text:
    FINANCIAL SERVICES COMMISSION and the Financial Services Commission, Office of Insurance Regulation, Appellants, v. The FLORIDA INSURANCE COUNCIL, INC., Appellee.
    No. 1D05-4379.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2006.
    Rehearing Denied Sept. 28, 2006.
    James H. Harris, Assistant General Counsel, Office of Insurance Regulation, Tallahassee, for Appellants.
    Cynthia S. Tunnicliff and Brian A. Newman of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Appellants challenge a final order that found several of their proposed rules invalid exercises of delegated legislative authority pursuant to section 120.52(8)(a), Florida Statutes (2004), because they failed to follow applicable rulemaking procedures. Specifically, the Administrative Law Judge found the Financial Services Commission failed to fulfill its statutory duty under section 120.54(3)(a), Florida Statutes, as “agency head,” to approve the proposed rules prior to their publication in the Florida Administrative Law Weekly. We affirm.

Section 20.121(3)(c), Florida Statutes, provides that the Commission is the “agency head” of the Department of Financial Services for purposes of rulemaking. The agency head is required by section 120.54(3)(a) to approve proposed rules pri- or to their publication in the Florida Law Weekly. Based on these statutes, the ALJ concluded the Commission had the duty to review and approve the content of the proposed rules at issue before providing notice of their adoption.

Appellants contend the Commission delegated this duty to the Office of Insurance Regulation (Office). However, the Legislature granted rulemaking authority only to the Commission and the Department of Financial Services. See § 624.308(1), Fla. Stat. Consequently, the ALJ properly concluded the Commission could not delegate its rulemaking authority to the Office.

Because the Commission failed to approve the proposed rules prior to their publication in the Florida Administrative Law Weekly, the proposed rules constituted an invalid exercise of delegated legislative authority. The final order is AFFIRMED.

KAHN, C.J., WEBSTER, and HAWKES, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Frederick MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3674.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm Mitchell’s convictions and sentences without prejudice to his right to seek appropriate post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed.

STEVENSON, C.J., STONE and POLEN, JJ., concur.


author: FARMER, J.

text:
    Abraham YISRAEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2967.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Upon being found guilty of trafficking in cocaine and possession of a firearm by a convicted felon, defendant was sentenced as a habitual violent felony offender (HVFO). Without disputing the prior record conviction or the date on which he was last released from prison before the new offense, defendant objected to the form of the proof offered by the state to prove this predicate criminal history. We affirm the HVFO sentence imposed and recede from Sutton v. State, 929 So.2d 1105 (Fla. 4th DCA 2006), and any similar holdings.

As proof that defendant had been released from prison within the time required for the imposition of an HVFO sentence on the latest offense, the State produced a letter from the Florida Department of Corrections (FDOC) stating:

I, Joyce Hobbs, Correctional Services Administrator, Central Records Office, State of Florida Department of Corrections, do hereby certify that this seal is the official seal of the Florida Department of Corrections. I also certify that the last release date for inmate Eugene Lumsden, DC# 647647, B/M, DOB: 4/1/1963, was April 8, 1998, for case # 89-20162, Broward County, Florida.

Defendant argued that this document was hearsay, that it could not be considered by the trial court in sentencing, and that the State had therefore failed to establish the necessary predicate for an HVFO sentence. He relied on Gray v. State, 910 So .2d 867 (Fla. 1st DCA 2005), where the State offered an identical document to prove the date on which the defendant had been released from prison to establish his qualification as a Prison Releasee Reoffen-der (PRR). Since his sentencing, this court followed Gray in Sutton, where the sentences were PRR and habitual felony offender (HFO).

In Gray, the defendant objected to an identical document on the grounds that it was not self-authenticating and did not fit within any hearsay exception. The First District agreed, Judge Benton stating:

[The FDOC official’s] statement constituted hearsay, and the State proved no proper predicate for its admission under any exception to the rule excluding hearsay. The document fails to identify the official records on which it relied, if any, does not state that it is a true and correct representation of any record, and does not say where or in whose custody any original official or business records are kept.

910 So.2d at 869. The court added that:

“[w]here nothing more than inadmissible hearsay received over specific objection is adduced in order to prove a prison release date necessary for sentence enhancement, the enhanced sentence cannot withstand attack on direct appeal.”

910 So.2d at 870. Judge Wolf concurred but pointed out:

“The computer printout while inartfully drafted reflects that a records custodian (records management analyst) certified that the records of the department indicated that the release date for the petitioner was September 30, 2000. The defense presented no evidence to the contrary. It is a waste of time, money, and judicial effort to require resentenc-ing in this case.”

910 So.2d at 870; see also Desue v. State, 908 So.2d 1116, 1117 (Fla. 1st DCA 2005) (holding that “Crime and Time Report,” certified by FDOC custodian of records, was admissible because the custodian testified that the document “was an official document copied from [F] DOC records, that an inmate’s admit and release dates are recorded at or near the time the inmate is jailed or released, as the case may be, and that records of inmates’ release dates are kept in the ordinary course of [F] DOC’s business”).

FDOC has a statutory duty to “obtain and place in its records information as complete as practicable on every person who may be sentenced to supervision or incarceration under the jurisdiction of the department.” FDOC’s duty encompasses information as to the precise charges for which the offender was convicted; the name of the court imposing sentence; the terms of the sentence; the names of the judge, investigating officers, and prosecuting and defending attorneys; and the offender’s criminal record.

Correspondingly, the statute imposes on the sentencing court and prosecuting officials the duty of providing FDOC with the necessary documents and information to enable FDOC to carry out its record-keeping duty. To facilitate compliance, FDOC is authorized to require — and it has done so — that all courts complete a uniform commitment form for the state imprisonment of each person. FDOC is also empowered to refuse to accept the commitment of any offender unless the committing authority furnishes the uniform commitment form, certified copies of the indictment or information, and the sentencing scoresheet. When the sentence is about to expire, FDOC is required to give notice of the release of the offender to the Chief Judge and the State Attorney of the court of conviction and other specified persons. Finally, FDOC is authorized by statute to adopt an official seal for the purpose of authenticating its official documents. It is reasonable to conclude that the statutes have created a state agency — FDOC-—whose records about the commitment, sentence and release date of every offender are to be presumed comprehensive, complete and accurate. Again, we note that in this case defendant does not challenge the accuracy of the records pertaining to him.

We find that the letter in evidence was properly considered by the trial court as sufficient to establish the criminal history predicate for a recidivist-enhanced sentence — in this instance under HVFO. The public records exception to the hearsay rule, in which the availability of the declar-ant is immaterial, allows the admission of:

“Records, reports, statements reduced to uniting, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness.” [e.s.]

§ 90.803(8), Fla. Stat. (2005). Here the letter statement specifies that it is given under seal. The declarant states that she is the Correctional Services Administrator for the Central Records Office of FDOC. She states that defendant (known by his other name) was last released on April 8, 1998, on a specific qualifying offense— which, it turns out, is within the statutorily prescribed period for sentencing under HVFO. We think that this statement by a named FDOC official is entitled to be recognized as a public record within the meaning of section 90.803(8). The document in question certainly constitutes a “statement or report reduced to writing” about an activity of a government agency, namely the date on which FDOC released a convict from imprisonment on a specific offense. We can think of no reason why it is not sufficient to establish the specific predicate fact regarding this defendant’s criminal history relevant and necessary to sentencing under HVFO for his latest offense.

In Sutton and Gray the use of an identical letter was primarily analyzed under the business records exception to the hearsay rule. But when a document from a public agency like FDOC satisfies the requirements for consideration as a public record, we think it is unnecessary to consider the requirements for the business record exception. The pertinent records of a public agency under a statutory duty to acquire and maintain records on a specific subject are entitled to recognition as being reliable and trustworthy by virtue thereof and do not require the additional safeguards required by the business records exception. For this purpose, the Legislature has given such public records a presumption of reliability and accuracy not deemed inherent in ordinary business records.

Under the facts and circumstances presented here, we do not perceive any necessity to read into the public records exception, a requirement that a statement under seal also attach copies or identify such physical papers or electronic data from which the declarant derived the criminal history information contained in the statement, namely a release date on a specific conviction. We recede from any holding or suggestion to the contrary in Sutton or any other case. See Rivera v. State, 877 So.2d 787, 790 (Fla. 4th DCA 2004), review denied, 888 So.2d 623 (Fla.2004) (recognizing precedent where a prison records custodian’s affidavit attesting to prison release date was admissible under the business records exception to the hearsay rule where State also connected defendant to conviction through testimony of deputy sheriff who fingerprinted offender for the conviction on which the prison release information was provided, but noting that in case under review, there was no evidence connecting appellant to conviction and affidavit of custodian was insufficient to meet requirements of business records exception).

We certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005).

Affirmed.

STEVENSON, C.J., GUNTHER, STONE, WARNER, POLEN, KLEIN, SHAHOOD, GROSS, TAYLOR and MAY, JJ., concur.

HAZOURI, J., recused.

      . We affirm the trial court’s order on the motion to suppress without comment. We reject the State’s argument that the sentencing issue was not preserved for review in that defendant failed to object at the sentencing hearing. Defendant did in fact raise the issue in his timely rule 3.800(b)(2) motion to correct the sentence, and thus it has been preserved. Edison v. State, 848 So.2d 498, 499 (Fla. 2d DCA 2003) (holding that, although defendant did not object at sentencing hearing, error is preserved for review because issue was raised by filing rule 3.800(b)(2) motion to correct sentencing error).

      . For the cocaine conviction, he was sentenced to life in prison, with a 15-year mandatory minimum. For the firearm conviction, he was sentenced to 30 years in prison, with a 10-year minimum mandatory.

      .§ 775.084(l)(b)2.b., Fla. Stat. (2005) ("The felony for which the defendant is to be sentenced was committed ... within 5 years of the date of the conviction of the last prior enumerated felony, or within 5 years of the defendant’s release from a prison sentence, probation, community control, control release, condition release, parole, or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later.’’).

      . There is no dispute that Eugene Lumsden is an alias of appellant Abraham Yisrael.

      . The document used in Gray read:
      "I, Barbara K. Smith, Records Management Analyst, Central Records Office, State of Florida Department of Corrections, do hereby certify that this seal is the official seal of the Florida Department of Correé-tions. I also certify that the last release date for Inmate Maurice K. Gray, Jr., DC# 581630, W/M, DOB: 2/18/1968, was September 30, 2000, for Case # 94-1926, 94-1927, and 95-795, Lee County, Florida.”

        Gray, 910 So.2d at 868-69.

      .§ 945.25(1), Fla. Stat. (2005).

      . Id.

      . § 945.25(2), Fla. Stat. (2005).

      . § 944.17(4), Fla. Stat. (2005).

      . § 944.17(5)(a), Fla. Stat. (2005).

      . § 944.605, Fla. Stat. (2005).

      . § 945.04(2), Fla. Stat. (2005).

      .If FDOC's record had been erroneous, defendant could have disputed the inaccuracy by producing contrary evidence. See Love v. Garcia, 634 So.2d 158, 160 (Fla.1994) (holding that burden is on party opposing introduction of records to overcome presumption of accuracy).

      . Because this evidentiary fact relates to criminal history — and not to guilt for the offense — it does not involve a confrontation of witnesses issue under the Sixth Amendment.


author: NORTHCUTT, Judge.

text:
    Heather CIAMBRONE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2205.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 2006.
    Rehearing Denied Oct. 6, 2006.

      James Marion Moorman, Public Defender, and Michael Ufferman, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

In 1995 a grand jury indicted Heather Ciambrone for first-degree felony murder in connection with the death of her son. She was declared incompetent for trial and committed to the Florida State Hospital for treatment. Ciambrone eventually regained her competency, and in 2001, she agreed to plead no contest to second-degree murder in exchange for a sentence of fifty-five years’ imprisonment. Subsequently, she sought to withdraw her plea in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. She alleged that her plea was involuntary and that counsel had been ineffective in several ways. The circuit court denied her motion after an evidentiary hearing, and she has appealed. We agree with Ciambrone’s contention that her plea was involuntary due to her counsel’s incorrect advice regarding the amount of time she might expect to serve in prison under the gain time rules then in effect. Accordingly, we reverse with directions to permit her to withdraw her plea. The other issues Ci-ambrone raises have no merit and we will not discuss them further.

Ciambrone’s son died in May 1995. Her eligibility for gain time is thus determined under section 944.275(4)(c)(2), Florida Statutes (1993), which states:

For sentences imposed for offenses committed on or after January 1, 1994, for offenses which are, were, or would have been ranked on the offense severity chart in s. 921.0012 in:
2. Levels 8, 9, and 10, up to 20 days of incentive gain-time, which shall be credited and applied monthly.

The evidence at the rule 3.850 hearing established that a key consideration in Ci-ambrone’s decision to accept the State’s plea offer was her ability to shorten her imprisonment by earning gain time. Her trial counsel testified that Ciambrone initially rejected the State’s fifty-five-year offer because she did not want to spend that much time in prison. Counsel telephoned the Department of Corrections to ask how much time an inmate sentenced to fifty-five years’ imprisonment for a crime committed in May 1995 might actually serve. A DOC employee told him that, with gain time, the inmate would serve between sixteen and eighteen years. Counsel relayed this information to Ciambrone. At the same time, he cautioned her that the information might not be accurate, that the award of gain time was strictly the prerogative of the DOC, and that she was not guaranteed a particular sentence.

Ciambrone testified that she had first rejected the State’s offer of fifty-five years’ imprisonment because, at her age, she saw no difference between that sentence and life imprisonment, the penalty she faced if she were convicted after a trial. But when counsel related the DOC employee’s advice that her actual imprisonment might amount to around sixteen years, she began to change her mind. Counsel reminded her that she would receive six years of credit for her pretrial confinement. Thus, Ciambrone believed that she could be eligible for release from prison after about ten years. She testified that this possibility was the most significant factor in her decision to enter the plea agreement.

We note that confusion about the effect of gain time apparently was wide-spread at the time of Ciambrone’s plea. Section 944.275(4), Florida Statutes (2001), set forth many different ways to calculate the time that could be awarded, based on the date of the prisoner’s crime and the severity of the offense. According to testimony at the postconviction hearing, during that period it was not uncommon for defense attorneys to ask the DOC for estimates of the time their clients might serve based on particular sentences. See, e.g., Jones v. State, 834 So.2d 226 (Fla. 2d DCA 2002) (noting that trial counsel testified at the defendant’s rule 3.850 hearing that she had telephoned the DOC to inquire about Jones’s eligibility for gain time). And, in fact, the prosecutor at Ciambrone’s rule 3.850 hearing thought that the information defense counsel had relayed to Ciambrone was accurate. After the initial hearing, the prosecutor contacted the DOC to ask how gain time was calculated. He then moved to reopen the evidentiary hearing so that a DOC representative could explain the rules and how the department computed gain time.

At the reopened hearing, a DOC correctional services administrator confirmed that Ciambrone was eligible for twenty days per month gain time based on a thirty-day month. See § 944.275(4)(c)(2), Fla. Stat. (1993). But this did not mean that she would serve only one-third of the imposed sentence. When a prisoner is first incarcerated, the DOC establishes a tentative release date based on the premise that he or she will serve every day of the sentence. The inmate must serve a month before receiving gain time for that month. The sentence is then reduced by the gain time awarded, and the inmate’s tentative release date is adjusted accordingly. In other words, the inmate earns gain time, and his or her release date is adjusted, month by month as the sentence is served. The DOC administrator determined that someone in Ciambrone’s position who was awarded the maximum gain time allowable would serve roughly sixty percent of the sentence. He confirmed that the department had no discretion to award Ciambrone gain time in an amount that could reduce her sentence to approximately sixteen to eighteen years’ imprisonment. Under the statute then in effect, the minimum sentence Ciambrone might serve if all applicable gain time were awarded was approximately thirty to thirty-three years.

In a thorough order, the postconviction court denied Ciambrone’s motion based on her responses to questions posed during her plea colloquy and on the testimony at the postconviction hearing. These established that Ciambrone had been given no promises when she entered her plea, she knew the award of gain time was in the discretion of the DOC, and she knew there was no guarantee that she would serve only sixteen years in prison. The court found that the record refuted Ciambrone’s claim, citing Johnson v. State, 736 So.2d 713, 714 (Fla. 2d DCA 1999), and Bond v. State, 695 So.2d 778, 779 (Fla. 1st DCA 1997). But neither of those cases involved an allegation that the defendant had been given misinformation about the time she might actually serve in prison. And the factors relied upon by the postconviction court do not refute the fact that Ciam-brone was given this misinformation and relied on it.

Both the Florida Supreme Court and this court have long recognized that a defendant may be entitled to withdraw a plea entered in reliance upon his attorney’s mistaken advice about sentencing or eligibility for gain time. State v. Leroux, 689 So.2d 235, 237 (Fla.1996); see also Cornett v. State, 922 So.2d 297, 298-99 (Fla. 2d DCA 2006); Sepulveda v. State, 909 So.2d 568, 571-72 (Fla. 2d DCA 2005); Trenary v. State, 453 So.2d 1132, 1133-34 (Fla. 2d DCA 1984).

Here, the record established that Ciambrone accepted the State’s plea offer because she believed that with gain time and credit for time served she could be eligible for release in as few as ten years. In fact, this was impossible; her minimum incarceration would be three times as long as she believed. Ciambrone’s trial counsel received the misinformation directly from the DOC and then passed it along to her in good faith. This is not a case involving a claim of ineffective assistance of counsel and thus our analysis is not governed by the standards announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ciambrone’s counsel effectively and thoroughly obtained information about the expected length of her sentence. Although counsel cautioned Ci-ambrone that the information might not be accurate, the record furnishes no basis for concluding that it was unreasonable for her to rely on the word of the very agency charged with administering the gain time statute. The record establishes that Ci-ambrone’s plea was not an informed one. The DOC’s undisputed miscalculation was sufficiently large that Ciambrone’s plea must be treated as involuntary under Florida Rule of Criminal Procedure 3.850(a)(5). She is entitled to withdraw it. See Cornett, 922 So.2d at 299.

We reverse the denial of Ciambrone’s rule 3.850 motion. On remand, the court shall give Ciambrone the opportunity to withdraw her plea. If she does so, neither she nor the State will be bound by the plea agreement. Either side may pursue new plea negotiations or proceed to trial. We note that if Ciambrone is convicted after trial, she risks being sentenced to a longer term of imprisonment than she is presently serving. See Goins v. State, 889 So.2d 918, 919 (Fla. 2d DCA 2004).

Reversed and remanded.

ALTENBERND and CANADY, JJ., Concur.


text:
    Stacy STINSON, Appellant, v. John L. WINN as Commissioner of Education, Appellee.
    No. 1D06-0053.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2006.
    Rehearing Denied Oct. 3, 2006.
    Mary F. Aspros of Meyer and Brooks, P.A., Tallahassee, for Appellant.
    Ron Weaver of the Law Office of Ron Weaver, Douglasville, GA, and Ronald G. Stowers, Florida Department of Education, Tallahassee, for Appellee.
   PER CURIAM.

Stacy Stinson, a teacher in the Brevard County School District, appeals from a final order of the Education Practices Commission suspending her teaching certificate for two weeks and placing her on probation for three years. We conclude that the Commission improperly rejected or modified a number of the pivotal factual findings and legal conclusions in the administrative law judge’s recommended order. Accordingly, we reverse.

In early 2005, the Commission filed an administrative complaint alleging that Stinson had impermissibly provided answers and other inappropriate assistance to students during the March 2003 Florida Comprehensive Assessment Test (“the FCAT”). Forty-two students’ test scores were ultimately invalidated because of the alleged improper assistance. Following a formal administrative hearing, the administrative law judge rejected as not credible the testimony of all but one of the Commission’s student witnesses, all of who had claimed that Stinson had helped them on the FCAT. The judge accepted as credible the testimony of Stinson’s lone student witness, who contradicted the testimony of the Commission’s witnesses. Based on this witness’ testimony, the judge ruled that the Commission had not proven the allegations in the complaint by clear and convincing evidence. He recommended that the complaint be dismissed, that a final order be entered finding Stinson not guilty of the violations, and that no penalty be imposed against her teaching certificate.

Subsequently, the Commission held a hearing and entered a final order. In its final order, it rejected or modified a number of the judge’s findings of fact and conclusions of law. The Commission found that the testimony of its own student witnesses met the clear and convincing standard of proof and it rejected the judge’s factual findings as not supported by competent substantial evidence. On this basis, it rejected the judge’s recommendation.

We agree with Stinson that the Commission improperly modified or rejected the judge’s primary findings of fact. An agency must accept the administrative law judge’s factual findings unless they are not supported by competent substantial evidence. See § 120.57(1)(7,), Fla. Stat. (2003); Strickland v. Fla. A & M Univ., 799 So.2d 276 (Fla. 1st DCA 2001). In the present case, there was competent substantial evidence to support the judge’s findings of fact, notwithstanding the fact that this evidence consisted of the testimony of only one witness, the sole student who testified for Stinson. Credibility of the witnesses is a matter that is within the province of the administrative law judge, as is the weight to be given the evidence. The judge is entitled to rely on the testimony of a single witness even if that testimony contradicts the testimony of a number of other witnesses.

If, as in this case, the issue is primarily one of the weight or credibility of the witnesses, it does not matter that there might be competent substantial evidence to support a contrary view of the evidence. See F.U.S.A., FTP-NEA v. Hillsborough Comm. Coll., 440 So.2d 593 (Fla. 1st DCA 1983). Because the judge’s findings were supported by competent substantial evidence, the Commission could not reject or modify them as was done in the Final Order.

For these reasons, we reverse the final order of the Education Practices Commission and remand the case for the entry of an order dismissing the complaint and finding Stinson not guilty, consistent with the recommendation of the administrative law judge.

Reversed.

BENTON, PADOVANO, and LEWIS, JJ., concur.


author: WOLF, J.

text:
    James W. DAVIS, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3156.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2006.
    Rehearing Denied Oct. 3, 2006.

      Appellant, pro se.
    Charlie Crist, Attorney General; Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

James W. Davis appeals the order denying his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, based on ineffectiveness of appellant’s counsel. Appellant’s claims are refuted by the record of the plea colloquy, as well as his own post-conviction motion; we affirm. See Nixon v. State, 932 So.2d 1009, 1017 (Fla.2006).

First, while suggesting his counsel was ineffective for failing to adequately prepare and research exculpatory evidence available to him prior to trial, the appellant does not and cannot assert he was unaware of his counsel’s alleged deficiency at the time he entered his plea. In fact, the appellant concedes that prior to the entry of his plea, while under the effects of his medication, he argued adamantly with his lawyer regarding his counsel’s failure to properly prepare his case. The appellant specifically mentions suggesting to his counsel prior to the entry of his plea that (1) the bite marks be analyzed for a match to his teeth (to see if it matches his teeth); (2) his medications be analyzed for side effects; (3) his ability to engage in sexual intercourse based on health concerns be investigated; (4) his counsel investigate the identity of a woman known as Lisa Davis; and (5) his counsel investigate the co-defense of voluntary intoxication. Thus, the appellant cannot assert that his plea was not knowingly and voluntarily entered where he concedes he was well aware of his counsel’s deficiencies prior to the entry of his plea.

In addition, at his plea colloquy, the appellant stated in pertinent part,

THE COURT: Now, is anybody forcing you to enter this plea against your will?
THE DEFENDANT: No, sir.
THE COURT: Have you had any alcohol or drugs or medications within the last 24 hours?
THE DEFENDANT: Just some medication.
THE COURT: And what type of medication?
THE DEFENDANT: Antidepressant medication
THE COURT: Does that affect your ability to understand anything that’s being discussed with you?
THE DEFENDANT: No, sir.
THE COURT: Does it cause you to hallucinate or anything such as that?
THE DEFENDANT: No, sir.
THE COURT: Are you satisfied with his [your attorney’s] services?
THE DEFENDANT: Yes, sir.
THE COURT: Are you doing this because you think it is in your best interest?
THE DEFENDANT: Yes, sir.

An appellant is not entitled to go behind sworn representations made to the court in a postconviction proceeding. See Stano v. State, 520 So.2d 278, 280 (Fla.1988). In the instant case, the appellant clearly states on record that he was satisfied with his attorney’s services. Thus, he cannot now assert that at the time of the plea’s entry he had serious doubts about his attorney’s effectiveness. In his motion, the appellant appears to assert that he was unable to speak out about his concerns due to the effects of his antidepressant medication, Celexa. However, this claim is likewise refuted by the record.

Not all plea colloquies will be sufficient to refute an allegation that a plea was involuntarily entered due to the defendant’s use of medication at the time of the plea’s entry. See Iacono v. State, 930 So.2d 829 (Fla. 4th DCA 2006). However, where the facts show that (1) a trial court sufficiently inquired into the appellant’s use of medication and asked specific questions about the medication’s affect on the defendant, and (2) the defendant appeared lucid during the plea colloquy, the defendant’s affirmations that his medication did not affect the knowing and voluntary nature of his plea will refute a claim of ineffective assistance of counsel for failure to object to the plea’s entry. Id. Here, the trial court inquired about the appellant’s use of medication and the effects of the medication on his ability to understand his plea or the plea discussion. The appellant denied any ill effects and throughout the course of the plea colloquy appeared lucid. As such, the appellant’s claim regarding the effects of his medication on his ability to enter a knowing and voluntary plea is conclusively refuted by the record, and the trial court correctly denied the claim summarily.

Further, many of appellant’s claims are contradicted by his own allegations. For example, he admits within his motion that he ran into the victim, became entangled with her, pulled his knife, and may have accidentally cut her. It is, therefore, unclear how any evidence of bite marks or forensics can be pertinent where the appellant admits his involvement in the scuffle but challenges his intent to commit the charged offenses.

Affirm.

KAHN, C.J., concurs; BENTON, J., dissents.

      . We would also note that the trial court held a limited evidentiary hearing without addressing several of the specific claims discussed in appellant's memorandum which the trial court summarily denied. However, during the course of the evidentiary hearing, the appellant’s former attorney stated that the appellant appeared lucid and competent to enter a plea.


text:
    Louis REED, Jr., Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, State of Florida, et al., Appellee.
    No. 1D06-2774.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2006.
    Rehearing Denied Sept. 28, 2006.
    Louis Reed, Jr., pro se, Appellant.
    Charlie Crist, Attorney General; Rosa Carson, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 27, 2006, the Court has determined that the notice of appeal was not filed within 30 days of rendition of the order on appeal as required by Florida Rule of Appellate Procedure 9.110(b). Accordingly, the appeal is dismissed as untimely.

DAVIS, POLSTON, and HAWKES, JJ., concur.


text:
    Laray SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2544.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2006.
    Rehearing Denied Sept. 28, 2006.
    Laray Smith, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as untimely. See Fla. R.App. P. 9.141(c)(4)(A).

DAVIS, POLSTON, and HAWKES, JJ., concur.


author: GRIFFIN, J.

text:
    Geovanny CONCEPCION, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2428.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.
    Rehearing Denied Oct. 6, 2006.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Geovanny Osorto Concepcion [“Concepcion”] appeals his convictions for attempted felony murder and carjacking. He asserts that the trial court erred by denying two special jury instructions he requested. We agree that it was error not to give the requested “afterthought instruction.”

Concepcion was charged by information with carjacking and attempted first-degree premeditated murder or attempted felony murder based on robbery or burglary. The charges were based on an incident that occurred on July 18, 2004, during which Concepcion stabbed his girlfriend and then stole her car and her money. Trial evidence demonstrated that Concepcion and his girlfriend, Ilsi Deleado, were traveling to Naples from Jacksonville. Concepcion was a passenger in Deleado’s car. Deleado decided to return to Jacksonville and began heading north on 1-95. They were arguing, and Deleado pulled over onto the shoulder of 1-95 to get out of the vehicle. According to Deleado, Concepcion told her that she would die on the road if she stopped the car. She tried to get out of the driver’s side door, but Concepcion pulled her hair to prevent her from exiting. She then climbed over Concepcion. As she did, he began stabbing her with a kitchen knife. She escaped, but Concepcion chased her and again stabbed her multiple times.

Numerous witnesses observed the event. They stopped and provided assistance to Deleado. After help arrived, Concepcion got into Deleado’s Toyota Camry and fled. He was later apprehended in St. John’s County. At the time of his arrest, he was walking away from the car in an empty lot. He had blood on his hands and clothes and his pocket contained $510.00 in cash. De-leado’s purse and wallet, which had blood on them, were found inside the car. De-leado testified that she had earlier cashed her paycheck and the $500 was in her purse. Following deliberations, Concepcion was found guilty of attempted felony murder and carjacking and was sentenced to thirty years of incarceration.

Concepcion asked for a special jury instruction as follows:

One of the elements of the offense of Carjacking, which must be proved beyond and to the exclusion of a reasonable doubt, is that the accused used force in the taking of the property of another. If the evidence shows that any force used by the defendant was done with the primary motive of committing some other offense and that the motive for the use of force was for a reason not associated with the taking of property, then the offense of Carjacking has not been proved and you must find the defendant not guilty of that charge.
KINSLER V. STATE, 873 So.2d 551 (5th D.C.A.2004)[sic].

Concepcion argued that the evidence was such that the jury could conclude that the taking of the vehicle was not the motive behind the attack on Deleado, but that she was attacked for other reasons and the theft of the vehicle was simply an “afterthought.” He contended that this theory, if believed by the jury, would preclude his conviction for carjacking, since the force and violence necessary to the offense had to be done to effectuate the taking. The trial court denied this instruction on the ground that the standard instructions were adequate.

In a criminal proceeding, the trial court’s discretion in instructing the jury is circumscribed because a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support this theory, and so long as the theory is recognized as valid under the law of the state. Worley v. State, 848 So.2d 491, 492 (Fla. 5th DCA 2003). In Stephens v. State, 787 So.2d 747 (Fla.2001), the Florida supreme court said:

While a defendant is entitled to have the jury instructed on his theory of defense, the failure to give special jury instructions does not constitute error where the instructions given adequately address the applicable legal standards.... Thus, [the defendant] has the burden of demonstrating that the trial court abused its discretion in giving standard instructions.

Id. at 755-56 (citations omitted). In order to be entitled to receive a special jury instruction, the defendant must prove:

(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.

Id.

Concepcion relies on Kinsler v. State, 873 So.2d 551 (Fla. 5th DCA 2004), where the issue on appeal was whether the taking of property after a premeditated murder could support a conviction of robbery with a firearm, where the alleged motive for the murder was not the taking of the property. The evidence presented by the state established that the motive of Kinsler for killing his cousin, the victim, was that he was angry with the victim’s father because Kin-sler’s former girlfriend and his child were living with the victim’s father. Evidence was also presented that Kinsler took the victim’s automobile and $80.00 from his pocket, and later sold some of the parts of the car to acquire money to purchase illegal drugs. Based on this evidence, the defendant argued that the taking of the property was an “afterthought,” which meant that the crime of robbery had not been proved by the state because the use of force or violence in the course of the taking was required. In reversing Kin-sler’s conviction for robbery, this court relied in large part on Beasley v. State, 774 So.2d 649 (Fla.2000), which offered the following analysis:

When an “afterthought” argument is raised, the defendant’s theory is carefully analyzed in light of the entire circumstances of the incident. If there is competent, substantial evidence to uphold the robbery conviction, and no other motive for the murder appears of record, the robbery conviction will be upheld. Conversely, in those cases where the record discloses that, in committing the murder, the defendant was apparently motivated by some reason other than a desire to obtain the stolen valuable, a conviction for robbery (or the robbery aggravator) will not be upheld.

Beasley, 774 So.2d at 662. Under Beasley, where the motive for the murder is not the taking of property, the crime of robbery is not made out with respect to a later taking.

Davis v. State, 922 So.2d 438 (Fla. 5th DCA 2006), also involved the trial court’s refusal to give an afterthought instruction, resulting in the defendant’s conviction of both first-degree (premeditated and felony) murder and robbery. At trial, the defendant sought and was denied an instruction on taking property of the victim as an afterthought, which constituted theft, as opposed to taking property in the course of a robbery. The basis of the request was that Davis told an investigator that the killing resulted from a drug deal gone bad, not a robbery. On appeal, this Court held that the trial court abused its discretion in denying the request because there was some evidence presented to support his theory.

Here, the trial court erred in refusing the instruction as there was evidence that Concepcion took the car or the money as an “afterthought” rather than stabbing the victim to accomplish the robbery or carjacking. Deleado and Concepcion had been arguing the day before the incident occurred and on the day of the incident. The couple was already separated and their relationship was strained. Deleado claimed that Concepcion became upset because she turned the car around to head back to Jacksonville. She stated that he told her if she stopped the car, she was going to die there. She also testified that he told her if he could not have her no one could. Concepcion not only stabbed De-leado multiple times inside the vehicle, but he failed to drive off when she fled the vehicle. Instead, he pursued her outside the vehicle and continued to stab her. The force used far exceeded what was necessary to obtain the vehicle.

Concepcion is entitled to a new trial on the carjacking charge.

AFFIRMED in part. REVERSED and REMANDED.

PALMER and LAWSON, JJ., concur.

      . We find no error in failing to give the “claim of right” instruction.

      . Although they never married, Concepcion and Deleado were a couple for thirteen years, but were separated at the time of the incident. They have two children together.

      . The elements of carjacking, a first-degree felony, are that: (1) the defendant took a motor vehicle from the person or custody of the victim; (2) the defendant used force, violence, assault, or putting in fear was used in the course of the taking; and (3) the taking was done with the intent (a) to temporarily or permanently deprive the victim of his right to the motor vehicle or any benefit from it or (b) to appropriate the motor vehicle of the victim to his own use or to the use of any person not entitled to it. See Fryer v. State, 732 So.2d 30, 33 n. 1 (Fla. 5th DCA 1999) (citing Standard Jury Instructions in Criminal Cases, 697 So.2d 84 (Fla.1997); § 812.133, Fla. Stat. (1997)). The statutory elements of robbery consist of a taking of money or property from the person or custody of another; by force, violence, assault or putting in fear; with intent to deprive the person or the owner of the money or other property. See Hamrick v. State, 648 So.2d 274, 276 (Fla. 4th DCA 1995).


author: SHEPHERD, J.

text:
    Mark FEINSTEIN, Appellant, v. NEW BETHEL MISSIONARY BAPTIST, etc., et al., Appellees.
    No. 3D05-1418.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.

      Dubow, Dubow <& Wallace and Kelly A. Gibson and Jason B. Dubow, Dania Beach, for appellant.
    Glenn R. Miller, North Miami Beach, for appellees.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   SHEPHERD, J.

Mark Feinstein appeals a final judgment of foreclosure in which he was denied a pre-payment fee on the accelerated debt being foreclosed. Because the promissory note expressly contemplated the imposition of a pre-payment fee upon acceleration, we conclude the trial court erred in not including the fee in the final judgment. Accordingly, we reverse the final judgment under review.

In 2002, New Bethel Missionary Baptist Church executed a promissory note and mortgage to General Mortgage Associates, Inc. in the sum of $308,200. Feinstein is the successor to General Mortgage’s interest in the note and mortgage. On September 1, 2004, New Bethel defaulted on its monthly payments. The pertinent portion of the “Default; Acceleration” provision of the promissory note reads:

This note is secured by the Mortgage and other Security Documents. If any payment required to be made by the terms of this note ... is not paid on or before the due date therefor ..., the whole of the unpaid principal hereof, together with accrued interest and outstanding default interest, and in addition, any prepayment fee shall ... become due and payable.
Acceleration of the debt as set forth in this paragraph constitutes an involuntary prepayment for which the prepayment fee provided for elsewhere herein shall be due and payable. This clause specifically was bargained for as consideration for the extension of credit based upon the interest rate granted by lender.

(emphasis added).

The promissory note prohibited partial pre-payments, but permitted pre-payment in full under a declining rate schedule during the first four years. If New Bethel had sought to pre-pay in September 2004, the required pre-payment fee was four percent of the original principal balance, or $12,328. Of course, New Bethel did not seek to pre-pay, but rather defaulted on the mortgage.

We find that an express provision of a promissory note that calls for a prepayment fee in the event of acceleration is enforceable in this state. We are unable to locate a Florida case that expressly so holds, but both the Florida Supreme Court and this court have indicated that such would be its holding if presented with our facts. Florida Nat’l Bank v. Bankatlantic, 589 So.2d 255, 258 (Fla.1991)(“We endorse the general rule that unless otherwise specifically provided for in the note, the lender cannot upon the lender’s acceleration also collect the prepayment penalty.”)(emphasis added); Gen. Mortgage Assoc. v. Campolo Realty & Mortgage Corp., 678 So.2d 431, 431 (Fla. 3d DCA 1996)(holding that pre-payment clause at issue in note and mortgage “does not ‘specifically’ provide for recovery of the penalty after and in addition to the ‘lender’s acceleration’ ”); see also Begonia Corp. v. Nam Fin. Corp., 710 So.2d 577 (Fla. 4th DCA 1998)(applying the general rule enunciated in Florida Nat’l).

As the Superior Court of New Jersey, Appellate Division stated when squarely faced with the issue of enforceability of a provision that specifically calls for a prepayment penalty upon acceleration:

While there is a certain ineluctable logic to the statement that payment after acceleration cannot be considered prepayment, we can perceive no reason why the debtor should be relieved of the terms of the contract freely entered into. The terms were clear and unambiguous, the parties clearly experienced and sophisticated in loan transactions of this type. The certainty of the remedy provided by the clause undoubtedly affected the pricing of the loan. If we were to deem the clause unenforceable, we would be providing defendants with a better contract than they were able to negotiate for themselves; we decline to do so.

Westmark Commercial Mortgage Fund TV v. Teenform Assoc., L.P., 362 N.J.Super. 336, 827 A.2d 1154, 1161 (2003)(internal citations omitted).

In reaching this conclusion, we have not overlooked the fact that Feinstein satisfied the judgment on appeal. The satisfaction was executed by Feinstein’s counsel and recorded between the date of the final judgment and the date scheduled for the foreclosure sale. Apparently, New Bethel consummated an eleventh hour refinancing to save the property. Feinstein accordingly was required by law to satisfy the judgment. See § 701.04(1), Fla. Stat. (2004)(requiring that a person receiving full payment of the judgment lien of a mortgage must satisfy the judgment of record within sixty days of receipt of payment). In fact, under the law in effect at the time, a person who failed to satisfy of record the judgment lien of a mortgage within thirty days after receiving payment and a written demand was guilty of a second degree misdemeanor. See § 701.05, Fla. Stat. (2004)(repealed 2005).

It is the general rule in this state that if a defendant who has suffered the entry of an adverse money judgment against him voluntarily pays the judgment, the case is moot; but, if the payment is involuntary, it does not result in a waiver of the right to appeal. Ronette Commc’n Corp. v. Lopez, 475 So.2d 1360 (Fla. 5th DCA 1985); see also Whipple v. JSZ Fin. Co., 717 So.2d 608 (Fla. 4th DCA 1998)(ex-ecution upon a Texas judgment registered in Florida did not moot debtor’s challenge to the judgment on ground of lack of personal jurisdiction). Of course, this case involves a plaintiff who has satisfied a judgment. The general rule may not apply to a plaintiff who satisfies a judgment. See Florida Nat’l, 589 So.2d at 257 (addressing the merits where “Bankatlantic agreed to satisfy the mortgage in exchange for payment of all outstanding principal, default interest, advances, attorneys fees and costs after obtaining Gordon’s agreement to escrow an amount equal to the prepayment penalty and anticipated attorney’s fees”). However, we need not reach that issue because it is clear Feinstein was required by law to satisfy the judgment, placing this case in the “involuntary” category.

For these reasons, we reverse the final judgment of foreclosure entered below with directions that it be amended and reinstated to include the prepayment fee.

Reversed with directions.


text:
    William Michael SETTLES, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3336.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2006.
    James F. Cummins, Inverness, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Carter, 835 So.2d 259, 262 (Fla.2002); Blackshear v. State, 771 So.2d 1199, 1201 (Fla. 4th DCA 2000).

THOMPSON, PALMER and LAWSON, JJ., concur.


author: WHATLEY, Judge.

text:
    John F. BEMBEN and Dorothy Fine, Appellants, v. Gregory M. CHOCK and Judith K. Chock, Jeanne McGill, Cynthia Lee, and Marco Island Real Estate, Appellees.
    No. 2D05-5889.
    District Court of Appeal of Florida, Second District.
    Sept. 6, 2006.
    Rehearing Denied Oct. 6, 2006.

      Brian S. Dervishi of Weissman, Dervi-shi, Borgo & Nordlund, P.A., Miami, for Appellants.
    Jana Jay Malen of Stephen R. Ostrow, P.A., Marco Island, for Appellees.
   WHATLEY, Judge.

John F. Bemben and Dorothy Fine (the Sellers) appeal the final summary judgment entered in favor of Gregory M. Chock and Judith K. Chock (the Buyers) in the Buyers’ action against them for specific performance of a sales contract for a vacant lot. We reverse because the trial court lacked jurisdiction to enter the judgment.

The final summary judgment is a nullity because the trial court entered it during the pendency of the Sellers’ interlocutory appeal of an order denying their motion to dissolve the Buyers’ lis pendens. See Fla. R.App. P. 9.130(f) (“In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.”); Brewer v. Solovsky, 899 So.2d 497 (Fla. 4th DCA 2005); Katz v. NME Hosps., Inc., 791 So.2d 1127, 1128 (Fla. 4th DCA 2000) (noting that committee notes to rule 9.130(f) point out that the lower tribunal is divested of jurisdiction to enter a final order during a nonfinal appeal); Imperatore v. NationsBank of Fla., N.A., 677 So.2d 933 (Fla. 4th DCA 1996).

We quash the final summary judgment and remand for further proceedings.

Reversed and remanded.

FULMER and WALLACE, JJ., Concur.

      . Because the trial court lacked jurisdiction to enter a final order, we are unable to address the merits of the issues raised in this appeal. However, we note that based on the briefing, it appears that the parties recognize that the trial court misstated the amount of the purchase price in the final summary judgment and may have erred in dismissing the counter-petition with prejudice.


text:
    Robert C. SIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3152.
    District Court of Appeal of Florida, First District.
    Sept. 6, 2006.
    Rehearing Denied Oct. 5, 2006.
    Robert C. Simmons, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ALLEN, WEBSTER, and DAVIS, JJ., concur.


text:
    Timothy BLACK, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-4157.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2006.
    Timothy Black, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999).

ALLEN, WEBSTER, and DAVIS, JJ., concur.


text:
    Jaime H. SILVA, Petitioner, v. M.L. RATHMANN, Warden, Florida State Prison, and James R. McDonough, Secretary, Florida Department of Corrections, Respondents.
    No. 1D06-1988.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2006.
    Jaime H. Silva, pro se, Petitioner.
    Charlie Crist, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

KAHN, C.J., BENTON, and LEWIS, JJ., concur.


text:
    Tom MARTIN, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, et al., Respondents.
    No. 1D06-3362.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2006.

      Tom Martin, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005).

ERVIN, POLSTON, and HAWKES, JJ., concur.


text:
    Jacquelyn DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3514.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2006.
    Jacquelyn Davis, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. RApp. P. 9.141(c)(4)(A).

ERVIN, POLSTON, and HAWKES, JJ., concur.


text:
    Donna WHITFIELD, Appellant, v. ESCAMBIA COUNTY SCHOOL BOARD and Risk Management, Appellees.
    No. 1D06-3799.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2006.
    Daniel Stewart of Daniel Stewart, P.A., Pace, for Appellant.
    Joseph L. Hammons, Pensacola, for Ap-pellees.
   PER CURIAM.

DISMISSED. See Allen v. Live Oak Ford Mercury, 647 So.2d 1060 (Fla. 1st DCA 1994).

KAHN, C.J., BENTON, and LEWIS, JJ., concur.


text:
    Jason E. WORLD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4238.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2006.

      Jason E. World, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ERVIN, POLSTON, and HAWKES, JJ., concur.


text:
    Jean Robert GAETAN, Appellant, v. GEICO INDEMNITY COMPANY, Appellee.
    No. 3D02-2016.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 2006.
    Diane H. Tutt (Plantation), and Sharon Degnan, Fort Lauderdale, for appellant.
    Shutts & Bowens, and Frank A. Zacherl, Joey E. Schlosberg, Colleen A. Hoey, and Suzanne Youmans Labrit, Miami, for ap-pellee.
    Before GERSTEN, GREEN, JJ., and LEVY, Senior Judge.
   PER CURIAM.

Affirmed. See Dade County Police Benev. Ass’n, v. Metro. Dade County, 452 So.2d 6 (Fla. 3d DCA 1984).


text:
    Quar’Marden Q. BRAND, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-4271.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2006.
    Quar’Marden Q. Brand, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Brand v. State, 919 So.2d 440 (Fla. 1st DCA 2005).

ERVIN, POLSTON, and HAWKES, JJ., concur.


author: FULMER, Chief Judge.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Petitioner, v. Dan K. RICHARDSON and Yueh-Chao Richardson, Respondents.
    No. 2D06-1072.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 2006.
    R.G. (Mack) McCormick, Jr., of Haas, Dutton, Blackburn, Lewis, Longley and Lee, P.L., Tampa, for Petitioner.
    Bruce A. Aebel of Fowler White Boggs Banker P.A., Tampa, for Respondents.
   FULMER, Chief Judge.

The petition for writ of certiorari is denied. With respect to that portion of the trial court’s order addressing Request for Production No. 5, which directs Citizens Property Insurance Corporation to provide all allegedly privileged documents to the trial court for an in camera inspection, we conclude that certiorari relief is premature. See Cape Canaveral Hosp. v. Leal, 917 So.2d 336, 339-40 (Fla. 5th DCA 2005).

Denied; remanded for further proceedings.

WHATLEY and WALLACE, JJ., Concur.


text:
    John PETTWAY, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS; Mr. David W. Mabardy, personally, and in his capacity as Classification Officer at Apalachee Correctional Institution-East Unit; Mr. Barry Z. Rhodes, personally, and in his capacity as Programs Director of the Florida Department of Corrections, et al., Respondents.
    No. 1D06-3386.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2006.
    John Pettway, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005).

ERVIN, POLSTON, and HAWKES, JJ., concur.


author: HAZOURI, J.

text:
    BARBARA G. BANKS, P.A., a Florida Professional Association, Appellant, v. THOMAS D. LARDIN, P.A., a Florida Professional Association and Thomas D. Lardin, Esq., Appellees.
    No. 4D05-3911.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.

      Franklin L. Zemel and John M. Cooney of Arnstein & Lehr, LLP, Fort Lauder-dale, for appellant.
    Warren B. Kwavnick and David F. Coo-ney of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Fort Lauder-dale, for appellees.
   HAZOURI, J.

On March 11, 2005, appellant, Barbara G. Banks, P.A. (“Banks, P.A.”), filed a complaint against appellees, Thomas D. Lardin, P.A. (“Lardin, P.A.”) and Thomas Lardin (“Lardin”), individually, for breach of their joint venture agreement, declaratory relief to determine Banks, P.A.’s, rights under the agreement, and unjust enrichment. Appellees responded to the complaint by filing a motion for summary judgment asserting that the alleged breaches occurred before March 11, 2001, four years before the complaint was filed. As a result, the action on the oral agreement was barred by the four-year statute of limitations in section 95.11(3)(k), Florida Statutes (2005). The trial court granted the motion finding that Banks, P.A.’s, cause of action accrued when appellees repudiated the contract on September 27, 1999, and was, therefore, barred by the statute of limitations. We disagree with the trial court’s conclusion and reverse and remand for further proceedings.

In 1986, Banks, P.A., and Lardin, P.A., law firms in South Florida, began a relationship in which they cooperated in the origination, processing, institution, settlement and trial of personal injury and wrongful death actions for their clients. On January 26, 1991, the daughter of a long-term client of Banks, P.A., was killed in an automobile accident and the client contacted Banks, P.A., for representation in his potential actions arising from the accident. Banks (“Banks”) contacted Lar-din who met with her and the client. They all discussed the joint representation in which Banks, P.A., would develop the cases to obtain the greatest possible recovery and in the event any action proceeded to trial with respect to any potential defendant, Lardin would handle any trial. Banks and Lardin disclosed to the client that it was their practice to split equally any attorney’s fees earned but that this would not increase the total legal fees or costs due under the client’s contingency fee agreement with them. The client executed the contingency fee agreement with Banks, P.A., for representation in the claim for damages against any person, firm or corporation liable for the death caused by the accident.

While pursuing possible claims for the client including negligence claims against the drivers of the two vehicles involved in the collision and possible medical malpractice claims against the treating physicians, Banks also made sure that the vehicle in which the decedent was riding, a Hyundai Excel, was preserved as evidence for use in any future actions. In 1992, Banks settled cases against the decedent’s insurer for uninsured motorist benefits as well as against the insurer of the negligent drivers. Banks and Lardin split the contingent fees collected according to their agreement. The client also agreed to hold funds in escrow for a products liability case against Hyundai.

In March 1994, Lardin brought in out-of-state counsel after deciding he did not have the requisite skills to try a products liability case. On March 18, 1994, as a result of bringing in a third attorney, the joint venture agreement was amended. Banks, P.A., was to receive the first 20% of fees paid. Of the remaining 80%, 40% would be paid to out-of-state counsel and the remaining 40% would be split between Banks, P.A., and Lardin.

In April 1995, Banks, P.A., contributed $7,000 toward costs in the products liability case which Lardin accepted. After a week-long trial in February 1996, the jury returned a verdict for the defendants Hyundai Motor Company and Hyundai Motor America Corporation. The case went to trial under the retainer agreement between Banks, P.A., and the client. Lar-din advised Banks of the loss and that they would take an appeal. Lardin said he would keep her advised of the result.

The district court reversed and remanded the products liability case for a new trial which was scheduled for October and November of 1999. Because Banks and Lardin had a “falling out,” Lardin did not advise her of these events. She learned of the retrial on September 2, 1999, and filed a notice of appearance.

On September 27, 1999, Lardin responded to the notice of appearance by writing a letter to Banks in which he informed her that there had been an expensive trial and appeal and the reversal of the defense verdict was only on the issue of strict liability failure to warn. Lardin told Banks that he and the out-of-state co-counsel were unwilling to continue handling the case through trial if they had to pay a referral fee. He suggested that if Banks wanted to substantially contribute to the costs which had already reached $100,000, they could work out an equitable arrangement. Lardin and co-counsel offered to withdraw and allow Banks to make arrangements to try the case which was set for October. Lardin emphasized that although he and co-counsel had spent an incredible amount of time and money, prevailing was a long shot. He concluded, “I believe the prognosis for any positive cash flow is highly unlikely but, nonetheless, think we should have this discussion before, rather than after, a trial.” Lardin did not seek to strike Banks’s notice of appearance.

On November 5, 1999, the jury returned a verdict for the client against Hyundai for $6,500,000. The case was tried under the original retainer agreement. Upon learning of the verdict, Banks, P.A., retained counsel and filed a notice of charging lien. Although Lardin did not move to strike the notice of charging lien, he arranged for the client to execute a new retainer agreement which excluded Banks, P.A. Lardin did not disclose the new agreement to Banks and induced the client to breach the agreement with Banks, P.A.

The judgment against Hyundai was subsequently sustained on appeal and Lardin, P.A., retained the contingent fee. Banks, P.A., filed suit when appellees failed to split the fee as provided by their contract.

Appellees’ motion for summary judgment asserted that the majority of the alleged breaches occurred more than four years before the complaint was filed and as a result any action was barred by the four-year statute of limitations. § 95.11(3)(k), Fla. Stat. (2003). In particular, they assert that Banks, P.A., was aware that the agreement was terminated as of September 27, 1999, when Lardin sent the letter to Banks stating that he and co-counsel would not try the case and pay Banks a referral fee. In granting the motion for summary judgment, the trial court ruled that Banks, P.A.’s, cause of action accrued upon appellees’ repudiation of the contract on September 27, 1999, and the statute of limitations expired before the suit was filed in 2005. The trial court cited Hospital Mortgage Group v. First Prudential Development Corp., 411 So.2d 181 (Fla.1982), in support of its decision.

The trial court’s determination that ap-pellees are entitled to judgment as a matter of law is reviewable de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Banks, P.A., argues on appeal that Lardin, P.A., did not breach the contract until it refused to pay Banks, P.A., its share of the attorney’s fees collected on the products liability case as provided by their contract. Banks, P.A., concludes that the cause of action, therefore, did not accrue until the appeal process for the products liability case was completed and the attorney’s fees were paid to Lardin, P.A., in 2004. We agree.

Section 95.031, Florida Statutes, provides that “the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues.” Subsection (1) provides that “[a] cause of action accrues when the last element constituting the cause of action occurs.”

In Mosher v. Anderson, 817 So.2d 812 (Fla.2002), the supreme court held “that a cause of action on an oral loan payable upon demand accrues, and the statute of limitations begins to run, at the time when demand for payment is made.” Id. A cause of action on a contract accrues upon breach of the contract. Id. at 814 (citing Fradley v. Dade County, 187 So.2d 48 (Fla. 3d DCA 1966)). In this case, performance of the contract, i.e., payment to Banks, P.A., by Lardin, P.A., was not due until an attorney’s fee was collected. When Lardin, P.A., refused to pay, the breach occurred and the cause of action accrued.

Appellees argue that there was an anticipatory repudiation and, therefore, a breach, when Lardin sent his letter of September 27, 1999 to Banks. Appellees assert that under Florida law a repudiation of an agreement is a breach giving rise to an immediate cause of action and the commencement of the statute of limitations. In support of this argument, appel-lees cite several cases which we find distinguishable as they do not involve causes of action for breach of a contract. See Collinson v. Miller, 903 So.2d 221 (Fla. 2d DCA 2005); City of Hollywood v. Petrosino, 864 So.2d 1175 (Fla. 4th DCA 2004); Margolis v. Andromides, 732 So.2d 507 (Fla. 4th DCA 1999).

In Collinson v. Miller, 903 So.2d 221 (Fla. 2d DCA 2005), for example, the stepmother promised her husband she would retain properties she was to inherit from him and leave them to his children. After the husband died, she sold one of the properties, essentially repudiating the contract, placing the children on notice that she was not going to abide by the terms of the agreement. The children did not file suit until after the stepmother died, which was more than fifteen years after the repudiation. They filed a cause of action seeking to impress the property sold with a constructive trust. The court found recovery of the property was barred by the statute of limitations. Although the repudiation of the promise commenced the running of the statute of limitations, the court indicated this was because it was an action for a constructive trust on the real property, not an action for breach of contract. Generally, the breach of a contract requiring the promisor to make a will or devise does not accrue until the death of the promisor. See Tensfeldt v. Tensfeldt, 839 So.2d 720 (Fla. 2d DCA 2003).

Appellees also cite Abbott Laboratories, Inc. v. General Electric Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000), asserting that Banks, P.A.’s, cause of action accrued at the time of the repudiation, triggering the running of the statute of limitations, even though there was no incurrence of damages at that time. In Abbott, during the term of the parties’ contract, Abbott breached one provision of that contract by entering into a separate agreement with a customer. GECC did not file suit until more than five years later when Abbott breached the indemnification provision of the same contract. The district court held:

Under section 95.11(2)(b), the limitations period begins to run when “the last element constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (1997). The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages.... GECC’s injury was simultaneous with Abbott’s breach. GECC’s injury occurred when Abbot entered into the Goodgame agreement at which time nominal damages had been sustained.

Id. at 740 (citations omitted). Abbott is distinguishable from the instant case because the cause of action arose out of an actual breach of the contract. In the instant case there was no breach until Lar-din, P.A., obtained attorney’s fees and refused to share them with Banks, P.A.

The trial court relied upon Hospital Mortgage Group v. First Prudential Development Corp., 411 So.2d 181 (Fla.1982), in making its decision. The supreme court held that “a repudiation gives rise to a claim for damages by the nonbreaching party.” Id. at 182. However, Hospital Mortgage does not determine when the claim arises for purposes of applying the statute of limitations.

If we consider Lardin’s letter to be an anticipatory repudiation of the parties’ contract, the statute of limitations does not necessarily begin to run at that point. “[Wjhere one party, even before the time for performance of the contract has arrived, renounces it to the other party, the latter may act on the renunciation, treat the contract as broken, and sue before the time for performance.” Sullivan v. McMillan, 26 Fla. 543, 8 So. 450, 457 (1890). The supreme court’s reference to a party’s choice to act on the renunciation is explained in Perry v. Shaw, 152 Fla. 765, 13 So.2d 811 (1943). In what came to be the dissent after rehearing, Justice Chapman states:

Williston on Contracts Vol. 5 (Rev. Ed.) par. 1326, p. 3728, states the rule that any voluntary affirmative act which renders performance of a contract impossible, or apparently impossible, is an anticipatory breach, and upon the breach the party has a right, first, to rescind the contract altogether; second, to elect to treat the repudiation as a breach by bringing suit or by making some change in position; or, third, to await the time for performance of the contract and bring suit after that time has arrived. See par. 1337, p. 3753, supra.

Id. at 814.

Although the parties cite no Florida case dealing with anticipatory breach and the application of a statute of limitation, we find Piedmont Life Insurance Co. v. Bell, 103 Ga.App. 225, 119 S.E.2d 63 (1961), persuasive. In Piedmont, the appellate court applied the principle stated in Perry to a statute of limitations case. In Bell, the defendant orally agreed to employ the plaintiff full-time to solicit subscriptions for the remaining portion of the defendant’s initial 10,000 shares of authorized capital stock. Plaintiff was to complete the sales within two years and receive ten percent of the purchase price. If he succeeded, he would also be granted the exclusive right until January 1957 to solicit subscriptions to sell the remaining 90,000 shares at a stipulated price or such price as the defendant might fix. After the plaintiff timely sold the initially authorized capital stock, the defendant paid the agreed upon commission. The plaintiff continued his performance and began soliciting subscriptions for the remaining shares when, as of February 1, 1950, the defendant terminated its permission to the plaintiff to solicit subscriptions or sell any further shares. Starting in 1950, the defendant sold some of the 90,000 shares. The plaintiff remained ready to perform until January 1, 1957, when his rights under the contract ended.

In 1959, the plaintiff filed his complaint on the oral contract. The defendant filed a motion to dismiss asserting that the contract action was barred by the statute of limitations. The trial court denied the motion and the defendant appealed arguing that the cause of action arose on February 1, 1950, when it notified the plaintiff that he would not be permitted to sell any more subscriptions, and the complaint was not filed until 1959, long after the four-year statute of limitations expired. In response the plaintiff argued:

The plaintiffs theory is that under the doctrine of anticipatory breach, when the plaintiff was notified that the defendant would not further permit any sales of the stock by him, there was only a tender of a breach which did not give rise to a right of action unless and until accepted by the plaintiff, and since the plaintiff did not accept the breach, but on the contrary, stood ready to perform throughout the term of his exclusive sales rights, he could thus wait until the ultimate time set for performance and then bring the action, as was done in this case, and since the final expiration of his rights under the alleged contract did not occur until January 1, 1957, the action was brought seasonably.

Id. at 71. The appellate court determined that the plaintiff was permitted to “await the time for performance of the contract and then bring suit after the time has arrived,” citing to Williston on Contracts as was cited in Perry. Therefore, the statute of limitations did not begin to run until any payment was due the plaintiff upon the stock subscription sales.

Similarly, in the instant case, Lardin’s letter of September 27, 1999, informed Banks that Lardin and his out-of-state counsel did not want to work with Banks or pay her any fees which might be earned. Banks, P.A., did not accept this tender of a breach and continued as counsel for the client, ready to perform its obligations under the contract. Lardin also performed his obligations by trying the products liability case and eventually obtaining the contingency fee. Under the parties’ contract, when Lardin, P.A., was paid its fee, it was to finally perform by paying Banks, P.A., its share. Banks, P.A., brought this action within four years of Lardin, P.A.’s, non-performance.

The allegations in the complaint indicate it was the intention of the parties under the contract to divide the attorney’s fees upon their receipt by the attorney who obtained them. Lardin, P.A., was paid attorney’s fees for the products liability case in 2004. Banks, P.A., filed this suit in 2005, well within the four-year statute of limitations.

Banks, P.A., has also included a claim for unjust enrichment which the trial court also dismissed as barred by the statute of limitations. “To state a claim for unjust enrichment, a plaintiff must plead the following elements: 1) the plaintiff has conferred a benefit on the defendant; 2) the defendant has knowledge of the benefit; 3) the defendant has accepted or retained the benefit conferred; and 4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.” Della Ratta v. Della Ratta, 927 So.2d 1055, 1059 (Fla. 4th DCA 2006). Banks, P.A., alleged that Lardin, P.A., did not receive the benefit until it was paid the attorney’s fees in 2004. The cause of action accrued when this last element of the cause of action occurred and the suit was filed well within the statute of limitations.

Lardin argues that due to the inconsistency of the claims no cause of action under a quasi-contractual theory can exist where there is also alleged to be an express contract concerning the same subject matter. See Kovtan v. Frederiksen, 449 So.2d 1 (Fla. 2d DCA 1984); Tobin & Tobin Ins. Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975). Florida Rule of Civil Procedure 1.110(g) provides that “[a] party may also state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both.” The trial court did not grant summary judgment on this ground and we find, at this point in the proceedings, the trial court may not determine the inconsistency of the claims pled.

We reverse the trial court’s order granting summary judgment and remand for further proceedings.

Reversed and Remanded.

GUNTHER and MAY, JJ., concur.


text:
    Brent T. ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2537.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.
    Gary Kollin of Gary Kollin, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Brent T. Ellis, raises two issues on appeal: (1) whether the trial court erred in denying his motion for disqualification of the trial judge, and (2) whether he received ineffective assistance of counsel. We affirm the trial court’s denial of Ellis’s disqualification motion. However, we decline to rule on his ineffective assistance of counsel claim on direct appeal. This holding is without prejudice to raising the ineffective assistance of counsel claim in a Rule 3.850 post-conviction motion.

Affirmed.

STONE, SHAHOOD and HAZOURI, JJ., concur.


text:
    Desmond PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3613.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2006.
    Desmond Patterson, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As the notice of appeal was not timely filed, this appeal is hereby dismissed for lack of jurisdiction.

ALLEN, WEBSTER, and DAVIS, JJ., concur.


author: BROWNING, J.

text:
    William L. HARDIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4999.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2006.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

AFFIRMED. See Card v. State, 927 So.2d 200, 203 (Fla. 5th DCA 2006) (holding that, in a prosecution for driving while license revoked as a habitual traffic offender, a certified copy of the defendant’s driving record is not testimonial hearsay and thus the record’s admission did not implicate the defendant’s Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)); Sproule v. State, 927 So.2d 46, 47 (Fla. 4th DCA 2006) (same).

BARFIELD and VAN NORTWICK, JJ., concur.


text:
    Paul LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1503.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a finding that appellant violated his probation. We affirm the finding that appellant was competent at the VOP hearing. Hardy v. State, 716 So.2d 761 (Fla.1998) (where there is conflicting expert testimony regarding defendant’s competency, it is the trial court’s responsibility to resolve the factual dispute). We decline to address appellant’s contention that his counsel was ineffective for not raising the issue of his competency during the VOP hearing on this direct appeal.

Affirmed.

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Rebecca BETHEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1013.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Leonard v. State, 760 So.2d 114 (Fla.2000), Maddox v. State, 760 So.2d 89 (Fla.2000), and Robinson v. State, 373 So.2d 898 (Fla.1979).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    Eugene DOUSE, Jr., Petitioner, v. Ric L. BRADSHAW, Palm Beach County Sheriff, Respondent.
    No. 4D06-2064.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.

      Carey Haughwout, Public Defender, Daniel Cohen and Jennifer Marshall, Assistant Public Defenders, West Palm Beach, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

We grant the petition for writ of habeas corpus for the same reasons expressed in our opinion in Douse v. State, 930 So.2d 838 (Fla. 4th DCA 2006), with the same instructions contained in that opinion:

We therefore grant the writ to the extent of requiring an immediate hearing for the trial judge to select the appropriate section 916.17(2) option. While it may be advisable to have defendant evaluated once again for competency under section 916.12(2), the previous evaluating doctors both opined that this defendant was in need of treatment available only through commitment. We leave it up to the trial judge to decide whether to proceed on the current record or to order new evaluations.

We are aware that the trial court complied with this court’s direction in Douse v. State, 930 So.2d 838 (Fla. 4th DCA 2006), as outlined in our order of June 29, 2006, disposing of Douse’s petition in Case No. 4D06-2464.

GUNTHER, FARMER and KLEIN, JJ., concur.


text:
    H.L.C., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-333.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2006.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. F.P. v. State, 528 So.2d 1253, 1254 (Fla. 1st DCA 1988).

GRIFFIN, SAWAYA and EVANDER, JJ., concur.


author: SALCINES, Judge.

text:
    In re ESTATE OF George H. CADGENE, Deceased. McLean Boulevard Associates, Appellant, v. Betty L. Cadgene, as Personal Representative of the Estate of George Cadgene, Deceased; Suzanne Cadgene; Maryvonne Hemming, Individually and as general partner in Cadgene Family Partnership; and Simone Attwood, Individually and as general partner in Cadgene Family Partnership, Appellees.
    No. 2D05-484.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 2006.
    Steven L. Brannock and Maegen A. Peek of Holland & Knight LLP, Tampa, for Appellant.

      James A. Baxter of Baxter, Strohauer, Mannion & Silbermann, P.A., Clearwater, for Appellee, Betty L. Cadgene, as Personal Representative of the Estate of George H. Cadgene, Deceased.
    Wm. Fletcher Belcher of Law Offices of Wm. Fletcher Belcher, St. Petersburg, for Appellee, Suzanne Cadgene.
    No appearance for Appellees Maryvonne Hemming and Simone Attwood.
   SALCINES, Judge.

McLean Boulevard Associates (McLean Boulevard) appeals an order striking a statement of claim it filed in the Estate of George H. Cadgene, deceased. We affirm but write to discuss an issue of first impression in Florida.

McLean Boulevard purchased property in New Jersey from the Cadgene Family Partnership (Partnership) of which George H. Cadgene was the general partner. McLean Boulevard discovered environmental problems with the property and litigation ensued. After procedural maneuvering not relevant to the issues before us, a judgment was entered in favor of McLean Boulevard. The Partnership filed an appeal, and subsequently McLean Boulevard and the Partnership entered into a settlement agreement. In the settlement agreement, the Partnership acknowledged that it and its partners were jointly and severally liable for the cost of the environmental cleanup on the New Jersey property.

Thereafter, in January 2001, George H. Cadgene died, and a petition for the administration of his estate was filed in Pi-nellas County. McLean Boulevard filed a statement of claim in the estate administration proceeding. The format of the statement of claim tracked the form approved by The Florida Bar and attached multiple exhibits. The basis of the claim was George H. Cadgene’s liability under the terms of the settlement agreement. In July 2001, the personal representative of the estate filed an objection to the claim, which stated that the personal representative objected to part of McLean Boulevard’s statement of claim. The objection was served on McLean Boulevard and it contained language informing McLean Boulevard that it was limited to a period of thirty days from the sendee of the objection within which to bring an action on the claim as provided in section 733.705, Florida Statutes (2000). McLean Boulevard never filed an independent or declaratory action on the claim.

In April 2004, the personal representative filed a motion to strike McLean Boulevard’s claim because it had failed to file an independent action on the claim within the thirty-day time limit imposed by section 733.705. In response, New Jersey counsel representing McLean Boulevard filed a letter with the probate court indicating that it opposed the attempt by the personal representative to strike any portion of its claim other than the two paragraphs to which there had been a formal objection. McLean Boulevard’s counsel asserted that since the personal representative had failed to object to the portion of the statement of claim dealing with George H. Cad-gene’s obligations under the settlement agreement, there was no right to have that portion of the statement of claim stricken. The probate court granted the estate’s motion to strike McLean Boulevard’s claim.

The only requirements for filing an objection to a statement of claim pursuant to the 2000 version of section 733.705(2) were (1) that the personal representative or other interested person must have informed the claimant that it had thirty days from the date of service of the objection within which to file an independent action on the claim and (2) that the objection must have been served upon the claimant. Here, the personal representative met both of the requirements of section 733.705(2). With the exception of a personal representative’s statement of claim, Florida does not utilize the concept of a “partial objection” to a statement of claim. This concept is recognized under the Uniform Probate Code that has been adopted in eighteen states but not in Florida.

The appellate standard of review for an order striking a claim against an estate is whether the probate court abused its discretion. See In re Estate of Ortolano, 766 So.2d 330, 332 (Fla. 4th DCA 2000). Because the personal representative’s objection met the statutory requirements, McLean Boulevard was required to file an independent or declaratory action on the claim within thirty days of service of the objection. McLean Boulevard did not file such an action, and the probate court did not abuse its discretion when it granted the personal representative’s motion to strike the claim.

McLean Boulevard also argued on appeal that the personal representative should be estopped from requesting that its entire claim be stricken because the partial objection lulled it into a false sense of security that only part of the claim would be stricken. In support of its argument, McLean Boulevard cited Kelly Assisted Living Services, Inc. v. Estate of Reuter, 681 So.2d 813, 814-15 (Fla. 3d DCA 1996); In re Kemp’s Estate, 177 So.2d 757, 762 (Fla. 1st DCA 1965); and In re Estate of Matchett, 394 So.2d 437, 439-40 (Fla. 5th DCA 1981). However, the record before this court does not contain a transcript of the hearing on the motion to strike, and there is no transcript of a hearing on the motion for rehearing if such a hearing was in fact conducted. This court cannot reverse the trial court’s ruling based on McLean Boulevard’s assertion that this argument was properly presented to the probate court and supported by sufficient evidence because there is no evidence of record for us to review. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (holding trial court should be affirmed when record brought forward by appellant is inadequate to demonstrate reversible error). Accordingly, the order striking the claim must be affirmed.

Affirmed.

VILLANTI and WALLACE, JJ., Concur.

      . The objection stated that the personal representative "hereby objects to the claim of Mc-LEAN BOULEVARD ASSOCIATES filed in this proceeding, as more specifically set forth in Exhibit A.” Attached to the objection was Exhibit A which stated that the
      personal representative objects only to the following portions of the claim filed by Mc-LEAN BOULEVARD ASSOCIATES
      A. That portion of paragraph 4 of the claim which states "or unliquidated.”
      B. That portion of paragraph 5 of the claim which states "and is therefore entitled to a preference over other claims against his estate.”

      . See § 733.705(3), Fla. Stat. (2000) (now § 733.705(4), Fla. Stat. (2006)).

      . The jurisdictions which have adopted the Uniform Probate Code are Alaska, Arizona, Colorado, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, Pennsylvania, South Carolina, South Dakota, Utah, and Wisconsin. In re Estate of Kotowski, 704 N.W.2d 522, 526 n. 1 (Minn.App.2005).