text:
    Joshua ROE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2468
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 24, 2018
    Ana M. Davide, Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire and Kristen L. Davenport, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Joshua Roe, appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion, after an evidentiary hearing, wherein he alleged that his counsel was ineffective during his trial for sexual abuse of his minor stepdaughter. Appellant argues that his counsel was ineffective for failing to offer the testimony of the victim's paternal grandmother and Appellant's probation officer, as these witnesses would have bolstered his defense at trial that the victim's mother manipulated the victim into fabricating the allegations of abuse. Given the unique record here, we reverse for a new trial because counsel's failure to offer these two witnesses undermines our confidence in the verdict.

First, Appellant asserts that trial counsel should have called the victim's paternal grandmother to impeach the victim's trial testimony that she disclosed the sexual abuse to her paternal grandmother while it was ongoing. In denying Appellant's motion, the trial court acknowledged that trial counsel should have called the paternal grandmother but concluded that there was no prejudice in failing to do so. Given the evidence at trial and the State's substantial emphasis during closing argument on the victim's early disclosures, we conclude that the testimony of the paternal grandmother would have weakened the State's case and substantially supported Appellant's theory of defense.

Second, Appellant argues that his counsel was ineffective for failing to proffer the testimony of his probation officer that she received a call from the maternal grandmother days before the allegations of sexual abuse emerged wherein the maternal grandmother reported that Appellant had physically abused the victim's brother. The trial court incorrectly concluded that counsel was not deficient because this testimony constituted inadmissible hearsay. The testimony did not constitute hearsay because it would not have been offered for the truth of the matter asserted-that Appellant actually physically abused his stepson. See § 90.801(1)(c), Fla. Stat. (2007) (" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). Rather, Appellant would have offered this testimony to simply prove that the accusation was made.

Importantly, we conclude that Appellant's theory of defense was incomplete without this evidence, given the unique facts of this case. At trial, in addition to the allegations of sexual abuse, the jury heard evidence that the victim's mother and the maternal grandmother attempted to have Appellant arrested by accusing Appellant of drinking in violation of his conditions of probation. However, the jury did not hear that the maternal grandmother made yet another accusation-physical abuse-against Appellant days after the allegation of drinking and shortly before the sexual abuse allegations. Thus, although the jury heard about two of the allegations, testimony establishing this third allegation would have significantly bolstered Appellant's argument that the victim's mother and the maternal grandmother were engaged in a pattern of escalating accusations in an attempt to get him sent to prison.

Taken together, especially in light of the nature of the evidence presented at trial, these errors by counsel undermine our confidence in the verdict. See Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."). As such, we reverse and remand for a new trial.

REVERSED and REMANDED.

EVANDER and EISNAUGLE, JJ., and ROBERSON, E.C., Associate Judge, concur.

      We find that the evidence would have permitted an inference that the victim's mother and the maternal grandmother were working in concert to get Appellant arrested.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    Carlos Manuel MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-560
    District Court of Appeal of Florida, Second District.
    Opinion filed August 24, 2018
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katie Salemi Ashby, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Carlos Martinez appeals an order clarifying his sentences, which granted the State's motion to clarify his sex offender probation. We reverse because the trial court lacked jurisdiction to rule on the State's motion.

In 2013, Martinez entered no contest pleas to (1) use of a computer to solicit a parent to commit sex acts on a child, a violation of section 847.0135(3)(b), Florida Statutes (2011), and (2) traveling to meet a minor, a violation of section 847.0135(4)(a). In exchange for his pleas, Martinez was sentenced to 42 months in prison on both charges, to be followed by concurrent terms of 18 months' sex offender probation on the first count and 48 months' sex offender probation on the second count. At the sentencing hearing, the trial court announced that the probation would be "sex offender probation," but the trial court did not announce any specific conditions of probation. An order of sex offender probation was entered listing special conditions of sex offender probation.

In 2016, the State filed a motion to clarify sentence, asserting that the trial court was required to orally pronounce the conditions of sex offender probation pursuant to section 948.30, Florida Statutes (2011). Section 948.30 requires the trial court to impose certain conditions for sex offender probation for specified offenses, but the statute provides that the conditions "do not require oral pronouncement at the time of sentencing." The State seemed to believe that because the offenses in this case are not enumerated in section 948.30 and the conditions are therefore permissive, rather than mandatory, see Villanueva v. State, 200 So.3d 47, 52 (Fla. 2016), the conditions imposed pursuant to that statute must be orally pronounced. The trial court held a hearing, granted the State's motion to clarify, and orally pronounced the conditions of sex offender probation. The trial court entered a written order reflecting the conditions it orally pronounced at the hearing.

On appeal, Martinez contends that the trial court lacked jurisdiction to rule on the State's motion to clarify or to amend his conditions of probation three years after his original sentences were imposed. We agree. There was no legal authority for the State to file its motion to clarify in 2016, three years after the order of probation was entered, and there was no jurisdictional basis for the court to consider the State's motion to clarify in 2016. See Hogan v. State, 12 So.3d 835, 837 (Fla. 2d DCA 2009) (holding that there was no basis under Florida Rule of Criminal Procedure 3.800 for the State to file a motion to clarify in 2006, twenty-seven years after the sentence was entered and four and six years after the trial court entered orders ruling on defendant's motions to correct illegal sentences). The State was not seeking the correction of an illegal sentence under rule 3.800(a), and the State's motion was untimely under the provisions of rule 3.800(b) relating to motions to correct sentencing errors and rule 3.800(c) relating to motions to reduce or modify sentences. See Fla. R. Crim. P. 3.800(b), (c) (providing that a motion to correct sentencing error must be filed within thirty days of sentence or before initial brief is filed on appeal and that a court may reduce or modify a sentence within sixty days after imposition or conclusion of direct appeal); see, e.g., Poplar v. State, 842 So.2d 902, 903 (Fla. 2d DCA 2003) (holding that trial court lacked jurisdiction under rule 3.800(c) to add mandatory condition of probation years after the probation sentence was imposed and recognizing that failure to impose mandatory condition at time of sentencing rendered sentence incomplete but not illegal); Music v. State, 655 So.2d 231, 232 (Fla. 1st DCA 1995) (holding that where defendant agreed to special condition of probation as part of plea agreement but trial court failed to orally announce the condition or include the condition in the probation order, trial court lacked jurisdiction five years later to correct the probation to include the missing condition because sentence was not illegal and thus not subject to correction under rule 3.800(a) and the time period in rule 3.800(b) had expired). Accordingly, we reverse the 2016 order clarifying Martinez's sentence with directions for the trial court to vacate it.

Even though the State filed the motion to clarify, the State now claims that Martinez's original sex offender probation imposed in 2013 was proper. In its brief, the State relies on the Fourth District's decision in Levandoski v. State, 217 So.3d 215, 219 (Fla. 4th DCA 2017), which held that sex offender conditions were legal where the trial court orally announced it was imposing "sex offender probation" but did not specifically announce each condition. The supreme court recently approved the Fourth District's decision and held that the defendant was not entitled to relief where he did not challenge his sentence under rule 3.800(b), he specifically requested sex offender probation as part of his request for a downward departure sentence, and the trial court put him on notice that he was receiving sex offender probation when it announced "sex offender probation" and referenced a restriction on using the internet. Levandoski v. State, 245 So.3d 643, 644-45 (Fla. 2018). We note that Martinez never challenged his 2013 order of probation containing the conditions of sex offender probation, but according to Levandoski, 245 So.3d at 644-45, his 2013 order of sex offender probation is legal. See also Jones v. State, 43 Fla. L. Weekly D1611 (Fla. 2d DCA July 13, 2018) (reversing order clarifying sentence but noting that defendant's original sentence of sex offender probation was proper under Levandoski ).

Reversed and remanded.

LaROSE, C.J., and KELLY, J., Concur.

      This court recently reversed a similar order clarifying sentence without reaching this jurisdictional issue. See Jones v. State, 251 So.3d 307, 2018 WL 3401924 (Fla. 2d DCA July 13, 2018).


author: B.L. Thomas, C.J.

text:
    Charles JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3986
    District Court of Appeal of Florida, First District.
    August 24, 2018
    Dane K. Chase of Chase Law Florida, P.A., St. Petersburg, for Appellant.
    Pamela Jo Bondi, Attorney General, R. Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
    OPINION ON MOTION FOR REHEARING
   B.L. Thomas, C.J.

In this collateral appeal, we address whether Appellant's counsel provided constitutionally ineffective assistance of counsel by failing to object to testimony by a law enforcement officer who specialized in training and utilizing dogs to track suspects and detect odors. The officer used his dog "Diesel" to track down fleeing suspects involved in a home burglary.

At trial, Officer Michael Michener testified regarding Diesel's ability to detect odors from someone in an anxious mental or physical state, running from police or otherwise in a state of distress. He had worked with the Jacksonville Sheriff's Office twenty-two years, with sixteen years as a K-9 handler. Officer Michener testified that he selected Diesel when the dog was eleven months old; he personally trained him and had been working with Diesel for nearly two years. Officer Michener testified that Diesel was an explosive-detection dog, but also performed patrol functions, including tracking people based on odor.

Officer Michener testified that he and Diesel were dispatched to the scene of a burglary where people were fleeing from police. When he arrived at the neighborhood, Diesel indicated that he was sensing human body odor consistent with the nervousness or anxiety of someone fleeing. The officer testified that animals react depending on the human odor they are searching for; people who are fleeing give off a different type of odor than sedentary people, and based on his experience with Diesel and other dogs, he can tell when Diesel is indicating someone has been fleeing. He gave Diesel a command to locate human odor. Diesel led Officer Michener to a private fence, began pulling the officer very strongly, and eventually led him to the backyard of a residence and a shed, where the officer observed three people hiding. Diesel made contact with one of the people in the shed, and all three were eventually detained, including Appellant.

Appellant was convicted of burglary of a dwelling and sentenced to thirty years' imprisonment. This court affirmed the judgment and sentence without opinion. Johnson v. State, 68 So. 3d 238 (Fla. 1st DCA 2011) (table).

The relevant trial testimony between the prosecutor and Officer Michener, to which Appellant's trial counsel did not object, was as follows:

Q: Well, let me take you back then to October, that particular day on the 29th. Did you do a search with Diesel?
A: Yes, ma'am, I did.
Q: And what method did you actually use that day?
A: Because of the nature of the information I was obtaining through the police radio prior to getting there, this was what I would consider to be a hot search, meaning I actively had people that were fleeing from the police, I had bodies that were going through neighborhoods. So the most efficient thing to work towards is the dog's abilities to capitalize on that, is what we call an area search. To break that down ... we went with what we call a yard search which is a systematic search of each yard as we go.
Q: And when you're doing that systemic search with Diesel, what is he picking up on that will help him locate a suspect?
A: The command I give the dog is to locate human odor. That -- that is, in essence, what the command means to the dog. When we start, I will tell the dog locate human odor so I'm looking for human beings is what I'm looking for.
Q: And is there a way that Diesel reacts when he locates human odor?
A: Yes, ma'am. The animals react definitely depending on the human odor they happen to be searching for. Human beings that are running or fleeing from the police obviously give a different type of scent, cast a different type of the odor off their body than say you and I do sitting here today.
Q: Is that because they're nervous, sweating, that sort of thing?
A: Sweating, fearful. Anxiety plays a factor into it. There's a lot of different factors that play into it, versus somebody that may have been lost and walked off into the woods and sitting there. Now, he's capable of finding each of them in each of those cases, but the reaction from him is vastly different for those two.
Q: So based on your experience with Diesel as well as the other dogs you can tell when he's indicating on somebody that is potentially a suspect who has been fleeing, say, versus, a homeowner in their backyard gardening ?
A: Yes, ma'am.

(Emphasis added.) According to Appellant's collateral attorney, this was "inconceivable scientific testimony that a canine animal could smell a guilty suspect." And defense counsel at trial exacerbated this "inconceivable" testimony on cross-examination by eliciting even more "incomprehensible testimony":

Q: So Diesel is trained to detect any human odor?
A: That's correct.
Q: Now, you stated on direct that Diesel is trained to pick up on like if somebody's been running or nervous or whatever it may be, correct?
A: Yeah. He has self-taught himself that over a series of involved pursuits ....

(Emphasis added.)

Collateral counsel now argues, "Michener acknowledges that not only is his canine able to sniff out the difference between guilty suspects and your average Joe, but [Diesel] has apparently 'self-taught himself' this miraculous feat." But notwithstanding the lavish description by Appellant's collateral counsel, the issue here is straightforward: Did counsel provide deficient representation in failing to object to the State's direct examination? The trial court found no deficient performance, and did not reach the issue of prejudice.

A claim of ineffective assistance of counsel is governed by Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance, an appellant must allege 1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms, see id. at 690, 104 S.Ct. 2052 ; and 2) that the appellant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different, see id. at 692, 104 S.Ct. 2052. To prove the first prong, "[t]he defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant."

Blackwood v. State , 946 So.2d 960, 968 (Fla. 2006) (citing LeCroy v. Dugger , 727 So.2d 236, 239 (Fla. 1998) ). "[T]he two-prong test for determining the validity of an ineffective assistance claim requires the defendant to demonstrate that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defendant." Gibbs v. State , 604 So.2d 544, 545 (Fla. 1st DCA 1992) (citing Johnson v. State , 593 So.2d 206 (Fla. 1992) ) (emphasis added).

Appellant argues that Officer Michener was a lay witness not qualified to give specialized opinion testimony under section 90.702, Florida Statutes, and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Section 90.701, Florida Statutes, describes when lay witnesses may give opinion testimony:

If a witness is not testifying as an expert, the witness's testimony about what he or she perceived may be in the form of inference and opinion when:
(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness's use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

"Of course, '[a]ll lay witnesses have some specialized knowledge-knowledge relevant to the case that is not common to everyone.... Indeed, that is why all witnesses-lay or expert-are called: to get what they know about the case that other people do not.' " L.L v. State , 189 So.3d 252, 256-57 (Fla. 3d DCA 2016) (quoting Paul F. Rothstein, Fed. Rules of Evidence Rule 701 (3d ed.) ).

Here, the officer's testimony could not have been intelligently presented without admitting his answers regarding Diesel's asserted abilities. But under section 90.701, Florida Statutes, the question is, first, was he required to "communicate ... inferences and opinions [which would] not mislead the trier of fact to the prejudice of the objecting party." Here, we think this criterion was met. The officer could not intelligently present his observations of Diesel's actions without expressing an opinion about the dog's training and capabilities. And a layperson understands that a dog, especially a specifically trained dog, could detect odors that human beings cannot detect or follow. The use of drug-sniffing dogs, and dogs used to smell and detect people trapped in rubble, is well known and understood. When viewed in context, the officer did not attempt to testify that Diesel could smell a burglar, but only that he could detect odors of a person in an anxious state attempting to flee, i.e., a "fight or flight" physiological phenomenon. We further do not think the officer's testimony caused unacceptable prejudice to the opposing party. A jury could believe or disbelieve the officer's testimony, as his lay opinions were not unreasonably expressed or based on any esoteric knowledge or techniques that could not be readily discredited on cross-examination.

The second question we must answer under section 90.701, Florida Statutes, is whether the officer's testimony contained any "special knowledge, skill, experience, or training." If so, a defense objection would have been properly sustained under the statute.

Federal courts have addressed the admission of lay opinion testimony under a federal evidentiary statute that is substantially similar and also prohibits such lay testimony from containing expert analysis:

Federal Rule of Evidence 701 allows lay opinion that "is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Rule 701 permits such testimony if it is based on "relevant historical or narrative facts that the witness has perceived," Teen-Ed, Inc. v. Kimball Intern., Inc., 620 F.2d 399, 403 (3rd Cir. 1980), and if it "would help the factfinder determine a matter in issue," Hurst v. United States, 882 F.2d 306, 312 (8th Cir. 1989). "While the ordinary rule confines the testimony of a lay witness to concrete facts within his knowledge or observation, the [c]ourt may rightly exercise a certain amount of latitude in permitting a witness to state his conclusions based upon common knowledge or experience." United States v. Oliver, 908 F.2d 260, 264 (8th Cir. 1990) (citing Batsell v. United States, 217 F.2d 257, 262 (8th Cir.1954) ). Lay opinion testimony is admissible only to help the jury or the court to understand the facts about which the witness is testifying and not to provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events.

United States v. Espino , 317 F.3d 788, 797 (8th Cir. 2003) (footnote omitted). In Espino, the Eighth Circuit rejected arguments that the lay witness could not testify regarding the weight of methamphetamine, where the witness did not necessarily weigh every evidentiary item:

Here, these witnesses, particularly Goatley, testified that they either actually weighed the quantities of methamphetamine purchased from Espino, or through their experience knew that the volume sold generally constituted a certain weight of the drug. These lay witnesses testified based upon their experience. They were not attempting to explain any technical or specialized information, and several of them had actually used a scale to weigh the methamphetamine.

Id. at 797.

In this case, the officer certainly had the requisite experience training dogs, but the question is whether his testimony constituted "technical or specialized information" and was thus impermissible lay expert testimony. We think Appellant's collateral counsel reads too much into the officer's testimony in his argument that the officer offered an impermissible expert opinion. In essence, the officer was testifying that Diesel could sense and identify a person running, in contrast to a sedentary person. While the question containing the phrase "potentially a suspect" may have been unduly precise, the question can only be fairly understood to mean that Diesel could detect a person who had been running, not literally whether they were guilty.

A federal district court has specifically ruled that testimony by a law enforcement officer about canine-training procedures was admissible as lay opinion:

The Court will allow Sergeant Skoro to testify as a lay witness under Federal Rule of Evidence 701. His personal knowledge or perceptions based on his experience as a K-9 trainer provide sufficient foundation for lay opinion testimony. Thus, his testimony will be limited to opinions or inferences that are rationally based on his perception and that will help the jury understand the facts about which he is testifying. See Fed. R. Evid. 701 ; United States v.Espino , 317 F.3d 788, 797 (8th Cir. 2003). Plaintiff's Motion in Limine on this point is denied.

Abdullahi v. Ungurian , 2006 WL 145076, at *1 (D. Minn. Jan. 18, 2006) (footnote omitted). Federal courts have upheld the admission of lay opinion regarding other law enforcement practices as well:

We have previously explained that opinion testimony by a witness who has not been qualified as an expert witness under Rule 702 may nevertheless be admissible under Rule 701 of the Federal Rules of Evidence provided that such testimony is " 'rationally based on the perception of the witness,' [is] 'helpful to ... the determination of a fact in issue,' and [is] 'not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.' " United States v. Santiago , 560 F.3d 62, 66 (1st Cir. 2009) (second alteration in original) (quoting Fed. R. Evid. 701 ). We have explained further that the touchstone for the admissibility under Rule 701 of such lay-opinion testimony is whether the testimony has the "potential to help the jury." United States v. Albertelli , 687 F.3d 439, 447 (1st Cir. 2012).
Under this standard, we have deemed testimony inadmissible "when the jury can readily draw the necessary inferences and conclusions without the aid of the opinion." United States v. Etienne , 772 F.3d 907, 919 (1st Cir. 2014) (emphasis in original) (citations omitted). We have also explained that helpful testimony is typically "based on the lay expertise a witness personally acquires through experience, often on the job." United States v. Vega , 813 F.3d 386, 394 (1st Cir. 2016) (quoting United States v. Maher , 454 F.3d 13, 24 (1st Cir. 2006) ); see also United States v. Ayala-Pizarro , 407 F.3d 25, 28-29 (1st Cir. 2005). And, we have noted that "a police officer noticing patterns of behavior across criminal operations uses straightforward logic to conclude a defendant's behavior fits within that pattern and thus, does not need to be qualified as an expert." Vega , 813 F.3d at 394.
Accordingly, we have upheld district court decisions to admit, under Rule 701, testimony from police officers "translating jargon common among criminals," even though not "traditional" lay testimony. Albertelli , 687 F.3d at 446-47 ; see also Dunston , 851 F.3d at 96 (noting that "[a]pplication of Rule 701 in the drug-trafficking context is not novel: 'we have long held that government witnesses with experience in drug investigations may explain the drug trade and translate coded language' for factfinders through lay opinion testimony" (quoting United States v. Rosado-Pérez , 605 F.3d 48, 56 (1st Cir. 2010) ) ).

United States v. Spencer , 873 F.3d 1, 14-15 (1st Cir. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 1030, 200 L.Ed.2d 287 (2018) (emphasis added).

We conclude that Appellant's collateral claim was correctly denied without an evidentiary hearing, as any objection to the officer's testimony would have been overruled, and we thus agree with the trial court's same conclusion. Because defense counsel at trial cannot be deficient for failing to make a meritless objection, no Sixth Amendment violation occurred.

AFFIRMED .

Jay and M.K. Thomas, JJ., concur.


author: Per Curiam.

text:
    Dexter J. CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5039
    District Court of Appeal of Florida, First District.
    August 30, 2018
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Amanda D. Stokes, Assistant Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Dexter Campbell was arrested and, on March 13, 2014, pled guilty to two drug-related charges, receiving three years of probation. After the second allegation that Campbell violated the terms of his probation by committing a new law offense, he was found guilty, and the trial court revoked his probation. On October 20, 2016, the trial court sentenced Campbell to two years in prison and, after conferring with Campbell's attorney, credited him with 117 days served. This appeal arises out of a dispute as to how many days of jail-time credit Campbell is entitled to.

Following his judgment and sentence, Campbell filed a direct appeal. Campbell later filed a motion with the trial court to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which permits motions while an appeal is pending. First, Campbell's motion requested credit for time he spent in jail outside of Florida. Second, Campbell argued that he was entitled to credit from November 23, 2015, until December 4, 2015, the time he asserts he spent in jail in Escambia County following the arrest that led to his first alleged violation of probation. The trial court denied both claims, and Campbell disputes only these two rulings in his direct appeal.

We affirm the trial court's ruling on the first claim without further comment. Regarding the second claim, the trial court concluded that Campbell was not entitled to credit for time served because this jail time was not related to the offense that led to the revocation of his probation. Campbell argues that he is entitled to all time served in jail following his initial sentencing, and the State agrees. We affirm as to the second claim, and write to explain why the record on appeal does not permit us to evaluate the arguments put forth by Campbell and the State.

Although the State agrees that Campbell is entitled to time served in jail between November 23, 2015, and December 4, 2015, it does not appear he was in jail. To support his assertion that he was arrested on November 23, 2015, Campbell points to the following warrant for his arrest:

NEW ARREST-Violation of Condition (5) of the Order of Probation, by failing to live without violating any law by being arrested for the criminal offense of Battery-Touch or Strike on November 23, 2015, in Escambia County, FL, and as grounds for belief that the offender violated his probation, Officer Samantha Howell states that the offender was arrested on December 3, 2015, for the said offense by Escambia County Sheriff Deputy Cory Caves, as told to Officer Samantha Howell by Arrest Report Number ECSO15ARR021140.

This language indicates that Campbell was arrested on December 3rd, although the first half could be interpreted to suggest that he was indeed arrested on November 23rd. The language of this warrant was taken verbatim from an affidavit written by Officer Howell. The same day Officer Howell wrote the affidavit, she also completed a violation report, which states, in pertinent part, the following:

On November 23, 2015, in Escambia County, Florida, Escambia Sheriff's Office Deputy Cory Caves reported to a disturbance at the area of Patricia Drive and Cerny Road.... Deputy Caves attempted to make contact with the defendant at his home on Saufley Field Road. The defendant was not at home. On December 3, 2015, the defendant was arrested.

With the additional context of this violation report, it is clear that Campbell was not arrested for this incident until December 3, 2015. If other documents show that Campbell was in jail during this period, he failed to include them in the record before us, which is his burden. See Anderson v. N. Port Servs. of Fla., LLC , 151 So.3d 29, 30 (Fla. 1st DCA 2014). Because there is no evidentiary basis to support the assertions by Campbell and the State, we affirm without reviewing the trial court's reasoning. See Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So.2d 638, 644 (Fla. 1999) (affirming the trial court's order based on different reasoning).

AFFIRMED .

Roberts, Rowe, and Winokur, JJ., concur.


text:
    Felice John VEACH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-711
    District Court of Appeal of Florida, First District.
    August 30, 2018
    Andy Thomas, Public Defender, Megan Lynne Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
    OPINION ON MOTION FOR REHEARING
   B.L. Thomas, C.J.

We have before us Appellant's Motion for Rehearing. We grant Appellant's motion and, accordingly, withdraw our former opinion of July 9, 2018, and substitute this opinion in its place.

Appellant challenges the trial court's denial of his motion in limine to exclude portions of a jailhouse telephone call. He also appeals the trial court's disallowance of his questions to a co-defendant, arguing this violated his Sixth Amendment right to confrontation.

Facts

Appellant was charged by information with one count of conspiracy to commit the felony of tampering with a victim, in violation of sections 914.22 and 777.04(3), Florida Statutes (2016). The charge arose from a recorded jail telephone call between Appellant and his former girlfriend and co-defendant, Lisa Harkins. The seventeen-minute phone conversation was redacted to seven minutes. The State agreed that it would not mention that Appellant was alleged to have tampered with a victim in a lewd or lascivious molestation case.

Before opening statements, Appellant moved in limine to further redact the portion of the jail phone call in which Appellant asked Lisa Harkins, Appellant's former girlfriend and co-defendant, to "let them know that somebody stole [my] phone" and asked Harkins to "call the investigator's office tomorrow and find out who brought you that phone because you could go press charges on them ...." The trial court denied Appellant's motion, finding that the information that Appellant sought to redact was relevant, and its probative value outweighed any undue prejudice.

At trial, an Escambia County Sheriff's Office investigator testified that she began an investigation of Appellant based on allegations of a minor victim. Thereafter, Appellant was arrested. Harkins testified that she knew Appellant by the nickname "Rocky" and that Appellant called her from the Escambia County Jail. A recording of the jail phone call was played. The call began with the following:

Hello. You have a call at no expense to you from Shawn Stewart, an inmate at Escambia County Detention Center. To accept this call, press five. ... [T]his call will be recorded and subject to monitoring at any time.

In the phone conversation, Appellant told Harkins to "get a hold of" the victim in the underlying charge and "talk to her" and to "get a hold of [the victim's mother]

and let her know." The phone record also contained the following statement made by Appellant:

(Unintelligible). You have the phone (unintelligible) know, that it was my phone, Rocky Veach, and - but let them know that somebody stole the phone and we just found out. But the phone got turned over to the investigator's office. We want to know who got that phone. So you need to call the investigator's office.

The call came from the account of Inmate Shawn Stewart; Harkins testified that she put money into that account, which Appellant used because Appellant "said his phone wasn't working, his ID or whatever." Harkins testified that she also had a charge pending against her for conspiracy to commit a felony.

On cross-examination, Appellant's counsel asked Harkins if her "intention was not to break a law." The State objected, arguing that the jury did not need to make a determination on Harkins' intent, and nothing in direct examination opened the door to that questioning. Appellant's counsel argued that asking Harkins her intent was relevant to prove what she understood Appellant was asking her to do. The State asserted that if she was asked the question, Harkins could invoke her Fifth Amendment right against self-incrimination.

The trial court granted the State's objection. Appellant was found guilty and sentenced to 30 years' imprisonment as an habitual felony offender.

Analysis

The admission or exclusion of evidence is subject to an abuse of discretion standard of review. San Martin v. State, 717 So.2d 462 (Fla. 1998).

"Relevant evidence is evidence tending to prove or disprove a material fact." § 90.401, Fla. Stat. (2016). "All relevant evidence is admissible, except as provided by law." § 90.402, Fla. Stat. (2016). "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403, Fla. Stat. (2016). " 'Relevant evidence is inherently prejudicial; however it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matters.' " State v. Blackwell , 787 So.2d 963, 965 (Fla. 1st DCA 2001) (quoting State v. Andres , 552 So.2d 1151, 1153 (Fla. 3d DCA 1989) ).

Evidence of "other bad acts," which are collateral to the crime charged and not considered Williams rule evidence, is admissible if relevant and not more prejudicial than probative. § 90.404(2)(a), Fla. Stat. (2016). Thus, the trial court's decision allowing the admission of such evidence should not be overturned, if the record supports a finding that the evidence is relevant and not more prejudicial than probative. Kopsho v. State , 84 So.3d 204, 217 (Fla. 2012). As the supreme court stated:

"[I]ntroduction of other crimes evidence is not limited to crimes with similar facts. Dissimilar fact evidence may be admissible under section 90.402, but like similar fact evidence its admissibility is determined by its relevance. It is permissible to introduce evidence that helps to put the entire case into perspective to the extent that its relevance is not outweighed by its prejudicial effect."

Id. at 212 (citations omitted).

Appellant argues that the contested portion of the phone conversation was irrelevant to the charged crime, because his identity was not in dispute. We disagree.

Appellant placed the call to Harkins from another inmate's account, and the State offered the call because Appellant identified himself in the contested portion of the call, thus making the evidence relevant. While arguing the motion in limine, Appellant asserted that "obviously the State has to, you know, identify that [Appellant] is the person [on the phone]." Appellant argues, alternatively, that even if the contested portion was relevant, any probative value was outweighed by the unfair prejudicial effect. Appellant asserts that the phone conversation was unduly prejudicial, because it let the jurors speculate about the charge underlying Appellant's tampering charge.

"[T]he court's discretion to exclude evidence under Rule 403 is narrowly circumscribed. 'Rule 403 is an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence.' The balance under the Rule, therefore, should be struck in favor of admissibility." State v. Gerry , 855 So.2d 157, 163 (Fla. 5th DCA 2003) (quoting United States v. Norton , 867 F.2d 1354, 1361 (11th Cir. 1989) ) (citations omitted). Here, the probative value of the evidence was not outweighed by unfair prejudicial effect. Jurors had no reason to speculate regarding underlying facts relating to a cell phone, and further redaction would have improperly prevented the State from presenting evidence establishing Appellant's identity.

Appellant also argues that the trial court violated his Sixth Amendment right to confrontation by not allowing him to ask Harkins on cross-examination whether she intended to commit a crime when Appellant called her from jail. Harkins' intent was not relevant to the charge against Appellant and was not within the scope of direct examination. When a line of questioning posed to a criminal companion is "clearly a defensive matter well beyond the scope of direct examination," the trial court does not err in curtailing the line of questioning. Steinhorst v. State , 412 So.2d 332, 337-39 (Fla. 1982). The trial court did not err in barring Appellant's line of questioning, and even if it occurred, the error was harmless, as the prosecutor stated that, based on a conversation with Harkins' counsel, Harkins would have asserted her right against self-incrimination under the Fifth Amendment, if the questioning had been allowed. Thus, there is no reasonable possibility that exclusion of this question contributed to the verdict. State v. DiGuilio , 491 So.2d 1129 (Fla. 1986).

AFFIRMED .

Lewis and Makar, JJ., concur.

      Williams v. State, 110 So.2d 654 (Fla. 1959).


author: PER CURIAM.

text:
    TRUGREEN LANDCARE, LLC, Appellant, v. Charles LACAPRA, Appellee.
    Case No. 5D17-1594
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018 Rehearing Denied October 8, 2018
    Nicole Sieb Smith, of Rumberger, Kirk & Caldwell, Tallahassee, and Scott M. Sarason, of Rumberger, Kirk & Caldwell, Miami, for Appellant.
    John N. Bogdanoff, of The Carlyle Appellate Law Firm, Orlando, for Appellee.
   PER CURIAM.

Charles LaCapra tripped and injured himself after losing his footing while cutting across one of the palm tree planter squares in front of Regal Cinemas in Winter Park Village. He sued TruGreen Landcare, LLP (TruGreen), for negligently maintaining, landscaping, and inspecting the planter square. At trial, the jury found both TruGreen and LaCapra negligent, determined that each was fifty percent liable for LaCapra's injuries, and awarded $400,000 in damages. TruGreen appeals the final judgment, arguing inter alia that the trial court erred in denying its motion for directed verdict. We agree and reverse.

In support of its motion for directed verdict, TruGreen argued that it owed no duty to LaCapra to keep the landscaped areas in a safe condition or to warn of any dangerous condition because landscaped areas are not generally dangerous conditions as a matter of law and any change in surface level was open and obvious. TruGreen notes that LaCapra chose to bypass the sidewalk, which was intended for pedestrian traffic, and instead walked through a landscaped area he should have known could present a hazard. LaCapra, on the other hand, counters that while the open and obvious doctrine might apply in general to natural landscaping features, it does not apply to artificial turf. He also claims TruGreen knew or should have known that pedestrians would walk across the artificial turf in the palm tree planter square.

"A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party." Goolsby v. Qazi, 847 So.2d 1001, 1002 (Fla. 5th DCA 2003) (citing Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999) ). The Court must "evaluate the testimony in the light most favorable to the plaintiff and every reasonable inference deduced from the evidence must be indulged in plaintiff's favor." Id.

The open and obvious danger doctrine "provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious." Aaron v. Palatka Mall, LLC, 908 So.2d 574, 576-77 (Fla. 5th DCA 2005) (citing Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309 (Fla. 1986) ). "This doctrine rests upon the generally accepted notion that owners and possessors of real property should be legally permitted to assume that those entering their premises will perceive conditions that are open and obvious to them upon the ordinary use of their senses." Id. at 577 (citing Krol v. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001) ). In analyzing whether a danger is open and obvious, "the courts are required to consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition." Id.

The owner or occupier of real property owes two duties to business invitees, namely a duty to "use ordinary care in keeping the premises in a reasonably safe condition" and a duty to warn of latent or concealed hazards that the owner/occupier knew or should have known about and which are not known to the invitee in a timely manner. Id. (quoting Hylazewski v. Wet 'N Wild, Inc., 432 So.2d 1371, 1372 (Fla. 5th DCA 1983) ). The open and obvious danger doctrine may discharge the duty to warn, but it "does not apply when negligence is predicated on breach of the duty to maintain the premises in a reasonably safe condition." Id. (citing Marriott Int'l, Inc. v. Perez-Melendez, 855 So.2d 624 (Fla. 5th DCA 2003) ). Thus, an issue of fact for the jury exists when the plaintiff alleges the owner/occupier breached the duty to keep the premises in a reasonably safe condition regardless of whether the danger was open and obvious. Id. at 578 (citing Lotto v. Point E. Two Condo. Corp., Inc., 702 So.2d 1361, 1362 (Fla. 3d DCA 1997) ).

However, some conditions are considered so obvious and not inherently dangerous that they do not, as a matter of law, support liability for the breach of the duty to maintain the premises in a reasonably safe condition. Dampier v. Morgan Tire & Auto., LLC, 82 So.3d 204, 208 (Fla. 5th DCA 2012) (citing Schoen v. Gilbert, 436 So.2d 75 (Fla. 1983) ). In particular, landscaping features "are generally found not to constitute a dangerous condition as a matter of law." Id. (citing K.G. ex rel. Grajeda v. Winter Springs Cmty. Evangelical Congregational Church, 509 So.2d 384 (Fla. 5th DCA 1987) ); accord Wolf v. Sam's East, Inc., 132 So.3d 305, 308 (Fla. 4th DCA 2014) ("As to the instant case, we find that the tree roots in the landscaping areas were 'so obvious and not inherently dangerous' as to constitute a non-dangerous condition as a matter of law."). Additionally, there is no duty to make areas that are not designed for walking reasonably safe for that purpose or to warn that they are not safe for walking. See Dampie r, 82 So.3d at 208 (finding no duty to warn or make a planter bed with a stump that plaintiff tripped on reasonably safe for walking); City of Melbourne v. Dunn, 841 So.2d 504, 505 (Fla. 5th DCA 2003) (determining there was no duty to make raised timbers alongside a large planter bed safe for walking or to warn of danger as it was not foreseeable they would be used for walking (citing McCain v. Fla. Power Corp., 593 So.2d 500 (Fla. 1992) ) ); Taylor v. Univ. City Prop. Mgmt., 779 So.2d 621 (Fla. 5th DCA 2001) (holding that plaintiff, who was injured when she stepped on metal-rim edge of palm tree planter square that was six feet in diameter with palm tree and shrub-like foliage around base of palm tree, could not recover because hazard was obvious and not inherently dangerous); Prager v. Marks Bros. Co., 483 So.2d 881 (Fla. 3d DCA 1986) (finding unfinished curbside flowerbox in which plaintiff slipped on dirt while walking was not dangerous condition necessitating warning). In these situations, the rule "is to absolve the landowner of liability unless the landowner should anticipate or foresee harm from the dangerous condition despite such knowledge or obviousness." Dampier, 82 So.3d at 206 (citing Ashcroft, 492 So.2d at 1311 ).

Here, LaCapra testified that he lost his footing due to a hidden depression in the palm tree planter square. The facts in this case are similar to those in Taylor where we found that a palm tree planter square was not inherently dangerous and dispelled liability not only for failure to warn but also for failure to maintain the palm tree planter square in a reasonably safe condition:

The trial court concluded, however, and we agree, that anyone who walks into a planter containing a Washington palm, greenery and/or flowers and dirt is held to know that this is a hazard to walking. The precise nature of the hazard need not be observable. Such a change in level caused by the change in materials and surface texture and the effect on footing is to be expected.

Taylor, 779 So.2d at 622.

LaCapra's attempt to distinguish Taylor is unpersuasive. His argument that the depression in the artificial turf upon which he tripped was hidden or that the sprinkler head might not have been visible misses the point of Taylor, which is that the palm tree planter square was not hidden and presented an open and obvious danger in and of itself. See id. The fact that the planter square in this case used artificial turf instead of natural grass is also a distinction without a difference. Indeed, the palm tree planter square in Taylor had a metal rim, and that metal rim was the point of contact that caused the plaintiff to lose balance in that case. See id. We would also note that in K.G., this court concluded that uneven bricks surrounding the base of a tree, which are also not naturally occurring, were not a dangerous condition. 509 So.2d at 384-85. Unlike the situation in Grimes v. Family Dollar Stores of Florida, Inc., 194 So.3d 424, 427 (Fla. 3d DCA 2016), where there was a well-worn path through the landscaped area that customers used as a shortcut to the store, there was no evidence of continuous and obvious use of the planter square as a pedestrian shortcut in this case. Moreover, there was no need for a shortcut path because the planter square was surrounded by sidewalk on all sides. See Wolf, 132 So.3d at 308-09.

Given our holding in Taylor, which involved a similar palm tree planter square, we conclude that the palm tree planter square in this case was not a dangerous condition as a matter of law. See Taylor, 779 So.2d at 622. Consequently, the trial erred in denying TruGreen's motion for directed verdict. See id.

REVERSED.

BERGER and WALLIS, JJ., concur.

SAWAYA, J., dissents without opinion.

      The planter square is a small grassy area consisting of artificial turf, centered around a palm tree with a wide base that looks like a small circular platform. The planter square is completely surrounded by sidewalk.

      LaCapra also sued Winter Park Town Center, LLP and Casto Southeast Realty Services, LLC on the theory of premises liability. TruGreen indemnified these parties, assumed their defense, and settled the claims against them. The amended complaint alleged that the defendants, "by and through its agents, servants and/or other employees acting within the scope and course of such agency, service, or employment, negligently breached its duty of care to Plaintiff by failing to inspect and maintain the Winter Park Village premises in a safe condition and by failing to warn Plaintiff of the dangerous condition" resulting in LaCapra suffering bodily injury, pain and suffering, disability, mental anguish, loss of capacity for enjoyment of life, medical expenses, loss of earnings and loss of earning capacity.

      The trial court entered final judgment in favor of LaCapra in the amount of $200,000, plus post judgment interest.

      LaCapra claims to have lost his footing on a depression, rolled his ankle, and tripped over a sprinkler head before catching himself on a parked police car.

      LaCapra's status as a business invitee is not in dispute.


text:
    Pauline Martina KEOGH, Appellant, v. Robert Stephen KEOGH, Appellee.
    Case No. 5D18-1080
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    Mark M. O'Mara and Carina M. Leeson, of O'Mara Law Group, Orlando, for Appellant.
    Clay D. Morgan, of Morgan & Barbary, P.A., Melbourne, for Appellee.
   PER CURIAM.

Pauline Keogh ("Wife") appeals the non-final order dismissing her claim for child support. We have jurisdiction, and we reverse because the trial court erred in concluding that it did not have jurisdiction to award child support.

The parties were married in Florida in November 2006 and have one minor child born to their marriage. The parties separated, and the minor child now lives with Wife in Ireland. In June 2017, Robert Keogh ("Husband") filed his petition for dissolution of marriage. Pertinent to this appeal, Husband alleged that under Florida's Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), the trial court did not have jurisdiction over the parties' minor child. Wife answered the petition and later filed an amended counterpetition for dissolution of marriage in which she requested, among other things, temporary and permanent child support for their minor child and for Husband to maintain a policy of medical insurance to provide for the health care needs of the child and contribute to the child's uncovered health related costs. Wife did not plead for the court to make a child custody determination.

Husband moved to dismiss Wife's claim for child support, asserting that because Wife and the minor child have lived continuously in Ireland for over two years, Florida is not the child's "home state" under the UCCJEA and, thus, the court had no jurisdiction to grant any relief related to the minor child. The trial court agreed, finding that the undisputed facts showed that Florida was not the child's home state prior to the commencement of this action and because the court does not have jurisdiction over child custody issues, it also lacked jurisdiction to award child support, "either under the UCCJEA or Florida Statute section 61.13."

Whether the court has jurisdiction in this case is a question of law that is reviewed de novo. Nissen v. Cortez Moreno , 10 So.3d 1110, 1111 (Fla. 3d DCA 2009) (citing Sanchez v. Fernandez , 915 So.2d 192, 192 (Fla. 4th DCA 2005) ). We hold that the plain language of section 61.13(1)(a), Florida Statutes (2017), provides the trial court with jurisdiction in this case to award child support.

We first address the trial court's reasoning that it lacked jurisdiction to award child support under the UCCJEA. The UCCJEA is a jurisdictional act that controls custody disputes. In re D.N.H.W. , 955 So.2d 1236, 1238 (Fla. 2d DCA 2007) (quoting Arjona v. Torres , 941 So.2d 451, 454 (Fla. 3d DCA 2006) ). Here, there is no request for a child custody determination in the pleadings as Florida, admittedly, is not the home state of the child. The term "child custody determination" under the UCCJEA specifically excludes an order relating to child support or other monetary obligation of an individual. See § 61.503(3), Fla. Stat. (2017). This Act applies only to the issue of custody. Patterson v. Tomlinson , 875 So.2d 646, 647 (Fla. 4th DCA 2004).

Next, we hold that the court erred in finding that it had no jurisdiction under section 61.13, Florida Statutes (2017), to order child support. Section 61.13(1)(a) provides, in pertinent part, that "[i]n a proceeding under this chapter, the court may at any time order either or both parents who owe a duty of support to a child to pay support to the other parent." The parties' dissolution of marriage litigation pending below is a proceeding under chapter 61, and Husband owes a duty to support his minor child. As there is no dispute here that the court has personal jurisdiction over the parties, this statute gives the court jurisdiction to order Husband, as the child's parent, to pay child support. The fact that a custody proceeding may, at some point, be instituted in Ireland does not preclude a Florida court from presently exercising its authorized jurisdiction to award child support.

Accordingly, we reverse the trial court's order dismissing Wife's child support claim for lack of jurisdiction and remand for further proceedings.

REVERSED and REMANDED.

COHEN, C.J., BERGER and LAMBERT, JJ., concur.

      See Fla. R. App. P. 9.130(a)(3)(C)(iii) a.

      Codified at sections 61.501 -61.542, Florida Statutes (2017).


text:
    Blair CLEMENTS, Appellant, v. Rosimeri CLEMENTS, Appellee.
    Case No. 5D17-2015
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    Shannon McLin Carlyle and John N. Bogdanoff, of The Carlyle Appellate Law Firm, Orlando, for Appellant.
    Kenneth D. Morse, of Kenneth D. Morse, PA, Heathrow, for Appellee.
   PER CURIAM.

Appellant appeals the final judgment of dissolution of marriage. We affirm that part of the final judgment dissolving the marriage between the parties. However, we reverse the remainder of the final judgment.

After the final hearing concluded, both parties submitted proposed final judgments. The trial judge adopted Appellee's proposed final judgment almost verbatim. We believe the trial court failed to conduct an independent analysis necessary for a fair resolution of the issues raised by the parties. Therefore, we affirm the part of the final judgment that dissolves the marriage between the parties, reverse the remainder of the final judgment, and remand this case to the trial court for entry of an amended final judgment based on its own independent analysis. See West v. West, 228 So.3d 727, 730 (Fla. 5th DCA 2017). Despite our reversal on this basis, we will briefly address Appellant's arguments regarding the numerous errors contained in the final judgment under review.

Appellant contends that the trial court erred in denying him permanent alimony, fashioning a time-sharing schedule, calculating child support, and equitably distributing the marital assets and liabilities. We agree.

As to the issue of permanent alimony, the trial court's order regarding alimony was an abuse of discretion because it failed to: (1) make independent findings of fact or rulings of law and instead adopted verbatim Appellee's proposed final judgment; (2) consider the factors required by case law and statute; (3) consider much of the evidence presented at trial regarding Appellant's need and Appellee's ability to pay; and (4) rebut the presumption of permanent alimony in favor of Appellant. See Motie v. Motie, 132 So.3d 1210, 1213 (Fla. 5th DCA 2014).

Appellant argues, and we agree, that the trial court erred in failing to award him any overnight visits, summer vacation time, or time for holidays. Appellant also contends that the trial court erred in failing to provide guidance as to how Appellant may increase his time-sharing with the children. On remand, the trial court is to make independent findings as to the time-sharing based on the evidence and testimony presented during hearings and at trial. See Pedersen v. Pedersen, 892 So.2d 1125, 1126 (Fla. 2d DCA 2004).

Appellant argues that the trial court erred in calculating the award of child support. Specifically, he contends that the trial court's finding that Appellee's income was $80,000 was not supported by competent, substantial evidence. We note that there were no findings made by the trial court regarding how it calculated the sum of $80,000. On remand, the trial court is to include independent findings of fact as to how it calculated child support and should attach to its final judgment a completed child support guidelines worksheet. See Preure v. Benhadj-Djillali, 15 So.3d 877, 878 (Fla. 5th DCA 2009) ; Dep't of Rev. ex rel. R.S.M. v. B.J.M., 127 So.3d 859, 861 (Fla. 2d DCA 2013).

Finally, Appellant argues that the trial court erred in listing the SBA loan as a liability and awarding it to Appellee, as the loan was subsumed into a remortgage of the commercial condominium. Appellee concedes error on this issue. Because this calculation reduces her net worth by $81,265, the equalizing payment should be correspondingly altered. Appellee contends that the sum should now be $17,980.85 to Appellant instead of $28,421 to Appellee. However, this amount relies on the incorrect calculation of credits due to Appellee from homeowner's association dues and real estate taxes on the marital home paid since Appellant and Appellee separated. Appellant was not required to contribute to those payments; thus, no credits were owed to Appellee for his failure to do so. See Kranz v. Kranz, 737 So.2d 1198, 1202-03 (Fla. 5th DCA 1999). Therefore, on remand the trial court should remove those credits from Appellee and calculate the equitable distribution accordingly. We also note that Appellee's proposed final judgment contained numerous mathematical errors that were incorporated into the trial court's final judgment. In its amended final judgment, the trial court should ensure that its calculations are free of such errors.

Accordingly, we affirm the portion of the final judgment dissolving the marriage, reverse the remainder of the judgment, and remand this case to the trial court for entry of an amended final judgment.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, EVANDER and LAMBERT, JJ., concur.


text:
    Matthew GARCIA, Appellant, v. Cynthia GUILES, Appellee.
    No. 1D17-5125
    District Court of Appeal of Florida, First District.
    September 5, 2018
    Travis R. Johnson of Meador & Johnson, P.A., Pensacola, for Appellant.
    Tonya Holman, Shalimar, for Appellee.
   Per Curiam.

Matthew Garcia appeals a final judgment denying his supplemental petition for modification of timesharing. Garcia sought primary custody of his eleven-year-old son, but the trial court found Garcia had not shown a substantial change in circumstances since the parties' divorce. Garcia argues that (i) the court abused its discretion in allowing the child's treating psychotherapist to testify and (ii) the court denied Garcia due process when it provided inadequate notice before deciding to appoint a guardian ad litem for the child. We affirm.

I.

Garcia married Cynthia Guiles in 2005. He was twenty-five; she was seventeen. They had one child-a son-who is the subject of this appeal. Garcia and Guiles divorced in Oklahoma in 2010, and the Oklahoma court awarded Guiles primary custody. The case was domesticated to Florida, where Garcia filed the petition at issue.

Garcia's petition alleged that since the divorce, Guiles had relocated with the child nine times, enrolled him in five different elementary schools, ignored his medical and educational needs, and interfered with Garcia's ability to communicate with the child. It further alleged that Guiles's new husband, the child's new step-father, had abused the child. The petition also alleged that Garcia had recently retired from the Air Force and was now in the better position to attend to the child's needs.

The parties stipulated to the appointment of an independent expert to opine as to the social and psychological status of the parties and the child. The expert met with the parties, family members, and the child, as well as the child's treating psychotherapist. On the first day of trial, the expert opined that the child "would be better served" living with Garcia. She acknowledged, though, that it "was difficult to make recommendations" because she believed "both parents are good parents and care deeply for their son."

To rebut this testimony, Guiles sought to introduce the testimony of the child's treating psychotherapist. Garcia argued that if the court were to consider allowing the psychotherapist to testify, it should appoint a guardian ad litem to first determine whether it was in the child's best interest to waive the patient/psychotherapist privilege. Not wanting to extend the trial, the court ordered the parties to work on resolving the issue overnight and suggested the parties retain a guardian ad litem to expeditiously review the case and render an opinion.

After contacting several attorneys, the parties were able to retain Susan Winterberger. The next morning, Winterberger informed the court that she might be unable to make an informed decision that day and that she believed she would not be "giving it the appropriate attention it deserves with trying to get all that accomplished [that] morning." She also told the court that because of other obligations, she might return in the afternoon only to say that she was uncomfortable rendering an opinion. The court indicated it would be best if she were able to provide an opinion that day.

Ultimately, Winterberger testified that waiving the patient/psychotherapist privilege would be in the child's best interest. This opinion was based, at least in part, on the psychotherapist's statement that she was "an advocate for the child" and that she "wanted to testify." The court then allowed the psychotherapist's testimony, but concluded in its written final order that the psychotherapist "display[ed] a distinct bias toward the mother's position" and that the court would "give her recommendation the little weight it deserves." After hearing the testimony of the psychotherapist, the court determined that there had been no substantial change in circumstances since the parties' divorce. The court therefore ordered that the child continue to reside primarily with the mother.

II.

On appeal, Garcia first argues that the court abused its discretion in allowing the psychotherapist to testify. He cites to this court's decision in Leonard v. Leonard , which said that "court-ordered independent psychiatric examinations of the parties and their children will accomplish the proper balance of providing the trial judge with information relevant to the child custody decision, while preserving psychiatrist-patient confidentiality." 673 So.2d 97, 99 (Fla. 1st DCA 1996) ; see also Schouw v. Schouw , 593 So.2d 1200, 1201 (Fla. 2d DCA 1992) ("A court ordered psychiatric or psychological examination is the suggested method for balancing the court's need to determine the parents' mental health as it relates to the best interest of the child, and the need to maintain the confidentiality between a treating psychotherapist and the patient."). In Leonard , the father sought to depose the mother's psychologist and the trial court denied the mother's motion for protective order. 673 So.2d at 99. The mother then filed a petition for writ of certiorari, which this court granted. Id. It is true that in situations where a parent's mental health is called into question, allowing the parties to directly access the other's medical records, over their objection, is a departure from the essential requirements of law. Id. ; Schouw , 593 So.2d at 1201 ;

Roper v. Roper , 336 So.2d 654, 656 (Fla. 4th DCA 1976). But when the privilege is waived, "[t]he trial court [is] faced with an entirely different situation." Roper , 336 So.2d at 657. Although "neither parent could have waived the psychotherapist privilege, because the subject matter of the litigation was the child's welfare," Brown v. Brown , 180 So.3d 1070, 1072 (Fla. 1st DCA 2015), the court appointed a guardian ad litem to protect the interests of the child, and the guardian determined that it was in the child's best interest to waive the privilege, see Phillips v. Nationwide Mut. Ins. Co. , 347 So.2d 465, 466 (Fla. 2d DCA 1977) ("The next friend of a minor has power to act on that minor's behalf."). Accordingly, we conclude that the court-having considered the opinion of the child's guardian ad litem that waiving the privilege was in the child's best interest-did not err in allowing the psychotherapist to testify.

III.

We further conclude that the court did not violate Garcia's due process rights when it appointed a guardian ad litem. See Vollmer v. Key Dev. Properties, Inc. , 966 So.2d 1022, 1027 (Fla. 2d DCA 2007) ("[T]he right to be heard includes the right to introduce evidence at a meaningful time and in a meaningful manner.") (marks and citation omitted). The thrust of Garcia's argument is that the court pressured the guardian ad litem to make a decision without affording her time to fully consider the issue. He argues in his brief that "the trial court strongly implied that [it] was not willing to consider a continuance of the trial to have a proper evidentiary hearing on the question presented." Init. Brief at 24. However, no one ever moved for a continuance. After the guardian ad litem was retained, Garcia's attorney stated that-without waiving her objection to the court's decision to appoint a guardian ad litem in the first place-she did not object to the selection of that particular person. She then explained the time constraints the guardian ad litem faced, but still did not move for a continuance.

More to the point, the issue of whether Garcia had sufficient notice and an opportunity to be heard about the guardian ad litem is separate and distinct from the issue of whether the guardian ad litem (once appointed) had sufficient time to make an informed decision. We conclude Garcia has not shown any due process violation.

IV.

Finally, Garcia argues that even if the psychotherapist's testimony was properly admitted, the court abused its discretion when it found no substantial change in circumstances. We reject this argument as well. A party seeking to modify a parenting plan "must show that (1) circumstances have substantially and materially changed since the original custody determination, (2) the change was not reasonably contemplated by the parties, and (3) the child's best interests justify changing custody." Reed v. Reed , 182 So.3d 837, 840 (Fla. 4th DCA 2016). "[D]emonstrating to the court that there has been a sufficient substantial change in circumstances places an extraordinary burden on the party seeking to modify the underlying judgment." Korkmaz v. Korkmaz , 200 So.3d 263, 265 (Fla. 1st DCA 2016) (marks and citation omitted).

Although there have been changes in the parties' lives, some of these changes were anticipated at the time of the original divorce decree (such as the Garcia's retirement from the Air Force). Cf. Bryant v. Meredith , 610 So.2d 586, 588 (Fla. 2d DCA 1992) ("[T]he mother's retirement from the service cannot constitute a substantial change of circumstances."). Other changes (such as Garcia's general assertion that the mother has not fostered communication between him and the child) do not rise to the level of a substantial change in circumstances. Sanchez v. Hernandez , 45 So.3d 57, 62 (Fla. 4th DCA 2010) (holding that the party seeking to modify a custody order must "prove more than merely an acrimonious relationship and a lack of effective communication in order to show a substantial change"); Boykin v. Boykin , 843 So.2d 317, 321 (Fla. 1st DCA 2003) ("[W]hile the evidence in the instant case establishes that the former wife's home had at times been poorly kept and that her children were unkempt, these circumstances alone do not constitute a substantial and material change in circumstances."). Considering all the record evidence, we cannot conclude that the court abused its discretion in concluding there was no substantial change in circumstances to support the petition.

Finally, Garcia insists that "it is clear that it would be in [the child]'s best interests to reside with [him] the majority of the time. Init. Brief at 47. But "[t]he preliminary question of a substantial and material change is a prerequisite to considering the best interests of the child." Mesibov v. Mesibov , 16 So.3d 890, 892 (Fla. 5th DCA 2009) ; cf. also Jannotta v. Hess , 959 So.2d 373, 374 (Fla. 1st DCA 2007) ("Here, there was evidence that the former wife had ... remarried, improv[ed] her life financially and otherwise; and was somewhat better able than the former husband to provide a stable home for the children. However, we have repeatedly held that such evidence is insufficient to constitute a substantial and material change in circumstances justifying a change in custody.").

AFFIRMED .

B.L. Thomas, C.J., and Makar and Winsor, JJ., concur.

      § 90.503(3)(d), Fla. Stat.


author: SCALES, J.

text:
    Patrick G. FOSTER, Appellant, v. Monique S. CHONG, Appellee.
    No. 3D17-2807
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    Cain & Snihur, LLP, and May L. Cain, Aventura, for appellant.
    Law Offices of Kenneth M. Kaplan, and Kenneth M. Kaplan, for appellee.
    Before LOGUE, SCALES and LUCK, JJ.
   SCALES, J.

Appellant Patrick G. Foster, the petitioner below, appeals a "Final Judgment of Paternity, Time Sharing/Paternity Plan." Specifically, Foster challenges the Final Judgment on five grounds. Because (i) we are unable to conclude that the trial court's computation of Foster's child support obligation is supported by competent substantial evidence; and (ii) the Final Judgment neglects to order shared parental responsibility, we reverse and remand for further proceedings on these two issues, but otherwise affirm the Final Judgment.

Appellee Monique S. Chong, the respondent below, and Foster are the parents of a daughter born in 2011. After Chong and Foster separated in late 2012, Foster voluntarily paid $500 per month in child support, not pursuant to a court order. Foster ceased these monthly payments when Chong left Florida with their daughter and moved to Georgia without notifying Foster. In 2016, Foster filed the instant petition seeking a determination of paternity, timesharing and child support. After conducting a trial on the petition, the trial court entered a Final Judgment that: (i) determined it was in the best interests of the child to reside with Chong; (ii) outlined the parties' timesharing of the child; and (iii) required Foster to pay $1286 per month for child support. Foster appealed the Final Judgment.

The trial court made no written or oral findings to describe how it arrived at Foster's child support obligation, and therefore, the record is unclear as to whether this amount comports with the allocation requirements of chapter 61 of the Florida Statutes. As a result, we are unable to conclude that the child support award of $1268 is supported by competent substantial evidence and are compelled to reverse. See Van Exter v. Diodonet-Molina, 152 So.3d 699, 701 (Fla. 3d DCA 2014) ; see also Ondrejack v. Ondrejack, 839 So.2d 867, 871-72 (Fla. 4th DCA 2003) (holding that trial court must consider all appropriate statutory factors in determining child support and make specific findings therefor).

Additionally, the Final Judgment suggests, but does not establish with the necessary precision, that Chong and Foster will share parental responsibility. The trial court is required to order shared parental responsibility unless it finds that shared parental responsibility would be detrimental to the child. § 61.13(2)(c)2., Fla. Stat. (2017); Aranda v. Padilla, 216 So.3d 652, 653 (Fla. 4th DCA 2017).

Affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion.


author: Winsor, J.

text:
    Jonathan A. KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3027
    District Court of Appeal of Florida, First District.
    September 7, 2018 Rehearing Denied October 16, 2018
    Candice Kaye Brower, Office of Civil Regional and Criminal Conflict Counsel, Gainesville, and Michael Jerome Titus, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

Jonathan Knight was convicted of three counts of sexual battery on a child under twelve. On appeal he argues that he was denied the right to meaningful assistance of counsel as well as the right to confront witnesses against him. We affirm.

The morning of trial, the court considered the State's request to allow the victim-Knight's daughter-to testify through a closed-circuit television system pursuant to section 92.54, Florida Statutes. The State began by explaining how the process would work: At trial, the child would testify from the State Attorney's office, located upstairs in the courthouse. The prosecutor, defense counsel, and the judge would be in the room with the child, while Knight and the jury would watch live from the courtroom.

The court then heard testimony from a licensed clinical social worker who had counseled the child. The social worker opined that the child "would probably have significant emotional harm" if required to testify in open court. Defense counsel made a general Confrontation Clause argument but offered nothing to refute the social worker's opinion. The court granted the State's motion but did not make specific findings, despite a statutory requirement that it do so. See § 92.54(5), Fla. Stat. ("The court shall make specific findings of fact, on the record, as to the basis for its ruling under this section.").

While the attorneys were out of the courtroom setting up the equipment, Knight asked the court how he would speak to his attorney if he had questions during the victim's testimony. The court responded by saying "I really don't want to talk to you right now without your lawyer here." Neither Knight nor his attorney objected to the particular arrangements for the victim's testimony, and neither requested a means of communicating during the testimony.

Knight was ultimately convicted on all three counts and sentenced to concurrent terms of life in prison. He now argues that his convictions should be overturned because the trial court did not make specific findings in support of its order authorizing the victim's remote testimony and because he could not communicate with his counsel during that testimony.

"[I]t is recognized that the defendant's right to confront his accuser must give way to the State's interest in sparing child victims of sexual crimes the further trauma of in-court testimony." Ritchie v. State , 720 So.2d 261, 262 (Fla. 1st DCA 1998). Consistent with that interest, sections 92.53 and 92.54, Florida Statutes, allow children to testify by closed-circuit television or pre-recorded video in certain circumstances. The United States Supreme Court has upheld similar statutes against Confrontation Clause challenges, see Maryland v. Craig , 497 U.S. 836, 857, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), and the Florida Supreme Court has upheld Florida's law, see Hopkins v. State , 632 So.2d 1372, 1376 (Fla. 1994). However, both the United States Supreme Court and the Florida Supreme Court have acknowledged that the Constitution requires trial court judges to make case-specific findings before defendants can be denied face-to-face confrontation. Craig , 497 U.S. at 857, 110 S.Ct. 3157 ("The requisite finding of necessity must of course be a case-specific one: the trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify."); Leggett v. State , 565 So.2d 315, 318 (Fla. 1990) ("[T]he factual findings required by section 92.54 are necessarily related to the constitutional right to confrontation.").

First, a trial court's failure to make case-specific findings as required by statute can sometimes require reversal. See Feller v. State , 637 So.2d 911, 914 (Fla. 1994). But Knight did not preserve any argument on this point, and a court's failure to make the statutorily required findings is not fundamental error. Id. at 913-14 ; see also Hopkins , 632 So.2d at 1374-75. Therefore, the lack of findings does not provide any basis for reversal.

Second, Knight failed to preserve any argument that the court abused its discretion by failing to provide him a mechanism for communicating with counsel during the child's testimony. Although defendants have "the right to immediate and direct communication with counsel conducting cross-examination," § 92.54(4), Fla. Stat., this right must be specifically invoked, id. ("upon the defendant's re quest , such communication must be provided by any appropriate electronic method" (emphasis added) ); see also Myles v. State , 602 So.2d 1278, 1281 n.2 (Fla. 1992) ("All that is required is that the means of instantaneous communication be supplied if requested."). Defense counsel never requested that the court supply a means of communication, and Knight's questions posed directly to the court were insufficient to preserve the issue for appeal. Cf. Farina v. State , 937 So.2d 612, 629 (Fla. 2006) ("[F]ailure to obtain a ruling on a motion or objection likewise fails to preserve an issue for appeal."). We are therefore left to consider whether there was fundamental error, and we conclude there was not. Cf. Jackson v. State , 983 So.2d 562, 575-76 (Fla. 2008) (concluding that "the temporary absence of counsel, i.e., a partial deprivation," is not fundamental error).

AFFIRMED .

M.K. Thomas, J., concurs; Bilbrey, J., concurs in result with opinion.

I fully concur with the majority decision as to defense counsel's failure to preserve the trial judge's lack of case-specific findings as required by section 92.54(5), Florida Statutes.

As to the failure to provide a means for Jonathan Knight to communicate with his counsel during the out of court testimony by the child victim, I believe this issue was preserved. Knight's counsel raised the issue during the hearing conducted under section 92.54, and Knight personally raised the issue with the trial judge after counsel left the courtroom to set up the victim's video testimony. Knight should have been provided "immediate and direct communication" with his counsel during the victim's testimony. § 92.54(4).

However, I believe any error in this regard was harmless. The harmless error standard applies to constitutional error. See Goodwin v. State, 751 So.2d 537 (Fla. 1999). The harmless error standard therefore includes error regarding the right to counsel such as what occurred here. See Leerdam v. State , 891 So.2d 1046 (Fla. 2d DCA 2004). Knight's counsel conducted a thorough cross-examination of the child victim, consisting of over twice the amount of questions as she was asked on direct examination. His counsel had a clear understanding of the relevant facts including various family members' interactions with the victim. Knight's counsel repeatedly attempted to impeach the credibility of the victim both regarding the crimes at issue and fact-specific collateral matters. It is apparent that Knight and his counsel had planned for and discussed the questioning of the victim prior to it occurring.

Because I believe any error in denying Knight "immediate and direct communication" with his counsel was harmless, I agree that affirmance is the correct result. See State v. DiGuilio , 491 So.2d 1129 (Fla. 1986) ; Mincey v. State, 684 So.2d 236 (Fla. 1st DCA 1996).


author: CASANUEVA, Judge.

text:
    IN the INTEREST OF L.D.J., a child.
    M.W., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-378
    District Court of Appeal of Florida, Second District.
    Opinion filed September 14, 2018
    Ita M. Neymotin, Regional Counsel, Fort Myers, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Stephanie C. Zimmerman of Children's Legal Services, Bradenton, for Appellee Department of Children and Families.
    Thomasina Moore and Sara Elizabeth Goldfarb of Guardian ad Litem Program, Sanford; and Karla D. Ellis of Law Office of Karla D. Ellis, Tallahassee, for Appellee Guardian Ad Litem Program.
   CASANUEVA, Judge.

M.W. (the Mother) appeals the trial court's order adjudicating her daughter L.D.J. (the Child) dependent. We affirm the court's ultimate adjudication of dependency because its finding regarding the Mother's substance abuse was supported by competent substantial evidence. However, we accept the Appellees' concession that the court's conclusory findings were inadequate, and we agree with the Mother that the court lacked competent substantial evidence to find that her mental health presents a prospective risk of abuse or neglect. We therefore reverse in part and remand for correction of the order with respect to those two matters.

In its order adjudicating the Child dependent, which was entered after an adjudicatory hearing, the trial court found that "[t]he mother has issues with substance abuse, stability and mental health which if le[f]t unaddressed would place the child at harm." Those were the court's sole findings regarding the grounds for the adjudication. The Mother appeals that order, arguing that the court's findings were conclusory and inadequate and that the court lacked competent substantial evidence to adjudicate the Child dependent on the mental health and substance abuse grounds.

"We review a dependency adjudication for an abuse of discretion. We will uphold the ruling if the circuit court applied the correct law and its findings are supported by competent substantial evidence."

R.M. v. Dep't of Children & Family Servs., 40 So.3d 917, 917-18 (Fla. 2d DCA 2010) (citing C.J. v. Dep't of Children & Family Servs., 9 So.3d 750, 754 (Fla. 2d DCA 2009) ).

On the first issue, the Department of Children and Families and the Guardian ad Litem Program concede that the court's findings were insufficient. As we explained more fully in J.Z. v. Department of Children & Family Services, 106 So.3d 976, 978 (Fla. 2d DCA 2013), detailed findings are important in dependency cases because they allow for meaningful appellate review, they "help parents, counselors, and [Department] representatives understand what the court found to be the reasons for dependency and to plan for remedial action," and they "can prove critical to future determinations in the case." Id. (quoting J.C.G. v. Dep't of Children & Families, 780 So.2d 965, 967 (Fla. 5th DCA 2001) ) (alteration in original). The court's order in this case was insufficient to serve those purposes; it did not provide the statutory basis for the findings nor did it provide any evidence supporting the findings, leaving the parties and this court in the dark regarding the specific basis for the adjudication. Accordingly, we reverse on this issue and remand for the court to provide more detailed findings.

Despite the insufficiency of the court's order, due to the time-sensitive nature of dependency cases, we have proceeded to consider the Mother's challenges to the substance of the court's dependency adjudication. We agree with the Mother that the court lacked competent substantial evidence to adjudicate the Child dependent based on the Mother's alleged mental health issues. "Prospective risk of abuse, abandonment, or neglect may be found where a parent has an untreated mental health disorder ... [that] may cause the parent to act in a manner that harms the child." D.A. v. Dep't of Children & Family Servs., 84 So.3d 1136, 1139 (Fla. 3d DCA 2012). But "[a]bsent a sufficient nexus between a psychiatric disorder and the likelihood that a parent will substantially impair the [child's] physical, mental, or emotional health, ... an adjudication of dependency cannot stand." B.D. v. Dep't of Children & Families, 797 So.2d 1261, 1264 (Fla. 1st DCA 2001) (citing E.M.A. v. Dep't of Children & Families, 795 So.2d 183 (Fla. 1st DCA 2001) ).

In this case, the only evidence concerning the Mother's mental health was her own testimony that she had been diagnosed at some unstated point in time as having anxiety and depression. There was no testimony presented from any experts who examined the Mother, nor was there any testimony presented from any witness establishing that the Mother's mental health issues affect her ability to care for the Child. The simple fact of a diagnosis without any evidence of a nexus between the diagnosis and a risk of harm to a child is insufficient to support an adjudication of dependency. Cf. D.A., 84 So.3d at 1139 (affirming adjudication of dependency when there was expert testimony establishing that the father's mental health disorders affected his decision-making and had caused him to endanger his child in the past); S.S. v. Dep't of Children & Families, 81 So.3d 618, 623 (Fla. 1st DCA 2012) (reversing adjudication of dependency when "there was no expert testimony describing the disorder or establishing how it could result in harm to the children" and "the Mother testified that she [was] undergoing therapy for the problem and [did] not cut herself in front of the children"). Thus, the court lacked competent substantial evidence to conclude that the Mother has a mental health issue that poses a prospective risk of abuse or neglect, and the court's finding on this issue must be reversed.

While we reverse on those two issues, we affirm the court's finding that the Mother's substance abuse poses a prospective risk of abuse or neglect. "[A] parent's addictions can support a finding of prospective abuse or neglect sufficient to support an adjudication of dependency if the evidence establishes that the addiction will affect a parent's ability to provide and care for his or her child." B.C. v. Dep't of Children & Families, 846 So.2d 1273, 1275 (Fla. 4th DCA 2003). "In determining whether a substance abuse problem is 'ongoing,' and constitutes a present threat, a factor to consider is the proximity in time between an alleged act of drug use and the dependency proceeding." M.F. v. Dep't of Children & Families, 975 So.2d 622, 625 (Fla. 4th DCA 2008). And recent failed drug tests are sufficient to establish a parent's present substance abuse. See id. at 626. In this case, the Mother received three "therapeutic," or default, positive tests in the months leading up to the adjudicatory hearing as a result of her failure to submit to court-ordered drug tests, and there was no evidence that she ever produced a negative test. As a result, there was competent substantial evidence establishing the Mother's ongoing, present substance abuse.

After establishing present substance abuse, the Department was also required to show that the substance abuse will affect the Mother's ability to care for the Child. See B.C., 846 So.2d at 1275. On that point, testimony established that the Mother had taken Percocet one to five hours before embarking with the Child on a midnight road trip to Alabama and that she was visibly under the influence when law enforcement and a Department case worker met with her that evening. The combination of the therapeutic-positive drug screens and testimony showing her endangerment of the Child was sufficient to allow the court to find that her substance abuse will affect her ability to care for the Child. We therefore conclude that the court's finding regarding the Mother's substance abuse was supported by competent substantial evidence.

Accordingly, we affirm the portion of the trial court's order that adjudicates the Child dependent based on the Mother's substance abuse and stability (the latter of which the Mother did not challenge on appeal). We reverse the portion of the order concerning the Mother's mental health. Finally, we remand for the trial court to strike the mental health finding and to make additional findings of fact regarding the Mother's substance abuse and stability.

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

KELLY and ATKINSON, JJ., Concur.


text:
    Jennifer MASINO, Appellant, v. Theodore P. MASINO, Appellee.
    No. 1D18-450
    District Court of Appeal of Florida, First District.
    September 14, 2018 Rehearing Denied October 4, 2018
    Andrew D. Wheeler of The Wheeler Firm, Fort Walton Beach, for Appellant.
    David A. Carroll, Pensacola, for Appellee.
   Per Curiam.

The former wife raises six issues with the trial court's final judgment of dissolution. We reverse the imputation of income, which requires us to reverse the court's determinations of alimony and attorneys' fees as well; but we affirm the judgment in all other respects.

A trial court may impute income to a former spouse who is "voluntarily unemployed or underemployed due to the pursuit of his or her own interests, or a less than diligent effort to find employment paying at a level equal to that formerly enjoyed." Swain v. Swain , 932 So.2d 1214, 1215 (Fla. 1st DCA 2006). Before imputing income, the court is also required to make "particularized findings regarding work history, occupational qualifications, and the current job market in the community." Broga v. Broga , 166 So.3d 183, 185 (Fla. 1st DCA 2015). Those findings must be supported by competent, substantial evidence. Rabbath v. Farid , 4 So.3d 778, 782 (Fla. 1st DCA 2009). A failure to make the required findings constitutes reversible error. Broga , 166 So.3d at 186. Because alimony and attorneys' fees awards are based, at least in part, on the parties' incomes, a reversal of imputed income compels a reversal of these awards as well. Rabbath , 4 So.3d at 784-86.

In determining alimony, the trial court imputed income to the former wife without the requisite evidentiary support and without making the requisite particularized findings. The trial court determined that the former wife was voluntarily underemployed and could be making $92,000 a year based on data from the Bureau of Labor Statistics, but the BLS data does not appear in the record, and the court failed to make particularized findings on the local job market for a person with the former wife's occupational qualifications. See, e.g. , Broga v. Broga , 227 So.3d 239, 240-41 (Fla. 1st DCA 2017). We therefore reverse the imputation of income to the former wife.

Because the trial court expressly based the alimony award on the imputed income, we must reverse that portion of the final judgment as well. Finally, we must reverse the attorneys' fee award, because it is not clear from the record whether the trial court based the fee award on the former wife's actual or imputed income. On remand, the trial court must base alimony and fees on the former wife's actual income or on properly-supported imputed income.

We REVERSE the final judgment in part, AFFIRM it in part, and REMAND to the trial court for further proceedings.

Rowe, Osterhaus, and Kelsey, JJ., concur.