author: GUNTHER, J.

text:
    Orlando JIMENEZ and Magaly Jimenez, his wife, Appellants, v. COMMUNITY ASPHALT CORP., Con-dotte America, Inc. and Rinker Materials of Florida, Inc., f/k/a CSR America, Inc. and Rinker Materials Corporation, Appellees.
    No. 4D06-3262.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      Philip D. Parrish of Philip D. Parrish, P.A., Miami, and Henry A. Seiden of The Seiden Law Firm, West Palm Beach, for appellants.
    Jodi G. Barrett and Peter A. Cooke of Adams, Coogler, Watson, Merkel, Barry & Kellner, P.A., West Palm Beach, for appel-lee Rinker.
   GUNTHER, J.

Orlando Jimenez and Magaly Jimenez appeal an order dismissing with prejudice Counts V, VI, VII, and VIII of their Third Amended Complaint. We reverse the dismissals and remand to the trial court to abate Counts V, VI, VII, and VIII.

In Counts V (Orlando) and VI (Magaly), the duty .to cooperate counts, the appellants claim that Orlando’s employer, Rink-er Materials of Florida (“Rinker”), breached its statutory duty to cooperate because Rinker failed to cooperate and preserve evidence critical to two separate suits filed by the appellants. One suit is based on a 2000 accident, but Rinker is not a defendant in that case. The second suit, this case, arises from a 2001 accident and Rink-er is a first-party defendant. In Counts VII (Orlando) and VIII (Magaly), the appellants bring spoliation claims against Rinker for failing to preserve evidence critical to both suits. Appellants maintain that all four of these counts are founded on alleged violations of section 440.39(7), Florida Statutes (2006).

In 2001, Orlando was injured when a truck owned by his employer, Rinker, overturned while he was driving it. Orlando alleged that his injuries were sustained during the scope of his employment, and sued Rinker under the intentional misconduct exception to worker’s compensation immunity. The complaint raised claims against Rinker for intentional concealment of dangers, intentional infliction of emotional distress, breach of the duty to cooperate claims, and spoliation of evidence. Appellants also brought a negligence action against two third party defendants that are not the subject of this appeal.

The standard of review of an order dismissing a complaint for failure to state a cause of action is de novo. Della Ratta v. Della Ratta, 927 So.2d 1055, 1058 (Fla. 4th DCA 2006). The reviewing court “must accept the allegations of the complaint as true, but do[es] not defer to the trial court’s conclusions regarding the sufficiency of the allegations.” Id. (internal citations omitted). In other words, a “dismissal should be granted only when it has conclusively been demonstrated that plaintiff can prove no set of facts whatsoever in support of the cause of action.” Yates v. Publix Super Markets, 924 So.2d 832, 834 (Fla. 4th DCA 2006) (on rehearing).

Section 440.39(7), Florida Statutes (2006) part of the Worker’s Compensation Statute, imposes a duty of cooperation on the employer and employee in claims against third party tortfeasors, which includes a duty to preserve evidence critical to the suit. Builder’s Square, Inc. v. Shaw, 755 So.2d 721 (Fla. 4th DCA 1999). “One of the most important rules and conditions stated in the Workers Compensation statute is the duty to cooperate” found in section 440.39(7). Shaw v. Cambridge Integrated Servs. Group, Inc., 888 So.2d 58, 64 (Fla. 4th DCA 2004). Section 440.39(7) states:

(7) The employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims and potential claims against third-party tortfeasors by producing nonprivileged documents and allowing inspection of premises, but only to the extent necessary for such purpose.

Regarding spoliation claims, the Florida Supreme Court, in Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla.2005), held that an independent cause of action for spoliation could not be maintained against a first-party defendant until the underlying negligence action is decided. The supreme court explained that discovery sanctions under the rules of civil procedure provide enough protection against a defendant who destroys, damages, or misplaces evidence. As to the distinction between first-party spoliation and third-party spoliation the supreme court said:

First-party spoliation claims are claims in which the defendant who allegedly lost, misplaced, or destroyed the evidence was also a tortfeasor in causing the plaintiffs injuries or damages. These actions are contrasted with third-party spoliation claims, which occur when a person or an entity, though not a party to the underlying action causing the plaintiffs injuries or damages, lost, misplaced, or destroyed evidence critical to that action.

Id. at 346 n. 2. See also Fini v. Glascoe, 936 So.2d 52 (Fla. 4th DCA 2006).

In dismissing the spoliation counts (Counts VII and VIII) with prejudice, the trial court in this case did so on the ground that the plaintiffs failed to allege the essential elements of a spoliation claim. Citing Royal & Sunalliance v. Lauderdale Marine Center, 877 So.2d 843 (Fla. 4th DCA 2004), the trial court stated the essential elements of a spoliation claim are (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the ability to prove the lawsuit, and (6) damages. In particular, the trial court found that the plaintiffs failed to establish a legal duty to preserve evidence because they had never requested that Rinker preserve any evidence until one to four years subsequent to the potential civil action, that the plaintiffs did not demonstrate a causal relationship between the evidence destruction and the inability to prove the lawsuit, and that the plaintiffs could not prove damages. An additional ground stated by the trial court for dismissal of the spoliation claim arising out of the 2001 accident was that a spoliation claim will not lie where the alleged spoliator and the defendant in the underlying claim are one and the same.

The appellants do not contest that Rink-er is a -first-party defendant as to the 2001 accident case. Nevertheless, they bring the spoliation counts simultaneously with the underlying action which is contrary to the teachings of Martino. In attempting to distinguish Martino, appellants argue that Martino was a common law spoliation claim; whereas in- this case the spoliation claims are made pursuant to section 440.39(7).

To support this distinction, the plaintiffs rely on Yates. The plaintiff in Yates filed a claim based on an alleged violation of section 440.39(7). The claim, however, was filed after the underlying negligence claim had been settled. Citing common law spoliation cases, this Court concluded that a claim for spoliation pursuant to section 440.39(7) “does not arise until the underlying action is completed.” 924 So.2d at 833 (internal quotations omitted). Hence, by implication Yates stands for the proposition that the elements of common law spoliation must be met before proceeding with a spoliation claim pursuant to section 440.39(7). Therefore, under both Martino and Yates, the appellants are barred from bringing the spoliation claims as to the 2001 accident because Rinker is a first-party defendant in the underlying action. Consequently, the trial court correctly determined that the spoliation claims as they relate to the 2001 accident cannot be maintained until the underlying negligence claim is decided.

Analyzing the 2000 accident is a little different because Rinker is not a first-party defendant in that pending action, unlike this case. However, spoliation claims made pursuant to section 440.39(7) must still meet the elements of common law spoliation as set forth above. See Royal & Sunalliance, 877 So.2d at 845; Yates, 924 So.2d at 833. In Shaw v. Cambridge Integrated Services Group, Inc., 888 So.2d 58 (Fla. 4th DCA 2004), this Court explained that due to the nature of spoliation claims the damage in a spoliation claim is the inability to use the evidence in the underlying proceedings. Id. at 63. For this reason, damages in a spoliation claim can only be determined after the underlying claim is decided. Id. Until the underlying claim is decided, the appellants will be unable to show how they were damaged by the alleged lost evidence. Thus, the spoliation claims arising from the 2000 accident are premature because the last element, damages, inter alia, cannot be shown until the underlying claim is complete.

Therefore, concerning the spoliation counts as to both the 2000 and 2001 accidents, we conclude the trial court was correct in determining that they were premature because the underlying negligence claims are not yet resolved.

As to the duty to cooperate, Counts V and VI, we note that the duty to cooperate pursuant to section 440.39(7), Florida Statutes (2006) encompasses more than just a duty to preserve evidence. See Yates, 924 So.2d at 834 (on rehearing) (“Spoliation of evidence is simply one form of failing to cooperate under section 440.39(7)”). The complaint alleges that Rinker investigated both accidents, that as a result of the investigation Rinker had certain evidence in its possession, and that Rinker failed and refused to provide this evidence, thereby impairing appellants’ negligence action against the third parties. The complaint is clear that appellants’ allegation of Rinker’s failure to cooperate deals solely with Rinker’s failure to maintain or obtain evidence that is essential to appellants’ claims against a third party. In other words, the duty to cooperate counts are essentially spoliation claims because they are based on the inability of the appellants to obtain critical evidence that Rinker should have obtained, maintained, and provided. Therefore, because the duty to cooperate counts are in fact spoliation claims, these claims too are premature and may not be pursued until the underlying negligence action is complete.

The question is whether dismissal of the claims is the proper remedy. Two courts have held that the proper remedy for bringing claims prematurely is abatement rather than dismissal. Shuck v. Bank of America, N.A., 862 So.2d 20 (Fla. 2d DCA 2003) (holding that the proper remedy for bringing an action prematurely is not dismissal with prejudice, but abatement or stay of the claim); see also Blumberg v. USAA Cas. Ins., 790 So.2d 1061 (Fla.2001). Consequently, we reverse the dismissal with prejudice of the affected counts and remand to the trial court to issue an order of abatement of those counts. At such time as these claims have properly matured, all other related issues concerning the essential elements of claims and timeliness can be addressed.

Reversed and remanded for entry of an order staying the claims as premature.

WARNER and GROSS, JJ., concur.

      . The statute has not been changed since 1991.

      . In Count IX, Jimenez alleges that Rinker intentionally concealed dangers that resulted in his injury, thereby, making Rinker a first-party defendant.

      . Evidence included written or recorded statements of witnesses, government reports, document accounts of the accidents, as well as photographs/video/film of the scene, etc.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Denise R. BERNHANG, Appellant, v. STATE of Florida UNEMPLOYMENT APPEALS COMMISSION and Fresh Start Produce Sales, Inc., Appellees.
    No. 4D06-4579.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Wilson T. Trammell of Law Offices of Wilson T. Trammell, P.A., Tallahassee, for appellant.
    Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for appellee.
   PER CURIAM.

After careful review of the record, we agree with the Commission that appellant’s obdurate refusal to follow a reasonable work order from two superiors, and inviting the superiors to discharge her in the presence of other employees was sufficient to establish that her actions amounted to misconduct connected with work. See Citrus Cent. v. Detwiler, 368 So.2d 81 (Fla. 4th DCA 1979); Lewis v. Unemployment Appeals Comm’n, 899 So.2d 1183 (Fla. 2d DCA 2005); Hines v. Dep’t of Labor & Employment Sec., 455 So.2d 1104 (Fla. 3d DCA 1984). We also find no due process violations in the conduct of the hearing by the appeals referee. The referee allowed appellant to provide additional testimony; the referee’s interruptions were to remind appellant not to provide irrelevant testimony. We cannot reverse based on appellant’s complaints about the way the referee resolved credibility issues. Credibility falls within the purview of the hearing officer’s discretion as finder of fact. See, e.g., Andrus v. Florida Dep’t of Labor & Employment Sec., 379 So.2d 468 (Fla. 4th DCA 1980).

Affirmed.

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Rose J. SPANO, Appellant, v. Lorraine HOFFMAN, Melissa Mara, and Kenneth Marvin, Appellees.
    No. 4D07-657.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Rehearing Denied Dec. 11, 2007.
    Diane H. Tutt of Diane H. Tutt, P.A., Davie, for appellant.
    Barry Richard and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, for appellees.
   PER CURIAM.

The plaintiff appeals the dismissal with prejudice of her fourth amended complaint for defamation and tortuous interference with business relationships. The dismissal was based on the trial court’s determination that the alleged statements were absolutely privileged because they were made by Florida Bar employees in connection with their official duties during the course of Bar disciplinary proceedings. We affirm the dismissal as to defendants Lorraine Hoffman and Kenneth Marvin because the complaint alleged that these two defendants were employees of The Florida Bar: See Hauser v. Urchisin, 231 So.2d 6, 8 (Fla.1970) (extending absolute immunity to officials of all branches of government); R. Regulating Fla. Bar, Introduction (2006) (stating that the Florida Bar is an “official arm” of the Florida Supreme Court); Mueller v. The Florida Bar, 390 So.2d 449, 452-53 (Fla. 4th DCA 1980) (stating that The Florida Bar and its agents acting within the scope of their office are protected from liability for publication of defamatory matter by an absolute privilege).

We reverse the dismissal with prejudice, however, as to the defendant Melissa Mara because the fourth amended complaint does not allege that she was employed by the Florida Bar or that she had any relationship to the Florida Bar or any other governmental agency. Thus, the trial court erred in dismissing the complaint against Melissa Mara on absolute immunity grounds. See Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So.2d 843, 845 (Fla. 4th DCA 2004)(stating that in reviewing a motion to dismiss the trial court is limited to the four corners of the complaint).

We reject the plaintiffs argument that the trial court erred in dismissing the complaint against Hoffman and Marvin on grounds of absolute privilege because the complaint alleged that the defamatory statements were made intentionally and maliciously. An absolute privilege attaches regardless of whether such statements were made with malice, so long as the employees were acting within the scope of their duties. See Mueller, 390 So.2d at 452; Tucker v. Resha, 634 So.2d 756, 758-59 (Fla. 1st DCA 1994).

Affirmed in part, Reversed in part.

SHAH'OOD, C.J., FARMER and TAYLOR, JJ., concur.


text:
    Fabian SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-986.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      Fabian Smith, Arcadia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Fabian Smith (Defendant) appeals an order summarily denying his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, except for his third ground, which the state conceded, and the order entered denying his motion for rehearing. We reverse and remand..

While Defendant was on probation in three 2000 cases, he was charged with committing additional offenses in three new cases, two charging offenses committed on separate dates in March 2003 and one charging offense committed in August 2003. In June 2003 he pleaded guilty as to the first two 2003 cases and admitted violating probation; he was sentenced in the new cases and his probation was modified. In October 2003 he pleaded guilty to count I of the third case, count II was nolle pressed, and he again admitted violating probation; prison terms were imposed both for the third 2003 case and the three 2000 cases.

In the first two grounds of the instant motion, Defendant claimed each plea entered in 2003 was involuntary because it was based on defense counsel’s misadvice that, if he did not accept the state’s offer, the state would pursue the maximum sentence he could receive for violating his probation, which, he was told, was life in prison. In his third ground, he challenged the prison sentences he ultimately did receive for violating probation, claiming he could not legally be sentenced to more than 364 days. In the fourth ground, he claimed the trial court had orally accepted the agreement providing that the sentences imposed in October 2003 would run concurrent with each other and with those imposed in June 2003, but the written sentences actually failed to so provide. Instead, the sentence for the third 2003 case was run concurrent with the sentences imposed on revocation of probation and vice versa. Thus, those sentences were treated as running consecutive to the sentences imposed in June 2003 for the first two 2003 cases. See § 921.16(1), Fla. Stat. (providing in part that “[sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently”).

■ Below, the state conceded only that Defendant was entitled to relief as his third ground, and he was resentenced on revocation of probation in the three 2000 cases to 364 days time served. The trial court summarily denied the other three grounds for relief.

On appeal, the state now concedes also that the oral pronouncement is unambiguous and Defendant is entitled to have his written sentences corrected accordingly. We agree, reverse the summary denial as to the fourth ground for relief, and direct the trial court on remand to correct the sentences imposed in the third 2003 case, and on revocation of probation in the three 2000 cases, to reflect that they are to run concurrent with those imposed in June 2003.

With respect to the first two grounds, the state argues that Defendant should have questioned the trial court about the discrepancy between what his attorney advised and what the trial court said at the hearing, citing Jones v. State, 680 So.2d 585 (Fla. 4th DCA 1996) (affirming summary denial of postconviction motion in which the defendant claimed his plea was involuntary because his attorney misad-vised him that if he were found guilty as a habitual felony offender (HFO), judge was required to sentence him to life in prison, but transcript of plea colloquy reflected judge informed him that if he were found guilty and qualified as a HFO, he could be sentenced to life in prison; and defendant declined judge’s offer to answer any questions about the sentences the court could impose). The two plea transcripts in this case do not indicate the trial court advised Defendant as to how he might be sentenced on revocation of probation; it merely recited the terms to which the parties had agreed, as stated in the plea agreement. Thus, the transcripts do not conclusively refute Defendant’s first two grounds for relief. Compare Kemner v. State, 770 So.2d 276 (Fla. 4th DCA 2000) (distinguishing Jones and reversing summary denial of motion in which defendant alleged he entered his plea based on counsel’s misadvice that if he were convicted after trial, he would receive a life sentence, and the judge had advised him only of range of sentences he could receive if he entered a plea).

As to grounds one and two, we reverse either for an evidentiary hearing or the attachment of further portions of the record conclusively refuting these grounds for relief.

Reversed and Remanded.

GUNTHER, WARNER and POLEN, JJ., concur.

      . See § 958.04(2)(b), Fla.. Stat.; Mason v. State, 864 So.2d 1225 (Fla. 1st DCA 2004). (Effective July 1, 2006, section 958.045(5)(c) now provides that a youthful offender who violates probation following successful completion of the boot camp program may be sentenced, on revocation of the probation, to any sentence that could have been imposed originally. See Ch. 06-270, § 1, Laws of Fla.)

      . L.T. case no. 03-9215.

      . L.T. case nos. 00-7545, 00-11011, and 00-12797.

      .L.T. case nos. 03-3100 and 03-3237.


text:
    Brian FORISSO, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3070.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      Brian Forisso, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

We withdraw our opinion filed on September 26, 2007, and replace it with this opinion.

Brian Forisso (Defendant) appeals from the summary denial without prejudice of his rule 3.850 motion for post-conviction relief, and the order denying his motion for rehearing. We affirm, as his motion does not clearly indicate in what way his trial counsel was ineffective in arguing a motion to dismiss on double jeopardy grounds; he needs to state precisely how his attorney’s performance was deficient, and how that deficiency prejudiced him. We also agree with the state’s response below that any claim alleging ineffective assistance of appellate counsel (including, as the state’s response noted, any ineffectiveness in failing to raise on appeal the trial court’s denial of the motion to dismiss) must be raised in a rule 9.141(c) petition to this court.

Defendant’s statement in his initial brief that a rule 3.850 motion and a rule 9.141(c) motion cannot be filed at the same time is erroneous. See, e.g., Francois v. Klein, 431 So.2d 165 (Fla.1983) (explaining that motion for postconviction relief and petition for habeas corpus both may be pursued simultaneously because doing so presents no danger of conflicting rulings by different courts on same issues); Baber v. State, 696 So.2d 490 (Fla. 4th DCA 1997). His deadline for filing either one or both is the same: March 3, 2008, two years after the issuance of this court’s mandate in his direct appeal. The pendency of the instant rule 3.850 proceeding will not toll the time to file a rule 9.141(c) petition.

STONE, KLEIN and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    Daniel Paul PERLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3389.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Daniel Paul Perley, Tampa, pro se.
    No appearance required for appellee.
   WARNER, J.

We reverse the trial court’s order denying appellant’s motion for postconviction relief. The court determined that the motion was premature. Because the conviction and sentence for which postconviction relief was sought was final, the motion was not premature.

Appellant was convicted and sentenced for one count of escape and two counts of resisting an officer without violence. He appealed his convictions. In Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007), we affirmed his .conviction for resisting without violence but reversed the conviction of escape for a new trial.

After the appeal, appellant filed a motion for postconviction relief as to the resisting conviction but not as to the escapé for which a new trial was scheduled. The trial court denied the motion- on the ground that the case was not “final” because of the retrial for escape, and appellant would have his postconviction remedy available once his trial on the escape charge was concluded. Appellant timely moved for rehearing. By the time the trial court ruled on the motion, appellant had been acquitted of the escape charge. The court ruled that the case was “closed” before the defendant filed his motion for reconsideration. The court deemed the matter “moot.” This appeal follows.

Florida Rule of Criminal Procedure 8.850 provides a time limitation of two years to bring a motion for postconviction relief. It states:

(b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapi-tal case....

(emphasis added). A judgment and sentence are deemed final “when any such direct review proceedings have concluded and jurisdiction to entertain a motion for post-conviction relief returns to the sentencing court.” Ward v. Dugger, 508 So.2d 778, 779 (Fla. 1st DCA 1987). See also Ferris v. State, 575 So.2d 303 (Fla. 4th DCA 1991).

For the purposes of appellant’s conviction for resisting arrest, all review was concluded when the conviction was affirmed, and jurisdiction was returned to the trial court. No further action could be taken as a result of the affirmance. Therefore, the court had jurisdiction to consider the motion for postconviction relief directed to this conviction and sentence.

We therefore reverse the denial of the motion on the grounds that it was premature or “moot.” We remand for consideration of the motion on its merits.

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


author: KLEIN, J.

text:
    SPECIALTY ENGINEERING CONSULTANTS, INC., a Florida corporation, Petitioner, v. HOVSTONE PROPERTIES FLORIDA, LLC; Halco, Inc., a Florida corporation; Future Construction Tech, Inc., a Florida corporation; and Bradco Supply Corporation, a Florida corporation, Respondents.
    No. 4D07-3821.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Jeremy C. Daniels and Madelyn Simon Lozano of Daniels, Kashtan, Downs, Robertson & Magathan, Coral Gables, for petitioner.
    No response required for respondents.
   KLEIN, J.

In Chapter 558, the Florida Legislature created an alternative method to resolve construction disputes involving multiple parcels such as condominiums, co-ops, property owner’s associations, and mobile home parks. Petitioner, who was the defendant in a suit for construction defects, seeks a writ of certiorari to review the trial court order holding that the presuit requirements of Chapter 558, Florida Statutes, did not apply under these facts. We deny the petition.

Respondent Hovstone, the claimant, is both the owner and contractor for this condominium project. The type of claimant which must comply with Chapter 558 is defined in section 558.002(3) as follows:

“Claimant” means a property owner, including a subsequent purchaser or association, who asserts a claim for damages against a contractor, subcontractor, supplier, or design professional concerning a construction defect or a subsequent owner who asserts a claim for indemnification for such damages. The term does not include a contractor, subcontractor, supplier, or design professional.

The trial court ruled that because this owner was a contractor, Chapter 558 did not apply, relying on two federal cases which have held that an owner who is also the contractor is not a claimant as defined in Chapter 558. Centex Homes v. Mr. Stucco, Inc., 2007 WL 2264622 (M.D.Fla. Aug. 6, 2007), and Centex Homes v. Turlington Custom Stucco Plastering, 2007 WL 2010803 (M.D.Fla. July 6, 2007). We agree with those cases and conclude that Chapter 558 does not apply where, as in this case, the claimant is both property owner and contractor. Petition denied.

STEVENSON and MAY, JJ., concur.


text:
    Jose A. ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0332.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2007.

      Jose A. Ortiz, pro se, Appellant.
    Bill McCollum, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Jose A. Ortiz, appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. Appellant raised eleven grounds for relief, all based on ineffective assistance of counsel or the validity of his guilty plea. We conclude that three of these grounds merit discussion. The trial court summarily denied Appellant’s claims that his attorney was ineffective for failing to insist that he be evaluated by more than one expert to determine his competence to enter a plea, that his plea was involuntary because he was incompetent to enter it, and that his attorney rendered ineffective assistance by introducing a prejudicial letter at the sentencing hearing. Because Appellant stated facially sufficient claims as to these three points, we reverse and remand with directions that the trial court either hold an evidentiary hearing or attach portions of the record that conclusively refute these three claims. We affirm the trial court’s rulings on all other claims without further discussion.

On September 2, 2003, Appellant pled guilty to burglary of a dwelling. On August 25, 2003, Appellant underwent a competency evaluation by Dr. Ernest Miller. After the evaluation, Dr. Miller prepared a letter expressing his opinion that Appellant was competent to proceed. The letter gave a detailed description of Dr. Miller’s meeting with Appellant, including observations and clinical impressions. However, the letter did not specifically address Appellant’s capacity to appreciate the charges or allegations against him; appreciate the range and nature of possible penalties; understand the adversary nature of the legal process; disclose to counsel facts pertinent to the proceedings at issue; manifest appropriate courtroom behavior; or testify relevantly. Appellant’s competency to proceed was not addressed at length in the plea colloquy. The trial court asked Appellant if he had “any physical or mental defects that might prevent [him] from understanding [what was] taking place,” to which Appellant replied, “No, sir.” The trial court also asked both the State and the defense attorneys whether there were “any mental health issues” that needed to be addressed. Appellant’s attorney replied that mental health issues would be presented as mitigating factors at sentencing, but that there was no issue as to competency. Ultimately, the court accepted Appellant’s guilty plea.

At the sentencing hearing on October 27, 2003, the State introduced a Pre-Sen-tence Investigation Report (PSI), detailing Appellant’s criminal history. Appellant’s attorney introduced Dr. Miller’s letter as well as a letter from a third party, which the trial court characterized as a “plea for leniency.” At the conclusion of the hearing, the trial court sentenced Appellant to twenty years in prison as an habitual felony offender. In explaining the sentence to Appellant, the court referred to the PSI and Appellant’s criminal history. Subsequently, Appellant filed a motion for post-conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850, which the trial court summarily denied.

In his motion, Appellant alleged that the trial court had ordered a competency evaluation of him on its own motion. If such an order exists, the trial court did not attach it to its order denying Appellant’s motion for postconviction relief. The trial court did attach a copy of Dr. Miller’s letter, which indicates that it was prepared in response to a court order. Appellant alleged that he was never evaluated by another expert. Appellant further alleged that if another expert had been appointed, he would have been found incompetent to proceed, and therefore, he would not have been permitted to enter his plea. As its basis for denying Appellant relief on this claim, the trial court stated that Appellant’s attorney had no reasonable basis for requesting a second opinion because Dr. Miller had concluded that Appellant was fully competent. The trial court also opined that there was no reasonable probability to believe a different expert would render a different opinion.

Appellant also alleged in his original motion that he was incompetent to enter a plea, and therefore his plea could not be considered voluntary. In particular, Appellant alleged that he was suffering from delusions and severe depression at the time, such that he was unaware of the consequences of the plea. Additionally, Appellant alleged that it was “possible that the omission of medications and the lack of mental health treatment” affected his ability to understand the proceedings. The trial , court concluded that Appellant’s allegations of incompetency were insufficiently pled, and therefore, he was not entitled to relief.

Finally, Appellant alleged that his attorney introduced a letter from a third party at the sentencing hearing. He contended that the letter was prejudicial, as it contained information regarding crimes he had committed. He alleged that the trial court would not have been aware of these crimes if his attorney had not submitted this letter. In denying relief on this claim, the trial court stated that the letter was a “plea for leniency,” and therefore it did not prejudice Appellant. The letter was not attached to the trial court’s order.

In a motion for postconviction relief, the defendant bears the burden of establishing a prima facie case based upon a legally valid claim. Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000). A trial court may issue a summary denial of the motion as to any claims that are either legally insufficient or conclusively refuted by the record. Id. If the defendant’s claims are legally sufficient, the trial court must attach portions of the record that conclusively refute the claims in order to properly issue a summary denial. Mullins v. State, 850 So.2d 676, 677 (Fla. 4th DCA 2003). An appellate court reviewing the summary denial of a Rule 3.850 motion for postconviction relief must accept the defendant’s factual allegations as true to the extent they are not refuted by the record. See Freeman, 761 So.2d at 1061.

Appellant framed his claim that he was entitled to more than one competency evaluation as a claim of ineffective assistance of counsel. To state a claim for ineffective assistance of counsel, a defendant must allege that his attorney’s performance was deficient and that the deficiency was prejudicial to the defendant. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When a defendant has pled guilty, the prejudice prong requires a showing of “a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Appellant set forth both prongs in his original motion for postcon-viction relief.

On appeal, Appellant contends that the trial court violated Rule 3.210, Florida Rules of Criminal Procedure, and that his attorney failed to object to the violation. Rule 3.210(b) provides, in relevant part, as follows:

If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel, for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and shall order the defendant to be examined by no more than 3, nor fewer than 2, experts prior to the date of the hearing.

We must accept, as Appellant alleges, and as Dr. Miller’s letter indicated, that the trial court ordered a competency evaluation. Thus, the procedure outlined in Rule 3.210(b) was invoked but not completely followed, as there is no record of a second competency evaluation. The record, as presented to this Court, shows that Appellant’s attorney performed deficiently by failing to object to the trial court’s failure to follow the plain language of Rule 3.210(b). The record does not conclusively refute Appellant’s allegation that a second expert would have found him incompetent and that he ultimately would have been adjudicated incompetent so that he could not enter a plea.

The State contends, and the trial court’s order suggests, that Appellant’s attorney did not render deficient performance because he could not have requested another evaluation in good faith after receiving Dr. Miller’s opinion that Appellant was competent. We disagree. Rule 3.210(b) provides for automatic evaluation by at least two experts after a motion for evaluation, which is supported by reasonable grounds, has been filed. Once the court has ordered the first evaluation, there is no requirement that the defendant’s attorney demonstrate further reasonable grounds for a second evaluation. Furthermore, if there had been a requirement for Appellant’s attorney to show reasonable grounds for a second evaluation, he could have done so by reference to the fact that Dr. Miller’s letter did not comply with the requirements of an appointed expert’s report. To assist the court in adjudicating competency, an expert’s report must include an assessment of

(A) the defendant’s capacity to:
(i) appreciate the charges or allegations against the defendant;
(ii) appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the defendant;
(iii) understand the adversary nature of the legal process;
(iv) disclose to counsel facts pertinent to the proceedings at issue;
(v) manifest appropriate courtroom behavior;
(vi) testify relevantly; and
(B) any other factors deemed relevant by the experts.

Fla. R.Crim. P. 3.211(a)(2). Rule 3.211(a)(2)(A) indicates that the inclusion of factors (i) through (vi) is mandatory. The fact that Dr. Miller’s report did not address these mandatory factors would have been grounds for at least a second evaluation.

In a related issue, Appellant contends that he was in fact incompetent to enter a plea, and that therefore, his plea was invalid. There are no set criteria for determining whether a defendant is entitled to an evidentiary hearing on his contention that he was incompetent to enter a plea. Savage v. State, 530 So.2d 1077, 1078 (Fla. 1st DCA 1988). Typically, a trial court must rely on the record for this determination. Id. Here, the transcript of the plea colloquy seems to indicate that Appellant was well aware of what was happening. However, as discussed above, the trial court did not follow proper procedures for evaluating Appellant’s competency, despite the fact that the procedures had been invoked.

We agree with the trial court that Appellant was not entitled to an evidentiary hearing as to his allegation that it was “possible that the omission of medications and the lack of mental health treatment” affected his ability to understand the proceedings. This portion of Appellant’s claim was insufficiently pled. However, his statements that he was suffering from delusions and severe depression are less equivocal. Appellant’s alleged depression may have affected his ability to enter a plea competently. Dr. Miller’s letter referred to Appellant’s suffering “chronic depression.” It also noted that Appellant did not exhibit delusional patterns of thought, and that while Appellant reported hallucinating, he did not appear to do so. While Dr. Miller’s letter does state observations of depression, it does not connect these observations to Appellant’s competence to enter a plea. There is nothing in the portions of the record presented to this Court that would suggest how Appellant’s alleged depression and delusions may have affected his competence to enter a plea. Consequently, an evidentiary hearing was necessary to resolve this issue. Additionally, we note that a second competency evaluation would likely have been helpful in resolving this matter at the circuit court level.

Finally, Appellant stated a claim for ineffective assistance at sentencing by alleging that his attorney introduced a letter that contained damaging information, which caused the trial court to impose a harsher sentence than it otherwise would have imposed. It is unclear how much weight the sentencing judge gave this letter, particularly because he did not refer to the letter when explaining the sentence. Because the letter was not attached to the order, it is impossible for this Court to determine whether Appellant’s counsel rendered ineffective assistance, by introducing the letter at sentencing. Therefore, the trial court’s summary denial on this ground without attachment of the letter was improper.

Accordingly, we reverse and remand as to these three grounds only. On remand, the trial court may either grant an eviden-tiary hearing or again enter summary denial and attach portions of the record that conclusively refute Appellant’s allegations. See, e.g., Wilson v. State, 832 So.2d 883, 884 (Fla. 1st DCA 2002).

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

WEBSTER, LEWIS, and THOMAS, JJ., concur.


author: ALTENBERND, Judge. DAVIS, Judge,

text:
    Troy L. BLOCKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-693.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2007.
   ALTENBERND, Judge.

Troy L. Blocker appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). This case presents an extreme example of the difficulties faced by trial courts when a defendant argues that his sentence is illegal because of a discrepancy between the contents of the written transcript of the sentencing hearing and the written sentence. Mr. Blocker’s written sentences, rendered in 1989, reflect 99-year sentences for burglary and sexual battery. Those sentences are consistent with the terms of a written negotiated plea agreement that appears to have been signed by Mr. Blocker. The sentences seem appropriate in light of the guidelines scoresheet, which was prepared at the time of sentencing, recommending a life sentence. Mr. Blocker also filed a postconviction motion under oath in 1994 alleging that he had been sentenced to 99 years in prison. Nevertheless, a transcript prepared in 1995 reflects that the trial court orally pronounced sentences of 9 years. The trial court denied Mr. Blocker’s motion to correct illegal sentence without an evidentiary hearing, concluding that the 99-year sentences in the written sentences were correct and that the transcript indicating the imposition of 9-year sentences was inaccurate.

In a recent opinion, Williams v. State, 957 So.2d 600 (Fla.2007), the Supreme Court of Florida held that a claim asserting a discrepancy between an oral and written sentence is an “illegal sentence” and as such is cognizable at any time under rule 3.800(a). Id. at 603. In assessing the suitability of rule 3.800(a) to address such claims, the court stated: “We have explained that this procedural rule allows for petition to the courts to correct sentencing errors that may be identified on the face of the record and, because such errors may be resolved as a matter of law, do not require contested evidentiary hearings.” Id. at 602. By concluding that such issues may be decided “as a matter of law,” the opinion effectively equates the content of the written transcript with the oral pronouncement of sentence. As this case demonstrates, the two may not always be equivalent.

This case is factually distinguishable from Williams because the State has presented documents that reasonably call into question the accuracy of the transcript and present a factual issue as to whether the sentences that were orally pronounced were sentences totaling 9 years or sentences totaling 99 years. Although the issue presented is clearly a question of fact and not one of law, like the trial court we are entirely convinced that the transcript in this case contains an error and that the written sentences do not. We are unwilling to extend the reasoning of Williams to reverse the written sentences in this case. We can devise no method by which the trial court could actually determine in this case which of the written documents is an accurate reporting of the oral pronouncement without conducting an evidentiary hearing. Under these circumstances, the issue presented is a factual one requiring an evidentiary hearing and, thus, is not cognizable under rule 3.800(a).

We conclude that the trial court was entitled to reject Mr. Blocker’s claim in this case. We hold that, at least when the State demonstrates a reasonable basis to contest the accuracy of a transcript of a sentencing hearing and thereby creates a disputed question of fact, a conflict between a written sentence and a written transcript is a factual issue that must be resolved under Florida Rule of Criminal Procedure 3.850. Here, that reasonable basis was established by review of the plea form and other sentencing documents of record that support the validity of the written sentences. Because Mr. Blocker is well beyond the two-year time ■ limit for filing a rule 3.850 motion, and because he was present at sentencing to hear the oral pronouncement and his claim does not otherwise involve any newly discovered evidence, this specific claim is time barred.

In light of the ruling in Williams, we certify the following question to the Supreme Court of Florida as a matter of great public importance:

IF A DEFENDANT FILES A POST-CONVICTION MOTION MORE THAN TWO YEARS AFTER THE FINALITY OF HIS SENTENCES ALLEGING A CONFLICT BETWEEN THE SENTENCES STATED IN HIS WRITTEN SENTENCES AND THOSE CONTAINED IN THE WRITTEN TRANSCRIPT, AND IF THE STATE REASONABLY CONTESTS THE ACCURACY OF THE TRANSCRIPT:
(1) MUST THE TRIAL COURT RULE IN FAVOR OF THE DEFENDANT ■ AS A MATTER OF LAW BECAUSE THE TRANSCRIPT CONTROLS THE ISSUE,
(2) MUST THE TRIAL COURT CONDUCT AN EVIDENTIARY HEARING PURSUANT TO RULE 3.800(A) TO DETERMINE WHICH DOCUMENT ACCURATELY REFLECTS THE TRIAL JUDGE’S ORAL PRONOUNCEMENT, OR
(3) MAY THE TRIAL COURT DENY THE MOTION AS AN UNTIMELY REQUEST FOR RELIEF PURSUANT TO RULE 3.850?

I. THE 1989 SENTENCING HEARING AND RESULTING PROCEEDINGS

On February 7, 1989, Mr. Blocker appeared before Judge Crockett Farnell to enter a negotiated plea in three cases, 87-14776, 87-14777, and 87-14778. He was represented by Ronnie G. Crider, and the State was represented by William Lough-ery. The matter was reported by a court reporter identified as Van Matthews. The court reporter’s notes, however, were not transcribed until October 1995. At that time, a transcript was prepared by another court reporter, Eric French, apparently for the earlier postconviction proceeding.

The 1995 transcript reports that Mr. Crider stated that his client “would score to life in prison for these charges.” He then reportedly stated: “Pursuant to our earlier discussion and negotiations, the State will agree to allow the Court to sentence Mr. Blocker out of those guidelines to a term of nine years in the Florida State Prison.” The transcript then reflects that Mr. Blocker read and understood the “advisement form” (presumably the plea form reflecting a much greater sentence) and was prepared to sign it. The trial court required a factual basis for the convictions in all three cases. The crimes described were all very serious in nature. Thereafter the trial court imposed a single sentence, reportedly stating: “The Court will accept the plea. I will adjudicate the Defendant, sentence him to nine years, Department of Corrections.”

In contrast to this transcript, the record contains a plea form signed by both Mr. Blocker and his attorney in which Mr. Blocker agreed to enter a plea of guilty to three counts of burglary, three counts of sexual battery, and dealing in stolen property in exchange for a disposition of “99 yrs. D.O.C.” It also contains a guidelines scoresheet prepared on a category 2 score-sheet pursuant to Florida Rule of Criminal Procedure 3.701 and Form 3.988(b) (1987), with points totaling 673. On that score-sheet, Mr. Blocker scored an additional 90 points above the 583 points required for a recommended sentence of life. See Fla. R. Crim. P. Form 3.988(b).

The written judgments and sentences reflect the following: In 87-14776, Mr. Blocker was convicted of a burglary, a first-degree felony punishable by life, and sexual battery, a life felony. For both of these offenses he received written sentences of 99-year terms of incarceration that are concurrent with one another and with the sentences in the other two cases. In 87-14777, Mr. Blocker was convicted of a burglary, a second-degree felony; a second count of burglary, a first-degree felony punishable by life; and two counts of sexual battery, first-degree felonies. For these offenses he received written sentences of 15 years’ incarceration for the first burglary, 99 years’ incarceration for the second burglary, and 30 years’ incarceration for each of the sexual batteries, all concurrent with one another and with the sentences in the other two cases. Finally, in 87-14778, Mr. Blocker was convicted of a burglary, a first-degree felony punishable by life; sexual battery, a life felony; and dealing in stolen property, a second-degree felony. For these offenses he received written sentences of 99 years’ incarceration for the burglary and the sexual battery and 15 years’ incarceration for dealing in stolen property. Again, these sentences are concurrent with one another and with the sentences in the other two cases. In summary, Mr. Blocker was convicted of four burglaries, four sexual batteries, and one count of dealing in stolen property. He received a total sentence of 99 years. On all felonies that would not permit a term as long as 99 years, the trial court gave Mr. Blocker the maximum term permitted by law. Obviously, this written sentencing structure is far more complex than the unified 9 years’ incarceration that is contained in the transcript. There is no record to suggest that Mr. Blocker appealed these judgments and sentences.

In October 1994, Mr. Blocker filed under oath a motion to correct an illegal sentence. In that motion, he alleged that he had “pled guilty pursuant to a plea agreement and the lower tribunal sentenced him to a term of ninety-nine (99) years to be served in the Florida Department of Corrections.” He argued in part that the life felonies for which he was adjudicated guilty would not permit sentences in excess of 40 years’ incarceration. See § 775.082(3)(a), Fla. Stat. (1987) (providing that a life felony committed after October 1, 1983, is punishable “by a term of imprisonment for life or by a term of imprisonment not .exceeding 40 years”). His motion did not seek to withdraw his negotiated plea; rather, he wanted to be resem tenced to sentences not exceeding forty years in any of his cases involving life felonies on the theory that those sentences, if longer than 40 years, were illegal.

Mr. Blocker’s first motion to correct illegal sentence had a degree of merit, although the victory was Pyrrhic. The trial court reduced the 99-year sentences on each life felony to 40 years, but left the 99-year sentences intact for the burglaries that were first-degree felonies punishable by life. Presumably, the sentencing transcript quoted above was prepared for the purposes of this first postconviction proceeding.

Mr. Blocker commenced this postconviction proceeding in February 2006 by filing a combination petition for habeas corpus and motion to correct illegal sentence. His only claim is that his sentences totaled 9 years as reflected in the transcript. Thus, he served 18 years on sentences that he now claims totaled only 9 years before he sought release. The trial court issued an order to show cause, and the State filed a response. In response, the State argued that the transcript contained a “scrivener’s error” and that Mr. Blocker had the burden of proof to show what was actually said in the courtroom. Thereafter, the trial court entered the order on appeal denying relief. The court relied on the plea agreement and the written sentences to conclude that the transcript, not the written sentences, was in error. Further, the postconviction court concluded that Mr. Blocker had conceded the legality of these sentences by filing an earlier rule 3.800(a)- motion in which he did not raise any discrepancy between the written and oral sentences despite alleging that he had been sentenced on these counts to 99 years. Finally, the postconviction court determined that Mr. Blocker was barred by laches because he waited seventeen years to raise this issue. The trial court did not conduct an evidentiary hearing.

II. DEFINING “ORAL PRONOUNCEMENT”

It has long been the law that the oral pronouncement of sentence controls over a written sentence. Williams, 957 So.2d at 603 (citing Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003); Justice v. State, 674 So.2d 123, 126 (Fla.1996)); see also Finan v. State, 794 So.2d 623, 624 (Fla. 2d DCA 2001); Patrick v. State, 413 So.2d 474, 475 (Fla. 2d DCA 1982). In many cases, this rule applies when the written sentence contains terms that were not announced in open court as reflected in the written transcript. See, e.g., Yates v. State, 429 So.2d 815 (Fla. 2d DCA 1983). It is not obvious that this rule applies so cleanly in cases in which the transcript itself may contain an error.

Although the case law has often equated the oral pronouncement and the written transcript without discussion, this case is one in which that discussion is warranted. An “oral pronouncement” is, in fact, oral. At the level of physics, it is merely a transitory collection of sound waves. Those vibrations can be recorded in many different ways. For example, advances in digital recording technology may eventually make it easy to determine what was said during a sentencing hearing even generations after the hearing.

In this case, the sound waves were recorded by a court reporter who was probably using typical court reporting technology for 1989. If that reporter had an auxiliary tape recorder, that fact is not revealed in this record. Given that the 1995 transcript was prepared by another court reporter, there is nothing to suggest that the transcript was prepared by any means other than one court reporter reading the paper tape created by another court reporter.

The sound waves were also recorded, at least in summary format, by the court clerk who prepared the judgments and sentences. The multiple judgments and sentences are not discussed in the transcript, and we have no idea how the 99-year written plea agreement for seven felonies resulted in sentences totaling 99 years for nine felonies. There is, however, nothing on the face of any of the judgments and sentences, at least after the correction made in 1995 to the sentences for the life felonies, that would suggest that the sentences are illegal.

Neither of the above-described methods of recording the sounds in the courtroom on February 7, 1989, seems foolproof. Either or both of these methods could have failed in this case or in many other cases in this state. Given the other documents suggesting that the parties anticipated sentences totaling 99 years, we see no reason to elevate the written transcript over the written sentence as the approved recording of the sounds containing the oral pronouncement. In this case, there is clearly a factual dispute as to who is the better historian: the court clerk who prepared the written sentences shortly after the oral pronouncement of sentence, or the court reporter who transcribed the hearing years later from notes created by a different court reporter.

III. UNDER THESE CIRCUMSTANCES, RULE 3.800(A) IS NOT A SUITABLE MECHANISM FOR DETERMINING THE CONTENT OF AN ORAL PRONOUNCEMENT

In the end, the issue in this ease is when and by what procedure may a conflict be resolved between the court clerk and the court reporter, as competing legal historians of the sentencing hearing. In Ashley, cited by the supreme court in Williams, 957 So.2d at 603, the supreme court stated: “Generally, the oral pronouncement prevails unless the oral pronouncement is in error due to a clerical error such as the calculation of jail credit.” Ashley, 850 So.2d at 1268. In a specially concurring opinion, Justice Pariente observed, “I now recognize that an error in an oral pronouncement cannot be properly labelled as ‘scrivener’s error,’ ” id. at 1269, but the error in Ashley was an error by the trial judge, not the transcriptionist. The judge apparently intended to sentence Mr. Ashley as a habitual violent felony offender but omitted the word “violent” when announcing the sentence. The majority’s language in Ashley therefore suggests that a “clerical error” may occur in the context of an oral pronouncement, which would result in an exception to the rule that the oral pronouncement controls. Indeed, in Williams, the supreme court appears to acknowledge that a discrepancy between an oral pronouncement and a written sentence may sometimes require further explanation before a court accepts the oral pronouncement as the proper sentence. 957 So.2d at 605 n. 2 (noting the trial court may direct the state to respond to such an allegation so that the state “may have an opportunity to explain any apparent discrepancy before the matter is adjudicated”).

In this case, the State’s position is that the judge did not misspeak, but that the court reporter was inaccurate. A court reporter’s error in a transcript is akin to those errors we consider to be scrivener’s errors when made in the records of a court by the mistake of a court employee.

At least on direct appeal, there are eases in which a possible error in the transcript of the sentencing hearing has resulted in a remand to the trial court to determine whether the written sentence or the transcript reflected the true oral pronouncement. See, e.g., Enchautegui v. State, 749 So.2d 550 (Fla. 2d DCA 2000); Manual v. State, 547 So.2d 726 (Fla. 2d DCA 1989); Gonzales v. State, 488 So.2d 610 (Fla. 4th DCA 1986), disapproved of on other grounds in Frey v. State, 708 So.2d 918, 920 n. 3 (Fla.1998); Robinson v. State, 407 So.2d 1038 (Fla. 1st DCA 1981). It is not so obvious, however, that such relief should be granted in a postconviction proceeding filed many years after the sentencing hearing.

The only way to actually determine whether both Mr. Blocker’s attorney and the trial judge said “9” or “99” would be to take testimony from people in the room on February 7, 1989, or perhaps to find a tape recording from the court reporter’s files. Obviously, the passage of time will affect the availability and quality of any such evidence. Indeed, if this were a civil claim on an oral contract it would have been barred by the statute of limitations many years ago. It is worth noting that the sentences do not depart from the written contract contained within the negotiated plea.

In order for a sentence to be “illegal” for purposes of correction under rule 3.800(a) at any time, the claim must be resolvable as a matter of law without an evidentiary determination, see State v. Callaway, 658 So.2d 983, 988 (Fla.1995), receded from on other grounds in Dixon v. State, 730 So.2d 265 (Fla.1999). Most of the distinctions between a motion for relief under rule 3.850 and rule 3.800(a) would seem to collapse if defendants were allowed to allege and resolve factual disputes under rule 3.800(a) concerning the statements of judges and other parties at a sentencing hearing.

Although Williams recognizes that a discrepancy between a written sentence and a transcript may constitute an “illegal sentence” as that term is defined for purposes of rule 3.800(a), this case demonstrates that such a discrepancy is not always resolved on the face of the record. Certainly, in cases where the defendant establishes a discrepancy on the face of the record as set forth in Williams and the State either concedes or fails to allege an error in the sentencing transcript, such an error may be subject to correction, as a matter of law, at any time under rule 3.800(a).

As noted in Williams, however, such a discrepancy is sometimes subject to explanation. 957 So.2d at 605 n. 2. As such, the State is entitled to respond to a rule 3.800(a) motion alleging a discrepancy. If the State provides, or if the trial court’s review of the record reveals, a reasonable basis to believe that the discrepancy in the transcript and the written sentencing documents presents a factual issue as to the court’s oral pronouncement of sentence, the matter cannot be resolved by rule 3.800(a).

We conclude that the executed plea agreement and sentencing scoresheet provide the reasonable basis in this case to conclude that a factual question exists regarding the court’s oral pronouncement. At this time, we do not need to decide, however, what a reasonable basis would be in other contexts or whether the trial court would have authority to reject a claim by the State that it had a reasonable basis to contest the accuracy of a transcript. In most cases, it would seem that the State could produce some documentation other than a bald assertion to support a claim of transcription error.

We recognize that, at least in theory, a state attorney could contest a claim that a written sentence did not comport with the oral pronouncement for the purpose of enforcing an erroneous written sentence. This court is inclined to believe that the state attorneys within this district, both as officers of the court and as constitutional officers, would not abuse their power in that fashion. We believe that they would feel honor-bound to concede any clear error or injustice in the sentencing process.

There is every reason to believe that the written sentence in this case is accurate, and the transcript is in error. We conclude that such postconviction disputes can be resolved only after an evidentiary hearing and, thus, by a motion filed pursuant to rule 3.850.

IV. THE RIGHT RESULT

We conclude that the trial court correctly denied relief in this case. The matter, after the response from the State, was a contested issue of fact that could not be resolved under the procedures of rule 3.800. Given that the motion had not been filed within two years from the finality of the judgments and sentences, or even within two years from the preparation of the transcript in 1995, there was no question that this motion was untimely if treated as a motion pursuant to rule 3.850 and that it had no possibility of being amended to cure this problem. Accordingly, the trial court should have denied the motion explaining that it was not cognizable under rule 3.800(a). To the extent that the trial court purported to decide a contested issue of fact in its order without an evidentiary hearing, that reasoning was incorrect.

Accordingly, we affirm the denial of the motion and certify the earlier presented question to the Supreme Court of Florida.

Affirmed; question certified.

KELLY, J., Concurs in result only.

DAVIS, J., Concurs with opinion.

DAVIS, Judge,

Concurring.

I fully concur with the majority opinion. However, I write to express the concern that by carving out this exception to Williams, 957 So.2d 600, the movant is placed at a serious disadvantage. If an individual files a rule 3.800(a) motion pursuant to Williams, alleging a discrepancy between the written sentence and the oral pronouncement, and attaches a copy of the transcript of the sentencing proceeding, his challenge may be considered at any time. However, should he make such a challenge after the expiration of the two-year limit imposed by rule 3.850, upon the mere suggestion of the inaccuracy in the transcript by the State, his motion must be denied — even without the State’s suggestion being tested. Because a hearing is not allowed by rule 3.800(a), whether the transcript is accurate cannot be factually determined, and the movant is left without a vehicle to seek relief.

Accordingly, I concur with the result and write to warn the potential movant not to assume that all challenges to sentences based on written/oral discrepancies are necessarily cognizable under rule 3.800(a).

      . Indeed in Williams, by the time the matter was resolved in the supreme court, the issue was moot because further action had revealed that Mr. Williams was mistaken and no conflict between the oral pronouncement of the sentence and the written sentence existed. 957 So.2d at 601. The court proceeded to decide the issue of whether such a discrepancy results in an "illegal sentence” for purposes of rule 3.800(a) because it concluded the question was one of great public importance and had engendered conflicting decisions in the district courts.

      . See § 810.02(2), Fla. Stat. (1987).

      . See § 794.011(3), Fla. Stat. (1987).

      . See § 810.02(3).

      . See § 810.02(2).

      . See § 794.01 l(4)(b).

      . See § 810.02(2).

      . See § 794.011(3).

      . See § 812.019(1), Fla. Stat. (1987).

      .This court has record of only one prior proceeding involving Mr. Blocker, a petition for mandamus that was denied. Blocker v. Circuit Court, Sixth Judicial Circuit, 666 So.2d 148 (Fla. 2d DCA 1995).

      . We note that The Florida Bar’s records currently indicate that the judge who presided over the entry of Mr. Blocker’s plea and the two lawyers who participated in the same are still alive and reside in the local community. Presumably they could have been subpoenaed to determine their recollection, if any, of the matter. After all these years, this circumstance may be the exception rather than the rule.

      . The existence of a written plea agreement that conflicts with Mr. Blocker's allegations also militates against providing relief pursuant to rule 3.800(a). Generally, a defendant seeking correction of his sentence in contravention of a plea agreement must seek to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.850, thus providing the State the opportunity to also withdraw from the agreement if it objects to the resentencing. See, e.g., Sidell v. State, 787 So.2d 139 (Fla. 2d DCA 2001).

      . We recognize that, at least in this district, the procedure for rule 3.800(a) occasionally requires a very limited evidentiary determination. We allow a defendant to challenge a habitual offender sentence at any time on the allegation that the predicate offenses for such sentencing do not exist. See, e.g., Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991). We have not limited that claim to circumstances in which the offenses do not exist within the defendant's individual court file because that could be an unwarranted windfall for the defendant. Instead, we allow the defendant to make such a claim, but we permit the State to disprove the claim by presenting certified copies of prior judgments that exist within public records. These public documents are essentially self-proving and do not require testimony from witnesses about their recollection of prior events. Whether our practice fulfills the holding in Bover v. State, 797 So.2d 1246 (Fla.2001), or conflicts with it has never been squarely resolved. In any event, we believe such a limited evidentiary issue is far different from determining what a judge did or did not say in a courtroom many years ago.


text:
    STATE of Florida, Appellant, v. John JENNINGS, Appellee.
    No. 4D06-3618.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellant.
    Michael B. Cohen, of Michael B. Cohen, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

The state appeals an order granting a motion to suppress evidence of cocaine found on appellee during a search of his person. The search occurred after officers stopped the vehicle in which appellee was riding for a traffic infraction and smelled marijuana when they approached the vehicle. Because the smell of marijuana gave the officers probable cause to search the vehicle and its occupants, we reverse.

Two Broward County deputy sheriffs stopped a vehicle for speeding and having no tag light. There were two people in the vehicle: the driver and appellee Jennings, who was in the front passenger’s seat. As they approached, both officers testified that they smelled the odor of marijuana coming from the open windows of the vehicle. Both deputies testified that they had training and experience in detecting marijuana by smell.

One of the deputies asked the driver whether there was anything illegal in the vehicle, and the driver told him that there was marijuana in the driver’s side visor. The deputy asked the driver to exit the vehicle for officer safety. The other officer asked Jennings to get out of the vehicle, because Jennings was very jittery, could not keep still, and was sweating profusely, as well as because of the strong odor of marijuana coming from the vehicle. Once outside, the deputy asked Jennings for consent to search, which the officer wanted to do for officer safety and to determine whether Jennings had illegal narcotics on him. Jennings did not verbally respond to the request to search, but gestured by nodding his head, lifting up his arms, and shrugging his shoulders. The search revealed a packet containing cocaine. The trial court granted the motion to dismiss, finding that based upon the totality of the circumstances the search was not one for officer safety purposes and the consent indicated by a shrug was simply an acquiescence to police authority. The state appeals.

An appellate court reviews factual findings to determine whether they are supported by competent substantial evidence, and the application of those facts to the law is reviewed de novo. State v. Manuel, 796 So.2d 602, 604 (Fla. 4th DCA 2001). Here, although there were conflicts and contradictions in the testimony, it was undisputed that the officers smelled marijuana when they approached the vehicle.

The smell of marijuana coming from an occupied vehicle provides probable cause that a violation of the narcotic laws of the state has occurred. “Probable cause exists where ‘the facts and circumstances within their (the officers’) knowledge ... [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” State v. Betz, 815 So.2d 627, 633 (Fla.2002) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)) (alteration in original). Although the issue presented to the supreme court in Betz involved whether the smell of marijuana would permit a search of the trunk of the vehicle, we have applied it to permit the search of the occupants of the vehicle. See, e.g., State v. T.P., 835 So.2d 1277 (Fla. 4th DCA 2003); State v. K.V., 821 So.2d 1127, 1128 (Fla. 4th DCA 2002). Other Florida courts have come to the same conclusion. See Blake v. State, 939 So.2d 192 (Fla. 5th DCA 2006); State v. Hernandez, 706 So.2d 66 (Fla. 2d DCA 1998).

State v. Chambliss, 752 So.2d 114 (Fla. 5th DCA 2000), presents the most 'similar facts to this case. In Chambliss, the ap-pellee was a passenger in a vehicle stopped because the tag did not match the car. When the officer approached the vehicle, he detected a strong odor of marijuana. The officer had all the occupants exit the vehicle. The trial court recognized that the odor of marijuana emanating from the vehicle constituted probable cause to search all occupants. Nevertheless, the trial court concluded that appellee was unlawfully detained because the arresting officer testified that he had intended to search for officer safety, even though there was no basis for a suspicion that appellee was armed. The Fifth District held that the trial court’s reliance on the officer’s subjective intentions was misplaced, citing to Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Regardless of the subjective intentions of the officers, the odor of burning marijuana alone provided probable cause to search appellee. Id. at 115 (citing Harvey v. State, 653 So.2d 1146 (Fla. 5th DCA 1995); Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977)).

The officers in this case had probable cause to search the occupants of the vehicle once they smelled the marijuana. That they may have articulated a subjective intent to search for officer safety did not change the fact that the smell of marijuana smoke provided an objectively reasonable basis for the search. See United States v. Miller, 146 F.3d 274, 279 (5th Cir.1998) (Whren provides broad leeway to officers to conduct searches regardless of their subjective intent so long as there is objective legal justification for their actions).

Jennings contends that once the driver of the vehicle told the officer that the marijuana was located in the visor, the officers did not have probable cause to search Jennings. . We find this meritless. The deputies were not required to rely on the statements of a suspect to assure them that the only violation of the narcotics law consisted of what the suspect tells them. The officers did not know whether the marijuana found under the visor belonged to the driver, Jennings, or both. See Dixon, 343 So.2d at 1348 (holding that the smell of marijuana and sight of smoke emanating from an automobile constitutes probable cause to believe all occupants had actual or constructive possession of marijuana). Additionally, the officers did not know whether that marijuana was the only marijuana in the vehicle, or whether there was any marijuana on the driver or Jennings’s person.

Because the officers had probable cause to search the occupants of the vehicle once they smelled marijuana, and the cocaine was found during a lawful search, we reverse the order suppressing evidence and remand for further proceedings.

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


author: TAYLOR, J.

text:
    Johnnie B. ROLLINS, Appellant, v. BAY HR, INC. and Florida Unemployment Appeals Commission, Appellees.
    No. 4D07-293.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.
    Johnnie B. Rollins, Fort Lauderdale, Pro Se.
    Louis A. Gutierrez, Tallahassee, for Ap-pellee-Florida Unemployment ■ Appeals Commission.
   TAYLOR, J.

The claimant, Johnnie Rollins, appeals the final order of the Unemployment Appeals Commission (UAC), which affirmed the appeals referee’s decision to disqualify the claimant from receiving unemployment benefits due to his discharge for misconduct connected with work. We affirm.

The UAC’s order adopted the following findings of fact made by the appeals referee:

The claimant was employed from October, 2003. When separated, he was employed as a cook. For three or four weeks prior to the claimant’s job separation the head chef discussed with the claimant the claimant’s use of alcohol and being under the influence of alcohol while at work. The claimant was told that he could be discharged if his behavior continued. The claimant was scheduled to work from 5:00 p.m. until 1:00 a.m. On July 15, 2006 the claimant left work at approximately 5:30 p.m. advising a server that he needed to leave. The claimant went home to make certain items were turned off. While home the claimant drank beer. He returned to work at approximately 7:00 p.m. under the influence of alcohol. He was discharged because of his continued use of alcohol interfering with his work. The claimant did not work for the employer after July 15, 2006.

In his conclusions of law, the referee found that the evidence supported the claimant’s discharge for misconduct because:

his continued use of alcohol [was] interfering with his work.... The preponderance of evidence submitted does indicate that the claimant’s actions demonstrated a wanton and intentional disregard of the employer’s interests. Accordingly, it must be concluded that the claimant’s discharge was for misconduct.

The referee noted that the claimant told him that he is an alcoholic. The referee concluded, however, that the claimant had been warned of the consequences of his alcohol use and “[t]he preponderance of the evidence submitted indicates that the claimant was responsible for his use of alcohol and ultimately for his job separation.” The referee further noted that the claimant’s alcohol use interfered with his work performance and that even after being warned the claimant did not make adequate attempts to resolve his problem.

The claimant appealed the referee’s decision to the Unemployment Appeals Commission. The Commission affirmed the referee’s decision, whereupon the claimant appealed the Commission’s final order to this court.

The appellant has the burden to demonstrate error in an appeal from a final order of the Unemployment Appeals Commission. See Wolfson v. Unemployment Appeals Comm’n, 649 So.2d 363 (Fla. 5th DCA 1995). Here, the UAC adopted the appeals referee’s findings of fact, which it must do if those findings are based on competent, substantial evidence. See Fink v. Florida Unemployment Appeals Comm’n, 665 So.2d 373, 374 (Fla. 4th DCA 1996). The UAC’s order is presumed correct. See Kelle v. D.H. Holmes Co., Ltd., 658 So.2d 1161, 1161 (Fla. 2d DCA 1995) (citing Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979)). To overcome that presumption, the claimant must show that the findings of fact were not based on competent, substantial evidence or the referee’s conclusions or application of law is incorrect.

Here, the claimant has not provided us with a transcript of the unemployment compensation hearing. Therefore, we must assume that the referee’s findings of fact are correct. See Wolfson, 649 So.2d at B63 (where appellant’s arguments are fact-based, failure to include copy of transcript on appeal is fatal). We can consider, however, whether the referee’s conclusions or application of the law to those facts is incorrect. The claimant argues that his alcoholism is a defense to a finding of misconduct.

“Misconduct” includes, but is not limited to:
(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.
§ 443.086(29), Florida Statutes (2004).

The claimant cites Gardner v. State, Unemployment Appeals Comm’n, 682 So.2d 1222 (Fla. 4th DCA 1996), in arguing that his alcoholism provides a defense to a finding of misconduct. In Gardner, the claimant, an alcoholic, entered into a “last chance agreement” with his employer, whereby he agreed to abide by the terms of the agreement and the requirements of his treatment program, and to refrain from alcohol related misconduct. Id. at 1222. When the claimant suffered an alcohol relapse, his employer terminated him. Id. at 1223. The appeals referee found that the claimant was discharged for misconduct related to his work because he violated the terms of the agreement by failing to abstain from consuming alcohol. Id. The UAC affirmed. Id. We reversed, finding that the claimant’s alcoholism refuted a finding of intentional misconduct. Id. at 1224 (citing Gainer v. State, Unemployment Appeals Comm’n, 503 So.2d 428, 429 (Fla. 3d DCA 1987), which held that, because it was based on competent, substantial evidence, the UAC had to affirm the referee’s finding, per Florida Administrative Code Rule 38B-2.017(5)(d), that the claimant’s drug addiction was an illness that vitiated her intent to commit misconduct).

As the UAC recognizes, the claimant’s position was tenable under former Florida Administrative Code Rule 38B-2.017(5)(d). That rule provided as follows:

(5) In determining whether there was misconduct connected with work, and in determining the seriousness of such misconduct, the following guidelines will be used: ■
(d) Where the individual’s use of alcohol and/or drugs is a factor in being discharged, consideration must be given to the possibility of the individual’s being addicted to these substances. When it is determined that the individual is suffering from alcoholism or drug addiction, in the medical sense, and that condition is a factor in separation .froni employment, it is appropriate to consider the alcoholism or drug addiction as an illness in determining the individual’s eligibility for benefits.

Ford v. Se. Atl. Corp., 588 So.2d 1039, 1041 (Fla. 1st DCA 1991).

However, Rule 38B-2.017(5)(d) was repealed in 1992 and replaced by Rule 60BB-3.020. The current rule has eliminated the. “addictions defense” and simply provides:

(2) Serious misconduct in connection with work shall warrant 13 to 26 weeks of disqualification. Examples include the following work-connected actions:
(a) Misdemeanor violations of the law; or
(b) Fighting and other disorderly conduct; or
(c) Reporting to work under the influence of alcohol or drugs, or the improper use of alcohol or drugs at work; or
(d) Willful, intentional or repeated carelessness or negligence in the performance of work which results in damage to equipment, material, or which jeopardizes the safety of others; or
(e) Refusal to carry out reasonable and lawful instructions significant to job duties, after warning; or
(f) Major violation of reasonable and lawful company rules, after warning.

Fla. Admin. Code R. 60BB-3.020.

We agree with the UAC that the repeal of Rule 38B-2.017(5)(d) and enactment of Rule 60BB-3.020 preclude claimant from avoiding a finding of misconduct because of his addiction. The appeals referee found that the claimant had been warned that he could be discharged for intoxication at work. The evidence showed that even after this warning, the claimant left work and returned under the influence of alcohol. The referee properly concluded that the claimant’s continued use of alcohol interfered with his work and showed wanton and intentional disregard of the employer’s interests. Accordingly, we affirm the UAC’s final order affirming the referee’s decision disqualifying the claimant from receiving unemployment compensation benefits.

Affirmed.

KLEIN and HAZOURI, JJ., concur.


text:
    Mark J. JOHNSON, Appellant, v. Carl PIRES, Everett Pires, Marc Miller and All Top Granite, Inc., a Florida corporation, Appellees.
    No. 4D07-1251.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 2007.

      Jason M. Murray and Cristina Alonso of Carlton Fields, P.A., Miami, for appellant.
    Stephen M. Feidelman of Stephen M. Feidelman, P.A., Hollywood, for appellees.
   KLEIN, J.

The issue we must address on this appeal is whether appellant Johnson can be made to arbitrate claims brought against him based on an arbitration provision in a contract which he signed only as the CEO of a corporation. We conclude that, as a non-party to the contract, he is not boünd to arbitrate.

The contract from which this dispute arose was between Rocksolid Granite, Inc. and the appellees, and Johnson signed the agreement only in his capacity as the chief operating officer of Rocksolid. All Top Granite, Inc. initiated arbitration proceedings against Johnson individually and Rocksolid.

Johnson moved the arbitrator to dismiss the claims against him, asserting that he was not a party to the agreement requiring arbitration, but his motion to dismiss was denied. Johnson then filed this action in circuit court to prohibit All Top from prosecuting its claims against him in arbitration. All Top agreed that the circuit court could decide whether the claims against Johnson should be arbitrated, and conceded that Johnson had signed the agreement only in his capacity as chief operating officer of the corporation. The court ruled that Johnson must arbitrate and Johnson appeals.

The court was persuaded that Johnson could be compelled to arbitrate under Alterra Healthcare Corp. v. Estate of Linton, 953 So.2d 574 (Fla. 1st DCA 2007). In Alterra, the resident of an assisted living facility died, and the resident’s estate sued the facility and the director of the facility for negligence causing her death. The agreement required arbitration of the claims made by the resident, and the issue was whether the director, who was not a party to the agreement, could require the estate to arbitrate claims against her. The court held that the estate had to arbitrate because it was bound by the decedent’s agreement to arbitrate, and the claims alleged against the director were within the broad arbitration provision. Alterra is distinguishable from the present case, because in Alterra it was the party bound by the arbitration provision who was attempting to avoid arbitration of its claim against a non-party. This case presents the reverse situation, in which a party who agreed to arbitrate wants to force a non-party to arbitrate.

The agreement provides that the issues related to arbitration shall be governed by the Federal Arbitration Act. When the courts decide whether parties agreed to arbitrate, however, they apply ordinary principles governing the formation of contracts. First Options v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); Global Travel Mktg., Inc. v. Shea, 908 So.2d 392 (Fla.2005).

In Thomson-CSF, S.A. v. American Arbitration Ass’n, 64 F.3d 773 (2d Cir.1995), the court identified five theories under which a non-signatory could be bound to an arbitration agreement: “1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel.” 64 F.3d at 776; Merrill Lynch Inv. Managers v. Optibase Ltd., 337 F.3d 125 (2d Cir.2003); see also Martha A. Gottfried, Inc. v. Paulette Koch Real Estate, Inc., 778 So.2d 1089 (Fla. 4th DCA 2001) (non-signatories may be bound by an arbitration agreement if dictated by ordinary principles of contract law and agency).

Of the five theories laid out in Thomsons-CSF, the only one which could be applicable here is agency, but a person who signs a contract only in a corporate capacity is not bound as an agent. Charter Air Ctr., Inc. v. Miller, 348 So.2d 614 (Fla. 2d DCA 1977); McCarthy v. Azure, 22 F.3d 351 (1st Cir.1994) (signing a contract as an agent for a disclosed principal is not sufficient to bind the agent to arbitrate claims against him personally); see also Liberty Commc’ns, Inc. v. MCI Telecomms. Corp., 733 So.2d 571, 573-74 (Fla. 5th DCA 1999) (‘[i]t is hornbook law that to be bound one must be a party to contract, and there is no arbitration exception to this principle of law”).

It is thus apparent that, although Johnson, a non-party to the agreement, could have enforced the arbitration provision against the parties who agreed to arbitrate these claims, the parties who agreed to arbitrate cannot force arbitration on Johnson, since he did not agree to arbitrate. We accordingly reverse.

GROSS, J., and EMAS, KEVIN M., Associate Judge, concur.