author: COPE, J.

text:
    Samuel BENZANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1519.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.

      Carlos J. Martinez, Public Defender, and Robert Godfrey and Valerie Jonas, Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before GERSTEN, COPE, and SUAREZ, JJ.
   COPE, J.

This is an appeal of Samuel Benzant’s convictions for first-degree murder and armed robbery. Defendant-appellant Ben-zant asserts claims of evidentiary error, but we conclude that affirmance is in order.

I.

The defendant was convicted of first-degree felony murder and armed robbery. The defendant was interviewed for four hours, then gave a taped-recorded confession, which when transcribed was forty-five pages in length. The defendant said that he and his codefendants originally planned to rob a market. They went there, but the robbery did not take place. The defendant and codefendants then went on to a house of prostitution, which they robbed. During the robbery, the defendant shot a customer, who later died of gunshot wounds.

In his brief, the defendant argues that the evidence of the defendants’ earlier attempt to rob the market was inadmissible but at oral argument withdrew that claim. The defense was correct in doing so. The evidence was admissible to show the defendant’s intent, namely that he and the codefendants intended to rob a market and when they were not able to do so, proceeded to the house of prostitution, not as customers, but with the intent to rob it. See Dorsett v. State, 944 So.2d 1207, 1216 (Fla. 3d DCA 2006) (en banc) (other bad acts evidence admissible because relevant to a material fact at issue).

II.

The remaining claim of error is that the trial court should have excluded that part of the taped confession in which the defendant answered the detective’s question, “Where did you get the gun from?” On the tape, the defendant explained that he had obtained the gun by breaking into a house.

The defense argued that this evidence should be excluded because in this statement, the defendant admitted to committing a residential burglary, which was a crime not charged in this case.

The State argued to the trial judge that the statement was admissible to rebut the defendant’s main defense. The defense claimed that the defendant’s confession was false. Although this was not a ease involving an insanity defense, the detective had learned that the defendant took medication for a bipolar disorder. In cross-examination of the lead detective and replaying of the confession, the defense asserted that the detective had used leading questions during the taped statement and had suggested answers to some of the questions.

Given that defense, the State argued that this part of the defendant’s statement was admissible. The murder weapon was never recovered, and the detective had no way of knowing the source of the weapon. The State argued to the trial judge that the defendant’s supplying of such details contradicted the defense claim that the confession was false. The State said:

[I]f there are going to be allegations, as clearly there are, and properly so, that Detective Arostegui did something wrong, then the defendant’s statement freely saying where he got it and how he got it, got the murder weapon, goes to, at least circumstantially, counteract that argument....

The trial court acted within its discretion in refusing to require the State to redact this part of the defendant’s confession.

Assuming arguendo that there was any error, the admission of this evidence was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). A successful defense depended entirely on convincing the jury that the defendant’s confession was false. In the confession, the defendant had admitted that he and his codefendants had planned a robbery of a market, but when that proved not to be feasible, they went to a house of prostitution to rob it instead. During the encounter, a customer was shot, and the defendant admitted to being the shooter. The real issue was whether the jury believed that the defendant’s confession was false after listening to the testimony of the detective and the tape recording of the confession. The source of the weapon was mentioned once in the tape recording of the confession, and was never mentioned again in the trial. Assuming there was any error on this point, it was harmless beyond a reasonable doubt.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Deborah FERRIS, Petitioner, v. Tikhon FERRIS, et al., Respondent.
    No. 3D09-3037.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.
    Deborah Ferris, in proper person; Hal S. Vogel, for petitioner.
    Greene Smith and Cynthia L. Greene, Miami, for respondent.
    Before WELLS and SUAREZ, JJ, and SCHWARTZ, Senior Judge.
   PER CURIAM.

On the authority of Madura v. Turosienski, 901 So.2d 396 (Fla. 2d DCA 2005), we hold that the disqualification of the present trial judge is required.

Prohibition granted.


text:
    Kelly EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3316.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.

      Kelly Evans, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Kevar BAIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-88.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.
    Kevar Bain, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: WELLS, J.

text:
    Frederick Semon BOGGESS, Appellant, v. Margaret Pearl BOGGESS, Appellee.
    No. 3D09-83.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.

      Jay M. Levy, Miami, for appellant.
    Robin A. Heilman, Hollywood, for appel-lee.
    Before RAMIREZ, C.J., and WELLS, and LAGOA, JJ.
   WELLS, J.

Former husband Frederick Semon Bog-gess appeals from an order decreasing his obligation to pay permanent periodic alimony to his former wife of forty three years from $3,000 to $780.50 per month claiming that the trial court erred (1) in refusing to sanction Mrs. Boggess for discovery violations by striking her pleadings and terminating his obligation to pay alimony altogether, and (2) in the manner in which it calculated the reduced alimony that he henceforth would be obligated to pay. We find no merit in the first contention. See Neal v. Neal, 636 So.2d 810, 812 (Fla. 1st DCA 1994) (“The standard of review for orders granting or denying dismissal or striking all or a part of a party’s pleadings is whether the trial court abused its discretion.”); see also Girtman v. Girtman, 693 So.2d 631, 632 (Fla. 2d DCA 1997) (“In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness’ test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.” (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980))).

We do, however, agree that the court below erred in calculating the amount of permanent periodic alimony to be paid to Mrs. Boggess, because that calculation may have improperly included as “income” for Mr. Boggess, annuity payments, if they were payments from principal, and also because the calculation failed to include in Mrs. Boggess’ “income” sums she was receiving from some or all of her investments.

The modification award is therefore reversed and this matter remanded for redetermination of the amount of permanent periodic alimony henceforth to be paid by Mr. Boggess. Such determination to include consideration of only income received by both parties, and exclude principal payments received by either party, ■with no amounts to be imputed to either party for purported “income” from reverse mortgages. Finally, any modification ordered herein shall take effect upon entry of the recalculated award.

      . No "income” should have been imputed to Mrs. Boggess for sums Mr. Boggess’ expert opined she might be able to secure from a reverse mortgage. A reverse mortgage is not "income”; it is a secured loan which over a period of time dissipates the equity value of an asset. See In re Early, 2008 WL 2073917, at 4 (Bankr.D.D.C. May 12, 2008) (defining a reverse mortgage as a loan where the lender disburses the proceeds over a long period rather than in a lump sum and which is repaid in a lump sum when the borrower dies or when the property is sold); see generally Fla. S. Bill Analysis & Fiscal Impact Statement of Feb. 17, 2010, § 1 for Bill CS/SB 1532, p. 1 ("A reverse mortgage is a special type of loan that allows a homeowner to convert a portion of the equity in the home into cash.”). See, e.g., De Cenzo v. De Cenzo, 433 So.2d 1316, 1318 (Fla. 3d DCA 1983) ("Requiring a wife to deplete her capital assets in order to maintain her standard of living is wrong as a matter of law.”).


text:
    Lee Floyd FLENOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-110.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and LAGOA, JJ.
   PER CURIAM.

We conclude that the errors complained of do not rise to the level of being fundamental. See Kilgore v. State, 688 So.2d 895, 898 (Fla.1996) (stating that fundamental error must reach “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.”). Furthermore, we do not find that the claimed ineffectiveness is apparent on the face of the record; thus, we do not reach the merits of Flenor’s ineffectiveness claim as it is more properly raised in a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. See Mansfield v. State, 758 So.2d 636, 642 (Fla.2000).


text:
    Troy Lee MILLS, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 3D09-565.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.

      Patrie L. Jones, Fort Lauderdale, for appellant.
    Sheron Wells, Assistant General Counsel, Department of Corrections, for appel-lee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The issue in this case is governed by Meola v. Department of Corrections, 732 So.2d 1029 (Fla.1998), from which we have no power or authority to depart. In addition, we see no reason to certify the issue to the Supreme Court, as requested.

Affirmed.


text:
    Leroy PEARSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-901.
    District Court of Appeal of Florida, Third District.
    April 16, 2010.
    Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before CORTINAS, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

On this record, the defendant was in direct criminal contempt of the trial court because of his refusal to obey a clear, unambiguous directive in open court. We therefore affirm the trial judge’s order. Based on the circumstances of this case, including that the intended purpose of the contempt was achieved, the defendant was ultimately acquitted of the charges after serving substantial time in jail prior to trial, and he has now served over one month incarceration post-trial on the contempt charge, we are of the opinion that the defendant’s immediate release with credit for time served is appropriate. We trust that the trial court will immediately mitigate the sentence accordingly.

This opinion shall take effect immediately notwithstanding the filing of any motion for rehearing.

Affirmed.


text:
    Donna LIVAUDAIS, Appellant, v. David THOMAS, Appellee.
    No. 1D09-6588.
    District Court of Appeal of Florida, First District.
    April 20, 2010.
    Donna Livaudais, pro se, Appellant.

      No appearance for Appellee.
   PER CURIAM.

DISMISSED. The Motion to Consolidate Actions, filed on March 22, 2010, is denied.

WOLF, LEWIS, and MARSTILLER, JJ., concur.


author: WELLS, Judge.

text:
    CITY OF MIAMI, a Municipal Corporation of the State of Florida, Petitioner, v. Vernell REYNOLDS, Respondent.
    No. 3D09-3466.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Julie O. Bru, City Attorney, and John A. Greco, Assistant City Attorney, for petitioner.
    Cohen & Rind and Osnat K. Rind, Miami Lakes, for respondent.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

The City of Miami petitions for second tier certiorari review of a decision rendered by the Appellate Division of the Circuit Court. That decision quashed a final judgment entered by the City of Miami Manager/Chief Administrator (“City Manager”) (1) because that judgment failed to make findings of fact and conclusions of law to support the City Manager’s decision to reject the City’s Civil Service Board’s determination that a police officer, charged with violating a number of departmental and civil service orders, rules and regulations, was not guilty of violating all but one of these charges, and (2) because that judgment failed to make findings and conclusions to support the City Manager’s decision to impose stricter sanctions on the officer than those recommended by the Civil Service Board. The City claims here only that the Appellate Division departed from the essential requirements of the law with regard to the second determination, arguing that once misconduct has been determined by the Civil Service Board, the penalty to be assessed comes within the exclusive discretion of the City Manager and may be imposed without elucidation. We agree with the City and grant the petition for certiorari. See City of Miami v. Cortes, 995 So.2d 604, 605 (Fla. 3d DCA 2008) (finding that this court has jurisdiction to conduct a second-tier certiorari review of an appellate decision of the circuit court to determine whether it: (1) afforded procedural due process, and (2) applied the correct law).

As this court has previously found:

[T]he [Civil Service] Board acts in the nature of a jury or trier of facts. The Board determines the truth or falsity of the charge and makes a finding as to the guilt or innocence of the accused. This finding or adjudication of guilt is then reported to the City Manager, together with their recommendations, and it is then the prerogative and duty of the City Manager[ ] to pass judgment as the findings of fact indicate and the circumstances of the case require. However, after the determination by the Civil Service Board of the guilt or innocence of the accused, its function as such ceases, at least as it would affect the rights and duties of the City Manager[ ].... To say that the recommendations of the Civil Service Board must be followed by the [City Manager) is, in effect, to strip the City Manager of the powers and duties conferred upon him by the charter and would be tantamount to a usurpation of his powers and duties under the charter. As was pointed out in Baynard v. Windorm, [63 So.2d 773 (Fla.1953) ], such recommendations may be followed or disregarded by the City Manager in imposing punishment. It may be that the punishment imposed was severe and obviously it was more severe than would have been imposed by the Civil Service Board, but as we have pointed out, it was not the prerogative of the Civil Service Board to punish the appellant but that of the City Manager, and it has not been shown that he exceeded his authority.

Eldredge v. Evans, 102 So.2d 403, 405 (Fla. 3d DCA 1958) (emphasis added); see City of Miami v. White, 165 So.2d 790, 791-92 (Fla. 3d DCA 1964) (confirming that the while the Civil Service Board determines the truth of the charges and makes findings as to guilt or innocence, it is the prerogative of the City Manager to impose punishment; thus, any recommendations that the Civil Service Board may make regarding punishment may simply be disregarded by the City Manager); accord Miami-Dade County v. Jones, 778 So.2d 409, 410 (Fla. 3d DCA 2001) (reversing a Circuit Court Appellate Division’s decision which determined that a discretionary decision by the Public Health Trust’s president to impose a harsher sanction than that recommended by a hearing officer had to be reversed “because the Trust president failed to state with particularity any reasons for departing from the hearing officer’s [sanction] determination”).

That portion of the opinion below imposing an obligation on the City Manager to state reasons for imposing a sanction different from that recommended by the Civil Service Board is, therefore, quashed. On remand, the City Manager is authorized to impose any appropriate sanction, even the one currently imposed, with no need for elucidation.

Petition granted; decision from the Appellate Division of the Circuit Court quashed in part as provided herein.

      . The officer was sanctioned for removing, while in police uniform, an electric meter box from an apartment she was renting to a third person and for placing the box in the trunk of her City of Miami police car. The Civil Service Board found her not guilty of all but one of the seven charges brought against her and recommended forfeiture of 20 hours of earned overtime as a sanction; the City Manager imposed a 120-hour suspension.


author: FARMER, J.

text:
    Lukieshia S. McCALL, Appellant, v. Andrew MARTIN, Appellee.
    No. 4D08-3912.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2010.
    Rehearing Denied June 8, 2010.
    Moria Rozenson of Pickett, Marshall & Rozenson, P.A., West Palm Beach, for appellant.
    No appearance by appellee.
   FARMER, J.

As the marriage is being dissolved, he is about to leave for prison because of his conviction for battering her. The issue is child support, whether his criminal conviction and resulting incarceration is a valid reason to deny setting an amount of support attributable to him based on imputed income. We hold it is not and reverse the final judgment.

In petitioning for dissolution of marriage, the mother requested sole parental responsibility and both temporary and permanent support for their two minor children. As temporary support the trial court ordered the father to pay $551 biweekly for the two children plus an additional $20 bi-weekly retroactive support based on his then net monthly income of $3,495.

When the case later came up for final determination, the father had been convicted of domestic violence against his wife and was scheduled to be sentenced. The trial court found that it was in the best interest of the minor children that she have sole parental responsibility because of his violence and resulting prison sentence. But the court declined to make any provision in the final judgment of dissolution of marriage for his share of child support, stating he had no monthly income. She moved for rehearing arguing it was necessary to establish his share of child support. The court denied her motion, again on the basis that he “is in prison and has no income.”

Because there was no transcript of the final hearing, she filed a statement of evidence, and he filed a response. The court entered an order stating that the final hearing took place in late April of 2008 and that it declined to impute income to the father to calculate child support because:

“the Respondent was on his way to prison and unemployed. In light of the lack of contribution toward child support expected from the Father, the Wife was awarded whatever marital property existed and sole responsibility for the children. ... When people are released from prison they are encouraged to find work. In order to find and maintain work they need to get a driver license. If there is a large accumulated child support debt they cannot get a license. This situation is to be avoided if possible.”

The principal issue here is whether a trial court can properly decline to set a specific amount of child support due from an incarcerated parent without current income or assets while imprisoned.

Section 61.30(2)(b) governs the imputation of income for purposes of child support:

“Income on a monthly basis shall he imputed to an unemployed or underemployed parent when such employment or underemployment is found by the court to be voluntary on that parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community .... ” [e.s.]

In Mascola v. Lusskin, 727 So.2d 328, 333 (Fla. 4th DCA 1999), we held that child support obligations may not be modified where a decrease in income resulted from payor’s conviction for attempting to kill the mother in order to eliminate such support. Although in the present case there is no evidence that he committed the crime to avoid his support obligation, Mascóla is authoritative:

“The mere fact that while imprisoned the obligor will not be able to make actual payment of the support arising from the income imputed to him, and therefore may not be held in contempt for failing to do so, see Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), hardly justifies eliminating or reducing the basic support obligation itself. We thus distinguish fixing the monetary amount of the duty from the remedies for breach of it. His incarceration may relieve him from the use of contempt to coerce payment, but that is no cause to reduce the amount of the support where the failure to pay results from the pay- or’s voluntary conduct. The arrearages can continue to accumulate until the ob-ligor returns to the work-a-day world and begins to earn actual income. It will then be appropriate for the court to establish a payment plan to reduce or eliminate the arrearages in accordance with his income-earning ability. Most assuredly it would be in the children’s best interest to have the unpaid support payments grow in the expectation that one day the father will have the ability to make actual payment.”

727 So.2d at 332-33.

The Florida Supreme Court approved the Mascóla holding “that an incarcerated parent may not automatically have his or her child support payment obligations modified based solely on a reduction in income resulting from incarceration.” Dep’t of Revenue v. Jackson, 846 So.2d 486, 494 (Fla.2003). It held that “the child’s interests are not served where the obligor parent is unable to fulfill his or her support obligations because there is no income while in prison.” 846 So.2d at 493. The court stated:

“Under such circumstances, the child faces the hardship of simply not receiving the money he or she needs, regardless of whether the trial court modifies the incarcerated parent’s obligations. After the parent is released, however, the child is in a much better position if there is at least the possibility that not only will current support payments resume, but payment for an accumulated amount will be met — even if under a restructured payment plan. To the contrary, if we permit trial courts to suspend an incarcerated parent’s obligation to pay child support, the supported child will never receive the benefit of the support payments to which the child was entitled. Therefore, the child’s interests are certainly best served when courts do not modify an obligor parent’s child support payments simply because of the parent’s incarceration.”

846 So.2d at 493.

Jackson noted the prospects for finding employment by a parent just released from prison. Nonetheless the court made clear that:

“such difficulties do not ... outweigh the burdens faced by a minor child who must do without monetary support from the incarcerated parent. Our primary concern is that the child receives the support to which he or she is entitled. Of secondary concern are the parent’s difficulties — largely self-inflicted — resulting from incarceration due to criminal conduct unrelated to the support obligations.” [e.s.]

846 So.2d at 493; see also Holt v. Geter, 809 So.2d 68 (Fla. 1st DCA 2002) (affirming order directing defendant to pay child support despite argument that payment should be suspended until release from prison because unable to earn an income; applying Mascola).

A child’s best interest is certainly not served by refusing to set an initial amount of support based on imputed income for a parent about to be imprisoned. We therefore hold that income should be imputed to the father so that the arrearages can accumulate until he is able to earn an income. When release occurs, the court should establish a payment plan to reduce arrearag-es according to his earning ability, setting a payment plan. On remand the trial court shall recalculate child support to reflect the father’s obligation for support by imputing income.

Reversed.

HAZOURI and DAMOORGIAN, JJ, concur.

      . See § 61.30(2)(b), Fla. Stal. (2009).


text:
    Richard R. MALCOLM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2891.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Richard R. Malcolm, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   On Order to Show Cause

PER CURIAM.

This court issued an order to show cause directing Mr. Malcolm to demonstrate why he should not be barred from filing further appeals in Eleventh Judicial Circuit Court case numbers 96-19774 and 03-30598. Having considered Mr. Malcolm’s response, we conclude that he is abusing the judicial process and should be barred from further pro se filings in case numbers 96-19774 and 03-30598. Any further pleadings regarding these cases will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. See Steele v. State, 14 So.3d 221 (Fla.2009).


text:
    Joel PAREDES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3158.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Joel Paredes, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


author: ROTHENBERG, J.

text:
    NARANJA PRINCETON COMMUNITY DEVELOPMENT CORP., a not for profit corporation, Appellant, v. CORNERSTONE DEVELOPMENT GROUP, INC., et al., Appellees.
    No. 3D08-2332.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.

      Charles McKinnon, Naranja, for appellant.
    Berman Rennert Vogel & Mandler, P.A., and Neil J. Berman, Miami, for appellees.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The plaintiff, Naranja Princeton Community Development Corporation (“NPCDC”), appeals from a final judgment entered in favor of the defendants, Cornerstone Development Group, Inc. and Tuscany Place Associates, Ltd. We affirm.

NPCDC contends that the trial court erred by issuing the order setting the cause for trial commencing February 11, 2008, and by proceeding with the final hearing. NPCDC claims that the cause was not at issue because Tuscany Place Associates, Ltd.’s motion to dismiss, dated May 17, 2006, was pending. The record, however, does not support NPCDC’s position.

Florida Rule of Civil Procedure 1.440(a), titled “When at Issue,” provides that “[a]n action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading.... ” Here, the “last pleading served” was the defendants’ answer, and when the trial court issued the order setting the cause for trial, no motion directed to the defendant’s answer was pending. Therefore, the trial court did not err by issuing the order setting the cause for trial commencing on February 11, 2008.

NPCDC also contends that the trial court erred by setting the action for a non-jury trial because its civil cover sheet indicated that it was requesting a jury trial. In support, NPCDC argues in its initial brief that “[i]n Miami-Dade County Circuit Court a civil cover sheet signed by the attorney filing the complaint is required to be submitted with the filing of each new complaint. At the bottom of the cover sheet the attorney selects jury or non-jury trial. NPCDC selected a jury trial .... ” (emphasis added). NPCDC’s argument, however, is a mis-charaeterization of the record. Although the plaintiff is required to file a civil cover sheet, the civil cover sheet filed by NPCDC simply asks the following question: “Is Jury Trial Demanded in Complaint ?” (underlining added). In response to the question, NPCDC marked the ‘Tes” box. Contrary to NPCDC’s contention, its attorney was not selecting a jury or non-jury trial; NPCDC’s attorney was merely noting whether a demand for jury trial was made in the complaint.

Florida law is clear. Pursuant to Florida Rule of Civil Procedure 1.430(b), a party may demand a jury trial in two manners. First,

[a]ny party may demand a trial by jury of any issue triable of right by a jury by serving upon the other party a demand therefor in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.

Second, “[t]he demand may be indorsed upon a pleading of the party.” Fla. R. Civ. P. 1.430(b) (emphasis added).

In its cover sheet, NPCDC asserted that in its complaint NPCDC made a demand for a jury trial. However, a review of the complaint reflects that no such demand was made. Additionally, NPCDC failed to comply with rule 1.430(b), and therefore, waived its right to a jury trial. See Fla. R. Civ. Proc. 1.430(d) (“Providing that a party who fails to serve a demand as required by this rule waives trial by jury....”). We also conclude that even if NPCDC had made a proper demand for jury trial, NPCDC waived its right to argue on appeal that the trial court erred by setting the cause for a non-jury trial because it failed to object to the several orders setting the cause for a non-jury trial.

NPCDC further claims that it did not receive the order setting the cause for trial commencing February 11, 2008. We note, however, that the order setting the cause for trial contains a certificate of service stating that a copy was mailed to NPCDC’s attorney, and that “[a] presumption of notice arises when a certificate of service indicates that pleadings and orders were mailed to counsel.” Depelisi v. Wishner, 15 So.3d 808, 811 (Fla. 4th DCA 2009).

As to NPCDC’s final contention, we merely note that the trial court properly denied NPCDC’s motion for summary judgment as genuine issues of material fact existed. See Holl v. Talcott, 191 So.2d 40 (Fla.1966); Copeland v. Fla. New Invs. Corp., 905 So.2d 979, 980 (Fla. 3d DCA 2005).

Affirmed.

      . The civil cover sheet filed by NPCDC comports with Form 1.997, which provides in part: “The civil cover sheet and the information contained here does not replace the filing and service of pleadings or other papers as required by law. This form is required by the Clerk of Court for the purpose of reporting judicial workload data pursuant to Florida Statute 25.075.”


author: RAMIREZ, C.J.

text:
    Giovanna Settimi CARAFFA, individually, and as personal representative of the Estate of Benedetto Emanuelle Caraffa, Appellant, v. CARNIVAL CORPORATION, Appellee.
    No. 3D09-1998.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Lipcon, Margulies & Alsina, P.A., and Michael A. Winkleman, Miami, for appellant.

      Maltzman Foreman, and Jeffrey E. Maltzman and Darren W. Friedman, Miami, for appellee.
    Before RAMIREZ, C.J., and COPE, and GERSTEN, JJ.
   RAMIREZ, C.J.

Giovanna Settimi Caraffa appeals the dismissal of her complaint on forum non conveniens grounds. We reverse because the motion to dismiss filed by appellee Carnival Corporation was untimely pursuant to Florida Rule of Civil Procedure 1.061(g).

Factual Background

Caraffa filed the underlying action on behalf of her deceased husband, Benedetto Caraffa, on January 17, 2006. She alleged that her husband died as a result of prolonged exposure to asbestos while working on ships that Carnival owned and controlled. Carnival received service of process on January 19, 2006.

On March 22, 2006, Carnival served its Motion to Dismiss, which included a forum non conveniens argument. In response, on July 10, 2006, Caraffa filed her Motion to Strike Carnival’s untimely forum non conveniens argument, which she later withdrew before the trial court ruled on the motion.

Soon thereafter, Carnival filed its responses to Caraffa’s First Request for Production, which, in numbers 29-41, stated as follows:

In the event that one or more Defendants take the position that the Court in which this suit is filed lacks jurisdiction over defendant or the subject matter; or the doctrine of forum non conveniens applies then Plaintiff requests that any and all documents pertaining to the following be produced.

Carnival responded as follows:

With respect to Requests 29-MI and for purposes of this litigation only, Defendant is not contesting jurisdiction and is not moving to dismiss based on the doctrine of forum non conveniens.

On September 6, 2006, Caraffa filed her Amended Complaint, in which she alleged causes of action for wrongful death under the Jones Act and General Maritime Law, Unseaworthiness, Failure to Provide Maintenance and Cure, and a Survival Action for Damages of Benedetto Caraffa. Carnival filed its Motion to Dismiss the Amended Complaint on October 2, 2006. Carnival did not include an argument based on forum non conveniens. On April 27, 2007, the parties entered into an agreed order regarding Carnival’s Amended Motion to Dismiss.

On May 14, 2007, Carnival served its Answer and Affirmative Defenses. Carnival amended its Answer and Affirmative Defenses the next day. Again, Carnival did not include a defense regarding forum non conveniens. Discovery followed. The trial court noticed the case for trial five times. On March 4, 2008, the trial court transferred the case to the Asbestos Division. Section IV of the Omnibus Order, applicable to asbestos personal injury cases, provides that all cases “shall have attached when served upon Defendants a properly completed Forum Non Conve-niens Fact Sheet.” In addition, the order states that a forum non conveniens motion can be heard anytime up to sixty days prior to trial. Caraffa did not comply with the fact sheet requirement.

On November 12, 2008, Carnival filed and served another Motion to Dismiss. Carnival raised the issue of forum non conveniens, arguing that the case was more conveniently litigated in Italy. Ca-raffa promptly moved to strike the motion, arguing that the motion was untimely according to Florida Rule of Civil Procedure 1.061(g), and that the time limit is strictly enforced. Caraffa also argued that: i) Carnival’s Motion was untimely and contradictory to Kinney because an overwhelming amount of time and resources were spent litigating this case for well over three years; ii) the majority of the witnesses are located in Nicaragua, not Italy, and that Nicaragua is significantly closer to Miami than Italy; iii) Carnival had substantial economic and commercial contacts, including its base of operations in Miami, Florida; and iv) Caraffa is a seafarer, who has long been treated as a ward of the court.

The trial court heard argument on Carnival’s Motion to Dismiss on May 20, 2009. During oral argument, Carnival asked for the first time for the court to deem the motion as timely filed based upon excusable neglect. The trial court ultimately granted Carnival’s motion to dismiss for forum non conveniens.

Analysis

An order in which the trial court grants a motion to dismiss based on forum non conveniens is subject to an abuse of discretion standard of review. See Fla. R. Civ. P. 1.061 (“Orders granting or denying dismissal for forum non conveniens are subject to appellate review under an abuse-of-discretion standard.”). See also Kinney, 674 So.2d at 93-94.

Although the trial court discussed the factors set forth in Kinney in its order of dismissal, as called for in forum non conve-niens cases, it failed to address the untimely argument and enforce the plain language of Florida Rule of Civil Procedure 1.061(g), under which Carnival was required to serve its motion to dismiss for forum non conveniens “no later than 60 days after service of process on the moving party.” The Florida Supreme Court stated in Kinney that “courts shall not order dismissal if doing so would actually undermine the interests that forum non conveniens seeks to preserve.” Kinney, 674 So.2d at 93.

These include avoiding a waste or resources (including resources already expended), avoiding forcing a plaintiff into a forum where a statute of limitation may have expired, or other similar problems. For example, we believe it would be contrary to the doctrine to order dismissal where the parties ... have substantially completed discovery or are now ready for a Florida trial.

Id. at 93-94.

In Wedge Hotel Management (Bahamas), Ltd. v. Meier, 868 So.2d 552, 553 (Fla. 3d DCA 2004), this Court affirmed the denial of a motion to dismiss for forum non conveniens. We declined to address the merits of the motion because the “motion was untimely under the plain language of rule 1.061(g). Id. at 552. See also Costa Crociere, S.P.A. v. Escobar, 934 So.2d 510, 511 (Fla. 3d DCA 2005) (declining to address the merits because the motion was untimely filed); Dawson Ins., Inc. v. Quantum Capital Network, LLC, 923 So.2d 1194, 1195 (Fla. 3d DCA 2006) (affirming the denial of a motion to dismiss because it was “untimely served beyond the sixty day period” as rule 1.061(g) requires. “By the plain language of rule 1.061(g), ‘a motion to dismiss based on forum non conveniens shall be served no later than 60 days after service of process on the moving party.’ The Rule provides no exception. As in Wedge, the purpose of the motion is ‘to promote the public interests that the doctrine of forum non conve-niens seeks to preserve, which includes avoiding a waste or resources’ and the filing of unnecessary successive motions.”).

Carnival served its motion to dismiss over one thousand days after service of process, well beyond the sixty-day time limitation period set forth in rule 1.061(g). Untimely served motions to dismiss for forum non conveniens should be denied, but particularly so when the parties have expended significant resources. Kinney makes it abundantly clear that trial courts shall not order dismissal where doing so would undermine the interest forum non conveniens seeks to preserve. Id. at 93-94. The underlying lawsuit was ongoing for more than three years before the trial court ruled on the motion to dismiss. During this time, the parties conducted discovery and certainly expended amounts of time and resources in the process. There is simply no justification for the immense delay.

Furthermore, Carnival failed to preserve the issue of forum non conveniens, and it is thus estopped from raising the issue at a later juncture. Waiver is the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right. See Major League Baseball v. Morsani, 790 So.2d 1071, 1077 n. 12 (Fla.2001). Carnival’s conduct is consistent with the voluntary and intentional relinquishment of its right to file a motion to dismiss based on forum non conveniens.

We acknowledge that Carnival included a forum non conveniens argument in its first motion to dismiss which it filed following service of process. Carnival, however, declined to contest jurisdiction shortly thereafter. In its response to requests for production, Carnival declared that it was “not moving to dismiss based on the doctrine of forum non conveniens.” In addition, Carnival did not raise the issue after Caraffa amended her complaint. In its Answer and Affirmative Defenses, Carnival did not include a forum non conveniens defense. Once a plaintiff files an amended complaint, the defendant is required to plead all defenses it seeks to assert. Prior pleadings are superceded by the amendment. See Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004) (holding that a notice and motion does not carry over as a response to the amended complaint); Abrams v. Paul, 453 So.2d 826, 827 (Fla. 1st DCA 1984) (stating that an answer to the original complaint does not carry over as a response to the amended complaint). Carnival thus abandoned the issue of forum non conveniens.

Neither do we agree with Carnival that the trial court adopted Carnival’s forum non conveniens argument by implication when the court ultimately dismissed the action. The eleventh hour ore tenus motion for enlargement of time based on excusable neglect was patently absurd. We cannot interpret the trial court’s silence as an adoption of such a ludicrous argument. Carnival took inconsistent positions upon which Caraffa relied. Carnival initially represented that it would not move to dismiss based on forum non con-veniens. Carnival then took the entirely inconsistent position when it later raised the issue.

Conclusion

In accordance with the sixty-day time limitation period set forth in Florida Rule of Civil Procedure 1.061(g), and well established Florida law that is consistent with the Florida Supreme Court’s pronouncements in Kinney, we conclude that Carnival untimely raised its motion to dismiss based on forum non conveniens. Accordingly, the trial court abused its discretion when it dismissed the action. We therefore reverse the order of dismissal, and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . Kinney Sys., Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla.1996).


author: ROTHENBERG, J. SCHWARTZ, Senior Judge

text:
    Elan ABUROS a/k/a Ran Aburos, Appellant, v. Yael ABUROS, Appellee.
    No. 3D08-2808.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.

      John G. Crabtree and George R. Baise Jr., Key Biscayne; and Marcia Soto, Coral Gables, for appellant.
    Sheldon Zipkin, North Miami Beach, for appellee.
    Before COPE, ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Elan Aburos (“the former husband”) appeals the civil contempt and incarceration order entered against him for failure to pay Yael Aburos (“the former wife”) the alimony and child support payments required under the 2001 order dissolving their marriage. Because we conclude there is no competent substantial evidence to support the trial court’s finding that the former husband has the present ability to pay the $25,000 purge condition, we reverse the contempt order under review.

Background

A final judgment dissolved the Aburos’ nine-year marriage on July 11, 2001, and required, in part, that the former husband pay $1,700 monthly in permanent periodic alimony, $1,693 monthly in child support, and the $70,000 second mortgage on the marital home, which was awarded to the former wife.

In April 2001, the former husband was held in contempt of court for failing to make the required payments, failing to attend a hearing, willfully fleeing the court’s jurisdiction by moving to Israel, and dissipating marital assets. The trial court found that “the Husband’s abandonment of his children was made in an effort to flee the jurisdiction of this court with practically all of the marital assets, except for the marital home, which Husband could not remove”; the former husband “grossly understated his actual income and made efforts to intentionally reduce his present income due to this pending dissolution action”; and his business brought in “a significant amount of unreported cash income.” Consequently, the trial court ordered the former husband to recover funds from an account he improperly transferred to his sister, Meera Burman, and to give them to his former wife.

After an arrest in 2002, the former husband purged his contempt and began paying $800 monthly towards his child support and alimony obligations. He contends that his former wife accepted the reduced monthly payments without protest for more than six years because she knew he could not afford to pay more. The former wife, however, contends that she wrote a letter to the trial court in 2005 in an effort to obtain a hearing to collect the alimony and child support owed.

In November 2007, the former wife filed a motion seeking a contempt order against the former husband for failing to make the required payments. A magistrate held three hearings at which the former husband testified that he had $52 in his bank account and a car worth $1,350. He stated that he was making $2,160 a month as a salesman at a jewelry store owned by his sister, Bakel Einhorn, and living in her small, furnished apartment because he could not afford his own place after regularly making the $800 monthly support payments. He also testified that he had access to the store’s bank account, which contained approximately $25,000 in June 2008, and a bank-issued signature stamp to issue checks in his sister’s name to pay the usual day-to-day operating expenses of the business. He testified that any out-of-the-ordinary business expense required the approval of his sister, an Orlando resident who rarely visits the store; he was not authorized to issue checks or withdraw funds from the business account for his own personal expenses; and he possessed no ownership interest in the business.

The former wife testified that the former husband is a talented jewelry designer who previously made $100,000 annually and who has the ability to earn more than his present income. She claimed she called her former husband many times asking him to help with expenses but had no success.

The magistrate found that the former husband “has complete dominion over the operation of the store including access to its bank account,” he has the present ability to pay a purge amount, and he owed the former wife $319,828. In November 2008, the trial court denied the former husband’s exceptions to the magistrate’s findings, issued a civil contempt order containing a purge provision in the amount of $25,000, and ordered that the former husband be taken into custody. The former husband filed an emergency motion to stay the order incarcerating him, which was granted by this Court, pending resolution of this appeal.

Analysis

In Bowen v. Bowen, 471 So.2d 1274, 1278-79 (Fla.1985), the Florida Supreme Court identified a two-step procedure for establishing civil contempt in family support matters. First, the court must determine whether the defaulting party has willfully violated the court order; and second, the court must determine an appropriate remedy. If incarceration is ordered, the court must make a separate, affirmative finding that the defaulting party has the present ability to pay the purge condition. The former husband challenges the trial court’s finding on this second question because there was no evidence to support the finding that he had the present ability to pay the $25,000 purge amount. We agree.

The finding that the former husband had the ability to pay the purge amount was based on the former husband’s access to his sister’s business account, the assistance previously provided by his sisters, and his sisters’ ability to pay the purge amount. The finding that the former husband had the ability to pay the purge amount due to his access to his sister’s business account was error. We also find that the facts contained in this record do not support reliance on the financial resources or good graces of the former husband’s family for satisfaction of the former husband’s debts.

The evidence introduced below is that the business was purchased by the former husband’s sister and that the former husband is working at the business as an employee under a written employment agreement. He is not a signatory on the lease nor on any of the business accounts, and he possesses no ownership interest in the business. He was, however, provided with a signature stamp to operate the business on a day-to-day basis. There have been instances where the business was allegedly unable to pay him his entire salary. Other than his salary (approximately $25,000 a year), he receives no other money from the business. The former husband’s sister, the owner of the business, objected to her brother’s use of the business’ assets to pay off her brother’s debts, and prior to the trial court’s hearing on the former husband’s exceptions, allegedly revoked the former husband’s “stamp” privileges. Because there was no evidence offered to dispute this testimony, there is no evidence to support a finding that the former husband could pay the purge amount by legally accessing the business account in question.

Next, we turn to the finding that the former husband’s family holds the “key” to the former husband’s freedom. We recognize that under certain limited circumstances, this Court has relied on the assets of close friends and family members in determining whether a contemnor has the present ability to pay a purge amount.

In Sibley v. Sibley, 833 So.2d 847 (Fla. 3d DCA 2002), the former husband failed to pay any of the $4,000 monthly child support payments he owed to his former wife, and he was incarcerated for civil contempt after the trial court determined he had the present ability to pay a purge amount of $100,000. This Court affirmed the contempt order, finding that the record demonstrated that Sibley could “command, simply by asking, the payment of the purge amount through his very wealthy father — who has in effect given many hundreds of thousands of dollars to Mr. Sibley for any and every purpose except the discharge of this particular obligation.” 833 So.2d at 848. Payments from Sibley’s father included $250,000 for a business, $200,000 to forgive a loan from the father, large sums to support Sibley’s present wife and his other child, and legal fees covering no less than sixteen lawsuits he filed in state and federal courts attempting to avoid his obligations. We additionally noted that Sibley had “adamantly refused to reveal many of his financial records,” which raised a strong presumption against his argument that he was unable to pay the purge amount, and that the record demonstrated that he had substantial assets in his name. Thus, this Court found that Sibley’s failure to pay was not due to any inability to pay the purge amount but instead was “the very epitome of a willful, contemptuous refusal to obey a binding order of court.”

Similarly, in Mendana v. Mendana, 911 So.2d 130 (Fla. 3d DCA 2005), this Court affirmed an order of contempt containing a purge amount of $14,700 based upon the former husband’s actions and his ability to readily obtain the purge amount. The record reflected that Mendana had recently voluntarily resigned from his employment because he objected to the amount of money being deducted from his paycheck to satisfy the court judgment entered by the trial court in favor of his former wife. At the time, Mendana was living with his fiancée and helping her pay their expenses, including utilities, car insurance and the mortgage. The record also reflected that Mendana’s fiancée loaned him $17,000 to pay his attorney’s fees, an amount greater than the $14,700 purge condition.

In both Sibley and Mendana, the father and the fiancée, respectively, were paying sums of money that would be considered large in relation to the purge amounts contained in the contempt orders. In Sib-ley, the father not only was employing Sibley but also paying a significant portion of his personal expenses. In both cases, the personal expenses paid by the father and the fiancée could have helped to pay the child support arrearages the former husbands owed, and the former husbands appeared to have ready access to those funds. These two cases thus present unique circumstances where a third party’s assets may be considered when assessing the debt of another, and represent the exception, not the norm.

In contrast, the record in the instant case does not provide the same support for determining the former husband’s ability to pay the support arrearages or the purge amount specified in the contempt order based on either the assets contained in his sister’s business bank account or his ability to obtain them directly from his sister. The record is devoid of any evidence that the sister’s business is covering the former husband’s personal expenses; the sister is willing to pay his debts, particularly a debt that is roughly equal to his annual salary; or that the former husband has any ownership interest in the business.

Unlike Sibley or Mendana, there was also no evidence in the instant case that the former husband was perpetrating a fraud on the court or that he had sufficient assets to pay the purge amount. In Sib-ley, the former husband refused to reveal his financial records and the record showed he had substantial assets in his own name. In Mendana, the former husband admitted in an employment discharge document that he was quitting his job to avoid his support obligations. Although the former husband in the instant case flouted court orders and his support obligations from 2001 to 2002, there is no evidence that he has done so since 2002.

In the present action, the magistrate found the former husband’s testimony not credible, but that does not excuse the requirement to identify an appropriate source of funds from which he could pay the purge amount. See Sears v. Sears, 617 So.2d 807 (Fla. 1st DCA 1993) (quashing a civil contempt order because the trial court failed to let the former husband testify and to allow his attorney to present argument on the present ability to pay a purge).

As the Florida Supreme Court observed in Bowen, the purpose of civil contempt proceedings is to obtain compliance by the contemnor, thus “it must be used only when the contemnor has the ability to comply.” 471 So.2d at 1277. Indirect criminal contempt proceedings, however, may be used to punish an individual for an intentional violation of a court order and to vindicate the court’s authority. Id.

When the court believes that the defaulting party’s conduct is such that it warrants punishment, a criminal contempt proceeding should be instituted. Criminal contempt proceedings are appropriate when it can be established that the party in default has continually and willfully neglected his support obligations, or has affirmatively acted to divest himself of assets and property.

Id. at 1279.

Because the record does not establish that the former husband has the present ability to pay the purge amount, the order under review must be reversed.

Reversed and remanded.

COPE, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

I would affirm the order under review. In my view, this case is governed by Sibley v. Sibley, 833 So.2d 847, 848 (Fla. 3d DCA 2002), which holds that

[i]n these circumstances, which demonstrate the very epitome of a willful, contemptuous refusal to obey a binding order of court, the rule that all sums from whatever source available to the contem-nor-obligator must be considered to determine “his ability to pay” is peculiarly relevant.

Here, as in Sibley, 833 So.2d at 848, the husband may “command, simply by asking, the payment of the purge amount though his very wealthy [sisters].” The record is replete with evidence that the husband’s sisters have supported their brother financially, including his testimony that one of his sisters has provided him with a rent-free apartment for the past five years and paid for his present and former legal counsel to represent him in court proceedings. In fact, this case is stronger than Sibley because, Aburos did not have to secure his sister’s action or even consent to write a check for the purge amount. While there is argument of counsel, there is no evidence that the sister objected to her brother’s use of the business assets or that she revoked her brother’s “stamp” privileges. See op. at 134. Rosa-Hernandez v. Hernandez, 979 So.2d 1194, 1196 (Fla. 4th DCA 2008) (stating that “facts are not established for consideration by the trial court or by appellate review when attorneys make representations in their arguments before the trial court”) (quoting State v. Bauman, 425 So.2d 32, 34-35 n. 4 (Fla. 4th DCA 1982)); Daughtrey v. Daughtrey, 944 So.2d 1145, 1148 (Fla. 2d DCA 2006). It was obviously for the trier of fact alone to accept or, as she did, to reject as unbelievable the husband’s testimony as to his business “arrangement” with his sister. See Perez v. Marti, 770 So.2d 176, 179 (Fla. 3d DCA 2000) (Schwartz, C.J., dissenting) (noting the “masses of our cases which hold respectively that credibility is for the trier of fact and that trial court judgments are presumed correct and should be interpreted to uphold them, rather than by attempting to discover and impute error”). In the amended final judgment of dissolution of marriage, the trial court found that

the Husband’s actions in dismantling the business and secreting the assets were made for the willful purpose of avoiding his obligation of support to his Wife and children, and that since the Husband maintains possession of all the inventory and assets of the business, that he could-if he so desired, re-establish and reopen a jewelry business to enable him to earn the same amounts that he was earning in the year 2000.

The reversal of the contempt order rewards the husband, who is also a jewelry designer whose jewelry sells for $5000 to $10,000, for successfully doing what the trial court found that he had done — dismantle a financially lucrative business and secrete its assets — and what the trial court suspected he would do in order to avoid paying his obligations — reestablish and reopen a jewelry business in the same commercial area as his previous store.

As in Sibley and Mendana v. Mendana, 911 So.2d 130 (Fla. 3d DCA 2005), I believe that the trial court correctly approved the magistrate’s finding that the husband has the present ability to pay the purge amount.

      . The record reflects that prior to the issuance of the contempt order, the former husband submitted a payment of $1,402, which allegedly represents the $52 the former husband had remaining in his bank account and $1,350 he borrowed against the value of his car.

      . The husband testified that the apartment rent was approximately $1150 a month.

      . At the hearing on the husband's exceptions, in reviewing the general magistrate’s findings, the trial court found nothing wrong with the magistrate’s findings that the sisters paid “for just about everything according to his testimony, also for the attorneys that he has in this case.’’ T. 7 (Nov. 5, 2008 hearing); T. 9 (noting the magistrate’s ruling the court staled: "Based upon everything, that his sisters paid for everything for him, his apartment, his attorneys, his everything, that he has the ability to make this payment.”).

      .The sister did not testify at the hearings.

      . When asked why he stopped working for a sister at her seafood business, he stated that "I didn’t like it very much plus my other sister saw the opportunity for me and for her to start a new business." T. 46 (June 24, 2008 hearing) (emphasis added).

      . The record does not support the majority's statement that there is no evidence that the husband has "flouted court orders and his support obligations” since 2002. Op. at 135. The record is decidedly to the contrary. As found by the general magistrate (and not objected to by the husband), [ejxcept for the payment of $800 per month in child support, ... [t]the former husband has never paid any alimony to the Former Wife, never paid any of the equitable distribution funds, never paid the second mortgage, never paid the child support arrearage and never paid the full amount of the ongoing child support since his return to the United States.”


text:
    Kenneth F. LEONARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-228.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Kenneth F. Leonard, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, WELLS and SALTER, JJ.
   COPE, J.

This is an appeal of an order granting a motion to correct illegal sentence. Although the order reduces the sentence of defendant-appellant Kenneth Leonard, the defendant claims that he has not received all of the relief he is entitled to.

The defendant is serving a sentence for second degree murder and grand theft of a motor vehicle imposed in Miami-Dade County circuit court case number 96-32528. According to the scoresheet, the crime date was in 1996.

The defendant had a prior conviction, circuit court case number 92-4541, which was vacated. As a result, the defendant’s scoresheet for the 1996 case needed to be recalculated. The trial court did so, but did so in a way which does not reflect all of the details of the recalculation. To make a long story short, when the points are deleted for items IV and VI of the score-sheet, the point score is 239.6. After the required deduction of twenty-eight points and multiplying by 1.25, the defendant’s maximum guidelines sentence is 264.5 months or 22.0416 years, and that was the reduced sentence imposed by the trial court. Because the calculation is correct, the order now before us is affirmed.

       One of the discrepancies in the defendant's calculation is misreading the points for item II as 3.0, when the correct score for a level four offense is 3.6.


text:
    Ronaldo MARRUGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-309.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Ronaldo Marrugo, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

This Court hereby affirms the trial court’s order denying Defendant’s motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.800, but does so without prejudice to the filing of an amended motion properly attaching the transcript of the sentencing proceedings in this matter. See Williams v. State, 957 So.2d 600, 604 (Fla.2007) (“[T]he burden remains with the petitioner to demonstrate an entitlement to relief on the face of the record. If the sentencing transcript is neither in the file nor attached to the motion, the motion should be denied without prejudice to the filing of an amended motion properly attaching the sentencing transcript”).

Affirmed.


text:
    Sherwyn Anthony SYDER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-607.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.

      Sherwyn Anthony Syder, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    M.F., a juvenile, Petitioner, v. Cornelius FAULK, Superintendent Miami-Dade Regional Juvenile Detention Center, and The State of Florida, Respondents.
    No. 3D10-871.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for petitioner.
    Bill McCollum, Attorney General, and Linda Katz, Assistant Attorney General, for respondents.
    Before RAMIREZ, C.J., and SALTER, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

We have before us an Emergency Petition for Writ of Habeas Corpus because the trial judge has ordered an uncooperative juvenile to secure detention contrary to law. The petition alleges that the facts surrounding M.F.’s detention are no different from our opinion in C.B. v. Dobuler, 997 So.2d 463 (Fla. 3d DCA 2008). The statutory authority for holding M.F. in secure detention emanates from section 985.255(l)(i), Florida Statutes (2009), which limits to seventy-two hours the power to hold a juvenile after quashing a pickup order. This statute has not been amended since our decision in C.B. Before we could issue our decision, the trial court released the petitioner, rendering this petition moot. We write, however, to remind the new judges in the juvenile division that while we recognize that they may be acting from the best of motives, we all must follow legislative mandates.

It is not for us, as judges, to question the wisdom of the legislation. Rather, our task is simply to carry it out. Section 985.255 establishes the criteria for detaining a child, pending the outcome of a juvenile delinquency case. A decision to detain a child must be made according to the statutory criteria.

K.E. v. Department of Juvenile Justice, 963 So.2d 864, 868 (Fla. 1st DCA 2007).

Petition dismissed as moot.


text:
    Jose BARCO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1439.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and CORTEÑAS, JJ.
   PER CURIAM.

Affirmed. See § 90.404(l)(a), Fla. Stat. (2001); State v. DiGuilio, 491 So.2d 1129 (Fla.1986).


author: SUAREZ, J.

text:
    L.T.A. TRANSPORT, INC., a dissolved Florida corporation and Annette V. Trimino, a/k/a Annette Vaquez-Trimino, Appellants, v. TRANSPLATINUM SERVICES CORP., d/b/a Fleetone, Appellee.
    No. 3D09-19.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    James K. Pedley, Fort Lauderdale, for appellants.
    Markowitz, Davis, Ringel & Trusty and Jeremy R. Firth, Miami, for appellee.
    Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Affirmed. See Bartlett Constr., Inc. v. Coastal Plains, Inc., 353 So.2d 892 (Fla. 3d DCA 1977).


text:
    Erick WILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-173.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.

      Before COPE, SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. Ensor v. State, 408 So.2d 349, 354 (Fla.1981); L.G. v. State, 693 So.2d 1020 (Fla. 3d DCA 1997); State v. Strachan, 549 So.2d 235 (Fla. 3d DCA 1989).


text:
    L.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-500.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Rehearing and Rehearing En Banc Denied May 28, 2010.
    Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   PER CURIAM.

Affirmed. J.B. v. State, 705 So.2d 1376 (Fla.1998).


author: PER CURIAM. COPE, J.

text:
    Jais PERETS, Appellant, v. Nathalie JONQUA, Appellee.
    No. 3D09-943.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Rehearing Denied May 28, 2010.
    Richard Baron, Miami, for appellant.
    Richard G. Dunberg, South Miami, for appellee.
    Before COPE, GERSTEN, and SALTER, JJ.
   PER CURIAM.

Affirmed. Saunders v. Bassett, 923 So.2d 546, 548 (Fla. 1st DCA 2006).

COPE, J.

(concurring).

It appears the trial court’s order is consistent with Restatement (Third) of Foreign Relations Law of the United States § 823 cmt. d (1987).


text:
    R.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-987.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before COPE, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, J.

The appellant, R.T., appeals the trial court’s denial of his motion for judgment of dismissal and the subsequent order entered by the trial court withholding adjudication of delinquency and placing R.T. on probation. Because the record reflects that there was insufficient evidence to establish an essential element of the offense charged, we find R.T.’s appeal well-taken. Accordingly, we reverse the orders withholding adjudication of delinquency and denying R.T.’s motion for judgment of dismissal, and remand with instructions to enter an order granting R.T.’s motion for judgment of dismissal.

The pertinent facts are as follows. R.T. was charged with retaliating against a witness in violation of section 914.23(1), Florida Statutes (2008). To prove a violation of section 914.23(1), the State was required to demonstrate that R.T. knowingly engaged in conduct threatening to cause bodily injury to another person with the intent to retaliate against that person for his testimony as a witness in an official proceeding. See id.; State v. Jones, 642 So.2d 804, 805 (Fla. 5th DCA 1994).

Although the evidence supports a finding that R.T. did threaten the witness, the record is devoid of any evidence that the alleged threat was in retaliation for the witness’ participation in an official proceeding. In fact, the alleged threat was made prior to any official proceeding taking place. Because the alleged threat occurred prior to the witness’ testimony in an official proceeding, it was clearly not made in retaliation of the witness’ testimony at an official proceeding. Accordingly, we conclude that the trial court erred in denying R.T.’s motion for judgment of dismissal at the close of the State’s case.

Reversed and remanded with instructions.

      . Section 914.23(1) provides in pertinent part:
      A person who knowingly engages in any conduct that causes bodily injury to another person or damages the tangible property of another person, or threatens to do so, with intent to retaliate against any person for:
      (1) The attendance of a witness or party at an official proceeding, or for any testimony given or any record, document, or other object produced by a witness in an official proceeding ...

      or attempts to do so, is guilty of a criminal offense....

      . The State contends that R.T. was not charged under the correct subsection of section 914.23, and that the evidence supports a violation of section 914.23(2). Thus, the State requests that if we reverse the orders under review, that we do so without prejudice to allow the State to file an amended charging document charging R.T. under section 914.23(2). The State argues that because R.T. was not tried under section 914.23(2), and our reversal is not based on the sufficiency of the evidence, double jeopardy does not bar a successive prosecution. We decline to rule on the propriety of a successive prosecution because, as that issue has not materialized, to do so prior to the initiation of such a prosecution would in essence constitute an advisory opinion. See State v. Schebel, 723 So.2d 830 (Fla.1999); M.Z. v. State, 747 So.2d 978, 981 (Fla. 1st DCA 1999).


text:
    The STATE of Florida, Appellant, v. A.E., a juvenile, Appellee.
    No. 3D09-1059.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, Jessica Del Valle and Aileen Peñate, Certified Legal Interns, for appel-lee.
    Before RAMIREZ, C.J., and GERSTEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hatcher v. State, 15 So.3d 929 (Fla. 1st DCA 2009); Tarver v. State, 961 So.2d 1094 (Fla. 2d DCA 2007); Green v. State, 831 So.2d 1243 (Fla. 2d DCA 2002); McGowan v. State, 778 So.2d 354 (Fla. 2d DCA 2001); Bell v. State, 792 So.2d 608 (Fla. 4th DCA 2001); Edwards v. State, 532 So.2d 1311 (Fla. 1st DCA 1988).


author: SCHWARTZ, Senior Judge.

text:
    M.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1074.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.

      Carlos J. Martinez, Public Defender, and Lisa M. Pisciotta, Ross C. Paolino and Nicolas Swerdloff, Special Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The conduct of the appellant juvenile, a sixteen-year-old female, which consisted only of walking down the street in a “high prostitution area” at 9:30 in the evening , did not give rise to the founded or articulable suspicion of unlawful activity necessary to justify the Terry stop effected by the police when, after engaging in a consensual and uneventful conversation, they placed her in their patrol car pending a “record search.” See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Johnson v. State, 610 So.2d 581 (Fla. 1st DCA 1993); Smith v. State, 592 So.2d 1206 (Fla. 2d DCA 1992); State v. Hoover, 520 So.2d 696 (Fla. 4th DCA 1988). Because they were thus not then acting in the lawful execution of their duties as Section 843.02, Florida Statutes (2008) requires, she was not guilty, as a matter of law, of resisting an officer under that statute by trying to escape the confinement. See C.H.C. v. State, 988 So.2d 1145 (Fla. 2d DCA 2008); Davis v. State, 973 So.2d 1277 (Fla. 2d DCA 2008); E.A.B. v. State, 964 So.2d 877 (Fla. 2d DCA 2007). See also Tillman v. State, 934 So.2d 1263, 1271 (Fla.2006) and cases cited. The adjudication of delinquency entered on that basis is therefore reversed and the cause remanded with directions to dismiss the petition.

Reversed and remanded.

      . The fact that M.R. was known to one of the officers as having been involved in prostitution on a previous occasion does not affect the issue of whether her conduct at the time of the incident justified the stop. See Parsons v. State, 825 So.2d 406 (Fla. 2d DCA 2002); Smith v. State, 592 So.2d 1206 (Fla. 2d DCA 1992); Johnson v. State, 610 So.2d 581 (Fla. 1st DCA 1992).

      . “Whoever shall resist, obstruct, or oppose any officer ...; member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the

        lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree ..." (emphasis supplied)

      . After the search showed that she was a "runaway,” she exclaimed "I’m not going to go back" and attempted to leave the vehicle.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Johanna GUZMAN, Respondent.
    No. 3D09-2468.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Lara J. Edelstein, for petitioner.
    Stuart B. Yanofsky, for respondent.
    Before COPE, SUAREZ and SALTER, JJ.
   PER CURIAM.

This is a petition for writ of certiorari seeking review of a decision of the appellate division of the circuit court in a personal injury protection (PIP) case. Although this court has ordered a response to be filed by respondent and respondent has been granted two extensions of time to file such response, none has been filed and the time for doing so has expired.

We quash the order now before us on the authority of United Automobile Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009).

Petition granted.


text:
    David GREEN, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 3D09-2606.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    David Green, in proper person.

      M. Elaine Howard, Senior Attorney, Tallahassee, for appellee, Florida Unemployment Appeals Commission.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See § 443.151(3)(a), Fla. Stat. (2009); Quintana v. Florida Unemployment Appeals Commission, 29 So.3d 446 (Fla. 3d DCA 2010).


text:
    W.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1715.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael Greenberg, Assistant Attorney General, for appellee.
    Before COPE, WELLS, and SUAREZ, JJ.
   WELLS, Judge.

W.M., a juvenile, appeals from a conviction for battery on a school employee, claiming the evidence of intent insufficient to survive his motion for judgment of dismissal. We reject this claim because the evidence presented below that W.M., who was late for class, pushed aside a teacher who was blocking a doorway to prevent his entry into a classroom, after repeatedly having been denied entry and told to report to the behavior management teacher’s office, was sufficient to survive his motion for dismissal on this charge. See S.D. v. State, 882 So.2d 447, 448 (Fla. 4th DCA 2004) (“Intent to commit a battery must be determined by the circumstances surrounding the touching or striking of the victim.”); see also Beasley v. State, 774 So.2d 649, 657 (Fla.2000) (confirming that on a motion for judgment of acquittal, all reasonable inferences that may be drawn from the evidence must be viewed in a light most favorable to the State); A.P.R. v. State, 894 So.2d 282, 284 (Fla. 5th DCA 2005) (confirming that the “standard of review that applies to a motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal case”).

Affirmed.


text:
    Eldred M. FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3207.
    District Court of Appeal of Florida, First District.
    April 26, 2010.

      Eldred M. Frazier, pro se, Appellant.
    Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appeal is hereby DISMISSED. See Edler v. State, 673 So.2d 970 (Fla. 1st DCA 1996) (holding that an order which disposed of only two of three issues raised in postconviction motion was not a final appealable order).

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


text:
    Yudeivis PINO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1079.
    District Court of Appeal of Florida, Third District.
    April 27, 2010.
    Carlos J. Martinez, Public Defender, and Brian Ellison, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

We grant Yudeivis Pino’s petition for writ of habeas corpus and direct the trial court to conduct a rule 3.131 pretrial release hearing. This decision is without prejudice for the State to file a motion for pretrial detention, should it choose to do so. See Ho v. State, 929 So.2d 1155 (Fla. 5th DCA 2006). The trial court is directed to hold the hearing no later than three business days following the issuance of this opinion. See id.

Petition granted; cause remanded.


text:
    Franky ST. JOSEPH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1750.
    District Court of Appeal of Florida, Third District.
    April 28, 2010.
    Franky St. Joseph, in proper person.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Gore v. State, 32 So.3d 614 (Fla.2010).


text:
    Franklyn U. HODGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4626.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2010.
    Rehearing Denied June 10, 2010.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Franklyn U. Hodge, Carrabelle, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the order revoking the defendant’s probation but remand for the trial court to enter a written order specifying which conditions of probation have been violated. See Drayton v. State, 710 So.2d 1018, 1019 (Fla. 4th DCA 1998).

TAYLOR, CIKLIN and GERBER, JJ., concur.


text:
    Kevin Robert SHIRLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-689.
    District Court of Appeal of Florida, Third District.
    April 28, 2010.
    Kevin Robert Shirley, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

The order now before us is affirmed without prejudice to permit Appellant to file another motion challenging the amount of credit for time served following conclusion of the appeal in 3D09-1717. See Fla. R.Crim. P. 3.800(a) (“A court may at any time correct ... a sentence that does not grant proper credit for time served ... provided that a party may not file a motion to correct an illegal sentence under this subdivision ... during the pendency of a direct appeal.”).


text:
    D.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5463.
    District Court of Appeal of Florida, First District.
    April 29, 2010.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Bureau Chief — Criminal Appeals, Tallahassee, for Appellee.
   PER CURIAM.

In this juvenile delinquency appeal, we accept the state’s candid confession of error to the effect that our decision in Johnson v. State, 1 So.3d 1164 (Fla. 1st DCA 2009), requires reversal of appellant’s adjudication of delinquency for the offense of sexual battery by digital penetration in violation of section 794.011(2)(b), Florida Statutes (2007) (Count 3 of the petition). Accordingly, we reverse the adjudication of delinquency as to Count 3 only, and remand with directions that the trial court dismiss that count.

REVERSED and REMANDED, with directions.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    Alan CERTAIN, Jr., Appellant, v. BIG JOHNSON CONCRETE PUMPING, INC., and Summit Claims Center for Bridgefield Employers Insurance Company, Appellees.
    No. 1D09-5001.
    District Court of Appeal of Florida, First District.
    April 29, 2010.

      Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Marissa M. Hoffman of Conroy, Sim-berg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., West Palm Beach, for Appellees.
   PER CURIAM.

Alan Certain, Jr., appeals an order deeming his petition for workers’ compensation benefits barred by the two-year statute of limitations. Certain argues the Judge of Compensation Claims (“JCC”) erred in finding that the initial response to his Petition for Benefits raised the statute of limitations defense and that he had actual knowledge of the two-year statute of limitations applicable to workers’ compensation claims. We reverse because the initial response to Certain’s petition, a pleading entitled “Response to Petition for Benefits,” failed to assert the statute of limitations in defense of the claim.

On November 10, 2008, Certain filed a Petition for Benefits with respect to a work-related automobile accident that occurred three years earlier on September 21, 2005. Although Certain had immediately reported the accident and his subsequent physical symptoms to his employer, Big Johnson Concrete Pumping, Inc., he chose not to file a workers’ compensation claim believing it would take too long to receive treatment, if at all. He also lacked confidence in any medical treatment available through workers’ compensation. The employer did not notify its workers’ compensation insurance carrier, Bridgefield Employers Insurance Company, of Certain’s injury. Shortly after the auto accident, Certain consulted a personal injury attorney who counseled him to sue the other driver involved in the accident and arranged alternative treatment. Those medical expenses were paid for, in part, with health insurance benefits and proceeds from the lawsuit.

On November 20, 2008, Certain’s employer and its workers’ compensation insurance carrier (collectively “Employer/Carrier”) prepared and electronically filed a Response to Petition for Benefits with the Office of the Judges of Compensation Claims (“OJCC”) stating the claim “is denied in its entirety” but not indicating the statute of limitations or any other basis for denial. The same day, the Employer/Carrier also prepared a Notice of Denial stating, inter alia: “Claim has been filed more than three years after the alleged date of accident.” The notice was sent to the Florida Department of Financial Services, Division of Workers’ Compensation (“Division”) on November 21, 2008.

Section 440.19(1), Florida Statutes (2005), provides that a petition for benefits is barred unless filed within two years after the date of accident. But section 440.19 states elsewhere that:

Notwithstanding the provisions of this section, the failure to file a petition for benefits within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits.

§ 440.19(4), Fla. Stat. (2005). The JCC determined the Employer/Carrier’s Notice of Denial sufficiently raised the statute of limitations as a basis for denying Certain’s claim. Certain argues the Notice of Denial could not have been the Employer/Carrier’s “initial response” because the Response to Petition for Benefits was filed first. We agree.

The “initial” document the Employer/Carrier submitted to any entity in response to the Petition was not the Notice of Denial, but the pleading entitled “Response to Petition for Benefits” electronically filed with the OJCC on November 20, 2008. The pleading specifically referenced the Petition, denied the claim in its entirety, and did not advance the statute of limitations defense. Although the Notice of Denial was prepared the same day in response to Certain’s claim for benefits, it was not mailed to the Division for filing until the following day. Because the Employer/Carrier’s initial response to the Petition for Benefits failed to raise the statute of limitations as grounds for denying the claim, the petition is not time barred. § 440.19(4), Fla. Stat. (2005). We therefore REVERSE the JCC’s order and REMAND for further proceedings.

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

      . The JCC also found the Employer/Carrier was not estopped from raising the defense because Certain had actual knowledge of the statute of limitations relevant to his claim. Because we reverse the JCC’s order based on the Employer/Carrier's initial response to the Petition for Benefits, we do not address Certain's argument that the JCCs finding as to actual knowledge is unsupported by competent, substantial evidence.