text:
    STATE of Florida, Appellant, v. Keith Joseph McKNIGHT, Appellee.
    No. 5D09-2743.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State appeals the downward departure sentence imposed on Keith McKnight [“McKnight”]. We reverse.

McKnight was charged by information with driving while license cancelled, suspended or revoked as a habitual traffic offender, a third-degree felony, and driving under the influence, a misdemeanor. He has an extensive prior record and the State filed a notice of its intent to seek habitual offender status.

On July 14, 2009, a status conference was held for the two offenses and the associated violation of probation. The court offered McKnight a withhold of adjudication on count one and two years of probation on count two. The State objected that such a sentence would be an impermissible downward departure. The computation of McKnight’s criminal punishment code scoresheet reflected 114.4 total sentence points, with a resulting lowest permissible prison sentence of 62.55 months. McKnight readily agreed to the offer and was sentenced accordingly. The trial court further found that, although McKnight qualified as a habitual felony offender, the designation was not necessary for the protection of the public.

As its basis for the downward departure, the court said:

The reasons for the downward departure is that the defendant, prior to coming into court, relied upon the Court’s— not directions — suggestion that he use all best efforts to get a license, and by goodness, he has in fact got a license.

A downward departure sentence less severe than the lowest permissible sentence shown on the criminal punishment code scoresheet “is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. (2009). At a minimum, the trial court must impose the lowest permissible sentence calculated according to the Criminal Punishment Code unless the court finds that the evidence supports a valid reason for a downward departure. See e.g., § 921.002(1)(f) & (3), Fla. Stat. (1999); State v. Henderson, 766 So.2d 389, 390 (Fla. 2d DCA 2000). Section 921.0026(2) sets forth the circumstances under which a departure from the lowest permissible sentence is reasonably justified. The statutory list of mitigating factors is not exclusive and the trial court may impose a downward departure sentence for reasons not delineated in section 921.0026. See State v. Stephenson, 973 So.2d 1259, 1263 (Fla. 5th DCA 2008); State v. Bray, 738 So.2d 962, 963 (Fla. 2d DCA 1999).

In evaluating a nonstatutory mitigating circumstance, a reviewing court must consider the reasons given in light of the stated legislative sentencing policy. State v. Geoghagan, 27 So.3d 111, 115 (Fla. 1st DCA 2009); Rafferty v. State, 799 So.2d 243, 248 (Fla. 2d DCA 2001) (during sentencing, question trial court should ask is whether nonstatutory reasons given for downward departure meet legislative policy for departing downward in sentencing); State v. Chestnut, 718 So.2d 312, 313 (Fla. 5th DCA 1998). As noted in Chestnut, because the first purpose of sentencing is to punish, a downward departure from the permissible sentence is discouraged and adequate justification is required. Id. Second, the mitigating factors expressly authorized by the Legislature mainly focus on the offense itself: the nature of the crime, the defendant’s level of criminal involvement or participation, the mental capacity or state of mind of the defendant. Id.

The trial court’s first reason for downward departure — that McKnight followed the judge’s suggestion and obtained a valid license — does not resemble any of the statutorily authorized grounds for departure. It goes against the legislative policies of punishment and of increasing the severity of the punishment for repeat crimes. McKnight has three prior convictions for driving while license cancelled, suspended or revoked. According to the police report, at the time McKnight was stopped for the DUI, his license was suspended and he was intoxicated at the time he was driving.

The second basis for the court’s downward departure, that McKnight has previously received substantial prison time, also goes against legislative policy. The trial court lacks discretion to grant a downward departure sentence based on factors already taken into account by the sentencing guidelines. See State v. Sachs, 526 So.2d 48, 50 (Fla.1988); Stephenson, 973 So.2d at 1264. Nor will an offender’s work status or length of previous sentences support downward departure. See Geoghagan, 27 So.3d at 115; State v. Chapman, 805 So.2d 906, 908 (Fla. 2d DCA 2001); State v. Nathan, 632 So.2d 127, 128 (Fla. 1st DCA 1994); State v. Lacey, 553 So.2d 778 (Fla. 4th DCA 1989).

According to the record, McKnight is gainfully employed cleaning septic tanks and he had previously paid substantial restitution for treatment of a prior victim’s injuries. The trial court expressed the view that it made more sense for McKnight to “continue to be a law-abiding, tax-paying, contributing member of society,” and not to be a “drag” on the citizens of Florida by being incarcerated for several years. The state legislature has established different priorities in its sentencing policy, however, and has chosen not to repose that kind of downward sentencing discretion in the state’s judges.

Because the trial court failed to articulate valid reasons for the downward departure sentence, the downward departure sentence is vacated. On remand, McKnight may be permitted to withdraw his plea, if he chooses to do so, or be resentenced within the guidelines.

SENTENCE VACATED and REMANDED.

GRIFFIN, SAWAYA and LAWSON, JJ., concur.

      . Thirteen prior felonies and thirteen prior misdemeanors' appear in the record.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    M.F., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3053.
    District Court of Appeal of Florida, Second District.
    May 21, 2010.

      James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

M.F., a juvenile, seeks review of the trial court’s order finding that she committed the offense of grand theft of a motor vehicle, withholding adjudication, and placing her on probation. M.F. argues that the trial court erred in denying her motion for judgment of dismissal. Because the State failed to establish that M.F. was involved with the theft of her mother’s vehicle, we reverse.

M.F.’s mother testified that she lived in a home in Polk County with M.F.’s grandmother, M.F., and M.F.’s boyfriend. The mother owned a white Camaro that she kept in the carport. The car was operational, but it had expired tags and was not registered, so the mother told everyone in the home not to touch the car. In October 2008, the mother left the family’s home and temporarily moved to Fort Lauder-dale.

The grandmother testified that in early November 2008, Sergeant Robert Pletts from code enforcement spotted the unregistered Camaro in the carport. Sergeant Pletts told her that the car had to be removed because it did not have a valid tag. The grandmother explained that the car belonged to her absent daughter, and Sergeant Pletts said he would give her until December to correct the problem.

On November 6, 2008, two unidentified men with a truck towed the Camaro from the driveway as the grandmother was painting a room in the back of the home. The grandmother heard the men in the driveway and ran to the front of the home, but the men drove away with the car before she could stop them. As the men were leaving, the grandmother saw M.F. and her boyfriend getting into the next door neighbor’s car in his driveway. The grandmother yelled to M.F., but M.F. ignored her.

The neighbor drove his car in the same direction as the truck towing the Camaro, but the grandmother could only see the tow truck for about a block. She did not know if the car followed the truck after it left her line of sight. When M.F. came home later that night, she did not say anything about the Camaro. The grandmother waited a couple of days and then called the mother. After she spoke to the mother, the grandmother called the police. The only thing M.F. ever said to the grandmother about the Camaro was that it was none of the grandmother’s business. M.F. told the mother that the grandmother had the car towed away.

Officer Sanchez testified that he responded to the stolen vehicle complaint on November 14, 2008. He placed a BOLO for the Camaro, and he verified that there was no police report from a towing company indicating that the car was towed. The officer was not sure if every towing company reported towed cars to the police.

The trial court should grant a judgment of dismissal when the State fails to present a prima facie case of the offense charged. M.E.R. v. State, 993 So.2d 1145, 1146 (Fla. 2d DCA 2008). In circumstantial evidence cases, the State must present evidence that is inconsistent with any reasonable hypothesis of innocence. This court conducts a de novo review of the denial of a motion for judgment of dismissal. In conducting this review, we must view the evidence in the light most favorable to the State. Id.

The elements of grand theft of a motor vehicle are (1) knowingly obtaining or using or attempting to obtain or use the property of another with (2) the intent to deprive the victim of the right to or benefit from the property or appropriate the property to one’s own use or the use of another unauthorized person, when (3) the property is a motor vehicle. § 812.014(1), (2)(c)(6), Fla. Stat. (2008). The evidence presented by the State in this case does not even establish that the mother’s car was stolen as opposed to being towed away by code enforcement, let alone that M.F. was responsible for having the car towed away. There was no evidence suggesting that M.F. planned to steal the Camaro. There was no evidence connecting M.F. with the two unidentified men who towed the car other than the fact that M.F. got into a neighbor’s car that headed the same direction as the tow truck for about one block. Finally, the Camaro was never retrieved, so there was no physical evidence that M.F. had used it or sold it to someone else.

Additionally, the evidence did not exclude the reasonable hypothesis of innocence that code enforcement had arranged for the Camaro to be towed. The car did not have a valid tag, and code enforcement had already stopped by to warn the grandmother that it must be removed. Sergeant Pletts supposedly told the grandmother that he would give her until December to have the Camaro registered, but there was no evidence regarding whether he or a different officer had the car removed. Indeed, no one from code enforcement testified. Because the Cama-ro remained in the carport without a valid tag, it is certainly possible that code enforcement arranged for the car to be towed without waiting until December. Moreover, the State did not discount the possibility that some unknown third parties stole the Camaro.

Because the State’s evidence was legally insufficient to establish a prima facie case of grand theft of a motor vehicle and was not inconsistent with any reasonable hypothesis of innocence, we reverse the order on appeal.

Reversed and remanded.

CRENSHAW and MORRIS, JJ., Concur.


author: TAYLOR, J.

text:
    AMERICAN VEHICLE INSURANCE COMPANY, a Florida for profit corporation, Appellant, v. Olive GOHEAGAN, as Personal Representative of the Estate of Molly Swaby, deceased and as Assignee of John Perkins, Appellee.
    No. 4D09-3222.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2010.
    Hinda Klein and Kristen A. Tajak of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellant.
    Nichole J. Segal and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Michael S. Smith of Lesser, Lesser, Landy & Smith, PLLC, West Palm Beach, for appellee.
   TAYLOR, J.

American Vehicle Insurance Company (AVIC) appeals a non-final order denying its motion to dismiss or transfer venue from Palm Beach County to Broward County. Because the Estate’s cause of action against AVIC accrued in Palm Beach County, venue was proper in Palm Beach. Accordingly, we affirm the trial court’s order denying the motion to transfer venue.

The underlying litigation arose from a car accident in Palm Beach County involving AVIC’s insured, John Perkins, a Palm Beach County resident, and Molly Swaby. Swaby died in Palm Beach County as a result of the accident, and her Estate was opened in Palm Beach County. Perkins’s policy was issued for delivery to him in Palm Beach County and provided liability insurance limits of $10,000 per person and $20,000 per accident. Olive Goheagan, as Personal Representative of the Estate of Molly Swaby, filed a negligence action against Perkins in Palm Beach County. The trial resulted in a final judgment against Perkins for $2,792,893.65. Thereafter, Perkins assigned all of his claims against AVIC to the Estate.

The Estate filed a complaint in Palm Beach County against AVIC alleging bad faith in its handling of the Estate’s claim against Perkins. AVIC filed a Motion to Dismiss or Motion to Transfer Venue from Palm Beach County to Broward County, asserting that Broward County is the only proper venue for this action. In support of its motion, AVIC filed an affidavit of one of its representatives, C. Brian Turnau, attesting that AVIC does not maintain any offices or “captive agents” in Palm Beach County, AVIC’s office for transaction of customary business is located in Broward County, and the claim against Perkins was adjusted in Broward County. The Estate responded with an affidavit of its attorney, Richard D. Schuler, asserting, inter alia, that Swaby and Perkins were Palm Beach County residents, Perkins’s policy was issued for delivery by AVIC in Palm Beach County, the accident occurred in Palm Beach County, the Estate was opened in Palm Beach County, all communications concerning adjustment of the claim against Perkins occurred in Palm Beach County, AVIC failed to timely tender the policy limits in Palm Beach County, and the final judgment from the underlying action remains pending in Palm Beach County. After the hearing, the trial court entered a non-final order denying AVIC’s motion. AVIC filed this appeal.

“[W]hen a trial court is presented with a motion to transfer venue based on the impropriety of the plaintiffs venue selection, the defendant is arguing that, as a matter of law, the lawsuit has been filed in the wrong forum. In order to rule on such a motion, the trial court needs to resolve any relevant factual disputes and then make a legal decision whether the plaintiffs venue selection is legally supportable. A trial court’s factual decisions in this context are reviewed to determine whether they are supported by competent, substantial evidence or whether they are clearly erroneous. The trial court’s legal conclusions are reviewed de novo.” PricewaterhouseCoopers LLP v. Cedar Res., Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999) (internal citations omitted).

The plaintiff has the prerogative to choose the venue, and as long as that selection is proper as provided by statute, the court will not disturb the selection. Padin v. Travis, 990 So.2d 1255, 1256 (Fla. 4th DCA 2008) (citing Premier Cruise Lines, Ltd., Inc. v. Gavrilis, 554 So.2d 659, 660 (Fla. 3d DCA 1990)). Although an unsworn complaint is sufficient to allege venue, absent a challenge by a defendant, when a defendant challenges venue by filing an affidavit controverting the plaintiff’s venue allegations, the burden shifts to the plaintiff to establish the propriety of the venue selection. Miller v. Southland Ins. Co., 513 So.2d 800, 801 (Fla. 4th DCA 1987) (citing Tropicana Prods., Inc. v. Shirley, 501 So.2d 1373, 1375 (Fla. 2d DCA 1987)). If the defendant makes the proper showing, the court should, if possible, transfer the case to the correct venue, pursuant to Florida Rule of Civil Procedure 1.060(b), rather than dismiss it. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nat’l Bank of Melbourne & Trust Co., 238 So.2d 665, 667 (Fla. 4th DCA 1970) (citing Foy v. State Road Dep’t, 166 So.2d 688 (Fla. 3d DCA 1964)).

AVIC moved to dismiss this casé, or in the alternative, transfer it to Broward County. It supported the motion with an affidavit from an AVIC representative, who alleged venue was proper only in Bro-ward County, as that was where AVIC maintained an office for customary business and where the claim was adjusted. The burden then shifted to the Estate to prove that its venue selection was proper. The Estate met this burden by filing an affidavit attesting that most of the underlying events that led to the bad faith claim occurred in Palm Beach.

AVIC filed its motion to dismiss or transfer venue pursuant to section 47.051, Florida Statutes (2008), which provides that “[ajctions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.” Here, it is undisputed that AVIC does not have an office in Palm Beach County and there is no property in litigation. Thus, the issue is whether the cause of action accrued in Palm Beach County or Broward County.

In Florida a bad faith claim is an action ex contractu. N. Am. Van Lines, Inc. v. Lexington Ins. Co., 678 So.2d 1325, 1330 (Fla. 4th DCA 1996) (citing Nationwide Mut. Ins. Co. v. McNulty, 229 So.2d 585 (Fla.1969)). When bad faith is alleged, “the cause is one for breach of a contractual obligation implied in law, namely good faith.” Id. Further, ‘“[a] cause of action on a contract accrues for venue purposes where the breach of that contract occurs, and if a contract involves performance, the breach occurs where the defaulting party fails to perform an act that it has agreed to do.’ ” Koslow v. Sanders, 4 So.3d 37, 38 (Fla. 2d DCA 2009) (quoting Speedling, Inc. v. Krig, 378 So.2d 57, 58 (Fla. 2d DCA 1979)).

In Oliver v. Severance, 542 So.2d 408, 409 (Fla. 1st DCA 1989), Severance obtained insurance through Oliver, who did business in Clay County. Severance was later injured and made a claim, which was denied. Id. Severance filed suit in Columbia County, where he resided and where the accident occurred. Id. Oliver moved to have the case transferred to Clay County and filed an affidavit in support. The court initially granted the motion, but on rehearing, reversed and denied it. Id. The first district affirmed, reasoning that because it was alleged that “under the terms of his contract with Severance, Oliver was to procure workers’ compensation insurance covering all employees of Severance Trucking, Inc., including Severance himself[,][t]he alleged breach of this contract necessarily had to occur in Columbia County, the county where Severance’s business was located and where Oliver would pay the loss sustained by Severance in the event he suffered a work-related injury required under the terms of the insurance contract.” Id. at 410.

The Oliver court also discussed with approval Alliance Life Insurance Co. v. Ulysses Volunteer Fireman’s Relief Rescue Ass’n., 215 Kan. 937, 529 P.2d 171 (1974), where “[t]he court observed that the rule fixing venue for the purpose of breach of insurance contracts is no different from the rule governing breach of contracts in general, and therefore venue of the cause of action arose in the county where the decedent resided, the place where the contract, but for the occurrence of the breach, should have been performed.” Oliver, 542 So.2d at 410 (citing Alliance Life Ins., 215 Kan. 937, 529 P.2d 171).

In Ivey v. Padgett, 502 So.2d 22, 23 (Fla. 5th DCA 1986), plaintiffs filed a complaint against defendants alleging legal malpractice for failing to file a claim in Volusia County, where the underlying claim occurred, and appealed the trial court’s granting of a motion changing venue to Putnam County. The fifth district reversed, explaining that “[w]hen the contract is one for the performance of services, the cause of action for failure to perform the agreed services accrues where it is alleged that the agreed services were to have been, but were not, performed.” Id. (citing Windsor v. Migliaccio, 399 So.2d 65 (Fla. 5th DCA 1981)). The court held that because the defendants failed to file the claim in Volusia County, the “contractual cause of action ... accrued in Volusia County where the defendants’ services, the timely filing of the medical malpractice action, were to have been performed.” Id.

Although not directly on point, cases applying Florida choice-of-law principles are instructive on this venue issue. In Teachers Insurance Co. v. Berry, 901 F.Supp. 322, 323-24 (N.D.Fla.1995), a choice-of-law case between Florida and Mississippi, respondents counterclaimed against the insurance company, alleging it acted in bad faith in failing to settle the underlying wrongful-death action between themselves and the victim’s estate. The court held that the place of the insurance company’s “performance under the insurance policy is Florida. Florida is the place [where] the wrongful death action against respondents was brought, maintained, defended, and where negotiation for settlement between the adjuster for [the insurance company] and counsel for Estate of [the victim] commenced.” Id. at 324.

In Government Employees Insurance Co. v. Grounds, 332 So.2d 13, 14-15 (Fla.1976), the Florida Supreme Court held that Florida law controlled a bad faith ex contractu action, rather than Mississippi law, because Florida was the place of performance where the insurance company breached its duty by failing to provide the insured with a good faith defense to the underlying action.

AVIC’s breach of its contractual obligation occurred when it allegedly failed to exercise its duties of good faith; its duties should have been performed in Palm Beach County. As explained in Ivey, a cause of action accrues where services “were to have been, but were not, performed.” 502 So.2d at 23 (citing Windsor, 399 So.2d 65). These duties included making a settlement offer and/or tendering the policy limits to the Estate, which was opened in Palm Beach County; investigating and evaluating the claim, when the accident occurred in Palm Beach County; and advising and warning Perkins, who resided in Palm Beach County, of possible outcomes, risks, and consequences. Although the physical location of the adjuster was in Broward County, the totality of the circumstances support venue being proper in Palm Beach County.

Accordingly, we affirm the trial court’s denial of AVIC’s motion to transfer venue.

Affirmed.

GERBER and LEVINE, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    Nelson VIERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3300.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.
    Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

This is an appeal from a conviction and a 40 year sentence for trafficking in heroin. We find no trial error and therefore affirm the conviction. However, after consideration of the circumstances surrounding the sentence in light of the factors stated in Wilson v. State, 845 So.2d 142, 156 (Fla.2003), particularly the judge’s enthusiastic advocacy of the State’s pre-trial offer of a ten year sentence in return for a guilty plea, and the unexplained 40 year sentence (the offense carried a 25 year mandatory minimum) which was imposed after the trial which followed the defendant’s rejection of the offer, we must conclude that the sentence was, in legal parlance, “vindictive,” requiring resentencing by another judge. See Brandful v. State, 858 So.2d 367 (Fla. 3d DCA 2003); Compare Ducksworth v. State, 26 So.3d 74 (Fla. 3d DCA 2010).

Affirmed in part, vacated in part, and remanded.


author: SUAREZ, J.

text:
    Jules DUCAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1175.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.
    Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
   SUAREZ, J.

Affirmed. See R.C. v. State, 648 So.2d 1258 (Fla. 3d DCA 1995); Jones v. State, 360 So.2d 157 (Fla. 3d DCA 1978) (finding that foul language of the defendant in the presence of the court was contemptuous and upheld on appeal); Martinez v. State, 339 So.2d 1133 (Fla. 2d DCA 1976) (finding that foul language said in open court was contemptuous as such conduct had “an adverse effect upon the quality of justice”).


text:
    The STATE of Florida, Appellant, v. E.A., a juvenile, Appellee.
    No. 3D08-3109.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell and Harvey Sepler, Assistant Public Defenders, for appellee.
    Before COPE, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

The State appeals an order granting juvenile E.A.’s motion to suppress. We reverse and remand for the trial judge to enter adequate findings of fact determining the credibility of testimony on the issue of whether or not a seizure within the Fourth Amendment had occurred to implicate a finding on probable cause.

At the motion to suppress hearing, on December 27, 2007, a Miami-Dade police officer testified that he approached the car in which E.A. was a passenger because the vehicle was blocking the entrance to the driveway to a residence. As the officer approached the vehicle, he smelled the odor of burnt marijuana emanating from the car. He shined his flashlight through the open window and saw E.A. holding a bag of suspect marijuana between his legs. The officer removed E.A. from the car and placed him under arrest. E.A. testified that his car was parked next to an abandoned residence. He stated he was across the street from the car when he first saw a police officer. He crossed back to his car and, as he was getting into the car, the officer came out of the bushes, approached E.A. with his gun drawn and ordered him out of the vehicle. E.A. consented to a search of his person and contends that the officer found nothing. The trial court granted the motion to suppress solely upon the finding that E.A. did not commit a parking violation or law violation and, therefore, there was no reasonable suspicion for the stop.

On appeal, both the defense and the State agree that, in fact, the police officer’s initial approach to the vehicle was lawful. The State asserts error in the trial court’s failure to include in its written order credibility findings resolving the conflict in testimony between E.A. and the police officer. The factual resolution on credibility is necessary in order to determine whether or not there was a Fourth Amendment seizure before addressing probable cause for the seizure of the marijuana and ensuing arrest of E.A. See State v. Deferance, 807 So.2d 806 (Fla. 4th DCA 2002); State v. Polanco, 658 So.2d 1123 (Fla. 3d DCA 1995). The defense asserts the trial court’s order should be affirmed arguing that the State failed to preserve the issue for appeal by failing to get a factual ruling from the trial court. We reject the defense’s argument. A review of the record shows that, because the trial judge first ruled, incorrectly, that there was no reasonable suspicion to uphold the stop, he granted the motion to suppress without ever addressing the issue of probable cause for the arrest. The State was left with no opportunity to object to the failure of the trial court to resolve the conflict in testimony on the issue of whether or not a Fourth Amendment seizure had occurred.

We reverse the order granting the motion to suppress and remand for the trial judge to resolve the conflict in testimony relating to whether there was a seizure under the Fourth Amendment as it relates to probable cause for the arrest of E.A. and for a written order containing the findings.

Reversed and remanded with directions.


author: PER CURIAM.

text:
    M.V., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1651.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.

      Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Hernandez-Alberto v. State, 889 So.2d 721, 730 (Fla.2004).


text:
    David HEAD, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3170.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.
    David Head, Bonifay, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

David Head appeals from the denial of his motion for postconviction relief, entered following an evidentiary hearing on Head’s multiple facially sufficient claims of ineffective assistance of counsel. Testimony at the hearing bore out many of Head’s claims, such that the trial court’s generalized finding that counsel provided “competent representation at all times” is not supported by competent and substantial evidence. We find it unnecessary to detail counsel’s deficiencies, and simply note that “[k]nowledge of the rules of evidence and basic procedure is required in order to provide effective assistance of counsel.” Chapman v. State, 442 So.2d 1024, 1026 (Fla. 5th DCA 1983). Given the nature of the evidence at trial — which basically amounted to a credibility contest between Head and the victim — we also find that Head established prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Accordingly, we reverse with directions that the trial court set aside Head’s conviction and sentence, and grant a new trial.

REVERSED AND REMANDED WITH DIRECTIONS.

ORFINGER, LAWSON, and JACOBUS, JJ., concur.


author: TORPY, J. GRIFFIN, J.,

text:
    Waltraut GACCIONE, Appellant, v. Robert L. DAMIANO and 5685 A1A, LLC., Appellees.
    No. 5D08-3438.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.

      Allan P. Whitehead of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appellant.
    Anthony Mechachonis of Balgo & Me-chachonis, P.A., Melbourne, for Appellees.
   TORPY, J.

The sole point of contention here is the entitlement to attorney’s fees to Appellant, who prevailed in a breach of contract action. Appellant claimed fees under two theories, one contractual and the other statutory. The trial court concluded that Appellant was not entitled to fees under either theory. We affirm the trial court as to contractual entitlement, but reverse as to statutory entitlement.

Appellant sold a residence to Appellee and then leased it back after closing under a written residential lease agreement. Ap-pellee breached the lease agreement, and Appellant sued for damages. After a non-jury trial, the lower court entered a judgment in favor of Appellant. The judgment awarded damages, determined that Appellant was the prevailing party for purposes of costs and reserved jurisdiction to determine entitlement to attorney’s fees.

Appellant filed a motion seeking a determination of her entitlement to attorney’s fees and costs. She claimed fees based on a provision in the sale agreement and pursuant to section 83.48, Florida Statutes (2007). After a hearing, the trial court entered an order denying attorney’s fees but reserving jurisdiction to award costs. The trial court concluded that because the written lease agreement was silent on the issue of fees, no fees could be awarded under either theory. We affirm the trial court’s determination based on Appellant’s contractual theory without further discussion. We reverse as to Appellant’s statutory theory, however, because the statute affords an independent basis for fees that is not dependent upon the existence of a contractual provision. Xanadu of Cocoa Beach, Inc. v. Lenz, 504 So.2d 518 (Fla. 5th DCA 1987).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

JACOBUS, J., concurs.

GRIFFIN, J., dissents with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent because I conclude that we lack jurisdiction to review the order denying attorney’s fees to Gaccione under section 83.48, Florida Statutes.

Gaccione filed suit for breach of a residential lease agreement and prevailed. During the hearing that resulted in the appealed order, Gaccione asserted two theories for entitlement to recover attorney’s fees: a separate purchase and sale contract between the parties and section 83.48, Florida Statutes. Section 83.48, which is part of the chapter dealing with landlord/tenant issues, is one of a handful of Florida statutes that authorizes the recovery of a reasonable attorney’s fee to the prevailing party as an element of costs:

In any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been rendered may recover reasonable court costs, including attorney’s fees, from the nonpre-vailing party.

The appealed order, entitled “Order Denying Motion to Determine Attorneys’ Fees” rejects the claim for fees under either ground and says:

“The Plaintiffs Motion to Determine Entitlement to Attorney’s Fees and Costs be and the same is hereby denied as to attorney’s fees, the Court reserving ruling as to Court Costs pending further proceedings in this case.”

In my view, this order is interlocutory as to the claim for fees under section 83.48 because the fees are considered part of costs. The decision by the trial court not to award attorney’s fees pursuant to section 83.48 is not reviewable until the court properly enters a cost order. Appellate review of an order on a claim for fees as an element of costs is no more viable than would be an order deciding entitlement to a single witness fee, travel expense, photocopy charge or deposition transcript. When all the costs have been determined by entry of a single final costs order, that order is reviewable, but individual orders disposing of discrete items of claimed costs are not subject to piecemeal review.

The majority seems to suggest that attorney’s fees awardable as a taxable cost pursuant to statute are not really a taxable cost. However, Xanadu of Cocoa Beach, Inc. v. Lenz, 504 So.2d 518 (Fla. 5th DCA 1987), the very case on which the majority relies for the principle that section 83.48, Florida Statutes, authorizes recovery of Gaccione’s attorney’s fees even though he did not plead a claim for fees under the statute, is premised on the fact that it is a cost. The court explained that an attorney’s fee awardable as a taxable cost is in the nature of reimbursement, not a substantive right. This court said:

Whether provided by contract or by statute an award of attorney’s fees can be viewed as a free-standing substantive right (cause of action), or as a substantive right ancillary to another main substantive right (cause of action). On the other hand, when such an award is considered to be an item of court costs it is similar to reimbursement for other items of recoverable court costs (clerk’s filing fees, sheriffs fees for service of process, court reporting fees, etc.), see chapter 57, Florida Statutes, and can be viewed as only making whole and complete the cause of action to which they are appurtenant. In this light, the award is perceived as merely part of the remedy for the cause of action (substantive right) of which it is an adjunct and, as a remedy, procedural in nature.

Id. at 519 (footnote omitted). We also said:

There are significant substantive differences between an award of attorney’s fees as an element of damages in a breach of contract case and attorney’s fees as court costs. When recovery of attorney’s fees is pursuant to a contractual provision as damages in an action on the contract, the contractual provision must be alleged and proof as to reasonable attorney’s fees must be presented by the party claiming them as part of his proof of damages in the case. See Mystery Fun House, Inc. v. Magic World, Inc., 417 So.2d 785 (Fla. 5th DCA 1982). However, when attorney’s fees are recoverable as costs, such as here under section 83.48, Florida Statutes, or under section 713.29, Florida Statutes (which provides for attorney’s fees to be taxed as part of costs to the prevailing party in a mechanic’s lien case), attorney’s fees may be taxed as costs in a motion which need be made only within a reasonable time after the appeal in the case has been concluded. See N.C.N. Electric, Inc. v. Leto, 498 So.2d 1377 (Fla. 2d DCA 1986).

Id. at 519-20, n. 4.

Other courts have made note of the significance of the classification of a statutory attorney fee as a cost. See City of Hallandale v. Chatlos, 236 So.2d 761 (Fla.1970); Allen v. Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). Classification of fees as a cost affects when and how it has to be claimed and when and how it is to be reviewed. The fact that the judge is not going to change his mind about the ruling on the section 83.48 fee claim does not make it final. What makes it final is inclusion of the ruling on this element of costs in a costs order. Because this claim for fees is an element of costs, the denial has to be reviewed, along with all the other costs, after a costs order has been entered.

The majority decision to hear and resolve the appeal of the claim under section 83.48 may seem expedient, but I have no doubt that it will have consequences beyond this case. The effect of the majority opinion is that such order on a statutory fee claim that allows a fee as a cost is final and not only may, but must be appealed immediately. Unfortunately, the next case might well involve someone who finds themselves with an untimely appeal because they relied on the statutory classification of the fee as a cost and foolishly waited to take the appeal from the costs order.

      . Appellee contends that we lack jurisdiction to address that aspect of the order denying fees under the statute because the court reserved jurisdiction to determine the amount of costs. Because section 83.48, Florida Statutes, arguably treats fees as costs, Appellee contends that the order is not final until the trial court sets the amount of costs. We disagree. Where, as here, an order entered after a final order is “dispositive of any question,” it becomes a final, appealable order. Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (emphasis added). We think entitlement to attorney's fees presents a distinct question from taxable costs, irrespective of how it is labeled in the statute. See Scruggs v. Sutton, 970 So.2d 853, 854 (Fla. 3d DCA 2007) (litigant must plead for fees under section 83.48 even though labeled costs). Even if the order is not final as to entitlement to fees under the statute, it is an appealable non-final order entered after a final order. Reliable Reprographics Blueprint & Supply, Inc. v. Fla. Mango Office Park, Inc., 645 So.2d 1040, 1042 (Fla. 4th DCA 1994). We previously attempted to make moot this issue by relinquishment of jurisdiction to the trial court for a period of sixty days. Unfortunately, the trial court did not enter a subsequent order during the period of relinquishment and no request to enlarge that period was ever received.

      . Entitlement to costs had already been expressly determined in the judgment so this aspect of the motion was unnecessary and the order was redundant on this point.


author: SAWAYA, J.

text:
    Scott SILVER, Appellant, v. Michelle SILVER, Appellee.
    No. 5D09-1118.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.
    Gary S. Israel, Orlando, for Appellant.
    Jennifer C. Frank, Maitland, for Appel-lee.
   SAWAYA, J.

The former husband appeals the trial court’s Order on the Report and Recommendation on the former wife’s Motion for Contempt. The trial court apparently overlooked the Exceptions to the magistrate’s Report and Recommendations timely filed by the former husband and found the former husband in willful contempt for failing to make all child support payments due and for failing to reimburse the former wife for certain identified expenses of the children. The Order was issued without a hearing on the former husband’s Exceptions and without the court’s benefit of the transcripts of the hearings before the magistrate, which transcripts were in the process of being prepared for the court’s use. Accordingly, we reverse and remand this case to the trial court to conduct an appropriate hearing on the exceptions to the magistrate’s report filed by the former husband. See Simmons v. Simmons, 16 So.3d 878 (Fla. 5th DCA 2009).

REVERSED and REMANDED.

ORFINGER and TORPY, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Wayne Alan PETRAE, Respondent.
    No. 5D09-3238.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Petitioner.
    Jack L. Platt and Kathryn A. Cronen-berg, of Platt Jacobus Fielding Ville, Trial Lawyers, LLC, Melbourne, for Respondent.
   PER CURIAM.

Petitioner, State of Florida, challenges a Brevard County circuit court order modifying Respondent Wayne Alan Petrae’s probation by deleting the condition requiring electronic monitoring. We find that the circuit court departed from the essential requirements of the law by deleting the probationary condition, grant the certiorari petition, and quash the order on review.

On November 21, 2003, Petrae was charged by information with two counts of lewd or lascivious battery after having sex with a thirteen year-old girl. Petrae was eighteen. In 2004, Petrae entered into a plea agreement whereby he pled guilty to one count of lewd or lascivious battery in exchange for the State’s agreement to nolle pross the other count, and a downward departure sentence of two years of community control followed by eight years of sex offender probation. In 2006, Petrae violated his community control after being discovered in possession of a large bag of marijuana. Petrae admitted the violation and, subject to another downward departure plea agreement with the State, had his community control/probation revoked and was sentenced to eleven years of supervised probation.

On April 30, 2009, Petrae filed a motion to modify his probation. In this motion, Petrae requested that the trial court remove the condition of probation requiring him to wear a GPS monitoring bracelet, which the trial court granted over the State’s objection.

As the State argued below, section 948.063, Florida Statutes, mandates the electronic monitoring of certain sex offenders who violate their probation and for whom probation is reinstated. The statute provides:

If probation or community control for any felony offense is revoked by the court pursuant to s. 948.06(2)(e) and the offender is designated as a sexual offender pursuant to s. 943.0435 or s. 944.607 or as a sexual predator pursuant to s. 775.21 for unlawful sexual activity involving a victim 15 years of age or younger and the offender is 18 years of age or older, and if the court imposes a subsequent term of supervision following the revocation of probation or community control, the court must order electronic monitoring as a condition of the subsequent term of probation or community control.

§ 948.063(1), Fla. Stat. (2009).

Trial judges are obligated to impose mandatory conditions of sex offender probation, and the statute does not allow for judicial discretion. See Springer, 965 So.2d at 272-73; Woodson v. State, 864 So.2d 512, 515 (Fla. 5th DCA 2004). Electronic monitoring is a mandatory condition for sexual offenders eighteen years old or older, whose victims, as in this case, are fifteen years old or younger, and who, like Petrae, have violated their probation or community control. Fields v. State, 968 So.2d 1032, 1033 (Fla. 5th DCA 2007). Electronic monitoring being a mandatory condition of probation, the trial court was obligated to impose the condition, and did not have the discretion to subsequently rescind it. See Springer, 965 So.2d at 272-73. In removing the condition, the trial court departed from the essential requirements of law. Id. Accordingly, we grant the petition and quash the trial court’s August 21, 2009 order deleting the electronic monitoring condition of Petrae’s probation.

GRANT PETITION; QUASH ORDER.

SAWAYA, LAWSON and COHEN, JJ., concur.

      . Certiorari is the proper method to challenge a trial court's improper deletion of a mandatory condition of probation. State v. Springer, 965 So.2d 270 (Fla. 5th DCA 2007).

      . Ironically, it would be within the trial court's discretion to terminate the probation altogether.


text:
    Timothy VINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-3926.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.
    Timothy Vinson, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, Timothy Vinson, seeks a belated appeal of his judgment and sentences in Brevard County Case No. 05-2006-CF-18073. See Fla. R.App. P. 9.141(c). This court agrees with the Commissioner’s recommendation that the petition be denied.

PETITION DENIED.

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


text:
    Cycle WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-501.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.
    Cycle Walker, Milton, pro se.
    Robert Wesley, Public Defender, and Evellen H. Jewett, Assistant Public Defender, Orlando, for Petitioner.
    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 treated as the notice of appeal from the judgment and sentence in case number 2007-CF-012075-A-0 in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

PALMER, TORPY and COHEN, JJ., concur.


author: TORPY, J.

text:
    KA PROPERTIES, LLC, Petitioner, v. USA CONSTRUCTION, INC., Respondent.
    No. 5D10-816.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.
    Mark D. Loerzel, Ocala, for Petitioner.
    Michael J. Cooper, Ocala, for Respondent.
   TORPY, J.

In this construction lien case, Petitioner seeks to compel the discharge of a lien against its property because Respondent failed to timely assert its rights after it was served with a summons pursuant to section 713.21(4), Florida Statutes (2008). We have jurisdiction and grant the petition. See Brookshire v. GP Constr. of Palm Beach, Inc., 993 So.2d 179, 180 (Fla. 4th DCA 2008).

After Respondent recorded a construction lien against Petitioner’s property, Petitioner invoked the special statutory procedure authorized by section 713.21(4). This procedure is intended to hasten the resolution of the lien claim by forcing the hand of the claimant. When invoked, a special summons is served upon the claimant “to show cause within 20 days why his or her lien should not be enforced by action or vacated and canceled of record.” § 713.21(4), Fla. Stat. (2008). When confronted with a summons under this statute, the lien claimant must commence a foreclosure action within the twenty-day period or show cause why enforcement should not be commenced. Federated Stores Realty, Inc. v. Burnstein, 392 So.2d 573, 574 (Fla. 4th DCA 1980). Strict compliance with the statute is required to avoid the discharge of the lien. Dracon Const., Inc. v. Facility Const. Mgmt., Inc. 828 So.2d 1069, 1070 (Fla. 4th DCA 2002).

Here, Respondent failed to strictly comply with the statute and its lien must be discharged. Its response to the complaint asserted that its lien was valid and not exaggerated, but failed to show cause why enforcement should not be commenced within the twenty-day period. Although Respondent did fíle a counterclaim after its initial response, that filing was twenty-nine days after the summons was served.

We grant the Petition and direct the trial court to discharge the lien.

PETITION GRANTED.

MONACO, C.J., and LAWSON, J., concur.


text:
    Frank J. MILLER, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-1166.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.
    Frank J. Miller, Jr., Milton, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Frank J. Miller, Jr. seeks a belated appeal of both his judgment and sentence and the denial of a rule 3.850 motion for postconviction relief. Miller is not entitled to an appeal of his judgment and sentence because the petition was filed more than two years after his judgment and sentence became final. He is, however, entitled to an appeal from the order denying his motion for postconviction relief because the order did not inform him of his right to appeal. See Arizmendi v. State, 894 So.2d 309 (Fla. 5th DCA 2005) (citing Pippin v. State, 616 So.2d 1182 (Fla. 1st DCA 1993)).

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and treated as the notice of appeal from the order denying the motion for postconviction relief in Case No. 06-32592-CFAES in the Circuit Court in and for Volusia County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION DENIED IN PART/GRANTED IN PART.

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


text:
    Paul Christopher ORTIZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-1550.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.
    Robert Wesley, Public Defender and Jason Reid, Assistant Public Defender, Orlando, for Appellant.
    No Appearance for Appellee.
   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 CF09-11066-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


author: EVANDER, J.

text:
    Suzanne MAGILL, Appellant, v. BARTLETT TOWING, INC., Appellee.
    No. 5D09-1657.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.

      C. Todd Smith of Earle & Smith, Orlando, for Appellant.
    Jamie Billotte Moses, of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee.
   EVANDER, J.

Suzanne Magill brought an action against Bartlett Towing, Inc., for negligent hiring, negligent retention, and negligent supervision. In her amended complaint, Magill alleged that she suffered personal injuries when a Bartlett employee, Russell Hoffman, violently pushed her to the ground immediately prior to stealing her car. At the time of the attack, Magill was not seeking any towing services from Bartlett. The trial court dismissed the amended complaint with prejudice and Magill timely appealed. We affirm. The amended complaint failed to allege a sufficient nexus between Hoffman’s employment and Magill so as to support a finding that Bartlett owed Magill a legal duty to hire and retain non-dangerous employees.

The standard of review for a trial court’s order dismissing a complaint with prejudice is de novo. Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001). We confine our review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept as true all well-pled allegations. Id.

Magill’s amended complaint alleged as follows: On January 6, 2007, at approximately 7:50 p.m., Magill had just entered her vehicle that was parked near a T.J. Maxx store. As she prepared to back her vehicle out of her parking space, a Bartlett tow truck pulled up behind her with its overhead (“emergency”) lights on. Hoffman, wearing a Bartlett uniform, stepped out of the tow truck, approached Magill’s vehicle, and screamed at her to “get out of the car right now.” Magill thought that she was in danger “from an unsafe condition posed by her vehicle or another vehicle,” because Hoffman was “acting in a manner that indicated there was an urgent or emergency situation.” Magill exited her car and asked Hoffman what was wrong. Hoffman pushed Magill to the ground causing her to hit her head on the pavement. Hoffman then jumped in Ma-gill’s vehicle and sped out of the parking lot.

Officer David Nye of the Altamonte Springs Police Department responded to the scene shortly after the above-described carjacking. Nye searched the tow truck and found a glass pipe “possibly containing cocaine.” Bartlett’s president gave a sworn statement to Officer Nye that evening, in which he acknowledged that Hoffman was a Bartlett employee. Hoffman had been dispatched to a different location at 4:45 p.m., had not responded to a call on his cell phone at 5:45 p.m., and had been seen driving the tow truck at a third location at 7:15 p.m. Hoffman was ultimately apprehended and convicted of carjacking and burglary of a conveyance.

Magill further alleged that Hoffman had a lengthy criminal history prior to being hired by Bartlett “including, but not limited to, at least six (6) arrests or convictions for crimes committed in Orange County.” These crimes included uttering a forgery, grand theft of a motor vehicle, dealing in stolen property, violation of a pawn broker transaction form, burglary of a dwelling, and burglary of a conveyance.

In her amended complaint, Magill contended that Bartlett knew or should have known of Hoffman’s history of criminal behavior. She alleged that Bartlett owed her, and the public at large, a duty to hire and retain “competent, qualified, and safe employees” and had breached that duty by failing to perform an adequate background check on Hoffman and by hiring and retaining an employee who was “incompetent, unfit for employment, and dangerous.” Magill also asserted that by entrusting Hoffman with a tow truck equipped with overhead lights and an employee uniform, when it knew or should have known of his criminal record, Bartlett created a risk of harm to Magill and the public at large.

On appeal, Magill does not contend that Hoffman was acting within the scope of his employment when he attacked her. However, the negligent hiring and negligent retention theories of liability permit an injured plaintiff to recover damages against an employer for acts of an employee committed outside the scope and course of employment. Garcia v. Duffy, 492 So.2d 435, 438 (Fla. 2d DCA 1986). Under these theories of liability, an employer can be held responsible for an employee’s willful torts if the employer knew or should have known that the employee was a threat to others. Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla. 2d DCA 1980). However, these theories of liability do not render an employer strictly liable for criminal acts committed by a “dangerous employee” against a third person. Garcia, 492 So.2d at 439 (“Such unrestricted liability would be an intolerable and unfair burden on employers.”). A plaintiff must first establish that an employer owed a legal duty to that particular plaintiff to exercise reasonable care in hiring and retaining safe and competent employees. Id. In order for an employer to owe a particular plaintiff such a duty, that plaintiff must be within a zone of risk that was reasonably foreseeable to the employer. Id. Whether a duty exists is a question of law. McCain v. Fla. Power & Light Corp., 593 So.2d 500, 502 (Fla.1992).

In determining the class of persons within the reasonably foreseeable zone of risk, Florida courts have recognized that if employers are to be exposed to liability for acts of their employees committed outside the scope of their employment, there must be some rational basis for limiting the boundaries of that liability. Tallahassee Furniture Co. v. Harrison, Inc., 583 So.2d 744, 750-51 (Fla. 1st DCA 1991). That limitation on liability was explained by the Garcia court as follows:

Only when an employer has somehow been responsible for bringing a third person into contact with an employee, whom the employer knows or should have known is predisposed to committing a wrong under circumstances that create an opportunity or enticement to commit such a wrong, should the law impose liability on the employer.

Garcia, 492 So.2d at 439; see also, Tallahassee Furniture Co., 583 So.2d at 751. Stated differently, the plaintiff is required to allege facts that would establish some relationship or nexus between the plaintiff and the tortfeasor’s employment from which a legal duty would flow from the defendant-employer to that particular plaintiff. Garcia, 492 So.2d at 440.

Here, the amended complaint fails to allege facts sufficient to establish a legal duty flowing from Bartlett to Magill. Hoffman’s attack did not occur on Bartlett’s premises. See, e.g., Mallory v. O’Neil, 69 So.2d 313 (Fla.1954) (complaint stated cause of action where alleged dangerous employee attacked plaintiff on employer’s premises). Nor did Hoffman meet Magill as a direct consequence of his employment. See, e.g., Tallahassee Furniture Co. (employer found liable for employee’s attack on plaintiff at her residence where initial contact between plaintiff and employee occurred when employee delivered furniture to plaintiff on behalf of employer). Furthermore, there was no allegation that Bartlett would receive a benefit or potential benefit from the meeting of Hoffman and Magill had the wrongful act not occurred. Hoffman had not been dispatched to Magill’s location, nor was Magill in need of tow truck service. Hoffman’s contact with Magill was simply unrelated to his employment by Bartlett.

Magill also argues that by entrusting Hoffman with a uniform and a tow truck with overhead lights, Bartlett provided Hoffman with “indicia of authority” which helped facilitate his illegal conduct and thereby rendered Bartlett liable for Hoffman’s criminal actions. Specifically, Magill contends that but for these “indicia of authority,” she would not have exited her vehicle. We reject this argument. Magill does not cite to any authority that would suggest one has an obligation or duty to comply with another person’s directive, solely because that other person is wearing a tow truck service uniform and/or is driving a tow truck vehicle with its overhead (“emergency”) lights on.

The trial court properly dismissed Ma-gill’s complaint.

AFFIRMED.

SAWAYA and COHEN, JJ., concur.

      . The principal difference between negligent hiring and negligent retention, as a basis for employer liability, is the time at which the employer is charged with knowledge of the employee's unfitness. Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee’s unfitness. In negligent hiring cases, a primary focus is whether the employer conducted an adequate pre-employment investigation into the prospective employee's background.
      Negligent retention occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action, such as investigation, discharge, or reassignment. Garcia v. Duffy, 492 So.2d 435, 438-39 (Fla. 2d DCA 1986).

      . Magill's negligent supervision count was also properly dismissed because it was based on the erroneous assertion that Bartlett owed her a legal duty to not entrust a uniform and tow truck to "a known criminal.”

      . In her brief, Magill also contended that the trial court erred in failing to give her an opportunity to file a second amended complaint. However, we find it unnecessary to address this issue because, during oral argument, appellant’s counsel acknowledged that there were no additional factual allegations to be made in a subsequent amended pleading regarding the legal duty/nexus issue. We are appreciative of counsel’s candor.


text:
    Donald LILLY, Appellant/Cross-Appellee, v. Lynne LILLY, Appellee/Cross-Appellant.
    Nos. 5D09-951, 5D09-953.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.
    Samuel Filler, Longwood, and Vincent W. Howard, Jr., of Howard & Reyes, Chartered, Sanford, for Appellant/Cross-Appellee.
    Diana M. Tennis, Orlando, for Appel-lee/Cross-Appellant.
   PER CURIAM.

Both parties appeal the Amended Final Judgment in this dissolution of marriage case. The husband raises three issues, all relating to equitable distribution. On cross appeal, the wife raises six issues relating to equitable distribution, permanent and rehabilitative alimony, and attorney’s fees. We reverse only as to the trial court’s valuation of the parties’ retirement accounts. No other issues merit discussion.

The parties were married in 1996, and had no children. The husband filed for dissolution in 2006. After an August 2008 trial, the trial court entered a Final Judgment on January 30, 2009 and an Amended Final Judgment in February 2009. Both parties timely appealed.

In the Amended Final Judgment, the trial court awarded the wife $1,500 a month in permanent alimony and $1,000 a month rehabilitative alimony for eighteen months. The trial court awarded the wife half of the appreciation of the husband’s home, or $80,000. It also awarded her half of the marital portion of three retirement accounts. In the Final Judgment, the court valued these accounts as of the trial date based on the evidence presented. But in the Amended Final Judgment, the court valued them as of January 30, 2009, the date the Final Judgment was entered, to reflect a downturn in the economy as asserted by the husband. The court erred by changing the valuation date and values without any evidentiary basis. Although section 61.075(7), Florida Statutes, gives the trial court discretion to pick an equitable date to value assets, section 61.075(3) requires the trial court to establish a value based on competent, substantial evidence. Reddell v. Reddell, 899 So.2d 1154, 1155-56 (Fla. 5th DCA 2005). The wife correctly argues that the husband’s bare assertions in a motion for rehearing were not evidence. Although the value of the assets may well have dropped, as the husband asserted, he failed to present any evidence to support this assertion or the court’s findings. Therefore, we reverse the Amended Final Judgment as to this issue only, and remand with instructions that the trial court either correct the judgment by inserting the values set forth in the original Final Judgment, which were based upon the evidence presented at trial, or hold an evidentiary hearing before reconsidering these values.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

GRIFFIN, SAWAYA and LAWSON, JJ., concur.


text:
    Vincent Anthony MICHAEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-998.
    District Court of Appeal of Florida, Second District.
    June 2, 2010.
    James Marion Moorman, Public Defender, and Simone A. Lennon, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Vincent Anthony Michael appeals his judgments and sentences for possession of cocaine, possession of marijuana, and possession of drug paraphernalia. He challenges the trial court’s finding that he was competent to proceed to trial. We affirm Michael’s judgments and sentences without comment. However, because the trial court did not enter a written order on its oral finding of competency, we remand this case solely for entry of a written order finding Michael competent to proceed. See Fla. R.Crim. P. 3.212(b); Hampton v. State, 4 So.3d 789, 790 (Fla. 4th DCA 2009).

Affirmed and remanded.

SILBERMAN, VILLANTI, and MORRIS, JJ., Concur.


author: SALCINES, E.J., Senior Judge.

text:
    UTILITY WORKERS UNION OF AMERICA (UWUA), and its Local 604, Appellants, v. CITY OF LAKELAND, Appellee.
    No. 2D09-3675.
    District Court of Appeal of Florida, Second District.
    June 2, 2010.

      Thomas W. Brooks of Meyer, Brooks, Demma, Aspros and Blohm, P.A., Tallahassee; and David R. Radtke of Klimist, McKnight, Sale, McClow & Canzano, P.C., Southfield, Michigan, for Appellants.
    Tony B. Griffin and Guilene'F. Theodore of Ogletree, Deakins, Nash, Smoak & Stewart, P.A., Tampa, for Appellee.
   SALCINES, E.J., Senior Judge.

Utility Workers Union of America and UWUA Local 604 (collectively, the Union) appeal an administrative order of the Lakeland Public Employee Relations Commission (Lakeland PERC) affirming the dismissal of their unfair labor practice charge against the City of Lakeland. This is the second time this court has been asked to review Lakeland PERC’s dismissal of the Union’s unfair labor practice charge. See Util. Workers Union of Am. v. City of Lakeland, 8 So.3d 436 (Fla. 2d DCA 2009) (reversing Lakeland PERC’s dismissal of unfair labor practice charge and remanding for application of status quo analysis). Because the Union has established that the City engaged in an unfair labor practice by altering the status quo pending collective bargaining, we reverse.

The parties agree there is no dispute as to the facts. For twenty years, the City has provided annual across-the-board wage adjustments to its employees. In June 2007, members of the City’s electric department elected the Union as their collective bargaining representative. Three months later, in September 2007, the City approved a budget that included a 2.5% wage increase to all nonunionized City employees. As a result, the Union, in November 2007, filed an unfair labor practice charge against the City, alleging a violation of section 1.016(l)(a) and (c) of the Lakeland Public Employees Relations Ordinance, which is based on section 447.501, Florida Statutes (2007). The Union asserted the City’s unilateral change in its past practice disrupted the status quo. Lakeland PERC’s General Counsel dismissed the charge, and Lakeland PERC affirmed. We reversed the dismissal of the charge and remanded “for application of a status quo analysis.” Util. Workers Union of Am., 8 So.3d at 438. On remand, Lakeland PERC again dismissed the unfair labor practice charge, finding no violation of the status quo. This appeal followed.

The standard of review in this case is such that this court must defer to the agency’s interpretation of the law in its area of expertise (in this case, that is chapter 447, part II, on which the local ordinance is modeled), as long as the interpretation is consistent with legislative intent and is supported by competent, substantial record evidence. See Pub. Employees Relations Comm’n v. Dade Co. Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985).

The only issues before this court are (1) whether the City of Lakeland engaged in an unfair labor practice by not maintaining the “status quo” in declining to approve a cost-of-living increase for those employees who had opted to join the Union and (2) whether the Union is entitled to attorney’s fees and costs.

“[T]he ‘status quo period’ refers to the gap between collective bargaining agreements, when one agreement has expired and another has not yet been executed.” Util. Workers Union of Am., 8 So.3d at 437-38. During this period, an employer is prohibited from unilaterally altering wages, hours, and other employment terms and conditions. See Int’l Ass’n of Fire Fighters, Local 2416 v. City of Cocoa, 14 FPER ¶ 19311 at 695 (1988), affirmed, 575 So.2d 657 (Fla. 1st DCA 1991). As stated in Nassau Teachers Ass’n. v. School Board of Nassau County, 8 FPER ¶ 13206 at 391 (1982), “[w]here a long practice of paying incremental or step wage increases based merely upon years of service has been continued in collective bargaining agreements, employees still reasonably expect their accrued step or experience wage increases even though negotiations for a new agreement are pending.”

We agree with the Union that the City’s twenty-year practice of administering annual, across-the-board wage adjustments to its employees was a part of the status quo. There is ample evidence to conclude the City’s practice of providing this annual wage adjustment had become an established condition of the employment of the City’s employees, including bargaining unit employees. By not providing newly unionized employees with this wage adjustment, the City failed to maintain the status quo. In doing so, the City committed an unfair labor practice, as defined in section 1.016(l)(a) and (c) of the Lakeland Public Employees Relations Ordinance and section 447.501(1).

In light of our determination, we remand for further proceedings consistent with this opinion, including the retroactive award of the wage adjustment to the affected employees. Further, because the Union is the prevailing party on its unfair labor practice charge, we grant the Union’s motion for appellate attorney’s fees pursuant to section 1.018(3) of the Lake-land Public Employee Relations Ordinance. On remand, the Commission shall determine the amount of a reasonable appellate attorney’s fee to be awarded to the Union.

Reversed and remanded with directions.

DAVIS and SILBERMAN, JJ., Concur.


text:
    Jorge Paz LLANES, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 3D09-2523.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Jorge Paz Llanes, in proper person.
    M. Elaine Howard, Tallahassee, Deputy General Counsel for Unemployment Appeals Commission.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Dep’t of Gen. Servs. v. English, 534 So.2d 726 (Fla. 1st DCA 1988) (holding that credibility is a matter that falls solely within the purview of the hearing officer’s discretion as the fact finder); Cont’l Baking Co. v. Vilchez, 219 So.2d 733 (Fla. 2d DCA 1969) (holding that where there is competent substantial evidence to support the findings of the appeals referee, the referee’s order must be upheld).


text:
    K.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2794.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Perez v. State, 801 So.2d 1001 (Fla. 4th DCA 2001); Maseri v. State, 762 So.2d 719 (Fla. 3d DCA 2000).


text:
    The STATE of Florida, Appellant, v. Phillip DICKSON, Appellee.
    No. 3D09-3447.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
   PER CURIAM.

This is a State appeal from an order granting the motion to suppress filed by defendant-appellee Phillip Dickson. The State argues that the trial court ruling is contrary to the proposition that “[a] court must accept evidence which ... is neither impeached, discredited, controverted, contradictory within itself, or physically impossible.” State v. Fernandez, 526 So.2d 192, 193 (Fla. 3d DCA 1988).

At the hearing, the rule was invoked and the two police officers testified separately. The testimony of the two officers differed on whether the defendant was walking forward, or backward, when he allegedly shoved one of the officers. The officers disagreed over whether it was a light push or strong shove that almost knocked the officer down. The court was also skeptical of whether it was physically possible for the officers to have taken the defendant into custody in the way that they described. The court was free to make its own credibility determination, and this court is not free to reweigh the evidence. See State v. Glatzmayer, 789 So.2d 297, 301 (Fla.2001); Byrd v. State, 964 So.2d 806, 806-07 (Fla. 4th DCA 2007).

Affirmed.


text:
    Francisco GARCIA, Appellant, v. PARADISE ACQUISITIONS & DEVELOPMENT, LLC, etc., Appellee.
    No. 3D09-2639.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Lawrence J. McGuinness, for appellant.

      Wicker, Smith, O’Hara, McCoy & Ford, and Shelley H. Leinieke, Ft. Lauderdale, for appellee.
    Before RAMIREZ, C.J., and COPE and SALTER, JJ.
   PER CURIAM.

Affirmed. See Long v. Swofford, 805 So.2d 882 (Fla. 3d DCA 2001).


author: GROSS, C.J.

text:
    Jillian NEDD and Kelvin Nedd, Appellants, v. Willie E. GARY, an individual, and Maurice Shazier, an individual, Appellees.
    No. 4D09-1446.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2010.

      Linda Elise Capobianco of Stone & Ca-pobianco, P.L., Stuart, for appellants.
    Mark Miller of Gary, Williams, Finney, Lewis, Watson & Sperando, P.L., Stuart, for appellee Willie E. Gary, an individual.
   GROSS, C.J.

This is an appeal of an award of $1,440 in attorney’s fees. We reverse because there was no legal basis to justify the award.

Jillian and Kelvin Nedd settled a lawsuit with Willie Gary. As part of the settlement, Gary filed a notice of voluntary dismissal of his action against the Nedds. The Nedds filed a motion to enforce their settlement with Gary, contending that the dismissal should have been with prejudice. Gary opposed the motion. Without specifying the basis for his request, Gary sought an award of attorney’s fees for having to defend against the motion.

At a hearing on the Nedds’ motion, the circuit judge denied it. Gary brought up his request for attorney’s fees. The court found that Gary was entitled to reasonable fees, observing that the Nedds’ “motion did not have a great degree of success.” At a later hearing to set the amount of fees, the Nedds challenged the court to identify the authority under which it was awarding them. The judge stated that the award was not imposed as a sanction, but he declined to state the basis for his ruling. In a written final judgment that was silent as to the grounds for the award, the court awarded Gary $1,440 in fees.

On appeal, the Nedds argue that the trial court abused its discretion because no statute or contract authorized Gary to recover fees and the judge expressly stated that he was not imposing fees as a sanction. Gary responds that the fee award was an exercise of the judge’s inherent ability to sanction a party for a frivolous motion.

A trial court has limited authority to award attorney’s fees. “[Ajttorney fees may be awarded by a court only when authorized by statute or by agreement of the parties.” Fla. Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1148 (Fla.1985) (citations omitted). However, “[t]his state has recognized a limited exception to this general American Rule in situations involving inequitable conduct.” Id.

Here, there was no agreement authorizing an award of fees. Gary has pointed to no statute that supports the award. Section 57.105, Florida Statutes (2007), cannot support an award of fees. Gary did not serve the Nedds with a section 57.105 motion 21 days before filing it with the court. See § 57.105(4), Fla. Stat. (2007); see also Burgos v. Burgos, 948 So.2d 918, 919 (Fla. 4th DCA 2007) (holding that attorney’s fees were not recoverable under section 57.105 because attorney filed motion for fees three days after the voluntary dismissal on which the motion was based, thereby violating subsection 57.105(4)).

The last possible basis for an award of fees is the inequitable conduct doctrine. The facts of this case do not rise to that egregious level necessary to justify the assessment of attorney’s fees.

Gary acknowledges that Bitterman v. Bitterman defines the contours of the inequitable conduct doctrine, which:

permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith.... We note that this doctrine is rarely applicable. It is reserved for those extreme eases where a party acts “in bad faith, vexatiously, wantonly, or for oppressive reasons.” “Bad faith may be found not only in the actions that led to the lawsuit, but also in the conduct of the litigation.”

714 So.2d 356, 365 (Fla.1998) (citations omitted). This court has warned that “[a] court is authorized to award [inequitable conduct] fees only '[i]n very limited circumstances.’ ” T/F Sys., Inc. v. Malt, 814 So.2d 511, 513 (Fla. 4th DCA 2002) (quoting Bane v. Bane, 775 So.2d 938, 941 n. 3 (Fla.2000)) (second alteration in original).

This case does not demonstrate the extreme litigation misconduct that warrants sanctions under the inequitable conduct doctrine. For example, in Sutter v. Sutter, 578 So.2d 788, 789 (Fla. 4th DCA 1991), we affirmed a fee award under the doctrine where the appellant, the offending party, filed “a steady stream of motions” over 4.5 years. “Although the motions were not without merit, they were essentially denied.” Id. Nonetheless, the appellant “re-argued [those motions] a number of times despite there being no change in the basis for the motion[s].” Id. This court held that the “appellant abused the system through inequitable conduct which resulted in needless litigation and legal fees.” Id. See also Bitterman, 714 So.2d 356 (affirming award of attorney’s fees as an exercise of the inequitable conduct doctrine when the offending party “attempted] to void certain provisions of the will,” including one he “acknowledged ... was clear and unambiguous;” played “endless discovery games”; and made numerous allegations that the estate’s personal representative breached his fiduciary duty).

Here, unlike the offending party in Sutter, the Nedds did not generate a torrent of motions and relitigate issues ad museum. The Nedds filed one motion and the judge denied it. While the motion may not have had “a great deal of success,” that finding is insufficient to justify an award of fees under the inequitable conduct doctrine. In addition, the court’s finding lacks the “high degree of specificity in the factual findings” required for a judge to impose the sanction. Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002). The court’s order did not set forth “detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence” of attorney’s fees. Id.

For these reasons, we reverse the final judgment for attorney’s fees and remand to the circuit court for the entry of judgment in favor of the Nedds.

POLEN and LEVINE, JJ., concur.


text:
    Justin POLITE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2667.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See Simmons v. State, 934 So.2d 1100, 1119-20 (Fla.2006); Fotopoulos v. State, 608 So.2d 784, 790 (Fla.1992).


text:
    Cesar RUANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2772.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and WELLS and ROTHENBERG, JJ.
   PER CURIAM.

While appellant Cesar Ruano argues on appeal that the prosecution improperly asked him on cross-examination whether another witness was lying, of., Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993), the objection at trial was on the basis of “form” and “argumentative.” Because the defense failed to object on the basis that the prosecutor improperly asked Ruano whether he thought that a witness was lying, the issue was not preserved for appeal.

Affirmed.


text:
    Carl LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-704.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.

      Clayton R. Kaeiser, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Affirmed. Croom v. State, 36 So.3d 707 (Fla. 1st DCA 2010); Wilson v. State, 933 So.2d 598 (Fla. 3d DCA 2006).


text:
    In the interest of: T.L., a minor child, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2203.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region of Florida, and Richard F. Joyce, Chief Assistant Regional Counsel, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and ROTHENBERG, JJ.
   PER CURIAM.

T.L., a minor, appeals the extension of time granted to complete his assessment and stabilization under the Hal S. March-man Alcohol and Other Drug Services Act, section 397.301, Florida Statutes (2009), and other issues related to the hearing where the extension was granted. We dismiss T.L.’s appeal, as the issues raised are moot and/or were not preserved for appellate review.

The appellant concedes that the points raised on appeal are moot, but opposes dismissal arguing that the issues are likely to recur yet evade appellate review. We agree that the issues are capable of repetition, but decline to address the merits as we conclude that the appellant has failed to demonstrate that the issues raised, if repeated, are likely to evade appellate review. See N.W. v. State, 767 So.2d 446, 447 (Fla.2000) (declining to dismiss as moot where the controversy raised in the case, which was on review before the court upon a certified conflict, was capable of repetition, yet evading review); L.W.T. v. A.W., 770 So.2d 241 (Fla. 1st DCA 2000) (dismissing appeal as moot where appellant failed to describe with specificity the questions of great public importance or how the particular facts of the case were likely to recur and yet evade appellate review). The appellant did not address or explain why appellate review by habeas corpus, mandamus, or certiorari would not be available if the issues raised and properly preserved were to re-occur. Accordingly, we dismiss the appeal as moot. Additionally, although we are dismissing the appeal as moot, we note that several issues raised on appeal were not preserved for appellate review.

Appeal dismissed as moot.


text:
    Julio A. RICARDO, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D09-2316.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Joseph Perea, Miami, for appellant.
    M. Elaine Howard, Tallahassee, Senior Attorney, for appellee, Florida Unemployment Appeals Commission.
    Before RAMIREZ, C.J., and COPE and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Miller v. Unemployment Appeals Comm’n, 690 So.2d 752 (Fla. 5th DCA 1997).