text:
    Melvin LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3230.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm and write to address only one issue. As to the Shelton issue, we affirm based on Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court. State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), review granted, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

AFFIRMED.

SAWAYA, COHEN and JACOBUS, JJ., concur.

      . Shelton v. Sec’y, Dep’t of Corr., 802 F.Supp.2d 1289 (M.D.Fla.2011).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Marc Anthony GRANT, Wilbert L. Blue, Howard S. Cooper, Tracy D. Blackshear, Robert Joseph Monse, Jemadrick Wilson, Otis Leon Jackson, Raquel Moore Carr, Richard Schuler, Antonio Demetric Powell, Jose Anibal Mateo-Cruz, Christian Massanet Dejesus, Andrew Christopher Neely, Brandon L. Cummings, Manouchka Antoine, Appellants. v. STATE of Florida, Appellee.
    Nos. 5D11-3413, 5D11-3414, 5D11-3484, 5D11-3616, 5D11-3676, 5D11-3725, 5D11-3836, 5D11-3847, 5D11-3866, 5D11-3873, 5D11-4078, 5D11-4313, 5D11-4316, 5D11-4317, 5D11-4447, 5D11-4448.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

GRIFFIN and SAWAYA, JJ„ and MONACO, D.A., Senior Judge, concur.


text:
    Travis THORN, Walter Rogers, Carey McDonald, Anthony Courson, Nya Wilson, Leisa Dipenta, Malcolm Dankins, Daniel Anderson, Appellants. v. STATE of Florida, Appellee.
    Nos. 5D11-3842, 5D11-3908, 5D11-4240, 5D11-4241, 5D11-4242, 5D11-4243, 5D11-4244, 5D11-4245.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

ORFINGER, C.J., LAWSON and JACOBUS, JJ., concur.


text:
    Lucien Luarchari HARRIS, Levar Kwame Bridges, Richard Scott Head, Corey V. Glenn, Juan Carlos Velazquez, Appellants. v. STATE of Florida, Appellee.
    Nos. 5D11-3874, 5D11-3878, 5D11-3882, 5D11-4055, 5D11-4437.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

TORPY, EVANDER and JACOBUS, JJ., concur.


text:
    Margie Ywanett LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4232.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.
    James S. Purdy, Public Defender and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

ORFINGER, C.J., LAWSON and JACOBUS, JJ., concur.


text:
    Eric NEWSOM, Petitioner, v. STATE OF FLORIDA, Respondent.
    No. 5D12-1936.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.
    Eric Newsom, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the motion to correct sentence in case no. 1986-CF-007920-A, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

GRANT PETITION.

GRIFFIN, TORPY, JACOBUS, JJ., concur.


author: BLACK, Judge.

text:
    John D. ALESSIO, as Personal Representative of the ESTATE OF Paola GARZA, Deceased, Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, as successor to First Commercial Insurance Company, also known as First Commercial Transportation & Property Insurance Company, Appellee.
    No. 2D11-2949.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.

      Susan W. Fox of Fox & Loquasto, P.A., Orlando; and Leonard M. Succar of Brent L. Probinsky, P.A., Sarasota, for Appellant.
    Kristen A. Tajak and Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for Appellee.
   BLACK, Judge.

John D. Alessio, as Personal Representative of the Estate of Paola Garza, appeals the entry of final summary judgment rendered in favor of the Florida Insurance Guaranty Association (FIGA). FIGA assumed the handling of the Estate’s claim from insolvent insurance carrier, First Commercial Insurance Company (FCIC), which had reached a settlement with the Estate. Because we find that the Estate’s claim both arose out of the insurance policy and was within the coverage and limits of the policy, we reverse and remand for entry of judgment in favor of the Estate.

I. FACTUAL BACKGROUND

On December 26, 2008, while leaving Miami International Airport with her parents, six-year-old Paola Garza was struck and killed by a “Super Yellow Cab” operated by Y.O.C.A. Radio Communications (Y.O.C.A.). Paola Garza’s parents, Francisco and Grizelda Garza, retained an attorney who requested, pursuant to section 627.4137, Florida Statutes (2008), disclosure of the policy limits of any insurance coverage applicable to the taxicab’s owner and driver from Y.O.C.A. In response to this request, the Garzas were advised that coverage was provided by FCIC, also known as First Commercial Transportation & Property Insurance Company. Correspondence and discussions between the carrier and the Garzas’ attorney revealed the liability limits to be $125,000 per person and $250,000 per occurrence.

FCIC readily offered to pay $125,000, representing the per person policy limit of the insured, payable to the Estate of Paola Garza. However, the Garzas rejected this offer, insisting on the additional $125,000 under the per occurrence limit to resolve the separate causes of action for their own personal injuries. Ultimately, First Commercial Insurance Group (FCIG), the parent corporation of FCIC, accepted the Garzas’ $250,000 settlement offer. In doing so, FCIG expressed some reservations about the merits of the parents’ individual claims but stated that it wished “to avoid exposing our insured to any future litigation on this point and since you have indicated in your letter that you would accept the full $250,000 aggregate limit, we are hereby enclosing two checks; the first for $125,000 payable to the Estate of Paola Garza and a second check for $125,000 payable to the Garzas individually.” The acceptance letter enclosed the two checks, dated March 19, 2009, as well as separate release forms to be signed and notarized by the Garzas, individually, and the Estate.

By letter dated March 30, 2009, the Garzas accepted the checks as the policy limits on behalf of themselves and the Estate. The Garzas also advised FCIG that the individual releases would be executed and returned as soon as possible, that the Estate was in the process of being opened, and that once it was open, the personal representative would execute the release required of the Estate. On June 4, 2009, the Garzas delivered their executed releases to FCIC and notified FCIC that they were opening the Estate. The Garzas’ attorney continued to hold the $125,000 check, payable to the Estate of Paola Garza.

In July of 2009, the Florida Department of Financial Services initiated insolvency proceedings with regard to FCIC, requiring that FIGA administer FCIC’s covered claims. In the fall of 2009, the Estate of Paola Garza was finally opened. However, by that time the settlement draft payable to the Estate was stale. Counsel for the Estate requested that the draft be reissued, but FIGA refused, asserting that the $125,000 the Garzas were paid was all that they were entitled to receive.

As a result of FIGA’s refusal to reissue the second settlement check, the Estate filed the subject lawsuit, alleging breach of the settlement agreement. FIGA filed a motion to dismiss, contending that it did not breach any legal duty to the Estate because the complaint admitted that FCIC had paid $125,000 to Paola Garza’s parents, which FIGA contended was the limit of FCIC’s policy for claims.

In response, the Estate contended that the facts showed that FCIC, FIGA’s predecessor, entered into a settlement agreement with the Estate by which it agreed to pay the Estate $125,000, the per person limit of the insured’s policy, issued a check in this amount, which was not cashed before FCIC became insolvent, and that FIGA now refused to honor or reissue the check. Thus, the Estate argued that the per person limit of Paola Garza’s bodily injuries had not been tendered nor had the per occurrence limit been exhausted.

On January 3, 2011, the magistrate who heard FIGA’s motion to dismiss issued a recommended order denying the motion. The magistrate’s findings included the following:

Even given the fact that $125,000 was previously tendered to the Garzas it does not defeat the pleading of the present cause of action for the very simple reason that neither FCIC nor FIGA has paid the Estate of Paola Garza for the damages sustained. As alleged by the plaintiff the payment to the Garzas was for their separate injuries; the check issued to the Estate of Paola Garza, while tendered, has never been cashed because of the delays in setting up the Estate in order to execute the release required by the settlement agreement. Accordingly, plaintiffs allegation that FIGA now refuses to reissue the cheek in accordance with the settlement agreement sufficiently states a cause of action for breach of the settlement agreement.

FIGA did not file exceptions to the magistrate’s order and the circuit court entered an order adopting the magistrate’s recommended order. Thereafter, the Estate filed a motion for summary judgment and supporting affidavit, asserting that there was no genuine issue of material fact and that judgment should be entered in favor of the Estate as a matter of law as a result of FIGA’s breach. In response, FIGA filed a countermotion for summary judgment with no supporting affidavits. FIGA contended that the undisputed facts entitled it to summary judgment because plaintiffs were paid all that they were entitled to receive under the policy since the Garzas had only derivative claims for emotional distress. The circuit court denied the Estate’s motion and granted FIGA’s motion.

II. DISCUSSION

FIGA’s contention below was that because there was no record evidence of an impact between the taxicab and the Garzas, and because there was no evidence presented of a physical manifestation of their emotional trauma, the Garzas had only derivative claims which were compensated by the $125,000 paid under the per person portion of the policy. See Zell v. Meek, 665 So.2d 1048, 1054 (Fla.1995). However, it is undisputed that FCIC entered into a valid settlement agreement whereby FCIC agreed to pay the Estate $125,000 and to pay the Garzas an additional $125,000 for their individual claims. That is, in order to shield its insured from future litigation, FCIC paid the Garzas’ individual claims without requiring proof of physical injury. By the time FIGA took over, the agreement had been finalized, the individual claims had been paid, and the Garzas had already executed releases and returned them to the insurer. The Estate’s claim, despite being settled, had not been paid.

Thus, the question before this court is whether FIGA is bound by the settlement agreement entered into by its predecessor, FCIC. We have previously rejected the notion “ ‘that FIGA simply steps into the shoes of the insolvent insurer and is obligated to the same extent as that insurer would be.’ ” Fla. Ins. Guar. Ass’n v. Petty, 44 So.3d 1191, 1194 (Fla. 2d DCA 2010) (quoting Fla. Ins. Guar. Ass’n v. All the Way until Bill Vernay, Inc., 864 So.2d 1126, 1129 (Fla. 2d DCA 2003)). However, under the plain language of section 631.54(3), Florida Statutes (2008), a claim is a “covered claim” if it arises out of the insurance policy and “is within the coverage, and not in excess of’ the policy limits. See also Petty, 44 So.3d at 1194. In this case, the Estate’s claim meets these criteria. The arguably questionable payment of the Garzas’ individual claims does not serve to defeat or offset the legitimate claim of the Estate that remains unpaid.

Thus, FIGA’s contention that the Garzas had only derivative claims is irrelevant. In its eagerness to resolve all claims relating to this tragedy for the total payment of $250,000, FCIC was apparently willing to tender payment to the Garzas and forego additional discovery because of its desire to quickly procure global releases on behalf of its insured, a strategy that certainly appears reasonable under the circumstances.

III. CONCLUSION

Based on the foregoing, we vacate the final judgment entered in favor of FIGA and remand this case for entry of final summary judgment in favor of the Estate.

CASANUEVA and MORRIS, JJ., Concur.

      . We refer to the Garzas' claims as "questionable” because apparently no record evidence was developed that would support a claim under Zell.


author: ALTENBERND, Judge.

text:
    Yusef FURQAN, Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-3405.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.

      Frank D.L. Winstead of Winstead Law Offices, Land O’Lakes, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

Yusef Furqan petitions this court for a writ of certiorari concerning an order entered in June 2011, which continued his involuntary commitment to the Department of Children and Family Services (DCF). We deny his petition. The circuit court did not depart from the essential requirements of the law in failing to address whether a conditional release order was appropriate under the circumstances of this case. Furthermore, it correctly decided that it did not have the authority to direct the DCF to place Mr. Furqan in any particular facility. See Dep’t of Children & Families v. Harter, 861 So.2d 1274, 1275 (Fla. 5th DCA 2003).

In 2008, the State charged Mr. Furqan with criminal offenses in Pinellas County. The State and Mr. Furqan stipulated to an adjudication of not guilty by reason of insanity. He was committed to the DCF for inpatient treatment with continuing jurisdiction by the circuit court in Pinellas County. See Fla. R.Crim. P. 3.217(b). Sections 916.15-.17, Florida Statutes (2008), provide the statutory law governing such continuing jurisdiction.

In an earlier certiorari proceeding, this court ordered the circuit court to make explicit findings to justify Mr. Furqaris continued commitment. See Furqan v. State, 56 So.3d 96 (Fla. 2d DCA 2011). The circuit court cured that deficiency. In the order challenged in this proceeding, the circuit court found that Mr. Furqan continues to meet the criteria for involuntary commitment and ordered that he remain in the DCF’s custody for a period not to exceed one year. Furqan does not challenge the circuit court’s finding that he continues to meet the criteria for involuntary commitment.

The proceedings leading to the entry of the June 2011 order at issue in this appeal appear to have been prompted by a letter from the administrator of Treasure Coast Forensic Treatment Center recommending that Mr. Furqan be discharged from the facility and returned to criminal probationary supervision for an offense or offenses arising out of Seminole County. This recommendation included a suggestion that he reside at Christopher’s House, which Treasure Coast identified as a “sober house” and the circuit court identified as a “residential treatment facility.” The circuit court in Pinellas County determined that it did not have jurisdiction to order placement in a particular facility but that it did have jurisdiction to determine whether Mr. Furqan should continue to be involuntarily committed.

Mr. Furqan argues that the court departed from the essential requirements of the law “when it entered an order that was tantamount to finding that it lacked jurisdiction to order that Furqan be placed on conditional release.” We conclude that the order simply does not contain such a ruling. The letter from Treasure Coast, which was the catalyst for the underlying proceeding, does not expressly mention conditional release and it does not contain a fully-formed release plan as that plan is described in Florida Rule of Criminal Procedure 3.219 and section 916.17(1), Florida Statutes (2010). This omission appears to have been purposeful.

At a hearing on this matter, a witness from Treasure Coast made it clear that Treasure Coast rejected conditional release as an option. The proposed placement at Christopher’s House was recommended by Treasure Coast under a “plan” to be monitored by the Seminole County Circuit Court via a criminal probation order as opposed to a “plan” to be monitored by the Pinellas County Circuit Court via a conditional release order. The testimony and discourse with the judge at this hearing made it clear that without some additional supervisory constraint, Mr. Furqan would be free to leave Christopher’s House. But the probationary component of the proposed “plan,” which was critical to ensuring that he would be adequately supervised, had not been arranged and it was theoretical at best. Mr. Furqan’s attorney suggested that the circuit court conditionally release him, modifying Treasure Coast’s proposed “plan” in some un-described manner that would make the court more comfortable. The circuit court continued the hearing to afford Mr. Furqan’s attorney an opportunity to further pursue this suggestion.

When the hearing resumed, Furqan’s attorney acknowledged that no hearings had been conducted by the sentencing judge in the Seminole County proceeding to make a determination about the appropriateness of placing Mr. Furqan at Christopher’s House and whether that court would agree to such a placement as part of his probation. Neither Mr. Furqan nor Treasure Coast proposed a viable, fully-formed alternative option that adequately addressed the additional supervisory component of a conditional release plan.

Petition for writ of certiorari denied.

WHATLEY and KELLY, JJ„ Concur.

      . We recognize that some cases similar to the present case have been reviewed as a direct appeal while others have been reviewed by certiorari. Compare Furqan v. State, 56 So.3d 96 (Fla. 2d DCA 2011) (reviewing as petition for writ of certiorari prior proceeding in case number 2D 10-5180 and granting petition based on facial insufficiency of the order continuing involuntary commitment) (Fla. 2d DCA 2011), Woods v. State, 969 So.2d 408 (Fla. 1st DCA 2007) (converting appeal to a petition for writ of certiorari for review of an order continuing involuntary commitment of a defendant adjudicated not guilty by reason of insanity and granting petition based on facial insufficiency of the order), and Thomas v. State, 443 So.2d 406 (Fla. 4th DCA 1984) (converting appeal to certiorari proceeding for review of an order denying a motion for conditional release of a defendant involuntarily committed after being adjudicated not guilty by reason of insanity and denying cer-tiorari relief), with Wisniewski v. State, 805 So.2d 901 (Fla. 2d DCA 2001) (reviewing as direct appeal an order continuing involuntary commitment of a defendant adjudicated not guilty by reason of insanity), Boclair v. State, 524 So.2d 467, 468-69 (Fla. 1st DCA 1988) (reviewing as direct appeal an order continuing involuntary commitment and reversing and remanding for further proceedings on the practicability of conditional release where insanity acquittee no longer met the criteria for involuntary hospitalization), and Husk v. State, 438 So.2d 989 (Fla. 1st DCA 1983) (reviewing as direct appeal and affirming an order finding that insanity acquittee needed further involuntary hospitalization despite Department of Health and Rehabilitative Services’ report that acquittee no longer met the criteria for involuntary hospitalization).
      In this case, we conclude that the outcome would be the, same whether it was treated as an appeal or a certiorari proceeding. The liberty interest involved in this type of proceeding may warrant a standard of review less deferential than “departure from the essential requirements of the law.” In theory, a certiorari proceeding can be processed more rapidly than an appeal, although that has not been true in this case. We would suggest that the appellate rules committee examine whether a special procedure would be appropriate for this type of commitment proceeding.


author: VILLANTI, Judge.

text:
    Regina Amos TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4301.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.
    Regina Amos Turner, pro se.
   VILLANTI, Judge.

Regina Amos Turner appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which raised two claims of ineffective assistance of counsel. We affirm in part, reverse in part, and remand for further proceedings.

From what can be gleaned from the very limited record before this court, Turner was involved in a fatal auto accident on August 12, 2006, at 11:30 p.m. in Polk County. Apparently she caused an accident involving at least one other vehicle, and an occupant of the other vehicle was killed. Turner was charged with and convicted after a jury trial of one count of second-degree murder. She was subsequently sentenced to thirty years in prison. This court affirmed her direct appeal without opinion. See Turner v. State, 19 So.3d 992 (Fla. 2d DCA 2009) (table decision). Mandate issued on November 3, 2009.

On September 24, 2010, Turner filed a timely motion for postconviction relief pursuant to rule 3.850. After a series of responses by the State and orders from the postconviction court, Turner filed a timely second amended motion for post-conviction relief on May 18, 2011. In that motion, Turner alleged that her trial counsel was ineffective for abandoning the defense of insanity after failing to investigate her mental health history. Turner alleged that trial counsel surprised her on the morning of trial by changing from a defense that the accident was a product of her insanity to a defense that the accident was a “freak accident.” Turner alleged that “[e]ounsel failed to exercise reasonable professional judgment with regard to the investigation and presentation of mitigating mental instability evidence, and failed to discuss this change in defense, which severely prejudiced defendant.” Turner also alleged that she had informed trial counsel that she had previously been involuntarily committed and that she provided the names of her doctors and the location of her treatment to counsel so that counsel could obtain records and information. Nevertheless, counsel did not do so. Turner alleged that she did not agree with this change in defense strategy, stating:

Counsel was deficient in failing to pursue the original defense of insanity, and to have defendant evaluated by mental health specialists. Had counsel investigated and explained the change in defense to the defendant, she would have insisted that the defense of insanity been [sic] pursued. Had counsel had the defendant evaluated, it would have been determined that defendant was legally insane at the time that the crime was committed, and counsel would have been able to invoke the Mc’Naghten [sic] rule. Defendant was denied effective assistance of counsel. Counsel failed to exercise reasonable professional judgment with regard to the investigation and presentation of mitigating mental instability evidence, which severely prejudiced defendant. Counsel’s ineffectiveness was so egregious that counsel was, in effect, not acting as counsel; thereby, depriving the defendant of her right to effective representation, due process, and a fair trial. If not for trial counsel’s deficiencies, the outcome of the trial would have been substantially different.

To the motion, Turner attached the deposition transcript of Richard Thornton, in which he testified that Turner had called him the morning before the accident distraught and saying that she wanted to kill herself. She asked his advice on how many of a certain kind of pill she could take to ensure that she died rather than ending up “a vegetable.” She did not mention any other means of killing herself. When the call ended, Thornton called 9-1-1 to report Turner’s mental state and location.

Turner also attached the deposition transcript of Ronald Amos, her brother. He testified concerning Turner’s depression and ongoing mental health problems. He also testified that Turner had left him a message before the accident saying that she was going to go kill herself in her car, but he did not get the message until after the accident had occurred. He testified that Turner had threatened to kill herself quite often and that she had actually tried to do so three times.

On May 25, 2011, the postconviction court entered an order specifically finding that both of Turner’s claims were facially sufficient and ordering the State to respond. In the State’s response, it argued that Turner’s claim that counsel was ineffective for failing to present an insanity defense was not facially sufficient because it did not include the name of any expert who had ever diagnosed Turner as being insane, what any expert would have testified to, or that any expert had ever diagnosed her as being “insane.” The State alleged that these deficiencies rendered Turner’s claim speculative and conclusory. The State also alleged that Turner’s claim that defense counsel had failed to have her evaluated was conclusively refuted by the record, and it attached portions of the record showing that defense counsel had had Turner evaluated by a psychiatrist after the accident and before trial. The State argued that since the postconviction court had already allowed Turner to amend her motion twice, it should now simply deny both claims. On August 2, 2011, the postconviction court entered an order denying Turner’s claims and adopting and incorporating the State’s response. Turner now seeks review of that order.

We conclude that the postconviction court properly denied Turner’s motion to the extent that it claimed that her counsel was ineffective for failing to investigate her mental health because the attachments to the State’s response show that counsel did, in fact, have Turner evaluated by a mental health professional. Counsel cannot be ineffective for failing to do something that counsel actually did. Cf. Griffin v. State, 866 So.2d 1, 16 (Fla.2003) (noting that trial counsel’s performance cannot be deemed deficient for failing to raise an issue when the exact issue was actually raised at trial).

However, as to Turner’s claim that counsel was ineffective by abandoning the agreed-upon insanity defense in favor of a “freak accident” defense on the morning of trial without discussing the matter with Turner, we must reverse. Generally, when a postconviction defendant alleges that trial counsel conceded at trial that the defendant committed the acts charged and failed to present evidence to support a defense in avoidance despite trial counsel having information that might support that defense, the postconviction court should hold an evidentiary hearing to determine whether counsel was ineffective for failing to present that defense. Patton v. State, 784 So.2d 380, 387 (Fla.2000).

For example, in Patton, the defendant alleged in his motion for postconviction relief that his counsel was ineffective for failing to pursue an intoxication defense or a insanity defense. Id. at 387. The post-conviction court summarily denied this claim, but the supreme court reversed, stating that “it was necessary for the court to conduct an evidentiary hearing to determine whether counsel was acting competently when she chose not to present an intoxication or insanity defense to a charge of first-degree premeditated murder, where she had conceded that the defendant shot the victim.” Id.

The court went on to note that defense counsel had information that might have supported both defenses. As to the intoxication defense, counsel had information that the defendant had been a heavy drag user and had a substantial history of drag and alcohol abuse. Id. Counsel also had information that the defendant had been doing “speedballs” seven hours before the shooting. Id. As to the insanity defense, counsel had information that the defendant had a long history of mental illness and had previously been adjudicated insane. Id. The court noted that a proven claim of either intoxication or insanity would have negated the specific intent necessary for a conviction, and therefore “[a]t the very least this claim [that counsel was ineffective for failing to present either defense] should be tested at an evidentiary hearing.” Id. Cf. Gutierrez v. State, 860 So.2d 1043 (Fla. 5th DCA 2003) (finding that no evidentiary hearing was needed on Gutierrez’s claim that counsel failed to investigate an insanity defense when Gutierrez never claimed that he was insane at the time of the offenses).

Here, according to the allegations in Turner’s motion—which must be accepted as true at this juncture, see Griffin, 866 So.2d at 9; see also Floyd v. State, 808 So.2d 175, 182 (Fla.2002)—defense counsel conceded at trial that Turner caused the auto accident that killed the victim. Counsel’s sole defense was that this was a “freak accident” rather than murder. However, counsel had information that Turner had a long history of mental illness, including at least three suicide attempts and at least one involuntary commitment under the Baker Act. Counsel also had deposition testimony from witnesses that Turner was “not in her right mind” in the hours before the accident. Thus, there was at least some information available to counsel to support an insanity defense. Further, such a defense could have negated the mental state necessary to support the conviction for second-degree murder. Because this evidence was available but not presented to the jury, Turner was entitled to have her claim of ineffective assistance of counsel tested at an evi-dentiary hearing. Thus, the postconviction court erred by summarily denying this claim.

In response to Turner’s motion, the State argued that Turner’s claim was facially insufficient because she did not identify the witnesses who could have testified to her insanity. But Turner is not claiming that counsel was ineffective for failing to call specific witnesses; she is claiming that counsel was ineffective for failing to pursue a specific defense in avoidance of the charge after admitting that Turner committed the acts with which she was charged. Because this involved a strategic decision on which Turner was entitled to be consulted, she was not required to identify specific witnesses to render such a claim facially sufficient. See Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (noting that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct”).

Accordingly, we affirm the summary denial of Turner’s claim that counsel was ineffective for failing to have her evaluated by a mental health professional because that claim is conclusively refuted by the record. However, we reverse the summary denial of Turner’s claim that counsel was ineffective for failing to pursue an insanity defense and remand for an eviden-tiary hearing on that single claim.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and CRENSHAW, JJ„ Concur.


author: MORRIS, Judge.

text:
    Nelson SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5415.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.

      Nelson Santiago, pro se.
   MORRIS, Judge.

Nelson Santiago appeals the summary denial of his motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for the postconviction court to reconsider his claim.

On September 12, 2005, Santiago was sentenced to concurrent terms of 364 days in the county jail followed by two years’ probation on one count of burglary of a conveyance and one count of grand theft. Santiago actually served an unspecified number of days in jail. Sometime after his release, he pleaded guilty to violating his probation. As a result, the court sentenced Santiago to consecutive five-year prison sentences on September 1, 2006.

Santiago contends that he is entitled to credit for the time he spent incarcerated prior to release on probation on each of his now consecutive sentences. Santiago appropriately relies upon State v. Rabedeau, 2 So.3d 191, 193 (Fla.2009), which holds that “if multiple convictions result in concurrent sentences, credit must be awarded for time served on each sentence in any resentencing for the multiple convictions.” The written sentence does not clearly reflect how the circuit court calculated Santiago’s jail credit. Although the court checked a provision awarding Santiago 414 days of jail credit, it is unclear whether the court intended to award credit on each of the consecutive sentences and, if so, how much credit was to be applied to each sentence. Under Rabedeau, Santiago is entitled to credit for time originally served in the county jail for each offense upon resentencing. Id.

Furthermore, the sentencing documents do not clearly indicate how many of the 414 days were credited for time Santiago spent in jail after his arrest on the violation of probation (VOP). We can only speculate that some portion of the 414 days awarded to Santiago must have been days served in the county jail after he was arrested for the VOP, as his original sentence was limited to concurrent terms of 364 days in jail. As to that post-VOP jail time, however, Santiago is entitled to credit only on the first of his current consecutive sentences. See Steadman v. State, 23 So.3d 811, 813 (Fla. 2d DCA 2009).

Because the record is not clear as to what portion of the 414 days of jail credit was awarded for time served on the original sentence — which must be applied to each consecutive sentence — we reverse and remand for the postconviction court to reconsider Santiago’s motion in light of Rabedeau.

Reversed and remanded.

VILLANTI and LaROSE, JJ., Concur.


author: WHATLEY, Judge.

text:
    Joseph FERREI, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D12-79.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.

      Eilam Isaak, Tampa, for Petitioner.
    Stephen D. Hurm, General Counsel, and Richard M. Coin, Assistant General Counsel, Orlando, for Respondent.
   WHATLEY, Judge.

Joseph Ferrei petitions this court for a writ of certiorari to review an order of the circuit court which denied his petition for writ of certiorari. Mr. Ferrei had sought certiorari review in the circuit court of an administrative order sustaining the suspension of his driving privileges. Mr. Fer-rei contends that the circuit court departed from the essential requirements of law in ruling that the hearing officer was not required to consider the legality of the stop and arrest in reviewing the license suspension.

In Florida Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070, 1073 (Fla.2011), the Florida Supreme Court held that an individual’s driver’s license may be suspended due to his or her refusal to submit to a breath test, but only if the refusal to submit to the test is incident to a lawful arrest. The supreme court further held that in a hearing conducted by the Florida Department of Highway Safety and Motor Vehicles, a driver may challenge whether his or her refusal to take the breath test was incident to a lawful arrest. Id. The court directed that the hearing officer is required to “make the determination of whether the test was administered incident to a lawful arrest, as required by section 316.1932, Florida Statutes.” Id. at 1079.

Following Hernandez, this court has issued four opinions pertaining to a driver’s right to challenge the lawfulness of the arrest and each case involved a slightly different factual scenario. Roark v. Dep’t of Highway Safety & Motor Vehicles, — So.3d -, 2012 WL 1870863 (Fla. 2d DCA 2012) (petitioner submitted to breath test and results indicated blood alcohol level between .129 and .136, and petitioner pleaded guilty to reckless driving and may have had opportunity to challenge legality of stop in criminal proceeding); Lawrence v. Dep’t of Highway Safety & Motor Vehicles, 93 So.3d 350, 2012 WL 1870868 (Fla. 2d DCA 2012) (petitioner refused to submit to breath test, and petitioner pleaded guilty to reckless driving and may have had opportunity to challenge legality of stop in criminal proceeding); Rudolph v. Dep’t of Highway Safety & Motor Vehicles, — So.3d -, 2012 WL 1869927 (Fla. 2d DCA 2012) (petitioner submitted to breath test and results indicated blood alcohol level between .129 and .137, and criminal charges were dropped by State before she had the opportunity to challenge legality of stop); Arenas v. Dep’t of Highway Safety & Motor Vehicles, 90 So.3d 828 (Fla. 2d DCA 2012) (petitioner refused to submit to breath test and criminal charges were dropped by State before he had the opportunity to challenge legality of stop). In the present case, Mr. Fer-rei submitted to a breath test and the results indicated a blood alcohol level between .146 and .147. Unlike the previous four cases, the record in the present case does not reflect whether Mr. Ferrei was charged with the criminal offense of driving under the influence. See § 316.193, Fla. Stat. (2010).

Although Mr. Ferrei has never had an opportunity to challenge the lawfulness of his stop in this civil administrative proceeding, he may have had such an opportunity in a criminal proceeding. Thus, in addition to the mechanisms suggested in Arenas, the circuit court is permitted to consider whether a criminal proceeding provided an adequate mechanism to challenge the lawfulness of the stop. If a lower tribunal determines that the stop was unlawful, it is still permitted to decide whether the breath test evidence is admissible. We express no opinion on these issues.

Petition for writ of certiorari to the circuit court granted for proceedings consistent with this opinion.

DAVIS and MORRIS, JJ., Concur.


text:
    In the Interest of D.W., a child. R.W., Appellant, v. Department of Children and Family Services and Guardian ad Litem Program, Appellees.
    No. 2D12-759.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.
    Radha Rothrock of Rothrock Law Firm PL, Bonita Springs, for Appellant.
    Jeffrey Dana Gillen, West Palm Beach, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Tavares, for Appel-lee Guardian ad Litem Program.
   ALTENBERND, Judge.

The father, R.W., appeals an order of dependency as to his minor child, D.W. The Department of Children and Family Services concedes error. Accordingly, we reverse and remand for further proceedings.

The Department sheltered D.W. in September 2011, when the child was approximately eight years old. The child’s mother was incarcerated at the time, and the Department maintained that R.W. had failed to protect the child from the mother’s known substance abuse problems. The Department initiated a dependency proceeding as to both parents. The mother did not contest the proceeding. R.W., however, contested the proceeding and received an adjudicatory hearing.

R.W. testified that he had not lived with the mother for at least two years but that he had recently gone to Colorado with the mother to look for a job while the child stayed with the paternal grandmother. The Department concedes that the record does not contain competent, substantial evidence to support the allegations against R.W. in the petition for dependency. The Department notes that the case is similar to our recent decision in S.T. v. Department of Children and Family Services, 87 So.3d 827 (Fla. 2d DCA 2012).

Unlike the facts in S.T., the child is not in the custody of a parent but is currently in an approved placement with a paternal aunt. While conceding error in this appeal, the Department has explained that it intends to file a new petition based on new events that it believes will support an adjudication of dependency as to the father. Accordingly, this opinion does not mandate that the trial court give immediate custody of the child to R.W.

Reversed and remanded.

WHATLEY and WALLACE, JJ., Concur.


text:
    Emmy PANKAU, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D12-945.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.
    Eilam Isaak, Tampa, for Petitioner.
    Stephen D. Hurm, General Counsel, and Kimberly A. Gibbs, Assistant General Counsel, Orlando, for Respondent.
   WHATLEY, Judge.

Emmy Pankau petitions this court for a writ of certiorari to review an order of the circuit court which denied her petition for writ of certiorari. Ms. Pankau had sought certiorari review in the circuit court of an administrative order sustaining the suspension of her driving privileges. Ms. Pankau contends that the circuit court departed from the essential requirements of law in ruling that the hearing officer was not required to consider the legality of the stop and arrest in reviewing the license suspension.

In Florida Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070, 1073 (Fla.2011), the Florida Supreme Court held that an individual’s driver’s license may be suspended due to his or her refusal to submit to a breath test, but only if the refusal to submit to the test is incident to a lawful arrest. The supreme court further held that in a hearing conducted by the Florida Department of Highway Safety and Motor Vehicles, a driver may challenge whether his or her refusal to take the breath test was incident to a lawful arrest. Id. The court directed that the hearing officer is required to “make the determination of whether the test was administered incident to a lawful arrest, as required by section 316.1932, Florida Statutes.” Id. at 1079.

Following Hernandez, this court has issued four opinions pertaining to a driver’s right to challenge the lawfulness of the arrest and each case involved a slightly different factual scenario. Roark v. Dep’t of Highway Safety & Motor Vehicles, — So.3d -, 2012 WL 1870863 (Fla. 2d DCA 2012) (petitioner submitted to breath test and results indicated blood alcohol level between .129 and .136, and petitioner pleaded guilty to reckless driving and may have had opportunity to challenge legality of stop in criminal proceeding); Lawrence v. Dep’t of Highway Safety & Motor Vehicles, 93 So.3d 350, 2012 WL 1870868 (Fla. 2d DCA 2012) (petitioner refused to submit to breath test, and petitioner pleaded guilty to reckless driving and may have had opportunity to challenge legality of stop in criminal proceeding); Rudolph v. Dep’t of Highway Safety & Motor Vehicles, — So.3d -, 2012 WL 1869927 (Fla. 2d DCA 2012) (petitioner submitted to breath test and results indicated blood alcohol level between .129 and .137, and criminal charges were dropped by State before she had the opportunity to challenge legality of stop); Arenas v. Dep’t of Highway Safety & Motor Vehicles, 90 So.3d 828 (Fla. 2d DCA 2012) (petitioner refused to submit to breath test and criminal charges were dropped by State before he had the opportunity to challenge legality of stop). In the present case, Ms. Pan-kau submitted to a breath test and the results indicated a blood alcohol level between .163 and .174. Unlike the previous four cases, the record in the present case does not reflect whether Ms. Pankau was charged with the criminal offense of driving under the influence. See § 316.193, Fla. Stat. (2010).

Although Ms. Pankau has never had an opportunity to challenge the lawfulness of her stop in this civil administrative proceeding, she may have had such an opportunity in a criminal proceeding. Thus, in addition to the mechanisms suggested in Arenas, the circuit court is permitted to consider whether a criminal proceeding provided an adequate mechanism to challenge the lawfulness of the stop. If a lower tribunal determines that the stop was unlawful, it is still permitted to decide whether the breath test evidence is admissible. We express no opinion on these issues.

Petition for writ of certiorari to the circuit court granted for proceedings consistent with this opinion.

DAVIS and MORRIS, JJ., Concur.


text:
    Francisco GONZALEZ, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D12-976.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.
    Eilam Isaak, Tampa, for Petitioner.
    Stephen D. Hurm, General Counsel, and Kimberly A. Gibbs, Assistant General Counsel, Orlando, for Respondent.
   WHATLEY, Judge.

Francisco Gonzalez petitions this court for a writ of certiorari to review an order of the circuit court which denied his petition for writ of certiorari. Mr. Gonzalez had sought certiorari review in the circuit court of an administrative order sustaining the suspension of his driving privileges. Mr. Gonzalez contends that the circuit court departed from the essential requirements of law in ruling that the hearing officer was not required to consider the legality of the stop and arrest in reviewing the license suspension.

In Florida Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070, 1073 (Fla.2011), the Florida Supreme Court held that an individual’s driver’s license may be suspended due to his or her refusal to submit to a breath test, but only if the refusal to submit to the test is incident to a lawful arrest. The supreme court further held that in a hearing conducted by the Florida Department of Highway Safety and Motor Vehicles, a driver may challenge whether his or her refusal to take the breath test was incident to a lawful arrest. Id. The court directed that the hearing officer is required to “make the determination of whether the test was administered incident to a lawful arrest, as required by section 316.1932, Florida Statutes.” Id. at 1079.

Following Hernandez, this court has issued four opinions pertaining to a driver’s right to challenge the lawfulness of the arrest and each case involved a slightly different factual scenario. Roark v. Dep’t of Highway Safety & Motor Vehicles, So.3d -, 2012 WL 1870863 (Fla. 2d DCA 2012) (petitioner submitted to breath test and results indicated blood alcohol level between .129 and .136, and petitioner pleaded guilty to reckless driving and may have had opportunity to challenge legality of stop in criminal proceeding); Lawrence v. Dep’t of Highway Safety & Motor Vehicles, 93 So.3d 350, 2012 WL 1870868 (Fla. 2d DCA 2012) (petitioner refused to submit to breath test, and petitioner pleaded guilty to reckless driving and may have had opportunity to challenge legality of stop in criminal proceeding); Rudolph v. Dep’t of Highway Safety & Motor Vehicles, — So.3d -, 2012 WL 1869927 (Fla. 2d DCA 2012) (petitioner submitted to breath test and results indicated blood alcohol level between .129 and .137, and criminal charges were dropped by State before she had the opportunity to challenge legality of stop); Arenas v. Dep’t of Highway Safety & Motor Vehicles, 90 So.3d 828 (Fla. 2d DCA 2012) (petitioner refused to submit to breath test and criminal charges were dropped by State before he had the opportunity to challenge legality of stop). In the present case, Mr. Gonzalez submitted to a breath test and the results indicated a blood alcohol level between .190 and .193. Unlike the previous four cases, the record in the present case does not reflect whether Mr. Gonzalez was charged with the criminal offense of driving under the influence. See § 316.193, Fla. Stat. (2010).

Although Mr. Gonzalez has never had an opportunity to challenge the lawfulness of his stop in this civil administrative proceeding, he may have had such an opportunity in a criminal proceeding. Thus, in addition to the mechanisms suggested in Arenas, the circuit court is permitted to consider whether a criminal proceeding provided an adequate mechanism to challenge the lawfulness of the stop. If a lower tribunal determines that the stop was unlawful, it is still permitted to decide whether the breath test evidence is admissible. We express no opinion on these issues.

Petition for writ of certiorari to the circuit court granted for proceedings consistent with this opinion.

DAVIS and MORRIS, JJ„ Concur.


text:
    Rey PUPO, Appellant, v. CITY OF HIALEAH and Sedgwick CMS, Appellees.
    No. 1D11-6440.
    District Court of Appeal of Florida, First District.
    July 9, 2012.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Karen H. Callejo, Assistant City Attorney, Hialeah, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant challenges an order of the Judge of Compensation Claims (JCC) denying penalties and interest on late indemnity payments. For the reasons set forth herein, we affirm in part and reverse in part.

Sections 440.20(6) and 440.20(8), Florida Statutes, govern penalties and interest, respectively. Because those subsections are substantive, the version that applies is that in effect on the date of accident. See Serv. Mgmt. Sys. v. Hood, 790 So.2d 578, 580 (Fla. 1st DCA 2001) (applying section 440.20(6)); E. Indus., Inc. v. Burnham, 750 So.2d 748, 749-52 (Fla. 1st DCA 2000) (same).

PENALTIES

The law as it existed on the date of accident provides that an employer/carrier (E/C) who pays an installment of compensation more than seven days after it becomes due “shall” also pay a penalty of twenty percent of the unpaid installment “unless such nonpayment results from conditions over which the employer or carrier had no control.” § 440.20(6), Fla. Stat. (1997). The JCC here, by considering whether the E/C mailed the missing checks, evidenced that he correctly read this statute as requiring him to determine whether the E/C had control over the delay.

Evidence of an office’s standard mailing practices creates a rebuttable presumption that a particular item was mailed. See Brown v. Giffen Indus., Inc., 281 So.2d 897, 900 (Fla.1973) (holding on rehearing that “reliance on the presumption of mailing on the basis of normal office procedure was reasonable and proper, in light of the total lack of contrary evidence by petitioner”). See also Sweeney v. Citizens Prop. Ins. Corp., 43 So.3d 842, 842-43 (Fla. 1st DCA 2010) (affirming summary judgment by circuit court) (Rowe, J., concurring); City of Hollywood v. Pisseri, 504 So.2d 1262, 1264 (Fla. 1st DCA 1986) (holding E/C did not rebut presumption that it received properly mailed notice); and Watson v. Freeman Decorating Co., 455 So.2d 1097, 1099 (Fla. 1st DCA 1984) (“There is a general presumption that the ordinary course of business has been followed, absent a showing to the contrary.”). Here, the JCC correctly recited this presumption.

The record supports the JCC’s finding of fact that the E/C established entitlement to the presumption by proving the ordinary course of business was followed regarding issuance (and mailing) of checks. Specifically, the adjuster testified the checks were sent “regular mail” and she does not “see the checks before they go out” but “it all goes through finance,” and the payout ledger confirms that hundreds of payments, undisputedly received by Claimant, were made the same way. This evidence is sufficient to permit the JCC to infer that the E/C followed the normal course of business regarding mailing.

The JCC’s finding that Claimant failed to rebut this presumption is not reversible error here. See Fitzgerald v. Osceola County Sch. Bd., 974 So.2d 1161, 1163-64 (Fla. 1st DCA 2008) (holding claimant has burden to prove entitlement to benefits and decision in favor of party without burden of proof need not be supported by competent substantial evidence); Mitchell v. XO Commc’ns, 966 So.2d 489, 490 (Fla. 1st DCA 2007) (same). The JCC was correct to deny penalties.

INTEREST

The law as it existed on the date of accident provides that an E/C who does not pay an installment of compensation when it becomes due “shall pay interest thereon at the rate of 12 percent per year from the date the installment becomes due until it is paid.” § 440.20(8), Fla. Stat. (1997). Notably, this subsection contains no exceptions; in contrast to section 440.20(6), it does not condition itself on whether “such nonpayment results from conditions over which the employer or carrier had no control.” Given the JCC’s unchallenged finding that the payments were late, imposition of interest was mandatory.

The JCC reached the contrary conclusion, and supported his conclusion by citing Corkery v. Best Wings of Cape Coral, 707 So.2d 884 (Fla. 1st DCA 1998). In Corkery, this court reversed a JCC’s denial of penalties and interest on late indemnity payments, writing: “it cannot be said that the delay in payment was due to ‘conditions over which the employer or carrier had no control.’ § 440.20(6), Fla. Stat. (1995). We read the statute as forgiving penalties and interest only when neither the employer nor the carrier could have prevented the untimeliness.” 707 So.2d at 885. The words “and interest” are dicta in the Corkery opinion, given that the relevant wording of subsections 440.20(6) and (8) is identical in both the version applicable there (1995) and the version applicable here (1997), and given that the payments in Corkery were indeed late; Corkery’s result as to interest is the same regardless of the E/C’s control over the delay.

COSTS AND ATTORNEY’S FEES

Given that the JCC erred in declining to award interest, the JCC erred in denying costs based on the pursuit of interest, and may have erred in denying attorney’s fees based on the pursuit of interest. A prevailing claimant “shall” be awarded costs, and may in certain circumstances be entitled to attorney’s fees as well. See § 440.34(3), Fla. Stat. (1997). Consequently, we affirm the order on appeal as to the denial of penalties and the portion of costs and attorney’s fees based on penalties, reverse as to the denial of interest and the portion of costs and attorney’s fees based on interest, and remand for an award of interest, an award of costs based on interest, and reconsideration of an award of attorney’s fees based on interest.

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

BENTON, C.J., PADOVANO, and ROBERTS, JJ., concur.


text:
    Jennifer MOSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4558.
    District Court of Appeal of Florida, First District.
    July 9, 2012.

      Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jennifer Mosley, Appellant, appeals her conviction for grand theft and raises two issues on appeal, only one of which merits discussion. Appellant argues that the trial court reversibly erred by prohibiting Appellant’s counsel from proffering the victim’s testimony regarding his alleged drug use on cross-examination after he may have minimized his conviction. We agree that the failure to permit the proffer was reversible error, and we reverse Appellant’s conviction and remand for further proceedings.

This case involves the alleged use of the victim’s debit card without his consent. During trial, the victim claimed that he noticed that his card was missing when he tried to make a purchase, and that he never met Appellant. However, Appellant claimed that she met the victim when he bought crack cocaine from her and then offered her $40 if she agreed to party with him. Further, Appellant testified that she accepted his offer, and then they went to Ed Davis’s house, Appellant’s friend. At the house, Appellant and the victim got high, and the victim gave her his debit card several times during that day, instructing her to withdraw money and buy more drugs for him. Appellant also asserted that the victim gave her permission to use his debit card and buy what she wanted because he wanted to impress her.

During direct examination, the victim admitted that he was convicted of a felony that he thought occurred in 1993. During cross-examination, the following exchange occurred:

Q You didn’t hang out and get high with Ed Davis?
A I don’t know who Ed Davis is either. I don’t, I don’t get high. The, the felony from 1993 wasn’t about getting high either.
Q That case didn’t also involve a drug charge?
[The State]: Your Honor, can we approach briefly?
THE COURT: No. I will, I will sustain your objection. The jury will disregard counsel’s question.
[Defense Counsel]: Judge.
THE COURT: No, you can’t go there. Move on.
[Defense Counsel]: May we approach? I’d like to make a record. THE COURT: You cannot go there. Move on.
[Defense Counsel]: Yes, sir. I’d just like to note my objection for the record.

Appellant was convicted of grand theft and was sentenced to one year in prison, followed by four years’ probation. This appeal follows.

This Court reviews a trial court’s evidentiary rulings for an abuse of discretion, although “[a] judge’s discretion is limited by the rules of evidence ... and by the principles of stare decisis.” Johnson v. State, 969 So.2d 938, 949 (Fla.2007) (citation omitted). A trial court does not abuse its discretion unless no reasonable person would take the view adopted by the trial court. Scott v. State, 717 So.2d 908, 911 (Fla.1998).

Section 90.610(1), Florida Statutes (2011), provides as follows:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment....

If a witness testifies falsely as to the number of impeachable convictions he has, then the opposing party may introduce certified copies of prior convictions into evidence. Pryor v. State, 855 So.2d 134, 136 (Fla. 1st DCA 2003). Although the opposing party may introduce certified copies of the convictions, the party is generally not allowed to question the witness about his specific convictions. Stallworth v. State, 53 So.3d 1163, 1166 (Fla. 1st DCA 2011); see also Mosley v. State, 739 So.2d 672, 676 (Fla. 4th DCA 1999) (explaining that the opposing party may produce the certified copies, but that it must stop its inquiry at that point). However, “[a]n exception to the general rule occurs when a defendant opens the door to a broader inquiry.” Mosley, 739 So.2d at 676. This exception applies to any testifying witness. Id. at n. 3. A witness opens the door when “a witness attempts to mislead or delude the jury about his prior convictions, [and] the witness is subject to further questioning concerning his convictions ‘in order to negate any false impression given.’ ” See Prjor, 855 So.2d at 136 (quoting Fotopoulos v. State, 608 So.2d 784, 791 (Fla.1992)).

As to allowing proffers, “[t]he rule is clear that a trial court errs in denying a request to proffer testimony that is reasonably related to the issues at trial.” Winbush v. State, 937 So.2d 768, 771 (Fla. 1st DCA 2006). Denying the request to proffer is error because the refusal “precludes full and effective appellate review.” Fehringer v. State, 976 So.2d 1218, 1220 (Fla. 4th DCA 2008). Disallowing a proffer “ ‘thwarts a defendant’s right to cross examine witnesses guaranteed by the sixth amendment and article I, section 16 of the Florida Constitution.’ ” Id. (quoting Rozier v. State, 636 So.2d 1386, 1388 (Fla. 4th DCA 1994)). Unless the State can show that the error was harmless beyond a reasonable doubt, the error is deemed reversible. Winbush, 937 So.2d at 771.

Here, Appellant’s counsel questioned the victim on cross-examination whether he got high with Davis on the day at issue. Instead of merely answering the question, the victim volunteered information that his felony conviction from 1993 did not involve getting high. It stands to reason that the victim was attempting to minimize his conviction. When Appellant’s counsel attempted to make a proffer, the trial court refused to allow him to do so. Without a proffer, the State cannot prove that the error was harmless, and this Court cannot discern whether the victim opened the door to further inquiry on the matter of his conviction. Based on the facts here, the victim’s drug use was an important issue at trial, where Appellant alleged that the victim gave her his card to buy drugs and party with him, whereas the victim denied any involvement whatsoever with drugs. In essence, the victim’s drug use was a significant part of Appellant’s defense theory, and the victim was the key witness for the State. Because the State cannot prove that the error was harmless, we reverse Appellant’s conviction and sentence for grand theft and remand for further proceedings.

REVERSED and REMANDED.

LEWIS, CLARK, and MARSTILLER, JJ., concur.


author: PER CURIAM. MAKAR, J.,

text:
    Heather Leigh HARMON-HORTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-92.
    District Court of Appeal of Florida, First District.
    July 9, 2012.
    Wilson Jerry Foster, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

MAKAR, J.,

concurring.

I concur in affirming the trial court, which denied a motion for mistrial in this DUI case in which the arresting officer testified he performed a Horizontal Gaze Nystagamus (HGN) test and the prosecutor’s comments in closing argument overstated the officer’s testimony. Both the arresting officer’s testimony and the prosecutor’s comments run afoul of this Court’s decision in Robinson v. State, 982 So.2d 1260, 1261-62 (Fla. 1st DCA 2008), which held that lay testimony on HGN testing is inadmissible because HGN test results are scientific evidence the predicates of which must be established. See also Castillo v. State, 955 So.2d 1252, 1253-54 (Fla. 1st DCA 2007) (reversing summary denial of a postconviction motion (adopting State v. Meador, 674 So.2d 826, 836 (Fla. 4th DCA 1996), which held HGN testing is scientific evidence for which there is danger of unfair prejudice and confusion to the jury if the test is admitted as lay observation of intoxication)).

The rub in this case is that counsel for Heather Leigh Harmon-Horton, the DUI defendant, objected to the prosecutor’s closing comments, but not the officer’s testimony. During the trial, the state’s only witness was the arresting officer, whose testimony established that Harmon-Horton was driving erratically and appeared incapacitated. Three times the trooper made passing references that he performed HGN testing on Harmon-Horton; but he provided no details about his observations or conclusions. Defense counsel did not object at this time (perhaps because no specifics were given by the officer). During the State’s closing arguments, however, the prosecutor injected facts not in evidence about the officer’s testimony, stating that Harmon-Horton “had fluttering in both eyes with no smooth pursuit, which is also an indicator that they use” in the HGN test. Trial counsel objected, seeking a mistrial based on the comments, which was denied.

On appeal, Harmon-Horton challenges the officer’s references to the HGN test (to which she did not object) as well as the prosecutor’s statement in closing argument (to which she did timely object). Had there been an objection to the officer’s testimony, the appellate standard of review would be the harmless error test. See Robinson, 982 So.2d at 1262 (noting that the “controlling ‘question is whether there is a reasonable possibility that the error affected the verdict.’ ”) (citing State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986)). A motion for mistrial based on prosecutorial comments, however, is reviewed for abuse of discretion. Salazar v. State, 991 So.2d 364, 371-72 (Fla.2008). Because defense counsel did not raise an independent objection to the officer’s testimony, the abuse of discretion standard applies to the denial of motion for mistrial in this case.

To be entitled to a new trial based on the prosecutor’s improper comment, Harmon-Horton was required to show that the comment deprived her of a fair and impartial trial, materially contributed to her conviction, was so harmful or fundamentally tainted as to require a new trial, or was so inflammatory that it might have influenced the jury to reach a more severe verdict than it would have otherwise. See Spencer v. State, 645 So.2d 377, 388 (Fla.1994); see also Hamilton v. State, 703 So.2d 1038, 1041 (Fla.1997) (“A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial.”)

Here, the officer’s references to the HGN test are not at issue because no objection was made. Even so, they were not patently prejudicial because no specifics were given. It was akin to a State’s witness saying a blood alcohol test was performed, but not providing its results, leaving all to wonder. On the other hand, the prosecutor’s comment not only referenced that the officer performed the HGN test but also attempted to persuade the jury with details not in evidence (the defendant’s “fluttering” eyes). Had the officer testified to his actual observations over defendant’s objection, the prosecutor’s closing comments would fall within the type of error upon which we have previously reversed convictions. See Robinson supra. Affirmance is warranted under the abuse of discretion standard, however, because the trial court took steps to ameliorate the potential prejudice from the prosecutor’s statement by instructing the jury to look only to the evidence in reaching its verdict and that closing arguments are not evidence. See Sutton v. State, 718 So.2d 215, 216 n. 1 (Fla.1998) (the jury is presumed to follow its instructions absent evidence to the contrary). The limited nature of the improper HGN “evidence” in this case, as compared to cases where convictions were reversed on appeal, yields a qualitatively different situation and result. Other substantial evidence of intoxication was also presented, which strengthens the trial court’s determination that the trial overall was fair in spite of the improper commentary. Thus, I concur in the affir-mance.

WOLF and RAY, JJ., concur; MAKAR, J., concurs with Opinion.


text:
    Otha ABNEY, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D12-2572.
    District Court of Appeal of Florida, First District.
    July 9, 2012.
    Otha Abney, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that ha-beas corpus is not available to obtain collateral postconviction relief available by motion in the sentencing court pursuant to rule 3.850).

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Darrell TYLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1042.
    District Court of Appeal of Florida, First District.
    July 9, 2012.
    Darrell Tyler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted belated appeals of the August 2, 2011, judgments and sentences in Duval County Circuit Court case numbers 16-2011-CF-003765-AXXX-MA, 16-2011-CF-003766-AXXX-MA and 16-2011-CF-004340-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Albert MULALLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2452.
    District Court of Appeal of Florida, First District.
    July 9, 2012.
    Albert Mulally, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appeal is dismissed without prejudice. See Lake v. State, 53 So.3d 1125 (Fla. 1st DCA 2011) (dismissing appeal where court’s order did not address all postconviction claims before it); Edler v. State, 673 So.2d 970 (Fla. 1st DCA 1996) (same).

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Lesley D. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1636.
    District Court of Appeal of Florida, First District.
    July 9, 2012.
    Lesley D. White, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA2011).

BENTON, C.J., PADOVANO, and ROBERTS, JJ., concur.


text:
    James E. HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5992.
    District Court of Appeal of Florida, First District.
    July 11, 2012.
    James E. Henry, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds one and three of the motion without further discussion. However, we reverse and remand the denial of ground two, the appellant’s claim that he rejected a plea based on the misadvice of counsel as to the applicability and consequences of the prison releasee reoffender statute, for an evidentiary hearing. See Cottle v. State, 733 So.2d 963 (Fla.1999); Roundtree v. State, 884 So.2d 322 (Fla. 2d DCA 2004) (holding that claim of ineffective assistance of counsel regarding rejected plea was facially sufficient where defendant alleged counsel failed to advise him that he faced enhanced sentence as a PRR, that he would have accepted plea, and that acceptance of offer would have resulted in lesser sentence); see also Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (U.S.2012) (holding that defendant can claim ineffective assistance of counsel in the context of a rejected plea and that to establish the prejudice prong of the Strickland test, the defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances, and also that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed).

AFFIRMED in part, REVERSED and REMANDED in part.

WOLF, ROWE, and SWANSON, JJ„ concur.


text:
    Darryl Maurice YOUNG, Petitioner, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D11-5175.
    District Court of Appeal of Florida, First District.
    July 11, 2012.
    Darryl Maurice Young, pro se, Petitioner.
    Stephen D. Hurnl, General Counsel, and M. Lilja Dandelake, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of mandamus seeks to compel the circuit court to rule on a motion to dismiss. We grant the petition.

In 2007, petitioner filed a petition in the circuit court. The circuit court denied the petition, but on certiorari review, this court quashed the final order and remanded the cause for further proceedings. Young v. Florida Dep’t of Highway Safety & Motor Vehicles, 1 So.3d 348 (Fla. 1st DCA 2009). When there was no ruling on remand, petitioner then sought mandamus relief in this court. This court granted relief and directed the circuit court to rule on the petition pending below within 30 days, but we withheld issuance of the formal writ. Young v. Florida Dep’t of Highway Safety & Motor Vehicles, 27 So.3d 81 (Fla. 1st DCA 2009). In January 2011, respondent filed a motion to dismiss below, but no ruling has been made on either the motion or the petition.

Petitioner again seeks mandamus relief in this court. Respondent concedes that petitioner is entitled to have the circuit court rule on the pending motion. Accordingly, we grant the petition for writ of mandamus and formally issue the writ with directions to the circuit court to rule on both the motion to dismiss and the petition pending below within 60 days of issuance of mandate in this cause.

WOLF, PADOVANO and MARSTILLER, JJ., concur.


author: EMAS, J.

text:
    Jose HERRERA, Appellant, v. Celso ROLON, Appellee.
    No. 3D11-1620.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.

      Adams, Adams & Baca and Robert Wade Adams; Shelly Ray Senecal, for appellant.
    Suarez & Montero and Andres G. Montero, Miami, for appellee.
    Before EMAS and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

Finding no abuse of discretion, we affirm the trial court’s denial of appellant’s amended motion to vacate default.

However, we do so without prejudice for the trial court to consider the appellant’s pending, but as yet unheard, “Renewed Motion to Vacate Default Based Upon Newly Discovered Evidence,” which on its face seeks relief under Rule 1.540(b), Florida Rule of Civil Procedure. We express no comment on the merits of that motion.


author: SCHWARTZ, Senior Judge.

text:
    AIRPORT CENTRE, INC., Appellant, v. Jorge UGARTE, Gloria Quinones, and Raul A. Campos, et al., Appellees.
    No. 3D11-2997.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Monica Espino; Michelle R. Walsh, Miami, for appellant.
    Aran Correa Guarch & Shapiro and Craig Shapiro; Hunter Williams & Lynch and Christopher J. Lynch, Miami, for ap-pellees Jorge Ugarte, Gloria Quinones and Raul A. Campos.
    Before WELLS, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The record demonstrates that none — let alone, as required, all — of the legal prerequisites for the order now under review granting Florida Rule of Civil Procedure 1.540(b) relief from a default final judgment duly entered against appellees has been satisfied. See Lazcar Int'l Inc. v. Caraballo, 957 So.2d 1191, 1192 (Fla. 3d DCA 2007) (“For a trial court to grant a motion to set aside a default final judgment, the moving party must show three things: (1) the failure to file a responsive pleading was the result of excusable neglect; (2) the moving party has a meritorious defense; and (3) the moving party acted with due diligence in seeking relief from the default.”), review denied, 969 So.2d 1011 (Fla.2007); Geer v. Jacobsen, 880 So.2d 717, 721 (Fla. 2d DCA 2004) (A meritorious defense “must be asserted either by a pleading or in an affidavit, and a general denial is insufficient to demonstrate the existence of a meritorious defense.”); Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300 (Fla. 2d DCA 2004) (finding that a seven-week delay in seeking relief from default judgment was unreasonable); Herrick v. Se. Bank, 512 So.2d 1029 (Fla. 3d DCA 1987) (holding that excusable neglect cannot arise from negligence of counsel); see also Fischer v. Barnett Bank of S. Fla., 511 So.2d 1087 (Fla. 3d DCA 1987) (finding that a five week delay in seeking relief from default judgment was “entirely inexcusable”). The order is reversed and the cause is remanded with directions to reinstate the final judgment below. See Lazcar Int’l, Inc., 957 So.2d at 1192 (reversing an order vacating a final default judgment where there was an undisputed six week delay in moving for relief after learning of the default judgment); Church of Christ Written in Heaven, Inc. v. Church of Christ Written Heaven of Miami, Inc., 947 So.2d 557 (Fla. 3d DCA 2006) (reversing the trial court’s order vacating default judgment where unverified motion to vacate contained only bare allegations of excusable neglect and meritorious defense); Trinka v. Struna, 913 So.2d 626, 628 (Fla. 4th DCA 2005) (reversing the trial court’s order vacating default judgment where “defendant’s attorney ignored his duty to act with all due diligence” in allowing the passage of more than a month “between the discovery of the default and the entry of final judgment without any attempt to vacate the default”).

Reversed.


text:
    Antonio Tornas LISCAS, Appellant, v. The STATE of Florida, Appellee.
    No. 12-801.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Ricardo Corona, Coral Gables, and Carolina Corona, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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


text:
    T.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-104.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    T.G., a juvenile, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See C.H.S. v. State, 795 So.2d 1087 (Fla. 2d DCA 2001).


text:
    William C. SMITH, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-5641.
    District Court of Appeal of Florida, First District.
    July 11, 2012.
    William C. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Eric Neiberger, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Williams v. Tucker, 87 So.3d 1270 (Fla. 1st DCA 2012).

WOLF, ROWE, and SWANSON, JJ., concur.


author: PER CURIAM. SCHWARTZ, Senior Judge

text:
    Chief Harry AKANDE, Appellant, v. BALFOUR BEATTY CONSTRUCTION, LTD. n/k/a Balfour Beatty Constr., Ltd., Appellee.
    No. 3D11-1736.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Carlton Fields and Jose A. Loredo, Han A. Nieuchowicz and Nancy C. Ciampa, for appellant.
    Moye, Obrien, O’Rourke, Pickert & Dillon and Megan A. Cantlebary and Sean M. Dillon, for appellee.
    Before SALTER and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

SCHWARTZ, Senior Judge

(specially concurring).

In my judgment, this case calls for the assessment of attorney’s fees against appellant and his attorneys under section 57.105, Florida Statutes (2010), and Florida Rule of Appellate Procedure 9.410(b).


text:
    H.W.R., Father of A.R., D.R. and H.R., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D12-1070.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2012.
    Katharine Ballingrud and Jeffrey D. Deen, Regional Counsel of the Office of Criminal Conflict & Civil Regional Counsel, Casselberry, for Appellant.
    Deborah A. Schroth, Jacksonville, for Appellee.
    Wendie Michelle Cooper, Tavares, for Guardian ad Litem.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to Appellee’s Concession of Error, the circuit court’s February 13, 2012 Supplemental Order of Adjudication of A.R., D.R., and H.R. as dependent is reversed and this cause is remanded to the circuit court for further proceedings.

REVERSED and REMANDED.

TORPY, LAWSON and COHEN, JJ, concur.


text:
    SURNA CONSTRUCTION, INC. as Trustee, etc., Appellant/Cross-Appellee v. Charles H. STEPHENS, as Trustees, etc., et al., Appellee/Cross-Appellant.
    No. 5D11-973.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    Patrick A. McGee, of McGee & Powers, P.A., Orlando, for Appellant/Cross Appel-lee.
    Frank A. Hamner, of Frank A. Hamner, P.A., Winter Park, for Appellee/Cross Appellant.
   PER CURIAM.

Surna Construction, Inc. (Appellant) appeals a Final Judgment invalidating a tax deed issued to it. Appellant contends that the trial court erred in (1) ordering that Appellant was not allowed to retain the rent monies it collected from commercial tenants while it was in possession of the commercial property pursuant to the tax deed and (2) refusing to enforce a stipulation between the parties pursuant to which Appellant contends it was entitled to receive statutory interest on the amount it had paid for the tax deed. Appellee, Charles H. Stephens, filed a cross appeal arguing that the evidence presented by Appellant regarding the expenses it incurred to maintain the property prior to invalidation of the tax deed was not presented in a timely manner and that the evidence was insufficient to support the expense award.

As to the issue regarding the rent money and the issue raised on cross appeal, we affirm without further discussion. As to the issue regarding the enforcement of the parties’ stipulation, we conclude that the stipulation requiring interest payments to Appellant was valid and enforceable. Moreover, absent the stipulation, we believe that Appellant was entitled to interest pursuant to section 197.602, Florida Statutes. Accordingly, we reverse that part of the Final Judgment that found Appellant is not entitled to interest and remand this case to the trial court for entry of a final judgment that includes an award of interest to Appellant.

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA, PALMER, JJ., and MONACO, D.A., Senior Judge, concur.


author: CLARK, J.

text:
    Dennis L. McCLOUD, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D10-6238, 1D10-6244.
    District Court of Appeal of Florida, First District.
    July 19, 2012.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

The appellant challenges convictions for sex offenses committed on two child victims, with those convictions being obtained in a jury trial where the evidence included a recording of one victim’s Child Protection Team interview when she reported the sex abuse. The appellant contends that the trial court’s order allowing this evidence lacks sufficiently detailed findings to permit admissibility under section 90.803(23), Florida Statutes. However, the order does contain sufficient findings, and furthermore the appellant did not preserve the issue for appeal as he did not contest the sufficiency of the findings while in the trial court.

Before trial, the state filed a notice of its intent to introduce statements from the Child Protection Team interview into evidence, pursuant to section 90.803(23). At a pre-trial hearing the court heard testimony as to the circumstances under which the interview was conducted, and the Child Protection Team member’s interaction with the child there, as well as a prior interview and the team member’s earlier contact with the child. The appellant subsequently argued that the child’s statements were not shown to be reliable enough to satisfy the requirements of section 90.803(23). However, the trial court indicated that it would allow the evidence under section 90.803(23), and the court thereafter entered the written order which the appellant is now challenging in this appeal.

Although the appellant claims that the written order lacks sufficiently detailed findings, the appellant did not make that argument in the trial court and did not otherwise raise any issue then as to the adequacy of the written findings. Instead, the appellant let the case go to trial without raising the issue, and after being convicted he now attempts to interject this issue on appeal. But because the appellant did not raise the issue in the trial court, where a claimed deficiency in the written order could be corrected, the issue has not been preserved for appeal. Elwell v. State, 954 So.2d 104 (Fla. 2d DCA 2007); see also, e.g., Harrell v. State, 894 So.2d 935 (Fla.2005).

AFFIRMED.

DAVIS and ROWE, JJ., concur.


text:
    Clyde Eugene McEADY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1578.
    District Court of Appeal of Florida, First District.
    July 20, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

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


text:
    Elena CANTATOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6142.
    District Court of Appeal of Florida, First District.
    July 20, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

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


text:
    Kenneth Douglas MILTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5953.
    District Court of Appeal of Florida, First District.
    July 20, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

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


text:
    Clayton Lamar WHITEHEAD, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5940.
    District Court of Appeal of Florida, First District.
    July 20, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

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


author: WELLS, Chief Judge.

text:
    The STATE of Florida, Appellant, v. Yanit Valdes MENENDEZ, Appellee.
    No. 3D11-1283.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellant.
    Jauregui & Jauregui and Sabino Jaure-gui, Miami, for appellee.
    Before WELLS, C.J., and CORTIÑAS and SALTER, JJ.
   ON CONFESSION OF ERROR

WELLS, Chief Judge.

On Appellee Yanit Valdes Menendez’ commendable confession of error, we reverse that portion of the sentence imposed below withholding adjudication and remand for entry of a new sentence adjudicating her guilt. Since no other portion of the sentence will be affected on remand, Valdes Menendez need not be present for resentencing.

Reversed and remanded with instructions.