author: PER CURIAM. WALLACE, Judge,

text:
    Kelly Mark HALBERT, Appellee. v. Michelle Kathleen MORICO, Appellee.
    No. 2D09-2210.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.
    Catherine W. Real of Catherine W. Real, P.A., Tampa (withdrew after briefing), for Appellant.
    Kelly Mark Halbert, pro se.
    Jan T. Govan of Govan Law Group, P.A., Clearwater, for Appellee.
   PER CURIAM.

Kelly Mark Halbert appeals an order granting in part his former wife’s petition to modify child custody of their son. Mr. Halbert argues on appeal that the trial court erred in modifying the final judgment’s rotating custody arrangement to provide that the child, who is fourteen years old, primarily reside with Ms. Mori-co during the school week. We agree that the trial court abused its discretion in finding that a substantial change of circumstances had occurred which would support a modification in the custody arrangement. See Wade v. Hirschman, 903 So.2d 928, 935 (Fla.2005) (holding that “an order changing custody has a presumption of correctness and will not be disturbed absent a showing of abuse of discretion”); Higgins v. Higgins, 945 So.2d 593, 597 (Fla. 2d DCA 2006) (same).

The final judgment of dissolution of marriage was entered in September 2006, and it incorporated the parties’ marital settlement agreement. The settlement agreement provided that the parties would share rotating custody, because this custody arrangement would best ensure continuing contact for the parties and the child, due to the work schedule of Mr. Halbert. At the time, Mr. Halbert was a firefighter and frequently spent extended days and nights in the performance of his job. The settlement agreement did not address the possibility of either party’s relocation.

Ms. Morico filed her petition to modify custody in February 2008, alleging that there had been several changes in circumstances since the dissolution of marriage that necessitated a change in the custody arrangement. However, by the time the hearing on the petition was held on October 24, 2008, the only changes at issue were Mr. Halbert’s new job and his relocation from Largo to Brandon, Florida. The trial court noted that it considered all of the factors in section 61.13(3)(a), Florida Statutes (2008), and it found that there had been a substantial change in circumstances due to Mr. Halbert’s change in employment and his move to Brandon, which the trial court found was forty-five miles away from Ms. Morieo’s home. We conclude that the evidence presented at the hearing was insufficient to support the modification of custody.

The custody provisions of a final judgment of dissolution of marriage can be materially modified if “there has been a change in circumstances shown to have arisen” after the judgment was entered and if the child’s best interest justifies changing custody. Wade, 903 So.2d at 932. “The degree of change in the conditions and circumstances since the date of the previous decree must be of a substantial character.” Id. at 933.

In custody disputes involving the relocation of a parent, courts generally conclude that the relocation does not amount to a substantial change if the relocation is not a significant distance away from the child’s current location. Compare Gaber v. Gaber, 536 So.2d 381, 381-82 (Fla. 3d DCA 1989) (holding that the record did not demonstrate a substantial change in circumstances where the mother moved from North Miami Beach to Plantation, Florida, which is located in neighboring Broward County), with Bragassa v. Bragassa, 505 So.2d 556, 558 (Fla. 3d DCA 1987) (concluding that there was competent evidence to support the finding of a change in circumstances where the mother moved with the child to a location hundreds of miles away, with little opportunity for visitation between the father and the child).

In Day v. LeBlanc, 610 So.2d 42, 45 (Fla. 2d DCA 1992), this court held that “[a] move may constitute a substantial change of circumstances if the distance is far and the visitation of the other parent will be subject to significant interference as a result.” In Day, this court concluded that the father failed to show a substantial change in circumstances where the mother moved from Fort Myers to Gainesville, which are 230 miles apart, and the child spent a lot of time in the car on weekends. Id.

In the present case, there was no evidence that Mr. Halbert’s move to Brandon would cause a significant interference with Ms. Morico’s time with the child. Mr. Halbert testified that on the days he had custody of his son, he could drive him to and from school. He had verified with his employer that the employer was willing to allow him flexibility with his schedule so that he could provide such transportation.

We recognize that as a result of Mr. Halbert’s relocation, the drive to and from school and school-related activities will be longer; however, this change is not so substantial as to justify a change in the custody arrangement as required by Wade, 903 So.2d at 933. Accordingly, we reverse that part of the trial court’s order granting Ms. Morico’s petition to modify child custody.

Reversed.

WHATLEY and MORRIS, JJ., Concur.

WALLACE, J., Dissents with opinion.

WALLACE, Judge,

Dissenting.

I respectfully dissent. The rationale stated by the parties for the original rotating custody arrangement was Mr. Hal-bert’s work schedule as a firefighter, which frequently required him to “spend extended days and nights in the performance of his job.” Mr. Halbert’s employment as a firefighter terminated in September 2007. I conclude that the trial court did not abuse its discretion in ruling that Mr. Hal-bert’s return to a more traditional work schedule as a result of the loss of his employment as a firefighter was a substantial change in circumstances. For this reason, I would affirm the trial court’s order.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SAU BE VAN NGUYEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4165.
    District Court of Appeal of Florida, Fifth District.
    Feb. 12, 2010.
    Sau B. Van Nguyen, Madison, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. We affirm the order under review without prejudice to the defendant filing a facially sufficient motion.

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


text:
    Trod O. BUGGS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-4615.
    District Court of Appeal of Florida, Fifth District.
    Feb. 12, 2010.
    Trod O. Buggs, Crawfordville, pro se.

      Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the rule 3.800 motion in Case No. 1995-CF-000123-A in the Circuit Court in and for Lake County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


text:
    Orlando COTTO-MARCANO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-246.
    District Court of Appeal of Florida, Fifth District.
    Feb. 12, 2010.
    Orlando Cotto-Marcano, Orlando, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Orlando Cotto-Marcano seeks a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141. However, nowhere in the instant petition does Cotto-Marcano allege that he timely requested that his trial counsel appeal and trial counsel failed to do so as required by rule 9.141(c)(3)(F).

Additionally, the petition was not sworn to as required by Florida Rule of Appellate Procedure 9.141(c)(3)(F). An affirmation that the statements made in the petition are “true and correct to the best of my knowledge” is not an adequate oath. See Moore v. State, 910 So.2d 947 (Fla. 5th DCA 2005).

Therefore, we deny the petition because it is facially insufficient. See Abbot v. State, 929 So.2d 723, 723 (Fla. 5th DCA 2006); Cosby v. State, 911 So.2d 275, 275 (Fla. 5th DCA 2005). Cotto-Marcano shall have thirty (30) days in which to file a legally sufficient amended petition.

PETITION DENIED WITHOUT PREJUDICE.

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


author: KELLY, Judge.

text:
    A.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5250.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.

      James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

A.R., a juvenile, appeals the order adjudicating him delinquent for aggravated assault, trespass, and disorderly conduct and committing him to a high-risk residential facility. We affirm his adjudication and disposition without comment, but reverse the original commitment order and remand for further proceedings.

The original order of commitment adjudicated A.R. delinquent and committed him to the Department of Juvenile Justice for offenses committed in two separate cases. On April 20, 2009, A.R. filed a motion to correct disposition error pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2). In his motion, A.R. argued that the trial court erred in not entering separate disposition orders as to each offense. On June 17, 2009, the trial court entered amended orders of commitment reflecting A.R.’s delinquency adjudication and commitment for aggravated assault and trespass in circuit court case number 08-CJ-001446 and disorderly conduct in circuit court case number 08-CJ-001659. However, because the trial court did not enter its amended orders until more than thirty days after A.R.’s rule 8.135(b)(2) motion was filed, the amended orders are nullities. See O.H. v. State, 948 So.2d 79 (Fla. 2d DCA 2007) (holding that an order granting relief on a motion to correct disposition error entered more than thirty days after the motion was filed is a nullity); J.M. v. State, 4 So.3d 703, 704 (Fla. 5th DCA 2009) (“[R]ule 8.135(b)(1)(B) requires the trial court to ‘file an order ruling on the motion’ within 30 days, failing which ‘the motion shall be deemed denied.’ ”). Accordingly, we reverse the original disposition order and remand to the trial court for entry of new disposition orders as to each case. See Fla. R. Juv. P. 8.115(c) (providing that “[e]aeh case requires a separate disposition order”).

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

VILLANTI and KHOUZAM, JJ., Concur.


text:
    A.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-111.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Hernandez v. State, 784 So.2d 1124 (Fla. 3d DCA 1999); State v. Pye, 551 So.2d 1237 (Fla. 1st DCA 1989). Cf. V.B. v. State, 959 So.2d 1252 (Fla. 3d DCA 2007).


text:
    GOLDEN GATE HOMES, L.C., Appellant, v. CONCRETE UNLIMITED, INC., Appellee.
    No. 3D09-978.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Geofrey D. Ittleman, Fort Lauderdale, for appellant.
    Broad and Cassel, Ronald M. Gaché and Scott A. Simon, West Palm Beach, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983).


author: COPE, J.

text:
    Jerome P. ROBINSON, Appellant, v. DELTA PAINTING, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D09-1340.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.

      Jerome P. Robinson, in proper person.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for appellee, Florida Unemployment Appeals Commission.
    Before COPE and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   COPE, J.

This is an appeal of an order of the Unemployment Appeals Commission, holding that Jerome P. Robinson is not entitled to unemployment benefits. We reverse.

Claimant Robinson was employed as a painter by appellee Delta Painting, Inc. He was discharged by the employer and the appeals referee conducted a hearing. The referee’s factual findings stated:

The claimant started working for the employer, a painting company, on June 22, 2007, as a painter apprentice. The claimant’s job duty was commercial painting.
In May 2008, the claimant was placed on a 30 [day] performance improvement plan for his absences at work. On June 26, 2008, a review of the plan was conducted which reflected the claimant demonstrated considerable improvement. The claimant successfully completed the performance improvement plan. On July 17, 2008, the claimant received a final warning that the claimant would face termination if he was messy with his work. The claimant said he would clean up the mess; however the employer said there is no excuse. On July 21, 2008, the employer terminated the claimant because he was messy.

The referee concluded that the claimant was entitled to benefits.

The employer appealed to the Unemployment Appeals Commission. The Commission accepted the referee’s findings of fact, but rejected the referee’s conclusion that the claimant was entitled to benefits. The Commission ruled that the facts amounted to disqualifying misconduct. The claimant has appealed.

The referee found that the claimant had been placed on a thirty-day performance improvement plan because of absences at work. The referee found as a fact that the claimant successfully completed the performance improvement plan. Accordingly, the prior absenteeism problems of the claimant must be disregarded for present purposes.

According to the employer’s testimony, on July 17, 2008, the claimant dripped yellow oil-based paint over gray waterproofing which had been completed by another contractor. The employer stated that this caused additional time and expense to clean up. The supervisor issued a verbal warning that if this happened again, the claimant would be fired.

The supervisor testified that on July 21, 2008, the claimant dripped paint on some finished pavers. He was discharged.

The claimant in this case was an employee at will and the employer was entitled to terminate him if the employer so chose. The claimant would be entitled to unemployment benefits unless he was guilty of misconduct. Under the relevant part of the unemployment statute, misconduct includes “Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.” § 443.036(29)(b), Fla. Stat. (2008).

The Commission takes the position that the employer in this case had ordered the claimant not to have any further paint drips. The Commission reasons that since there was a direct order, and the claimant was found to have dripped paint again, it follows that this is a deliberate disregard of a direct order which amounts to misconduct. We disagree.

The referee found that the charged conduct amounted to the claimant being “messy with his work.” This was, in other words, carelessness or negligence in the performance of the claimant’s duties. We do not think that two incidents of dripping paint amounts to carelessness of a sufficient degree or recurrence to manifest culpability, wrongful intent, evil design, or an intentional and substantial disregard of the employer’s interests or the employee’s duties. As this court has previously stated, misconduct serious enough to warrant dismissal is not necessarily sufficient to warrant forfeiture of unemployment compensation benefits. Davidson v. AAA Cooper Transp., 852 So.2d 398, 401 (Fla. 3d DCA 2003).

The cases on which the Commission relies involve facts demonstrating considerably greater culpability than that which is involved in this case. See Moncaleano v. Fla. Unemployment Appeals Comm’n, 883 So.2d 899 (Fla. 3d DCA 2004) (claimant violated policy a third time after having been previously warned and placed on suspension); Zorrilla v. L. Luria & Son, Inc., 645 So.2d 1078 (Fla. 3d DCA 1994) (claimant contumaciously refused to follow his supervisor’s instruction after repeatedly admonished to do so); Odom v. Unemployment Appeals Comm’n, 586 So.2d 504 (Fla. 5th DCA 1991) (repeated large discrepancies in counting truck loads of merchandise after being given specific instructions after previous incidents of miscounting truck loads); Terjesen v. Unemployment Appeals Comm’n, 491 So.2d 1189 (Fla. 3d DCA 1986) (five different incidents of mishandling funds held to be misconduct warranting denial of benefits); Alterman Transport Lines, Inc. v. Unemployment Appeals Comm’n, 410 So.2d 568 (Fla. 1st DCA 1982) (claimant discharged for misconduct after using company facilities, materials, and on-the-clock employees to work on personal projects).

The order now before us is reversed and the cause remanded with directions to reinstate the unemployment benefits.

       At oral argument, the claimant denied that he spilled any paint on either occasion and maintained that this was the fault of a coworker that he had been instructed to supervise. This testimony was not, however, presented at the hearing below. Accordingly we proceed on the assumption that the employer's description of the events is correct.


text:
    Curtis Kendall PERNELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2153.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Curtis Kendall Pernell, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before COPE, WELLS and SALTER, JJ.
   COPE, J.

This is an appeal of an order summarily denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.

The first claim of defendant-appellant Curtis Kendall Pernell is that as a result of a resentencing in 2000, the trial court inadvertently increased his aggregate sentence length from sixty years to seventy years. The trial court denied the claim on the theory that it had been previously adjudicated. The defendant has appealed.

By way of background, in 1997, the defendant had sixteen pending criminal cases in the trial court. Pursuant to a plea agreement, the defendant was sentenced to concurrent sixty year sentences in a number of the cases, and shorter concurrent sentences in the remaining cases.

Thereafter the defendant filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, and in 2000, the trial court granted partial relief. In three of the trial court cases, there had never been a notice of habitualization. As a result, the trial court resentenced the defendant to ten year sentences under the sentencing guidelines in those cases. The judge’s oral pronouncement made clear that the defendant’s aggregate sentence would remain sixty years.

Thereafter the Department of Corrections recalculated the defendant’s tentative release date. The Department concluded that as a result of the resentencing, the defendant’s aggregate sentence is now seventy years. The Department’s explanation to the defendant was that in two of the resentenced cases, the ten year sentences were now running consecutive, rather than concurrent.

The State’s response filed in this court acknowledges that this is a claim which the defendant has not previously raised and that the trial court erred in concluding that this particular claim had been previously adjudicated. The claim here is that the written sentencing order deviates from the court’s oral pronouncement. Such a claim is cognizable under rule 3.800(a). Williams v. State, 957 So.2d 600, 601 (Fla.2007). We therefore reverse the order now before us on this issue and remand for consideration of the merits of the claim.

We affirm with regard to claims two and three.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

       Because the sentencing structure in this case is complicated, counsel shall be appointed for the proceedings on remand.


text:
    Jukorie C. DAVIS, Appellant, v. FLORIDA DEPARTMENT OF REVENUE, Appellee.
    No. 3D09-2561.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Emelike Nwosuocha, Miami, for appellant.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed. See § 409.2563, Fla. Stat. (2009).


text:
    Ronnie GARY, Appellant, v. Loualter GARY, Appellee.
    No. 4D09-3518.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Ronnie Gary, West Palm Beach, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Kerzner v. Lerman, 849 So.2d 1185, 1187 (Fla. 4th DCA 2003) (“In the absence of a transcript of the ... hearing, and in light of our inability to identify error on the face of the record, we affirm the order in this regard.”) (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979)).

WARNER, POLEN and STEVENSON, JJ., concur.


text:
    Sonny S. MANZANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-56.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    George M. Evans, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, WELLS and SALTER, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion for postconviction relief, in which Sonny S. Manzano seeks to set aside the plea she entered in 2000, because she alleges that she was not warned of the immigration consequences of the plea. The motion of defendant-appellant Manzano was filed December 2, 2009.

We affirm the trial court’s order denying relief because the window period created by State v. Green, 944 So.2d 208 (Fla. 2006), ran two years from October 26, 2006. The motion was filed after the expiration of the window period.

Affirmed.


text:
    David MURRAY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-487.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and LAGOA, JJ.
   COPE, J.

This is an appeal of a judgment which adjudicated David Murray a sexually violent predator and committed him to the Florida Civil Commitment Center pursuant to the Jimmy Ryce Act. See §§ 394.910-.931, Fla. Stat. (2005). The question is whether the evidence was legally sufficient to support the adjudication.

First, the point was not properly preserved for appellate review. The defense made timely motions for a directed verdict. However, Florida Rule of Civil Procedure 1.480(b) has been interpreted as requiring a party to file, in addition, a post-verdict motion for entry of judgment in accordance with the motion for a directed verdict. Fulton County Adm’r v. Sullivan, 753 So.2d 549, 558-54 (Fla.1999); Brown v. State, 940 So.2d 609, 610 (Fla. 4th DCA 2006); Industrial Affiliates, Ltd. v. Testa, 770 So.2d 202, 203-04 (Fla. 3d DCA 2000). In this case no such post verdict motion was filed.

Second, assuming for purposes of discussion that the point was properly preserved, we conclude that the case was properly submitted to the jury to resolve the conflicting expert testimony regarding whether the defendant qualified under the Act. See State v. Shaw, 929 So.2d 1145 (Fla. 5th DCA 2006); Galloway v. State, 900 So.2d 652 (Fla. 5th DCA 2005). See generally Westerheide v. State, 831 So.2d 93 (Fla.2002).

Affirmed.


author: SALTER, J.

text:
    The STATE of Florida, Appellant, v. Alvio DOMINGUEZ, Appellee.
    No. 3D08-2486.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellant.

      Lage Law Firm, and Gustavo D. Lage, Coral Gables, for appellee.
    Before WELLS, C0RTIÑAS, and SALTER, JJ.
   SALTER, J.

The State appeals two rulings by the circuit court regarding the trial and conviction of Alvio Dominguez for official misconduct and grand theft. The first issue is whether the submission of falsified tuition reimbursement paperwork by a county employee was properly charged as eight separate violations of each statute (per the amended information) or should instead be considered one course of conduct and thus a single violation of the applicable statutes (as the trial court determined).

The second issue is whether the trial court erred by declining to assess the police investigative costs as part of the judgment of conviction pursuant to section 938.27(1), Florida Statutes (2007). We reverse on each of these points.

The amended information alleged, and the evidence at trial proved, that Dominguez sought and obtained tuition reimbursement from a county employee program for eight separate semesters of classes. The program required employees who also obtained military veterans’ educational benefits to report and credit those amounts in submitting their out-of-pocket amounts for reimbursement by the county. Dominguez, himself a veteran and continuing service member with the National Guard, knew about this requirement but considered it discriminatory and unfair. Separately, and for each of the eight semesters, he prepared reimbursement requests that did not reflect a reduction in his expenses for the amounts he received as veterans’ benefits. He then received and kept the resulting overpayments by the county. Although he had notified the county of his position that the county’s requirement was improper, he did not advise the county that he was submitting reimbursement requests as if the requirement did not exist.

The initial information charged one count of official misconduct under section 838.022, and eight counts of grand theft under section 812.014, Florida Statutes (2007). The amended information charged eight counts of official misconduct, rather than a single count, and the same eight grand theft counts, with each semester’s reimbursement request charged separately under each statute. The jury convicted Dominguez on all sixteen counts.

The trial court granted Dominguez’s renewed motion for dismissal of seven counts under each statute, expressing on the record a concern that the State might have delayed the defendant’s arrest or amended the information to exact a higher sentence. At sentencing, the trial court also acknowledged that it would have granted a defense motion for mitigation or downward departure, rendered moot by the dismissal of fourteen of the sixteen counts, because of Dominguez’s military record and the absence of any prior felony convictions.

The renewed motion to dismiss seven of eight charges under each statute should have been denied. As a matter of law, we have previously determined that each submission of fraudulent documents for payment is chargeable as a separate violation. State v. Diaz, 814 So.2d 466, 467 (Fla. 3d DCA 2002) (as to grand theft, “[t]he statute is silent on the issue of continuing offenses, with no suggestion that the legislature intended to make grand theft a continuing offense,” finding that each invoice was a “separate taking”); Vizcon v. State, 771 So.2d 3 (negotiation of each fraudulent check over a thirteen-month period is a separate violation of the applicable statute). In short, mitigation and a downward departure may be appropriate, as the trial court noted, based on Dominguez’s record with the county and military (although that question is not presently before us), but the dismissal of separately-chargeable offenses is not a permissible means to the same end.

Regarding the investigative costs, section 938.27, Florida Statutes (2007) provides that such costs “shall” be included in the judgment of conviction. The costs must be established by a preponderance of the evidence. The defense complained that certain expenses related to one individual were not shown to have been related to the case, but the court summarily declined to award any investigative costs whatsoever. The record does not provide a legal or factual basis for denying all of the investigative costs submitted. On remand, the trial court should allow the State an opportunity to prove the costs and the defense an opportunity to object to or disprove those expenses.

Reversed and remanded for reinstatement of the jury’s verdict on all counts, for re-sentencing, and for further proceedings regarding the assessment of investigative costs.

      . Dominguez argues that such an interpretation might allow each separate piece of paper submitted for a single semester’s reimbursement to be separately charged. That is not before us and is not our holding here.


author: LAGOA, J.

text:
    Serge JEAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2419.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.

      Gennaro Cariglio, Jr., Miami, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG and LAGOA, JJ.
   LAGOA, J.

Serge Jean (“Jean”) appeals from convictions and sentences for escape, felony possession of methamphetamine and cocaine, and misdemeanor possession of marijuana. Because the trial court abused its discretion in limiting defense counsel's closing argument, we reverse the convictions, vacate the sentences and remand for a new trial.

I. FACTUAL AND PROCEDURAL HISTORY

The charges against Jean stem from an incident during which an officer, who stopped to investigate Jean and several others standing in front of a house, observed Jean discard drugs on the ground. Jean was arrested, handcuffed and placed in the back seat of a police car for transport to the police station. During transport, the car door opened and Jean either fell or jumped from the car. The officer stopped the car and told Jean not to move. Instead, Jean got up and ran away. Approximately ten minutes later Jean was returned to custody.

Jean testified at trial and presented his version of the events, including his denial that he possessed drugs or threw them on the ground. Jean further explained the circumstances under which he fell from the car and why he ran from the officer. During closing argument, defense counsel attempted to argue that it was within the province of the jury to determine whether Jean was in lawful custody for the purpose of the escape charge. The trial court, however, sustained the State’s objection and did not permit the defense to proceed with this argument. Jean was found guilty of the escape and possession charges, and this appeal ensued.

II. ANALYSIS

On appeal, Jean argues that the trial court improperly prohibited defense counsel’s closing argument concerning lawful custody. We agree. “The purpose of closing argument is to help the jury understand the issues presented in a case by applying the evidence to the applicable law.” Goodrich v. State, 854 So.2d 663, 664 (Fla. 3d DCA 2003). Counsel should be permitted to present all legitimate arguments. See Thomas v. State, 748 So.2d 970, 984 (Fla.1999); Rogers v. State, 844 So.2d 728, 733 (Fla. 5th DCA 2003). In so doing, the trial court must afford counsel wide latitude in presenting the closing argument. See Ford v. State, 802 So.2d 1121 (Fla.2001); Williams v. State, 912 So.2d 66 (Fla. 4th DCA 2005); Goodrich, 854 So.2d at 664. It is within the trial court’s discretion to determine whether counsel’s argument is improper. See Bigham v. State, 995 So.2d 207, 215 (Fla.2008). However, a trial court abuses its discretion when it fails to afford such latitude to defense counsel and, as a result, counsel is precluded from presenting his or her theory of the case to the jury. See Goodrich, 854 So.2d at 665; Hendrickson v. State, 851 So.2d 808 (Fla. 2d DCA 2003). The trial court’s limitation here amounted to just such an abuse of discretion.

Of particular concern to this Court is the fact that the jury instruction for the escape charge is as follows:

To prove the crime of escape, the State must prove the following three elements beyond a reasonable doubt: Number one, Serge Jean was under arrest and in the lawful custody of a law enforcement official. Number two, while a prisoner, Serge Jean was being transported to or from a place of confinement. Number three, Serge Jean escaped or attempted to escape by running away from a law enforcement officer, intending to avoid lawful confinement. “Transportation to a place of confinement” begins at the time an individual is placed under arrest. An “arrest” takes place when the arresting officer intends to arrest; the arresting officer actually or constructively seizes the person to be arrested; the officer’s intent to arrest is communicated by the arresting officer to the person to be arrested; and the person to be arrested understands that communication. An “arrest” does not require that the law enforcement officer complete the act of acquiring total physical control over the person to be arrested.

(emphasis added).

Defense counsel’s argument concerning legal custody was permissible in this case because the jury was instructed to consider this issue. See Marman v. State, 814 So.2d 1158, 1159 (Fla. 2d DCA 2002) (“If an instruction is given to the jury, counsel must be given an opportunity to address the jury on the matter.”); see also Seckington v. State, 424 So.2d 194, 195 (Fla. 5th DCA 1983) (“Even though it is not the prerogative of an attorney in his closing arguments to instruct the jury on the law, it is entirely appropriate for an attorney to relate the applicable law to the facts of the case.”); Taylor v. State, 830 So.2d 91, 93 (Fla. 1st DCA 1976) (“An attorney should ... be allowed to explain to the jury those instructions which are relevant to his theory of the case and to emphasize any portion of the jury charge that he feels to be pertinent.”); United States v. Hall, 77 F.3d 398, 401 (11th Cir.1996) (holding that counsel is permitted “point out legal concepts that will be included in the jury charge”), abrogation on other grounds recognized by Hunter v. United States, 559 F.3d 1188, 1190 (11th Cir.2009), judgment vacated, — U.S. —, 130 S.Ct. 1135, — L.Ed.2d — (2009).

Here, the trial court instructed the jury to determine whether, in pertinent part, the State had proven the following element beyond a reasonable doubt: “Serge Jean was under arrest and in the lawful custody of a law enforcement official.” (emphasis added). See Applewhite v. State, 874 So.2d 1276, 1278 (Fla. 5th DCA 2004) (stating that “[t]he elements of [escape include whether] defendant was a prisoner, which is defined as any person who is under arrest and in the lawful custody of a law enforcement official”); see also State v. Ramsey, 475 So.2d 671, 672 (Fla.1985) (“ ‘For conviction under the escape statute, the state need show only (1) the right to legal custody and (2) a conscious and intentional act of the defendant in leaving the established area of such custody.’ ” (quoting State v. Akers, 367 So.2d 700, 702 (Fla. 2d DCA 1979))). Therefore, “the defense [should have been given] the opportunity to argue to the jury for a decision based on the law as instructed, no matter how far-fetched the argument might be.” Marman 814 So.2d at 1159. Cf. Bigham, 995 So.2d at 214-15 (holding that trial court did not abuse its discretion in forbidding defense counsel’s argument as to dismissed charges as those charges “were no longer germane to the jury’s consideration”). Accordingly, we find that the trial court abused its discretion in prohibiting the lawful custody argument and the escape conviction must be reversed.

In addition, because the trial court precluded the argument at issue, we are compelled to reverse the drug possession convictions. The jury may have concluded from the trial court’s ruling that this was not an issue for the jury and that the trial court had deemed that Jean’s custody for drug possession was lawful, and therefore, Jean did possess drugs, as the State contended. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir.1999) (holding that the limitation of counsel’s closing argument violated defendant’s right to present a defense and relieved the prosecution of the burden to prove its case). Based on the foregoing, we reverse the convictions, vacate the sentences, and remand for a new trial on the escape and drug possession charges.

Reversed and remanded.

      . Specifically, defense counsel argued:
      MR. BARROW: Folks it's our contention that Mr. Jean was not in lawful custody.

        MR. HOPPLE: Objection.
      THE COURT: Sustained.
      MR. BARROW: You get the chance to decide.
      MR. HOPPLE: Objection.
      THE COURT: Sustained.
      MR. BARROW: Judge I didn't finish my sentence.
      THE COURT: Okay.
      MR. BARROW: You get a chance to determine, and decide who was credible from that chair. You heard me ask the officer Detective Zarga (phonetic) — you have saw (sic) his answers when I asked them — I had to ask three, four, five times the same question. He didn't want to answer it. Why? It wouldn’t look good if he answered the questions that I asked. He volunteered other answers to different questions I didn't ask. Members of the jury, you didn't leave your common sense out. You didn't leave. I ask that you find that my client is not guilty of those charges. Thank you.

      . Because Jean will be retried on the escape charge, we note that the crime of escape was complete when Jean ran from the officer. See Gaskin v. State, 869 So.2d 646, 647 (Fla. 3d DCA 2004). Therefore, the fact that Jean was once again in custody within a short time does not preclude a conviction for escape.


author: SUAREZ, J.

text:
    VARIETY CHILDREN'S HOSPITAL d/b/a Miami Children's Hospital, Petitioner, v. Brian BOICE and Stacey Boice as co-personal representatives of the Estate of Brody Boice, and on behalf of themselves individually, Respondents.
    No. 3D09-3409.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.

      Wicker, Smith, O’Hara, McCoy & Ford and Shelley H. Leinicke, Fort Lauderdale, for petitioner.
    Domnick & Shevin and Harry A. Shevin, Palm Beach Gardens; The Haggard Law Firm and James C. Blecke, Coral Gables, for respondents.
    Before SUAREZ, CORTIÑAS, and SALTER, JJ.
   SUAREZ, J.

Miami Children’s Hospital (“Miami Children’s”) petitions this Court for a writ of certiorari quashing an order denying Miami Children’s motion for protective order and motion to quash subpoena duces te-cum, on grounds that the orders below violate mandatory presuit screening requirements. This Court has certiorari jurisdiction to review the orders. See Baptist Hosp., Inc. v. Garcia, 994 So.2d 390 (Fla. 3d DCA 2008). We grant the petition for writ of certiorari and quash the orders below.

The petition for writ of certiorari arises out of a medical malpractice suit brought against Dr. Duchowny by the parents, as co-personal representatives, of their minor child’s estate. Pursuant to section 766.106, Florida Statutes (2007), the Boices served a notice of intent on the child’s treating physician, Dr. Duchowny, and his medical association on November 24, 2008. A notice of intent was not served on the hospital and no presuit investigation was conducted at that time. At the conclusion of the presuit investigation period for Dr. Duchowny, suit was filed against the doctor and his professional association. Approximately six months later, the Boices filed an amended complaint naming Miami Children’s as a defendant in the lawsuit against Dr. Duchowny and his medical association. Miami Children’s filed a motion to dismiss for failure to comply with the presuit filing procedures of Chapter 766 and Florida Rule of Civil Procedure 1.650, as the notice of intent had not been served. The trial court dismissed Miami Children’s as a defendant and granted Miami Children’s motion for protective order as to discovery. The Boices then served the statutory notice of intent on Miami Children’s on November 12, 2009. On the same day as service of the notice of intent on Miami Children’s, the Boices served on Miami Children’s a notice to produce documents, which Miami Children’s claims are privileged, and subpoenas duces tecum for videotaped depositions of numerous hospital personnel. Miami Children’s moved for a protective order and to quash subpoenas duces tecum on grounds that pre-suit investigation had not been completed. The trial judge denied the motion for protective order and denied the motion to quash subpoenas duces tecum. This petition for writ of certiorari filed by Miami Children’s follows.

The Boices argue, in response to this petition for certiorari, that, because a complaint has been filed against Dr. Du-chowny involving the same issues relevant to the impending suit against Miami Children’s and because Miami Children’s is not yet a party to the action, the Boices are entitled to take record discovery of Miami Children’s as a non-party pursuant to Florida Rules of Civil Procedure. We find the argument interesting, but, pursuant to the facts presented in this case, reject this argument and find that the trial court departed from the essential requirements of law by denying the hospital’s motion for protective order and to quash subpoena duces tecum. Although Miami Children’s, technically a non-party, has been served by the Boices with the statutorily required notice of intent, the informal discovery period has not run and the Boices have let it be known that Miami Children’s will be made a party in the lawsuit concerning Dr. Duchowny. Based on these facts, the Boices cannot circumvent the intent and requirements of Florida Statutes and obtain record discovery prior to completion of the statutorily required informal discovery period.

“The courts of this State, including this Court, have uniformly found that the legislature enacted chapter 766 to ‘promote the settlement of meritorious claims at an early stage without the necessity of a full adversarial proceeding.’ ” Cohen v. Dauphinee, 739 So.2d 68, 71 (Fla.1999) (citations omitted). The legislature considered that the exchange of information during the presuit screening process would be greater if confidentiality was assured. Cohen, 739 So.2d at 71 (citing Grimshaw v. Schwegel, 572 So.2d 12, 13 (Fla. 2d DCA 1990)). The prevailing policy of the State relative to medical malpractice actions is to encourage early settlement of meritorious claims and to screen out frivolous claims. In order to distinguish non-meritorious negligence claims at the earliest point, a free and open exchange of information during the presuit screening process is necessary and this is more likely to occur if parties are assured confidentiality of information. For all of these reasons, the legislature distinguished between informal and formal discovery in a medical malpractice action, see § 766.106(6), Fla. Stat. (2007), and made it clear that information obtained during presuit screening is confidential and not subject to formal discovery. It provided that statements, discussions, written documents and reports would be available to the opposing party during the informal discovery of presuit screening, but protected those items from formal discovery until after suit is filed. Because the information obtained during presuit screening is protected from formal discovery, the information obtained before the presuit screening period time has expired, and is confidential. Formal discovery may not be instituted until a lawsuit has been formally filed. Because of the clear and unambiguous language of section 766.205(4), which provides that “[n]o statement, discussion, written document, report or other work-product generated solely for the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party,” formal production of privileged documents and formal videotaped depositions sought to be obtained prior to the expiration of the presuit screening period would be public record, and, if not quashed, violative of the confidentiality privilege of section 766.205(4). Because any deviation from the clear and unambiguous language of section 766.205(4) would contravene the mandates of the presuit screening procedure and statute, we find that the trial court departed from the essential requirements of law in denying Miami Children’s motions for protective order and to quash subpoena duces tecum.

We therefore grant the petition for writ of certiorari and quash the orders below.

Certiorari granted.

      . See § 766.106, Fla. Stat. (2007).

      . The Boices have failed to present us with any case based on these facts where formal discovery has been allowed.


author: CORTIÑAS, J.

text:
    PHOENIX HOLDING, LLC, Appellant, v. Armando N. MARTINEZ, Iluminada Martinez and the Bank of New York, on behalf of Citimortgage Loan Trust, Appellees.
    No. 3D09-3365.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Arnaldo Velez, Coral Gables, for appellant.

      Shapiro and Fishman and Heidi J. Wein-zetl; Dania S. Fernandez, Coral Gables, and Monica Amador, for appellees.
    Before RAMIREZ, C.J., and CORTIÑAS J., and SCHWARTZ, Senior Judge.
   CORTIÑAS, J.

Phoenix Holding, LLC, the successful bidder at a foreclosure sale, appeals an order denying its motion for a writ of possession and granting the mortgagors’ motion to vacate the sale and the judgment upon which it was based. The mortgagors had provided no true defense to the foreclosure but had merely pled their victim-hood in various ways. The trial court, agreeing with the notion that they had received no court notices because of a clerical error sending the notices to the wrong address, set aside the summary judgment of foreclosure “[i]n terms of fairness and due process.” We find this to be a gross abuse of discretion and therefore reverse.

“Whether the complaining party has made the showing necessary to set aside a [foreclosure] sale is a discretionary decision by the trial court, which may be reversed only when the court has grossly abused its discretion.” United Cos. Lending Corp. v. Abercrombie, 713 So.2d 1017, 1018 (Fla. 2d DCA 1998). “When analyzing a trial court’s exercise of its discretion, the appellate court is to determine whether ‘reasonable persons could differ as to the propriety of the action taken by the trial court.’ ” Ingorvaia v. Horton, 816 So.2d 1266, 1259 (Fla. 2d DCA 2002) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)). “If reasonable persons could differ, then the court’s action was not an abuse of discretion.” Id.

“It is established that a judicial sale may be set aside on the grounds of gross inadequacy of consideration, surprise, accident, mistake, or irregularity in the conduct of the sale.” U-M Pub., Inc. v. Home News Pub. Co., 279 So.2d 379, 381 (Fla. 3d DCA 1973) (citing Moran-Alleen Co. v. Brown, 98 Fla. 203, 123 So. 561 (1929)). “However, even though a judicial sale will not be set aside due to ‘slight defects,’ or for ‘merely technical, formal, and unimportant irregularities,’ we must view the proceedings in their totality.” Id. (internal citations omitted). In their motion to set aside foreclosure sale, the mortgagors cite Rule 1.540(b), Florida Rules of Civil Procedure, for the proposition that a court may relieve a party from a final judgment, but they neglect to assert the presence any of the required elements: mistake, excusable neglect, newly discovered evidence, or fraud.

For the first time on appeal, the mortgagors argue that because Rule 1.080(h)(2), Florida Rules of Civil Procedure, gives a mortgagor against whom a default judgment has been entered the right to be served with a copy of the judgment, and because the final judgment in this case was served to them at the wrong address, it was correctly reversed. However, Rule 1.080(h)(3) notes that subdivision (h) “is directory and a failure to comply with it does not affect the order or judgment or its finality or any proceedings arising in the action.” See also Bennett v. Ward, 667 So.2d 378, 381 (Fla. 1st DCA 1995) (quoting Subsaro v. Van Heusden, 191 So.2d 569, 570 (Fla. 3d DCA 1966)) (“The ‘failure of the judgment debtor to receive ... notice’ does not automatically require that a judicial sale be set aside.”).

The two cases the mortgagors cite in which a foreclosure judgment is reversed are distinguishable because, in both cases, neither the debtors nor their attorneys received notice. See Ingorvaia, 816 So.2d at 1257; Bennett, 667 So.2d at 380-81. Here, the mortgagors were undisputedly served at their correct address, and it is apparent from their filing of both an answer and a motion to deny summary judgment that they were aware of what was occurring in the action. In addition, the mortgagors’ counsel clearly knew about the final judgment and notice of sale, as reflected in a letter to mortgagors dated seven weeks before the sale.

With no valid reason, the trial judge set aside the judgment and sale solely because he did not “think it [was] fair.” Unfortunately, neither the ground of fairness nor “the ‘ground’ of benevolence and compassion ... constitute^] a lawful, cognizable basis for granting relief to one side to the detriment of the other, and thus cannot support the order below: no judicial action of any kind can rest on such a foundation.” Republic Fed. Bank, N.A. v. Doyle, 19 So.3d 1053, 1054 (Fla. 3d DCA 2009). Although the trial judge might believe otherwise, “[w]e cannot agree that courts of equity have any right or power under the law of Florida to issue such order it considers to be in the best interest of ‘social justice’ at the particular moment without regard to established law.” Flagler v. Flagler, 94 So.2d 592, 594 (Fla.1957). Accordingly, we reverse and remand with instructions to reinstate the final judgment and sale of the foreclosed property.

Reversed and remanded.

      . Among other excuses, the mortgagors asserted that they had lost their second jobs, they were not given salary raises, their mortgage payment increased, they were not creditworthy, they were defrauded by loan modification companies, and they had separated.

      . The mortgagors included the wrong return address in their answer.


author: BENTON, J.

text:
    N.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2630.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2010.
    Jeffrey Lewis, Regional Conflict Counsel, Jacksonville; Laura Anstead, Assistant Conflict Counsel, and Sheila Callahan, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

N.S. appeals a final disposition order which withheld adjudication of delinquency and a restitution order requiring restitution in the amount of $5,217.49. We reverse the restitution order and remand for further proceedings.

Although the trial court advised N.S. at the disposition hearing (at which the state presented its restitution evidence) of his right to have counsel appointed, the trial court failed to obtain the necessary written waiver. See Fla. R. Juv. P. 8.165(a) (“This waiver shall be in writing.”). Nor is there any indication that N.S. discussed the pros and cons of waiver with counsel. Cf. Tucker v. State, 559 So.2d 218, 220 (Fla.1990) (allowing adult to waive jury trial orally on the record after consultation with counsel despite rule requiring written waiver). Florida Rule of Juvenile Procedure 8.165(a) now provides: “Waiver of counsel can occur only after the child has had a meaningful opportunity to confer with counsel regarding the child’s right to counsel, the consequences of waiving counsel, and any other factors that would assist the child in making the decision to waive counsel.”

N.S.’s mother did not verify in writing that she had discussed waiving counsel with N.S. or that his decision to do so appeared to her to be knowing and voluntary. See Fla. R. Juv. P. 8.165(b)(3) (“If the child is entering a plea to or being tried on an allegation of committing a delinquent act, the written waiver shall also be submitted to the court in the presence of a parent, legal custodian, responsible adult relative, or attorney assigned by the court to assist the child, who shall verify on the written waiver that the child’s decision to waive counsel has been discussed with the child and appears to be knowing and voluntary.”). No other qualified adult was present or verified “on the written waiver that the child’s decision to waive counsel” had been made voluntarily after discussion with a qualified adult.

Because the trial court withheld adjudication, placed the appellant on probation and subsequently entered an order terminating his supervision, reversal of the final disposition order is not warranted. See Edwards v. State, 765 So.2d 222, 222 (Fla. 2d DCA 2000) (“While appellant is correct, and we would normally remand for resen-tencing pursuant to Smith v. State, 761 So.2d 419 (Fla. 2d DCA 2000), this issue has been made moot by appellant’s release from incarceration on March 10, 2000.”). N.S. does not on appeal challenge the antecedent finding (at the adjudicatory hearing) that he committed battery.

We therefore reverse only the restitution order and remand for a new restitution hearing.

KAHN and ROBERTS, JJ., concur.


author: VILLANTI, Judge.

text:
    STATE of Florida, Appellant, v. Ian James LEGNOSKY, Appellee.
    No. 2D09-2169.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   VILLANTI, Judge.

The State appeals the trial court’s order granting Ian James Legnosky’s motion to suppress, which resulted in the dismissal of all charges against him. We reverse.

The facts are essentially undisputed. On December 16, 2008, Deputy Mark Darst was attempting to serve a March-man Act court order on Shannon Coteral. Upon receiving information that Coteral was in Legnosky’s apartment, Deputy Darst visited the apartment. An individual who identified himself as Jason Gonzalez answered the door. Upon being told the reason for Deputy Darst’s visit, Gonzalez indicated that Coteral was not in the apartment and invited the deputy into the apartment to look around. Gonzalez indicated that a woman had been in the apartment earlier. Thereafter, Legnosky came out from a bedroom. Recognizing Legno-sky as Coteral’s boyfriend, Deputy Darst told him that he was looking for Coteral. Legnosky responded, “She’s not here, she’s already been served. She’s been taken to a rehab. I haven’t seen her in several days.” However, because Gonzalez had indicated that a woman had been in the apartment earlier, Deputy Darst did not believe Legnosky’s statements and checked the bedroom from which Legno-sky had just come. The deputy found Coteral hiding in the closet of that bedroom and arrested Legnosky for “lying” to him — obstructing him without violence based upon “lies” which hindered his investigation and ability to take Coteral for evaluation. Coteral intervened, acknowledging, “Please don’t [arrest Legnosky], he was just trying to protect me.” Upon Legnosky’s arrest, the police found in his pocket Oxycodone, Oxycontin or its equivalent, as well as Xanax.

Legnosky was charged with two counts of possession of a controlled substance and one count of obstructing or opposing an officer without violence. At the hearing on the motion to suppress, Legnosky argued that words alone, unaccompanied by any physical conduct preventing the officer from searching — i.e., merely lying about Coteral’s whereabouts when he knew she was hiding in the closet — could not constitute obstruction as a matter of law. The trial court agreed and granted Legnosky’s motion to suppress, reasoning that Legno-sky’s “lies” did not ultimately hinder the police officer because he still searched and found Coteral almost immediately despite Legnosky’s “lies.” We disagree with the trial court’s conclusion that this scenario could not constitute obstruction without violence as a matter of law.

Appellate review of a ruling on a motion to suppress is a mixed question of law and fact. State v. Busciglio, 976 So.2d 15, 18 (Fla. 2d DCA 2008). The appellate court will presume that the trial court’s findings of fact are correct and will reverse those findings only if they are not supported by competent, substantial evidence. Cuervo v. State, 967 So.2d 155, 160 (Fla.2007). However, application of the law to the historical facts is reviewed de novo. Id.

There is no evidence that Legnosky engaged in any physical conduct impeding the deputy’s duties. The issue here is whether Legnosky’s false statements to Deputy Darst that Coteral was not in the apartment, that he had not seen her in days, and that she had already been served and had been taken to a rehab center constituted obstruction sufficient to support arrest. Section 843.02, Florida Statutes (2008), provides:

Resisting officer without violence to his or her person. — Whoever shall resist, obstruct, or oppose any officer ... in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree....

Thus, to establish a charge of resisting an officer without violence, the State must prove that: (1) the police officer was engaged in the execution of legal process or execution of a legal duty, and (2) the defendant’s actions constituted obstruction or resistance. Id.; Francis v. State, 736 So.2d 97, 98 (Fla. 4th DCA 1999). It is undisputed that Deputy Darst was serving legal process. Therefore, the only question is whether Legnosky’s actions rose to the level of obstruction or resistance. We conclude they did.

Typically, physical conduct must accompany words to support a charge of obstruction. In D.G. v. State, 661 So.2d 75, 76 (Fla. 2d DCA 1995), while concluding that the defendant’s words alone in that particular case did not constitute obstruction, this court explained the following “general proposition” applicable to section 843.02:

If a police officer is not engaged in executing process on a person, is not legally detaining that person, or has not asked the person for assistance with an ongoing emergency that presents a serious threat of imminent harm to person or property, the person’s words alone can rarely, if ever, rise to the level of an obstruction. Thus, obstructive conduct rather than offensive words are normally required to support a conviction under this statute.

Id. (emphasis added). As noted in D.G., this court has identified three scenarios under which words alone are sufficient to obstruct a police officer. One of those scenarios is when an officer is attempting to serve process. Francis, 736 So.2d 97, 99 n. 2 (Fla. 4th DCA 1999) (“Words alone may result in obstruction of justice where the officer in question is 1) serving process; 2) legally detaining a person; or 3) asking for assistance.” (emphasis added)); Jay v. State, 731 So.2d 774, 775 (Fla. 4th DCA 1999) (“[T]he court provides three legal duties, when coupled with words alone, which will result in obstruction of justice, (1) serving process; (2) legally detaining a person; or (3) asking for assistance.”); Davis v. Williams, 451 F.3d 759, 765 n. 9 (11th Cir.2006) (interpreting Florida law and stating that words alone can result in obstruction of justice where an officer is serving process, legally detaining a person, or asking for assistance). Here, Deputy Darst was attempting to execute process.

Courts have also found a defendant’s words alone sufficient to support obstruction charges when that defendant has been working as a “lookout” during the commission of a criminal act. For example, obstruction charges have been upheld when an officer observes a crime and tries to make an arrest, but a “lookout’s” words warn the suspect that the police are coming, thereby preventing a possible suspect’s apprehension. See, e.g., Porter v. State, 582 So.2d 41, 42 (Fla. 4th DCA 1991) (holding that defendant could be charged with obstruction under section 843.02 where he acted as “lookout” for drug deal and warned drug dealer that the police were coming by yelling code words, thereby allowing drug dealer to escape). In such circumstances, the defendant's words are intended to interfere with and impede police officers in the execution of their legal duties. Id. at 41, 43. Similarly, words alone support obstruction charges when the defendant gives a police officer a false name during his arrest, because that act hinders the officer’s performance of his arrest duties. See, e.g., Caines v. State, 500 So.2d 728, 729 (Fla. 2d DCA 1987). The focus, thus, should be on whether the defendant’s false statements were intended to hinder the police officer in the exercise of his duties, not on whether the defendant’s ruse achieved its intended result. It is enough that Legnosky’s “lies” thwarted the officer’s ability to immediately execute process and take Coteral in for evaluation without engaging in a potentially dangerous search. To hold otherwise would punish a defendant only if the police officer actually believes a defendant’s “lies,” while exonerating or rewarding a defendant if the police officer does not believe his “lies.” This result would be illogical.

Moreover, the supreme court recently noted that “to support a conviction for obstruction without violence, the State must prove ... [that] the defendant’s action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So.3d 1181, 1186 (Fla.2009) (emphasis added). Therefore, the supreme court has indicated that there are circumstances when words alone are sufficient to support an obstruction charge. This is one such circumstance. As in the cases cited above, Legnosky’s words were intended to hinder, prevent, or obstruct Deputy Darst’s legal duties of serving process and taking Coteral into custody for substance evaluation. Legnosky’s words were not “mere verbal expression challenging police action,” but rather, on their face, were “intended to impede the officer [ ] in the execution of [his] duties.” Porter, 582 So.2d at 43. Based on these facts, words alone were sufficient to charge Leg-nosky with a violation of section 843.02, and the trial court erred in granting the motion to suppress.

Reversed and remanded.

LaROSE, J., and FULMER, CAROLYN K., Senior Judge, Concur.

      . A Marchman Act order allows an officer to take a person into custody for involuntary drag or alcohol assessment. See § 397.6811, Fla. Stat. (2008).


author: KHOUZAM, Judge.

text:
    Vincent BILOTTI, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2656.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2010.

      Jackson Stuart Flyte, Regional Counsel, Second District, and Jeffrey Sullivan, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Vincent Bilotti appeals the orders denying his motion for postconviction relief. We reverse the summary denial of relief as to one claim. In all other respects, we affirm.

Bilotti filed a pro se motion for postcon-viction relief pursuant to Florida Rule of Criminal Procedure 3.850 in which he raised numerous claims of ineffective assistance of trial counsel. Although the motion was not a model of clarity, the post-conviction court identified eleven separate grounds of ineffective assistance of counsel. Several of the grounds were either summarily denied or dismissed, and the remaining grounds were denied following an evidentiary hearing. Bilotti’s appellate counsel challenges only the summary denial of relief on ground eleven. He argues that this claim was facially sufficient and that the postconviction court failed to attach any portions of the record that conclusively refuted the claim. The State concedes error with respect to a portion of the claim raised in ground eleven.

The postconvietion claim at issue related to Bilotti’s conviction for burglary of a dwelling. The postconviction court narrowly read Bilotti’s claim to be that trial counsel failed to argue Bilotti’s intent to commit the burglary. The postconviction court summarily denied relief reasoning that the State had the burden to establish the essential elements of the offense and that defense counsel, thus, was not required to argue intent. The postconviction court added that such an argument by defense counsel would have helped the State to convict Bilotti. To this extent, the postconviction court’s summary denial of relief was correct. However, Bilotti argues, and the State agrees, that ground eleven included additional assertions that could be read as a claim that Bilotti’s attorney was ineffective in failing to attack the lack of evidence of Bilotti’s intent to commit an offense once he entered the victim’s residence.

Generally, in order to prove burglary of a dwelling, there must be evidence to support a finding that the defendant entered or remained in a dwelling with the intent to commit an offense therein. See § 810.02, Fla. Stat. (2002) (emphasis added). See also Davis v. State, 736 So.2d 27, 27-28 (Fla. 4th DCA 1999) (addressing essential elements of the offense in the context of jury instructions for attempted burglary). Bilotti may be entitled to post-conviction relief if the evidence presented at his trial did not support the foregoing finding and if such a deficiency went unchallenged by trial counsel. The State acknowledges that in summarily denying relief, the postconviction court did not address this aspect of Bilotti’s claim and it did not attach any portions of the record that would refute the claim. The State concedes that this matter must be reversed and remanded as to this aspect of Bilotti’s claim.

Accordingly, we reverse the portion of the order summarily denying relief on this facet of Bilotti’s claim, and we remand this matter to the postconviction court with directions to attach portions of the record that conclusively refute this claim or to schedule an evidentiary hearing. Additionally, we note that in counsel’s appellate brief there are no assertions of any error as to the denial of Bilotti’s remaining grounds. The State, in its answer brief, argues that any error as to the postconviction court’s rulings on the remaining grounds has been waived because Bilotti has not challenged those rulings in this appeal. Bilotti’s appellate counsel did not reply to the State’s additional argument or seek to file a supplemental brief to address any purported error in regard to Bilotti’s remaining grounds. Because Bilotti asserts no error as to those grounds, we agree that he abandoned and waived any claim of error relating to those grounds. We thus affirm the orders in all other respects.

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

KELLY and VILLANO!, JJ., Concur.

      . The incident that led to this conviction occurred on November 3, 2002.


author: ALTENBERND, Judge.

text:
    Jibri T. ARRINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2700.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2010.
    James Marion Moorman, Public Defender, and Kimberly Nolen Hopkins, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Jibri T. Arrington appeals his judgment and sentence of life without possibility of parole for first-degree felony murder. We affirm. We write to illuminate the facts of this case, in part because two cases now pending before the United States Supreme Court involve teenagers who are serving sentences of life without parole in Florida. See Sullivan v. Florida, 987 So.2d 88 (Fla. 1st DCA 2008) (table decision) cert. granted, — U.S. -, 129 S.Ct. 2157, 173 L.Ed.2d 1155 (2009), and Graham v. Florida, 982 So.2d 43 (Fla. 1st DCA 2008), cert. granted, — U.S. -, 129 S.Ct. 2157, 173 L.Ed.2d 1155 (2009).

On April 23, 2007, Jibri Arrington was an eighth grade student at Haile Middle School in Sarasota County, having recently turned fifteen. Undoubtedly without a valid driver’s license, he was driving a car at 1:00 a.m. because he was bored. In the car, Jibri Arrington had a .38 caliber handgun, which he had purchased for $10 on the street. He also had two passengers, Asa Peterson, who was nineteen years old, and Patrick Dawes, who was sixteen.

On that same night, Mara Bellavia and John Perrone were in a car trying to find a drug dealer from whom they could buy rock cocaine. This couple mistook the teenagers for drug dealers. Apparently on the spur of the moment, the teenagers decided to take advantage of the situation and rob the couple.

Jibri Arrington stayed behind the wheel of the car and the two older teenagers got out of the car. On the way out of the car, Patrick Dawes grabbed the handgun. Ms. Bellavia also got out of her car, and the two teenagers proceeded to rob her. They obtained $16 from Ms. Bellavia. When they tried to take her purse, she resisted. Mr. Perrone got out of the car to come to the aid of Ms. Bellavia. Patrick Dawes apparently dropped the gun; Jibri Arring-ton, still sitting in the car, directed Mr. Dawes to where the gun was located. Patrick Dawes then picked up the gun and killed Mr. Perrone. The two teenagers then got back into the car and Jibri Ar-rington drove them from the scene of the murder.

The three teenagers abandoned the car, but their fingerprints were identified in the vehicle. On May 2, 2007, Asa Peterson was the first to be arrested, and he confessed, explaining that Patrick Dawes had shot Mr. Perrone and that Jibri Arrington had been the driver. Jibri Arrington was also arrested. He gave a recorded statement telling essentially the same story.

The State initially charged Jibri Arring-ton as an adult with second-degree murder and robbery. Later he was indicted for first-degree premeditated murder. At trial, the jury was instructed on both premeditated murder and felony murder. The verdict form did not contain an option for felony murder and another for premeditated murder. The jury found him guilty of first-degree murder and also found that he did not actually possess a firearm during the commission of this offense. During the sentencing, the trial judge acknowledged that Jibri Arrington had not actually fired the gun and that he undoubtedly did not understand the law of felony murder at the time of this offense, but that under the law, Jibri Arrington was guilty of first-degree felony murder and that life without possibility of parole was the mandated sentence.

The records of the Department of Corrections indicate that the oldest perpetrator, Asa Peterson, is serving an eighteen-year term of imprisonment for second-degree murder, while the shooter, Patrick Dawes, is serving a twenty-five year sentence for second-degree murder. Jibri Arrington’s prior record included dispositions for disorderly conduct when he was twelve and two simple batteries when he was thirteen and fourteen.

We have reviewed the record and conclude that the evidence supports a conviction for first-degree felony murder and that the trial court imposed the legally-required sentence.

Affirmed.

NORTHCUTT, J., and CASE, JAMES R., Associate Senior Judge, Concur.

      . See generally Florida Department of Corrections, Inmate Population Information Search, http://www.dc.state.fl.us/ActiveInmates/ search.asp (last visited Feb. 17, 2010).


text:
    Susan DREW, Appellant, v. Douglas DREW, Appellee.
    No. 2D08-3330.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2010.
    Luis E. Insignares, Fort Myers, for Appellant.
    Jonathan J. Luca, Starke, for Appellee.
   KELLY, Judge.

In this appeal from an amended final judgment of dissolution of marriage, the wife argues that the trial court erred in excluding the husband’s annual bonus income in its calculation of the husband’s income for purposes of alimony and child support. Because we agree that the trial court erred in not taking the husband’s bonuses into account in determining his income, we reverse.

Section 61.30(2), Florida Statutes (2007), requires trial courts to consider bonuses in calculating a spouse’s income for purposes of child support, and section 61.08(2)(g) requires trial courts to consider “[a]ll sources of income available to either party” in computing an award of alimony. Thus, we have held that when a trial court calculates income for the purpose of awarding child support or alimony, it may not exclude from consideration bonuses that are regular and continuous. See, e.g., Parry v. Parry, 933 So.2d 9, 16 (Fla. 2d DCA 2006). Here, the trial court excluded the husband’s bonus payments from his income finding that the bonuses were not “fixed or guaranteed” because they are paid at the discretion of the husband’s employer and because they are dependent upon the employer’s yearly profit. While this is true, it is undisputed that the husband has received bonus payments each year for the past nine years, the last eight of which exceeded $25,000. Under similar circumstances, we have concluded that the trial court abused its discretion when it excluded bonuses when determining a party’s income for the purposes of alimony or support. See Parry, 933 So.2d at 16. Accordingly, we reverse the awards of alimony and child support and remand for further proceedings. We affirm the judgment in all other respects.

Affirmed in part, reversed in part, and remanded.

WHATLEY and DAVIS, JJ., Concur.


text:
    ST. JOSEPH’S HOSPITAL, INC., a Florida, Corporation, Petitioner, v. Dirceu and Marluce ARGENTA, Individually and as biological parents and natural guardians on behalf of Rebeca Argenta, a minor, All Florida Residents, Respondents.
    No. 2D09-4953.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 2010.
    H. Hamilton Rice, III, and Courtney L. Rice of Bush Graziano & Rice, P.A., Tampa, for Petitioner.
    T. Gregory Slother and David E. Harvey of Winkles Law Group, P.A., Tampa, for Respondents.
   PER CURIAM.

St. Joseph’s Hospital’s petition for writ of certiorari is denied as to count one, and it is dismissed as to count two. See Fassy v. Crowley, 884 So.2d 359 (Fla. 2d DCA 2004).

WHATLEY, DAVIS, and LaROSE, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Rodney D. HAVENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4602.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 2010.

      Rodney D. Havens, pro se.
   SILBERMAN, Judge.

ORDER RELINQUISHING JURISDICTION FOR ENTRY OF A FINAL POSTCONVICTION ORDER

Rodney D. Havens filed a timely motion for postconviction relief asserting five claims of ineffective assistance of counsel. On August 26, 2009, the circuit court denied four of the claims but dismissed claim five “without prejudice to provide the Defendant the opportunity to make these claims facially sufficient” and to file an amended motion within thirty days. This was the appropriate procedure under Spera v. State, 971 So.2d 754, 755 (Fla.2007). In the same order, the circuit court notified Havens that he had thirty days to file a notice of appeal, as is required when the court enters a final order on a motion for postconviction relief. See Fla. R.Crim. P. 3.850(g). On September 25, 2009, Havens filed a premature notice of appeal. From our examination of the circuit court clerk’s online docket, however, it appears that Havens also filed an amended motion on that date, which the circuit court denied on October 30, 2009.

An order dismissing a motion for postconviction relief that also provides leave to amend is not a final order for purposes of appeal. Christner v. State, 984 So.2d 561, 562 (Fla. 2d DCA 2008). Therefore, the circuit court’s notice to Havens that he had the right to appeal the order was erroneous. We have addressed this anomaly in Christner, id,., and subsequent cases. See, e.g., Koszegi v. State, 993 So.2d 133 (Fla. 2d DCA 2008); Lawrence v. State, 987 So.2d 157 (Fla. 2d DCA 2008).

This case differs from the situation in Christner because it appears that Havens did file an amended motion, which was ultimately denied. However, the circuit court lacked jurisdiction to consider the amended motion after Havens filed his notice of appeal, albeit prematurely. See Fla. R.App. P. 9.600(a); Zinnermon v. State, 685 So.2d 893 (Fla. 2d DCA 1996).

As in Christner, we elect to relinquish jurisdiction to the circuit court for thirty days for the court to enter a final order encompassing all of Havens’ claims. The circuit court clerk shall immediately supplement the record upon rendition of the final order.

Jurisdiction relinquished with directions.

WHATLEY and LaROSE, JJ., Concur.