author: EMAS, J.

text:
    UNIVERSITY OF MIAMI, Appellant, v. Nelson FRANCOIS, etc., Appellee.
    No. 3D10-3201.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.

      Fowler White Burnett, and Marc J. Schleier, and Helenmarie M. Blake, for appellant.
    Justine S. Anagnos, and Loreen I. Kreizinger, Fort Lauderdale, for appellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.

      . This is because the wrongdoers are independent, and not joint, tortfeasors. Had Nurse Martinez and the University of Miami been joint tortfeasors, each would be jointly and severally liable for all of the injuries caused by either, and the release of one would not operate to discharge regardless of the language of the settlement agreement and release. See §§ 768.041(1), 768.3 l(5)(a), Fla. Stat. (1997); Broz v. Rodriguez, 891 So.2d 1205 (Fla. 4th DCA 2005).

   EMAS, J.

The issue presented is whether the release and settlement agreement, entered into between Plaintiff and an initial tort-feasor, clearly reserved Plaintiffs cause of action against a subsequent tortfeasor. We reverse, holding that the release and settlement agreement in this case failed to do so, thereby barring Plaintiff from pursuing a claim against the subsequent tort-feasor.

FACTS

On July 24, 2006, twenty-six-year-old Caroline Francois was admitted to North Shore Medical Center (“North Shore”) to give birth to her third child. Caroline Francois’ blood pressure was severely elevated after she delivered a healthy baby. On July 26, 2006, from 7:00 a.m. to 7:00 p.m., Mrs. Francois was under the care of Angelica Martinez, R.N. (“Nurse Martinez”), an employee of Medical Staffing Network Holdings, Inc. (“Medical Staffing”), which provided nursing staff services to North Shore. Nurse Martinez failed to treat Mrs. Francois’ spiking blood pressure and, as a result, Mrs. Francois suffered a brain bleed, requiring her to be placed on life support.

Shortly thereafter, Robert Kerns, a coordinator of the University of Miami’s Life Alliance Organ Recovery Program (“the University of Miami”), entered Mrs. Francois’ hospital room without her husband’s consent; wrote a physician’s order pronouncing Mrs. Francois brain dead (despite the fact that Kerns is not a physician); ordered the removal of Mrs. Francois from life support without her husband’s consent and while she continued to exhibit spontaneous respiration. She died on July 27, 2006.

In July of 2008, Nelson Francois (“Francois”), Mrs. Francois’ husband, filed a wrongful death action against Nurse Martinez, Medical Staffing, and the University of Miami (vicariously for the actions of Kerns). On January 5, 2010, after entering into a settlement with Nurse Martinez and Medical Staffing, Francois executed a Release and Settlement Agreement. In relevant part, that Agreement released Nurse Martinez and Medical Staffing from

any and all claims, including bad faith claims, appellate claims, demands, damages, actions, causes of action, suits at law or in equity, or sum of money arising from any act or occurrence, or on account of any and all personal injury, death, disability, property damage, loss or damage of any kind whatsoever, known or unknown, already sustained or which may be hereafter sustained or allegedly sustained in consequence of any incidents, casualties, events, acts or omissions to act, from the beginning of time down to the date hereof, arising out of or resulting from the incidents occurring at the North Shore Medical Center, while Caroline Francois was under the care of the Defendants, Medical Staffing Network Holdings, Inc. ... and [Nurse Martinez] which is the subject matter of the action brought by Nelson Francois ....

Based upon the terms of the Release and Settlement Agreement, the University of Miami, on March 16, 2010, filed a motion for summary judgment, based on principles of release and equitable subrogation. The University of Miami argued that Nurse Martinez was the initial tortfeasor, and as such was liable for all subsequent negligent acts, including those of the University of Miami. The University of Miami contended that Francois’ action against it was barred because the settlement agreement did not clearly reserve a cause of action against the University of Miami and therefore Francois’ rights were equitably subrogated to Nurse Martinez as a result of the Release and Settlement Agreement.

Francois responded to the University of Miami’s motion for summary judgment by asserting that he had reserved a cause of action against the University of Miami when he settled his claims with Nurse Martinez and Medical Staffing as evidenced by two additional documents: (1) a mediation “memorandum of settlement” entered into at a mediation in December 2009, which led up to the settlement between Francois, Nurse Martinez and Medical Staffing; and (2) an “Addendum” to the Release and Settlement Agreement.

On August 2, 2010, following a hearing, the trial court entered an order granting the University of Miami’s summary judgment, finding, inter alia, that Francois failed to reserve a cause of action against the University of Miami, and that the documents provided by Francois in opposition to the motion were parol evidence and could not be considered. The trial court also determined that if there was a mutual mistake between the parties to the Release and Settlement Agreement, Francois’ remedy was a reformation action. Final judgment was entered on September 7, 2010.

Francois filed a motion for rehearing, arguing that the Addendum was a legally-binding component of the original agreement, rather than parol evidence. Francois also presented a Second Addendum, containing the same language as the first, but this time signed by Nurse Martinez. Following a hearing, the trial court granted Francois’ motion for rehearing and vacated both its final judgment and its order granting summary judgment. In its order on rehearing, the trial court stated that it agreed

with plaintiffs assertion that there is now a binding settlement agreement between Nurse Martinez and plaintiff that does not act to extinguish her claims against UM via release and equitable subrogation. The court is satisfied that UM cannot now suffer “double liability” or a “double recovery” as a consequence of this action.

This appeal followed.

The University of Miami argues that the Addenda were parol evidence and it was an abuse of discretion for the trial court to consider these documents in determining the intent of the settling parties when the Release and Settlement Agreement was clear and unambiguous, and failed to reserve Francois’ right to pursue a claim against the University of Miami, a subsequent tortfeasor. Francois contends that the Addenda are part of the Release and Settlement Agreement rather than parol evidence and, therefore, it was proper for the trial court to consider those documents in determining that the settling parties intended to reserve Francois’ right to pursue claims against University of Miami.

STANDARD OF REVIEW

Generally, an order granting rehearing should be reviewed for an abuse of discretion. Monarch Cruise Line, Inc. v. Leisure Time Tours, Inc., 456 So.2d 1278 (Fla. 3d DCA 1984); Gen. Contractors of Am., Inc. v. Stinson, 524 So.2d 1148 (Fla. 3d DCA 1988). “However, if the ruling is grounded in a question of law, uncontaminated with factual conflict, the area of discretion in granting a new trial is drastically limited, and the appellate court is on the same footing as the trial court in determining the correct law to be applied.” Gen. Contractors, 524 So.2d at 1150 (citations omitted). Because this case presents a pure issue of law, we examine the case de novo.

DISCUSSION

We must first decide whether the Release and Settlement Agreement expressly and unambiguously reserved Francois’ cause of action against the University of Miami, and, second, whether it was proper for the trial court to consider other evidence of the settling parties’ intent to reserve a cause of action.

In Florida, when a person is injured by the wrongful act of one tortfeasor and that injury is subsequently aggravated by the wrongful act of another tortfeasor, the law considers the negligence of the initial tortfeasor to be the proximate cause of the negligence of the subsequent tort-feasor. Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980). “The rationale [is] to prevent (1) the victim from receiving double recovery and (2) the subsequent tortfeasor from being exposed to double liability to both the victim for damages and the initial tort-feasor under the doctrine of equitable sub-rogation.” Mosley v. Amer. Med. Int’l, Inc., 712 So.2d 1149, 1151 (Fla. 4th DCA 1998). Therefore, “[t]he initial tortfeasor is subject to the total financial burden of the victim’s injuries,” including those caused by subsequent healthcare providers. Underwriters at Lloyds, 382 So.2d at 704. “This is true although the original tortfeasor and the subsequently negligent healthcare providers are independent tort-feasors and not joint tortfeasors jointly and severally liable for one common injury.” Rucks, 541 So.2d at 675.

The injured party may elect to recover all of his damages from the initial tortfeasor or may pursue separate claims against each wrongdoer. Id. However, the injured party cannot seek double recovery for his damages. Id. The injured party can also settle with one of the tort-feasors (initial or subsequent) and pursue a claim against the remaining tortfeasor. When the injured party settles with the subsequent tortfeasor first, there is ordinarily no issue with regard to how the language of the release or settlement may impact a cause of action against the initial tortfeasor. However, where the injured party settles with the initial tortfeasor, intending that the settlement be limited to damages for injuries suffered as a result of the initial tort only,

the settlement agreement and release of the initial tortfeasor should be carefully accomplished so that it is clear that the victim is not receiving compensation from the initial tortfeasor for injuries resulting from the subsequent negligence of the health care providers and that the victim is reserving the victim’s cause of action against the health care providers.

Id. The Fifth District in Rucks explained the consequences flowing from the settling parties’ failure to clearly express this intent and failure to clearly reserve a cause of action against the subsequent tortfea-sor:

[T]he rule is that if the victim’s settlement agreement with, and release of, the initial tortfeasor does not clearly reserve to the victim the victim’s cause of action against the [subsequent tort-feasors], the legal presumption is that the victim recovered from the initial tortfeasor for the injuries caused by the [subsequent tortfeasors] and the initial tortfeasor will become subrogated to that cause of action and the victim will be thereafter barred from asserting that cause of action against the [subsequent tortfeasors].

Id. at 676.

From the principles announced in these cases, Francois and Nurse Martinez were required to craft the terms of their Release and Settlement Agreement to clearly express that:

1. Francois was not receiving compensation from Nurse Martinez (the initial tortfeasor) for injuries resulting from the subsequent negligence of the University , of Miami (the subsequent tortfeasor); and
2. Francois was reserving his cause of action against the University of Miami.

The trial court initially determined that Francois, in entering into the Release and Settlement Agreement, failed to reserve a cause of action against the University of Miami. The court concluded that Francois’ cause of action against the University of Miami was extinguished by the clear and unambiguous terms of Francois’ settlement with Nurse Martinez, and entered summary judgment in favor of the University. However, after being presented with additional evidence of the settling parties’ intent, the court vacated its order on rehearing, finding that the settlement agreement did not extinguish those claims. We find that the trial court erred in considering this additional evidence, as it was parol evidence. Francois characterizes this additional evidence as an “Addendum” (and Second Addendum) to the Release and Settlement Agreement. However, the mere labeling of such a document as an “addendum” does not make it so. The Addendum was executed on April 27, 2010 — more than five weeks after the University of Miami filed its motion for summary judgment, and more than eleven weeks after the Release and Settlement Agreement was executed. The Second Addendum was executed on September 1, 2010 — more than five months after the motion for summary judgment was filed, nearly eight months after the Release and Settlement Agreement was executed, and after the trial court had already heard and granted the motion for summary judgment.

Francois argues that the Addenda are not parol evidence, but rather, are part of the original Release and Settlement Agreement, and that it was therefore proper for the court to consider those documents. That argument however, is incorrect. These documents were not executed contemporaneously with the Release and Settlement Agreement and cannot be said to be part and parcel of that Agreement. More to the point, these documents did not serve to explain an ambiguity but instead created an ambiguity which would not otherwise exist in the Release and Settlement Agreement. Neither the Addenda nor the “memorandum of settlement” can be relied upon to “explain” an agreement which, by its terms, required no explanation. Wickenheiser v. Ramm Vending Promotion, Inc., 560 So.2d 350, 352 (Fla. 5th DCA 1990) (holding “evidence that would contradict, add to, or subtract from or affect the construction of a valid, complete and unambiguous written instrument is inadmissible under the parol evidence rule”). The intent of the parties was to be determined from the four corners of the Agreement, not through consideration of extrinsic evidence. Sheen v. Lyon, 485 So.2d 422 (Fla.1986); Garcia v. Tarmac Am., Inc., 880 So.2d 807 (Fla. 5th DCA 2004); V & M Erectors, Inc. v. The Middlesex Corp., 867 So.2d 1252 (Fla. 4th DCA 2004).

In its initial order granting summary judgment, the trial court properly concluded that the clear and unambiguous terms of the Release and Settlement Agreement failed to reserve a cause of action and barred Francois from pursuing a claim against the University of Miami. However, the trial court erred in granting rehearing and in considering the Addenda and the memorandum of settlement in an attempt to discern an intent which was already clearly expressed by the terms of the Release and Settlement Agreement. We therefore reverse the order granting rehearing and remand with directions to reinstate the order granting motion for summary judgment and final summary judgment in favor of University of Miami.

Reversed and remanded with instructions.

      . The Release and Settlement Agreement was executed on January 5, 2010. University of Miami’s motion for summary judgment was filed on March 16, 2010. The "Addendum” was executed on April 27, 2010, forty-five days after the filing of the motion for summary judgment and more than 100 days after execution of the Release and Settlement Agreement.

      . Francois concedes that he did not plead or seek reformation of the Release and Settlement Agreement at the trial court level, nor does he contend on appeal that a reformation was effectuated when the trial court entered its final order following rehearing. See, e.g., Rucks v. Pushman, 541 So.2d 673 (Fla. 5th DCA 1989). Thus we do not consider whether reformation could have been utilized to achieve a different result.

      . In its decision granting the University of Miami's motion for summary judgment, the trial court noted that the Addendum submitted by Francois had been signed by Medical Staffing, but had not been signed by Nurse Martinez. The Second Addendum was signed by Nurse Martinez on September 1, 2010, nearly eight months after execution of the Release and Settlement Agreement. Nevertheless, the parol nature of the Addendum (and the Second Addendum) remains unaffected by the presence or absence of Nurse Martinez' signature.

      . There is no dispute that Nurse Martinez was the initial tortfeasor and the University of Miami (vicariously for Kerns) was the subsequent tortfeasor.


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Yunior Ledea GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1824.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 2011.
   LaROSE, Judge.

Yunior Ledea Gonzalez appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the post-conviction court dismissed as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVTCTION PROCEEDINGS?

Affirmed.

VILLANTI and MORRIS, JJ. Concur.


author: SCHWARTZ, Senior Judge.

text:
    Keith D. ADAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2946.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Keith D. Adams, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

As held by four unanimous district courts of appeal, including this one, we again reject Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011) and hold that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional. Accord Maestas v. State, 76 So.3d 991, 2011 WL 5964337 (Fla. 4th DCA 2011); Little v. State, 77 So.3d 722, 2011 WL 5554812 (Fla. 3d DCA 2011); Holcy v. State, — So.3d -, 2011 WL 5299328 (Fla. 5th DCA 2011); Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). Accordingly, the order below denying postconviction relief is

Affirmed.

      . The only district court of appeal which has not considered the merits of Shelton has "passed through” the issue to the Florida Supreme Court. State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011).


author: PER CURIAM.

text:
    Roderick K. STRACHAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2902.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Roderick K. Strachan, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 2011 WL 5554812 (Fla. 3d DCA 2011), and cases cited.


text:
    John CARTER, Appellant, v. TBOM MORTGAGE HOLDING CO., Appellee.
    No. 3D11-1435.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Morris duPont, for appellant.
    Jones Walker Waechter Poitevent Car-rere and Denegre, and Todd N. Feldman and Scott H. Silver, Miami, for appellee.
    Before WELLS, C.J., and SALTER, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Fla. R. Civ. P. 1.190; Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


author: PER CURIAM. WELLS, C.J.,

text:
    COCONUT GROVE STATION DEVELOPMENT, LTD., Appellant, v. MIAMI-DADE COUNTY, Appellee.
    No. 3D11-1171.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Crabtree & Associates, P.A., and John G. Crabtree and George R. Baise, Jr.; and W. Stephen Lorenzo, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Jason Bloch, Assistant County Attorney, for appellee.
    Before WELLS, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   PER CURIAM.

Coconut Grove Station Development, Ltd. (“the tenant”) appeals a final judgment following the trial court’s rulings on competing motions for partial summary judgment as to the tenant’s claims against Miami-Dade County (“the County”), and the County’s counterclaim, in which the trial court ruled in favor of the County. The County’s motion for summary judgment as to the lease contract and its arguments before the trial court were premised on the County’s contention that it had satisfied its obligations under the lease by providing the seventeen-year-old plat. Because the trial court granted summary judgment as to the lease contract on this argument and the record does not support such a finding, we reverse the final judgment on that basis. Although we reverse the final judgment entered in the County’s favor, we do not disturb the trial court’s findings as it relates to the “Best Efforts” contract.

CORTINAS and ROTHENBERG, JJ., concur.

WELLS, C.J.,

(dissenting).

I respectfully dissent. I would affirm the dismissal of the tenant’s contract claims under the applicable statute of limitations. See § 95.11(2)(b), Fla. Stat. (2009) (providing a five year limitations period for claims based on a contract); Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 645 (Fla.1999) (recognizing that because the appellate court, “in considering whether to uphold or overturn a lower court’s judgment, is not limited to consideration of the reasons given by the trial court,” it also “stands to reason that the appellee can present any argument supported by the record even if not expressly asserted in the lower court”).

      . Because the County did not argue or rely on its statute of limitations affirmative defense in obtaining summary judgment as to the lease contract, that issue is not properly before us and cannot serve as grounds to affirm the order under review.


author: SHEPHERD, J.

text:
    NOVASTAR MORTGAGE, INC., Appellant, v. Oscar VARGAS, et al., Appellees.
    No. 3D10-3084.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.

      Krinzman, Huss & Lubetsky, and Cary A. Lubetsky and Aniella Gonzalez, Miami; Popkin & Rosaler and Brian L. Rosaler, Deerfield Beach, for appellant.
    Rawny Garay, Miami, for appellees.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

On the authority of Carnero v. National Home Mortgage Corp., 941 So.2d 395, 395-96 (Fla. 3d DCA 2006), we reverse the nonfinal order granting the foreclosure defendants’ emergency motion to set aside summary judgment pursuant to Florida Rule of Civil Procedure 1.540(b) because, as in Camero, “the motion seeking relief under this rule was unsworn as to the claim of excusable neglect and there was no sworn evidence of excusable negligence otherwise adduced at the hearing below.”

Reversed and remanded with directions to reinstate the final summary judgment of foreclosure and for further proceedings in compliance therewith.


text:
    Thomas F. COLLINS, et al., Appellants, v. MONROE COUNTY, et al., Appellees.
    No. 3D10-2747.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    James S. Mattson, Key Largo; Andrew M. Tobin, Tavernier, for appellants.
    Derek Y. Howard, Assistant Monroe County Attorney and Pamela Jo Bondi, Attorney General, and Jonathan A. Glo-gau, Chief, Complex Litigation, and Lisa Raleigh, Special Counsel, for appellees.
    Before RAMIREZ and SUAREZ, JJ, and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See First English Evangelical Lutheran Church of Glendale v. Cnty. of L.A., 210 Cal.App.3d 1353, 258 Cal.Rptr. 893, 907 (Cal.Ct.App.1989).


text:
    Norberto IGLESIAS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D11-2989.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Norberto Iglesias, in proper person.
    Pamela Jo Bondi, Attorney General, for Respondent.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Norberto Iglesias appeals the trial court’s order dismissing as untimely his motion to mitigate sentence. We treat the appeal as a petition for writ of certiorari, Johnson v. State, 932 So.2d 562 (Fla. 3d DCA 2006), and deny the petition.

Florida Rule of Criminal Procedure 3.800(c) provides that where no direct appeal has been filed, a motion to reduce, modify or mitigate a sentence must be filed within sixty days of the imposition of the sentence.

On August 13, 2008, the trial court sentenced Iglesias in two different cases. No appeal was taken from the judgment or sentence imposed in either case. Iglesias’ motion to mitigate was filed on May 20, 2011, more than two and one-half years after his judgments and sentences became final. The trial court properly dismissed the motion as untimely. See Schlabach v. State, 37 So.3d 230, 239 (Fla.2010) (holding “a trial court does not lose jurisdiction to modify a sentence when the motion is filed within the sixty-day time period as long as the trial court rules on the motion within a reasonable time”) (emphasis added).

Petition denied.


author: LAGOA, J.

text:
    The STATE of Florida, Appellant, v. Cristian ESTRADA and Rodolfo Cortina, Appellees.
    No. 3D10-647.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Pamela Jo Bondi, Attorney General, and Michael C. Greenberg and Keri T. Joseph, Assistant Attorneys General, for appellant.

      Carlos J. Martinez, Public Defender, and Brian Ellison, Assistant Public Defender, for appellee Cristian Estrada; Roderick Vereen, for appellee Rodolfo Corti-na.
    Before LAGOA and EMAS, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

The State of Florida appeals orders dismissing the information charging Cristian Estrada and Rodolfo Cortina (collectively “defendants”) with trafficking in cannabis. We reverse.

Defendants were charged with trafficking in cannabis pursuant to section 893.135(l)(a), Florida Statutes (2008), which requires that the cannabis seized weigh in excess of twenty-five pounds. When the defendants were initially arrested and the contraband was seized, the cannabis weighed twenty-six pounds. Approximately seventeen months later, the defendants’ expert witness, Dr. Hall, weighed the cannabis again. He discovered that a pool of liquid had formed at the bottom of the container holding the cannabis and packaging. When Dr. Hall reweighed the cannabis without the packaging and the liquid, the cannabis weighed twenty-four pounds.

Defendants filed sworn motions to dismiss asserting that no material facts were in dispute because the weight of the cannabis was below the twenty-five pound requirement for the charged trafficking offenses. The State filed a traverse that did not dispute that the cannabis weighed twenty-four pounds without the liquid and the packaging. However, it asserted that the liquid was not present in the container when the cannabis was initially weighed and that expert testimony would explain to the trier of fact the reason for the difference in weight from the date of impounding to the date of re-weighing by Dr. Hall. The State agreed that there was now water in the container, but that the expert would explain the breakdown of the plants and how water seeps from the plants during storage. The State argued that the case law permits the inclusion of such water in weighing the plants.

In ruling on defendants’ motions, the court stated that “nobody buys wet weed,” that wet cannabis cannot be smoked, and that cannabis cannot be used when it still has water content. Relying on this observation, the trial court found that the determinative weight of the cannabis was twenty-four pounds, and concluded that the weight for the purpose of the trafficking statute does not include any plant moisture. Based on this legal conclusion, the court granted the motions to dismiss the trafficking charges.

We agree with the State’s contention on appeal that the trial court’s reasoning in dismissing the trafficking charges was error. The trial court’s ruling fails to apply the correct definition of cannabis. In pertinent part, section 893.135(l)(a), provides that trafficking in cannabis is a first-degree felony when a person knowingly sells, purchases, manufactures, delivers, brings into this state, or actually or constructively possesses “in excess of 25 pounds of cannabis.” “Cannabis” is defined as “all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.” § 893.02(3), Fla. Stat. (2008). This statutory definition has been construed to exclude only “[w]rapping materials, commingled soil, and excess water not inherent in the plant’s vegetable matter.” State v. Velasquez, 879 So.2d 1259, 1260 n. 1 (Fla. 3d DCA 2004) (emphasis added) (citing Cronin v. State, 470 So.2d 802, 804 (Fla. 4th DCA 1985)); see also Jordan v. State, 419 So.2d 363 (Fla. 1st DCA 1982), abrogated on other grounds by Fenelon v. State, 594 So.2d 292 (Fla.1992). “Excess water” has been described as “waterthat has been added extrinsically to the marijuana or that the marijuana had accidentally acquired; water that one normally would not expect to find in the plant.” Cronin, 470 So.2d at 803 (testimony provided by expert witness). As the cases and statute provide, the definition of “cannabis,” rather than encompassing contraband in its dried, consumable form, excludes only the “water not inherent in the plant’s vegetable matter” when determining whether the cannabis seized is in excess of section 893.135(l)(a)’s twenty-five pound weight requirement., Cf. State v. Velasquez, 879 So.2d 1259, 1260 (Fla. 3d DCA 2004) (holding that the “statutory definition of cannabis does not distinguish between processed and unprocessed cannabis”); Jones v. State, 589 So.2d 1001, 1002 (Fla. 3d DCA 1991) (court may not judicially amend statute to require that quantity of drugs possessed “be somehow ‘usable’ for sale or consumption”).

Applying the correct definition of cannabis, it is clear that the trial court erred in dismissing the charges. “The purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute.” Smith, 67 So.3d at 411 (quoting State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002)). Construing the facts in the light most favorable to the State, with all inferences resolved against the defendants, see State v. Arnal, 941 So.2d 556, 558 (Fla. 3d DCA 2006); State v. Giralt, 871 So.2d 983, 985 (Fla. 3d DCA 2004), a reasonable jury could find that the cannabis weighed in excess of twenty-five pounds as required to prove trafficking in cannabis.

Here, the undisputed facts show that the cannabis weighed twenty-six pounds when it was seized and that it weighed less than the statutory amount when weighed again by the defendants’ expert. However, the cannabis weighed less than the statutory amount only because the expert excluded all of the liquid found at the bottom of the container when he reweighed the cannabis. It is undisputed that the live and freshly-cut cannabis plants were seized directly from the hydroponics lab and from Estrada’s vehicle as he drove from the lab. As such, the cannabis had not been transported by boat and had not fallen into a canal or other body of water, thereby providing the occasion for “excess water” to be added to the plants. See Cronin, 470 So.2d at 804 (holding that an issue of fact existed whether the wrappings and excess water may have increased the weight of the marijuana bales, which had been exposed to the sea and had fallen into a canal); see also Pama v. State, 552 So.2d 309, 311 (Fla. 2d DCA 1989) (noting that deputy sheriff testified as to estimate of weight, without wrappings and excess water, of marijuana bales, which were so damp from bilge water that the bales “seeped” water in truck). Because the undisputed facts establish that the State could present a prima facie case of trafficking under section 893.135(l)(a), the trial court erred in dismissing the charges. We, therefore, reverse the orders under review.

Reversed and remanded.

      . The officers seized twenty-four cannabis plants from the hydroponics lab and six live plants and six cut plants from Estrada’s vehicle. "Hydroponics is 'the science of growing plants in chemicals and water without the use of soil.’ ” Moreno-Gonzalez v. State, 67 So.3d 1020, 1022 n. 1 (Fla.2011) (quoting S-C Indus. v. Am. Hydroponics Sys., Inc., 468 F.2d 852, 853 n. 1 (5th Cir.1972)).

      . The standard of review of the orders dismissing the information is de novo. See State v. Smith, 67 So.3d 409 (Fla. 4th DCA 2011).

      . It also must be noted that the statute's definition of cannabis includes plants "whether growing or not.” § 893.02(3), Fla. Stat. Because a "growing” cannabis plant in its natural state contains water, the statutory definition of cannabis necessarily encompasses the moisture naturally contained within the plant. See United States v. Garcia, 925 F.2d 170, 172 (7th Cir.1991) ("Indeed, water is a natural component of the growing marijuana plant_”).

      . In this case, we only consider whether the determinative weight of the cannabis must exclude all plant moisture. Because the contraband was grown in a hydroponic lab, there is no issue as to the weight of commingled soil. In addition, it is undisputed that the de minimis weight of the packaging must be excluded.

      .Defendants’ reliance on Hatch v. State, Department of Revenue, 585 So.2d 1077 (Fla. 1st DCA 1991), is misplaced. To the extent that Hatch concludes that “any weight attributable to the moisture content of the freshly cut plants could not be included in the determination of the amount of marijuana to be taxed," id. at 1079 (emphasis added), we decline to apply Hatch’s definition of cannabis to this case involving a criminal statute. Hatch’s construction is limited to tax assessment cases, where, unlike the trafficking statute, the court must determine the “estimated retail price " of the cannabis for tax assessment purposes. See id. at 1078 (noting that cases dealing with cannabis weight (citing Jordan and Cronin) "are directed to proof of an element of the offenses of trafficking or possession, rather than to proof of weight for tax purposes”) (emphasis added).


text:
    Nyka O’CONNOR, Petitioner, v. SANTA ROSA CORRECTIONAL INSTITUTION, Respondent.
    No. 1D11-4424.
    District Court of Appeal of Florida, First District.
    Dec. 27, 2011.
    Nyka O’Connor, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of certiorari is DENIED. See Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000) (stating that order denying leave to proceed as an indigent is not reviewable by certiorari because an adequate remedy exists by final review of any final order in the circuit court proceedings).

LEWIS, ROWE, and RAY, JJ., concur.


author: SILBERMAN, Chief Judge.

text:
    Sue Elizabeth AMASON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5486.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2011.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Sue Elizabeth Amason appeals the revocation of her probation and resulting sentence of five years in prison for obtaining food or lodging with intent to defraud ($300 or more). Amason admitted to a violation of probation but contends that she was denied due process at the revocation hearing. Because the trial court did not give Amason an adequate opportunity to be heard regarding sentencing, we reverse and remand for a new revocation hearing before a different trial judge.

In January 2009, Amason was placed on eighteen months’ probation for obtaining food or lodging with intent to defraud ($300 or more), a third-degree felony. A condition of her probation required that she pay restitution of $4549 to the Clarion Hotel and Conference Center within sixty days. An affidavit and amended affidavit of violation of probation were filed in May and June of 2009. The amended affidavit alleged four violations of probation, including a violation of condition 9 for the failure to make restitution payments and a violation of condition 3 for changing her residence without the approval of her probation officer. An addendum to the violation report indicated that a friend of Amason’s, Ellen Hair, had reportedly loaned $6000 to Amason so that she could pay her financial obligations to the court in full and that Hair had not heard from Amason since that time.

At the violation of probation hearing held on October 14, 2010, the trial court placed Amason under oath and she admitted to violating condition 3 by moving from her last known residence without the consent of her probation officer. The trial court found her in violation and stated, “What says the defense?” Defense counsel began to explain the circumstances surrounding Amason’s change of residence and that Amason was now living with her friend, Ellen Hair.

Hair was present at the hearing, and the trial court placed her under oath. The trial court asked Hair what Amason did with the $6000 Hair gave her to pay restitution. Hair testified that she believed Amason “put it in a bank account and there was some fraud there.” However, Hair asked the trial court to give Amason a second chance and place her back on probation.

The trial court then turned to Amason, noted that she was already under oath, and asked what happened to the $6000. Amason testified that she lost the check that Hair had given her and did not have the money. The trial court responded, “How convenient. Do you know what? There is fraud and it is occurring right over there in the jury box. She agreed to pay this in 60 days when she was placed on probation and hasn’t paid not one penny.” Defense counsel then tried to interject three times, but the court cut her off each time. Without giving counsel the opportunity to ask questions of the witnesses or hearing any argument from counsel, the court adjudicated Amason guilty and sentenced her to sixty months in prison. The order revoking probation reflects that the trial court revoked the probation based on an admission of a violation of condition 3.

Amason contends on appeal that the trial court committed fundamental error by taking on the prosecutor’s role and thus denying her due process. She also contends that the trial court denied her due process by refusing to let defense counsel respond to the court’s finding of fraud, its adjudication, and its imposition of the statutory maximum sentence.

With respect to her first contention, we conclude that the trial court did not assume the prosecutor s role as the trial court did in Cagle v. State, 821 So.2d 443 (Fla. 2d DCA 2002). “A trial court may conduct probation revocation proceedings in an informal manner and it may question witnesses, but it may not assume the role of the prosecutor.” Id. at 444. Although a trial judge may ask questions, that “is not an invitation to trial judges to supply essential elements in the state’s case.” Sears v. State, 889 So.2d 956, 959 (Fla. 5th DCA 2004).

The trial court in Cagle faded to act as a neutral and detached tribunal when it rejected the plea negotiations concerning a probation violation, stated that it would conduct a hearing, and then proceeded to call and question all the witnesses concerning the substance of the allegations. 821 So.2d at 444. The trial court also questioned the probation officer without placing him under oath. Id. The trial court’s conduct deprived Cagle of a fair and impartial tribunal and constituted fundamental error. See id.; see also Sears, 889 So.2d at 959-60 (determining that the trial judge crossed the line of neutrality when it asked the victim forty questions and asked Sears twenty-two questions, although he was not placed under oath, at a violation of probation hearing).

Here, the trial court did not provide essential elements of the State’s case; rather, Amason admitted that she violated her probation. After the trial court found Amason in violation, the court asked Hair a question and Amason a question regarding what happened to the restitution money. It was certainly a relevant consideration in determining whether to revoke her probation and sentence her to prison. However, that leads to Amason’s second contention that she was not given an adequate opportunity to be heard regarding the sentencing portion of the hearing.

“Due process envisions a law that hears before it condemns, proceeds upon inquiry, and renders judgment only after proper consideration of issues advanced by adversarial parties.” Scull v. State, 569 So.2d 1251, 1252 (Fla.1990). In addition to the factual determination of whether a violation of probation has occurred, a trial court’s decision to revoke probation involves a discretionary determination of whether the violation justifies the revocation of probation. Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 85 L.Ed.2d 686 (1985). A probationer must have an opportunity to present mitigating evidence and argue for sentencing alternatives when the court has sentencing discretion. Id. at 614, 105 S.Ct. 2254. A trial court must give a probationer an opportunity to be heard on sentencing in probation revocation proceedings. See Caldwell v. State, 72 So.3d 779, 779 (Fla. 2d DCA 2011); Estevez v. State, 705 So.2d 972, 978 (Fla. 3d DCA 1998).

After the trial court’s brief questioning of Hair and Amason, defense counsel tried to interject, but the trial court cut her off three times. Defense counsel was not given an opportunity to cross-examine the witnesses. She was also not able to make any argument responding to the trial court’s conclusion that Amason was committing fraud or that the statutory maximum sentence was warranted. Under these circumstances, Amason was denied due process. Therefore, we reverse the order revoking probation and resulting sentence and remand for a new revocation hearing before a different trial judge at which Amason can present mitigating evidence.

Reversed and remanded.

DAVIS and LaROSE, JJ., Concur.


text:
    Brandon Scott FORD, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4437.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2011.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to Brandon Scott Ford to timely file a motion for postconviction relief.

WHATLEY, WALLACE, and CRENSHAW, JJ„ Concur.


text:
    William GARRIDO, Appellant, v. STATE of Florida, Appellee.
    No. 3D10-722.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.
    Carlos J. Martinez, Public Defender, and Joanna G. Ingalls and Thomas Regnier, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, Forrest L. Andrews, Jr., Assistant Attorney General, and Douglas Glaid, Senior Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD and SUAREZ, JJ.
   PER CURIAM.

William Garrido appeals his conviction and sentence for second degree murder, alleging the trial court erred in the manslaughter instruction given to the jury. We affirm based on Figueroa v. State, 77 So.3d 714, 2011 WL 5554830 (Fla. 3d DCA 2011). As we did in Figueroa, we certify conflict with the First District’s opinions in Noack v. State, 61 So.3d 1208 (Fla. 1st DCA 2011), Pryor v. State, 48 So.3d 159 (Fla. 1st DCA 2010), and Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010).

Additionally, we certify the following question to the Florida Supreme Court as one of great public importance:

IF A JURY RETURNS A VERDICT FINDING A DEFENDANT GUILTY OF SECOND-DEGREE MURDER IN A CASE WHERE THE EVIDENCE DOES NOT SUPPORT A THEORY OF CULPABLE NEGLIGENCE, DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY GIVING A FLAWED MANSLAUGHTER BY ACT INSTRUCTION WHEN IT ALSO GIVES AN INSTRUCTION ON MANSLAUGHTER BY CULPABLE NEGLIGENCE?

Affirmed.


text:
    Fernando RECALDE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2818.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.
    Stephen Thomas Millan, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Lidia R. CRUZ and Carlos Galindo, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D11-1737.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.
    Alina Cruz, for appellant.
    Morris, Laing, Evans, Brock & Kennedy, CHTD., and Jeremy W. Harris, Kansas, for appellee.
    Before SUAREZ, LAGOA and EMAS, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


author: RAY, J.

text:
    Duane Lamar SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3241.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.

      Nancy A. Daniels, Public Defender, Tallahassee; and Ira David Karmelin, Special Assistant Public Defender, West Palm Beach, for Appellant.
    Pamela Jo Bondi, Attorney General; and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   RAY, J.

Duane Lamar Smith (Appellant) challenges the judgment and sentence entered pursuant to the jury’s verdict finding him guilty of felony battery, contending he is entitled to a new trial on two grounds. First, after Circuit Judge Wright allegedly orally indicated bias against Appellant immediately before jury selection, defense counsel did not move to disqualify the judge, and the same judge presided over voir dire, after which a successor judge conducted the guilt and sentencing phases of the trial. Because the record demonstrates the attorneys, with Appellant’s knowledge and affirmative agreement, acquiesced to Judge Wright’s decision to preside over jury selection, and defense counsel did not seek to disqualify the judge, we conclude without further discussion that the first issue was affirmatively waived for appeal and did not involve fundamental error. See Denmark v. State, 656 So.2d 166 (Fla. 1st DCA 1995). On the second issue, the trial court gave an inapplicable jury instruction and misread another instruction and, in so doing, denied Appellant a fair trial and committed fundamental error. We are constrained to reverse the judgment and sentence and remand for a new trial. See Vowels v. State, 32 So.3d 720 (Fla. 5th DCA 2010).

FACTS AND PROCEDURAL BACKGROUND

An amended information charged Appellant with aggravated battery, a second-degree felony, arising from an August 15, 2009, incident involving him and Mandy Lynn Young. The charging document alleged Appellant “did actually and intentionally touch or strike” Young against her will, “and in so doing intentionally or knowingly caused great bodily harm, permanent disability, or permanent disfigurement,” in violation of section 784.045(l)(a)l., Florida Statutes (2009).

Appellant and Young were dating at the time of the incident that led to the charge. When Young confirmed Appellant was also seeing other women and, in fact, had fathered children with several of them, she decided to tell Appellant she was seeing someone else too. Appellant and Young agreed to meet and discuss their relationship. On August 14, 2009, the couple drove together to a motel. At the trial, their stories diverged significantly concerning what happened inside the motel room and in the nearby breezeway.

Young testified that as she and Appellant, who had been drinking alcohol, sat in the room discussing their relationship, he became upset and threw a liquor bottle at her, hitting her left hip. He then beat her on the face and sides, drawing blood. When Young hid in the bathroom, Appellant attacked her again and yelled that he felt tempted to “slice her up.” When Young returned to the bedroom, Appellant threw the bottle again, shattering the glass. Appellant complied when Young asked him to leave the room, but he soon texted her to say he had left his keys in her locked car. Young exited the room and was walking along the breezeway to the parking lot when Appellant approached and asked her whether things were over between them. When she responded, “Yes, we’re done,” Appellant punched her three or four times in the right eye, knocking her against the wall and causing her to fall. Running toward the motel office, Young flagged a deputy and was transported to the hospital. She received stitches to her right eye and had bruises over several parts of her body. Young attributed all of her injuries to Appellant and denied hitting him at any time as he physically attacked her.

The defense, on the other hand, asserted that Young’s injuries arose solely from her own anger-induced acts and carelessness, or from Appellant’s self-defense. Appellant testified that in the motel room, he had listened to what Young had to say but, at some point, he gave a sarcastic “bye.” Young stood in front of him and started poking his head with both of her hands. As Appellant grabbed Young’s wrists, she pulled back, and when he released her, Young hit herself on the ear and drew blood. When Appellant picked up the unopened liquor bottle and tried to leave, Young grabbed him, pulled him back into the room, and scratched his neck as he resisted. After a brief argument, he announced, “I’m gone,” and threw the bottle to the floor before walking out. Appellant denied beating Young.

According to Appellant, after leaving the room, he texted Young about retrieving his keys from her car. When Appellant knocked on the room door, Young came out and followed him toward the parking lot. On the breezeway, she grabbed Appellant’s hand and wrist and said, “Wait, can we talk about it, can we work this out?” He urged her to leave him alone, and as Appellant turned to leave, Young delivered the first lick, catching Appellant off-guard and striking his neck. When Young threw her fist toward him, Appellant ducked, grabbed her by the wrist and back, and pushed her toward the wall. Young lunged toward him but slipped, falling face-forward to the ground. When Appellant tried to lift her, Young told him to leave her alone. He retrieved his keys and returned to where Young had fallen, but she was gone. He went to the door of the motel room, called Young’s name (getting no response), and left her car keys at the door. Appellant denied hitting Young in the eye or head, using his hands and fists to beat her, intentionally touching her with the intent to cause her any bodily harm, or making threatening remarks to Young. He admitted having seven prior felony convictions, one involving a crime of dishonesty.

Deputy Allen testified he had encountered Young running and screaming for help on the motel breezeway. Blood covered the right side of her face, and she had a large cut and swelling around her eye. The deputy retraced the couple’s path and found blood drops on the walkway outside the room and a shattered liquor bottle inside. Otherwise, he said the motel room did not appear to be in disarray.

After denying the motion for judgment of acquittal, the trial court orally instructed the jury on the aggravated battery charge and the lesser-included offenses of felony battery and battery. After informing the jury that an issue in this case was whether Appellant acted in self-defense, the court read Florida Standard Jury Instructions (Criminal) § 3.6(g) (on the justifiable use of non-deadly force), including the following language:

The use of non-deadly force is not justified if you find Duane Lamar Smith was attempting to commit, committing, or escaping after the commission of an aggravated battery.

Id. This instruction appeared also in the written jury instructions. Defense counsel did not object, and the instructions continued. The court defined aggravated battery and instructed that the “[u]se of non-deadly force is not justified if you find [Appellant] initially provoked the use of force against himself, unless the force asserted towards the defendant was so great that he reasonably believed that he was in imminent death or great bodily [sic] and had exhausted every reasonable means to escape the danger, other than using non-deadly force”; or “in good faith the defendant withdrew from physical contact with Mandy Young and indicated clearly to Mandy Young that he wanted to withdraw and stop the use of non-deadly force, but Mandy Young continued or resumed the use of force.” In determining whether Appellant was justified in using non-deadly force, the jury was to “judge him by the circumstances by which he was surrounded at the time the force was used.” In assessing the issue of self-defense, the jury could consider Appellant’s and Young’s “relative physical abilities and capacities.” The court concluded the instructions on the use of non-deadly force as follows, without an objection:

However, if from the evidence you are convinced that the Defendant was justified in the use of non-deadly force, then you should find the Defendant guilty if all the elements of the charge have been proven.

(Emphasis added).

The jury found Appellant guilty of a lesser-included offense, felony battery, i.e., it determined that Appellant actually and intentionally touched or struck Young against her will, resulting in great bodily harm, permanent disability, or permanent disfigurement, but that he did not intentionally or knowingly cause the victim harm. See § 784.041(1), Fla. Stat. (2009). The court adjudicated Appellant guilty and sentenced him to 73.6 months’ incarceration. This direct appeal ensued.

THE LAW

Jury instructions are subject to the “contemporaneous, specific objection” rule. See Fla. R.Crim. P. 3.390(d); Olivera v. State, 58 So.3d 352, 353 (Fla. 1st DCA 2011). Appellant argues for the first time on appeal that the trial court erroneously instructed the jury on the justifiable use of non-deadly force by reading the inapplicable “forcible felony” instruction. Because this issue was not preserved, Appellant must demonstrate the error is fundamental. See Reed v. State, 837 So.2d 366, 370 (Fla.2002); State v. Delva, 575 So.2d 643, 644-45 (Fla.1991). When it involves jury instructions, “fundamental error” analysis considers the effect of the erroneous instruction in the context of the other instructions given, the evidence adduced in the case, and the arguments and trial strategies of counsel. See Garzon v. State, 939 So.2d 278, 283 (Fla. 4th DCA 2006), approved, 980 So.2d 1038 (Fla.2008); Prudent v. State, 974 So.2d 1142, 1144 (Fla. 3d DCA 2008). We review de novo a claim of fundamental error. See Elliot v. State, 49 So.3d 269, 270 (Fla. 1st DCA 2010).

To the extent the trial court gave the Florida standard jury instructions on the justifiable use of non-deadly force, Appellant alleges only one error. Giving the “forcible felony” instruction — that “[t]he use of non-deadly force is not justified if you find [that Appellant] was attempting to commit, committing, or escaping after the commission of an Aggravated Battery” — in Appellant’s case was error. See Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002). Appellant complains also of the trial court’s misreading of one section of this same standard instruction, which actually states:

However, if from the evidence you are convinced that the Defendant was not justified in the use of non-deadly force, then you should find the Defendant guilty if all the elements of the charge have been proven.

(Emphasis added). Instead, the court told the jury the opposite: if the evidence demonstrated “that the defendant was justified in the use of non-deadly force,” then it should find Appellant guilty.

ANALYSIS

Self-defense is “an affirmative defense that has the effect of legally excusing the defendant from an act that would otherwise be a criminal offense.” Mosansky v. State, 33 So.3d 756, 758 (Fla. 1st DCA 2010). In asserting self-defense, Appellant acknowledged doing the act charged but sought to justify it as necessary to protect himself from harm. See Hopson v. State, 127 Fla. 243, 168 So. 810, 811 (1936). To understand why the “forcible felony” instruction does not apply and should not have been read to Appellant’s jury, we look first to the pertinent statutes:

Use of force in defense of person. — A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.

§ 776.012, Fla. Stat. (2009). Another provision states, however:

The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felonyf.]

§ 776.041(1), Fla. Stat. (2009).

Although a “forcible felony,” as used in this chapter, includes aggravated battery, see section 776.08, Florida Statutes (2002) and (2009), “the plain language of section 776.041 showfs] that it is applicable only under circumstances where the person claiming self-defense is engaged in another, independent ‘forcible felony" at the time.” Giles v. State, 831 So.2d at 1265; see Perkins v. State, 576 So.2d 1310 (Fla.1991). Citing Giles, the Florida Supreme Court amended and clarified the instruction on the justifiable use of non-deadly force in March 2008, two years before Appellant’s trial. See In re Standard Jury Instructions in Criminal Cases—Report No. 2007-3, 976 So.2d 1081, 1087 (Fla.2008) (expressly stating the “forcible felony” instruction is to be given only if the defendant is charged with an independent forcible felony).

Giles’ case, like Appellant’s, was not one where the alleged aggravated battery occurred while the defendant was attempting to commit, committing, or escaping after the commission “of some other independent forcible felony.” Thus, it clearly was error under section 776.041(1) in Giles’ and Appellant’s trials to give the challenged instruction. See Giles, 831 So.2d at 1265; see Marshall v. State, 604 So.2d 799, 803 (Fla.1992) (holding that the section 776.041(1) jury instruction was proper on a claim of self-defense to the charge of felony murder, where the underlying felonies were burglary and aggravated battery); Davis v. State, 886 So.2d 332 (Fla. 5th DCA 2004) (on mot. for reh’g); Barnes v. State, 868 So.2d 606, 607-08 (Fla. 1st DCA 2004). Giles explained why the instruction at issue prejudiced the defense:

The instruction given improperly told the jury that the very act Giles sought to justify itself precluded a finding of justification. Essentially, the jury was instructed that 776.041(1) would apply to preclude a self-defense claim, when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense. Thus, even if the jury found that Giles’ act of aggravated battery was committed in self-defense, then the use of force was not justifiable because the act itself is a forcible felony. This reading, however, is erroneous because the proper test for determining the applicability of the instruction is not whether the self-defense act itself could qualify as a forcible felony, but whether, at the time of the self-defense, the accused was engaged in a separate forcible felonious act.

831 So.2d at 1266. Given the existence of some evidence supporting Giles’ theory of self-defense, the Fourth District Court concluded he was entitled to an instruction on the law applicable to that theory of defense. Because this was not harmless error, the court reversed Giles’ conviction and remanded for a new trial. See id.

Although the reasoning in Giles explaining why the instruction did not apply and actually prejudiced the defense is relevant to Appellant’s case, Giles is materially distinguishable, in that Giles’ counsel timely objected after the “forcible felony” instruction was given, allowing the appellate court to conduct “harmless error” analysis. See id. at 1264, 1266. The appropriate (and binding) analysis for gauging the effect of the improper instruction in Appellant’s case was presented in Martinez v. State, 981 So.2d 449 (Fla.2008).

The State charged Martinez with attempted premeditated murder and aggravated battery with a deadly weapon for the single act of stabbing his girlfriend. See 981 So.2d at 450. At the trial, Martinez asserted self-defense, among other defenses. Id. Without an objection, the court gave the “forcible felony” instruction. Id. The jury found Martinez guilty of attempted first-degree premeditated murder. Id. After the Third District Court found no fundamental error, the Florida Supreme Court accepted review based on express and direct conflict with other district courts’ decisions holding, without limitation or qualification, that giving the “forcible felony” instruction when the defendant had committed only one forcible act necessarily constitutes fundamental error. See id. at 450-51. Before determining the extent and impact of the jury instruction error, the Supreme Court in Martinez reviewed the evidence adduced and the trial strategies used in that case.

During the trial, Martinez asserted, in part, that his girlfriend had attacked him with scissors, requiring him to use deadly force for self-protection. Under the self-defense instruction given to Martinez’s jury, if the jury found his actions constituted a justifiable use of force against his girlfriend, it would serve as a defense to the charges. See id. at 458. Even so, the trial court then told the jury that Martinez’s use of deadly force would not be justified if he was trying to commit attempted murder and/or aggravated battery, the very crimes the defense tried to justify as having been committed in self-defense. Id. The Supreme Court opined the instruction very likely confused Martinez’s jury, prevented the jury from finding a lawful basis for self-defense, and effectively resulted in a directed verdict on the affirmative defense of self-defense. See id. Even if the jury believed Martinez’s account that he was not the provoker and his girlfriend attacked him first, the “forcible felony” instruction absolutely precluded the jury from finding Martinez had acted in self-defense. See id. Absent an independent forcible felony in Martinez’s case, the Supreme Court concluded it was error to read this inapplicable instruction. See id. at 454.

Before deciding what relief, if any, Martinez was entitled to, the court considered the case law dealing with jury instructions and fundamental error. See id. at 454-55. Inherent in a fair trial is the right to have the court “correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.” Gerds v. State, 64 So.2d 915, 916 (Fla.1953); see Delva, 575 So.2d at 644. Where the challenged jury instruction involves an affirmative defense, fundamental error arises only where the instruction is “so flawed as to deprive defendants claiming the defense ... of a fair trial.” Smith v. State, 521 So.2d 106, 108 (Fla.1988). This is a rigorous standard, for fundamental error occurs only in those rare cases such as “where the interests of justice present a compelling demand for its application.” Ray v. State, 408 So.2d 956, 960 (Fla.1981). The court in Martinez noted, “We have never held that the failure to give an instruction or to give an erroneous instruction on an affirmative defense always constitutes fundamental error.” 981 So.2d at 455.

The Martinez court focused upon two aspects of the case. First, self-defense was not Martinez’s only defense strategy. See id. Although the defense asserted that his girlfriend may have attacked Martinez first, the strategy used alternatively allowed the jury to reject the self-defense claim, yet conclude that Martinez lacked a premeditated intent to kill her and, instead, acted in an intoxicated frenzy. See id. at 456. Significantly, even if giving the inapplicable instruction was error, it did not deny Martinez his sole, or even primary, defense. Id. Second, the Supreme Court reasoned that Martinez’s claim of self-defense was extremely weak. See id. at 456. The court determined that even if the trial court had not read the instruction to the jury, no reasonable possibility existed that the jury would have found Martinez not guilty of attempted murder. See id. That is, Martinez received a fair trial, and the facts did not present a compelling claim of fundamental error. Id. at 457; accord Clark v. State, 28 So.3d 1213 (Fla. 4th DCA 2009); Barnes v. State, 12 So.3d 797 (Fla. 5th DCA 2009) (on remand) (concluding that giving the “forcible felony” instruction, absent an independent forcible felony, was not fundamental error in a prosecution for attempted first-degree murder where defendant asserted self-defense, given evidence the victim was shot eight times, including once in the back as he fled a hail of bullets). Expressly refusing to set out a bright-line rule, Martinez left open the question of whether giving the inapplicable “forcible felony” instruction can ever rise to fundamental error. See 981 So.2d at 455-57 & n. 5.

Following Martinez, in Vowels v. State, the Fifth District Court grappled with this issue. See 32 So.3d at 720. The State charged Vowels with aggravated battery with a deadly weapon based on a physical altercation involving Vowels and Donaldson, the purported victim. Id. The testimony of Vowels’ wife and Donaldson conflicted in several material respects. Id. at 720-21. The trial court read the “forcible felony” instruction without an objection, and the jury found Vowels guilty as charged. See id. Like Appellant, Vowels asserted fundamental error on appeal because he was not charged with an independent forcible felony. See id. at 721.

Applying the Martinez analysis, the appellate court in Vowels noted self-defense was Vowels’ only defense. See 32 So.3d at 721. No forensic evidence was admitted establishing the precise order of events. See id. The only testimony about the fight came from eyewitnesses who offered strikingly different accounts concerning critical details. See id. The district court reasoned that in giving the inapplicable instruction, the trial judge led the jury to believe no theory of self-defense was available because Vowels admitted having committed an aggravated battery with a deadly weapon. See id. Distinguishing its own decision in Barnes v. State, 12 So.3d at 797, where the claim of self-defense was significantly weaker, the Vowels panel concluded that by effectively negating Vowels’ only defense theory, the instruction constituted fundamental error and compelled a reversal and remand for a new trial. See 32 So.3d at 721.

Complying with Martinez, we must consider the totality of the circumstances in determining whether the erroneous instruction resulted in fundamental error in Appellant’s trial. See 981 So.2d at 455-57 & n. 5; Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010). The testimony and other evidence presented to Appellant’s jury is more akin to what the jury heard in Vowels than in Martinez.

No eyewitnesses were present when Appellant and Young’s disagreement turned physical. The jury heard evidence suggesting Young and Appellant had reasons to be upset with each other and to be concerned about the uncertain status of their relationship. The jury heard no evidence to indicate Young called for help after Appellant first left the room; in fact, when he returned to the room, Young accompanied him along the breezeway leading to the parking lot. Some testimony indicated Young had unexpectedly delivered the first hits and sustained her injuries only as Appellant defended himself and/or as Young hit the wall or slipped and fell face-first to the ground. Appellant denied intentionally touching Young with the intent to cause her any bodily harm, and the verdict indicated the jury agreed with him on that point. He denied making threatening remarks or aiming the liquor bottle at Young.

This was a classic “he said/she said” incident with no other eyewitnesses. Some testimony, if believed by the jury, would have shown Appellant was not the initial aggressor and resisted Young in self-defense. After the jury heard this sharply conflicting evidence, the trial court gave the inapplicable “forcible felony” instruction. See Martinez, 981 So.2d at 454; In re Standard Jury Instructions, 976 So.2d at 1087; Vowels, 32 So.3d at 720; Giles, 831 So.2d at 1265-66. The jury had to resolve these conflicts to determine whether Appellant acted in self-defense. Because the substance of this misleading instruction effectively gutted Appellant’s key defense and very likely confused the jury, the defense was significantly prejudiced. See Seavey v. State, 57 So.3d 978, 980 (Fla. 5th DCA 2011) (“The failure to give a complete or accurate jury instruction constitutes fundamental error if the omission is pertinent or material to what the jury must consider in order to convict.”); McCoy v. State, 56 So.3d 37 (Fla. 1st DCA 2010); Sloss v. State, 45 So.3d 66 (Fla. 5th DCA 2010) (concluding that trial counsel’s failure to object to inclusion of inapplicable “forcible felony” instruction in prosecution for aggravated battery constituted ineffective assistance, where the instruction negated the theory of self-defense); Bouie v. State, 27 So.3d 88 (Fla. 1st DCA 2009); Stoute v. State, 987 So.2d 748, 749-50 (Fla. 4th DCA 2008).

Compounding the confusion, the court misread another portion of the standard instruction, telling the jury that if it was convinced that Appellant was justified in using non-deadly force, then it should find him guilty. Juries are presumed to have followed the instructions given. See Sutton v. State, 718 So.2d 215, 216 n. 1 (Fla. 1st DCA 1998). Thus, even if the jury believed Appellant justifiably used non-deadly force to protect himself, the court’s material misstatement told the jury to find Appellant guilty. The written instruction is correctly stated, but we cannot discern from this record whether the jury actually received written instructions before its deliberations.

In finding Appellant guilty of the lesser-included offense of felony battery, the jury determined that although Appellant actually and intentionally touched or struck Young against her will, resulting in great bodily harm, permanent disability, or permanent disfigurement, he did not intentionally or knowingly cause the victim harm. Under the totality of the circumstances, the instructions at issue were so erroneous and confusing as to affect the verdict. See Brown v. State, 124 So.2d 481, 484 (Fla.1960). Because these errors denied Appellant a fair trial and thus constituted fundamental error, we are constrained to REVERSE the judgment and sentence and REMAND for a new trial.

WOLF and LEWIS, JJ., concur.


text:
    Christopher Melvin BODY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5036.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, and Ralph W. Parnell, Assistant Public Defender, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Reversed and remanded. See Lawhorne v. State, 500 So.2d 519, 521-23 (Fla.1986) (holding that questioning of defendant about whether his six prior convictions went to trial was proper rehabilitation); Watkins v. State, 933 So.2d 1294, 1295-96 (Fla. 4th DCA 2006) (refusal to allow defendant to testify that his two, prior felony convictions were the product of guilty pleas not harmless error where defendant’s credibility at issue); Bowles v. State, 849 So.2d 465, 466 (Fla. 4th DCA 2003) (refusal to allow defendant to testify that his prior felony convictions had been resolved by guilty pleas not harmless error, as his “credibility was plainly at issue”).

BENTON, C.J., VAN NORTWICK, and SWANSON, JJ., concur.


text:
    Thomas L. LUKE, former husband, Appellant, v. Sylvia J. LUKE, former wife, Appellee.
    No. 1D11-0021.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Alexa K. Alvarez of Alvarez & Wallace, P.A., Fernandina Beach, for Appellant.
    Wesley R. Poole of Poole <& Poole, P.A., Fernandina Beach, for Appellee.
   PER CURIAM.

Thomas L. Luke, the former husband, challenges an order which grants modification of his alimony obligation to Sylvia J. Luke, the former wife, and which assesses attorney’s fees against him.

The former husband sought a modification of his alimony obligation on the ground that his businesses have floundered since dissolution and, as a result, he is no longer able to pay the alimony awarded to the former wife. The trial court, following hearing, granted the petition to modify, but did not reduce the former husband’s alimony payment to the extent he requested. We affirm the modification without further discussion because such modification was not an abuse of discretion given the trial court’s findings of fact. See McQuaig v. McQuaig, 36 So.3d 801 (Fla. 1st DCA 2010).

However, with respect to the award of attorney’s fees, we are compelled to reverse because the trial court did not indicate in the order under review that it considered any factors to determine whether the amount of fees or hours expended were reasonable. Chaney v. Fife, 18 So.3d 44 (Fla. 1st DCA 2009). Therefore, the cause is remanded for the trial court to make such findings.

AFFIRMED, in part, REVERSED, in part, and REMANDED for further proceedings consistent with this opinion.

BENTON, C.J., VAN NORTWICK and SWANSON, JJ., concur.


text:
    DEPARTMENT OF REVENUE, Appellant, v. RUEHL NO. 925, LLC, a Foreign Limited Liability Company, Appellee.
    No. 1D11-2174.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Pamela Jo Bondi, Attorney General; Diane G. DeWolf, Deputy Solicitor General; Jeffrey M. Dikman, Assistant Attorney General, Tallahassee, for Appellant.
    Katherine E. Giddings of Akerman Sen-terfitt, Tallahassee; Peter O. Larsen and Michael J. Bowen of Akerman Senterfitt, Jacksonville, for Appellee.
    Warren H. Husband of Metz, Husband & Daughton, P.A., Tallahassee, for Amici Curiae the Florida Restaurant & Lodging Association, Inc., and the Florida Retail Federation, Inc.
   PER CURIAM.

The Department of Revenue appeals the trial court’s order granting final summary judgment in favor of Ruehl No. 925, LLC, and denying its motion for partial summary judgment. Because the parties stipulated that there were no genuine issues of material fact, the only issue below was whether Ruehl or the Department was entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); USCardio Vascular, Inc. v. Dep’t of Revenue, 993 So.2d 81, 84 (Fla. 1st DCA 2008). The trial court ruled that Ruehl was entitled to judgment as a matter of law. Specifically, the trial court determined that the costs of the leasehold improvements were not part of the total rent and therefore not subject to tax under section 212.031, Florida Statutes (2004-2007). We find no error in the trial court’s determination.

Every person who engages in the business of renting or leasing real property in this state is exercising a taxable privilege, unless such property is otherwise exempt from taxation. See § 212.031(l)(a), Fla. Stat. (2004-2007). For the exercise of such a privilege, a six percent tax is assessed on the “total rent” charged by the person charging or collecting the rental fee. See § 212.031(l)(c), Fla. Stat. (2004-2007). The “total rent” includes payments for the granting of the privilege to use or occupy the property and includes base rent, percentage rents, or similar charges. See id. In the instant case, there is no evidence that the parties to the leases intended for the costs of the leasehold improvements to be part of the total rent charged. Accordingly, we affirm.

WOLF, HAWKES, and ROBERTS, JJ., concur.


text:
    DEPARTMENT OF REVENUE obo Latonya N. MONROE-WILLIAMS, Appellant, v. Timothy T. SIMMS, Appellee.
    No. 1D11-2991.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    Timothy T. Simms, pro se, for Appellee.
   PER CURIAM.

REVERSED. See T.J.D. v. A.G., 39 So.3d 360, 363 (Fla. 2d DCA 2010).

WOLF, HAWKES, and ROBERTS, JJ., concur.


text:
    Marilyn G. HARLEY, et al., Appellants, v. HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for Home Equity Loan Trust Series AE2005-HE5, Appellees.
    No. 1D11-4232.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    April Carrie Charney and Dustin Lee Winston, Jacksonville Area Legal Aid, Jacksonville, for Appellants.
    Dean A. Morande and Michael K. Winston of Carlton Fields, P.A., West Palm Beach, for Appellees.
   PER CURIAM.

The appeal and cross-appeal are hereby DISMISSED. Hickox v. Taylor, 933 So.2d 675 (Fla. 1st DCA 2006) (dismissing appeal where order granted motion and failed to enter judgment); Jensen v. Whetstine, 985 So.2d 1218, 1220 (Fla. 1st DCA 2008) (dismissing appeal where order on appeal was not an appealable partial final judgment); Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995) (finding that a proper exercise of the Court’s discretion, provided under rule 9.110(Z), is dismissal of the appeal).

LEWIS, THOMAS, and ROWE, JJ., concur.


text:
    Michael BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4828.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Michael Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Michael L. Brown is hereby granted belated appeal of the order of the Circuit Court for Duval County which denied a motion to correct sentence in case number 1998-CF-8546. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

WETHERELL, MARSTILLER, and SWANSON, JJ., concur.


text:
    Larry PALMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4949.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Larry Palmer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Larry Palmer is hereby afforded a belated appeal of the order of the Circuit Court for Escam-bia County which denied postconviction relief in case number 2008 CF 005950 A. Upon issuance of mandate in this cause, a copy of the opinion shall be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

VAN NORTWICK, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Alan Dane PIGMAN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Holmes County Hospital Corp., Appellees.
    No. 1D11-6081.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Alan Dane Pigman, pro se, Appellant.
    A. Robert Whaley, General Counsel, Tallahassee, for Appellees.
   PER CURIAM.

The notice of appeal failed to timely invoke this Courts jurisdiction. See Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998). Accordingly, the appeal is dismissed.

WETHERELL, MARSTILLER, and SWANSON, JJ., concur.


author: DAVIS, Judge.

text:
    Craig MIDDLETON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1777.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2011.

      Craig Middleton, pro se.
   DAVIS, Judge.

Craig Middleton, Jr., pro se, challenges the postconviction court’s order summarily denying his Florida Rule of Criminal Procedure 8.850 motion. Because the record documents that the postconviction court attached to its order do not conclusively refute Middleton’s claims, we reverse and remand for further proceedings.

On July 16, 2008, Middleton was convicted by a jury of aggravated assault, and the trial court sentenced him to twenty years’ imprisonment with a twenty-year minimum mandatory pursuant to the 10-20-Life statute. He failed to file a timely notice of appeal, and his subsequent petition for belated appeal was denied. Middleton then filed a rule 3.850 motion, raising two claims of ineffectiveness of trial counsel.

In ground one, Middleton alleged that he had advised trial counsel that Marquez Middleton, Freddie Chisom, and Tarrence Lassiter were all at the crime scene, were willing and able to testify, and would testify that Middleton was not present at the crime scene and in fact had not been at that location since the night before. In ground two, Middleton alleged that he had advised trial counsel that his sister, LaKi-sha Middleton, and his girlfriend, Lameika McDaniel, were willing and able to testify that Middleton was with them at his sister’s house on the night of the offense.

In summarily denying these claims, the postconviction court attached Middleton’s handwritten Notice to Demand Speedy Trial, which states: “Please take full notice defendant Craig Middleton who’s being fully represented do[es] give attorney full legal consent to file demand for speedy trial.... Defendant do[es] have the bona fide desire [to] demand speedy trial and pray[s] said motion be filed.” The post-conviction court also attached the transcript of a May 28, 2008, hearing on Middleton’s demand for speedy trial. In that transcript, the prosecutor stated:

[T]he State is going to have to fly [the victim] down here, and we will. And Judge, when we’re ready for trial, we are ready for trial. No taking his deposition, as well as another witness ... who picked this fellow up after the shooting and saw him with this diaper bag and a gun and identifies him, and has been to court before and knows this individual. That deposition hasn’t been taken. And again, Judge, if we’re asking to play by the rules, which is what he wants, speedy trial, we’ll do it. We’ll set it for trial. These people -will be here the day of trial.

The transcript indicates that the trial court then addressed Middleton as follows:

You’re saying I want a trial on this aggravated assault. It’s not like they don’t know where the victim is; it’s just that they’ve got to fly him down. And if you want to play hardball, they will play hardball back.... And you understand that you’re having your lawyer go to trial with one arm tied behind, his back because he hasn’t taken the first sworn statement on the case that you want to move up on the calendar?

Middleton responded, “Listen, man. It is what it is, man.”

The postconviction court also attached to its order summarily denying Middleton’s rule 3.850 motion a copy of the transcript of the hearing on Middleton’s petition for belated appeal wherein trial counsel testified that he explained to Middleton the ramifications of speedy trial, including that the State would object to any continuances “to do depositions, that type of thing.”

These attachments, however, are an insufficient basis on which to summarily deny Middleton’s claims because they do not refute the allegation that counsel was ineffective for failing to investigate and present certain alibi witnesses. See, e.g., Smith v. State, 815 So.2d 707, 708 (Fla. 1st DCA 2002) (“Because this claim is facially sufficient and is not refuted by the attachments to the appealed order, it should not have been summarily denied.”). The limited record before us does not indicate the date on which the information was filed; however, the circuit court case number is a 2004 number, and Middleton was not convicted until July 16, 2008. Middleton does allege in his motion for rehearing of the denial of his postconviction motion that prior to invoking his right to speedy trial, he sat in the Pinellas County Jail for three years while the State attempted to locate the out-of-state victim. Accordingly, trial counsel had three years to investigate and prepare defense witnesses before speedy trial was ever raised as an issue.

Furthermore, it is true that the court informed Middleton that once he moved for speedy trial, his counsel would not be allowed any continuances to depose the State’s witnesses. This, however, does not establish that Middleton waived a claim that counsel should have investigated his own witnesses, for whom depositions would not have been necessary. And the record is silent as to whether Middleton believed that counsel had spoken to the alibi witnesses in the three years that the case had been pending or that counsel would be able to secure the witnesses for trial during the sixty-day speedy trial period. Either way, the postconviction court’s attachments do no more than establish that Middleton wanted to invoke his speedy trial rights in a gamble that the State would not be able to get the victim to Florida to testify in the time allowed. That does not mean that Middleton did not intend to put on his own defense at trial.

Because the postconviction court’s record attachments do not conclusively refute Middleton’s claims that counsel was ineffective for failing to investigate and present certain named alibi witnesses, it was error for the court to summarily deny Middleton’s rule 3.850 motion. See Wilson v. State, 871 So.2d 298, 299 (Fla. 1st DCA 2004) (“ ‘Rule 3.850 explicitly requires that the record “conclusively” rebut an otherwise cognizable claim if it is to be denied without a hearing.’ ” (quoting State v. Leroux, 689 So.2d 235, 237 (Fla.1996))). We therefore reverse and remand for further proceedings.

Reversed and remanded.

SILBERMAN, C.J., and CASANUEVA, J., Concur.

      . § 775.087(2)(a), Fla. Stat. (2008).


text:
    Francisco CRUZ and Niurka Chirino, Petitioners, v. COOPERATIVA DE SEGUROS MULTIPLES DE PUERTO RICO, INC., Respondent.
    No. 2D11-1826.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2011.

      Michael V. Laurato of Austin & Laurato, P.A., Tampa, for Petitioners.
    Aimee M. Nocero of Neilson & Associates, P.A., Orlando, for Respondent.
   LaROSE, Judge.

Francisco Cruz and Niurka Chirino (collectively, “the Homeowners”) petition for certiorari review of a nonfinal order denying their motion to lift a stay of proceedings in their lawsuit against their insurer, Cooperativa de Seguros Multiples de Puer-to Rico, Inc. Because petitioners have shown no irreparable harm, we dismiss the petition. See Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). Alternatively, the Homeowners petition for a writ of mandamus declaring that the mandatory stay provision of section 627.7074(11), Florida Statutes (2010), is unconstitutional. We deny the alternative petition; the stay provision is sufficiently intertwined with substantive provisions of the statute so that there is no unconstitutional usurpation of the Florida Supreme Court’s rulemaking authority. See art. V, § 2(a), Fla. Const.

Factual Background

After receiving the Homeowners’ sinkhole claim, Cooperativa recommended repair work at an estimated cost of about $60,000. The Homeowners responded with a lawsuit for breach of contract. Coo-perativa invoked the “neutral evaluation” procedures set forth in section 627.7074, which provided, in pertinent part, as follows:

627.7074. Alternative procedure for resolution of disputed sinkhole insurance claims.—
(4) Neutral evaluation is nonbinding, but mandatory if requested by either party. A request for neutral evaluation may be filed with the department [of Financial Services] by the policyholder or the insurer on a form approved by the department.
(5) Neutral evaluation shall be conducted as an informal process in which formal rules of evidence and procedure need not be observed.... All parties shall participate in the evaluation in good faith.
(6) The insurer shall pay the costs associated with the neutral evaluation.
(7) Upon receipt of a request for neutral evaluation, the department shall provide the parties a list of certified neutral evaluators. The parties shall mutually select a neutral evaluator from the list and promptly inform the department. If the parties cannot agree to a neutral evaluator within 10 business days, the department shall appoint a neutral evaluator from the department list.... The neutral evaluation conference shall be held within 45 days after the receipt of the request by the department.
(11) Any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation.
(18) The recommendation of the neutral evaluator is not binding on any party, and the parties retain access to court. The neutral evaluator’s written recommendation is admissible in any subsequent action or proceeding relating to the claim or to the cause of action giving rise to the claim.
(14) If the neutral evaluator first verifies the existence of a sinkhole and, second, recommends the need for and estimates costs of stabilizing the land and any covered structures or buildings and other appropriate remediation or structural repairs, which costs exceed the amount that the insurer has offered to pay the policyholder, the insurer is liable to the policyholder for up to $2,500 in attorney’s fees for the attorney’s participation in the neutral evaluation process ....
(15) If the insurer timely agrees in writing to comply and timely complies with the recommendation of the neutral evaluator, but the policyholder declines to resolve the matter in accordance with the recommendation of the neutral evaluator pursuant to this section:
(b) The insurer is not liable for attorney’s fees under s. 627.428 or other provisions of the insurance code unless the policyholder obtains a judgment that is more favorable than the recommendation of the neutral evaluator.

Section I of the insurance policy’s sinkhole loss coverage endorsement contained comparable language:

(E) Neutral Evaluation
Following receipt by us of a report from a professional engineer or professional geologist on the cause of loss and recommendations for stabilizing the land and building and foundation repairs, or if we deny your claim, either party may file a request with the Florida Department of Financial Services (the Department) for neutral evaluation in accordance with the rules established by the Department. In this event, you and we shall mutually select a neutral evaluator from a list maintained by the Department. If you and we fail to agree to a neutral evaluator -within 10 business days, the Department shall appoint a neutral evaluator. The neutral evaluation conference shall be held within 45 days after receipt of the request by the Department. The recommendation of the neutral evaluator will not be binding on you or us.
We will pay the costs associated with the neutral evaluation.
G. Suit Against Us
No action can be brought against us unless there has been full compliance with all of the terms under Section I of this policy and the action is started within 5 years after the date of loss; except that the time for filing suit is extended for a period of 60 days following the conclusion of the neutral evaluation process or 5 years, whichever is later.

The statute and the policy contemplate no litigation during the neutral evaluation process.

Cooperativa moved to stay the lawsuit pending completion of the neutral evaluation. See § 627.7074(11). The Department provided a list of certified evaluators. See § 627.7074(7). Cooperativa chose five and asked the Homeowners whether they would agree to one of them and agree to a stay. The Homeowners balked. At the hearing on the motion to stay, the Homeowners argued that a stay was inappropriate because neutral evaluation likely would not be completed within forty-five days. See § 627.7074(7). The trial court granted the stay and directed the parties to govern themselves according to section 627.7074. Undeterred, the Homeowners moved for reconsideration, asserting that the mandatory stay provision, section 627.7074(11), was facially unconstitutional as a violation of the separation of powers doctrine— more particularly, an infringement of the Florida Supreme Court’s exclusive rule-making authority. The trial court denied the motion.

Cooperativa asked the Department to select a neutral evaluator because the Homeowners accepted none of Cooperati-va’s five choices. The Department assigned a succession of evaluators. See § 627.7074(7). The Homeowners rejected the first three. Cooperativa rejected the fourth. The Homeowners rejected a fifth. They advised Cooperativa that they would seek further judicial intervention before proceeding with neutral evaluation.

The Homeowners then moved to lift the stay, arguing that because the neutral evaluation did not occur within forty-five days from the Department’s receipt of the request, the statute no longer permitted the stay. The trial court denied the motion. The Homeowners filed the certiorari petition now before us.

Irreparable Harm

As a jurisdictional prerequisite to reviewing the merits of the certiorari petition, we must determine whether the Homeowners have demonstrated irreparable harm. See Jaye, 720 So.2d at 215; Parkway Bank, 658 So.2d at 649; W. Fla. Reg’l Med. Ctr., Inc. v. See, 18 So.3d 676, 682 (Fla. 1st DCA 2009). Absent irreparable harm, we should dismiss the petition. See Jaye, 720 So.2d at 215. The Homeowners argue that by extending the period to complete neutral evaluation, the trial court denied them access to the courts. The argument rings hollow. Primarily, the policy provides for neutral evaluation. Thus, the Homeowners contractually waived immediate access to the courts. See Kaplan v. Kimball Hill Homes Fla., Inc., 915 So.2d 755, 761 (Fla. 2d DCA 2005) (“[T]he rights of access to courts ... may be contractually relinquished, (quoting Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 398 (Fla.2005)).

Moreover, the Homeowners have a pending lawsuit and may continue with it upon completion of the neutral evaluation. See § 627.7074(13) (“The recommendation of the neutral evaluator is not binding on any party, and the parties retain access to court[s].”). At most, the evaluation process delays litigation to promote an alternative method of resolution. Delay or inconvenience is insufficient to invoke cer-tiorari review. Jaye, 720 So.2d at 215 (holding assertions of time, effort, and expense of trying a case twice are not of the nature that demonstrate irreparable harm); DeLoach v. Aird, 989 So.2d 652, 654 (Fla. 2d DCA 2007) (holding time, inconvenience, potential difficulty, and expense insufficient to invoke certiorari jurisdiction) (citing Parkway Bank, 658 So.2d at 650 (holding expense and delay alone insufficient to support issuance of writ of certiorari)); Cuneo v. Conseco Servs., LLC, 899 So.2d 1139, 1140 (Fla. 3d DCA 2005) (holding mere expense and inconvenience does not constitute harm to permit certiorari review, even if the order departs from the essential requirements of law).

Accordingly, we dismiss the petition for writ of certiorari.

Writ of Mandamus

The Homeowners request, alternatively, that we issue a writ of mandamus declaring section 627.7074 unconstitutional for violating the separation of powers doctrine. They argue that the automatic stay provision is a legislatively created procedural rule that is within the exclusive province of the Florida Supreme Court’s rule-making authority. Cooperativa responds that the stay provision is valid because it is intertwined with the substantive provisions of section 627.7074. The Homeowners contend that the neutral evaluation process cannot affect the underlying proceedings because the evaluation is not binding. Its nonbinding nature, however, means only that the parties do not have to accept the recommendation. The statute has other substantive consequences regarding admissibility of the recommendation in subsequent proceedings and liability for attorney’s fees. See § 627.7074(13), (15)(b). We agree that the stay provision is sufficiently intertwined with substantive provisions so that it is not an unconstitutional violation of separation of powers. See Peninsular Props. Braden River, LLC v. City of Bradenton, 965 So.2d 160, 162 (Fla. 2d DCA 2007). The statute reflects a legislative intent to encourage early resolution of a sinkhole claim where the parties disagree on valuation; the automatic stay and the other provisions of the statute combine to facilitate this intent. We deny the petition for writ of mandamus.

Dismissed in part, denied in part.

VILLANTI and MORRIS, JJ., Concur.

      . Even if we had certiorari jurisdiction, we would deny the petition. Although section 627.7074(11) states that the neutral evaluation "shall” be completed within forty-five days of the request, we find no support for the position that the lapse of that period bars any statutory or contractual policy right of Coo-perativa to neutral evaluation. This is particularly true where the record indicates that the Homeowners have obstructed the process. See § 627.7074(5). We also note that section 627.7074 does not impose a waiver or other penalty when a neutral evaluation is not completed within forty-five days. Its proviso that “[njeutral evaluation shall be conducted as an informal process in which formal rules of evidence and procedure need not be observed,” § 627.7074(5), suggests that the legislature intended no sanction for failure to strictly adhere to the time period.