author: Forst, J.

text:
    Robert MORRILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-781
    District Court of Appeal of Florida, Fourth District.
    [April 3, 2019]
    Carey Haughwout, Public Defender, and Claire V. Madill, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Robert Morrill pled guilty to dealing in stolen property, false ownership, grand theft, and possession of a controlled substance. He pleaded in exchange for a withhold of adjudication, three years' probation, and his agreement to pay restitution. He raises four issues on appeal, and we reverse on one (and affirm without discussion regarding the other issues). We agree that the trial court erred in determining that the State met its burden of proving a stolen necklace was worth $ 2,200, and remand for further proceedings.

Background

At the change of plea hearing, the victim testified that his twenty-four inch, eighteen karat gold, Gucci necklace was taken. He noted that it had been given to him by his deceased partner as a gift, and thus had "extreme[ ]" sentimental value. As it was a gift, he did not have a sales receipt. The victim estimated its value at $ 2,200, explaining that "I priced other ones out for replacements and that was between 22 and 2400."

When asked, "Did you ever have it valued by any jeweler or any other way?," the victim responded that he "went on to comparison of what I had[,] that is how I got the evaluation, value of it." He did not proffer any documentation or evidence of the necklace's price, hearsay or otherwise. The victim did, however, note that he had possessed a photo of the necklace prior to the theft, but he had given it to law enforcement and it had not been returned.

Defense counsel objected, arguing the testimony did not establish the necklace's fair market value and was based on hearsay. The trial court found that property owners are generally qualified to testify as to their property's value. It concluded the victim corroborated his opinion with online research and ordered $ 2,200 in restitution for the necklace. This appeal followed.

Analysis

"A trial court's determination of the amount of restitution is reviewed for an abuse of discretion. The state bears the burden of proving the amount of restitution, and the restitution award must be supported by competent substantial evidence." Davis v. State , 244 So.3d 374, 377 (Fla. 4th DCA 2018) (citation omitted). The evidence of restitution "must be established through more than mere speculation; it must be based on competent evidence." Bennett v. State , 944 So.2d 524, 525 (Fla. 4th DCA 2006) (quoting Glaubius v. State , 688 So.2d 913, 916 (Fla. 1997) ).

Fair market value is the standard for restitution, unless it would inadequately compensate the victim, such as theft of a family heirloom. Davis , 244 So.3d at 377. While victims are qualified to testify to the value of their property, they must testify directly to fair market value or establish it with evidence of the following four factors: "(1) original market cost; (2) manner in which the item was used; (3) the general condition and quality of the item; and (4) the percentage of depreciation." State v. Hawthorne , 573 So.2d 330, 332 (Fla. 1991).

This Court has remanded after the failure to prove some of the four elements numerous times. See, e.g. , Toole v. State , 44 Fla. L. Weekly D512, --- So.3d ----, 2019 WL 761620 (Fla. 4th DCA Feb. 20, 2019) (testimony as to the original price and the "guesstimated" replacement value determined to be inadequate); T.D.C. v. State , 117 So.3d 809, 811 (Fla. 4th DCA 2013) (remanding because the court did not have evidence of the fair market value at the time of the theft); Thompson v. State , 68 So.3d 425, 427 (Fla. 4th DCA 2011) (remanding when only evidence of purchase date and price was presented); Wolff v. State , 981 So.2d 651, 653 (Fla. 4th DCA 2008) (remanding due to "absen[ce] of any evidence of the fair market value of the stolen equipment").

"Where restitution is part of a plea bargain, it should be liberally construed in favor of making the victim whole." Yaun v. State , 898 So.2d 1016, 1017 (Fla. 4th DCA 2005) (quoting Hercule v. State , 655 So.2d 1256, 1257 (Fla. 3d DCA 1995) ). Additionally, "where a plea agreement leaves restitution to the trial court's discretion, reversal is not warranted absent a clear showing that the trial court abused its discretion." Id. (citing Montalvo v. State , 705 So.2d 984, 986 (Fla. 3d DCA 1998) ). Nonetheless, even under this more liberal standard of review, as the State in this case failed to provide competent evidence as to any of the Hawthorne factors, we must conclude that the trial court's holding constitutes an abuse of discretion.

The victim expressly testified to an estimated replacement value of the necklace, not the original market cost (which was unknown). This "estimate" was based merely on the victim noting that he had "priced other ones out for replacements and that was between 22 and 2400." Although the court found that victim corroborated his opinion with online research, the victim did not identify the sources that he relied upon for his estimates. If he did, in fact, use the internet, there was no evidence of the details of his internet search and the results of that search. Regardless of how the victim made the comparison to reach his estimate, the victim appears to have relied entirely on hearsay.

Using websites, catalogs, or contacts with non-witnesses to price the value of an item constitutes reliance on hearsay. Phillips v. State , 141 So.3d 702, 704 (Fla. 4th DCA 2014). "Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to the hearsay evidence." Id. (quoting Conway v. State , 115 So.3d 1058, 1059 (4th DCA 2013) ). Here, defense counsel made several hearsay objections to the State's evidence regarding the necklace's value.

The State presented no testimony as to the condition, depreciation, or the manner of use. Importantly, the State did not provide the weight of the necklace (which may have been estimated from a competent description of the necklace), nor did it seek to establish the price of gold at the time of the theft.

Our recent decision in Toole recognized that "proving restitution continues to be difficult for victims, and receiving compensation for their loss continues to be elusive." 44 Fla. L. Weekly D512, --- So.3d ----. The Toole opinion acknowledges the recent amendment of the Florida Constitution to incorporate "Marsy's Law," and the opinion certifies, as a question of great public importance, whether the Hawthorne "formula for determining restitution based on the fair market value of the victim's property [is] still viable after the passage of Amendment 6 (Marsy's Law) ...." Id. at D513, --- So.3d at ---- (citing Art. I, § 16, Fla. Const. (2018) ).

In the meantime, we note Amendment 6 includes a requirement that victims are to be "provided with assistance collecting restitution." Id. at D512, --- So.3d ---- (citing Art. I, § 16 ). Here, the State did not satisfactorily provide this assistance. In fact, there is no evidence that the State attempted to retrieve a photo of the stolen necklace from local law enforcement. The photo may have assisted the victim in establishing the condition and the thickness and/or weight of the stolen necklace. Nor did the State provide support for the victim's effort to establish the replacement cost as more than a mere "guesstimate." See id. (holding that the lack of testimony about manner of use, general condition, quality and depreciation, as well as the "guesstimates" of replacement cost was insufficient to establish fair market value.).

Conclusion

We recognize that imposing evidentiary hurdles to the establishment of the value of a stolen item somewhat serves to put the victim on trial. Nonetheless, as set forth above, the evidence presented of the necklace's fair market value was negligible. We thus reverse and remand to the trial court for a new restitution hearing. See, e.g. , McInerney v. State , 213 So.3d 933, 936 (Fla. 4th DCA 2017) (reversing and remanding for a new hearing on the amount of restitution); David v. State , 187 So.3d 947, 947 (Fla. 4th DCA 2016) (same).

Affirmed in part, reversed in part, and remanded for a new restitution hearing.

Gross and Conner, JJ., concur.


source: Caselaw Access Project

author: Warner, J.

license: Public Domain

text:
    J.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1719
    District Court of Appeal of Florida, Fourth District.
    [April 3, 2019]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant challenges his adjudication of delinquency for attempted armed robbery and his commitment to a maximum risk residential program. As to his adjudication, he contends that the court erred in proceeding with the adjudicatory hearing without his presence and over his attorney's objection. As to his disposition, he argues that the court erred in proceeding with his disposition without a completed comprehensive evaluation. Because the trial court did not abuse its discretion in concluding that J.R. voluntarily absented himself from the adjudicatory hearing after its commencement, we affirm his adjudication. However, we reverse the disposition and commitment, as the comprehensive evaluation is mandatory pursuant to the statute.

The State charged appellant, as a juvenile, with attempted armed robbery. While J.R. was present at the commencement of the adjudicatory hearing, the hearing was continued, and he failed to appear on the date of the continued hearing. His attorney told the court that she had spoken to J.R. the day before the hearing, and he promised to be there at 9 a.m. Because of J.R.'s non-appearance, a capias was issued, and he was arrested six months later. When he was released, he was advised by the judge herself of the date of his continued adjudicatory hearing. He failed to appear. His juvenile probation officer told the court that she had contacted appellant's mother and informed her of the necessity of appellant's appearance. The evidentiary portion of the hearing concluded, and to provide appellant an additional opportunity to appear, the court held closing arguments the following day. The juvenile probation officer called his residence again to inform him of the proceedings, but he could not be reached. The court adjudicated him guilty of attempted armed robbery.

When the disposition hearing was set and reset again, because of his absence and the lack of a completed predisposition report, appellant was located in Georgia, where he had been arrested and was being held without bond. Because he was not present, and Georgia would not extradite him, the Department of Juvenile Justice could not perform a comprehensive evaluation to include in the Predisposition Report. Despite the lack of the evaluation, the court proceeded with disposition and sentenced him to a maximum risk residential program. He appeals both the adjudication and disposition.

The trial court concluded that J.R. was voluntarily absent from the disposition hearing, i.e., that he had waived his right to be present. Persons convicted of crimes can be sentenced without being present when they, with actual knowledge of the scheduled hearing, voluntarily absent themselves. See Capuzzo v. State , 596 So.2d 438, 440 (Fla. 1992). An appellate court reviews a disposition order to determine whether the trial court abused its discretion in finding that a defendant voluntarily absented himself from the proceedings. Id.

Florida Rule of Juvenile Procedure 8.100(c) provides:

(c) Absence of the Child . If the child is present at the beginning of a hearing and during the progress of the hearing voluntarily absents himself or herself from the presence of the court without leave of the court , or is removed from the presence of the court because of disruptive conduct during the hearing, the hearing shall not be postponed or delayed, but shall proceed in all respects as if the child were present in court at all times.

(second emphasis added). In analyzing the similar adult rule of procedure, Florida Rule of Criminal Procedure 3.180(b), Capuzzo reasoned that where the defendant absents himself from the proceeding, his actions constitute a waiver of his right to be present for a trial, adjudication, and sentencing. Capuzzo , 596 So.2d at 439-40. "A contrary rule of law would be repugnant to the rationale behind rule 3.180, which inherently dictates that defendants cannot be allowed to thwart or impede the judicial process through their own misconduct." Id. at 440 (citing State v. Melendez , 244 So.2d 137, 139 (Fla. 1971) ).

The appellant failed to appear, not once but twice, during the progress of the hearing. The court even directly advised him of the date of the second continuation. The trial court was within its discretion to conclude that his absence from the continued hearing was voluntary. We affirm the adjudication, despite the absence of the appellant from the proceedings.

After adjudicating appellant guilty, the court proceeded with a disposition hearing. There was some urgency because appellant's nineteenth birthday was approaching, and the court concluded that it must complete the sentence before that date, otherwise it would lose jurisdiction. The court ordered a predisposition report because the State requested that appellant be placed in a maximum risk facility. The Department, however, did not complete the report, as it could not conduct a comprehensive evaluation of appellant, who was incarcerated in Georgia. After discussions with the Department and the juvenile probation officer, the court held a disposition hearing. The Department presented its predisposition report, but it did not include a comprehensive evaluation due to the absence of appellant. The court sentenced appellant into a high risk facility.

Section 985.185(1), Florida Statutes (2018), provides, "A comprehensive evaluation for physical health, mental health, substance abuse, academic, educational, or vocational problems shall be ordered for any child for whom a residential commitment disposition is anticipated or recommended by an officer of the court or by the department." This requirement is repeated in section 985.43(1)(b), Florida Statutes (2018), which provides that a summary of the evaluation must be included in the predisposition report. The requirement of a comprehensive evaluation is mandatory, and strict compliance with the statutory provisions regarding juvenile disposition hearings is required. See K.D. v. State , 911 So.2d 885, 886 (Fla. 1st DCA 2005). The court errs when it proceeds with a disposition involving residential commitment without obtaining the comprehensive evaluation. K.P. v. State , 97 So.3d 966, 967 (Fla. 4th DCA 2012).

The State contends that appellant absconded and made himself unavailable to complete the required evaluation. It analogizes the situation to one of invited error. However, the statute mandates a comprehensive evaluation, and it even provides for the child to be taken into custody following adjudication in order for the evaluation to be completed. See § 985.43(1)(c), Fla. Stat. There is no exception to the evaluation requirement when a juvenile absconds, and this court cannot create an exception to the statute. Thus, reluctantly, we reverse the disposition and remand for further proceedings.

Affirmed in part; reversed in part and remanded for further proceedings.

Gross, J., and Weiss, Daliah, Associate Judge, concur.


author: May, J.

text:
    Frederick SCIRE, Appellant, v. Nicole HOCHMAN, Appellee.
    No. 4D18-1606
    District Court of Appeal of Florida, Fourth District.
    [April 10, 2019]
    Jennifer E. Reisler of Beaulieu-Fawcett Law Group, P.A., Delray Beach, for appellant.
    Nicole Hochman, Boynton Beach, pro se.
   May, J.

The father appeals an attorney's fees award entered following a modification order in a paternity action. He makes numerous arguments concerning the court's calculation of the fee award. We find merit in two issues raised: (1) the court's failure to make findings concerning the payment plan; and (2) the court's failure to determine the hours expended by the mother's counsel in awarding fees. We therefore reverse and remand on these issues.

Following the entry of an Agreed Final Judgment Establishing Paternity, Time Sharing and Child Support, the mother petitioned for an upward modification of child support and other related relief. That petition resulted in a Final Judgment on Modification ("2017 Modification Order"). The 2017 Modification Order increased the father's child support obligation and reserved jurisdiction on attorney's fees.

The father timely appealed the 2017 Modification Order. We affirmed. Scire v. Hochman , No. 4D17-3618, 2019 WL 1076784 (Fla. 4th DCA Mar. 7, 2019).

The trial court heard the mother's request for attorney's fees. The father advised the court he had received his 2017 W-2, which reflected a substantial decrease in his income. The court sua sponte took judicial notice of the 2017 Modification Order and stated it would not re-litigate the income issue. The father objected to the court excluding evidence of his current income; the trial court overruled the objection.

The mother introduced her January 2017 and March 2017 financial affidavits in support of her need for fees. She introduced the father's 2017 updated financial affidavit in support of his ability to pay.

The trial court orally found the father had the ability to pay and directed the parties to present evidence on the amount of attorney's fees and costs.

The mother's counsel informed the trial court that she sought $ 16,610.50 in fees, less reductions for improper time such as travel. Counsel explained she arrived at the figure by using the balance on the last invoice of $ 18,888, subtracting $ 3,177 owed from a prior proceeding, and adding $ 450 per month ($ 900) for her anticipated fee for March and April. She also sought an additional $ 3,800, representing $ 800 paid by the mother in August 2017 and $ 3,000 paid in September 2017.

The trial court indicated it would not award fees for travel time, e-filing, uncertified paralegal time, time related to the notice of appeal, or time when counsel was withdrawn. It awarded the mother attorney's fees and costs of $ 16,610.50, plus the $ 3,800 previously paid by the mother, less the amounts excluded. The trial court indicated the father would need a payment plan and ordered him to pay the award over a five-year period with no interest at a rate of $ 333 a month.

The father now appeals.

The father argues the trial court erred in failing to make findings on: (1) the necessity of a payment plan; (2) the five-year duration; and (3) the father's ability to make the $ 333 monthly payment based on his income. "[W]hile the trial court has discretion to allow payment of an award of attorney's fees over time, it must set forth some factual basis for imposing the specific payment plan selected." Rogers v. Rogers , 12 So.3d 288, 292 (Fla. 2d DCA 2009).

Here, the trial court orally stated "[y]our client is going to need a payment plan." "I'll break it up over five years with no interest. That's a month." But, the order did not make findings to support the court's conclusion.

Factual findings for the payment plan must be made. Beckstrom v. Beckstrom , 183 So.3d 1067, 1069 (Fla. 4th DCA 2015). Their absence requires us to reverse and remand the case to the trial court to make the requisite findings. Id.

The father next argues the trial court failed to make a finding on the hours reasonably expended in this litigation.

We review an attorney's fees award for an abuse of discretion. Campbell v. Campbell , 46 So.3d 1221, 1222 (Fla. 4th DCA 2010).

The fee order contained the following findings:

• The time expended was reasonable;
• The attorney charged an hourly rate of $ 175, which was fair;
• Total attorney's fees and costs were $ 20,410.50, which consisted of $ 16,610.50 due and owing to the mother's counsel and $ 3,800.00 for fees the mother already paid; and
• The father can have five years to repay these fees at a rate of $ 333 per month.

In determining the reasonableness of attorney's fees, the court should consider:

(1) the time and labor required, the novelty and difficulty of the issues, and the legal skill required; (2) the likelihood that the representation will preclude other employment by the lawyer; (3) the customary fee; (4) the result obtained; (5) the time limitations imposed by the client or circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyers; and (8) whether the fee is fixed or contingent.

Id. at 1222-23 (citation omitted).

Here, the mother's counsel testified and introduced a fee affidavit, attaching retainer agreements and monthly invoices. Counsel testified to the number of hours billed during the pendency of the modification proceedings. The fee affidavit showed the initial $ 1,500 the mother paid. Attached invoices reflected the mother incurred fees and costs of $ 25,847.50 based on a billing rate of $ 150 per hour. The affidavit did not reflect the total hours worked on the case.

The trial court's order reflected that the hours and hourly fee were reasonable, but it did not indicate how many hours were reasonable. In short, the order lacked the required finding of number of hours reasonably expended.

Neither the fee order, the transcript, nor the fee affidavit contained the requisite findings of the number of hours spent nor how the trial court determined the total amount of attorney's fees owed. "In circumstances where the record may contain competent, substantial evidence to support these specific findings, but the trial court's order omits such findings, the case should be remanded for entry of an appropriate order." Ingram v. Ingram , 59 So.3d 147, 148 (Fla. 1st DCA 2011).

We therefore reverse and remand the case to the trial court for further proceedings.

Reversed and remanded for proceedings consistent with this opinion.

Ciklin and Klingensmith, JJ., concur.

      The father argued the court erred in: (1) relying on his 2016, rather than his 2017, income; (2) failing to make findings concerning the parents' "net" income; and (3) awarding the mother attorney's fees and costs based on his gross income.

      The father also claims there is a mathematical error in the fee order (an award of $ 1,224.50). Because the trial court will have an opportunity to review the order, it can review the hours expended between the father's filing and the mother initial answer and counter-petition.


author: Per Curiam.

text:
    Raymond PLATT, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2231
    District Court of Appeal of Florida, Fourth District.
    [April 10, 2019]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant appeals his sentence raising six issues. We remand on one of these issues and otherwise affirm without discussion. The State concedes the trial court erroneously added 3.2 points for prior convictions more than fifteen years old. Defendant challenged the inclusion of the priors in a Florida Rule of Criminal Procedure 3.800(b)(1) motion, and the State declined to provide competent evidence demonstrating the appellant's release "from confinement, supervision, or other sanction" within ten years of the new offense.

Fla. R. Crim. P. 3.704(d)(14)(A) ; cf. Dresch v. State , 150 So.3d 1199, 1200 (Fla. 4th DCA 2014) (holding the State was required to provide competent evidence that the defendant had committed the crimes listed on his scoresheet when he challenged the inclusion of the crimes in a rule 3.800(b)(1) motion). Accordingly, we remand with instructions to the trial court to correct the scoresheet. See Naugle v. State , 244 So.3d 1127, 1128 (Fla. 4th DCA 2018). We do not remand for resentencing, however, because "the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet." Id. (quoting Brooks v. State , 969 So.2d 238, 241 (Fla. 2007) ).

Affirmed; remanded for correction of scoresheet only.

Damoorgian, Conner and Forst, JJ., concur.


author: Levine, J.

text:
    Jeannine Lara MAGUIRE-RESS, Appellant, v. Brett STETTNER, individually, d/b/a Stettner Investment Diamonds, and Stettner Industries, Inc. Appellees.
    No. 4D18-2742
    District Court of Appeal of Florida, Fourth District.
    [April 17, 2019]
    Eric A. Simon, Boca Raton, for appellant.
    Thomas Regnier of Tom Regnier Appeals, P.A., Sunrise, for appellees.
   Levine, J.

Appellee, a jewelry dealer, filed a replevin action seeking to recover sixteen items from appellant, his ex-girlfriend. The items included jewelry, decorative items, and other accessories valued by the ex-boyfriend at $ 200,000. The trial court granted summary judgment in favor of the ex-boyfriend, and the ex-girlfriend appealed raising several arguments. We find one of these arguments to have merit and reverse.

The parties began dating while the ex-girlfriend was in the midst of a divorce. The relationship eventually ended, and the ex-boyfriend filed a complaint to recover sixteen items from the ex-girlfriend that he claimed to have brought to the ex-girlfriend's home for her to use temporarily while they were dating. The items included a promise ring, pieces of art, fashion accessories, and jewelry. The ex-girlfriend claimed as a defense that the ex-boyfriend had in fact gifted her the items during the relationship. The ex-boyfriend responded that he never intended that the items be gifts.

The ex-boyfriend moved for summary judgment. In support of his motion, he cited the ex-girlfriend's deposition testimony from her divorce case. During this deposition, the ex-girlfriend was asked about items she had received from the ex-boyfriend, who at the time was her new boyfriend:

[Q]: And what items or personal property of Mr. Stettner's are in your house?
....
[A]: There's an art piece that's like a crystal or a glass thing of a girl and a boy, there's a Tiffany ashtray, there's probably more like some art pieces.
....
[Q]: Okay. Has he bought you gifts?
[A]: I think.
[Q]: Besides your ring.
[A]: I think a bottle of perfume or something. Like little things like maybe perfume.

The ex-boyfriend contended that this deposition testimony contradicted the claim that the sixteen items were a gift by him and in fact demonstrated the ex-girlfriend's understanding that the items-including the glass sculpture, Tiffany ashtray, and art pieces-belonged to him and were not gifts. The ex-girlfriend maintains that the deposition testimony did not support summary judgment, as during the deposition she had merely minimized the number of gifts from the ex-boyfriend so as not to anger her husband at the time.

Our standard of review for an order granting summary judgment is de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000). Summary judgment is proper if there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. Id. "Summary judgment may be granted only where the facts are so crystallized that nothing remains but questions of law." Vander Voort v. Universal Prop. & Cas. Ins. Co. , 127 So.3d 536, 538 (Fla. 4th DCA 2012).

"The party moving for summary judgment must factually refute or disprove the affirmative defenses [to summary judgment] raised, or establish that the defenses are insufficient as a matter of law." 770 PPR, LLC v. TJCV Land Tr. , 30 So.3d 613, 618 (Fla. 4th DCA 2010). Here, we find that the ex-boyfriend failed to "factually refute or disprove" the ex-girlfriend's gift defense. See id. The elements of that defense are "(1) present donative intent, (2) delivery, and (3) acceptance by donee." Sullivan v. Am. Tel. & Tel. Co. , 230 So.2d 18, 20 (Fla. 4th DCA 1969).

The ex-boyfriend's own summary judgment evidence-the deposition testimony-left open an issue of material fact as to donative intent. Specifically, the ex-girlfriend's divorce deposition stated that he gave her some "little things." It is not clear that these "little things" do not include any of the items listed in the complaint for replevin. Because "little things" might be understood to include some or all of the sixteen items at issue, there remains an issue of material fact: whether the ex-boyfriend in fact gave those items to the ex-girlfriend as a gift.

Because a genuine issue of material fact remained, summary judgment was improper. See Aberdeen at Ormond Beach , 760 So.2d at 130. As there remains a material issue of fact as to whether the items were a gift, we reverse for further proceedings consistent with this opinion.

Reversed and remanded.

Warner and Gross, JJ., concur.


text:
    Fred GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3527
    District Court of Appeal of Florida, Fourth District.
    [April 17, 2019]
    Fred Gray, Quincy, pro se.
    No appearance for appellee.
    ON REMAND FROM THE SUPREME COURT OF FLORIDA
   Per Curiam.

Upon remand from the Florida Supreme Court, we reverse appellant's sentence in accordance with State v. Lewars , 259 So.3d 793 (Fla. 2018), and remand for resentencing.

Warner, Conner and Kuntz, JJ., concur.


author: Taylor, J.

text:
    Eddie Vincent RUTLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3659
    District Court of Appeal of Florida, Fourth District.
    [April 17, 2019]
    Carey Haughwout, Public Defender, and Siobhan Helene Shea, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Following the second trial in this case, Eddie Rutledge appeals his convictions and sentences for first-degree murder and conspiracy to commit first-degree murder. We affirm on all issues. We write solely to address appellant's argument that because he was acquitted at his first trial of solicitation to commit murder, collateral estoppel barred the State from introducing evidence that he solicited an acquaintance to murder the victim.

Appellant and his co-defendant, Kenakil Gibson, were charged with first-degree murder with a firearm, conspiracy to commit first-degree murder, and solicitation to commit first-degree murder. Appellant and the co-defendant were tried separately. At appellant's first trial, he was convicted of first-degree murder and conspiracy to commit first-degree murder, but he was acquitted of the solicitation charge. We reversed appellant's convictions in Rutledge v. State , 150 So.3d 830 (Fla. 4th DCA 2014), due to the trial court's error in failing to inquire into a potential conflict between appellant and his counsel.

Appellant proceeded to a second trial on the first degree murder and conspiracy charges. The evidence at the second trial, which was substantially similar to the evidence at the first trial, showed the following facts relevant to this opinion.

On the night of November 25, 2007, the victim, George Mannarino, was shot and killed while standing in the open garage of his home. The victim was scheduled to testify the next day in a burglary case against appellant and the co-defendant. The burglary had occurred at the victim's next door neighbor's home.

The police responded to the scene of the murder. The police found a rifle with an attached scope in some bushes across the street from the victim's home. The State's forensic scientist determined that appellant was a source of DNA profiles on the trigger, trigger guard, and hammer of the rifle.

On the evening of the shooting, one of the victim's neighbors heard a loud sound and saw a male running between some houses across the street. The male then got into the back seat of a dark-colored sedan, which took off quickly.

Another neighbor heard a "pop" and then saw a green Ford Crown Victoria or a Mercury Grand Marquis car coming around the corner with its headlights off and its tires screeching. This neighbor testified that the model year of the car appeared to be between 2000 and 2006. At the time of the murder, appellant owned a green 1999 Mercury Grand Marquis.

Less than one week before the murder, appellant brought a rifle to a gun store and paid to have a scope mounted onto it. The State presented evidence that the rifle appellant brought into the gun store was the same rifle found in the bushes near the crime scene. The State also presented evidence that in 2006 the co-defendant was in possession of the same rifle at his apartment and allowed a friend to have his picture taken with the rifle.

A search of the co-defendant's computers showed that: (1) an internet search for the victim's name was conducted in February 2007, and (2) an internet search for the victim's address was conducted in April 2007.

Over appellant's objection that he had been acquitted of solicitation at the first trial, the State offered testimony that appellant and the co-defendant solicited an acquaintance to murder the victim.

Specifically, the acquaintance testified that, about a week or two before the murder, he was at appellant's house to buy drugs. Appellant told him, in the presence of the co-defendant, that "we need you to kill somebody for us." The acquaintance replied that he did not do such things, but that he "could try to find somebody for you." Appellant took the acquaintance to a computer where he showed him a picture of the victim and the location of the victim's neighborhood. Appellant explained that the victim was the only witness who could identify him and the co-defendant at an upcoming burglary trial. The acquaintance told appellant that what he was asking to be done "might cost a pretty penny." Appellant then asked the co-defendant if he would pay for half the cost, and the co-defendant said "yeah." However, when the acquaintance indicated that he didn't know if he could find someone by the time appellant and the co-defendant "wanted it done," the co-defendant said, "F this, I'll do it myself."

At the conclusion of the second trial, the jury found appellant guilty as charged on both counts.

On appeal, appellant argues that the collateral estoppel component of double jeopardy barred the State from introducing the acquaintance's testimony that appellant solicited him to commit murder, as this testimony was the factual basis for the solicitation charge for which he was acquitted at the first trial. We disagree and conclude that collateral estoppel does not apply under the circumstances of this case.

"Whether collateral estoppel precludes litigation of an issue is reviewed de novo." Criner v. State , 138 So.3d 557, 558 (Fla. 5th DCA 2014).

The doctrine of collateral estoppel "is embodied in the Fifth Amendment guarantee against double jeopardy." Ashe v. Swenson , 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Collateral estoppel "precludes the State from seeking a redetermination of evidentiary facts as well as ultimate facts in order to establish the fact of the crime charged." Hilaire v. State , 799 So.2d 403, 405 (Fla. 4th DCA 2001). Evidence concerning an issue should be excluded under the principle of collateral estoppel where: (1) the issue sought to be litigated is sufficiently similar to the issue presented in an earlier proceeding and sufficiently material in both actions; (2) the issue was actually litigated in the prior proceeding; and (3) the issue was necessarily decided in the prior proceeding. Id.

In Hilaire , for example, we held that collateral estoppel barred the State from introducing evidence concerning a crime for which the defendant had previously been acquitted at his first trial, even though the evidence was relevant to prove the defendant's consciousness of guilt on a different charge that was not barred from retrial. Id. at 404-06. Thus, as a general proposition, "evidence of crimes for which a defendant has been acquitted is not admissible in a subsequent trial." State v. Perkins , 349 So.2d 161, 164 (Fla. 1977).

The collateral estoppel component of the double jeopardy clause does not, however, bar the government from retrying a defendant after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal, and the convictions are later vacated for legal error unrelated to the inconsistency. Bravo-Fernandez v. United States , --- U.S. ----, 137 S.Ct. 352, 362-63, 196 L.Ed.2d 242 (2016). Stated another way, a defendant cannot meet the burden of demonstrating that an issue was actually decided by a prior jury's acquittal "when the same jury returns irreconcilably inconsistent verdicts on the question she seeks to shield from reconsideration." Id. at 359. Thus, an acquittal does not support the application of issue preclusion "when inconsistent verdicts shroud in mystery what the jury necessarily decided." Id. at 366.

Here, although collateral estoppel would usually bar evidence of a crime for which appellant was acquitted at a previous trial, we conclude that the jury in the first trial returned a factually inconsistent verdict by acquitting appellant of the solicitation charge while convicting him of the conspiracy charge. Under the facts of this case, the first jury could not have found beyond a reasonable doubt that appellant and the co-defendant had an agreement to murder the victim unless the first jury relied upon the acquaintance's testimony that appellant and the co-defendant solicited him to murder the victim or to hire someone else to do so.

The acquaintance's testimony that appellant and the co-defendant solicited him to kill the victim was the key evidence establishing that appellant and the co-defendant conspired to murder the victim. Although there was other evidence suggestive of a conspiracy between appellant and the co-defendant to murder the victim, the acquaintance's testimony concerning the solicitation was necessary to prove the conspiracy beyond a reasonable doubt. Moreover, it is impossible to separate the acquaintance's testimony concerning the solicitation from his testimony demonstrating that appellant and the co-defendant conspired to have the victim murdered.

Because the first jury convicted appellant of conspiring with the co-defendant to murder the victim but simultaneously acquitted him of the solicitation that proved the existence of the conspiracy beyond a reasonable doubt, the original verdict was irreconcilably inconsistent. Therefore, applying the rule of Bravo-Fernandez , we hold that collateral estoppel did not bar the acquaintance's testimony concerning the solicitation, because the first jury's acquittal on the solicitation charge was factually inconsistent with its conviction on the conspiracy charge.

In short, appellant's acquittal of the solicitation charge at the first trial did not have issue-preclusive effect, because the first jury's inconsistent verdict shrouded in mystery what the first jury necessarily decided. Thus, under the circumstances of this case, the State was not barred from introducing testimony about the solicitation to establish that appellant and the co-defendant conspired to murder the victim.

Affirmed.

Gerber, C.J., and Kuntz, J., concur.

      While appellant never used the magic words "collateral estoppel" below, the substance of appellant's argument was that admitting the acquaintance's testimony about the solicitation would violate double jeopardy principles because appellant was acquitted of solicitation at the first trial. Given that collateral estoppel is a component of double jeopardy, appellant's argument was sufficiently specific to inform the trial court of the alleged error. Thus, the issue was preserved for review.


author: Gerber, C.J.

text:
    Stephen Kenneth BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3270
    District Court of Appeal of Florida, Fourth District.
    [April 17, 2019]
    Stephen Kenneth Brown, Lake City, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Jonathan P. Picard, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant filed a Florida Rule of Criminal Procedure 3.850 motion for postconviction relief, alleging that the Department of Corrections' ("Department") forfeiture of his gain time thwarted the intent of his plea agreement. The circuit court summarily denied the defendant's motion as facially insufficient. The defendant argues the circuit court erred in denying his motion as legally insufficient and without attaching any portion of the record conclusively refuting his claim.

We agree with the defendant's argument. All of our sister courts have found it sufficient for a defendant to allege that the Department's forfeiture of gain time has thwarted the intent of the plea agreement for a particular length of sentence , which the defendant alleged here. Thus, in this case, the circuit court was required to either attach records conclusively refuting the defendant's claim or hold an evidentiary hearing.

Procedural History

The defendant entered a no contest plea to aggravated battery on a person sixty-five years or older and false imprisonment. On both counts, the circuit court sentenced the defendant as a habitual felony offender to concurrent terms of three years' imprisonment, to be followed by concurrent terms of probation (five years on the aggravated battery count and one year on the false imprisonment count).

After his release from prison, the defendant violated his probation based upon a new law violation. The defendant and the state entered into a plea agreement. Page one of the court's disposition order indicated that the defendant received a 55-month prison sentence with credit for 592 days' time served. Page two of the court's disposition order, within a section entitled "Special Conditions of Prison Sentence," a box was checked stating: "To be given credit for all time previously served in prison, to be calculated by [the Department]."

The defendant later filed the underlying Rule 3.850 motion. The defendant characterized his plea agreement as having "agreed to plead guilty to the violation for a specific sentence of 55 months, with 592 day[s] time served for jail credit with credit for ALL time previously served in prison." The defendant then alleged that after his return to prison for the probation violation, the Department "audited the defendant's sentence to 592 [days] county jail time credit, and 501 [days] prison credit, forfeiting 156 days of prior gain time." The defendant claimed that the Department's "forfeiture of 156 days of the Defendant's gain time after he was sentenced thwarted the intent of his plea agreement that he serve 55 months in prison because it results in a sentence of 55 months and 156 day's [sic] imprisonment." The defendant acknowledged that the Department had the statutory authority to revoke his gain time without being countermanded by the circuit court. However, the defendant argued that such statutory authority did not give the Department the ability to "thwart the intent of the Defendant's plea agreement of 55 months." Thus, the defendant requested that the circuit court resentence him in a manner which would effectuate the intent of his plea agreement after considering the Department's forfeiture of gain time.

The state responded that the defendant's motion should be summarily denied as facially insufficient for two reasons: (1) gain time is a collateral consequence, of which neither the circuit court nor counsel was required to advise the defendant; and (2) the defendant did not allege that he was assured a certain amount of gain time as a result of his plea. The state attached to its response only the circuit court's sentencing orders, and no other documents.

The circuit court summarily denied the defendant's motion. The order mirrored the state's response that the defendant's motion was facially insufficient for the two reasons stated above.

This Appeal

This appeal followed. We review de novo an order summarily denying a motion for postconviction relief to determine whether the record conclusively refutes the movant's claims or whether the movant's claims fail as a matter of law. Tibbetts v. State , 251 So.3d 198, 200 (Fla. 4th DCA 2018).

The defendant argues the circuit court erred in denying his motion as legally insufficient and without attaching any portion of the record conclusively refuting his claim that the Department's forfeiture of his gain time thwarted the intent of his plea agreement. We agree.

On the circuit court's first reason for denying the defendant's motion, we recognize that forfeiture of gain time is a collateral consequence, and that neither the circuit court nor counsel was required to forewarn the defendant about that collateral consequence. See Ortiz v. State , 227 So.3d 682, 684 (Fla. 3d DCA 2017) ("Gain time, good time, provisional credit time, and additional mitigating credits are all collateral consequences of a guilty plea... [N]either the trial court nor counsel is required to forewarn a defendant about every conceivable collateral consequence of a plea to criminal charges.") (citation omitted). However, the failure to advise the defendant of the possible forfeiture of gain time was not the basis of the defendant's motion. Therefore, the circuit court's first reason, though legally correct, was not a basis upon which to deny the defendant's motion.

The circuit court's second reason for denying the motion was in error. All four of our sister courts have found it sufficient for a defendant to allege that the Department's forfeiture of gain time has thwarted the intent of the plea agreement for a particular length of sentence .

In Chase v. State , 57 So.3d 898 (Fla. 1st DCA 2011), the First District reversed and remanded for the trial court to attach portions of the record conclusively refuting the defendant's claim, or to hold an evidentiary hearing, where the defendant alleged "it was the understanding of the parties that he was to serve no more than 24 months in prison, but that the forfeiture will lead to his serving 24 months, 181 days in prison." Id. at 899.

In Foster v. State , 197 So.3d 93 (Fla. 2d DCA 2016), the Second District reversed and remanded for the postconviction court to either attach portions of the record refuting the defendant's claim, or hold an evidentiary hearing, where the defendant alleged that "the Department of Corrections' forfeiture of 259 days of his gain time after he was sentenced thwarted the intent of his plea agreement that he serve seven years in prison because it resulted in a sentence of seven years and 259 days' imprisonment." Id. at 93-94.

In Ramos-Perez v. State , 99 So.3d 515 (Fla. 3d DCA 2011), the Third District reversed and remanded for the trial court to determine whether the record shows conclusively the defendant is entitled to no relief, where the defendant argued in his postconviction motion that the Department's forfeiture of 177 days of gain time would "result in an increase of incarceration of almost six months, which would thwart the intention of his negotiated plea agreement-that he serve a total of 366 days in state prison." Id. at 515.

In Dellofano v. State , 946 So.2d 127 (Fla. 5th DCA 2007), the Fifth District reversed and remanded for the trial court to reconsider the defendant's postconviction motion where the defendant contended his sentence "was imposed pursuant to a negotiated plea and that the parties' intent called for a sentence of 63 months with credit for 793 days." Id. at 128.

Here, as in Chase , Foster , Ramos-Perez , and Dellofano , the defendant's motion alleged that the Department's forfeiture of gain time has thwarted the intent of the plea agreement for a particular sentence . Specifically, the defendant's motion characterized his plea agreement as having "agreed to plead guilty to the violation for a specific sentence of 55 months, with 592 day[s] time served for jail credit with credit for ALL time previously served in prison," which the defendant alleged was an additional 501 days. The defendant's motion further claimed that the Department's "forfeiture of 156 days of the Defendant's gain time after he was sentenced thwarted the intent of his plea agreement that he serve 55 months in prison because it results in a sentence of 55 months and 156 day's [sic] imprisonment." Given these allegations, the defendant's motion was legally sufficient.

Based on the foregoing, the circuit court was required to either attach records conclusively refuting the defendant's claim, or hold an evidentiary hearing on the defendant's claim, that the Department's forfeiture of his gain time thwarted the intent of his plea agreement. We reverse and remand for that purpose. If the circuit court finds that the defendant's claim is correct, the circuit court should either resentence him in a manner which effectuates the plea agreement after considering the Department's forfeiture of gain time or allow the defendant to withdraw his plea. Foster , 197 So.3d at 94 ; Ramos-Perez , 99 So.3d at 515 ; Dellofano , 946 So.2d at 129.

Reversed and remanded for proceedings consistent with this opinion.

Ciklin and Kuntz, JJ., concur.


text:
    PRADA USA CORP/TRAVELERS INSURANCE COMPANY OF AMERICA, Appellants, v. Charles YOUNG, Appellee.
    No. 1D18-1267
    District Court of Appeal of Florida, First District.
    Date of Accident: April 30, 2003. May 2, 2019
    Kurt J. Wirsing of Miller, Kagan, Rodriguez & Silver, P.L., Coral Gables, and Steven H. Preston of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appellants.
    William F. Souza of Law Offices of William F. Souza, P.A., North Miami Beach, for Appellee.
   Per Curiam.

The Employer/Carrier appeal an order holding that res judicata did not bar Claimant from seeking benefits in 2017 similar to benefits he had sought, but withdrawn before hearing, in 2015. Claimant had injured his lumbar spine, among other things including his knee, in the industrial accident; and the E/C provided treatment and other benefits related to the lower back injury from 2003 through 2014. In December of 2014, Claimant filed a new petition for benefits seeking Lidoderm patches and lumbar physical therapy as recommended by his authorized neurologist. By that time several of Claimant's healthcare providers had concluded that Claimant's condition was attributable to pre-existing degenerative conditions rather than to the industrial accident. Shortly before the scheduled hearing on the 2014 PFB, Claimant's authorized neurologist opined in his deposition that the ongoing symptoms were not related to the work accident, and the recommended Lidoderm patches and lumbar physical therapy were not medically necessary due to the work accident. Claimant withdrew the lower-back claim before the PFB went to hearing on other benefits involving Claimant's knee injury.

Beginning in the fall of 2015, less than three months after he withdrew his PFB for lumbar spine treatment, Claimant began seeing a physician for persistent lumbar spinal pain. After six months, that physician recommended that future treatment be provided by a spine doctor or neurosurgeon. Almost a full year later, on March 24, 2017, Claimant filed a new PFB requesting follow-up with that physician, but the E/C authorized treatment solely for the left shoulder. In September of 2017, Claimant again filed a PFB requesting evaluation and treatment for his lumbar spine.

For the hearing on the 2017 PFB, the E/C asserted that Claimant's requests for spinal treatment were barred by res judicata because the same treatment had been requested and withdrawn prior to the 2015 hearing. The JCC rejected the res judicata argument on the grounds that the 2015 PFB had narrowly requested Lidoderm patches and lumbar physical therapy, whereas the 2017 request more broadly sought lumbar evaluation and any treatment deemed necessary as a result of that evaluation. The JCC found that this distinction was sufficient to destroy the "identity of the thing sued for" element of res judicata, citing Caron v. Systematic Air Servs., 576 So.2d 372, 375 (Fla. 1st DCA 1991). The JCC also accepted Claimant's argument that under the 120-day rule, the E/C waived any right to deny compensability of the lumbar spine after stipulating to compensability in 2005 and providing treatment for more than a decade.

We observe that while the doctrine of res judicata may have its place in the workers compensation arena, it is a difficult concept to apply to physical conditions that can and do change over time and often involve complex multi-factorial considerations. However, we find it unnecessary to reach the res judicata issue here, because we conclude that the JCC correctly invoked the 120-day rule as precluding the E/C's argument against industrial causation of the lumbar spine injury. We note that the E/C can raise an MCC defense whenever the evidence supports it, and raised it below; but did not argue that issue on appeal.

AFFIRMED .

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    Grace EDELMAN, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 4D18-2189
    District Court of Appeal of Florida, Fourth District.
    [April 24, 2019]
    Melissa A. Giasi of Giasi Law, P.A., Tampa, for appellant.
    Maureen G. Pearcy of Hinshaw & Culbertson LLP, Coral Gables, for appellee.
    ON CONCESSION OF ERROR
   Per Curiam.

Appellant Grace Edelman filed a claim for breach of contract under a homeowner's insurance policy that she purchased from Appellee Citizens Property Insurance Corporation. Citizens filed a motion for summary judgment, which was granted by the trial court. On appeal, Appellant argues that the evidence in support of Citizens' summary judgment motion was not properly authenticated in compliance with Florida Rule of Civil Procedure 1.510(c). In response, Citizens "concedes that the evidence in support of [its] summary judgment motion was not properly authenticated in compliance with [FRCP] 1.510(c)." Thus, Citizens agrees with Appellant that "the trial court's ruling cannot stand."

"[I]t is apodictic that summary judgments may not be granted at any type of hearing, absent the existence of 'summary judgment evidence' in the record." Eco-Tradition, LLC v. Pennzoil-Quaker State Co. , 137 So.3d 495, 496 (Fla. 4th DCA 2014) (quoting TRG-Brickell Point NE, Ltd v. Wajsblat , 34 So.3d 53, 55 (Fla. 3d DCA 2010) ). We accept Citizens' concession of error, and thus vacate the final judgment and remand for further proceedings.

Reversed and Remanded.

Levine, Conner and Forst, JJ. concur.


author: NORTHCUTT, Judge.

text:
    Elizabeth J. JOHNSON, Appellant, v. Marc D. JOHNSON, Appellee.
    Case No. 2D16-4890
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018 Rehearing Denied September 17, 2018
    David A. Maney of Maney Damsker Jones & Kuhlman, P.A., Tampa, for Appellant.
    Marc D. Johnson, pro se, and Daniel A. Larson and Scott Anderson of Larson Johnson, P.L., Tampa, for Appellee.
   NORTHCUTT, Judge.

Elizabeth Johnson appeals the amended final judgment dissolving her marriage to Marc Johnson. She contends that a new trial is necessary because the trial court failed to issue a ruling in the case for over two and one-half years following the final hearing. She also argues that under the facts found in the amended final judgment, she should have been awarded permanent periodic alimony. We agree on both accounts, and we reverse and remand for a new trial.

In McKenzie v. McKenzie, 672 So.2d 48, 49 (Fla. 1st DCA 1996), a year passed between the final hearing and the entry of the final divorce judgment. The First District noted that two inconsistencies in the judgment suggested that the trial court may not have recalled the evidence presented at the hearing. Id. at 49 n.1. Because of the unreasonable delay, the court reversed the final judgment of dissolution and remanded for a new final hearing. The court observed:

Florida Rule of Judicial Administration 2.050(f) provides that a judge has a duty to rule upon a matter submitted to him or her "within a reasonable time." A presumptively reasonable time period for the completion of a contested domestic relations case is 180 days from filing to final disposition. Fla. R. Jud. Admin. 2.085(d)(1)(C). The instant case involved a delay in excess of twice what is deemed presumptively reasonable, just in the period between the hearing and final judgment. This requires a new trial.

Id. at 49.

This court cited McKenzie when deciding McGoldrick v. McGoldrick, 940 So.2d 1275 (Fla. 2d DCA 2006). There, the final judgment of dissolution was issued eight months after the evidentiary hearing. Id. at 1276. In that circumstance, the McGoldrick court held that "[i]n determining whether a delayed ruling warrants reversal and retrial, the critical determinations are: (1) the existence of conflict between the judge's statements or findings at trial and the ultimate judgment entered and (2) the presence of unsupported factual findings in the final judgment." Id. Beyond that, the court stated:

We are also concerned that if we do not remand for a new trial, the passage of time between the trial and this opinion would likely have produced changed circumstances, causing one or both of the parties to seek modification of whatever partial result we might have affirmed. Additionally, intervening case law may require a different result than the law in effect when the case was tried.

Id. at 1277.

In the present case, the delay between the final hearing and the issuance of the judgment was two and a half times that in McKenzie and almost four times longer than in McGoldrick. As such, this case is akin to McDaniel v. McDaniel, 780 So.2d 227, 228 (Fla. 2d DCA 2001), in which this court held that a forty-month delay between a hearing on a motion to clarify the dissolution of marriage judgment and the order granting the motion was "per se unreasonable and unacceptable."

Likewise, we conclude that the delay of thirty-three months in this case was unreasonable and unacceptable. This is particularly so when we consider the concern expressed in McGoldrick about the probability that the parties' circumstances would have changed during the lengthy period between the trial and the issuance of the opinion. Here, Ms. Johnson is afflicted with a significant chronic health condition. During the extended delay between the final hearing and the judgment, she twice unsuccessfully sought to reopen the evidentiary portion of the case due to alleged deteriorating health, something that very likely could have had a bearing on her earning ability.

Owing to the inherently unreasonable delay in issuing the judgment, during which the trial court twice declined to take evidence regarding alleged significant changes of circumstance since the final hearing, we cannot conclude that the amended judgment accurately or fairly addressed the equities of the case or the needs and abilities of the parties. Therefore, we affirm only the dissolution of the parties' marriage. We reverse on all other issues and remand for a new trial before a successor judge. See McGoldrick, 940 So.2d at 1277.

For purposes of the proceedings on remand, we note that the facts found in the amended judgment did not rebut the presumption that Ms. Johnson is entitled to permanent periodic alimony. See Fortune v. Fortune, 61 So.3d 441, 446 (Fla. 2d DCA 2011) (holding that a long-term marriage creates a presumption in favor of permanent periodic alimony); see also § 61.08(4), Fla. Stat. (2015) (defining a long-term marriage as having a duration of seventeen years or longer); Dickson v. Dickson, 204 So.3d 498, 502-03 (Fla. 4th DCA 2016). To the contrary, those findings underscored the necessity of a permanent alimony award: Ms. Johnson spent most of the eighteen-year marriage out of the workforce, serving as a parent and homemaker. She suffers from a "severe case" of a chronic malady that requires her to work in a "sheltered" employment environment; during the divorce proceedings she began working in her brother's insurance agency. Based on evidence presented two and one-half years previously, the court determined that Ms. Johnson has the ability to earn $31,800 per year, and thus she "does not have the capability of being fully self-supporting or living in a lifestyle similar to the marital lifestyle" that was based on her attorney-husband's income of over $19,000 per month.

Yet the court awarded Ms. Johnson only durational alimony and only until she reaches age sixty-two. Florida's alimony statute provides that durational alimony may be awarded "if there is no ongoing need for support on a permanent basis." § 61.08(7). Under the facts found by the trial court-and especially considering its failure to identify any fact suggesting that Ms. Johnson had no ongoing need for support on a permanent basis-its conclusory assertion that durational alimony "is the only fair and reasonable form of alimony" in this case was contrary to law, arbitrary, and an abuse of discretion. See, e.g., Taylor v. Taylor, 177 So.3d 1000, 1004 (Fla. 2d DCA 2015) ; Dickson, 204 So.3d at 498.

Dissolution of marriage is affirmed, final judgment reversed in all other respects, and case remanded for a new trial before a successor judge.

CRENSHAW and SALARIO, JJ., Concur.


author: SILBERMAN, Judge.

text:
    IN the INTEREST OF M.L.H. and D.H.H., children.
    J.S.H., Appellant, v. Department of Children and, Families and Guardian ad Litem Program, Appellees.
    Case No. 2D17-5072
    District Court of Appeal of Florida, Second District.
    Opinion filed August 3, 2018.
    J.S.H., pro se.
    Mary Soorus, Assistant Attorney General, Tampa, for Appellee Department of Children and Families.
    Laura J. Lee, Appellate Counsel, Sanford, for Appellee Guardian ad Litem Program.
   SILBERMAN, Judge.

J.S.H. challenges the order denying his motion for joinder in a termination of parental rights proceeding involving twins who were sheltered at birth due to exposure to controlled substances. J.S.H. is the children's biological father, but the children's Mother was married to C.M. at the time of conception and birth. Despite the fact that neither the Mother nor C.M. has expressed any interest in raising the children, the trial court has concluded as a matter of law that J.S.H. lacks standing to assert his rights as the father. We conclude that this was error and reverse.

J.S.H. was at the hospital when the twins were born in April 2016, and he is named as the father on their birth certificates. After the children were sheltered the court appointed counsel for J.S.H. and granted him visitation. However, the Department learned that the Mother was married to C.M. at the time of conception and birth, making him the children's legal father. In June 2016, the court entered an order informing J.S.H. that he was no longer a party and suspending his visitation.

In July 2016, J.S.H. filed paternity test results indicating he was the children's biological father. On August 29, 2016, J.S.H. filed a petition for determination of paternity. In the petition, J.S.H. indicated that he had filed a claim of paternity with the Putative Father Registry. He asserted he had provided blankets and clothing for the children and set up a bedroom for them. He said he had attended every scheduled visitation. Finally, he noted neither the Mother nor C.M. had been involved with the children.

Meanwhile, C.M. failed to appear, and the Department filed an affidavit of diligent search. On September 19, 2016, the Department filed a petition for termination of the Mother and C.M.'s parental rights. The petition sought termination on several bases, all stemming from the legal parents' abandonment of the children.

The court addressed J.S.H.'s petition for paternity at a status conference in October 2016. The record does not contain a transcript of that hearing, and the court did not enter an order on the petition. However, in the order now before us, the court has indicated that it declared C.M. as "the legal father by virtue of the fact he was married to the mother at the time of conception and birth." The court also "found that [J.S.H.] was not a party to this case, as he had no legal standing." The court allowed counsel for J.S.H. to withdraw.

Having no final order to appeal and no court-appointed attorney, J.S.H. filed several pro se motions seeking party status, visitation, and custody. He also filed documents he believed were proof of his fitness as a parent. Finally, he filed a motion for appointment of counsel. In February 2017, the court conducted a judicial review/permanency hearing at which it considered J.S.H.'s pro se motions. Again the record does not contain a transcript of this hearing. However, the court entered an order denying J.S.H.'s pro se motions and request for appointment of counsel. In the order, the court indicated that J.S.H. had been advised by his previous attorney to pursue a judgment of paternity in family court.

J.S.H. retained counsel and filed a petition for determination of paternity in the domestic relations division (family court) in March 2017. While J.S.H.'s petition for paternity was pending in family court, the dependency court conducted an advisory hearing to address the merits of the petition for termination. In June 2017, the dependency court entered a final judgment of termination based on the parents' failure to appear.

J.S.H. obtained a final judgment of paternity in family court in July 2017. J.S.H. immediately filed a pro se motion for reunification in dependency court. He also filed a motion to compel party status. The dependency court conducted a status review on August 21, 2017. The record does not contain a transcript of this hearing, but the docket reflects that the court again advised J.S.H. he was not a party and had no legal rights. No written order was rendered.

On October 16, 2017, J.S.H. filed in the dependency court the "motion for joinder" that is the subject of this appeal. The court considered the motion on November 6, 2017. As with the previous hearings, the record does not contain a transcript of this hearing. The court entered an order denying J.S.H.'s motion for joinder on November 30, 2017.

In its order, the dependency court relied on Shuler v. Guardian ad Litem Program, 17 So.3d 333 (Fla. 5th DCA 2009), to conclude that J.S.H. had no legal rights to the children because the children were born to the Mother's intact marriage. The court also determined that J.S.H. could not assert a claim to the children after the legal parents' rights had been terminated. The court recognized that J.S.H. had obtained a final judgment of paternity from the family court but explained that, pursuant to section 39.013(4), Florida Statutes (2017), orders of the dependency court take precedence over those in other civil actions.

Because the dependency court's determination of whether a putative father has standing to challenge paternity is a question of law our standard of review is de novo. Simmonds v. Perkins, 247 So.3d 397, 400 n.2, 43 Fla. L. Weekly S273, S274 n.2 (Fla. June 28, 2018). There is a strong presumption of legitimacy of a child born to an intact marriage. Id. at 398, 43 Fla. L. Weekly at S274 ; Dep't of Health & Rehab. Servs. v. Privette, 617 So.2d 305, 308 (Fla. 1993). However, this presumption may be overcome if a putative father establishes "a clear and compelling reason based primarily on the child's best interests." Simmonds, 247 So.3d at 398, 43 Fla. L. Weekly at S275 (quoting Privette, 617 So.2d at 309 ) ).

The supreme court has recently rejected the premise that the presumption of legitimacy precludes a putative biological father from challenging the paternity of a child born to an intact marriage. Simmonds, 247 So.3d at 398-99, 43 Fla. L. Weekly at S275. Instead, the court reaffirmed the standard set forth in Kendrick v. Everheart, 390 So.2d 53, 61 (Fla. 1980), for determining a putative biological father's standing to challenge the presumption of legitimacy. Simmonds, 247 So.3d at 398-99, 43 Fla. L. Weekly at S275. Under the Kendrick standard, a putative biological father can establish standing in such cases by demonstrating that "he has 'manifested a substantial and continuing concern for the welfare of the children.' " Simmonds, 247 So.3d at 401, 43 Fla. L. Weekly at S275 (quoting Kendrick, 390 So. 2d at 61 ).

In reaffirming this standard in Simmonds, the supreme court resolved a conflict among district courts regarding the circumstances under which a putative biological father could challenge paternity of a child born to an intact marriage. 247 So.3d at 398-99, 43 Fla. L. Weekly at S274 -75. At the time, some district courts had concluded that a putative father had no standing to challenge the paternity of a child born to an intact marriage when both the husband and wife objected. Id. at ----, 43 Fla. L. Weekly at S275. One court had suggested that the presumption of legitimacy could not be challenged under any circumstances while another court had acknowledged that the presumption may be rebutted in some circumstances. Id. However, the supreme court explained that a biological father's standing to challenge paternity is determined by the Kendrick standard without regard to whether the parents objected or "the applicability of the presumption of legitimacy" itself. Simmonds, --- So.3d at ----, 43 Fla. L. Weekly at S275.

In cases in which the legal parents were not unified in an objection to a paternity challenge, this court has recognized a putative father's ability to rebut the presumption of legitimacy. See L.J. v. A.S., 25 So.3d 1284, 1288-89 (Fla. 2d DCA 2010) ; Van Nostrand v. Olivieri, 427 So.2d 374, 377 (Fla. 2d DCA 1983). In so doing, this court has relied on the Kendrick standard to determine standing. L.J., 25 So.3d at 1288 ; Van Nostrand, 427 So.2d at 377. In fact, this court has held that it is error to dismiss a petition for paternity as a matter of law without affording a putative biological father the opportunity to establish standing under Kendrick. See L.J., 25 So.3d at 1289.

The Fourth District has also applied the Kendrick standard in cases involving a challenge to paternity of a child born to an intact marriage when the legal parents were not unified in objection. See J.T.J. v. N.H., 84 So.3d 1176, 1179 (Fla. 4th DCA 2012). In J.T.J., the court reversed an order dismissing a petition for paternity under similar facts. The child was born into an intact marriage, but the mother would not provide information as to the legal father for the birth certificate. Id. at 1177. The child was sheltered at birth, and the Department filed a case plan with a goal of termination of parental rights. Id. at 1177-78. The putative father filed a petition for paternity in which he alleged that a DNA test established he was the biological father. Id. at 1178. He asserted that he had filed a claim with the Putative Father Registry, exercised visitation, and prepared a bedroom for the child in his home. He also said the Department had conducted a home visit and the legal parents had signed surrenders of their parental rights. Id.

The mother filed a motion to dismiss for lack of standing which the court granted. Id. The trial court concluded that, due to the strong presumption of legitimacy, the putative father did not have the right to establish paternity. Id. The Fourth District reversed. Id. at 1180. The court recognized the strong presumption of legitimacy but explained that it was not conclusive. Id. at 1179. The court held that the putative father was entitled to an evidentiary hearing to determine whether he had standing under the Kendrick standard. Id. at 1180.

The key facts in this case are quite similar to those in J.T.J., and in both cases the biological father filed a petition for paternity that was dismissed by the dependency court based on the presumption of legitimacy. There are two additional facts here that favor J.S.H.: (1) he was listed as the father on the birth certificates, and (2) neither the Mother nor the legal father challenged his standing. As with the putative father in J.T.J., J.S.H. was entitled to a hearing at which he could attempt to establish standing.

The trial court's reliance on Shuler is misplaced because Shuler has been superseded in part by Simmonds and is otherwise distinguishable. In Shuler, the putative father's attempts to participate in a dependency proceeding were denied on the basis that the child was born to an intact marriage. 17 So.3d at 334. The mother died during the proceedings, and the court terminated the legal father's parental rights based on his failure to appear. The putative father subsequently filed a petition for paternity, but the court dismissed the petition for lack of standing. Id. at 334-35.

On appeal, the Fifth District affirmed. Id. at 336. The court stated, "[A]lthough Shuler has a finding of fact that he is T.S.'s biological father, this gained him nothing because, as the biological father of a child who was born during the mother's intact marriage, he has no legal rights." Id. The court also ruled that the putative father filed his petition for paternity too late because the legal parents' parental rights had already been terminated. The court determined that the child, having been declared adoptable, could not be declared unadoptable "when someone else then claims to be the child's biological father." Id.

The Shuler court's ruling that the putative biological father had no right to participate in termination proceedings based on the presumption of legitimacy is inconsistent with the supreme court's ruling in Simmonds,--- So.3d at ----, 43 Fla. L. Weekly at S275. Furthermore, the present case is distinguishable from Shuler in that it does not involve undue delay by the putative father in seeking to challenge paternity in a dependency action. The putative father in Shuler delayed filing a petition for paternity until several months after the legal parents' rights were terminated. 17 So.3d at 336.

Conversely, J.S.H. has consistently asserted his parental rights to the children from the date of their birth. He obtained DNA results and filed a petition for paternity before the Department filed a petition for termination, but the dependency court erroneously determined that he lacked standing as a matter of law. After his court-appointed attorney withdrew, J.S.H. filed several pro se motions seeking party status that were denied. J.S.H. was told to file a paternity action in family court, and he did so. Indeed, he obtained a final judgment of paternity in family court only to be told that the dependency court's orders had precedence.

Under these circumstances we cannot say that the delay in proceedings should preclude J.S.H. from having his day in court. Cf. M.L. v. Dep't of Children & Families, 227 So.3d 142, 146 (Fla. 4th DCA) (affirming the denial of a putative father's motion to participate in termination proceedings because he waited a year and a half to file a petition for paternity and had not yet obtained DNA test results), cert. denied, --- U.S. ----, 138 S.Ct. 571, 199 L.Ed.2d 447 (2017). We therefore reverse the order denying J.S.H.'s motion for joinder and remand for the court to conduct an evidentiary hearing on standing and such further proceedings as may be required.

Reversed and remanded.

LUCAS and BADALAMENTI, JJ., Concur.

      See Simmonds v. Perkins, 247 So.3d 397, ----, 43 Fla. L. Weekly S273, S274, 2018 WL 3153671 (Fla. June 28, 2018) ; Dep't of Health & Rehab. Servs. v. Privette, 617 So.2d 305, 307 (Fla. 1993).

      See § 63.062(2)(b)(1), Fla. Stat. (2015).

      From this point on in the proceedings, J.S.H. appeared pro se.

      The motion improperly requests "joinder"; the content of the motion reflects that it is actually a motion for "participant status." J.R.-P. v. Dep't of Children & Families, 228 So.3d 628, 630 n.3 (Fla. 2d DCA 2017). However, we will refer to the motion as it is titled.


text:
    Shameil SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1586
    District Court of Appeal of Florida, First District.
    October 24, 2018 Rehearing Denied January 16, 2019
    Shameil Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Lewis, Ray, and M.K. Thomas, JJ., concur.


text:
    Jeffrey Lynn MCDONALD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2290
    District Court of Appeal of Florida, First District.
    September 12, 2018
    Jeffrey Lynn McDonald, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm'n , 807 So.2d 733 (Fla. 1st DCA 2002).

Wolf, Rowe, and Kelsey, JJ., concur.


author: BADALAMENTI, Judge.

text:
    Joseph BING, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4952
    District Court of Appeal of Florida, Second District.
    Opinion filed December 12, 2018
    Joseph Bing, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

Joseph Bing appeals the summary denial of his motion for postconviction DNA testing filed under Florida Rule of Criminal Procedure 3.853. Although the postconviction court erred by denying Bing's motion based on his failure to satisfy rule 3.853(b)(4), we nevertheless affirm because Bing's motion failed to satisfy rule 3.853(b)(2)'s requirements. We therefore affirm without prejudice to Bing for any right he may have to file a facially sufficient rule 3.853 motion.

While Bing's allegations were inartfully presented, we conclude that they were facially sufficient to satisfy the requirements set forth in rule 3.853(b)(4). Rule 3.853(b)(4) states that a motion for DNA testing must include "a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received." Fla. R. Crim. P. 3.853(b)(4) (emphasis added); see also Gonzalez v. State, 41 So.3d 1050, 1051 (Fla. 2d DCA 2010) ("[ Rule 3.853(b)(4) ] is written in the alternative: the movant must allege that identification is a genuinely disputed issue or he must explain how the DNA evidence would exonerate him."). Bing's allegations were facially sufficient to satisfy rule 3.853(b)(4) because Bing averred that he was linked to the crime only by the victim's identification of him as the perpetrator. See Zollman v. State, 820 So.2d 1059, 1062 (Fla. 2d DCA 2002) ("[I]dentity is a 'genuinely disputed' issue when the only significant evidence connecting the defendant to the crime is the victim's identification of the defendant."). Alternatively, Bing's allegations were facially sufficient to satisfy rule 3.853(b)(4) because Bing asserted that DNA testing would demonstrate that another particular person was the actual perpetrator, thus exonerating him.

Although we hold that Bing's motion was facially sufficient under rule 3.853(b)(4), Bing failed to include any allegations that would satisfy rule 3.853(b)(2)'s requirement that he provide

a statement that the evidence was not previously tested for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result establishing that the movant is not the person who committed the crime.

Fla. R. Crim. P. 3.853(b)(2).

Accordingly, we affirm without prejudice to any right Bing may have to file a facially sufficient rule 3.853 motion. Any such motion should not be considered successive. See Harvey v. State, 925 So.2d 1111, 1111 (Fla. 2d DCA 2006) ; Lemay v. State, 921 So.2d 853, 854 (Fla. 2d DCA 2006).

Affirmed.

NORTHCUTT and SILBERMAN, JJ., Concur.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Maria BRAVO, DOC #H48590, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1873
    District Court of Appeal of Florida, Second District.
    Opinion filed December 12, 2018
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Maria Bravo appeals from an order revoking her community control and the resulting sentence. Because the State failed to prove that she willfully and substantially violated condition 16 of her community control, we reverse.

Condition 16 required Bravo to remain confined to her approved residence except, among other circumstances not pertinent here, as approved by her community control officer (CCO). In the affidavit of violation of community control, Bravo's CCO alleged that on December 9, 2016, Bravo, without the CCO's permission, had failed to remain confined to her approved residence. Following an evidentiary hearing, the trial court found that she had willfully and substantially violated condition 16, revoked her community control, and sentenced her to three years in prison.

The testimony at the evidentiary hearing established the following:

The CCO first met Bravo on December 6, 2016, at Bravo's boyfriend's house. Bravo's boyfriend did not actually want Bravo to stay there, but Bravo had no other resources, had no significant family ties in Florida, and, for the time being, was unable to support herself because she was unemployed. Consequently, despite the CCO's concerns that the arrangement would not last, the boyfriend's house became Bravo's approved residence for community control purposes.

At 4:59 p.m. on December 9, 2016-three days later -the CCO went to the boyfriend's house, and Bravo was not there. The boyfriend's mother told the CCO that Bravo and the boyfriend had had an argument and that Bravo had left. The CCO immediately called Bravo, who answered and told the CCO that she was on her way to her daughter's grandmother's home. Bravo also told the CCO that she had tried calling the CCO's office, which closes for the day at 5:00 p.m., but had been unable to reach anyone.

At the hearing, Bravo testified that "things just got bad at home and I felt like me leaving would have been best for me." When asked to elaborate, she stated: "There was somebody else at the house and I didn't want-I didn't want anything to happen. I didn't want to get in trouble again so I left." When asked if she had meant to violate her community control, Bravo replied: "I didn't. I just thought by me staying it would make the situation worse." These statements suggest that her decision to leave had been neither premeditated nor particularly voluntary. When asked if she had tried to contact her CCO before leaving, she responded that she had "tried to get ahold of anyone in the [probation] office," but she could not remember what time she had called.

The CCO testified that if Bravo had called the office before 5:00 p.m., a duty officer would have been available to authorize her to leave her boyfriend's house. There was also some confusing testimony from both Bravo and the CCO that, taken as a whole, established that although Bravo had also been given an alternate number to call, she had only tried to call the office.

The trial court found as follows:

[A]s far as whether there was a better option I believe there was. And Ms. Bravo's testimony is that she was leaving for a better option - - that she was leaving to go to the grandmother of her child['s] residence. The problem becomes she did not get permission to leave [her boyfriend's house].
The record has been clear that she was at least given two numbers by her own ... testimony she was given a number specifically for the [CCO] which from the testimony seems to have been the cell phone number of the [CCO] as well as the office number for the probation office. So she had at least two numbers by her own testimony. And she did not get permission that's what this comes down to so I do find it's a willful, substantial and material violation which has been proven by a preponderance of the evidence ....

Thus, the trial court found that Bravo had willfully and substantially violated condition 16 because despite having at least two contact numbers in her possession, she had tried to call only one of them and had failed to obtain her CCO's approval before leaving her approved residence.

We review for an abuse of discretion the trial court's decision to revoke Bravo's community control. Filmore v. State, 133 So.3d 1188, 1193 (Fla. 2d DCA 2014) (citing Savage v. State, 120 So.3d 619, 623 (Fla. 2d DCA 2013) ). First, we must determine whether competent substantial evidence supports the trial court's finding of a willful and substantial violation of a condition of community control. Id.

(citing Savage, 120 So.3d at 621 ). The State must prove such a violation by the greater weight of the evidence. See id. (citing Anthony v. State, 854 So.2d 744, 747 (Fla. 2d DCA 2003) ).

The State failed to carry its burden. At most, the evidence established that despite having two telephone numbers, Bravo had tried to call only one of them. The trial court did not find Bravo not credible, and there was no evidence refuting either her assertion that she had tried to reach "anyone" at the probation office or her claim of a circumstance compelling her to leave in haste. "A defendant's failure to comply with a probation condition is not willful where [her] conduct shows a reasonable, good faith attempt to comply[,] and factors beyond [her] control, rather than a deliberate act of misconduct, caused [her] noncompliance." Selig v. State, 112 So.3d 746, 749 (Fla. 2d DCA 2013) (quoting Soto v. State, 727 So.2d 1044, 1046 (Fla. 2d DCA 1999) ); see also Williams v. State, 896 So.2d 805, 806 (Fla. 4th DCA 2005) (holding that although the defendant had moved without notifying his probation officer, the failure to notify was not a willful violation of his probation because he had been involuntarily evicted from his residence and was living on the street); Thomas v. State, 760 So.2d 1138, 1139 (Fla. 5th DCA 2000) (holding that the defendant's decision to move out of his girlfriend's residence and back to his original approved residence after a domestic quarrel with his girlfriend over Thanksgiving weekend, during which he had tried unsuccessfully to contact his parole officer, was not a willful or substantial violation of his probation).

Moreover, the evidence does not establish that Bravo's failure to call the alternate number was anything more than negligence attributable to the circumstances in which she left, and "[a] violation of probation will not be found where the violation is due to negligence or ineptitude." Garcia v. State, 701 So.2d 607, 609 (Fla. 2d DCA 1997). When the CCO called Bravo, Bravo immediately answered the phone and explained her situation. She plainly was not absconding; nor was she avoiding contact with her CCO.

Because competent substantial evidence did not support the trial court's finding that Bravo had willfully and substantially failed to remain confined in her approved residence without her CCO's approval, the court abused its discretion in revoking Bravo's community control. Accordingly, we reverse the order revoking Bravo's community control and remand for the trial court to vacate the sentence and reinstate Bravo's community control.

Reversed and remanded with directions.

KHOUZAM and MORRIS, JJ., Concur.

      And, we note, a Friday.

      We presume, based on context, that this refers to the child's paternal grandmother.

      At the hearing, the CCO implied a possibility of domestic violence between Bravo and her boyfriend.

      The CCO reached Bravo just after 5:00 p.m. and just minutes after Bravo had left her boyfriend's house. The CCO could have considered that phone call as Bravo's request to move and could have granted it on the spot-exactly what she testified that she would have done if Bravo had called her before 5:00 p.m.