author: ROTHENBERG, Judge.

text:
    MIAMI-DADE COUNTY, Appellant, v. Javi Leo Maurice WALKER, etc., et al., Appellees.
    No. 3D04-2806.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 2007.
    Robert A. Ginsburg, Miami-Dade County Attorney, and Thomas H. Robertson, Assistant County Attorney, for appellant.
    Hersch & Talisman and Patrice A. Talisman; and Kutner, Rubinoff & Bush, for appellees.
    Before SHEPHERD, and ROTHENBERG, JJ., and LEVY, Senior Judge.
   ROTHENBERG, Judge.

The defendant, Miami-Dade County (“Miami-Dade”), appeals from a stipulated final judgment that reserved the right to appeal the trial court’s denial of Miami-Dade’s motion to dismiss for lack of prosecution. We affirm.

The plaintiffs, Javi Leo Maurice Walker etc., et ah, filed suit against University Baptist Church of Coral Gables (“UBC”) and Miami-Dade for injuries Javi sustained when swimming at a Miami-Dade park while enrolled in a summer camp at UBC.

In September 2002, plaintiffs’ counsel hired a paralegal who had previously worked for UBC’s counsel. While employed by UBC’s counsel, this paralegal worked on the plaintiffs’ lawsuit. Upon learning of this situation, on October 10, 2002, UBC moved to disqualify plaintiffs’ counsel. On December 31, 2002, the trial court granted UBC’s motion to disqualify.

On January 29, 2003, the plaintiffs filed a petition for writ of certiorari in this court, seeking review of the trial court’s order granting the motion to disqualify. This court denied the petition on March 12, 2003, and on April 16, 2003, denied the plaintiffs’ motion to certify conflict.

Prior to the disposition by this court of the petition for writ of certiorari, the plaintiffs filed a Response to Request for Production on February 13, 2003, and following this court’s disposition, the plaintiffs filed a Notice of Change of Firm Name on July 8, 2003.

On February 17, 2004, Miami-Dade moved to dismiss the action for lack of prosecution. A few days later, on February 20, 2004, the plaintiffs filed their Notice of Filing. Attached to the Notice of Filing was a copy of this court’s order denying the plaintiffs’ petition for writ of certiorari and a copy of the order denying the plaintiffs’ motion to certify conflict. In addition, on May 17, 2004, the plaintiffs filed a written response, asserting that the certiorari proceeding before this court constituted good cause. The plaintiffs argued that because their petition for writ of cer-tiorari was filed in good faith and in an attempt to move the case toward a conclusion, their case should not be dismissed for lack of prosecution. Following a hearing, on June 17, 2004, the trial court entered an order denying the motion to dismiss, finding that the plaintiffs had shown good cause.

Following the denial of Miami-Dade’s motion to dismiss for lack of prosecution, Miami-Dade and the plaintiffs entered into a stipulated judgment, finding Miami-Dade negligent and awarding the plaintiffs $150,000 in damages. The parties also agreed that Miami-Dade could appeal the denial of its motion to dismiss for lack of prosecution, and that if successful on appeal, the stipulated final judgment would be vacated.

In this appeal, Miami-Dade contends that the trial court abused its discretion in denying its motion to dismiss for lack of prosecution. We disagree.

Florida Rule of Civil Procedure 1.420(e), which permits a trial court to dismiss a lawsuit for failure to prosecute, provides:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Therefore, pursuant to Rule 1.420(e), “first, the defendant must show that there was no record activity for the year preceding the motion. Second, if there was no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed.” Metro. Dade County v. Hall, 784 So.2d 1087, 1090 (Fla.2001).

In the instant case, Miami-Dade filed its motion to dismiss for lack of prosecution on February 17, 2004. A review of the record indicates that the only item filed by the plaintiffs during the year preceding the filing of the motion to dismiss was a Notice of Change of Firm Name. We conclude that this pleading constitutes record activity and, therefore, the motion to dismiss was properly denied.

Subsequent to the filing of the instant appeal, the Florida Supreme Court receded from its prior interpretation of rule 1.420(e) to the extent that it required trial courts to look behind the face of the record to determine whether the record activity was passive or active. See Wilson v. Salomon, 923 So.2d 363, 369 (Fla.2006). Under the passive/active analysis, if the activity was passive, dismissal of the lawsuit was proper; whereas, if the activity was active, in that it served to move the case forward, dismissal was precluded. The Florida Supreme Court in Wilson, however, determined that the passive/active test resulted in an unworkable, subjective analysis and, therefore, adopted a “bright line” test: if there is any record activity within the previous year, the inquiry ends and the motion must be denied. Id,.; see also Nie v. Beaux Gardens Assocs., Ltd., 923 So.2d 1200 (Fla. 3d DCA 2006)(holding that the filing of a notice for pretrial conference and a notice for a case management conference constituted record activity precluding dismissal under Florida Rule of Civil Procedure 1.420(e)); Reddy v. Farkus, 933 So.2d 595, 597 (Fla. 5th DCA 2006)(holding that the filing of a notice of cancellation of hearing constituted record activity sufficient to preclude dismissal under the interpretation given to rule 1.420(e) by the Florida Supreme Court in Wilson).

Affirmed.

      . We note that on March 12, 2003, this court denied the plaintiffs’ petition for writ of cer-tiorari. Had the plaintiffs filed a copy of this order in the circuit court within the year preceding the filing of the motion to dismiss for lack of prosecution, this filing would also have constituted record activity. See Murphy White Dairy, Inc. v. Simmons, 405 So.2d 298 (Fla. 4th DCA 1981)(holding that plaintiff's act of filing in the circuit court a copy of appellate court’s order dismissing appeal constitutes record activity); Ortiz v. Biscayne Med. Ctr., Inc., 385 So.2d 1146, 1146 (Fla. 3d DCA 1980)(holding that order of appellate "court which denied the petition for writ of certiorari and was filed in the circuit court is record activity within the meaning of Rule 1.420(e), Florida Rules of Civil Procedure”)(emphasis added).

      . We note that the parties and the trial court did not have the benefit of Wilson, Nie, and Reddy, and, therefore, confined their analysis as to whether good cause was demonstrated. We need not address this second prong as we conclude, based upon Wilson, that there was record activity precluding dismissal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Stephanie Moore HENRY, Appellant/Petitioner, v. In re ESTATE OF Lillie Mae MOORE, Appellee/Respondent.
    No. 3D06-1551.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 2007.
    Stephanie Moore Henry, in proper person.
    Leah A. Simms, guardian ad litem.
    Before COPE, C.J., and FLETCHER and ROTHENBERG, JJ.
   PER CURIAM.

We affirm the order of the circuit court pursuant to the provisions of Florida Rule of Appellate Procedure 9.315.


author: WELLS, Judge.

text:
    Kristina RANDALL, Appellant, v. Stephen RANDALL, Appellee.
    No. 3D06-6.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 2007.
    Patterson & Sweeny and John H. Patterson, Jr., Miami, for appellant.
    Daniel Kaplan, Aventura, for appellee.
    Before, WELLS, SUAREZ, and ROTHENBERG, JJ.
   WELLS, Judge.

Kristina Randall appeals from an order finding her in indirect civil contempt, discharging a contempt order previously entered against her former husband, Stephen Randall, and changing the terms of an earlier order as to the sale of certain property. We reverse this order in all respects.

In June of 2002, the parties’ thirty year marriage was dissolved by a final judgment of dissolution of marriage which incorporated an agreement primarily made in open court. Pursuant to that agreement, Ms. Randall waived alimony “in return for an equitable distribution of the marital estate” which turned out to equal a one half ownership interest in Atlantic Mills, Inc., a company owned by the parties and operated by Mr. Randall during the marriage, and one half of the equity value, then set at $500,000, in a warehouse to remain titled in Mr. Randall’s name.

With regard to Atlantic Mills, Mr. Randall was given until May 2002 (a month before the final judgment) to get that business “in order,” failing which Mrs. Randall was to take over its operation. Although Mr. Randall was ordered to pay child support for the parties’ two minor children, he was permitted to pay it from Atlantic Mills’ funds until that entity was sold. Atlantic Mills’ funds also were to be used, until sold, to pay certain specified loans and business expenses, health insurance for the parties and their children, lease and insurance payments on both Mr. and Mrs. Randall’s cars, disability insurance for the parties, insurance on the warehouse awarded to Mr. Randall, a line of credit with Eastern National Bank and $250 per week in salary to Mrs. Randall. As for the sale of this business, the final judgment provided:

Should a cash offer of Three Hundred Seventy-Five Thousand Dollars ($375,-000.00) or more come in for Atlantic Mills, then neither party may withhold his or her consent to the sale. The Court reserves jurisdiction to determine whether there should be a sale based upon an inferior offer should the parties be unable to agree.

Although the final judgment did not obligate Mr. Randall to sell the warehouse so that Mrs. Randall would receive her distribution by any certain date, it did require the net monthly income from that property ($9600 per month from tenants and leased billboard space, less mortgage, taxes, and maintenance) to be deposited into a joint signatory account and distributed equally between the parties.

The judgment also distributed the parties’ personal debts making Mr. Randall responsible for all personal debts of the parties with the exception of an MBNA credit card, a Neiman Marcus credit card, a direct student loan, and one-half of an outstanding dental bill for which Mrs. Randall was to be “responsible.”

Barely five months after the final judgment was entered, on November 15, 2002, an order was entered finding that Mr. Randall had violated virtually every provision of the final judgment. Specifically, the court found that Mr. Randall failed to pay required private school tuition; that Mr. Randall, while in sole control of Atlantic Mills, had failed to pay Mrs. Randall’s car and disability insurance; and that Mr. Randall had used Atlantic Mills’ funds to pay for an appraisal and the property taxes on his warehouse and to pay for some of his personal expenses. The court also found that contrary to the final judgment, Mr. Randall had negotiated with a lender without Mrs. Randall’s consent and that as a consequence of Mr. Randall’s actions, Atlantic Mills had been rendered essentially valueless:

The Former Husband deliberately undermined the Former Wife’s position in Atlantic Mills, Inc. and set about in a deliberate and destructive manner to squander Atlantic Mills, Inc. revenues and assets prior to the turnover to the Former Wife on June 1, 2002....

The court also noted that Mr. Randall had received an offer to purchase his warehouse for $900,000 and although he was not obligated to sell it, “all financial obligations to the parties still outstanding could be resolved by such sale including any debt on the credit line of Atlantic Mills, Inc. or the outstanding mortgage on the warehouse.” Based on these findings, and the finding that Mr. Randall was “satisfied to earn two hundred fifty dollars ($250.00) a week from Atlantic Mills, Inc. rather than work for another income producing entity,” Mr. Randall was ordered to report to the court within 45 days as to whether he had paid $250,000 to Mrs. Randall or had sold the warehouse:

B. Within forty-five (45) days, the Former Husband shall report to the Court as to either the sale of the Warehouse or the payment of two hundred fifty thousand dollars ($250,000.00) to Ms. Randall in order to purge himself of this Order of willful contempt.
C. If the Former Husband fails to pay the two hundred Sty thousand dollars ($250,000.00) or sale the warehouse in order to raise the money to pay the two hundred fifty thousand dollars ($250,000.00), the Former Husband may be incarcerated for failure to comply with this Order.

Mr. Randall appealed this order. It was, however, affirmed with an award of appellate fees and costs to Mrs. Randall. Randall v. Randall, 875 So.2d 667 (Fla. 3d DCA2004).

On September 13, 2005, a new judge was assigned to this case. Rather than selling the warehouse, Mr. Randall requested permission to refinance it. The court agreed to permit Mr. Randall to refinance the warehouse “provided that the Former Wife shall be paid $250,000 in full, with interest thereon, first, without setoff, from 11/15/02; and provided that the Final Judgment for Appellate Attorney’s Fees and Costs shall likewise be satisfied.” Mr. Randall did not, however, either sell or refinance the warehouse. Nor did he pay Mrs. Randall as repeatedly ordered. Rather, he filed two motions for rehearing in which he sought to set off virtually the entire, if not the entire, $250,000 that he was to pay to Mrs. Randall.

The motions were granted. Contrary to the order of November 15, 2002, affirmed by this court, this order, dated December 12, 2005, found that it was Mrs. Randall’s refusal to accept a $235,000 offer to purchase Atlantic Mills prior to entry of the amended final judgment and not Mr. Randall’s “deliberate and destructive” conduct that caused Atlantic Mills to be lost. Although no basis was found for holding Mrs. Randall in contempt for failing or refusing to sell this business, the court nonetheless concluded that Mrs. Randall’s “refusal to accept the offer to purchase was unreasonable ... and since [Mrs. Randall] was willing to accept zero, zero is exactly what she shall receive by way of this order.” Mr. Randall was relieved of the obligation imposed by the November 15, 2002, order — an order affirmed by this court — to either pay Mrs. Randall $250,000 or to sell his warehouse so that he could pay her for dissipating this asset;

On November 15, 2002, this Court found the former husband in contempt for failing to pay the former wife $250,000.00 despite the fact that the warehouse had not been sold.... This Court now determines that the former husband need not ever sell the warehouse if he so chooses and that he is only obligated to pay the former wife if a sale ever occurs. The contempt finding against the former husband is now discharged.

(Emphasis added).

Mrs. Randall also was held in contempt for failing to pay the debts assigned to her in the final judgment. The order also provided that if Mr. Randall paid these debts, he would be entitled to a set off against the $250,000 that Mrs. Randall was to receive from the sale of the warehouse — assuming, of course, it was ever sold.

We reverse this order in its entirety.

First, the court below erred in holding Mrs. Randall in contempt for failure to satisfy debts to third parties ordered as part of an equitable distribution. See § 61.075, Fla. Stat. (2006) (requiring equitable distribution of marital liabilities). “The enforcement through contempt of debts not involving support violates Article 1, section 11 of the Florida Constitution, the provision prohibiting imprisonment for debt.” See Whelan v. Whelan, 736 So.2d 732, 733-34 (Fla. 4th DCA 1999); Schminkey v. Schminkey, 400 So.2d 121, 122 (Fla. 4th DCA 1981). While there may be “certain circumstances where a former spouse’s payment of credit debts or other debts may be in the nature of support such that payment of those debts may be enforced through contempt,” Whelan, 736 So.2d at 733-34, such is not the case here.

Second, there is no evidence that Mrs. Randall has the current ability to pay these debts.

Third, and with all due respect to the trial judge, the subject of Mr. Randall’s motions for rehearing was the trial court’s previous order requiring Mr. Randall to pay $250,000 to Mrs. Randall without set offs. These motions did not attack the validity of the November 2002 order, which had just been affirmed by this court, obligating Mr. Randall to pay $250,000 to Mrs. Randall. Nor do we see any basis on which that order may now be attacked. Thus, the determination made in the November 2002 order that Mr. Randall dissipated Atlantic Mills entitling Mrs. Randall to immediate payment of $250,000 was not, “up for grabs.” The trial court’s conclusion that this business was lost because Mrs. Randall rejected a purchase offer made before the amended final judgment was entered permitting her to reject any offer under $375,000 (and not because Mr. Randall destroyed this asset) is, therefore, reversed. See Smith v. Smith, 927 So.2d 118, 120 (Fla. 2d DCA 2006) (quoting Sabine v. Sabine, 834 So.2d 959, 960 (Fla. 2d DCA 2003), “when ‘a judgment is not based on an issue that had been framed by the pleadings, noticed for hearing, or litigated by the parties, it may not stand’ because ‘[t]he failure to follow these basic procedural requirements implicates due process concerns.’ ”); see generally Sibley v. Sibley, 885 So.2d 980, 981 (Fla. 3d DCA 2004) (“Since the former husband already appealed the March 4 order and this court already affirmed it, common sense and principles of res judica-ta dictate that the former husband cannot now mount a second appeal of the March 4 order.”); Mocegui v. Pub. Serv. Mut Ins. Co., 821 So.2d 1189, 1191-92 (Fla. 3d DCA 2002) (“A trial court’s authority to modify, amend, or vacate an order or final judgment after rendition of the final judgment is limited to the time and manner provided by rule or statute.”).

Accordingly, the order on appeal is reversed and this matter remanded to enforce the November 15, 2002 order and this court’s mandate for payment of related appellate fees and costs.

      . Mr. Randall sought to set off sums equal to the MBNA, Neiman Marcus, and student loans for which Mrs. Randall was made responsible in the final judgment (approximately $40,000); one half of the taxes on the warehouse which he had paid; approximately $405,000 in damages he allegedly incurred because Mrs. Randall had rejected a $235,000 offer to purchase Atlantic Mills before the amended final judgment which provided that neither could be forced to accept an offer of less than $375,000 for this business; the attorneys’ fees he allegedly incurred in responding to a motion that pre-dated the amended final judgment; the attorneys’ fees he allegedly incurred “related to compiling ... creditor authorizations’’ regarding Mrs. Randall’s MBNA, Neiman Marcus and student loan obligations; and the attorneys’ fees he allegedly incurred in seeking to hold Mrs. Randall in contempt for alleged false statements regarding his operation of Atlantic Mills before she took it over.

      . Mrs. Randall acknowledged her responsibility to pay the credit cards and student loan, but testified: "Those are my responsibilities. However, I don't have the financial wherewithal to pay those debts.” Mrs. Randall also testified that she had lost the job that she had taken after Atlantic Mills had gone defunct, and that she had begun a new job, testifying:
      Q. Are you able to make ends meet?
      A. No.
      Q. Have you had to borrow money to maintain your household, including your children?
      A. Yes.
      Q. Have you had the money to pay any of the debts that were assigned to you in the amended final judgment?
      A. None.
      Q. Have you had to borrow money from your mom to survive?
      A. Yes.
      Q. Approximately how much?
      A. She's still supporting me now and giving me $2,000 a month, but—
      Q. Do you have money to pay your attorneys?
      A. No.
      Q. Do you have money to pay any experts?
      A. No.

      . While we agree that Mrs. Randall must be paid $250,000 (with interest) by Mr. Randall without set offs now, we see no reason why a portion of these funds (not to exceed $40,000) could not be escrowed or set aside for a reasonable period of time to assure that Mrs. Randall will negotiate and resolve her outstanding obligations to MBNA, Neiman Marcus, and for a student loan. We also find no error in permitting Mr. Randall to refinance the warehouse to pay Mrs. Randall the $250,000 as ordered as long as the costs of the refinancing and any additional monthly charges resulting from an increase in the mortgage debt on the property are not deducted from the net monthly income which is to be equally divided between the parties under the terms of the judgment.


author: VAN NORTWICK, J.

text:
    Robert M. STOKES, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-0114.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2007.

      Robert M. Stokes, pro se, Petitioner.
    Charlie Crist, Attorney General, and Alexandria Walters, Assistant Attorney General, Tallahassee, for Respondent.
   VAN NORTWICK, J.

Robert M. Stokes, an inmate in the custody of the Florida Department of Corrections (DOC), petitions for a writ of certio-rari for review of a circuit court order denying extraordinary relief and an order imposing a lien on petitioner’s inmate trust account. We grant certiorari, quash the order imposing a lien and remand the cause.

First, the trial court erred in denying petitioner’s motion to vacate the order placing a lien on his prison trust account. The lien was imposed on the authority of section 57.085, Florida Statutes, after petitioner filed his petition in the trial court challenging a disciplinary proceeding which resulted in disciplinary confinement and the loss of gain-time. The lien is not proper. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). As we did in Wagner v. McDonough, 927 So.2d 216, 217 (Fla. 1st DCA 2006), we rejected the argument made to us by the State that recent amendments to sections 57.082(5) and 28.246(4) authorize imposition of the lien.

As for the issues raised by the petition for extraordinary relief filed below, the trial court ruled that the petitioner did not timely file a grievance with the officials of DOC raising the issue of whether a charge for self-mutilation could have been brought against petitioner without a prior determination that petitioner’s conduct (cutting his forearm) was not a suicide attempt. Based on our review of the record, we find that the issue was sufficiently raised at the administrative level and hold that the trial court erred in not passing on the merits of this issue. See Woullard v. Bishop, 734 So.2d 1151, 1152 (Fla. 1st DCA 1999).

Rule 33-601.314, section 9-30, Florida Administrative Code, proscribes self-mutilation, which the rule defines as including “self-disfigurement such as body piercing, scarring and other non-life threatening acts.” The rule further provides that the “[djetermination of whether an act constitutes self-mutilation as opposed to a suicide attempt shall be made by health care staff.” (bold added).

Following a hearing, the DOC disciplinary team determined that petitioner was guilty of the charged infraction of self-mutilation. Petitioner thereafter filed a grievance which argued, in part:

Sgt. Clark failed to ascertain a clear understanding of the charge (9/30) self mutalation [sic] — wherefore the appellant was having a “new-crisis” (mental) and not simply indulging in “body art” to which constitutes self-mutalations [sic][.] Had Sgt. R. Clark given the matter some consideration, referred to chapter 33 Rule Infraction Code, and consulted with medical personnel first[,] this report would not have been written.

(Bold added).

After this initial grievance was denied, petitioner filed a grievance with the Secretary of the DOC, in which he argued, in part:

Sgt. Clark simply failed to fully understand or ascertain the situation before his eyes, before deeming it self mutilation. As well as failed to consult with medical. He had plenty of time to do so between the time of the incident at 18:35 and the time of the disciplinary report was written at 20:30. Furthermore, one is not hospitalized on an ISO ward, administered an IV and placed in a SOS cell under suicide watch for tattooing one’s body, meaning self mutilation.

(Bold added).

Generally speaking, pleadings are to be construed favorably to the pleader. See Krantzler v. Board of County Comm’rs, 354 So.2d 126, 129 (Fla. 3d DCA 1978). Furthermore, “liberal construction should be given to pro se pleadings.” Tillman v. State, 287 So.2d 693, 694 (Fla. 2d DCA 1973); Thomas v. State, 164 So.2d 857, 857 n. 1 (Fla. 2d DCA 1964); Martinez v. Frazedas, 678 So.2d 489, 491 (Fla. 3d DCA 1996); Eichelberger v. Brueckheimer, 613 So.2d 1372, 1373 (Fla. 2d DCA 1993); Chancey v. Chancey, 880 So.2d 1281, 1282 (Fla. 2d DCA 2004). Mindful of these precepts, we hold that petitioner did sufficiently grieve the issue of whether the DOC erred in not obtaining a determination by health care staff that petitioner’s conduct was not a suicide attempt as mandated by rule 33-601.314.

To the extent the trial court may have found any failure on the part of DOC to abide by rule 33-601.314 to be a de minimis violation, we cannot agree. The requirement that the determination of whether an act was self-mutilation must be made by “health care staff’ is an essential one, and DOC, as a state agency, is bound by its own rules. See Marrero v. Department of Prof'l Regulation, 622 So.2d 1109, 1112 (Fla. 1st DCA 1993).

Accordingly, the petition for a writ of certiorari is granted, the order summarily denying petition is quashed, and the matter is remanded to the trial court for further proceedings. Further, as noted, the order imposing a lien on petitioner’s inmate account is also quashed, and any funds deducted from that account pursuant to the lien are to be restored.

BROWNING, C.J., and WOLF, J., concur.

      . While the petitioner styled his circuit court petition as a petition seeking certiorari relief, the trial court properly construed it as a petition for mandamus relief. Woullard v. Bishop, 734 So.2d 1151, 1152 (Fla. 1st DCA 1999) (explaining that a petition for writ of mandamus is the appropriate vehicle for review of a prison disciplinary proceeding). Mandamus may lie where a party seeks an agency’s compliance of its rules. See Holland v. Wainwright, 499 So.2d 21, 22 (Fla. 1st DCA 1986) (“The writ may be used to compel the performance of a ministerial duty imposed by law where it has not been performed as the law requires.”); Plymel v. Moore, 770 So.2d 242 (Fla. 1st DCA 2000).


text:
    Dana LINCOLN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3060.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2007.

      Dana Lincoln, Malone, pro se.
    No Appearance for Respondent.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

Dana Lincoln (defendant) filed a motion with this court on December 4, 2006. We deem the motion to be a motion for clarification of this court’s order dated October 17, 2006, which ruled that the defendant’s petition for belated appeal was facially insufficient. We grant the motion and withdraw the October 17, 2006 order.

Although the defendant’s petition for belated appeal alleges that the defendant had requested his trial counsel to file a notice of appeal on his behalf, the motion does not allege when the defendant made that request. As a result, it is not possible for this court to determine whether the request was timely made. Accordingly, the defendant’s motion for belated appeal is facially insufficient.

MOTION GRANTED; PETITION DENIED.

SAWAYA, PALMER, and TORPY, JJ., concur.


text:
    Edsel I. DEL VALLE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3411.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2007.
    Edsel I. Del Valle, Orlando, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner Edsel I. Del Valle seeks cer-tiorari review of the trial court’s order denying his motion to mitigate sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely because it was not filed within sixty days after imposition of sentence implying that it had no jurisdiction to review the motion. We hold the trial court had jurisdiction, grant the petition for writ of certiorari, and remand for consideration on the merits.

An order denying a rule 3.800(c) motion based on lack of jurisdiction is reviewable by certiorari. Staveley v. State, 866 So.2d 1239, 1240 (Fla. 5th DCA 2004). If the trial court improperly denies the motion due to untimeliness, its order departs from the essential requirements of the law entitling the defendant to certiora-ri relief. Pruitt v. State, 932 So.2d 617-18 (Fla. 1st DCA 2006).

The State correctly concedes that Del Valle’s rule 3.800(c) motion for reduction or modification of sentence was timely filed. Accordingly, the trial court did possess jurisdiction to consider its merits. The State also correctly concedes that the order departs from the essential requirements of law, and that Del Valle is entitled to certiorari relief. See, e.g., Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).

Rule 3.800(c) permits the filing of a motion to mitigate sentence “within 60 days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence on an original appealThe circuit court docket sheet shows the trial court received and recorded this court’s mandate affirming petitioner’s judgment and sentence on 15 August 2006. The docket sheet also shows Del Valle filed his motion to mitigate sentence on 25 August 2006, which is within the sixty days permitted under rule 3.800(c).

Therefore, we GRANT the petition for writ of certiorari, QUASH the order denying Del Valle’s rule 3.800(c) motion for lack of jurisdiction, and REMAND for further proceedings.

PLEUS, C.J., THOMPSON and MONACO, JJ., concur.


author: CANADY, Judge.

text:
    O.H., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2924.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 2007.

      James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

O.H. appeals her juvenile adjudications and dispositions for battery, disrupting a school function, and resisting an officer without violence. We affirm her adjudications and dispositions without comment, but we reverse the original order of restitution.

O.H. was ordered to pay $102 in restitution for wages lost by the victim’s mother in attending and testifying at trial. On February 23, 2006, O.H. filed a motion to correct disposition error pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2), which provides that a trial court shall file an order ruling on the motion within thirty days or the motion is deemed denied. The trial court granted the motion on April 19, 2006. Because the trial court did not rule on the motion within thirty days, the order granting the motion is a nullity. See E.J. v. State, 912 So.2d 382, 383 n. 1 (Fla. 2d DCA 2005) (noting that rule 8.135(b) is the juvenile version of Florida Rule of Criminal Procedure 3.800(b)); Jackson v. State, 793 So.2d 117, 118 (Fla. 2d DCA 2001) (holding that a trial court order that untimely rules on a rule 3.800(b) motion is a nullity). However, the trial court correctly determined that O.H. should not be ordered to pay restitution for the victim’s mother’s lost wages. See P.H. v. State, 774 So.2d 728, 729 (Fla. 2d DCA 2000); J.S. v. State, 717 So.2d 175, 176-77 (Fla. 4th DCA 1998); J.B. v. State, 646 So.2d 808, 808-09 (Fla. 1st DCA 1994). Therefore, we reverse O.H.’s original order of restitution and remand for the trial court to enter a corrected order of restitution.

Affirmed in part; reversed in part.

WHATLEY and STRINGER, JJ., Concur.


text:
    Eugenio ACEVEDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4269.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2007.
    Adam H. Sudbury, of Calzada, Hamner & Wilson, P.L., Orlando, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Card v. State, 927 So.2d 200 (Fla. 5th DCA 2006).

GRIFFIN, PALMER and EVANDER, JJ., concur.


author: BENTON, J.

text:
    Gerald M. McKIRE, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-0312.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.
    Gerald M. McKire, pro se, Appellant.
    Charlie Crist, Attorney General, and Sean F. Callaghan, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Gerald M. McKire seeks review of the circuit court’s order denying his petition for a writ of mandamus as untimely. The mandamus petition challenged gain-time forfeitures resulting from several prison disciplinary proceedings. We affirm the denial of the petition for writ of mandamus as untimely.

After Mr. McKire filed his notice of appeal of the order denying his mandamus petition, and in response to an order we issued requiring that he file a certified copy of the circuit court’s order of insolvency for appellate purposes (or pay to the clerk of this court the appellate filing fee), the clerk of the circuit court prepared a certificate stating that Mr. McKire was indigent and had incurred circuit court costs and fees in the amount of $120.50.

On the same day the clerk’s certificate was issued, the circuit court ratified and adopted it as an order of the court. This order, entered post-judgment and while the appeal of the denial of the mandamus petition was pending, ordered the Florida Department of Corrections to place a lien on Mr. McKire’s trust account in the amount of the court costs and fees incurred in the mandamus proceeding in circuit court. From the initial brief, it appears that review is sought of the lien order, too. See generally Schmidt v. Crusoe, 878 So.2d 361, 367 (Fla.2003).

But Mr. McKire never filed a separate notice of appeal (or any paper that could be construed as a notice of appeal) to invoke our jurisdiction as to the lien order, and made no attempt to amend his earlier notice of appeal. See, e.g., Tribble v. State, 936 So.2d 788, 788 (Fla. 4th DCA 2006) (“The jurisdiction of this court ... is ‘invoked by filing 2 copies of a notice ... with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.’ Fla. R.[]App. P. 9.110(b).”); Hamlin v. E. Coast Props., Inc., 616 So.2d 1175, 1176 (Fla. 1st DCA 1993) (“The record is clear that appellants filed their notice of appeal on February 26, 1992, and that such notice of appeal was directed to the aforementioned judgment granting specific performance. Appellants neither filed a new notice of appeal, nor amended their prior notice of appeal at any time. Accordingly, this court does not have subject matter jurisdiction to consider on appeal the February 27, 1992 order.”). Because our jurisdiction over the circuit court’s post-judgment lien order was not timely invoked, we are without authority to review it.

The order denying the petition for writ of mandamus is affirmed.

WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Catrina Ileen HALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5202.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.
    Nancy Daniels, Public Defender, and Judith Hall, Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Catrina Ileen Hall seeks belated appeal from judgment and sentence imposed in Liberty County case number 06-28-CFA, rendered by filing with the clerk on August 21, 2006. Petitioner relies upon her letters to her trial attorney and the sentencing judge which express her desire to appeal. The state opposes the petition on grounds that petitioner entered a plea and would have no viable issues for appeal but we find this argument to be without merit. State v. Trowell, 739 So.2d 77 (Fla.1999).

The letter to the circuit judge is dated September 14, 2006, and contains a stamp showing it was filed with the circuit court clerk on September 19, 2006. It states, in pertinent part, that “I am apealing [sic] my case” and appointment of counsel for the appeal is requested. We find this correspondence can and should be treated as a timely notice of appeal and motion for appointment of counsel in accordance with Wynn v. State, 557 So.2d 188 (Fla. 1st DCA 1990).

The clerk of the circuit court is hereby directed to treat the September 14, 2006, correspondence as a timely notice of appeal and forward it to this court pursuant to Florida Rule of Appellate Procedure 9.040(g) for further proceedings. Because this court’s jurisdiction was timely invoked, the petition for belated appeal is denied as moot. Jackson v. State, 834 So.2d 305 (Fla. 1st DCA 2002).

PETITION DENIED.

BROWNING, C.J., WOLF, and KAHN, JJ., concur.