author: PER CURIAM. LaROSE, Judge,

text:
    James J. PALAWSKI, Appellant, v. RIVIERA SOUTHSHORE VENTURES, LLC, and John P. Fleck, Jr., Appellees.
    No. 2D06-5244.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.
    Rehearing Denied Nov. 1, 2007.
    Terence Matthews, Bradenton, for Appellant.

      Michael D. Allweiss, St. Petersburg, and Donna J. Fudge of Buckley & Fudge, P.A., St. Petersburg, for Appellee Riviera Southshore Ventures, LLC.
    No appearance for Appellee John P. Fleck, Jr.
   PER CURIAM.

Affirmed.

NORTHCUTT, C.J., and SALCINES, J. Concur.

LaROSE, J., Concurs with opinion.

LaROSE, Judge,

Concurring.

This is a specific performance case. The trial court entered a final judgment concluding that Riviera Southshore Ventures, LLC (Riviera) was entitled to specific performance of three real estate contracts it entered with James J. Palawski.

I agree that we should affirm the final judgment. Yet, as I studied the record, a recurring question troubled me — Why are we here? The parties settled this case and I am disturbed that we must address issues that rightfully should have gone away. A brief recitation of the facts and proceedings below provides the setting for my ennui.

Mr. Palawski agreed to sell three real estate parcels to Riviera for a total of $700,000. The parties executed three separate contracts. These contracts were but part of Riviera’s larger land-acquisition effort in Manatee County. Ostensibly because of the complications inherent in the land assembly process, each contract included an addendum providing specific time periods for land assembly, due diligence, and closing. Riviera was required to give Mr. Palawski various notices as it opted to progress through the various stages outlined in the addenda. This trifurcated process gave Riviera maximum flexibility to purchase and simultaneously close on numerous parcels. The contracts provided that time was of the essence.

At some point, Mr. Palawski learned that his property had been rezoned, increasing its value to approximately $2.4 million. When Mr. Palawski refused to close, Riviera sued for specific performance. In its First Amended Complaint, Riviera alleged that it had timely complied with all its contractual obligations, including giving proper notices. Mr. Palawski denied these allegations and reiterated this denial as a separate defense. Essentially, Mr. Palawski claimed that Riviera failed to provide timely notices as it moved from the due diligence stage to the closing stage. Thus, according to Mr. Palawski, this failure constituted a breach or lapse of the contracts and excused his further performance. Mr. Palawski’s pleading did not mention that time was of the essence. Riviera denied his defenses. As a trial date approached, Riviera claimed that Mr. Palawski had waived any argument that time was of the essence. Mr. Palawski argued that Riviera had not pleaded waiver and was barred from raising this issue.

The parties argued at length as to whether Mr. Palawski raised an appropriate affirmative defense to which Riviera had to assert an avoidance. See Fla. R. Civ. P. 1.100(a), 1.140(h)(1). I need not detail the arguments and counter arguments. Suffice it to say that the trial court wisely ruled that if Mr. Palawski testified that time was of the essence and important to him, Riviera could present evidence demonstrating that time was not of the essence. After an evidentiary hearing, the trial court found that Mr. Palawski had waived any time-of-.the-essence defense. The record amply supports this conclusion. Throughout their dealings, the parties acted in a way supporting the conclusion that time was not of the essence as to providing notices or that Mr. Palawski had waived any alleged untimeliness.

All well and good. But the question still gnaws — Why are we here? The parties tried the specific performance claim on September 25, 2006. The trial court entered its final judgment on October 16, 2006. But, months earlier, on January 81, 2006, the parties settled their dispute on the record before the trial court. The terms, as announced by Mr. Palawski’s counsel, were simple. Mr. Palawski would close on the three contracts. Thereafter, the trial court would hold a hearing to determine if Riviera was entitled to specific performance. If yes, no further action was contemplated. If no, the trial court would conduct another hearing to determine if the parcels were worth more than $700,000. If they were, Riviera would pay the difference to Mr. Palawski. The trial court accepted the settlement and described its general terms in the final judgment. Mr. Palawski, in fact, closed on the three parcels.

I cannot say that the parties acted irrationally. Riviera needed the land and apparently was willing to risk paying more. Mr. Palawski, for his part, created the potential for a bigger payday. The trial court’s continued involvement served no purpose other than as the vehicle to determine whether more money would change hands under the settlement. The parties knew this. They specifically agreed that they would not appeal any trial court ruling on the specific performance issue or the damage issue. Nonetheless, after the trial court concluded that Mr. Palawski was entitled to no more, all in accord with the parties’ settlement, Mr. Palawski turned to us.

There can be no mistake. The parties settled the case, performed their settlement obligations, and waived any appellate rights. I am aware of nothing that prevents parties in civil litigation from waiving these rights. Settlements bring peace. Obviously, the settlement between Mr. Pa-lawski and Riviera does not fit within that paradigm.

Unfortunately, however, we are forced to address the issues on appeal. Mr. Pa-lawski presented us with a trial court’s final judgment. This final judgment is an appealable order. See Haas v. Roe, 696 So.2d 1254, 1254 n. 1 (Fla. 2d DCA 1997). Whether we like it or not, Mr. Palawski, without objection from Riviera, invoked our jurisdiction. See Fla. R.App. P. 9.030(b)(1)(A) (providing that “[district courts of appeal shall review, by appeal, ... final orders of trial courts.”). The parties did not address the settlement in their briefs or in any motions allowed under our rules. Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 792 So.2d 539, 543 n. 4 (Fla. ,4th DCA 2001) (noting standing issue not raised on appeal). I conclude that we are powerless to ignore this appeal. See In Interest of D.E.N., 504 So.2d 514, 515 (Fla. 5th DCA 1987) (holding appellate court does not determine issues not raised on appeal). Decades ago, our supreme court observed that

when competent parties upon a sufficient consideration enter into an agreement to waive errors and not to appeal from the judgment of the court of original jurisdiction, their object being to settle their differences and terminate the litigation, and such agreement is seasonably brought to the attention of the appellate court by appropriate proceedings, it should be recognized and given effect.

Nail v. Browning, 74 Fla. 108, 76 So. 679, 680 (1917) (emphasis added).

Whether Mr. Palawski waived his appellate rights was not an issue framed for us by the parties. Hesitant as I am to interfere with the parties’ right to preserve and select the issues they want us to address, I conclude that the trial court did not err in entering a final judgment in favor of Riviera. In the process, however, the parties spent more money, the lawyers devoted additional time to the case, and other appellate cases awaited our attention as we focused on a matter that seems to me to have been finally and absolutely settled.

      . Mr. Palawski contracted with Riviera’s predecessors-in-interest. Riviera sued for specific performance as assignee of the contracts. Solely for convenience, I will treat Riviera as the party contracting with Mr. Palawski.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Amenhotep Alihakeem KALFANI, Appellee.
    No. 2D06-1960.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2007.
    Rehearing Denied Nov. 1, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellee.
   SILBERMAN, Judge.

In trial court case number 05-CF-023223, the State charged Amenhotep Ali-hakeem Kalfani with robbery with a firearm, possession of cocaine, and possession of drug paraphernalia. In case number 05-CF-024694, the State charged Kalfani with felon in possession of a firearm. When a key witness for the State failed to appear for trial, the trial court dismissed both cases. The State appeals the order of dismissal. We conclude that the trial court erred in dismissing the cases and reverse.

The absent witness was the victim of the alleged robbery and was the only person who could testify as to Kalfani’s possession of a firearm. At a pretrial conference on April 6, 2006, Kalfani’s counsel advised the court that the victim had twice failed to appear for deposition even though he had been served with a subpoena. Counsel stated that trial was set for April 10, 2006, that he needed more time to depose the victim, that speedy trial would not run until May 21, 2006, and that he did not want to waive speedy trial. The State indicated that the victim had been subpoenaed for the upcoming trial but suggested that perhaps the trial court should issue an order to show cause to the victim. The trial court decided to leave the case set for trial but did not issue an order to show cause.

On the scheduled trial date, Kalfani’s counsel advised the trial court that the victim was not present and reminded the court that he had failed to appear for deposition. Counsel reiterated that speedy trial would not run until May and that he did not wish to waive speedy trial. In response to the court’s question, the State acknowledged that it was not ready to go to trial. At that point, the trial court invited defense counsel to make a motion. Kalfani’s counsel moved for dismissal, which the court granted as to both cases.

We review the order of dismissal using the abuse of discretion standard. See State v. Ray, 525 So.2d 1033, 1034 (Fla. 2d DCA 1988); State v. L.E., 754 So.2d 60, 61 (Fla. 3d DCA 2000). It is well established that dismissal is an extreme sanction that “should be imposed only when less severe sanctions would not accomplish the desired result.” Ray, 525 So.2d at 1034. The sanction is “reserved solely for those instances where no feasible alternative exists.” L.E., 754 So.2d at 61; see also State v. White, 792 So.2d 606, 607 (Fla. 4th DCA 2001) (“Because of the resultant immunity from future prosecution of a particular charge, dismissal is a very harsh penalty to impose upon the State and is reserved for those instances where no viable alternative exists.”). In L.E., this court recognized that the sanction of dismissal punishes the public rather than the witness who failed to appear or the State, and it results in a windfall to the defendant. 754 So.2d at 61.

In State v. Ottrock, 573 So.2d 169, 169 (Fla. 4th DCA 1991), the trial court dismissed an information because the victim’s deposition had not taken place and the victim failed to appear for trial even though he was under subpoena. Id. The appellate court reversed, observing that there was no indication the State had violated any discovery orders, that the defendant did not show any prejudice in the preparation of his defense, and that the defendant was not incarcerated while awaiting trial. Id. at 169-70. The court sympathized with the trial court’s frustration but concluded that the facts of the case did not reflect “the type of prejudice or unfairness which allows a dismissal.” Id. at 170.

In State v. Hamilton, 387 So.2d 555, 556 (Fla. 2d DCA 1980), this court reversed an order of dismissal that had been entered when the State asked for a second continuance due to witness unavailability. The court stated that dismissal is “too extreme a sanction where there is no showing of prejudice or unfairness to the [defendant].” Id. The court also noted that the trial court could have denied the motion for continuance and then, if the State failed to prove a prima facie case, the trial court could have entered a directed verdict for the defendant. Id.

This court has reiterated that an alternative to dismissal is to continue the case for a period of time that is sufficient for the defendant to obtain the discovery and prepare for trial, assuming adequate time remains under the defendant’s speedy trial period. See Ray, 525 So.2d at 1034. A trial court has sanctions available to it that could be directed at a witness to compel attendance at a deposition and at trial. See State v. Gonzalez, 695 So.2d 1290, 1292 (Fla. 4th DCA 1997) (discussing the use of contempt proceedings or the issuance of a writ of bodily attachment to compel a witness’s attendance). If a court elects to deny a request for continuance by the State, the State may then choose to withdraw the charges (and if possible, refile them at a later time) or may choose to proceed to trial without the witness. See L.E., 754 So.2d at 61; Ottrock, 573 So.2d at 169; State v. S.M.F., 546 So.2d 20, 21 (Fla. 3d DCA 1989).

In certain circumstances, dismissal may be appropriate when the State does not “give the trial court any reasonable assurance that it could or would find and serve the victim, or that it would go forward with the case if continued.” White, 792 So.2d at 607. In White, at the time of trial the State had not subpoenaed or even located the victim, who was homeless. The victim’s mother had told the prosecutor that she would try to find the victim, but she was unsuccessful by the end of the two-week trial docket. The State was unable to provide any assurance to the trial court that it could produce the victim at a later date. Id.

In State v. T.D., 837 So.2d 551 (Fla. 4th DCA 2003), dismissal was upheld when the victim failed to appear for trial in a refiled case. The State had nol prossed the original case after the victim failed to appear for deposition or trial. At the time of trial in the refiled case, the trial court stated that continued delay was prejudicial to T.D., a minor. Id. at 552. The court asked the State to call its first witness, but the State refused to do so or to go forward with the trial, indicating that “[i]f Your Honor wants to dismiss the case, that’s up to you.” Id. at 553. The Fourth District concluded that under the circumstances, the trial court did not abuse its discretion in dismissing the charges. Id.

Here, dismissal was too harsh a sanction, particularly when lesser sanctions had not been attempted to compel the victim’s appearance. The State suggested that the trial court could issue an order to show cause to the victim, but the trial court did not do so. The victim was under subpoena, and there is no indication that the victim failed to appear for deposition or at trial through any fault of the State. Although defense counsel noted that he needed to take the victim’s deposition and that Kalfani was in custody, defense counsel did not argue that a sanction short of dismissal would prejudice his client. Further, neither the State nor defense counsel asserted that further efforts to secure the victim’s presence would have been futile.

We recognize the difficulty the trial court faced in balancing the need to give the State a reasonable opportunity to prosecute its cases while protecting Kalfani’s right to a fair and speedy trial. But under these circumstances, the court’s dismissal of the case without first attempting less severe alternatives requires that we reverse and remand for further proceedings.

Reversed and remanded.

NORTHCUTT, C.J., and CASANUEVA, J., Concur.


author: KELLY, Judge. CASANUEVA, J.,

text:
    Taisyer KATTOUM and Saadia Kattoum, Appellants, v. NEW HAMPSHIRE INDEMNITY COMPANY, Appellee.
    No. 2D05-3526.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2007.
    Rehearing Denied Nov. 5, 2007.

      Charles P. Schropp of Schropp, Buell & Elligett, P.A., Tampa, and James L. Dowl-ing of Law Offices of Berger & Dowling, Palm Harbor, for Appellants.
    Peter S. Roumbos and Stuart C. Poage of Young, Bill, Fugett & Roumbos, P.A., Pensacola, for Appellee.
   KELLY, Judge.

Taisyer Kattoum and his wife, Saadia Kattoum, appeal the final declaratory judgment in favor of New Hampshire Indemnity Company (NHIC) holding that the Kattoums’ claims were excluded from coverage under their NHIC policy because their loss was the result of an intentional act of Mrs. Kattoum. The Kattoums argue that the trial court erred’in construing the policy and that the intentional acts exclusion in the NHIC policy did not exclude an “innocent co-insured” from coverage based on the intentional misconduct of another insured. We agree that the trial court erred in construing the Kattoums’ insurance policy and, accordingly, we reverse.

Florida has long recognized that an insurer is not Hable to indemnify an insured for losses directly caused by the fraud or misconduct of that insured. Carter v. Carter, 88 So.2d 153 (Fla.1956). However, because insurance policies frequently provide coverage for more than one insured, the question arises as to whether the policy is intended to insure all named insureds jointly or whether the coverage is severable so as to provide separate coverage of the respective interests of two or more joint owners and co-insureds. If the policy provides joint coverage, the fraud or misconduct of one insured can be imputed to an “innocent co-insured.” See Auto-Owners Ins. Co. v. Eddinger, 366 So.2d 123-24 (Fla. 2d DCA 1979). However, Florida’s courts have held that the intentional misconduct of one insured will only be imputed to an innocent co-insured where the insurance policy contains a clear statement that the misconduct of one.insured abrogates the coverage of all insureds. See id.

The dispute between the Kattoums and NHIC had its genesis in an argument between Mr. and Mrs. Kattoum. After the argument, Mrs. Kattoum crashed Mr. Kattoum’s Lincoln Town Car into the wall of their family-operated car wash. She claimed it was an accident; however, a police investigation of the incident concluded that it was intentional. Federated Mutual Insurance Company, which insured the building, paid the owner of the building for the damage and then sought reimbursement from the Kattoums. The Katt-oums in turn sought coverage from NHIC under the liability portion of their automobile policy. Mr. Kattoum also made a claim under the collision coverage portion of the policy for the damage to his car. NHIC rejected the Kattoums’ claims and filed a complaint for declaratory judgment citing a provision in its policy that NHIC claimed excluded coverage for damage intentionally caused by “any insured.” Mr. Kattoum countered that he was an innocent co-insured and therefore the intentional conduct of his wife could not be attributed to him.

NHIC moved for summary judgment on the issue of whether Mr. Kattoum could raise the “innocent co-insured” defense. NHIC argued that the use of the words “any insured” in the intentional acts exclusion of its policy meant that the pohcy provided joint coverage rather than several coverage and thus, Mrs. Kattoum’s actions were imputed to her husband, barring him from claiming innocent co-insured status. The trial court agreed and allowed the case to go to trial on the issue of whether Mrs. Kattoum’s collision was an intentional act. The jury concluded that it was, and the trial court entered judgment for NHIC. After the trial, Mr. Kattoum moved for summary judgment on his counterclaim for damage to his Town Car. He argued that the intentional acts exclusion did not apply to the collision coverage portion of the policy. The trial court rejected this argument and ruled in favor of NHIC based on its conclusion that the entire NHIC policy was subject to the intentional acts exclusion.

In this appeal the Kattoums ar■gue that the trial court erred in construing the NHIC insurance policy. The interpretation of an insurance contract is a question of law; accordingly, we review de novo the trial court’s rulings. Biltmore Constr. Co. v. Owners Ins. Co., 842 So.2d 947, 949 (Fla. 2d DCA 2003). Part A of the Kattoums’ policy provides liability coverage. The “exclusions” paragraph of Part A states, “[w]e do not provide Liability Coverage for any ‘insured’ ... [w]ho intentionally causes ... ‘property damage.’ ” This language plainly excludes liability coverage for any insured who has intentionally caused property damage. It equally plainly does not take away the coverage of an innocent co-insured who did not intentionally cause that damage. This exclusion carefully limits its scope, to insureds who intentionally; cause damage leaving intact coverage for those insureds who did not participate in the intentional misconduct. See Sales v. State Farm Fire & Cas. Co., 849 F.2d 1383, 1386, n. 2 (11th Cir.1988); Haynes v. Hanover Ins. Co., 783 F.2d 136, 138 (8th Cir.1986); Montgomery Mut. Ins. Co. v. Dyer, 170 F.Supp.2d 618, 623-26 (W.D.Va.2001); Fusion v. Nat’l Mut. Ins. Co., 440 N.E.2d 751, 751-52, 754 (Ind.App.1982); K & W Builders, Inc. v. Merck. & Bus. Men’s Mut. Ins. Co., 255 Va. 5, 495 S.E.2d 473, 478 (1998); see also Marvin L. Karp, Arson and the Innocent Co-Insured, 22-SPG Brief 8 (1993) (noting that where a policy states that the insurance company does “not provide coverage for any insured who has intentionally concealed or misrepresented any material fact ... [t]he meaning of [the] language (whether intended or not) could not be more clear: The only insured who is barred by the fraud is the insured who actually did the concealing or misrepresenting”); Richard K. O’Donnell, Imputation of Fraud and Bad Faith: The Role of the Public Adjuster, Co-Insured and Independent Adjuster, 22 Tort & Ins. L.J. 662, 686 (1987) (discussing the fraud clause appearing in the 7-77 edition of the ISO homeowner’s forms which states: “We do not provide coverage for any insured who has intentionally concealed or misrepresented any material fact ...” and noting that “[t]his ‘insured who’ language unambiguously restricts the recovery bar to the guilty insured.”).

The cases NHIC relies on to support its argument that the use of the words “any insured” unambiguously indicates that the policy provides joint coverage rather than several coverage are materially distinguishable because of the context in which the words “any insured” were used in the policies at issue in those cases. For example, in USAA Casualty Insurance Co. v. Gordon, 707 So.2d 1185, 1186 (Fla. 4th DCA 1998), the policy contained an exclusion section that stated that the company did not insure for, among other things, “Intentional Loss.” It defined intentional loss as “meaning any loss arising out of any act committed ... by or at the direction of any insured.” In that context, the court held that the words “any insured” unambiguously indicated that the policy provided joint coverage because intentional damage was excluded when it was caused by “any insured.” In stating that the phrase “any insured” unambiguously indicated joint coverage, the court was making a comparison to the phrase “the insured,” a phrase that would be ambiguous in this context because it would not clearly identify which insured’s intentional acts were excluded. See id. at 1186—87 (citing Sales, 849 F.2d at 1385, which explains that compared to an exclusion based on the conduct of “the insured,” an exclusion substituting the phrase “any insured” unambiguously expresses a contractual intent to create joint obligations and to prohibit recovery by an innocent coin-sured); see also State Farm Fire & Cas. Ins. Co. v. Kane, 715 F.Supp. 1558, 1561 (S.D.Fla.1989). Accordingly, we reject NHIC’s contention that the phrase “any insured” always equates to joint coverage regardless of the context in which it is used.

The focus in NHIC’s exclusion is squarely on the person responsible for the intentional act, not on the resulting loss. NHIC’s policy does not exclude coverage for losses intentionally caused by “any insured,” it excludes from coverage “any insured loho ” intentionally causes bodily injury or property damage. The clause excludes a particular insured, not a particular loss, and the policy identifies which insured is excluded—it is the insured “who intentionally causes” a loss. Because this language unambiguously restricts the exclusion to the “guilty” insured, Mr. Katt-oum is not excluded from coverage under Part A of the policy.

Mr. Kattoum also sought reimbursement for the damage to his car. Part D of the NHIC policy, titled “Coverage for Damage to Your Auto,” states that NHIC “will pay for direct and accidental loss to ‘your covered auto.’ ” The trial court apparently concluded that the intentional acts exclusion in Part A of the policy rendered the entire policy joint. The trial court’s conclusion is flawed in two respects. First, as explained above, the trial court erred in construing the exclusion and therefore failed to recognize that the coverage provided by the liability portion of the NHIC policy was several, not joint. Second, even if the trial court’s assessment of the exclusion had been correct, it erred in applying the exclusion contained in Part A of the policy to Part D. See Brown v. Travelers Ins. Co., 649 So.2d 912 (Fla. 4th DCA 1995) (holding that an intentional acts exclusion appearing only in the liability section could not be made applicable to the separate property damage section in the absence of language in the policy indicating that those provisions were incorporated into other sections of the policy). Part D of NHIC’s policy did not include an intentional acts exclusion, nor did Part D incorporate the exclusion in Part A. Accordingly, Mr. Kattoum was not excluded from coverage under Part D of the policy.

Reversed and remanded.

LEVENS, WILLIAM P., Associate Judge, Concurs.

CASANUEVA, J., Concurs specially with an opinion in which LEVENS, WILLIAM P., Associate Judge, Concurs.

CASANUEVA, J.,

Specially concurring.

This case presents two issues pertaining to the construction of a contract for an insurance policy. As for the discussion regarding Part A of the policy, I concur with the majority that the exclusion language applies to the actor who intentionally caused the loss, not to the resulting loss itself. I also concur that an “any insured” exclusion exacts a different interpretation than an “any insured who” exclusion. If the exclusion was simply “any insured,” I would read it to exclude coverage for all insureds because it applied to at least one of the insureds. However, NHIC’s liability coverage exclusion language of “any insured” contains the additional word “who.” I find the word “who” serves to limit and restrict the more general “any insured” exclusion. Used thusly, it specifically excludes any insured who intentionally causes bodily injury or -property damage.

It is not disputed that Mr. Kattoum was an insured at the time of the loss. It is also not disputed that Mr. Kattoum did not cause the loss. Because the policy language focuses on the actor, not the loss, and based on the clear evidence that Mr. Kattoum was not the “any insured who” intentionally caused the loss, I fully concur with the majority that Mr. Kattoum is not excluded from coverage under Part A of the policy.

I also concur with the majority opinion’s analysis of Part D of the insurance contract entitled “Coverage for Damage to Your Auto.”

      . The grammatical function of “who” in this sentence is to introduce the restrictive relative clause that modifies "any insured.” As such, it provides an integral part of the meaning of the main clause by restricting the antecedent by clarifying which insured is meant. See, e.g., The American Heritage Dictionary of the English Language (4th ed. 2000); Rodney Huddleston and Geoffrey K. Pullum, The Cambridge Grammar of the English Language, (Cambridge University Press 2002); A.J.J. Thomson & A.V. Martinet, A Practical English Grammar, (4th ed., Oxford University Press 1986).


author: ALTENBERND, Judge.

text:
    Clifton LINDQUIST, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5621.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2007.
    Rehearing Denied Oct. 31, 2007.
   ALTENBERND, Judge.

Clifton Lindquist appeals the order denying his motion to correct illegal sentences pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm but write to explain a scrivener’s error in his written sentences.

Mr. Clifton has a long and serious criminal record. In case number 97-15000 in the Circuit Court for Pinellas County, Mr. Clifton was sentenced in February 1998 to two concurrent thirty-year terms of imprisonment with minimum mandatory terms of thirty years. These sentences arose from two offenses committed in August 1997. He qualified for sentencing as a violent career criminal in these cases under sections 775.084(1)(c), (4)(c)(2), Florida Statutes (1997). Those statutes permitted a maximum sentence of forty years’ imprisonment with a minimum term of thirty years’ imprisonment for each count. The transcript clearly shows that the trial court made the findings necessary to sentence Mr. Lindquist under these statutes.

The sentencing forms used by the trial court to reduce these sentences to writing did not contain a section for sentencing as a violent career criminal. The trial court checked the box for sentencing as a habitual violent felony offender and entered a minimum term of thirty years in the space provided for the minimum term under such sentencing. The form recites that this sentence is imposed in accordance with the provisions of section 775.084(4)(b). If that were the case, the thirty-year minimum mandatory term would exceed the lawful limit. Because the oral pronouncement in the transcript makes it clear that the judge was imposing a violent career criminal sanction and not a habitual violent felony offender sanction, we treat this use of the form as a scrivener’s error and affirm the order denying the motion to correct illegal sentence.

Affirmed with directions to the court to correct the scrivener’s error in the sentences.

FULMER and CASANUEVA, JJ., Concur.


text:
    Randall Lynn HUNT, Appellant, v. Denise Lynn QUESADA, f/k/a Denise Lynn Hunt, Appellee.
    No. 2D06-3373.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 2007.
    Rehearing Denied Dec. 4, 2007.
    Randall Lynn Hunt, pro se.
    Denise Lynn Quesada, f/k/a Denise Lynn Hunt, pro se.
   ALTENBERND, Judge.

Randall Lynn Hunt, the former husband, appeals an order enforcing a final judgment of dissolution of marriage. The order reduced to judgment a tax lien owed by Mr. Hunt but satisfied by the former wife, Denise Lynn Quesada, formerly Denise Lynn Hunt. Although Mr. Hunt asserted that the marital settlement agreement that was incorporated into the final judgment was procured by fraud, and alternatively that Ms. Quesada was herself in violation of the agreement and judgment, he never sought affirmative relief on these claims. We therefore affirm the order enforcing the final judgment of dissolution of marriage.

Mr. Hunt also seeks review of the trial court’s order denying a motion to disqualify the presiding judge. We treat this portion of the appeal as a petition for writ of prohibition and deny the petition. A trial court’s prior adverse rulings are not legally sufficient grounds upon which to base a motion to disqualify. Areizaga v. Spicer, 841 So.2d 494, 496 (Fla. 2d DCA 2003).

Affirmed.

DAVIS, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


author: TORPY, J.

text:
    POST-NEWSWEEK STATIONS ORLANDO, INC., d/b/a WKMG, Appellant, v. Douglas M. GUETZLOE, Appellee.
    Nos. 5D07-430, 5D07-526.
    District Court of Appeal of Florida, Fifth District.
    Oct. 4, 2007.
    Rehearing Denied Nov. 19, 2007.
    Monterey Campbell, Jack A. Kirschen-baum and Maureen A. Vitucei of Gray Robinson, P.A., Melbourne, for Appellant.
    Harry C. Greenfield of Harry C. Greenfield, P.A., Merritt Island, for Amici Curiae The Radio-Television News Directors Assoc., The Reporters Committee for Freedom of the Press and The Society of Professional Journalists.
    Kathleen A. Kirby and Sam Q. Le of Wiley Rein LLP, Washington, D.C., for Amici Curiae The Radio-Television News Directors Assoc.
    Bruce W. Sanford, Bruce D. Brown and Laurie A. Babinski of Baker & Hostetler LLP, Washington, D.C., for Amici Curiae The Society of Professional Journalists.
    Lucy A. Dalglish and Gregg P. Leslie, Arlington, VA, for Amici Curiae The Reporters Committee for Freedom of the Press.
    Sanford L. Bohrer, Judith M. Mercier, Charles D. Tobin and David C. Borucke of Holland & Knight LLP, Orlando, for Ami-ci Curiae The Florida Association of Broadcasters, Orlando Sentinel, South Florida Sun-Sentinel, WBZL-TV, Tribune Company, Inc., WESH-TV, Hearsb-Ar-gyle Television, Inc., WOFL FOX 35, WOGX FOX 51, WRBW 65, WTVT FOX 13, WPTV-TV, WFTS-TV, The Naples Daily News, Treasure Coast Newspapers, The E.W. Scripps Co., The Daytona Beach News-Journal, News-Journal Corp., The Lakeland Ledger, The Sarasota Herald-Tribune, The Ocala Star-Banner, The Gainesville Sun, The New York Times Co., Florida Today, The News-Press, Pensacola News Journal, Tallahassee Democrat, WTSP-TV, WTLV-TV, WJXX-TV, Gan-nett Co., Inc., The Associated Press, The Washington Post, Cable News Network, Inc., The Florida Press Assoc., and The First Amendment Foundation in Support of Defendant/Appellant WKMG.
    Frederic B. O’Neal, Windermere, for Appellee.

      . Although the trial judge cited the statutory attorney-client privilege and the federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996) ("HIPAA”) in his order, Appellee does not specifically argue these issues on appeal and they would not justify the injunction in any event. The attorney-client privilege is an evidentiary privilege, which does not prohibit the publication at issue here. We are not dealing with a situation wherein Appellee claims that the disclosure might jeopardize his right to a fair trial in a criminal proceeding. See, e.g., United States v. Noriega, 752 F.Supp. 1045 (S.D.Fla.1990) (noting injunction against publication of protected communications might be appropriate to protect accused right to fair trial in criminal prosecution); State-Record Co., Inc. v. State, 332 S.C. 346, 504 S.E.2d 592 (1998) (upholding prior restraint to protect fundamental right to fair trial). As to the HIPAA laws, they do not protect against the disclosure of medical records in the circumstances presented here.
      We have not overlooked the issue of ownership of the documents. Based on the state of the record, we assume for the sake of argument, that the storage company did not have legal authority to auction the documents. We further assume that Appellee has made a col-orable claim to ownership of the records. Appellee has not shown that Appellant engaged in unlawful conduct to obtain possession of the records, however, and an ownership interest in the records, standing alone, would not justify an injunction against publication. New York Times Co., 403 U.S. 713, 91 S.Ct. 2140.

   TORPY, J.

Appellant, a television station broadcaster, challenges a temporary injunction that prohibits it from broadcasting the contents of documents obtained from a storage unit leased by Appellee. Appellant’s challenge is based on its argument that the injunction constitutes an unconstitutional prior restraint on free speech. After de novo review, we determine that Appellee failed to meet his heavy burden to justify imposition of the injunction. Therefore, we reverse the injunction order.

Appellant came into possession of eighty boxes of Appellee’s records after they were sold at auction by the owner of a storage facility due to Appellee’s alleged failure to pay rent. An unknown third party purchased the records. Appellant acquired the documents from the third party. Thereafter, Appellant contacted Appellee to inform him that it intended to publish portions of the contents of the records in its telecast. Appellee sought to prevent the public airing of his personal information by filing a two-count complaint seeking declaratory and injunc-tive relief and replevin. He also filed a verified motion for temporary injunction without notice. In the motion, Appellee alleged that the records remained his private property, despite Appellant’s claim of ownership, because the storage facility’s determination that he had failed to pay was erroneous. The motion further alleged that some of the boxes of records included medical records of Appellee and his family, and communications between Appellee and his attorneys. The lower court granted the motion, ex parte, and temporarily enjoined Appellant from publicly airing the information.

After receiving notice of its issuance, Appellant filed a motion to dissolve the temporary injunction, contending that it was overbroad and an unconstitutional pri- or restraint on its right to broadcast news based on lawfully obtained information. Appellant also contended that the injunction had been improperly entered without notice and failed to meet all the requirements of Florida Rule of Civil Procedure 1.610.

A hearing was held on Appellant’s dissolution motion; no evidence was introduced by either party. The parties did stipulate, however, that Appellee is a “public figure” as that phrase is used in First Amendment jurisprudence. Beyond that, the factual underpinning for the court’s order was based entirely on Appellee’s verified motion. At the close of the hearing, the court took the matter under advisement. The following day, the court notified counsel of its intention to enter a detailed order in the case modifying the injunction, in part, but otherwise denying the motion to dissolve it. Before the written order was entered, Appellant filed a notice of appeal, in which it challenged the original temporary injunction and the oral ruling denying the motion to dissolve the temporary injunction. (Case number 07-430). The court then entered a written order denying Appellant’s motion to dissolve the temporary injunction but modifying the injunction. As modified, the injunction prohibits only the publication of the contents of medical records of Appellee and his family and communications between Appellee and his attorneys. Appellant filed a second notice of appeal challenging the written order. (Case number 07-526). We consolidated the two appeals.

Although Appellant raises several arguments, we need only address one— whether the injunction imposes an unconstitutional prior restraint on the press in violation of the First Amendment. We disagree with the parties’ and amici curiae’s assertion that our standard of review is whether the lower court abused its discretion. The evidence upon which the lower court based its ruling was in the form of a verified motion and a stipulated fact. The trial judge’s ruling was expressly based entirely on the application of the law to these undisputed facts; thus, our review is de novo. Smith v. Coalition to Reduce Class Size, 827 So.2d 959 (Fla.2002).

Appellee properly concedes that the injunction at issue here operated as a prior restraint on the First Amendment rights of Appellant and is therefore presumed unconstitutional. See Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (describing temporary and permanent injunctions that forbid speech activities as “classic examples of prior restraints”). This presumption exists because “[p]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Although the prohibition against prior restraints is by no means absolute, the censorship of publication has been considered acceptable only in “exceptional cases.” Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). As our high court has emphasized:

The presumption against prior restraints is heavier — and the degree of protection broader — than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.

Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-59, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). To overcome this presumption of unconstitutionality, the proponent of the injunction bears a “heavy burden.” Neb. Press Ass'n 427 U.S. at 559, 96 S.Ct. 2791.

Although the Supreme Court has never articulated a clear test that we can apply to determine when this “heavy burden” has been met, the Court has demonstrated the weight of this burden by consistently holding that the prohibition against such restraints attaches even when substantial competing interests are at stake. See, e.g., Butterworth v. Smith, 494 U.S. 624, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990) (invalidating criminal statute to extent it prohibited witness from disclosing content of witness’s grand jury testimony); Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) (invalidating state’s criminal statute prohibiting publication of information regarding judicial review commission proceedings); Neb. Press Ass’n, 427 U.S. 539, 96 S.Ct. 2791 (invalidating, as improper prior restraint, pretrial gag order prohibiting publication of defendant’s confession in highly publicized murder trial, despite state’s competing interest in protecting defendant’s right to fair trial); New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (prohibiting injunction, as improper prior restraint, against publication of stolen, classified government documents). Indeed, in over two centuries, the Supreme Court has never sustained a prior restraint involving pure speech, such as the one at issue here. See Matter of Providence Journal Co., 820 F.2d 1342, 1348 (1st Cir.1986).

Here, Appellee asserts that his privacy interest in his private papers, and in particular his medical information and attorney-client communications, is sufficient to sustain his burden. Although Appellee does not direct our attention to any Supreme Court case that has ever upheld a prior restraint to protect a competing privacy interest, the possibility that privacy rights might justify such a restraint has not been completely foreclosed by the Court. For example, in a leading case, although stating that a prior restraint may be justified only in ^exceptional cases,” such as maintaining the secrecy of troop movements in wartime, the Court emphasized that its holding did not address the “authority to prevent publications to protect’ private rights according to principles ... of equity.” Near, 283 U.S. at 716, 51 S.Ct. 625. See also The Florida Star v. B.J.F., 491 U.S. 524, 541, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (declining to conclude that “there is no zone of personal privacy within which the State may protect the individual from intrusion by the press ...”).

Notwithstanding any suggestion by the Court that privacy rights might trump the First Amendment in a given circumstance, time after time, when the high court has been called upon to consider whether the free exercise of speech under the First Amendment may be curtailed to protect privacy rights, it has not been hesitant in resolving the ostensible conflict in favor of the exercise' of free speech. The Court has done so by prohibiting both prior restraints and the constitutionally less-intrusive, post-publication imposition of criminal and civil liability. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (holding, based on First Amendment protections, although government interest in protecting private conversation is strong, publication of contents of illegally obtained tape recording on matter of public interest cannot give rise to damage claim); The Florida Star, 491 U.S. 524, 109 S.Ct. 2603, (holding that state statute prohibiting media from publishing name of rape victim was unconstitutional because not narrowly tailored to address state interest of “highest order”); Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979) (holding state statute, which prohibited publication of names of juvenile offenders and under which two newspapers were indicted, unconstitutional); Okla. Publ’g Co. v. Okla. County Dist. Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (holding as unconstitutional pretrial order enjoining media from publishing name or photograph of eleven-year-old boy in connection with juvenile proceeding); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (holding as unconstitutional civil damage award against television station for publishing name of rape-murder victim); Org. for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (holding injunction against private pamphleteering not valid even assuming it constitutes an invasion of privacy).

Although these precedents are somewhat instructive because they suggest that privacy will rarely trump the First Amendment, all of these cases are distinguishable from the situation that we are confronted with here. In this case, Appellee seeks to enjoin the publication of documents that, based on the nature of the documents, are of no obvious public concern. We particularly observe that in most instances, an individual’s medical records would not be of public interest. We do not think that Appellee’s status as a public figure means that every aspect of his private life is of public concern. See Nixon v. Admin’r of Gen. Servs., 433 U.S. 425, 457, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) (suggesting that even public officials are “not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity”). But even if Appellee’s documents are of public concern due to his status, it is difficult to envision how the medical records of his family could be a concern to the public.

The abstract issue framed by the parties in this case, therefore, involves the extent to which privacy interests in information, which is of no apparent public concern, may be asserted as a basis for limiting the First Amendment’s prohibition against censored expression by a publisher who comes into possession of the information without resort to improper means. Appellant urges that the answer is never; it contends that the sole remedy for an alleged invasion of privacy under these circumstances is an action for damages. Otherwise, Appellant argues that the determination of whether a fact is of public concern is taken away from editors and placed with the courts, amounting to prohibited censorship. Appellee’s position is not as rigid. He contends that a prior restraint based on privacy grounds may be justified when privacy rights outweigh the First Amendment’s protections. He urges that the balancing of these interests, as was done by the lower court here, is the appropriate approach. We find it unnecessary to sanction either position to resolve this case because, even under Ap-pellee’s approach, we determine that the injunction is not justified as Appellee has failed to establish that the contents of the records at issue are sufficiently sensitive to give rise to an actionable invasion of privacy should the documents be published. Therefore, even if we were to balance the respective rights of the parties, Appellant would prevail.

To reach this conclusion, we need only examine Wolfson v. Lewis, 924 F.Supp. 1413 (E.D.Pa.1996), the case upon which Appellee places his heaviest reliance. There, the court entered an injunction to prohibit broadcast journalists from engaging in certain conduct in connection with an Inside Edition exposé on the high salaries being paid to the executives of U.S. Healthcare. The court predicated the injunction on a finding that the plaintiff had established a likelihood that he would succeed on his claims for unlawful interception of oral communications and invasion of privacy under Pennsylvania and Florida state law. On the invasion of privacy claim, the court found that the plaintiff had proven the “highly offensive to a reasonable person” element of the tort. These statutory and tort law violations, said the court, were sufficient to overcome the defendants’ First Amendment arguments. Even assuming that Wolfson is a correct analysis of the interplay between the First Amendment and privacy interests protected by state law, we cannot conclude that Appellee has shown that he is likely to prevail because he has not proven that Appellant’s anticipated conduct would constitute a tort or actionable violation of state law.

To sustain his burden here, it cannot be gainsaid that Appellee must establish that his privacy interest is at least one that is recognized and protected by state law. See The Florida Star, 491 U.S. at 530-33, 109 S.Ct. 2603 (recognizing tension is between First Amendment and statutory and common law doctrines protecting privacy; First Amendment yields only to state interest of the “highest order”). Accord People v. Bryant, 94 P.3d 624, 636 (Colo.2004). Unlike the situation in Wolf-son, here, Appellee has failed to establish that an actionable invasion of privacy is likely to occur because there is no proof that the publication of his records would be “highly offensive to a reasonable person.” Cape Publ’ns, Inc. v. Hitchner, 549 So.2d 1374, 1377-78 (Fla.1989) (stating that to prove tort of invasion of privacy by publication of private facts, publication must be “highly offensive to reasonable person”). Although we can certainly conceive of hypothetical situations when publication of sensitive medical records or attorney-client communications might meet this element, we cannot conclude that the publication of any such records will necessarily meet this threshold merely because of their nature. Speculation cannot suffice to rebut the heavy presumption against a prior restraint. Se. Promotions, 420 U.S. at 561, 95 S.Ct. 1239; New York Times Co., 403 U.S. at 725-26, 91 S.Ct. 2140 (Brennan, J., concurring) (“[T]he First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result.”).

Taking our cue from the Supreme Court, we emphasize that our holding today is limited. The heavy burden rested with Appellee throughout these proceedings. City of Ormond Beach v. City of Daytona Beach, 794 So.2d 660, 662 (Fla. 5th DCA 2001). We hold simply that the burden was not met here.

REVERSED.

ORFINGER and EVANDER, JJ., concur.

      . For this reason, we reject Appellee’s threshold argument that Appellant’s failure to provide a transcript of the hearing precludes any challenge to the injunction. Hoelzle v. Shapiro, 736 So.2d 1207 (Fla. 1st DCA 1999).

      . We have not overlooked Appellee’s argument that this is not a pure speech case, but instead a conduct case. This argument seems to contradict Appellee’s concession that the prior restraint analysis is appropriate here. See Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 764, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (finding that injunction prohibiting conduct not subject to prior restraint analysis). Nevertheless, we reject Appellee’s attempt to characterize this case as anything other than a pure speech case. The injunction prohibits the publication of information already in the possession of Appellant. As such, it operates to restrain pure speech, not conduct, as Appellee urges.

      . Appellant dismisses Wolfson as a conduct case. We agree that the injunction pertained solely to conduct. Therefore, the Wolfson court’s prior restraint analysis was unnecessary to its conclusion. By citation to Wolfson, we do not suggest that we would endorse its analysis and conclusion in a pure speech case such as this.

      . Although not central to our holding, we reject Appellee’s claim that his privacy interest is grounded in either the state or federal constitutions, which pertain only to governmental intrusions into private affairs.

      . We are not unmindful of the practical dilemma faced by Appellee and his counsel. Because Appellant had the records in its possession, the burden of proof was made more difficult, especially given the urgency of the proceedings. We note that Appellee made no attempt to seek in camera inspection of the documents or offer secondary evidence of the contents of the records. Nevertheless, the burden to justify this extraordinary relief was on Appellee and did not shift to Appellant merely because it possessed the documents.


author: WHATLEY, Judge.

text:
    Loran R. BALVANZ, GRRO Holdings, Inc., a Florida corporation, and U.S. Manufacturing, Inc., an Iowa corporation, Appellants, v. COAST BANK OF FLORIDA, Global Resource Recovery Organization, Inc., a Florida corporation, Environ Manufacturing, LLC, a Michigan limited liability company, Forrest L. Robinson, Linda Robinson, and Domtar Industries, Inc., a Delaware corporation, Appellees.
    No. 2D06-5126.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2007.
    Rehearing Denied Nov. 28, 2007.

      John P. Harllee, III, and Andrea M. Johnson of Harllee & Bald, P.A., Braden-ton, for Appellants.
    W. Nelon Kirkland of Harrison, Hen-drickson & Kirkland, P.A., Bradenton, for Appellee, Coast Bank of Florida.
    No appearance for Appellees Global Resource Recovery Organization, Inc., Environ Manufacturing, LLC, Forrest L. Robinson, Linda Robinson, and Domtar Industries, Inc.
   WHATLEY, Judge.

Loran R. Balvanz, GRRO Holdings, Inc., and U.S. Manufacturing, Inc., appeal a final judgment entered in favor of Coast Bank of Florida. We conclude that the trial court erred in determining the rate of interest on the judgment and reverse that portion of the judgment. The final judgment is otherwise affirmed.

The trial court found that the interest rate on the judgment accrued at the default rate of 24% pursuant to a promissory note. Paragraph five of the note provided as follows:

Whenever there is a default under this Note ,.. (b) to the extent permitted by law, the rate of interest on the unpaid principal shall, at the option of the Bank, be increased to the maximum rate allowed by law, herein called the ‘Default Rate’ which Default Rate shall be equally applicable to any judgment entered hereon....

(Emphasis added.)

The Appellants correctly contend that Coast Bank never exercised nor attempted to exercise its option to increase the rate of interest to 24%. The record contains the affidavit of Michelle DeLorme, a records custodian for Coast Bank, and an attachment to the affidavit indicating that the Appellants owed a prejudgment interest rate from May 4, 2005, to June 7, 2006, ranging from 9% to 11%. There is no evidence in the record indicating that Coast Bank was exercising its option to increase the interest rate to the maximum rate allowed by law. Accordingly, that portion of the final judgment determining the default rate of interest is. reversed, and remanded for the trial court to determine an appropriate rate of interest not to exceed 11%. All other portions of the final judgment are otherwise affirmed.

Affirmed in part, reversed in part, and remanded with directions.

VILLANTI, J., and BARBAS, REX MARTIN, Associate Judge, Concur.


author: DAVIS, Judge.

text:
    Abdul RAZAK, Appellant, v. The MARINA CLUB OF TAMPA HOMEOWNERS ASSOCIATION, INC., a Florida corporation, Appellee.
    No. 2D06-3151.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2007.
    Rehearing Denied Nov. 30, 2007.
    Hala Sandridge and D. Finn Pressly of Fowler White Boggs Banker P.A., Tampa, for Appellant.

      Susan K. Spurgeon of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tampa, for Appellee.
   DAVIS, Judge.

In this action to quiet title to real property, Abdul Razak challenges the trial court’s final judgment that was entered following entry of a summary judgment finding in favor of The Marina Club of Tampa Homeowners Association, Inc. (“the Homeowners Association”). We affirm the trial court’s granting of the motion for summary judgment in favor of the Homeowners Association.

In 1982, Riverwalk LTD, a condominium developer, began a project in Hillsborough County called “The Marina Club.” As a part of the declaration of covenants, restrictions, and easements, the developer agreed to convey to the Homeowners Association fee simple title to the commons area free and clear of all liens on or before December 31, 1992. Prior to that date, however, due to financial difficulties, the developer conveyed its interests in the project to a wholly owned subsidiary of the bank that was providing the financing. In 1989, when the bank became insolvent, Resolution Trust Corporation (“RTC”) was named as the bank’s receiver. Through foreclosure proceedings unrelated to this case, RTC became the owner of the unsold units and the commons area of the project.

In October 1992, RTC offered to convey the title to the commons area to the Homeowners Association. However, believing there to be outstanding liens against the title, the Homeowners Association rejected the offer. The Homeowners Association took no action to enforce the contractual rights given to it by the declaration of covenants.

In January 1993, RTC sold the project, including the commons area, to Razak’s brother, Mohammed Husein Bhadelia (“Bhadelia”). Razak loaned Bhadelia the $1,075,000 purchase price of the project. This loan was evidenced by a promissory note that specified a five-year maturity date. As security for this promissory note, Bhadelia executed a mortgage on the project in favor of Razak in May 1994. This mortgage included a future advance clause that indicated that the mortgage would serve as security for any future advances that Razak made to Bhadelia for twenty years following the execution of the mortgage. The mortgage, including a copy of the note, was recorded in the public records for Hillsborough County.

In 2002, the Homeowners Association filed a declaratory action against Bhadelia in an attempt to quiet title to the commons area in the name of the Homeowners Association. The complaint was amended over time, and Razak was added as a party. The Homeowners Association, however, never obtained service of process on either Bhadelia or Razak. In 2003, Bhadelia filed a complaint against the Homeowners Association in federal court, seeking, among other types of relief, to quiet the title to all of the property obtained from RTC in his name. The Homeowners Association filed a counterclaim seeking to quiet the title to the commons area in its name. Razak was not a party to this federal litigation.

Upon being ordered to mediation by the federal district court, Bhadelia and the Homeowners Association reached a mediated settlement agreement on August 23, 2004. By the terms of this agreement, Bhadelia was to convey title to the contested property to the Homeowners Association free and clear of all liens in exchange for $675,000. On February 24, 2005, the federal district court entered a final judgment based on the terms of the settlement agreement. The final judgment included specific language stating that the title to the commons property “is hereby quieted in the name of the Defendant, Marina Club of Tampa Homeowners Association, Inc.” This final judgment was appealed by Bhadelia, and the Eleventh Circuit Court of Appeals affirmed the federal district court’s judgment. Bhadelia v. Marina Club of Tampa, 142 Fed.Appx. 399 (11th Cir.2005), cert. denied, 546 U.S. 1090, 126 S.Ct. 1027, 163 L.Ed.2d 855 (2006).

After the federal appellate decision was announced but before the mandate was issued, Bhadelia conveyed the title to the property to Razak by a deed in lieu of foreclosure. The Homeowners Association then filed a motion in the federal district court seeking to enforce the previously entered final judgment and asking the court to find both Bhadelia and Razak in contempt. The district court denied the request to hold Razak, a nonparty, in contempt but did hold Bhadelia in contempt and awarded sanctions against him.

After obtaining the judgment from the federal district court, the Homeowners Association amended its complaint pending before the circuit court in Hillsborough County and proceeded with a quiet title action against Razak. Substitute service was obtained on Razak, and the issue placed before the trial court was whether Razak held a valid lien against the subject property. The Homeowners Association filed its motion for summary judgment arguing that the mortgage lien was void because the federal district court had quieted title in the commons property in the name of the Homeowners Association. Alternatively, the Homeowners Association argued that Razak’s interest was inferior to its own because of the interest conferred on it by the declaration of covenants. As a third argument, it asserted that Razak’s lien expired five years after the date of the maturity of the note.

Razak filed his answer, raising several affirmative defenses, including statute of limitations, waiver, adverse possession, and laches. He then moved for summary judgment based on those affirmative defenses. After a hearing on the cross-motions for summary judgment, the trial court granted the Homeowners Association’s motion and denied Razak’s without explaining the basis for its rulings. Razak now appeals the trial court’s subsequent final judgment, arguing that the trial court erred both in granting the Homeowners Association’s motion and in denying his.

We review de novo an award of summary judgment involving a pure question of law. Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082 (Fla.2005). Based on our review of the record, we agree with the trial court that as a matter of law the Homeowners Association is entitled to final summary judgment because when the federal district court quieted title in the name of the Homeowners Association, Ra-zak held no valid lien interest in the subject property and the title passed free and clear of all liens.

Section 95.281(1)(a), Florida Statutes (2004), provides that the lien of a mortgage encumbering real property terminates five years after the date of the maturity of the note if the maturity date can be ascertained from the record of the note and mortgage. The note that Bhade-lia executed in favor of Razak on January 7, 1993, stated that the note was a balloon note that matured five years from the date of execution. Accordingly, by operation of law, the lien of the mortgage given by Bhadelia to Razak to secure the note expired on January 7, 2003. Section 95.281 is considered to be a statue of repose rather than a statute of limitations. Am. Bankers Life Assurance Co. of Fla. v. 2275 W. Corp., 905 So.2d 189 (Fla. 3d DCA 2005). As such, this statute not only bars an action for foreclosure, it also prevents the accrual of a cause of action after the date established by the statute. Put another way, it does not limit the time for bringing an action, but rather establishes that after the statutory date, the cause of action does not exist. Id. Based on the operation of this statute of repose, the lien securing the promissory note terminated on January 7, 2003, and the Homeowners Association obtained title free of this encumbrance.

Razak argues that section 95.281 is not controlling here because the future advances clause of the mortgage provides him the protection provided by section 697.04(l)(a), Florida Statutes (2004), which states:

Any mortgage or other instrument given for the purpose of creating a lien on real property, or on any interest in a leasehold upon real property, may, and when so expressed therein shall, secure not only existing indebtedness, but also such future advances, whether such advances are obligatory or to be made at the option of the lender, or otherwise, as are made within 20 years from the date thereof, to the same extent as if such future advances were made on the date of the execution of such mortgage or other instrument, although there may be no advance made at the time of the execution of such mortgage or other instrument and although there may be no indebtedness outstanding at the time any advance is made. Such lien, as to third persons without actual notice thereof, shall be valid as to all such indebtedness and future advances from the time the mortgage or other instrument is filed for record as provided by law.

Razak maintains that based on this language, the future advance clause represents a lien on the property for twenty years even though no future advances have been made. Razak thus suggests that the provisions of section 697.04 prevail over those of section 95.281 when a future advance clause is contained in the mortgage and that accordingly, the lien securing the initial promissory note in the instant case was valid for twenty years regardless of whether future advances were actually made. Razak’s argument also suggests that this statute creates an irrevocable lien to secure future advances for twenty years even if the mortgaged property is transferred after the initial debt is satisfied and no future advances are made. We cannot agree.

Section 697.04 specifies that such a lien only secures those future advances that “are made within [twenty] years.... ” A plain reading of this provision suggests that the twenty-year term relates to future advances that are made after the execution of the mortgage, not to the initial promissory note that was secured by the mortgage. Further, the statute creates the lien only for advances that are actually made. The record before us evidences no future advances made by Razak to Bhadelia that would effectuate the provisions of this statute.

Accordingly, we conclude that pursuant to section 95.281, the lien created by the mortgage to secure the promissory note terminated five years after the note matured. Because no future advances were made, any potential lien that might have encumbered the property pursuant to section 697.04 did not exist. Therefore, when Bhadelia agreed to transfer the property to the Homeowners Association as part of the settlement of the federal lawsuit, and the federal district court quieted title to the property in favor of the Homeowners Association, Razak’s potential lien already had terminated by operation of law. Although the provisions of the future advance clause may have created the potential for future liens that would relate back to the date of the original mortgage if, in fact, advances had been made, that potential was properly extinguished by Bhadelia’s deeding the property to the Homeowners Association as a part of the mediated settlement in the federal court action. Thus the trial court was correct in quieting title in the name of the Homeowners Association.

We reject the argument that the trial court could not, as a matter of law, cancel any potential lien Razak may have by quieting the title and that the title must remain subject to future advances until 2013. Such an argument leads to an untenable result. The logical conclusion of such an argument would be that a mortgagee could encumber title to real property for twenty years by including a future advance clause in a mortgage, even if no advances were made and the owner was not indebted in any way to the mortgagee. Such an argument would suggest that the mortgagee could deny the original mortgagor a satisfaction of mortgage for twenty years even if no indebtedness exists. If, prior to his conveyance of the property, Bhadelia had sought a satisfaction of the mortgage, Razak would have been obligated to provide the same. See § 701.05, Fla. Stat. (2004). The Homeowners Association, in purchasing the property as part of the mediated settlement agreement, took title with the same rights and obligations as the original owner. Thus the trial court was correct in granting the request to quiet title in the name of the Homeowners Association.

Having concluded that the Homeowners Association, as the holder of title to the property pursuant to the mediated settlement agreement, was entitled to seek the quieting of the encumbrance of the potential of a future lien, we affirm the trial court’s final summary judgment in favor of the Homeowners Association.

Affirmed.

SILBERMAN and KELLY, JJ., Concur.

      . We acknowledge that there is no evidence in this record that there were in fact liens against the commons area property. However, this potentially contested issue of fact is not relevant to the issues before this court.

      . Although Razak argues on appeal that he provided additional funds to Husein that implicate the future advances clause of the mortgage, there was nothing in the record before the trial court nor in our record that properly raises this as a factual issue to be resolved.


author: PER CURIAM.

text:
    Erhard J. FLEISCHMANN, Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANIES, Respondent.
    No. 1D07-4620.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2007.
    Rehearing Denied Nov. 28, 2007.
    Carroll Cayer of Terrell, Hogan, Ellis & Yegelwel, P.A., Jacksonville, for Petitioner.
    Dwane D. Tyson of Dwane D. Tyson and Associates, Jacksonville, for Respondent.
   PER CURIAM.

DENIED. Boyd v. Pheo, Inc., 664 So.2d 294 (Fla. 1st DCA1995).

BROWNING, C.J., BARFIELD and BENTON, JJ., concur.


text:
    Carlton LUMPKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3433.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2007.
    Rehearing Denied Nov. 28, 2007.
    Carlton Lumpkins, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, PADOVANO, and HAWKES, JJ., concur.


text:
    Maurice JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4527.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2007.
    Rehearing Denied Nov. 28, 2007.
    Maurice Johnson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, PADOVANO, and HAWKES, JJ., concur.


text:
    Daniel STRADER, Appellant, v. CARPENTERS CREST OWNERS ASSOCIATION, INC., Appellee.
    No. 2D07-413.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 2007.
    Rehearing Denied Dec. 4, 2007.

      Daniel Strader, pro se.
    Lisa B. Lott of Putnam & Creighton, P.A., Lakeland, for Appellee.
   DAVIS, Judge.

Daniel Strader challenges the trial court order dismissing his counterclaim against Carpenters Crest Owners Association, Inc. (“the Association”). We reverse and remand.

The Association had sought foreclosure and money damages against Virginia Hillerich for her failure to pay association fees due on her property. Strader, who was included as a defendant because he was believed to hold an interest in the property, filed a counterclaim, asserting that the Association owed him $128,212.36 in attorney’s fees arising out of the Association’s duty to indemnify him for actions he took in another proceeding in his role as an officer or director of the Association. The trial court dismissed Strader’s counterclaim with prejudice. This was error.

“Generally, a trial court must allow a litigant the opportunity to amend a complaint before dismissing its suit with prejudice unless it is clear that the pleading cannot be amended so as to state a cause of action.” Albrecht v. Bd. of Trs. of Internal Improvement Trust Fund, 481 So.2d 555, 556 (Fla. 2d DCA 1986). Because it is not clear here that Strader could not amend his pleading so as to state a cause of action, the trial court erred in dismissing his counterclaim with prejudice.

Accordingly, we reverse the trial court’s order dismissing the counterclaim and remand with the direction that Strader be permitted to file an amended complaint.

Reversed and remanded.

LaROSE, J„ and ST. ARNOLD, JACK R., Associate Judge, Concur.

      . Although it is within the trial court’s discretion to sever a permissive counterclaim if there is no evidence of prejudice, Turner Constr. Co. v. E & F Contractors, Inc., 939 So.2d 1108, 1109 (Fla. 3d DCA 2006), the trial court here dismissed the counterclaim with prejudice, thus potentially foreclosing any further consideration of the claim in any proceeding.


text:
    Brian M. KNOWLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3392.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2007.
    Rehearing Denied Dec. 10, 2007.
    Brian M. Knowles, Polk City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s order that denied appellant’s rule 3.800(a) motion as successive, but echo the trial court’s warning to appellant that his continual filing of proeedurally barred or otherwise non-meritorious claims will result in proceedings to determine appropriate sanctions. See State v. Spencer, 751 So.2d 47 (Fla.1999).

GUNTHER, KLEIN and TAYLOR, JJ., concur.


text:
    Davidson R. AMBRISTER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and PBS of Central Florida, Appellees.
    No. 3D07-54.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Davidson R. Ambrister, in proper person.
    John D. Maher, Tallahassee, for appel-lee, Florida Unemployment Appeals Commission.
    Before GERSTEN, C.J., and COPE and SALTER, JJ.
   PER CURIAM.

David Ambrister, pro se, appeals a final order of the Unemployment Appeals Commission dismissing his appeal as untimely. No due process issues have been presented to us, and we therefore affirm. § 443.151(4)(b)4, Fla. Stat. (2006); Espino- sa v. Cableoptics, 807 So.2d 195 (Fla. 3d D.CA 2002).

Affirmed.


author: PER CURIAM. BROWNING, C.J.,

text:
    Mark Rochelle BOLEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1177.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2007.
    Rehearing Denied Nov. 28, 2007.
    Mark Rochelle Bolen, pro se, Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

KAHN and ROBERTS, JJ., concur; BROWNING, C.J., concurs in part and dissents in part by separate opinion.

BROWNING, C.J.,

concurring in part and dissenting in part.

I respectfully dissent from the majority opinion, as to Issue Two asserted by the Appellant. The record in this case simply does not support a summary denial of Appellant’s post-conviction motion. See Gillion v. State, 573 So.2d 810 (Fla.1991). Accordingly, I would REVERSE and REMAND for an evidentiary hearing on Issue Two, and I CONCUR as to all remaining issues.


author: STRINGER, Judge.

text:
    Ricky Allen RODDY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1872.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2007.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Ricky Allen Roddy appeals his convictions and sentences for three counts of aggravated battery, one count of possession of a short-barrel shotgun, one count of armed burglary, one count of grand theft, and one count of burglary. We affirm his convictions and sentences without comment but remand for correction of the written probation orders.

After pleading no contest to all of the charges against him, Roddy was initially sentenced to 145.65 months in prison followed by five years’ probation on each of the four second-degree felony convictions. These sentences were illegal because they exceeded the fifteen-year statutory maximum for second-degree felonies.

During this appeal, Roddy filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) seeking to correct these sentences. The trial court granted this motion and resentenced Roddy to 145.65 months in prison followed by 34 months’ probation on each of the second-degree felony convictions. Following resentenc-ing, the trial court entered amended judgments and sentences, but it did not enter amended orders of probation. Thus, despite the resentencing, the written probation orders still reflect the initial five-year probationary sentences.

Accordingly, we remand for correction of the written probation orders in circuit court case numbers 02-5278, 02-5279, 02-5280, and 03-182. On remand, the written probation orders shall be corrected to reflect the 34-month probationary sentences imposed at resentencing. In all other respects, we affirm.

Affirmed, but remanded with instructions.

SILBERMAN and WALLACE, JJ., Concur.


text:
    Ben R. HEATH, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-828.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2007.
   SILBERMAN, Judge.

Ben Heath challenges the order of the trial court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Heath’s motion contains two interrelated claims of ineffective assistance of counsel. The trial court denied the claims, correctly finding that the motion was facially insufficient because Heath failed to allege that, but for trial counsel’s deficient performance, he would not have pleaded but rather would have proceeded to trial. See Borders v. State, 936 So.2d 737, 738 (Fla. 2d DCA 2006) (citing Grosvenor v. State, 874 So.2d 1176, 1182 (Fla.2004)).

We affirm the order of the trial court without prejudice to any right Heath might have to file a facially sufficient rule 3.850 motion raising the same claims. See Williams v. State, 844 So.2d 700, 701 (Fla. 2d DCA 2003). Because the two-year time limitation for filing rule 3.850 motions expired while the present motion was pending, Heath may file a facially sufficient motion within thirty days from the date the mandate issues in this appeal, and the trial court shall consider the motion timely filed. See id.

Affirmed.

SALCINES and STRINGER, JJ., Concur.


text:
    Carl Wayne LAUDERDALE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1194.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2007.
    James Marion Moorman, Public Defender, and Dan Hallenberg, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Carl Wayne Lauderdale, Jr., appeals his judgments and sentences for two counts of sexual battery. He was convicted of sexually battering his wife at knifepoint. We affirm the convictions without further discussion. Although we also affirm the two concurrent life sentences imposed for these crimes, we must vacate amendments made by the trial court at a time when it lacked jurisdiction to make these particular changes.

After the notice of appeal was filed and while this appeal was pending, the trial court amended the sentencing documents by adding a dangerous sexual felony offender designation. It also added to the sentences a twenty-five-year mandatory minimum term that was discussed at the sentencing hearing but was not actually orally announced by the trial court. Laud-erdale argues, and the State concedes, that the trial court lacked jurisdiction to make these amendments. See Shepherd v. State, 912 So.2d 1250, 1252 (Fla. 2d DCA 2005) (vacating sexual predator designation imposed, in lieu of sexual offender designation originally imposed, after defendant filed notice of appeal). Accordingly, we vacate these amendments and remand for the entry of corrected sentences. Our ruling is without prejudice for the State to seek reimposition of the dangerous sexual felony offender designation and mandatory minimum sentences, but we express no opinion at this time as to whether the trial court will have the authority to reimpose the designation and mandatory minimum sentences.

Affirmed in part, vacated in part, and remanded.

ALTENBERND, SALCINES, and WALLACE, JJ., Concur.


author: DAVIS, J.

text:
    Alander CRAPPS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2275.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2007.
    Rehearing Denied Nov. 28, 2007.
    James C. Banks of the Law Office of Banks & Morris, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   DAVIS, J.

i

Appellant, Alander Crapps, appeals his judgment and sentence and argues that the trial court improperly sentenced him as a prison releasee reoffender (“PRR”) because, he contends, the offense of throwing a deadly missile into an occupied vehicle, as proscribed in section 790.19, Florida Statutes (2005), is not a qualifying offense for PRR classification under section 775.082(9)(a)l.o., Florida Statutes (2005). We agree. See Paul v. State, 958 So.2d 1135, 1136 (Fla. 4th DCA 2007) (holding that the appellant, who was convicted of shooting a deadly missile into a dwelling, did not qualify as a PRR); Hudson v. State, 800 So.2d 627, 628-29 (Fla. 3d DCA 2001) (holding that the crime proscribed by section 790.19 is not a forcible felony because it includes shooting or throwing at unoccupied buildings and, thus, does not, by statutory definition, necessarily involve physical force or violence against an individual); see also State v. Hearns, 961 So.2d 211, 216 (Fla.2007) (reiterating that the only relevant consideration in determining whether an offense constitutes a forcible felony is the statutory elements of the offense and that if “ ‘the use or threat of physical force or violence against any individual’ ” is not a necessary element of the offense, then the offense is not a forcible felony).

Accordingly, we REVERSE and REMAND for resentencing.

ALLEN and BENTON, JJ., concur.


author: FULMER, Judge.

text:
    Kenneth Henry WIGGINTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-0323.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2007.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

We affirm without prejudice to Wiggin-ton’s right to pursue relief under Florida Rule of Criminal Procedure 3.850.

WHATLEY and SILBERMAN, JJ., concur.


author: VILLANTI, Judge.

text:
    Richard L. L’HEUREUX, Doc # 659221, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4451.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2007.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Richard L. L’Heureux appeals his convictions and sentences for burglary of an unoccupied dwelling, possession of burglary tools, resisting an officer without violence, fleeing an officer, driving with a suspended license, and reckless driving. Mr. L’Heureux challenges only the restitution orders entered against him. We reverse the two restitution orders entered on November 8, 2006, and otherwise affirm his convictions and sentences.

Under Florida Rule of Criminal Procedure 3.800(c), a court may modify a sentence “within 60 days after [its] imposition.” This rule has been interpreted to mean that a restitution order must be imposed at sentencing or within sixty days thereafter. See State v. Sanderson, 625 So.2d 471, 473 (Fla.1993). This is so because “the failure to impose restitution renders [a] sentence incomplete and subject to modification” within the sixty-day period of rule 3.800(c). Brock v. State, 604 So.2d 32, 33 (Fla. 2d DCA 1992). Indeed, a trial court may properly order restitution within sixty days after failing to order restitution at sentencing and failing to reserve jurisdiction to do so. See Selwyn v. State, 903 So.2d 361, 362 (Fla. 2d DCA 2005) (striking an order of restitution because it was not entered within sixty days of sentencing when the “trial court did not impose restitution [at sentencing], nor did any discussion of restitution occur at the [sentencing] hearing” and the original written judgment and sentence did not order restitution); Rada v. State, 656 So.2d 165, 165 (Fla. 2d DCA 1995) (reversing an order of restitution because the judgment and sentence reflected that restitution was not ordered at sentencing and the subsequent restitution hearing was not held within sixty days). However, after restitution has been timely ordered, the amount of restitution may be determined beyond the sixty-day window. See Sanderson, 625 So.2d at 473; Selwyn, 903 So.2d at 362. Notably, the date of sentencing which starts the sixty-day clock is the date the sentence was imposed, not the date the sentence was filed. Scott v. State, 629 So.2d 280, 281 (Fla. 5th DCA 1993).

Although a trial court may impose restitution within sixty days of sentencing, a trial court lacks jurisdiction to do so while a direct appeal is pending. See Jenkins v. State, 954 So.2d 738, 738 (Fla. 2d DCA 2007); Colson v. State, 711 So.2d 604, 605 (Fla. 2d DCA 1998); Pearson v. State, 686 So.2d 721, 721 (Fla. 2d DCA 1997). In other words, a trial court’s jurisdiction to impose a restitution order is temporarily suspended once a notice of appeal is filed. See Butler v. State, 951 So.2d 38, 40 (Fla. 2d DCA 2007).

In the present case, the trial court did not order restitution at sentencing on August 31, 2006, and Mr. L’Heureux timely filed his notice of appeal on September 29, 2006. Despite the notice of appeal having been filed, the trial court then held a hearing regarding restitution on November 8, 2006, and ordered restitution the same day, i.e., while Mr. L’Heureux’s appeal was pending. No exception existed to allow the trial court to exercise jurisdiction while this appeal was pending, and no relinquishment to do so was sought. Therefore, the trial court clearly lacked jurisdiction to enter restitution orders on November 8, 2006. As a result, the two restitution orders must be reversed. See Jenkins, 954 So.2d at 738; Colson, 711 So.2d at 605; Pearson, 686 So.2d at 721.

However, rule 3.800(c) also allows a court to modify a sentence “within 60 days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence on an original appeal.” “Thus, the rules of criminal procedure clearly permit the sentencing judge to modify the defendant’s sentence after affirmance on appeal.” State v. Johns, 576 So.2d 1332, 1335 (Fla. 5th DCA 1991); see also State v. Stevens, 616 So.2d 995, 996 (Fla. 2d DCA 1992). Therefore, although we reverse Mr. L’Heureux’s restitution orders and otherwise affirm his convictions and sentences, the trial court may timely reimpose restitution on remand pursuant to the requirements of rule 3.800(c).

Affirmed in part; reversed in part.

SILBERMAN and WALLACE, JJ., concur.


author: KELLY, Judge.

text:
    Randy Dewayne GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2106.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2007.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Randy Dewayne Gibson appeals an order denying his dispositive motion to suppress following his nolo contendere plea to carrying a concealed firearm, possession of cocaine, and possession of drug paraphernalia. We find no merit in Gibson’s argument that the search of his vehicle was illegal because police unreasonably delayed the traffic stop to allow a canine search of his vehicle. We do find merit, however, in Gibson’s claim that under the standard articulated in Matheson v. State, 870 So.2d 8 (Fla. 2d DCA 2003), the State failed to establish that the narcotics detection dog’s alert provided probable cause for the search. Accordingly, we reverse.

In Matheson, this court rejected the argument that the State can make a prima facie showing of probable cause for a search based on a narcotics detection dog’s alert by demonstrating that the dog has been properly trained and certified. Id. at 12. Instead, this court held that the fact that a dog has been trained and certified to detect narcotics, standing alone, does not justify an officer’s reliance on the dog’s alert to establish probable cause. Id. at 14. To demonstrate that an alert by a narcotics detection dog is sufficiently reliable to furnish probable cause to search, the State must introduce evidence of the dog’s “track record” or performance history. Id. Although the officer who handled the dog testified that the dog was certified and had completed 400 hours of training, the State failed to elicit any testimony from him regarding the dog’s track record. The officer admitted that drugs are not always found when the dog alerts, but he could not quantify the percentage of false alerts. Under Matheson, the officer’s testimony was inadequate to establish the dog’s reliability. Thus, the State did not meet its burden to demonstrate that the officers had probable cause to search Gibson’s car.

In reversing, we certify direct conflict with State v. Coleman, 911 So.2d 259 (Fla. 5th DCA 2005), and State v. Laveroni, 910 So.2d 333 (Fla. 4th DCA 2005), both of which hold that the State can make a prima facie showing of probable cause based on a narcotics detection dog’s alert by demonstrating that the dog has been properly trained and certified.

Reversed and remanded for further proceedings consistent with this opinion; conflict certified.

WHATLEY and SILBERMAN, JJ„ Concur.


text:
    Virgil MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4286.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2007.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Virgil Mobley challenges the revocation of his probation and sentence in circuit court case number CF05-001390 after admitting to a probation violation. He also challenges his judgment and sentence in circuit court case number CF06-000574 after entering a no contest plea. We affirm in all respects except for a minor sentencing issue. See In re Anders Briefs, 581 So.2d 149, 152 (Fla. 1991). The trial court granted Mobley’s motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) with regard to a portion of a probation condition but failed to enter a corrected probation order. Thus, we remand for the trial court to enter a corrected probation order in accordance with its order granting the rule 3.800(b)(2) motion.

Affirmed but remanded for entry of a corrected order.

FULMER and WHATLEY, JJ., concur.


text:
    Wilbur RUDOLPH, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4276.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2007.
    Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Wilbur Rudolph challenges the trial court’s denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, raising four issues. We reverse the summary denial of Rudolph’s claim that he received ineffective assistance of counsel when his counsel failed to object to an improper fine. On the other issues, we affirm the denial of relief without further discussion.

Rudolph alleged ineffective assistance of counsel at sentencing, asserting that his attorney failed to object to the imposition of a fine that was not authorized under the habitual offender statute. The trial court summarily denied this claim, reasoning that because the improper imposition of a fine can be raised by rule 3.800, the claim is inappropriately raised in a rule 3.850 motion. And, it reasoned, even if the claim can be raised in a rule 3.850 motion, Rudolph cannot show prejudice because “any sentencing error may be corrected at any time through the use of a [rule 3.800 motion].”

We reject the trial court’s reasoning on this issue. Rudolph raised a facially sufficient claim of ineffective assistance of counsel based on his counsel’s failure to object to the sentence. There was a legitimate basis for counsel to object to the sentence based on the imposition of the fine, see Willits v. State, 884 So.2d 73, 74 (Fla. 2d DCA 2004) (noting that “section 775.084 does not authorize any fines”), and Rudolph received an illegal sentence as a result of counsel’s deficiency. See Penn v. State, 941 So.2d 466, 466 (Fla. 1st DCA 2006) (“[T]he appellant raised a facially sufficient claim that counsel was deficient because there was a legitimate basis for objecting to the sentence imposed by the trial court and the appellant received an illegal sentence as a result of this deficiency”).

Affirmed in part, reversed in part, and remanded.

DAVIS and WALLACE, JJ., Concur.


author: NORTHCUTT, Chief Judge.

text:
    Walter WESSEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3837.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2007.
    Steven S. Leskovich of Balliro, Galasso & Leskovich, LLC, Fort Myers, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Chief Judge.

Walter Wessel was convicted of two counts of lewd and lascivious molestation. Of the points raised in his appeal, we find merit in one — that the trial court erred by admitting evidence regarding Wessel’s sexual orientation. Accordingly, we reverse and remand for a new trial.

Wessel was charged based on allegations that he inappropriately touched his two young grandsons during bath time and while tickling them. At trial, and over objection, a State witness was allowed to testify that Wessel was homosexual. When urging the admission of this evidence, the prosecutor argued that Wessel’s sexual orientation was relevant to Wessel’s intent when touching his grandchildren. In closing arguments, the prosecutor suggested this connection to the jury by asserting that the defendant’s homosexuality was brought out at trial “because if the State needs to prove this touching is unchaste, part of his intent, part of what’s going through his mind, he is attracted to men.” However, the State offered no evidence of a connection between homosexuality and pedophilia.

This court has previously found reversible error in the admission of such evidence. In a prosecution for committing a lewd and lascivious act on a minor, we held that evidence of the defendant’s previous homosexual encounter with an adult was irrelevant and highly prejudicial. Clingan v. State, 317 So.2d 863 (Fla. 2d DCA 1975). And in a prosecution for a “crime against nature,” we reversed based on the admission of irrelevant evidence showing that the defendant was homosexual. Harris v. State, 183 So.2d 291, 292 (Fla. 2d DCA 1966).

Likewise in this case, we conclude that the evidence was irrelevant and prejudicial. “[T]here is absolutely no showing that homosexuals as a group are disposed to engage in pederasty.” Sias v. State, 416 So.2d 1213, 1217 (Fla. 3d DCA 1982). The Sias court concluded that the erroneous admission of a police officer’s testimony regarding the defendant’s sexual orientation was harmless because this fact was also established by properly admitted testimony of a codefendant. Here, on the other hand, the harmfulness of this irrelevant evidence was clear. It may well have caused the jury to believe that conduct it might have considered innocent was, instead, done with criminal intent solely because the defendant was homosexual. Indeed, wittingly or unwittingly, in her closing argument to the jury the prosecutor suggested just that. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986) (explaining that harmless error is found only when there is no reasonable possibility that error contributed to verdict).

Reversed and remanded for a new trial.

STRINGER and SILBERMAN, JJ., Concur.