author: HAWKES, J.

text:
    Melvin B. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0420.
    District Court of Appeal of Florida, First District.
    March 2, 2007.

      Nancy A. Daniels, Public Defender, and Fred Parker Bingham II, Special Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

Appellant appeals the trial court’s denial of his motion for post-conviction relief. In the motion filed below, appellant alleged a number of grounds for relief. However, on appeal, appellant makes arguments relating to only three of his previously raised grounds. This Court holds that all three of appellant’s claims are devoid of merit, and; therefore, affirms the circuit court’s denial of appellant’s motion for post-conviction relief.

I. FACTS

On February 23, 1996, appellant’s attorney filed a motion to withdraw as counsel for appellant. In support of this motion, appellant’s attorney argued that appellant had threatened to physically harm both counsel and his family. On March 6, 1996, Judge Smith conducted the hearing on this motion. At this hearing, trial counsel stated that, if convicted, appellant threatened to kill counsel, members of counsel’s family, anyone associated with his case, and then himself. Counsel further relayed that appellant had indicated he was going to enjoy prison, because it would provide him with the opportunity to lift weights, smoke pot, and prepare himself to kill everyone involved in his case — prior to killing himself.

At this point, the following exchange took place between defense counsel and the court.

The Court: So if convicted in that case, he will be spending the rest of his life in prison?
Mr. Greenberg: Perhaps if that’s what the guidelines call for.
The Court: With a first degree punishable by life, I don’t think we need to be worrying about the guidelines. So his threat is that when he gets out of prison, he’s going to make you pay for it and kill you and kill me and Mr. Poitinger and Mr. Murrell and the families and everybody.

(Emphasis added). The trial court then denied counsel’s motion to withdraw stating, “[i]f there has been a threat made, the Court concludes that it was a threat that could never be carried out. If he’s convicted, which was the condition of his threat, if he’s convicted, he will be in prison for the rest of his life and he couldn’t do physical harm to ... anyone else.”

On March 20, 1996, defense counsel filed a motion to disqualify Judge Smith, as trial judge. The motion alleged that appellant was concerned that Judge Smith had prejudged sentencing. This belief was grounded upon the fact that, before hearing any evidence of aggravation or mitigation, Judge Smith stated “[w]ith a first degree punishable by life, I don’t think we need to by worrying about the guidelines” and “if he’s convicted, he will be in prison for the rest of his life.” The trial court properly denied this motion as untimely. See Thompson v. State, 764 So.2d 630, 631-32 (Fla. 1st DCA 2000) (upholding the trial court’s denial of appellant’s motion to disqualify, because it was filed more than 10 days after counsel became aware of the facts supporting the motion, but noting that had it been timely filed Judge Smith would have been impelled to recuse himself).

On May 30, 1997, after the conclusion of his jury trial, appellant was found guilty as charged of sexual battery with a deadly weapon (Count I), burglary of a dwelling with a specific finding of “while armed” and “with a person assaulted” (Count II), aggravated assault with a deadly weapon (Count III), and false imprisonment (Count IV). The sentencing score sheet established a minimum discretionary sentence of 122.5 months and a maximum discretionary sentence of 204.2 prison months.

On September 17, 1997, the trial court set forth its findings of aggravating circumstances justifying the imposition of departure sentences. The trial court noted appellant’s past criminal behavior, and identified an escalating pattern of criminal conduct. Specifically, the court noted that appellant has (1) moved from committing misdemeanor offenses to committing felonies, and (2) moved from committing property crimes to committing violent crimes. As a result, the court determined appellant was not amenable to rehabilitation or supervision. Moreover, the court found that appellant had treated his victim, in the instant case, with particular cruelty. Appellant caused her extraordinary emotional trauma, because of his especially heinous, atrocious, and cruel crimes. The court noted the rape victim’s condition of being a virgin prior to the assault, the fact that she was entirely innocent of any fault for what transpired, that she was put in great fear for her life, and that during the assault she was led to believe that her roommate had already been killed.

Subsequent to making these findings, the trial court sentenced appellant to life imprisonment on Count I, five years concurrent imprisonment on Counts II and IV, and life probation to run consecutive to the prison sentences on Count II. Appellant received 570 days of credit for time spent in custody. Appellant filed a direct appeal with this Court. The trial court was affirmed on appeal, and on December 7, 2000, the Florida Supreme Court declined to accept jurisdiction. Accordingly, appellant’s conviction and sentence became final on that date.

On July 80, 2004, appellant filed an Amended Motion for Postconviction Relief. Ground I of the amended motion alleged that trial counsel was ineffective for filing a legally sufficient motion to disqualify the trial and sentencing judge more than ten days after learning of the grounds for disqualification. Alternatively, appellant alleged that trial counsel was ineffective for failing to put on the record any explanation for untimely filing the meritorious motion to disqualify. Ground II of the amended motion alleged that the departure sentences of life imprisonment and life probation were imposed solely on the court’s findings of aggravating facts, without those facts being submitted to a jury and proven beyond a reasonable doubt. Accordingly, appellant argued that his sentence was constitutionally invalid in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The circuit court denied appellant’s motion, and attached twelve exhibits to this denial. The instant appeal followed.

II. APPELLANT’S RULE 3.800 CLAIMS

Under appellant’s first ground on appeal, he argues that the circuit court erred in summarily denying his rule 3.800(a) claim, which alleged that the imposition of a life sentence for his conviction on the sexual battery with a deadly weapon charge (Count I) was an unconstitutional and illegal sentence. Similarly, in his third ground on appeal, appellant argues that the circuit court erred in summarily denying his 3.800(a) claim, which alleged that the imposition of a sentence of probation for life on his conviction for burglary of a dwelling (Count II) — with a specific finding of “while armed” and “with a person assaulted” — resulted in an unconstitutional and illegal sentence. In support of both ground one and ground three, appellant relies upon the United States Supreme Court decision of Apprendi (stating that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt), as that decision has been explained by Blakely (clarifying that the term “statutory maximum,” as used in Apprendi, means “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant”).

In several decisions issued after Ap-prendi, but prior to Blakely, Florida courts held that the rule of Apprendi, does not apply when the sentence imposed does not exceed the statutory maximum permitted by section 775.082, Florida Statutes. See Isaac v. State, 826 So.2d 396 (Fla. 1st DCA 2002); Lee v. State, 808 So.2d 1274 (Fla. 3d DCA 2002); McCloud v. State, 803 So.2d 821 (Fla. 5th DCA 2001); Caraballo v. State, 805 So.2d 882 (Fla. 2d DCA 2001); Gilson v. State, 795 So.2d 105 (Fla. 4th DCA 2001). Pursuant to sections 794.011(3) and 775.082, Florida Statutes, appellant’s Count I conviction is a “life felony,” and is punishable “by term of imprisonment for life or by imprisonment for a term of years not exceeding life imprisonment.” Pursuant to sections 810.02(2)(a), (b) and 775.082, Florida Statutes, appellant’s Count II conviction is a “felony of the first degree,” and is “punishable by imprisonment for a term of years not exceeding life imprisonment.”

Appellant’s conviction and sentence became final on December 7, 2000, just after Apprendi had issued, but four years before Blakely was to be decided. Florida courts, including this one, have generally agreed that Blakely has no application to cases that were already final when Blakely was handed down. See Smith v. State, 899 So.2d 475 (Fla. 1st DCA 2005); Burgal v. State, 888 So.2d 702 (Fla. 3d DCA 2004); Burrows v. State, 890 So.2d 286 (Fla. 2d DCA 2004); McBride v. State, 884 So.2d 476 (Fla. 4th DCA 2004). At the time appellant’s sentence became final, the rule of Apprendi did not apply to his sentences, because the sentences imposed did not exceed the statutory máximums prescribed by section 775.082, Florida Statutes. Moreover, Blakely has no application to appellant’s case, because his judgment and sentence were already final when Blakely was handed down. Therefore, to the extent appellant’s appeal is requesting relief pursuant to Blakely, it is without merit and his judgment and sentence are affirmed.

III. APPELLANT’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

In order to establish a claim of ineffective assistance of counsel, a movant must allege both: (1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms, and (2) the effect such acts or omissions had on the outcome of the case — -that is, to show that the outcome likely would have been different but for counsel’s performance. See Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland standard has been repeatedly identified, by the Florida Supreme Court, as the appropriate standard for evaluating ineffective assistance of counsel claims. See e.g., Rogers v. State, 2007 WL 108367, *2, — So.2d-, -(Fla.2007); Spencer v. State, 842 So.2d 52, 61 (Fla.2003).

Appellant’s ineffective assistance of counsel claim is predicated upon his allegation that trial counsel was ineffective for failing to timely file the, otherwise, legally sufficient motion to disqualify Judge Smith. Such a motion to disqualify must be filed within 10 days of learning of the facts constituting the grounds for disqualification. See Fla. R. Jud. Admin. 2.160(e). Alternatively, appellant alleges that trial counsel was ineffective for failing to put on the record any explanation as to why the, otherwise, meritorious motion to disqualify was filed late.

(A) Failure to Establish Prejudice

Appellant’s ineffective assistance of counsel claim must fail because he is unable to demonstrate any prejudice from the deficient performance he has alleged. See Kennedy v. State, 547 So.2d 912, 913 (Fla.1989) (noting that where it is clear that the alleged deficiency was not prejudicial, the court need not determine if the counsel’s performance was deficient). In attempting to establish the prejudice prong of Strickland, appellant notes that the trial court did, in fact, sentence appellant to life imprisonment and life probation — just as the court’s statement indicated it would. However, appellant has not alleged any circumstances or presented any evidence, which suggest that the aggravating factors relied upon by the court to impose this heightened sentence did not exist. Nor does appellant allege that, assuming the existence of these aggravating factors, the sentence actually imposed was not within the trial court’s discretion. As noted above, under the law at the time appellant was sentenced, these were legal sentences, which any trial judge could have legally, justifiably, and reasonably imposed under the facts of this case. Accordingly, the mere fact that the trial court imposed such a sentence is not evidence of prejudice resulting from his attorney’s failure to timely file the motion to disqualify.

Alternatively, appellant argues that he need not demonstrate prejudice in this ease. He puts forth that counsel’s failure to timely file an, otherwise, legally meritorious motion to disqualify, created a structural defect in the proceedings. Florida courts have held that “[tjrials marred by structural defects are not subject to harmless error analysis because ‘[t]he entire conduct of the trial from beginning to end is obviously affected ... ’ by such an error.” Pinardi v. State, 718 So.2d 242, 244 (Fla. 5th DCA 1998) (citing Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). The Fifth District has made it clear that a structural error occurs when a judge, who is actually biased, presides over a trial. See Pinardi, 718 So.2d at 244.

Appellant fails to establish a structural defect in this case. He argues that a structural defect was created when Judge Smith — who would have been impelled, by a timely filed motion to disqualify, to re-cuse himself — was permitted to preside over appellant’s trial and sentencing. However, as was the case in Pinardi, appellant merely alleges that Judge Smith could have been disqualified by a timely filed motion to disqualify, and does not present evidence showing that Judge Smith was actually biased in this case. Establishing the existence of facts and circumstances which could reasonably cause a litigant to fear that a judge might be biased, is not the same as establishing that the judge was actually biased.

In this case, appellant has not alleged that Judge Smith was biased because of his relationship to the parties, nor has he identified any pecuniary interest in the outcome of the proceeding. See e.g., Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); see also Goines v. State, 708 So.2d 656, 661 (Fla. 4th DCA 1998). It is true that the statements made by Judge Smith may have been sufficient to require him to recuse himself, had the motion been timely filed. However, the existence of these statements standing alone is insufficient to establish that Judge Smith was actually biased in this case. Appellant has not pointed to any action or inaction by Judge Smith, which was not entirely permissible in light of the applicable law and attendant circumstances present in this case. Had appellant been able to point to behavior by Judge Smith showing that he was actually biased (thus violating Canon 3, Florida Code of Judicial Conduct, by remaining on the case), then this Court would be required to grant appellant the relief he requests.

A “biased” judge presiding over a criminal defendant’s trial only creates a structural defect when that judge is actually biased. It cannot be said that an unbiased judge, who would have been required to recuse himself by a timely filed motion to disqualify, presents the type of concerns with which the structural error rule is concerned. In light of the fact that appellant has failed to show actual bias, he has failed to demonstrate the existence of a structural defect, and is, consequently, not exempt from the requirement that he show prejudice.

(B) Strickland, is Still the Standard for IAC Claims

Finally, we disagree with decisions issued by both the Second and Fourth Districts. The factual circumstances and legal issues involved in Kleppinger v. State, 884 So.2d 146 (Fla. 2d DCA 2004) and Goines v. State, 708 So.2d 656 (Fla. 4th DCA 1998), are quite similar to those of the instant case. However, here, we find ourselves unable to accept the legal conclusions reached in those cases.

In Kleppinger, the Second District held that where a defendant has alleged ineffective assistance of counsel for failing to file a motion to disqualify the trial judge, “[t]he finding of prejudice turns on whether disqualification would have been required, not on whether the outcome of a new trial would have been different.” Kleppinger, 884 So.2d at 149. In so holding, Kleppinger relies upon the Fourth District’s decision in Goines. Goines, grounds its ruling upon its interpretation of the effect of Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), on the United States Supreme Court’s decision in Strickland. For reasons which are discussed below, the decisions of the Second and Fourth Districts incorrectly construe Lockhart’s effect on Strickland. As a result, these decisions effectively ignore the controlling ineffective assistance standard, which was set forth in Strickland and later adopted by the Florida Supreme Court.

In Lockhart, the defendant, Fretwell, was convicted of capital felony murder for committing murder in the course of a robbery. Fretwell alleged ineffective assistance of counsel, because his attorney failed to object, at the penalty phase of his trial. Fretwell alleged that his attorney should have objected on the grounds that Fretwell’s death sentence was unconstitutional, because it was based upon an aggravating factor that duplicated an element of the felony underlying his felony murder conviction. At the time of appellant’s sentencing, such an objection could have been supported by authority from the Eighth Circuit. See Collins v. Lockhart, 754 F.2d 258 (8th Cir.1985) (holding that a death sentence is unconstitutional if it is based on an aggravating factor that duplicates an element of the underlying felony, because such a factor does not genuinely narrow the class of persons eligible for the death penalty).

During the penalty phase of Fretwell’s trial, the State argued that the evidence presented during the guilt phase established two aggravating factors: (1) the murder was committed for pecuniary gain, and (2) the murder was committed to facilitate respondent’s escape. The jury found that the first of these two factors existed, and sentenced Fretwell to death. On direct appeal, Fretwell argued, that his sentence should be reversed in light of Collins. Specifically, Fretwell argued that because he was convicted of murder in the course of a robbery, pecuniary gain being part and parcel of the robbery offense, his death sentence was unconstitutional. Fretwell’s claims were rejected by the Arkansas Supreme Court and his conviction and sentence were affirmed. See Fretwell v. State, 289 Ark. 91, 708 S.W.2d 680 (1986).

Fretwell filed a habeas petition in federal district court, and alleged that his counsel had rendered ineffective assistance, because counsel failed to make the Collins objection during sentencing. The district court granted Fretwell relief, and its decision was affirmed by the Eighth Circuit — despite the fact that the Eighth Circuit had overruled its Collins decision two years earlier. See Perry v. Lockhart, 871 F.2d 1384 (8th Cir.1989) (relying on Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), to overturn the Collins decision). In affirming the decision to grant Fretwell relief, the Eighth Circuit majority believed that the Arkansas trial court was bound, under the Supremacy Clause, to obey the Eighth Circuit’s interpretation of the Federal Constitution. Therefore, the Eighth Circuit reasoned that had counsel made the objection, the trial court would have sustained the objection, and the jury would not have sentenced respondent to death. The court remanded, ordering the District Court to sentence respondent to life imprisonment without the possibility of parole. The Eighth Circuit further stated that because respondent was entitled to the benefit of Collins at the time of his original sentencing proceeding, it would only “perpetuate the prejudice caused by the original sixth amendment violation” to re-sentence him under current law. Fretwell v. Lockhart, 946 F.2d 571, 578 (8th Cir.1991).

The United States Supreme Court accepted review of Lockhart, and reversed the Eighth Circuit’s decision. In doing so, the United States Supreme Court stated:

In Strickland, we identified the two components to any ineffective-assistance claim: (1) deficient performance and (2) prejudice. Under our decisions, a criminal defendant alleging prejudice must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S., at 687, 104 S.Ct., at 2064; see also Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986) (“The essence of an ineffective-assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect”); Nix v. Whiteside, supra, 475 U.S., at 175, 106 S.Ct., at 998. Thus, an analysis focusing solely on mere outcome determination, without attention to ivhether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel’s error may grant the defendant a windfall to which the law does not entitle him. See [United States v.] Cronic, supra, 466 U.S. [648], at 658, 104 S.Ct. [2039], at 2046 [80 L.Ed.2d 657 (1984) ] .

Lockhart, 506 U.S. at 369-70, 113 S.Ct. 838 (emphasis added). The Second and Fourth Districts have improperly relied upon the emphasized language (above) to conclude that a defendant’s failure to demonstrate how the outcome of the trial, or the sentence imposed, would have been different, does not preclude that defendant from obtaining relief in an ineffective assistance claim. These courts have interpreted Lockhart as altering the standard handed down in Stñckland. Essentially, these courts require all ineffective assistance of counsel claims to be reviewed to determine whether “the result of the proceeding was fundamentally unfair or unreliable,” even when a defendant cannot show that the result at trial or the sentence imposed would have been different.

This interpretation of Lockhart, has led the Second and Fourth Districts to rule that, as a matter of law, when a judge— who would have been forced to recuse himself by a timely filed motion to disqualify — presides over a defendant’s trial and sentencing, the defendant is entitled to relief under an ineffective assistance of counsel claim, because such proceedings are fundamentally unfair or unreliable. United States Supreme Court case law, post-dating Lockhart, makes it abundantly clear that the Second and Fourth Districts’ interpretation of Lockhart is manifestly incorrect.

For instance, in Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the United States Supreme Court stated that the Virginia Supreme Court had erred when it ruled that Lockhart modified the standard announced in Stñckland. See Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), modified or in some way supplanted the rule set down in Stñckland.”). The United States Supreme Court clarified the relationship between Lockhart and Stñck-land by stating that “the Stñckland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims, [however,]there are situations in which the overriding focus on fundamental fairness may affect the analysis.” Id. After indicating that, as explained in Stñckland, there are a few situations in which prejudice may be presumed, the Court went on to say that there are also situations in which it would be unjust to characterize the likelihood of a different outcome as legitimate “prejudice.” Id. at 391-92, 120 S.Ct. 1495.

The true intention of Lockhart was not to create relief where none would otherwise exist under Strickland. The Supreme Court specifically stated that “[c]ases such as Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 128 (1986), and Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), do not justify a departure from a straightforward application of Strickland when the ineffectiveness of counsel does deprive the defendant of a substantive or procedural right to which the law entitles him.” Williams, 529 U.S. at 393, 120 S.Ct. 1495. In the instant case, appellant is asserting that his counsel has interfered with a procedural or substantive right to which he is lawfully entitled (i.e., the procedural right to disqualify a trial judge with a legally sufficient and timely filed motion, or the due process right to be tried before a judge that is not actually biased). Accordingly, this Court need only look to the Strickland standard to determine if the required prejudice is present.

Lockhart’s applicability is limited to circumstances where a defendant has alleged that counsel is ineffective for failing to vindicate a procedural or substantive right that does not exist (i.e., the nonexistent constitutional right to not be sentenced to death, when the death sentence is based upon an aggravating factor that duplicates an element of the underlying felony). Where such an allegation is made, courts must conduct a two tiered inquiry. First, courts must determine whether the outcome likely would have been different but for counsel’s performance. If the defendant can establish that the outcome likely would have been different but for counsel’s performance, then courts must determine whether the actions of counsel have resulted in a proceeding that is fundamentally unfair or unreliable. There is nothing about appellant’s case that would bring it within the ambit of the Lockhart decision; accordingly, a straightforward application of Strickland is appropriate and mandated.

(C) The Promotion of Sandbagging

Policy concerns also support a rejection of the holdings of the Second and Fourth Districts. The rule created by the Second and Fourth Districts leads to a situation where an attorney best serves the interests of his client by not timely filing a motion to disqualify. For example, if an attorney knows — based on experience— that the judge currently presiding over his client’s case is not biased and is preferable to his alternatives (i.e., the other judges of the jurisdiction), then, despite the existence of legal grounds for having the judge disqualified, the attorney would best serve his client’s interests by failing to timely file such a motion. The attorney’s failure to file a motion to disqualify will guarantee his client the opportunity to, if convicted, obtain a second trial — at a much later date.

As discussed above, the client will not be exposed to an actually biased judge, because judges who are actually biased will recuse themselves pursuant to the Code of Judicial Conduct. However, pursuant to the rulings of the Second and Fourth Districts, the proceeding will be deemed unjust or unreliable and the client will receive relief. When faced with such a rule of law, it could certainly be argued that timely filing a motion to disqualify the trial judge is not in the best interests of your client. Courts should refrain from adopting legal rules that promote sandbagging, encourage dilatory representation, and institutionalize both as the preferred method of providing competent representation.

IV. CONCLUSION

This Court affirms the circuit court’s denial of appellant’s claim of ineffective assistance of counsel, because appellant has failed to make the required showing of “prejudice,” as that term has been defined by Strickland and its progeny. We certify conflict with Gomes and Kleppinger to the extent they interpret Lockhart as modifying or supplanting the rule set down in Strickland. A defendant does not show “prejudice,” as that term has been construed by the United States Supreme Court and Florida Supreme Court, merely by showing that disqualification would have been required, had his attorney timely filed a motion to disqualify the trial judge. See Williams, 529 U.S. 362, 120 S.Ct. 1495 (2000); see also Rogers, 2007 WL 108367 at *2, — So.2d at-.

AFFIRMED.

THOMAS and ROBERTS, JJ., concur.

      . This Court’s opinion, affirming the trial court’s decision to deny appellant’s motion to disqualify, illustrates the fact that although Judge Smith’s comments may have created a well founded fear that appellant was prejudiced, the comments did not rise to the level of showing the appellant actually suffered any prejudice.

      . Specifically, appellant puts forth that his sentencing score sheet permitted a minimum discretionary sentence of 122.5 months and a maximum discretionary sentence of 204.2 months. Appellant contends that the trial court acted unconstitutionally when, despite the prescribed discretionary range, the trial court found that the existence of several aggravating factors warranted a deviation to life imprisonment and life probation. Appellant argues that the trial court lacked the discretion to deviate upward beyond 204.2 months, unless the jury found "beyond a reasonable doubt” that the aggravating factors existed.

      . If the trial judge had actually been biased, then he would have certainly recused himself pursuant to the dictates of the Canon 3, Florida Code of Judicial Conduct and rule 2.160(i), Florida Rules of Judicial Administration. Appellant has made no allegation of any unethical conduct on the part of Judge Smith. Here, appellant’s argument is merely that he had a reason to believe that the trial judge appeared to be biased. It goes without saying that the appearance of bias, is different from the existence of actual bias, which is checked by a judge's ethical obligation to recuse himself even if no motion to disqualify is ever filed.

      . In Goines, the Fourth District held that a defendant claiming ineffective assistance of counsel (where grounds for filing a legally sufficient motion to disqualify existed, yet, defense counsel failed to do so), could demonstrate he was "prejudiced” by "showing that counsel's error rendered the trial fundamentally unfair” ... "because of the appearance and risk of judicial bias.” 708 So.2d at 661 (emphasis added).

      . For example, where a defendant's false testimony might have persuaded the jury to acquit him, it is not fundamentally unfair to conclude that he was not prejudiced by counsel’s interference with his intended perjury. See e.g., Nix v. Whiteside, 475 U.S. 157, 175-176, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986).

      . Lockhart mandates this second tier of inquiry. However, as explained above, this inquiry does not affect the Strickland analysis. It merely serves as an additional tier of scrutiny for ensuring that defendant's do not receive a windfall to which they are not entitled under the law.

      . Sandbagging is defined as “[a] trial lawyer’s remaining cagily silent when a possible error occurs at trial, with the hope of preserving an issue for appeal if the court does not correct the problem.” Black’s Law Dictionary 1342 (7th ed.1999).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jackie JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5552.
    District Court of Appeal of Florida, First District.
    March 2, 2007.
    Jackie Jenkins, pro se, Petitioner.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted. Jackie Jenkins is hereby afforded a belated appeal of the order denying motion to correct illegal sentence entered September 20, 2005, in case number 16-1996-CF-10221 in the Circuit Court for Duval County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BROWNING, C.J., WEBSTER and PADOVANO, JJ., concur.


author: THOMAS, J.

text:
    Charles WILLIAMS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-3438.
    District Court of Appeal of Florida, First District.
    March 2, 2007.
    Charles Williams, pro se, Petitioner.
    Kim Fluharty, General Counsel, Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee; Bill McCollum, Attorney General, Tallahassee, Attorneys for Respondent.
   THOMAS, J.

■ Petitioner seeks certiorari review of the denial of his habeas petition under Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998). Because the facts of this case are substantially similar to Mathis v. Florida Parole Commission, 944 So.2d 1182 (Fla. 1st DCA 2006), we must reverse.

Petitioner is currently serving a combined prison sentence totaling 77 years. He was released from prison to parole supervision on October 16, 2002. On August 13, 2004, the Parole Commission issued a warrant for Petitioner’s arrest, alleging that Petitioner violated condition 2(a) of his parole, which required him to obtain permission from his parole officer before changing his residence. Petitioner argued against his revocation on the grounds that he did not consider his nine-day stay away from his residence as a “change of residence,” therefore, he had no reason or duty to contact his parole officer. Petitioner’s clothes, papers, pictures, and personal belongs were still in his house; he testified that he merely needed to get “away” from domestic problems with his wife, and stayed a few nights each at a residential treatment facility he was familiar with, a friend, and after a failed suicide attempt, at a mental health facility. Upon his return, he learned that his parole officer had been looking for him, and he turned himself in.

Although the hearing officer found Petitioner guilty of the violation, he recommended that Petitioner be reinstated to parole because “the subject’s three years of good adjustment on parole should not go unnoticed.” Nonetheless, the Parole Commission revoked Petitioner’s parole. Petitioner sought habeas relief, which the circuit court denied.

Because this review is requested by petition for writ of certiorari, the material issue is whether the trial court departed from the essential requirements of law or denied Petitioner due process. Sheley, 720 So.2d 216 (Fla.1998). In Mathis, this court succinctly pointed out the proper standard of review in revocation proceedings:

Only a willful violation of a substantial condition of parole or probation will justify revocation of parole or probation. These findings are factual in nature. Therefore, they must be made by the hearing officer. Accordingly, when reviewing parole revocation proceedings, the circuit court must determine whether the record contains competent substantial evidence to support the factual findings of the hearing officer.

Mathis, 944 So.2d at 1188 (internal citations omitted). It is clear from this language that the hearing officer must make enough factual findings in his recommendation to allow the Parole Commission and the lower court to determine whether the violation was “willful.” Otherwise, “[t]he record is silent as to whether or not the hearing officer based his recommendation on a determination that the violation was not willful, or whether he was merely making a policy recommendation to the Parole Commission.” Id.

The Parole Commission argues that Petitioner’s violation was willful on two grounds; first, because Petitioner purposely stayed away from his residence for nine days, and secondly, because Petitioner failed to meet with his Parole Officer upon request. Regardless, there is no finding of willfulness in either the hearing officer’s report or the Parole Commission’s order of revocation. Therefore,

the trial court could not have reviewed the proceedings here and determined that they were supported by competent substantial evidence in the record. Because the trial court could not apply the correct law, it could not have observed the essential requirements of law.

Id. Because it is the role of the hearing officer to determine whether the violation was willful, we express no view on that issue.

Accordingly, we GRANT the certiorari petition, QUASH the trial court’s order denying the petition for habeas corpus, and REMAND with instructions that the trial court remand the proceedings to the hearing officer so that a factual determination can be made as to whether Petitioner’s violation of condition 2(a) of his parole was willful.

BARFIELD and VAN NORTWICK, JJ., concur.


text:
    Wilson CROSBY, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-2743.
    District Court of Appeal of Florida, First District.
    March 2, 2007.

      Wilson Crosby, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of the denial of a petition for writ of mandamus which challenged the Florida Parole Commission’s decision to revoke his conditional release supervision. Review is sought pursuant to Sheley v. Florida Parole Comm’n, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998) (holding that at this stage of the proceedings, review is limited to a determination of whether the circuit court afforded due process and whether the court observed the essential requirements of law). We grant the petition.

To support a revocation of supervised release, the state must prove that a violation of a condition of supervision was both willful and substantial. See State v. Carter, 835 So.2d 259, 262 (Fla.2002); Ellis v. Fla. Parole Comm’n, 911 So.2d 831 (Fla. 1st DCA 2005). In addition, the finder of fact must make a determination that the violation was both willful and substantial. See Mathis v. Fla. Parole Comm’n, 944 So.2d 1182 (Fla. 1st DCA 2006). Here, although the hearing examiner found petitioner guilty of failing to report to the probation office as instructed, it was not clear from either the hearing examiner’s records or the Parole Commission’s order of revocation whether the violation was found to be willful. Accordingly, the circuit court could not have reviewed the proceedings and determined that they were supported by competent substantial evidence in the record and, because the circuit court could not apply the correct law, it could not have observed the essential requirements of law. Id.

Petitioner also challenges the imposition of a lien on his inmate trust account for payment of court costs and fees. Because the underlying action constitutes a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes (2005), there is no statutory authority for the circuit court to impose a hen to recover costs and fees. See Brooks v. Fla. Parole Comm’n, 948 So.2d 801 (Fla. 1st DCA 2006); Spaziano v. Fla. Parole Comm’n, — So.2d —, 2006 WL 1565289 (Fla. 1st DCA 2006); Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d —, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006), rev. granted sub nom., McDonough v. Cox, 924 So.2d 809 (Fla.2006); see also Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). We accordingly quash that portion of the circuit court’s order on indigency imposing a lien as a result of petitioner’s filing the petition for writ of mandamus. The circuit court should direct the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien order.

The petition for writ of certiorari is GRANTED and the final order of the circuit court is quashed. In addition, that portion of the circuit court’s order on indi-gency imposing a hen is quashed. This cause is hereby REMANDED.

BROWNING, C.J., WEBSTER and PADOVANO, JJ., concur.


text:
    The Child, M.H., Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3571.
    District Court of Appeal of Florida, First District.
    March 2, 2007.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed. See A.C.N. v. State, 727 So.2d 368, 371 (Fla. 1st DCA 1999) (“Although the principal focus of the juvenile system is rehabilitation, with the aim of preventing further delinquent or criminal acts, the protection of society and punishment of the child are appropriate considerations.”) (citations omitted).

BARFIELD, BENTON, and POLSTON, JJ., concur.


text:
    Devon GRANT, Appellant, v. DEPARTMENT OF REVENUE on behalf of Keisha Nesbeth WILLIS, Appellee.
    No. 1D06-4097.
    District Court of Appeal of Florida, First District.
    March 2, 2007.
    Scott Brook of Scott J. Brook, P.A., Coral Springs, for Appellant.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellee’s confession of error, the final administrative support order is reversed, and the matter is remanded to the Division of Administrative Hearings for a new hearing.

BROWNING, C.J., WEBSTER and PADOVANO, JJ., concur.


text:
    Eric L. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6083.
    District Court of Appeal of Florida, First District.
    March 2, 2007.
    Herman D. Laramore, Public Defender, and Joel Margules, Assistant Public Defender, Panama City, for Petitioner.
    Bill McCollum, Attorney General, and Betty Cheramie, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted. Eric Williams is hereby afforded a belated appeal of the judgment and sentence in case number 04-1689C in the Circuit Court for Bay County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent petitioner in the appeal, if he qualifies for such an appointment.

BROWNING, C.J., WEBSTER and PADOVANO, JJ„ concur.


text:
    Douglas SINCLAIR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6221.
    District Court of Appeal of Florida, First District.
    March 2, 2007.

      Douglas Sinclair, pro se, Petitioner.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted. Douglas Sinclair is hereby afforded a belated appeal of the order denying motion for postconviction relief entered on September 26, 2006, in case number 16-2000-CF-9964 in the Circuit Court for Duval County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BROWNING, C.J., WEBSTER and PADOVANO, JJ., concur.


text:
    Robert MARLETT, Former Husband, Appellant, v. Karen STILLWELL (Marlett), Former Wife, Appellee.
    No. 1D06-2559.
    District Court of Appeal of Florida, First District.
    March 2, 2007.
    Robert Marlett, pro se, Appellant.
    Shelley L. Everett, Jacksonville, for Ap-pellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 1, 2006, the Court has determined that the order on appeal is not a final order. Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002) (dismissing appeal as premature where order reserved jurisdiction to determine equitable distribution of marital assets and liabilities). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BROWNING, C. J., WEBSTER, and PADOVANO, JJ., concur.


text:
    STATE of Florida, Appellant, v. Michael Gene HAMILTON, Appellee.
    No. 1D07-0532.
    District Court of Appeal of Florida, First District.
    March 5, 2007.
    William N. Meggs, State Attorney, and Eric Trombley, Assistant State Attorney, Tallahassee; Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See King v. State, 870 So.2d 69 (Fla. 2d DCA 2003).

HAWKES, THOMAS, and ROBERTS, JJ., concur.


text:
    A.B., Mother of H.C., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-4362.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2007.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   ON CONFESSION OF ERROR

PER CURIAM.

In this dependency proceeding, A.B., the mother of H.C., a child, appeals an order of the circuit court terminating supervision by the Department of Children and Families, but retaining jurisdiction over the case. The Department properly confesses error, recognizing that the trial court’s order is inconsistent with our decision in W.R. v. Department of Children & Families, 757 So.2d 605 (Fla. 5th DCA 2000). Accordingly, we reverse the trial court’s order to the extent that the trial court retains jurisdiction over A.B. and H.C.

' REVERSED.

PALMER, ORFINGER and MONACO, JJ., concur.


text:
    Carl MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4833.
    District Court of Appeal of Florida, First District.
    March 6, 2007.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

In this direct criminal appeal, Appellant challenges his convictions and sentences for possession of cocaine (Count I), battery on a law enforcement officer (Count II), and resisting an officer with violence (Count III). We affirm Appellant’s convictions and reject his argument that the trial court reversibly erred when it declined to instruct the jury on the justifiable use of non-deadly force. Because Appellant’s sentences were illegal, however, we reverse for resentencing.

During Appellant’s arrest, he was loud and threatening to the arresting officers, shouting racial slurs, refusing to cooperate, and attempting to flee. While being escorted out of the residence, Appellant continued to shout slurs and attempted to return to the residence to “get in the officers’ faces.” At one point, Appellant’s head made contact with the transporting officer, and the two men fell to the ground. During the struggle, Appellant continued to make threats and racial slurs, and eventually grabbed the officer by his testicles. As the officer tried to get up, Appellant trapped the officer’s legs underneath his body. Fearing another assault, the officer smashed Appellant’s head into the ground. As the officer tried to get Appellant to submit, Appellant continued to gnaw, bite and spit at the officer. There was no evidence that the officer used any type of weapon during the encounter.

Following the jury trial, Appellant was sentenced to ten years in prison for Count I as an habitual felony offender; ten years concurrent for Count II; and five years, consecutive to the first two counts, for Count III. Appellant argues that his convictions should be reversed because the trial court refused to instruct the jury regarding the justifiable use of non-deadly force. We agree with the trial court that the instruction was not proper and affirm Appellant’s convictions.

Failure to give a requested jury instruction constitutes reversible error where the complaining party establishes that: (1) the requested jury instruction accurately states the applicable law; (2) the facts in the case support giving the instruction; and (3) the instruction was necessary to allow the jury to properly resolve all issues in the case. Langston v. State, 789 So.2d 1024, 1026 (Fla. 1st DCA 2001).

Appellant’s request for the self-defense jury instruction fails on prong 2 of the Langston test outlined above, as Appellant has not presented any facts to support giving the instruction. “[A] court may instruct the jury on the accused’s justifiable use of force only if the evidence establishes that the police used excessive force.” Caldwell v. State, 803 So.2d 839, 840 (Fla. 2d DCA 2001). Unlike Langston, where there was a bare allegation by a single witness, here there was no evidence that unlawful or excessive force was used. In fact, the evidence shows that the initial fall was either an accident or was instigated by Appellant; therefore, the instruction was not required. See Casey v. State, 651 So.2d 1230 (Fla. 2d DCA 1995) (affirming trial court’s denial of self-defense instruction, noting that trial transcript showed the arresting officer used only enough force to subdue defendant). Here, the testimony is clear that the officer used only enough force to require Appellant to discontinue his physical attacks and submit to authority. Accordingly, we affirm Appellant’s convictions.

As to Appellant’s sentences, we must reverse. The State concedes Appellant’s sentence was in error on two grounds. First, section 775.084(l)(a)(3), Florida Statutes (2004), specifically prohibits imposition of an habitual felony offender sentence for the charge of possession of a controlled substance. See Peterson v. State, 743 So.2d 1134 (Fla. 1st DCA 1999). Second, because the offenses of battery on a law enforcement officer and resisting arrest with violence arose from the same criminal episode, Appellant’s consecutive sentence for Count III is in error. See Hale v. State, 630 So.2d 521 (Fla.1993).

It should be noted that the trial court has already addressed these issues once. Upon Appellant’s motion to correct sentencing error, the trial court resentenced Appellant to concurrent sentences of five years for Count I, five years for Count II, and ten years for Count III; however, because the order was issued more than 60 days after Appellant’s Rule 3.800(b)(2) motion was filed, in violation of Rule 3.800(b)(1)(B), Florida Rules of Criminal Procedure, the motion is deemed denied as a matter of law and is considered a nullity. See Long v. State, 886 So.2d 280, 281 (Fla. 1st DCA 2004).

Accordingly, we vacate Appellant’s sentence and remand for resentencing.

AFFIRMED in part, REVERSED in part, and REMANDED.

HAWKES and ROBERTS, JJ., concur.


text:
    Jessica B. JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1233.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2007.
    James S. Purdy, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Gonzalez v. State, 948 So.2d 892 (Fla. 5th DCA 2007).

SAWAYA, PALMER, and LAWSON, JJ., concur.


author: WEBSTER, J.

text:
    The AUCHTER COMPANY, a Florida corporation, Appellant, v. Fouad ZAGLOUL, Appellee.
    No. 1D06-2817.
    District Court of Appeal of Florida, First District.
    March 7, 2007.

      John W. Caven, Jr., and Allan P. Clark of Foley & Lardner LLP, Jacksonville and John R. Hamilton, Foley & Lardner LLP, Orlando, for Appellant.
    T. Geoffrey Heekin, S. Hunter Malin, and Jeremy T. Simons of Heekin, Malin & Wenzel, P.A., Jacksonville, for Appellee.
    Christopher V. Carlyle, Shannon McLin Carlyle, and Gilbert S. Goshorn, Jr., of The Carlyle Appellate Law Firm, The Villages, for Amicus Curiae Associated General Contractors of America and Associated General Contractors of Greater Florida.
   WEBSTER, J.

Appellant seeks review of a non-final order denying its Motion to Dismiss and/or Compel Mediation and/or Arbitration and Stay Action filed in response to a complaint stating causes of action based on a contract between appellant (as the contractor) and appellee (as the owner) to build a house. We have jurisdiction. Art. V, § 4(b)(1), Fla. Const, (granting to district courts of appeal jurisdiction to “review interlocutory orders ... to the extent provided by rules adopted by the supreme court”); Fla. R.App. P. 9.130(a)(3)(C)(iv) (providing for appeal to the district courts of appeal of non-final orders that “determine ... the entitlement of a party to arbitration”). See Tropical Ford, Inc. v. Major, 882 So.2d 476 (Fla. 5th DCA 2004) (concluding that rule 9.130(a)(3)(C)(iv) authorizes review of an order denying a motion to stay and compel mediation and, if mediation failed, arbitration, pursuant to a contract between the parties). Because we conclude that the trial court erred as a matter of law when it determined that the mandatory mediation and arbitration provisions of the parties’ contract did not survive appellee’s purported termination of the contract, we reverse and remand with directions that the trial court grant appellant’s motion; compel the parties to submit to mediation and, if mediation fails, to binding arbitration; and stay the action pending the parties’ compliance.

The pertinent facts are not in dispute. In 2003, the parties entered into a standard American Institute of Architects (AIA) contract for the construction of a house on appellee’s property. It consisted of two documents — a “Standard Form of Agreement Between Owner and Contractor” (AIA Document Alll-1997) and “General Conditions of the Contract for Construction” (AIA Document A201-1997). In 2005, roughly two months after appellant had secured a certificate of occupancy, appellee notified appellant that he was terminating the contract because of what he characterized as “substantial breaches of the [e]ontract.” Appellee then filed a four-count complaint seeking damages. Appellant responded with its Motion to Dismiss and/or Compel Mediation and/or Arbitration and Stay Action, arguing that, pursuant to subparagraphs 4.5.1 and 4.6.1 of the General Conditions of the contract,, appel-lee was required to submit any “claims arising out of or related to the [contract” to mediation and, if mediation failed, to binding arbitration. Appellee opposed appellant’s motion on the ground that the contract between the parties had been terminated and, as a matter of law, the mediation and arbitration provisions contained in the General Conditions did not survive that termination. Appellee relied principally on the decision in Aberdeen Golf & Country Club v. Bliss Construction, Inc., 932 So.2d 235 (Fla. 4th DCA 2005), which decision appellee contended was binding on the trial court because it was the only Florida appellate decision construing the mediation and arbitration provisions contained in the standard AIA contract. Appellant responded that Aberdeen was not controlling because the discussion of the effect of termination of the contract on the mediation and arbitration provisions was dicta, and the actual holding of the case was that the owner had waived the right to insist on mediation or arbitration when it terminated the contract. Appellant argued that, because it had done nothing to waive its right to insist upon compliance with the mediation and arbitration provisions, Aberdeen had no bearing on the issue. Ultimately, the trial court accepted appellee’s position and, relying on Aberdeen for the proposition that the mediation and arbitration provisions of the standard AIA contract were not intended to survive termination of the contract, denied appellant’s motion. This appeal follows. Because the trial court’s order denying the motion to compel mediation and/or arbitration is based entirely on its construction of the contract documents, our standard of review is de novo. E.g., Powertel, Inc. v. Bexley, 743 So.2d 570, 573 (Fla. 1st DCA 1999).

It would appear that, given the nature of the parties’ contract, the applicable law is that found in the Federal Arbitration Act (9 U.S.C. §§ 1-16 (2000)), rather than in the Florida Arbitration Code (§§ 682.01-682.22, Fla.Stat.(2005)). See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (concluding that Congress intended to exercise its full Commerce Clause power when it passed the Federal Arbitration Act). However, for purposes of this appeal, it is irrelevant which law applies because the analysis is the same in either case. According to our supreme court,

[u]nder both federal statutory provisions and Florida’s arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration has been waived.

Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (citing Terminix Int’l Co. v. Ponzio, 693 So.2d 104, 106 (Fla. 5th DCA 1997)). Accord John B. Goodman Ltd. P’ship v. THF Constr., Inc., 321 F.3d 1094 (11th Cir.2003). Here, the trial court based its decision on its conclusion that the mediation and arbitration provisions of the contract did not survive termination of the contract — i.e., that no valid agreement to arbitrate existed after termination of the contract. Nobody has suggested that no arbitrable issue exists or that appellant waived its right to arbitrate. Accordingly, we are concerned only with whether the mediation and arbitration provisions contained in the contract were “valid” when appellant sought to invoke them.

The relevant portions of the parties’ contract are contained in the General Conditions of the contract. Subparagraph 4.3.1 defines “Claim” as “a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term ‘Claim’ also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract.” Paragraph 4.4 is titled “RESOLUTION OF CLAIMS AND DISPUTES.” Its pertinent provisions read:

4.4.1Decision of Architect. Claims, including those alleging an error or omission by the Architect but excluding those arising under Paragraphs 10.3 through 10.5, shall be referred initially to the Architect for decision. An initial decision by the Architect shall be required as a condition precedent to mediation, arbitration or litigation of all Claims between the Contractor and Owner arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Architect with no decision having been rendered by the Architect. The Architect will not decide disputes between the Contractor and persons or entities other than the Owner. 4.4.5.... The Approval or rejection of a Claim by the Architect shall be final and binding on the parties but subject to mediation and arbitration.

Paragraph 4.5 is titled “MEDIATION.” Its pertinent provisions read:

4.5.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Subpara-graphs 4.3.10, 9.10.4 and 9.10.5 shall, after initial decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party.
4.5.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing with the other party to the Contract and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order.

Paragraph 4.6 is titled “ARBITRATION.” Its pertinent provisions read:

4.6.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Subpara-graphs 4.3.10, 9.10.4 and 9.10.5, shall, after decision of the Architect or 30 days after submission of the Claim to the Architect, be subject to arbitration. Pri- or to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of paragraph 4.5.
4.6.2 Claims not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect.
4.6.6 Judgment on Final Award. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

In Aberdeen Golf & Country Club v. Bliss Construction, Inc., 932 So.2d 235 (Fla. 4th DCA 2005), the court reviewed a non-final order denying a motion to compel arbitration. In Aberdeen, the parties had entered into a standard AIA contract substantively identical to that in this case. There, as here, the owner purported to terminate the contract before completion. Unlike the situation here, however, in Aberdeen the contractor filed a damage action to which the owner responded with a motion requesting that the trial court stay the action and compel arbitration. The contractor argued that the owner had waived its right to insist on arbitration pursuant to the contract when it terminated the contract rather than follow the dispute resolution procedure set out in the contract. The trial court agreed and, accordingly, denied the motion requesting arbitration. On appeal, the court held that the trial court had correctly concluded that the owner’s actions had constituted a waiver of its right to insist on arbitration. The court said:

We agree that, after the architect’s initial ... decision, the owner’s refusal to initiate mediation as a precondition to arbitration and to comply with the duty to make progress payments instead of terminating the contract could be deemed a voluntary and intentional relinquishment of the known right to arbitration.

Id. at 240 (citing Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707 (Fla.2005)). The court also said that, “[i]n repudiating the [alternative dispute resolution provisions of the contract], the owner should not be heard in litigation to claim the benefit of an [alternative dispute resolution] provision it had rejected so clearly and unequivocally.” Id. at 241.

It should be apparent that the facts of Aberdeen are readily distinguishable from those of this case. In Aberdeen, the owner, which had repudiated the contract by terminating it, was the party seeking the benefit of the contract’s dispute resolution provisions. Although the owner also repudiated the contract by purporting to terminate it in this case, here it is the contractor that is demanding enforcement of those provisions. Clearly, the equities are far different. However, appellee is not relying on the holding in Aberdeen. Instead, he is relying on what we believe is dicta.

For reasons that are not at all clear from the opinion, the court in Aberdeen examines at considerable length the dispute resolution provisions of the contract. Having done so, it then concludes that those provisions were not intended to survive termination of the contract by either party; instead, they were meant merely “to speed dispute resolutions during construction in order to bring about a successful completion of the contract.” Id. at 238. In support of this conclusion, the court notes:

Significantly the contract specifies that, after notice from the complaining party, an initial decision by the architect is a condition precedent “to mediation, arbitration or litigation of all Claims.” [e.s.] If the parties meant for arbitration to supplant all litigation — even after a termination before full completion- — they would not have inserted litigation, the emphasized word, because their intent then would have been to eliminate litigation entirely.... [T]he arbitration clause does not state that it is a precondition to litigation. In fact, nothing in the contract specifies that the arbitration provision is irrevocable and replaces all litigation in court.

Id. Relying on this analysis, the trial court in this case concluded that the dispute resolution provisions of the contract did not survive appellee’s purported termination of the contract, and denied appellant’s request for mediation and/or arbitration. This was error.

We are unable for several reasons to agree with the Aberdeen court’s dicta regarding the intent of the standard AIA contract as to alternative dispute resolution mechanisms. Contrary to the suggestion in Aberdeen, an arbitration provision does not require any type of “savings clause” to survive contract termination. On the contrary, it is well established that the duty to arbitrate does not necessarily end when a contract is terminated, as long as the dispute concerns matters arising under the contract. E.g., Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v. N.L.R.B., 501 U.S. 190, 208, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991); Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionery Workers Union, AFL-CIO, 430 U.S. 243, 255, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977); Doctors Assocs., Inc. v. Thomas, 898 So.2d 159, 162 (Fla. 4th DCA 2005); Qubty v. Nagda, 817 So.2d 952, 956 (Fla. 5th DCA 2002); Milbar Med. Co. v. Medicis Pharm. Corp., 741 So.2d 1198, 1199 (Fla. 4th DCA 1999). Arbitration provisions are to be construed to require arbitration of disputes arising after the cancellation of the underlying contract unless such disputes are specifically excluded from arbitration. E.g., Nolde Bros., 430 U.S. at 255, 97 S.Ct. 1067; Doctors Assocs., 898 So.2d at 162; Qubty, 817 So.2d at 956; Milbar, 741 So.2d at 1199. Because post-termination disputes are not expressly excluded from the scope of the dispute resolution provisions of the contract, we must construe them as intended to be included.

The Aberdeen court apparently overlooked the definition of “Claims” contained in subparagraph 4.3.1 of the General Conditions. It provides that “[a] Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term ‘Claim’ also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract.” (Emphasis added.) This language appears to us intended to be all-inclusive. It does not purport to limit “Claims” to disputes arising before termination of the contract. Moreover, the emphasized language has been interpreted by our supreme court as intended “to encompass virtually all disputes between the contracting parties, including related tort claims.” Seifert v. U.S. Home Corp., 750 So.2d 633, 637 (Fla. 1999) (footnote omitted).

Other language in the dispute resolution provisions seems to us to support the conclusion that arbitration is intended to be the sole remedy if a party to the contract requests it. Subparagraph 4.6.1 states that “[a]ny Claim arising out of or related to the Contract [except certain Claims that are expressly exempted] ... shall ... be subject to arbitration.” Similarly, subpar-agraph 4.6.2 states that “Claims not resolved by mediation shall be decided by arbitration.... ” Finally, subparagraph 4.6.6 states that “[t]he award rendered by the arbitrator or arbitrators shall be final....” We do not believe that the references to “litigation” in subparagraph 4.4.1 and to “legal or equitable proceedings” in subparagraphs 4.5.1 and 4.5.2 stand for the proposition that the provisions were not intended to be a substitute for litigation in court. Rather, it seems to us more reasonable to conclude that those references are intended merely to make it clear that, even if neither of the parties to the contract requests arbitration, they still must first submit their disputes to the architect, and then to mediation, before they may proceed to litigation.

The Aberdeen court’s dicta also disregards the propositions that arbitration clauses are to be given the broadest possible interpretation in order to accomplish the purpose of resolving controversies out of court, see, e.g., Hirshenson v. Spaccio, 800 So.2d 670, 674 (Fla. 5th DCA 2001); Ocwen Fin. Corp. v. Holman, 769 So.2d 481, 483 (Fla. 4th DCA 2000); Royal Caribbean Cruises, Ltd. v. Universal Employment Agency, 664 So.2d 1107, 1108 (Fla. 3d DCA 1995); and that, because arbitration agreements are a favored means of dispute resolution, any doubts concerning their scope should generally be resolved in favor of arbitration. See, e.g., Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 289 (Fla. 1st DCA 2003). To read arbitration provisions such as that in this case as not intended to survive termination of the contract would permit parties to avoid arbitration simply by purporting to terminate the contract, thereby frustrating such policy objectives.

We hold that the dispute resolution provisions of the contract are intended to survive purported termination of the contract by a party. Because the trial court reached the opposite conclusion, we reverse the order denying appellant’s Motion to Dismiss and/or Compel Mediation and/or Arbitration and Stay Action; and remand with directions that the trial court order appellee to proceed to mediation and, if mediation fails, to binding arbitration, as contemplated by the agreement he signed, and that it stay further court proceedings pending compliance with that order. As the parties correctly recognize, because there is no architect for the project, compliance with subparagraph 4.4.1 of the General Conditions is not a condition precedent to mediation and/or arbitration. See Manalili v. Commercial Mowing & Grading, 442 So.2d 411, 413 (Fla. 2d DCA 1983).

REVERSED and REMANDED, with directions.

BROWNING, C.J., and PADOVANO, J., concur.


text:
    Robert E. BANKS, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-3376.
    District Court of Appeal of Florida, First District.
    March 7, 2007.

      Robert E. Banks, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner Robert E. Banks brings this petition for writ of certiorari, asking the court to quash a circuit court order dismissing his petition for writ of mandamus. Petitioner also argues that the trial court erred by authorizing the Department of Corrections to place a lien on his inmate account.

We agree that the circuit court erred in placing a lien on petitioner’s inmate trust account. Recent decisions from this court and the Florida Supreme Court have held that any disciplinary matter which affects an inmate’s earned gain time, and thus the length of the inmate’s sentence, is a collateral criminal proceeding exempt from the Prisoner Indigency Statute. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003); Terry v. McDonough, 935 So.2d 81 (Fla. 1st DCA 2006); Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005). We otherwise deny the petition without further comment.

Therefore, we grant the petition for cer-tiorari in part, deny in part, and quash the trial court’s order imposing a lien on petitioner’s inmate account. We remand for entry of an order directing the reimbursement of any funds withdrawn from petitioner’s inmate account pursuant to the lien.

BARFIELD, BENTON, and POLSTON, JJ., concur.


text:
    Ron MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4217.
    District Court of Appeal of Florida, First District.
    March 7, 2007.
    M. Lilja Dandelake of Frank E. Sheffield, P.A., Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Ron Miller is hereby afforded a belated appeal from judgment and sentence in Leon County Circuit Court 2005-CF-0514. Upon issuance of mandate in this cause, a copy of the opinion shall be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The circuit court is directed to appoint counsel for petitioner in the direct appeal if he qualifies for such an appointment.

PETITION GRANTED.

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


text:
    Kenneth CARLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6085.
    District Court of Appeal of Florida, First District.
    March 7, 2007.
    D. Todd Doss, Lake City, for Petitioner.
    Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Kenneth Carle is afforded belated appeal from judgment and sentence in Columbia County case number 03-239-CF. It is noted that an appeal is currently pending before this court in Carle v. State, 1D06-6168, and the outstanding show cause order on timeliness will be discharged by separate order and appellate review shall proceed in that case.

PETITION GRANTED.

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


text:
    Steve HAMPTON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-3623.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.

      Steve Hampton, Lowell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Steve Hampton (Defendant) appeals- an order summarily denying in part, and summarily denying without prejudice in part, his rule 3.850 motion for postconviction relief, and a second order denying his motion to dismiss his pending rule 3.850 motion as moot. We treat the appeal as a petition for writ of certiorari and grant it.

We affirmed Defendant’s conviction and sentence in L.T. case no. 02-4814 by written opinion, Hampton v. State, 886 So.2d 319 (Fla. 4th DCA 2004), rev. denied, 898 So.2d 937 (Fla.2005). The supreme court denied review on March 3, 2005. Thus, the time within which Defendant may file a timely rule 3.850 motion was not to expire until Monday, March 5, 2007. He filed such a motion on September 21, 2005 and thereafter amended it several times. One or more of the amendments did not comply with rule 3.850(c). In an order dated July 25 but not entered until July 28, 2006, the trial court summarily denied grounds one through four, and denied the remaining eight grounds without prejudice to Defendant refiling them in strict compliance with rule 3.850(c).

On July 26, 2006, before the trial court’s order was entered, Defendant served a motion to dismiss his then pending amended rule 3.850 motion. He noted that he was still within the two-year time period for filing a timely motion, and indicated he planned to resubmit his entire twelve-ground motion instead of the eight grounds that the trial court denied without prejudice. That motion was not filed with the court until August 1, 2006. In an order dated August 14 and entered August 15, 2006, the trial court denied Defendant’s motion to dismiss as moot. Defendant appealed both the July 28 and the August 15 orders.

The orders on appeal are nonfinal, non-appealable orders. However, we treat the appeal as a petition for writ of certiorari. See Jackson v. State, 527 So.2d 845 (Fla. 1st DCA 1988) (granting certiorari relief from trial court s refusal to allow defendant to revoke his motion to withdraw plea).

Unless there is prejudice to the state, a rule 3.850 movant is entitled to withdraw his motion before it is ruled on. See Clark v. State, 491 So.2d 545 (Fla. 1986); Washington v. State, 937 So.2d 271 (Fla. 4th DCA 2006); Hutchinson v. State, 921 So.2d 780 (Fla. 1st DCA 2006); Johnson v. State, 739 So.2d 160 (Fla. 3d DCA 1999).

We conclude that the trial court departed from the essential requirements of law when it did not allow Defendant to withdraw his motion in its entirety and to refile it. Because he is incarcerated, Defendant’s motion is considered to have been filed on July 26, the date it was served. See Fla. R.App. P. 9.420(a)(2); Thompson v. State, 761 So.2d 324 (Fla. 2000); Haag v. State, 591 So.2d 614 (Fla. 1992). This was prior to the date that the trial court’s order of denial was rendered, on July 28, as an order does not become effective until it is signed and filed. Barry v. Robson, 65 So.2d 739 (Fla.1953), cited in HenRY P. Trawiok, Jr., Florida Practice and Prooedure § 15-3 (2004 ed.). The fact that the trial court could not have known of the dismissal at the time of ruling does not control. Compare Hansen v. State, 816 So.2d 808, 809 (Fla. 1st DCA 2002) (“Although the trial court may have ruled upon the postconviction motion before becoming aware that a motion to dismiss was pending, the trial court should have corrected its oversight when ruling upon Appellant’s timely motion for rehearing.”).

Accordingly, we quash the two orders on review and, as the time for filing expired while this appeal was pending, we direct the trial court to allow Defendant to refile his motion within thirty days after the issuance of the mandate in this case. If Defendant has already refiled his motion with the trial court while this proceeding has been pending, the court shall consider and rule on that motion.

GUNTHER, POLEN and TAYLOR, JJ., concur.

      . The rule does not apply when the parties are present to hear the order, Trawick § 15-3, but that was not the case here,


author: KLEIN, J.

text:
    PL LAKE WORTH CORP., as general partner of Philips Lake Worth L.P., Appellant, v. 99CENT STUFF-PALM SPRINGS, LLC, Appellee.
    No. 4D06-1541.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.

      Richard M. Bales, Jr. of Bales Sommers & Klein, P.A., Miami, for appellant.
    Ronald M. Gaché and Scott A. Simon of Broad and Cassel, West Palm Beach, for appellee.
   KLEIN, J.

Appellant, the owner of a shopping center, leased space to the appellee, 99Cent, at a square foot rate which did not include common area expenses or real estate taxes for five years. It also gave 99Cent several options to renew for five years at a specified base rent, plus unspecified common area maintenance and taxes. Months before it came time to exercise the option, 99Cent asked the owner for, but was refused, information as to the estimated charges for maintenance and taxes. 99Cent ultimately exercised the option when it finally received the information, but this was after the time to exercise had expired. In this lawsuit the trial court found in favor of 99Cent, because the owner, in refusing to supply the information, had breached an implied duty of good faith. We affirm.

In 2000, when the five year lease was executed, the property was in distress, and 99Cent was able to negotiate a very favorable rate of six dollars a square foot with no common area maintenance or real estate taxes. The lease provided 99Cent with options to renew for three successive five year periods at a base rent of four dollars a square foot, plus unspecified common area maintenance and taxes. In order to exercise the option 99Cent was required to give written notice to the owner by November 2, 2005.

During the summer of 2005, 99Cent requested, on more than one occasion, information from the owner as to what the estimated maintenance expenses and real estate taxes would be in 2006. Although the owner initially said it would supply the information, it never did, and testified at trial that it refused to provide the estimated 2006 information because the lease did not require it to do so.

99Cent did not exercise the option by the deadline of November 2, 2005, because it had not yet received the information, and the owner filed this action seeking a declaratory judgment that the option had expired and that 99Cent was required to vacate as of April 30, 2006. 99Cent defended on the basis that the owner had breached an implied good faith duty to provide 99Cent with the information it needed in order to determine whether it should exercise the option. It sought declaratory and injunctive relief in order to obtain the information and have the opportunity to exercise the option. Within hours after the owner disclosed the maintenance and tax information pursuant to court order, 99Cent exercised its option to renew on February 3, 2006.

After a nonjury trial, the court found that the owner had breached an implied duty of good faith, when it refused to give 99Cent the information 99Cent needed in order to make an informed decision to exercise its option to renew. The court relied on Sharp v. Williams, 141 Fla. 1, 192 So. 476, 480 (1939):

When a party stipulates that another shall do a certain thing, he thereby impliedly promises that he will himself do nothing which will hinder or obstruct that other in doing that thing; and indeed if the situation is such that the cooperation of one party is an essential prerequisite to performance by the other, there is not only a condition implied in fact qualifying the promise of the latter, but also an implied promise by the former to give the necessary cooperation. ...
Prevention or hindrance by a party to a contract of any occurrence or performance requisite under the contract for the creation or continuance of a right in favor of the other party, or the discharge of a duty by him, is a breach of contract, [citations omitted.]

The owner’s argument is simply that, because the contract did not require the owner to furnish the information, there was no duty to do so. This argument of course ignores that there can be an implied duty to cooperate, which our supreme court recognized in Sharp, and which is explained more thoroughly by Judge Van Nortwick in his comprehensive opinion in Cox v. CSX Intermodal, Inc., 732 So.2d 1092 (Fla. 1st DCA 1999).

An analogous situation was presented in Bowers v. Medina, 418 So.2d 1068 (Fla. 3d DCA 1982), in which a contract for the sale of a residence required the purchasers to obtain a mortgage loan for a specific amount. The owners, however, refused to make the property available for the appraisal, which was necessary for the purchaser to obtain the loan commitment. The trial court found that the owners had breached a good faith duty of cooperation by refusing to permit the appraisal, and the third district affirmed stating:

An established contract principle is that a party’s good-faith cooperation is an implied condition precedent to performance of the contract; where that cooperation is withheld, the recalcitrant party is estopped from availing himself of his own wrong doing.

Id. at 1069.

The owner’s argument that the implied covenant of good faith cannot be used to vary the express terms of a contract, City of Riviera Beach v. John’s Towing, 691 So.2d 519 (Fla. 4th DCA 1997), is correct but misplaced in this case. If the lease had expressly provided that the owner was not responsible to furnish the information in dispute, the owner would have a point. In this case, however, the lease was silent, and the finding by the trial court that the owner had an implied duty to furnish this information, so that 99Cent could make an informed decision as to whether to exercise the option, is supported by the evidence and the law.

Affirmed.

STEVENSON, C.J., and SHAHOOD, J„ concur.


author: CORTINAS, Judge.

text:
    Sandra A. COOK, Appellant, v. CRAZY BOAT OF KEY WEST, INC., and William Shepard, Appellees.
    No. 3D06-121.
    District Court of Appeal of Florida, Third District.
    March 7, 2007.
    Sabato DeVito and Linda Bellomio Commons, Spring Hill, for appellant.
    Wayne Kruer, Key West, for appellees.
    Before GERSTEN, CORTINAS, and ROTHENBERG, JJ.
   CORTINAS, Judge.

The Appellant, Sandra Cook (“Cook”), appeals from an order granting summary judgment in her negligence action against Crazy Boat of Key West, Inc. and William Shephard (collectively, “Crazy Boat”) for injuries she allegedly sustained while a passenger on a Crazy Boat ride on October 11, 2001. Cook admitted to signing a “Total Release of Liability Affidavit” (“release”). However, Cook claims this release is void pursuant to 46 U.S.C. app. § 183c(a), which prohibits limitations of liability for “any vessel transporting passengers between ports of the United States or between any such port and a foreign port,” and pursuant to Florida law because the release is ambiguous and does not contain the word “negligence.” The trial court properly rejected both of these contentions and correctly granted summary judgment.

As the able trial judge explained in his order, recent cases from the Eleventh Circuit and the First District are directly applicable to the facts of this case. In Shultz v. Florida Keys Dive Center, Inc., 224 F.3d 1269 (11th Cir.2000), the Eleventh Circuit affirmed an order granting summary judgment in favor of a dive center, upholding a release signed by the plaintiff and the decedent and concluding that 46 U.S.C. app. § 183c did not apply. There, the decedent drowned after becoming separated from the dive boat while scuba diving. Id. at 1270. The Eleventh Circuit accepted, without reviewing, the trial court’s determination that admiralty jurisdiction applied and agreed that section 188c did not void the release because:

[t]he Goody III served only as a dive boat: it departed the port of Tavernier in the Florida Keys, brought the divers to the location of the dive, and after the dive returned them to Tavernier. It was not a “vessel transporting passengers between ports of the United States or between any such port and a foreign port.”

Id. at 1271 (citing 46 U.S.C. app. § 183c(a)). Similarly, in Hopkins v. The Boat Club, Inc., 866 So.2d 108, 112 (Fla. 1st DCA 2004), the First District found that section 183c did not apply to a release signed by passengers on a boat rented under a membership agreement and driven by the injured plaintiffs husband “[b]e-cause there [was] no indication that the Boat Club was operating as a commercial carrier or that the transportation involved was occurring from port to port.” Here, as the trial court found, the undisputed facts are that:

[t]he vessel [Crazy Boat] was a “thrill ride” vessel that was available for fare paying and guest passengers who willingly desired to go for a ride. The [Crazy Boat] was not in the business of “transporting passengers” but rather it was in the business of providing a recreational activity. In addition, the [Crazy Boat] did not travel between ports of the United States but rather left from and returned to the same port. Accordingly, the provisions of 46 U.S.C. [app. § ] 183c(a) did not apply and thus the release signed by the Plaintiff is not rendered “null and void and of no effect thereby.”

Cook’s attempt at distinguishing Shultz and Hopkins is unpersuasive. Similarly, we reject Cook’s contention that the statutory language “between ports of the United States” can be interpreted to apply to trips out from one port and back to that same port as it contradicts the plain language of the statute. See Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 897 (Fla.2002) (citations omitted); Campbell v. Kessler, 848 So.2d 369, 371 (Fla. 4th DCA 2003) (“When the language of a statute is plain and unambiguous it is not subject to judicial interpretation.”) (citation omitted).

We also disagree with Cook’s contention that the release is ambiguous and unclear because it fails to use the term “negligence.” This argument was considered and rejected by the First District in Hopkins, which found that “federal courts have consistently refused to hold that words such as ‘negligence’ or ‘negligent acts’ are indispensable” in releases. Hopkins, 866 So.2d at 111 (citations omitted). “State laws requiring specific reference to the releasee’s negligence therefore conflict with federal law and may not be applied in cases involving federal maritime law.” Id. Thus, the trial court correctly concluded that the release did not need to contain the word “negligence.” Further, there is no ambiguity in the release and the release is sufficient to alert the signatory as to what they are signing. As the trial court aptly stated, “the release encompasses the alleged negligence which is the basis of the Plaintiffs claim.”

Cook’s other contentions are completely without merit. The plethora of factual issues about which Cook speculates in her brief have no relevance to the actual issues decided by the trial court and presented on appeal. Thus, they are not genuine issues of material fact which bar summary judgment.

Because section 183c does not void the release at issue, and because no other provision of federal maritime law or Florida law consistent with federal maritime law voids the release, the trial court correctly upheld the validity of the signed release and properly granted summary judgment in favor of Crazy Boat.

Affirmed.


author: CORTIÑAS, Judge.

text:
    Shafter G. WYATT, III, as Personal Representative of the Estate of Janet L. Wyatt, deceased, Appellant, v. Marilyn L. MARCUS, D.O.; Marilyn L. Marcus, D.O., P.A., Appellee.
    No. 3D05-1529.
    District Court of Appeal of Florida, Third District.
    March 7, 2007.
    Lauri Waldman Ross; Dickman & Dick-man and Robert J. Dickman, Jr. and Manuel Epelbaum, Miami, for appellant.
    Stephens, Lynn, Klein, LaCava, Hoffman & Puya and Robert J. Cousins, Ft. Lauderdale; Hicks Kneale and Mark Hicks and Richard A. Warren, Miami, for appellee.
    Before GERSTEN, CORTINAS, and ROTHENBERG, JJ.
   CORTIÑAS, Judge.

We review the trial court’s order granting a new trial based on numerous improper comments made by plaintiffs counsel during closing argument and the cumulative effect of those comments. A trial court’s decision to grant a new trial is reviewed for abuse of discretion. See Engle v. Liggett Group, Inc., 945 So.2d 1246, 1263 (Fla.2006); Murphy v. Int’l Robotic Sys. Inc., 766 So.2d 1010 (Fla.2000).

In Murphy, the Florida Supreme Court addressed the factors which a trial court must consider when dealing with unobject-ed-to comments in closing argument. Murphy, 766 So.2d at 1028-31. Such factors are only to be considered when there is a failure to object during closing argument or a failure to request a mistrial based on such statements during or at the close of such argument. See id. at 1031; Garbutt v. LaFarnara, 807 So.2d 83, 83 (Fla. 2d DCA 2001).

In this case, all of the improper comments cited by the trial court in its order granting a new trial were addressed through the trial court’s consideration of defense counsel’s motions for mistrials both during and at the end of plaintiffs closing argument. Thus, the trial court was correct that the Murphy standard for unobjected-to comments did not apply. We find that the trial court did not abuse its discretion in granting a new trial.

Affirmed.

      . We note that many of the improper comments made by plaintiff’s counsel were also objected to by defense counsel during closing argument.


author: TAYLOR, J.

text:
    SUMNER GROUP, INC. d/b/a Copying Concepts Office Systems, Appellant, v. M.C. DISTRIBUTEC, INC. and Mathatia Cohen a/k/a Matt Cohen, Appellees.
    No. 4D06-798.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.

      Justin D. Jacobson of Jacobson, Sobo & Moselle, Plantation, for appellant.
    No appearance for appellees.
   TAYLOR, J.

Sumner Group, Inc. sued its customer, M.C. Distributee, Inc., and its principal, Mathatia Cohen, for passing a worthless check in the amount of $7,547.43 and for breach of the written sales contract in that same amount. The written agreement attached to the complaint provided that Sumner Group would be entitled to “reasonable attorney’s fees” incurred in the collection of the obligation. The complaint sought attorney’s fees under both the worthless check statute, § 68.065, Fla. Stat. (2005), and under the written agreement. The defendants failed to respond to the complaint, so defaults were entered against them.

Sumner Group’s attorney filed an attorney’s fee affidavit which showed that the attorney spent four hours in prosecuting the matter, that his reasonable hourly rate is $175.00 per hour, and that his firm took the matter on a totally contingent fee basis. He thus sought a contingency fee multiplier of 2.0, for a total fee award of $1,400.

The trial court denied the motion for attorney’s fees, without explanation. The trial court did indicate at the hearing that he would not grant a contingency fee because liability was clear and the collectibility of the judgment is not a factor that he can legally consider, noting that it would be difficult to determine whether a judgment will ever be collectible at the time of the attorney’s fee hearing. The trial court stated that even if such a contingency multiplier were not barred as a matter of law, the plaintiff would, at a minimum, have to show that he had made unsuccessful efforts at collection, which he did not do in this case.

This appeal involves pure questions of law, which are reviewed de novo. Knight v. Winn, 910 So.2d 310, 312 (Fla. 4th DCA 2005). By virtue of the default, Sumner Group prevailed on its worthless check claim under Fla. Stat. § 68.065. Thus, an award of attorney’s fees was mandatory. Alvarez v. Alvarez, 800 So.2d 280, 283-84 (Fla. 3d DCA 2001). Sumner Group also prevailed on its breach of contract claim. The written contract provided for an award of attorney’s fees incurred in collection of the debt. The trial court thus had no discretion to deny the award of contractual attorney’s fees. Jacobson v. Jacobson, 595 So.2d 292, 294 (Fla. 5th DCA 1992). Reversal for an award of attorney’s fees is thus required on two independent bases.

Notwithstanding the trial court’s denial of an award of attorney’s fees, it clearly expressed its view that a contingency risk multiplier was not permissible based on the risk of non-collection. Sumner Group challenges this conclusion, but we need not decide that broad question.

In contract cases, the following factors must be considered in determining whether a multiplier is necessary:

(1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in [Florida Patient’s Compensation Fund v.] Rowe [472 So.2d 1145 (Fla.1985) ] are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.

Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 834 (Fla.1990). “Evidence of these factors must be presented to justify the utilization of a multiplier.” Id. Sumner Group did not establish that the market for collection cases requires a contingency risk multiplier to obtain competent counsel. Thus, the trial court was right to refuse a contingency risk multiplier in this collection case. See Askowitz v. Susan Feuer Interior Design, Inc., 563 So.2d 752, 754 (Fla. 3d DCA 1990) (stating that evidence that a multiplier is required in relevant market to attract competent counsel is mandatory). We therefore reverse and remand for an award of attorney’s fees without a multiplier.

Reversed and Remanded.

WARNER, and GROSS, JJ., concur.


text:
    Lee BEAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2684.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.

      Lee Bean, Mayo, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Lee Bean appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. In his motion, Bean raised three claims for relief, challenging several habitual felony offender sentences imposed pursuant to a plea in 1992. The circuit court did not attach any records to refute Bean’s claims. Bean now concedes he is not entitled to all the relief originally sought — specifically, with respect to claims 1 and 3. We therefore deem these claims abandoned and affirm their denial. However, we reverse and remand for the trial court to refute the appellant’s second claim with appropriate record attachments or to correct appellant’s sentence if appropriate.

In his second claim, Bean alleged that his sentence of fifty years as a habitual felony offender for burglary of a dwelling with assault or battery (in case no. 91-4784) while armed is illegal. Bean correctly alleged that a violation of section 810.02(2), Florida Statutes (1991) is a first degree felony, which the trial court was obliged to enhance to a life felony pursuant to section 775.087(l)(a) (use of a weapon), and that, at the time of the offense, life felonies were not subject to habitualization. See Thomas v. State, 831 So.2d 762 (Fla. 4th DCA 2002). The state agrees this claim is cognizable, but contends that Bean is not entitled to relief because he failed to attach the required sentencing records to his motion. We reject this argument. In denying a legally sufficient 3.800(a) motion, the trial court’s failure to attach portions of the record refuting the defendant’s claim is reversible error, and the state cannot cure this error by providing the records to this court on appeal. Collins v. State, 805 So.2d 73 (Fla. 4th DCA 2002).

Finally, the state suggests that the doctrine of laches should apply, noting that Bean filed the instant motion approximately fourteen years after he was sentenced. Laches is sustainable in a criminal case where there has been both a lack of due diligence on the defendant’s part in bringing forth the claim and prejudice to the state. Wright v. State, 711 So.2d 66 (Fla. 3d DCA 1998). While Bean offers no explanation for his delay in bringing the claim, there is no apparent prejudice to the state. Cf. Wright (“[t]he prejudice to the State is likewise apparent as court transcripts are routinely destroyed after 10 years and the State now has no transcript in existence to refute, or prove, Wright’s claim”). Furthermore, a claim of illegal sentence is one that can be raised at any time. See Fla. R.Crim. P. 3.800(a).

Affirmed in part, reversed in part, and remanded.

POLEN, KLEIN and SHAHOOD, JJ., concur.