author: CONNER, BURTON C., Associate Judge.

text:
    Sherif KODSY, an individual, Appellant, v. DEPARTMENT OF FINANCIAL SERVICES of the State of Florida, Appellee.
    No. 4D07-54.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Rehearing Denied Feb. 18, 2008.

      Holiday Hunt Russell of The Law Offices of Holiday Hunt Russell, Chartered, Hollywood, for appellant.
    James A. Bossart, Division of Legal Services, Tallahassee, for appellee.
   CONNER, BURTON C., Associate Judge.

Sherif Kodsy seeks review of an Immediate Final Order (“IFO”) entered by the Florida Department of Financial Services (“the Department”), pursuant to section 120.569(2)(n), Florida Statutes (2006). The IFO ordered Kodsy to cease and desist “from analyzing insurance policies or counseling or advising or giving opinions relative to insurance policies or otherwise acting as a general lines insurance agent in this state without being properly licensed and appointed as a general lines insurance agent in the Florida Insurance Code.” Kodsy attacks the authority and sufficiency of the order, and he contends the statutory and administrative process were applied in an unconstitutional manner. Because we resolve this appeal on the first issue, there is no need to address the second issue.

Kodsy is a Florida licensed building contractor who operates a mold remediation company, All Restoration Services, Inc. (“ARS”). Kodsy is not and never has been a Florida licensed insurance agent.

On December 11, 2006, without notice or hearing, the Department entered an IFO against Kodsy. The IFO found that Kod-sy was engaging in the unlicensed and illegal business of analyzing homeowner’s insurance policies and counseling, advising and giving opinions relative to homeowner’s insurance. However, the IFO contained no factual allegation that Kodsy engaged in or was holding himself out as engaging in business as an insurance agent.

According to the factual allegations in the IFO, the affidavits of four insurance consumers stated that in the course of hiring ARS to clean up mold damage, Kod-sy asked to see each consumer’s homeowner’s insurance policies, and after reviewing the policies, stated that his work would be covered by the insurance policy. As a result of that assurance, the consumers hired ARS to perform the job. In all four cases, the insurance company would not pay the cost of the restoration. When the consumers did not pay the bill, Kodsy then filed a claim of lien against their properties.

As part of the authority for issuance, the IFO cites section 626.7315, Florida Statutes, which provides that

... no individual shall, unless licensed as a general lines agent:
(4) In this state, engage or hold himself or herself out as engaging in the business of analyzing or abstracting insurance policies or of counseling or advising or giving opinions, other than as a licensed attorney at law, relative to insurance or insurance contracts, for fee, commission, or other compensation.

The IFO makes a factual finding, “... SHERIF KODSY has engaged in the unlicensed, and therefore illegal business of insurance, by analyzing insurance policies and counseling, advising and giving opinions relative to insurance contracts in violation of the Florida Insurance Code, including sections 626.112(l)(a) and 626.7315(4), Florida Statutes, respectively.”

The order also makes a finding that Kodsy’s activities in giving his opinions of coverage “present a grave and immediate risk of financial harm to the businesses and residents of Florida,” because “homeowners insurance is a valuable and expensive product that protects the assets of homeowners and is required to be purchased by anyone who has a mortgage loan.” In particular, the order describes the harm of Kodsy’s activities as follows:

a. The inducement of property owners to enter into contracts that require homeowners to pay him thousands of dollars based on his inaccurate opinion and advice that his mold remediation work will be covered by the property owner’s insurance policy. Without KODSY’S opinion and advice that the insurance policy will cover his services, property owners would likely contact their insurance agent or company to inquire as to whether their policy covers mold removal. If homeowners knew that their policies did not cover mold removal they would be able to make informed decisions on whether to do business with All Restoration Services or consult with other mold removal businesses and compare prices. It would also allow homeowners to consider whether or not they could afford to pay the cost of the services of All Restoration Services. If a homeowner chose to do business with All Restoration Services, knowing insurance will not cover mold removal, the homeowner would also be more likely to review the contract and try to negotiate the costs and terms of the contract.
b. The filing of liens by SHERIF KODSY and/or All Restoration Services on the property of homeowners and the filing of lawsuits against homeowners who choose to do business with KODSY as a result of being induced by SHERIF KODSY to enter into contracts that require homeowners to pay him thousands of dollars based on his inaccurate opinion and advice that his mold remediation work will be covered by the property owner’s insurance policy.

The final finding in the IFO is that allowing Kodsy to continue giving his opinions regarding insurance coverage “poses an immediate danger to the public health, safety and welfare.”

Kodsy concedes that the Department has statutory responsibility and authority for investigating violations of the insurance code and issuing cease and desists orders. See sections 624.307 and 624.310, Florida Statutes. However, Kodsy points out that rather than issue the IFO pursuant to section 624.310, which provides for an opportunity for a hearing, the Department chose instead to issue the IFO pursuant to section 120.569(2)(n), Florida Statutes, which makes no provision for a hearing.

When issuing an emergency order with no right for a hearing, an agency must specify facts and reasons which support a finding that an immediate danger to the public health, safety and welfare requires an immediate final order. See § 120.569(2)(n), Fla. Stat. (2006). “Every element necessary to the order’s vitality must appear on its face.” Crudele v. Nelson, 698 So.2d 879, 879-80 (Fla. 1st DCA 1997) (citing Commercial Consultants Corp. v. Dep’t of Bus. Reg., 363 So.2d 1162, 1164 (Fla. 1st DCA 1978)). On appellate review, the court will not accept a general conclusory prediction of harm as support for an emergency order. Id. The reviewing court must determine whether the emergency order “sufficiently identifies] particularized facts which demonstrate an immediate danger to the public.” Witmer v. Dep’t of Bus. & Prof l Reg., 631 So.2d 338, 341 (Fla. 4th DCA 1994).

In order to satisfy due process, “an immediate final order must contain factual allegations demonstrating the following:

1. The complained of conduct was likely to continue.
2. The order was necessary to stop the emergency.
3. The order was sufficiently narrowly tailored to be fair.”

Bertany Ass’n for Travel & Leisure, Inc. v. Fla. Dep’t of Fin. Servs., 877 So.2d 854, 855 (Fla. 1st DCA 2004). “If the facts alleged in the complaint demonstrate ‘immediacy, necessity and fairness,’ no hearing is required prior to emergency action.” Robin Hood Group, Inc. v. Fla. Office of Ins. Reg., 885 So.2d 393, 396 (Fla. 4th DCA 2004) (citing Witmer, 631 So.2d at 341) (emphasis added). “[I]t is not sufficient merely to allege a statutory violation; instead, the order must contain a factual recitation sufficient to demonstrate the existence of an imminent threat of ‘specific incidents of irreparable harm to the public interest’ requiring use of the extraordinary device afforded by section 120.569(2)(n).” UNIMED, Prof l Lioh. Ins. Co., Ltd. v. Office of Ins. Reg., 884 So.2d 963, 964 (Fla. 1st DCA 2004). Past acts may be sufficient to allege a danger of future misconduct if the conduct alleged is sufficiently serious and is likely to be repeated. Witmer, 631 So.2d at 343 (Fla. 4th DCA 1994); Stock v. Dep’t of Banking & Fin., 584 So.2d 112,115 (Fla. 5th DCA 1991).

Similar to the immediate final orders issued in Crudele and Premier Travel International, Inc. v. State of Fla. Dep’t of Agrie. & Consumer Servs., 849 So.2d 1132 (Fla. 1st DCA 2003), the IFO in this case does not specifically allege that the conduct will continue and the facts alleged do not support an inference that the conduct will continue. The IFO in this case describes four different instances in which Kodsy allegedly violated the insurance code in December, 2001, in July, 2004, in November 2004, and in June, 2005. The last occurrence was approximately one year and six months before the IFO was issued. Given the number of instances alleged and the time span between the alleged last violation and the issuance of the order, the IFO does not facially demonstrate that the conduct will continue.

Similar to the immediate final order issued in Premier Travel, the IFO issued in this case does not state facts which demonstrate the order was necessary to stop an emergency. Nor does it explain why another remedy would be insufficient to stop the alleged harm. The Department has the authority under section 624.310(2)(b), Florida Statutes, to institute “such suits or other legal proceedings” as may be needed to enforce the insurance code. Under section 624.310(5), Florida Statutes, the Department could impose an administrative fine to deal with a violation. Nothing in the IFO in this case explains why an emergency order without a hearing was needed in lieu of other options available to the Department.

The Department in this case has issued a facially deficient IFO which fails to demonstrate that the complained of behavior will continue, and that an emergency order without a hearing is necessary. For those reasons, we reverse the IFO issued by the Department against Kodsy.

WARNER and FARMER, JJ., concur.

      . Neither party makes an issue about whether Kodsy was holding himself out as an insurance agent. We question whether section 626.7315, Florida Statutes, actually proscribes the behavior complained of when Kodsy, acting as a mold repair contractor, offers an opinion about insurance coverage. However, since neither side raised the issue, we do not address it.

      . The harm described in the IFO suggests that Kodsy gave erroneous advice regarding coverage and lulled the complainants into not contacting their insurance companies before hiring ARS. Kodsy contends the factual allegations show the insurance companies did provide coverage for at least part of the work and that each complainant was already working with an insurance claim before he made any representations.


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    Hugo Lyle TODD, Appellant, v. Nadege GUILLAUME-TODD, Appellee.
    No. 4D06-4907.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Rehearing Denied Feb. 22, 2008.

      Hugo Lyle Todd, Fort Lauderdale, Pro Se.
    Mitchell Haymes of the Law Offices of Glantz & Glantz, P.A., Plantation, for ap-pellee.
   TAYLOR, J.

The former husband challenges various aspects of the final judgment of dissolution. We agree with the arguments he makes on the limitations placed on his visitation rights and the calculation of his child support and reverse.

The parties were married on August 5, 1990. The former wife filed a petition for dissolution of marriage on April 18, 2006. According to the former wife’s amended financial affidavit, she is employed by Metropolitan Health Network and earns a gross monthly income of $4,833.40. She states that she is entitled to real estate valued at $200,000 and lists a mortgage of $107,000 and a $37,000 Chase Home Equity loan among the parties’ debts.

According to the former husband’s financial affidavit, he is employed as an admissions advisor at Kaplan University. His gross monthly salary is $2,307. He lists no assets, just liabilities, including $20,000 in auto loans for cars that were repossessed.

After a final hearing at which no court reporter was present, the trial court entered its October 23, 2006 final judgment. The final judgment recites that the parties’ 12-year old son has resided with the former wife since the parties’ separation on September 1, 1996. It also finds, as follows:

The Wife also testified that the Husband’s visitation is sporadic and he often arrives late. The Husband admitted he had been late on occasion. The Wife also testified that she is concerned for the safety of their son due to the Husband’s unstable living accommodations and his domestic partner’s use of drugs, specifically, cannabis.... The Wife presented the Husband’s bank statements which included $14,000 in deposits for three months. The Husband testified that relatives gave him money.

The final judgment allows the husband to have the child on alternating Fridays from 7:00 p.m. to 11:00 p.m. and alternating Saturdays from noon to 10:00 p.m. It states, “The Husband shall arrive on time. There shall be a twenty (20) minute grace period. If the Husband arrives more than twenty minutes late, access is waived.” “When the Husband has secured a stable residence, which includes separate sleeping area for the child, he shall have unsupervised access. The Wife is entitled to visit the Husband’s residence where the child shall be spending overnights.”

The trial court awarded the wife $569.74 per month in child support, plus thirty-two months of retroactive support totaling $18,231.68, to be paid at the rate of $253.30 per month.

Visitation

Ordinarily, the absence of a transcript of the pertinent hearing precludes appellate review of a trial court’s determination concerning custody and visitation. Burnham v. Burnham, 884 So.2d 390, 391 (Fla. 2d DCA 2004). However, even where the appellant fails to provide a transcript, the absence of a transcript does not preclude reversal where an error of law is apparent on the face of a judgment. Soto v. Soto, — So.2d-, 32 Fla. L. Weekly D182 (Fla. 2d DCA Jan. 5, 2007) (quoting Chirino v. Chirino, 710 So.2d 696, 697 (Fla. 2d DCA 1998)); Dorsett v. Dorsett, 902 So.2d 947, 950 (Fla. 4th DCA 2005). The standard of review of a question of law is de novo. Henderson v. Henderson, 905 So.2d 901, 903 (Fla. 2d DCA 2005).

The Florida legislature has decreed that it is:

... the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parties separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of chil-drearing.

§ 61.13(2)(b)l., Fla. Stat. (2006).

Here, there are three independent grounds for reversing the trial court’s visitation scheme apparent on the face of the final judgment. First is the provision that the former husband’s visitation is waived if he is twenty minutes late in picking up the child. In Esteban v. Esteban, 523 So.2d 1250, 1252 (Fla. 3d DCA 1988), the Third District considered a provision which called for forfeiture of visitation if the noncustodial parent was fifteen minutes late in pickup or drop-off of the child. The Third District reversed, stating:

In our view, this paragraph constitutes an unnecessarily arbitrary and unjustified interference with the rights of the father and the child to each other’s company. Gardner v. Gardner, 494 So.2d 500 (Fla. 4th DCA 1986), appeal dismissed, 504 So.2d 767 (Fla.1987). The understandable concerns of the trial court in this regard are better met by the inclusion of a by-now routine provision requiring the father to give reasonable notice if he does not exercise his visitation rights at any particular time and the ongoing authority of the court over any abuses of that process.

Id. The visitation forfeiture provision in this case similarly infringes on the visitation rights of the father and the son and should be deleted from the final judgment.

Second, the provisions pertaining to overnight visitation are too vague and unduly restrictive. The former husband was allowed visitation only on alternating Friday or Saturday evenings with no overnight visitation. As to overnight visitation, the trial court stated:

When the Husband has secured a stable residence, which includes separate sleeping area for the child, he shall have unsupervised access. The Wife is entitled to visit the Husband’s residence where the child shall be spending overnights.

We are not certain how to interpret the terms “stable residence” and a “separate sleeping area for the child.” The former husband thinks that the latter means that he can no longer have overnight visitation with his son unless the boy has his own separate bedroom. The former husband points out that he cannot afford a two bedroom apartment on his meager income and that this provision is patently unreasonable.

Overnight visitation is a very important component of a non-eustodial parent’s visitation rights. It should be awarded, absent some overriding concern for the child’s safety. See § 61.13(7), Fla. Stat. (2006) (declaring that overnight visitation cannot be denied because of the age or sex of the child). Unless a twelve-year old child suffers from some special physical or mental disability, we see no reason why he or she cannot spend four nights a month sleeping on a couch, rollaway bed, or even a padded mat or sleeping bag in an area not designated as a separate bedroom, if the non-custodial parent’s economic circumstances so dictate.

Third, the final order does not grant the former husband any special visitation on holidays or vacations. This, too, was error as a matter of law. Although a court has the power to deny visitation altogether in extreme circumstances, where visitation is ordered, the non-custodial parent’s right to the child on rotating holidays has become so routine and necessary that to deny it requires factual findings justifying that decision. See Schumaker v. Schumaker, 931 So.2d 271, 274 (Fla. 5th DCA 2006) (stating that is error for trial court to leave judgment incomplete by failing to address visitation on “holidays and other special occasions and extended school breaks such as the summer”).

Accordingly, we reverse and remand for the trial court to delete the tardy pick-up forfeiture provision, reconsider the terms and conditions of overnight visitation, and consider awarding visitation for some holidays and other special occasions.

Child Support

The former wife confesses error as to the calculation of the former husband’s child support obligation, which she admits should have been $48.25 per month less, owing to the misallocation of the health insurance obligation in doing the calculation. She also confesses error as to the retroactive support award, which not only should have been calculated at the lower rate, but was also limited by statute to 30 months, rather than the 32 months awarded by the trial court.

The former husband correctly points out that the final judgment is facially erroneous because it does not make any findings as to the net income of each party as a starting point for calculating child support or explaining how the calculation was performed. This also requires reversal. See Guida v. Guido, 870 So.2d 222, 225 (Fla. 2d DCA 2004) (reversing child support award for necessary income findings); Herring v. Ashby, 869 So.2d 630, 631 (Fla. 5th DCA 2004) (reversing for income findings and explanation of method used in arriving at award). This is true even though there is no transcript of the proceedings below. See Holmes v. Holmes, 709 So.2d 166, 167 (Fla. 5th DCA 1998).

The former husband argues that after paying the current child support amount and retroactive child support, he will be left with only $384.16 per month on which to live. Unfortunately, this argument is barred on appeal by the lack of a transcript, especially inasmuch as the final judgment suggests that the former husband’s income exceeded that shown on his financial affidavit. See Calicchio v. Calicchio, 693 So.2d 1124, 1125 (Fla. 4th DCA 1997). However, because the child support must be reconsidered for the reasons mentioned above, upon remand the trial court is free to also reconsider the amount of the child support in relation to the former husband’s income and necessities under Alois v. Alois, 937 So.2d 171 (Fla. 4th DCA 2006), and Calderon v. Calderon, 730 So.2d 400, 402 (Fla. 5th DCA 1999).

We have considered the other arguments presented by the former husband and find them to be without merit.

Affirmed in part, Reversed in part, and Remanded.

SHAHOOD, C.J., and HAZOURI, J., concur.

      . The final order does not explain why the father should not have weekend visitation from Friday evening until Sunday evening— the visitation schedule enjoyed by the vast majority of divorced fathers. Because this case will be remanded to address other visitation issues, we suggest that the trial court revisit the entire visitation scheme and try to accommodate the needs of both parent and child.


author: WARNER, J.

text:
    BERLONI S.P.A., Appellant, v. DELLA CASA, LLC, Appellee.
    No. 4D06-3862.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, and Joanne Fanizza of Law Offices of Joanne Fanizza, P.A., Fort Lauderdale, for appellant.

      Joseph L. Rebak and Maria N. Vernaee of Tew Cardenas LLP, Miami, for appel-lee.
   WARNER, J.

In a breach of contract action for goods sold, the trial court reduced an award to the appellant for what the appellee claimed were amounts covered by partial releases. The court also refused to award prejudgment interest to the appellant. We hold that the trial court erred in reducing the award and in not awarding prejudgment interest from the date of the filing of the complaint.

Berloni S.p.A., an Italian corporation, and Della Casa, LLC, a Florida company, entered into an agreement whereby Berlo-ni agreed to supply the kitchens and bathrooms to Della Casa for a condominium project known as the Continuum. Although the agreement required payment within sixty days of the product’s arrival in Miami, in any event payment was due within 120 days of the issuance of the bill of lading. Berloni provided kitchens for other projects of Della Casa, but no other written agreements were signed with respect to other projects.

In August and December 2002 Berloni executed final releases for two projects, the Continuum and Gables Club projects. It also executed partial releases in January 2003 to obtain payment of some amounts owed on other projects, including Murano Grande.

The parties’ relationship soured. Della Casa did not make payments to Berloni, and it claimed overpricing and defective workmanship. Berloni filed suit against Della Casa in July 2003, alleging that it had failed to pay for the kitchens. Della Casa answered and raised payment and release as an affirmative defense, attaching the releases. The case was tried before a jury, and the issue of the validity of the releases was submitted to the jury, although a motion for directed verdict was reserved by the trial court. The jury awarded damages to Berloni for unpaid amounts in connection with projects including Murano Grande but awarded no damages for the Continuum and Gables Club projects. The verdict totaled $2,142,075.63, which included $975,590.83 for the Murano Grande claim.

Della Casa moved for a new trial on several grounds, including that the jury awarded damages for Murano Grande for amounts covered by the partial releases. Its attorney maintained that “the jury just blew it on this.” He claimed that the express provision of the partial releases provided for the release of all work done prior to their execution. Berloni argued that the jury had considered the releases, noting that the court had instructed the jury to give effect to the releases and that the jury had not awarded Berloni all that was requested on the Murano claim. The trial court granted Della Casa’s motion to that extent and reduced the Murano Grande award by $891,266.12, which constituted work Berloni performed prior to the execution of the partial releases.

Berloni moved for an award of prejudgment interest. The trial court denied the award, because the issue had not been submitted to the jury and the amount was hotly disputed. Berloni appeals the resulting final judgment, arguing both the reduction of the Murano Grande claim and the failure to award prejudgment interest.

1. Reduction of Verdict Because of Release

The trial court’s interpretation of a contract is a matter of law subject to a de novo standard of review. Gossett & Gossett, P.A. v. Mervolion, 941 So.2d 1207, 1210 (Fla. 4th DCA 2006); Atlanta Jet v. Liberty Aircraft Servs., LLC, 866 So.2d 148, 150 (Fla. 4th DCA 2004). However, “[w]here there are two reasonable interpretations of an agreement, the question is one for the trier of fact.” McDonald v. McDonald, 731 So.2d 132, 133 (Fla. 4th DCA 1999). See also AT & T Wireless Servs. of Fla., Inc. v. WCI Cmtys., Inc., 932 So.2d 251, 255 (Fla. 4th DCA 2005).

The language of an agreement is to be construed most strongly against its drafter. Fla. State Tpk. Auth. v. Indus. Constr. Co., 133 So.2d 115, 117 (Fla. 2d DCA 1961). Della Casa drafted the partial releases, and they contained the following language:

For and in consideration of the payment of $ [amount filed in] ... the sufficiency of which is hereby acknowledge^], the Undersigned does hereby waive, release and relinquish [any] and all rights, claims, demands, liens, claims for relief, causes of action and the like, whether arising at law, under a contract, in tort, in equity or otherwise, which the Undersigned has now or may have had arising out of the performance of work or the furnishing of materials by the undersigned/or the above stated amount, pursuant to the contract with DELLA CASA, LLC in connection with the construction of The Murano Grande (the “Project”).

(emphasis added). Berloni executed three partial releases on the Murano Grande project, each with the identical language. This language could mean either that claims with respect to all prior work are released, or that Berloni releases only claims with respect to work performed for the amount of payment and no more. Thus, given both possible interpretations, the issue was submitted to the trier of fact.

Although the releases were an affirmative defense, Della Casa did not move for a directed verdict at the close of its case on this ground and did not object to the jury instruction regarding the effect of the releases. In fact, in closing argument Della Casa did not even argue that the partial releases precluded payment for almost all of the Murano Grande payments. Its attorney only mentioned the final releases and suggested a zero verdict for the Continuum and Gables Club project. The jury complied.

The evidence presented by Berloni showed that the jury’s award was slightly less that the difference between the amount Berloni billed on Murano Grande less the amount of payments made by Della Casa, for which partial releases were given. Even though the amounts do not completely align, the jury asked whether it could make individual adjustments in the amounts it found due. The court instructed that it could do so. In any event the jury awarded an amount less than Berloni claimed was due. The jury thus gave Della Casa credit for payments actually made. It did not give credit for all work done prior to the partial release. This was a permissible interpretation of the meaning of the release, and at trial Della Casa did not argue otherwise.

Because the partial release issue was properly submitted to the jury, and there was competent substantial evidence supporting its verdict, the trial court erred in directing a verdict post-trial and reducing Berloni’s recovery. On remand, the final judgment in the full amount of the damages awarded should be reinstated.

II. Failure to Award Prejudgment Interest

In its final judgment, the court denied Berloni’s request for prejudgment interest because it failed to submit the issue of entitlement to prejudgment interest to the jury. Accordingly, the court found that it waived any claim it may have asserted to recover prejudgment interest. The court noted Berloni’s reliance on Argonaut Insurance Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985), which holds that once a verdict has liquidated the damages as of a date certain, the computation of prejudgment interest is merely a ministerial act. Id. at 215. However, the court rejected Argonaut’s applicability to the instant case, finding that the amount of damages was disputed and concluded that this meant the claim was one for unliquidated damages.

A trial court’s decision concerning a plaintiffs entitlement to prejudgment interest is reviewed de novo. See Wyatt v. Milner Document Prods., Inc., 932 So.2d 487, 489 (Fla. 4th DCA 2006). We conclude that the court erred as a matter of law in refusing to award prejudgment interest from the date of the filing of the complaint.

In Argonaut the supreme court determined that prejudgment interest is simply an element of pecuniary damages. 474 So.2d at 214. Under this “loss theory” of damages, “neither the merit of the defense nor the certainty of the amount of loss affects the award of prejudgment interest. ... Plaintiff is to be made whole from the date of the loss once a finder of fact has determined the amount of damages and defendant’s liability therefor.” Id. at 215. The court further stated:

Once a verdict has liquidated the damages as of a date certain, computation of prejudgment interest is merely a mathematical computation. There is no “finding of fact” needed. Thus, it is a purely ministerial duty of the trial judge or clerk of the court to add the appropriate amount of interest to the principal amount of damages awarded in the verdict.
[W]hen a verdict liquidates damages on a plaintiffs out-of-pocket, pecuniary losses, plaintiff is entitled, as a matter of law, to prejudgment interest at the statutory rate from the date of that loss.

Id. A claim becomes liquidated and susceptible of bearing prejudgment interest when a jury verdict has the effect of fixing the amount of damages. Palm Beach County Sch. J3d. v. Montgomery, 641 So.2d 183, 184 (Fla. 4th DCA 1994). “[Wjhere a disputed contractual claim becomes liquidated by jury verdict as to the amounts recoverable, interest should be awarded from the date the payment was due.” Celótex Corp. v. Buildex, Inc., 476 So.2d 294, 295 (Fla. 3d DCA 1985).

The trial court relied on Aetna Insurance Co. v. Settembrino, 369 So.2d 954, 955 (Fla. 3d DCA 1978), to conclude that it had no authority to assess interest because the verdict failed to allow or indicate the desire to award interest. The supreme court in Argonaut, however, rejected the argument that a jury had to decide either entitlement to, or the amount of, prejudgment interest. We relied on Argonaut in rejecting this very argument in Pine Ridge at Haverhill Condominium Ass’n v. Hovnanian of Palm Beach II, Inc., 629 So.2d 151 (Fla. 4th DCA 1993), involving a claim for construction defects to an association’s condominium complex. The trial court denied prejudgment interest because the jury’s damage verdict did not specifically fix a date of the loss. We concluded that “[t]he jury finding ... had the effect of fixing the damages at no later than the turnover date of the condominium property to the association,” and awarded prejudgment interest from that date. Id. at 151.

As a second reason for denying prejudgment interest in this case, the trial court found that the parties disputed the amount of damages. Prejudgment interest cannot be denied simply because the amount of damages was disputed. In Florida Steel Corp. v. Adaptable Developments, Inc., 503 So.2d 1232, 1236 (Fla.1986), the court rejected the contention that one is not liable for prejudgment interest where he has a “litigable position upon which to deny liability.” “[N]either the merit of the defense nor the certainty of the amount of loss affects the award of prejudgment interest.” Id. (quoting Argonaut, 474 So.2d at 215).

We have also held that “[p]rejudgment interest ... is due from the date the debt was due, even though there may exist a bona fide dispute as to how much is owed.” Bellino v. W & W Lumber & Bldg. Supplies, Inc., 902 So.2d 829, 832 (Fla. 4th DCA 2005). Similarly, in Maryland Casualty Co. v. Florida Produce Distributors, Inc., 498 So.2d 1383, 1385 (Fla. 5th DCA 1986), the court held that where “the breach of a contract to pay a sum of money is caused by good faith controversy as to the amount due under the terms of a contract, when a verdict liquidates the damages the plaintiff is entitled to prejudgment interest on the amount found to be due.... ” As the jury determined the amount due to Berloni and resolved the dispute, prejudgment interest should have been awarded from the date the debt was due.

The due date, however, was disputed, and the court also determined that it could not determine the date of the loss. In its reply brief, as well as at oral argument, Berloni suggests that at the very latest, it was entitled to prejudgment interest from the date of the filing of the complaint, citing Caribank v. Frankel, 525 So.2d 942 (Fla. 4th DCA 1988), disapproved on other grounds, BancFlorida v. Hayward, 689 So.2d 1052, 1054 (Fla.1997). In Caribank, the trial court awarded appellees prejudgment interest from the date of the contract. Because there was no pre-suit demand date in the record, this court found that the proper date to award interest from was the date appellees filed their lawsuit, citing Manning v. Clark, 89 So.2d 339, 341 (Fla.1956) (interest on a liquidated damages claim was to be calculated from the date the claim became due and was demanded, or the date suit was commenced).

We accept Berloni’s concession with respect to the due date and direct that prejudgment interest be calculated from the date of the filing of its lawsuit on July 7, 2003. The filing of the complaint unequivocally constituted a demand for payment.

We therefore reverse the final judgment with directions that the court on remand enter judgment for the entire verdict without the reduction made by the trial court as a result of the partial releases. The court shall include prejudgment interest on that amount from July 7, 2003, calculated at the statutory rate.

GROSS, J., and CHUMBLEY,. DOUGLAS J., Associate Judge, concur.

      . Although Berloni does not argue it, Della Casa's attorney's argument at the motion for directed verdict after the close of Berloni's case indicates that a directed verdict was sought only as to the final releases for Continuum and Gables Club. It does not appear that the trial court actually ruled on the motion at that time. Clearly, after the close of the evidence, Della Casa asked for a directed verdict only on the final releases.

      . The contracts provided for sums stated both in dollars and in euros. The use of both euros and dollars in testimony may have led to some jury confusion which contributed to the small discrepancy.


author: PER CURIAM.

text:
    GEICO GENERAL INSURANCE COMPANY, Petitioner, v. FLORIDA EMERGENCY PHYSICIANS, et al. Respondent.
    No. 5D07-716.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.
    Rehearing Denied Jan. 31, 2008.
    Karissa L. Owens and Jennings L. Hurt, III, of Rissman, Barrett, Hurt, Hurt, Donahue & McLain, P.A., Orlando, for Petitioner.
    Kevin B. Weiss of Weiss Legal Group, P.A., Maitland, for Respondent.
   PER CURIAM.

The circuit court’s conclusion that Florida Emergency Physicians “is entitled to the PIP log” constitutes a departure from the essential requirements of the law. GEICO Gen. Ins. Co. v. Fla. Emergency Physicians, No. 5D07-626, 972 So.2d 966, 2007 WL 4458173 (Fla. 5th DCA Dec. 21, 2007). Accordingly, we grant the petition and quash the lower court’s order. See S. Group Indem., Inc. v. Humanitary Health Care, Inc., 32 Fla. L. Weekly D1396, — So.2d -, 2007 WL 1542019 (Fla. 3d DCA May 30, 2007) (“Section 627.736 does not provide for nor address the insured’s right to access documents prepared internally by the insurer. As the insurer’s PIP payout log is a document generated by the insurer and is not a document the insurer obtained pursuant to section 627.736(6), we conclude that the circuit court, acting in its appellate capacity, applied the incorrect law by finding that (1) section 627.736(6)(d), Florida Statutes (2003) requires an insurer to provide its PIP payout log to an insured or the insured’s assignee, presuit_”).

PETITION GRANTED; ORDER QUASHED.

SAWAYA, MONACO and TORPY, JJ., concur.

      . "PIP” is an acronym commonly used to refer to personal injury protection automobile insurance coverage,


author: VILLANTI, Judge.

text:
    David Russell STAHL, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5803.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.

      Bruce G. Howie, Clearwater, for appellant.
   VILLANTI, Judge.

' David Russell Stahl. appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. After diligent consideration we affirm, but we write to address an issue that has not previously been addressed by this court.

In case 01-CF-005859, Stahl was found guilty by a jury of a lewd or lascivious battery, a second-degree felony. Stahl also had pending against him charges of lewd or lascivious conduct in case 01-CF-001737 and unlawful sexual activity with a minor in case 01-CF-005860, both second-degree felonies. On September 9, 2004, Stahl, himself a lawyer at the time, entered into a negotiated plea agreement and received a postconviction sentencing bargain of six years in prison followed by nine years of sex offender probation. However, pursuant to the plea agreement, Stahl also pleaded guilty in case 01-CF-001737 to the lesser-included offense of felony battery in exchange for a sentence on that charge of one year and one day in prison, to run concurrently with the sentence in case 01-CF-005859. Pursuant to this same agreement, case 01-CF-005860 was nolle prossed. Importantly, as a condition of the plea agreement, Stahl expressly waived his right to “all post-verdict challenges [] in case number 01-CF-005859, including but not limited to any motion for new trial, direct appeal, habeas corpus, and/or motion for post-conviction relief, and ... any appeal, habeas corpus, and/or motion for post-conviction relief in case number 01-CF-001737.” Stahl was sentenced in accordance with this plea agreement.

Nonetheless, Stahl filed various postcon-viction motions, including the instant rule 3.850 motion. In this motion, Stahl raised forty-two grounds for relief, including newly discovered claims of fundamental error rendering his sentence in case 01-CF-005859 illegal. However, Stahl’s claims relate to acts or omissions allegedly committed by the prosecutor, his lawyer, or the trial court in connection with that case. All of his complaints involve matters that he was clearly aware of, or should have been aware of, when he entered into the subject plea agreement. Stahl further asserted in his memorandum of law supporting his rule 3.850 motion that his negotiated plea agreement could not bar his right to file this motion. The postconviction court denied the rule 3.850 motion, finding that Stahl entered into a negotiated plea agreement in which he waived his right to file postconviction motions.

“No Florida rule of criminal procedure directly controls a post-conviction sentencing bargain.” Leach v. State, 914 So.2d 519, 522 (Fla. 4th DCA 2005). However, “[a] defendant may waive constitutional, statutory, or procedural rights during the criminal process.” Id. at 521 (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). After a jury’s finding of guilt, a defendant has a right to appeal and to file postcon-viction motions, and it may be in his best interest to use those rights as a bargaining chip. Id. at 522. Once a defendant has time to review a plea agreement, discuss it with his lawyer, and consider alternatives, he may waive his right to postcon-viction motions. Id. at 523.

Moreover, it is well established that a defendant can waive his statutory right to a direct appeal contained in a preconviction plea agreement. See United States v. Cockerham, 237 F.3d 1179, 1181-83 (10th Cir.2001). Likewise, a defendant can waive his right to collaterally attack his judgment and sentence when the waiver is expressly stated in the plea agreement and he knowingly and voluntarily agrees to the waiver. See Williams v. United States, 396 F.3d 1340, 1342 (11th Cir.2005). However, ineffective assistance of counsel claims attacking the advice received from counsel in entering into the plea and waiver cannot be waived. See Nixon v. United States, No. CV206-071, 2006 WL 2850430, at *2 (S.D.Ga. Oct.3, 2006).

Although Leach addressed the ability to waive a right to appeal, by extension, this concept would also apply to the right to file a rule 3.850 motion attacking a conviction. Stahl had over three months to review the plea agreement, discuss it with his lawyer, and consider other alternatives. Further, Stahl received a reduced sentence on the jury conviction, another pending felony was reduced to a lesser-included offense, and yet another pending felony was nolle prossed altogether as compensation for trading his last bargaining chip — i.e., all postconviction motions. Therefore, Stahl waived his right to postconviction challenges and received the bargained-for sentences. See State v. Swett, 772 So.2d 48, 52 (Fla. 5th DCA 2000) (stating that a defendant cannot accept the benefit of the bargain without accepting its burden).

Hence, his only available remedy is to move to withdraw his plea by alleging that it was not knowingly and voluntarily entered or allege that his counsel was ineffective for misadvising him to enter into the plea agreement. See Williams, 396 F.3d at 1342; see also Nixon, 2006 WL 2850430, at *2. In his brief, Stahl complains that his waiver was not sufficient because the trial court did not repeat the specific plea terms verbatim. However, on the record and in Stahl’s presence, the trial court conducted a sufficient inquiry pursuant to Florida Rule of Criminal Procedure 3.172(c)(7), as evidenced in the following exchange:

[STATE PROSECUTOR]: We have offered this [plea agreement] in which Mr. Stahl has waived all post trial challenges, including direct appeal and ... any post conviction motions including habeas corpus, 3.850 and waiving his right to make any challenges in 01-1737.
THE COURT: Do you understand the agreement which your attorney and the State have just presented to me ... ?
[MR. STAHL]: Yes.

Thus under the facts of this case, as supported by the above record, Stahl’s contention has no merit. Furthermore, Stahl agreed to the specific plea terms in the written plea form which he and his attorney signed. Even if Stahl were not a law school graduate, the plea colloquy was more than adequate to refute his claim. In fact, he did not claim not to have understood the plea terms but only that the postconviction waiver should not be effective because the sentencing judge did not repeat the plea terms verbatim. Moreover, Stahl does not allege that he received any misadvice from his counsel regarding the entry of his plea or the agreement. Therefore, on the record before us, Stahl’s waiver is binding; he has not and cannot allege any other basis to avoid its binding effect.

Accordingly, we affirm the postconviction court’s denial of this rule 3.850 motion.

Affirmed.

WHATLEY and DAVIS, JJ, Concur.

      . The plea form uses the term '‘post-verdict” presumably because the agreement followed a jury verdict of guilty, but we will use only the term “postconviction” in this opinion because Stahl is attempting to overcome the waiver of his postconviction rights.


text:
    David TSCHIDA, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2514.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2008.
   PER CURIAM.

David Tschida appeals the postconviction court’s order that modified its oral pronouncement of sentence to the extent that Mr. Tschida is now allowed early termination of probation if he qualifies. The written judgment and sentence provide no limitation on early termination. We affirm.

In its order, the postconviction court observed that “the only reference to ‘no early termination of probation’ ... in the court record is that which was orally pronounced ... at sentencing.” Mr. Tschida calls our attention to a memo of sentence that includes language prohibiting early termination of probation. Of course, this document is not an official sentencing document. See Woods v. State, 32 Fla. L. Weekly D2182, D2133, — So.2d -, 2007 WL 2535257 (Fla. 2d DCA, Sept.7, 2007) (discussing the Tenth Judicial Circuit’s use of “snap-out” forms in lieu of proper sentencing orders).

Affirmed.

SALCINES, DAVIS, and LaROSE, JJ., Concur.


author: SALTER, J.

text:
    Richard MACIER, et al., Appellants, v. In re ESTATE OF BESSIE GIAMPORTONE, Appellee.
    No. 3D07-2002.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 2008.
    Jonathan M. Sabghir, for appellants.
    Lloyd B. Silverman, for appellee.
    Before GREEN, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

Richard Macier and Foreclosure Management Services, Inc. appeal a non-final order of the circuit court, probate division, re-opening the Estate of Bessie Giampor-tone, Appellee, and denying the appellants’ motion to quash service and to dismiss the motion to re-open the Estate. Inasmuch as the probate judge had jurisdiction and the power to re-open the Estate under section 733.903, Florida Statutes (2007), as well as the authority to protect an alleged property interest of the Estate, we affirm.

Macier and Foreclosure Management Services were given the courtesy of notice, based on the personal representative’s knowledge of the name and address of their counsel in other litigation among the parties in the civil division of the circuit court. This afforded them the opportunity to be heard, and it also provided them actual notice of the actions taken in the probate court so that they may move to dissolve the injunction entered there.

At this interlocutory point, and with the matter apparently referred for criminal investigation, the probate judge assuredly did not abuse his discretion or disregard any controlling principle of law.

Affirmed.


author: SHAHOOD, C.J.

text:
    Curtis ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3973.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2008.
    Rehearing Denied Feb. 14, 2008.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, C.J.

Following a finding that appellant, Curtis Rogers, had violated his probation, the trial court revoked his youthful offender status, his probation, and sentenced him in each of the underlying offenses to 15 years in prison for his second-degree felonies and 9.7 years in prison for his third-degree felonies. Appellant argues that his sentences violated the Youthful Offender Act and that there was no record evidence supporting the violation of probation for one of the sentences. We agree.

Appellant was originally charged by eight separately-filed informations and sentenced as a youthful offender to split sentences of prison time and probation. Following his release from custody, affidavits of violation of probation and warrants were filed. The affidavits were amended two times to include three grounds: the failure to report to the probation office as directed; failure to obtain consent of the probation officer before changing residences; and the failure to live and remain at liberty without violating any law by committing the criminal offense of burglary of an occupied dwelling.

A violation of probation hearing was held and the trial court found appellant in violation of his probation by changing his residence and committing the offense of burglary of a dwelling.

The trial court first erred in revoking appellant’s youthful offender status. “Once a court classifies a defendant as a youthful offender, it is prohibited from imposing sanctions other than those of the Youthful Offender Act.” Mendez v. State, 835 So.2d 348, 349 (Fla. 4th DCA 2003); State v. Arnette, 604 So.2d 482, 484 (Fla.1992) (“[Yjouthful offenders maintain youthful offender status even when they violate a condition of community control.”); State v. Watts, 558 So.2d 994, 997-98 (Fla.1990) (“[0]nce the circuit court has given a defendant youthful offender status and has sentenced him as a youthful offender, it must continue that status and only resen-tence the defendant as a youthful offender for a violation of the probation or community control portion of his youthful offender sentence.”); Gardner v. State, 656 So.2d 933 (Fla. 1st DCA 1995); Young v. State, 654 So.2d 1206 (Fla. 5th DCA 1995).

Youthful offender status may be revoked when the defendant is charged and convicted with a new, substantive offense. See Boynton v. State, 896 So.2d 898, 899 (Fla. 3d DCA 2005). However, if the defendant is not charged by information with the new, substantive offense, but rather is charged by way of a violation of the defendant’s youthful offender commitment, the defendant’s youthful offender status may not be revoked. Id. Here, the allegation of a burglary of an occupied dwelling was one of the three grounds for appellant’s violation of probation, not an independently charged crime via an information, nor was appellant separately convicted of the crime.

Second, the lower court erred in imposing a sentence for appellant’s third-degree felonies in excess of the maximum permissible sentence for substantive violations of the Youthful Offender Act. In six of appellant’s original cases, he committed third-degree felonies and was designated a youthful offender. After violating probation, the trial court sentenced appellant to a concurrent term of 9.7 years in prison on each of the eight third-degree felony counts. These sentences are illegal as they exceed the five year maximum permissible sentence which may be legally imposed for a • substantive violation of a Youthful Offender Act sentence involving a third-degree felony. Pursuant to section 958.14, Florida Statutes (2000), a violator of youthful offender probation whose violation is substantive must be credited with time served and cannot be sentenced in excess of the maximum permitted for the underlying crime. Section 958.14 states:

A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06(1). However, no youthful offender shall be committed to the custody of the department for a substantive violation for a period longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated, or for a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.

§ 958.14, Fla. Stat. (2000).

A person who has been convicted of a third-degree felony may be punished by a term of imprisonment not exceeding five years. § 775.082(3)(d), Fla. Stat. Therefore; appellant’s sentence should be limited to the maximum sentence of five years for third-degree felonies. See Bryant v. State, 876 So.2d 623 (Fla. 4th DCA 2004).

Additionally, appellant was originally charged with five counts of second-degree felonies. Second-degree felonies have a maximum term of imprisonment of 15 years. § 775.082(3)(e), Fla. Stat. Appellant, therefore, was properly sentenced to 15. years in prison for these felonies, but he should retain his youthful offender status as he was never convicted of the substantive offense that was a reason for his revocation of probation.

Third, appellant argues that the trial court erred in finding a violation of probation in Case No. 00-21407 where there is no record evidence supporting the allegation.

In seven of appellant’s cases, an initial affidavit and warrant for violation of probation listing one violation was issued to appellant, followed by an amended affidavit and warrant listing two violations, followed by a second amended affidavit and warrant listing three violations. The third violation in the second amended affidavit and warrant alleged that appellant failed to live and remain at liberty without violating any law by committing the criminal offense of burglary of an occupied dwelling. In Case No. 00-21407, appellant’s eighth case, there is no record evidence of a second amended affidavit or warrant issued. In an affidavit by the Clerk’s Office for the Seventeenth Judicial Circuit, the Office indicated that the second amended affidavit of probation and warrant for Case No. 00-21407 cannot be located.

“A trial court cannot revoke a defendant’s community control for conduct not charged by affidavit of violation and warrant.” Baker v. State, 760 So.2d 1115, 1116 (Fla. 4th DCA 2000). However, when there is evidence from the trial transcript of the existence of the missing affidavit, this court has remanded with instructions for the trial court to conduct further proceedings to determine the existence of the missing affidavit. Id. at 1117; Howard v. State, 883 So.2d 879, 880 (Fla. 4th DCA 2004).

The transcript in this case demonstrates that there was testimony given regarding appellant’s offense of burglary of a dwelling. The owner of the burglarized home testified. The investigating officer testified that he found fingerprints in the home and interviewed family members present in the home. A latent fingerprint examiner testified that she found appellant’s fingerprints in the home. A detective testified that she investigated the burglary and reviewed the results of the fingerprints. Appellant’s probation officer, testified that he was informed that appellant was arrested. The State argued at the hearing that “the State has proved, with sufficient evidence to sway the conscience of this Court, that in fact [appellant] has violated the three allegations in the warrant.” The trial judge stated that he has heard all of the evidence as to the violation of probation and the conditions of probation “in addition to the [testimony of] officers in relationship to the substantive violation alleged in Count III.”

Based on the above, there is evidence from the transcript that the trial court was working with second amended affidavits on all cases and included the third count of violation of probation in making its decision. Accordingly, we remand for the trial court to conduct further proceedings to determine the existence of a second amended affidavit and warrant for Case No. 00-21407.

As for the other sentences, we reverse and remand for the lower court to reestablish appellant’s youthful offender status and resentence him on the third-degree felonies in accordance with this opinion.

Reversed and Remanded.

TAYLOR, J., concurs.

FARMER, J., concurs in conclusion only.

      . There is no record evidence that appellant was ever charged by information with this offense.


text:
    Arthur Lee CREECH, Petitioner, v. Timothy P. RYAN, Director Miami-Dade Corrections and Rehabilitation Department, and The State of Florida, Respondents.
    No. 3D08-1.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 2008.

      Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender, for petitioner.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for respondents.
    . Before COPE, RAMIREZ, and SALTER, JJ.
   PER CURIAM.

Arthur Lee Creech petitions this Court for a writ of habeas corpus seeking his release from illegal incarceration. Creech claims that he is being illegally held on an excessive bond of $1,000,000.00. Because we agree that habeas corpus relief is appropriate under the facts presented, we grant the petition and order the reinstatement of Creech’s original conditions of pretrial release.

Creech was charged with five counts of lewd and lascivious molestation of a child. He was arrested on August 14, 2007, and released on bail in the amount of $22,500.00 on August 22, 2007. Creech’s wife obtained a civil restraining order against him on August 13, 2007, and Creech was served with the injunction at the county jail.

On September 11, 2007, the State filed a motion seeking to revoke Creech’s bond. The trial court heard the motion that same day and continued the hearing until September 17, 2007. At the hearing on September 17, the trial court ruled that Creech could remain out on bond, but added four conditions: (a) Creech was to be under house arrest with an electronic monitor equipped with GPS tracking; (b) Creech could leave the house in order to work; (c) Creech was to have restricted internet access limited to business purposes; and (d) Creech was not to have contact with any minor children except his second child, who was two years old.

On October 18, 2007, Creech requested that the court allow him to attend the Ft. Lauderdale Boat Show on October 25 through 29 for work-related reasons. The court granted the motion and also ordered the Department of Corrections to check and print all of Creech’s internet activity since September 18, 2007. On October 30, 2007, the Public Defender placed the case on calendar and objected to the court having the Department of Corrections monitor Creech’s computer. Despite the fact that Creech had not violated the terms of his release since the trial court had modified the conditions, the trial court sua sponte revoked Creech’s bond.

The Public Defender objected to the revocation because a change in circumstances had not occurred since Creech’s release. The attorney informed the trial court that he was going to appeal the ruling. The trial court then vacated the revocation of pre-trial release and imposed bond in the amount of $1,000,000.00. Creech remains in custody, and this petition for writ of habeas corpus was filed.

Before the State can seek to modify a bond, the State must have “good cause”, with notice to the defendant, to move to modify the bond pursuant to Florida Rule of Criminal Procedure 3.131(d). Keane v. Cochran, 614 So.2d 1186, 1187 (Fla. 4th DCA 1993). The State must prove “a change in circumstances or additional evidence” since the bond was originally set. Burton v. Felton, 625 So.2d 1334, 1335 (Fla. 3d DCA 1993). The State bears the burden of affirmatively proving the changed circumstances. Sikes v. McMillian, 564 So.2d 1206, 1208 (Fla. 1st DCA 1990). If the State does not prove that the information was not before the original judge, the bond must be reduced to the level originally set. Santos v. Garrison, 691 So.2d 1172 (Fla. 4th DCA 1997). Moreover, the trial court cannot on its own initiative increase bond. Sueliman v. Jenne, 935 So.2d 120,121 (Fla. 4th DCA 2006).

From the limited record presented in the case before us, there is no showing of changed circumstances and no notice to Creech that the trial court intended to increase his bond. All the reasons for revoking the bond were known previously to the trial judge, and there was no additional evidence presented since the bond was originally set.

Accordingly, Creech s petition for writ of habeas corpus is granted, we quash the order holding him on $1,000,000.00 bond, and remand for the trial court to reinstate the original conditions of Creech’s pre-trial release.

This opinion shall take effect immediately and will not be delayed by the filing of any motion for rehearing or other post-decision motion.


text:
    Russell T. NEAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-6186.
    District Court of Appeal of Florida, First District.
    Jan. 11, 2008.
    Russell T. Neal, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Mason v. State, 745 So.2d 525 (Fla. 1st DCA 1999).

WOLF, KAHN, and LEWIS, JJ„ concur.


text:
    George BATTLES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5180.
    District Court of Appeal of Florida, First District.
    Jan. 11, 2008.
    George Battles, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, KAHN, and LEWIS, JJ., concur.


author: PER CURIAM. ALTENBERND, Judge,

text:
    Ken BURKE, Clerk of the Circuit Court for Pinellas County, Petitioner, v. Dennis ESPOSITO, Respondent.
    No. 2D07-3263.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 2008.
    Betsy M. Steg, Senior Assistant County Attorney, and Sarah Richardson, Managing Assistant County Attorney, Clear-water, for Petitioner.
    Dennis Esposito, pro se.
   PER CURIAM.

Denied.

VILLANTI, J., and GREEN, OLIVER L., Senior Judge, Concur.

ALTENBERND, J., Concurs specially with opinion.

ALTENBERND, Judge,

Concurring specially.

I concur in the denial of this petition for writ of certiorari. This is a second-tier certiorari petition in which we are reviewing the circuit court’s appellate decision affirming a judgment from county court. Our scope of review is thus limited. See, e.g., Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281, 1284 (Fla. 2d DCA 2005). The circuit court did not deny due process to Ken Burke, the Clerk of the Circuit Court for Pinellas County (the Clerk), and I cannot conclude that it departed from the essential requirements of the law. On the other hand, a portion of its reasoning is incorrect and the broader issue revealed by this case needs a thoughtful resolution that is binding on all clerks of court in Florida. I write to highlight the issue in hopes that it can be solved either by the legislature or perhaps by precedent established in a case appealed from a circuit court to a district court of appeal.

The issue concerns the proper interpretation of section 28.241(l)(b), Florida Statutes (2005), which permits a clerk of court to charge a fee of up to $50 for “reopening” a circuit court case when the case has been “previously reported as disposed of.” See also § 34.041(2), Fla. Stat. (2005) (providing similar provisions for the reopening of county court cases). This case highlights that some clerks may be charging filing fees to “reopen” cases that, from any reasonable perspective, should never have been “closed.” In this case, the Clerk charged such a fee by relying on the definition of “disposition” in the Summary Reporting System Manual (SRS Manual), a manual created in compliance with the mandate of section 25.075, Florida Statutes (2005). The Clerk used this definition of “disposition” as the definition of “disposed of’ for purposes of section 28.241(l)(b). This interpretation may inure to a clerk’s benefit because the clerk is entitled to collect up to $50 each time it reopens such a file. See § 28.241(l)(b). I doubt that the legislature intended the definition created by the Office of the State Courts Administrator (OSCA) in the SRS Manual to be binding in the context of section 28.241(l)(b) or that the Florida Supreme Court intended the SRS Manual to be used as a budgetary device under these circumstances.

I. THE FACTS AND PROCEDURAL POSTURE OF THIS CASE

Dennis Esposito was not a party to the foreclosure action that spawned this certio-rari proceeding. He was the successful bidder at the foreclosure sale. To complete the sale, he paid $117,000 to the Clerk. Unfortunately, the Clerk had conducted the sale in apparent violation of a bankruptcy stay. Eventually the sale was vacated, but the Clerk did not return Mr. Esposito’s money.

When Mr. Esposito sought to obtain his money, the Clerk informed him that the case had been closed and that he would have to pay a $50 filing fee to reopen the case if he wished to recover his money. To Mr. Esposito’s credit, he obeyed this seemingly absurd request. After he paid the money, he filed a pro se lawsuit against the Clerk in the small claims division of county court for return of the filing fee. The Clerk did not object to the county court’s jurisdiction. Eventually the county court ruled in Mr. Esposito’s favor and entered judgment for $50, court costs, and interest.

The Clerk appealed this ruling to the circuit court. In the circuit court, the Clerk argued that the county court did not have jurisdiction over the subject matter of the dispute. The Clerk asserted that the circuit court in the foreclosure action maintained the exclusive jurisdiction to determine the appropriateness of the reopening fee charge. The Clerk also argued that as a matter of statutory law, he was required to handle the foreclosure proceeding in the manner in which it was handled.

The circuit court issued a written opinion affirming the county court’s judgment. As to the issue of jurisdiction, the circuit court concluded that the challenge to the fee could be litigated in small claims court as a claim for return of money and that Mr. Esposito was not limited to filing a motion in the foreclosure action once it was reopened. In the alternative, the circuit court noted that the Clerk had not objected to the county court’s jurisdiction and had therefore waived this point on appeal. For this latter proposition, the circuit court relied on Fiocchi v. Trainello, 566 So.2d 904 (Fla. 4th DCA 1990).

On the issue of the Clerk’s statutory obligations, the circuit court agreed with the Clerk that the case was “disposed of’ when the final judgment of foreclosure was entered. Nevertheless, it observed that the plaintiff in the foreclosure action had paid a $50 filing fee to reopen the case to file a motion to vacate the certificate of sale. The circuit court ruled that once the case was reopened in this manner, the order vacating the sale was not a disposi-tive order allowing the file to be closed once again. Thus, the court concluded, the Clerk could not charge Mr. Esposito another $50 to reopen the case. The circuit court then added to its reasoning its observation that $50 is a de minimus amount and that the circuit court had the power on appeal to reject outright the Clerk’s argument because “the law does not concern itself with trifles.”

II. SUBJECT-MATTER JURISDICTION

Initially, I note that the trial court’s alternative holding that the Clerk waived the issue of subject-matter jurisdiction was incorrect. Florida Rule of Civil Procedure 1.140(h) states that the defense of subject-matter jurisdiction may be raised at any time. It is commonly stated that “subject matter jurisdiction cannot be waived or conferred upon a court by consent or agreement of the parties.” Williams v. Starnes, 522 So.2d 469, 471 (Fla. 2d DCA 1988). A judgment of a court without subject-matter jurisdiction is sometimes described as a “void” judgment. N.W.T. v. L.H.D. (In re D.N.H.W.), 955 So.2d 1236, 1238 (Fla. 2d DCA 2007).

Admittedly, there is language in Fiocchi that implies that the defense of lack of subject-matter jurisdiction may be waived if not raised in a preliminary motion. 566 So.2d at 904. ■ However, the motion addressed in Fiocchi involved a challenge to both subject-matter jurisdiction and personal jurisdiction. There is no doubt that a challenge to personal jurisdiction can be waived if it is not raised at the inception of the case. See Babcock v. Whatmore, 707 So.2d 702, 704 (Fla.1998). More important, Fiocchi was an appeal from a nonfi-nal order, and the district court expressly recognized that it did not have jurisdiction to review a nonflnal order refusing to dismiss a complaint.

Thus, I conclude the Clerk did not waive the issue of subject-matter jurisdiction when he failed to raise it in small claims court. Nevertheless, I am inclined to agree with the circuit court’s initial assessment that the dispute regarding this fee could be filed either in the circuit court hearing the foreclosure action or thereafter in small claims court, particularly when the person charged the filing fee was not a party to the foreclosure action.

III. FEES TO REOPEN FORECLOSURE FILES IN FLORIDA ARE NOT A TRIFLING MATTER

The circuit court resolved this case by applying a very narrow rule of law, which in turn constrains our authority to review the matter by certiorari. The circuit court essentially held that when a foreclosure action is reopened by a motion to vacate a foreclosure sale and the motion is thereafter granted, the return of the monies paid in the sale is intrinsic to that order and thus the file cannot be properly closed or considered “disposed of’ under section 28.241(l)(b), at least as it relates to the purchaser, until the Clerk returns the funds in the registry of the court. This rule would not appear to depart from essential requirements of the law, and it applies to a narrow range of cases, thus making certiorari relief inappropriate. See, e.g., Ivey v. Allstate Ins., Co., 114 So.2d 679, 682 (Fla.2000).

If the circuit court had decided this case on broader grounds, for example by declaring that a final judgment of foreclosure did not terminate a foreclosure action for purposes of section 28.241(l)(b), precedent from this court by way of certiorari may have been appropriate. In this regard, I must dispute the trial court’s statement that this is a trifling matter. Admittedly, Mr. Esposito and the Clerk have wrangled mightily in this case over $50. For the Clerk, however, much more is at stake. The circuit court’s opinion recites that this specific foreclosure action had been “reopened” no less than six times. Thus, in addition to the original filing fee for the action, the Clerk had collected another $300 from parties that had a need to file motions in the foreclosure action after the entry of the final judgment.

There were 57,272 real estate or foreclosure actions filed in circuit courts in Florida in fiscal year 2005-06. See FY 2005-06 Statistical Reference Guide, Fla. Office of the State Courts Adm’r, found at http:// www.flcourts.org/gen_pubhc/stats/bin/ reference_guide/2005_06circuitcivil.pdf (last visited Nov. 27, 2007). Virtually all foreclosure cases result in motions filed after entry of the final judgment. Assuming that only two such motions are filed on average, the interpretation of the law used by the Clerk would have generated an additional $5,700,000 statewide for fiscal year 2005-06 from mortgage foreclosure actions alone. Similar estimates for fiscal year 2006-07 and the current fiscal year would undoubtedly be significantly higher because of the increase in home foreclosures brought on by problems within the subprime mortgage market.

The legislative history for chapter 2003-402, Laws of Florida, the act creating section 28.241(l)(b) and requiring clerks to charge this reopening fee, noted that judicial circuits reported “reopening” 446,000 cases in their civil divisions for fiscal year 2000 to 2001. Fla. H.R. Comm, on Ap-prop., HB 113A (2003A) Staff Analysis 9 (May 27, 2003), found at http://www. myfloridahouse.gov/Sections/Documents/ loaddoc.aspx?FileName=h0113A+revised. ap.doc&DocumentType=Analysis&Bill Number=013A&Session=2003A (last visited Nov. 29, 2007). That would amount to potential gross revenue from a $50 filing fee of $22,300,000. Moreover, the legislative history for section 19 of chapter 2004-265, Laws of Florida, which later amended section 28.241(l)(b), reveals that at the time of that amendment the legislature anticipated that the filing fee to reopen closed cases “will provide an additional $6.4 million in revenue to the state as these revenues will contribute to the excess revenues to be remitted to the state by the clerks.” See Fla. S. Comm, on Approp., CS for CS for SB 2962 (2004) Staff Analysis 25 (Apr. 15, 2004), found at http://www. flsenate.gov/data/session/2004/Senate/bills/ analysis/pdf/2004s2962.ap.pdf (last visited Nov. 28, 2007) (emphasis added). In other words, the filing fee to reopen closed cases is not merely a “user fee” to reimburse the clerk of court for administrative costs associated with access to courts but also, in part, a tax generating additional general revenue for the state as a whole. This seems to .be a “trifle” that should warrant concern by an appellate court.

III. THE SOURCE OF THE PROBLEM: RELIANCE ON THE SRS MANUAL FOR FUNCTIONS BEYOND ITS INTENDED PURPOSE

The Clerk argues that he is just following statutory law. While the Clerk may be attempting in good faith to comply with section 28.241(l)(b), there is no reported case law defining “previously reported as disposed of.” The Clerk is interpreting the undefined statutory phrase in a manner that favors the Clerk by relying upon the Florida Supreme Court’s “Summary Reporting System,” which was created pursuant to section 25.075, not for the purposes of section 28.241.

Section 25.075(1) requires the Florida Supreme Court to “develop a uniform case reporting system, including a uniform means of reporting categories of cases, time required in the disposition of cases, and manner of disposition of cases.” To that end, the supreme court developed a Summary Reporting System for the purposes of measuring judicial effort. At the direction of the court, the Office of the State Courts Administrator issued the 2002 Summary Reporting System Manual, which can be found at http://www.flcourts. org/gen_public/pubs/srsmanual.shtml. This manual was a revision of existing guidelines directed to clerks of circuit and county courts for reporting statistics to the Florida Supreme Court in compliance with section 25.075(1).

On the one hand, because the Clerk is required to file reports to satisfy section 25.075, it is not necessarily unreasonable for the Clerk to assume that a disposition for purposes of the reporting system created to satisfy section 25.075 is also a disposition for purposes of section 28.241(l)(b). On the other hand, there is little question that the Summary Reporting System was not created as a budgetary tool of the clerks of court or as a method to establish user fees payable to clerks. The introduction to the SRS Manual states:

While the SRS data is used as a workload measure for judges, it is not intended to measure the efficiency of the judiciary, state attorneys or public defenders. The primary purpose of the SRS is the certification of need for additional judgeships. Under the provisions of Article V, Section 9 of the Florida Constitution, the Supreme Court is responsible for determining the need for additional judges in the appellate districts and the judicial circuits.... The SRS data provides the primary data to project the need for additional judge-ships. The Certification of Need for Additional Judgeships process uses weighted caseloads in order to project future workload for judges. This analysis takes into account the complexity of cases filed and the time needed to process them.

http://www.flcourts.org/gen_public/pubs/ bin/srsmanual/Introduction_2002.pdf.

Thus, the Office of the State Courts Administrator created the SRS system primarily to assist in the administrative management of the court system and to provide a measuring tool for judicial workloads. The introduction to the manual acknowledges that other projects rely on these statistics. Nevertheless, nothing suggests that anyone gave consideration to using this reporting method as a fair and reasonable method to assess user fees for filings in circuit courts.

It appears that the Clerk is using the definition of “disposition” that is contained in the glossary to the SRS Manual:

Disposition: The final decision or judgment which terminates a judicial proceeding. Examples include disposed by judge, disposed by jury, no file, dismissed, transferred, convicted after plea, adjudication withheld, acquitted, convicted, dismissed before hearing, dismissed after hearing, bond estreature and non-jury trial.

http://www.flcourts.org/gerL_public/pubs/ bin/srsmanual/Glossary_2002.pdf

This definition may be adequate and useful for the purposes to be served by the SRS Manual. For the purposes of deciding when a case file should be “closed” so as to permit a “reopening” fee, however, it seems necessary to consider that specific types of litigation do not actually “terminate” with a final judgment. A foreclosure action is an obvious example.

This certiorari proceeding is not the proper case in which to evolve a definition of “disposition” for purposes of this statute. That definition must come from another source. It seems to me that the most reasonable solution would involve the legislature’s defining this term within section 28.241. If that does not occur, the courts must begin to evolve a definition through case law attempting to interpret the statute. If parties challenge these fees directly in pending circuit court cases or by filing writs of mandamus seeking to compel the clerks to accept filings without payment of fees, the issues will be reviewed in the district courts of appeal in typical appellate proceedings under a de novo standard of review. In the interim, if the clerks of court continue to rely on the SRS Manual for the purposes of section 28.241, those responsible for the publication of that manual may want to take a position on whether the manual is intended to control the interpretation of this statute.

      . Although this record reflects the procedure used only in the Sixth Judicial Circuit, the records in other cases presented to this court suggest Mr. Burke is not alone in this practice.

      . Indeed, if the district court in Fiocchi was concerned that the circuit court lacked subject-matter jurisdiction, it could have treated the nonfinal appeal as a petition for writ of prohibition and granted relief. See English v. McCray, 348 So.2d 293, 296-97 (Fla.1977).

      . At least one internet site claims that the number of foreclosure filings year to date in Florida is 262,954. http://www.realtytrac.com/ state/Florida.html (last visited Dec. 17, 2007).

      . This is apparently due to the structure established by chapter 2003-402, section 38, which created section 28.37, Florida Statutes (2003), and required the clerks to remit portions of their revenues to the state for deposit in either a Clerks of Court Trust Fund or the General Revenue Fund. Those revenues in the Trust Fund that are not required to resolve deficits for the clerks of court are then transferred monthly to the General Revenue Fund.

      .This is somewhat ironic given that Revision 7 as enacted by the electorate amended article V, section 14(a) and (b) of the Florida Constitution to require that "[flunding for the state courts system ... shall be provided from state revenues appropriated by general law.” The legislative implementation of the constitutional amendment appears to require quite the opposite — that funding for the state shall be provided from revenues generated by the court system.

      . Given the constitutional separation between the courts and clerks in this state, it would seem unusual for the courts to set the ground rules for the clerk’s budgetary system.

      . Section 28.42, Florida Statutes (2005), requires the Office of the State Courts Administrator to “prepare and disseminate a manual of court-related filing fees, service charges, costs, and fines imposed pursuant to state law.” This is not a policy-making function, but merely an informational service. The manual currently provided is actually created by the Florida Association of Court Clerks, Inc. See http://www.flcourts.org/gen_public/ funding/bin/manual_feesfines3.pdf. I point this out only to demonstrate that this statute does not appear to give OSCA any authority to address the issues identified by this opinion.


author: FARMER, J.

text:
    Glenn TUHEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4222.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2008.
    Rehearing Denied Feb. 21, 2008.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   Corrected Opinion

FARMER, J.

Tuhey entered a plea of no contest to battery on a detainee, trafficking in cocaine and violating probation. He was represented by counsel at the plea. But soon after entering his plea, he moved pro se to withdraw the plea, saying that it was “by far” not in his best interests. Critical to our purposes, he requested that counsel be appointed for the matter. The trial court found the motion facially insufficient because it lacked any factual allegations or reasons for withdrawing a plea. At the same time, the court denied an appointment of counsel. He appeals. We reverse.

Rule 3.170(i) allows a defendant to withdraw a plea on specified grounds if motion is made, as here, within 30 days of entering the plea. Tuhey concedes that his motion is facially insufficient but argues that it was the very reason he sought the appointment of counsel to aid him in the effort so his motion would be sufficient. In Schriber v. State, 959 So.2d 1254 (Fla. 4th DCA 2007), we said:

“the thirty-day window provided in Rule 3.170(Z) is a critical stage of the criminal proceedings and it would be hollow indeed if the defendant were not allowed the guiding hand of counsel to assist in preparing the initial motion to withdraw the plea.”

959 So.2d at 1257. Our opinion in Schriber did not restrict appointment of counsel only to situations where defendant alleges that a plea was instigated through misrepresentation, coercion or duress by defense counsel, as the State here argues. Nor did the court do so in Holifield v. State, 717 So.2d 69 (Fla. 1st DCA 1998). It was error for the court to deny appointment of counsel to assist defendant in the critical stage of seeking to withdraw a plea timely under rule 3.170(£). On remand, the court can sort out whether defendant qualifies for representation by the Public Defender.

Reversed.

KLEIN and HAZOURI, JJ., concur.


text:
    Keith W. SCHMALZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-6357.
    District Court of Appeal of Florida, First District.
    Jan. 14, 2008.

      Keith W. Schmalz, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, PADOVANO, and ROBERTS, JJ., concur.


text:
    Jamaal Ali BILAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-6192.
    District Court of Appeal of Florida, First District.
    Jan. 16, 2008.
    Jamaal Ali Bilal, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(4)(B).

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


text:
    Jermond Lemontea THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-6329.
    District Court of Appeal of Florida, First District.
    Jan. 16, 2008.
    Jermond Lemontea Thomas, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003).

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


text:
    Gregory CARTER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-6565.
    District Court of Appeal of Florida, First District.
    Jan. 16, 2008.

      Gregory Carter, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


text:
    Eldred M. FRAZIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-6616.
    District Court of Appeal of Florida, First District.
    Jan. 16, 2008.
    Eldred M. Frazier, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Joseph MONDY and Matilde Mondy, Appellants, v. Louis SANCHEZ, Appellee.
    No. 3D07-1221.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2008.

      Ron Cordon, for appellants.
    Anthony F. Sanchez, Coral Gables, for appellee.
    Before, COPE, RAMIREZ, and SALTER, JJ.
   PER CURIAM.

Joseph and Matilde Mondy appeal an order granting specific performance of the sale of them duplex to Louis Sanchez. We conclude the trial court acted within its discretion in its determination that Sanchez had met his burden for specific performance and affirm.

This case was the subject of a prior appeal. Sanchez v. Mondy, 936 So.2d 35 (Fla. 3d DCA 2006). In the first appeal, Louis Sanchez appealed the entry of judgment for Joseph and Matilde Mondy in his suit for specific performance of the sale of a duplex. At the trial, the Mondys had called a handwriting expert to testify that Mrs. Mondy did not sign the contract, which testimony was the basis for the trial court’s ruling in favor of the Mondys. This court determined that the requirements for admission of the expert’s testimony were not met and remanded the case to the trial court for entry of a new judgment without consideration of the handwriting expert’s testimony. On remand, the trial court determined that the testimony of the Mondys and their daughter was incredible and that without the handwriting expert’s testimony, Sanchez had met his burden of proof. The court entered judgment for specific performance in Sanchez’s favor. This timely appeal followed.

The Mondys allege that the evidence was legally insufficient to support a decree of specific performance. They argue that Sanchez’s witnesses, the real estate agent and the title agent, were interested witnesses because they would both gain financially if the transaction closed, and therefore their testimony should be disregarded. While those considerations may go to the weight of the evidence, they do not impact on the admissibility of the evidence. The decision whether to decree specific performance of a contract is a matter that lies within the sound judicial discretion of the trial court and it will not be disturbed on appeal unless it is clearly erroneous. Muñiz v. Crystal Lake Project, LLC, 947 So.2d 464, 469 (Fla. 3d DCA 2006).

Given all the facts and circumstances of the case, we conclude that the trial court did not abuse its discretion because the evidence was legally sufficient and, therefore, specific performance was properly ordered. See generally Free v. Free, 936 So.2d 699, 702 (Fla. 5th DCA 2006).

Affirmed.


text:
    ROYAL CARIBBEAN CRUISES, LTD., Appellant, v. Goran BAKALAR, Appellee.
    No. 3D06-2960.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2008.

      Salas, Ede, Peterson & Lage, South Miami; Hicks & Kneale and Dinah Stein, Miami, and Mark Hicks, Englewood, for appellant.
    John Hickey; Elizabeth K. Russo, Miami, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Royal Caribbean Cruises, Ltd. appeals a jury verdict of $3,384,185 as being against the manifest weight of the evidence. As we recently stated in Glabman v. De La Cruz, 954 So.2d 60, 62 (Fla. 3d DCA 2007), “despite the fact that a jury verdict is higher or lower than the reviewing court believes it ought to have been, the court should decline to interfere with the verdict.” Unlike Glabman, Royal Caribbean has not pointed to any highly emotional testimony which caused anyone to cry. We find no abuse of discretion in the trial judge’s refusal to grant a new trial or remittitur. See Lassitter v. Int’l Union of Operating Eng’rs, 349 So.2d 622, 627 (Fla.1977) (stating that the court may order a remittitur or new trial if it believes “the amount is so great or small as to indicate that the jury must have found it while under the influence of passion, prejudice or gross mistake”).

Affirmed.


text:
    William RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2435.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2008.
    William Ramirez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, RAMIREZ, and SUAREZ, JJ.
   PER CURIAM.

This is an appeal from an order denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Assuming for purposes of discussion that the trial court was incorrect in paragraph thirteen of the order in characterizing the appellant’s motion as being impermissibly successive, the earlier portions of the trial court’s order correctly denied the appellant’s claims on the merits.

Affirmed.


text:
    Joseph CARRUTHERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3209.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2008.
    Carey Haughwout, Public Defender, Margaret Good-Earnest and John Pauly, Jr., Assistant Public Defenders, West Palm Beach, and Joseph Caruthers, Sand-erson, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. In this appeal pursuant to An-ders, Defendant’s pro se briefs raise issues of involuntary plea which were not preserved for appeal by his pro se rule 3.170(Z) motion to withdraw plea. This affirmance is without prejudice to his right to assert them in a timely and sufficient rule 3.850 motion for postconviction relief.

SHAHOOD, C.J., GROSS and MAY, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).