author: LEVINE, J.

text:
    James DAY Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4214.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.

      Thomas L. Colter of Law Office of Thomas L. Colter, P.A., Stuart, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented in this case is whether the interrogating officer’s constant promises became an improper inducement rendering appellant’s statement involuntary. We find, based upon the totality of the circumstances, the confession is involuntary and due process requirements render the statement inadmissible.

Appellant was convicted of sexual battery and lewd or lascivious conduct. The victim, D.R., age fourteen, told her mother that appellant had touched her breasts and digitally penetrated her vagina. The mother called law enforcement who then interviewed appellant. Appellant was read his Miranda rights and gave a lengthy statement. At trial, appellant moved to suppress his statements claiming the admissions were not knowingly, freely, and voluntarily given since the interrogating officer’s statement contained impermissible promises of leniency. The trial court denied the motion to suppress. Appellant was convicted as charged, and this appeal ensued.

This court has explained the standard of review as follows:

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed -with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” An appellate court accords a presumption of correctness to the trial court’s ruling on motion to suppress with regard to the trial court’s determination of historical facts, but independently reviews mixed questions of law and fact.

Tengbergen v. State, 9 So.3d 729, 733 (Fla. 4th DCA 2009) (citations omitted). We review appellant’s statement to determine if it was given as a result of improper inducement.

In the statement introduced at trial, appellant confessed to illegal acts after the investigator’s many invocations of offers to help him. Initially, the investigator stated, “Um, if — if something happened and its accidental — then we can work something out. But if it’s something that — cause I don’t see you as a predator, okay. I don’t see you as a guy to go out there and start doing some crazy things.” A little while later, the investigator stated,

Okay. And — if I just want to know what happened. If there’s something that we can fix and we can work with, then that’s what I want to know, okay. I don’t want to sit here and start saying, well you — I’m not accusing you of anything. I’m trying to ask you what happened that night because I know, I know that something happened....

Then the investigator stated, “That’s why I’m telling you, I wasn’t there and this— I’m trying to give you the opportunity for you to help yourself so that I can work something out for you.”

A few pages later in the statement, the investigator stated, “That’s what I want to know. At least give me something. Tell me that this is what I did, you know.” A brief time later, the investigator stated,

Well this is why you’re here, to help yourself. Because you know what, if you were — if you were to get arrested on a charge of sexual battery, right, and you go before a judge or a jury and they actually get my version of — that you cooperated in the investigation, it does look a hell of a lot better for you than for you to sit there and fabricate story after story after story....

Then the investigator told appellant,

But you know what, it doesn’t matter, it helps you — it helps you when I talk to the State Attorney and I tell them what type of person you were and how honest you were as to what happened, okay. It doesn’t look good for you when you sit there and start trying to not say what happened....
Briefly later appellant stated that “I just don’t want to go to jail. I don’t like it there.” The investigator responded that “you may be able to bond out like right in a couple of hours. You just got to get booked. What happened, James?” Whereupon, appellant asked, “You gonna help me?” The investigator answered, “I can do my best and talk to the State Attorney. That’s what I can tell you.” A page later in the transcript the investigator stated the following, “I’m gonna tell the State Attorney exactly what you’re telling me. You are cooperating with me. You are telling me what happened. As long as you are honest with me, and I have a lot more than just putting lotion on her, okay. And this is why I — I need you to — to help yourself.”

Finally, the investigator told appellant to “[tjrust me. Trust me,” and

what I’m trying to do is I’m trying to figure out everything that happened here. I’m gonna — I’m gonna present this case to the State, okay. They’re gonna go based on what I tell them, alright. You’ve put lotion on her in the bathroom, correct? Is that why you went to the bathroom?

Only after all these statements by the investigator did appellant admit to placing lotion on the victim’s breasts and make other inculpatory statements.

A confession “must be free and voluntary; that is [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 42 L.Ed. 568 (1897). As Justice Jackson stated:

Of course, no confession that has been obtained by any form of physical violence to the person is reliable and hence no conviction should rest upon one obtained in that manner. Such treatment not only breaks the will to conceal or lie, but may even break the will to stand by the truth. Nor is it questioned that the same result can sometimes be achieved by threats, promises, or inducements, which torture the mind but put no scar on the body.

Watts v. Indiana, 338 U.S. 49, 59-60, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949) (Jackson, J., concurring).

Thus, it is clear and well-settled in the law that “a confession cannot be obtained through direct or implied promises. In order for a confession to be voluntary, the totality of the circumstances must indicate that such confession is the result of a free and rational choice.” Johnson v. State, 696 So.2d 326, 329 (Fla.1997).

“A confession or inculpatory statement is not freely and voluntarily given if it has been elicited by direct or implied promises, however slight.” Telfort v. State, 978 So.2d 225, 227-28 (Fla. 4th DCA 2008) (citation omitted); accord Fillinger v. State, 349 So.2d 714, 715-16 (Fla. 2d DCA 1977). “If the interrogator induces the accused to confess by using language which amounts to a threat or promise of benefit, then the confession may be untrustworthy and should be excluded.” Fillinger, 349 So.2d at 716. The confession may not be the product of “coercive police conduct.” Blake v. State, 972 So.2d 839, 844 (Fla.2007) (citation omitted).

There must also be a “causal nexus between the improper police conduct and the confession.” Nelson v. State, 688 So.2d 971, 974 (Fla. 4th DCA 1997). In the Nelson case, the court found that the confession was not coerced since, in part, there did not appear to be a “causal nexus” between the comments made by the police in the first thirty minutes of the interview and the appellant’s confession two-and-a-half hours into the interview. In the present case, the record contains more than sufficient evidence to indicate a causal nexus between the investigator’s statements throughout the interview and appellant’s confession.

In Ramirez v. State, 15 So.3d 852 (Fla. 1st DCA 2009), the court found that the appellant’s statement was induced by improper police conduct based on the totality of circumstances. The police in Ramirez constantly offered to “help” the appellant, while at the same time requesting information from the appellant. The detective made statements like, “How am I going to help you if you’re lying to me and you don’t want to tell me the truth?” and “[I]f you want us to help you, you need to help us also.” Id. at 854. The detective never explained the limits on his authority to help the appellant. The appellant refeired to the officer as “the law,” who could do whatever he wanted to do. Id. Similarly, in the present case, there was a constant barrage of offers to help throughout the statement, often tied to requests for more information. The investigator stated that she would “work something out” for appellant and that she could “fix” and “work with” what happened. The investigator also implied to appellant that the state would rely on “my version” of the facts, and that the state was “gonna go based on what I tell” the state. All in all, the investigator never clarified the limits of her authority and in fact implied significant authority in the process.

In the present case, the state suggests that the investigator’s statements did not constitute an “express quid pro quo” bargain in return for appellant’s confession. However, as explained in Ramirez:

While the presence of an express “quid pro quo” bargain for a confession will render the confession involuntary as a matter of law, see Walker [v. State], 771 So.2d [573,] 575 [ (Fla. 1st DCA 2000) ], it is not correct to say that the absence of an express “quid pro quo” bargain insulates police misconduct from claims of undue influence or coercion. The test for determining whether a particular confession or statement is involuntary is still whether, in considering the totality of the circumstances, the reviewing court can conclude that the defendant was unable to make a choice free from unrealistic hope and delusions as to his true position, due to the officer’s conduct. Walker, 771 So.2d at 575.

Ramirez, 15 So.3d at 856. The investigator’s constant offers of help, followed by requests for information, and the lack of clarity on the real limits of the investigator’s authority certainly added to appellant’s “unrealistic hope” that the investigator would truly “help him.”

“It must be remembered that confessions, as such, are equally inadmissible when they are the fruits of hope as when they are the product of fear.” Rusher v. State, 94 Ga. 363, 21 S.E. 593, 595 (1894). In the present case, based on the totality of circumstances, the many offers of help and the statements implying authority to influence the process rendered appellant’s confession inadmissible as improper “fruits of hope.”

Reversed.

TAYLOR and GERBER, JJ., concur.

      . Another example of the disconcerting questioning of appellant by the investigator included the investigator telling appellant that the victim was "a fourteen year old that's gonna be, you know, promiscuous like that and she’s gonna be exposing herself. I mean she’s partially to blame. I’m not gonna sit here and defend her like one hundred percent.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eduardo MACIAS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D09-656, 3D09-837.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.
    Eduardo Macias, in proper person.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

ON MOTIONS FOR REHEARING AND CONSOLIDATION

Upon consideration of the appellant’s motions for rehearing and for consolidation of the same appellant’s Case No. 8D09-837 with Macias v. State, Case No. 3D09-656, we withdraw the per curiam affirmance filed June 10, 2009 in the higher-numbered case and substitute the opinion which follows. For the reasons detailed below, we also grant the motion for consolidation and remand both cases to the circuit court for further proceedings.

The issue involved in both cases is whether the trial court erred in denying motions to vacate pleas of no contest under State v. Green, 944 So.2d 208 (Fla.2006). The motions in each of the circuit court cases alleged that the defendant was not given an immigration warning as required by applicable law, and that he is now subject to removal from the United States by immigration authorities as a result of his pleas in those cases. Each motion was filed within the two-year window prescribed in Green.

In an inadvertent judicial variation of “Catch 22,” each motion was denied by the trial court because of the decisional law precluding relief if the challenged plea is not the only basis for removal of the defendant under the immigration laws. Although motions to vacate plea were filed and pending in both cases, the first court determined that the existence of the plea in the second case would subject the defendant to removal even if relief were to be granted in the first case, and vice versa. Under Green, however, the defendant may prevail if he demonstrates an entitlement to relief from plea in both cases.

In fairness to the trial courts and this Court, the defendant’s motions are responsible for the confusion. Neither identified the other case or included (under oath) an allegation that the defendant was also entitled to vacate his plea in the other felony case. Neither motion contains the allegation that the defendant “could not have ascertained the immigration consequences of the plea with the exercise of due diligence within the two-year period [following entry of the plea].” Green, 944 So.2d at 219. Nor has the defendant stated how he intends to prove that the immigration warning was not given (as, for example, by referring to a transcript or other evidence). Id. at 218.

For these reasons, we reverse each of the circuit court orders (on procedural grounds only) and remand the cases to the circuit court with the following directions:

1. The defendant is to be given leave to file and serve an amended motion in each case to conform to the pleading requirements in Green;

2. If a transcript of the plea colloquy is available in either case, it should be attached to the applicable amended motion or the State’s response to that motion; and

3. The amended motions should be consolidated, heard, and ruled upon by a single judge.

Reversed and remanded for further proceedings in each case.

      . The motion for rehearing was filed in our Case No. 09-837.

      . Our case number 3D09-837 is an appeal from an order denying a motion to set aside defendant's plea in circuit court case number F91-15408. Our case number 3D09-656 is an appeal from a similar order entered in circuit court case F94-5115B. Case No. 3D09-656 had not been decided at the time the appellant moved to consolidate the case with 3D09-837.


text:
    Willie David MADERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5843.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    Nancy A. Daniels, Public Defender and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of his conviction and sentence for robbery with a weapon. He argues that the trial court erred in failing to consider and rule on his motion to dischai’ge counsel and in admitting evidence of collateral crimes. We agree that the trial court erred with regard to the motion to dismiss counsel and reverse. We affirm Appellant’s remaining claims without discussion.

Appellant filed his pro se motion to discharge counsel a few days before his trial alleging that his attorney was incompetent for, among other things, failing to prepare an adequate defense. Just before the trial began, Appellant inquired of the trial court as to his motion. The court replied that the motion was a nullity because Appellant was represented by counsel. When Appellant argued that defense counsel was unlikely to file a motion to dismiss himself, the court informed him that he could file a motion for postconviction relief if he was convicted. Appellant’s defense counsel volunteered to address Appellant’s concerns and said he had done everything he could. Appellant asserted that counsel did a little bit, but not all that Appellant asked of him. The court informed Appellant that counsel’s choice whether to file the motion to dismiss counsel was his counsel’s decision. Appellant then complained that counsel had done nothing other than show up for court and that the copies of depositions he had provided were incomplete. After a brief exchange with counsel, the trial court instructed Appellant to get dressed and “we’ll go to trial.”

This court has held, “[i]n deciding whether a trial court conducted an appropriate Nelson inquiry, appellate courts apply the review standard of abuse of discretion.” Kearse v. State, 605 So.2d 534, 536 (Fla. 1st DCA 1992); Augsberger v. State, 655 So.2d 1202, 1204 (Fla. 2d DCA 1995). In this context, a trial court abuses its discretion when it fails to “provide the defendant with the opportunity to explain why he or she objects to counsel or fails to conduct the [required] inquiries.” Kearse, 605 So.2d at 536.

The Florida Supreme Court adopted the procedure outlined by the Fourth District in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), to be followed when a defendant raises a motion to discharge his or her court-appointed trial counsel on grounds that counsel is incompetent. Hardwick v. State, 521 So.2d 1071 (Fla.1988), superceded, on other grounds as recognized in, McKenzie v. State, 29 So.3d 272 (Fla.2010). Accordingly, the court stated:

If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.

Hardwick, 521 So.2d at 1074-1075 (citing Nelson, 274 So.2d at 258-259).

“Generally, a court’s failure to conduct a Nelson inquiry is reversible error if the defendant has clearly alleged attorney incompetence and has unequivocally stated he wishes to discharge his counsel.” Reid v. State, 826 So.2d 414, 415 (Fla. 2d DCA 2002) (citing Davis v. State, 703 So.2d 1055, 1058 (Fla.1997), and Branch v. State, 685 So.2d 1250 (Fla.1996)). However, a defendant’s broad complaints of dissatisfaction with his attorney are not sufficient to require such an inquiry. Morrison v. State, 818 So.2d 432, 440 (Fla.2002); Addison v. State, 989 So.2d 1252 (Fla. 1st DCA 2008). Here, the trial court failed to conduct a proper Nelson inquiry even though Appellant’s motion clearly expressed a desire to discharge his attorney based upon more than mere general dissatisfaction with the attorney.

Initially, the court erred when it determined that the motion should be struck as a nullity because Appellant was represented by counsel. While, in general, pro se motions filed by represented defendants are nullities, they should not be stricken as such if a defendant unequivocally seeks to discharge counsel or where the defendant makes allegations that give rise to a clear adversarial relationship with counsel. Sheppard v. State, 17 So.3d 275, 282 (Fla.2009); Murray v. State, 1 So.3d 407, 408 (Fla. 2d DCA 2009) (citing Purnell v. State, 931 So.2d 134, 135 (Fla. 2d DCA 2006)).

While the court entertained limited argument on the motion, the inquiry was insufficient. The record does not reflect that Appellant was given an adequate opportunity to address his claims to the court, nor did the court make a finding regarding the reasonableness of the claims. Further, the court did not inform Appellant that, should he choose to discharge counsel, a substitute counsel may not be appointed. Thus, reversal and remand for a new trial is required.

REVERSED and REMANDED.

LEWIS, THOMAS and WETHERELL, JJ., concur.


author: PALMER, J.

text:
    Jose PEREIRA, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2942.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2010.

      Jose L. Pereira, Malone, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Jose Pereira (defendant) appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Determining that the defendant was entitled to receive an eviden-tiary hearing on his motion, we reverse.

The defendant was charged with one count of strong arm robbery. The specification of that charge alleged that he

[d]id unlawfully take from the person or custody of KIMBERYLY K. MOWRY, certain property of value, to-wit: United States Currency and a purse, with the intent to temporarily or permanently deprive KIMBERYLY K. MOWRY, of a right to the property or a benefit therefore, and in the course thereof utilized force, violence, assault or put the said KIMBERLY K. MOWRY in fear, in violation of Florida Statute 812.13(1) and (2)(c).

According to the defendant’s rule 3.850 motion, “when the jury was charged, in addition to the instruction on robbery, they were instructed on grand theft of a dwelling and petit theft as the lesser-included offenses.” Defense counsel did not object to these instructions. The defendant was later convicted of the lesser-included offense of grand theft of a dwelling, value of $100.00 or more but less than $300.00, a third-degree felony. He was sentenced to a term of 10 years’ incarceration as a habitual felony offender. On direct appeal, this court issued a per curiam affir-mance of the defendant’s judgment and sentence. See Pereira v. State, 976 So.2d 1123 (Fla. 5th DCA 2008).

The defendant thereafter filed the instant rule 3.850 motion. The trial court summarily denied the motion explaining:

Defendant alleges that Counsel was ineffective for failing to object to his conviction for theft from a dwelling, value of $100 or more but less than $300, a lesser included offense, based upon an information which does not allege the elements of the lesser included offense. Defendant was charged with a single count of strong arm robbery. See Fla. Stat. 812.13(1) and (2)(c) and July 16, 2007 Amended Information. The July 16, 2007 Amended Information contains each requisite element of the lesser included offense of theft. See July 16, 2007 Amended Information and compare Fla. Stat. 812.014(l)(a) and (b). Subsection (d) of Fla. Stat. 812.14 merely specifies circumstances pursuant to which the crime of theft is designated a felony in the third degree — not the requisite elements of the crime. As such, Defendant’s claim is without merit. Counsel can not be held ineffective for failing to raise a non-meritorious issue.

(Emphasis added).

The defendant challenges this ruling arguing that his trial counsel was ineffective for failing to object to the fact that he was convicted of a crime not charged in the amended information. In particular, the defendant contends that grand theft of a dwelling was not properly listed as a lesser-included offense on the jury’s verdict form because the allegations in the amended information failed to sufficiently allege the elements of grand theft as a lesser-included offense of the charge of strong arm robbery. He maintains that the offense of grand theft of a dwelling includes two elements that are not found within the offense of strong arm robbery: the value of the property taken and the requirement that the property be taken from a dwelling. The defendant cites to Pierce v. State, 641 So.2d 439, 439 (Fla. 4th DCA 1994), receded from on other grounds by Tolbert v. State, 679 So.2d 816 (Fla. 4th DCA 1996), to support his claim of error.

In Pierce, the defendant was originally charged with armed robbery; however, the information (as in the instant case) failed to alleged the value of the property taken. At the charge conference, defense counsel objected to the issuance of jury instructions on any lesser-included offenses. The trial court overruled the objection and instructed the jury on the lesser-included offense of grand theft. The court further instructed the jury that the crime of grand theft required the jury to determine that the value of the property taken exceeded $300.00. The jury convicted the defendant of grand theft. On appeal, the Fourth District reversed, holding:

It is only where the charging document sufficiently alleges the appropriate value that grand theft becomes a permissive lesser included offense of the charge of robbery. 512 So.2d at 1074-1075. Where the only charge is robbery, the state can preserve its right to a lesser included conviction for grand theft only by including in the information an allegation that sufficiently states the value of the property taken. 512 So.2d at 1075 (value of property taken must be clear from accusatory pleading).
Although the information in this case listed the kinds of property' — including the word “money” — taken by the robbery, it failed to state the amount of the cash or, indeed, ascribe any value to anything taken. There is simply nothing in this information that makes clear any values. As we said in In the Interest of E.W., 616 So.2d 1194 (Fla. 4th DCA 1993), where we followed J.C.B.:
“A defendant may not be convicted of a permissive lesser included offense where the charging document is silent as to an essential element of that offense, absent a waiver, affirmative conduct, or other exceptional circumstance.”
Both E.W. and J.C.B., we note, involved a conviction for the lesser included crime of grand theft and a charging document that failed to state the value of the goods stolen.

We agree with the defendant that, based on this authority, his rule 3.850 claim should not have been summarily denied.

Importantly, our conclusion does not mean that the defendant is entitled to have his judgment corrected to reflect a conviction on the lesser-included offense of petit theft. Rather, since he argued that his trial counsel was ineffective in allowing the crime of grand theft of a dwelling to be included in the jury instructions, on remand the trial court must determine whether it was a strategic decision on the part of trial counsel to allow this lesser-included offense to go to the jury. See Howard v. State, 835 So.2d 281, 283 (Fla. 2d DCA 2002)(stating: “a trial court’s finding that some action or inaction by defense counsel was tactical is generally inappropriate without evidentiary hearing.”). See also Mallard v. State, 17 So.3d 1285 (Fla. 4th DCA 2009); Coissy v. State, 957 So.2d 53, 55 (Fla. 4th DCA 2007).

Accordingly, we reverse and remand for an evidentiary hearing to determine whether trial counsel’s failure to object to the inclusion in the jury instructions of the lesser-included offenses constituted ineffective assistance of counsel.

REVERSED and REMANDED.

GRIFFIN and COHEN, JJ, concur.

      . See § 812.13, Fla. Stat. (2006).

      . See § 812.014(2)(d), Fla. Stat. (2006).


author: GRIFFIN, J.

text:
    Gregory L. PORRAS, Appellant, v. Arlise PORRAS, Appellee.
    No. 5D09-1318.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2010.
    Gregory L. Porras, Sanford, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Appellant, Gregory L. Porras [“Por-ras”], pro se, appeals an order allowing his former wife to relocate with their children to Michigan. The appealed order recites that the parties were divorced in 2007 and that the former wife filed her notice of intent to relocate with the children on or about February 5, 2009. According to the appealed order, a certified copy of the notice of intent to relocate with the children was served on Porras on February 10, 2009, and no objection was filed. Accordingly, as required by section 61.13001(3)(d), Florida Statutes (2009), the trial court entered the order allowing the relocation, established a post-relocation schedule of visitation and transportation scheme and, finally, reserved jurisdiction to modify or enforce the order.

Upon examination of the appealed order, we issued an order directing Porras to show cause, why we should not summarily affirm the appeal because, after having been served with the notice of intent to relocate with the children, Porras offered no objection as required by section 61.13001, Florida Statutes (2009).

In response to our order to show cause, Porras filed a response that is detailed and articulate. He explains that in February 2009, being aware that his ex-wife was talking about moving to Michigan with the children, he consulted with an attorney in DeLand, seeldng representation to keep his children in Florida. He was told that a $500 deposit was required in order for the attorney to represent him. He claims that he was served with notice of the intent to relocate on March 13, 2009. He has provided a copy of the envelope showing that the post office had attempted to deliver the letter on three prior occasions: February 11, February 25 and March 3, 2009. Upon receipt of the notice, on March 13, 2009, he prepared a detailed letter to the attorney with whom he had consulted, and his girlfriend took the letter and the required $500 deposit to the attorney’s office on March 16, 2009. He claims that he contacted the attorney’s office on several occasions beginning on March 18, but was unsuccessful in speaking to the lawyer. Then, on April 11, 2009, he received a copy of the appealed order allowing his former wife to take the children to Michigan. Upon receipt of the order, he insistently demanded that counsel return his telephone call, which counsel did on April 13, 2009. He contends that counsel told him that he had not been given the papers in time to take action and that he had been too busy with other clients to return his call. The attorney asked if he wished him to “file an appeal” and Porras told him “no.” The attorney offered to return the $500 fee, which was promptly done. Thereafter, Porras, acting pro se, filed an appeal in this court, seeking review of the trial court’s order.

The problem with Porras’ appeal is that there is no record basis to conclude that the trial court erred. Importantly, the trial court was correct in concluding that there had been no objection filed by Por-ras in response to the notice of intent to relocate, which is required under the statute. Based on his own explanation of events, it appears that his failure to lodge an objection resulted from a combination of his own delay in retaining counsel and counsel’s subsequent failure to take action or communicate with Porras during the approximately two weeks prior to the court’s entry of the order on March 31, 2009.

Assuming Porras’ recitation of the facts is accurate and that he was not served with the notice of intent until March 13, the trial court’s assumption that Porras had been served on February 10 was erroneous. However, if this finding by the trial court was erroneous, then it should have been promptly brought to the trial court’s attention so that the error could have been corrected or, at least, so that evidence could be placed in the record to show that the service date was March 13, not February 10, and that the order entered on the notice of intent was premature. Because this was not done, we have no record basis to determine when, in fact, Porras was served. The puipose of an appellate court is to correct errors of the trial court and, on this record, no error has been demonstrated. If Porras is to obtain relief, it will have to be from the trial court.

AFFIRMED.

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

      . Our review of the record shows that the notice of intent and certificate of service were both filed on February 10, 2009. The certificate of service shows that service was to be by certified mail, restricted delivery, return receipt, but does not contain a date of service in the blank provided on the form. Nothing in the file shows the date Porras actually received the notice.

      . Porras has also included in his response a substantial narrative about his former wife's legal problems, the children’s difficulties in Michigan and his own difficulties in being able to communicate with his children. None of this information is relevant to this appeal. We note, however, that the trial court reserved jurisdiction in the appealed order to make modifications and such facts, if established, may or may not impel the trial judge to hear Porras on an application for modification of the appealed order, or custody.


author: ORFINGER, J.

text:
    Joaquin L. NUNEZ, Appellant, v. Lourdes NUNEZ, Appellee.
    No. 5D09-939.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2010.
    Douglas A. Kneller, of the Law Office of Douglas A. Kneller, P.A., Daytona Beach, for Appellant.
    Joan Stefanec Briggs, of Adams, Briggs & Briggs, Daytona Beach, for Appellee.
   ORFINGER, J.

Joaquin L. Nunez, the former husband, appeals from a final judgment dissolving his marriage to Lourdes Nunez, the former wife. The former husband contends that the trial court erred in determining the value of his fifty-one percent interest in Advanced Technology Lubricants (ATL), a closely-held corporation, determining the amount of permanent alimony awarded to the former wife, and awarding attorney’s fees to the former wife. We agree that the trial court erred in its valuation of the former husband’s interest in ATL and reverse the final judgment to allow the court to rework its equitable distribution plan. In all other respects, we affirm the trial court’s decision without further discussion.

The former husband owns fifty-one percent of the outstanding shares of ATL, established in 2003 to develop and sell specialty lubricants. The lubricant technology is owned by the minority shareholder, not the corporation. Historically, ATL’s gross revenues have ranged between $300,000 and $400,000 and it has never shown a profit. The former husband’s business evaluation expert testified that ATL had no marketable value. The only other evidence concerning ATL’s value was that two unsolicited inquiries had been made by third parties expressing an interest in purchasing ATL. One inquiry apparently led to a letter of intent proposing a $3,000,000 purchase price, but by the time of trial, both interested parties were defunct and all interest in purchasing ATL had evaporated. On this evidence, the trial court found that the former husband’s fifty-one percent interest in ATL was worth $1,530,000 and distributed the ATL stock to him as part of the distribution of the parties’ assets and liabilities. The ATL stock comprised approximately ninety-three percent of the former husband’s equitable distribution.

The parties do not dispute that the ATL stock is a marital asset subject to equitable distribution. Neither do the parties dispute that the trial court’s valuation of the ATL stock must be supported by competent substantial evidence. Mullen v. Mullen, 825 So.2d 1078 (Fla. 4th DCA 2002). Absent such evidence, the trial court’s valuation constitutes an abuse of discretion. Polley v. Polley, 588 So.2d 638 (Fla. 3d DCA 1991). “Competent” evidence refers not to the quality of the evidence but rather to its admissibility. “Substantial” evidence means that there must “be some (more than a mere iota or scintilla), real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative or merely theoretical evidence or hypothetical possibilities) having definite probative value.... ” Lonergan v. Estate of Budahazi, 669 So.2d 1062, 1064 (Fla. 5th DCA 1996) (quoting Dunn v. State, 454 So.2d 641, 649 n. 11 (Fla. 5th DCA 1984) (Cowart, J., concurring)). We conclude that the value placed on ATL by the trial court is not supported by competent substantial evidence. We do not dispute that the trial court, as the finder of fact, was free to accept or reject the testimony of the business valuation expert offered by the former husband. Tolley v. Dep’t of Health & Rehabilitative Servs., 667 So.2d 480 (Fla. 5th DCA 1996); see Demps v. State, 462 So.2d 1074 (Fla.1984). However, the letter of intent submitted by a defunct company, without any evidence to suggest that the interested party had performed any due diligence, entered into a binding contract or had the financial wherewithal to purchase ATL for $3,000,000 falls far short of competent substantial evidence.

Clearly, the trial court placed little weight on the expert’s testimony. And, the former wife offered no substantive evidence demonstrating ATL’s value. Given the paucity of evidence, the trial court was left to guess as to ATL’s value. Given the speculative value of the ATL stock, we conclude that the trial court’s only appropriate option was to assign one-half of the former husband’s stock to each of the parties.

Because the ATL stock comprised almost all of the former husband’s equitable distribution, we remand this matter to the trial court to revisit the equitable distribution plan: In all other respects, the final judgment is affirmed.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA and TORPY, JJ., concur.


author: SAWAYA, J.

text:
    Robin SAMUELS, Appellant, v. William L. TORRES, Appellee.
    No. 5D08-3128.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2010.
    Lynn G. Waxman, of Lynn G. Waxman, P.A., West Palm Beach and Robert G. Gordon of Gordon & Doner, P.A., Palm Beach Gardens, for Appellant.
    M. Jennifer Moorhead of Hassell, Moor-head & Carroll, Daytona Beach, for Appel-lee.
   SAWAYA, J.

The issue we must resolve is whether the trial court erred in denying the motion for mistrial made by the plaintiff, Robin Samuels, after defense counsel disclosed to the jury during opening statement how little the defendant, William Torres, earned in income. This issue arises from the appeal of a final judgment awarding Samuels damages in the amount of $70,873.33 in her personal injury action against Torres. Samuels argues that disclosure of Torres’ income entitles her to a new trial because it improperly roused the jury’s sympathy in favor of Torres, which resulted in an inadequate award of damages for her injuries. Based on the facts and circumstances of this case, we agree and reverse for a new trial on the issue of damages.

The injuries incurred by Samuels resulted from an automobile accident. Liability was not an issue in the trial proceedings because Torres stijoulated that on June 23, 2006, he struck the Samuelses’ vehicle from behind with his semi-truck, forcing their vehicle and attached trailer into a guardrail, thus damaging their vehicle and destroying the contents of their trailer. Samuels was a passenger in the vehicle driven by her husband; both were wearing their seatbelts.

The trial commenced, and counsel for Torres twice made improper comments regarding his client’s inability to pay a judgment. During the voir dire proceeding, he stated that Torres, not insurance, was responsible for paying a judgment.

Okay, there is no concept of insurance here today. In fact, you’re going to be asked by the Plaintiffs to award a sum of money to the Plaintiffs, he’s responsible for it. Twenty days after a judgment, once the Judge signs that Order, he’s ultimately responsible to pay it. There is no concept of any insurance in this matter. He’s responsible to pay it. Whatever amount of money they ask for, whatever amount of money you end up — you may end up giving them nothing, or you may end up giving them a dollar or 50,000 or whatever it is; ultimately, Mr. Torres is responsible to pay.

The court granted Samuels’ motion for mistrial. Voir dire proceedings commenced again with another jury panel. A jury was selected, and opening statements were presented.

The second improper statement, which is the basis for this appeal and our decision in this case, was made when counsel for Torres presented his opening statement and told the jury:

To give you a little bit of background information on Mr. Torres, he was born — lives in Sorrento, Florida, he’s a widower, he was born and raised in the Orlando area. He is a truck driver by his profession. That is what he does for his living. He owns his own truck. Yesterday you heard me talk about when I was asking some of the truck drivers what’s an owner/operator. An owner/operator is a person who owns a truck and a trailer, he does work for whoever he can get the work from. And that’s what Mr. Torres did in the years before this accident and currently does. And he’s responsible for all of his own gas, his own maintenance, his own repair, his truck payment. And after all is said and done, in a good week traveling in this area with what he does, car carrying, you’ve probably seen them, the double-decker car carriers, he loads them up from one dealership, brings them to a warehouse, brings them to an auction; in a good week he may make $1,500. And after paying all that gas money and everything that’s necessary, gets a profit of about maybe 40 percent of that sum of money.

(Emphasis added). Samuels’ counsel immediately objected and, at a bench conference outside the hearing of the jury, requested a curative instruction. The objection was sustained and the request for a curative instruction was denied.

Simultaneous with the bench conference, the bailiff told the court that a juror was crying and upset. The judge sent the jury out for a break and inquired why the juror was crying. The crying juror explained: “It was just that I never been in a setting like this before. It’s just new to me, just sitting here listening to their stories, some of its sad.”

Samuels’ counsel moved for a mistrial, arguing, “Putting ability to pay like that before a jury, that is the sort of thing the bell is rung, you can’t unring it, telling the jury the man makes how much and clears so much, obvious implication that he cannot respond to a judgment like this.” The court observed, “I’ve never had anybody put that before a jury before.” However, the court expressed concern about the ramifications of a second mistrial. Instead of ruling on the motion for mistrial, the court took the motion under advisement and resumed opening statements. The trial court subsequently denied the motion.

During the trial, Samuels presented significant evidence of permanent injuries to her cervical spine and carpal tunnel syndrome caused by the accident. These injuries caused Samuels to suffer neck pain, numbness in both hands, headaches, and pain in her right arm and leg. Her medical experts testified that these injuries required surgical management. Following carpal tunnel surgery on her right arm, her symptoms had improved, although not disappeared. Further expert medical testimony, revealed in a Continuation of Care Plan compiled by one of Samuels’ doctors, indicated that she definitely needed cervical spine surgery at a global cost of $60,000 to $80,000; annual orthopedic care for the next five years at $200 to $400 per visit; a physiatrist two to four times a year at $125 to $350 per visit; a cervical spine MRI every five to ten years at $475 to $550; either physical therapy at $100 per hour or epidural pain injections at a global cost of $1200; and less probable but possible, follow-up spinal surgeries at a global cost of $80,000 to $100,000. Samuels presented an economist who testified that Samuels’ Continuation of Care Plan will cost between $427,000 and $438,000 for the medical services she needs (excluding the possible follow-up surgeries).

In addition to her medical costs, Samu-els presented testimony that the accident reduced her work ability. An economist calculated Samuels’ loss of income to be anywhere between zero and $210,000, based upon her life expectancy of thirty-four remaining years and her annual salary and benefits package of approximately $30,000. The economist placed her total economic damages in the range of $638,912 to $649,712.

The witnesses presented by Torres testified that the injuries suffered by Samuels were the result of degenerative diseases that pre-existed the accident and were, therefore, not caused by Torres. Specifically, as to the carpal tunnel syndrome, they were of the opinion that it was repaired by the first surgery and that no further surgery was necessary. Torres also presented testimony that disagreed with the amount of economic damages Samuels incurred as a result of her diminished work capacity.

In closing statements, Samuels’ attorney argued for damages for past medical expenses of $22,585, past lost wages of $5,000, past pain and suffering of $250,000, future medical expenses of $430,000, future lost wages of $105,000, and future pain and suffering of $343,000. Torres’ attorney recommended that Samuels should be awarded her past medical expenses of $22,585.33, her lost wages of $4,288, and a future pain and suffering award of $5,000. He urged that, in lieu of awarding Samuels money to pay for neck surgery, the jury should award her $1,000 per year for the rest of her thirty-four-year life expectancy so she can follow up with an orthopedist for her neck. The record reveals that there is absolutely no evidentiary support for such an award of damages.

In its verdict, the jury heavily favored the recommendations made by Torres’ counsel in awarding damages. It found Torres was the legal cause of Samuels’ injuries and awarded Samuels $22,585.33 in past medical expenses, $4,288 in lost wages, $34,000 in damages for future medical expenses, $5,000 for past pain and suffering, and $5,000 for future pain and suffering, for a total of $70,873.33. Samu-els moved for a new trial based on the improper comments made in Torres’ opening statement. That motion was denied. After adjusting for collateral sources, the court entered judgment for Samuels in the amount of $60,873.33. Samuels appeals the judgment, arguing that the verdict rendered by the jury does not adequately award her damages for her injuries because it is based on sympathy for Torres.

No citation of authority is necessary for the well-established principle that all parties are entitled to a fair trial. To that end, the law imposes upon a jury the duty to impartially determine the facts and decide the issues in each case based on the evidence presented and the applicable law. Fidelity to that duty prohibits a jury from being swayed by sympathy for any party when rendering its verdict. A soft heart infused with pity proclaims sympathy, not facts based on evidence, and there are no rules of law that guide its direction. See State Farm Mut. Auto. Ins. Co. v. Revuelta, 901 So.2d 377, 380 (Fla. 3d DCA 2005); Batlemento v. Dove Fountain, Inc., 593 So.2d 234, 241 (Fla. 5th DCA 1991). Therefore, the law has long required that the rich man and the poor man stand before the jury as equals so that all parties receive a verdict unaffected by their economic status. See Hollenbeck v. Hooks, 993 So.2d 50, 51 (Fla. 1st DCA 2008); Revuelta; Batlemento; see also Lewis v. Hubert, 532 S.W.2d 860, 866 (Mo.Ct.App.1975) (“It is fundamental to our jurisprudence that rich and poor stand alike in our courts and that neither the wealth of one nor the poverty of the other shall be permitted to affect the administration of the law.”). Interjection of the wealth or poverty of any party has been consistently held by the courts to be irrelevant to the issue of compensatory damages in a personal injury case based on negligence, highly prejudicial because it diverts the jury from a fair assessment of damages, and a basis for reversal. Hollenbeck; Revuelta; Padrino v. Resnick, 615 So.2d 698, 698-99 (Fla. 3d DCA 1992); Batlemento; Ballard v. Am. Land Cruisers, Inc., 537 So.2d 1018, 1020 n. 4 (Fla. 3d DCA 1988); see also Sossa v. Newman, 647 So.2d 1018, 1019-20 (Fla. 4th DCA 1994).

When counsel for Torres revealed the meager income of his client, a juror began to cry and told the trial judge that the stories she heard were “sad.” Samuels presented significant evidence regarding her injuries, her economic damages, and the medical expenses she has incurred and will incur in the future. The theory of the defense was that although Torres was negligent, he did not cause Samuels’ injuries because they pre-dated the accident. For example, Samuels presented evidence that she would need future surgery on her spine at a cost of between $60,000 and $80,000. If the jury had believed the evidence presented by Samuels, an award of between $60,000 and $80,000 would have been necessary to compensate her for her future medical expenses for that surgery. On the other hand, if the jury had believed the evidence presented by Torres, it should have awarded her nothing. What the jury actually did was award Samuels for her future medical expenses the sum of $1,000 for every year of her projected thirty-four years of remaining life — an award completely devoid of evidentiary support and one which we believe is explainable only as a result of the prejudicial statement made about the irrelevant issue of Torres’ meager income.

It is clear that counsel for Torres employed a defense stratagem in his opening statement to curry sympathy from the jury and it is obvious from this record that he succeeded. As a result, Samuels was deprived of a fan* trial. We reverse the judgment rendered in this case and remand for a new trial on the issue of damages so that a verdict may be rendered untainted by sympathy for one party or the other.

REVERSED and REMANDED.

ORFINGER and JACOBUS, JJ., concur.

      . Trial counsel for Mr. Torres was Jason Geli-nas, not his appellate counsel.

      . The other plaintiff below, Mrs. Samuels’ husband, is not a party to this appeal.

      . In civil cases, jurors are specifically instructed, "In reaching your verdict[s], you are not to be swayed from the performance of your duty by prejudice, sympathy or any other sentiment for or against any party. Your verdicts] must be based on the evidence that has been received and the law on which I have instructed you.” Fla. Std. Jury Instr. (Civ.) 7.1. The rules of evidence also provide that "[Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice_” § 90.403, Fla. Stat. (2006).


text:
    Jamar WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4094.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2010.
    Jamar L. Williams, Clermont, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Jamar Williams (defendant) appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. We affirm without discussion as to all grounds except Ground Nine. As to Ground Nine, in the which defendant alleges that his trial counsel’s performance was deficient by failing to have the defendant evaluated to determine whether he was competent to proceed with his violation of probation (VOP) hearing, we reverse.

The trial court did not address Ground Nine in its order denying postconviction relief. However, it is clear from the face of the motion that Ground Nine is facially insufficient. In that regard, the motion states, in conclusory terms, that an evaluation would have shown that the defendant was mentally disabled and not stable to proceed with his VOP hearing. However, the motion does not describe the circumstances surrounding the defendant’s alleged incompetency, such as whether he was able to understand the VOP charges against him or whether he was able to assist his attorney in preparing a defense to the VOP charges. See Fla. R.Crim. P. 3.210(a); 3.211. Though facially insufficient, upon remand, the trial court is required to grant the defendant leave to file an amendment to this claim. See Spera v. State, 971 So.2d 754 (Fla.2007).

AFFIRMED in part; REVERSED in part; and REMANDED.

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


author: NORTHCUTT, Judge.

text:
    James WIGFALS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5177.
    District Court of Appeal of Florida, Second District.
    March 12, 2010.

      James Wigfals, pro se.
   NORTHCUTT, Judge.

After pleading no contest to criminal charges, James Wigfals was sentenced to twenty-seven months’ imprisonment as a habitual offender. Wigfals timely moved to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.850, contending that he had been improperly sentenced as a habitual offender. The postconviction court summarily denied his motion. We reverse and remand for further proceedings.

Wigfals’s motion maintained that his habitual offender sentence was improper under Ashley v. State, 614 So.2d 486 (Fla.1993), and its progeny because the State had not notified him of its intent to seek habitual offender sentencing and because the sentencing court had accepted Wig-fals’s plea without determining that he was personally aware of the consequences of habitualization. The posteonvietion court denied the motion on the merits, attaching to its order copies of the State’s notice that it intended to seek habitualization and of Wigfals’s plea agreement.

The attached notice conclusively refuted Wigfals’s assertion that the State had not notified him that it was seeking an enhanced sentence. But the postconviction court did not attach any documents that refuted Wigfals’s second assertion, that when accepting Wigfals’s plea the sentencing court had not ensured that he understood the consequences of a habitual offender sentence. If anything, the plea agreement attached to the postconviction court’s order lent some credence to Wig-fals’s allegation. It reflected Wigfals’s understanding that “my sentence will be imposed within the sentencing guidelines.” A habitual offender sentence is not a guidelines sentence. See § 775.084(4)(h), Fla. Stat. (2006); cf. State v. Matthews, 891 So.2d 479, 489-91 (Fla.2004) (discussing the differences between guidelines and habitual sentences). Accordingly, because the documents attached to the postconviction court’s order did not conclusively establish that Wigfals was not entitled to relief, we must reverse and remand for further proceedings. See Fla. R.App. P. 9.141(b)(2)(D).

Another issue must be addressed before the postconviction court revisits this matter on remand: Wigfals’s motion was facially insufficient because he did not describe how he was prejudiced by the alleged Ashley violation. See Newsome v. State, 704 So.2d 213, 214 (Fla. 2d DCA 1998) (holding that an allegation of prejudice is essential when seeking postconviction relief based on an Ashley error; the defendant must allege that he would not have entered the plea if he had understood the consequences of habitualization). Therefore, the postconviction court should not have reached the merits of Wigfals’s claim, but instead should have stricken the motion and given Wigfals an opportunity to amend it. See Agent v. State, 19 So.3d 1114, 1115 (Fla. 2d DCA 2009) (citing Spera v. State, 971 So.2d 754 (Fla.2007)).

To summarize, we reverse and remand for further proceedings. On remand, the postconviction court must first allow Wig-fals an opportunity to amend his pleading to allege a facially sufficient claim. If he does so, the postconviction court either may grant an evidentiary hearing on the claim or, if the record shows conclusively that Wigfals is entitled to no relief, may again summarily deny the claim and attach the documents that support the denial.

Reversed and remanded.

WALLACE and CRENSHAW, JJ., Concur.


text:
    Carlos ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4613.
    District Court of Appeal of Florida, Second District.
    March 12, 2010.
    Carlos Ortiz, pro se.
   PER CURIAM.

Carlos Ortiz appeals the summary denial of his motion to remove court condition injunction/restraining order. We treat this appeal as a timely filed petition for writ of certiorari, see Sheley v. Fla. Parole Comm’n, 720 So.2d 216, 217 (Fla.1998), and deny the petition.

Petition for writ of certiorari denied.

ALTENBERND, WALLACE, and MORRIS, JJ., Concur.


text:
    Norman HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5616.
    District Court of Appeal of Florida, First District.
    March 12, 2010.
    Norman Holmes, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995).

DAVIS, BENTON, and MARSTILLER, JJ., concur.


author: LAWSON, J.

text:
    M.M., Mother of B.D. and S.D., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D09-3669.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2010.
    Nickole E. Frederick, Orlando, for Appellant.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellee.
   LAWSON, J.

M.M., the mother of B.D. and S.D., appeals a final order awarding permanent custody of her two middle children to their non-offending father under section 39.521(3), Florida Statutes, and terminating jurisdiction over her dependency case. The final order was entered at a hearing on the mother’s motion for reunification with her children, which alleged that she had substantially complied with her case plan. The Department of Children and Families (DCF) had also reported the mother’s substantial compliance with the case plan. The trial court, however, never determined whether the mother had substantially complied with her case plan or whether reunification would be detrimental to the children, as required by section 39.522(2), Florida Statutes. This court has repeatedly held that it is reversible error to permanently award custody to a non-offending parent when the offending parent has a case plan goal of reunification and has either substantially complied with the plan, or where the time for compliance has not yet expired — -at least without a finding that reunification would be detrimental to the children. E.g., K.E. v. Dep’t of Children and Families, 958 So.2d 968, 972 (Fla. 5th DCA 2007); R.H. v. Dep’t of Children and Families, 948 So.2d 898, 900 (Fla. 5th DCA 2007); D.G. v. Dep’t of Children and Families, 903 So.2d 1042 (Fla. 5th DCA 2005); D.S. v. Dep’t of Children and Families, 900 So.2d 628, 631-32 (Fla. 5th DCA 2005). Accordingly, we reverse the final order and remand for further proceedings consistent with this binding precedent. On remand, the trial court must first determine whether the mother has substantially complied with her case plan before proceeding further.

REVERSED and REMANDED.

ORFINGER and TORPY, JJ., concur.


text:
    Mitchell WILLIAMS, Appellant, v. CLAY ELECTRIC COOPERATIVE, INC., et al., Appellee.
    No. 5D09-4365.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2010.
    Mitchell Williams, Palatka, pro se.
    John H. Haswell, Chandler, Lang, Has-well & Cole, P.A., Gainesville, for Appellee Clay Electric Cooperative, Inc.
    Michael N. Brown, Allen Dell, P.A., Tampa, for Appellee Seminole Electric Cooperative, Inc.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

PALMER, ORFINGER and TORPY, J.J. concur.


author: KAHN, J.

text:
    Linda Joyce PUSKAR, former wife, Appellant, v. Anthony Paul PUSKAR, former husband, Appellee.
    No. 1D09-2045.
    District Court of Appeal of Florida, First District.
    March 17, 2010.

      Neal Betancourt of Rotchford & Betanc-ourt, P.A., Jacksonville, for Appellant.
    Holly E. Fulton of Head, Moss & Fulton, P.A., Fleming Island, for Appellee.
   KAHN, J.

Appellant, Linda Joyce Puskar, seeks review of a March 2009 final judgment of dissolution of marriage. She contends the trial court erred in failing to designate any portion of the couple’s Orange Park property as non-marital for purposes of equitable distribution. Appellant also alleges error in the court’s treatment of $63,000 in the equitable distribution plan. We affirm the latter finding, but reverse and remand as to the characterization of the subject real property.

FACTUAL & PROCEDURAL BACKGROUND

The Puskar union lasted nearly 13 years before the parties separated. In a dissolution petition, the husband asked for an equitable distribution of the parties’ marital assets. Of the parties’ four properties, Mr. Puskar claimed a special equity in the residence located at 1217 Bee Street North, in Orange Park. This parcel, described during at the final hearing simply as the “Bear Run” estate, was owned jointly by appellant and her father before the parties married. In her answer to the petition, appellant claimed that the Bear Run home was solely her premarital asset, thus entitling her to all proceeds from the sale of the property.

Much testimony addressed the Bear Run property. Appellant recalled that title to Bear Run passed to her after her father’s death. Appellee stated he moved into the Bear Run residence with appellant in the summer of 1993, ahead of their marriage in October of that year. Mrs. Puskar denied that the parties lived together at Bear Run before the marriage, but explained that appellee constructed an addition to the home around October or November 1992. Appellant testified she paid her future husband $8,000 for the construction labor.

The parties also rented the property to third parties during the course of the marriage. Mr. Puskar claimed that Bear Run generated a net income of $42,513 during those years, as reflected in the couple’s joint tax returns. He stated that the parties used marital funds to cover the cost of debt, repairs, taxes, and miscellaneous expenses required to maintain the property. Citing another rental property in Crescent Beach, he asserted that the wife controlled the bank accounts into which the rental incomes were deposited. The wife confirmed that she alone controlled and administered rental incomes from the Bear Run and Crescent Beach properties, maintaining a separate account for each parcel. In September 2006, after appellee filed the petition for dissolution of marriage, Mrs. Puskar sold the Bear Run estate. Appellant testified she deposited the proceeds of sale ($124,000 after taxes and expenses) into a separate VyStar account on advice of counsel.

The trial court entered a final judgment of dissolution of marriage on March 29, 2009. The order found that appellee moved into the Bear Run home around July 1993, and “made numerous repairs to the property over the years of the marriage.” Though recognizing that Bear Run was originally titled in appellant’s name, the order determined that $165,-000 — the full sale price of the property-should be credited on Mrs. Puskar’s side of the equitable distribution ledger and not set apart as non-marital. These sale proceeds were, the court reasoned, “co-mingled” with marital funds, because appellant deposited those funds “into ... accounts which also contained marital sums.” The trial court accordingly classified the proceeds as marital.

ANALYSIS

We review de novo identification of an asset as marital or non-marital. See Farrior v. Farrior, 736 So.2d 1177, 1179 (Fla.1999). Where mixed questions of law and fact arise, we defer to the trial court’s factual findings to the extent they are supported by competent, substantial evidence, but review legal conclusions de novo. Batur v. Signature Props. of Nw. Fla., Inc., 903 So.2d 985, 995 (Fla. 1st DCA 2005). Pursuant to section 61.075(5)(b), Florida Statutes (2006), non-marital assets include those acquired by either party prior to the marriage. For present purposes, the cut-off date for determining the marital status of assets is the date of filing the petition for dissolution. See § 61.075(6), Fla. Stat. (2006).

In making our analysis, we consider the various factors of record in this matter relevant to the classification of the subject property. Mr. Puskar does not dispute that his wife owned Bear Run before the marriage. Mrs. Puskar points out that filing a joint federal income tax return including the separate non-marital income of one spouse does not convert that income to marital property under section 61.075(5)(b)3., Florida Statutes (2005) (defining as a non-marital asset “income derived from nonmarital assets during the marriage,” unless treated or relied upon as a marital asset). “To rule otherwise would force married persons to file separate income tax returns, and to pay higher income taxes, simply to protect the non-marital status of their separate property.” See Holden v. Holden, 667 So.2d 867, 869 (Fla. 1st DCA 1996).

As Mr. Puskar has admitted, appellant deposited the rental income checks into her own personal bank accounts, over which she exercised exclusive control. We also know, of course, that even joint use, by husband and wife, of income from non-marital property, does not entirely transform the property itself into a marital asset. See Farrior v. Farrior, 712 So.2d 1154, 1156 (Fla. 2d DCA 1998) (observing that an asset may retain its separate identity even after the income derived from that asset is used to maintain or raise the marital standard of living), approved, 736 So.2d 1177 (Fla.1999).

Here, the trial court largely relied upon the alleged disposition of the sale proceeds from Bear Run as justification for classifying the property as marital. The court concluded appellant commingled the proceeds with marital funds when she deposited those proceeds “into ... accounts which also contained marital sums.” At best, the record strains to support this finding. Mrs. Puskar testified she deposited the proceeds of sale — approximately $130,000 after costs and taxes — into a “new” VyStar account at the recommendation of her attorney. Appellee offered no evidence to contradict this testimony and, when asked on direct examination whether his wife had “all of that $165,000,” appellee stated, “To the best of my knowledge.” We are, respectfully, unable to identify what the trial court focused upon for its findings that appellant deposited the proceeds of sale “into ... accounts which also contained marital sums.” Competent, substantial evidence lacks in this regard.

We have also considered the parties’ joint references to repair work appel-lee performed on the Bear Run parcel. “The expenditure of marital funds on a non-marital asset does not transform the entire asset into a marital one; rather, it is the enhancement in value that becomes marital.” Wilson v. Wilson, 992 So.2d 395, 397-98 (Fla. 1st DCA 2008). Moreover, Florida law is clear that “to make an award for the enhancement in value and appreciation of a nonmarital asset, the court must make specific findings as to the value of such enhancement and appreciation during the marriage, as well as which portion of that enhanced value is attributable to marital funds and labor.” Martin v. Martin, 923 So.2d 1236, 1238-39 (Fla. 1st DCA 2006). Mr. Puskar did testify he “did a lot of repair work” on the home, but the trial court made no observation that the volume of work, plus expenditures, would have wiped out entirely the non-marital portion of the property.

We REVERSE the finding on the marital nature of Bear Run and REMAND. The trial court should determine what, if any, portion of that property may be properly characterized as marital. We find competent, substantial evidence to support the finding as to the balance of appellant’s credit union account. As a result, that finding is AFFIRMED.

LEWIS and WETHERELL, JJ., Concur.


author: THOMAS, J.

text:
    Joseph E. BURNS, Appellant, v. STATE BOARD OF ADMINISTRATION, Appellee.
    No. 1D09-4899.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    Joseph E. Burns, pro se, Appellant.
    Brandice D. Dickson of Pennington Moore Wilkinson Bell & Dunbar, P.A., Tallahassee; Linda Lettera, General Counsel, State Board of Administration, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals the State Board of Administration’s (SBA) final order denying his request for reimbursement of losses incurred in his Florida Retirement System (FRS) Investment Plan account. For the reasons explained below, we affirm the SBA’s order.

Factual Background

Appellant participated in the FRS Pension Plan for a number of years, and in July 2007, he exercised his right to switch to the FRS Investment Plan. Approximately one year later, Appellant called the “MyFRS Financial Guidance Line” to discuss his planned retirement on July 1, 2008. Appellant acknowledged that he could not obtain distribution of his funds until three months after retirement. Appellant was advised that, while this was true, he was eligible to take a ten percent distribution after one month. Appellant retired as planned but did not request a distribution until late November 2008, when his investment account had unfortunately lost more than $100,000 in value.

Appellant wrote the SBA demanding reimbursement for his losses because he did not have independent control over his Plan and because the SBA concealed a material fact by failing to notify him that he still had the ability to reallocate his investment funds within the options available in the FRS Investment Plan during the three-month waiting period. This alleged concealment, Appellant argued, made the SBA liable for his losses pursuant to the Employee Retirement Income Act of 1974 (ERISA).

After a hearing on the matter, the SBA issued its final order finding the SBA did not violate ERISA because it did not conceal a material non-public fact from Appellant. The final order noted that Appellant testified, “Did I have access to move that money around. Sure. I could shuffle it from side to side, up and down.” Furthermore, the SBA also noted that Appellant signed a form acknowledging:

I understand that I can change my fund allocations at any time after my account is activated....
If I exercise control over the assets in my FRS Investment Plan account, pursuant to section 404(c) regulations and all applicable laws governing the operation of the FRS Investment Plan, no program fiduciary shall be liable for any loss to my account which results from my exercise of control.

Consequently, the SBA denied Appellant’s reimbursement request.

Analysis

The parties do not dispute that section 121.591(1), Florida Statutes (2008), provides that participants in the FRS Investment Plan may not withdraw their funds until three months after their termination date, although they may qualify for the option to withdraw up to ten percent of their funds one month after termination. Appellant argues the SBA had the duty to inform him that he still had the right to reallocate his investment funds within the Plan during this three-month waiting period, and its failure to do so constituted concealment of that fact. Appellant argues that this was a violation of ERISA and rendered the SBA liable for his investment losses incurred during the waiting period.

Appellant cites no authority to support this argument. As the SBA found in its final order, Appellant based his argument on the unfounded assumptions that the risk of loss shifted to the SBA during the three-month waiting period, and that he no longer had the ability to reallocate his investment funds, thus depriving him of independent control of his investments.

Competent, substantial evidence supports the SBA’s factual finding that it did not conceal from Appellant his ability to continue managing his investment account during the three-month waiting period. Appellant’s own statements at the hearing support this finding. Furthermore, we agree with the following conclusion reached in the SBA’s final order:

If the entire basis of the Investment Plan is that the participant reaps the gains and suffers the losses resulting from his or her own investment decisions, and the State makes that abundantly clear to all individuals prior to joining the Investment Plan, there would be no duty for the State to remind participants that the risk of loss continues to remain on the participant during a particular occurrence such as a waiting period. The only time the State would need to advise a participant regarding risk of loss would be if the risk of loss somehow shifted during that particular occurrence.

Thus, while we may sympathize with Appellant, there is simply no record evidence to support his contention that the SBA concealed any material fact.

Conclusion

Based on the foregoing, we hold that the SBA did not conceal from Appellant a material non-public fact regarding his investment plan. Accordingly, we AFFIRM the SBA’s final order denying Appellant’s request for his investment losses incurred after his effective retirement date.

WOLF and WEBSTER, JJ., concur.

      . Section 121.4501(15)(a)-(c), Florida Statutes (2008), incorporates ERISA, and 29 C.F.R. § 2550.404c-l(a) provides that, if a plan permits a participant to exercise independent control over his account and he does so, the plan fiduciary is not liable for the participant’s losses. 29 C.F.R. § 2550.404c-l(c)(2)(ii) provides that this shield from liability vanishes if the fiduciary conceals a material non-public fact from participants.


text:
    James R. CASTLEBERRY, former husband, Appellant, v. Rebecca V. CASTLEBERRY, former wife, Appellee.
    No. 1D09-3650.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    Rhonda S. Clyatt, Panama City, for Appellant.
    Michael L. Guttmann, Pensacola, for Ap-pellee.
   PER CURIAM.

James Castleberry, the former husband, appeals an order that reduced but did not terminate his alimony obligation. Because the undisputed evidence in the record is that Rebecca Castleberry, the former wife, now earns more income than the former husband and there is no justification in the record for a continued alimony award under these circumstances, we agree with the former husband that the trial court abused its discretion in awarding more than a nominal amount of alimony. Accordingly, we reverse and remand for vacation of the order appealed from and entry of an order consistent with this opinion.

LEWIS, THOMAS, and WETHERELL, JJ., concur.


text:
    George Andrew GRIFFITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-3792.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    James Owens, Public Defender, and Sara K. Dyehouse, Assistant Public Defender, Pensacola, for Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and George Andrew Griffith is hereby afforded a belated appeal of judgment and sentence in Es-cambia County case number 2007 CF 005700 A. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent Mr. Griffith in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

DAVIS, BENTON, and MARSTILLER, JJ., concur.


text:
    TERRY’S PAINT & BODY SHOP, INC., Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS’ COMPENSATION, Appellee.
    No. 1D09-3467.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    No appearance for Appellant.
    Paige Billings Shoemaker and Colin M. Roopnarine, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order from the Department of Financial Services (the Department) reinstating a previous stop-work order on the grounds that the appellant failed to make a scheduled payment required by the parties’ periodic payment agreement. The appellant argues it was not provided notice of its right to file a petition for a section 120.57 administrative hearing to determine whether it had, in fact, breached the parties’ periodic payment agreement or whether there had been two previous occasions of breach. As the validity of the Department’s action depends on disputed facts and there was no prior hearing, we remand the case to the Department for further proceedings. See § 120.68(7)(a), Fla. Stat. (2009); McIntyre v. Seminole County Sch. Bd., 779 So.2d 639, 641 (Fla. 5th DCA 2001).

HAWKES, C.J., ROBERTS and CLARK, JJ., concur.


text:
    Jacquelyn D. POMBRIO, Wife, Appellant, v. Jody POMBRIO, Husband, Appellee.
    No. 1D09-3480.
    District Court of Appeal of Florida, First District.
    March 17, 2010.

      E. Jane Brehany, Pensacola, for Appellant.
    Jody Pombrio, pro se, Appellee.
   PER CURIAM.

Appellant seeks review of a final order of dissolution of marriage on multiple grounds. In the order, the trial court prospectively determined that Appellant’s alimony award would cease once she began receiving her share of Appellee’s retirement benefit. This prospective modification was an abuse of discretion because the retirement benefit was awarded to Appellant as part of her equitable distribution. Goodwin v. Goodwin, 640 So.2d 173, 176-77 (Fla. 1st DCA 1994); Antonini v. Antonini, 473 So.2d 739, 742 (Fla. 1st DCA 1985). Additionally, the trial court’s order contains insufficient factual findings regarding whether the parties agreed to forego the state depository system for support payments, who should be the beneficiary on the children’s life insurance policies, and whether or not Appellee was found to be in contempt for failing to pay court-ordered temporary support prior to entry of the final judgment. We, therefore, reverse the trial court’s prospective modification of alimony and remand for modification and/or additional factual findings consistent with this opinion. We affirm all other issues raised and not addressed in this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

KAHN, DAVIS, and THOMAS, JJ., concur.


text:
    Theresa ANNAS, Wife, Appellant, v. Stuart ANNAS, Husband, Appellee.
    No. 1D09-3768.
    District Court of Appeal of Florida, First District.
    March 17, 2010.

      R. Flint Crump, Gainesville, for Appellant.
    Jane H. Grossman, St. Petersburg, for Appellee.
   PER CURIAM.

The former wife seeks review of various financial provisions contained in the final judgment of dissolution of marriage entered by the trial court. Because there is nothing in the judgment to suggest that the former wife used the money she withdrew from the parties’ bank account for other than reasonable living expenses pending resolution of her petition for dissolution of the marriage, the trial court erred when it assigned that money to her as a part of the scheme of equitable distribution. See, e.g., Parks v. Parks, 18 So.3d 1072, 1073-74 (Fla. 2d DCA 2009) (where an asset is used by a party out of necessity for reasonable living expenses, the asset should not be assigned to the party as a part of the scheme of distribution absent a finding of misconduct by that party); Roth v. Roth, 973 So.2d 580, 584-85 (Fla. 2d DCA 2008) (“to include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct”); Akers v. Akers, 582 So.2d 1212, 1216-17 (Fla. 1st DCA 1991) (it is error to include in the scheme of distribution funds used by a party during pendency of the dissolution proceeding to maintain her customary standard of living). Accordingly, we reverse the trial court’s scheme of equitable distribution. On remand, the trial court shall again address the issue of equitable distribution without talcing into account money used by either party during pen-dency of the dissolution proceeding for reasonable living expenses. We have considered appellant’s remaining complaints, and conclude that they lack merit. Accordingly, we affirm as to those issues without further discussion.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


text:
    MIAMI-DADE COUNTY, Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS, Appellee.
    No. 1D09-4382.
    District Court of Appeal of Florida, First District.
    March 17, 2010.

      R.A. Cuevas, Jr., Miami-Dade County Attorney, and Dennis A. Kerbel, Assistant County Attorney, Miami, for Appellant.
    Bill McCollum, Attorney General, and Patricia Gleason, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 11, 2009, the Court has determined that the order on appeal constitutes a final administrative order subject to appellate review. This Court has held that the complete failure to consider or make explicit rulings on each exception filed in response to an administrative recommended order renders the order nonfinal. See Cocktails Plus v. Dept. of Bus. and Profl Regulation, 958 So.2d 1154 (Fla. 1st DCA 2007). However, we decline to extend this holding to the instant situation where the lower tribunal clearly considered the exceptions, but failed to rule on each exception individually. The show cause order is hereby discharged.

BENTON, THOMAS, and MARSTILLER, JJ., concur.


author: WEBSTER, J.

text:
    Kenneth ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4068.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

In this direct criminal appeal, appellant filed a notice of appeal on August 12, 2009, seeking review of his judgment and sentence. On September 4, 2009, pursuant to a stipulation by the parties, the trial court entered a “Restitution Order.” No notice of appeal was filed seeking review of that order. Appellant now raises only one issue. He asserts that “the trial court erred in imposing restitution since jurisdiction had been divested by filing the notice of appeal.”

We are, of course, obliged to determine whether we have subject matter jurisdiction over an appeal even if the parties fail to raise the issue. E.g., Polk County v. Sofka, 702 So.2d 1243, 1245 (Fla.1997). Here, because appellant failed to file a notice of appeal seeking review of the restitution order, we lack jurisdiction to consider the argument he now makes. Studnicka v. State, 679 So.2d 819, 822 (Fla. 3d DCA 1996). Accordingly, we are constrained to dismiss this appeal.

DISMISSED.

PADOVANO and ROBERTS, JJ., concur.


text:
    Marilyn SHAW, Former Wife, Appellant, v. Mark Thomas SHAW, Former Husband, Appellee.
    No. 1D09-5046.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    E. Jane Brehany, Pensacola, for Appellant.
    Thomas E. Wheeler, Jr. of Stephen T. Holman, P.A., Pensacola, for Appellee.
   PER CURIAM.

AFFIRMED. Robbie v. Robbie, 591 So.2d 1006 (Fla. 4th DCA 1991). (Temporary relief awards in dissolution proceedings are among the areas where trial judges have the broadest discretion.)

VAN NORTWICK, CLARK, and MARSTILLER, JJ., concur.


author: FARMER, J.

text:
    Richard Scott FARINACCI, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2336.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.

      Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Defendant was charged with lewdly and lasciviously fondling the clothed buttocks of a child under 12. The event occurred in the aisle of a crowded supermarket in the afternoon. A video camera recorded the interior of the store. He admits he patted the child on the back but denies that he ever touched buttocks. The critical issue turns on evidence given by a police officer investigating the matter two days later.

The child was still under the age of 12 at trial. At first, he did not remember defendant touching him. He then testified defendant touched him by rubbing his hand down his back and squeezing a cheek of his buttocks. He said the touch was different from the way his teammates pat him on the buttocks but did not elaborate. The record does not reflect the child demonstrating to the jury how he was touched. The child’s testimony about the touching leaves some questions.

Then the investigating detective testified. The following pertinent exchange occurred with the prosecutor:

Q: Did you have [the child] describe the location of touch and describe exactly how the touch occurred?
A: Yes, he described it to me in great detail.
Q: Can you come down here and show the jury how he described it to you?
A: Sure.
Q: You want to take your jacket off so we can see your pants a little better?
A: All right.
Q: Did you go over in detail with him to make sure you got it right?
Attorney: I’m going to object as hearsay.
Court: Overruled.
Q: Did he actually show you with his own hands exactly what happened?
A: I don’t recall if he actually showed me with his own hands but I’m sure he did — not like on himself or on somebody else — although he might have in the air, shown me.
Q: And then what did you do to verify what exactly he was describing?
A: I made sure I understood what he was telling me because he said it was like a spider, like his hand went down his back like a spider. He said that his palm was facing his back.
Q: I just want you to show us what he described for you, without telling it, show us exactly the movement of Mr. Farinacci’s hand how he showed you how it went? Show you us exactly the movement of Mr. Farinaeci hand and how he showed you how it went.
A: Like that.
Q: So it was more in the center of his rear-end?
A: Between the legs, that’s all.

In addition to the detective’s evidence, the video was played for the jury. It does not unambiguously show defendant squeezing the buttock.

After the evidence, and without objection by defendant, the court instructed the jury using the standard jury instruction for general lewd and lascivious molestation. Critical to this issue, the Court instructed that the State must prove that defendant “fondled [victim] in a lewd, lascivious, or indecent manner” but without specifying buttocks. Defendant raises an issue as to whether the instruction as given allowed the jury to convict him even if the jury concluded he “handled or fondled” only the child’s back.

On appeal, as he did at trial, defendant argues the detective’s evidence was inadmissible hearsay. The State responds it is not hearsay and, even if so, would be admissible as a prior consistent statement. We conclude the detective’s testimony and demonstration were inadmissible. It is inescapable that this evidence was introduced — as the predicate question asked— to “show the jury hotv he described it to you” and that “he described it to me in great detail.” [e.s.]

At the outset, we stress the detective’s evidence is not being justified as permissible child hearsay under § 90.803(23). That statute requires the State to give an accused prior notice of the potential use of a child’s statements about an event, which then requires the Court to conduct a separate hearing to determine the reliability of the proposed evidence. Here the State gave no such notice. Consequently there was no separate hearing to determine the child’s reliability as a witness.

When at trial the State sought to present this evidence, defendant objected on hearsay grounds. The principal justification for the detective’s evidence is that it was mostly demonstrative and not a specific recitation of out-of-court statements by the victim. Section 90.801(l)(a)2 expressly defines hearsay to embrace “nonverbal conduct of a person if it is intended by the person as an assertion.” So even if the child had not said a word to the officer but merely demonstrated the act, it would still qualify as nonverbal conduct intended as an assertion.

As the court explained in Halsh v. Hulsh, 431 So.2d 658 (Fla. 3d DCA 1983):

“A wooden application of ‘oral communication’ is no more acceptable in this context [Deadman’s statute] than in the context of the hearsay rule. Thus, where the inescapable inference from the witness’s testimony is that the decedent made certain statements to the witness, the testimony is an oral communication ... as much as when the witness testifies to the actual statements made by the decedent.”

431 So.2d at 664. Hulsh relied on two criminal cases, Molina v. State, 406 So.2d 57 (Fla. 3d DCA 1981), and Postell v. Slate, 398 So.2d 851 (Fla. 3d DCA 1981), where the same court said:

“where ... the inescapable inference from the testimony is that a non-testifying [declarant] has furnished the [witness] with evidence of the defendant’s guilt, the testimony is hearsay, and the defendant’s right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying [declarant] are not repeated.”

Molina 406 So.2d at 58; Postell, 398 So.2d at 854.

Postell is apt. The case involved armed robbery. Two victims testified, but only one was barely able to identify defendant. That witness conceded difficulty in making a cross-racial identification and had variously described this particular perpetrator as both tall and short. To buttress the case against the defendant, the State called a police officer who testified that he spoke to an unnamed woman who claimed to be an eyewitness to the crime. The officer testified that he spoke to the woman minutes after the event, only yards from the scene. After a 5-10 minute conversation with this woman, the officer tes-titled that he spoke to other officers, who went to a specific address and there arrested defendant. Postell explains the error in admitting this testimony thus:

“The mystery woman was portrayed as a ‘witness who had seen some activity at the time.’ She was repeatedly portrayed as conversing with the officer ‘within minutes’ of the robbery and ‘within fifteen to twenty yards’ of the scene of the crime. The picture ivas clear she had told the officer that she had, seen the crime and seen Postell commit it. The fact that the prosecutor’s argument urged the jury to draw this very inference merely exacerbates the problem.” [e.s.]

398 So.2d at 854.

In short, there is no mime exception to the hearsay rule. When the testimony of the witness at trial is founded on a communication with another person, the result of which is to connect the testifying officer to the defendant later charged with the crime, that connection is manifestly the result of inadmissible hearsay. That is the identical basis for the officer’s testimony in this case. Postell describes this inadmissible connection as “egregious hearsay” and holds that “defendant’s right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated.”

We cannot distinguish the detective’s evidence in this case from that principle. It is unavoidable that the detective’s evidence all came from something communicated to him by the child. The detective did not actually see the conduct he described. His testimony depended entirely on the accuracy and believability of statements and nonverbal conduct communicated to him by the child. This evidence was undeniably used to portray out-of-court statements by the victim to the detective for the sole purpose of establishing defendant’s guilt.

The State also contends the detective’s evidence was admissible under § 90.801(2)(b) to refute a contention the child was either lying or recently fabricated the story. The record does show that at various points in the trial defendant tried to assert that the child’s testimony was the result of parental influence after the event but before the detective questioned the child. We do not agree that the detective’s testimony could logically refute parental influence exercised before he questioned the child.

To be admissible under this section, the statement must have been made before the improper influence, not afterwards. Peterson v. State, 874 So.2d 14, 16-17 (Fla. 4th DCA 2004); Neal v. State, 792 So.2d 613, 614 (Fla. 4th DCA 2001). A statement does not meet the statutory definition if the basis for fabrication existing at trial also existed at the time the statement was made. In context the only purpose of the detective’s evidence was to buttress or strengthen the testimony of the child. Section 90.801(2)(b) does not authorize hearsay testimony for that purpose. Accordingly we conclude that the State has failed to lay bare a basis for the detective’s testimony under § 90.801(2)(b).

The State argues the error is harmless. Goodwin v. State, 751 So.2d 537 (Fla.1999), stresses that “if the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” 751 So.2d at 541 (focus of harmless error analysis is effect of error on jury; question is whether it is reasonably possible that the error affected verdict). In short the question is whether it is reasonably possible the detective’s evidence had an effect on the verdict.

The circumstances lack clarity. The child did testify that defendant squeezed a cheek of his buttocks, but the video does not make that apparent. The video is not definite and clear as to precisely what defendant touched or how he might have done so, the scene failing to show the child’s posterior. The child said that the touching was “wrong” because it differed from what his teammates sometimes did. The detective’s evidence did not merely repeat the child’s trial testimony, which involved no elaboration or demonstration, but instead added substantially to it.

Under the totality of the circumstances shown in the record, it is not reasonable to say the detective’s evidence had no effect on the jury. It is fanciful to think the State went to the trouble of presenting the detective’s evidence in the belief it would float over the heads of the jury without a conscious trace. Its effect was certainly made indelible by the State’s closing argument that the detective’s evidence made clear the touching was lewd and lascivious. We see no alternative to a new trial.

Because the case may be retried, we comment briefly on the jury instruction. The jury instruction did not focus on the critical dispute: whether defendant squeezed the child’s buttock. As given, it allowed the jury to find defendant guilty if he lewdly fondled the child’s back. It has been held error to instruct the jury generally on molestation, and without specifying the body part lewdly touched, when the charging document and evidence specify touching specific genitalia. See Trahan v. State, 913 So.2d 729 (Fla. 5th DCA 2005) (general jury instruction on fondling was fundamental error; charge defendant rubbed only victim’s vaginal area precluded State from alternatively proving fondling buttocks). In Abbott v. State, 958 So.2d 1140 (Fla. 4th DCA 2007), we held it was not fundamental error to instruct on an uncharged alternate basis (masturbating before the victim) because there was no evidence or argument regarding it. In this regal’d we distinguished Trahan but did not categorically reject it. In any retrial, the State would do well to tailor its proposed instruction to the precise charge.

Reversed for new trial.

TAYLOR, J., and LEVENSON, JEFFREY R., Associate Judge, concur.

      . § 90.803(23), Fla. Stat. (2009).

      . Feller v. State, 637 So.2d 911, 915 (Fla.1994); Ingrassia v. State, 747 So.2d 445, 446 (Fla. 4th DCA 1999).

      . 398 So.2d at 852, 854. We note that the objection at trial did not include the Confrontation Clause as grounds, and the appeal does not so argue. See State v. Contreras, 979 So.2d 896 (Fla.2008). Our holding today is based solely on the hearsay objection under Florida law.

      . See Contreras, 979 So.2d at 912 ("child's videotaped statement was the most persuasive evidence of penetration").


text:
    Dava E. McCORD, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, o/b/o Michelle L. McKEY, Appellee.
    No. 1D09-0889.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    Dava E. McCord, pro se, Appellant.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Dava E. McCord appeals an administrative child support order issued by the Florida Department of Revenue, Child Support Enforcement Program. Having considered the appellee’s confession of error, we vacate the order on appeal and remand the cause to the Department for further proceedings, if appropriate, and entry of an amended order.

REVERSED.

DAVIS, BENTON, and MARSTILLER, JJ., concur.