text:
    Ivonne GRISOLIA, as personal representative of the Estate of Favio Jose Grisolia Sanchez (a/k/a Fabrizzio Grisolia), Appellant, v. Eric and Carla PFEFFER, Appellees.
    No. 3D11-198.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.
    Fowler Rodriguez Valdes-Fauli and G. Luis Dominguez, for appellant.
    Heller Waldman and Eleanor T. Barnett, Coconut Grove, for appellees.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, J.

Favio Grisolia Sanchez (“Decedent”) moved his family to the United States in 2005 following a kidnapping attempt on his son, Fabrizzio Grisolia (“Son”), the previous year. Although he was attending school in Venezuela at the time of the attempted kidnapping, the Son was a United States citizen with an American passport. After arriving in the United States, the Decedent, along with the Son and Ivonne Grisolia (“Widow”), resided temporarily in an apartment in Sunny Isles Beach, Florida, owned by the Decedent’s mother until 2006 when the Decedent purchased an apartment (“Property”) in the same building. The Decedent lived in the Property until his death in 2009. The Widow and Son also lived in the Property during that time and continue to reside there.

In 2007, Eric and Carla Pfeffer made a personal loan of $500,000 to the Decedent which was memorialized by a promissory note. Following the filing of the petition for the administration of the Decedent’s estate (the “Estate”), the Pfeifers asserted a claim against the Estate to recover the remaining amounts due and owing on their loan. The Estate objected to the claim and filed a petition for the determination of the homestead status of the Property. Arguing that the Property was protected by Florida’s homestead exemption from forced sale, the Estate alleged that it was exempt from creditors such as the Pfei-fers. The Pfeffers objected to the petition for the determination of homestead status and, after an evidentiary hearing, the court took the issue under advisement and eventually entered an order denying the petition for homestead exemption. We reverse.

The Florida Constitution provides in pertinent part:

SECTION 4. Homestead; exemptions.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

Art. X, § 4, Fla. Const, (emphasis added).

In Florida, “courts have consistently held that the protections afforded by the ‘homestead exemption in article X, section 4 must be liberally construed.’ ” Taylor v. Maness, 941 So.2d 559, 562 (Fla. 3d DCA 2006) (citation omitted). Furthermore, the homestead exemption jurisprudence of Florida courts “has long been guided by a policy favoring the liberal construction of the exemption: ‘Organic and statutory provisions relating to homestead exemptions should be liberally construed in the interest of the family home.’ ” Taylor, 941 So.2d at 562 (citations omitted). Accordingly, the Florida homestead exemption from forced sale “is liberally construed for the benefit of those it was designed to protect.” Taylor, 941 So.2d at 562 (quoting Law v. Law, 738 So.2d 522, 524 (Fla. 4th DCA 1999)).

The Florida Supreme Court has addressed the issue of homestead exemption and held that “although it is not necessary that the head of the family reside in the state or intend to make the property in question his permanent residence, he must establish that he intended to make this property his family’s permanent residence.” Cooke v. Uransky, 412 So.2d 340, 341 (Fla.1982) (emphasis added). We have also acknowledged that article X, section 4(a)(1) specifies that a homestead exemption is limited to the residence of the owner or the owner’s family and, “[a]c-cordingly, ‘the Florida Constitution does not require that the owner claiming homestead exemption reside on the property; it is sufficient that the owner’s family reside on the property.’ ” Beltran v. Kalb, 63 So.3d 783, 787 (Fla. 3d DCA 2011) (quoting Nationwide Fin. Corp. of Colo. v. Thompson, 400 So.2d 559, 561 (Fla. 1st DCA 1981) (emphasis added)); see also Bayview Loan Servicing, LLC v. Giblin, 9 So.3d 1276, 1278 (Fla. 4th DCA 2009) (“The language of article X, section 4 is clear and unambiguous. Here, the decedent was a natural person who owned property occupied by his wife and child at the time of his death; thus the property is homestead.”).

In Cooke, the Florida Supreme Court addressed the homestead exemption sought by a bankruptcy debtor who was a Canadian citizen visiting the United States solely as a tourist. While the Court agreed that “under the particular circumstances of [that] case,” the bankruptcy court was correct in determining that the homestead exemption did not apply, it noted:

It appears that Mr. Cooke and his family were Canadian citizens temporarily in the United States as tourists and that none of them had the legal right to reside permanently in Florida. This being the case, Mr. Cooke could not legally formulate the requisite intent to make the Florida property his family’s permanent place of residence.

Cooke, 412 So.2d at 343 n. 1 (emphasis added). Although there is no case directly on point, the Florida Supreme Court’s analysis in Cooke highlights the fact that the debtor could not obtain the homestead exemption because neither he nor his family members had the legal right to reside in Florida and, under those circumstances, he could not formulate the requisite intent to have his family reside in Florida.

Here, the situation is quite different. It is undisputed that the Decedent and the Widow were not in the United States as tourists. Instead, they were registered aliens legally allowed to reside in the United States under their temporary visa. Moreover, in the Son’s case, he was an American citizen who was born in Miami, Florida and had resided in Florida since his family moved here in 2005. The Widow testified at the evidentiary hearing that her intent, along with that of the Decedent, was that the family reside permanently in the Property due to safety concerns stemming from the attempted kidnapping of the Son in Venezuela. The Widow further testified that she and the Decedent had applied for permanent residence in the United States prior to the Decedent’s passing. These specific circumstances are sufficient to demonstrate the Decedent’s intent to have his family permanently reside in Florida.

Appellees cite to several bankruptcy cases where a debtor, because of his immigration status, could not formulate the requisite intent to make his property his permanent residence. These cases ignore that eligibility for the homestead exemption depends on the intent of the homesteader rather than that of the U.S. Citizenship and Immigration Services. See Cooke, 412 So.2d at 341. Moreover, these bankruptcy cases are factually distinguishable. For example, In re Fodor, 339 B.R. 519 (Bankr.M.D.Fla.2006), involved a Hungarian citizen who had a multiple-entry business visa that allowed him to travel freely between Europe and the United States, but barred him from remaining in the United States for more than 180 days at a time. Id. at 520. Moreover, although the debtor in Fodor married an American citizen prior to filing bankruptcy, he was granted permanent residence status on a conditional basis because the marriage was less than two years old and he needed to prove that he “did not get married to avoid the immigration laws of the United States.” Id. 520. Likewise, In re Boone, 134 B.R. 979 (Bankr.M.D.Fla.1991) involved a debtor who was a Canadian citizen whose husband had been given a visa for the purpose of setting up a business in the United States. Id. at 980. The debtor “obtained her visa only as the wife of the visa applicant.” Id. The debtor divorced her husband and the bankruptcy court acknowledged that the debtor’s right to remain in the United States “depended solely on the ... visa granted to her former husband. Accordingly, following her divorce and continued to date, the [dlebtor no longer ha[d] any legal right to remain in the United States and continue to work.” Id. at 980 (emphasis added). Similarly, In re Gilman, 68 B.R. 374 (Bankr.S.D.Fla.1986) involved a debtor whose only identified connection to being in the United States was his possession of a visa that “permit[ted] the operation of a business enterprise.” Id. at 375. The bankruptcy court thus found that “based on the findings of fact as determined by this [c]ourt, it is clear that the [d]ebtor ... is not legally entitled to formulate the requisite intent to remain permanently within the State of Florida and declare the residence that he owns the permanent residence of his family.” Id. (emphasis added). We find these cases and their progeny unpersuasive and distinguishable as their outcomes relied on very specific factual circumstances which differ from the case before us.

Other eases cited by Appellees are inap-posite as they involve Florida’s homestead exemption from taxation that is now set forth in article VII, section 6 of the Florida Constitution (“Tax Exemption”), rather than the homestead exemption from forced sale found in article X, section 4. For example, in Juarrero v. McNayr, 157 So.2d 79 (1963), the Florida Supreme Court held that a citizen and former resident of a foreign country, who is in the United States solely on the authority of a temporary visa, “has no assurance that he can continue to reside in good faith for any fixed period of time in this country ... [and, therefore] does not have the legal ability to determine for himself his future status and does not have the ability legally to convert a temporary residence into a permanent home.” Id. at 81. Likewise, in DeQuervain v. Desguin, 927 So.2d 232 (Fla. 2d DCA 2006), the court found that homeowners who held only temporary visas “could not form the requisite intent to become permanent residents for purposes of the [Tax Exemption].” Id. at 233. However, the Second District also clarified that “because the [Tax Exemption] provides relief from an ad valorem tax, we must construe the statute strictly against [the homeowners].” Id. (citing Capital City Country Club, Inc. v. Tucker, 613 So.2d 448, 452 (1993)). The strict construction applicable to the Tax Exemption stands in contrast to the liberal construction of the homestead exemption from forced sale at issue here. See Taylor, 941 So.2d at 562; Law, 738 So.2d at 524.

Similarly, at the evidentiary hearing the Appellees raised the fact that the Decedent had never claimed a Tax Exemption on the Property. They further argue on appeal that a person in the United States under a temporary visa cannot meet the requirement of permanent residence or home, and therefore, cannot claim the Tax Exemption. Fla. Admin. Code R. 12D-7.007 (2002). We note that the portion of the Florida Administrative Code to which they cite applies to the Tax Exemption and not to the homestead exemption from forced sale at issue here. The probate court referenced in the order on appeal that “[i]n fact, the Decedent never claimed a [Tax Exemption] according to the Miami-Dade County Tax Rolls.” As we have previously stated, “[fjailure to claim the [Tax Exemption] is not evidence that property is not, in fact, homestead.” Taylor, 941 So.2d at 563 (citing Pierrepont v. Humphreys, 413 So.2d 140, 143 (Fla. 5th DCA 1982)). Clearly, “the homestead exemption from forced sale is different from the [Tax Exemption].” Taylor, 941 So.2d at 563 (citing S. Walls, Inc. v. Stilwell Corp., 810 So.2d 566, 569 (Fla. 5th DCA 2002)).

Under the specific facts of the this case, because the Decedent’s American-born Son resided in the Property since its purchase, the Decedent and Widow had a visa which gave them the legal right to reside in Florida, and were actively pursuing permanent residence status prior to the Decedent’s death, we find that the Decedent demonstrated the requisite intent to make the Property his family’s permanent residence. Based upon the foregoing, we reverse the probate court’s order denying the petition for declaration of homestead exemption.

Reversed.

      . The Son was bom in Miami, Florida in 2001.

      . The Decedent died intestate.

      . The Cooke decision contains the phrase "head of the family” because it predated the 1984 amendment to article X, section 4, which replaced "head of the family” with "a natural person” and "expanded the class of persons who can take advantage of the homestead provision and its protections.” Pub. Health Trust of Dade Cnty. v. Lopez, 531 So.2d 946, 948 (Fla.1988). The 1984 amendment does not affect the reasoning of the Cooke decision.

      . The Court noted Mr. Cooke’s status under federal law as follows:
      Canadian citizens are not required to obtain a visa in order to enter the United States as visitors, but they must have a permanent visa if they intend to reside in this country indefinitely and must register just like other aliens as a resident alien and be in possession of an alien registration receipt card at all times. Title 8 U.S.C. Sec. 1304; 8 C.F.R. Secs. 211.1, 212.1 and 245 (1979).

        Cooke, 412 So.2d at 342.

      . The Widow has since renewed her temporary visa and had apparently continued her efforts to become a permanent resident.

      . When Juarrero was decided, the Tax Exemption was set forth in article X, section 7, but it has since been renumbered to article VII, section 6 of the Florida Constitution. The Tax Exemption is presently implemented by Chapter 196, Florida Statutes, and entitles an owner to an exemption from taxation up to the assessed valuation of $25,000 on his homestead property as defined in article VII, section 6 of the Florida Constitution. See § 196.031, Fla. Stat.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    Johnson JAMERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2429.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.
    Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The defendant, Johnson Jamerson, was found guilty of aggravated battery on a law enforcement officer (as a lesser included offense of attempted first degree murder of a law enforcement officer) and resisting an officer with violence. Although Jamerson did not object to the jury being instructed as to the lesser included offense of aggravated battery on a law enforcement officer or to the verdict form, he now objects and seeks reversal on those two grounds. Finding no fundamental error, and, in fact, no error at all, we affirm.

Count two of the information charged that Jamerson unlawfully, feloniously, and with a premeditated intent, attempted to kill Matthew Hall, a law enforcement officer, who was éngaged in the lawful performance of his duties, by biting Officer Hall with full knowledge that Jamerson had HIV and/or AIDS. The evidence established that Jamerson, who had been arrested and was being transported to jail, freed himself from his restraints and began yelling and screaming at Officer Hall. While Officer Hall was attempting to rese-cure Jamerson, Jamerson yelled, “I have AIDS and I’m going to kill you,” and then he bit Officer Hall. After he bit Officer Hall, Jamerson repeated, ‘Yeah, that’s right mother [f_]. I bit you. I have AIDS. I’m going to kill you.” The bite was so severe, that it penetrated Officer Hall’s pants, broke the skin, the wound bled, and the scar was still visible one year later at trial. It is undisputed that HIV/ AIDS is a deadly disease, and Jamerson admitted at trial that he has HIV. As a result of the bite, Officer Hall had to undergo six months of medical treatment. The side effects of the treatment were diarrhea, nausea, inability to eat certain foods, and vomiting, causing Officer Hall to miss work. Further, the uncertainty of whether he had been infected with HIV or AIDS caused Officer Hall, who has a wife and three children, great mental anguish.

Aggravated battery is a category two permissive lesser included offense of attempted first degree murder. To instruct the jury on a category two lesser included offense, the accusatory pleading must allege the necessary elements of the lesser included offense and there must be sufficient proof to support a conviction. I.T. v. State, 694 So.2d 720, 723-24 (Fla.1997); V.C. v. State, 63 So.3d 831, 833-34 (Fla. 3d DCA 2011); J.O. v. State, 42 So.3d 803, 804 (Fla. 3d DCA 2010); Lester v. State, 25 So.3d 623, 625 (Fla. 3d DCA 2009). A person commits an aggravated battery if, in committing the battery (an unlawful touching), he intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement, or he uses a deadly weapon. § 784.045, Fla. Stat. (2008).

It is undisputed that the evidence is sufficient to support the conviction of aggravated battery on a law enforcement officer. We also conclude that the information sufficiently pled the necessary elements of aggravated battery on a law enforcement officer to put Jamerson on notice that the jury could be instructed on, and he could be convicted of, aggravated battery on a law enforcement officer, which is most certainly why neither he nor his attorney objected to this lesser included offense being included for the jury’s consideration. See State v. Williams, 9 So.3d 658, 659 (Fla. 4th DCA 2009) (concluding that biting the victim and causing the need for emergency medical attention was sufficient to establish requisite violence for imposing an enhanced sentence for felony battery); see also United States v. Studnicka, 450 F.Supp.2d 680, 682 (E.D.Tex.2006) (finding that the bite Studnicka, who had HIV, inflicted on a correctional officer who, as a result, was required to seek medical treatment to combat the serious possibility of infection with HIV, including a number of shots and daily “cocktails” or medication for a period of six months, which made the officer extremely ill, plus the traumatic effect while awaiting the results of the HIV tests “fall between the level of serious bodily injury and permanent or life-threatening bodily injury”).

We also conclude that because Jamerson failed to object to the jury’s consideration of this lesser included offense, he failed to preserve any objection he may now have unless he can establish fundamental error. See State v. Delva, 575 So.2d 643, 644-45 (Fla.1991). In Ray v. State, 403 So.2d 956, 961 (Fla.1981), the Florida Supreme Court found that to instruct a jury or convict a defendant on an erroneous lesser offense does not necessarily constitute fundamental error, holding as follows:

[I]t is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action.

Id. (footnote omitted).

The record reflects that Jamerson had an opportunity to object to the charge but failed to do so. The trial court specifically inquired of defense counsel whether she had any objection to the aggravated battery on a law enforcement officer charge and jury instruction, and she unequivocally stated that she had no objection. Aggravated battery is a second degree felony, punishable up to fifteen years of incarceration. Attempted first degree premeditated murder is a first degree felony, punishable up to thirty years of incarceration. See §§ 782.04(1), 775.082(3)(b), Fla. Stat. (2008). Aggravated battery is both lesser in degree and penalty than the charged offense of attempted first degree murder. Thus, under Ray, even if the instruction was erroneous, no fundamental error has been shown.

We also find no error in the verdict form, which again, the defendant did not object to. The jury found Jamerson “guilty of Aggravated Battery on a Law Enforcement Officer, a lesser included crime.” As the Florida Supreme Court held in State v. Iseley, 944 So.2d 227, 231 (Fla.2006), and reiterated in Sanders v. State, 944 So.2d 203, 207 (Fla.2006):

[A]ll that is required for the application of a reclassification or enhancement statute to an offense is a clear jury finding of the facts necessary to the reclassification or enhancement “either by (1) a specific question or special verdict form (which is the better practice), or (2) the inclusion of a reference to [the enhancement factor] in identifying the specific crime for which the defendant is found guilty.”

Sanders, 944 So.2d at 207 n. 2 (quoting Iseley, 944 So.2d at 231).

Affirmed.


author: PER CURIAM. SCHWARTZ, Senior Judge,

text:
    Alvaro GORRIN, Jr., Appellant, v. POKER RUN ACQUISITIONS, INC., a Florida corporation, et al., Appellees.
    Nos. 3D09-3521, 3D10-2486.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.
    Rehearing Denied Feb. 2, 2012.

      Kreusler-Walsh, Compiani & Vargas and Jane Kreusler-Walsh and Rebecca Mercier-Vargas and Stephanie L. Serafín, West Palm Beach; Harry A. Payton and Lisa Hu Barquist, Miami, for appellant.
    Cohen/Fox and Robert A. Cohen and Aaron C. Wong, Miami, and R. Edson Briggs; White & Case and Raoul G. Cantero and David P. Draigh, Miami, and Kerri L. McNulty, for Poker Run Acquisitions, Inc.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We reverse the entry of final summary judgments for breach of personal loan guaranties where, as here, there was not an express waiver of duties by the lender. See Warner v. Caldwell, 354 So.2d 91, 96 (Fla. 3d DCA 1977) (“Notwithstanding language in the guaranty agreement to the effect that the contract of guaranty would be ‘unconditional,’ beyond the duties imposed in the contract of guaranty, the law imposes on the creditor an obligation not to deal with the debtor, or any security for the debt, in such a manner as to harm the interest of the guarantors.”); Burton v. Linotype Co., 556 So.2d 1126, 1127 (Fla. 3d DCA 1989) (“The law in Florida is well settled that a party may not contractually thwart liability for its own fraud.”); TD Bank, N.A. v. ARS Partners Poplar Plains, LLC, No. CV095026521, 2010 WL 745757 at *4 (Conn.Super.Ct. Feb. 2, 2010) (finding language that “[n]o act or omission of any kind on the part of the [b]ank shall in any way whatsoever affect or impair this guaranty,” insufficient to constitute an express waiver of the guarantor’s rights to challenge the lender’s conduct regarding secured collateral). The waiver in this case is distinguishable from the absolute waiver discussed in Von Dunser v. Southeast First National Bank of Miami, 367 So.2d 1094, 1096 (Fla. 3d DCA 1979), where this Court found there was a waiver of the impairment of collateral defense because the guaranty specifically provided that “[n]o act or omission of any kind by the [bjank shall affect or impair this guaranty and the [bjank shall have no duties to [gjuarantors.” (emphasis added).

Reversed.

CORTIÑAS and ROTHENBERG, JJ., concur.

SCHWARTZ, Senior Judge,

dissenting.

In my judgment, the controlling documents in this case are not meaningfully distinguishable from those in Von Dunser v. Southeast First National Bank of Miami, 367 So.2d 1094 (Fla. 3d DCA 1979). I would affirm the judgment below on the authority of that decision.


author: SALTER, J.

text:
    FORTUNE INTERNATIONAL HOSPITALITY, LLC, a Florida limited liability company (n/k/a Sunny Isles Hospitality, LLC), and Tangiers Beach Associates, a Florida general partnership, and Edgardo A. DeFortuna, Petitioners, v. M RESORT RESIDENCES CONDOMINIUM ASSOCIATION, INC., and Chicago Title Insurance Company, a Missouri for-profit corporation, Respondents.
    No. 3D11-846.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.

      Proskauer Rose, and Matthew Triggs, Lisa B. Markofsky, Andrew L. Hoffman, and C. Sanders McNew, Boca Raton, for petitioners.
    Bruce M. Levine, Boca Raton; Lewis Stroud & Deustsch, and Gary Oldehoff, Boca Raton; Becker & Poliakoff, and David H. Rogel, for respondents.
    Before SALTER and FERNANDEZ, JJ„ and SCHWARTZ-, Senior Judge.
   SALTER, J.

The three petitioners, defendants below, developed a mixed-use real estate project that included condominium units and a hotel. The respondent is a condominium association of the 210 residential unit owners. The petition seeks to quash three non-final orders authorizing a receiver to pay the attorney’s fees of the respondent prior to judgment in the underlying lawsuit. We grant the petition and quash the orders.

Facts and Procedural Background

The condominium association sued the developers to establish that the unit owners had a fee simple interest in the highrise structure and the ground beneath it, rather than some lesser property interest. The developers had planned and marketed a condominium-hotel property whereby unit owners would have the right under management and rental agreements to allow the use of their units as hotel rooms, and the property would operate as a “Le Meridien” hotel. The primary issue between the respondent condominium association and the developers in the circuit court lawsuit is whether the condominium units were sold as fee simple interests or as air rights, with others retaining ultimate control over the lower parts of the building and the land beneath it.

The lawsuit began in 2008. In late 2009, the condominium association moved for the appointment of a receiver. Ultimately the parties agreed to an amended order whereby a former circuit judge was appointed to manage and operate the condominium and hotel. The receiver’s powers were detailed in the eight-page order and included the custody and control of all income, disbursements, and records relating to the properties. Of importance to the issues that ultimately brought the parties here, the receiver was authorized to hire counsel and to preserve and protect the hotel and condominium properties, paying such traditional expenses as property taxes, utility charges, and maintenance, while collecting the various types of revenue generated by the hotel and condominium properties.

Thereafter the receiver entered into an agreement with the respondent condominium association whereby the association’s own accountant would hold unit owner assessments in escrow and pay from such funds the condominium-related expenses designated by the association. The escrow agreement included a mechanism for payment of the association’s legal fees upon written approval by the receiver, with no provision for (a) notice to the defendants in the lawsuit or (b) approval by the trial court.

After approximately $180,000 in payments to the association’s attorneys were made, the receiver moved the trial court to approve the escrow agreement. The trial court approved the escrow agreement, but with a proviso that any payments to be made to the association’s attorneys would require prior court approval. The defendants opposed the association’s motion to approve further payments of attorney’s fees and sought disgorgement of those that had been paid to the association’s counsel previously. The trial court denied the disgorgement motion and authorized a further payment of the association’s attorney’s fees that brought the total fees to $345,000. The defendants then sought certiorari here.

Analysis

In order to obtain relief via certiorari, the defendants below are obligated to demonstrate that the orders below depart from the essential requirements of law, cause material injury to them, and effectively leave them no adequate remedy on appeal. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987); Phoenix Ins. Co. v. Trans World Forwarding, Inc., 19 So.3d 430 (Fla. 3d DCA 2009).

In this ease, the orders are a departure from the essential requirements of Florida receivership law, which establishes a court-appointed receiver of property as a neutral conservator of that property pending the court’s disposition of the parties’ competing claims to it. The trial court may not authorize the release to a party of property in dispute and under the protection of the receiver unless that action directly benefits the property in care of the receiver as determined by the trial court. Turtle Lake Assoc., Ltd. v. Third Fin. Servs., Inc., 518 So.2d 959, 961 (Fla. 1st DCA 1988). From that well-established principle it follows that an award of fees to an attorney for one of the parties, proposed to be paid from the receivership assets, would also be prohibited before the disposition of the parties’ competing claims to those assets.

In this case, the plaintiff/respondent argued that the attorneys for the association provided a benefit to the properties by assuring due process for the association and the appropriate expenditure of the funds raised from condominium unit owner assessments. This argument is unavailing, however, as the receiver was appointed for the condominium property and all of the other property connected with the project. Both sides, the association and the developers, claim ownership of the receivership assets. In such a case, there is simply no basis (before an adjudication on the merits) to fund one side’s litigation expenses from the assets held by the receiver.

Nor do we find that such an error can be remedied upon plenary appeal. If one side is able to fund its attorneys’ fees incurred in the lawsuit by reimbursement from the receivership assets, the resultant prejudice cannot be cured after a judgment for that party. Finally, we find no merit in the estoppel argument raised by the respondent. The record establishes that the petitioners objected to the disbursements in question promptly after learning of them, and that they sought disgorgement of those funds paid previously but without disclosure.

Conclusion

When a party itself is paying substantial funds into a receivership, as here, it seems reasonable that some of those funds might be authorized for payment of that party’s attorneys. But the linchpin of a receivership is the principle that a receiver, like the appointing court itself, is a neutral party in the underlying dispute. The receiver’s role is the preservation and protection of the assets in dispute, not as a paying agent for the litigation-related legal expenses of one of the parties. We therefore grant the petition and quash the circuit court orders in question. We do so without prejudice to (a) the ultimate disposition of the parties’ rights to claim or recover attorney’s fees and costs from each other at the conclusion of the lawsuit, and (b) the rights of the petitioners or receiver to seek disgorgement of the attorney’s fees and costs paid to counsel for the respondent pursuant to those orders.

Petition for certiorari granted; orders quashed.

      . A statutory receiver for a corporation or other entity has a somewhat different role and basis for appointment. The receiver in this case was a common law receiver appointed to preserve and protect real and personal property, including those revenues produced by the property during the pendency of the lawsuit.

      . In Sundale Associates, Ltd. v. Moore, 481 So.2d 1300, 1301 (Fla. 3d DCA 1986), this Court held that even a former receiver could not recover his own legal defense costs when one party to the earlier lawsuit alleged that the receiver committed a tort during the receivership, because "those expenses did not arise out of the receivership and could not in any way benefit the receivership estate, as opposed to the receiver individually." The same analysis must surely preclude a claim for fees by a party for payment of its attorney's fees from the receivership assets, as opposed to the receiver’s claim for his or her own attorney’s fees.

      . The three orders were entered March 1, 2011. Two are captioned identically, "Order Granting Receiver’s Motion for Authorization to Pay M Resort Residences Condominium Association, Inc.’s Counsel's Fees and Costs Pursuant to Order Granting Receiver’s Amended Motion for Approval of Interim Easement Parcel Management Agreement and Procedure for Payment of Association Related Expenses.” The third order is captioned "Order on Fortune Defendants’ Amended Motion for Disgorgement and Return of Receivership Funds.”


author: PER CURIAM.

text:
    Alejandro RECIO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2381.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.
    Ricardo Corona, Coral Gables, and Manuel Guarch, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

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


author: RAMIREZ, J.

text:
    Jonathan WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-147.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.
    Joseph S. Rosenbaum, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   RAMIREZ, J.

Jonathan Williams appeals from the summary denial of his motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evidentiary hearing on the merits of Williams’ motion.

Williams was tried and convicted for two counts of armed robbery. Williams did not appeal from the judgment of conviction, but timely filed a motion for postcon-viction relief that alleged ineffective assistance of trial counsel. The trial court summarily denied the motion, resulting in this appeal.

It is well settled that “a defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000). On appeal, we must reverse a summary denial of a legally sufficient motion unless the postconviction record conclusively shows that the defendant is not entitled to relief. Fla. R.App. P. 9.141(b)(2)(A), (D).

Here, Williams’ motion states legally sufficient claims of ineffective assistance of counsel. He alleges that his trial counsel: (a) failed to subpoena and call two of the officers who responded to the alleged robbery; (b) failed to depose the eyewitnesses; (c) introduced hearsay statements of one of the alleged assailants; (d) caused the introduction of a photo line-up; and (e) introduced evidence placing Williams at the scene. The postconviction record does not conclusively refute these claims. Accordingly, we reverse and remand for the trial court to hold an evidentiary hearing on the merits of Williams’ motion.

Reversed and remanded for further proceedings.


author: CORTINAS, J.

text:
    Josette NERELUS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and America’s Dust Busters, Inc., Appellees.
    No. 3D11-95.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2011.

      Jose F. Fons, Miami for appellant.
    M. Elaine Howard, Deputy General Counsel, Unemployment Appeals Commission, for appellees.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   CORTINAS, J.

Josette Nerelus (“Ms.Nerelus”) appeals the final order of the Unemployment Appeals Commission (the “Commission”) affirming Ms. Nerelus’ disqualification from receiving unemployment compensation benefits. We reverse.

On February 1, 2010, Ms. Nerelus received a letter, written in English, from her employer, America’s Dust Busters, Inc. (the “Employer”). Because Ms. Nere-lus neither speaks nor reads English, she had the letter translated, and learned that it was a termination letter. Ms. Nerelus then filed an application for unemployment compensation benefits with the Agency for Workforce Innovation (the “Agency”). The Agency issued a Notice of Determination disqualifying Ms. Nerelus from receiving benefits. Ms. Nerelus filed a timely appeal of the Agency determination and a hearing was held. Although the Employer did not attend the hearing, the Referee, Amanda Klein, found that Ms. Nerelus was disqualified from receiving unemployment compensation benefits, and had been overpaid for the benefits already received. The Referee determined that Ms. Nerelus had voluntarily quit her employment when she failed to inquire further about the letter she had received. The. Commission, on administrative appeal, affirmed the decision of the Referee.

The determination that a claimant voluntarily left employment must be supported by substantial, competent evidence. Garcia v. Wolf in the Woods, 37 So.3d 313, 315 (Fla. 3d DCA 2010). The Employer did not appear at the hearing, and nothing in Ms. Nerelus’ testimony supported the finding by the Referee that she voluntarily quit her employment. Ms. Nerelus testified at the hearing “I was discharged.” When asked about the contents of the letter she received from her Employer, Ms. Nerelus stated that “the letter said that Manny [the owner] is terminating me.” There was no indication in her testimony that she was merely being threatened with possible termination, or that her termination was due to misconduct. As the only evidence presented was that Ms. Nerelus had received a letter informing her that she had been terminated, there was clearly no substantial, competent evidence to support the Referee’s finding that Ms. Nerelus had quit.

The Commission acknowledges that the burden to prove that a claimant either voluntarily quit her employment or was terminated for misconduct is placed on the Employer. Garcia, 37 So.3d at 314. See also Willick v. Unemployment Appeals Comm’n, 885 So.2d 440 (Fla. 2d DCA 2004); Sienkiewicz v. Intrepid Powerboarts, Inc., 774 So.2d 739 (Fla. 2d DCA 2000); Lewis v. Lakeland Health Care Ctr., 685 So.2d 876 (Fla. 2d DCA 1996). However, the Commission points to Sienk-iewicz to support its contention that “[t]he claimant’s own testimony can establish that he or she is not entitled to benefits.” Sienkiewicz, 774 So.2d at 741. Sienkiewicz does not support the Referee’s findings in this case. The Second District illustrated, in Sienkiewicz, the circumstances in which an absent employer can satisfy its burden to show that a claimant either quit or was terminated for misconduct by citing a case in which “the claimant testified that he knew his job required him to maintain a valid driver’s license, and he admitted he lost his job because his license was revoked for driving under the influence.” Id. (citing Freve v. Fla. Unemployment Appeals Comm’n, 535 So.2d 649 (Fla. 1st DCA 1988)). Ms. Nerelus gave no indication of misconduct on her part, and no indication that she quit.

The Commission argues that Ms. Nerelus voluntarily left her employment because, due to her inability to understand the letter she had received, she did not conclude she was terminated. However, the unrebutted evidence in this case shows that Ms. Nerelus understood the letter to be a termination letter. Termination must be found when “the words and actions of the employer would logically lead a prudent person to believe his tenure had been terminated.” LeDew v. Unemployment Appeals Comm’n, 456 So.2d 1219, 1223-24 (Fla. 1st DCA 1984).

In reaching the conclusion that Ms. Ner-elus did not understand the letter, the Referee ignored Ms. Nerelus’ testimony that the letter had been translated for her, and that she clearly understood it to be a termination letter. The Referee appears to have concluded that Ms. Nerelus did not understand the letter on the basis of the Referee’s own failure to grasp Ms. Nere-lus’ inability to understand English. The Referee responded to Ms. Nerelus’ repeated attempts to testify about the contents of the letter by demanding that she read the letter verbatim into the record, which she could not do. When Ms. Nere-lus explained that she could not read English, the Referee asked, “Okay, do you not know what the letter says?” At this point, Ms. Nerelus replied ‘Tes, that is what I am trying to explain to you, to explain to her for me.” Her reply was a clear indication of frustration at the Referee’s refusal to acknowledge Ms. Nerelus’ inability to read English, however, and not a recantation of her testimony that she clearly understood the letter to be a termination letter.

Because the Referee did not have substantial, competent evidence to support the finding that Ms. Nerelus voluntarily quit her employment, we reverse.

Reversed.

      . When asked by the Referee about the reasons for her termination, as indicated in the letter, Ms. Nerelus replied "It [the letter] did not say the reason specifically that I was discharged.” This was the only time during the hearing that the possibility of termination for reasons of misconduct was addressed.


text:
    Mario ECMEMENDIA a/k/a Mario Echemendia, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1289.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2011.
    Rehearing Denied Jan. 27, 2012.
    Alfonso Oviedo-Reyes, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., EMAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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


text:
    STATE of Florida, Appellant/Cross-Appellee, v. Jason Robert MORSE, Appellee/Cross-Appellant.
    No. 5D09-4656.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    James S. Purdy, Public Defender, and Stephanie H. Park, and Steven N. Gosney, Assistant Public Defenders, Daytona Beach, for Appellee/Cross-Appellant.
   PER CURIAM.

Jason Robert Morse was found guilty by an Orange County jury of three counts of attempted second-degree murder of a law enforcement officer, with a firearm, and one count of fleeing or attempting to elude a law enforcement officer at high speed or with wanton disregard. The crimes were part of a crime spree and chase during which Morse committed criminal offenses in both Orange County and Seminole County, Florida. Morse has been separately convicted and sentenced in Seminole County for the offenses he committed there.

Following return of the Orange County verdicts, the trial judge granted Morse a new trial on one of the attempted second-degree murder convictions and on the fleeing and eluding conviction, based upon Morse’s double jeopardy argument. The State appealed this order, but only ehal-lenges the trial court’s determination that conviction on the second-degree murder count violated double jeopardy. As for the fleeing count, the State agrees to the dismissal of this charge on double jeopardy grounds.

On cross-appeal, Morse argues that he is entitled to a new trial on all the second-degree murder convictions based upon fundamental error in the jury instructions on the lesser charge of attempted manslaughter. The State concedes that Morse is entitled to this relief under Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011), but correctly notes that Burton conflicts with the Fourth District’s decision in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So.3d 1262 (Fla.2011). We agree with the State that the trial court erred in its determination that the attempted second-degree murder conviction was barred by double jeopardy, but remand for a new trial on all of the second-degree murder charges as required by Burton.

The Fifth Amendment’s guarantee against double jeopardy “protects against a second prosecution for the same offense after conviction .... [and] against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (footnotes omitted), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Morse argues that under these principles he cannot be convicted of attempted murder for shooting at Officer Reinaldo Rivero, Jr., in Orange County, because he has already been convicted of attempted murder for shooting at Officer Rivero in Seminole County. If the Orange and Seminole County shootings occurred in a single criminal episode, Morse would be correct that the State would be barred from prosecuting him for his conduct in Orange County after procuring the Seminole County conviction. See, e.g., Williams v. State, 959 So.2d 790 (Fla. 2d DCA 2007).

“The test for determining whether two crimes occurred in the same criminal episode is whether there was a temporal break between the crimes, such that the defendant had an opportunity to pause, reflect, and form a new criminal intent.” Beahr v. State, 992 So.2d 844, 846 (Fla. 1st DCA 2008) (citations omitted), abrogation on other grounds recognized in Smith v. State, 41 So.3d 1041 (Fla. 1st DCA 2010). “If there was such a break, then the crimes occurred in separate criminal episodes and may be punished separately.” Id. (citation omitted).

Officer Rivera testified that Morse turned to face toward the rear of his vehicle, shot out the back window, and began firing at him as they travelled on Interstate 4 in downtown Orlando, at approximately Church Street. This shooting is the basis for the Orange County charge. After firing some shots at Rivera and other officers pursuing him, Morse then turned back to face his direction of travel. Officer Rivera testified that Morse repeated this pattern (of turning to fire and then turning back to refocus on the road ahead of him) multiple times as Rivera and others pursued Morse through Orange County and then into Seminole County. Rivera also testified that he observed Morse reload his firearm at some point during this chase. The Seminole County charge stemmed from shots that Morse fired at Rivera after both vehicles crossed into Seminole County. Given the obvious time and distance between the shooting in downtown Orlando and the shooting in Seminole County, and the multiple opportunities that Morse had during the chase through Orange County to pause and reflect on his actions as he repeatedly ceased and then restarted his firing at those pursuing him, we have no difficulty determining that the shooting for which Morse was convicted in Seminole County was a separate criminal episode, for double jeopardy purposes, from the shooting in downtown Orlando. Id.

However, in light of our court’s prior opinion in Burton, we conclude that Morse is entitled to a new trial on all three of the attempted murder charges in this case. Accordingly, we reverse the conviction on the remaining attempted murder charges, and remand for further proceedings consistent with this opinion. In doing so, we certify that this decision conflicts ■with the Fourth District’s decision in Williams.

REVERSED AND REMANDED; CONFLICT CERTIFIED.

PALMER, LAWSON and JACOBUS, JJ., concur.

      . The Seminole County convictions stemmed from Morse’s robbery of a Seminole County Walgreen’s pharmacy at gunpoint, the armed carjacking of a car from two women outside that building, and an ensuing high-speed chase during which Morse fired upon Seminole County sheriff's deputies, Orlando and Lake Mary police officers, and State Highway Patrol troopers.

      . The State concedes to dismissal of the fleeing charge on double jeopardy grounds because Morse was already convicted of this same offense in Seminole County related to the chase that occurred in both counties. We accept this concession, although we question whether double jeopardy principles require dismissal of the charge. Cf. Murphy v. State, 723 So.2d 313 (Fla. 1st DCA 1998).

      . The Fifth Amendment of the United States Constitution provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb.'' U.S. Const. Amend. V. Likewise, Article I, section 9, of the Florida Constitution provides a similar protection: “No person shall ... be twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const.

      .The other attempted murder charges, in both counties, each relate to a different victim.


author: CONNER, J.

text:
    Elizabeth MARSHALL-BEASLEY, Appellant, v. James W. BEASLEY, Jr., Appellee.
    No. 4D09-4106.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2011.

      Amy D. Shield of Amy D. Shield, P.A., Boca Raton, for appellant.
    Robert J. Hauser of Beasley, Hauser, Kramer, Leonard & Galardi, P.A., West Palm Beach, and Odette Marie Bendeck of Fisher & Bendeck, P.A., West Palm Beach, for appellee.
   CONNER, J.

Elizabeth Marshall-Beasley (“Former Wife”) appeals the final judgment dissolving her marriage to James W. Beasley, Jr., (“Former Husband”) following trial as to equitable distribution and bridge-the-gap alimony. Specifically, she challenges six decisions by the trial court: (1) the award of the marital home to her, (2) the amount of employment income imputed to her, (3) the award of bridge-the-gap alimony instead of permanent periodic alimony, (4) the determination of jewelry gifts by Former Husband to be a marital rather than nonmarital asset, (5) Former Husband’s post-petition spending was not waste, and (6) Former Husband’s pre-petition advance distribution of his 401 (k) account was taxed properly. We affirm.

Factual Background

The parties were married in 1986. Their marriage lasted 21 years, and they had no children. Former Husband, 66 at the time of trial, historically has earned $400,000 a year as a litigation attorney; he plans to retire in mid-2018 at 70. Former Husband is a 90% shareholder in a small litigation law firm with a negative net worth. He is the only member of the firm who personally guarantees the firm’s lease and line of credit. At the time of trial, Former Husband personally was indebted to Northern Trust for $618,507 that he had borrowed and loaned to the firm.

Former Wife, 50 at the time of trial, has impressive educational and professional credentials. She has a degree from Princeton University in urban policy and planning. During the marriage, she obtained a degree in drafting and design and a master’s degree in landscape architecture. She has been on the State Board of Landscape Architecture since 2002, the highest state regulatory body in the profession, and has served as the chair of that organization.

From 2001 until their separation, the parties enjoyed a comfortable lifestyle. Their pre-petition expenses exceeded their combined income from investments and employment, which required them to invade the principal of their investment accounts. In mid-June, 2008, Former Husband vacated the marital home in Palm Beach (“Bahama Lane”). In August, 2008, he withdrew $450,000 from his 401 (k) account to buy a separate local residence. The amount of the funds after income tax was $351,112. Former Husband used a portion of these funds as a down payment on a house in West Palm Beach (“Rugby Road”) in October, 2008. Former Wife petitioned for dissolution on September 1, 2009, and sought exclusive possession of Bahama Lane. Prior to trial, Former Wife decided that she wanted to buy a $1.4 million cottage in Palm Beach and to sell Bahama Lane. Given the stock market and real estate plummets, costs, and depreciation, approximately $9 million marital assets remained for distribution between the parties.

Following trial, the judge awarded Bahama Lane to Former Wife and the Nantucket vacation home to Former Husband; the houses were approximately of equal value. The judge equally divided the assets and gave Former Husband and Former Wife each $4.5 million in real and personal property, including accounts and investments. The judge found Former Wife’s reasonable after-tax needs to be $10,000 per month, and her expected income after taxes to be $12,166 per month, including $50,000 per year of professional income after taxes. The trial judge awarded $4,000 per month bridge-the-gap alimony for a year to give Former Wife time to develop her professional earning ability and to liquidate Bahama Lane.

Legal Analysis

We review a trial court’s equitable distribution of marital assets and an award of alimony for abuse of discretion. Lule v. Lule, 60 So.3d 567, 569 (Fla. 4th DCA 2011); Rafanello v. Bode, 21 So.3d 867, 869 (Fla. 4th DCA 2009). By statute, a trial court must formulate a complete equitable distribution: “In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1).” § 61.075(3), Fla. Stat. (2009) (emphasis added). We apply these review standards in addressing the issues on appeal.

Bahama Lane Residence

Although the trial judge had invited the parties to submit a complete written agreement of equitable distribution, they did not do so. The Joint Equitable Distribution Update that was provided to the judge on the first day" of trial testimony was a listing of assets that the parties had valued and those left for the court to determine. The valuations to which the parties stipulated were limited to real property and brokerage accounts and not all their assets for equitable distribution. The judge ascertained that the parties understood that the equitable distribution was to be decided by the court:

... I’m not bound at all in the work I’m asked to do on a trial by the request you’ve made about how you would like to have things equitably distributed. That’s something I have to figure out, and I have to have the ability to work with whatever assets and liabilities there are to make it come up fairly and equitably.

Regarding Bahama Lane, Former Wife argues that she and Former Husband entered into a joint stipulation providing that the marital home would go to Former Husband and that the trial judge erred by ignoring their stipulation. She asserts that she cannot afford Bahama Lane’s overhead and that it will not be easy to sell the house, even with aggressive marketing. The parties, however, never “unequivocally agreed or stipulated to the court” to award Bahama Lane to Former Husband. Farrell v. Farrell, 661 So.2d 1257, 1259 (Fla. 3d DCA 1995). A binding agreement to convey real property from the marital estate to one of the parties requires a writing signed by the parties, or an explicit bilateral stipulation on the record before a court reporter. See § 725.01, Fla. Stat. This alleged joint stipulation had neither, and no agreement was “entered and filed” in accordance with section 61.075(3).

In determining Former Wife’s property and support claims, the trial judge reasoned that she could liquidate Bahama Lane, valued at $1.85 million, within the bridge-the-gap period. Thereafter, Former Wife could relocate, as did Former Husband, to a lower-priced home free of debt. She would be able to support herself with investment income and the sale proceeds from Bahama Lane. Because there was no valid agreement conveying Bahama Lane to Former Husband, the trial judge did not abuse his discretion in making it part of the overall distribution of the marital estate assets.

Imputed Income

Former Wife argues that the final judgment lacks the required findings to impute to her annual income of $50,000, when she never grossed more than $25,000 a year as a landscape architect. “The standard of review of a court’s decision to impute income is whether it is supported by competent, substantial evidence.” Mount v. Mount, 989 So.2d 1208, 1209 (Fla. 2d DCA 2008). Former Wife has a Princeton undergraduate degree, two postgraduate degrees, and 25 years of executive business experience.

More than 20 years ago, Former Wife earned $40,000 to $50,000 annually in top managerial jobs. Former Wife’s estimation of her earning capacity, as reported on her professional insurance applications, declined after her first consultation with a divorce attorney. Her last work for a paying client was in 2007. By mid-2009, Former Wife represented that she might be mentally or physically unable to work, although she regularly went to her office. When Former Husband sought discovery on Former Wife’s health issues, they were withdrawn two months before trial.

Former Wife’s hourly billing was below market rate. Despite her extensive marketing background, Former Wife did not create a portfolio, have a website, or photograph her work, and she did minimal advertising and marketing. Her failure to promote herself through standard marketing avenues inhibited her ability to acquire clients, which depressed her income. Jennifer Tighe, a landscape architect and acquaintance of Former Wife, testified at trial that it was important for landscape architects to be aggressive in their marketing efforts in the current economy. She further testified that Former Wife had an advantage procuring government contracts, because Former Wife’s firm is considered to be both minority-owned and a small business.

Former Husband had encouraged Former Wife to advertise and had persuaded her to issue a press release, at his expense, using his firm’s public relations company. Former Wife, however, refused to have photographs taken of her work. She had not joined professional organizations, such as the local chapter of the American Institute of Architects. She also did not take advantage of longstanding contacts for which she had worked previously, such as employment with a worldwide entertainment enterprise and former Florida governor.

Former Husband’s vocational expert testified that Former Wife was well qualified as a landscape architect and had skills that exceeded a typical landscape architect. The median income for landscape architects was $59,638 at the time of trial. Former Wife’s credentials and experience did not support her contention that she could perform at only the lowest percentile of licensed landscape architects. Former Husband’s vocational expert concluded that Former Wife could earn $60,000 at the time of trial as a sole practitioner, which would increase to $112,000 to $150,000 in the near future. If she could not succeed practicing alone, then Former Wife could expect to earn $72,000 as a firm employee. The vocational expert also had located advertisements for employment for which Former Wife was qualified.

Former Wife had not sacrificed her career to rear children, to maintain a home, or to promote Former Husband’s career. Instead, by working full-time as a litigation attorney, Former Husband had financed and encouraged Former Wife’s pursuit of her landscape architecture degree and license. He completely had supported her while she was in graduate school and studied for her license exam. He further had provided her a “lovely” office and encouraged her to develop her practice after completing her degree.

“A court may impute income where a party is willfully earning less and the party has the capability to earn more by the use of his best efforts.” Schram v. Schram, 932 So.2d 245, 249 (Fla. 4th DCA 2005). This court considered imputation of earning $38,000 a year to a former spouse who voluntarily terminated her employment with a retail store to be supported by competent substantial evidence. Zarycki-Weig v. Weig, 25 So.3d 573, 575 (Fla. 4th DCA 2009). In considering imputation of income, “the court must determine whether the subsequent unemployment resulted from the spouse’s pursuit of her own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.” Id. (citation, internal quotation marks, and alteration omitted). In affirming, this court did not “second-guess” the trial court’s finding that the former wife’s “evidence of her inability to work was not credible.” Id.

In this case, the evidence showed that Former Wife chose not to use her degrees, license, and 25 years of marketing experience to actualize her earning capability. In the final judgment, the trial judge concluded: “There is no question from the evidence that the wife has made little or no effort to earn an income consistent with the level of her work experience, education, and ability for years prior to and during the pendency of this divorce litigation.” The judge’s finding that Former Wife is capable of earning $50,000 a year is reasonable and supported by competent substantial trial evidence. See Fitzgerald v. Fitzgerald, 912 So.2d 363, 368 (Fla. 2d DCA 2005) (finding, when former wife had an earning history of up to $57,000 a year, a vocational expert’s testimony was competent substantial evidence that former wife could be imputed $40,900 earning capability a year).

Bridge-the-Gap Alimony

Based on 21 years of marriage, Former Wife contends that the trial judge erred in not awarding her permanent periodic alimony. She further contends that the bridge-the-gap alimony of $4,000 a month for one year, two-thirds of which is required to maintain Bahama Lane, is insufficient to provide financial stability until her investments begin to generate adequate funds, and she can establish her landscape architecture business. “A trial court’s decision on whether to award permanent periodic alimony is subject to an abuse of discretion standard of review.” Hornyak v. Hornyak, 48 So.3d 858, 861 (Fla. 4th DCA 2010); see Mondello v. Torres, 47 So.3d 389, 396 (Fla. 4th DCA 2010) (noting that “the nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court” (citation, internal quotation marks, and alteration omitted)); § 61.08(2), Fla. Stat. (2009). This decision is based on “the needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments.” Leonardis v. Leonardos, 30 So.3d 568, 570 (Fla. 4th DCA 2010) (citation and internal quotation marks omitted). “The criteria to be used in establishing this need include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.” Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000) (citation and internal quotation marks omitted).

“The standard-of-living is not a super-factor” over the other considerations. Donoff v. Donoff, 940 So.2d 1221, 1225 (Fla. 4th DCA 2006); see Pirino v. Pirino, 549 So.2d 219, 220 (Fla. 5th DCA 1989) (“Indeed, it is the exceptional case when a couple’s resources and earnings prove sufficient to maintain two independent households in the same manner as the original household.”). “[T]he parties’ standard of living during the marriage is not a useful guide in awarding alimony where the parties lived beyond their means,” as in this case. Nichols v. Nichols, 907 So.2d 620, 623 (Fla. 4th DCA 2005) (citation and internal quotation marks omitted); see § 61.08(2)(a), Fla. Stat.

The trial judge considered the section 61.08(2) factors. Former Wife claimed that she needed $12,000 a month in alimony, based on her assertion that she could earn only $25,000 a year. Her alleged needs included the purchase of clothing, a personal trainer, daily maid service, flowers, gifts, club dués and charges, vacations, beauty salon, and spa. “Clearly the husband cannot be required to maintain the wife’s standard of living when this maintenance stretches beyond his financial capacity.” Pirino, 549 So.2d at 220. Alimony is not intended “to fund the enjoyment of every little luxury enjoyed before divorce.” Levine v. Levine, 964 So.2d 741, 743 (Fla. 4th DCA 2007).

In contrast to permanent periodic alimony, “[b]ridge-the-gap alimony is designed to ease the transition of a spouse from married to single life.” Homyak, 48 So.3d at 862. It “is most appropriately awarded in instances where the receiving spouse is already employed, possesses adequate employment skills, and requires no further rehabilitation other than a brief time to ease the transition to single life.” Cohen v. Cohen, 39 So.3d 403, 406 (Fla. 4th DCA 2010) (citation and internal quotation marks omitted); see Wofford v. Wofford, 20 So.3d 470, 474 (Fla. 4th DCA 2009) (“Bridge-the-gap alimony serves to assist a spouse already capable of self-support during the transition from being married to being single.” (citation, internal quotation marks, and alteration omitted)). “Where no rehabilitative plan is presented, a bridge-the-gap award must have a relatively brief durational limit.” Hornyak, 48 So.3d at 862; see Mills v. Mills, 948 So.2d 885, 886 (Fla. 3d DCA 2007) (“Bridge-the-gap alimony is to assist a spouse with any legitimate, identifiable, short-term need.” (citation, internal quotation marks, and ellipsis omitted)). The Fifth District Court of Appeal en banc affirmed a twelvemonth, bridge-the-gap alimony, where “the former wife ha[d] adequate employment skills and an exemplary employment record” as not being an abuse of discretion. Engesser v. Engesser, 42 So.3d 249, 252 (Fla. 5th DCA 2010) (en banc).

In the final judgment, the trial judge noted that Former Wife has a net worth of $4.5 million with no marital debts. In addition, Former Husband’s income will be substantially reduced when he retires in 2013 at 70. The parties had no children, and Former Wife’s impressive education, marketing experience, and her own landscape architecture business, as well as being younger with more earning years than Former Husband, would enable her to supplement her income to provide for a suitable standard of living. This court has recognized that “[djisparity in income alone does not justify an award of permanent periodic alimony” and that “[a]n award of permanent alimony is improper where the evidence does not reflect permanent inability on the part of the wife to become self-sustaining.” Rosecan v. Springer, 845 So.2d 927, 929, 930 (Fla. 4th DCA 2003) (citation and internal quotation marks omitted). There was no abuse of discretion in the trial judge’s awarding Former Wife one year of bridge-the-gap alimony and not awarding her permanent periodic alimony.

Jewelry Gifts

Former Wife contends that a portion of her jewelry collection was a non-marital asset, based on a deed of gift given to her by Former Husband. It is undisputed by the parties that all of Former Husband’s jewelry gifts to Former Wife were purchased with marital funds. “Marital assets” include “[i]nterspousal gifts during the marriage.” § 61.075(6)(a)l.c., Fla. Stat. (2009); see Ruiz v. Ruiz, 548 So.2d 699, 699-700 (Fla. 3d DCA 1989) (reversing trial court for failing to treat the uncontroverted purchase of jewelry with marital assets as marital property subject to equitable distribution and citing § 61.075 relating to interspousal gifts as declaratory of Florida law). “Under well-established statutory and case law, an in-terspousal gift during the marriage is a marital asset.” Maddox v. Maddox, 750 So.2d 693, 694 (Fla. 1st DCA 2000); cf. Gardner v. Gardner, 452 So.2d 981, 983-84 (Fla. 5th DCA 1984) (“Separate property of a spouse includes assets of one spouse acquired from a source outside or unconnected with the marriage, such as by inheritance, property owned prior to marriage, or gifts from third parties.”). Any gift of jewelry from Former Husband to Former Wife bought with marital assets remains a marital asset. The alleged written deed, which was not admitted into evidence, would confirm solely that an in-terspousal gift was made. Former Wife introduced no evidence showing an intent to remove the jewelry from the marital estate. Her assertion that the jewelry is nonmarital property is contrary to the plain language of section 61.075(6).

Post-petition Spending

Former Wife had sought an equalization credit of approximately $300,000 after distribution of all assets for Former Husband’s alleged post-petition spending. Former Wife, however, failed to establish that any of Former Husband’s post-petition spending constituted waste. The trial judge concluded that Former Wife’s claim was “not credible” and “not supported by the evidence,” because there was “approximately equal non-wasteful spending by both parties.” Therefore, no credit was “given for the spending differential between the husband and the wife on non-litigation subjects during the pendency of this case.” On appeal, Former Wife asserts that she is entitled to a $73,567 credit for Former Husband’s post-petition spending, based on Former Husband’s concession, which he denies. Because the trial judge did not abuse his discretion in concluding that Former Wife was not eligible for any equalizing post-distribution payment from Former Husband for post-petition spending, we will not disrupt the court’s equitable distribution with an additional monetary credit, when the trial judge found none of Former Husband’s post-petition spending to be waste. See Bush v. Bush, 824 So.2d 293, 294 (Fla. 4th DCA 2002) (recognizing error to include as part of the equitable distribution scheme a portion of stock options husband had depleted during dissolution proceedings to satisfy couple’s financial obligations).

Pre-petition í01(k) Advance Distribution

Former Wife argues that the trial judge erred in finding that Former Husband’s advance distribution of his 401 (k) account was $351,112 rather than $450,000. When Former Husband withdrew $450,000 from his 401(k) to purchase Rugby Road, his bank was required to withhold almost $100,000 for income taxes. Former Wife contends that Former Husband depleted his 401 (k) account as a marital asset.

Former Wife received a credit for the net amount of the withdrawal of $351,112 in the equitable distribution. The withdrawal occurred pre-petition, and the resulting income tax liability was incurred at that time. The bank properly withheld income taxes on Former Husband’s withdrawal from his 401 (k) account. Former Husband’s certified public accountant testified at trial that there was no depletion because Former Husband was beyond retirement age and his work expectancy. Therefore, his 401 (k) account necessarily was going to be withdrawn and taxed. Even Former Wife’s certified public accountant viewed Former Husband’s tax-deferred retirement assets as an immediately accessible source of income.

In the final judgment, the trial judge “accepted] the treatment accorded the 401 (k) withdrawal by husband’s accounting expert ... as being equitable and accurate.” In an equitable distribution of marital assets, “[t]he trial court’s findings are entitled to the presumption of correctness accorded to trial court judgments where the credibility of witnesses is a factor.” Rafanello, 21 So.3d at 869 (citation and internal quotation marks omitted). Based on the accounting testimony, the trial judge did not err in determining that Former Husband’s advance distribution of his 401(k) account was $351,000 instead of $450,000, because of the deferred taxes withheld by the bank.

We affirm the trial court’s final judgment as to all issues challenged on appeal.

Affirmed.

WARNER and POLEN, JJ., concur.

      . In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
      (a) The standard of living established during the marriage.
      (b) The duration of the marriage.
      (c) The age and the physical and emotional condition of each party.
      (d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
      (e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
      (f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
      (g) All sources of income available to either party.
      The court may consider any other factor necessary to do equity and justice between the parties.
      § 61.08(2), Fla. Stat.


author: POLEN, J.

text:
    Harry SALTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1397.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2011.
    Rehearing Denied Jan. 24, 2012.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Harry Salter, appeals the judgment and ten-year sentence imposed on him by the trial court. Salter was charged by information with: I) robbery with a firearm; II) carrying a concealed firearm; III) fleeing or attempting to elude marked police car; and IV) possession of marijuana less than twenty grams. After being convicted, Salter contended the trial court denied his request to be sentenced as a youthful offender because he chose to go to trial instead of pleading guilty. While the court has discretion to sentence someone as a youthful offender, it is improper to decline one’s request because he or she exercised a constitutional right to trial. We therefore affirm Salter’s conviction, but remand the matter for re-sentencing before a different judge for consideration of the facts to determine if a youthful offender sentence is proper, rather than basing the decision on Salter’s plea.

On March 19, 2009 at approximately 3:30 a.m., two males, dressed in black clothes and black masks, entered the Cumberland Farms gas station in Palm Beach County. They displayed a gun and pointed it at an employee. The employee was told to lie down and was asked for the key to open the safe. Once the males had access to the safe, they took rolls of change and bills, ran toward the door to leave, and turned around and shot once before leaving, striking the counter.

On the night of the incident, the on-duty road patrol deputy noticed a black Crown Victoria driving northbound on State Road Seven, just north of Southern Boulevard. From his position in a parking lot on the corner of Southern and State Road Seven, the deputy noticed that the Crown Victoria had a broken left taillight, displaying a white portion of the light, which is an “equipment violation.” The deputy initiated a stop by activating his red and blue lights atop his vehicle. The vehicle did not pull oyer, but entered a Wal-Mart parking lot and continued to move slowly. Ultimately, the deputy and back-up patrol units were able to stop the vehicle. The driver, Samuels, was ordered to exit the vehicle and lie down next to it. The deputy opened the back door of the vehicle and noticed Salter in a crouched down position. Salter was removed from the vehicle and a search was conducted. The officers found a firearm and money in the vehicle. Officers also found a baseball cap, beige pants, two black t-shirts, and Salter’s wallet in the vehicle, and a pair of jeans, a ski mask, and Samuel’s wallet in the trunk.

Salter was taken to the police station for questioning, at which time he told officers “he was just picked up from his” girlfriend’s house and getting a ride home to Belle Glade. Salter alleged that he noticed the firearm in the vehicle and asked the driver about it, to which he responded that it belonged to “Willy,” a passenger in the vehicle who evaded officers during the traffic stop. Salter was also asked if he knew how the money got into the vehicle and he replied he did not know. However, in a second statement given to officers, Salter identified Willy Kitchen as a participant in the robbery of the Cumberland Farms gas station store. Salter also provided contradictory statements regarding his presence at the robbery. In his first statement, Salter told officers that he was picked up after the robbery and was not involved in the crime. Later, he explained that he went inside the store to purchase a bottle of water and a cigar and that as he was exiting the store, Samuels and Kitchen were entering. He also provided that he drove the vehicle after the robbery.

Salter moved to suppress evidence seized during the traffic stop, providing it was the product of an unlawful seizure of his person. The trial court denied the motion to suppress, finding that “the stop of the vehicle and detention and arrest of the driver was obviously entirely lawful and appropriate.” Salter also filed a motion for judgment of acquittal, which the trial court denied as to count I, but granted as to count II. In addition, Salter filed proposed special jury instructions regarding the definition of “circumstantial evidence,” but the court refused to grant Salter’s request and did not instruct the jury in accordance with Salter’s proposal. The jury found Salter guilty of robbery with a firearm, as charged in the information. Salter filed a motion for post-verdict judgment of acquittal, which was denied by the trial court. This appeal followed.

Salter’s Conviction

“The standard of review on a motion for judgment of acquittal is de novo.” Wiley v. State, 60 So.3d 588, 590 (Fla. 4th DCA 2011). An appellate court, generally, “will not reverse a conviction that is supported by competent substantial evidence.” Id. If the State is unable to show evidence so that a “jury can exclude every reasonable hypothesis except that of guilt,” the motion for judgment of acquittal should be granted. Id. at 591. The State has the burden of showing evidence which refutes the defendant’s version of the events, and once the State shows such evidence, it is the jury’s role to determine the sufficiency of the evidence as to the exclusion of “every reasonable hypothesis of innocence beyond a reasonable doubt.” Id.

Salter argued that the evidence in this case was insufficient to prove that he was guilty of robbery and that the State failed to prove he intended to participate in the robbery. The State contended that Salter confessed to being present at the store where the robbery took place, that surveillance video further proved he was present, and that direct evidence, coupled with circumstantial evidence, was enough to support his conviction. The surveillance video showed Salter enter the store, buy a drink, and exit the store just prior to two men entering the store and committing a robbery. Salter told officers varying stories, but never confessed to participating in the robbery and, instead, confessed to driving the vehicle after the robbery.

Section 777.011, Florida Statutes, provides that a principal in the first degree is one who “commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed.” § 777.011, Fla. Stat. (2009). The Second District Court of Appeal defined “aid and abet” as “help[ing] the person who actually committed the crime by doing or saying something that caused, encouraged, incited or assisted the criminal.” Gale v. State, 726 So.2d 328, 329 (Fla. 2d DCA 1999). “‘Mere presence at the scene, including driving the perpetrator to and from the scene or a display of questionable behavior after the fact, is not sufficient to establish participation.’ ” Id. (quoting Valdez v. State, 504 So.2d 9, 10 (Fla. 2d DCA 1986)). The elements of aiding and abetting — assisting the actual perpetrator in some way and intent to participate — “may be proven by a combination of surrounding circumstances from which a jury can reasonably infer a defendant’s guilt.” Parker v. State, 795 So.2d 1096, 1099 (Fla. 4th DCA 2001).

The evidence here would allow a jury to infer that Salter entered the store just minutes prior to the robbery to purchase a drink and, presumably, “case” the store. In one of his statements, Salter confessed to being present, waiting for the robbery to be completed, and driving the vehicle away from the scene. Thus all that needed to be determined to show that Salter aided and abetted was intent to participate. This court held in Shaw v. State that prior knowledge of a plan and transportation for the principal(s) is sufficient evidence to overcome a judgment of acquittal. 824 So.2d 265, 270 (Fla. 4th DCA 2002). Additionally, intent to participate in a crime is a question for the jury and a trial court properly denies a motion for judgment of acquittal where an issue remains for the jury to decide. See Lewis v. State, 22 So.3d 753, 758 (Fla. 4th DCA 2009); Washington v. State, 766 So.2d 325, 327 (Fla. 4th DCA 2000).

Evidence was presented which placed Salter at the scene of the crime and showed his participation at least in fleeing from the robbery. Further, Salter’s varying stories, eventual confession that he drove the vehicle after the robbery, and the surveillance video which showed Salter looking around the store provided evidence which could have resulted in a jury’s finding that any reasonable hypothesis of innocence was excluded. We hold that the trial court properly denied Salter’s motion for judgment of acquittal because the evidence — both direct and circumstantial— was sufficient so that the jury could have properly determined that Salter participated in, and intended to participate in, the actual crime.

Jury Instruction

Salter argued that the jury should have been instructed regarding circumstantial evidence and that the court’s failure to instruct the jury and to, alternatively, allow defense counsel to argue the test for circumstantial evidence to the jury was erroneous. This court has held that the instruction on circumstantial evidence was eliminated and that a trial court may, in its discretion, opt to give a circumstantial evidence special instruction if the court feels it is necessary. Perdue v. State, 421 So.2d 816, 816 (Fla. 4th DCA 1982).

Here, the trial court read the standard instructions and Salter did not show how failure to specially instruct the jury as to circumstantial evidence would be an abuse of discretion. Salter argued that the “peculiar facts” of this case created a necessity for instruction, yet never specified which facts would have created such a need. Without a showing of how the trial court abused its discretion, failure to read a special jury instruction is not erroneous. We therefore hold that the trial court’s decision to not read a special instruction regarding circumstantial evidence was not an abuse of discretion.

Sentencing Error

“Because a motion to correct a sentencing error involves a pure issue of law, our standard of review is de novo.” Kittles v. State, 31 So.3d 283, 284 (Fla. 4th DCA 2010). Salter argued that the trial court erred in its'denial of sentencing him as a youthful offender when Salter was nineteen years old at the time of the offense, twenty years old at the time of the sentencing, and had minimal participation in the crime. Salter further argued that the trial court declined to sentence him as a youthful offender because he entered a plea of not guilty and exercised his constitutional right to a jury trial. The State contended that the trial court, after reviewing criteria, may choose to decline to sentence someone as a youthful offender, even if he or she is qualified as such.

The State relied on the Second District Court of Appeal case, Nolte v. State, to support its position that “[i]t is not an abuse of discretion for a trial court, after reviewing the criteria, to decline to sentence a statutorily qualified person as youthful offender.” 726 So.2d 307, 309 (Fla. 2d DCA 1998). Here, the trial court stated that “the youthful offender, the lighter sentence, all of that is for people who plead; it’s not for people who go to trial like this fellow did.”

Additionally, the court explained that it would not “go along with” Salter’s request because he did not take responsibility and help the police or agree to a deal with the prosecutor, but instead just said he wanted to go to trial.

A defendant has the right to maintain his or her innocence and have a trial by jury.... The fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt.

Holton v. State, 573 So.2d 284, 292 (Fla.1990).

Here, the trial court reasoned that Salter chose to go to trial rather than plead guilty, which led to the court’s denial of his request to be sentenced as a youthful offender. Thus, the exercise of Salter’s constitutional right to a trial by jury resulted in a harsher sentence. While it is within the court’s discretion to sentence someone as a youthful offender, it is improper to decline one’s request because he or she opted to plead not guilty and request a jury trial. We affirm the conviction by the trial court, but remand the matter for resentencing before a different judge so the facts of this case can be considered in the determination of whether a youthful offender sentence is proper.

Affirmed in part; Reversed in paH.

CONNER, J„ and GILLESPIE, KENNETH L., Associate Judge, concur.


text:
    Alfonso PEDRAZA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-872.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
    Alfonso Pedraza, pro se.
   PER CURIAM.

Alfonso Pedraza appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied 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 POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


author: LEVINE, J., Associate Judge.

text:
    ALPINE FRESH, INC., etc., Appellant, v. Thomas E. WASHBURN, etc., et al., Appellees.
    No. 3D10-3076.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 2011.
    Rehearing Denied Jan. 19, 2012.

      Ted H. Bartelstone; Michael Schiffrin, Miami, for appellant.
    Cole, Scott & Kissane, and Scott A. Cole, Anne C. Sullivan, and Scott A. Bass-man, Miami, for appellees.
    Before CORTIÑAS and ROTHENBERG, JJ., and LEVINE, Associate Judge.
   LEVINE, J., Associate Judge.

This appeal presents the issue of whether the settlement agreement between Appellant Alpine Fresh and Zurich American Insurance Company, which released Zurich from liability, also covered Appellees. We conclude the language within the settlement agreement was broad enough to cover Appellees and thus conclude the trial court correctly granted summary judgment in favor of Appellees.

In February 2009, Appellant filed a second amended complaint alleging it retained Appellee Thomas Washburn and his employer, Appellee Wilson, Washburn & Forster, Inc., to procure insurance, but that Appellees failed to obtain adequate insurance for Appellant. Specifically, Appellant, an importer of fruits and vegetables, alleged that Appellees failed to provide adequate insurance coverage to include business interruption coverage and to obtain a marine insurance policy to protect and indemnify Appellant for loss to inventory, either located off-premises or in shipment. Appellant alleged a cause of action for professional negligence against Appel-lees.

• Appellees moved for summary judgment, asserting that because Appellant, by an October 1, 2007, Settlement Agreement and Full Release of All Claims, previously had released Zurich, it inherently also had released Appellees from any and all claims Appellant could have asserted against them. After a hearing, , the trial court found that Appellees were agents of Zurich, and, as such, were released from liability. The trial court granted summary judgment in favor of Appellees. This appeal ensues.

The standard of review of an order granting summary judgment on an issue of law is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Appellant claims that Appellees were not released as a result of the settlement between Zurich and Appellant, since Appellees were not agents of Zurich. Appellant claims Appellees merely were insurance brokers who serviced several lines of insurance, including Zurich. The distinction between an insurance agent and insurance broker is pivotal in determining what acts are imputable to the insured or insurer. See Essex Ins. Co. v. Zota, 985 So.2d 1036, 1046 (Fla.2008) (stating that “acts of an agent are imputable to the insurer, and acts of a broker are imputable to the insured”) (quoting 3 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 45:1 (3d ed.2007)).

The record is clear Appellees acted as, and were understood to be, agents of Zurich. Of most importance is the settlement agreement itself. It said in pertinent part:

COME NOW, ZURICH AMERICAN INSURANCE COMPANY OF ILLINOIS, on behalf of its agents, servants, successors, assigns, administrators, subsidiaries, independent adjusters, experts, parent and related corporations and/or business organizations of any kind, and attorneys (hereinafter collectively referred to as “ZURICH”), and ALPINE FRESH, INC, ... does hereby remise, release, acquit, and forever discharge ZURICH from any and all claims, actions, causes of actions, demands, rights, damages, ... loss of services, expenses, compensation, and obligations towards ALPINE FRESH whatsoever, which ALPINE FRESH now has or which may accrue on account of, or in any way growing out of any and all known and unknown, foreseen and unforeseen claims, made by ALPINE FRESH ... and/or relating to any assertions, allegations or claims that could be brought in any action, including but not limited to any claim for breach of contract, anticipatory or otherwise, against ZURICH.

Therefore, the case rests solely on our interpretation of the above plain language of the release between Zurich and Appellant. See Philip Morris Inc. v. French, 897 So.2d 480, 488 (Fla. 3d DCA 2004) (“Courts are required to construe a contract as a whole and give effect, where possible, to every provision of the agreement.”). When we consider the above plain language, we conclude the release language is broad enough to include Appel-lees acting as representatives and agents of Zurich.

Appellees were “general lines agents,” as defined in section 626.015(5)(a)-(e), Florida Statutes (2010), for various insurance companies including Zurich. As insurance agents, they had the authority to bind Zurich when writing a policy for a prospective insured. Although Appellees sold other lines of insurance besides Zurich, whether a broker is an agent of the insurer or the insured depends on the facts of the particular situation. United Fire & Cas. Ins. Co. v. Garvey, 419 F.3d 743, 746 (8th Cir.2005). See also U.S. Underwriters Ins. Co. v. Manhattan Demolition Co., 250 A.D.2d 600, 672 N.Y.S.2d 384, 385 (N.Y.App.Div.1998) (“[A] broker will be held to have acted as the insurer’s agent where ‘[tjhere [are some] ... facts from which a general authority to represent the insurer may be inferred.’ ”) (citation omitted).

In this case, the Zurich Commercial Business Authority and Commission Schedule reflects that Zurich clearly designated Appellees as the “agent for Zurich Commercial Business Unit,” providing Ap-pellees with the necessary authority from Zurich to “write the lines of business.” See Essex, 985 So.2d at 1046-47 (“[A]n agent licensed to sell insurance products for a variety of insurers as an independent insurance agent, may still be considered the agent of an insurer if the insurer has a written agency appointment agreement expressly authorizing the agent to transact business on behalf of the insurer as its agent.”) (emphasis omitted). Additionally, Alpine employees understood Washburn was a representative of Zurich. See Black’s Law Dictionary, 1416 (9th ed.2009) (defining “agent” as interchangeable with “representative”). Maria Alvarez, the Chief Financial Officer for Appellant, stated that Washburn signed the insurance policy as a “representative of Zurich,” and it was her understanding that Washburn was, in fact, a “representative of Zurich.” Further, Jose Sanchez, one of the owners of Appellant, confirmed that Washburn signed on behalf of Zurich as a “representative.” Sanchez concluded, “I would take it that he’s a representative agent or broker.”

The record, being replete with evidence to conclude that Appellees were an agent of Zurich and thus Appellees’ actions are imputable to Zurich, we conclude the settlement agreement between Appellant and Zurich also covered Appellees and affirm the summary judgment granted by the trial court.

Affirmed.