author: PER CURIAM. STONE, J.,

text:
    Peter J. AURIGEMMA, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-1360.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Marcia J. Silvers of Marcia J. Silvers, P.A., Miami, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Peter J. Aurigemma seeks review of an order that denied his motion to disqualify the trial judge from presiding over his upcoming rule 3.850 evidentiary hearing. We grant the petition.

Pending below is Aurigemma’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850 wherein he alleges ineffective assistance of trial counsel. The motion to disqualify is based on Aurigem-ma’s allegation that his trial counsel has hired the trial judge’s husband multiple times as an expert witness for his clients in criminal cases. Aurigemma alleges that the trial judge’s husband has benefited financially from his relationship with Auri-gemma’s trial attorney, whose performance will be evaluated by the judge at the evidentiary hearing. This ongoing “business relationship” creates the requisite well-founded fear to support the motion to disqualify. Corte v. City of Riviera Beach, 954 So.2d 68 (Fla. 4th DCA 2007); Betkesda Mem’l Hosp., Inc. v. Cassone, 807 So.2d 142 (Fla. 4th DCA 2002).

Based on the foregoing, we grant the petition for writ of prohibition and direct the Chief Judge of the Fifteenth Judicial Circuit to have this case reassigned to a successor judge.

WARNER and TAYLOR, JJ., concur.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

In my judgment, the fact that the attorney/witness hired the judge’s spouse in other cases does not mandate recusal of the judge.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gerald KLEPAREK, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-1432.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Howard Finkelstein, Public Defender, and Sarah W. Sandler, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant, in part, petitioner’s motion for rehearing and issue the following opinion.

On January 12, 2007, pursuant to the Jimmy Ryce Act, the trial court found petitioner Gerald Kleparek to be a sexually violent predator and committed Kleparek to the Department of Children and Families. Kleparek notified trial counsel that he wished to appeal, and counsel attempted to effectuate a timely appeal. However, the notice of appeal was untimely stamped by the clerk’s office and was thus five days late. Kleparek filed a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). This court denied the petition on June 4, 2007 by order and Kleparek filed a timely motion for rehearing.

While Kleparek is not entitled to relief under rule 9.141(c) as the underlying Ryce proceedings are civil in nature and not criminal, Cartwright v. State, 859 So.2d 526 (Fla. 1st DCA 2003), we find that the proper vehicle is instead a petition for writ of habeas corpus seeking belated review of the lower tribunal’s order. See In Interest of E.H., 609 So.2d 1289 (Fla.1992) (finding petitioner’s remedy to seek belated appeal of an order terminating parental rights was through a petition for writ of habeas corpus). We therefore treat the instant petition for belated appeal as a petition for writ of habeas corpus and grant belated review of the lower court’s January 12, 2007 order designating Kleparek a sexually violent predator and committing him to the Department of Children and Families.

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    Darryl BRADFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6171.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2007.
    James C. Banks, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We have reviewed this case and have found no reversible error. Pursuant to Smith v. State, 956 So.2d 494 (Fla. 1st DCA 2007), we strike the Anders brief filed in this case. AFFIRMED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


author: WALLACE, Judge.

text:
    MIHEVIC MANAGEMENT, INC., a Florida corporation; and Edward L. Mihevic, Jr., Appellants, v. The GARDENS HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    No. 2D05-5876.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 2007.

      Robert L. Donald of Law Offices of Sherman & Donald, Fort Myers; and J. Allen Bobo and Jody B. Gable of Lutz, Bobo & Telfair, P.A., Sarasota, for Appellants.
    M. Andrew Mooney, Bradenton, for Ap-pellee.
   WALLACE, Judge.

The appellants, Mihevic Management, Inc., a Florida corporation (MMI), and Edward L. Mihevic, Jr., were defendants in the trial court in an action brought against them by the appellee, The Gardens Homeowners’ Association, Inc., a Florida not-for-profit corporation (the Association). The Association brought the action under the provisions of the Florida Mobile Home Act, chapter 723, Florida Statutes (2003) (the Act). MMI and Mr. Mihevic requested attorney’s fees under section 723.068 of the Act. With an exception not material here, section 723.068 provides: “[I]n any proceeding between private parties to enforce provisions of this chapter, the prevailing party is entitled to a reasonable attorney’s fee.” “[T]he language in section 723.068 is mandatory, and ... if there is a ‘prevailing party,’ the court must award attorney’s fees.” Vidibor v. Adams, 509 So.2d 973, 974 (Fla. 5th DCA 1987).

In its final judgment, the trial court declared that “each party [had] prevailed on certain issues.” In accordance with this finding, the trial court ordered that “each party should be responsible for its own attorney[’s] fees and costs.” The Association took an appeal from the final judgment, and MMI and Mr. Mihevic filed a notice of cross-appeal. This court dismissed the Association’s appeal because of its failure to file a brief, and we redesig-nated MMI and Mr. Mihevic as appellants.

On the redesignated cross-appeal, MMI does not challenge the denial of its request for attorney’s fees and costs. But Mr. Mihevic argues persuasively that “[b]y any measure he was the prevailing party vis-a-vis the Association under Section 723.068.” After a careful review of the record and the trial court’s judgment, we agree. Mr. Mihevic was entitled to an award of his attorney’s fees under the statute. In addition, Mr. Mihevic was entitled to the recovery of his court costs under section 57.041, Florida Statutes (2003).

For these reasons, we reverse the final judgment to the extent that it determined that Mr. Mihevic was not entitled to recover his attorney’s fees and court costs, and we remand for further proceedings on that issue. In all other respects, the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded for further proceedings.

FULMER and DAVIS, JJ., Concur.

      . Although it was the Association that initiated this appellate proceeding, it did not submit an answer brief on the redesignated cross-appeal. As this court has noted before: “Failure to file a brief places an undue burden on the appellate court and reflects an omission of appellee’s responsibility to support the trial court. If the ruling of the trial court is not worthy of support, then appellee ought to confess error and join with the appellant in seeking a reversal.” Geisler v. Geisler, 397 So.2d 1216, 1217 n. 1 (Fla. 2d DCA 1981).


author: WARNER, J.

text:
    ARCH ALUMINUM & GLASS CO., INC., a Florida corporation, Appellant, v. Danny M. HANEY, Desert Glass Products, LLC, a foreign corporation, Ed Hayes, and Matthew Hale, Appellees.
    No. 4D06-2463.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.

      Beverly A. Pohl, Peter R. Goldman, and Adam G. Rabinowitz of Broad and Cassel, Fort Lauderdale, for appellant/cross-ap-pellee.
    John M. Mullin of Tripp Scott, P.A., Fort Lauderdale, for appellees/cross-ap-pellants Desert Glass Products, LLC, and Matthew Hale.
   WARNER, J.

Arch Aluminum & Glass Co. appeals an order of the trial court dismissing its complaint against Desert Glass Products, LLC, for lack of personal jurisdiction. Co-defendant Matthew Hale, a Georgia resident and former employee of Arch, cross-appeals the trial court’s denial of his motion to dismiss the complaint for lack of personal jurisdiction. As Desert Glass did not commit a tort whose main focus was Florida, nor did Desert Glass have sufficient minimum contacts with Florida, we affirm the trial court’s order of dismissal as to Desert Glass. We reverse, however, the trial court’s denial of Hale’s motion to dismiss, because Hale neither committed a tort in Florida nor was engaged in continuous business activity in the state at the time the complaint was filed.

Arch is a Florida corporation that acts as a nationwide fabricator and distributor of architectural aluminum and glass. From 1995 through April 2002, defendant Matthew Hale, a Georgia resident, worked as national sales manager for Arch. As national sales manager, Hale had full and authorized access to proprietary information developed by Arch in Florida, such as client lists, sales projections, prior sales data, business plans, and financial statements for Arch’s operations across the country. From approximately April 30, 2002, through April 2003, Hale worked as an independent contractor for Arch, focusing on marketing work.

Danny Haney worked at Arch until late November 2002, serving as its Director of Manufacturing. In October 2002, Haney was interested in forming a glass products company with the financial backing of Larry Jaynes of Texas. Haney ultimately asked Hale if he would provide him with copies of marketing studies that Hale had prepared on behalf of Arch concerning the glass fabricating markets in North America with the best potential for development.

During the course of their communications in the fall of 2002, Hale suggested to Haney that he consider starting a glass fabricating facility in Las Vegas, Nevada. Hale made this suggestion in part because Arch did not have a fabricating facility there, though Arch did compete in the Las Vegas market from its Phoenix plant. Haney commissioned Hale to provide various marketing studies of the Las Vegas market.

On December 27, 2002, when Haney resided in Florida, Hale sent Haney an email attaching various marketing documents relevant to the Las Vegas market. The documents included a survey of Las Vegas glass companies conducted in December 2002 and a nationwide “Metro Area Analysis” of various markets. The Metro Area Analysis was a nationwide comparison of the competitive situation of numerous markets based on a variety of factors (such as population growth, housing starts, and the number of competing tempering facilities). Jaynes paid Hale for the Metro Area Analysis.

The Metro Area Analysis determined that Las Vegas was the most attractive market. Haney recalled Hale having previously prepared a Metro Area Analysis report for Arch. Hale, however, claimed that he had created this specific Metro Area Analysis document in December 2002, though he acknowledged generating similar documents for Arch over the last three or four years of his employment there. Hale completed the analysis of the metropolitan areas while he was an independent contractor and sold it both to Arch, who was evaluating a San Francisco facility, and the incorporators of Desert Glass.

Based upon the report, Jaynes and Haney decided to start a glass production business in Las Vegas. On January 13, 2003, they incorporated defendant Desert Glass Products, LLC, in Nevada. Desert Glass sells fabricated glass products, primarily in western states. Desert Glass has its principal office in Las Vegas, and it began full operations at some point after July 2003. Desert Glass is currently a direct competitor of Arch in some western geographic markets, but not in Florida.

In October 2003, Hale started working as a full-time employee of Desert Glass, where he stayed until the end of 2005. Desert Glass also hired James Fendley, Arch’s Phoenix area sales representative. Fendley met with Hale, who advised Fendley to target Arch customers in the Phoenix area. Fendley attested in his affidavit that Hale provided him with “an Arch business plan for the Phoenix region,” which “contained all of Arch’s customer names, prior sales, and future sales projections for the Phoenix area.” This document is referred to as the “Phoenix worksheet.” The Phoenix worksheet was prepared for Arch in 2001 from information supplied by Arch’s sales representatives, including Fendley. It contained a customer list along with Arch’s sales figures for 1999, 2000, and part of 2001. The Phoenix worksheet also includes an estimate of potential future sales that each customer would provide. Hale was in Las Vegas when he gave the Phoenix worksheet to Fendley. Fendley testified that Hale would have received this worksheet in his capacity as national sales manager of Arch. This would have occurred during Hale’s full-time employment with Arch, which ended in April 2002.

Arch sued Desert Glass and Hale in Florida, alleging the following tort claims against the defendants: misappropriation of trade secrets; unfair competition; aiding and abetting; and conspiracy. Arch alleged that Hale, after leaving Arch’s employment, and while acting on behalf of Desert Glass, utilized Arch’s confidential business information to build a business plan for Desert Glass to specifically target Arch’s customers. Hale was instructed, under Arch’s employee handbook, that business plans, pricing strategies and customer lists constituted proprietary information that belonged to Arch. The complaint alleges Hale misappropriated trade secrets by using this confidential information to target Arch customers and develop Desert Glass’ business in areas where it did not otherwise conduct business. Nowhere in the complaint did Arch mention either the Metro Area Analysis or the Phoenix worksheet.

Both Hale and Desert Glass moved to dismiss the Florida complaint for lack of personal jurisdiction. Both Jaynes and Hale filed affidavits in support of these motions. Jaynes attested that Desert Glass did no business in Florida. Hale attested that he was a non-resident, had not been in Florida for at least two years, and did not use any confidential information belonging to Arch. Haney filed an affidavit saying that he had commissioned the Metro Area Analysis and that he had seen the custom tempering analysis of all major areas when Hale had produced it for Arch.

At an earlier hearing on discovery, both Hale and Fendley testified extensively on both the Metro Area Analysis and the Phoenix study. Hale testified that he had prepared the present Metro Area Analysis while he was an independent contractor and used generally available public information, such as housing starts and population. He had used the same general analysis of the metropolitan regions both during his employment with Arch and later in consulting work for Arch. At the evidentiary hearing, the court determined that the Metro Area Analysis was “no great secret.” The court noted that “[pjrobably around the same time that [the Metro Area Analysis] was generated, you could have picked up Time Magazine and learned that Las Vegas was the hottest market in the country.”

At the hearing on the motion to dismiss for lack of personal jurisdiction, the parties presented the affidavits and made an extensive legal argument to the court. After a full hearing on the issue, the trial court dismissed the complaint against Desert Glass because Desert Glass lacked minimum contacts with Florida. However, it denied Hale’s motion to dismiss. Arch appeals the dismissal of Desert Glass, and Hale appeals the order denying his motion to dismiss. We review de novo these rulings. See Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002).

In Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989), our supreme court set forth a two-step inquiry for determining whether a Florida court has personal jurisdiction over a nonresident. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes. Id. If so, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements. Id. “Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant.” Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002).

Under Florida’s long-arm statute, a party is subject to jurisdiction in Florida by “[c]ommitting a tortious act within this state.” § 48.193(l)(b), Fla. Stat. A defendant’s physical presence in this state is not required in order to “commit a tortious act” within Florida. Wendt, 822 So.2d at 1260. Committing a tortious act within Florida under section 48.193(l)(b) can occur by making telephonic, electronic, or written communications into this State, provided that the tort alleged arises from such communications. Id. at 1253.

Section 48.193(l)(b) “encompasses conduct where the defendant acts outside Florida to directly cause injury or damage a person within this state.” Korman v. Kent, 821 So.2d 408, 410 (Fla. 4th DCA 2002) (emphasis added). However, in Kor-man, this court was careful to explain that section 48.193(l)(b) does not apply merely because a Florida resident suffers damages: “If the Legislature intended for this provision to encompass all tortious acts which were complete outside Florida, but ultimately have consequences here only because a Florida resident suffers damages, we believe it would be incumbent on the Legislature to make that statutory purpose clear in the plainest of language.” Id. at 411.

The constitutional prong of Venetian Salami “is controlled by United States Supreme Court precedent interpreting the Due Process Clause and imposes a more restrictive requirement” than the statutory prong. Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000). Due process requires that a nonresident has sufficient minimum contacts with the forum state such that the maintenance of a suit does not offend “traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

In analyzing whether a nonresident has the requisite minimum contacts with a forum state to justify personal jurisdiction, courts should determine whether the nonresident’s “conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). In order for a nonresident defendant to anticipate being haled into a Florida court, it is essential that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within Florida, thus invoking the benefits and protections of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). However, “physical presence is not necessarily required to satisfy the constitutionally mandated requirement of minimum contacts.” Wendt, 822 So.2d at 1257-58.

Arch’s jurisdictional claim against Desert Glass fails on both prongs of Venetian Salami. First, it has not proved that Desert Glass committed a tortious act in Florida. As Arch notes in its brief, misappropriation can be broken down into misappropriation by improper acquisition or misappropriation by unauthorized disclosure or use. See § 688.002(2)(a), (b), Fla. Stat. (2006). The gist of its claim at the hearing on the motion to dismiss, and now on appeal, is that the Metro Area Analysis and the Phoenix worksheet constituted confidential information of Arch which was misappropriated by Hale and by Desert Glass, constituting tortious acts committed in Florida. We disagree, concluding that no tortious act occurred in Florida.

At an earlier hearing the trial court found that the Metro Area Analysis did not contain confidential information. Our review of the analysis in the record confirms this assessment. Arch alleged in its complaint that the confidential information Hale allegedly used consisted of Arch’s client lists, sales projections, prior sales data, business plans, and financial statements. The Metro Area Analysis contains none of that information.

Furthermore, both the Metro Area Analysis and the Phoenix study were not improperly acquired by Hale. Whatever information he acquired occurred during and in his capacity as Arch’s sales manager. Only his later distribution of the Metro Area Analysis and the Phoenix study, both of which occurred after he left the company, could be said to be a “misappropriation” of confidential information.

After he was hired by Desert Glass and resided in Las Vegas, Hale sent the Phoenix study to Fendley in Phoenix. It discussed Arch’s Phoenix customers and sales volume. This study did contain confidential information. However, the distribution of the study from Las Vegas to Phoenix did not constitute the commission of a tort in Florida. See Korman, 821 So.2d at 411. It is true that an injury to a corporation must occur in some legally significant situs, such as the place of incorporation or a place designated for the performance of a contract. See Int'l Hous. Ltd. v. Rafidain Bank Iraq, 893 F.2d 8, 11 n. 3 (2d Cir.1989); see also Boswell v. Boswell, 902 So.2d 844 (Fla. 4th DCA 2005) (in shareholder derivative action, any injury to the corporation would have occurred in Missouri, the place of incorporation and the principal place of business). However, we reject Arch’s suggestion that the situs of an injury to a corporation necessarily occurs at its place of incorporation for purposes of a personal jurisdiction calculus. Even if Arch suffered damage, it would have been a loss of western clients and the reduction of revenues from its Phoenix operation. No tort occurred in Florida. See Am. Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428, 432-35 (2d Cir.1971) (holding that a Michigan corporation did not commit tor-tious act causing injury in New York where the Michigan corporation induced the New York plaintiffs’ experienced sales employees to leave plaintiffs and use confidential information to woo away plaintiffs’ customers in Kentucky and Pennsylvania; the situs of injury was where the plaintiffs lost business); see also Spectacular Promotions, Inc. v. Radio Station WING, 272 F.Supp. 734, 737 (E.D.N.Y.1967) (“The place where the plaintiff lost business would normally be a forum reasonably foreseeable by a tortfeasor”); compare Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 204-06, 413 N.Y.S.2d 127, 385 N.E.2d 1055 (1978) (finding injury to be felt in New York where defendant’s out-of-state act of misappropriation of trade secrets threatened significant loss of New York sales).

As to the Metro Area Analysis, even if it had contained confidential information listed in the complaint, which it did not, Hale provided it to Haney and Jaynes prior to the incorporation of Desert Glass. Arch contends that Desert Glass should be charged with its promoters’ tortious conduct in obtaining the document. Arch cannot cite to any case law or statute supporting its theory, which runs contrary to the common law rule that a “corporation is not liable for torts which its promoters committed before it came into existence.” See 1A Fletcher Cyclopedia Corporations § 218. We reject Arch’s promoter theory of liability for Desert Glass based upon the common law rule.

Arch also contends that Desert Glass should be liable as a conspirator in the use of confidential information. However, as noted before, the tort did not occur in Florida, and neither did the conspiracy. Arch relies heavily upon Machtinger v. Inertial Airline Services, Inc., 937 So.2d 730 (Fla. 3d DCA 2006), and Execu-Tech Business Systems, Inc. v. New Oji Paper Co. Ltd., 752 So.2d 582 (Fla.2000), in support of its theory that the alleged conspiracy in this case gives rise to personal jurisdiction over Desert Glass. In Machtinger, a Florida company sued its own employees and an Ohio company for fraud in connection with the Ohio company seeking payment from the Florida company for work done in Ohio. The Florida company’s employees had sent several fraudulent invoices to the Florida company to authorize payment to the Ohio Company, and the Florida company had countersigned checks in Florida to pay for those invoices. The Third District held that the fraudulent misrepresentations were sent to Florida and resulted in damage in Florida when the company authorized payment of those invoices. Thus, because a tort was committed in Florida by sending fraudulent communications into Florida and approval of those payments was made in Florida, the Ohio company could be liable on a conspiracy theory for the tort.

In Execu-Tech Business Systems, Inc. v. New Oji Paper Co., 752 So.2d 582 (Fla.2000), the supreme court held that a foreign corporation was subject to jurisdiction in Florida for conspiring with other paper producers to fix the price of fax paper nationwide, even though the evidence did not show that the foreign corporation’s paper was sold in Florida. The court explained:

The key focus is not — as New Oji contends — on the nexus between (1) the forum state, (2) the foreign corporation, and (3) the product (i.e., the paper manufactured by New Oji), but on the nexus between the (1) forum state, (2) the foreign corporation, and (3) the price (i.e., the inflated price paid by Florida consumers for the conspirators’ price-fixed paper).

Id. at 585. Accordingly, our supreme court concluded that “[a]s long as New Oji and the other conspirators sought to use the benefits afforded by Florida law to participate in (and profit from) the thermal fax paper market in this state, then they should have been prepared to follow Florida law governing their price-setting activities.” Id. at 586.

Both Machtinger and Execw-Tech dealt with tortious conduct directed at Florida and occurring at least in part in Florida. The tortious conduct in this case, however, occurred outside of Florida where the trade secrets were misappropriated. The “focal point” of the effects of the misappropriation was in the west where Desert Glass competed with Arch. It was not directed at Florida, nor did it seek the benefits of Florida law or affect Florida consumers in any way.

Arch did not prove that Desert Glass committed a tort in Florida, nor did it conspire to commit a tort in Florida. Moreover, there are no minimum contacts between Desert Glass and Florida. Desert Glass operates exclusively in the western United States. It does not compete for customers in Florida or have any business interests in this state. Thus, the second prong of Venetian Salami was not proved either. As Arch did not establish personal jurisdiction over Desert Glass, we affirm the trial court’s ruling.

As to Hale, after the trial court denied his motion to dismiss for lack of personal jurisdiction, Hale answered the complaint and filed a counterclaim for breach of contract against Arch. The complaint alleged that Hale had a consulting agreement with Arch after Hale left Arch’s employment. Arch failed to pay Hale in accordance with the terms of the agreement and prematurely terminated the agreement. Hale sues for six months of payments due under the agreement. Once the counterclaim was filed, Arch moved to dismiss his appeal on the ground that the filing of the permissive counterclaim waives his right to contest personal jurisdiction. Hale, on the other hand, asserts that the counterclaim was compulsory.

A compulsory counterclaim does not waive a personal jurisdiction defense, because a compulsory counterclaim is waived if not asserted in the answer. Cumberland Software, Inc. v. Great Am. Mortgage Corp., 507 So.2d 794, 796 (Fla. 4th DCA 1987). However, a defendant waives a challenge to personal jurisdiction by seeking affirmative relief, because such requests are logically inconsistent with an initial defense of lack of jurisdiction. Babcock v. Whatmore, 707 So.2d 702, 704 (Fla.1998). In Babcock, the supreme court agreed with the reasoning of the majority of federal courts, which have held that “ ‘the filing of a permissive counterclaim is a request for affirmative relief which waives an objection to personal jurisdiction notwithstanding that the objection is timely made.’ ” Id. (quoting Hubbard v. Cazares, 413 So.2d 1192 (Fla. 2d DCA 1981)) (emphasis added).

Rule 1.170 defines both compulsory and permissive counterclaims:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim....
(b) Permissive Counterclaim. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim

In Londono v. Turkey Creek, Inc., 609 So.2d 14, 20 (Fla.1992), our supreme court adopted the “logical relationships” test for determining whether a claim was compulsory:

A claim has a logical relationship to the original claim if it arises out of the same aggregate of operative facts as the original claim in two senses: (1) that the same aggregate of operative facts serves as the basis of both claims; or (2) that the aggregate core of facts upon which the original claim rests activates additional legal rights in a party defendant that would otherwise remain dormant.

Id. (citations omitted). Later, the supreme court stressed that a compulsory counterclaim must arise out of the same transaction or occurrence as the plaintiff’s claim. See Aguilar v. Southeast Bank, N.A., 728 So.2d 744, 746 (Fla.1999).

In its motion to dismiss, Arch states that it “never alleged that Hale’s independent contracting agreement was terminated because of his tortious conduct.” To the contrary, the answer to the counterclaim states:

24. As its third affirmative defense, Arch would state that the Counter-Plaintiff was appropriately terminated based upon the allegations more thoroughly set forth in the Amended Complaint which are incorporated herein by reference.

Having used the same claims both offensively and defensively against Hale’s counterclaim, we conclude that Arch cannot therefore claim that the two do not have a logical relationship. See In re Recombinant DNA Tech. Patent and Contract Litig., 874 F.Supp. 904, 920 (S.D.Ind.1994). Surely, if Hale had sued first, and Arch had defended with an affirmative defense that Arch was properly terminated because of his misappropriation of trade secrets, Arch’s counterclaim for misappropriation would have been compulsory. As the compulsory counterclaim rule is a rule to promote judicial efficiency, see Londono, 609 So.2d at 19, it promotes judicial economy for the claim and the counterclaim to be resolved in the same proceeding where the claim constitutes the defense to the counterclaim. We therefore deny the motion to dismiss the appeal.

We thus proceed to the issue of jurisdiction over Hale. Hale contends that he did not commit a tort in Florida. Arch asserts jurisdiction over Hale either under section 48.193(l)(b) or section 48.193(2). We consider both sections.

Section 48.193(l)(b), Florida Statutes, provides Florida jurisdiction where a defendant commits a tortious act in Florida. As we have already noted, Wendt holds that the physical presence of the defendant is not necessary when a communication into Florida constitutes a tortious act. However, Wendt also requires that the cause of action arise from the communication into Florida. In this case, Hale only sent one e-mail into Florida containing the results of the Metro Area Analysis. However, that document contained none of the confidential information alleged in the complaint. Arch’s cause of action, as set forth in its amended complaint, does not depend upon the transmission of the Metro Area Analysis study to Haney in Florida and thus its transmission does not constitute the commission of a tort in Florida. See Carlyle v. Palm Beach Polo Holdings, Inc., 842 So.2d 1013 (Fla. 4th DCA 2003).

Hale did distribute the Phoenix study, which did contain confidential customer lists and sales information, but the distribution of that list occurred between Nevada and Arizona. As explained above, this action did not constitute the commission of a tortious act in Florida. See, e.g., Korman, 821 So.2d at 411.

Arch also argues that Florida has jurisdiction over Hale under section 48.193(2), which provides:

A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

(emphasis supplied). The statutory use of the present tense verb “is engaged” shows that jurisdiction under this subsection requires current activity. Cf. Gibbons v. Brown, 716 So.2d 868 (Fla. 1st DCA 1998) (no jurisdiction when based upon the nonresident filing suit in Florida two years earlier: passage of time precluded assertion of jurisdiction because defendant was not engaged in substantial and not isolated activity). That activity is measured from the filing of the suit backward for a period of years.

While Hale could be said to have been engaged in substantial and not isolated activity in the state until the time that he ceased employment with Arch, his employment ended in 2002, and Hale was not added as a defendant to this suit until 2005. Even if the time of his consulting work is added, that ended in April 2003, two years prior to the filing of the suit against him. Since that time Hale has not engaged in any activity in this state. Therefore, he is not subject to jurisdiction under section 48.193(2).

Our decision in Hatfield v. AutoNation, Inc., 915 So.2d 1236 (Fla. 4th DCA 2005), cited by Arch for support, is distinguishable. There, Hatfield, a Texas resident, was a general manager of an AutoNation dealership in Houston. He signed a confidentiality and non-compete agreement which contained a forum selection clause designating Florida as the forum. He resigned his position and, contrary to his covenant not to compete, took a position with a competing auto dealer in Texas. AutoNation sued in Florida to enjoin Hatfield from breaching the covenant not to compete and to prevent his misappropriation of trade secrets. Hatfield moved to dismiss for lack of personal jurisdiction, which the trial court denied. Although noting that this was a close question, this court affirmed, explaining that Hatfield attended some meetings in Florida and had regular and frequent contact with AutoNation’s Florida corporate headquarters, in addition to his agreement to the forum selection clause. We concluded that this combination of factors were sufficient to show that Hatfield had substantial and not isolated contact with Florida. Although Hatfield had resigned his position with AutoNation, suit was filed immediately thereafter. Moreover, the claim arose from his contractual agreement not to compete with AutoNation, and he had agreed to the forum selection clause. None of these facts are present in this case, as Hale was not sued until at least two years after Hale had left the company, and Hale did not enter into any agreement with Arch that included a forum selection clause.

Concluding that Hale did not commit a tortious act in Florida, and is not engaged in any activity in the state, we reverse the trial court’s order denying the motion to dismiss for lack of personal jurisdiction and remand for dismissal of the complaint against Hale. Because we have concluded that the counterclaim of Hale is compulsory, the trial court should also dismiss that claim. We affirm the trial court’s dismissal of the complaint against Desert Glass.

Affirmed in part; reversed in part.

KLEIN and HAZOURI, JJ., concur.

      . Although several other statutory grounds were mentioned in the complaint, these are the only plausible sources of jurisdiction.


author: COLBATH, JEFFREY, Associate Judge.

text:
    FLORIDA ESTATE DEVELOPERS, LLC, Appellant, v. The BEN TOBIN COMPANIES, LTD., a Florida Limited Partnership, Jo Jo’s Mojo of the Florida Keys, LLC, a Florida Limited Liability Corporation, Jo Jo’s of the Florida Keys, LLC, a Florida Limited Liability Corporation, Mark A. Tobin and Jason Tobin, Appellees.
    No. 4D06-14.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.

      Duncan J. Farmer and Alan Burger of Burger, Farmer & Cohen, P.L., and Patrick E. Quinlan of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, for appellant.
    Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, Vincent E. Damian, Jr., of Salomon, Kanner, Damian & Rodriguez, P.A., Miami, and John P. Seiler of the Law Offices of Seiler, Sautter, Zaden & Rimes, Wilton Manors, for appellees.
   COLBATH, JEFFREY, Associate Judge.

Florida Estate Developers, LLC (“FED”) appeals an order dismissing with prejudice all five counts of its Third Amended Complaint against defendants/appellees The Ben Tobin Companies, Ltd. (“BTCO”), Jo Jo’s Mojo of the Florida Keys, LLC, Jo Jo’s of the Florida Keys, LLC, Mark A. Tobin, and Jason Tobin on the ground that the complaint failed to state a cause of action. We affirm the dismissal of Counts I, II, III, and V without further comment; we reverse the dismissal of count IV and write solely on this issue.

In Count IV of its Third Amended Complaint, FED alleges a breach by BTCO of Florida Statutes sections 608.4225 and 608.423. Specifically, FED alleges that BTCO breached the duties of loyalty and care mandated by these statutes.

Section 608.4225 provides that, subject to sections 608.4226 and 608.423, each manager and managing member of a limited liability company “shall owe a duty of loyalty and a duty of care to the limited liability company and all of the members of the limited liability company.” § 608.4225(1), Fla. Stat. However, the statute specifically limits the duties of loyalty and care.

(a) Subject to s. 608.4226, the duty of loyalty is limited to:

1. Accounting to the limited liability company and holding as trustee for the limited liability company any property, profit, or benefit derived by such manager or managing member in the conduct or winding up of the limited liability company business or-derived from a use by such manager or managing member of limited liability company property, including the appropriation of a limited liability company opportunity.
2. Refraining from dealing with the limited liability company in the conduct or winding up of the limited liability company business as or on behalf of a party having an interest adverse to the limited liability company.
3. Refraining from competing with the limited liability company in the conduct of the limited liability company business before the dissolution of the limited liability company.
(b) The duty of care is limited to refraining from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of the law.

§ 608.4225(l)(a)-(b).

Section 608.423 provides that members 0f a ümited liability company may enter jnt0 an operating agreement to regulate affafts 0f the limited liability company, and that “[t]o the extent the operating agreement does not otherwise provide,” chapter 608 governs the relations among the parties. § 608.423(1), Fla. Stat. While an operating agreement is permitted by law, such an agreement may not

(a) Unreasonably restrict a right to information or access to records under s. 608.4101;
(b) Eliminate the duty of loyalty under s. 608.4225, but the agreement may:
1. Identify specific types or categories of activities that do not violate the duty of loyalty, if not manifestly unreasonable; and
2. Specify the number or percentage of members or disinterested managers that may authorize or ratify, after full disclosure of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty;
(c) Unreasonably reduce the duty of care under s. 608.4225;
(d) Eliminate the obligation of good faith and fair dealing under s. 608.4225, but the operating agreement may determine the standards by which the performance of the obligation is to be measured, if the standards are not manifestly unreasonable;....

§ 608.423(2)(a)-(d).

With regard to section 608.423, the statute authorizes the parties to execute an operating agreement, but then places restrictions on that operating agreement. Nowhere in Count IV does FED allege that the parties executed an operating agreement in violation of the restrictions set forth in section 608.423. For this reason, the allegations set forth in Count IV fail to state a cause of action for breach of section 608.423.

Moving on to whether FED successfully alleges a cause of action for breach of section 608.4225, we address individually the allegations made in Count IV of the Third Amended Complaint. In paragraph 61(a), FED alleges that BTCO violated the statute by engaging in self-dealing with respect to a parcel of land deeded to BTCO. However, the deeding of the property to BTCO was an express part of the parties’ August 2002 operating agreement, and FED’s allegations do not support its claim for breach of section 608.4225.

FED alleges in paragraph 61(b) that BTCO violated section 608.4225 by causing the LLCs to enter into a usurious loan. The allegations of the Third Amended Complaint do not demonstrate a usurious loan transaction; therefore, the allegations of paragraph 61(b) fail to state a cause of action for breach of the statute.

In paragraphs 61(c), (d), and (e), FED alleges that BTCO breached section 608.4225 by “failing to account to the Members of the LLC for the operation of the LLCs,” “failing to make payments or give credit for repair and improvements to the Property by FED or to otherwise account to Plaintiff for such repairs or improvements,” and “unreasonably depriving members of the LLC with information concerning the LLCs and access to LLC records.” Elsewhere in its Third Amended Complaint, FED alleges that BTCO failed to provide to FED any accounting of monies received, and failed to credit FED with the value of restoration and renovation work. Additionally, FED alleges BTCO failed to provide supporting documentation with regard to BTCO’s capital contribution to the parties’ business deal and its re-financing of the loan made to FED. The duty of loyalty imposed upon a managing member specifically includes “[ajccounting to the limited liability company.” § 608.4225(l)(a)l. Viewing FED’s factual allegations in light of this explicit duty, we agree that they are sufficient to support a cause of action for breach of the statute.

Finally, in paragraph 61(f), FED alleges BTCO violated section 608.4225 by “failing to deal with members of the LLC in good faith.” While this allegation alone is insufficient to state a cause of action for breach of the statute, factual allegations made elsewhere in the Third Amended Complaint sufficiently allege the type of intentional misconduct that will support a cause of action for breach of the duty of care under section 608.4225.

Based on the above, we affirm the dismissal with prejudice of paragraphs 61(a) and (b) of Count IV of the Third Amended Complaint. We reverse the dismissal of paragraphs (c), (d), (e), and (f), and remand to the trial court the causes of action set forth therein.

Affirmed in part, Reversed in part, and Remanded.

STONE and TAYLOR, JJ., concur.

      . We note, however, that to the extent that paragraph 61(e) alleges a denial of access to LLC records, such a claim should be brought against the LLC — not the managing member — pursuant to section 608.4101, Florida Statutes. See § 608.4101, Fla. Stat. (imposing duty on LLC to keep certain records, including tax returns and financial statements); Merovich v. Huzenman, 911 So.2d 125, 128 (Fla. 3d DCA 2005).


text:
    Kendrick Sherod WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3102.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.

      Dan Hallenberg of The Law Office of Dan Hallenberg, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

We affirm appellant’s conviction and sentence, rejecting appellant’s claim that his conviction should be reversed because of improper prosecutorial argument. The trial court sustained the defense counsel’s objection to the argument and gave a curative instruction. Therefore, although the argument was improper, the court cured the error. See Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985). We write, however, to address the argument of this prosecutor, as it is the third time we have reviewed this same argument.

The appellant was prosecuted for a robbery. The victim testified and was positive of his identification of the defendants, both at the time of the incident and at the time of trial. He was only slightly impeached on his identification regarding the appellant’s hair. The defense called no witnesses and thus had the initial closing argument and rebuttal argument. In his closing argument, defense counsel sought to suggest doubt as to the victim’s identification. He told the jury:

Nobody is here saying that [the victim] is a bad man because he’s coming in and saying that these two young men committed a crime. What he is is he’s confused about who did it. You have to keep in mind that this case is about identification....

Concluding, the defense attorney said:

[The victim] is not a bad person. And if you find not guilty, you’re not saying he’s a bad person, he’s confused and it’s not his fault. Under these suggestive— very suggestive circumstances, it’s not his fault.

When the prosecutor made his argument, he made the following statements:

The Defense Attorneys have talked to you about identification and they talked to you about the victim. And they’re not going to stop talking to you about the victim, because that’s part of the Defense is that you cheapen the victim, you cheapen the crime.

Defense counsel objected and the court sustained the objection and directed the jury to disregard the prosecutor’s comments. The prosecutor then said:

If, uh, if the victim — if you don’t care about [the victim], you don’t think he deserves protection under the law, then you find them not guilty.

Counsel again objected, and the court again sustained the objection and gave a curative instruction. The prosecutor said to the court, “I’m missing something, I think.” The court responded, ‘Tes sir, because I didn’t hear anything out of either argument so far where they were suggesting that [the victim] wasn’t telling the truth.”

Both of these arguments are improper. In a case where the defense has denigrated the victim, particularly where the victim is poor and possibly has a criminal record, then the prosecutor can justifiably comment on the defense strategy of attacking the victim. However, where the defendant has not attacked or denigrated the victim in any way, the argument the prosecutor made in this case has no place. Defense counsel’s mere impeachment of the victim’s ability to recall does not give the prosecutor the latitude to make what is really an appeal for sympathy for the victim.

We caution that remarks such as these may result in reversal under appropriate circumstances in future cases. In this case the court properly curtailed the state’s argument, and the evidence in this case was overwhelmingly against the defense.

Affirmed.

KLEIN and HAZOURI, JJ„ concur.


author: STONE, J.

text:
    Charlotte TAYLOR, Appellant, v. CITY OF LAKE WORTH, et al., Appellees.
    No. 4D06-2801.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Charlotte Taylor, Lake Worth, pro se.
    Jeffrey Clyman, West Palm Beach, for Appellee-Property Appraiser’s Office.
   STONE, J.

We affirm the trial court order denying Taylor the right to amend her complaint to assert, for the first time, claims concerning her 2005 tax assessment.

As part of a multi-count complaint against various government entities and employees, Taylor contested the tax assessed on her property. The Value Adjustment Board denied Taylor relief for 2005 taxes in a decision dated January 17, 2006. On March 16, 2006, Taylor filed a motion to amend her third amended complaint, apparently intending to add this claim to her other unrelated counts. The second line of the motion stated that the “4th amended complaint is attached”; however, a proposed amended pleading was not attached to the motion. Instead, the next day, Taylor filed a motion for a twenty-day extension of time to file the fourth amended complaint, alleging that she had been too ill to complete it. The property appraiser opposed both motions on the grounds that the fourth amended complaint was not attached to the motion to amend and that the sixty-day filing period specified in section 194.171, Florida Statutes, had expired and could not be enlarged, as it is a jurisdictional statute of non-claim.

First, Florida Rule of Civil Procedure 1.190(a) states that “the party shall attach the proposed amended pleading to the motion.” This is a mandatory requirement. Second, subsection (2) of 194.171, Florida Statutes, provides that “[n]o action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection ... or after 60 days from the date a [value adjustment board] decision is rendered.” Subsection (6) further states that the requirements of subsection (2) are jurisdictional. The Florida Supreme Court has recognized the interplay of statutory sub-sections involved here as a jurisdictional statute of non-claim. Markham v. Neptune Hollywood Beach Club, 527 So.2d 814, 816 (Fla.1988); see also Cason v. Dep’t of Mgmt. Servs., 944 So.2d 306, 310 (Fla.2006). A jurisdictional statute of non-claim operates “to bar untimely claims without any action by the opponent and deprive[s] the court of the power to adjudicate them.” Comerica Bank & Trust v. SDI Operating Partners, L.P., 673 So.2d 163, 166 (Fla. 4th DCA 1996). Put another way, “[a]n untimely claim filed pursuant to a jurisdictional statute of nonclaim is automatically barred.” May v. Ill. Nat'l Ins., 771 So.2d 1143, 1151 (Fla.2000) (citing Miller v. Nolte, 453 So.2d 397 (Fla.1984)).

Here, the sixty-day period expired on March 20, 2006. The amended pleading was not filed by that date. We conclude that simply filing the motion for leave to file, without attaching a copy of the fourth amended complaint which was not yet prepared, was insufficient to meet the non-claim provisions of the statute. Therefore, the circuit court lacked jurisdiction to consider this claim.

With regard to Taylor’s additional claim for sanctions, no authority exists for an appellate court to impose sanctions for conduct occurring in the trial court. Boca Burger, Inc. v. Forum, 912 So.2d 561, 569 (Fla.2005).

Therefore, the order is affirmed.

POLEN and GROSS, JJ., concur.


text:
    Jorge RIVEROCRUZ, Petitioner, v. Ric L. BRADSHAW, Palm Beach County Sheriff, Respondent.
    No. 4D07-3306.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2007.
    Carey Haughwout, Public Defender, Daniel Cohen and William Paul, Assistant Public Defenders, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Through a petition for writ of habe-as corpus, petitioner contests the trial court’s setting of bail at $102,000 for multiple charges arising out of the discovery of a marijuana “grow lab.” Because the first appearance judge failed to conduct any hearing at all with respect to the amount of the bond, and simply set the amount in accordance with a bond schedule for each count, the trial court did not consider any factors required pursuant to Florida Rule of Criminal Procedure 3.131(b)(3). See Hollander v. Crowder, 952 So.2d 1289 (Fla. 4th DCA 2007); Good v. Wille, 382 So.2d 408 (Fla. 4th DCA 1980). We thus grant the petition and remand for the trial court to set a hearing as soon as practicable at which time the court shall consider the relevant criteria for setting a bond. Id.; see also Fla. R.Crim. P. 3.131(b)(3). Petitioner may raise his remaining arguments regarding the multiplicity of the charges as part of that consideration.

In addition, the court must reconsider the probable cause finding with respect to the multiple counts of violation of section 893.147(2)(a), Florida Statutes, which involved the manufacture or delivery of drug paraphernalia. The only information available to the court was that these charges stemmed from a “complete 2 [room] grow lab.” This fact provides no probable cause for the manufacture or delivery of drug paraphernalia.

Petition granted and remanded for a new bond hearing.

WARNER, KLEIN and STEVENSON, JJ., concur.


text:
    Mark R. FORLANO, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5253.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2007.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Bryan Jordan, Assistant Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As the State concedes, the trial court erred in awarding restitution to the extent the award was based on hearsay evidence which was admitted over objection. See Herrington v. State, 823 So.2d 286 (Fla. 1st DCA 2002); B.L.N. v. State, 722 So.2d 860 (Fla. 1st DCA 1998); C.S. v. State, 617 So.2d 863 (Fla. 1st DCA 1993); Williams v. State, 850 So.2d 627 (Fla. 2d DCA 2003). The State offered competent proof of other elements of damage to the victim, but elicited only hearsay as to the cost of repairs to the car body. Accordingly, we reverse the restitution order and remand for a new restitution hearing. On remand, the State may prove the cost of repairs to the car body by competent evidence, and need not adduce further evidence as to any other elements of damage to the victim. Cf. Aboyoun v. State, 842 So.2d 238, 240 (Fla. 2d DCA 2003).

Reversed and remanded.

BENTON, HAWKES, and THOMAS, JJ., concur.


text:
    Gilbert RAMIREZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1234.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2007.
    Gilbert Ramirez, pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the lower tribunal’s “Order Denying Motion for New Trial and Reinstating Judgment and Sentence,” rendered on or about June 28, 2006, in Duval County Circuit Court case number 16-2004-CF-10692-AXXX, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). The court notes that pursuant to the order for which a belated appeal has been granted, the Public Defender has been appointed to represent petitioner on appeal.

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


text:
    Diane Joyce WISNER, Appellant, v. William Anton WISNER, Sr., Appellee.
    No. 1D07-2642.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2007.
    K. Dean Kantaras, Palm Harbor, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. Warren v. Southeastern Leisure Systems, Inc., 522 So.2d 979 (Fla. 1st DCA 1988) (distinguishing jurisdiction of the person from subject matter jurisdiction for purposes of rule 9.130); Maryland Casualty Co. v. Century Construction Corp., 656 So.2d 611 (Fla. 1st DCA 1995) (dismissing appeal of post-judgment order that would culminate in appealable order).

ALLEN, WOLF, and LEWIS, JJ., concur.


author: TAYLOR, J. POLEN, J.,

text:
    William MEREDITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1141.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.

      Mark Orr, Fort Pierce, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

The defendant, William Meredith, appeals his conviction and sentence for lewd or lascivious molestation of a child. He argues two points on appeal: (1) that the trial court erred in denying his motion to suppress statements made to police without Miranda warnings, and (2) that the trial court erred in allowing the state to file an amended information on the day of trial. Because the trial court properly concluded that the defendant was not in custody at the time he was questioned and, thus, was not required to be given Miranda warnings, we affirm on the first point. We also affirm as to the defendant’s second point for the reasons discussed below.

The defendant was charged by information with one count of lewd or lascivious molestation-offender over 18, victim under 12. The information alleged:

August 01, 2004 William Vincent Meredith did, being 18 years of age or older, intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of A.A., a person less than 12 years of age, or did force or entice A.A. to so touch the defendant, in violation of Florida Statute 800.04(5)(b); ...

Before trial, the defendant moved to suppress his statements to police. He contended that he made the statements during a custodial interrogation without the benefit of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

At the suppression hearing, Detective Todd Finnegan of the Indian River County Sheriff’s Office testified that he called the defendant on the telephone, told him that his name had come up in an investigation, and asked him to come to the sheriffs office at his convenience to discuss the matter. The defendant asked what it was about, but the detective said he did not want to discuss it over the phone. The detective told him that he was not “under arrest or anything.”

The defendant arrived at the station a few hours later. He met Detective Finnegan in the front lobby and was escorted by the detective to an interview room. He had to get “buzzed in” by the secretary before he could proceed down the hallway to the interview room. The detective was the only officer present in the interview room. He testified that the door was unlocked and that he did not sit between the defendant and the door; he sat off to the side.

The interview was videotaped without the defendant’s knowledge. At the beginning of the interview, Detective Finnegan told the defendant, “All right, man. I just want to let you know you’re not under arrest. I appreciate you coming in here to talk to me. This is strictly voluntary.” The detective then told the defendant that his ex-girlfriend’s younger brother had made allegations that the defendant had engaged in some inappropriate touching with him and that the detective just wanted to get the defendant’s “side of the story.” The detective told the defendant that he had spoken to the boy, the boy’s parents, and the Department of Children and Families. He told the defendant that the boy had described various incidents wherein the defendant had touched the boy’s penis and the boy had touched the defendant’s penis. The defendant acknowledged that he had occasionally touched the boy’s penis, but explained that he did so in response to the boy’s grabbing his penis while they were wrestling or playing “show and tell.”

The detective used a “casual approach” in questioning the defendant, often calming him down when he “was a little nervous” and assuring him that he was not accusing him of being a child molester but simply trying to get his “standpoint” so he would “have something to explain to the family.” At one point, the detective asked the defendant if he needed counseling to sort out his possible attraction to young boys. After sternly warning the defendant not to let this happen again, the detective ended the interview and again told the defendant that he appreciated his coming in. The defendant then walked out of the station. A few hours later, the detective secured an arrest warrant for the defendant.

The defendant testified that he did not feel he was free to leave for several reasons. He said that the detective, who sat between him and the closed door, never told him that he was free to get up and go. Furthermore, he could not have found his way back to the lobby without the detective’s help, because the interview room was at the end of a long hallway, with a few turns along the way. He also thought that because he initially had to be “buzzed in,” he would have to be “buzzed out” to leave. The defendant said that he did not feel free to leave in light of the questions he was being asked, and that he felt he was under the detective’s control and domination the entire time.

The trial judge denied the motion to suppress. He characterized the interview as a polite conversation. He found that the defendant’s testimony, that he did not feel free to leave because he had gone down various hallways and was in a back room, was not credible. The trial court also found that there was no deception used to get the defendant to make his statement. He concluded that the defendant was not in custody and thus no Miranda warnings were required.

Miranda warnings are required only when an individual is undergoing custodial interrogation. The Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. Determining whether a person is in custody for Miranda purposes is based on how a reasonable person in the suspect’s situation would perceive his or her circumstances. The ultimate inquiry is whether “a reasonable person placed in the same position would believe that his or her freedom of action was curtailed to a degree associated with actual arrest.” Ramirez v. State, 739 So.2d 568, 573 (Fla.1999).

The Miranda custody test involves two discrete inquiries: first, what were the historical facts and circumstances surrounding the interrogation; and second, given those circumstances, “would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). The first inquiry is factual, and we must accord the trial court’s findings of historical fact a presumption of correctness. Id. But, the second inquiry requires us to apply the controlling legal standard to those facts and conduct an independent de novo review. Id.; Schoenwetter v. State, 931 So.2d 857 (Fla.), cert. denied, — U.S. -, 127 S.Ct. 587, 166 L.Ed.2d 437 (2006); Connor v. State, 803 So.2d 598, 606 (Fla.2001); State v. Weiss, 935 So.2d 110, 116 (Fla. 4th DCA 2006).

The Miranda custody inquiry is an objective test that involves the consideration of four factors:

“(1) the manner in which the police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.”

Mansfield v. State, 758 So.2d 636, 644 (Fla.2000) (quoting Ramirez, 739 So.2d at 574).

In this case, the above factors weigh against a finding of custody. The detective contacted the defendant by telephone and requested him to come to the sheriffs office at his convenience to discuss an investigation. The defendant drove himself to the sheriffs office and entered the building of his own volition. He met with the detective in an interview room away from the public area. The detective explained that his purpose in inviting the defendant to the office was to give him an opportunity to respond to a child’s report of inappropriate touching. That the interrogation occurred in the inherently coercive environment of the sheriffs office did not transform the otherwise non-custodial interrogation into a custodial one. See Roman v. State, 475 So.2d 1228, 1231-32 (Fla.1985) (citing Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)). As to the manner of the interrogation, the record shows that only one detective was present during the interrogation and that the interview was conducted in a casual and conversational tone, lasting less than an hour.

The defendant argues that being confronted with the victim’s accusation of molestation is a circumstance that militates strongly toward the conclusion that he was in custody. We agree that this factor would have contributed to a reasonable person’s perception of custody, particularly here, where the defendant was confronted with details concerning how, when, and where the molestation allegedly occurred. See Mansfield v. State, 758 So.2d 636, 644 (Fla.2000) (holding that the fact that the defendant was confronted with evidence strongly suggesting his guilt was a factor showing that the defendant was in custody for Miranda purposes).

Some courts have observed, however, that the significance of this factor may be diminished if the police do not express their belief in the suspect’s guilt or do nothing to refute the suspect’s offered explanation of innocence. See Stansbury v. California, 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994); State v. Pitts, 936 So.2d 1111, 1128 (Fla. 2d DCA 2006).

In Stansbury, the United States Supreme Court stated:

The weight and pertinence of any communications regarding the officer’s degree of suspicion will depend upon the facts and circumstances of the particular case. In sum, an officer’s views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.

511 U.S. at 325, 114 S.Ct. 1526.

In Pitts, the Second District Court of Appeal reversed suppression of the defendant’s statement,- at least in part, because of the “police attitude” factor. There, the defendant was summoned to the police station for questioning about the abduction and murder of two missing men. The defendant had pawned property owned by one of the missing men. Police Captain Martin confronted the defendant with this evidence and told him that another suspect, T.J., had accused the defendant of killing the victims. Discussing the impact of this confrontation factor on the Miranda custody issue, the court stated:

Martin did not specifically say that he believed the accusation made by T.J. was true. That circumstance would tend to lessen the impact of the accusation on a reasonable person in Pitts’ situation. The indirect manner in which the accusation was presented to Pitts would also suggest to such a reasonable person that the police were not prepared to take Pitts into custody based on the accusation.

Pitts, 936 So.2d at 1128.

The court noted that although Captain Martin told the defendant of his suspicion that the defendant was “there,” the officer’s questions and comments did not make it apparent to the defendant that he was the prime suspect. Further, the court noted that when the defendant offered an innocent explanation of his involvement in pawning the victims’ property and fleeing from the police, the officers did not confront him with anything to refute this explanation. The court reasoned that “[i]n such circumstances, a reasonable person in his position would not understand himself to be in custody.” Id. at 1129 n. 9.

Here, Detective Finnegan’s friendly demeanor and low-key interrogation tactics, combined with his consolatory tone in telling the defendant, “relax, I’m not calling you a child molester,” might have led a reasonable person to believe that he would remain free to leave. Like the police captain in Pitts, the detective in this case did not challenge the defendant’s innocent explanations for actions that made him appear culpable. As stated above, the manner of the interrogation is one of the factors courts are instructed to consider in determining whether a reasonable person in the defendant’s circumstances would believe that he or she was in custody. See Pitts, 936 So.2d at 1128; see also State v. Rodriguez, 785 So.2d 759, 761 (Fla. 3d DCA 2001) (holding that, in the absence of any indicia of coercion or intimidating circumstances, being confronted by the police with incriminating evidence did not convert the otherwise consensual encounter into a custodial interrogation); Ramsey v. State, 731 So.2d 79, 81 (Fla. 3d DCA 1999); State v. Poole, 730 So.2d 340, 342 (Fla. 3d DCA 1999) (holding that non-coercive police questioning about criminal conduct or activity alone does not convert an otherwise consensual encounter into an unlawful seizure or detention).

As to the final factor, “whether the suspect is informed that he or she is free to leave the place of questioning,” the defendant testified that he was not specifically informed that he was free to leave at any time. The record does not refute this. However, before the defendant came to the sheriffs office, the detective informed the defendant that he was not under arrest. Then, after he arrived there and before the interview began, the detective again told him that he was not under arrest and that his presence at the sheriffs office was “strictly voluntary.” As the supreme court stated in Roman, “a reasonable person might be more likely to think he is not in custody if specifically told he is not under arrest.” 475 So.2d at 1231. Though a better case is made for non-custodial status when a suspect is explicitly informed that he is free to leave a police station, Roman suggests that a reasonable person who is told from the outset that he is not under arrest and is there on a voluntary basis would understand that he was free to leave at any time.

In Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), the Court stated:

[The defendant] came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a ⅛ hour interview[,] respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody “or otherwise deprived of his freedom of action in any significant way.”

In sum, after examining the circumstances of this case and considering all the Ramirez factors, we conclude that the defendant was not in custody for purposes of Miranda when he made the statements to the detective at the sheriffs office. Therefore, the trial court did not err in denying his motion to suppress the statements.

We disagree with the defendant’s final argument that his due process rights were violated when the trial court permitted the state to file an amended information, which added a second count on the day of trial. The amendment essentially divided the allegations of the original information, that the defendant touched the child or induced the child to touch him, into two separate offenses. Even if we were to find that the defendant did not waive this issue by electing to proceed to trial on both counts after being offered a continuance and separate trial on the second count, we conclude that no prejudice has been shown.

Affirmed.

STEVENSON, J., concurs.

POLEN, J., dissents with opinion.

POLEN, J.,

dissenting.

I respectfully dissent. As to appellant’s claim the trial court erred in denying his motion to suppress statements he made to Detective Finnegan, I would reverse. The statements, notwithstanding Finnegan’s repeated assurances that appellant was not under arrest, were recorded without appellant’s knowledge or consent. He had been summoned to the police station by the detective’s telephone call, wherein he was told he could not discuss the matter or even why they wanted to talk to him over the phone. Meredith’s unrebutted testimony was that he had to be “buzzed in” to the area where he first met Finnegan, and was then questioned in an interrogation room. He testified that he was never told he was free to leave, and believed he could not without being “buzzed out.” Finally, while Finnegan’s strategy was to downplay the seriousness of the matter, he was clearly confronting Meredith with accusations of the child victim concerning alleged inappropriate touching.

Considering the factors set forth in Mansfield v. State, 758 So.2d 636 (Fla.2000) (quoting Ramirez v. State, 739 So.2d 568 (Fla.1999)), I would hold it reversible error to have denied appellant’s motion to suppress his xm-Mirandized statements, and remand for further proceedings.

      . The second amended information read;
      (A) Ct. 1. LEWD OR LASCIVIOUS MOLESTATION-OFFENDER 18 OR OLDER, VICTIM UNDER 12 On or Between August 01, 2004 through November 30, 2004, William Vincent Meredith did, being 18 years of age or older, intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of A.A., a person less than 12 years of age, in violation of Florida Statute 800.04(5)(b); (A) Ct. 2. LEWD OR LASCIVIOUS MOLESTATION-OFFENDER 18 OR OLDER, VICTIM UNDER 12
      On or Between August 01, 2004 through November 30, 2004, William Vincent Meredith did, being 18 years of age or older, force or entice A.A., a person less than 12 years of age, to intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of the defendant, in violation of Florida Statute 800.04(5)(b); ...

      . In fact, Finnegan allowed appellant to leave the station, and then obtained an arrest warrant a few hours later.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Shalonda BARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3162.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Shalonda Barrett, Brooksville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant filed, without reference to Florida Rule of Criminal Procedure 3.800(c), a letter seeking a sentence modification or mitigation. The trial court treated the letter as a rule 3.800(c) motion and denied the motion on the merits. We dismiss the appeal as from a non-appealable order. See State v. Woodard, 866 So.2d 120 (Fla. 4th DCA 2004); Grosse v. State, 511 So.2d 688 (Fla. 4th DCA 1987), rev. denied, 519 So.2d 987 (Fla.1988).

WARNER, POLEN and TAYLOR, JJ„ concur.


text:
    Jeffrey S. MINCEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1412.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.

      Jeffrey S. Mincey, Madison, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jeffrey S. Mincey appeals from the summary denial of his motion to correct illegal sentence. He argues that he was improperly designated as a habitual felony offender because his prior convictions used for such designation did not qualify as sequential convictions as they were all entered on the same day. See Bover v. State, 797 So.2d 1246, 1250 (Fla.2001) (“[AJlthough the sentencing for separate convictions arising out of unrelated crimes can take place on the same day, the sentences cannot be part of same sentencing proceeding” in order to be considered “sequential” for purposes of habitualization) (citation omitted); Walker v. State, 842 So.2d 969 (Fla. 4th DCA 2003); Warner v. State, 798 So.2d 885, 886 (Fla. 4th DCA 2001).

We reverse the summary denial of Min-cey’s motion and remand for re-sentencing. We note the state’s reference to a 1989 “sentence” of probation, see State v. Richardson, 915 So.2d 86 (Fla.2005), but see no supporting documents associated with that predicate. On remand, the state may again seek sentencing as a habitual felony offender, subject to evidence of satisfactory predicate convictions. See Rich v. State, 814 So.2d 1207, 1208 (Fla. 4th DCA 2002); Cameron v. State, 807 So.2d 746, 747 (Fla. 4th DCA 2002); Wainer, 798 So.2d at 885.

SHAHOOD, C.J., POLEN and KLEIN, JJ., concur.


text:
    Gerald PARROW, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3056.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Gerald Parrow, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant refiling a new 3.800(a) motion.

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


text:
    Tyrone Brett LIGHTSEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-800.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.

      Tyrone Brett Lightsey, Lake City, pro se.
    No response required for respondent.
   PER CURIAM.

In his petition for habeas corpus relief, Tyrone Lightsey makes a claim of ineffective assistance of appellate counsel. We deny the petition, but write to address the petition’s assertion that the appellate attorney was ineffective for failing to argue that the police gave defective Miranda warnings.

In Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986), the court stated:

A claim of ineffective assistance of counsel, to be considered meritorious, must include two general components. First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Here, although petitioner may have shown an omission in failing to raise the Miranda issue, he has failed in the second test, namely that this undermined confidence in the outcome of the appeal. Petitioner alleges in summary fashion that, if the issue had been raised, it would have affected the outcome and “the entire conviction would’ve possibly been reversed or remanded,” the “charges would’ve been dropped,” and “the case possibly would’ve been dismissed.” Such conelusory allegations are insufficient. See Patton v. State, 878 So.2d 368 (Fla.2004) (a summary or conelusory allegation is insufficient for appellate purposes to examine the specific allegations against the record); see also Brown v. State, 894 So.2d 137 (Fla.2004) (petition for ineffective assistance of counsel facially insufficient for failure to show how outcome of case would have been different). Even Miranda violations can be the subject of a harmless error analysis, and petitioner has failed to show that the error was not subject to the harmless error analysis.

Denied.

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


text:
    Charles E. DONALD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2973.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2007.
    Charles E. Donald, pro se, Petitioner.
    Bill McCollum, Attorney General; Heather Flanagan Ross and Thomas Wi-nokur, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Charles E. Donald is hereby afforded a belated appeal of the order denying motion for postcon-viction relief in case number 16-2001-CF-4847 in the Circuit Court for Duval County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The court is directed to appoint counsel to represent petitioner in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

WOLF, BENTON, and HAWKES, JJ., concur.


text:
    Michael MORROW, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-510.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2007.
    Michael Morrow, Okeechobee, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON CONCESSION OF ERROR

PER CURIAM.

The appellant, Michael Morrow, seeks review of the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied Mr. Morrow’s motion without attaching documents establishing that Mr. Morrow is not entitled to the relief that he seeks. The State concedes error on the point. See Crawford v. State, 823 So.2d 832 (Fla. 2d DCA2002).

The order of the trial court is reversed, and this cause is remanded with instructions that the trial court either grant the relief requested or attach portions of the record that support the denial of relief. If a hearing is required, Mr. Morrow has the right to be present.

REVERSED AND REMANDED.

PALMER, C.J., SAWAYA and ORFINGER, JJ., concur.

      . While Mr. Morrow filed a motion under rule 3.850, he requests the court to correct his sentence under rule 3.800(a). Mr. Morrow’s claim is that the scoresheet was miscalculated and the miscalculation is apparent on the face of the court records. Nonetheless, the procedure on appeal is identical.


text:
    Stanley E. MILES, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0956.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2007.
    Stanley E. Miles, pro se, Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Stanley E. Miles, challenges the trial court’s summary denial of his eleven claims of ineffective assistance of counsel brought pursuant to Florida Rule of Criminal Procedure 3.850. We find no error with the trial court’s summary denial of claims one through seven and claims nine through eleven. However, the record attachments do not conclusively refute claim eight. Accordingly, we reverse the trial court’s order as to the summary denial of claim eight and remand with instructions to either attach portions of the record that conclusively refute the claim or conduct an evidentiary hearing. See Peede v. State, 748 So.2d 253, 257 (Fla.1999) (explaining that the summary denial of a rule 3.850 claim may be upheld only if a claim is facially invalid or conclusively refuted by the record).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

BARFIELD, DAVIS, and LEWIS, JJ., concur.


text:
    Jerry DOTY, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D07-1369.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2007.
    Jerry Doty, pro se, for Appellant.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of a final order denying his petition for a writ of mandamus challenging his classification by the Department of Corrections as a medium custody inmate. However, because appellant has been released from prison, this appeal is moot. See Phillips v. McDonough, 962 So.2d 375 (Fla. 1st DCA 2007). For that reason, we dismiss the appeal.

DISMISSED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Holly FINLEY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Advanced Technologies Labs, Appellees.
    No. 1D07-3473.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2007.
    Holly Finley, pro se, Appellant.
    Geri Atkinson-Hazelton, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of July 9, 2007, the Court has determined that the appellant’s notice of appeal, filed on June 22, 2007, failed to timely invoke the Court’s jurisdiction. Specifically, because the order on appeal was rendered on May 22, 2007, the notice of appeal should have been filed no later than June 21, 2007. Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby dismissed for lack of jurist-diction.

WOLF, BENTON, and HAWKES, JJ., concur.


text:
    Harley BLEVINS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4517.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.

      Harley Blevins, Jr., Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant, Harley Blevins, Jr., appeals the summary denial of his rule 8.850 motion for postconviction relief. The record does not conclusively refute two legally sufficient grounds of ineffective assistance of counsel, thus we reverse and remand for an evidentiary hearing as to grounds one and two. We affirm, without comment, as to all other grounds for relief raised in the motion.

In the first ground for relief, Blevins claims his attorney failed to adequately advise him concerning a plea offer. Specifically, Blevins claims his attorney misinformed him concerning the presence of fingerprint evidence that tied him to the crimes and misinformed him of the ability of one eyewitness to positively identify him at the crime scene. Blevins alleges that if he had known of the fingerprint evidence and positive identification, he would have accepted the twenty-five-year prison sentence and thus avoided the life sentence he received after conviction. We conclude this allegation is legally sufficient and not refuted by the record. The allegations are virtually identical to those found in Steel v. State, 684 So.2d 290 (Fla. 4th DCA 1996), and distinguishable from Cottle v. State, 733 So.2d 963 (Fla.1999), and Smith v. State, 825 So.2d 1012 (Fla. 4th DCA 2002).

In the second ground for relief, Blevins claims his attorney failed to properly advise him of his right to testify. Prior to his colloquy concerning his right to testify, the parties discussed an objection to the State’s request for a jury instruction on the presumptions related to possession of recently stolen property. However, during this discussion, neither the attorneys nor the judge discussed the manner in which this presumption could be overcome and Blevins specifically alleges his attorney failed to explain this matter to him prior to making a decision to remain silent. In other words, Blevins was not aware that the instruction would tell the jury that the unexplained possession of recently stolen property raises the presumption of guilt. See generally Jalbert v. State, 95 So.2d 589 (Fla.1957) (explaining the presumption); Jackson v. State, 736 So.2d 77 (Fla. 4th DCA 1999) (noting the presumption exists for the unexplained possession of recently stolen property). Blevins includes a detailed description of his proposed testimony which attempts to provide an innocent explanation for his possession of recently stolen property. We conclude the specific allegations in this motion are legally sufficient and not refuted by the transcripts.

Because Blevins presents two legally sufficient claims of ineffective assistance of counsel that are not conclusively refuted by the record, we reverse and remand for further proceedings as to grounds one and two, wherein the lower court may conduct an evidentiary hearing if further record evidence cannot conclusively refute the claims. We affirm the summary denial as to all other claims of error.

GUNTHER, STEVENSON and HAZOURI, JJ., concur.