author: WARNER, J.

text:
    Mark HAWKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4628.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Rehearing Denied Aug. 15, 2006.

      Robert C. Buschel of Taylor Hodkin Ko-pelowitz & Ostrow, P.A., and Eric T. Schwartzreich of Carter Schwartzreich & Yates, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion fob Rbheabing

WARNER, J.

We grant the motion for rehearing, withdraw our prior opinion and substitute the following in its place.

Mark Hawkins appeals his convictions of one count of the unlicensed practice of medicine causing serious bodily injury (death), one count of felony third degree murder, and one count of culpable negligence. The convictions occurred from Hawkins’ alleged injection of silicone into the buttocks of the victim, which the state claimed caused her death. Among his many claims of error in his trial and sentence, Hawkins contends that the court erred in allowing the medical examiner to testify that the victim’s death was caused by the injection given by Hawkins, because the examiner had no expertise as to the migration rate of silicone in the body. We agree that the medical examiner was unqualified to render the opinion on causation. Because this was the only testimony supporting the third degree murder charge, we reverse as to that conviction and as to the charge of the unlicensed practice of medicine causing serious bodily injury (death).

This case involves the practice of individuals receiving injections of liquid silicone to enhance body parts. According to the testimony at trial, this is a practice of some people who participate in “pumping parties.” On March 20, 2001, the victim, Vera Lawrence, went to the apartment of Corey Williams to receive injections of silicone in her buttocks at one of these parties.

Williams testified that he saw Hawkins and co-defendant, Donnie Hendrix, inject Lawrence with silicone. While at Williams’ residence, Lawrence had trouble breathing and intermittently lost consciousness. Williams called 911, and fire rescue came. Because of Lawrence’s obesity, it was difficult to transport Lawrence, and she was declared dead at the emergency room, only a few hours after the March 20th silicone injection.

Dr. Erston Price, the associate medical examiner for Broward County, conducted the autopsy. Dr. Price saw innumerable needle marks on Lawrence’s body. Most of these marks were older, but some marks were oozing blood, which indicated that they were recent. As Dr. Price conducted the examination, she saw that Lawrence’s organs were “oily.” She observed this same oily substance oozing out of the tissue at the site of the fresh needle marks. Although Lawrence was grossly obese and had minor medical problems, Dr. Price determined and testified that Lawrence had suffered a massive systematic silicone embolism due to cosmetic injections of silicone. She testified that Lawrence was injected in the subcutaneous tissue in her buttocks, which broke capillaries within the area of the hips and buttocks, and allowed the silicone to travel into the bloodstream. In other words, the silicone essentially clogged the veins and arteries until the heart could not pump blood sufficiently to sustain the body. According to Price, this caused Lawrence’s death. This did not result from a silicone injection directly into the vein, but from a non-intravascular injection. Crucial to the state’s case, she testified that this was an acute circumstance which could be tied to the March 20th injection. She admitted, however, that there was evidence of chronic use of injections of silicone. Indeed, the evidence showed that Lawrence had many, many injections of silicone over a considerable period of time.

On cross-examination, Dr. Price stated that even though the silicone was not injected intravascularly, it “could [have] migrate[d] into” the bloodstream. She surmised that because Lawrence died shortly after the silicone was injected into her, her cause of death was consistent with the theory that the silicone gained access into the bloodstream through migration. However, she could not conclusively rule out the possibility that prior silicone injections may have contributed to Lawrence’s death.

Dr. Price testified to her causation conclusions over the objection of Hawkins that she did not possess the qualifications to opine on the subject of silicone migration. Although she had conducted thousands of autopsies, she had never conducted one where she concluded the cause of death was systemic silicone embolism. She conceded that she was not an expert regarding the mechanism or speed that silicone migrates through the body. She did not review any literature regarding the effects of silicone on the body prior to the drafting of her autopsy report. At trial, she could point to nothing to support her conclusion that an injection of liquid silicone could migrate through the vascular system as quickly as would have been necessary for the silicone injection of March 20th to have caused Lawrence’s death. The state offered no other testimony to support its causation theory.

Hawkins moved for a judgment of acquittal on the charges involving the death, which the court denied. During the defense, Dr. Ronald Wright, the former chief medical examiner for Dade and Broward Counties, testified that Lawrence died from silicone emboli due to chronic systemic emboli which occurred over time and could not be tied to any injections she received on her date of death. The jury convicted Hawkins of third degree felony murder and the unlicensed practice of medicine causing serious bodily injury, as well as culpable negligence. He appeals his convictions.

As the court said in Penton v. State, 548 So.2d 273, 274 (Fla. 1st DCA 1989), “It is axiomatic that the state has the burden of proving each of the various elements of the offense, and that it must, in order to avoid the entry of a judgment of acquittal, produce legally sufficient evidence of each element.” One of the elements that the state had to prove for the charges of both third degree murder and the unlicensed practice of medicine causing the victim’s death was a causative link between the act of the defendant and the death of the victim. Id.; see also § 456.065(2)(d)2., Fla. Stat.

“In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002). “ ‘A motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilty.’” Daniels v. State, 777 So.2d 1113, 1116 (Fla. 4th DCA 2001) (quoting Dupree v. State, 705 So.2d 90, 94 (Fla. 4th DCA 1998)).

First, Dr. Price’s testimony that the March 20th silicone injection caused Lawrence’s death was inadmissible because she was unqualified to render an opinion regarding silicone migration in the body, the crucial aspect of causation in this case. Her causation opinion hinged on her conclusion that the silicone injected by the shot administered on March 20th, just a short time prior to the onset of Lawrence’s breathing difficulties, could have migrated through her body and into her bloodstream at a rapid enough pace to cause the emboli she observed upon autopsy. She did not have the expertise to render that opinion.

This issue combines aspects of the Frye test of the scientific reliability of the opinion given and the qualification of the witness to offer such scientific opinion. These are issues we review de novo. See Ramirez v. State, 651 So.2d 1164 (Fla. 1995); Brim v. State, 695 So.2d 268, 274 (Fla.1997). In this case, Dr. Price’s opinion of the cause of death may not have been subject to Frye testing and was within her area of expertise, but her opinion that defendant’s act of injecting Lawrence was the cause of her silicone embolism was predicated on a scientific assertion that silicone could migrate through the body with sufficient speed to cause an acute silicone embolism within hours of a non-intravascular injection of silicone into the buttocks. This required Frye testing.

In Ramirez, the court established the four-part test to determine whether such evidence should be admitted:

The admission into evidence of expert opinion testimony concerning a new or novel scientific principle is a four-step process. First, the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact in issue. § 90.702, Fla. Stat. (1993). Second, the trial judge must decide whether the expert’s testimony is based on a scienti-fíe principle or discovery that is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” This standard, commonly referred to as the “Frye test,” was expressly adopted by this Court in Bundy v. State, 471 So.2d 9, 18 (Fla.1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 98 L.Ed.2d 269 (1986), and Stokes v. State, 548 So.2d 188, 195 (Fla.1989). The third step in the process is for the trial judge to determine whether a particular witness is qualified as an expert to present opinion testimony on the subject in issue. § 90.702, Fla. Stat. (1998). All three of these initial steps are decisions to be made by the trial judge alone. See Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981); Rose v. State, 506 So.2d 467 (Fla. 1st DCA), review denied, 513 So.2d 1063 (Fla.1987). Fourth, the judge may then allow the expert to render an opinion on the subject of his or her expertise, and it is then up to the jury to determine the credibility of the expert’s opinion, which it may either accept or reject.

651 So.2d at 1166-67 (citations omitted). Here, the trial court determined that this was not a Frye issue, but of witness qualifications. Under the first three parts of the Frye analysis, the court erred.

The parties do not dispute the need for expert testimony to establish the causation element. Thus, under the first factor, establishing that the act of injecting silicone into the body non-intravenously can cause an embolism several hours later requires expert testimony.

The second factor is not established in this case. The state must show that the expert’s testimony is based on a scientific principle or discovery that is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Brim, 695 So.2d at 273 (quoting Frye, 293 F. at 1014). The migration rate of silicone in the body must be based upon scientific principles of how silicone travels in and is absorbed by the body. Cf. People v. Morris, 8 Misc.3d 360, 793 N.Y.S.2d 754 (N.Y.Crim.Ct.2005) (absorption rate of alcohol is based upon scientific principles); Douthitt v. State, 127 S.W.3d 327 (Tex.Ct.App.2004) (expert’s retrograde extrapolation of absorption rate of alcohol unreliable to determine blood alcohol level). Because no testimony was given as to the migration rate or the time it would take, this second requirement was never met.

Even if we may assume that such evidence existed, Dr. Price was unqualified to testify on the subject, as she herself essentially admitted. Section 90.702, Florida Statutes, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

She was not qualified by either training or experience to testify as to the migration rate of silicone in the body and whether an injection given several hours prior to death could be the cause of death. She did not even acquaint herself with any literature on the subject before developing her opinion. In fact, the only scientific evidence offered was a study offered by the defense contradicting Dr. Price’s conclusion. At her deposition, she admitted that she did not know the process of how the silicone would migrate from the victim’s thighs and buttocks into her bloodstream. From our review of the record, we must conclude that Dr. Price was not qualified to render her opinion on specific causation that linked the act of the defendant in injecting Lawrence with silicone to her resulting death. Because the three requirements of Frye were not met, her testimony was inadmissible on this issue. Ramirez v. State, 810 So.2d 836 (Fla.2001).

As Dr. Price could not competently give an opinion that the silicone could migrate with sufficient rapidity to cause an acute embolism, the state failed to prove that the act of the defendant caused the death of Lawrence. Further, Dr. Price actually equivocated in her testimony, refusing to rule out the possibility that prior silicone injections which Lawrence received contributed to causing her death in an acute fashion. As the court said in Penton, 548 So.2d at 275, “Because the consequences of a determination of guilt in a criminal case are far more severe than the consequences suffered by a defendant in a tort action, we conclude that a closer relationship between the result effected and that intended or hazarded is required.” Without Dr. Price’s testimony on causation, the state has failed to prove the necessary elements of the crime.

The improper admission of Dr. Price’s testimony at trial does not bar a retrial of Hawkins. In Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), the Supreme Court stated: “in cases such as this, where the evidence offered by the State and admitted by the trial court — whether erroneously or not — would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial.” Id. at 34, 109 S.Ct. 285. Relying on its opinion in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the Court in Lockhart distinguished reversals based solely on evidentiary insufficiency, from reversals based on ordinary trial errors such as the improper admission or rejection of evidence. It stated:

While the former is in effect a finding “that the government has failed to prove its case” against the defendant, the latter “implies nothing with respect to the guilt or innocence of the defendant,” but is simply “a determination that [he] has been convicted through a judicial process which is defective in some fundamental respect.”

Id. at 40, 109 S.Ct. 285 (quoting Burks, 437 U.S. at 15, 98 S.Ct. 2141). See also Pacheco v. State, 698 So.2d 593, 596 (Fla. 2d DCA 1997) (quoting Lockhart, 488 U.S. at 40, 109 S.Ct. 285) (stating “retrial is permitted when ‘a reviewing court determines that a defendant’s conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction.... ’ ”).

In this case, we are reversing Hawkins’ convictions based solely on the improper admission of evidence. This is precisely the type of error for which the United States Supreme Court held that retrial is permitted. Thus, Hawkins can be retried in the present case.

We reverse the convictions for third degree felony murder and for the unlicensed practice of medicine causing serious bodily injury and remand for proceedings consistent with this opinion. Because of our resolution on this issue, we did not address the remaining issues raised by Hawkins.

MAY, J„ and SWEET, GARY L„ Associate Judge, concur.

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923).


source: Caselaw Access Project

author: SHARP, W., J., Associate Judge. GRIFFIN, J.R., Associate Judge,

license: Public Domain

text:
    Dean KILGORE, Petitioner, v. STATE of Florida, Respondent.
    No. 2D05-842.
    District Court of Appeal of Florida, Second District.
    June 21, 2006.
    Rehearing Denied Aug. 3, 2006.
    William M. Hennis, III, Litigation Director, and Neal A. Dupree, of Law Office of the Capital Collateral Regional Counsel, Ft. Lauderdale, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, for Respondent.
   SHARP, W., J., Associate Judge.

An attorney from the Office of the Capital Collateral Representative (CCRC), which had been appointed to represent Kilgore to collaterally attack his 1994 first-degree murder conviction and death sentence, sought to appeal the circuit court’s order which was entitled “Order Dismissing Motion to Vacate Judgment of Conviction and Sentence With Special Request for Leave To Amend.” The Order did not dismiss the collateral proceeding, but rather dismissed CCRC from its representation of Kilgore in that proceeding because CCRC was attempting to challenge the validity of Kilgore’s 1978 first-degree murder conviction which had been used as an “aggravating factor” in the penalty phase of his 1994 case. Accordingly, this court has elected to convert the appeal to a proceeding in certiorari.

After hearing oral argument in this ease, we grant the writ and certify a question of great public importance to the Florida Supreme Court because the ultimate answer to this question should be addressed by the court that deals with death cases:

ARE COUNSEL APPOINTED TO PROVIDE COLLATERAL REPRESENTATION TO DEFENDANTS SENTENCED TO DEATH, PURSUANT TO SECTION 27.702, AUTHORIZED TO BRING PROCEEDINGS TO ATTACK THE VALIDITY OF A PRIOR FIRST-DEGREE MURDER CONVICTION THAT WAS USED AS A PRIMARY AGGRAVATOR IN THE DEATH SENTENCING PHASE?

The statute is not clear on the extent of CCRC’s representation under the unique circumstances of this case. Section 27.702(1), Florida Statutes, provides:

The capital collateral regional counsel shall represent each person convicted and sentenced to death in this state for the sole purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against stick persons in the state courts, federal courts in this state, the United States Court of Appeals for the Eleventh Circuit, and the United States Supreme Court. The capital collateral regional counsel and the attorney appointed pursuant to s. 27.710 shall file only those post-conviction collateral actions authorized by statute, (emphasis supplied)

Section 27.711(11), Florida Statutes, provides:

An attorney appointed under s. 27.710 [Registry of attorneys applying to represent persons in post-conviction capital collateral proceedings; certification of minimum requirements; appointment by trial counsel] to represent a capital defendant may not represent the capital defendant during a retrial, a resentenc-ing proceeding, a proceeding commenced under chapter 940, a proceeding challenging a conviction or sentence other than the conviction and sentence of death for which the appointment was made, or any civil litigation other than habeas corpus proceedings, (emphasis supplied)

The above language does not explicitly deal with the situation where, as here, a previous conviction is the primary aggra-vator for imposition of the death penalty, and to challenge the death penalty, the previous conviction must be challenged.

The facts giving rise to this controversy are not in dispute. In 1978, Kilgore was convicted of three violent felonies: first degree murder, kidnapping and trespassing with a firearm. The jury found that he illegally entered the residence of a man and a woman and their children, at night, while armed with a firearm. He shot the man to death and kidnapped the woman, taking her to an orange grove where he kept her the rest of the night. The court sentenced him to two life sentences, with 25 year mandatory mínimums. He did not seek post-conviction relief.

In 1989, while serving his life sentences in the Polk County Correctional Institution, Kilgore stabbed and killed another prisoner, allegedly his homosexual lover. He was charged with first-degree murder and possession of contraband by an inmate. He pled nolo contendere to both charges. However, he was permitted to withdraw the plea, and he was tried by a jury. In 1994, he was convicted on both counts and sentenced to death.

During the penalty phase, the 1978 first degree murder conviction was used as a major aggravator favoring the death penalty, and during the sentencing phase, the woman victim of the 1978 kidnapping testified against Kilgore. The trial court found two aggravating circumstances: that Kil-gore was under sentence of imprisonment at the time he committed the murder; and that Kilgore had previously been convicted of felonies involving use or threat of violence to persons — murder, trespass with a firearm, and kidnapping (the 1978 case). The court also considered older prior convictions involving less serious offenses— assault with intent to commit murder, aggravated assault, and resisting arrest with force. However, the judge included in his sentencing order a description of the first degree murder case by way of explaining the “magnitude of the prior murder.” And, in imposing the death sentence, the judge wrote that “[t]o sentence Mr. Kil-gore to anything but death would be tantamount to giving him a license to kill.” Kilgore v. State, 688 So.2d 895, 897 (Fla.1997). Counsel for CCRC was appointed to represent Kilgore after his appeals had been exhausted.

During public records litigation in the 1994 case, at a status hearing on August 20, 2001, some 1978 “state attorney notes” of interviews with the kidnapping victim in that case and her son, an eyewitness to the murder who also testified, were turned over to Kilgore in open court. They had been claimed as exempt by the State Attorney and were previously not made available to counsel for Kilgore. Comparing the notes with other existing statements by these witnesses, they allegedly reveal impeachment material pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)(diseovery violation is violation of due process).

CCRC believed that in order to collaterally attack Kilgore’s 1994 death sentence, it had to try to invalidate the major aggra-vator presented in the sentencing phase, ie., the 1978 first degree murder, kidnapping, and trespass with a firearm convictions. CCRC served motions pursuant to Florida Rule of Criminal Procedure 3.850 to vacate and set aside the 1978 murder conviction. The basis of the motion was the allegedly newly discovered evidence composed of notes of interviews of prosecuting attorneys in the 1978 case with the kidnapping victim and an eyewitness that had not previously been disclosed. CCRC sought an evidentiary hearing. At that point, the state questioned CCRC’s authority to seek to invalidate the 1978 conviction.

The state submits that, although CCRC’s representation was terminated, the trial court did not address or preclude Kilgore from proceeding on his own to assert a collateral challenge to his 1978 non-capital conviction. Kilgore could do so pro se, or ask the trial court to appoint post-conviction counsel in a non-capital case. The state candidly admits that collateral counsel must be afforded the opportunity to challenge a death sentence by showing that the use of a prior conviction as an aggravator is improper. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). Had the 1978 conviction already been set aside, it would have been proper for CCRC to raise this issue in a collateral proceeding. Johnson v. Mississippi.

However, the state maintains that the Legislature has made it clear, as a policy matter, that CCRC is limited to challenging only the conviction and sentence of death row inmates, and that CCRC may not seek to collaterally attack other criminal convictions. This is primarily because the state is not constitutionally required to provide counsel in collateral proceedings seeking to attack the validity of a criminal conviction, and if counsel is provided pursuant to chapter 27, the Legislature may limit and qualify the representation provided at state expense. The Legislature has clearly chosen to exclude from such state funded representation civil litigation, which includes collateral attacks on other criminal convictions, because of its concerns about exhausting the public treasury. However, based on our research, the rarity of this issue would not translate into a significant concern for the public treasury.

CCRC argues that the language of section 27.711(l)(c) clearly permits it to seek to invalidate a prior criminal conviction, as part of its responsibility to collaterally challenge a death sentence. That is particularly true under the circumstances involved in this case, where the prior murder conviction was used as the primary, or one of the primary aggravators supporting the death sentence, and the witnesses and circumstances of the prior conviction and the sentencing are linked.

As a practical matter, we recognize that the presentation of a prior first degree murder conviction as an aggravator in a capital sentencing proceeding is major, and if invalid, its consideration is prejudicial. Convictions for less serious criminal offenses pale in significance. However, in order to challenge the murder conviction aggravator, the prior judgment must have been set aside. That is the course that CCRC was attempting to take, and it is consistent with ABA Guidelines.

Although the ABA Guidelines for the Appointment and Performance in Death Penalty Cases have not been adopted in this state, the U.S. Supreme Court has cited “time and again, [to] the standards for capital defense work articulated by the American Bar Association” as guides. See Smith v. Mullin, 379 F.3d 919, 941 (10th Cir.2004), citing Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). See also, Commonwealth v. Williams, 581 Pa. 57, 863 A.2d 505, 528 n. 6 (2004) (Saylor, J., dissenting) (U.S. Supreme Court has referenced Guidelines articulating prevailing norms for effective counsel); Rompilla v. Beard, 545 U.S. 374 n. 3, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (reasonable efforts include obtaining a readily available court file on a defendant’s prior conviction); Lundgren v. Mitchell, 440 F.3d 754, 770 (6th Cir.2006) (capital defense counsel has an affirmative duty to, inter alia, conduct an appropriate investigation into potential mitigating factors); Hamblin v. Mitchell, 354 F.3d 482, 486-487 n. 2 (6th Cir.2003) (section 10.7 contains ten pages about counsel’s obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty).

The state relies on Butterworth v. Kenny, 714 So.2d 404 (Fla.1998), as precedent for limiting the scope of CCRC’s representation of death row inmates. In that case, the Attorney General sought a writ of quo warranto to prevent CCRC from bringing a federal civil rights lawsuit challenging the means by which the sentence of death was to be carried out. Justice Overton said the representation of CCRC counsel should be limited to “traditional post-conviction relief actions that challenge only the validity of the conviction and sentence .... ” The court did not define what is meant by “traditional collateral actions challenging the legality of the judgment and sentence.” However, it distinguished post-conviction relief proceedings used to challenge the validity of a conviction and sentence, which it categorized as “quasi-criminal in nature,” from federal civil rights actions filed under section 1983. But, it did not address the issue involved in this case.

The case before us involves a quasi-criminal proceeding, seeking to attack a death sentence imposed in a criminal case. The statute expressly permits CCRC to challenge the sentence of death as well as the conviction. In this case, the only method of attacking the sentence of death is to attack the primary aggravator, a pri- or first degree murder conviction. This is a traditional and well-accepted method used to challenge death sentences.

In Kenny, the court also said that the Legislature can determine whether to provide convicted capital defendants with counsel and that in so doing, it can place “reasonable restrictions on such representation.” [cite Kenny] Since the Legislature has chosen to provide death sentenced defendants with counsel through CCRC, it is neither logical nor reasonable to deny it the authority to challenge a death sentence by bringing a well-established, quasi-criminal procedure designed to do so.

In Olive v. Maas, 811 So.2d 644 (Fla.2002), the court held that the capping of fees for an attorney who represented death row inmates and preventing him from representing them, was invalid because it deprived inmates of effective assistance of counsel. The court affirmed its views as stated in Remeta v. State, 559 So.2d 1132 (Fla.1990), that if the Legislature provides a right to counsel in proceedings not constitutionally mandated, the statutory right carries with it the right to have effective assistance of counsel.

We conclude that the statutes providing representation to death sentenced inmates should be interpreted to encompass the right to effective assistance of counsel in collateral proceedings such as this one, to attack both the conviction and the death sentence. If a primary aggravating circumstance is a prior first-degree murder or violent felony conviction, and if there are valid grounds to seek to invalidate it, CCRC should, as a matter of effective representation, pursue that course. The statute itself directs CCRC to challenge a death sentence and seeking to invalidate a prior conviction in this context is a direct attack on the sentence. However, even if the statute was intended to prevent CCRC from representing the inmate in such collateral proceedings, such a limitation would not be permitted because it would deny the inmate effective assistance of counsel. Remeta. See also Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (statute giving trial judge opportunity to deny defense closing argument denied defendant effective assistance of counsel under the Sixth Amendment of the U.S. Constitution); Faretta v. California, 422 U.S. 806, 817, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (certain rights, including effective assistance of counsel are basic to adversary system of criminal justice and are part of “due process of law” guaranteed by the Fourteenth Amendment).

We neither suggest nor attempt to rule on whether or not Kilgore’s action is time barred, or whether it properly states a ground for relief for an evidentiary hearing. Those matters are not ripe for our consideration at this juncture.

Accordingly, we quash the order reviewed, remand for further proceedings, and certify a question of great public importance to the Florida Supreme Court.

Petition for Writ of Certiorari Granted; Order QUASHED; Question CERTIFIED.

SAWAYA, T.D., Associate Judge, concurs.

GRIFFIN, J.R., Associate Judge dissents with opinion.

GRIFFIN, J.R., Associate Judge,

dissenting.

I concede at the outset that my understanding of death penalty law and the function of the capital collateral representative is thin. If it were up to me, we would just pass this case through to the supreme court. The Florida supreme court will rightly not be much influenced by what I have to say on this subject, so I will try to explain why I think the majority opinion is wrong in as few words as possible.

The majority acknowledges that “the State is not constitutionally required to provide counsel in collateral proceedings seeking to attack the validity of a criminal conviction, and if counsel is provided pursuant to chapter 27, the Legislature may limit and qualify the representation provided at state expense.” The majority also agrees that the legislature has “clearly chosen to exclude from such state funded representation civil litigation, which includes collateral attacks on other criminal convictions, because of its concerns about exhausting the public treasury.”

Indeed, section 27.711(11), Florida Statutes, quoted in the majority opinion is clear:

An attorney appointed under s. 27.710 [Registry of attorneys applying to represent persons in post-conviction capital collateral proceedings; certification of minimum requirements; appointment by trial counsel] to represent a capital defendant may not represent the capital defendant during a retrial, a resentenc-ing proceeding, a proceeding commenced under chapter 9⅛0, a proceeding challenging a conviction or sentence other than the conviction and sentence of death for which the appointment was made, or any civil litigation other than habeas corpus proceedings.

(Emphasis added). Because, however, the legislature did not reinforce this apparently categorical prohibition by specifying that no representation is authorized for “a proceeding challenging a conviction or sentence other than the conviction and sentence of death for which the appointment was made” even if such a conviction was used as a primary aggravator, the statute is unclear and requires construction. But “no” means “no.” Counsel may not represent the defendant in those identified proceedings. The failure to say “not even if ...” does not make the statute any less categorical. The statute is clear and the legislative intent is obvious.

The majority concludes, however, that the statute “should be interpreted” to authorize CCRC to appear in other cases to collaterally attack those convictions if those convictions are “primary aggravating circumstances.” But why should it? As the State argues, there are well-established procedures for collaterally attacking, and, if warranted, for obtaining counsel to collaterally attack final judgments of criminal conviction. Why should an inmate condemned to death be given what no other convicted criminal is given? The answer cannot be that counsel cannot provide “effective representation” unless he is authorized to appear in prior cases to collaterally attack the convictions used as aggravating factors in sentencing. The Florida criminal statutes are awash with aggravators based on prior criminal convictions, but we have never recognized the duty to attack the prior convictions as a component of “effective representation.” The notion that “death is different” does not provide an adequate answer. That counsel for a defendant whose sentence is enhanced to life in prison based on prior convictions may not collaterally attack the prior convictions as part of his representation, but counsel representing a criminal sentenced to death is ineffective if he fails to do so makes no sense to me. The notion that, by providing collateral representation to criminals sentenced to death, the legislature bound itself as a matter of constitutional law to provide counsel to collaterally attack prior convictions used as aggravators at sentencing simply has no basis.

I also cannot see how the majority’s effort to limit its decision to prior convictions for murder that are primary aggra-vators makes any sense. First of all, to limit the analysis to a prior “murder” conviction is arbitrary. Section 921.141(5), Florida Statutes (2005), which identifies the statutory aggravators, includes any violent felony. And how will we be able to determine that the particular aggravator was a “primary” one? Section 921.141 does not require or even permit a ranking of aggravators and in the cases I have looked at, the trial court has not suggested a relative weight to be given one ag-gravator over another. Besides, given the nature of the aggravators, they all seem primary. Can CCRC handle a collateral attack on prior convictions for crimes that are not murder but which are a “primary” aggravator? What about prior murder convictions that are a “secondary” aggra-vator? Can this really be driven by what the sentencing judge says about the prior conviction? If it is “ineffective assistance” for capital collateral counsel not to collaterally attack prior convictions, doesn’t it have to be “ineffective assistance” if trial counsel in the original trial does not mount the same attack on prior convictions? Suppose the prior “primary,” “murder” conviction was rendered in another state? What does “effective assistance” require then? Suppose the “primary” aggravator was the defendant’s status on community control or felony probation? See § 921.141(5)(a), Fla. Stat. (2005). Does effective assistance require an attack on the validity of such supervision?

No matter who is right or wrong, the majority has put forward a challenging proposition, and I look forward to the high court’s decision.

      . The verdict and sentence were affirmed by the Florida Supreme Court. See Kilgore v. State, 688 So.2d 895 (Fla.1996).

      . Fla. Rule App. P. 9.030(a)(2)(A)(v).

      . Reference to this section is not material in this case because the court has held that CCRC counsel and attorneys appointed by the registry have the same restrictions on the scope of representation. Olive v. Maas, 811 So.2d 644 (Fla.2002).

      . Kilgore v. State, 688 So.2d 895 (Fla.1996).

      . We agree with Justice Anstead that representation by an attorney is essential to ensure effeclive presentation of capital post-conviction counsel. And, leaving the decision on a case-by-case basis to appoint counsel leads to inconsistent results. Arbelaez v. Butterworth, 738 So.2d 326, 330 (Fla.1999) (Anstead, X, specially concurring)

      . See Butterworth v. Kenny, 714 So.2d 404 (Fla.1998); Graham v. State, 372 So.2d 1363 (Fla.1979).

      . Section 27.711(l)(c) provides:
      (c) "Postconviction capital collateral proceedings” means one series of collateral litigation of an affirmed conviction and sentence of death, including &e proceedings in the trial court that imposed the capital sentence, any appellate review of the sentence by the Supreme Court, any certiorari review of the sentence by the United States Supreme Court, and any authorized federal habeas corpus litigation with respect to the sentence. The term does not include repetitive or successive collateral challenges to a conviction and sentence of death which is affirmed by the Supreme Court and undisturbed by any collateral litigation.

      . Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988).

      . See Hall v. Moore, 792 So.2d 447 (Fla.2001); Eutzy v. State, 541 So.2d 1143 (Fla.1989).

      . See ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. ed. Feb.2003), 10.7 Investigation; 10.8 The Duty to Assert Legal Claims; and 10.15.1.E.4. Duty of Post-Conviction Counsel. See also 1.1, setting forth a national standard of practice for the defense of capital cases to ensure high quality legal representation. These Guidelines are a "collection of professional norms.” Clark v. Mitchell, 425 F.3d 270, 293 (6th Cir.2005) (Merritt, X, dissenting).

      . Both the state and Kilgore cite to Butterworth v. Jennings, 819 So.2d 140 (Fla.2002) as supportive of their arguments. However, there is no opinion in this case, and thus it has no precedential value.

      . Investigations into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor. ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (Rev. ed. Feb.2003, 10.8, Duty to Assert Legal Claims, and such obligations are extended to post-conviction counsel. 10.15.1.E.4. Failure to pursue such a well-established course of action can be used to assert an ineffective assistance of counsel claim, if there was a right to counsel in this context. See Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005).

      . Criminal statutes should be construed liberally in favor of persons charged with a crime. See Perkins v. State, 576 So.2d 1310 (Fla.1991); Ferguson v. State, 377 So.2d 709 (Fla.1979); State v. Merritt, 714 So.2d 1153, 1154 (Fla. 5th DCA 1998); Quinn v. State, 662 So.2d 947 (Fla. 5th DCA 1995); Ivory v. State, 588 So.2d 1007 (Fla. 5th DCA 1991). The rule of lenity requires that when a statute is susceptible of differing constructions, it must be construed most favorably to the accused. § 775.021(1), Fla. Stat. (2005). A reasonable interpretation must be given to statutes in light of the rule that they should favor persons charged with a crime. State v. Merritt.


author: LaROSE, Judge.

text:
    MEDIA GENERAL OPERATIONS, INC., d/b/a The Tampa Tribune and WFLA-TV News Channel 8, Petitioners, v. STATE of Florida and David Lee Onstott, Respondents.
    No. 2D06-392.
    District Court of Appeal of Florida, Second District.
    June 23, 2006.

      Gregg D. Thomas and James J. McGuire of Thomas & Locicero, LP, Tampa, for Petitioners.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent State of Florida.
    Julianne M. Holt, Public Defender, and Samantha L. Ward, Assistant Public Defender, Tampa, for Respondent David Lee Onstott.
   LaROSE, Judge.

Media General Operations, Inc. (Media General), petitions this court to review the trial court’s orders allowing David Lee Onstott to file two motions ex parte and under seal. We have jurisdiction. See Fla. R. App. P. 9.100(c)(1), (d). Because the trial court departed from the essential requirements of the law, we grant the petition.

Mr. Onstott is charged with first-degree murder. His case has generated much publicity. In April 2005, ostensibly in an effort to protect his rights to a fair trial, Mr. Onstott sought a temporary injunction requesting that all discovery materials provided by the State be reviewed by the trial court in camera before public release. Media General intervened in the ease and objected, claiming that much of the discovery material likely would not threaten Mr. Onstott’s right to a fair trial. Media General conceded, however, that discovery material that arguably could pose such a threat should be reviewed by the trial court in camera to determine whether public release was appropriate. See Fla. R. Crim. P. 3.220(ü )(1) and (m); Miami Herald Publ’g Co. v. Lewis, 426 So.2d 1 (Fla.1982).

In June 2005, the trial court granted Mr. Onstott’s motion to the extent that discovery materials exchanged by the parties would not be disclosed publicly for thirty days. During that period, counsel would review the materials and, if deemed necessary, seek an in camera inspection of any material that, if made public before trial, posed a substantial and imminent threat to a fair trial. The trial court would examine the materials to determine if any should be withheld temporarily from public disclosure under chapter 119, Florida Statutes (2005), Florida’s Public Records Law.

This procedure worked well until a discovery hearing in January 2006. At that time, Mr. Onstott presented two written motions to the trial court and asked that they be filed under seal. These motions dealt with Mr. Onstott’s objections to the public release of certain discovery materials. Over Media General’s objection, the trial court accepted the motions and directed the clerk to file them under seal. Characterizing this procedure as an ex parte communication, Media General noted that it was not allowed to see the motions, did not know what evidence Mr. Onstott sought to exempt from public disclosure, and was given no specific authority for sealing the motions under the Public Records Law. Simply put, Media General contends that this procedure violated its right of access to public records. Media General timely petitioned this court for review.

After Media General filed its petition, the trial court entered an amended order that attempted, after the fact, to explain more fully the need to seal the motions and related discovery materials from public disclosure. See Lewis, 426 So.2d at 8. The trial court determined that the information contained in Mr. Onstott’s motions divulged potentially prejudicial information and that no adequate or less restrictive means were available to protect Mr. On-stott’s fair trial rights. Mr. Onstott contends that the amended order moots Media General’s petition. We disagree.

Our review is by certiorari under Florida Rule of Appellate Procedure 9.100(d)(1) that governs petitions “ ‘to review an order excluding the press or public from access to ... judicial records, if the ... records are not required by law to be confidential.’ ” See Times Publ’g Co. v. Smith, 903 So.2d 322, 324 (Fla. 2d DCA 2005) (Smith I) (quoting Fla. R. App. P. 9.100(d)(1)). We must determine whether the trial court violated procedural due process or whether its orders departed from the essential requirements of the law. See Sarasota Herald-Tribune v. Smith, 916 So.2d 904, 908 (Fla. 2d DCA 2005) (Smith II).

The State acknowledges that the trial court may conduct an in camera review of discovery materials sought to be exempted from public disclosure. The State questions, however, whether rule 3.220(m) grants the trial court the broader authority to receive under seal and without disclosure to or input from Media General any motion seeking a public records exemption. We hold that it does not.

The recent decision in State v. Calloway, 31 Fla. L. Weekly D592, — So.2d-, 2006 WL 399663 (Fla. 3d DCA Feb. 22, 2006), is instructive. In Calloway, the defendant claimed that rule 3.220(m) allowed for an ex parte, in camera inspection of purported work-product materials of the defendant’s psychiatric expert. The court rejected this contention, observing that an in camera inspection and an ex parte proceeding are not one and the same. Id. at -, at D593. Indeed, an ex parte proceeding is proper only where permitted by law. Id.

Although the Calloway trial court correctly concluded that it had authority to, and in fact did, conduct an in camera inspection of the underlying materials, that inspection improperly occurred after the defense submitted the materials to the trial court without notice to the State. Although the State was not entitled to review the material submitted for in camera inspection, the State, as a party, was entitled to notice of, and an opportunity to be heard at, any hearing regarding the alleged privileged nature of the material. Id. Calloway’s reasoning applies here. The trial court allowed Media General to intervene in the case. Ultimately, the trial court might not allow Media General a pretrial review of the materials underlying Mr. Onstott’s motions. Nevertheless, Media General was entitled to notice of and an opportunity to be heard on Mr. On-stott’s motions. See Lewis, 426 So.2d at 8.

We grant the petition and quash the orders and amended order without prejudice to the trial court conducting further proceedings. See, e.g., Smith I, 903 So.2d at 327 (granting certiorari and quashing portions of order without prejudice to conduct further proceedings under rule 3.220(0 or (m) seeking nondisclosure of those materials). The trial court may consider striking the motions from the court file and directing Mr. Onstott to file and serve a motion or motions that state the basis for sealing the discovery materials without divulging the information he seeks to exempt from pretrial public disclosure. See generally News-Press Publ’g Co. v. State, 345 So.2d 865, 867 (Fla. 2d DCA 1977) (noting that basis for closing records can be sufficiently stated without divulging prejudicial or privileged information). After hearing, if the trial court concludes that the discovery materials should be sealed, its order should contain sufficient findings of fact to support its decision. See Lewis, 426 So.2d at 7-8; In re Cosio, 841 So.2d 693, 694 (Fla. 2d DCA 2003).

Petition granted.

SALCINES and DAVIS, JJ., Concur.

      . In Camera and Ex Parte Proceedings.
      (1) Any person may move for an order denying or regulating disclosure of sensitive matters. The court may consider the matters contained in the motion in camera.
      (2) Upon request, the court shall allow the defendant to make an ex parte showing of good cause for taking the deposition of a Category B witness.
      (3)A record shall be made of proceedings authorized under this subdivision. If the court enters an order granting relief after an in camera inspection or ex parte showing, the entire record of the proceeding shall be sealed and preserved and be made available to the appellate court in the event of an appeal.


author: PER CURIAM.

text:
    KOVACK SECURITIES, INC., Appellant, v. Mary BAILEY, Appellee.
    No. 4D05-4561.
    District Court of Appeal of Florida, Fourth District.
    June 28, 2006.
    Scott L. Warfman of Scott L. Warfman, P.A., Miami, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

Affirmed. Attorney’s fees in litigation may be awarded only where there is a contractual or statutory provision permitting such fees. See Florida Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1148 (Fla.1985), modified by, Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). The parties do not create an implied contract for an award of attorney’s fees merely because each party requests an award of fees from the tribunal, where no contract or statute otherwise supports an award.

WARNER, KLEIN and GROSS, JJ., concur.


author: PALMER, J.

text:
    HERNANDO COUNTY SCHOOL BOARD, Appellant/Cross-Appellee, v. Paul NAZAR and Alison Nazar, Appellee/Cross-Appellant.
    No. 5D05-1623.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.
    John D. Jopling, Elizabeth M. Collins and David M. Delaney of Dell Graham, P.A., Gainesville, for Appellani/Cross-Ap-pellee.
    Peter M. Capua of Lorenzo & Capua, Miami, for Appellee/Cross-Appellant.
   ON NOTICE OF NON-COMPLIANCE WITH ORDER OF THE COURT

PALMER, J.

By opinion dated February 17, 2006, Paul Nazar and his counsel, Peter M. Ca-pua, were each ordered to pay fifty percent of all fees charged by the mediator in connection with the appellate mediation in this case as well as reasonable attorney’s fees and costs incurred by Hernando County School Board in preparing for and attending the appellate mediation and filing its motion for sanctions.

Hernando County School Board has filed a notice of non-compliance, indicating that Attorney Capua has paid one-half of the mediator’s fee, but the remaining half has not been paid by Paul Nazar. In addition, the notice indicates that its reasonable attorney’s fees and costs have not yet been paid.

With regard to the mediator’s fees, if such fees are not paid by Mr. Nazar within 15 days from the date of this opinion, his answer brief in this matter shall be strick- • en and the court shall make a determination on the merits of this appeal without consideration of the contents of that brief.

With regard to the attorney’s fees and costs, appellant’s counsel should proceed with scheduling a hearing before the trial judge, acting as a commissioner, pursuant to om' opinion, to determine the reasonable amount of costs and fees, which shall then be promptly paid, fifty percent by Mr. Nazar and fifty percent by Attorney Ca-pua.

PLEUS, C.J., and SHARP, W., J., concur.


text:
    Terry L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-530.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.

      Terrence E. Kehoe, of Law Offices of Terrence E. Kehoe, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The defendant appeals the summary denial of his Rule 3.850 motion for post-conviction relief. The defendant asserts in his motion that his trial counsel misadvised the defendant about the consequences of his plea, which rendered his plea involuntary. In response, the State concedes that the defendant has presented a facially sufficient claim, and the trial court failed to attach sufficient portions of the record to refute the claim.

The defendant was charged in Lake County with felony DUI and pled nolo contendere to the lesser offense of driving under the influence. The defendant was placed on one year of probation with statutorily required DUI conditions. The defendant did not appeal. The Department of Highway Safety and Motor Vehicles, Division of Driver Licenses [“Department”], subsequently permanently revoked the defendant’s driver’s license on the ground that the Lake County conviction was the defendant’s fourth DUI conviction.

The defendant filed his Rule 3.850 motion, claiming ineffective assistance of trial counsel in misadvising the defendant that if he pled to the lesser offense of DUI, his license would only be suspended for one year. The trial court summarily denied the defendant’s motion.

There is a conflict among the district courts of appeal in this state over whether a revocation of a driver’s license is a direct or collateral consequence of a criminal plea. The defendant acknowledges that this court has followed the First District in holding that a driver’s license revocation is a collateral and not a direct consequence of a criminal plea. See Sullens v. State, 889 So.2d 912 (Fla. 5th DCA 2004), following State v. Bolware, 28 Fla. L. Weekly D2493, - So.2d -, 2003 WL 22460271 (Fla. 1st DCA Oct. 31, 2003), review granted, 924 So.2d 806 (Fla.2006), and State v. Caswell, 28 Fla. L. Weekly D2492, -So.2d -, 2003 WL 22460275 (Fla. 1st DCA Oct. 31, 2003), review pending, S.Ct. Case No. SC04-14. The defendant also acknowledges that Sullens is the law of this district. However, as acknowledged by the State, Sullens, Bolware and Caswell are distinguishable because in those cases, the defendants were not affirmatively mi-sadvised.

The supreme court has held that post-conviction relief is not available when counsel misadvises a defendant that, if he enters a plea, his conviction cannot be used in the future to enhance a sentence for a subsequently committed offense. State v. Dickey, 928 So.2d 1193 (Fla.2006). Dickey does not apply here. That case involved collateral consequences dependent on the commission of new crimes by the defendant in the future. As in the Miralles case, where there is affirmative misadvice as to a material and immediate consequence of a plea, even if “collateral,” the defendant has stated a facially sufficient claim based on that misadvice.

REVERSED and REMANDED.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.

      . The defendant had changed his plea from not guilty to nolo contendere to the lesser offense of DUI based on a plea agreement. The defendant's written plea agreement reflected a twelve-month license suspension. His trial counsel stated in open court that the defendant would be facing a one-year license suspension, and the trial court reiterated that the defendant would be subject to a twelvemonth license suspension. The court minutes also reflect a twelve-month license suspension as a special condition of probation.

      . Claims that trial counsel misadvised defendants about collateral consequences of a plea have been considered in Rule 3.850 proceedings. See Miralles v. State, 837 So.2d 1083 (Fla. 4th DCA 2003) (defendant misadvised about collateral consequence of entering plea relating to the defendant’s ability to obtain a future occupational license from the state). See also Wonderlick v. State, 651 So.2d 822 (Fla. 4th DCA 1995) (direct appeal affirmed without prejudice to file 3.850 motion where parties operated under misapprehension of the law as to revocation of defendant’s driver’s license).


author: DAVIS, Judge.

text:
    Ronald HOLMES, Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-1772.
    District Court of Appeal of Florida, Second District.
    June 30, 2006.
    James Marion Moorman, Public Defender, and Francis A. Solorzano and Robert T. Connolly, Assistant Public Defenders, Bartow, for Petitioner.
    Charles J. Crist Jr., Attorney General, Tallahassee, and Amanda Colon, Assistant Attorney General, Tampa, for Respondent.
   DAVIS, Judge.

Ronald Holmes filed a petition for writ of habeas corpus challenging his pretrial detention in relation to two Polk County cases. In a previous order dated April 21, 2006, this court granted Holmes’ petition, with opinion to follow. The order specifically required Holmes’ immediate release as to case number M006-00025-LD. In accordance with our previously entered order, we now write to clarify the circumstances of Holmes’ extended pretrial detention for a violation of a municipal ordinance.

On January 6, 2006, Holmes, a member of Polk County’s homeless population, was apparently panhandling for money on a street in downtown Lakeland where he was stopped by an officer and issued a citation and a notice to appear at a hearing on January 24, 2006. Holmes was cited for soliciting without a permit, a violation of Lakeland, Florida, Code, Section 78-4, (1960), a municipal ordinance. Holmes failed to appear at the scheduled hearing on January 24, 2006, and a capias was issued for his arrest in case number M006-00025-LD.

On February 21, 2006, Holmes was arrested. At the time of his arrest he was found to be in possession of two pills for which he had no prescription. He was then charged with possession of a legend drug without a prescription in case number MM06-001832-BA. He was brought before the first appearance court on February 22, 2006, as to both pending cases. At this appearance, Holmes was ordered to be held on pretrial detention in both cases. Due to a previously granted petition for writ of habeas corpus in the circuit court, Holmes was released on bond as to his misdemeanor possession charge in case number M006-001832-BA. Therefore, the only charge for which Holmes was being held in jail at the time this court received his petition for writ of habeas corpus was the one stemming from his alleged violation of a city ordinance in case number M006-00025-LD.

A violation of section 78-4 is punishable by either a fine not exceeding $500 or a jail term not exceeding sixty days or both. See Lakeland, Fla., Code §§ 1-14, 78-3 (1960). Holmes was arrested on February 21, 2006, in case number M006-00025-LD and was continuously held in jail until his release, which was mandated by this court’s April 21, 2006, order. As of that date, Holmes had been in jail for sixty days, the maximum length of incarceration available under the municipal ordinance. Accordingly, we granted Holmes’ habeas petition. As such, it was not necessary for this court to address the merits of Holmes’ claim that the municipal ordinance is facially unconstitutional. See Singletary v. State, 322 So.2d 551, 552 (Fla.1975) (“[Cjourts should not pass upon the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds.” (citing Peoples v. State, 287 So.2d 63 (Fla.1973))).

However, we write to also express our concern over the fact that Holmes was held in the Polk County jail for sixty days on a violation of a city ordinance without, according to the record before us, the benefit of an arraignment or any other court proceeding on the charge. We question the likelihood that Holmes would have received the maximum sentence of sixty days had he been found guilty at trial or admitted his guilt by plea. The fact that a person has served the statutory maximum on an offense prior to his or her guilt being determined is worthy of someone’s attention. This is especially true in light of the cost to the citizens of Polk County whose tax dollars are required to pay for housing and care of this inmate in an otherwise already overcrowded jail.

Petition previously granted.

VILLANTI and WALLACE, JJ., Concur.


author: ERVIN, J.

text:
    David W. RAWSON and Patricia S. Rawson, Appellants, v. UMLIC VP, L.L.C., Appellee.
    No. 1D05-4482.
    District Court of Appeal of Florida, First District.
    July 3, 2006.

      Scott A. Remington and Gayle H. Cram-er of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellants.
    Robert O. Beasley of Litvak, Beasley & Wilson, LLP, Pensacola, for Appellee.
   ERVIN, J.

David W. Rawson and Patricia S. Raw-son appeal from a final judgment denying them rescission of certain real estate contracts. They contend (1) that the lower court erred in refusing to grant the parties’ joint motion for new trial and for disqualification of the trial judge by reason of its failure to render final judgment for a period of 18 months following trial, which impaired the court’s ability as a fact-finder, and (2) that the lower court erred in concluding that the Rawsons were not entitled to rescission of the real estate contract, because, contrary to the lower court’s finding, the parties’ mutual mistake was material to the transaction, in that the undisputed evidence disclosed that UM-LIC’s failure of title affected 23.5 percent of the property it conveyed to the Raw-sons. Because we conclude the parties’ contractual agreements for the sale of the real estate allocated the risk of their mutual mistake as to the boundaries of the property to the Rawsons, we affirm the final judgment.

The facts preceding the conveyance of the disputed property reveal that the Raw-sons’ predecessors in title, John and Rebecca Neal, received a deed for nine parcels of real property in Escambia County, Florida, in 1995. A year thereafter, they obtained from the grantor a corrected warranty deed which added a 300-fooL-wide strip of land, comprising 18 acres, to the property purchased, which had been omitted from their original deed. Thereafter, the Neals executed a mortgage on the property, which, in 2001, went into foreclosure, resulting in the mortgagee’s assign-ee, appellee, UMLIC, VP, L.L.C., receiving a certificate of title to the property. The legal description attached to the mortgages and certificate of title, however, matched that in the original warranty deed, rather than in the corrected deed, excluding the 18-acre strip. In 2002, UM-LIC offered the property, listing 14 separate parcels for sale by auction. The auction brochure described parcels three and five as including the 300-foot strip on their western boundaries, which the court below found UMLIC was unaware it did not own; moreover, UMLIC did not prepare a survey, other than a “site sale survey,” which was not a legal survey. The site survey, labeled “VISUAL AID ONLY,” also represented parcels three and five as including the additional 300-foot strip on their western boundaries and referred as well to the erroneous legal descriptions.

Appellants David and Patricia Rawson separately bid and purchased parcels three, four and five, believing they were all contiguous and that they contained a total of 76.5 acres. See diagram attached as Appendix. The Rawsons executed sales contracts for the three parcels and received a general warranty deed, containing the incorrect legal descriptions for parcels three and five. After the purchase of the property, a survey was prepared and the omitted strip of property was discovered, leading the Rawsons to seek rescission of the sales contracts and damages.

Trial was held on February 10, 2004. On August 5, 2005, the parties filed a joint motion for new trial and for disqualification of the judge, alleging that they believed the court’s delay in rendering final judgment had been unreasonable, which would affect the court’s ability to recall testimony introduced at trial. Additionally, they alleged that, under the circumstances, they did not believe the trial court could render a fair and impartial decision, because, if the case were retried before the same judge, an appearance of potential prejudice would arise due to his prior delay in rendering judgment. The lower court denied the motion for disqualification, finding that it did not state a legally sufficient reason for disqualification. It also denied the motion for new trial, concluding there was no need for another hearing, because the record contained sufficient evidence to enable it to enter a correct judgment. The court thereupon entered final judgment for UMLIC, rejecting the Rawsons’ claims for rescission and breach of contract, concluding that, although the parties were both mistaken as to the amount of acreage to be conveyed, the breach of the contractual terms was not material because the Rawsons did not obtain legal descriptions or surveys of the parcels before making their bid, and, in any event, the contract assigned the risk of mistake to the Rawsons.

Turning first to the Rawsons’ contention that the lower court erred in denying their motion for disqualification, we agree the motion was correctly denied because it was legally insufficient. Florida Rule of Judicial Administration 2.160(d) permits disqualification based only upon a fear that a party will not receive a fair trial because of “prejudice or bias of the judge,” or because the judge has an interest in the case. None of the cases appellants rely upon involve disqualification of a trial judge on the basis of a delay in issuing a ruling.

As for the trial court’s denial of the parties’ motion for new trial, we initially agree with appellants that an 18-month delay between the time of trial and a court’s ruling is unreasonable. See Fla. R. Jud. Admin. 2.050(f) (requiring judges to rule on matters submitted to them “within a reasonable time”). We also agree that the final judgment contains factual inaccuracies, ie., the findings therein that the evidence disclosed “the property was not auctioned by legal description,” and “no legal description of the parcels [was] provided prior to bid.” As appellants point out, UMLIC had prepared a Visual Aid of the property offered for sale, which was prominently displayed at the time of the auction, containing a diagram of the properties which showed parcels three, four and five as contiguous, and provided a legal description for all of the parcels. Moreover, UMLIC distributed a sales pamphlet that included a drawing of the 14 parcels, and depicted parcels three, four and five as contiguously situated, which Dr. Rawson examined before bidding. Finally, paragraph 13 of the sales contract explicitly recited that a legal description for each parcel had been furnished.

Despite the inaccurate findings, we conclude they had no substantial effect on the judgment entered. The lower court otherwise found that the drawings of parcels three, four and five, which were based on the incorrect legal descriptions, depicted the parcels as “adjacent to one another.” It further found that even if erroneous legal descriptions were not provided to the Rawsons, the deeds contained the incorrect descriptions and became part of the contracts for sale, thereby indicating the lower court concluded the purchasers were furnished the descriptions before the completion of the sale. As recognized in Ascontec Consulting, Inc. v. Young, 714 So.2d 585, 587 (Fla. 3d DCA 1998), reversal due to a delay between an evidentiary hearing and the entry of a written order “typically involves a combination of delay plus an indication that something is seriously amiss on the merits.” Accord Reis v. Reis, 739 So.2d 704 (Fla. 3d DCA 1999). Under the circumstances, we are unable to conclude that the factual inconsistencies in the final judgment reflected a judicial misunderstanding that met the Ascontec standard.

The lower court also concluded that the mistake as to the quantity of the property conveyed was not material to the contracts entered into between the parties. We find no factual support for such determination. In this regard, section 152 of the Restatement (Second) of Contracts (1979), provides in part:

(1) Where a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party unless he bears the risk of the mistake under the rule stated in § 154.

We consider the record clear that the basic assumption on which the contract was made was that all three parcels would be contiguous for the purpose of carrying out the Rawsons’ intended use. Dr. Rawson testified that he intended to fence the property for horses, build a pond and have wildlife habitats in the wetland portions of the property. Instead, as a result of the erroneous legal description, the Rawsons have title to two separate, divided pieces of property, with separate access routes.

Despite the lower court’s factual inaccuracies and erroneous legal conclusions, we decide reversal is not required because the court otherwise reached the correct legal result. The court’s alternative determination that the contract allocated to the Raw-sons the risk of the parties’ mutual mistake is supported by the record. As a consequence, we agree that the lower court did not abuse its discretion in denying rescission of the contracts, which is the standard applicable to the review of an order deciding the equitable remedy of rescission. See Pendleton v. Witcoski, 836 So.2d 1025 (Fla. 1st DCA 2002).

To obtain such relief, a plaintiff must not only prove mutual mistake regarding a basic assumption underlying the contract, but must also establish “that the contract did not put the risk of mistake on the party seeking rescission.” 27 Richard A. Lord, Williston On Contracts, § 70:69, at 415 (2003). Accord 13 Am.Jur.2d Cancellation of Instruments §§ 27, 29 (2006). As earlier stated, a mutual mistake affecting the basic assumption on which the contract was made may require a voidance of the contract unless the adversely affected party bears the risk of the mistake. In this regard, section 154 of the Restatement provides:

A party bears the risk of a mistake when
a) the risk is allocated to him by agreement of the parties or
b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or
c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so.

(Emphasis added.)

In discussing the effect of section 154, Professor Lord makes the following pertinent comments:

A broadly[] worded provision[] in a contract that shifts the risk of a mutual mistake may be quite effective; even though a contract provision does not specify the particular kind of risk contemplated, the risk still can shift. Such a broad clause may prevent later attempts at rescission and may simply indicate that the buyer accepts the risk of loss that might arise from any material mistake as to the condition of the property sold.

Williston on Contracts, § 70:79, at 441 (footnotes omitted). Moreover, an “as-is” clause in the contract stating that the sale is made “as-is, where-is and with all its faults” assigns the risk to the buyer, as do disclaimers of any warranty or guarantee concerning the property. Id. § 70:80, at 448. Finally, Professor Lord concludes by noting: “An underlying basis of most contracts ... is that the buyer has had ample time to consider the consequences and a full opportunity to engage in due diligence as to the property being offered for sale.... The mistake of risk can be placed foursquare on the shoulders of a party who has had the opportunity to conduct the necessary due diligence, but has failed to do so.” Id. at 457.

A review of the pertinent terms of the auction real estate sales contract discloses that the risk of the mistake was clearly placed on the Rawsons. The auction brochure, as the trial court pointed out in its final judgment, contained an express disclaimer that the dimensions and acreage of the parcels were believed to be correct, but that it was the purchasers’ responsibility to confirm the calculations. Moreover, paragraph 8(c) of the sales contract explicitly warned the purchasers not to rely on any of the seller’s representations without verifying them, and the Raw-sons, as purchasers, acknowledged it was their responsibility to make such inquiries and investigations as deemed necessary or appropriate in regard to title of the property. The Rawsons additionally admitted in the contracts that they were purchasing the property “in an ‘as is, where is’ condition ‘with all faults,’ ” and had executed the contract based solely on their own investigations and findings, and not in reliance on any information provided by the seller, the broker or the auction company. Indeed, they further agreed they had not relied upon any information, maps or sketches, statements or other representations made by or on behalf of the seller or the auction company. Notwithstanding the Rawsons’ acknowledgments, they proceeded to the subsequent closing without first ordering a survey of the property or obtaining a title search to determine the acreage or a correct legal description, despite being advised by the contracts that if a defect in the title was disclosed which the seller was unable to cure, the purchasers could, at their option, terminate the contracts without liability, and the seller would refund their deposit.

Purchaser acknowledges that it is Purchaser’s responsibility to make such legal, factual and other inquiries and investigations as Purchaser deems necessary, desirable or appropriate with respect to the Property. Purchasers) acknowledge(s) that they have executed this contract based solely on their own independent due diligence investigations and findings, and not in reliance on any information provided by SELLER, BROKER, AUCTION COMPANY or their affiliates, agents, officers, employees or representatives. Purchaser acknowledges that Purchaser has not relied, and is not relying, upon any information, document, sales brochures or other literature, maps or sketches, projection, pro forma, statement, representation, guarantee or warranty (whether express or implied, oral or written, material or immaterial) that may have been given by or made by or on behalf of the Seller or the Auction Company.

The Rawsons nonetheless contend that their admissions were superseded by other provisions in the contracts requiring UM-LIC to convey fee simple title to them by general warranty deed, which contained the same defective legal description as that in the Visual Aid displayed at the auction. They rely on Star Apartment, Inc. v. Martin, 204 F.2d 829, 830 (5th Cir.1953), and Sutton v. Cast-Crete Corp. of Florida, 197 So.2d 556 (Fla. 2d DCA 1967), for the rule that if a seller contracts to convey title to the property specified in a contract of sale, which it is impossible for the seller to do, the buyer has no duty to search the public records to determine whether the seller could perform its obligation.

Although the facts in the above cases are distinguishable from those at bar, because neither involved the construction of contractual language which allocated the risk of a mutual mistake to the purchasers, appellants cite an unpublished opinion in their notice of supplemental authority which does, Wilkey v. Rhea County, No. E1999-00307-COA-R3-CV, 2000 WL 782011 (Tenn.Ct.App. June 20, 2000). In Wilkey, the Tennessee Court of Appeals reversed the judgment of the trial court which refused to order rescission of a real estate sales contract that mistakenly described the property as a 10.5-acre tract of land, but which, in fact, as a resulting survey revealed, contained only 7.9 acres. In rejecting the seller’s contention that an “as-is” clause in the agreement was a defense to the buyers’ claim of mutual mistake, the court concluded that such clauses only apply to defects in the condition of property that were unknown at the time the contract was executed, but they have no such effect in allocating the risk of mistake as to the ownership of the tract. The only authority the court cited, however, involved an “as-is” clause that expressly limited its scope to “the condition of the premises.” Atkins v. Kirkpatrick, 823 S.W.2d 547, 553 (Tenn.Ct.App.1991). In contrast, the Rawsons agreed to purchase the property as is, “specifically and expressly without any warranties, representations or guarantees, either express or implied, of any kind, nature, or type whatsoever, from or on behalf of the seller.”

Under the circumstances, we do not consider the holding in Wilkey persuasive as to the proper outcome of the present appeal. As previously recited, the real estate sales contract in the case at bar placed the purchasers on notice that not only were they purchasing the property in an “as-is” condition, but that it was their responsibility to make such other investigations as they deemed necessary and they were not relying upon any “guarantee or warranty ... that may have been given ... by ... the seller or the Auction Company.” This distinguishing language in the sales agreement reveals that the Raw-sons agreed, by not making further inquiries, to waive any objection they might have as to a defect in the condition of the property conveyed, and to relinquish any challenge that might develop relating to a defect in title.

The facts in SMB Partners, Ltd. v. Osloub, 4 S.W.3d 368 (Tex.Ct.App.1999), highlight this distinction. There, a purchaser of real property brought an action for damages against the seller, alleging that the vendor committed statutory fraud in misrepresenting the size, shape and location of an easement on the property sold. The seller defended, contending that an “as-is” clause in the parties’ earnest-money contract precluded the buyer from relying on any oral misrepresentations by the seller as to the size of the easement. In rejecting this argument and affirming the judgment for the purchaser, the court noted that the provision in the contract expressly stated that the seller was conveying the property as is, without any representations or warranties, “except for the warranty of title contained in the deed.” As stated, the sales agreement at bar made no reservations as to the warranties.

Because the parties’ real estate contracts clearly and unambiguously allocated the risk of loss to the purchasers, the lower court’s final judgment denying rescission is

AFFIRMED.

KAHN, C.J., and VAN NORTWICK, J., concur.

      . In refusing to order rescission, the court also determined that the Rawsons had an adequate remedy at law for breach of warranty by reason of the warranties conveyed to them by the deeds.
      In determining the measure of damages resulting from the breach, the courts recognize a distinction between contracts calling for the sale of real property in gross or by acre. See Platt v. Deese, 298 So.2d 573 (Fla. 1st DCA 1974); Measure and Elements of

        Damages Recoverable from Vendor Where There Has Been Mistake as to Amount of Land Conveyed, 94 A.L.R.3d 1091 (1979).

      . At trial, however, David Rawson never actually testified he had seen the Visual Aid.

      . Paragraph 8(c) states in its entirety:

      . We note that this observation is consistent with the definition of the term. See Black's Law Dictionary 121-22 (8th ed. 2004).

      . In Atkins, the Tennessee Appellate Court affirmed the trial court's judgment refusing to order rescission of the contract because of an "as-is” clause, despite the fact that the condition of the property, subterranean ground water, discovered after the execution of the contract, made the properly unsuitable for the planned construction of a residence.


author: SUAREZ, J.

text:
    Merrick COHEN, Petitioner, v. The STATE of Florida, Respondent.
    No. 06-1487.
    District Court of Appeal of Florida, Third District.

      July 5, 2006.
    Rehearing Denied Aug. 4, 2006.
    Kasen & Levine and Jonathan Kasen (Fort Lauderdale), for petitioner.
    Charles J. Crist, Jr., Attorney General, for respondent.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

Merrick Cohen has filed a petition for certiorari to review a trial court’s order denying his request to file a belated appeal. We treat this petition as a Petition to Seek Belated Appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). Petitioner claims he requested the Public Defender to file an appeal on the day of his conviction in 2001. Petitioner’s request to now file a belated appeal, claiming the appeal was not filed, is hereby denied. See Fla. R.App. P. 9.141(c)(4)(A)(ii).


author: KLEIN, J.

text:
    Brian SIMS, Appellant, v. Kevin O’LEARY and Kathleen O’Leary, his wife, Appellees.
    No. 4D05-3882.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Rehearing Denied Aug. 16, 2006.
    Joseph L. Mannikko of Mannikko & Baris, Palm City, for appellant.
    Leif J. Grazi of Grazi & Gianino, Stuart, for appellees.
   KLEIN, J.

Plaintiffs, who are the appellees, sued Congruent Construction LLC and Brian Sims, alleged that they paid a deposit to Congruent to install a new roof on their home and Congruent failed to perform. Defendant Sims appeals a non-final order denying his motion to dismiss for lack of personal jurisdiction, and we reverse.

The complaint alleges that Congruent is a Washington limited liability company, and that Brian Sims resides in the State of Washington. After the hurricanes of September 2004, Sims, as owner of Congruent, employed Paul W. Nixon, Jr. to operate the roofing business of Congruent in Florida, pursuant to a state order authorizing temporary roofing contractors. Plaintiffs entered into a contract with Congruent for replacement of their roof and paid a fifty percent deposit with which Nixon absconded. Although Sims is not a party to the contract, plaintiffs alleged that Sims negligently hired Nixon without investigating his background, which would have revealed past criminal acts, and that Sims’s negligence caused the plaintiffs damages.

Plaintiffs attached to the complaint a letter on Congruent stationery, which Sims signed as owner of Congruent. The letter was addressed to “To whom it may concern” and stated that Sims, as the owner of Congruent, had employed Nixon to repair roofs for Congruent in Florida. The letter further advised that Nixon, with no authorization from Congruent, had opened a bank account in Florida for Congruent and used the account to cash customers’ deposit checks. Sims explained that he had subsequently discovered that Nixon has a criminal past with arrest warrants outstanding and may still be operating in the community but that he was not now associated with Congruent.

Sims argued in his motion to dismiss for lack of personal jurisdiction that there were no allegations in the complaint alleging personal jurisdiction which could bring Sims within the Florida Long-Arm Statute, section 48.193, Florida Statutes (2004).

The first inquiry, in determining whether long-arm jurisdiction is appropriate, is whether the complaint alleges sufficient jurisdictional facts to demonstrate jurisdiction under the long-arm statute. Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582 (Fla.2000); Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). The only conclusion which can be drawn from the facts alleged in this complaint, including the attached letter, is that Sims was acting solely on behalf of Congruent, and not on his own behalf. Sims is accordingly not liable under the corporate shield doctrine. Radcliffe v. Gyves, 902 So.2d 968 (Fla. 4th DCA 2005); Carter v. Estate of Rambo, 925 So.2d 353 (Fla. 5th DCA 2006).

This case is distinguishable from Oesterle v. Farish, 887 So.2d 412 (Fla. 4th DCA 2004), because in Oesterle the complaint alleged that the managing agent of a Delaware limited liability company had, at plaintiffs request, come to Florida and “personally guaranteed” that certain conditions pertinent to plaintiffs contract with the company would be carried out. In the present case, neither the complaint nor the attached letter contained any allegations which could have made Sims personally subject to the jurisdiction of a Florida court. We accordingly reverse.

POLEN and SHAHOOD, JJ„ concur.


author: RAMIREZ, J.

text:
    James J. CLINTON, III, Appellant, v. Gary DOEHLA and Monroe County Sheriff, Appellee.
    No. 3D05-2400.
    District Court of Appeal of Florida, Third District.
    July 5, 2006.
    Rehearing Denied Aug. 10, 2006.

      Nicholas W. Mulick, for appellant.
    Welbaum, Guernsey, Hingston, Green-leaf, Gregory, Black & Rune, Coral Gables; Hung Nguyen, and Elizabeth K. Russo, and Josiane Deschamps Abel, Miami, for appellees.
    Before RAMIREZ, and CORTINAS, JJ„ and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

Plaintiff, James J. Clinton, III, appeals from an order denying his motion to set aside a sheriffs sale of real property. We reverse because a lien had not been perfected on Clinton’s property before the Sheriffs Levy was published.

On February 6, 1991, appellee, Gary Doehla, obtained a money judgment against Clinton in Miami-Dade County Circuit Court based on a stipulated settlement of debt dating back to 1981. Doehla recorded a certified copy of this judgment with the Miami-Dade Circuit Court Clerk on February 7, 1991. This debt went uncollected for eleven years, until Doehla learned that Clinton had acquired real property in Monroe County.

Doehla then attempted to collect on the stipulated judgment he had entered with Clinton in 1991. He sought to record the stipulated judgment in Monroe County and obtain a lien on Clinton’s real property. In addition, Doehla obtained a writ of execution for the judgment from the Miami-Dade County Circuit Court.

Doehla thereafter made two unsuccessful attempts to perfect a lien on Clinton’s real property in Monroe County. The first attempt occurred on July 30, 2002. Doehla recorded a certified copy of the one-page judgment that did not contain Doehla’s home address, as required by section 55.10, Florida Statutes (2001). The second unsuccessful attempt occurred on July 31, 2002. Doehla recorded a copy of the one-page judgment that contained Doehla’s address, but was not certified, as required by section 55.10.

Pursuant to the writ of execution issued on the judgment by the Miami-Dade County Circuit Court, the Monroe County Sheriff began execution proceedings by issuing a Notice of Sheriffs Levy on October 1, 2002, and published a Notice of Sheriffs Levy on October 2, 2002. The date of sale was set for November 6, 2002.

On November 5, 2002, Clinton filed an “Emergency Petition to Enjoin Sheriffs Levy and Sheriffs Sale” in the Monroe County Circuit Court and requested that the court enter an order finding that Doehla had not perfected the lien on the real property, and temporarily and permanently enjoin the Sheriffs sale. On the same date, after 5 p.m., Doehla recorded a certified copy of the correct judgment and correct holder’s affidavit that complied with section 55.10.

The trial judge granted Clinton a temporary stay, pending a hearing on the matter, and subject to a $285,000 bond to be posted by Clinton. Clinton did not post the bond. On November 6, 2002, the Sheriffs sale proceeded, and the property was sold.

On October 28, 2003, Clinton filed an “Amended Motion for Partial Summary Judgment” in which he sought the same relief sought in the initial Emergency Petition, claiming that the sale was invalid. The trial court eventually issued orders holding that the first two recordings did not comply with section 55.10. Nonetheless, on September 7, 2005, the trial court entered an order that under the circumstances presented, the Sheriffs sale should not be set aside.

We hold that the trial court erred when it found that the defects in the recording could have been, and were corrected, prior to the sale of the property. A judgment lien must be perfected prior to invoking the right to levy upon and sell real property, pursuant to section 55.10.

Section 55.10(1) outlines the procedure for creating judgment liens on real property. A judgment creditor must first perfect a lien against the lands of a judgment debtor before proceeding with the final process under section 56.061, Florida Statutes. See Diaz v. Plumhoff, 742 So.2d 846, 847 (Fla. 2d DCA 1999). When a judgment creditor fails to meet these requirements, “[njothing prevents the holder of a recorded judgment which does not properly contain the address of the creditor from curing the defect by re-recording the judgment and simultaneously filing an affidavit with the address as provided for in section 55.10 of the Florida Statutes.” Farkus v. Florida Land Sales and Dev. Co., 915 So.2d 688, fn. 1 (Fla. 5th DCA 2005). However, “[s]uch re-recording would not relate back to the original recording of the judgment, but would create a lien on property from the date of the rerecording forward.” Id.

When Doehla recorded a certified copy of the corrected judgment and corrected holder’s affidavit that complied with section 55.10, on November 5, 2002, the rerecording created a lien on Clinton’s property from November 5, 2002 onward and did not relate back to July of 2002.

Consequently, the notice of the Sheriffs Levy published on October 2, 2002 cannot stand because a lien had not been perfected on Clinton’s real property in Monroe County at that time. Accordingly, we reverse the trial court’s order and remand with instructions that the Sheriffs sale be vacated.

Reversed and remanded with instructions.


text:
    Roland A. SPRINT, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D06-0187.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    Roland A. Sprint, pro se, Appellant.
    Kim Fluharty, General Counsel, Florida Parole Commission, Tallahassee, for Ap-pellee.
   PER CURIAM.

The appellant filed this appeal seeking review of an “Order Closing File,” entered on December 8, 2006, which found that there were no valid pending motions and directed the Clerk of Court to close the file. This order was entered subsequent to a final “Order Denying Mandamus Relief,” which had been entered on October 12, 2005, and an “Order on Petitioner’s ‘Delay [sic] Motion for Recusal’,” which had been entered on October 27, 2005. Because no judicial labor remained to be done by the trial court after the entry of these orders, the time for filing a notice of appeal ran from October 27, 2005, and not from December 8, 2006. See McQuaig v. Wal-Mart Stores, Inc., 789 So.2d 1215 (Fla. 1st DCA 2001). Therefore the notice of appeal did not timely invoke this Court’s jurisdiction. See Fla. R.App. P. 9.110(b). Accordingly, this appeal must be, and is hereby, DISMISSED.

ERVIN, BENTON, and BROWNING, JJ., concur.


text:
    A.M., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0486.
    District Court of Appeal of Florida, First District.
    July 7, 2006.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See S.D. v. State, 882 So.2d 447 (Fla. 4th DCA 2004).

WOLF, VAN NORTWICK, and BROWNING, JJ., concur.


author: VILLANTI, Judge.

text:
    James C. PEACOCK, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-982.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.
    Rehearing Denied July 31, 2006.
   VILLANTI, Judge.

James C. Peacock appeals the postcon-viction court’s denial of his pro se motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court denied the motion as successive because Peacock had previously filed a rule 3.850 motion, which it denied in part and dismissed in part on February 24, 2005, after an evidentiary hearing. Peacock’s appeal of the postcon-viction court’s February 24, 2005, order is pending in this court in case number 2D05-1984.

The postconviction court did not have jurisdiction to rule on Peacock’s second rule 3.850 motion because the claims raised therein were identical to claims currently under consideration in this court. See Tellas v. State, 811 So.2d 756 (Fla. 1st DCA 2002). Therefore, we reverse the postconviction court’s order denying Peacock’s rule 3.850 motion and remand for entry of an order of dismissal.

Reversed and remanded.

CASANEUVA and WALLACE, JJ., Concur.


text:
    Scott STANLEY, Appellant, v. Crystal BERRY, Appellee.
    No. 1D06-1547.
    District Court of Appeal of Florida, First District.
    July 11, 2006.
    Scott A. Stanley, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

The court has considered appellant’s motion for review of the circuit court’s order denying insolvency. We affirm the circuit court’s denial of insolvency. Appellant has failed to demonstrate any entitlement to relief. Only in cases involving criminal or collateral criminal proceedings does an incarcerated party who has been declared indigent for purposes of proceeding in the lower tribunal remain indigent. Fla. R.App. P. 9.430(b)(1)(B). As the instant proceeding is non-criminal, this presumption does not apply here.

The appellant also fails to demonstrate any error in the circuit court’s oi'der. The circuit court complied with rule 9.430 and provided reasons for its denial of the motion. The circuit court denied the motion for order of insolvency as legally insufficient based upon appellant’s failure to provide an affidavit as to economic status. Section 57.085, Florida Statutes (2005), provides that an indigent prisoner may defer prepayment of court costs and fees by filing an affidavit of indigency which contains among other things, the nature and amount of prisoner’s income as well as tangible and intangible property. As appellant did not provide this information, the circuit court properly denied the motion.

BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Thomas TROWBRIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1769.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2006.
    Thomas H. Trowbridge, Lake City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Alliy v. State, 863 So.2d 492 (Fla. 5th DCA 2004); Ruff v. State, 840 So.2d 1145 (Fla. 5th DCA 2003).

PLEUS, C.J., MONACO, J., and SHARP, W., Senior Judge, concur.


text:
    Bobby MERCER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1560.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2006.
    Bobby L. Mercer, Lake City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Mercer v. State, 919 So.2d 460 (Fla. 5th DCA 2006).

THOMPSON and MONACO, JJ., SHARP, W., Senior Judge, concur.


text:
    Nicholas MUNION, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-138.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2006.
    James S. Purdy, Public Defender, and, Rose M. Levering, Assistant Public, Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Leonard v. State, 760 So.2d 114 (Fla.2000); State v. Jefferson, 758 So.2d 661 (Fla.2000); Robinson v. State, 373 So.2d 898 (Fla.1979).

MONACO, TORPY and LAWSON, JJ., concur.


text:
    Tracy L. COLLIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2961.
    District Court of Appeal of Florida, First District.
    July 12, 2006.
    Tracy L. Collier, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

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


text:
    Betty JONES, Appellant, v. MIAMI-DADE COMMUNITY COLLEGE & Gallagher Bassett Services, Inc., Appellees.
    No. 1D05-1032.
    District Court of Appeal of Florida, First District.
    July 13, 2006.
    William F. Souza and Christopher Graver of Law Offices of William F. Souza, North Miami Beach, for Appellant.
    Karen M. Gilmartin of Kelley, Kronen-berg, Gilmartin, Fichtel & Wander, Miami Lakes, for Appellees.
   PER CURIAM.

Betty Jones appeals an order of the judge of compensation claims (JCC) finding that the parties had reached a settlement of the workers’ compensation case at issue. We conclude that Jones rejected or repudiated the deal, as was her right pursuant to the terms of the settlement papers submitted by the E/C. We also note that a JCC’s authority in such situations extends only to a determination of whether the parties reached a settlement. See Fivecoat v. Publix Super Markets, Inc., 928 So.2d 402 (Fla. 1st DCA April, 2006); Jacobsen v. Ross Stores, 882 So.2d 431, 432 (Fla. 1st DCA 2004).

REVERSED.

KAHN, C.J., ERVIN and VAN NORTWICK, JJ., concur.


text:
    Randall T. PRATER, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D05-5697.
    District Court of Appeal of Florida, First District.
    July 13, 2006.
    Appellant Randall T. Prater, pro se.
    Charles J. Crist, Jr., Attorney General, and Joe Belitzky, Sr. Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Prater appeals the trial court’s order directing the clerk of courts to forward a certified copy of an underlying appealable order to the New River Correctional Institution pursuant to section 944.279(1), Florida Statutes (2004). We find such an order to be a non-appeal-able, non-final order. See, e.g., Yasir v. Hancock, 868 So.2d 670 (Fla. 2d DCA 2004) (defendant seeking review of trial court’s recommendation of sanctions under section 944.279 appealed the order that found his pleading frivolous, not the order directing the court to forward the written findings). Accordingly, this appeal is DISMISSED for a lack of jurisdiction.

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