author: POLEN, J.

text:
    Dale JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1585.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Rehearing Denied Jan. 18, 2007.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Dale Lee Johnson (“Johnson”), timely appeals a conviction of felony driving under the influence (“DUI”). Johnson raises two independent challenges on appeal. First, he contends that his right to a jury trial was violated when the trial court determined, without a jury, that he had three prior DUI convictions. Based on stipulation of counsel, we find no error and affirm. Second, Johnson argues that the trial court improperly imposed a public defender fee without advising him of his right to contest its amount. As explained below, we strike the public defender fee without prejudice to it being reimposed on remand after the proper procedures are followed.

The State charged Johnson with, inter alia, felony DUI. The information alleged that Johnson’s faculties were impaired and that he had three prior DUI convictions. The trial court conducted a jury trial on the single, present incident of DUI at issue without allowing the jury to learn of the alleged prior misdemeanor DUI offenses. After the jury returned a guilty verdict as to the present incident, it was excused and, based on the parties’ previous stipulation, the trial court proceeded without a jury to determine whether Johnson had been convicted of DUI on three or more prior occasions.

The trial court ascertained that Johnson had three previous DUI convictions from his Florida Department of Highway Safety and Motor Vehicle Division of Driver’s Licenses Transcript of Driver Record. Based on Johnson’s prior convictions and the verdict of the jury, the court adjudicated Johnson guilty of felony DUI.

During sentencing, the trial court imposed statutory fines, fees and costs, including a public defender fee, as well as SN1, CSTF, AC and CFF fees. Johnson’s Rule 3.800(b)(2) motion, which sought to vacate the public defender fee, was denied. See Fla. R.Crim. P. 3.800(b)(2).

First, we hold that the trial court did not err in determining Johnson’s prior DUI convictions without a jury, because Johnson waived his right to a second phase jury determination. In State v. Rodriguez, 575 So.2d 1262 (Fla.1991), the Supreme Court of Florida stated “that if a defendant charged with felony DUI elects to be tried by a jury, the court shall conduct a jury trial on the elements of the single [present] incident of DUI at issue without allowing the jury to learn of the alleged prior [misdemeanor] DUI offenses.” Rodriguez, 575 So.2d at 1266 (footnote omitted). The Court further provided that if the jury returned a guilty verdict as to the single incident of DUI, “the trial court shall conduct a separate proceeding without a jury to determine whether the defendant had been convicted of DUI on three or more prior occasions.” Id. However, in response to the United States Supreme Court’s decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), the Supreme Court of Florida held, “in this bifurcated process the jury, not the judge, must determine the verdict from the evidence presented in the second phase.” State v. Harbaugh, 754 So.2d 691, 694 (Fla.2000) (citing Gaudin, 515 U.S. at 509-10, 115 S.Ct. 2310).

Nevertheless, the right to a second phase jury determination may be waived by a defendant. Id. We have previously stated that “[a] defendant may orally waive the right to jury trial if the defendant is represented by counsel and receives full explanation of the consequences of the waiver by the trial judge.” Kelly v. State, 797 So.2d 1278, 1280 (Fla. 4th DCA 2001) (citing Tucker v. State, 559 So.2d 218, 220 (Fla.1990)). In the instant case, the trial court did not conduct a colloquy with Johnson concerning waiver. See Tucker, 559 So.2d at 219 (“An appropriate oral colloquy will focus a defendant’s attention on the value of a jury trial and should make a defendant aware of the likely consequences of the waiver.”). However, Johnson’s counsel had previously stipulated to a second phase bench trial and affirmed this stipulation at trial, in Johnson’s presence, per the court’s request. We therefore hold that the stipulation of Johnson’s counsel affected a valid waiver of Johnson’s right to a second phase jury determination of his prior DUI convictions, and affirm on this issue.

As to Johnson’s second point on appeal, we hold that the trial court erred in failing to advise Johnson of his right to a hearing to contest the amount of the public defender’s fee. Florida Rule of Criminal Procedure 3.720(d)(1) provides that the defendant must be advised at sentencing of his right to a hearing to contest the amount of the public defender’s fee. If such advice is not given, the public defender fee must be stricken, without prejudice to being reimposed on remand after the proper procedure is followed. Ciccia v. State, 854 So.2d 243, 243 (Fla. 4th DCA 2008). The trial court in this case failed to advise Johnson of his right to a 3.720(d)(1) hearing. See Fla. R.Crim. P. 3.720(d)(1). Due to this error, we now strike the public defender fee under Ciccia and remand for the proper procedures to be followed. See Ciccia, 854 So.2d at 243.

Johnson also argues that the other fees imposed by the trial court must be reversed because the court did not refer to the statutory authority for their imposition. In support, Johnson cites Sutton v. State, 635 So.2d 1032 (Fla. 2d DCA 1994), in which the Second District stated that although statutorily mandated court costs can be imposed without notice to a defendant, the record must contain a citation to the proper statutory authority supporting the assessment of such costs. Sutton, 635 So.2d at 1033. However, this court has on more than one occasion found Sutton unpersuasive. See Lyons v. State, 837 So.2d 540, 541 (Fla. 4th DCA 2003); see also I.B. v. State, 806 So.2d 610, 612-13 (Fla. 4th DCA 2002) (rejecting Sutton as imposing a technical requirement beyond that required in any statute). Accordingly, we find that Johnson’s argument in this regard is without merit.

Based on the foregoing, we strike the public defender fee and remand for relevant proceedings in the trial court. However, we affirm and find no error in Johnson’s conviction for felony DUI based on the trial court’s second phase non-jury determination of Johnson’s prior DUI convictions.

Affirmed and remanded with instructions.

KLEIN and MAY, JJ., concur.

      . SNl ("Safe Neighborhood 1"); CSTF ("Crime Stoppers Trust Fund”); AC ("Additional Costs”); CFF ("Capital Facilities Fund”). See Fla. Stat. § 939.185 (2006).

      . Upon remand, Johnson will have thirty (30) days from the date of this court's mandate to file a written objection with the trial court to the amount assessed. Bourque v. State, 595 So.2d 222, 222 (Fla. 2d DCA 1992). If Johnson files an objection with the trial court, the assessment shall be stricken and a new assessment shall not be imposed without notice and hearing pursuant to Rule 3.720(d)(1). Id.; see also Waldron v. State, 677 So.2d 393, 394 (Fla.2d DCA 1996).


source: Caselaw Access Project

license: Public Domain

text:
    Brett FENSTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4834.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Rehearing Denied Jan. 16, 2007.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Brett Fenster (“Fenster”), timely appeals a conviction following a jury trial of attempted second degree murder. Fenster raises seven independent challenges on appeal. First, Fenster contends that the State prosecutor’s closing argument was improper and constituted reversible error. We agree and remand for a new trial. Second, Fenster argues that he did not receive proper credit for time served. We agree and find that the trial court erred in calculating the amount of time Fenster served before sentencing. As to all other points on appeal, we affirm.

First, we hold that improper comments made by the State prosecutor to the jury during his closing argument denied Fenster a fair trial and therefore warrant a new trial. “The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.” Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985). As such, a State attorney is prohibited from commenting on matters unsupported by the evidence produced at trial. Huff v. State, 437 So.2d 1087, 1090 (Fla.1983). However, as the Florida Supreme Court held in Anderson v. State, 863 So.2d 169, 187 (Fla.2003):

In order to require a new trial based on improper prosecutorial comments, the prosecutor’s comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.

During his closing argument, the State prosecutor made several comments that were unsupported by the evidence. The most egregious of these was a statement in which the prosecutor attempted to rebut Fenster’s claim of self-defense. At trial, Fenster claimed that Paula Peterson (“Peterson”) attacked him with a fork and that he was acting in self-defense when he pushed Peterson, causing her head to hit a wall of his apartment, where Peterson was renting a room. To rebut this affirmative defense, the State claimed in its closing that the police found the fork in the kitchen sink:

Mr. Grosz: What about the fork? Do you remember the testimony of Deputy Warmuth ... [that] the fork that [Fen-ster] pointed out that had been used to stab him was found where, remember? In the sink. She’s attacking him with a fork. How does it end up in the sink?
If she’s attacking him and he’s fending her off and she ends up unconscious, then why isn’t that fork on the floor? Why is[] it in the sink? None of the other stuff is cleaned up, why is that fork — how does it end up in the sink if it’s a weapon that being used in this violent attack on the defendant?

The prosecutor also claimed that Fenster knew or should have known that Peterson might hit a stud when he pushed her into the wall, because, according to the prosecutor, there generally are only sixteen inches between studs in a wall. However, after reviewing the record, we find no evidence from which a reasonable person could infer that the fork was found in the kitchen sink, nor do we find evidence referring to stud location. In addition, the prosecutor made reference to legislative intent with regards to reasonable doubt, claimed that Peterson’s head was “swelling” as she lay on the apartment floor waiting for the police, and argued that Fenster had been upset that Peterson was moving out, when evidence supporting these statements does not appear in the trial record.

In making these improper comments, the prosecutor failed to comport with the conduct required in a criminal trial. “A criminal trial is a neutral arena wherein both sides place evidence for the jury’s consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury’s view with personal opinion, emotion, and nonrecord evidence[.]” Ruiz v. State, 743 So.2d 1, 4 (Fla.1999). While none of these comments in isolation would have required a new trial, this court must look at the entire trial record when considering whether the comments at issue are of such a nature as to destroy the fairness of the proceeding. DeFreitas v. State, 701 So.2d 593, 596 (Fla. 4th DCA 1997) (quoting Ryan v. State, 457 So.2d 1084, 1091 (Fla. 4th DCA 1984)); see also Caraballo v. State, 762 So.2d 542, 547 (Fla. 5th DCA 2000) (holding that fundamental error occurs in closing when the “prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury”). When considering the number of improper comments made by the prosecutor, it becomes clear that the prosecutor’s closing argument constitutes reversible error with respect to the “neutral arena” in which a trial should be held, Ruiz, 743 So.2d at 4, and that the curative instructions were insufficient. The cumulative effect of these improper arguments was not harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (holding that to establish harmless error, the State must show “beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction”). Accordingly, we reverse and remand for a new trial.

Second, we hold that the trial court erred in calculating the number of days Fenster spent in county jail before sentencing and therefore did not give him full credit for time served. The legality of a sentence is a question of law and is subject to de novo review. Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005). “[T]he court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.” § 921.161, Fla. Stat. (2006). Fenster was given credit for 317 days time served based upon the date which the ca-pias was served, January 27, 2004. However, he was arrested on August 8, 2003 for the crime charged and the record reveals that he was already in custody at the time the capias was served. Therefore, we advise the trial court to revisit this, if necessary, upon retrial.

Based on the foregoing, we reverse and remand for new trial.

Reversed.

KLEIN and MAY, JJ., concur.

      . Fenster's trial counsel properly preserved this issue for appellate review by timely objecting to the improper prosecutorial remarks and by stating the specific legal ground upon which his objections were based, i.e., lack of evidentiary support. See Lacey v. State, 831 So.2d 1267, 1268 (Fla. 4th DCA 2002) (stating that the law is clear that in order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation).

      . We also note that the trial court did not explicitly sustain or overrule the objections made by Fenster’s trial counsel. Although not dispositive in this case, we encourage the court to make more specific rulings in the future. While the trial court properly instructed the jury that comments made during closing arguments do not in themselves constitute evidence, it is nevertheless important for both the parties and appellate courts for trial courts to make specific rulings either "sustaining” or "overruling” objections.


author: PER CURIAM.

text:
    Cory PETRUNY, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2053.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Rehearing Denied Jan. 9, 2007.
    Cory Petruny, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The supreme court recently quashed our 2004 opinion in this case and remanded the case for reconsideration in light of State v. Richardson, 915 So.2d 86 (Fla.2005).

This is an appeal of the summary denial of appellant’s motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). Appellant entered pleas in two robbery cases. The trial court adjudicated appellant a habitual felony offender in each case. Appellant’s probation sentence in one case and community control sentence in the second case constitute “sentences” as contemplated by section 775.084(5), Florida Statutes (1999). See Richardson, 915 So.2d at 89. We therefore affirm the ruling of the circuit court.

GUNTHER, WARNER and GROSS, JJ., concur.


author: THOMPSON, J.

text:
    C.W., Father of M.W., A Child, and J.W., Mother of M.W., et al, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 5D05-3656, 5D05-3811.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2006.

      Diana K. Simpson, Diana Kilpatrick Simpson, P.A., Ocala, for Appellants.
    Ralph J. McMurphy, Department of Children & Families, Wildwood, for Appel-lee.
    Wendie Michelle Cooper, Orlando, for Appellee, Guardian ad Litem.
   THOMPSON, J.

C.W. and J.W., the father and mother of M.W., challenge the trial court’s order that granted long-term custody of the child to her relative custodian and terminated supervision by the Department of Children and Family Services (DCF). We affirm the trial court’s conclusion that reunification was not in the best interest of the child, but reverse the order of long-term placement and termination of DCF supervision for failure to comply with all of the conditions set forth in section 39.622, Florida Statutes (2005).

M.W. was one year old when DCF sheltered her, alleging dependency because her parents had inflicted or created a risk of significant mental, physical, or emotional injury to her. Both parents consented to the adjudication of dependency. The mother is legally blind and deaf, was Baker-acted, and suffers from mental illness. The father was incarcerated for choking the mother and restraining her around the neck for several minutes in the child’s presence. Allegations of sexual abuse were not confirmed, but pointed to both parents as perpetrators. The mother was sexually abused as a child by her mother, and the father’s juvenile history includes similar sexual misconduct with the long-term custodian’s daughter when she was M.W.’s age. M.W. exhibits behavior consistent with sexual abuse. The court did not believe that the father would abide by reasonable restrictions on visitation because he took the child to his motel room after repeated warnings that all visitation occur in a public place, and the court did not believe the father’s explanation. The father also failed to obtain stable housing and a driver’s license and therefore failed to comply with his case plan. The court expressed grave concerns about either parent’s ability to ever meet the child’s extraordinary needs that were being met now by the relative custodian. Moreover, the child made significant progress during the fourteen months she resided with the relative. The court made the finding that it was in the child’s best interest to order long-term placement with the relative custodian.

The parents argue that certain conditions of the long-term custody statute, section 39.622, were not met. They specifically point to several such conditions: First, the lack of a case plan for the custodian that did not include a goal of reunification with the parents, as required under subsections 39.622(1) and (2); second, the order did not include the parties’ agreement that the long-term custodial relationship did not preclude the possibility of a later return of custody to the parent upon a substantial change in circumstances, as required by subsection (4); third, the record did not show that the custodian had made a commitment to provide for the child until the child reached majority and to prepare the child for adulthood; and fourth, there was no agreement by the custodian not to return the child to the parents without court approval, as required by subsections (7) and (8).

An appellate court will not reverse an order that determines permanency by directing long-term placement with a relative if competent, substantial evidence supports the order. In re J.C., 805 So.2d 1094, 1096 (Fla. 2d DCA 2002) (citing L.L.C. v. Dep’t of Children & Families, 790 So.2d 1239 (Fla. 5th DCA 2001)).

The preliminary requirements of section 39.622 were met. However, there is no case plan for the custodian as required by section 39.622(1). The original case plan lists the custodian as a party, but she did not sign the plan that specified reunification with the parents as a goal. Section 39.622(2) requires that the case plan not include as a goal reunification by the parents or adoption by the custodian. Here, the magistrate’s report adopted the judicial review social study report’s (JRSSR) recommendation that the former goal be modified to long-term custody, and the trial court approved and adopted the report. The court’s approval suffices to amend the case plan goal to long-term custody. See C.F. v. Dep’t of Children & Families, 822 So.2d 571, 573 n. 3 (Fla. 5th DCA 2002) (citing In the Interest of M.C., 796 So.2d 566 (Fla. 2d DCA 2001)). However, because DCF did not submit a signed case plan describing the custodian’s responsibilities and did not provide a copy of the amended case plan to the parents, this court must reverse the trial court’s order and remand for further proceedings. See P.R. v. Dep’t of Children & Families, 936 So.2d 754 (Fla. 4th DCA 2006).

Upon remand, the trial court shall require the parties to satisfy section 39.622(4)’s requirement that each party agree that a long-term custodial relationship does not preclude the possibility of returning the child to the custody of the parent at a later date, if the parent demonstrates a material change in circumstances and the change is in the child’s best interest.

Finally, the magistrate failed to check the long-term custody provision of its form order that includes the required conditions that the caretaker made a commitment to provide for the child until majority and the agreement not to return the child to the parents, including short-term visitation, without court approval. See § 39.622(7) and (8). Upon remand, the trial court shall add these remaining conditions to an order of long-term placement with the relative custodian.

Accordingly, we affirm the trial court’s decision that it was in the child’s best interests to make a long-term placement with the relative custodian, but reverse with instructions to modify the order to satisfy section 39.622.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

PALMER and LAWSON, JJ., concur.

      . The mother consented to long-term placement, and the father failed to substantially comply with his case plan. The relative custodian was willing to care for the child who had resided in the placement for over six months. The trial court adopted the general magistrate's findings from the judicial review hearing that reunification was not in the best interests of the child.


text:
    Joshua Daniel BAUER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3896.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2006.
    Joshua D. Bauer, Perry, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Harris v. State, 771 So.2d 565 (Fla. 5th DCA 2000).

THOMPSON, ORFINGER and TORPY, JJ., concur.


text:
    Robert EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1037.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2006.
    James S. Purdy, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Lugo v. State, 845 So.2d 74, 106-107 (Fla.2003); Hudson v. State, 820 So.2d 1070, 1071-1072 (Fla. 5th DCA 2002).

ORFINGER, LAWSON and EVANDER, JJ., concur.


text:
    Henry HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3880.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2006.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Henry Hampton, Malone, pro se.
    Charies J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Cox v. State, 711 So.2d 1323 (Fla. 5th DCA 1998).

MONACO, TORPY and EVANDER, JJ., concur.


text:
    Emmanuel MORELAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3854.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.
    Rehearing Denied Jan. 9, 2007.
    Emmanuel Moreland, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant’s right to seek relief in a properly and timely filed motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See Covell v. State, 891 So.2d 1132 (Fla. 4th DCA 2005); Campbell v. State, 718 So.2d 886 (Fla. 4th DCA 1998). Conflict is certified with Fitzpatrick v. State, 863 So.2d 462 (Fla. 1st DCA 2004), and Berthiaume v. State, 864 So.2d 1257 (Fla. 5th DCA 2004).

POLEN, KLEIN and SHAHOOD, JJ., concur.


author: WARNER, J.

text:
    Matthias RATH, M.D. and Health Now, Inc., Petitioners, v. NETWORK MARKETING, L.C. f/k/a Rexall Showcase International, Inc., and Rexall Sundown, Inc., Respondents.
    No. 4D06-3315.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.
    Rehearing Denied Jan. 12, 2007.

      Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach and Small & Small, P.A., Palm Beach, for petitioners.
    No response required for respondents.
   WARNER, J.

The petitioners seek a writ of mandamus to compel the trial court to grant their motion for reconsideration filed after the assigned judge granted a motion to recuse in accordance with Florida Rule of Judicial Administration 2.160. Without holding a hearing to reconsider those individual rulings, the successor judge denied the petitioners’ motion for reconsideration of twelve motions ruled on by the recused judge during the year prior to his recusal. In the alternative, the petitioners seek cer-tiorari review of the successor judge’s order denying the motion for reconsideration. We hold that the petitioners are not entitled to either mandamus or certiorari relief.

The petitioners claim that they are entitled to reconsideration of prior rulings by the recused judge as a matter of right, citing to section 38.07, Florida Statutes. However, that statute applies only to orders for disqualification under sections 38.02 or 38.05, dealing with disqualification due to consanguinity, not for bias or prejudice.

Instead, pursuant to Florida Rule of Judicial Administration 2.330(h) a successor judge may reconsider and vacate or amend prior factual or legal rulings of a recused judge if a motion for reconsideration is made 'within twenty days of the order of disqualification. Here, petitioners claim that they are entitled to a de novo hearing on each of the motions on which they have requested reconsideration. We disagree that an individualized hearing on each such motion is mandatory.

Where a motion for reconsideration is made, we think it is reasonable for the litigant to detail the reasons for the necessity of reconsideration and point the successor judge to all parts of the record necessary to determine whether to vacate the prior ruling. Then, after review of the motion and the record, the court can determine on the record whether reconsideration of a motion should occur, and as to those motions, the court may wish to set a hearing and conduct further proceedings.

The orders in this case constituted various rulings on discovery issues and pleading issues. They do not impose liability on petitioners, nor does the motion for reconsideration indicate how the grounds alleged for recusal impacted the recused judge’s rulings on these motions. It would seem to us that the successor judge must consider whether the rulings work an injustice on the party as well as the effect of reconsideration of a multitude of rulings on the administration of justice. The purpose of reconsideration is to remove the taint of prejudice where rulings might be perceived as so tainted. It should not be used merely to obtain “a second bite at the apple” with respect to prior judicial rulings.

As the petitioners were not entitled as a matter of right to a hearing on each motion, mandamus relief is not appropriate. Further, as to certiorari relief, petitioners have not shown how they are irreparably damaged because the successor judge failed to set the motion to reconsider for a hearing. If any of the rulings made by the recused judge are in error, then relief may be available on appeal from any final judgment.

Petition denied.

SHAHOOD and TAYLOR, JJ., concur.

      . Effective September 21, 2006, rule 2.160 was renumbered as rule 2.330. See In re Amendments to the Florida Rules of Judicial Administration, 939 So.2d 966 (Fla.2006).


author: KELLY, Judge.

text:
    Thomas B. MURPHY and Marian S. Murphy, Appellants, v. Michael S. MURPHY and Jacqueline K. Murphy, Appellees.
    No. 2D06-194.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.
    Kurt Von Gonten of Middagh Law Group, P.L., Miami, for Appellants.
    Sarah M. Chaves, St. Petersburg, for Appellees.
   KELLY, Judge.

Thomas and Marian Murphy appeal the final order awarding Jacqueline Murphy attorney’s fees pursuant to section 57.105, Florida Statutes (2005). Section 57.105(1) provides for an award of attorney’s fees to the prevailing party in an action if the court finds that the losing party or the losing party’s attorney knew or should have known that a claim when initially presented “[w]as not supported by the material facts necessary to establish the claim” or “[w]ould not be supported by the application of then-existing law to those material facts.” Although “[t]he post-1999 version of section 57.105 has greatly expanded the court’s power to award fees when a party asserts a claim without an adequate factual foundation[,] ... the new statute is still intended to address frivolous pleadings.” Peyton v. Homer, 920 So.2d 180, 183 (Fla. 2d DCA 2006) (citing Connelly v. Old Bridge Vill. Co-Op, Inc., 915 So.2d 652, 656 (Fla. 2d DCA 2005)). Because the record in this case does not support a finding that the Murphys or their counsel knew or should have known that their claims against Michael and Jacqueline Murphy were not supported by the material facts or the application of then-existing law to those material facts, see section 57.105(l)(a), (b), we reverse the trial court’s award of attorney’s fees under section 57.105.

Reversed.

CASANUEVA and CANADY, JJ., Concur.


author: PER CURIAM. SAWAYA, J.,

text:
    Jacqueline CONNOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3994.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2006.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

GRIFFIN and EVANDER, JJ., concur.

SAWAYA, J., concurs specially with opinion.

SAWAYA, J.,

concurring.

I present this concurring opinion to explain why I believe the crime victim in this case is entitled to restitution and to explain why the procedure initially employed by the trial judge to determine the amount of restitution should not be condoned.

Pursuant to a plea agreement, Jacqueline Connor entered a plea of guilty to the charge of robbery in exchange for a sentence of 18 months’ probation and payment of restitution to the victim. The plea was entered and Connor was sentenced on August 31, 2005. When the sentence was imposed, the trial judge ordered restitution as a condition of Connor’s probation and orally announced that “we’ll reserve on the restitution for 42 days. If there’s no number established within six weeks, the number will be zero.” The record reflects that a written order to that effect has never been entered.

On September 21, 2005, well before the 42-day period expired, a warrant was issued alleging that Connor had violated her probation. A hearing was held on November 1, 2005, at which Connor admitted the violations. Connor’s probation was revoked, she was sentenced to 14.7 months in prison, and in the same hearing, the trial court proceeded to determine the amount of restitution Connor owed the victim. The only objection Connor made was that “the court lacks jurisdiction at this time.” The trial judge disagreed and entered a restitution order in the amount of $2,400, to be paid through the collections court.

Connor appeals the restitution order, claiming that the trial court did not have jurisdiction to enter the order at that time. Specifically, Connor asserts that the self-imposed time period of 42 days limited the trial court’s jurisdiction to that period of time and since that time limit expired without a hearing, the trial court lacked jurisdiction to determine the amount and order restitution as part of her sentence for violation of probation. She further asserts that the amount of restitution was automatically set at zero upon expiration of the 42-day time period despite the fact that a hearing to establish the amount was never set and no order was rendered by the trial court finding that the time limit had expired. Accordingly, Connor contends that it was error for the trial judge to increase this automatically established amount of restitution when Connor was subsequently sentenced for violation of probation. I disagree.

“[Vjiolation of probation opens a new chapter in which the court ought to be able to mete out any punishment within the limits prescribed for the crime.” Bilyou v. State, 404 So.2d 744, 745 (Fla.1981). The Legislature has decreed that when a defendant is sentenced for violation of probation and the trial court revokes probation, as it did here, the court may “impose any sentence which it might have originally imposed before placing the probationer on probation.” § 948.06(2)(b), Fla. Stat. (2005); see also § 948.06(2)(e), Fla. Stat. (2005); Woods v. State, 879 So.2d 651 (Fla. 5th DCA 2004). For example, when sentencing a defendant for violation of probation the trial court may: impose a fine that could have been, but was not, imposed at the time the defendant was sentenced on the substantive charge, see Smith v. State, 448 So.2d 20 (Fla. 1st DCA 1984); order payment of fees that could have been, but were not, ordered at the time defendant was sentenced on the substantive charge, see Woods; assess a drug multiplier to the scoresheet that was not applied at the time of the original sentence, see Carrigan v. State, 873 So.2d 605 (Fla. 5th DCA 2004); assess victim injury points on the score-sheet that were not assessed at the time of the original sentencing, see Aponte v. State, 810 So.2d 1008 (Fla. 4th DCA 2002); revoke the defendant’s probation and sentence him or her to a prison sentence that exceeds the maximum sentence agreed upon in a plea agreement, see State v. Segarra, 388 So.2d 1017 (Fla.1980); and revoke the defendant’s probation and sentence him or her to the maximum period in prison, see Bruggeman v. State, 681 So.2d 822 (Fla. 2d DCA 1996).

It logically follows that when restitution, which is a mandatory part of sentencing that renders a sentence incomplete unless it is ordered, is not imposed as part of the sentence for the underlying offense, it may be ordered as part of the sentence imposed for violation of probation. Clearly, the trial court had jurisdiction to order restitution as part of the violation of probation sentence.

As for Connor’s assertion that the oral order constitutes a final determination that the amount of restitution is zero and that the trial court did not have jurisdiction to change it as part of the violation of probation sentence, I do not think that order constitutes a final order. Therefore, the trial court would have had jurisdiction to enter an order determining the amount after the 42-day self-imposed time limit and after the 60-day limit provided by Florida Rule of Criminal Procedure 3.800. The courts have consistently held that restitution is a mandatory part of sentencing and must be ordered at the time the sentence is imposed or within 60 days thereafter. , See State v. Sanderson, 625 So.2d 471, 473 (Fla.1993). In the event restitution is ordered within 60 days of sentencing, as was done in the instant case, the trial court has jurisdiction to determine the amount of restitution beyond that time period. Sanderson; see also L.O. v. State, 718 So.2d 155, 157 (Fla.1998) (“[W]e reaffirm our decision in Sanderson and hold that ‘if an order of restitution has been entered in a timely manner, a court can determine the amount of restitution beyond the sixty-day period.’ ”) (quoting Sanderson, 625 So.2d at 473); Wallace, 833 So.2d at 207-08 (holding that once restitution is timely ordered, “a trial court generally has jurisdiction to set the amount of previously ordered restitution up until the termination of the defendant’s probation” or until a final order is entered establishing the amount) (citing Gladfelter v. State, 618 So.2d 1364 (Fla.1993)); R.D. v. State, 743 So.2d 1124, 1125 (Fla. 1st DCA 1999) (“Under the circumstances, because the order establishing the restitution obligation was entered in a timely manner, the trial court had the jurisdiction to determine the amount of restitution beyond the sixty-day period in rule 3.800(c).”); Law v. State, 705 So.2d 632 (Fla. 5th DCA 1998). Hence, as the court in Sanderson explained, the determination of the amount of restitution is not controlled by the time limitations of rule 3.800. Sanderson, 625 So.2d at 472-73; see also Gladfelter, 618 So.2d at 1365 (“Because restitution was made an original condition of the probation, the court could properly determine the amount of restitution at a later date. We do not construe rule 3.800 as requiring this to be done within sixty days.”). It is a general rule that a trial court has jurisdiction to modify, vacate, or set aside an order or ruling before it becomes final, provided there are no rules or statutes that restrict its authority to do so.

Here, a final order was never entered by the trial court finding that the deadline had expired and that the amount of restitution was zero. Without such an order, it would be left to speculation and conjecture whether anything was presented during the 42-day period to establish an amount. Moreover, the courts generally do not consider as final an order, such as the oral ruling in the instant case, which purports to become final at a later date without further judicial action. See Hancock v. Piper, 186 So.2d 489 (Fla.1966); ATM Ltd. v. Caponed Footwear Ltd., Corp., 867 So.2d 413 (Fla. 3d DCA 2003); United Water Fla., Inc. v. Fla. Pub. Serv. Comm’n, 728 So.2d 1250, 1251 (Fla. 1st DCA 1999); Dep’t of Transp. v. Post, Buckley, Schuh & Jernigan, 557 So.2d 145 (Fla. 1st DCA 1990); Epley v. Washington County, 358 So.2d 592, 594 (Fla. 1st DCA 1978). In these instances, the order is considered interlocutory, the trial court is not divested of jurisdiction, and the litigation continues until a final order is entered. Hancock; Ponton v. Gross, 576 So.2d 910 (Fla. 1st DCA 1991); Augustin v. Blount, Inc., 573 So.2d 104 (Fla. 1st DCA 1991). As we stated in Andrews v. McGowan, 739 So.2d 132, 135 (Fla. 5th DCA 1999), “Interlocutory rulings are subject to reconsideration by the trial court prior to entry of a final order in the cause.” See also Dawkins, Inc. v. Huff, 836 So.2d 1062, 1065 (Fla. 5th DCA 2003) (observing that “a court always has jurisdiction during the progress of a case to set aside or modify an interlocutory order before final judgment” and that “such orders remain within the inherent power of the court to control the progress of the case prior to final judgment”).

Moreover, the oral ruling that “[i]f there’s no number established within six weeks, the number will be zero” was never reduced to writing. If this oral ruling were to be deemed a final order, the State would be deprived of its right to appeal because an order not reduced to writing is not a final order subject to review. See Hobson v. State, 908 So.2d 1162, 1163 n. 1 (Fla. 1st DCA 2005); State v. Johnson, 892 So.2d 563 (Fla. 1st DCA 2005); Walker v. State, 647 So.2d 262 (Fla. 1st DCA 1994) (concluding the district court lacks jurisdiction to review oral order that was made from the bench where order was never reduced to writing and thus not “rendered”); Gatlin v. State, 618 So.2d 765 (Fla. 2d DCA 1993); McClinton v. State, 588 So.2d 701 (Fla. 5th DCA 1991).

Since there is no rule or statute that places jurisdictional time limits on the determination of the amount of restitution, and because I know of no rule or statute that prevented the trial court from reconsidering its prior non-final interlocutory ruling, I believe it was appropriate for the trial court to modify that ruling and extend the hearing to a later date, especially in light of the particular facts and circumstances of this case.

I will conclude by noting that the preamble to section 775.089, Florida Statutes, states, “[T]he criminal justice system of this state has for too long excluded victims from meaningful participation in the criminal justice process, adding to the pain and anguish already suffered by reason of the criminal acts committed against them.... ” Ch. 88-96, at 445, Laws of Fla. (preamble). The preamble also provides that “the Legislature intends to ensure that all victims of crime are treated with dignity, respect, and sensitivity and that the rights of victims of crime are honored and protected by law enforcement agencies, prosecutors, and judges in a vigorous manner.” Id. To protect the rights of crime victims, the Legislature enacted section 775.089 to make payment of restitution to crime victims mandatory unless clear and compelling reasons exist to justify nonpayment. Further protection is provided by article I, section 16(b) of the Florida Constitution, which states that “[vjictims of crime ... are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings .... ” Chapter 960, Florida Statutes, implements these constitutional rights. See, e.g., § 960.0021, Fla. Stat. (2005) (requiring that the trial court inform victims of their rights, which include the rights to be informed, to be present, to be heard, to receive advance notification of judicial proceedings and scheduling changes, and to seek crimes compensation and restitution).

I do not believe that the oral ruling by the trial court fully complied with the court’s obligation to vigorously protect the rights of the crime victim. In my view, those rights can far better be protected by setting a specific hearing date and by requiring that appropriate notice of that date be given to the crime victim. While the trial judge may have intended to expedite his docket by ending his judicial labor once his self-imposed deadline had expired, I believe that the rights of crime victims far outweigh the limited benefit of judicial expediency. I do not think that this is a proper procedural manner of setting restitution hearings or protecting the rights of crime victims, and it should not be utilized again by any trial judge.

      . Connor also raises a double jeopardy argument. However, double jeopardy concerns are not implicated in violation of probation proceedings. As the court explained in Roberts v. State, 644 So.2d 81 (Fla. 1994), "[S]ince the defendant’s violation of probation triggered the resentencing, the defendant is not being sentenced for 'precisely the same conduct, and double jeopardy concerns do not come into play.” Id. at 82-83 (quoting Roberts v. State, 611 So.2d 58, 59 (Fla. 3d DCA 1992)); see also State v. Payne, 404 So.2d 1055 (Fla.1981); Woods v. State, 879 So.2d 651 (Fla. 5th DCA 2004); Carrigan v. State, 873 So.2d 605 (Fla. 5th DCA 2004).

      . In Carrigan, this court indicated that although jurisdiction may indeed be lacking in cases where the trial court attempts to modify or change the original sentence, it is not in violation of probation proceedings when a different sentence is imposed. Therefore, according to Carrigan, Connor’s sole objection based on lack of jurisdiction was not the correct objection for her to raise in the violation of probation proceedings. Rather, Con-nor may have raised an objection based on law of the case or, possibly, res judicata or collateral estoppel. Carrigan, 873 So.2d at 608 (citing Florida Dep’t of Transp. v. Juliano, 801 So.2d 101 (Fla.2001) (explaining the elements of each defense)). I note that an objection on these grounds would then raise the issue whether the matter was fully and fairly litigated by the parties in order to satisfy the requirements of law of the case, collateral estoppel, or res judicata, and I do not think it was.

      . See also Bilyou v. State, 404 So.2d 744 (Fla.1981); Aponte v. State, 810 So.2d 1008 (Fla.4th DCA 2002).

      . Although it is a general rule that a trial court may not modify, vacate, or set aside a final judgment or order unless specifically allowed by rule or statute, it does have the authority to modify, vacate, or set aside an order or ruling before it becomes final, provided there are no rules or statutes that restrict its authority to do so. See State v. M.C., 666 So.2d 877, 878 (Fla.1995) (“Further, it is the general rule in Florida that a trial court may not modify, amend, or vacate an order of final judgment except as provided by rule or statute.”) (citing Kippy Corp. v. Colburn, 177 So.2d 193 (Fla.1965)); Watson v. State, 633 So.2d 1171, 1173 (Fla. 3d DCA) (“[I]t is well settled that a court has control over its judgments and decrees during the term in which they are rendered, and may vacate, modify, or set them aside in the absence of statutory or constitutional restrictions.”) (citing Floyd v. State ex rel. La Vigne Elec. Co., 139 So.2d 873, 875 (Fla.1962), superseded by statute as recognized in Kippy Corp.; Lewis v. Jennings, 64 So.2d 275, 277 (Fla.1953)), review denied, 641 So.2d 1347 (Fla.1994).

      . In S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974), the court explained the test to determine if an order or judgment is final “is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.” Id. at 99 (footnote omitted); see also State v. Gaines, 770 So.2d 1221, 1223-24 (Fla.2000) (same); Array v. Alberigi, 832 So.2d 873, 874 (Fla. 5th DCA 2002). Here, the oral ruling provided that if a hearing was not held in 42 days, the amount of restitution would be zero. Further judicial labor is necessary to make this ruling final because the trial court would have to enter another order finding that the time limit expired without a hearing and the amount of restitution is zero. Without such a final order, the issue of the amount would remain pending and termination of the issue would not be effectuated.

        .See § 924.07(l)(k), Fla. Stat. (2005) (giving the state the right to appeal an order denying restitution).


author: WHATLEY, Judge.

text:
    William SPINELLI, Appellant, v. Kelly K. SPINELLI, Appellee.
    No. 2D05-3866.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2006.

      Cynthia L. Greene of Greene, Smith, & Associates, P.A., Miami, and Toni A. Butler of Law Offices of Toni A. Butler, P.A., Naples, for Appellant.
    Cynthia B. Hall and Mark V. Silverio of Silverio & Hall, Naples, for Appellee.
   WHATLEY, Judge.

The Former Husband appeals the final judgment awarding the Former Wife attorney’s fees incurred in postdissolution proceedings. We reverse.

The Former Wife filed a postjudgment supplemental petition raising four issues. The parties entered into a mediation settlement agreement regarding two of those issues, and an order incorporating that agreement was entered on November 14, 2003. The remaining issues concerned child support and attorney’s fees incurred in filing the petition.

On November 2, 2004, the Former Wife advised the Former Husband by letter that she was no longer pursuing the child support issue. On November 26, 2004, the Former Wife filed a notice of final hearing stating that the parties had resolved all issues set forth in the supplemental petition except the issue of attorney’s fees. At no time has the Former Wife filed a motion for attorney’s fees.

“[T]his court has ... held that [Florida Rule of Civil Procedure] ... 1.525 establishes a bright-line rule that requires a party to file a separate motion for attorney’s fees within thirty days of the entry of a judgment.” Nicoletti v. Nicoletti, 902 So.2d 215, 216 (Fla. 2d DCA 2005). Although rule 1.525 no longer applies to family law matters, Fla. Fam. L.R.P. 12.525, the change became effective on March 3, 2005. 902 So.2d at 216. It is the date the judgment is entered that triggers the right to attorney’s fees. Id. Because the order incorporating the mediation settlement agreement was entered on November 14, 2003, rule 1.525 is applicable to this case.

The Former Wife argues that the trial court never entered an order or judgment entirely disposing of her supplemental petition, and therefore, rule 1.525 does not apply in this case. However, “[w]here an order after judgment is dis-positive of any question, it becomes a final post decretal order. To the extent that it completes the judicial labor on that portion of the cause after judgment, it becomes final as to that portion and should be treated as a final judgment .... ” Clear-water Fed. Sav. & Loan Ass’n v. Sampson, 336 So.2d 78, 79 (Fla.1976). Although rule 1.525 refers to a “judgment” and not a “final judgment,” see Lyn v. Lyn, 884 So.2d 181, 184 n. 3 (Fla. 2d DCA 2004), we conclude that the order incorporating the mediation settlement agreement was a final judgment because it completed all judicial labor with regard to two of the issues raised in the Former Wife’s petition. See id. at 184. Thus, the Former Wife was required by rule 1.525 to file a motion for attorney’s fees within thirty days of the entry of the order incorporating the marital settlement agreement. Because the Former Wife did not do so, we must reverse the award of fees to her.

The Former Wife concedes that the Former Husband was entitled to a hearing on his timely motion for attorney’s fees.

Accordingly, we reverse the final judgment awarding the Former Wife attorney’s fees, and we remand for a hearing on the Former Husband’s fee motion.

Reversed and remanded with directions.

STRINGER and VILLANTI, JJ., Concur.


author: WELLS, Judge.

text:
    Gwen TAYLOR, Appellant, v. Simon T. STECKEL, Appellee.
    No. 3D06-1904.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.

      Stratton & Feinstein and Douglas D. Stratton, for appellant.
    Bales Sommers & Klein and Richard M. Bales, Jr., Miami, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   WELLS, Judge.

In this action for specific performance of a contract for the sale of real property, Gwen Taylor, the seller, appeals from a non-final order denying her motion to compel arbitration. She also appeals from a non-final order extending the lis pendens placed on the property by Simon Steckel, the buyer. We reverse the order denying the motion to compel arbitration, affirm the order extending the lis pendens, and remand for a bond hearing.

In January 2005, Taylor and Steckel entered into a contract for the sale of a parcel of real property located in Miami-Dade County. The original closing date for the sale was February 28, 2005. However, Steckel twice sought to extend the closing date. While the parties agree that the closing date was extended once, Taylor denies that she agreed to a second extension, and, after Steckel failed to close following the first extension, Taylor refused to close.

Steckel sued for specific performance and for injunctive relief and filed a Notice of Lis Pendens on the property. Taylor timely moved to compel arbitration as mandated by the parties’ contract:

16. DISPUTE RESOLUTION: This Contract will be construed under Florida law. All controversies, claims, and other matters in question arising out of or relating to this transaction or this Contract or its breach will be settled as follows:
(b) All other disputes: Buyer and Seller will have 30 days from the date a dispute arises between them to attempt to resolve the matter through mediation, failing which the parties will resolve the dispute through neutral binding arbitration in the county where the Property is located.... Any disputes with a real estate licensee named in Paragraph 19 will be submitted to arbitration only if the licensee’s broker consents in writing to become a party to the proceeding.

The trial court, relying on the last sentence of this provision requiring a broker’s consent to arbitrate “[a]ny disputes with a real estate licensee,” denied Taylor’s motion to compel arbitration because Taylor, who was also the agent for the sale, had failed to obtain the broker’s (Coldwell Banker’s) consent to arbitrate. The trial court also extended the lis pendens filed by Steckel upon commencement of the action.

We agree with Taylor that the trial court erred in concluding that arbitration should be denied because Taylor had not obtained the broker’s consent to arbitrate. In Nestler-Poletto Realty v. Kassin, 730 So.2d 324, 325-26 (Fla. 4th DCA 1999), the Fourth District addressed the same provision in what appears to be a standard contract and concluded that the sentence requiring a broker’s consent to arbitrate applies only to prevent a broker from being forced to arbitrate against its will where its rights and duties are implicated:

Appellants filed a motion to compel arbitration based on an arbitration clause contained in the residential sale and purchase contract. The contract provided in its paragraph 16 that ... “Any disputes with a real estate licensee ... will be submitted to arbitration only if the licensee’s broker consents in writing to become a party to the proceeding.”
We recognize that arbitration is a preferred mechanism for dispute resolution and that courts indulge every reasonable presumption to uphold an agreement to arbitrate, resolving any doubts about the scope of arbitration in favor of arbitration.
The trial court’s role when considering motions to compel arbitration is limited to determining whether a valid written agreement exists, whether an arbitrable issue exists, and whether the right to arbitration was waived.
However, contractual arbitration is only mandated for controversies or disputes which the parties have agreed to submit to arbitration. The general rule favoring arbitration does not support forcing a party into arbitration when that party did not agree to arbitrate. Neither does it allow non-parties to an agreement containing an arbitration provision to force the parties to arbitrate when the parties to the contract have waived arbitration. It is clear that here, the arbitration provisions apply to the broker only as to the parayraph outlining the broker’s rights and duties and the acknowledgment that the broker could not be forced into arbitration against its will.

Id. at 325-26 (citations omitted) (emphasis added).

We agree that the sentence requiring a broker’s consent to arbitrate applies only to prevent a broker from being forced to arbitrate against its will where its rights and duties are implicated. The broker’s rights and duties are not, however, implicated in this case.

This action involves a dispute between a buyer and a seller regarding their compliance with the terms of their contract, specifically, whether the seller breached by refusing to close following a second agreed to extension of the closing date, or whether the buyer breached by failing to close following a single agreed to extension. Because there are no allegations regarding the broker’s rights or obligations, there was no need to obtain the broker’s consent to arbitration. The seller’s motion to compel the buyer to arbitrate as expressly agreed should, therefore, have been granted.

We do not, however, agree that the trial court erred in granting Steckel’s motion to extend the lis pendens because that motion was not filed until more than one year after commencement of the action. Section 48.23 of the Florida Statutes expressly confers control over notices of lis pendens on the courts. Where, as here, a notice of lis pendens is filed in conjunction with an action not founded on a duly recorded instrument, the statute authorizes the courts to extend the effect of the notice beyond one year. § 48.23(2), (3), Fla. Stat. (2006). As this court has confirmed in the past, this provision does not require that a motion for extension be filed within a year of commencement to justify an extension. See Betsy Ross Hotel, Inc. v. A.G. Gladstone Assocs., Inc., 833 So.2d 211, 212 n. 1 (Fla. 3d DCA 2002) (where the underlying action was not founded on a duly recorded instrument, concluding that the trial court properly extended a lis pendens beyond one year from commencement of the action even though no extension had been requested); see also Hallmark Builders, Inc. v. Hickory Lakes of Brandon, Inc., 458 So.2d 45, 47 (Fla. 2d DCA 1984) (concluding that section 48.23(2) does not bar filing a notice of lis pendens more than one year after commencement because if a “court can extend the effect of the notice of lis pendens beyond one year, it stands to reason that the court can allow it to be filed beyond one year of commencement in the first place”).

The purpose of a notice of lis pendens is to notify third parties that an action regarding specified property has been filed and “that whoever subsequently acquires an interest in the property will stand in the same position as the current owner/vendor, and take the property subject to whatever valid judgment may be rendered in the litigation.” See Avalon Assocs. of Delaware Ltd. v. Avalon Park Assocs., Inc., 760 So.2d 1132, 1134 (Fla. 5th DCA 2000)(citing DePass v. Chitty, 90 Fla. 77, 105 So. 148, 149 (1925)). A notice of lis pendens also operates to protect its proponent, by preventing intervening liens that could impair or extinguish claimed property rights. Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla.1993); see also Medical Facilities Dev., Inc. v. Little Arch Creek Prop., Inc., 675 So.2d 915, 917 (Fla.1996). It also enables a court “to deal with the property and preserve its jurisdiction over the subject matter.” Avalon Assocs., 760 So.2d at 1134.

At the time the notice of lis pendens was extended in this case, Steckel’s interest in the property was the same as it was on the day the action commenced. Thus, the necessity of protecting Steckel’s interests, putting third parties on notice of Steckel’s pending claims, and preserving the court’s authority to deal with the property remained unchanged and justified an extension. Under the circumstances, we find no error in the trial court’s extension of the notice of lis pendens filed below even though the extension request was made a little more than one year following commencement of this action.

However, we find (and Steckel concedes) that Taylor is entitled to a lis pendens bond hearing in accordance with our decision in Licea v. Arillo, 691 So.2d 29 (Fla. 3d DCA 1997). See also Medical Facilities Dev., Inc., 675 So.2d at 917 (confirming that “the protection which a notice of lis pendens affords is counterbalanced by the constraining effects the notice has on the property-holder defendant” and that “[s]ince the wrongful filing of a notice of lis pendens can be damaging, courts have interpreted the statutory reference to injunction in section 48.23(3), Florida Statutes, to mean that a bond may be required”).

Accordingly, we reverse the order denying Taylor’s motion to compel arbitration. We affirm the order extending the lis pen-dens filed by Steckel, and remand for a lis pendens bond hearing.


text:
    George ACEVEDO, a/k/a Sam Lopez, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2410.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.
    George Acevedo, a/k/a Sam Lopez, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before RAMIREZ, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Cala v. State, 854 So.2d 840 (Fla. 3d DCA 2003).


text:
    Patrick J. O’HAVER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-504.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.
    Patrick J. O’Haver, in proper person.
    Charles J. Crist, Jr., Attorney General, and Olga Villa, Assistant Attorney General, for appellee.
    Before WELLS, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

We affirm the trial court’s denial of the defendant’s successive and meritless motion for post conviction relief. We caution the defendant that his filing of any further frivolous pro se pleadings may result in sanctions including a prohibition against his filing of any further pro se filings, and forfeiture of gain time. Britt v. State, 931 So.2d 209 (Fla. 5th DCA 2006); Cole v. State, 913 So.2d 709 (Fla. 5th DCA 2005).

Affirmed.


author: PER CURIAM. COPE, C.J.

text:
    Robert Lee JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-507.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.
    Robert Lee Jackson, in proper person.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GREEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

COPE, C.J.

(concurring).

I concur on the understanding that, in accordance with the State’s response, the appellant will be allowed to file another Rule 3.850 motion to plead with more particularity his claim that trial counsel failed to convey a plea offer. The appellant must, of course, file promptly after this appeal becomes final.


text:
    Charles L. DRAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3427.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.
    Charles L. Drayton, Moore Haven, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. This affirmance is without prejudice to Appellant re-filing a specific public records request with the clerk’s office for the charging documents at issue. See Woodard v. State, 885 So.2d 444 (Fla. 4th DCA 2004) citing Wootton v. Cook, 590 So.2d 1039 (Fla. 1st DCA 1991); see also Fla. R. Jud. P. 2.420(e)(1). We note Appellee’s representation that once the fee is paid, the clerk’s office will comply with the request in a timely fashion.

SHAHOOD, GROSS and MAY, JJ., concur.


text:
    Francis JEANTILUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4400.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.
    Francis Jeantilus, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In Jeantilus v. State, 853 So.2d 1099 (Fla. 4th DCA 2003), we reversed the summary denial of one issue raised in appellant’s motion for postconviction relief because of the insufficiency of the record. Specifically, appellant had claimed that his confession was not voluntary, but when the issue came up at trial, the discussion was not recorded. We remanded for an evi-dentiary hearing on the issue. Based upon the trial court’s detailed findings, we affirm the court’s denial of the motion for postconviction relief.

The trial court found that the omission of the discussion was inadvertent and occurred when the court reporter was momentarily absent from the courtroom to retrieve an additional recording disk. The gap in the transcription of the proceedings was only a few minutes.

During the unrecorded discussion, defense counsel told the judge that he would not be asking the court to hear a motion to suppress the confession, having already determined that he had no grounds to request suppression. Defense counsel also noted that appellant had agreed with him and explained how he intended to attack the confession at trial.

Appellant also testified at the hearing, as did several detectives. Appellant claimed the he was subtly coerced into his confession and that he never agreed with his attorney’s strategy not to file a motion to suppress. The court did not find appellant to be a credible witness. Moreover, the court found that defense counsel’s strategy was reasonable.

The standard of review following denial of a rule 3.850 claim after an eviden-tiary hearing requires deference to the trial court’s factual findings. “As long as the trial court’s findings are supported by competent substantial evidence, this Court will not ‘substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.’ ” McLin v. State, 827 So.2d 948, 954 n. 4 (Fla.2002) (quoting Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997)). Competent substantial evidence is “such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.” De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957).

Further, “[sjtrategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Brown v. State, 894 So.2d 137, 147 (Fla.2004).

Because there was competent substantial evidence to support the trial court’s findings, we affirm the order denying relief.

STONE and POLEN, JJ., concur.


author: LAWSON, J.

text:
    William L. SHELTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-2619.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 2006.

      William Shelton, Jasper, pro se.
    No Appearance for Respondent.
   ON PETITION FOR REHEARING

LAWSON, J.

William L. Shelton has filed a petition seeking rehearing regarding our opinion filed on September 15, 2006. We grant the petition and substitute the following opinion in its place.

Shelton petitions this court requesting a belated appeal claiming that, after his Florida Rule of Criminal Procedure 3.800(b) motion was denied by the trial court, he was not advised of his right to file an appeal from the ruling. In his petition, Shelton asserts that he did not appeal from his original judgment and sentence, entered on March 3, 2003. The petition further states that Shelton’s defense counsel filed the rule 3.800(b) motion “on or about the 10th of June, 2003,” and that the trial court denied the motion at some point thereafter.

Although it is true that a trial court’s denial of a rule 3.800(b) motion is generally subject to appeal, the rule contemplates that appellate review of the denial order occurs within the confines of the direct appeal of the sentence. See Fla. R.Crim. P. 3.800(b) (explaining in subsection (1) the procedure as it relates to a motion filed before appeal of the defendant’s sentence, and in subsection (2) the procedure as it relates to a motion filed pending appeal of the defendant’s sentence); see also Hollinger v. State, 920 So.2d 1213 (Fla. 1st DCA 2006) (noting that the appeal of the petitioner’s judgment and sentence also provides the appellate court with jurisdiction to review the trial court’s order granting the state’s rule 3.800(b)(1) motion). Furthermore, rule 3.800(b)(1) states that a motion to correct a sentencing error must be filed within the time period for filing a notice of appeal of the defendant’s sentence. Thus, where 30 days have passed from the entry of the original sentence without the filing of either a rule 3.800(b)(1) motion or a notice of appeal, the trial court lacks jurisdiction to rule on a subsequently filed rule 3.800(b)(1) motion.

According to the combined allegations in Shelton’s petition for belated appeal and his motion for rehearing, Shelton contends that his attorney filed the rule 3.800(b) motion “on or about the 10th of June, 2003,” which is more than 30 days after Shelton’s March 3, 2003, sentencing hearing. Furthermore, Shelton acknowledges that he did not file a notice of appeal after his sentence was imposed, but before the filing of the instant rule 3.800(b) motion. Therefore, the trial court never possessed jurisdiction to rule on Shelton’s rule 3.800(b) motion. As such, no belated appeal from the denial of his motion is warranted.

PETITION DENIED.

GRIFFIN and PALMER, JJ., concur.


author: MONACO, J.

text:
    Louis REED, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-296.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 2006.
    James S. Purdy, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Louis Reed, raises a single issue in this appeal from his judgment and sentence for aggravated battery and aggravated assault. He asks us to consider whether the trial court erred in admitting into evidence a photographic lineup. He argues that the photographs contained in the lineup were unduly suggestive, and seeks a new trial. We review the rulings of a trial court using an abuse of discretion standard. See San Martin v. State, 717 So.2d 462 (Fla.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1468, 143 L.Ed.2d 553 (1999). Because we conclude that the trial judge did not abuse his discretion in admitting this evidence, we affirm.

The test for suppression of an out-of-court identification is two-fold: (1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification; and (2) if so, considering all of the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. See Rimmer v. State, 825 So.2d 304, 315 (Fla.), cert. denied, 537 U.S. 1034, 123 S.Ct. 567, 154 L.Ed.2d 453 (2002); Thomas v. State, 748 So.2d 970, 981 (Fla. 1999); Green v. State, 641 So.2d 391, 394 (Fla.1994), cert. denied, 513 U.S. 1159, 115 S.Ct. 1120, 130 L.Ed.2d 1083 (1995); Grant v. State, 390 So.2d 341, 343 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981). Among the factors to be considered in evaluating the likelihood of misidentification are:

The opportunity of the witness to view the criminal at the time of the crime, the witnesses’ degree of attention, the accuracy of the witnesses’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Grant, 390 So.2d at 343.

Here, Mr. Reed argues that although all of the persons shown in the photographic lineup are' wearing glasses, his glasses are larger and thicker. First, we find nothing unusually suggestive in the photographs. Moreover, there was little possibility of irreparable misidentification because the victims were in close contact with Mr. Reed for an extended period of time prior to the assault and battery, both victims conversed with Mr. Reed, and both victims made positive in-court identifications of him. We conclude that there was no abuse of discretion in the admission of the lineup.

AFFIRMED.

THOMPSON and PALMER, JJ., concur.


text:
    A.S., Mother of R.S., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-2589.
    District Court of Appeal of Florida, Fifth District.
    Dec. 18, 2006.
    Carol Ann Volini, Ocala, for Appellant.
    Patricia M. Propheter, of Florida Guardian Ad Litem Program, Orlando; and Ralph J. McMurphy, Department of Children and Families, Wildwood, for Appel-lee.
   PER CURIAM.

A.S., the mother, timely appeals the trial court’s order terminating her parental rights to her daughter, R.S. It would serve no useful purpose to recite the facts of this case. Suffice it to say that our review of the record supports the trial judge’s conclusion that the termination of A.S.’s parental rights is in the manifest best interests of R.S. and is the least restrictive means of preventing harm to R.S. See M.H. v. Dep’t of Children & Families, 866 So.2d 220 (Fla. 1st DCA 2004). Accordingly, we affirm the judgment.

AFFIRMED.

ORFINGER, LAWSON and EVANDER, JJ., concur.


author: SALCINES, Judge.

text:
    STATE of Florida, Appellant, v. Justin WITTHAUS, Appellee.
    No. 2D05-5994.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.
   SALCINES, Judge.

The State appeals from the trial court’s denial of restitution. We reverse.

Witthaus was charged with aggravated assault, driving under the influence, and leaving the scene of a crash involving property damage as a result of incidents which occurred on April 19, 2005. Witthaus appeared before the trial court on June 9, 2005, for a plea and sentencing hearing. Witthaus entered a plea to the three charged offenses agreeing, among other things, to make restitution to the victim of the aggravated assault.

Regarding the aggravated assault, during the preliminary discussions between counsel and the trial court prior to the acceptance of the plea, the trial court asked the prosecutor how much restitution was owed to the victim. The prosecutor did not know the entire amount at that time. The trial court indicated that it would order restitution, but since the amount to be imposed was unknown, it would rely on the State to set a status check and would “retain” for ninety days to set a restitution amount. After accepting the plea, the trial court pronounced “two years probation, restitution; I’ll retain on the issue of how much restitution.”

That oral pronouncement took place at the sentencing hearing on June 9, 2005. A written order of probation was filed June 29, 2005; it included a condition requiring Witthaus to pay restitution “in an amount to be determined” and further stated “the restitution shall be determined within 90 days.” A written order setting the amount of restitution was rendered on September 30, 2005, after the ninety-day period had elapsed.

Witthaus filed a motion to strike the order setting restitution arguing that the trial court announced it would retain jurisdiction for ninety days and that the State presented the restitution amount outside the ninety-day period set by the trial court. Witthaus’s motion was granted, and the order setting restitution was stricken. The trial court erred in striking that order.

“[A]n order of restitution must be imposed at the time of sentencing or within sixty days thereafter. If an order of restitution has been entered in a timely manner, a court can determine the amount of restitution beyond the sixty-day period.” State v. Sanderson, 625 So.2d 471, 473 (Fla.1993). Furthermore, if restitution is made an original condition of probation, a trial court can properly determine the amount of restitution at a later date. Gladfelter v. State, 618 So.2d 1364, 1365 (Fla.1993).

Section 948.03(1), Florida Statutes (2005), sets forth standard terms and conditions of probation. One of the standard conditions provides that a probationer “[m]ake reparation or restitution to the aggrieved party for the damage or loss caused by his or her offense in an amount to be determined by the court.” § 948.03(l)(e). As opined by our sister court, the foregoing statutory provision “does not specify when the court must determine the amount, and we conclude that to be a procedural matter falling within the discretion of the trial court.” McCaskill v. State, 520 So.2d 664, 665 (Fla. 1st DCA 1988).

Witthaus agreed to make restitution as part of his plea agreement, the trial court ordered restitution at sentencing, and restitution was timely imposed as a condition of probation within sixty days of sentencing. Although the trial court imposed a deadline of ninety days in which to determine the amount of restitution, that self-imposed deadline did not act to divest the trial court of its jurisdiction to determine the amount of restitution. Instead, the trial court’s self-imposed deadline was a matter of procedure falling within the purview of its discretion. See McCaskill, 520 So.2d at 665.

At the time the trial court entered the order setting the amount of restitution to be made by Witthaus — an amount to be paid by Witthaus as a condition of his probation for a probationary sentence then in effect — it had jurisdiction to make such a determination. Cf. Davis v. State, 685 So.2d 1357, 1358 (Fla. 2d DCA 1996) (holding trial court lacked jurisdiction to amend restitution order; “while the court can set the amount of restitution more than sixty days after entry of an order imposing restitution, the court cannot modify an already-ordered amount of restitution beyond the sixty day period”).

In the present case, the trial court not only timely ordered restitution, see L.O. v. State, 718 So.2d 155, 158 (Fla.1998) (recognizing oral pronouncement as “sufficient to constitute an initial order of restitution”), it also timely imposed a condition of probation requiring restitution in an amount to be determined. See State v. Hiscox, 677 So.2d 862, 863 (Fla. 2d DCA 1996) (holding “because restitution was made an original condition of the probation order which was filed fifteen days after the sentencing hearing, the trial court could properly determine the amount of restitution at a later date”). Further, although the trial court had authority to determine the amount of restitution under these facts regardless of an express reservation of jurisdiction, the trial court’s pronouncement adequately reserved jurisdiction to determine the amount of restitution at a later date. See L.O., 718 So.2d 155 (reaffirming holding in Sanderson, 625 So.2d 471); Albury v. State, 779 So.2d 423 (Fla. 2d DCA 2000) (holding trial court had jurisdiction to enter restitution order; although restitution hearing took place after the forty-five day hearing date set by the trial court and more than sixty days after pronouncement of sentence, trial court’s pronouncement adequately reserved jurisdiction); Skaggs v. State, 620 So.2d 1304, 1304-05 (Fla. 2d DCA 1993) (opining, in dicta, that trial court’s pronouncement reserving jurisdiction for sixty days to determine whether to impose restitution was sufficient to reserve jurisdiction to make such determination sixty-three days later).

Accordingly, we reverse the order striking the restitution order and remand for reinstatement of the order setting the amount of restitution.

Reversed and remanded with directions.

NORTHCUTT and VILLANTI, JJ., Concur.

      . The order appealed is an order that struck a previously entered restitution order setting the amount of restitution to be made as a condition of probation. It had the practical effect of denying restitution. Thus, the order was essentially an order denying restitution. Accordingly, we review this matter as an appeal from an order denying restitution. See State v. Hitchmon, 678 So.2d 460, 462 (Fla. 3d DCA 1996) (finding order striking condition of probation that requires restitution is properly viewed as order denying restitution appealable by the state).


author: CANADY, Judge.

text:
    Michael McCAIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1967.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2006.
   CANADY, Judge.

Michael McCain challenges the postcon-viction court’s denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). McCain contends that the sentence he received for one charge of lewd or lascivious act (count 5), see § 800.04(4), Fla. Stat. (2002), exceeded the fifteen-year statutory maximum. Because the attachments do not support the postconviction court’s denial order, we reverse.

The written sentence attached to the denial order supports McCain’s factual assertion that, on count 5, he was sentenced to ten years’ imprisonment followed by ten years’ probation. Ordinarily, the second-degree felony offense at issue is subject to the statutory maximum sentence of fifteen years. See § 800.04(4); § 775.082(3)(c), Fla. Stat. (2002). Pursuant to section 921.0024(2), Florida Statutes (2002), however, depending on the offender’s score-sheet, the “lowest permissible sentence” under the Criminal Punishment Code may exceed the statutory maximum. See Thomas v. State, 909 So.2d 601, 601 (Fla. 2d DCA 2005); State v. Ayers, 901 So.2d 942, 945-46 (Fla. 2d DCA 2005). Here, the record before us — which does not contain the sentencing scoresheet or the transcript of the sentencing hearing — is insufficient to establish whether the sentence imposed on McCain was authorized pursuant to section 921.0024(2). Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

STRINGER and LaROSE, JJ., Concur.


text:
    HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, INC.; Manorcare Health Services, Inc., d/b/a Heartland Health Care, Petitioners, v. Peggy BRADLEY, as Personal Representative of the Estate of Buford Allen Fennell, Jr., Respondent.
    No. 4D06-2653.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Christopher J. Kaiser and Sylvia H. Walbolt of Carlton Fields, P.A., St. Peters-burg, and Barry A. Postman and Lee M. Cohen of Cole, Scott & Kissane, P.A., West Palm Beach, for petitioners.
    Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, and Daniel G. Williams of Gordon & Doner, P.A., Palm Beach Gardens, for respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

The respondent to this petition for writ of certiorari moved for rehearing which we treat as a motion for clarification and grant. We withdraw our prior opinion in this case and replace it with the following.

The petitioner, Health Care and Retirement Corporation of America (“Manor Care”), seeks certiorari review of a lower court order denying its motion to disqualify opposing counsel. We grant this petition for the reasons that follow, lift the stay that was previously imposed, and remand for further proceedings consistent herein.

The underlying lawsuit involves allegations of neglect at a nursing home that purportedly led to the death of a resident. The complaint sought relief, in part through chapter 400, Florida Statutes, for incidents that took place from January 25, 2002 to September 13, 2005 at a Boca Raton facility operated by Man- or Care. The respondent, Peggy Bradley, as personal representative of the decedent’s estate, hired the law firm of Gordon & Doner, P.A. to pursue her case, filed by complaint dated August 24, 2005.

From February 2001 to December 2004, Scott Fischer represented Manor Care, through his association with the law firm of Cole, Scott & Kissane, P.A. (“Cole Scott”). It is undisputed that during this period, Fischer represented Manor Care in defense of nursing home litigation and in cases involving both similar allegations and the same facility. At the end of December 2004, Fischer left Cole Scott and the next week began working for Gordon & Doner. Fischer is now actively involved in litigating Bradley’s suit against his former client, Manor Care. As a result, Manor Care filed a motion to disqualify Fischer and Gordon & Doner, as a consequence of Fischer’s association with the firm.

The lower court held an evidentiary hearing on the matter, wherein several depositions were read into the record and Fischer testified on behalf of Gordon & Doner. Manor Care argued that Fischer should be disqualified from representing Bradley due to Bar Rule 4-1.9 and then Gordon & Doner should be disqualified due to Fischer’s association with the firm, pursuant to Bar Rule 4-1.10. Gordon & Doner’s primary argument against disqualification was that Fischer did not receive any confidential information while representing Manor Care for four years. In denying the motion, the lower court wrote:

[Manor Care] seeks to disqualify Mr. Fischer, arguing he was fully apprised of Manor Care’s internal strategies in handling the types of claims in this suit; he was supplied confidential information about the operations of Manor Care facilities as well as specific internal claim evaluations and defense strategies for cases such as this.
Manor Care has, however, failed to show clearly and convincingly that the challenged legal representation would interfere with the fair and impartial administration of justice. Rule Regulating the Florida Bar 4-1.6 provides that the attorney’s duty of confidentiality continues even after the termination of the attorney-client relationship. During the course of Mr. Fischer’s representation of Manor Care while at Cole, Scott, no confidences were revealed to him which were material to this case. Manor Care has, thus, failed to carry its burden of showing that the newly associated attorney acquired confidential information during his prior representation of the client in the same or substantially related matter. Furthermore, there is no evidence that Mr. Fischer has used or intends to use any confidence that he learned in his representation of Manor Care.

The order does not reveal whether the lower court applied, or intended to apply, either Rule 4-1.9 or Rule 4-1.10 to the facts of this case, thus complicating our review.

A petition for writ of certiorari is the appropriate method of challenging the denial of a motion to disqualify opposing counsel. See Campbell v. Am. Pioneer Sav. Bank, 565 So.2d 417 (Fla. 4th DCA 1990) (granting certiorari relief where the lower court incorrectly denied a motion to disqualify opposing counsel). As in any other certiorari petition, the proper review is premised upon whether the lower court departed from the “essential requirements of law which may result in prejudice that cannot be fully rectified by plenary appeal.” Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505, 506 (Fla. 4th DCA 1986).

Cases which seek the disqualification of a party’s chosen counsel present complicating issues that oftentimes result in conflict between important rights: (1) the right to choose one’s own counsel, and (2) the protection of the judicial system’s appearance of fairness. See Campbell, 565 So.2d at 417-18; see also Kusch v. Ballard, 645 So.2d 1035 (Fla. 4th DCA 1994); Coral Reef of Key Biscayne Developers, Inc. v. Lloyd’s Underwriters at London, 911 So.2d 155, 157 (Fla. 3d DCA 2005) (“Motions for disqualification are viewed with skepticism because disqualification impinges on a party’s right to employ a lawyer of choice.... Since the remedy of disqualification strikes at the heart of one of the most important associational rights, it must be employed only in extremely limited circumstances.”). “Like so many other ethical considerations in the practice of law, perceptions are of the utmost importance. Thus, how much of an advantage, if any, one party may gain over another we cannot measure. However, the possibility that such an advantage did accrue warrants resort to this drastic remedy for the sake of the appearance of justice, if not justice itself, and the public’s interest in the integrity of the judicial process.” Gen. Accident, 483 So.2d at 506. On the other hand, we have expressly noted that the need to protect the integrity of the legal system is balanced by the fact “[disqualification of a party’s chosen counsel is an extraordinary remedy and should only be resorted to sparingly.” Singer Island, Ltd. v. Budget Constr. Co., 714 So.2d 651, 652 (Fla. 4th DCA 1998); Gen. Accident, 483 So.2d at 506. Thus, a decision such as this is not taken lightly and all factors must be considered to balance the two competing interests.

Depending upon the circumstances of the case, disqualification of an opposing counsel is controlled, generally, by the above-noted prevailing interests in justice and individual choice of representation, and specifically, by Bar Rules 4-1.9 and 4-1.10. Bar Rule 4-1.9 reads:

A lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent; or
(b) use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 would permit with respect to a client or when the information has become generally known.

R. Regulating Fla. Bar 4-1.9. Florida courts have noted the application of this Bar Rule creates an “irrefutable presumption that confidences were disclosed” between the client and the attorney. Gaton v. Health Coal, Inc., 745 So.2d 510, 511 (Fla. 3d DCA 1999); see also Solomon v. Dickison, 916 So.2d 943, 945 (Fla. 1st DCA 2005) (quoting Gaton); Key Largo Rest., Inc. v. T.H. Old Town Assocs., Ltd., 759 So.2d 690, 693 (Fla. 5th DCA 2000) (“[Ojnce an attorney-client relationship is shown, an irrefutable presumption arises that confidences were disclosed to the attorney, and the only remaining requirement is a showing that the current case involves the same subject matter or is substantially related to the matter in which the lawyer represented the moving party.”). We have noted, in Nissan Motor Corp. in U.S.A. v. Orozco, 595 So.2d 240, 242 (Fla. 4th DCA), rev. denied, 605 So.2d 1265 (Fla.1992), that Bar Rule 4-1.9 applies where a direct attorney-client relationship exists and the subject matter is the same or substantially related, and if that is found, the irrefutable presumption shall be applied.

Of course, disqualification is not required merely because the irrefutable presumption of confidences is in place. Instead, the party moving to disqualify opposing counsel must also show that “the matter in which the law firm subsequently represented the interest adverse to the former client is the same matter or substantially similar to the matter in which it represented the former client.” Junger Util. & Paving Co. v. Myers, 578 So.2d 1117, 1119 (Fla. 1st DCA 1989); see also State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 633 (Fla.1991) (noting the second factor for disqualifying opposing counsel is showing the current case is the “same or substantially related to the matter[s]” in the former attorney-client relationship). We wrote, in Campbell, that “[bjefore a client’s former attorney can be disqualified from representing adverse interests, it must be shown that the matters presently involved are substantially related to the matters in which prior counsel represented the former client.” 565 So.2d at 417.

In the order now before us, the lower court determined Manor Care failed to carry its burden, possibly to the level of clear and convincing evidence, to show that Fischer received confidential information from the client. This was error, as the law required the trial court to apply the irrefutable presumption that confidences were divulged by Manor Care to Fischer. See Junger, 578 So.2d at 1119 (“the former client need show only that an attorney-client relationship existed, thereby giving rise to the irrefutable presumption that confidences were disclosed during the course of that relationship”). This “irrefutable presumption” is critical in such cases because it “protects the client by not requiring disclosure of confidences previously given to the attorney” to prove that such confidences were disclosed. K.A.W., 575 So.2d at 634.

The comments to Bar Rule 4-1.9 provide further guidance as to the purpose of the irrefutable presumption:

In the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.

R. Regulating Fla. Bar 4-1.9 (comments) (emphasis supplied). It would appear to defeat the confidential nature of the information if the former client were required to prove what confidential information was revealed to its former attorney. This is especially true if the level of proof is the exceedingly high standard of “clear and convincing evidence.”

Gordon & Doner argue that the irrefutable presumption should not apply to the information Fischer acquired during his representation of Manor Care because Bar Rule 4-1.10 guides this' case. However, the very language of this Bar Rule rejects this assumption. Bar Rule 4-1.10, in applicable part, reads:

(b) Former Clients of Newly Associated Lawyer. When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6 and 4 — 1.9(b) that is material to the matter.

R. Regulating Fla. Bar 4-1.10. This rule applies to the new firm itself, and not to the newly associated lawyer. See Nissan, 595 So.2d at 242. Where the conflicted attorney was fired by the new firm, this court applied Bar Rule 4-1.10, but noted Bar Rule 4-1.9 would have applied had the conflicted attorney still been associated with the firm. Id. In the instant case, Fischer is still associated with Gordon & Doner, thus Nissan is distinguishable and Bar Rule 4-1.10 would not apply to the determination of whether Fischer should be disqualified.

Because the lower court erred in failing to apply Bar Rule 4-1.9, and thus failed to apply the irrefutable presumption, we must grant relief and quash the order below. We, however, do not make any determination as to whether Manor Care has made a sufficient showing of the second factor needed to disqualify its former lawyer: the former representation was “in the same or a substantially related matter.” R. Regulating Fla. Bar 4-1.9(a). Upon remand, the lower court may hold any additional hearings it deems necessary and allow any additional discovery that would enable it to make any additional findings of fact, and conclusions of law, that will decide the motion to disqualify.

Petition Granted.

STONE, FARMER and SHAHOOD, JJ., concur.

      . However, the representation of the Boca Raton facility did not involve the same type of negligence allegations at issue in the instant proceedings.