text:
    Lorenzo McCLOUD, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-1228.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Lorenzo McCloud, in proper person.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for respondent.
    Before FLETCHER, WELLS and SUAREZ, JJ.
   PER CURIAM.

Lorenzo McCloud seeks immediate release from incarceration via an emergency petition for writ of habeas corpus. We deny the petition, as it appears from the record that on March 21, 2006, the defendant pled guilty in all cases and accepted sentences of three years concurrent but not coterminous with the Broward County cases, with credit for time served. McCloud is not entitled to immediate release from custody in the Miami-Dade County cases, as the Miami-Dade cases were to run concurrent, but not coterminous, with the Broward County cases. The record shows that McCloud has not served the entirety of his three-year sentences, which began in March 2006. We make no statement as to the status of McCloud’s Broward County sentences.

McCloud must pursue his gain-time issues with the Department of Corrections. See Hidalgo v. State, 729 So.2d 984 (Fla. 3d DCA 1999)(to contest award or loss of gain time inmate must first exhaust administrative remedies through the Department of Corrections and if necessary seek a writ of mandamus against DOC in the circuit court); Smith v. State, 902 So.2d 351 (Fla. 5th DCA 2005)(“The calculation of gain time is a function of the Department of Corrections, through which, relief must first be pursued administratively.”).

Petition for habeas corpus denied.


source: Caselaw Access Project

author: FLETCHER, J. PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Glenn Smith MULUS, Appellee.
    No. 3D06-2121.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2007.
    Order Granting Certification Oct. 31, 2007.
    Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellee.
    Before COPE and LAGOA, JJ., and FLETCHER, Senior Judge.
   FLETCHER, J.

The State of Florida seeks to reverse the sentence imposed on Glenn Smith Mu-lus, and to remand for imposition of a three-year minimum mandatory prison sentence for possession of a firearm. We affirm.

Mulus was charged by information with possession of a firearm by a convicted felon, possession of cannabis, and possession of cocaine. He stipulated to a prima facie case and pled guilty. During the sentencing hearing, the lower court offered the defendant a 366-day sentence over the State’s objection. The State argued that the trial court was required to impose a three-year minimum mandatory sentence for possession of a firearm. The lower court, however, stated that it would not impose the three year minimum mandatory sentence because the defendant was “detained for a traffic offense, playing loud music, ... and his tag wasn’t too good.” The State has appealed and seeks imposition of the three-year minimum mandatory sentence pursuant to section 775.087(2)(a)(1)r., Florida Statutes (2005).

It was noted in the State’s Reply Brief that “[W]hen the police officer spoke to the defendant [after pulling him over], the officer noticed a firearm wedged between the defendant’s seat and the center console in plain view.” Mulus was thus charged with possession of a weapon by a felon under section 790.23, Florida Statutes (2005). That statute provides that a convicted felon may not own or have in his “care, custody, possession, or control,” any firearm. The courts have interpreted this statute to mean that possession can be actual or constructive. See Wilcox v. State, 522 So.2d 1062 (Fla. 3d DCA 1988). Neither party here disputes that Mulus satisfied this statute’s requisites for constructive possession of a weapon.

The difficulty arose when the state asked the trial court to apply section 775.087(2)(a)(1)r., Florida Statutes (2005), which provides that a person convicted of, among other offenses, possession of a firearm by a convicted felon, must be sentenced to a three-year minimum mandatory term of imprisonment. The specific language of that statute narrows the definition of possession when it states,

Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for ... possession of a firearm by a felon and during the commission of the offense, such person actually possessed a “firearm” ... shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted for ... possession of a firearm by a felon, ... shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a “firearm” or “destructive device” during the commission of the offense.
[emphasis supplied]

and

(4) for purposes of imposition of minimum mandatory sentencing provisions of this section, with respect to a firearm, the term “possession” is defined as carrying it on the person. Possession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense, if proven beyond a reasonable doubt.

First, the offense with which Mulus was charged, possession of a firearm by a convicted felon, is a possessory, not an active “commission” crime, and thus the penalty for possession of a firearm “during the commission of the offense” does not apply. Second, the minimum mandatory sentence applies only to cases of actual, not constructive, possession. See Banks v. State, 949 So.2d 353 (Fla. 4th DCA 2007)(to impose a three-year minimum mandatory sentence, the fact finder must make a specific finding of actual possession); Dawkins v. State, 923 So.2d 520 (Fla. 2d DCA 2005)(mandatory term may not be imposed unless the defendant was in actual possession of the firearm at the time of the offense); State v. Register, 846 So.2d 1198 (Fla. 2d DCA 2003)(a felon convicted of possession of a firearm must be sentenced to a three-year minimum mandatory term, but this enhancement applies only in cases of actual, not constructive, possession); Bundrage v. State, 814 So.2d 1133 (Fla. 2d DCA 2002) (there must be express finding of actual possession to enhance the sentence); Johnson v. State, 855 So.2d 218, 222 (Fla. 5th DCA 2003)(actual possession for the purposes of sentence enhancement means “carried on his person.”). The definition in subsection (4) is not applicable to the merely possessory offense charged here, as again, “intent to use ... during the commission” of an offense must be proven beyond a reasonable doubt. § 775.087(4), Fla. Stat. (2005).

The charge was for an offense of possession. The record does not show that Mu-lus actually possessed the firearm, and the court did not make any finding of actual possession. The State did not charge Mu-lus with actual possession, nor did it establish a factual basis for actual possession or constructive possession with intent to commit an offense. The three-year minimum mandatory enhancement pursuant to section 775.087(2)(a)(l)r., Florida Statutes (2005) is not applicable to these facts, and we must affirm.

Affirmed.

On Motion for Certification

PER CURIAM.

We certify that we have passed on the following question of great public importance:

WHETHER THE SOLE METHOD FOR IMPOSING A THREE-YEAR MANDATORY MINIMUM SENTENCE FOR POSSESSION OF A FIREARM BY A CONVICTED FELON IS TO ESTABLISH THAT THE DEFENDANT CARRIED THE FIREARM “ON THE PERSON” AS PROVIDED BY SUBSECTION 775.087(4), FLORIDA STATUTES (2005)?

We also certify direct conflict with Cook v. State, 816 So.2d 267 (Fla. 1st DCA 2002).

Certification granted.


author: WELLS, Judge.

text:
    PARROT JUNGLE AND GARDENS LIMITED, INC., d/b/a Parrot Jungle Island; Parrot Jungle and Gardens of Watson Island, Inc., d/b/a Parrot Jungle Island; PJG Watson, LLC., d/b/a Parrot Jungle Island; and PJ Birds, Inc., d/b/a Parrot Jungle Island, Appellants, v. UNIQUE SURFACING, LLC, a Michigan limited liability company and Contract Connection, Inc., a Florida corporation, Appellees. Unique Surfacing, LLC, a Michigan limited liability company, Appellant, v. Troy Andrews, a minor, by and through his parents, Miranda Andrews and John Andrews, and Miranda Andrews and John Andrews, individually; and Parrot Jungle and Gardens Limited, Inc., d/b/a Parrot Jungle Island; Parrot Jungle and Gardens of Watson Island, Inc., d/b/a Parrot Jungle Island; PJG Watson, LLC., d/b/a Parrot Jungle Island; and PJ Birds, Inc., d/b/a Parrot Jungle Island, Appellees.
    Nos. 3D06-3073, 3D07-1620.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.
    Rehearing and Rehearing En Banc Denied Nov. 21, 2007.

      Hoffman & Morris and Cara C. Morris, North Palm Beach, for appellants Parrot Jungle Gardens, et al.
    George, Hartz and Esther E. Galicia, Miami, for appellee, Unique Surfacing, LLC.
    George, Hartz and Charles M-P George, Scott R. McNary and Sharon R. Ellis, Coral Gables, for appellant Unique Surfacing.
    Lawrence & Daniels and Adam Lawrence, Miami, and Stephen L. Malove, for appellees, Troy Andrews et. al.; Hoffman & Morris and Cara C. Morris, North Palm Beach, for appellees, Parrot Jungle Gardens, et. al.
    Before GREEN, WELLS, and SUAREZ, JJ.
   WELLS, Judge.

In these consolidated appeals, Unique Surfacing, LLC, the subcontractor that installed the safety surface below a set of monkey-bars from which a child fell and sustained injuries, appeals from an order granting a Florida Rule of Civil Procedure 1.540 motion vacating a final judgment in its favor. The owners of the property on which the monkey-bars were located appeal from an order that was predicated on the now vacated final summary judgment and which dismissed with prejudice their third party complaint against Unique Surfacing. Because we find no abuse of discretion in the trial court’s decision to vacate the judgment in Unique Surfacing’s favor, we affirm that order and reverse the dismissal order predicated on the now vacated judgment.

The plaintiff in this action is a child allegedly injured when he fell from a set of monkey-bars at Parrot Jungle Island’s playground and landed on the soft poured-in-place (PIP) ground surface below the bars. He and his parents have sued the owners of the property, Parrot Jungle Island and its related entities (referred to collectively herein as “Parrot Jungle”); the distributor/dealer of the monkey-bars, Contract Connection Inc.; the subcontractor hired by Contract Connection to install the PIP safety surface underneath the monkey-bars, Unique Surfacing LLC; and the general contractor on the project, The Tower Group Inc. The plaintiffs alleged, in particular, that the child was injured because the monkey-bars were too high and located atop “a ground surface area which was unsuitably hard and otherwise unfit” for its purpose.

Contract Connection moved for summary judgment based upon Slavin v. Kay, 108 So.2d 462 (Fla.1958), arguing that because the defect alleged was patent (that is, not concealed) it was released from liability once Parrot Jungle accepted its work. The trial court accepted this argument and granted the motion. Based on this ruling in Contract Connection’s favor, Unique Surfacing moved for summary judgment arguing that “[ijnasmuch. as UNIQUE SURFACING, L.L.C. occupies the exact same position as CONTRACT CONNECTION, INC., UNIQUE SURFACING, L.L.C. is entitled to summary judgment as a matter of law.” This motion also was granted.

Parrot Jungle thereafter appealed the summary judgment in Contract Connection’s favor but did not timely appeal the summary judgment in Unique Surfacing’s favor. While the appeal from the summary judgment in Contract Connection’s favor was pending, Parrot Jungle filed a third party complaint against Unique Surfacing for breach of contract, breach of implied warranty, and indemnification. Unique Surfacing moved to dismiss arguing that the prior unappealed summary judgment in its favor precluded assessment of liability against it. The motion was granted and Parrot Jungle filed the instant appeal.

While this appeal from the order of dismissal was pending, this court reversed the summary judgment in Contract Connection’s favor, which summary judgment formed the sole support for the summary judgment in Unique Surfacing’s favor. See Parrot Jungle & Gardens Ltd., Inc. v. Andrews, 959 So.2d 303 (Fla. 3d DCA 2007). Plaintiffs then filed a rule 1.540 motion to vacate the summary judgment in Unique Surfacing’s favor because the sole ground on which that judgment was predicated (the summary judgment in Contract Connection’s favor) had been reversed by this court. The motion was granted. Unique Surfacing has now appealed from the order granting the rule 1.540 motion and we have consolidated the appeal from this order with Parrot Jungle’s appeal from the order dismissing their claims against Unique Surfacing, claims which were predicated on the now vacated judgment in Unique Surfacing’s favor.

In light of our reversal of the judgment in Contract Connection’s favor and our rejection of the notion that the defects claimed were patent and thereby barring recovery, we agree that the judgment in Unique Surfacing’s favor (based on the same theory and judgment) was properly set aside. See Fla. R. Civ. P. 1.540(b)(5); Perlow v. Berg-Perlow, 943 So.2d 878, 880 (Fla. 4th DCA 2006) (stating that “[a] trial judge’s decision whether to grant a motion brought pursuant to Florida Rule of Civil Procedure 1.540(b)(5) is reviewed for abuse of discretion”); Austin v. B.J. Apparel Corp., 523 So.2d 675, 677 (Fla. 3d DCA 1988) (applying rule 1.540(b)(5) where a bankruptcy court judgment upon which the circuit court had based its judgments was later reversed); Behar v. Jefferson Nat’l Bank at Sunny Isles, 519 So.2d 641, 644 (Fla. 3d DCA 1987) (finding that the appellant who had a default judgment entered against him for failure to answer a complaint could seek relief under rule 1.540(b)(5) should his co-defendants prevail on the merits of common claims). Because the order dismissing the third party complaint was based on the vacated judgment in Unique Surfacing’s favor, we also agree that that order must be reversed.

The order granting the plaintiffs’ rule 1.540 motion and setting aside the judgment in Unique Surfacing’s favor is, therefore, affirmed. Because the sole support for dismissal of the third party complaint against Unique Surfacing has been vacated, we reverse the order dismissing that complaint.

      . The third party complaint also raised claims against Contract Connection.


author: PER CURIAM.

text:
    AEQUICAP INSURANCE COMPANY f/k/a Transportation Casualty Insurance Company, Appellant, v. BULK EXPRESS TRANSPORT, INC., a Florida corporation, and Jorge Carreno, Appellees.
    No. 3D06-812.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.
    Gordon Hargrove James, P.A., and Mark R. Boyd, and Dana J. McElroy, Fort Lauderdale, for appellant.
    Jorden Burt, L.L.P., and Richard J. Ov-elmen, and Enrique D. Arana, Miami, and Mitchell D. Sprengelmeyer, for appellees.
    Before GERSTEN, C.J., and SHEPHERD and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Discover Prop. & Cas. Ins. Co. v. Beach Cars of W. Palm, Inc., 929 So.2d 729 (Fla. 4th DCA 2006).


author: PER CURIAM. SHEPHERD, J.,

text:
    WESTSHIP WORLD YACHTS, LLC, Appellant, v. REEL DEAL YACHTS, INC., Appellee.
    No. 3D05-735.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 2007.
    Rehearing Denied Nov. 21, 2007.

      Fowler White Boggs Banker and Ceci Culpepper Berman and D. Finn Pressly, Tampa, for appellant.
    Zarco Einhorn Salkowski & Brito and Robert Zarco and Michelle M. Odio, Miami, for appellee.
    Before SHEPHERD, J., and SCHWARTZ and FLETCHER, Senior Judges.
   PER CURIAM.

The judgment entered below on a jury verdict in favor of the plaintiff-appellee-yacht broker Reel Deal Yachts, Inc., for a commission on the sale of a vessel built and owned by the defendant-appellant Westship World Yachts, LLC, is reversed with directions to enter judgment for the appellant. This holding is based on the conclusion that, viewing the record in the required light most favorable to the verdict winner, there is no evidence that the efforts of the appellee or anyone acting on its behalf were a procuring cause of the sale, which would clearly have taken place as a result of direct contact between the principals regardless of any of the conduct upon which Reel Deal relies. See Siegel v. Landquest, Inc., 761 So.2d 415 (Fla. 5th DCA 2000), review denied, 780 So.2d 914 (Fla.2001); Earnest & Stewart, Inc. v. Codim, 732 So.2d 364, 365-66 (Fla. 3d DCA 1999); Stadler Commercial Real Estate Servs., Inc. v. Indus. Waste Servs., Inc., 519 So.2d 739 (Fla. 3d DCA 1988); Kotler v. Morris Kroop, Inc., 354 So.2d 110 (Fla. 3d DCA 1978), cert. denied, 359 So.2d 1217 (Fla.1978); Dixson v. Kattel, 311 So.2d 827 (Fla. 3d DCA 1975).

Reversed and remanded.

SCHWARTZ and FLETCHER, Senior Judges, concur.

SHEPHERD, J.,

dissenting.

The question presented to the jury was whether or not a local yacht broker, Reel Deal Yachts, Inc., was the procuring cause of the sale of a high-end luxury yacht manufactured by Westship World Yachts, LLC, to Searay Holdings, Inc. Acknowledging the high standard the appellants were required to meet, Tenny v. Allen, 858 So.2d 1192, 1195 (Fla. 5th DCA 2003) (“A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict- for the non-moving party.”), the majority concludes there was no evidence from which the jury could have reached a verdict for Reel Deal in this case. I respectfully disagree. A brief narrative of the evidence presented at the trial is necessary to explain my conclusion.

THE TRIAL

This case arises out of the August 2002 purchase by Ramon Baez of a 103" West-ship custom yacht in the name of his company, Searay. According to the record of the trial, Reel Deal broker and owner, Marcos Morjain, conceived the idea of selling the yacht to Baez just six months earlier, in February 2002, as he was completing the sale of a sister ship to Juan Bellaparte. Bellaparte is Baez’s Mend.

Morjain initiated the execution of his idea by contacting longtime Baez attaché, Luis Matos. Although the relationship between Baez and Matos spans many years, their precise relationship is murky, and was a central focus of the trial. Morjain met Baez and Matos ten years earlier when the two of them walked into Reel Deal’s Dinner Key yacht brokerage office. It was a profitable encounter for Morjain. Baez decided to purchase a yacht through Reel Deal. After deciding on the purchase, Baez left for his home country, the Dominican Republic, leaving Matos behind to consummate the sale and delivery of the yacht to him there. Morjain testified he understood Matos to be Baez’s agent for the purchase and delivery of that yacht. From that time to this, Matos twice called Morjain to try to sell two other yachts owned by Baez. Morjain was unsuccessful in those endeavors.

In response to Morjain’s inquiry, Matos told Morjain that Morjain could meet both him and Baez in Fort Lauderdale on March 28, 2002, at lunchtime, to introduce the yacht to Baez. In anticipation of that meeting, Morjain obtained an information packet on the yacht and registered himself with Westship as the broker for “Ricardo Baez.”

On March 28, Morjain showed up in Fort Lauderdale and met Baez, who was accompanied by a female friend, Matos, and Kevin McCarthy, a rival broker who worked for Allied Richard Bertram Marine Group. McCarthy had been Baez’s primary — but not exclusive — broker for a number of prior yacht purchases. According to Morjain’s own testimony, Morjain approached Baez and attempted to hand him the packet regarding the available yacht. Baez directed Morjain to give the packet to Matos instead. As Morjain explained:

I offered to give the package to Mr. Baez. I told him, [hjere’s the information on the boat he wanted. He told me give it to Mr. Matos, that he’ll take care of it, and then we’ll get back to you.

Morjain further testified that after this encounter, he made several phone calls to Matos “trying to make the sales pitch.” He also sought and received permission from his former client, Bellaparte, for Baez to tour the sister ship at a May 28-29 fishing tournament in the Dominican Republic, where the Bellaparte yacht would be fishing. Morjain told Matos this news and flew to the Dominican Republic with the intent of showing the sister ship to Baez and pursuing the sale. Baez toured the ship before Morjain arrived.

Although neither Baez nor Matos testified at the trial, it was apparent from the testimony that one of Baez’s chief concerns about purchasing a 103" Westship was its “ability to fish.” As it turned out, Baez spent a considerable amount of time during the tournament circling the Bellaparte yacht on his own fishing yacht, observing the Bellaparte yacht fish. The Bellaparte yacht performed exceedingly well, landing five or six Marlin. According to Morjain, “it was the talk of the tournament.”

At a cocktail party on one of those evenings, Morjain pursued Baez and engaged him in conversation about his interest in the vessel. Baez replied he was “very excited [by the sister ship’s performance as a fishing vessel] and, you know, to get— he’s going to get with Mr. Matos and get back with me.” Morjain again contacted Westship and registered himself as a broker for the sale of the yacht, this time correctly representing his potential client as “Ramon Baez.”

The next day, Morjain received a phone call from Matos, stating:

Mr. Baez wanted to know how he can change the engines on this boat, how much it would cost, how long it would take. And if they can take — modify the crow’s nest, the part on the top of the boat, and put a tower on the boat. He wanted to know how long it would take to do that.

Morjain called Westship in an effort to make the changes.

Meanwhile, Baez contacted McCarthy— arguably for the first time — regarding the sale of the vessel and, on June 6, 2002, just days after the remarkable performance of the Bellaparte yacht at the Dominican fishing tournament, registered himself with Westship as the broker for both Baez and Searay for the proposed purchase. Events then moved rapidly. By June 10, 2002, McCarthy and Jorge Castro, designated by then as Baez’s owner representative, examined the vessel at Westship’s Tampa manufacturing yard and reported back to Baez. Within the week, Baez, in the company of McCarthy, Castro, and Baez’s wife, viewed the yacht. By June 14,' Baez put down $2,000,000 toward the $7,200,000 purchase price of the yacht, and executed a non-binding letter of intent to purchase the yacht in the name of Searay. In that document, Baez represented “[that] Kevin McCarthy of The Allied Marine Group [w]as his broker” and that there were “no other brokers [fin connection with this transaction.” Baez also agreed to indemnify Westship in the event of a dispute over the brokerage commission. On this basis, the deal closed, West-ship paid the bulk of the commission to McCarthy, and by August 2002 — sixty days after McCarthy became involved— the Bellaparte sister ship was docked in the Dominican Republic for Baez’s sport.

ANALYSIS

Charged with this evidence, the jury had to decide whether Reel Deal was the “procuring cause” of the sale. The jury said, “Yes.” The majority says, “No.” The majority finds that “the sale [of the yacht] ... would clearly have taken place as a result of direct contact between the principals” — presumably Baez and McCarthy— “regardless of the conduct upon which Reel Deal relies.” That is a deducible view of the evidence presented. Yet, the majority decision ignores the quite deducible alternative that after the successful showing by the Bellaparte yacht at the fishing tournament, Baez elected to call his friend and lunch buddy, Kevin McCarthy, to consummate the purchase. In fact, there was evidence from which the jury logically could have concluded that, faced with competing brokerage registrations and the need or desire to sell a multimillion dollar product, Westship decided to sell to Baez in the face of a potential commission dispute in the comfort of Baez’s brokerage representation and indemnity. I do not vouch for this rendering, but simply offer it secure in the knowledge that our role as a reviewing court is to evaluate the testimony and inferences that may reasonably be drawn therefrom “in a light most favorable to the non-moving party.” Hancock v. Schorr, 941 So.2d 409, 412 (Fla. 4th DCA 2006). I find some evidence on which the jury could have reached its decision. For me, this is the end of the inquiry. See Tenny, 858 So.2d at 1195.

On this point, it is important to recognize that the commission seeker is not required to have actually consummated the sale. Rather, the seeker is required only to have been “involved in the continuing negotiations,” which ultimately result in the sale. See Siegel v. Landquest, Inc., 761 So.2d 415, 417 (Fla. 5th DCA 2000) (holding that for a broker to be entitled to a commission as the “procuring cause” of a sale under Florida law, the broker must prove not only that he brought the parties together, but also that he was “involved in the continuing negotiations between the seller and the buyer [unless] the seller and buyer intentionally exclude the broker from the negotiations.”). This distinction is important, especially in this case, where there exists a plausible view of the evidence that when the enthusiasm to purchase ultimately engulfed Baez during the May 28-29 fishing tournament in the Dominican Republic, Baez elected to jettison Morjain — the person with whom he worked for months through Matos — in favor of his regular broker, Kevin McCarthy.

This view of the evidence rests, of course, on the resolution favorable to Reel Deal of the subsidiary issue that there exists sufficient evidence in the record to support a jury decision that Luis Matos was the apparent agent of Ramon Baez for the purchase of the yacht. This point was hotly contested at trial. Westship forcefully argued to the jury, and argues here, that Matos was unauthorized to act on Baez’s behalf. However, even if an agent’s act is unauthorized, the principal still can be held liable if the principal has imbued the agent with apparent authority to do the act, and that authority was reasonably relied upon by a third-party. Benson v. Seestrom, 409 So.2d 172, 173 (Fla. 2d DCA 1982) (“A principal is responsible for the acts of his agent. Even where an agent’s act is unauthorized, the principal is liable if the agent had the apparent authority to do the act and that apparent authority was reasonably relied upon by the third party dealing with the agent.”).

In this case, there is sufficient evidence by which the jury could reach the conclusion that Baez had imbued Matos with apparent authority to represent him in the purchase. Amongst the evidence adduced at trial was evidence that Baez previously had deputized Matos to consummate a yacht purchase through Morjain. While the facts of a transaction a decade prior ordinarily would lend little support to a Reel Deal commission claim ten years later, see Restatement (Second) of Agency, § 125 cmt. B (1958), Reel Deal’s apparent agency argument in this case is fortified by the undisputed evidence that Matos called Morjain twice more during the intervening years in attempts to procure Morjain’s services in selling Baez-owned yachts. At no time during or after these conversations did Baez ever advise Morjain that Matos was not authorized to act on behalf of Baez. In addition, there is evidence from which the jury could conclude that Baez, as principal, took action relating to the potential purchase in this case in response to actions orchestrated by Matos, including showing up for a tour of the Bellaparte sister ship within a matter of days after Morjain arranged with Bellaparte for the tour. Finally, of course, there were direct personal encounters between Baez and Morjain.

While I might well have argued for a different view of the evidence had I sat on the jury, in the limited role assigned to me, I cannot conclude here that there was “no evidence” to support the verdict.

I would affirm the jury verdict in this case.

      . For this purpose, we assume arguendo that the items of evidence objected to by appellant were properly admitted. But see Standley v. White, 326 So.2d 68, 69 (Fla. 1st DCA 1976)("Agency may not be proved by a declaration of the putative agent in the absence of the principal.”); Aerovias Panama, S.A. v. Air Carrier Engine Serv., Inc., 195 So.2d 230, 231 (Fla. 3d DCA 1967)(same); but cf. Blunt v. Tripp Scott, P.A., 962 So.2d 987, 989 (Fla. 4th DCA 2007) ("reliance of a third party on the apparent authority of a principal’s agent must ... rest in the actions of or appearances created by the principal, see Rushing v. Garrett, 375 So.2d 903, 906 (Fla. 1st DCA 1979), and ‘not by agents who often ingeniously create an appearance of authority by their own acts[]’ Taco Bell of California v. Zappone, 324 So.2d 121, 124 (Fla. 2d DCA 1975)[]” (quoting Lensa Corp. v. Poinciana Gardens Ass’n, 765 So.2d 296, 298 (Fla. 4th DCA 2000))); Spence, Payne, Masington & Grossman, P.A. v. Philip M. Gerson, P.A., 483 So.2d 775 (Fla. 3d DCA 1986)(same), review denied, 492 So.2d 1334 (Fla.1986).

      . As done by the majority, see supra p. 355, n. 1, I assume, arguendo, that certain disputed items of evidence were properly admitted.

      . Morjain testified the mistaken first name was a secretarial error he missed when he signed the registration.

      . McCarthy's registration post-dated both Moijain’s first and second registrations. Although it is customary in the industry for yacht brokers to register themselves with the manufacturer to protect their commissions, it is not customary to obtain a purchaser's signature to definitively identify the broker. In this case, Westship advised Morjain and McCarthy of the dueling registrations within days of their receipt by Westship, and asked them to resolve any issues among themselves. They obviously did not.


author: SUAREZ, J.

text:
    The STATE of Florida, Appellant, v. Thomas M. OVERTON, Appellee.
    No. 3D07-85.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2007.
    Rehearing Denied Nov. 21, 2007.

      Bill McCollum, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellant.
    Thomas M. Overton, in proper person.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   SUAREZ, J.

The State appeals from a final order of the Sixteenth Judicial Circuit vacating a prior order dismissing Thomas M. Over-ton’s motion for post-conviction relief filed in that circuit. We affirm.

In October of 1996, in the Sixteenth Judicial Circuit of Florida, Overton was charged with armed burglary of a dwelling, possession of burglary tools, carrying a concealed firearm and possession of a firearm by a convicted felon. Pursuant to Overton’s motion for change of venue, the cause was removed to the Nineteenth Judicial Circuit. The trial judge from the Sixteenth Judicial Circuit, Judge Mark H. Jones, was appointed by the Florida Supreme Court as a temporary judge of the Nineteenth Judicial Circuit to hear the case, and the Assistant State Attorney for the Sixteenth Judicial Circuit was also appointed to the Nineteenth Judicial Circuit for the purpose of prosecuting the case. The case was tried in Indian River County, and on February 22, 2001, the defendant was convicted of the charges. He was sentenced as a habitual felony offender to life in prison. His conviction was affirmed on appeal. See Overton v. State, 837 So.2d 992 (Fla. 4th DCA 2003).

On March 14, 2005, Overton filed a motion for post-conviction relief in the Sixteenth Judicial Circuit. Judge Jones dismissed the motion on the ground that it was untimely because the amended mandate from the direct appeal had issued on February 14, 2003, more than two years prior to the defendant’s filing of his motion for post-conviction relief. See Fla. R.Crim. P. 3.850(b). The defendant appealed, and this Court affirmed. See Overton v. State, 928 So.2d 353 (Fla. 3d DCA 2006). The mandate in that appeal issued on May 5, 2006. On November 3, 2006, the defendant filed a petition for a writ of habeas corpus in the Sixteenth Judicial Circuit. He alleged that Judge Jones, sitting in the Sixteenth Judicial Circuit, was without jurisdiction to rule on the merits of his March 14, 2005 motion for post-conviction relief filed in that circuit because the case had been tried in the Nineteenth Judicial Circuit. Judge Jones agreed and entered an order vacating his prior order dismissing defendant’s motion for post-conviction relief and transferred the defendant’s post-conviction motion to the Nineteenth Judicial Circuit. The State filed this timely appeal.

The State contends on appeal that the Sixteenth Judicial Circuit lacked jurisdiction to vacate its order dismissing Over-ton’s motion for post-conviction relief. The State argues that Overton’s appeal from that order had been affirmed and that the mandate issued prior to the defendant’s petition for writ of habeas corpus. See Overton v. State, 928 So.2d at 353. The State argues that once the mandate was issued, the trial court lost jurisdiction to vacate its order. See, e.g., Lesperance v. Lesperance, 257 So.2d 66 (Fla. 3d DCA 1971) (trial court has no authority or jurisdiction to entertain motion to vacate its judgment already affirmed on appeal without permission from appellate court). In 1977, the Florida Supreme Court eliminated the requirement that a litigant seek the permission of the appellate court before filing a motion for relief from judgment in the trial court, where the appellate court had previously affirmed the judgment. Ohio Cas. Group v. Parrish, 350 So.2d 466, 467-70 (Fla.1977). In so holding, the court disapproved the portions of Lesperance and State ex rel. Central & Southern Fla. Flood Control District v. Anderson, 157 So.2d 140 (Fla. 3d DCA 1963), relied on by the State. See Weitzman v. F.I.F. Consultants, Inc., 468 So.2d 1085, 1086 n. 2 (Fla. 3d DCA 1985).

The requirement of appellate permission was retained in criminal cases involving petitions for writ error coram nobis. However, that line of authority is obsolete because matters formerly governed by co-ram nobis are now included within Rule 3.850 — and the appellate permission requirement does not apply to Rule 3.850. See Jones v. State, 591 So.2d 911, 915-17 (Fla.1991); Richardson v. State, 546 So.2d 1037, 1039 (Fla.1989); Tafero v. State, 406 So.2d 89, 91 n. 6 (Fla. 3d DCA 1981), superseded on other grounds, by Wood v. State, 750 So.2d 592, 594-97 (Fla.1999); see also Brantley v. State, 912 So.2d 342, 343 (Fla. 3d DCA 2005).

The State has not cited a case in which the appellate permission requirement has been applied in the context of a. petition for writ of habeas corpus, and we decline to impose one. Indeed, writs of habeas corpus are addressed in Rule 3.850(h), and if no requirement for appellate permission exists for Rule 3.850, then logically none exists for petitions for writ of habeas corpus. Alternatively, the State contends that, even if the Sixteenth Circuit court had jurisdiction to entertain the petition for writ of habeas corpus, it erred in granting the writ and vacating its prior order because no error was demonstrated, as the motion had been filed more than two years after the mandate issued from the direct appeal.

Overton alleges in his petition for writ of habeas corpus that the Sixteenth Judicial Circuit was without jurisdiction to rule on his motion for post-conviction relief in the first place because Overton was actually tried in the Nineteenth Judicial Circuit, and that his post-conviction petition raised trial issues including allegations of ineffective assistance of counsel. He also contends that, although his post-conviction motion may have been filed more than two years from the date the mandate had issued in the direct appeal from conviction, the proper jurisdiction to make that determination was the Nineteenth Judicial Circuit.

We agree. As an initial matter, this Court has jurisdiction to entertain the present appeal from the Sixteenth Circuit’s grant of the defendant’s petition for habeas corpus, as it was entered in the form of an order vacating a prior dismissal of a motion for post-conviction relief. We find that the Sixteenth Circuit had the authority to entertain Overton’s habeas petition and to vacate its own underlying order even though the related mandate had issued, because the Sixteenth Circuit had no subject matter jurisdiction to rule on the merits of Overton’s post-conviction motion from the outset. See Wasley v. State, 254 So.2d 243, 245 (Fla. 4th DCA 1971) (holding that an order denying a motion for post-conviction relief was a nullity because it was issued by circuit court which had no jurisdiction). Judge Jones correctly recognized the absence of jurisdiction and correctly set aside the earlier order. See id. Overton’s post-conviction motion must be transferred to the Nineteenth Judicial Circuit for a ruling. See id. Overton’s motion can be considered either by a judge of the Nineteenth Circuit or by Judge Jones if the Chief Justice enters an order temporarily assigning him to duty as a judge of the Nineteenth Circuit. See id.

We distinguish the other cases relied upon by the State as we find in this case that the Sixteenth Circuit court had no jurisdiction to entertain the initial March 2005 motion for post-conviction relief.

Affirmed.

      . As the Florida Supreme Court has explained in Scott v. Dugger, 604 So.2d 465, 468 (Fla.1992):
      Traditionally, a defendant seeking relief on the basis of evidence discovered after his conviction has been affirmed on appeal was required to apply to the appellate court for leave to petition the trial court for a writ of error coram nobis. Hallman v. State, 371 So.2d 482 (Fla.1979), abrogated on other grounds, Jones v. State, 591 So.2d 911 (Fla.1991). However, rule 3.850 has supplanted the writ of error coram nobis, and newly discovered evidence claims are now brought under rule 3.850. Richardson v. State, 546 So.2d 1037 (Fla.1989).

      . The issue on appeal from the dismissal of the motion for post-conviction relief was the timeliness of the motion. Whether there was a jurisdictional defect in the filing of the motion for post-conviction relief is a separate issue apart from whether the motion for post-conviction relief was timely filed. These are two distinct legal issues that could have been determined concurrently by both the trial court and the appellate court. See White v. State, 855 So.2d 723 (Fla. 3d DCA 2003). Moreover, a mandate ends the jurisdiction of the appellate court and returns full jurisdiction to the trial court. See State v. Miyasato, 805 So.2d 818 (Fla. 2d DCA 2001).


text:
    William HALE, Appellant, v. James R. McDONOUGH, Secretary of the Florida Department of Corrections, Appellee.
    No. 3D07-157.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2007.
    Rehearing Denied Nov. 21, 2007.

      William Hale, in proper person.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, for appellee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We adopt the lower court’s opinion and decision dismissing the appellant’s application for mandamus:

FINDINGS OF FACT
Hale [is] a prisoner within the Florida Department of Corrections (“FDOC”) seeking to restate [sic] withheld and/or forfeited gain time which resulted from disciplinary actions by FDOC. Hale’s original Petition challenges disciplinary report number 401-051651 written on November 16, 2005. Hale was found guilty of the charge at a disciplinary hearing held on November 23, 2005. Hale has exhausted his administrative remedies as required. Hale filed a formal grievance with the warden which was denied on December 23, 2005. Hale then filed an appeal with the Secretary of the Florida Department of Corrections (“Secretary”), which was dismissed as time barred on [January 23], 2006.
Hale’s first supplemental Petition challenges disciplinary report number 401-051732 written on December 9, 2005. Hale was found guilty of the charge at a disciplinary hearing held on December 13, 2005. Hale has exhausted his administrative remedies as required. Hale filed a formal grievance with the warden which was denied on December 27, 2005. Hale then filed an appeal with the Secretary which was denied on February 14, 2006.
Hale’s second supplemental Petition challenges disciplinary report number 401-051733 written on December 9, 2005. Hale was found guilty of the charge at a disciplinary hearing held on December 15, 2005. Hale has exhausted his administrative remedies as required. Hale filed a formal grievance with the warden which was denied on December 27, 2005. Hale then filed an appeal with the Secretary which was denied on February 14, 2006.
. Each of Hale’s Petitions was received and file-stamped by the Clerk of this Court on April 21, 2006. In addition to the Petitions, Hale also filed [a Notice to the Court,] a Notice to the Court of Reasons for Untimely Filing of [the 2 Supplements] (“Notice”), and a Motion to Proceed Without [Pre]payment of Fees [and Affidavit] (“Motion”) each of which also was file-stamped as received on April 21, 2006.
APPLICABLE LAW AND CONCLUSIONS
Florida Statute § 95.11(8) governs when an action challenging a correctional institution’s disciplinary proceedings against an inmate must be filed and states:
Any court action challenging prisoner disciplinary proceedings conducted by the Department of Corrections pursuant to s. 944.28(2) must be commenced within 30 days after final disposition of the prisoner disciplinary proceedings through the administrative grievance process under chapter 33, Florida Administrative Code. Any action challenging prisoner disciplinary proceedings shall be barred by the court unless it is commenced within the time period provided by this section.
Similarly, Florida Rule of Appellate Procedure 9.100(c)(4), requires that a petition challenging an order of the Department of Corrections entered in prisoner disciplinary proceedings shall be filed within thirty (30) days of rendition of the order to be reviewed. Pursuant to 9.020(a)(h) Fla. R.App. P., an order is deemed to be rendered when a signed, written order is filed with the clerk of the lower tribunal. See also Ortiz v. Moore, 741 So.2d 1153, 1154 (Fla. 1st DCA1999).
As provided in 33-103.007(8)(a), Florida Administrative Code, the final response of the Secretary “shall be stamped “MAILED/FILED WITH AGENCY CLERK” along with the date mailed; the response shall be mailed on the same date that it is stamped. The response is deemed filed with the agency clerk on the date that it is stamped and mailed. The time period for appeal begins to run on the date that the response is stamped and mailed.” The Secretary’s final disposition in each of these cases was rendered on [January 23, 2006, or] February 14, 2006, as evidenced by the required mailed/filed date stamps.
Hale’s thirty (30) day time for filing each of his Petitions began to run on [January 23, 2006, or] February 14, 2006. In order to be deemed timely, the Petitions must have been filed on or before [February 22, 2006, or] March 16, 2006. Each Petition was file stamped as received by the Clerk of this Court on April. 21, 2006, well beyond the time limitation for filing of the Petitions.
Since a prisoner loses control of a document after placing it in the hands of prison officials for mailing, a “mailbox rule” has been established which deems that a prisoner’s pleadings are deemed to be filed when delivered to any agent of the state for mailing. See Haag v. State, 591 So.2d 614 (Fla.1992). Further, there is a presumption that a prisoner’s pleadings containing a certificate of service showing the date it was placed in the hands of the prison officials for mailing is timely filed, if it would have been timely filed had it been received and file-stamped by the court on the date contained in the certificate of service. See Griffin v. Sistuenck, 816 So.2d 600 (Fla.2002); Thompson v. State, 761 So.2d 324 (Fla.2000); Fla. R.App. P. 9.420(a)(2).
Hale’s Petitions, Motion and Notice do not contain any type of certificate of service on which a filing date may be presumed. Hale’s original Petition contains the hand-written dates of both February 16, 2006 and April 19, 2006 on page twenty-five, however, neither date is contained in a certificate of service. The only indication when any of the pleadings were placed in the hands of the prison officials for mailing is a file-stamp contained on page two of the Motion which indicates it was received by Dade Correctional Institution on April 19, 2006. It appears from the face of the documents, since the April 19, 2006 date is both hand-written by Hale and date-stamped by the prison, that the presumed “mailbox rule” filing date is April 19, 2006. This date is well outside the jurisdictional thirty (30) day time limitation provided for by both Florida Statutes and the Florida Rules of Appellate Procedure.
Hale acknowledges in both of his supplemental Petitions that they were not filed within the thirty (30) day filing limitation. Hale attempts to fault the prison for the untimely filing. Further, Hale’s Notice appears to seek to have this court accept his Petitions as timely filed. There is no authority for this court to extend the time for filing. The Rules of Appellate Procedure only provide for the granting of belated appeals in criminal matters. The proceeding on which Hale’s Petitions are filed are civil in nature, thus this court is without authority to grant a belated filing. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999).
The Court is without jurisdiction to consider Hale’s Petitions. The Petitions are time barred as they were filed more than thirty (30) days after the final disposition of his disciplinary proceedings to the Secretary. A proceeding that is not initiated within the applicable jurisdictional time limit is subject to dismissal. Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3d DCA 2003); International Studio Apt. Assn. v. Sun Holiday Resorts, Inc., 375 So.2d 335 (Fla. 4th DCA 1979).

Affirmed.


text:
    Jose E. LOPEZ, Appellant, v. FORD MOTOR COMPANY and Ford Midway Mall, Inc., Appellees.
    No. 3D06-592.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2007.
    Rehearing Denied Nov. 21, 2007.
    John C. Mullin Jr., Fort Lauderdale, for appellant.
    Carlton Fields and Wendy F. Lumish and Cristina Alonso, for appellees.
    Before SUAREZ and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Austin v. Liquid Distribs., Inc., 928 So.2d 521 (Fla. 3d DCA 2006); Long v. Swofford, 805 So.2d 882 (Fla. 3d DCA 2001).


text:
    The GRAND CONDOMINIUM ASSOCIATION, INC., etc., Appellant, v. Susan COHN, Appellee.
    No. 3D07-1035.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.

      Eisinger, Brown, Lewis & Frankel, P.A. and David S. Chaiet, and Jed L. Frankel, Hollywood, for appellant.
    Glazer & Associates, P.A. and Eric M. Glazer, Hallandale, for appellee.
    Before GERSTEN, C.J., and GREEN and RAMIREZ, JJ.
   PER CURIAM.

The Grand Condominium Association, Inc. appeals an ex parte injunction, enjoining amendment of the condominium’s Declaration, entered in favor of Susan Cohn. Because the ex parte injunction failed to meet the requirements of Florida Rule of Civil Procedure 1.610 and did not present irreparable harm, we reverse.

Rule 1.610 authorizes issuing a temporary injunction, without written or oral notice to the adverse party, only where “the movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.” Here, Cohn’s motion did not address the issue of notice.

In addition, the movant must show that immediate and irreparable injury, loss or damage will result if the temporary injunction is not issued. Cohn’s motion does not demonstrate such immediate and irreparable harm. See Quadomain Condo. Ass’n v. Pomerantz, 341 So.2d 1041 (Fla. 4th DCA 1977) (finding allegations of harm insufficient even after condominium association took the complained of action).

Because the trial court erred in granting the temporary injunction, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded with instructions.


author: KELLY, Judge.

text:
    Steve BYLE, Petitioner, v. PASCO COUNTY, by and through its BOARD OF COUNTY COMMISSIONERS, and Mid-Peninsula Realty Investment Group, LLC, Respondents.
    No. 2D07-1537.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2007.
    Rehearing Denied Dec. 31, 2007.

      Steve Byle, pro se.
    W. Elizabeth Blair, Senior Assistant County Attorney, New Port Richey, for Respondent Pasco County.
    Richard Millian of Tew & Associates, Clearwater, for Respondent Mid-Peninsula Realty Investment Group, LLC.
   KELLY, Judge.

Steve Byle petitioned the circuit court to review by certiorari the Pasco County Board of County Commissioners’ approval of a preliminary site plan and variance request application. The circuit court dismissed his petition for lack of standing. Byle petitions this court to review by second-tier certiorari the circuit court’s order. This court’s second-tier review is limited to determining whether the circuit court provided Byle with procedural due process and whether it departed from the essential requirements of law. See Dusseau v. Metro. Dade County Bd. of County Comm’rs, 794 So.2d 1270 (Fla.2001).

Byle argues that the circuit court did not provide him with procedural due process because a single judge rather than a three-judge panel disposed of his petition. Local Rule 1(A)(1) of the Sixth Judicial Circuit requires that appeals to the Sixth Circuit Court from designated administrative bodies of Pinellas and Pasco Counties be assigned to three-judge panels in the appellate division. Sixth Judicial Circuit Administrative Order No. 2007-016 PA/PI-CIR further clarifies that “[a]ll civil and criminal cases invoking the appellate jurisdiction of the Circuit Court pursuant to the Florida Rules of Appellate Procedure, Rule 9.030(c), including ... petitions to review administrative action ... shall be heard by three-judge panels.”

As Byle correctly notes, when a circuit court adopts a local rule requiring that petitions be heard by three-judge panels, a single judge may not decide the merits of the petition. See McAlevy v. State, 947 So.2d 525 (Fla. 4th DCA 2006); Melkonian v. Goldman, 647 So.2d 1008 (Fla. 3d DCA 1994). Because the Sixth Judicial Circuit has promulgated a rule requiring three-judge panels to decide petitions seeking review of administrative action, Byle was deprived of procedural due process when a single judge ruled on his petition. See McAlevy, 947 So.2d at 528. Accordingly, we grant the petition for certiorari and quash the order under review.

Petition for certiorari granted.

WHATLEY and SILBERMAN, JJ„ Concur.


text:
    Edward COOPER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1306.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Edward Cooper, in proper person.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before GREEN, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Edward Cooper appeals the denial of his petition for a writ of habeas corpus by the Eleventh Judicial Circuit Court in Miami-Dade County. We affirm the denial, but without prejudice to Cooper’s right to refile in the proper venue and in the proper form.

Cooper was convicted in the Seventeenth Judicial Circuit Court in Broward County. His 2002 conviction was summarily affirmed by the Fourth District Court of Appeal. Cooper v. State, 847 So.2d 482 (Fla. 4th DCA 2003).

Although the circuit court denied Cooper’s petition on the merits, the correct ruling would have been a dismissal of the petition without prejudice to Cooper’s right to re-file it in the circuit court in Broward County where the conviction occurred. Johnson v. State, 947 So.2d 1192, 1193 (Fla. 3d DCA 2007). A petition for a writ of habeas corpus addressed to the conditions of incarceration may be filed in the circuit in which a petitioning prisoner is incarcerated, but not a petition addressed to the details of a conviction and sentencing that occurred in another circuit. Id.

Cooper’s claims are also subject to Florida Rule of Criminal Procedure 3.850, such that they are governed by the applicable two-year statutory limitation.

Affirmed.


text:
    Glenn R. DEASON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1966.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Glenn R. Deason, in proper person.
    Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTEÑAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

As required by Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2007)(opinion granting clarification), the order under review summarily denying the defendant’s motion to correct an illegal sentence is reversed and remanded for attachment of the executed agreement on credit for time served, dated February 22, 2007, to a subsequent order of denial, which conclusively demonstrates the appellant’s non-entitlement to relief. See Langdon, 947 So.2d at 462 (dissenting opinion).

Reversed and remanded.


text:
    Montae BENN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2129.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Montae Benn, in proper person. Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and SHEPHERD and SUAREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Quinton ROGERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2212.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Quinton Rogers, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GREEN, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Affirmed. § 944.279, Fla. Stat. (2006); Rogers v. State, 824 So.2d 1041 (Fla. 3d DCA 2002);


text:
    Wayne TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2360.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Wayne Taylor, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, RAMIREZ, and SUAREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a), in which Wayne Taylor seeks additional credit for time served. On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that- the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

The State filed a response to the motion in the trial court, asserting that defendant-appellant Taylor is in error regarding his arrest date in one of his two cases, and that the defendant’s time calculation is in error. However, neither the State nor the court attached a copy of the jail card or other documentation to support the State’s calculation.

Because the record now before us fails to conclusively refute the defendant’s claim, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Adolfo COULSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1259.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Rehearing Denied Nov. 21, 2007.
    Adolfo Coulson, in proper person.
    Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.140(a), (b); Combs v. State, 486 So.2d 93, 96 (Fla.1983).


text:
    Carlton Paul BACON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1378.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Carlton Paul Bacon, in proper person.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Appellant was charged in a four-count Information with attempted armed robbery; second-degree felony murder, burglary with assault or battery while armed; and conspiracy to commit armed robbery. A jury found appellant guilty, and he was sentenced to twenty-five years’ imprisonment. Appellant filed this Rule 3.850 motion, alleging three claims of ineffective assistance of trial counsel. The trial court summarily denied the motion without attaching any records. If the trial court again enters an order summarily denying the post conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: SALTER, J.

text:
    CHEESE & GRILL RESTAURANT, INC., etc., Appellant, v. WACHOVIA BANK, N.A., etc., et al., Appellees.
    Nos. 3D06-2672, 3D06-1286.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Rehearing Denied Nov. 21, 2007.

      Manzini & Associates and Nicolas A. Manzini, for appellant.
    Ruden, McClosky, Smith, Schuster & Russell and John H. Pelzer, Robin F. Hazel and Matthew S. Nelles, Ft. Lauderdale, for appellees.
    Before COPE, RAMIREZ and SALTER, JJ.
   SALTER, J.

Appellant, Cheese & Grill Restaurant, Inc. (Restaurant) sued Washington Mutual Bank (WAMU) and Wachovia Bank (Wa-chovia) in separate circuit court lawsuits for checking account losses sustained in a fraud by the Restaurant’s bookkeeper. In the case against WAMU, the trial court granted WAMU’s motion for summary judgment and a final order of dismissal, and the Restaurant appealed. In the later case against Wachovia, the same trial court dismissed with prejudice the Restaurant’s complaint against Wachovia, and the Restaurant appealed. The two appeals were consolidated here under the latter case number.

We affirm each of the judgments below, finding that: (1) the conceded cause of the losses was the Restaurant’s own bookkeeper; (2) the Restaurant failed to detect and report the misapplications within the time period mandated by the applicable Florida Uniform Commercial Code provision and the agreements between the Restaurant and WAMU; and (3) as to WAMU, the Restaurant failed to establish that any genuine issue of material fact precluded summary judgment. In the case against Wachovia, that bank was merely the collecting bank and was not subject to direct claims by the Restaurant as drawer.

In a nutshell, the Restaurant never established any genuine issue of material fact that its losses were anything other than an “inside job” by the Restaurant’s own trusted bookkeeper.

I. The Fraud

The undisputed facts, as detailed in the Restaurant’s complaints and forgery affidavit, establish that the Restaurant opened an account with WAMU in 1995. Between May 14, 1999, and March 22, 2002, checks were prepared by the bookkeeper and were represented by him to be payments for the Restaurant’s payroll and sales taxes. They were signed for the maker by an authorized Restaurant signatory, not the bookkeeper. The forgery affidavit further discloses that the bookkeeper was known or suspected to have committed the theft or unauthorized use of the checks, and that “he is in charge of the accounting records, accounts payable, and payroll.” The Restaurant first became aware of the misapplications on July 10, 2002, upon hiring another accountant to perform an independent review, and that review established that the purported payroll and sales tax checks “were not applied to our account.” The forgery affidavit identified the checks used by the bookkeeper in the embezzlement scheme by check number, payment date and dollar amount. ■

II. The Complaints Against WAMU

The Restaurant filed a complaint and amended it three times before the motion for summary judgment was filed. All were unverified and told a more complicated tale than the forgery affidavit. Paragraph Six of the third- amended complaint claimed, for example, that the losses occurred as a result of WAMU’s “carelessness and/or negligence and/or lack of ordinary care and/or through the intentional participation of one or more of its agents, employees or representatives acting as confederates of other tortfeasors, third parties (Plaintiffs former bookkeeper/accountant). ...” No further specifics were provided, nor were any such specifics obtained by the Restaurant from the deposition of WAMU’s fact witness on March 13, 2006, after WAMU filed a motion for summary judgment.

WAMU’s motion for summary judgment established that monthly checking account statements were sent to the Restaurant during the periods in question, and that those statements showed the payment date, check number, and amount of each of the checks. WAMU’s motion and affidavit also authenticated the WAMU “account disclosures and regulations” applicable to the account, setting forth the Restaurant’s duties to retain control over all checks and “to promptly discover and report if any of them are missing in time to prevent misuse.” The Restaurant also agreed to review the monthly statements and to report any error, forgery, alteration, unauthorized transaction, or other problem to WAMU within thirty days. The Restaurant agreed to assert any claim relating to any such matter within six months of the mailing of the statement reflecting the problem, and the Restaurant assumed “full responsibility for monitoring and reviewing the activity of [the Restaurant’s] account and the work of [the Restaurant’s] employees, agents, and accountants ... whether or not the statements/reports contain the items bearing an unauthorized signature or alteration.”

In response to the motion for summary judgment, the Restaurant moved for leave to file a proposed, unverified fourth amended complaint that would have added Wachovia as a defendant. The Restaurant also moved to continue the summary judgment hearing (heard approximately sixty days after the motion for summary judgment was filed, and two years after the lawsuit was filed). The Restaurant did not file any counter-affidavit or otherwise raise any genuine issue of material fact, and the Restaurant’s own forgery affidavit (an attachment to the third amended complaint) actually described the details of the embezzlement by its bookkeeper.

The trial court granted partial summary judgment applicable to all but three of the checks, and the parties then stipulated to the dismissal of the claims relating to those checks so that a final judgment could be entered (and without prejudice to the reinstatement of the claims on the last three checks if the Restaurant prevailed here).

The Restaurant argues that its inability to make its case was impaired or delayed because WAMU failed to provide missing cheeks to the Restaurant until sometime in 2004. No such affidavit or verified allegation is found in the record, and the 2002 affidavit of forgery identifies the checks improperly cashed by the bookkeeper by number, date of payment and amount. The information on the back of the checks, ultimately obtained by the Restaurant, was not part of the record and therefore did not create any genuine issue of fact that would preclude summary judgment. If the information had created such an issue, the Restaurant was required to raise the issue by affidavit, specific allegation, or otherwise as provided by Florida Rule of Civil Procedure 1.510.

The WAMU-Restaurant account disclosures and regulations obligated the Restaurant to monitor its own statements, to report any unauthorized payments within thirty days, and to assert any claim based on such payments within six months. This, the Restaurant admittedly did not do. Subsection 674.406(1) of the Florida Statutes provides that a statement of account provided by a bank is sufficient if each item is described by item number, amount, and date of payment. While it is true that WAMU was obligated to provide the items themselves to the customer “in a reasonable time,” in this case the Restaurant never alleged or established how any delay in delivery of the items made WAMU responsible in any way for the embezzlement by the Restaurant’s own bookkeeper. The Restaurant’s losses are a cautionary tale underscoring the need for what accountants refer to as “internal controls” — typically requiring, at a minimum, the segregation of the check issuance and account reconciliation functions within a business.

III. The Com/plaint Against Wachovia

The Restaurant’s attempt to assert a claim against Wachovia is equally ill-fated as a matter of law. The Restaurant did not have an account at Wachovia and may not assert the rights of a maker or customer against that bank. The drawer or maker of a check (here, the Restaurant), “has no right of direct action against banks, other than drawee bank [here, WAMU], which honor a check on a forged or unauthorized endorsement.” Jett v. Lewis State Bank, 277 So.2d 37, 39 (Fla. 1st DCA 1973).

V. Conclusion

Two years before the Restaurant commenced litigation, the Restaurant’s principal signed an affidavit under oath describing the embezzlement, blaming it on the bookkeeper, and identifying the check numbers, dates, and amounts of the items involved. The Restaurant did not come forward with any counter-affidavit, interrogatory answer, deposition, or verified allegation to contradict that affidavit or the WAMU officer’s affidavit. As in so many defalcations, the bank and its computers merely processed the checks provided to them by the embezzler, and there is no indication that anyone with either bank could or should have detected the scheme. Absent extraordinary circumstances that were not established here, Florida’s Uniform Commercial Code and bank-customer agreements place the burden of reviewing statements and controlling the transmittal of signed checks upon the customer. H. Burdine-Coakley v. Capital Bank, 542 So.2d 1019 (Fla. 3d DCA 1989).

Affirmed.

      . The forgery affidavit, signed under oath by Francisco Arauz for the Restaurant on September 26, 2002, does not allege the invalidity or forgery of the maker’s signature — only an unauthorized endorsement on the back of the checks.

      . § 674.406(2), Fla. Stat. (1999).

      . Although our research does not disclose such a case in Florida, a bank failing to provide its customer with copies of items questioned by the customer might be liable if, for example, its unreasonable delay in providing the items to its customer was shown to have prejudiced or precluded a timely claim against the embezzler. There is no such allegation here.


text:
    Larry D. MULLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1068.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before RAMIREZ and SHEPHERD, JJ. and FLETCHER, Senior Judge.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of appellant Larry D. Mullins’ motion for rehearing, we grant the motion for rehearing, withdraw this Court’s July 19, 2006 opinion and substitute the following revised opinion in its stead.

Mullins appeals his sentence as illegal pursuant to Florida Rule of Criminal Procedure 3.800(a). We have jurisdiction. Fla. R.App. P. 9.140(b)(1)(D). Mullins was convicted of a single count of battery on a law enforcement officer, a third degree felony. § 784.07(2)(b), Fla. Stat. (2001) (reclassifying battery upon a law enforcement officer from a misdemeanor to a felony of the third degree). The trial court orally pronounced an enhanced sentence of fifteen years with a ten-year minimum mandatory as a violent career criminal pursuant to Section 775.084(4)(d)3, Florida Statutes (2001), as well as a concurrent ten-year sentence as a habitual violent felony offender. § 775.084(4)(b)3, Fla. Stat. (2001).

The sentencing order contains a provision for habitual felony offender and violent career criminal. However, the written sentence is unclear as to whether Mullins was only sentenced to fifteen years with a ten-year minimum mandatory pursuant to the violent career criminal enhancement to the underlying felony. Under the specification section of the violent career criminal offense, “10 years minimum mandatory” appears. Under the specification section of the habitual felony offender offense, “_” appears. This is a clear violation of Clines v. State, 912 So.2d 550 (Fla.2005), where the Florida Supreme Court stated that only one recidivist category may be applied to any given criminal sentence. The sentence as written was thus incorrect. Id. at 560.

We therefore reverse and remand to the trial court for resentencing with directions to correct the order as previously written, by deleting the habitual felony offender designation. This will make it clear that Mullins was only sentenced as a violent career criminal.

Reversed and remanded.

RAMIREZ, J. and FLETCHER, Senior Judge, concur.

SHEPHERD, J.,

concurring in part and dissenting in part.

I would deny appellant’s motion for rehearing.

Defendant was charged with and convicted of a single count of battery on a law enforcement officer. He was sentenced to fifteen years in prison. Attached to the sentencing order is a second page entitled, “Special Provisions.” The substance of this page reads:

By appropriate notation, the following provisions apply to the sentence imposed:
MANDATORY / MINIMUM PROVISIONS:
CATEGORY SPECIAL PROVISION DESCRIPTION SPECIFICATION
Felony Offender The defendant is adjudicated a habitual felony offender and has been - sentenced to an extended term in accordance with the provisions of Florida Statute 775.084(4). A minimum term as specified above must be served prior to release. The requisite findings by the court are set forth in a separate order stated on the record in open court.
Felony Offender The defendant is adjudicated a violent career criminal and has been 10 YEARS MINIMUM sentenced to an extended term in accordance with the provisions of MANDATORY Florida Statute 775.084(4). A minimum term as specified above must be served prior to release. The requisite findings by the court are set forth in a separate order or stated on the record in open court.

Mullins’ judgment and sentence were long ago affirmed by this court. Mullins v. State, 851 So.2d 907 (Fla. 3d DCA 2003).

The majority’s concern arises from the first listed “Special Provision Description,” which states, “defendant is adjudicated a habitual offender and has been sentenced to an extended term,” followed by six dashes. I cannot fathom how this designation places defendant at risk of any state mischief. I have never known the Florida Department of Corrections to utilize the power of the state to hold anyone in an incarcerative facility based upon a series of dashes. Nevertheless, with eyes apparently averted to the language of this provision, the majority worries that the sentence is “unclear.” The worry is unwarranted. Defendant is not at risk of serving time under an “illegal sentence”, nor is he entitled to any relief under Florida Rule of Criminal Procedure 3.800(a). At least three reasons compel this conclusion.

First, I believe the sentencing order under review can only be fairly read as providing a minimum mandatory term for the violent career criminal classification alone. Our original opinion notes that in its oral pronouncement, the trial court sentenced defendant to “an enhanced sentence of fifteen years with a ten-year minimum mandatory sentence as a violent career criminal pursuant to section 775.084(4)(d)3, Florida Statutes (2001), as well as a concurrent ten-year sentence as a habitual violent felony offender. § 775.084(4)(b)3, Fla. Stat. (2001).” Mullins v. State, 31 Fla. L. Weekly D1933, D1933 (Fla. 3d DCA July 19, 2006). As the majority recognizes in the opinion granting rehearing, this apparently occurred as a result of a misimpression by the trial court that defendant’s habitual felony offender classification was an independent crime, rather than an enhancement. See supra p. 377 n. 1. The written sentence recognizes and corrects this error.

Second, the adjudication and other language found in the first “Special Provision Description” poses no threat to defendant should he re-offend. Defendant does qualify as a habitual felony offender under Florida’s recidivism sentencing law. See § 775.084(l)(a), Fla. Stat. (2002). In fact, as explained in Clines v. State, 912 So.2d 550, 559 (Fla.2005), “anyone whose pattern of recidivism meets the stringent requirements for designation as a violent career criminal will also qualify for designation as a habitual felony offender.” Compare § 775.084(l)(d)(violent career criminal), Fla. Stat. (2002), with § 775.084(l)(a), Fla. Stat. (2002)(habitual felony offender). Thus, “[the] designation as a violent career criminal renders superfluous any other designation.” Clines, 912 So.2d at 559 (emphasis added). The “Special Provision Description” in which we find ourselves rapt out of concern for defendant is nothing more than a trial court statement of the obvious — and the truth at that!

Finally, an improper adjudication or classification alone is not correctable under Florida Rule of Criminal Procedure 3.800(a). Rule 3.800(a) exists for the narrow purpose of correcting illegal sentences. Judge v. State, 596 So.2d 73, 77 (Fla. 2d DCA 1991)(en banc)(“Rule 3.800(a) is intended to provide relief for a narrow category of cases in which the sentence imposes a penalty that is simply not authorized by law. It is concerned primarily with whether the terms and conditions of the punishment for a particular offense are permissible as a matter of law. It is not a vehicle designed to re-examine whether the procedure employed to impose the punishment comported with statutory law and due process.”). The classification here was not accompanied by a sentence and therefore is not reviewable under 3.800(a). See Fla. R.Crim. P. 3.700(l)(defining a sentence as “the pronouncement by the court of the penalty imposed on a defendant for the offense of which the defendant has been adjudged guilty.”); Judge, 596 So.2d at 78 (“ ‘Habitual offender’ is merely a category or classification.”). See also Clines, 912 So.2d at 553-555 (explaining the structure of section 775.084). In granting relief on rehearing to defendant in this case, the majority reads Clines too broadly. Clines deals solely with designations accompanied by sentences, and does not stand for the proposition that either a dual or improper designation alone is reversible. Rather, Clines prohibits applying more than one recidivist category in section 775.084, Florida Statutes to a single criminal sentence. Clines, 912 So.2d at 559 (“the mere existence of two mandatory categories does not evidence a legislative intent to allow multiple categories to be simultaneously applied”)(emphasis added). Simultaneous application of more than one recidivist category did not occur in this case. Moreover, even if the first listed “Special Provision Description” somehow was erroneous — an argument not advanced or advanceable by defendant on this appeal — it would not qualify for repair under Rule 3.800(a) in this case.

For these reasons, I would adhere to our original opinion. Rule 3.800(a) is not a sentencing order editing rule.

      . It appears that the trial court in its oral sentence treated Mullins’ habitual violent felony offender classification as an independent crime, rather than as an enhancement on any criminal charge, and therefore sentenced him twice for the same offense. We agree that the oral pronouncement was in error.


author: WOLF, J. WOLF, J.

text:
    LIFESOUTH COMMUNITY BLOOD CENTERS, INC., Appellant, v. Kaynan FITCHNER, as Personal Representative of the Estate of Chase Fitchner, deceased, Appellees. Kaynan Fitchner, as Personal Representative of the Estate of Chase Fitchner, deceased, Appellant, v. LifeSouth Community Blood Centers, Inc., a Florida corporation, Appellee.
    Nos. 1D06-4475, 1D06-4597.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2007.
    Order Denying Clarification and Granting Certification Dec. 26, 2007.

      Christine R. Davis of Carlton Fields, P.A., Tallahassee, and Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, for Appellant in Case No. 06-4475/Appellee in Case No. 06-4597.
    Thomas J. Guilday, Catherine B. Chapman, and J. Celeste Burns of Guilday, Tucker, Schwartz & Simpson, P.A., Tallahassee, for Florida Association of Blood Bank, Amicus Curiae for Appellant in Case No. 06-^475.
    Raymond T. Elligett, Jr. and Amy S. Farrior of Buell & Elligett, P.A., Tampa, and Dean R. LeBoeuf and Rhonda S. Bennett of Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A., Tallahassee, for Appel-lees in Case No. 06-4475/Appellants in Case No. 06-4597.
   WOLF, J.

In Case No. 1D06-4475, appellant, Life-South Community Blood Centers, Inc. (LifeSouth), raises several issues on appeal from a final judgment in favor of appellee, Kaynan Fitchner. We will address one which we find to be dispositive: Whether the trial court erred in denying appellant’s motion to dismiss for appellee’s failure to comply with the presuit notice requirements of section 766.106(2), Florida Statutes. We agree with LifeSouth on this point and reverse.

In Case No. 1D06-4597, appellant, Kay-nan Fitchner, as Personal Representative of the Estate of Chase Fitchner, deceased, challenges the trial court’s denial of the estate’s motion for attorney’s fees based on a settlement proposal.

We consolidate Case Nos. 1D06-4475 and 1D06-4597 for purposes of this opinion. In light of our disposition in Case No. 06^4475, we affirm the trial court’s decision in Case No. 06-4597 without further comment.

On April 23, 2004, plaintiffs, Ross Fitch-ner and Kaynan Fitchner, individually and as parents and legal guardians of Chase Fitchner, filed a complaint against the defendant, LifeSouth Community Blood Centers, Inc. The complaint alleged that on or about August 15, 2002, Chase, age seven, was admitted into Shands Hospital for treatment related to Faconi’s anemia. While at Shands, Chase received numerous transfusions from blood which was collected and disseminated by LifeSouth. Chase was discharged from Shands on October 7, 2002, but was readmitted on October 8, 2002, because he had been contaminated with West Nile Virus (WNV). Chase was discharged from Shands on February 14, 2003, and later died due to complications associated with WNV. The Center for Disease Control (CDC) conducted an investigation and determined that Chase was infected with WNV during one of his transfusions while at Shands.

The appellee filed an action for damages asserting that LifeSouth was negligent in the method by which they screened a donor whose blood contained WNV. Specifically, appellee asserted that' the donor was not sufficiently familiar with English and that the LifeSouth screeners could not properly conduct the pre-screening process without an interpreter.

LifeSouth filed several motions to dismiss asserting that the appellee had not complied with the presuit notice requirements of chapter 766, Florida Statutes. The trial court denied these motions finding, while blood banks are health care providers, the appellee’s complaint was not one for medical malpractice.

The issue before us is one involving statutory interpretation. That issue is whether the Legislature intended that an action based on the alleged negligent screening of blood donors by a blood bank be subject to the presuit notice requirements of section 766.106(2), Florida Statutes (2003). Our review of the trial court’s decision is de novo. Dep’t of Children & Families v. P.S., 932 So.2d 1195, 1197 (Fla. 1st DCA 2006).

Section 766.106(2), Florida Statutes, provides that, prior to filing a suit for medical negligence, a claimant shall notify each prospective defendant. Failure to follow these procedures will result in dismissal. See Goldfarb v. Urciuoli, 858 So.2d 397, 399 (Fla. 1st DCA 2003) (stating “if the required presuit notice is not given to a health care provider, the complaint is properly dismissed”). Appellee relies on Silva v. Southwest Florida Blood Bank, Inc., 601 So.2d 1184 (Fla.1992), for the proposition that no such notice was required in this case. In Silva, the supreme court determined that blood banks are not subject to the two-year statute of limitations for medical malpractice under section 95.11(4)(b), Florida Statutes (1991). The supreme court analyzed section 95.11(4)(b) by inquiring whether: 1) the action before the court arose out of a medical diagnosis, treatment, or care; and 2) whether the diagnosis, treatment, or care was rendered by a “provider of health care.” Silva, 601 So.2d at 1186. In its analysis, the supreme court decided that the words “diagnosis,” “treatment,” and “care” were unambiguous and, because the blood bank did not deal with patients, it was merely “the supplier of a product.” Id. at 1187. The supreme court referred to section 672.316(5), Florida Statutes (1981), acknowledging that the Legislature, in one context, declared the sale of blood to be a service; however, it further posited: “There is no evidence to suggest that the legislature intended this legal fiction (that selling blood is a “service” rather than a “sale”) to apply in any other context.” Id. at 1188. However, the court noted that, even if blood banks provided a service, the service could not be read to mean a diagnosis, treatment, or care, as required by the 1991 statute of limitations. Id. Additionally, the supreme court determined that it could find “no indication that the legislature intended for blood banks to be considered ‘providers of health care’ for purposes of the medical malpractice statute of limitations.” Id. at 1189. Accordingly, the supreme court held that a blood bank was not a provider of health care that rendered diagnosis, treatment, or care. Id.

Relying on Silva, the Fourth District in Community Blood Centers of South Florida, Inc. v. Damiano, 697 So.2d 948 (Fla. 4th DCA 1997), determined that the pre-suit notice requirements did not apply to blood banks. We determine neither Silva nor Damiano control the outcome of the instant case. First, the Silva holding was limited to whether blood banks were subject to the two-year statute of limitations for medical malpractice suits in 1991. Id. Second, since Silva and Damiano were decided, the Legislature has made crucial changes to the medical malpractice statute, in particular, broadening its application to blood banks. See Ch.2003-416, Laws of Fla.

In 2003, the Legislature amended section 766.202, Florida Statutes, to define “health care provider” to specifically include blood banks. Ch.2003-416, § 57, Laws of Fla. Thus, the issue of whether a blood bank is a health care provider, which concerned the supreme court in Silva, has been put to rest. The second issue is whether the screening of blood constitutes medical negligence pursuant to chapter 766. To determine this question, we need not only look at the definition of health care provider, but the purpose of chapter 20034116, as well as other amendments contained within this legislation.

The Legislature changed the scope of chapter 766 from “medical malpractice” to “medical negligence,” most notably in the amendments to subsections 766.106(1) and (2), Florida Statutes.

766.106. Notice before filing action for medical negligence malpractice; presuit screening period; offers for admission of liability and for arbitration; informal discovery; review
(1) Definitions. — As used in this section, the term: ■
(a) “Claim for medical negligence malpractice” or “claim for medical malpractice” means a claim, arising out of the rendering of, or the failure to render, medical care or services.
(b) “Self-insurer” means any self-insurer authorized under s. 627.357 or any uninsured prospective defendant.
(c) “Insurer” includes the Joint Underwriting Association.
(2) Presuit notice. — ■.
(a) After completion of presuit investigation pursuant to s. 766.203(2) & 766.203 and prior to filing a complaint claim for medical negligence malprac-tiee, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence malpractice. Notice to each prospective defendant must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period prior to the alleged act of negligence who treated or evaluated the claimant, and copies of all of the medical records relied upon by the expert in signing the affidavit. The requirement of providing the list of known health care providers may not serve as grounds for imposing sanctions for failure to provide presuit discovery.

Ch. 2003-416, § 49, Laws of Fla.

It appears that the purpose of the change was to remove the focus of the chapter from traditional medical malpractice to all situations of medical negligence involving diagnosis, treatment, and care. In addition, in section 766.102(1), Florida Statutes (2003), entitled “Medical negligence; standards of recovery; expert, witness,” the Legislature added a specific reference to section 766.202(4) which, as previously stated, now includes blood banks. Section 766.102(1), Florida Statutes, now provides:

In any action for recovery of damages based on the death ... of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(lp), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider....

(Emphasis added). Additionally, as previously stated, section 766.202(4), Florida Statutes (2003), provides:

“Health care provider” means ... a blood bank; a plasma center, ... or other association for professional activity by health care providers.

While appellee recognizes that the 2003 amendments to chapter 766, Florida Statutes, were intended to provide some level of protection from medical negligence claims to blood banks, she argues that these changes only apply to claims by the donor arising from the taking of the blood. We reject this view for several reasons.

First, the stated purpose of chapter 2003-416 is to deal with the malpractice crisis and making quality health care available to citizens of the State of Florida. The greatest liability exposure of blood banks is not in the relatively simple process of taking blood, but in the donor screening process, where critical decisions are made about providing blood to sick patients. Thus, the narrow scope proposed by appellee appears to be inconsistent with the stated legislative purpose.

Second, by including blood banks in the definition of “health care provider,” the Legislature implied a relationship between blood banks and persons needing or receiving health care. A donor is not seeking health care but only donating blood; the party receiving the blood is the one seeking health care. Thus, the argument that the 2003 amendments would only apply to the blood bank-donor relationship is in conflict with the amended definition of “health care provider.”

While not all claims against health care providers constitute medical negligence, those arising from the receipt of medical care or services qualify as medical negligence claims. See, e.g., Puentes v. Tenet Hialeah Healthsystem, 843 So.2d 356 (Fla. 3d DCA 2003) (holding that a patient’s negligence claim against a hospital, arising out of a hospital dietician’s failure to provide patient with hypoallergenic diet as ordered by physician, was a medical malpractice action requiring compliance with statutory presuit notice requirements).

The screening of blood to be provided to a patient is part of medical services to that patient. Federal regulations mandate that blood be collected under the supervision of a physician, and virtually every step of the blood collection process requires the exercise of medical expertise by medical professionals. See, e.g., 21 C.F.R. § 640.4. Physicians, or persons acting under the supervision of physicians, determine whether prospective donors should donate blood by taking detailed medical histories and administering a brief physical examination. See 21 C.F.R. § 640.3(a)-(b). The process of screening blood donors and testing blood requires that blood banks, such as LifeSouth, identify each unit’s blood type and specific characteristics to ensure its match to the specific traits and characteristics of the patient receiving the blood. These services are intimately tied to'the care and treatment provided to the blood recipient.

That blood banks provide medical services is a position supported by case law throughout the country. For example, in Bradway v. American National Red Cross, 263 Ga. 19, 426 S.E.2d 849 (1993), the Georgia Supreme Court answered the following certified question from the Eleventh Circuit Court of Appeals in the affirmative:

Is a suit alleging that a not-for-profit blood bank was negligent in collecting and supplying human blood-including screening volunteer blood donors and testing blood for the presence of human immunodeficiency virus (HIV)-an action for medical malpractice ... ?

Considering the certified question, the Georgia Supreme Court opined that it was “convinced that the steps involved in the collection, processing and distribution of blood ... constitute^] a professional medical service.” Id. at 850. According to the court, “[t]he procedures for the collection of blood, including donor screening and blood testing, [were] the product of professional medical expertise.” Id. at 851 (emphasis added). Particularly, the court noted that “[a] crucial part of the screening procedure developed by the physicians is the medical history interview.” Id. (emphasis added). The court explained, “[I]n this interview, prospective donors are asked questions designed to elicit information necessary for an effective evaluation of the donor; the formulation of these questions requires substantial medical knowledge and judgment.” Id. at 850-51. The court concluded that “by their very nature, the services provided by the Red Cross are medical services involving' medical judgment.” Id. at 851.

Courts in other jurisdictions have held similarly. See also Miller v. Am. Nat’l Red Cross, 2006 WL 473750 (N.D.W.Va. Feb.28, 2006) (holding that plaintiff alleged a medical negligence claim arising from the alleged improper screening policies and handling of blood); Smith v. Paslode Corp., 799 F.Supp. 960 (E.D.Mo.1992), rev’d on other grounds, 7 F.3d 116 (8th Cir.1993) (“[T]he uncontradicted evidence in the present case shows that nearly every step in the ARC’s collection, processing and distribution of blood requires medical expertise.”); Wilson v. Am. Red Cross, 600 So.2d 216 (Ala.1992) (opining that the Red Cross is directly involved in the delivery of health care services since its activities are highly technical and require supervision and participation by a physician and other trained technical personnel); Tufan v. Methodist Hosp., Inc., 368 So.2d 1219 (La.Ct.App.1979) (opining that because a blood transfusion is a medical procedure, “the standard of care that must be utilized in collecting and transfusing blood is logically the same as that which applies to the actions of physicians and surgeons.”); Doe v. Am. Red Cross Blood Servs., S.C. Region. 297 S.C. 430, 377 S.E.2d 323, 326 (1989) (“Since the transfusion of blood is characterized as a skilled medical service, then we hold that the Red Cross, as a blood collector and processor, should be treated as a professional.”) (emphasis supplied).

We, therefore, determine the trial court erred in failing to grant appellant’s motion to dismiss for failure of the appellee to comply with the presuit notice requirements contained in section 766.106(2), Florida Statutes.

We, - therefore, REVERSE and REMAND for the trial court to enter an order granting appellant’s motion to dismiss.

BROWNING, C.J., and POLSTON, J., concur.

ON MOTION FOR CERTIFICATION AND CLARIFICATION

WOLF, J.

' We deny the motion for clarification, but we grant the motion for certification and reword the certification question proposed by appellee.

We hereby certify the following question as being one of great public importance:

DO THE PRESUIT NOTICE REQUIREMENTS OF SECTION 766.106(2), FLORIDA STATUTES, APPLY TO A BLOOD BANK THAT IS SUPPLYING BLOOD TO A PATIENT?

BROWNING, C.J. and POLSTON, J., concur.

      . The court opined that its position was supported by the Code of Georgia. Under OCGA § 31-22-1(2), the term "clinical laboratory” included a blood bank. Clinical laboratories are, according to OCGA § 31-22-9.1(a)(8), health care facilities. Similarly, in this case, blood banks are required to be licensed as clinical laboratories in Florida under chapter 483. Clinical laboratories licensed under chapter 483 are health care providers as defined in section 766.202(4).


text:
    TEAMCARE INFUSION INC., Appellant, v. COMPREHENSIVE HEALTH MANAGEMENT, INC., Appellee.
    No. 3D06-2223.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 2007.
    Alan C. Gold, Miami, for appellant.
    Shutts Bowen LLP and Gary M. Bagli-ebter and Sandra Upegui and Temple Fett Kearns, Fort Lauderdale, for appellee.
    Before GERSTEN, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The award of sanctions under section 57.105, Florida Statutes (2006), is reversed with directions to deny the application because, as a matter of law, the facts and circumstances of the case do not demonstrate any of the statutory prerequisites for that relief. See Bowen v. Brewer, 936 So.2d 757 (Fla. 2d DCA 2006), review denied, 952 So.2d 1188 (Fla.2007); Connelly v. Old Bridge Vill. Co-Op, Inc., 915 So.2d 652 (Fla. 2d DCA 2005); Munoz v. City of Miami 853 So.2d 489 (Fla. 3d DCA 2003); Read v. Taylor, 832 So.2d 219 (Fla. 4th DCA 2002). This holding pretermits the discussion of the several other, apparently meritorious, grounds asserted for reversal.

Reversed and remanded.


text:
    Shelton Lebronc HANNA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2294.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 2007.

      Shelton Lebronc Hanna, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GREEN, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Shelton Lebronc Hanna, pro se, appeals the denial of his motion to vacate his conviction under Florida Rule of Criminal Procedure 3.850. Hanna alleged ineffective assistance of his counsel in connection with his counsel’s decision to oppose the severance of a count for the possession of a firearm by a career criminal from three other counts for armed robbery, armed carjacking and burglary with assault while armed.

Hanna also appeals the trial court’s denial of his “Motion to Hold Rule 3.850 Motion in Abeyance for Purposes of Preserving AEDPA Time Frames and Supplementation,” which was filed while the Rule 3.850 motion was pending, as well as the denial of his motion to strike the State’s response to that motion. Finding no error in any of these rulings, we affirm.

Hanna’s motion under Rule 3.850 fails because of the strong presumption that a tactical decision of the sort made by his counsel (and approved by Hanna himself during the proceedings on February 4, 2003) falls within the broad range of professional judgments made by defense counsel preparing a case for trial. That decision exposed Hanna to a single trial rather than two trials, and the pretrial stipulation regarding his status as a three-time convicted felon limited the State’s ability to offer extensive details regarding the underlying violent crimes. The record below does not demonstrate that defense counsel’s decisions on these matters were objectively unreasonable, and it does not establish that the outcome likely would have been different but for counsel’s decisions; see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Hanna’s motion to hold his Rule 3.850 motion in abeyance and his motion to strike the State’s response to that motion are based on a flawed assumption. Hanna claims that the limitations period for a post-conviction federal petition might expire while his state remedies are pending, but that is incorrect. Under 28 U.S.C. § 2244(d)(2), that limitations period is tolled during the pendency of “a properly filed application for State post-conviction or other collateral review” relating to the underlying judgment.

Affirmed.