author: DAVIS, Judge.

text:
    Lance T. SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5347.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2010.
    Guillermo E. Gomez, Jr., of Gomez & Touger, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Lance T. Sanchez challenges the trial court’s order revoking his probation. On appeal Sanchez raises three issues. We reverse due to the trial court’s improper ex parte conversations with court personnel and do not address the remaining issues raised by Sanchez.

While Sanchez was on probation for a charge of dealing in stolen property, the State filed an affidavit of violation alleging that Sanchez had violated his probation by committing the following offenses: burglary of a structure, grand theft, criminal mischief, and possession of burglary tools. At the violation of probation hearing, after the State rested its case, counsel for Sanchez requested a recess in order to discuss with Sanchez whether he would testify. The transcript reflects that while in recess, the trial court engaged in conversation with the assistant state attorney and the bailiff, during which the trial court made statements regarding Sanchez’s guilt.

Based on the State’s concession of error and our review of the trial court’s improper ex parte statements, we reverse the revocation of Sanchez’s probation. See Spencer v. State, 615 So.2d 688, 691 (Fla.1993) (finding that ex parte communication between trial judge and assistant state attorney during sentencing phase of trial amounted to reversible error and noting that “there is nothing ‘more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant’ ” (quoting Rose v. State, 601 So.2d 1181, 1183 (Fla.1992))). We remand the case to the trial court with instructions to set aside Sanchez’s sentence and conduct a new violation of probation hearing before a different judge.

Reversed and remanded with instructions.

WALLACE and MORRIS, JJ„ Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Hector SALLABERRY, Appellant, v. Maxine Joy SALLABERRY and Lotus of Palm Beach, Inc., Appellees.
    No. 4D08-2124.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.

      Tracy Belinda Newmark and Joseph V. Manzo of The Newmark Law Firm, P.A., Fort Lauderdale, for appellant.
    Steven M. Pesso, Boca Raton, for appel-lee Maxine Joy Sallaberry.
   PER CURIAM.

In this appeal, the husband challenges the trial court’s final judgment of dissolution of marriage. We write only to address the trial court’s calculation of income imputable to the husband.

The parties were married for seventeen years and had one son. The husband owns a copy machine repair business. The husband sells copy machine parts, performs warranty repairs, and makes hourly service calls. Evidence at trial showed that the monthly marital household expenses totaled roughly $5,000 for the years preceding the separation. The evidence also supported the claim that the husband paid these expenses, as the wife’s income throughout the marriage was minimal. In addition, the wife presented the testimony of a forensic accountant, who reviewed the average account balance in the husband’s business accounts and estimated the husband’s gross annual income at $81,024.

At trial, the husband claimed only $3,400 per month in gross income. He stated he could bill an average of only one hour per day (at $95 per hour) to his clients. The trial court held that the husband’s reduc-

tion in income was the result of voluntary underemployment. The trial court then imputed to the husband an annual income of $80,000. The court believed that the husband could bill at least twenty hours per week, raising his gross corporate revenues to roughly $95,000 per year. The court then subtracted $15,000 to be retained by the corporation to meet expenses, leaving $80,000 in imputed gross income. This calculation was supported by the opinion of the wife’s forensic accountant. Moreover, such an income would have covered the marital household’s expenses.

A trial court may impute income to a spouse for purposes of calculating a support award. See §§ 61.08(2), 61.30(2)(b), Fla. Stat. (2008). If the trial court determines that a spouse’s past income has declined due to voluntary action, the court may impute a higher income based on “history, qualifications, and prevailing wages.” Konsoulas v. Konsoulas, 904 So.2d 440, 444 (Fla. 4th DCA 2005). The trial court’s imputation of income must be supported by competent, substantial evidence. Zarycki-Weig v. Weig, 25 So.3d 573 (Fla. 4th DCA 2009).

We commend the trial judge for the well-reasoned analysis of the husband’s income, despite the fact that the parties produced little evidence relevant to an income determination. Further, the trial court determined that the parties’ testimony lacked credibility. The trial court was also hamstrung by the husband’s failure to file federal income tax returns for several years.

Nevertheless, the trial court’s finding that the husband could bill his clients twenty hours per week amounts to speculation, and the accountant’s review of the husband’s business bank accounts failed to consider the husband’s business expenses. The only competent evidence regarding the husband’s income was the husband’s ability to fund household expenses amounting to $5,000 per month. A spouse’s ability to maintain a standard of living at a certain financial level is probative evidence of the spouse’s income. See, e.g., Ugarte v. Ugarte, 608 So.2d 838, 840 (Fla. 3d DCA 1992). Nevertheless, a trial court may not impute income to a party based solely on past earning power because past income may not reflect a present ability to pay. Chipman v. Chipman, 975 So.2d 603, 609 (Fla. 4th DCA 2008); Brown v. Cannady-Brown, 954 So.2d 1206, 1208-09 (Fla. 4th DCA 2007). We find the evidence regarding the husband’s prior ability to support the marital household insufficient by itself to impute a gross income of $80,000.

On this limited basis, we reverse the trial court’s decision to impute $80,000 in gross annual income to the husband and remand for further proceedings. In remanding to the trial court, we stress that the wife bears the burden of proof in this instance, and trial court’s net income finding must be supported by competent, substantial evidence. Weig, 25 So.3d at 575.

We also reverse on the husband’s second assignment of error, as the wife concedes that the trial court neglected to include the periodic alimony award and social security disability payments as part of the wife’s income and neglected to deduct the alimony payments from the husband’s income. We affirm the trial court’s judgment on all other grounds.

Reversed in part; affirmed in part; remanded.

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


author: WARNER, J.

text:
    Harvey OSTROW, Appellant, v. Laurie IMLER o/b/o D.I., a minor, Appellee.
    No. 4D08-2750.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Rhonda F. Goodman of Rhonda F. Goodman, P.A., Miami, for appellant.
    No appearance for appellee.
   WARNER, J.

The trial court entered a permanent injunction for protection against sexual violence against appellant, Harvey Ostrow, over an incident involving a child. Because the trial court did not find that an act of sexual violence occurred, and the evidence is insufficient to sustain such a finding, the trial court erred in entering the injunction. We reverse.

A mother filed a petition for protection against repeat violence by Ostrow against her child. When the trial court denied an ex parte temporary injunction and set it for a hearing, the mother then filed a petition for protection against sexual violence. The trial court conducted a hearing at which the child testified. The child recounted an incident in which she was sitting at the YMCA during summer camp with her fellow campers and counselors. Ostrow, her neighbor, came in to work out. He engaged her in conversation and then began to chase her and tickle her. At some point he “tackled” her, got on her back, and it “felt like he was humping me.” She did not testify that he touched her buttocks or genitals. She said she was scared. During cross-examination, she denied bothering Ostrow or throwing water on him. The entire incident occurred in front of many people in a hallway of the building. Her camper friends and counselors were right there, including the child’s best friend. A couple of days later, Os-trow was again at the YMCA while the child was there. He came up to the group of campers and stared at the child for several minutes until counselors asked him to go to the workout center.

The child’s friend testified at the hearing on behalf of Ostrow. She said that the first incident began when the child threw water on Ostrow and was bothering him. She did not see him tackle the child. Instead, the child fell down, and Ostrow was trying to take the bottle away from the child. She never saw Ostrow touch her. Ostrow testified that he had been harassed by the child and was simply trying to stop the child from throwing water on him. He denied ever touching her.

Despite the highly conflicting evidence, the trial court granted the permanent injunction, although the court did not make an express finding that an act of sexual violence occurred. Instead, the judge appeared to believe that the child was engaged in throwing water on Ostrow. He chastised Ostrow for not going to a counselor to deal with the child. The court then tied the water throwing incident together with the staring incident:

You should have gone to a counselor, you should have gone to an adult, you should have done something else. The other situation apparently a couple of days later, you actually walked up, according to the testimony and your testimony is that you, you know, you didn’t realize that she was there or you weren’t, you didn’t realize they were actually talking to you but you’re the only adult there, you walked right up to where she’s sitting at and according to the young Ms. Imler tried to intimidate her and she was scared. The bottom line is when you take each of these individual situations individually it may not be a problem but if you take everything together in this case I see a problem.

The court acknowledged that the evidence presented would never justify a criminal conviction but stated that the petitioner only had to show that she had reasonable cause to believe that the child was in imminent danger of being a victim of sexual battery violence. Under that standard, he would grant the injunction.

Appellant moved for rehearing, claiming that he did not have notice of the change of the petition from one for repeat violence to one for sexual violence. He also maintained that no act of sexual violence had been proved. Later, he amended the motion to seek to dissolve the injunction based upon new evidence, namely that the YMCA had video surveillance which would show the entire incident. In addition, criminal charges filed against appellant upon the mother’s complaint to the state attorney were dismissed after depositions of other witnesses showed substantial conflicts in their testimony.

Another trial judge heard the motion to dissolve and motion for rehearing. He refused to allow Ostrow to present the testimony of witnesses at the hearing on the motion to dissolve. Instead, he read the transcript of the original hearing, determined that there was a factual basis for the injunction, and denied rehearing, stating that he was “reluctant ... to overturn what another circuit court judge has done after a full hearing.” Thus, he denied both motions. From this ruling, Ostrow appeals.

Section 784.046 provides a parent of a minor child a cause of action for an injunction against a person who commits an act of sexual violence against the child. “Sexual violence” is defined to include “a lewd or lascivious act, as defined in chapter 800, committed upon or in the presence of a person younger than 16 years of age.” § 784.046(l)(c)2., Fla. Stat. To enter a final judgment of injunction for sexual violence, the court must find an act of sexual violence occurred, just as the court must find that two acts of violence occurred in order to secure an injunction for repeat violence. See, e.g., Gasilovsky v. Ben-Shimol, 979 So.2d 1179 (Fla. 3d DCA 2008). Each act must be proved by competent substantial evidence. Id. See also Sorin v. Cole, 929 So.2d 1092 (Fla. 4th DCA 2006).

Section 800.04 prohibits lewd and lascivious acts. Only one section could apply to the facts of this case. Section 800.04(6)(a) provides that: “A person who: ... Intentionally touches a person under 16 years of age in a lewd or lascivious manner ... commits lewd or lascivious conduct.” The terms lewd and lascivious are indicative of sexual conduct, and are synonyms that connote wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator. Fretwell v. State, 852 So.2d 292, 298 (Fla. 4th DCA 2003); Chesebrough v. State, 255 So.2d 675, 677 (Fla.1971); Boles v. State, 158 Fla. 220, 27 So.2d 293, 294 (Fla.1946). As noted in M.L.C. v. State, 875 So.2d 810, 812 (Fla. 2d DCA 2004), “a lewd or lascivious purpose imports more than a negligent disregard of the decent proprieties and consideration due to others.” (internal quotations omitted). In M.L.C., the court found the evidence insufficient to constitute lewd and lascivious behavior where M.L.C. made “split-second” contact with two girls’ buttocks while they were waiting at a school bus stop. Each incident was very brief. The court explained that this limited evidence was insufficient to show that the conduct was “grossly indecent, lustful, licentious, or unchaste.” Id.

The sole evidence offered of any conduct of a potentially sexual nature in this case was the child’s statement that when Os-trow was on top of her, it felt like “humping.” No one testified that they saw Os-trow moving in a sexual fashion. The child did not say that Ostrow touched her buttocks or her genitals. Her friend testified that she did not see anything like that. The entire incident was very brief and occurred in the presence of many people, both adults and children.

While we have no doubt that conduct described as “humping” certainly can be considered lewd and lascivious depending upon the circumstances, the trial judge did not find that a lewd act of “humping” occurred. In fact, he discussed Ostrow’s conduct in trying to grab the bottle of water from the child, thus disregarding the child’s testimony that this did not happen. The judge told Ostrow that when the child was bothering him, he should have gone to the camp counselors instead of trying to deal with the situation himself. Most importantly, the trial judge said, “The bottom line is when you take each of these individual situations individually it may not be a problem,.” Since a petition for sexual violence requires proof of only one act, and here only one act could even conceivably be considered an act of sexual violence, the fact that the court has determined that the act alone “is not a problem” can only mean that the trial judge did not find that a lewd and lascivious act occurred. We would agree with that, because the evidence is simply insufficient to show that the act in this case, however it may be described by the child, constituted an act which was “wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator.” Getting on top of the child to wrestle away a bottle was inappropriate, but it did not constitute lewd and lascivious conduct within the meaning of the statute.

It appears that the court was concerned that a bigger “situation” had developed between Ostrow and the child after the staring incident. However, not only did the staring incident not amount to a second incident of violence for which an injunction for repeat violence might be sought, nothing about it constituted an act of sexual violence. Here, the findings by the trial court and the evidence presented were simply insufficient to prove the necessary element to permit an injunction for sexual violence.

Because the trial court did not find that a lewd and lascivious act occurred, and the evidence would be insufficient to support such a finding, we reverse the final judgment of injunction.

LEVINE, J., and McCANN, JAMES, Associate Judge, concur.

      . The child did not further describe what she meant by this. "Humping” is usually a slang expression for the act of sexual intercourse.

      .Were we not reversing the permanent injunction for failure of proof, the failure to permit an evidentiary hearing on the motion to dissolve would necessitate a reversal. See Betterman v. Kukelhan, 977 So.2d 702 (Fla. 4th DCA 2008).

      . The court, however, affirmed a finding of lewd molestation relative to a breast-touching incident with one of the girls. Id.

      . See, e.g., Altman v. State, 852 So.2d 870 (Fla. 4th DCA 2003).


author: GERBER, J.

text:
    Derrick Antonio MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4776.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The appellant, Derrick Antonio Mitchell, filed a motion to correct sentencing error in the circuit court. In the motion, Mitchell stated that the court erred in not awarding him 233 days of jail time credit at the time of his sentencing. Within 60 days from the filing of the motion, the court did not file an order ruling on the motion. Thus, the motion is considered denied. See Fla. R.Crim. P. 3.800(b)(1)(B) (2008) (“Within 60 days from the filing of the motion, the trial court shall file an order ruling on the motion. If no order is filed within 60 days, the motion shall be considered denied.”).

This appeal followed. The state has conceded the sentencing error. Therefore, we reverse the circuit court’s denial of Mitchell’s motion to correct sentencing error, and remand with directions to the court to amend Mitchell’s sentence to award 233 days of jail time credit at the time of his sentencing.

Reversed and remanded with directions.

TAYLOR and LEVINE, JJ., concur.


author: TAYLOR, J.

text:
    C.A., the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 4D09-3578.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Lori D. Shelby, Fort Lauderdale, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Thomas B. Arden, Assistant Attorney General, Fort Lauderdale, for appellee.
   TAYLOR, J.

The mother, C.A., appeals a trial court order placing her thirteen-year-old daughter in a permanent guardianship with the maternal grandparents and denying the mother’s motion for reunification. The Department of Children & Families concedes error as to the trial court’s failure to make specific written findings explaining why reunification was not possible. We accept this concession of error as proper because written findings are required by section 39.6221(2)(a), Florida Statutes (2009). Moreover, because we find that the record is devoid of competent substantial evidence to support the permanent guardianship determination, we reverse and remand for reunification of the child with the mother under the Department’s supervision.

The record reveals that the trial court based its decision to place the child in permanent guardianship with the grandparents solely on the mother’s failure to complete her case plan to the Department’s satisfaction. However, as we stated in an earlier appeal in this case, a parent’s non-compliance with a case plan is not a statutory ground for placement of a child in a permanent guardianship, although it is a factor that may be “relevant to the trial court’s inquiry regarding the parent’s fitness to care for the child and whether reunification is possible.” See C.A. v. Dep’t of Children & Families, 988 So.2d 1247, 1249 (Fla. 4th DCA 2008). Here, the evidence and findings do not show that the mother’s failure to complete her few remaining tasks has any bearing upon her fitness to care for the child or whether reunification would be detrimental to the child’s physical, mental, or emotional health.

The main concern that led to the child’s dependency adjudication and placement in her maternal grandparents’ home in January 2007 was the mother’s dependency on prescription medication for pain management. The mother entered into a case plan requiring her to perform numerous tasks: obtaining individual and family counseling; undergoing psychological, substance abuse, and psychiatric evaluations; attending parenting classes; obtaining stable housing and income; and completing a comprehensive medical evaluation to evaluate non-narcotic alternatives. The trial court found that the mother completed all of her case plan tasks, except individual and family counseling. Further, the trial court found she had not sufficiently complied with an additional requirement to produce a prescription log.

When this case was last before us, we remanded it to give the mother additional time to comply with her case plan, specifically to complete the “most important remaining task” — a medical evaluation at the University of Miami to explore nonnarcotic alternatives for her pain management. C.A., 988 So.2d at 1248. The mother has since completed the medical evaluation. The independent evaluator, Dr. Campillo at the University of Miami, concluded that the mother’s pain medication regimen is appropriate to her condition and recommended that she continue with her medication management. The guardian ad litem in this case recommended reunification, pointing out that the mother had raised the daughter for twelve years without any problems. The trial court acknowledged that the child is bonded to the mother.

It is well-settled that the Department has the burden of proving that reunification with the parent would endanger the child. See In re A.M., 5 So.3d 809, 809 (Fla. 2d DCA 2009) (reversing permanent guardianship and ordering reunification where there was no competent substantial evidence in the record to support a determination that, at the time of the permanency hearing, reunification would have endangered the child’s safety, well-being, and health); C.D. v. Dep’t of Children & Families, 974 So.2d 495, 501 (Fla. 1st DCA 2008) (reversing permanent guardianship and remanding for reunification under DCF supervision); G.V. v. Dep’t of Children & Families, 985 So.2d 1243, 1247 (Fla. 4th DCA 2008) (ordering reunification where DCF’s only witnesses did not base their opinions opposing reunification on the statutory ground of endangerment to the children’s “safety, well-being, and physical, mental and emotional health”). See also In the Matter of Metz, 175 Or. App. 15, 27 P.3d 156 (2001) (reversing termination of parental rights where evidence failed to support finding that mother’s prescription medications for her chronic pain made her unable to meet children’s needs).

Here, the trial court made no findings, either orally or in writing, that reunification would endanger the child’s safety, well-being, and physical, mental, and emotional health, and there is no competent substantial evidence in the record to support such a determination. Given the protracted proceedings in this matter, including a prior reversal on appeal, we see no justification for remanding this matter solely to allow the Department another chance to retry the case and further delay the statutory goal of permanency of the child. Accordingly, we reverse the order placing the child in a permanent guardianship and remand for reunification of the child with the mother under the Department’s supervision.

Reversed and Remanded with instructions that the motion for reunification be granted and DCF’s supervision reinstated.

GERBER and LEVINE, JJ., concur.


author: CRENSHAW, Judge.

text:
    In re COMMITMENT OF Dreek DRAYTON. Dreek Drayton, Appellant, v. Agency for Persons with Disabilities, Appellee.
    No. 2D08-2294.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2010.

      James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Julie Waldman, Supervising Attorney, Agency for Persons with Disabilities, Gainesville, for Appellee.
   CRENSHAW, Judge.

Dreek Drayton appeals the order for his involuntary commitment to the Agency for Persons with Disabilities (APD) entered pursuant to section 393.11(8), Florida Statutes (2007). Because the trial court’s determination that Drayton “is likely to physically injure others if allowed to remain at liberty” was not supported by competent substantial evidence, we reverse and remand for further proceedings.

Drayton was charged in 1998 with lewd act on a child and lewd assault in the presence of a child, and in 1999 with burglary of a dwelling and petit theft. The charges were dismissed without prejudice in April 2006 pursuant to section 916.303(1), Florida Statutes (2005), and Drayton was released from State custody. Pursuant to APD’s motion to intervene and amend a March 2006 order involuntarily admitting Drayton, the trial court entered a second amended order for Dray-ton’s involuntary admission. In July 2007, the trial court entered an order for Drayton’s temporary commitment to secure placement with APD, stating that commitment was contingent upon the filing and resolution of an involuntary admission petition filed pursuant to sections 916.303 and 393.11, Florida Statutes (2006).

APD subsequently filed an amended involuntary admission petition in September 2007, alleging that Drayton was likely to cause physical injury to himself or others if allowed to remain at liberty, and stating that secure residential placement was the least restrictive and most appropriate setting for Drayton. A hearing on APD’s petition was held on October 26, 2007, and again on March 28, 2008.

At the October 2007 hearing, the court heard testimony from Astrid Hall, a senior behavior analyst who worked with Dray-ton at the Seguin Unit since Drayton’s arrival in August 2006. Hall recommended that Drayton remain in a secure facility based upon her belief that Drayton is guilty of the unproven allegations of lewd act on a child and lewd assault in presence of a child. Drayton’s witness, Dr. Tracy Hartig, is a licensed psychologist who met with Drayton in 2008 and 2004 for court-ordered competency evaluations, and again in 2007 for the hearing on APD’s involuntary admission petition. Dr. Hartig testified that while Drayton is in need of supervision, a secure setting is not an appropriate placement. At the March 2008 hearing, the court heard the deposition testimony of Dr. Michael D’Errico and Emily Dickens. Dr. D’Errico, a forensic psychologist, was part of a 2005 court-ordered examining committee to determine the extent to which Drayton met the criteria for involuntary commitment. He testified that the 2005 committee accepted the unproven charges against Drayton as true when making their recommendation for secure placement. Emily Dickens, an APD employee, testified that she first considered the severity of the charges against Drayton before recommending secure placement in February 2006. Following the two hearings, the trial court entered the April 2008 order for Drayton’s involuntary commitment to APD.

In the order for Drayton’s involuntary commitment, the trial court acknowledges that the charges against Drayton dealing with lewd acts on a child and in the presence of a child “are merely allegations that have never been proven.” However, the trial court’s determination that APD demonstrated by clear and convincing evidence that Drayton “is likely to physically injure others if allowed to remain at liberty” is based entirely upon the expert opinions, which relied heavily upon the unproven allegations from 1998 and 1999. Because the experts’ determinations were based on faulty premises, we find the trial court’s order was not based on competent substantial evidence. See Kimbrough v. State, 852 So.2d 335, 336 (Fla. 5th DCA 2003) (noting the lack of conflicting evidence and finding an involuntary admission order was supported by competent substantial evidence because the experts did not rely on improperly admitted records in forming their opinions); see also In re Commitment of A.E.F., 377 N.J.Super. 473, 873 A.2d 604, 614 (2005) (“[Significant state action, such as [involuntary] commitment, cannot and should not be based on unproven allegations of misconduct.”). We also note that the experts’ observations dating back to 2003 do not provide competent substantial evidence supporting the order for Drayton’s involuntary admission. Cf. In re Commitment of Reilly, 970 So.2d 453 (Fla. 2d DCA 2007) (concluding that a six-month-old report from a mental health expert was too stale to be relevant to an adjudication of incompetency). Because the trial court’s findings were not supported by competent substantial evidence, we reverse the order for Drayton’s involuntary commitment to APD and remand for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.

      . Drayton was adjudicated incompetent to proceed in 2004 and committed to secure placement with the Department of Children and Family Services (the Department), now the Agency for Persons with Disabilities (APD). The record before this court reflects that Drayton had been in State custody since February 2001. Drayton is currently housed by APD at the Seguin Unit, a secure residential facility in Gainesville, Florida.

      . In this order, the trial court stated that Drayton "should have been and it is the clear, express intent of this Court that [Drayton] be forthwith returned to the custody of the Agency for Persons with Disabilities to be involuntarily committed to placement in a secure facility due to his continuing inability to care for himself as well as his continued threat to others."

      .Following the October 26, 2007, hearing, the trial court entered an order directing this case to be reopened for further presentation of evidence. Specifically, the trial court stated it "cannot possibly fully evaluate the facts which would allow for a long term civil commitment of Mr. Drayton in a secure facility without properly hearing from those involved in the examining committee and or competency evaluations previously done.”

      . We note that upon receiving APD’s petition for Drayton’s involuntary admission, the trial court did not appoint three disinterested experts to evaluate Drayton pursuant to section 393.11(5), Florida Statutes (2007).


text:
    Bandy Felix BOGGS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1060.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2010.
    James Marion Moorman, Public Defender, and Tanya M. Dugree, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Bandy Felix Boggs appeals his judgments and sentences for high speed fleeing to elude, possession of cocaine, possession of drug paraphernalia, driving while licensed suspended or revoked, and third-degree grand theft. We affirm his judgments and sentences for all offenses except for the grand theft. We conclude that the State failed to present evidence establishing that the value of the items stolen by the defendant exceeded the level required to establish a third-degree felony. Accordingly, we reverse the judgment and sentence for grand theft. On remand, the trial court shall enter a judgment for petit theft as the lesser statutory degree of the offense that was established by the evidence. See § 924.34, Fla. Stat. (2007). The trial court shall enter an appropriate sentence for this misdemeanor. Our decision does not alter any of the other sentences, including the twenty-year sentence of incarceration imposed on the defendant as a habitual felony offender for the offense of high speed fleeing to elude, which was sentenced to run concurrently to the sentence for grand theft.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and SILBERMAN, JJ., and FULMER, CAROLYN K, Senior Judge, Concur.