse or child is an issue, identify the person and state the name and address of all health care providers involved in the treatment of that person for said mental or physical condition." In her answers, Mother did not identify the mental condition of Father as being at issue in the proceedings.

About a month later, Mother filed a "Motion for Social Investigation of Father" pursuant to " section 61.20, Florida Statutes ; and rule 12.360, Florida Family Law Rule of Procedure." She alleged Father had "uncontrolled fits of explosive rage manifested in screaming and other violent behaviors in the presence of the child." She maintained Father's mental health was detrimental to the child; specifically, his inability to control his temper lead to "explosive fits of rage," which included screaming and threats to damage personal property. Mother claimed Father was unable to "put the needs of the child above his." The alleged offensive behavior by Father did not occur in the window of time between the Mother's answers to interrogatories and her filing of the Motion for his evaluation, but predated it all. In the Motion, Mother asserted that Father's mental health should be evaluated to assist the trial court in determining a parenting plan which was in the best interest of the child.

When the motion hearing began, Father's counsel requested clarification on the request for mental health testing as follows: "Is [Mother] asking for a psychological analysis of [Father] or is she asking for a social investigation of the parties?" Mother's counsel answered, "[b]oth." Counsel continued, "we would like a psychological evaluation, but we would take a social investigation." Mother requested the trial court order supervised timesharing, every other weekend for Father.

The only witnesses at hearing were Mother and Father. Mother described being fearful and afraid. Mother testified Father would throw things around the garage. If he experienced computer issues, he would wield a golf club and stomp around spewing profanity. She further described uncontrollable fits of rage resulting from "anything" such as a dog barking outside, someone at the door or watching a Clinton-Trump debate. She expressed concern that the child might mimic Father's behavior and that Father could not parent the child by himself. On cross-examination, Mother acknowledged Father had not been arrested in the last ten years, had never been Baker Acted, reported for domestic violence nor reported to children and family services.

Father testified he had no history of psychological problems and denied lashing out in fits of rage or yelling at the child. He described his historical role as the primary caregiver in the home while Mother went back to school and worked. Father denied any need for supervised visitation and clarified he sought sole custody of the child.

At hearing, the trial court determined that Mother's motion constituted a request for a psychological examination under rule 12.360, rather than a request for social investigation under section 61.20, Florida Statutes. Regardless, on May 4, 2017, the trial court entered an "Order On Motion For Social Investigation Of Father," but within the pleading granted a compulsory evaluation pursuant to rule 12.360. Mother was to select a psychologist to perform the evaluation and pay the initial cost. The court orally detailed the purpose of the evaluation was to "namely address whether or not [Father] has an anger problem and whether or not that affects his ability to parent," but this was not included in the order. Until the evaluation was completed, the court ordered temporary majority timesharing for Mother and unsupervised, overnight timesharing every other weekend with Father. The order simply noted Mother "met her burden of an initial showing that the Father's mental health [wa]s in controversy and that good cause exist[ed]," but no factual findings were included. It further allowed each party to submit information for the psychologist to consider, with the exception of one-party consent audio recordings. In response, Father filed a petition for writ of certiorari seeking to quash the order compelling his psychological evaluation.

II. Analysis

Certiorari first requires material injury not remediable on plenary appeal; this is a threshold, jurisdictional requirement. See State, Dep't of Revenue v. Hartsell , 189 So.3d 363, 364-65 (Fla. 1st DCA 2016). Ordering a compulsory medical examination meets the jurisdictional threshold. J.B. v. M.M. , 92 So.3d 888, 889 (Fla. 4th DCA 2012). Next, and at issue here, the petitioner must demonstrate a departure from the essential requirements of law by showing the order violates clearly established principles of law resulting in a miscarriage of justice. Hartsell , 189 So.3d at 365. We find Father has met his burden.

Courts have two available avenues to compel the psychological evaluation of a party in a family law case: 1) as part of a social investigation pursuant to section 61.20, Florida Statutes ; and 2) pursuant to Florida Rule of Civil Procedure 1.360 and its companion Family Law Rule of Procedure 12.360. See Russenberger v. Russenberger , 639 So.2d 963, 965 (Fla. 1994). However, "parties are entitled to know whether the court is proceeding under the rule or the statute." Id. at 965. Here, the order references Mother's motion for "social investigation," but ultimately grants the psychological evaluation under rule 12.360.

A. Rule 12.360

Pursuant to rule 12.360, a request for a psychological examination must be related to "a matter in controversy," and the party must have "good cause for the examination." Fla. Fam. L. R. P. 12.360(a)(1),(2). The requesting party has the burden to satisfy the "in controversy" and "good cause" prongs. Manubens v. Manubens , 198 So.3d 1072, 1074 (Fla. 5th DCA 2016) ; see also Fla. Fam. L. R. P. 12.360(a)(1),(2). A court's failure to make any findings as to the requirements of rule 12.360 is a departure from the essential requirements of law. See Russenberger v. Russenberger, 623 So.2d 1244, 1245-46 (Fla. 1st DCA 1993), aff'd 639 So.2d 963 (Fla. 1994) ; Manubens , 198 So.3d at 1074-75 ; cf. Wade v. Wade , 124 So.3d 369, 375 (Fla. 3d DCA 2013) (explaining the complete failure to address a requirement "alone may be sufficient to overturn the trial court's order").

"In Controversy"

Seeking custody, in and of itself, does not place the parent's mental condition "in controversy," Wade , 124 So.3d at 375, nor is "mere relevance to the case" sufficient. Russenberger , 623 So.2d at 1245. The mental condition alleged "must directly involve a material element of the cause of action." Williams v. Williams , 550 So.2d 166, 167 (Fla. 2d DCA 1989). There must be "verified allegations that the parent in question is having mental problems that could substantially impact his or her ability to properly raise children." Wade , 124 So.3d at 375 ; see also Asteberg v. Russell , 144 So.3d 606, 608 (Fla. 2d DCA 2014) (a belief the primary residential parent is not supporting and promoting the child's relationship with the other parent did not put mental health in controversy); Williams, 550 So.2d at 167 (claims a father failed to use a car seat for the child, that the child wet his pants after a visit with the father, and that the father used bad language in front of the child and was unstable were insufficient to put the father's mental health in controversy). Mental health has been declared "in controversy" where a father seeking parental responsibility made comments to a minor child that he was contemplating suicide. Barry v. Barry , 159 So.3d 306, 307-08 (Fla. 5th DCA 2015). Baker Act proceedings or a diagnosed schizoaffective disorder can place mental health in controversy. Bailey v. Bailey , 176 So.3d 344, 346-47 (Fla. 4th DCA 2015) ; J.B. , 92 So.3d at 890.

Mother fails to cite cases analogous to the instant appeal. Instead, she relies heavily on the fact the parties disagreed over the parenting plan and Father seeking sole custody, which alone is insufficient to trigger a rule 12.360 examination. Wade , 124 So.3d at 375. The focus of rule 12.360 is not on good or bad parenting, but on something larger, some greater indicator of deeper mental health concerns. With no actual violence to a person or threat of violence to a person, Father's alleged actions could be irresponsible and rash reactions to frustration with his current circumstances. However, those actions, while not preferable, may not rise to the level of significant mental health concerns warranting an intrusive evaluation. The burden of proof is heightened when the party subject to the request for an examination has not voluntarily placed that issue in controversy. Wade, 124 So.3d at 373. Just a month prior to requesting the mental examination, Mother filed her verified answer to an interrogatory in which she failed to identify that Father's mental health was at issue. Moreover, the trial court granted Father unsupervised timesharing, which would not have occurred if a true concern about Father's mental condition existed.

"Good Cause"

Even if the prong of "in controversy" is satisfied, the requesting party must also show "good cause" for a psychological examination. "Good cause" requires that a party's mental condition "[can] not adequately be evidenced without the assistance of expert medical testimony." Fruh v. Dep't of Health & Rehab. Servs. , 430 So.2d 581, 584 (Fla. 5th DCA 1983), cited in In the Interest of S.M.B. , 597 So.2d 848, 852 (Fla. 1st DCA 1992). Good cause "should be based on evidence that the parent has been unable to meet the needs of the children." Nobbe v. Nobbe , 627 So.2d 59, 60 (Fla. 2d DCA 1993). The requesting party must show that the alleged mental illness places the child "at risk of abuse, abandonment or neglect." J.B. , 92 So.3d at 890 ; see also Schottenstein v. Schottenstein, 384 So.2d 933, 936 (Fla. 3d DCA 1980) (finding that children being "sometimes upset when they returned from a visitation with their father" and father's "desire to give his children a sense of value about money" were insufficient to show good cause for psychological evaluation). In addition, it belies good cause to believe a party's mental status would jeopardize a child's well-being, where a court orders a psychological evaluation and also awards continued timesharing, unsupervised and overnight, with that party. See Wade , 124 So.3d at 376-77.

Here, the evidence before the trial court failed to show "good cause" that Father could not meet the needs of the child or that his mental instability, if shown, would have an effect on the child. Because the order under review is void of any factual findings and states only, "[t]he Mother has made met [sic] her burden of an initial showing that the Father's mental health is in controversy and that good cause exists for the mental health evaluation," we have no insight into factors relied upon. Further, the trial court ordered continued unsupervised visitation with Father over weekends. Thus, the court must not have believed his mental status would harm the child. Additionally, Mother stated she and her elder daughter were fearful of Father, but confirmed he did not threaten her or the child and was not violent with them. Father's cursing and outbursts are certainly not advisable, but this behavior does not establish that Father is unable to meet the needs of the child or places the child at risk.

A forced psychological examination has serious privacy implications; people have the right to be free from compulsory examination absent circumstances meeting the requirements. In the Interest of T.M.W. , 553 So.2d 260, 263 (Fla. 1st DCA 1989) (quoting Schottenstein , 384 So.2d 933 ). The Florida Supreme Court has cautioned against the use of mental health evaluations as vindictive tools in family law cases. See Russenberger , 639 So.2d at 966 ("A parent's request for a psychological evaluation may well be an expression of that parent's vindictiveness and could have the effect of making the child a victim.").

In sum, the use of compelled psychological examinations must be carefully scrutinized and courts have historically required a showing of significant mental health issues directly impacting a parent's ability to raise their child. Here, Father's actions may well be ill-advised, but they fall short of showing a significant mental health issue for which the court may compel a psychological examination under rule 12.360.

B. Scope of the Examination

Finally, even if Mother met her burden of proving "in controversy" and "good cause" under rule 12.360, the order remains deficient as it fails to provide sufficient parameters regarding the examination. In orders compelling examinations, the trial court must set forth "the time, place, manner, conditions, and scope of an examination and the person or persons by whom it is to be made." Fla. Fam. L. R. P. 12.360(a)(1)(b) ; Manubens , 198 So.3d at 1075.

Open-ended orders that do not provide specific directives regarding the psychological evaluation depart from the essential requirements of law. See id. at 1074-75 (an order that stated the "evaluation should include determining if the Wife is capable of having [a] successful and positive homeschooling environment and further, if she is capable of performing the duties effectively to continue homeschooling the children" was not specific and detailed enough); Barry , 159 So.3d at 308 (an order stating to evaluate "the safety of the children while in Petitioner's custody," was not sufficient; it did not "identify the length of the examination, the type of testing, or whether the testing is limited to 'methods routine to the profession' "). Courts have even tied particularity to the "good cause" requirement, explaining that without a proper scope of the requested examination, the court is not able to determine if there is good cause for that particular examination. Id. The failure of an order to specify the manner, conditions, and scope of an examination creates a "carte blanche" scenario for the psychologist to perform any type of psychological inquiry, testing, and analysis. Maddox v. Bullard, 141 So.3d 1264, 1266 (Fla. 5th DCA 2014). Here, the order is devoid of any limits on or instructions for the evaluation. Thus, it departs from the essential requirements of law by failing to meet the requirements of rule 12.360.

III. Conclusion

The order compelling Father to undergo a psychological evaluation pursuant to rule 12.360 is a departure from the essential requirements of law. The trial court failed to provide any factual findings as to the requirements of "in controversy" and a showing of "good cause" for the evaluation. The order is also facially inconsistent in permitting continued unsupervised, overnight timesharing with Father while finding "good cause" to compel him to undergo a mental health examination. Lastly, the order is deficient as the trial court failed to address the required elements of manner, conditions, and scope of the examination.

Accordingly, we grant Father's petition and quash the trial court's order compelling his psychological evaluation.

Petition GRANTED .

Lewis, J., concurs; Kelsey, J., dissents with opinion.

Kelsey, J., dissents.

I respectfully dissent, in part. I agree with the majority that we have jurisdiction and that these parties and the lower tribunal need to get the procedures right, including specifying the scope of psychological evaluation of the Father. Further, the analysis should focus on present ability to parent, and thus on remand the issues should be evaluated in light of current information. Zarzaur v. Zarzaur , 213 So.3d 1115, 1118-19 (Fla. 1st DCA 2017). As to the core substantive question of whether the Father's behavior justified intrusion into his mental health, however, the record reflects competent, substantial evidence sufficient to support the trial court's order requiring the Father to undergo psychological testing.

The Mother here alleged as follows:

The Father has engaged in the following behaviors in presence of the minor child:
A. [The Father] is unable to control his temper which manifests as explosive fits of rage;
B. [The Father] engages in screaming, threats to damage the parties' personal property with a golf club and other violent behaviors in the presence of the child;
C. [The Father's] fits of rage are unpredictable and there is no known trigger causing the outbursts to be spontaneous and frightening for [the Mother] and the child.
Under oath, the Mother testified as follows:
Mr. Oldham frequently and bi-frequently - daily and multiple times daily would go into fits of rage, anger, explosive yelling, cussing, terrible vulgar language. My daughter, who is the older child, is now in counseling because of emotional distress that he caused her.... She experienced and witnessed - we both did - and so did my son, many, many multiple - every day -- ... rage, screaming.... I believe - the 20th of January, I think, was the one that was in the garage.... This is about a week before I left.... He was - his bike that he hooked up to his TV wasn't picking up that TV or that Apple TV, and he was screaming and losing it and throwing things in the garage. My daughter was terrified. She came to me and begged me why. Why is he angry again? ... I was scared.... My son was in the room and present and heard it....
He was throwing items around in the garage. He was screaming obscenities.... Fuck this thing. You can't fucking work here. You can't get this out here? You fucking dick licker. You pickle dick. You fuck - you fuck - mother fucker. This is what he was screaming and screamed frequently.... [Q Does that happen at least once a day?] Absolutely. [Multiple times a day?] Yes.... I do not want my son learning to speak this as his first words. I do not want my son to learn to act like this and to be rageful and angry. I was fearful myself.... I was fearful, and that's why I left the way that I did because of his rage that he exhibited daily. I was afraid if I told him I was leaving, that it would go from the verbal and emotional abuse stage to the physical, and I was afraid.... At that time, he was throwing tools and things that were in the garage. And, yes, he was throwing items around in the garage.... Tools from his toolbox and things that were laying on top of his toolbox.... Like, a wrench. Like, you know, the remotes to the TV thing. He was throwing things from - the thing from his bike around. I mean, these were - you know, this is what was common for him....
[Q Can you recall specifically another incident where he exhibited such behavior?] Yes.... His computer was not loading properly, and he would enter into fits of rage directly in front of my son. He was in the room. He was wielding a golf club around saying, it's taking everything I can to fucking not smash this fucking computer with this fucking golf club. This fucking piece of shit. Give me the fucking virus. I just - fuck it all. Fuck it all. I can't get the fucking web page. Over and over constantly for, you know - this went on for probably thirty or forty-five minutes in front of my son while my son was having breakfast.

The mother also testified to similar outbursts arising out of computer issues; another during the Trump-Clinton debate; and others triggered by a dog barking, a friend of the Mother's coming to the door, and her daughter's wanting to play in the living room--all occurring in the presence of the minor children: "[A]nything and everything is a trigger for him." The Mother testified that as the Father's fits of rage got worse, she changed her work schedule and made child-care arrangements so that her daughter would not have to be alone with the Father, and ultimately took the children and herself out of the home because of the Father's conduct.

The Father at first generally denied engaging in fits of rage, but did admit to what he called incidents of "frustration with his computer." He distinguished his behavior as not being "directed at" the children, but did not deny that they witnessed it.

The trial judge found this evidence sufficient to justify a psychological evaluation of the Father, and did not depart from the essential requirements of law or create a miscarriage of justice in so finding. The Father's behavior was significant and extremely troubling. The Father's behavior would be sufficient to support a domestic violence injunction. See Fla. Fam. L. R. P. 12.980(a) (listing destruction of "personal property, including, but not limited to, telephones or other communication equipment, clothing, or other items belonging to the [victim]" as a general category of behavior qualifying for an injunction). Court-Appointed Parenting Coordinators are required to monitor cases for domestic violence incidents and "take appropriate action to address any safety concerns." Fla. R. Qual. & Ct.-App. Parenting Coords. 15.180(a). The Florida Bar has suggested attorneys ask clients in domestic abuse situations "Has your partner ever destroyed things that you care about, broken furniture, thrown things, or hurt your pets?" The Florida Bar's Fastrain, Injunctions for Protection Against Domestic Violence (2006 ed.). A legal basis for a domestic violence injunction is a very strong indicator of a serious mental health issue warranting professional evaluation in the parenting context. See also, e.g. , J.Y. v. Dep't of Child. & Fams. , 10 So.3d 168, 170 (Fla. 5th DCA 2009) (finding evidence of domestic violence and ongoing angry outbursts in presence of child, together with other evidence, supported termination of parental rights); J.P. v. Dep't of Child. & Fams. , 855 So.2d 175, 176-77 (Fla. 5th DCA 2003) (On Motion for Rehearing) (holding trial court properly ordered father to submit to psychological evaluation due to prior incidents of domestic violence and a criminal history of violence).

The Father's mental condition was in controversy with respect to establishing a timesharing schedule for the minor child. The Mother's sworn testimony, which the Father in very substantial part did not dispute, established good cause for the examination because it demonstrated mental issues "that could substantially impact [the Father's] ability to properly raise children." See Wade v. Wade, 124 So.3d 369, 375 (Fla. 3d DCA 2013). The evidence thus supported the trial judge's decision to require a psychological examination of the Father. See Fla. Fam. L. R. P. 12.360.

      As of March 16, 2017, the Florida Supreme Court adopted a more comprehensive rule related to examinations in the family law context. See In re Amendments to Florida Family Law Rules of Procedure , 214 So.3d 400, 407 (Fla. 2017). Formerly, rule 12.360 simply referred to the rule of civil procedure, 1.360, that permitted examination of parties. Id. at 446. Presently, and at the time Mother filed her request, rule 12.360 provides an updated framework specifically applicable to family law.

      Although family law rule 12.360 and rule 1.360 are similar, their application is dependent on claims raised or abandoned. For example, a Plaintiff may raise mental anguish as a basis for damages in a cause of action in tort. In that context and under rule 1.360, the mental condition would be a matter "in controversy" unless withdrawn. See Maddox v. Bullard , 141 So.3d 1264 (Fla. 5th DCA 2014) ; Olges v. Dougherty , 856 So.2d 6, 12 (Fla. 1st DCA 2003).

      Mother's argument that the evaluation could have been ordered as a social evaluation under section 61.20, Florida Statutes, is without merit. The trial court rejected Mother's request for a social investigation. Mother did not appeal from the rejection of her alternative statutory claim. Accordingly, this argument was not preserved. We also disagree with Mother's argument that section 61.13, Florida Statutes, provides a third, independent avenue to order a psychological evaluation. The statute does not provide the court with the power to order an examination; rather, it merely sets forth an element the court must consider when determining parental responsibility and time sharing. See § 61.13(3), Fla. Stat.; Gordon v. Smith , 615 So.2d 843, 845 (Fla. 4th DCA 1993) ("If section 61.13 supplies the relevancy, then section 61.20, Florida Statutes (1991), furnishes the specific tool.").


author: Roberts, J. Osterhaus J., dissenting.

text:
    Ammar AL BATHA, as Personal Representative of the Estate of Abdel-Kader Al Batha, and Shahira Alshami, Individually, Appellants, v. State of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D17-828
    District Court of Appeal of Florida, First District.
    January 14, 2019
    Floyd B. Faglie of Staunton & Faglie, PL, Monticello, for Appellants.
    Ashley Brooke Moody, Attorney General, Jonathan A. Glogau and Elizabeth Teagan, Assistant Attorneys General, Tallahassee; Tracy Cooper George and Stefan Grow, Agency for Health Care Administration, Tallahassee, for Appellee.
   Roberts, J.

During oral arguments, the parties conceded that this appeal involves the very narrow question of whether a legal representative qualifies as "recipient" in the 2016 version of section 409.910(17)(b), Florida Statutes. Because we answer the question affirmatively, we reverse the administrative law judge's (ALJ) dismissal of the personal representative's petition with prejudice.

Prior to his death, the decedent was involved in a car accident that left him with life threatening injuries. As a result of those injuries, the decedent received extensive medical care that was paid by Florida's Medicaid program. Florida's Medicaid program is administered by the Agency for Health Care Administration (AHCA). See § 409.902(1), Fla. Stat. (2016). When a person receives Medicaid benefits for a covered injury, AHCA has an automatic lien against any claim in which a third party is liable for the amount of medical assistance it provided. § 409.910(6)(c).

Believing that the other party caused the decedent's death, the decedent's personal representative (PR) and his spouse initiated a wrongful death action. The PR and decedent's spouse ultimately entered into a confidential settlement with the other party. After settling the wrongful death action, the PR and the decedent's spouse filed a petition with the Division of Administrative Hearings to contest the amount of AHCA's Medicaid lien pursuant to section 409.910(17)(b). In response to the petition, AHCA filed a motion to dismiss alleging that the PR and the decedent's spouse could not challenge the lien because they were not "recipients." The ALJ agreed.

We review administrative legal conclusions de novo . Brownsville Manor, LP v. Redding Dev. Partners, LLC , 224 So.3d 891, 894 (Fla. 1st DCA 2017). Section 409.910(17)(b) states that only a "recipient" may contest AHCA's Medicaid lien. The term "recipient" is defined in section 409.901(19), Florida Statutes (2016), and includes a person who received medical assistance under the Florida Medicaid program for the purposes of section 409.910. Even though a person dies, his right to an existing cause of action does not die with him. See § 46.021, Fla. Stat. (2016) ; Levy v. Baptist Hosp. of Miami, Inc. , 210 So.2d 730, 730 (Fla. 3d DCA 1968) (the intent of the statute is to preserve an existing action rather than create a new one). Therefore, theoretically a deceased person could file a petition to challenge AHCA's lien if he could file a petition. Under Florida law, the proper person to file a cause of action on behalf of a deceased person is the personal representative. See § 733.612(20), Fla. Stat. (2016) ; Fla. R. Civ. P. 1.210(a). Since a personal representative is the person authorized to prosecute a deceased person's claims, then a personal representative qualifies as a "recipient" providing the deceased person qualifies as a "recipient."

The ALJ found that the decedent received medical care related to his injury that was paid by Florida's Medicaid program. Therefore, the decedent qualified as a "recipient." Because the decedent qualified as a "recipient," his PR qualified as a "recipient." Therefore, the ALJ erred when he concluded otherwise and dismissed the PR's complaint with prejudice. Since the decedent's wife was not the decedent's personal representative nor the person who received medical assistance from Florida's Medicaid program, she does not qualify as a "recipient." The ALJ did not err in dismissing her petition. We leave all other questions for another day.

AFFIRMED in part, REVERSED in part, and REMANDED .

B.L. Thomas, C.J., concurs; Osterhaus, J., dissents with opinion.

Osterhaus J., dissenting.

Because Mr. Al Batha is deceased, and none of the appellants are Medicaid "recipients" within the meaning of chapter 409, I disagree that they may contest the calculation of medical expenses payable to the agency under § 409.910(17)(b), Florida Statutes (2016).

The text of § 409.910(17)(b) clearly limits who may contest § 409.910(11)(f) -calculated amounts: "A recipient may contest the amount designated as recovered medical expense damages payable to the agency pursuant to the formula specified in paragraph (11)(f)." § 409.910(17)(b), Fla. Stat. (2016) (emphasis added). "Recipient" is specifically defined and distinguished in the statute from representatives of a recipient and others. The statute defines "recipient" to mean "an individual [who is determined] eligible, pursuant to federal and state law, to receive medical assistance and related services for which the agency may make payments under the Medicaid program." § 409.901(19), Fla. Stat. (2016). It also distinguishes recipients from legal representatives of a recipient in various places. Section 409.910(11)(f), for instance, speaks of the Medicaid recovery formula related to third-party tort actions "in which the recipient or his or her legal representative is a party which results in a judgment, award, or settlement from a third party." § 409.910(11)(f), Fla. Stat. (2016) (emphasis added.). This statute separately identifies judgments received by party recipients and party legal representatives of a recipient. Later in § 409.910(17)(a), the statute again distinguishes a recipient from a recipient's representative stating:

[a] recipient or his or her legal representative or any person representing, or acting as agent for, a recipient or the recipient's legal representative , who has notice ... who receives any third-party benefit or proceeds for a covered illness or injury, must ... pay the agency the full amount of the third-party benefits, but not more than the total medical assistance provided by Medicaid, or place the full amount of the third-party benefits in an interest-bearing trust account for the benefit of the agency pending an administrative determination of the agency's right to the benefits under this subsection.

§ 409.910(17)(b), Fla. Stat. (emphasis added).

Only in the next paragraph, § 409.910(17)(b), do we see the Legislature addressing "a recipient" alone, without also referring to a recipient's representative. This text provides for only "[a] recipient" to contest the amount designated by the formula specified in § 409.910(11)(f). Different from companion paragraphs (11)(f) and (17)(a), paragraph (17)(b) drops any reference to a recipient's representative. It says nothing of allowing a representative to initiate a contest, but only permits a "recipient" to do so. For this reason, I agree with the decision of the administrative law judge and with the other cases that construe the statute to limit protection from Medicaid liens to only living Medicaid recipients. See, e.g. , Goheagan v. Perkins , 197 So.3d 112 (Fla. 4th DCA 2016) ; Estate of Hernandez v. Agency for Health Care Admin. , 190 So.3d 139 (Fla. 3d DCA 2016).

Because the statute's plain language is dispositive, making clear that non-recipients-personal representatives and the like-do not have the same opportunity as a recipient to contest the results of the amount designated under paragraph (11)(f)'s formula, I would affirm.


author: Per Curiam.

text:
    Steven Francis D'AMICO, Appellant, v. Robert E. SMITH, Warden, Appellee.
    No. 1D18-2165
    District Court of Appeal of Florida, First District.
    December 28, 2018 Rehearing Denied February 19, 2019
    Steven Francis D'Amico, pro se, Appellant.
    Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   Per Curiam.

We affirm the amended order transferring Appellant's petition for writ of habeas corpus to the circuit in which Appellant was convicted and sentenced. See Torres v. State , 208 So.3d 831, 831 (Fla. 1st DCA 2017) (affirming the order transferring a habeas petition because the appellant challenged the sufficiency of the charging instrument therein); Baker v. State , 164 So.3d 38, 39 (Fla. 3d DCA 2015) ("[T]he court of conviction, has jurisdiction over Baker's habeas petition because the petition challenges the sufficiency of the charging document which amounts to a collateral attack on Baker's 1996 conviction.").

AFFIRMED .

Wolf, Lewis, and Wetherell, JJ., concur.


author: PER CURIAM.

text:
    Lonnie MCKINNON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-11
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 18, 2019
    James S. Purdy, Public Defender, Darnelle Paige Lawshe and Wilber L. Cooke, II, Assistant Public Defenders, Daytona Beach, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Lonnie McKinnon appeals the trial court's order revoking his probation and the sentence imposed after that revocation. Although he was found in violation of Conditions One (failing to report to the probation office), Three (moving residences without notifying and obtaining the consent of his probation officer), and Five (committing a new law violation), McKinnon only challenges the trial court's finding that he violated Condition Three of his probation. He argues the trial court erred in finding him guilty of violating Condition Three because the violation failed to mirror the language of the condition of probation allegedly violated. As McKinnon correctly notes, the language in the probation order for Condition Three states that he would remain in a specified place and not change his residence or employment without the consent of his probation officer. Yet, the Violation of Probation (VOP) affidavit charged a violation of Condition Three for failure to report for his July 2017 appointment at the probation office.

As such, McKinnon contends that his conduct did not actually violate the language of Condition Three. We agree.

The due process requirements applicable to criminal cases apply to VOP cases. Stanley v. State, 922 So.2d 411, 415 (Fla. 5th DCA 2006) (citing Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985) ). One of these due process requirements is that the probation order "adequately place the probationer on notice of conduct that is both required and prohibited during the probationary period." Ramirez v. State, 4 So.3d 752, 753 (Fla. 2d DCA 2009) (quoting Lawson v. State, 969 So.2d 222, 230 (Fla. 2007) ). Both the affidavit of violation and the court's finding of violation must mirror the probation condition:

A probationer must be violated for the reasons stated in the affidavit filed, and the reasons must be established by substantial competent evidence at the hearing. Further, the violation must mirror the language of the condition of probation allegedly violated.

Stanley, 922 So.2d at 415. Allegations that are not mentioned or required in the condition of probation cannot form the basis of a VOP. Odom v. State, 15 So.3d 672, 677-78 (Fla. 1st DCA 2009) (citing Stanley, 922 So.2d at 415 ).

Here, the trial court's finding that Condition Three was violated is limited to the terms of Condition One, which required reporting to the probation office on request the trial court found:

Count 3 about making himself available to report to his probation officer in July, that's, once again, it's a Condition 3 violation. As she said, and I believe, Ms. Anglin, that after he stopped showing up, she never heard from him until he was arrested in September, so he willfully violated Condition No. 3 by the greater weight or preponderance of the evidence ....

The finding never mentions the requirements of Condition Three, which concerns Appellant's residence, his employment, a change in residence or employment, and the consent or lack of consent of his probation officer to the change.

Accordingly, because the trial court's finding does not mirror the language of Condition Three in the probation order, we remand with directions that the trial court strike the violation of Condition Three from the written order revoking probation. The sentence on the VOP is nonetheless affirmed as it is clear from the record that the sentence would have been the same if only the violations of Conditions One and Five, both of which are substantial, had been considered. See Webb v. State, 154 So.3d 1186, 1189 (Fla. 4th DCA 2015) (citing Brown v. State, 12 So.3d 877, 879-80 (Fla. 4th DCA 2009) ); Davis v. State, 474 So.2d 1246 (Fla. 4th DCA 1985).

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

BERGER, EISNAUGLE and HARRIS, JJ., concur.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Richard Carl GOUDREAU, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4024
    District Court of Appeal of Florida, Second District.
    Opinion filed January 23, 2019.
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Lisa Martin, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Richard Carl Goudreau challenges the five-year prison sentence imposed upon the revocation of his probation and adjudication of guilt of aggravated assault with a deadly weapon. At the violation-of-probation hearing, the trial court, upon finding that Goudreau had willfully and substantially violated probation, immediately revoked his probation and imposed sentence. Defense counsel then conferred with Goudreau and stated that Goudreau wanted to address the court regarding sentencing, but the court responded: "I've already made my decision on the sentencing. There's really nothing I wish to hear from this point forward."

On appeal, Goudreau argues, and the State concedes, that the trial court erred in sentencing him without affording him-and, in fact, affirmatively denying him-his right of allocution. We agree. See Fla. R. Crim. P. 3.720(b) ; State v. Scott, 439 So.2d 219, 221 (Fla. 1983) ; Hodierne v. State, 141 So.3d 1254, 1255 (Fla. 2d DCA 2014) ; Hill v. State, 246 So.3d 392, 396-97 (Fla. 4th DCA 2018). Accordingly, we affirm the revocation of Goudreau's probation and the judgment adjudicating guilt, but we reverse the resulting sentence and remand for a new sentencing hearing.

Affirmed in part; reversed in part; remanded.

CASANUEVA and BADALAMENTI, JJ., Concur.


author: SCALES, J.

text:
    Edward VILLELLA, Petitioner, v. Toby Lerner ANSIN, Respondent.
    No. 3D18-1938
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019
    Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten, Miami; Friedman & Friedman, P.A. and John S. Seligman, Coral Gables, for petitioner.
    White & Case LLP, and Raoul G. Cantero and Sara E. Cendejas, Miami, for respondent.
    Before SCALES and LINDSEY, JJ., and LUCK, Associate Judge.
   SCALES, J.

In this petition for writ of certiorari, Edward Villella, the defendant below, argues that the trial court departed from the essential requirements of the law in staying discovery of a non-party entity and its current or former officers and directors until after the trial court determined whether, as a matter of law, a non-disparagement provision contained within the underlying separation agreement at issue was ambiguous. Because Villella has failed to demonstrate the requisite irreparable harm, we lack jurisdiction to hear, and therefore dismiss, the instant petition. See CQB, 2010, LLC v. Bank of New York Mellon, 177 So.3d 644, 645 (Fla. 1st DCA 2015) ("The requirement of material, irreparable harm is jurisdictional. We must dismiss the petition if it is not met."); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995) ("[A] petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before this court has power to determine whether the order departs from the essential requirements of the law.").

Villella was the artistic director for the Miami City Ballet, Inc. (the "Ballet"). In September 2012, Villella executed an Employment Amendment and Separation Agreement (the "separation agreement") with the Ballet. Section 7 of the separation agreement contains a non-disparagement provision whereby the Ballet agrees not to make any written or oral statements that disparage, denigrate, or criticize Villella or Villella's reputation. In particular, as relevant here, the non-disparagement provision dictates that the Ballet's obligation "as [it] relates to statements made individually by members of the Board of Governors, Board of Trustees or Company executives, shall be satisfied by the [Ballet] providing its executives, Board of Governors and Board of Trustees with a joint letter ... outlining the Parties joint communication plan and requesting strict adherence thereto."

In February 2018, Toby Lerner Ansin, the plaintiff below, filed a one-count complaint for declaratory relief against Villella in the Miami-Dade County Circuit Court. Therein, Ansin alleges that she has written "a memoir chronicling ... some of her experiences as founder of the Ballet ... that would violate § 7 of the Separation Agreement, if she were bound by the Agreement in her individual capacity." Ansin, therefore, seeks a declaration that the non-disparagement provision does not apply to Ansin and cannot be enforced against Ansin in her individual capacity.

When Villella thereafter propounded discovery requests on the Ballet and certain current or former Ballet officers and directors, Ansin moved for a protective order and to limit discovery. The trial court reserved judgment as to whether to allow discovery of the Ballet and its current or former officers and directors to take place until after Ansin and Villella were both deposed.

Once the parties were deposed, Villella filed a motion requesting that the lower court allow the discovery to proceed. Villella argued, among other things, that he should be able to ascertain through discovery propounded on the Ballet, a non-party, whether the Ballet intended for the non-disparagement provision to apply to Ansin. At the hearing on Villella's motion, the trial court stayed the requested discovery until after the trial court determines whether, as a matter of law, the non-disparagement provision is ambiguous. In so ruling, the trial court explained that it is reserving judgment as to whether to allow discovery of the Ballet and its current or former officers and directors, noting that the court's contractual interpretation of the provision may prove dispositive of the entire claim, making the discovery unnecessary:

The Court, in the interest of judicial economy, recognizing this is a one count complaint for declaratory judgment, permitting key depositions to already have been taken, and understanding that this is purely an issue of contractual interpretation to determine whether or not an ambiguity exists in the contract, is going to stay discovery, order the filing of a summary judgment motion on the issue of contractual interpretation within 14 days from the date of today's order.
And once that has been set for hearing and ruled on, which will require only contractual interpretation, thereby not prejudicing the Defendant, because I cannot look at interpretation by different parties who were involved in drafting, but only to the plain meaning of the contract, the Court will then lift the stay, if I find there is ambiguity, to allow full discovery, or the case will be resolved in a dispositive way by finding that this is an unambiguous contract and ruling in favor of one or the other party because it may benefit either party once I take a look at whether or not this individual is bound by that and will - whether it will affect the publishing of the memoirs.

The trial court has broad discretion to determine the scope of allowable discovery in a civil proceeding. See Young Circle Garage LLC v. Koppel, 916 So.2d 22, 23 (Fla. 4th DCA 2005). On this record, where the trial court has not finally resolved whether Villella may obtain the discovery he seeks - choosing, instead, to first decide what may be an outcome-determinative, dispositive issue - we conclude that Villella has failed to demonstrate the requisite irreparable harm that is required for us to have jurisdiction over this petition.

Petition for writ of certiorari dismissed.

      Ansin alleges that she is a member of the Ballet's board of trustees, but that she is not a member of the Ballet's board of directors.

      The trial court also limited discovery as to Ansin and other witnesses, none of which are challenged in this petition.


text:
    Camille LEE, etc., Appellant, v. Nicole LEE, Appellee.
    No. 3D18-297
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019.
    Cobiella Law Firm, P.A., and Lorenzo Cobiella, Mercy Londono and Thomas Fossler, for appellant.
    Jorge L. Gonzalez, P.A., and Jorge L. Gonzalez, for appellee.
    Before LOGUE and SCALES, JJ., and LAGOA, Associate Judge.
   SCALES, J.

Appellant Camille Lee, the personal representative of the Estate of Andre Lee, appeals a trial court order that strikes a previously filed disclaimer, whereby appellee Nicole Lee disclaimed her interest in the decedent's estate. We reverse because the probate court improperly determined both that the disclaimer was legally insufficient and was somehow violative of Florida's statute of frauds.

I. Facts

Andre Lee died intestate and was survived by his three children: appellant Camille Lee, Bruce Lee, and appellee Nicole Lee. The estate was composed of two principal assets: (i) real property located in Miami, and (ii) settlement proceeds from a wrongful death claim.

On July 14, 2014, the probate court issued an order appointing Camille Lee as the personal representative of Andre Lee's estate and also issued the letters of administration for the estate. The record reflects that on July 8, 2014, prior to Camille Lee's appointment, Nicole Lee executed a document prepared by Camille Lee's attorney, styled "Disclaimer of Interest in Property of Estate." Nicole Lee's signature on this disclaimer was witnessed by two persons and notarized. The disclaimer reads as follows:

I, Nicole Lee, residing at 15711 SW 137 Avenue, Apartment 205, Miami, Florida, 33157, hereby irrevocably disclaim all right, title, and interest, current or prospective in or to the property described below, to which I am a beneficiary from the estate of Andre Lee, the creator of the interest,
All Estate assets
I acquired knowledge of the interest in the property on January 6, 2014, and this disclaimer is filed within a reasonable time thereafter.

Subsequently, on December 11, 2014, Camille Lee filed a petition for discharge seeking distribution of the estate's assets. On April 9, 2015, Camille Lee filed the disclaimer with the probate court, and the probate court, on the same day, entered an order granting the distribution of assets.

Approximately a year later, on May 24, 2016, Nicole Lee filed an objection to the petition for discharge, arguing that the disclaimer she had signed and delivered to the personal representative of the estate was deficient. The probate court held a hearing on August 22, 2017, which continued on November 15, 2017, and ultimately determined that the disclaimer was both legally insufficient under section 739.104(3) of the Florida Statutes and violative of the statute of frauds because the disclaimer did not specifically identify the real property being disclaimed. The probate court then denied Camille Lee's amended petition for distribution and discharge as it related to the estate's real property, and denied Camille Lee's motion for rehearing.

Camille Lee, as personal representative, timely appealed this order. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.170(b)(15).

II. Analysis

The Florida legislature has codified the requirements for disclaimer of property in chapter 739, the Florida Uniform Disclaimer of Property Interests Act. Pursuant to section 739.104 of the Florida Statutes, a person may disclaim any interest in or power over any property or power of appointment. Unless otherwise stated, a disclaimer filed under chapter 739 is unconditional. § 739.104(1), Fla. Stat. (2014).

In order for a disclaimer to be effective, a disclaimer must: (i) be in writing, (ii) declare that the writing is a disclaimer, (iii) describe the interest or power disclaimed, (iv) be signed by the person making the disclaimer, (v) be witnessed and acknowledged in the manner provided for by deeds of real estate, and (vi) be delivered in the manner provided in section 739.301 of the Florida Statutes. § 739.104(3), Fla. Stat. (2014).

Section 739.601 provides additional requirements if the disclaimer is to be recorded, thus providing constructive notice to anyone conducting a title search that might involve real property that has been disclaimed. See § 739.601(1) - (2), Fla. Stat. (2014). This statute provides that a disclaimer "relating to real estate does not provide constructive notice to all persons unless the disclaimer contains a legal description of the real estate to which the disclaimer relates and unless the disclaimer is filed for recording in the office of the clerk of the court in the county ... where the real estate is located." § 739.601(1), Fla. Stat. (2014). The statute further provides as follows: "An effective disclaimer meeting the requirements of subsection (1) constitutes constructive notice to all persons from the time of filing. Failure to record the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer ." § 739.601(2), Fla. Stat. (2014) (emphasis added).

Hence, if the disclaimer is to be recorded to provide constructive notice, then the disclaimer must contain a legal description of the real property. It is clear, though, from subsection (2) of this statute, that a non-recorded disclaimer is valid as between the disclaimant and the person to whom the property passes by reason of the disclaimer, regardless of whether the disclaimer includes a description of the real property. If the legislature had intended for all disclaimers of real property, whether recorded or not, to contain a legal description, there would have been no need in section 739.601(1) to include a requirement of a legal description for disclaimers that would be recorded.

The instant disclaimer meets each statutory requirement found in section 739.104(3). While the absence of a legal description of the subject property renders the disclaimer incapable of recordation under section 739.601, the lack of a legal description does not otherwise affect its validity.

Finally, we note that the trial court summarily determined that the disclaimer did not meet the requirements of the statute of frauds, section 725.01 of the Florida Statutes. Even if Florida's statute of frauds were to apply to disclaimers of real property governed by chapter 739, the subject disclaimer is in writing and signed by Nicole Lee - i.e., "the party to be charged therewith." Id. Therefore, the disclaimer appears to meet the statute's requirements.

III. Conclusion

Nicole Lee's disclaimer foregoing any interest in her father's estate assets met the statutory requisites of section 739.104(3) ; and, even if the statute of frauds is applicable to such disclaimers, Nicole Lee's disclaimer appears to meet the statute's requirements that the agreement or promise be in writing and signed by the party against whom the writing is proffered. We reverse the order on appeal and remand for proceedings consistent with this opinion.

Reversed and remanded.

      Because we are called on to review a pure question of law (i.e., the probate court's determination that the subject disclaimer is legally insufficient), our review is de novo . In Re Benitez, 250 So.3d 153, 155 (Fla. 3d DCA 2018).

      "In the case of a disclaimer of an interest created under the law of intestate succession ... [t]he disclaimer must be delivered to the personal representative of the decedent's estate." § 739.301(2)(a), Fla. Stat. (2014).

      Florida's statute of frauds provides in pertinent part:
      No action shall be brought ... upon any contract for the sales of lands ... or of any uncertain interest in or concerning them ... or upon any agreement that is not to be performed within the space of 1 year from the making thereof ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.
      § 725.01, Fla. Stat. (2014).


author: VILLANTI, Judge.

text:
    Marcus B. HARRIS, Appellant, v. Martye S. GATTIE, Appellee.
    Case No. 2D17-5170
    District Court of Appeal of Florida, Second District.
    Opinion filed January 23, 2019.
    Marcus B. Harris, pro se.
    No appearance for Appellee.
   VILLANTI, Judge.

Marcus Harris appeals the order sanctioning him for allegedly filing frivolous pleadings by forbidding him from filing further pro se papers in this case and any other case in which he is a litigant. We treat Harris's appeal as a petition for writ of certiorari. See, e.g., Owens v. Forte, 135 So.3d 445, 445-46 (Fla. 2d DCA 2014) (reviewing order precluding a party from filing further pro se pleadings through certiorari); Balch v. HSBC Bank, USA, N.A., 128 So.3d 179, 181 (Fla. 5th DCA 2013) (concluding that an order sanctioning a pro se litigant and prohibiting future pro se filings is not a final, appealable order and converting the appeal to a petition for writ of certiorari); Epps v. State, 941 So.2d 1206, 1206-07 (Fla. 4th DCA 2006) (reviewing order precluding a party from filing further pleadings pro se through certiorari); Favreau v. Favreau, 940 So.2d 1188, 1189 (Fla. 5th DCA 2006) (treating notice of appeal of order barring further pro se pleadings as a petition for writ of certiorari). And we grant certiorari and quash the sanctions order because the trial court failed to follow the proper procedures before imposing this sanction on Harris.

The underlying case arises out of a dispute between Harris and some of his relatives concerning the disposition of some real property that was included in his uncle's estate. Harris is currently serving a term in Florida State Prison, and, due in part to his incarceration, Harris had difficulty effecting service of his complaint on his niece and grandniece. Because of this, Harris filed a number of motions with the court relating to service of the complaint. The trial court timely ruled on each of these motions.

Before his initial complaint had been served on all defendants, Harris filed a motion for leave to file an amended complaint, and he attached the proposed amended complaint to that motion. On October 27, 2017, the trial court granted this motion and deemed the amended complaint filed as of that date. However, shortly thereafter, on November 13, 2017, the trial court sua sponte entered an order barring Harris from filing any further pro se motions or pleadings in this case and any other case. There is no indication in either the sanctions order itself or the trial court's docket that the court provided notice to Harris that the court was considering imposing sanctions against him or that the court afforded him an opportunity to be heard before the sanction was imposed. Upon receipt of the sanctions order, Harris promptly sought review in this court.

As noted above, while Harris filed a notice of appeal directed to the sanctions order, we treat this appeal as a petition for writ of certiorari. To be entitled to the issuance of such a writ, Harris must show "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) ). The departure from the essential requirements of the law sufficient to warrant relief through certiorari is something more than simple legal error. Instead, "[a] district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla. 2003) (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000) ). Such a miscarriage can occur when a party's due process right to notice and an opportunity to be heard has been abridged by the court. See, e.g., Presidio Networked Sols., Inc. v. Taylor, 115 So.3d 434, 435 (Fla. 2d DCA 2013) (noting that the trial court's failure to provide notice and opportunity to be heard to Presidio was a "complete denial of due process" sufficient to "constitute[ ] the type of irreparable harm that is subject to certiorari review"); K.G. v. Fla. Dep't of Children & Families, 66 So.3d 366, 368-69 (Fla. 1st DCA 2011) (holding that the court's failure to afford the mother an opportunity to be heard at the shelter hearing constituted a departure from the essential requirements of the law sufficient to be subject to review by certiorari).

In the context of sanctioning a pro se litigant by barring further pro se pleadings, the supreme court has recognized that there must be a balance between a litigant's right of access to the courts and any abuse of that process.

We have recognized the importance of the constitutional guarantee of citizen access to the courts, with or without an attorney. See, e.g., Rivera [v. State ], 728 So.2d [1165] at 1166 [ (Fla. 1998) ]; Attwood [v. Singletary], 661 So.2d [1216] at 1217 [ (Fla. 1995) ]; see also art. I, § 21, Fla. Const. ("The courts shall be open to every person for redress of any injury...."). Thus, denying a pro se litigant the opportunity to file future petitions is a serious sanction, especially where the litigant is a criminal defendant who has been prevented from further attacking his or her conviction, sentence, or conditions of confinement, as in Spencer and Huffman.
However, any citizen, including a citizen attacking his or her conviction, abuses the right to pro se access by filing repetitious and frivolous pleadings, thereby diminishing the ability of the courts to devote their finite resources to the consideration of legitimate claims. See Rivera, 728 So.2d at 1166 ; Attwood, 661 So.2d at 1216-17 ; Martin [v. Circuit Court, Seventeenth Judicial Circuit], 627 So.2d [1298] at 1300 [ (Fla. 4th DCA 1993) ].

State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). Thus, "[c]ourts may, upon a demonstration of egregious abuse of judicial process, restrict parties from filing pro se pleadings with the court." Id. at 47 ; see also Martin v. Dist. of Columbia Court of Appeals, 506 U.S. 1, 3, 113 S.Ct. 397, 121 L.Ed.2d 305 (1992) (recognizing the court's inherent authority to sanction vexatious litigants).

However, to balance the pro se litigant's right of access against the need of the courts to prevent abusive filings, the court must provide the pro se litigant with notice and an opportunity to be heard before such a sanction may be imposed. Spencer, 751 So.2d at 48. And this due process requirement applies to litigants involved in civil proceedings as well as criminal ones. See, e.g., Lomax v. Taylor, 149 So.3d 1135, 1136 n.2 (Fla. 2014) (citing Spencer as providing the required procedure before sanctioning a litigant in a civil case); Riethmiller v. Riethmiller, 133 So.3d 926, 926 n.3 (Fla. 2013) (same); Delgado v. Hearn, 805 So.2d 1017, 1018 (Fla. 2d DCA 2001) (applying the Spencer standard to civil litigants).

Here, neither the trial court's order nor its docket shows that the court provided Harris with either notice or an opportunity to be heard before it sanctioned him by barring him from filing any further pro se pleadings or papers. By failing to afford Harris his due process right to notice and opportunity to be heard before it imposed sanctions, the trial court departed from the essential requirements of the law. And while the court did not bar Harris from appearing through counsel, Harris has nevertheless suffered a material injury that cannot be corrected on postjudgment appeal in that he is barred from filing any papers on his own behalf in this, or any other, civil case-a right to which he would be otherwise entitled.

For this reason, we grant Harris's petition, quash the sanctions order, and remand for further proceedings. We do not address the merits of the trial court's order, and, on remand, the trial court may again consider sanctioning Harris if it provides him with notice of the possibility of sanctions and an opportunity to be heard. We also note that while it may be permissible for the court to enter a sanctions order that prohibits pro se filings in other and future cases, see, e.g., Sapp v. State, 238 So.3d 875, 877-78 (Fla. 5th DCA 2018), it would behoove the trial court to provide Harris with notice of the possibility of such broad-reaching sanctions and the opportunity to be heard on the extent of those sanctions if it intends to do so, see Brinson v. State, 215 So.3d 1260, 1261 (Fla. 5th DCA 2017) (finding sanctions order that prohibited pro se filings in future cases to be overbroad when the show cause order placing Brinson on notice of the possibility of sanctions referred only to the case in which the notice was given).

Petition granted, order quashed, and remanded for further proceedings.

LaROSE, C.J., and LUCAS, J., Concur.

      Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought ....").

      But see Bolton v. SE Prop. Holdings, LLC, 127 So.3d 746 (Fla. 1st DCA 2013) (considering direct appeal of an order sanctioning a pro se litigant for filing frivolous pleadings).


text:
    J.A., a Child, Appellant, v. SCHOOL BOARD OF BREVARD COUNTY, Appellee.
    Case No. 5D17-4052
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Scarlett G. Davidson, of Culmer & Davidson, P.A., Rockledge, for Appellant.
    Suzanne D'Agresta and Erin J. O'Leary, of Garganese, Weiss, D'Agresta & Salzman, P.A., Orlando, for Appellee.
   PER CURIAM.

J.A., a minor, appeals the final administrative order of the School Board of Brevard County (the "School Board") expelling him from high school based upon a violation of its Policy 5530. J.A. admitted that he consumed an alcoholic beverage while he was at the home of a friend's grandparents prior to attending a school-sponsored homecoming dance. Although we do not condone his behavior, we are nevertheless compelled to vacate the order of expulsion because J.A.'s actions did not violate this somewhat inartfully drafted policy.

School Board Policy 5530 "prohibits the use, possession, concealment, or distribution of any drug or any drug-related paraphernalia as the term is defined by law, or the misuse of a product containing a substance that can provide an intoxicating or mood-altering effect on school grounds; on school vehicles; and at any school-sponsored event." No evidence was presented at the expulsion hearing that J.A. consumed or possessed alcohol while at the dance, nor, for that matter, did the School Board allege or find that he did. Rather, the School Board explained in its order that it had expelled J.A. because he "admitted to the use and was discovered to have used alcohol in the course of an investigation." What occurred is that other individuals and students at the dance, not associated with J.A., exhibited signs of being under the influence of alcohol. This triggered an investigation at the dance by School Board employees who were there chaperoning. J.A. was one of a number of additional students who were questioned, and it was during this investigation that he admitted to having consumed "one beer" approximately two hours before arriving at the dance.

The School Board candidly acknowledges in its brief that a disclosure or admission by a student of his or her prior use of alcohol, by itself, is not grounds for expulsion. It nevertheless argues that J.A. was properly expelled because "a student is subject to expulsion if he uses alcohol and then attends school or a school sponsored event while displaying symptoms that he used alcohol or is under the influence of alcohol." While this may very well be a legitimate basis for the expulsion of a student, the problem for the School Board in this case is that Policy 5530 does not presently say this. What it does prohibit is the use, possession, concealment, or distribution of drugs, drug paraphernalia or the misuse of an intoxicating product (such as alcohol) on school grounds, on school vehicles, or at a school-sponsored event, which the School Board did not prove by its evidence at the final hearing.

Accordingly, we vacate the decision of the School Board.

FINAL ORDER OF EXPULSION VACATED.

EVANDER, C.J., LAMBERT and EISNAUGLE, JJ., concur.

      The final order of expulsion also found that J.A. violated School Board Policy 5500. According to the version of Policy 5500 contained in the record on appeal, that policy provides for the expulsion of any student found to have committed an act of assault, aggravated assault, battery, or aggravated battery on any elected official of the school district, teacher, administrator, or other school district personnel. As the record before us contains no evidence or even a suggestion that J.A. committed any type of assault or battery, we are at a bit of a loss as to why he was found to have violated this policy.