author: THOMPSON, J.

text:
    Ronald J. ROSEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-394.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    Rehearing Denied Oct. 31, 2006.

      Chandler R. Muller of Muller & Som-merville, P.A., Winter Park, and David A. Henson, Brevard, NC, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Ronald Rosen was convicted of four counts lewd and lascivious molestation and two counts misdemeanor battery. He received concurrent sentences of 231.3 months’ DOC for the molestation counts and 12 months’ jail for the battery counts. We affirm.

FACTS

The convictions involved four alleged victims. Rosen taught the sixth-grade class in which most were enrolled. Most of the conduct alleged occurred in his classroom, and none of the children consented to the touches. The children testified that Rosen discussed their schoolwork or grades while touching them and made no sexual or improper remarks. They generally liked Rosen as a teacher and felt he was kind, strict, affectionate, and helpful. Rosen’s desk was located in a partially obscured section of the back of his classroom. Assistant Principal Baker testified that Rosen always locked the classroom door during school, that she had to knock to enter, and that other teachers did not lock their doors.

Case number 30510 included three counts of lewd and lascivious molestation of 12-year-old C.E. Rosen put his arm around her and rubbed her butt while she was at his desk. He touched her chest while she was in a lunch line. Finally, he put his arm around her shoulders and “patted her boob” at his desk. Rosen was found guilty of lewd and lascivious molestation on counts one and three, but acquitted of count two.

Case number 31603 included one count of lewd and lascivious molestation of 11-year-old K.M. Rosen would touch and rub her butt while she stood by his desk. His touch could have been absent-minded. The jury found Rosen guilty of battery.

Case number 31588 included two counts of lewd and lascivious molestation of 12-year-old A.R. Rosen squeezed her butt while she was by his desk. She backed up, but he moved, put his arm around her, and touched her butt again. On another occasion, he gave her a “boyfriend-type hug” and, as she let go, he brought his hands around her back and set them across the sides of her breast. The jury found Rosen guilty of lewd and lascivious molestation on count one and battery on count two.

Case number 31587 included one count of lewd and lascivious molestation of 11-year-old A.H. Rosen would touch her butt by his desk, put his arm on her butt and thighs, and rub her butt. The jury found Rosen guilty as charged.

The girls had talked with each other about the touching before A.H. wrote a note, which she gave to Sharon Kline, the school’s guidance counselor. A copy of the note was admitted into evidence:

Mrs. Baker, there has been problems [sic] with Mr. Rosen. It seem [sic] Mr. Rosen has been touching girls [sic] butts. If it isn’t any trouble could you please talk to him about it. Thank you. Sincerely, a sixth grade girl. P.S. If you do talk to him tell him to stop. Thanks [■]

(Emphasis in original). Two of the complaining witnesses transferred out of Ro-sen’s class because of the touching.

The court addressed jury instructions early and often. After the jury was sworn, the court told counsel to use the afternoon to look at instructions and make any objections. While the State was presenting its case, the following exchange occurred:

COURT: ... I’ve been harping on you guys for days now .... [P]robably the potentially most delaying thing will be the jury instructions if there are issues. ...
[STATE]: I stayed with Ms. Lemonidis and Mr. Kahn a while yesterday and we went through each instruction.
MS. LEMONIDIS: There wasn’t any problems [sic] with jury instructions.

Nevertheless, the court revisited each instruction, including the lewd and lascivious molestation instructions, to which Ro-sen did not object. No objection was raised during later discussions. After Ro-sen rested, the parties reviewed the instructions again. Rosen did not object despite several opportunities, and counsel affirmatively represented there were no problems with the jury instructions.

The lewd and lascivious molestation instructions required the jury to find, inter alia, that the victims were less than 16 years old and that Rosen “handled or fondled [the victims] in a lewd, lascivious, or indecent manner.” The jury was not required to find that A.H. was less than 12 years old. The victims’ ages at the time of the crimes were read to the jury from the charging informations. Each girl — including A.H., who was 11 when the incidents occurred — had testified to her date of birth.

At Rosen’s request, the jury instructions provided that the jury could find Rosen guilty of battery, a lesser-included offense of lewd and lascivious molestation. At trial, Rosen’s counsel volunteered that “[w]e added this instruction of battery.” Counsel repeatedly sought battery as the lesser-included offense for each count.

At sentencing, Rosen argued that he was either entitled to a new trial or could only be sentenced for third-degree felony molestation because the jury did not find that he was at least 18 and that A.H. was under 12. Counsel argued it was “fundamental error to give improper jury instructions.” The court asked if error occurred, despite her failure to object. Counsel responded: “Well, sure. I’m certainly not going to point out the fact that the State has overlooked the thing that would make it a first-degree felony.” Counsel reiterated that the oversight was “not something that [she] was going to bring to the Court’s attention ... because [she was] not the prosecutor.” The court noted Rosen did not object to the instructions despite several opportunities, that the in-formations contained the girls’ ages, and that there was record evidence of Rosen’s age. The court denied Rosen’s argument based on record evidence and invited error.

At trial, Rosen’s wife testified that they had been married for 31 years. During sentencing, Rosen stated he worked for the school board for 18 years, worked with children since 1970, and was involved in the community since 1959. He introduced a voluminous file of correspondence about his character; many individuals writing on his behalf wrote they had known him for over 30 years.

After sentencing, Rosen contended the lower court lacked the constitutional authority to sentence him because the jury did not deliberate on all elements of lewd and lascivious molestation. The court denied his motion, and Rosen timely appealed.

ANALYSIS

Rosen raises several issues on appeal, but we conclude that none merit reversal of his judgment and sentence and, therefore, affirm. See, e.g., Huck v. State, 881 So.2d 1137, 1140 (Fla. 5th DCA 2004). However, we address three arguments he raised that merit discussion: (1) whether the court erred by denying motions for judgment of acquittal on all counts alleging lewd and lascivious molestation or conduct; (2) whether the court erred by denying his motions for judgment of acquittal for battery; and (3) whether the jury’s failure to find he was at least 18 years old and that A.H. was under 12 years old requires retrial or resentencing.

Judgment of acquittal on leiod and lascivious convictions.

This court reviews de novo motions for judgment of acquittal. Huck v. State, 881 So.2d 1137, 1144 (Fla. 5th DCA 2004). If competent, substantial evidence supports a conviction, it generally will not be reversed. Id. “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, then there is sufficient evidence to sustain a conviction.” Id. If the State’s case is entirely circumstantial, the evidence establishing each element of the offense must be inconsistent with the defendant’s reasonable hypothesis of innocence. Id. If there is such an inconsistency, the trier of fact resolves the question of the defendant’s guilt. Id. at 1145.

Rosen argues that the court erred by denying his motions for judgment of acquittal on all lewd and lascivious molestation counts. He contends that the State’s evidence of his lewd and lascivious intent was entirely circumstantial and did not exclude his reasonable hypothesis of innocence, i.e., that the touches never happened. Because none of the witnesses believed that his touches were sexual, and all said Rosen did not say or do anything overtly sexual, none of the charges should have been submitted to the jury. The State responds that the question of Ro-sen’s lewd and lascivious intent was for the jury to decide based upon the totality of the circumstances.

Section 800.04(5), Florida Statutes (2000), provided:

(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age ... commits lewd or lascivious molestation.
(b) An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a felony of the first degree ....
(c) ...
2. An offender 18 years of age or older who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age
commits a felony of the second degree ....

This court has held that when conduct occurs as described in the statute, the question of whether the acts were committed lewdly or lasciviously is one of fact. State v. Mitchell, 624 So.2d 859, 860 (Fla. 5th DCA 1993). Thus, it was up to the jury to decide whether Rosen’s behavior violated the statute based upon the totality of the circumstances. See id.; accord Method v. State, 920 So.2d 141, 143-44 (Fla. 4th DCA 2006); Washington v. State, 766 So.2d 325 (Fla. 4th DCA 2000). Though not precisely defined, “lewd” and “lascivious” conduct generally denotes “the unlawful indulgence of lust,” “gross indecency with respect to the sexual relations,” or “wicked, lustful, unchaste, licentious, or sensual” conduct. Chesebrough v. State, 255 So.2d 675, 677 (Fla.1971). Lewdness must be determined on a case-by-case basis and may be imputed from the circumstances. Farrell v. State, 791 So.2d 598, 599 (Fla. 3d DCA 2001); W.R.H. v. State, 763 So.2d 1111, 1112 (Fla. 4th DCA 1999); Egal v. State, 469 So.2d 196, 197 (Fla. 2d DCA 1985). Here, the trial court could not have determined as a matter of law that the acts of grabbing or rubbing students’ buttocks were not lewd and lascivious. See Mitchell, 624 So.2d at 860. Whether Rosen’s acts were intentional acts of a lewd and lascivious nature depended on the jury’s factual determination of his intent when he touched the children. See Method, 920 So.2d at 143.

We distinguish M.L.C. v. State, 875 So.2d 810, 811 (Fla. 2d DCA 2004), where the court held the defendant’s two “split-second” brushes against two girls’ buttocks were not lewd and lascivious as a matter of law. M.L.C., 875 So.2d at 812. There, the 12-year-old defendant brushed girls over their clothes at a bus stop and on a bus ramp. Id. at 811. The court held no facts permitted the inference he acted lewdly or lasciviously: “Each contact was brief, unaccompanied by suggestive remarks or body language .... [A] lewd or lascivious purpose ‘imports more than a negligent disregard of the decent properties and consideration due to others.’ ” Id. at 812 (citation omitted).

The testimony viewed in the light most favorable to the State shows Rosen did not try to kiss or proposition the students and made no other sexually indicative statements or motions. Cf. Washington, 766 So.2d at 326; Pennington v. State, 219 So.2d 56, 57-58 (Fla. 3d DCA 1969). Nevertheless, the totality of the circumstances was such that the jury properly could have concluded that his conduct violated the statute. See Egal, 469 So.2d at 198 (affirming where naked defendant answered the door, took an order form from a girl scout, went inside, and reappeared at the door still naked). The victims testified he deliberately rested his hand on, rubbed, or squeezed their buttocks. They were cross-examined, and the jury considered their demeanor and credibility. See Mitchell, 624 So.2d at 860. While Rosen’s behavior here was not as egregious as that in other cases, the jury was entitled to conclude, even if the victims did not, that Rosen acted lewdly by touching them in the manner they described.

Judgment of acquittal for battery convictions.

Rosen next argues that the court erred by denying his motions for judgment of acquittal for battery because there was no evidence of lack of consent. The State responds that competent, substantial evidence supports the jury verdicts because both victims testified he touched them against their will. The State is correct. Misdemeanor battery occurred when Ro-sen intentionally touched the victims against their will. § 784.03(1), Fla. Stat. (2000); M.L.C., 875 So.2d at 812. The State presented evidence that Rosen intentionally touched A.R. and K.M. without their consent; therefore, competent, substantial evidence supports the jury’s verdicts. Id.

Also, Rosen properly insisted on the inclusion of battery as a lesser included offense of the lewd and lascivious molestation charges and, in closing argument, reminded the jury they could convict him of battery. See, e.g., Cook v. State, 736 So.2d 739, 740 (Fla. 5th DCA 1999) (holding defendant was “entitled to receive a jury instruction on battery as a lesser included offense ... where ... the facts alleged in the information and the evidence presented at trial satisfied] all of the elements of the crime of battery”); Biles v. State, 700 So.2d 166, 167 (Fla. 4th DCA 1997). Even if the verdicts were incorrect, invited error would apply. Defense eoun-sel may not “sandbag the trial judge by requesting and approving an instruction they know ... will result in an automatic reversal, if given.” Weber v. State, 602 So.2d 1316, 1319 (Fla. 5th DCA 1992); see also Ray v. State, 403 So.2d 956, 961 (Fla.1981) (stating “it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object and failed to do so if ... counsel requested the improper charge or relied on that charge as evidenced by argument to the jury ... ”).

The jury’s failure to find Rosen was at least 18 and A.H. was under 12.

Rosen argues that the jury’s failure to find that he was at least 18 and that A.H. was under 12 violates Apprendi. He was convicted of four felonies. Because the court found Rosen was at least 18, it classified the offenses as one first-degree and three second-degree felonies, rather than four third-degree felonies. Rosen claims the court impermissibly increased sentencing based on facts not found in the jury’s verdict or admitted to by him. The State responds that the failure to include Rosen’s and A.H.’s ages in the instructions and verdicts was not error because their ages were undisputed.

Rosen claims that, because age is an essential element and every element must be presented to the jury and proved beyond a reasonable doubt, the court “lacked constitutional authority” to sentence him. This resembles his argument at sentencing, i.e., that the instructions’ failure to require the jury to find every element of the offense constituted, fundamental error. Rosen’s argument is contrary to well-settled law.

In Florida, the failure to instruct the jury on an essential element of the offense is not fundamental error if the element was undisputed and established by record evidence. See, e.g., Battle v. State, 911 So.2d 85, 88 (Fla.2005). The supreme court has applied this rule where the omitted element is the defendant’s age. Pena v. State, 901 So.2d 781, 784-85 (Fla.2005) (citing State v. Delva, 575 So.2d 643 (Fla.1991), and Reed v. State, 837 So.2d 366 (Fla.2002)). Jury instructions are subject to the contemporaneous objection rule, and failure to instruct on an undisputed element is not fundamental error. Pena, 901 So.2d at 784 (citing Reed, 837 So.2d at 370); cf. Jennings v. State, 920 So.2d 32, 34-35 (Fla. 2d DCA 2005) (remanding because evidence did not conclusively establish the omitted element); Wiley v. State, 830 So.2d 889, 890 (Fla. 1st DCA 2002) (reversing where omitted element was not uncontested or supported by overwhelming evidence). In Battle, the Florida Supreme Court explained:

[I]f a court fails to include all essential elements in a jury instruction and the defendant does not object at trial, the omission can be raised on appeal only if fundamental error occurred. Fundamental error is error [which] reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. Fundamental error only occurs when the omission is pertinent or material to what the jury must consider in order to convict. Further, omitting from the instructions a necessary element of the crime over which the record reflects there was no dispute is not fundamental error.

Battle, 911 So.2d at 89 (citations and internal quotation marks omitted); see also Reed, 837 So.2d at 370.

The rule that fundamental error has not occurred where the jury was not instructed on an undisputed element established by record evidence is reconcilable with Apprendi which should not “be applied in a knee-jerk fashion.” Perritte v. State, 912 So.2d 332, 333 (Fla. 5th DCA 2005). “[I]mplicit in the Apprendi rationale ... is the common sense concept that there must be some dispute about a fact before it is required to be submitted to a jury.” Id. at 334. The errors here presented no threat to Rosen’s trial by jury; “unlike more amorphous sentence-enhancing concepts such as ‘motive’ ... in the Apprendi case, age amounts to a physical fact.” Id. at 335.

The applicable Supreme Court case is not Apprendi, but Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In Neder, the Court held that “an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence,” and harmless error analysis may be appropriate. Neder, 527 U.S. at 8-9, 12-13, 119 S.Ct. 1827 (emphasis in original); see also Washington v. Recuenco, — U.S. -, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (clarifying that “[flailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error” and remains subject to harmless-error analysis). The Court concluded that the element at issue was established by incontrovertible and undisputed evidence; therefore, the omission did not contribute to the verdict obtained. Id. at 16-17, 119 S.Ct. 1827.

There is no dispute that Rosen was well over 18. See Perritte, 912 So.2d at 335. The informations read to the jury charged that Rosen was over 18. See id. at 334. The jury heard Baker testify that Rosen was over 18 and Joyce testify that they were married 31 years. No contrary evidence was introduced. Pena, 901 So.2d at 784; Perritte, 912 So.2d at 334. The jury could not reasonably have found Rosen to have been under 18. See Perritte, 912 So.2d at 334. Furthermore, Rosen voiced no objection that the instructions did not address his age as an element. See Battle, 911 So.2d at 87; Pena, 901 So.2d at 784; Perritte, 912 So.2d at 334. Even if Rosen had objected and preserved this issue for review, the error would be harmless. See Pena, 901 So.2d at 784 (citing Glover v. State, 863 So.2d 236, 238 (Fla.2003)).

Similarly, A.H.’s age was undisputed. The information pertaining to Rosen’s lewd and lascivious molestation of A.H. stated she was 11 when the conduct occurred. The jury heard her testify to her date of birth, which was uncontroverted. Under these circumstances, the omission of two elements in the instructions relating to A.H. does not establish fundamental error. See Lane v. State, 867 So.2d 539, 540 (Fla. 1st DCA 2004) (affirming where one element was undisputed and the omission of the other did not undermine the validity of the trial). Neither omission concerned a disputed element or reached “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Lane, 867 So.2d at 541-42 (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). Moreover, Rosen does not contest her age or suggest he could introduce any contrary evidence. See Neder, 527 U.S. at 15, 119 S.Ct. 1827. Reversal would merely send the case back for retrial or resentencing despite the fact the jury was properly instructed on the contested issues and resolved them against Rosen. See id.

We note that Rosen’s counsel below played a pivotal role in the error, actively participated in the shaping of jury instructions, and repeatedly declined to object though she planned to object at sentencing. Forcing the State to prove the elements of the offense is one thing; participating in the creation of a technically defective instruction to ambush the court at sentencing is another. This behavior illustrates precisely why the contemporaneous objection rule applies:

This rule is founded on policy objectives that seek to eliminate legal trickery and procedural gamesmanship by crafty litigants who intentionally cause error or allow error to creep into the trial proceedings so they can complain about it on appeal. Equally important, the rule provides the trial court with a timely opportunity to correct the error and avoid mistrial or reversal on appeal.

Caldwell v. State, 920 So.2d 727, 730 (Fla. 5th DCA 2006); see also Weber, 602 So.2d at 1319.

The question of Rosen’s lewd intent was the jury’s to resolve, and judgments of acquittal would have been erroneous. Sufficient evidence supports the battery convictions. The instructions’ failure to require findings of the essential elements of Rosen’s and A.H.’s age did not constitute fundamental error.

Accordingly, we AFFIRM the convictions and sentences.

MONACO and EVANDER, JJ., concur.

      . § 800.04(5)-(6), Fla. Stat. (2000).

      . § 784.03, Fla. Stat. (2000).

      . We note that Rosen was represented at trial by Robin C. Lemonidis and Michael Kahn, not his counsel on appeal.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . C.E. and A.R. were 12; A.H. was 11. Under section 800.04(5), if the offender is under 18, the offenses are third-degree felonies. Where the offender is at least 18, the crime is a second-degree felony if the victim was at least 12 but less than 16.


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    DELTA FIRE SPRINKLERS, INC., Appellant, v. SOUTHTRUST BANK, N.A., Appellee.
    No. 5D05-3177.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    Rosemary Hanna Hayes and Tina Cara-ballo, of Hayes & Caraballo, P.L., Orlando, for Appellant.
    Alfred Truesdell and J. Timothy Schulte, of Zimmerman, Kiser & Sutcliffe, Orlando, for Appellee.
   EVANDER, J.

We affirm the trial court’s decision awarding appellee, SouthTrust Bank, N.A., attorney’s fees pursuant to section 57.105, Florida Statutes (2008). SouthTrust and others had been sued by appellant Delta Fire Sprinklers (“Delta”) in an effort to be paid for its work on a construction project.

The record reflects the trial court properly entered summary judgment in favor of SouthTrust on that count of Delta’s complaint directed against SouthTrust. At the time of entry of summary judgment, the trial court granted Delta leave to amend its complaint. Delta thereafter amended its complaint in an attempt to allege a new basis for a claim against SouthTrust. However, for all practical purposes, the amended complaint suffered from the same fatal deficiencies of the prior complaint. The day after the trial court properly dismissed this claim with prejudice, SouthTrust served its motion for attorney’s fees pursuant to section 57.105.

If no further proceedings had been initiated by Delta at the trial level, the “safe harbor” provision set forth in section 57.105(4) would have prevented an award of fees. O’Daniel v. Board of Commissioners of Monroe County, 916 So.2d 40 (Fla. 3d DCA 2005). However, Delta continued to pursue its meritless claim by filing a motion for rehearing and propounding a discovery request upon South-Trust. After denying the motion for rehearing, the trial court acted within its discretion in awarding SouthTrust its reasonable attorney’s fees incurred subsequent to the date of service of its motion for attorney’s fees. The record supports the trial court’s conclusion that Delta was merely attempting to relitigate a claim that had already been rejected by the court in its order granting summary judgment.

AFFIRMED.

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

      . The trial court’s order of dismissal was affirmed per curiam by this court on August 15, 2006.

      . Section 57.105 provides:
      (4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.


author: KELLY, Judge.

text:
    James WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1419.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 2006.
   KELLY, Judge.

James White appeals the summary denial of his motion for jail credit filed under Florida Rule of Criminal Procedure 3.800(a). We reverse and remand with instructions.

White filed a motion for jail credit in circuit court cases 03-000737CFMA, 03-000794CFMA, and 03-000821CFMA alleging entitlement to jail credit for time spent in Highlands County Jail. The postconviction court denied the motion on the merits and attached to its order the disposition memoranda for all three cases and the jail time computations sheets from the Highlands County Sheriffs Office (HCSO) for all three cases. The postconviction court, relying on the attached records, concluded that White was not entitled to any additional credit other than what he had already been awarded. The HCSO sheets indicate that although White was in Highlands County Jail during the dates he alleged in his motion, White is not entitled to any credit because he was awarded jail credit for those time periods in other misdemeanor cases.

White is entitled to credit against each sentence he received for the time spent in jail on the charge leading to the sentence. See Keene v. State, 500 So.2d 592 (Fla. 2d DCA 1986). Therefore, if White was in custody in Highlands County Jail during the alleged time periods in cases 03-000727CFMA, 03-000794CFMA, and 03-000821CFMA, as well as the misdemeanor cases, White would be entitled to credit in each case. See Tinker v. State, 870 So.2d 79 (Fla. 2d DCA 2003) (holding that defendant was entitled to jail credit in two cases where defendant was being held for violating her probation in both cases). Although the record attached to the posteon-vietion court’s order indicates White was in custody in Highlands County Jail during the alleged time periods on cases 03-000727CFMA, 03-000794CFMA, and 03-000821CFMA, he was only awarded credit in the misdemeanor cases. The record attached to the postconviction court’s order does not conclusively refute White’s allegations.

Accordingly, we reverse with directions for the postconviction court to reconsider White’s allegations. If the postconviction court again denies relief, it shall attach to its order those portions of the record that conclusively refute White’s claims.

Reversed and remanded with instructions.

SALCINES and DAVIS, JJ., Concur.


author: LaROSE, Judge.

text:
    Edward J. WOVAS and Tom Mitchell and Elaine Mitchell, Husband and Wife, Petitioners, v. TOUSA HOMES, INC., and Royal-Tee Homeowners Association, Inc., Respondents.
    No. 2D06-2407.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 2006.
    Rehearing Denied Oct. 11, 2006.

      Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, and Christina Harris Schwinn of The Pavese Law Firm, Fort Myers, for Petitioners.
    Michael R. Whitt and Sanjay Kurian of Becker & Poliakoff, P.A., Fort Myers, for Respondents.
   LaROSE, Judge.

Edward J. Wovas and Tom and Elaine Mitchell (collectively, Lot Owners) petition this court to issue a writ of prohibition stopping the circuit court from ruling upon a petition for writ of prohibition filed by Tousa Homes, Inc., and Royal-Tee Homeowners Association, Inc. (collectively, Developer). The Lot Owners argue that the circuit court does not have appellate jurisdiction over the decisions of the Department of Business and Professional Regulation (Department); accordingly, the circuit court lacks jurisdiction to issue an extraordinary writ. We agree and grant the petition.

The Lot Owners own residential lots in a subdivision. Pursuant to section 720.311, Florida Statutes (2005), they sought mandatory binding arbitration in the Department’s Division of Land Sales, Condominiums and Mobile Homes (Division). Essentially, the Lot Owners seek an order requiring the Developer to relinquish control of a homeowners’ association to the residents. The Lot Owners characterize their dispute with the Developer as an election dispute. Section 720.311 mandates binding arbitration of such disputes.

The Developer filed a petition for writ of prohibition or, alternatively, a petition for all writs, in the circuit court. Claiming that, among other things, section 720.311 is unconstitutional, the Developer sought to prohibit the Division from conducting arbitration. The circuit court issued an order to show cause. The Lot Owners then filed their own petition for writ of prohibition in this court. They argue that the circuit court lacks jurisdiction to consider the Developer’s prohibition petition.

Article V, section 5(b) of the Florida Constitution states:

The circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law. They shall have the power to issue writs of mandamus, quo warranto, certiorari, prohibition and habeas corpus, and all writs necessary or proper to complete exercise of jurisdiction. Jurisdiction of the circuit court shall be uniform throughout the state. They shall have the power of direct review of administrative action prescribed by general law.

A circuit court may issue an extraordinary writ only where it has original or appellate jurisdiction. A circuit court may exercise appellate jurisdiction over administrative action where authorized by the legislature. Section 26.012, Florida Statutes (2005), grants the circuit courts appellate jurisdiction over “final administrative orders of local government code enforcement boards.” That jurisdiction does not extend to the Division, a state agency. Prime Orlando Props., Inc. v. Dep’t of Bus. Regulation, Div. of Land Sales, Condos. & Mobile Homes, 502 So.2d 456, 458 (Fla. 1st DCA 1986).

Review of state administrative agency action is proper “in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.” § 120.68(2)(a), Fla. Stat. (2005). A petition for issuance of an extraordinary writ “challenging matters in an administrative action is properly filed in [the District Court of Appeal], not the circuit court.” Dep’t of Health, Bd. of Dentistry v. Barr, 882 So.2d 501, 501 (Fla. 1st DCA 2004). In Barr, the Board of Dentistry sought a writ of prohibition in the First District seeking to restrain the circuit court from considering Barr’s petition for writ of prohibition seeking to halt disciplinary proceedings against him. The First District granted the petition, holding that the circuit court did not have jurisdiction to issue an extraordinary writ where it did not have appellate jurisdiction over the subject matter. Id. Similarly, in Florida Real Estate Commission v. Anderson, 164 So.2d 265 (Fla. 2d DCA 1964), two real estate brokers filed a petition for writ of prohibition in the circuit court alleging that the Commission lacked jurisdiction to proceed against them. See id. at 267. The supreme court held that the circuit court did not have jurisdiction to consider prohibition proceedings where it did not have appellate jurisdiction over the Commission. Id. at 268.

We conclude, therefore, that the circuit court does not have jurisdiction to consider the Developer’s petition for writ of prohibition. We grant the petition and quash the circuit court’s order to show cause.

Petition granted.

SALCINES and STRINGER, JJ„ Concur.


author: PER CURIAM.

text:
    John Thomas SCHNEIDER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2609.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 2006.
   PER CURIAM.

Affirmed. See Hoover v. State, 530 So.2d 308 (Fla.1988); Burrows v. State, 890 So.2d 286 (Fla. 2d DCA 2004), review denied, 914 So.2d 952 (Fla.2005); Campbell v. State, 884 So.2d 190 (Fla. 2d DCA 2004); Diaz v. State, 810 So.2d 1023 (Fla. 2d DCA 2002); Caraballo v. State, 805 So.2d 882 (Fla. 2d DCA 2001); Schneider v. State, 788 So.2d 1073 (Fla. 2d DCA 2001); Villavicencio v. State, 719 So.2d 322 (Fla. 3d DCA 1998).

Contrary to the holding of this court in Burrows, the First District in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), on collateral review applied the United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), retroactively to a sentence that became final before the issuance of the Blakely opinion.

As this court did in Hughes v. State, 933 So.2d 1285 (Fla. 2d DCA 2006), we certify direct conflict with Isaac.

Affirmed; conflict certified.

DAVIS, KELLY, and LaROSE, JJ., concur.


author: STRINGER, Judge.

text:
    Anthony Scott GRUBB, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4668.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 2006.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Anthony Grubb seeks review of his convictions and sentences for kidnapping, armed false imprisonment, armed burglary of a dwelling, burglary of a dwelling with an assault or battery, carjacking, and two counts of robbery. Grubb argues that the trial court erred in finding he was a principal to the crimes. Grubb also argues that his two convictions for burglary violate the constitutional prohibition against double jeopardy. We reject Grubb’s first argument without discussion. Because Grubb’s second argument has merit, we reverse for the court to strike one of his burglary convictions.

Grubb correctly argues that convictions for both armed burglary of a dwelling and burglary of a dwelling with an assault or battery violate the constitutional prohibition against double jeopardy if they are based on a single forced entry. Hawkins v. State, 436 So.2d 44, 46 (Fla.1983); McKinney v. State, 860 So.2d 452, 452 (Fla. 1st DCA 2003); Docanto v. State, 811 So.2d 790, 790 (Fla. 4th DCA 2002); Trotman v. State, 545 So.2d 890, 891 (Fla. 4th DCA 1989). The State argues that the dual convictions are proper because they involve two victims. We reject this argument because it is the number of forced entries that triggers the burglary charges, not the number of victims. To the extent that our previous decisions in Chambers v. State, 924 So.2d 975, 976 (Fla. 2d DCA 2006), and Valdez v. State, 915 So.2d 636, 637 (Fla. 2d DCA 2005), might be construed to imply that dual burglary convictions do not violate the prohibition against double jeopardy when there is a single forced entry but multiple victims, we note that those cases did not involve multiple victims. Thus, any such language is, at best, dicta. We also reject the State’s argument that the double jeopardy violation constitutes harmless error. See Butler v. State, 760 So.2d 151, 151-52 (Fla. 3d DCA 1999).

Because Grubb’s convictions for armed burglary of a dwelling and burglary of a dwelling with an assault or battery constitute double jeopardy, we reverse. On remand, the trial court shall strike one of the two burglary convictions and sentences. We affirm the remainder of Grubb’s convictions and sentences.

Affirmed in part, reversed in part, and remanded.

CANADY and LaROSE, JJ., Concur.


author: POLEN, J.

text:
    L’ETOILE HOMEOWNERS ASSOCIATION, INC., Appellant, v. Victoria FRESOLONE and Mary Fresolone, Appellees.
    No. 4D05-4067.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.
    Rehearing Denied Nov. 21, 2006.
    Darrin Gursky of Law Offices of Robert Kaye & Associates, P.A., Fort Lauderdale, for appellant.
    John H. Pelzer and Brigid F. Cech of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellees.
   POLEN, J.

This appeal arises from a final summary judgment entered against appellant L’Etoile Homeowner’s Association (“the Association”), where the trial court found that appellees Victoria and Mary Freso-lone (“the Fresolones”) did not violate the Declaration of Covenants encumbering their property. We reverse, holding that material issues of fact remained.

The standard of review on summary judgment orders is de novo. See The Florida Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003).

The Association brought an action for injunctive relief pursuant to the Declaration of Covenants, Restrictions and Easements governing the residences in the L’Etoile at Emerald Pointe Complex against one of its residents, the Freso-lones. The basis of the Association’s lawsuit concerned the installation of a wall air conditioning unit in a room addition which the Association alleged was in violation of the Declaration, and for which no approval for installation allegedly had been given.

Prior to any construction and during the initial planning, the Fresolones forwarded a request for an addition to their home and a hand-drawn sketch of the proposed addition to the Association’s Architectural Committee (“the Committee”). Apparently, this sketch made no reference to the air conditioning unit. Shortly thereafter, the Committee sent the Fresolones a signed “request for architectural modifications” form with the requisite approval. The Fresolones did not immediately begin construction, and in September 2002, two years after receiving initial approval, resubmitted their request to the Committee for city permit purposes. Attached to this second request was an architect’s drawing of the room addition that included a box with the designation “WALL A/C,” where the present unit is located.

On September 25, 2002, Patsy Barnovan (“Barnovan”), the only person on the Committee at the time, sent the original approval with her updated signature to the Fresolones (Barnovan was one of two sig-nees of the original approval). However, nearly eight months later, the Association sent the Fresolones a letter stating that the air conditioning unit must be removed. The Fresolones did not comply.

The Association proceeded to file an action for injunctive relief. The Fresolones responded by filing a motion for summary judgment, which the trial court granted, finding that the Association failed to reject the plans submitted in September 2002 within thirty days (the time limit established in the Declaration of Covenants for rejection of proposed modifications), and that Barnovan acted within her authority in approving the new request.

The standard of review on summary judgment orders is de novo. See Rapoport, 845 So.2d at 877. “Summary judgment should not be granted unless the facts are so clear and undisputed that only questions of law remain.” Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla.1999). An appellate court reviewing a ruling on summary judgment must examine the record in the light most favorable to the non-moving party. City of Lauderhill v. Rhames, 864 So.2d 432, 434 n. 1 (Fla. 4th DCA 2003).

We hold that the trial court erred in granting the Fresolones’s motion for summary judgment with respect to approval of the new architect’s drawing. Viewing the evidence most favorably to the Association and drawing every possible inference in its favor, we find that there was a genuine issue of material fact concerning whether the 2002 approval constituted re-approval of the 2000 request, which did not contain a wall air conditioning unit, or approval of a new request, which did. Because the evidence permits different reasonable inferences as to this question, it is an issue of fact for the jury.

Based on the foregoing, we reverse on the issue of approval and remand for further proceedings consistent with this opinion.

STEVENSON, C.J., and STONE, J., concur.


author: VILLANTI, Judge.

text:
    Freddie L. MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1909.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 2006.
   VILLANTI, Judge.

Freddie L. Morris appeals the summary dismissal of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We affirm the postconviction court’s dismissal of the motion because it is facially insufficient. Our affirmance is without prejudice to any right Morris might have to file a timely facially sufficient rule 3.853 motion. See Harvey v. State, 925 So.2d 1111 (Fla. 2d DCA 2006); Scarborough v. State, 906 So.2d 379 (Fla. 2d DCA 2005).

Affirmed.

STRINGER and LaROSE, JJ., concur.


text:
    Ernie W. DEEL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2601.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2006.
    Ernie W. Deel, pro se, Petitioner.
    Charlie Crist, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Upon consideration of the state’s response thereto, the petition seeking a belated appeal of the February 6, 2006, order denying petitioner’s motion for postconviction relief in Duval County Circuit Court case number 16-1998-CF-15874-AXXX-MA, is granted. Upon issuance of mandate, 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).

KAHN, C.J., BENTON, and LEWIS, JJ., concur.


text:
    Tommie Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D05-1969, 1D05-2375.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2006.
    Rehearing Denied Nov. 9, 2006.

      Nancy A. Daniels, Public Defender and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Sheron L. Wells, Assistant Attorney General, and Edward C. Hill, Special Counsel, Criminal Appeals, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed. See Harris v. State, 932 So.2d 551 (Fla. 1st DCA 2006).

WOLF, BENTON, and PADOVANO, JJ., concur.


text:
    Warren MARSHALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2109.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2006.
    Rehearing Denied Nov. 9, 2006.
    Warren Marshall, pro se, Petitioner.
    Charlie Crist, Attorney General, and Diego Puig, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, POLSTON, and THOMAS, JJ., concur.


text:
    Lawrence E. COWAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3222.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 2006.
    Rehearing Denied Oct. 30, 2006.
   PER CURIAM.

Affirmed. See Williams v. State, 594 So.2d 273 (Fla.1992); Eastman v. State, 883 So.2d 889 (Fla. 2d DCA 2004); Lyell v. State, 872 So.2d 447 (Fla. 2d DCA 2004); Armstrong v. State, 846 So.2d 1227 (Fla. 2d DCA 2003); Robinson v. State, 818 So.2d 543 (Fla. 2d DCA 2002); Graddy v. State, 685 So.2d 1313 (Fla. 2d DCA 1996); Lee v. State, 648 So.2d 829 (Fla. 2d DCA 1995); Peeples v. State, 575 So.2d 316 (Fla. 2d DCA 1991); Cichoski v. State, 874 So.2d 695 (Fla. 4th DCA 2004); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

SALCINES, STRINGER, and SILBERMAN, JJ., Concur.


text:
    Robert WHYTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3244.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2006.
    Rehearing Denied Nov. 7, 2006.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   GALLEN, THOMAS M., Associate Senior Judge.

Robert Whyte appeals from his judgment and sentence for burglary of a conveyance and petit theft. Mr. Whyte pleaded no contest after reserving the right to appeal the denial of his dispositive motion to suppress the evidence seized during the search subsequent to his arrest. We conclude that the evidence was seized as a result of an unlawful arrest, and therefore the trial court erred in denying Mr. Whyte’s motion to suppress. Accordingly, we reverse.

At about 10:15 p.m. on November 28, 2003, Police Officer Richard Perez noticed Robert Whyte leaning against a ear in downtown Haines City. Mr. Whyte was wearing shorts and the night was very cold. Officer Perez approached Mr. Whyte and asked him if he was all right. Mr. Whyte said he was not, that he had been drinking and had just thrown up near the vehicle. Mr. Whyte then began to walk away, removing his shirt as he did so. Officer Perez, concerned about Mr. Whyte’s well-being, asked Mr. Whyte his name, to which Mr. Whyte responded “Marley Marley.” Officer Perez knew Mr. Whyte’s true identity, and knowing that his name was not Marley Marley, informed him that he was under arrest for providing a false name to a law enforcement officer. A search subsequent to arrest revealed a small coin purse that was later determined to belong to the owner of the vehicle.

Mr. Whyte was charged with burglary of a conveyance, petit theft, and giving false identification. Mr. Whyte filed a motion to suppress the evidence on the theory that the evidence was obtained as a result of an unlawful stop, arrest, and search. The trial court denied the motion, but recognized that the motion was dispositive of the case. Mr. Whyte pleaded no contest to the burglary and theft charges, reserving the right to appeal the denial of his dispositive motion to suppress. The State dropped the count of giving false identification.

Section 901.36(1), Florida Statutes (2003), provides: “It is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in any way, to the law enforcement officer or any county jail personnel.” Persons who violate the statute commit a first-degree misdemean- or. The plain language of section 901.36(1) requires that, in order to be in violation of the statute, the giving of a false name or identification must occur following arrest or lawful detention. Thus, if a suspect is legally detained or arrested on some other ground, and subsequently provides false identification, he or she may also be charged with a violation of section 901.36(1).

The State contends that there was a lawful arrest or detention prior to Mr. Whyte’s arrest for giving a false name. The State’s version of events has Officer Perez noticing that the car door was open prior to asking Mr. Whyte his name, and then placing Mr. Whyte under arrest after Mr. Whyte gave a false reply. The State argues that these facts support a conclusion that the detention was lawful. The trial court’s order denying Mr. Whyte’s motion to suppress reflects the State’s perception of the event.

In Popple v. State, 626 So.2d 185 (Fla.1993), our supreme court summarized the three possible levels of a police-citizen encounter.

The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. § 901.151 Fla.Stat. (1991). In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984).
... [T]he third level of police-citizen encounters involves an arrest which must be supported by probable cause that a crime has been or is being committed. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); § 901.15 Fla.Stat. (1991).

Id. at 186.

In this case, Officer Perez’s arrest report and his own testimony at the suppression hearing clearly reflect that he arrested Mr. Whyte solely because Mr. Whyte had given him a false name, and that both the arrest and search occurred before he discovered the open car door. Had Officer Perez noticed the suspicious condition of the car first, perhaps a Terry stop would have been justified. But this was not his testimony; therefore, this case does not involve a Terry stop or the reasonable suspicion standard. Here, an initial consensual encounter was transformed immediately into a “level three” encounter at the moment Officer Perez decided to arrest Mr. Whyte for giving false identification. At that moment, Officer Perez had no probable cause to believe that any crime had been or was being committed.

The trial court’s conclusion that “upon his detention the examination of the contents of his pockets was a search incident to arrest” is absolutely correct, if Mr. Whyte was under lawful arrest at the time he was searched. Absent a reasonable suspicion or probable cause to detain or arrest Mr. Whyte on some other lawful ground, Mr. Whyte’s failure to give his true name could not, alone, provide probable cause for the arrest under section 901.86(1). As a result, the arrest was not lawful, and the evidence procured during the subsequent search should have been suppressed. See Cooks v. State, 901 So.2d 963, 964 (Fla. 2d DCA 2005); Belsky v. State, 831 So.2d 803, 805-06 (Fla. 4th DCA 2002).

On review of a trial court’s order on a motion to suppress, the trial court’s factual findings must be affirmed if supported by competent, substantial evidence. Caso v. State, 524 So.2d 422, 424 (Fla.1988). In this case the record compels us to conclude that the trial court’s findings directly contradicted the testimony of the arresting officer, and were therefore not supported by competent, substantial evidence.

Because the motion to suppress should have been granted, we reverse the judgment and sentence and remand with directions to discharge Mr. Whyte.

Reversed and remanded.

NORTHCUTT and KELLY, JJ„ Concur.

      . This begs the question of why Officer Perez asked Mr. Whyte his name in the first place.


author: TORPY, J. PLEUS, C.J.,

text:
    BLACK DIAMOND PROPERTIES, INC., et al., Appellants, v. Charles S. HAINES, Kathy Haines, et al., Appellees.
    No. 5D05-1385.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 2006.
    Rehearing Denied Nov. 1, 2006.

      Anne S. Mason of Mason Law, P.L., Clearwater, and Edward A. Marod of Edward A. Marod, P.A., West Palm Beach, for Appellants.
    John G. Crabtree of John G. Crabtree, P.A., Key Biscayne, Edward L. Scott of Edward L. Scott, P.A., Ocala, and Scott Charlton, Tampa, for Appellees.
   TORPY, J.

Appellants seek review of an order certifying a class of plaintiffs who brought suit for damages based upon purported misrepresentations that induced them to purchase memberships in a not-for-profit corporation that operates a golf course. We reverse the challenged order.

The class consists of approximately 500 people who purchased golf memberships in a club that operates a golf course in a golf community in Citrus County known as Black Diamond Ranch. All of the class members purchased residential lots and golf memberships. Some purchased their lots and memberships at the same time. Some purchased lots first, then purchased memberships later. Most, but not all, purchased their lots from the developer. Some of the class members have sold their lots, some have resigned their memberships. All seek money damages measured by the purchase price of the memberships, which ranged from $35,000 to $75,000.

Although the purchase and sale contracts for the lots were in writing, many, if not all, of the golf memberships were purchased pursuant to oral contracts. The documents used to effectuate the latter transactions consisted of membership applications, Membership Certificates, and in some cases, “Subscription Agreements.” The membership applications were completed by the purchasers. Once the purchasers were approved and paid for their memberships, they were issued Membership Certificates. Some members signed “Subscription Agreements” wherein they offered to purchase memberships if approved by the club. The memberships consist of an equity interest in a not-for-profit corporation, the structure and rules for which were described in a document referred to as the “Membership Plan.” Under the plan, the corporation has the right to use the golf course and facilities but does not own them. However, upon the occurrence of certain conditions precedent, the corporation has the right to acquire ownership of the facilities.

A disputed issue of fact as to some class members is whether they received the plan before they purchased their interests. Some class members admitted that they received the plan before they purchased their interests. Some said they did not receive the plan. In any event, every contract for sale and purchase of a lot made reference to the memberships and said that the “terms and conditions” were the subject of a “Membership Plan.” Some of these contracts contained a written ac-knowledgement that the buyer had received a copy of the plan.

Appellees’ complaint is that they were induced to purchase memberships by false statements, both written and oral, concerning the legal nature of the memberships. Chief among these allegations is that salespersons told Appellees that their memberships would be “equity memberships,” meaning that the memberships represented an ownership interest in the golf course and facilities, rather than an ownership interest in a corporation that merely has an option to purchase the facilities. Although the plan document accurately describes the nature of the membership interests, the complaint alleges that Appel-lees relied upon the misrepresentations in inducing them to purchase the memberships.

The issue on appeal is the propriety of the lower court’s order that certified the class. Appellants challenge numerous findings and conclusions of the trial judge. We need not address all of these issues because we conclude that class certification is not appropriate because Appellees have failed to satisfy the “commonality” and “superiority” requirements for class certification.

For an action to proceed on behalf of a class, it must be established, among other requirements, that common issues of fact predominate over the factual issues unique to each plaintiff. Liggett Group, Inc. v. Engle, 858 So.2d 434, 445 (Fla. 3d DCA 2003), approved in part, reversed in part, and remanded by, 31 Fla. L. Weekly S464, 2006 WL 1843363 (Fla. July 6, 2006). Additionally, the class representatives must prove that class representation is “superior to other available methods of fairly and efficiently adjudicating the claims presented.” Id. When significant individual issues exist, requiring proof from each member of the class, class representation is not appropriate because the lawsuit becomes unmanageable, thereby defeating the very purposes for which class representation is authorized. Id.; Hoechst Celanese Corp. v. Fry, 753 So.2d 626, 627 (Fla. 5th DCA 2000). For these reasons, generally, claims involving allegations of fraud may not proceed as a class. Id.

Clearly, here, individual issues predominate over common issues and class representation is not practical. At the very core of plaintiffs’ complaint is the allegation that oral and written misrepresentations took place in 500 separate oral contract transactions spanning many years and involving numerous sales personnel. To prove these allegations, it will be necessary that each plaintiff testify. Additionally, it will be necessary for each plaintiff to offer proof that he or she was damaged as a result of the purported misrepresentations. Finally, given the varied circumstances and span of time over which the transactions occurred, defenses applicable to some plaintiffs will not be applicable to others. Under these circumstances, class representation is not appropriate.

Citing Davis v. Powertel, Inc., 776 So.2d 971 (Fla. 1st DCA 2000), Appellees urge that a class action may proceed as to at least one of their claims, the one based on the “Little FTC Act,” because the plaintiffs are not required to prove actual reliance upon the purported misrepresentations. We disagree. Even were we to agree with the holding of our sister court, Powertel involved a factually distinguishable situation wherein the alleged fraud was based on nondisclosure, rather than affirmative misrepresentation. Under those circumstances, it was not necessary to call each plaintiff to establish that a misrepresentation had occurred. Moreover, all of the plaintiffs were similarly induced resulting in damages. Here, by contrast, although reliance might not be an element of one claim, each plaintiff still must demonstrate that the misrepresentation occurred and actually caused damage to him or her, which necessitates individual proof in each ease.

REVERSED.

PALMER, J., concurs.

PLEUS, C.J., concurs and concurs specially, with opinion.

PLEUS, C.J.,

concurring specially, with opinion.

While I am sympathetic to the trial court’s desire to dispose of these numerous claims, the conclusion reached by the majority is a correct one under the current law governing class certification.

      . As has been pointed out by the Fourth District, we too question the lack of analysis in Powertel of the causation element under a "Little FTC Act” claim. See Philip Morris USA Inc. v. Hines, 883 So.2d 292, 294 (Fla. 4th DCA 2003).


author: LAWSON, J.

text:
    PHENION DEVELOPMENT GROUP, INC., et al., Appellant, v. Richard LOVE and Marguerite Love, Appellee.
    No. 5D06-1710.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 2006.
    Rehearing Denied Nov. 1, 2006.

      Charles D. Franken of Charles D. Franken, P.A., Plantation, for Appellant.

      David G. Larkin and Jesse L. Kabaser-vice of Fallace & Larkin, L.C., Melbourne, for Appellee.
   LAWSON, J.

Phenion Development Group, Inc., and Anthony Tharpe, defendants below in a foreclosure action brought by Richard and Marguerite Love, challenge the denial of their motion to vacate the final judgment entered against them. Appellants argue that the final judgment erroneously provided for post-judgment interest at the default rate stated in their note and mortgage (instead of the statutory rate), and under Florida Rule of Civil Procedure 1.540(b) either: (1) should have been vacated as “void;” or (2) should have been vacated based upon their showing of “mistake, inadvertence, surprise, or excusable neglect.” Appellees counter that the final judgment was not void, and that Appellees’ motion did not raise the type of “mistake” that can be corrected by motion under rule 1.540(b). Consequently, they argue, the trial court lacked jurisdiction to consider the motion. We affirm, finding that the final judgment was not void; that the trial court had jurisdiction to entertain the motion based upon mistake or excusable neglect; and that the trial court properly exercised its discretion by denying Appellant’s motion.

The case below commenced with Appel-lees’ filing a complaint on May 27, 2005, seeking to foreclose on property owned by Appellants, based upon Appellants’ breach of a promissory note and mortgage secured by the property. Appellants answered the complaint, and, ultimately, summary judgment was entered in favor of Appellees on September 23, 2005. Final judgment was entered, and Appellants neither moved for rehearing as to any issue nor appealed.

One week prior to the first publicly noticed foreclosure sale, Appellants filed a suggestion of bankruptcy — causing the sale to be cancelled. The matter was then stayed in circuit court until February 28, 2006, when the bankruptcy court granted Appellees’ motion for relief from stay. After the foreclosure sale was re-noticed, some seven months following entry of the final judgment, Appellants filed their rule 1.540(b) motion (along with an emergency motion to cancel the sale), arguing that the final judgment contained an incorrect rate for post-judgment interest. The emergency motion to cancel the sale was denied, and the foreclosure proceeded. After completion of the foreclosure sale, Appellants unsuccessfully argued their motion to vacate the final judgment.

Generally, we review a trial court’s decision on a rule 1.540(b) motion for abuse of discretion. Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So.2d 1305 (Fla. 3d DCA 1987), rev. denied, 525 So.2d 877 (Fla.1988). However, when the underlying judgment is “void,” the trial court has no discretion, but is obligated to vacate the judgment. State, Dep’t of Transp. v. Bailey, 603 So.2d 1384, 1386-87 (Fla. 1st DCA 1992). Appellants claim that the judgment was void, arguing that because Appellees’ complaint did not expressly plead entitlement to post-judgment interest at the default contract rate, the trial court lacked “subject matter jurisdiction” to award interest at the default contract rate, citing Horton v. Rodriguez, 926 So.2d 436 (Fla. 3d DCA 2006) and Decubellis v. Ritchotte, 730 So.2d 723 (Fla. 5th DCA 1999). Neither of these cases support Appellants’ argument.

In Decubellis, this court held that a default judgment should be vacated where the moving party shows “excusable neglect, a meritorious defense, and due diligence in seeking relief after learning of the default.” Decubellis, 730 So.2d at 727. In reaching this conclusion, we simply noted an argument that the judgment was void because appellants “were never served with process or otherwise given notice of the proceedings.” We find nothing in the Decubellis holding or case to be remotely applicable here. In this case, Appellants were properly served and fully participated in the proceeding, and this is not a default judgment case.

The Horton case also relies on default judgment cases that have no application here: Becerra v. Equity Imports, Inc., 551 So.2d 486 (Fla. 3d DCA 1989) and Magnificent Twelve, Inc. v. Walker, 522 So.2d 1031 (Fla. 3d DCA 1988). As explained in Becerra, a default operates as an admission of the truth of all well pleaded allegations, except those concerning damages. Becerra, 551 So.2d at 488. Where a complaint fails to state a cause of action, the pleading deficiency is “not curable by a default judgment” because “even if the allegations were accepted as true, the plaintiff would not have made a case upon which relief could be granted.” Id. For this reason, a default judgment should be set aside as void where the complaint, on its face, fails to state a recognizable claim. Id.; Horton, 926 So.2d at 437.

In this case, Appellees’ complaint clearly sets forth a valid, viable cause of action in foreclosure. Appellants were properly served, and participated in the proceeding. Further, we reject Appellants’ argument that a trial court lacks subject matter jurisdiction to award post-judgment interest (in general, or at a particular rate) unless the complaint expressly requests this relief.

In general, there are two aspects of subject matter jurisdiction. The first “concerns the power of the trial court to deal with the class of cases to which a particular case belongs.” Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 801 n. 3 (Fla.2003). Appellants do not challenge the trial court’s power to deal with foreclosure eases, in general. The second “requires that a court’s jurisdiction be lawfully invoked by the filing of a proper pleading.” Garcia v. Stewart, 906 So.2d 1117, 1122 (Fla. 4th DCA 2005). As we have already said, Appellees’ complaint stated a viable cause of action, and therefore lawfully invoked the court’s jurisdiction. With respect to the issue of interest, neither pre-judgment interest nor post-judgment interest needs to be specifically pled under Florida law. See, e.g., Mercedes-Benz of North America, Inc. v. Florescue & Andrews Invs., Inc., 653 So.2d 1067, 1068 (Fla. 4th DCA 1995) (noting “pre-judgment interest does not have to be pled, and an award of pre-judgment interest is non-discretionary once the amount of loss is ascertained”); Napp v. Carman, 576 So.2d 361, 362 (Fla. 4th DCA 1991) (noting “post-judgment interest is governed by statute and need not be pled”). Therefore, the general plea for relief contained in Appellees’ complaint was sufficient to invoke the court’s jurisdiction to enter a judgment that included post-judgment interest.

In short, this case is governed by the “well settled” rule that “where a court is legally organized and has jurisdiction of the subject matter and the adverse parties are given an opportunity to be heard, then errors, irregularities or wrongdoing in proceedings, short of illegal deprivation of opportunity to be heard, will not render the judgment void.” Curbelo v. Ullman, 571 So.2d 443, 445 (Fla.1990).

We next turn to Appellants’ argument that the final judgment should have been set aside under rule 1.540(b) based upon mistake or excusable neglect. As to this issue, our review is somewhat hampered by Appellants’ failure to include a complete record on appeal. This is because not all “mistakes” in a final judgment can be remedied by a rule 1.540 motion, and determining whether Appellants’ argument could be addressed under rule 1.540 depends upon the way the issue of post-judgment interest was presented (or not presented) below.

Rule 1.540 was not intended as a substitute for relief from judicial error, “such as a mistaken view of the law,” that should have been corrected by direct appeal or by motion under Florida Rule of Civil Procedure 1.530. Curbelo, 571 So.2d at 444-45; see also, Latin Am. Cafeteria, Inc. v. Zales Meats Distribs., Inc., 921 So.2d 768 (Fla. 3d DCA 2006); Skinner v. Skinner, 579 So.2d 358 (Fla. 4th DCA 1991); Fiber Crete Homes, Inc. v. State, Dep’t of Transp., 315 So.2d 492 (Fla. 4th DCA 1975). Therefore, if the issue had been squarely presented to the trial court, for example, and the court had simply rejected Appellants’ legal argument as to the appropriate rate to use for post-judgment interest, the adverse legal ruling should have been raised by a timely appeal — and would therefore be improper for consideration under rule 1.540. See Allstate Ins. Co. v. Gulisano, 722 So.2d 216 (Fla. 2d DCA 1998), rev. denied, 740 So.2d 528. However, because Appellants did not include a transcript from the hearing resulting in entry of the final judgment (or of the hearing on their rule 1.540 motion), we have no way of conclusively determining what was presented or argued.

Even if the legal issue was not originally presented to the trial court, as both briefs seem to suggest, the mistake still appears to have been a mistake of law, which Appellants could have corrected by timely filing a motion for rehearing (bringing the overlooked but controlling case law to the court’s attention). See Barrios v. Draper, 423 So.2d 1002, 1003 (Fla. 3d DCA 1982) (noting “a party seeking relief from judgment based on a mistake of law has two alternatives. He may file a motion pursuant to Florida Rule of Civil Procedure 1.530(g) within ten days after entry of the final judgment or file an appeal within thirty days.”) (citations omitted). In addition, rule 1.540(b) “does not have as its purpose or intent the reopening of lawsuits to allow parties to state new claims or offer new evidence omitted by oversight or inadvertence.” Viking Gen. Corp. v. Diversified Mortgage Investors, 387 So.2d 983, 985 (Fla. 2d DCA 1980), rev. denied, 394 So.2d 1154 (Fla.1981). As explained in Viking General: “The necessary finality of litigation prohibits us from giving parties a second chance at proof they had available in the first instance, but overlooked or chose not to use.” Id. at 986; see also, Gulisano, 722 So.2d at 218 (“No party should be forced to bear the burden of relitigating a matter due to the opponent’s failure to take the necessary steps to protect his or her interests, particularly when, as here, this could have easily been done.”); Randle-Eastern Ambulance Serv. v. Vasta, 360 So.2d 68, 69 (Fla.1978) (“[I]t has never been the role of the trial courts of this state to relieve attorneys of their tactical mistakes. The rules of civil procedure were never designed for that purpose, and nothing in rule 1.540(b) suggests otherwise.”). This reasoning would seem to apply, with equal force, to new legal arguments that trial counsel overlooked or chose not to use.

Therefore, as a general rule, we do not believe that rule 1.540 should be used as a vehicle to present new legal arguments originally overlooked by counsel — especially where correcting the mistake would result in reopening the entire case, or a substantial portion of it. But see Waggoner v. R. McGray, Inc., 743 F.2d 643 (9th Cir.1984) (“Mistake of counsel induced by error of law is covered by rule 60(b)(1), which provides for relief for reason of ‘mistake, inadvertence, surprise or excusable neglect.’ ”).

However, the “mistake” alleged here is one that in many cases could easily be corrected without great harm to the important principle of finality. And, the only federal appellate court that appears to have addressed the issue has allowed a trial court to correct a mistake in the post-judgment interest rate by filing a rule 60(b) motion. See Fidelity Fed. Bank v. Burga Ma Corp., 387 F.3d 1021, 1024 (9th Cir.2004) (“The district court acted within its discretion when it corrected the post-judgment interest rate” by granting party’s rule 60(b) motion.); see also, Waggoner, 743 F.2d at 645 (holding that erroneous inclusion of post-judgment interest could have been corrected by motion under rule 60(b), had the motion been timely filed).

Because correcting a mistake in the post-judgment interest rate generally could be accomplished easily and quickly, without relitigating any substantive issue and with little burden on the rule of finality, we elect to follow federal precedent and hold that a timely motion under rule 1.540(b) can be used to correct an error in the post-judgment interest rate. As with other issues properly raised under rule 1.540(b), this will require the trial court, on a case by case basis, to balance the “countervailing interests” of “the court’s desire to preserve the finality of judgments against the court’s obligation that justice be done.” Crocker, 515 So.2d at 1307.

Turning back to this case, we believe that the court acted within its broad discretion in denying Appellants’ motion. Appellees had already twice arranged for and noticed the foreclosure sale; Appellants had already significantly delayed the sale once, and failed to make any bid whatsoever on the subject property; and, Appellants presumably sought below the same relief sought on appeal — not just a correction of the post-judgment interest rate but an order setting aside the foreclosure sale, certificate of title, and certificate of sale founded upon the final judgment. Under these circumstances, we find the trial court did not abuse its discretion in opting for finality. Further, because we were not provided with a transcript of the relevant hearing, we must presume that the trial court’s decision was based upon a correct balancing of interests. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (holding “the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error”).

AFFIRMED.

THOMPSON and PALMER, JJ., concur.

      . Appellants were afforded the opportunity to continue the automatic stay by making an "adequate protection” payment equivalent to all accrued post-petition interest (at a rate of eight percent per annum). When Appellants failed to make the payment, the bankruptcy court lifted the stay.

      . Appellants appear correct in this assertion. The final judgment provided for post-judgment interest at the default rate of eighteen percent per annum. However, the note and mortgage did not explicitly state that the default contract rate would also serve as the post-judgment rate. Therefore, the statutory rate should have been used. See Whitehurst v. Camp, 699 So.2d 679 (Fla.1997).

      . Under rule 1.530, a party has ten days within which to file a motion for rehearing.

      . It is not completely unforeseeable that an attorney might hold back an argument and allow a judgment to be entered containing an easily correctable mistake, if he or she knew that the judgment could later be vacated. In this case, for example, Appellants clearly did not have the funds to redeem the property at the time of the original sale. However, if they could build in a "second bite at the apple,” it could greatly inure to their benefit if, for example, the value of the property significantly increased during the year allowed for filing a rule 1.540 motion.

      . "Because Federal Rule of Civil Procedure 60(b) is substantially the same as Florida Rule of Civil Procedure 1.540(b), the "construction given Federal Rule 60(b) by the federal courts is persuasive authority for construing Florida Rule 1.540(b).” ” Schlapper v. Maurer, 687 So.2d 982, 986 n. 1 (Fla. 5th DCA 1997) (quoting Crocker Invs., Inc., 515 So.2d at 1307 n. 2).


author: STEVENSON, C.J.

text:
    ESQUE REAL ESTATE HOLDINGS, INC., James Thompson and Janet Kent, Appellants, v. C.H. CONSULTING, LTD., C.H. Consulting, Inc., Chris Heine and Eleanor B. Halperin, Appellees.
    No. 4D05-3229.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.
    Brad Culverhouse of Brad Culverhouse, Attorney At Law, Chartered, Fort Pierce, for appellants.
    John R. Hart, Michael K. Winston and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellees.
   STEVENSON, C.J.

Appellants, Esque Real Estate Holdings, Inc., James Thompson and Janet Kent, appeal the trial court’s order denying their motion to quash and vacate a foreclosure sale and ordering the issuance of a certificate of title and writ of possession to C.H. Consulting, Ltd. Because appellants did not allege a defect or irregularity connected with the sale, we affirm.

On April 26, 2002, Esque Real Estate Holdings, Inc. delivered a note and mortgage to the lender and appellee, C.H. Consulting, Ltd. On June 10, 2004, the trial court rendered a final judgment of foreclosure in favor of C.H. Consulting, Ltd. The final judgment provided for a total sum of $973,388.85, which included the principal balance of $700,000 and unpaid interest of $273,388.85. Additionally, the trial court retained jurisdiction to award C.H. Consulting costs and attorney’s fees. As a result of stays, the foreclosure sale was reset from July 13, 2004 to June 21, 2005. On the date of the sale, C.H. Consulting purchased the property for $1,000.

In their July 1, 2005 motion to vacate the sale, appellants claimed C.H. Consulting, Ltd., in violation of section 701.04, Florida Statutes (2005), failed to timely respond to a title company’s two written requests for estoppel letters on their behalf. Appellants maintained that had C.H. Consulting timely responded to the first request, they could have redeemed the property, which had an appraised value of 2.2 million dollars. Appellants further claimed that at the June 20, 2005 hearing on their emergency motion to stay the sale, C.H. Consulting made false representations to the trial court by failing to acknowledge that it had received the first request for an estoppel letter. The trial court denied the motion to vacate the foreclosure sale. On appeal, appellants assert that the trial court was obligated, based on either the equitable powers of the court or Florida Rule of Civil Procedure 1.540, to conduct an evidentiary hearing to determine if C.H. Consulting committed fraud by claiming it received only the latter request for an estoppel letter and by purchasing the property for the “shocking” price of $1,000. We disagree.

“Whether the complaining party has made the showing necessary to set aside a [foreclosure] sale is a discretionary decision by the trial court, which may be reversed only when the court has grossly abused its discretion.” United Cos. Lending Corp. v. Abercrombie, 713 So.2d 1017, 1018 (Fla. 2d DCA 1998). In Arlt v. Buchanan, 190 So.2d 575 (Fla.1966), our supreme court stated:

The general rule is, of course, that standing alone mere inadequacy of price is not a ground for setting aside a judicial sale. But where the inadequacy is gross and is shown to result from any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale, with resulting injustice to the complaining party, equity will act to prevent the wrong result.

Id. at 577. Applying Arlt, this court has held that to vacate a foreclosure sale, the trial court must find “ ‘(1) that the foreclosure sale bid was grossly or startlingly inadequate; and (2) that the inadequacy of the bid resulted from some mistake, fraud or other irregularity in the sale.’ ” Blue Star Invs., Inc. v. Johnson, 801 So.2d 218, 219 (Fla. 4th DCA 2001) (quoting Cueto v. Mfrs. & Traders Trust Co., 791 So.2d 1125, 1126 (Fla. 4th DCA 2000)). In the instant case, even assuming that the purchase price was grossly inadequate, neither C.H. Consulting’s alleged failure to timely provide an estoppel letter nor its alleged false representation that it did not receive the initial request for an estoppel letter amounts to an “irregularity” connected with the sale.

The instant case is somewhat similar to Action Realty & Investments, Inc. v. Grandison, 930 So.2d 674 (Fla. 4th DCA 2006). There, Mortgage Electronic Registration Systems (MERS), the lender, sought to foreclose on Halima Grandison’s home. Id. at 675. The foreclosure sale was scheduled for October 12, 2004. Gran-dison did not respond to the title company’s requests for payoff information and MERS did not send payoff information to the title company until the day before the sale. Grandison filed a motion to vacate the sale, asserting that MERS failed to provide an estoppel letter to the title company and the property sold for less than it was worth. The trial court agreed that MERS was responsible for the untimely delivery of the payoff information and was at fault for Grandison losing her right of redemption. Id. This court reversed the trial court’s order because the purchase price was adequate and Grandison failed to establish “irregularities in the sale process.” Id. at 678.

Likewise, Fernandez v. Suburban Coastal Corp., 489 So.2d 70 (Fla. 4th DCA 1986), is illustrative. In Fernandez, the mortgagee, Suburban Coastal Corp., arranged for a company to attend a foreclosure sale and “bid up to the extent of the mortgage balance of $54,300.” Id. at 71. The company failed to attend the sale and Fernandez purchased the property for $100. The trial court found the company was at fault and ordered the clerk of court to vacate the certificate of sale. This court held:

It is a long standing rule that inadequacy of price alone is not sufficient to set aside a judicial sale. However, where the inadequacy is gross and is shown to result from any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale, with resulting injustice to the complaining party, equity will act to prevent the wrong result.

Id. (citation omitted). Because the company’s failure to attend the sale — an incident connected with the sale process — resulted in an inadequate bid price, this court affirmed the trial court’s broad discretion in setting aside the sale. See id. at 72.

Appellants, here, have not challenged the final judgment of foreclosure, but only the foreclosure sale. We hold that because they have failed to allege any irregularity or defect connected with the sale process, the trial court.did not abuse its discretion in denying their motion to vacate the foreclosure sale without holding an evidentiary hearing. We have examined the other issues on appeal and find no error.

Affirmed.

STONE, J„ and BATEMAN, III, THOMAS HOWELL, Associate Judge, concur.

      . Section 701.04 provides in part:
      (1) Within 14 days after receipt of the written request of a mortgagor, the holder of a mortgage shall deliver to the mortgagor at a place designated in the written request an estoppel letter setting forth the unpaid principal balance, interest due, and the per diem rate.

      . We acknowledge that the Second District in Ingorvaia v. Horton, 816 So.2d 1256 (Fla. 2d DCA 2002), has questioned the viability of Arlt’s two-part test when adequacy of price is not an issue. There, the court stated that "to hold that a trial court may not vacate a foreclosure sale absent a grossly inadequate bid price would deprive the courts of their equitable powers and their duty to protect and preserve the integrity of the judicial sale process.” Id. at 1258-59. Nevertheless, the requirement that there be some defect or irregularity connected with the sale was not at issue in Ingorvaia because, there, the assignee of the mortgage was not notified of the final judgment and sale, and due process concerns made the sale irregular. Id. Of course, a defect or fraud in obtaining the final judgment of foreclosure can also lead to a setting aside of the accompanying judicial sale. See U-M Publ’g, Inc. v. Home News Publ’g Co., 279 So.2d 379 (Fla. 3d DCA 1973).


text:
    Peter L. BRANCH, Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D06-4219.
    District Court of Appeal of Florida, First District.
    Oct. 4, 2006.
    Rehearing Denied Nov. 9, 2006.
    Herbert L. Thomas, Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See Allen v. Live Oak Ford Mercury, 647 So.2d 1060 (Fla. 1st DCA 1994).

KAHN, C.J., LEWIS, and HAWKES, JJ., CONCUR.


author: PLEUS, C.J.

text:
    Edna Jane FAVREAU, Appellant, v. Anna May FAVREAU, Appellee.
    No. 5D06-443.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.
    Rehearing Denied Nov. 2, 2006.

      Edna J. Favreau, Melbourne, pro se.
    No Appearance for Appellee.
   PLEUS, C.J.

Edna Jane Favreau (Edna) filed a notice of appeal, pro se, from an order entered by the Circuit Court of Volusia County, Probate Division, which prohibits her from further pro se filings in a probate proceeding involving the estate of her ex-husband, Walter Frederick Favreau. Two circuit judges have entered similar orders in other litigation, barring Edna from further pro se filings based on abusive and frivolous court filings.

The order does not dispose of the probate action, nor can it be deemed final in any way as to Edna since it does not preclude Edna from any further filings, only pro se filings. As such, the order is not reviewable by appeal as per Florida Rule of Appellate Procedure 9.110(a)(2), which authorizes appellate review “of orders entered in probate ... matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.” While in a probate matter several final orders may be entered during the course of proceedings that address different issues and different persons, see Committee Notes to Florida Rule of Appellate Procedure 9.110, the order here is in no way final in nature.

The order is not a reviewable non-final order. See Florida Rule of Appellate Procedure 9.130. The remaining avenue for review is certiorari but Edna has failed to establish the requisites for issuance of the writ in this case. A court has the inherent power to prevent abuse of court procedure which interferes with the effective administration of justice. Platel v. Maguire, Voorhis & Wells, P.A., 436 So.2d 303 (Fla. 5th DCA 1983). A requirement that pleadings be accompanied by an attorney’s signature is not a restraint which amounts to a complete denial of access to courts. Id.; May v. Barthet, 886 So.2d 324 (Fla. 4th DCA 2004); see also § 68.093, Fla. Stat. (2005) (the Florida Vexatious Litigant Law). The trial court followed procedural requirements by issuing an order to show cause, affording Edna an opportunity to explain why she should not be barred from future pro se filings. Edna has failed to establish a clear departure from the essential requirements of law resulting in irreparable harm. See Cape Canaveral Hospital, Inc. v. Leal, 917 So.2d 336 (Fla. 5th DCA 2005).

Accordingly, we treat the notice of appeal as a petition for writ of certiorari and deny the petition.

CERTIORARI DENIED.

GRIFFIN and ORFINGER, JJ., concur.


text:
    PHENION DEVELOPMENT GROUP, INC., et al., Appellant, v. Willard PALMER and Gene Grimes, Appellees.
    No. 5D06-1711.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2006.
    Rehearing Denied Nov. 1, 2006.
    Non Final Appeal from the Circuit Court for Brevard County, John D. Mox-ley, Jr., Judge.
    Charles D. Franken, of Charles D. Franken, P.A., Plantation, for Appellant.
    David G. Larkin and Jesse L. Kabaser-vice, of Fallace & Larkin, L.C., Melbourne, for Appellee.
   PER CURIAM.

AFFIRMED. See Phenion Dev. Group, Inc. v. Love, Case No. 5D06-1710, 940 So.2d 1179, 2006 WL 2785515 (Fla. Sept. 29, 2006).

THOMPSON, PALMER and LAWSON, JJ., concur.


text:
    Alon SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3453.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.
    Rehearing Denied Nov. 20, 2006.
    Alón Sims, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s order of July 26, 2006, that denied appellant’s July 12, 2006, motion to vacate, set aside, or correct illegal sentence. Our review of the record reveals no order disposing of appellant’s rule 3.800(a) motion of August 2005.

POLEN, FARMER and MAY, JJ., concur.