text:
    EMPIRE WORLD TOWERS, LLC, et al., Appellants, v. CDR CRÉANCES, S.A.S., Appellee.
    Nos. 3D11-155, 3D11-159.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Rehearing Denied July 3, 2012.

      See also 2010 WL 4962849.

      Holland & Knight, LLP, and Rodolfo Sorondo, Jr., and Christopher N. Bellows, for appellants Leon Cohen, Maurice Cohen, and Sonia Cohen.
    Devine Goodman Rasco & Wells, P.A., and Lawrence D. Goodman, Robert J. Kuntz, Jr., and Lindsey H. Lamchick; Hicks, Porter, Ebenfeld & Stein, P.A., and Dinah S. Stein, for appellants Lea Cohen, et al.
    Kasowitz, Benson, Torres & Friedman LLP, and Marcos Daniel Jiménez, Scott B. Cosgrove, and Ann M. St. Peter-Griffith; Ross & Girten, and Laurie Waldman Ross, for appellee.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, J.

THE FACTUAL AND PROCEDURAL HISTORY

I. Background

Leon Cohen, Maurice Cohen, and Sonia Cohen (collectively, the “Cohens”) appeal from a final order granting CDR Créanees’ (the “Bank”) motion to strike the defendants’ pleadings and enter a default judgment based on fraud on the court (the “Motion to Strike”). Lea Cohen and thirty-four Florida corporations (the “Corporate Defendants”) owned or controlled by the Cohens appeal from a final judgment and an order appointing a receiver that grants the Bank, as a default sanction, ownership and control of the Corporate Defendants’ real property. This Court consolidated the appeals for all appellate purposes. Based on the following, we reverse the default sanction with respect to Lea Cohen, and affirm it as to the remaining defendants.

The litigation below commenced when the Bank sued the defendants. The complaint alleges the Bank’s predecessor-in-interest, Société de Banque Occidentale, loaned money to Euro-American Lodging Corporation, a Cohen company, for the purposes of purchasing and renovating a New York City hotel. The loan was secured by the revenues generated by the hotel and' two mortgages on the hotel property, among other assets. The complaint alleges the Cohens diverted hotel revenues from the hotel, sold the hotel, kept the sale proceeds, hid the stolen money in offshore bearer share corporations and Swiss bank accounts (collectively, the “Offshore Entities”), and ultimately used these funds to purchase and maintain several Florida properties owned by the Corporate Defendants (the “Florida Properties”). In the complaint, the Bank sought to enjoin the transfer of the Florida Properties (count two), and to impose a constructive trust on them (count three).

II. The Motion to Strike and Eviden-tiary Hearing

On August 13, 2010, the Bank filed its Motion to Strike, alleging the defendants schemed to defraud the trial court by submitting perjured deposition testimony, suborning and attempting to suborn perjury, and forging corporate documents, all in an effort to conceal the Cohens’ ownership interests in the Corporate Defendants and Offshore Entities. On October 1, 2010, the trial court commenced an evidentiary hearing on the Motion to Strike, and received evidence over a three-day period. After the hearing, the trial court concluded the defendants intended to defraud the Florida court, and struck their pleadings. Upon review of the case law and the voluminous record, we affirm in part, and reverse in part.

LEGAL ANALYSIS

I. The Trial Court Properly Struck the Cohens’ and the Corporate Defendants ’ Pleadings

A. The Case Law

The striking of a party’s pleadings “has long been an available and often favored remedy for a party’s misconduct in the litigation process.” Bertrand v. Belhomme, 892 So.2d 1150, 1152 (Fla. 3d DCA 2005). The rationale underlying the sanction is that “a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve her ends.” Id. (quoting Metro. Dade Cnty. v. Martinsen, 736 So.2d 794, 795 (Fla. 3d DCA 1999)). Of course, the dismissal of a party’s pleadings is a severe sanction, and thus should be administered only in the most egregious cases. Bertrand, 892 So.2d at 1152. As a result, an order striking pleadings for fraud upon the court is reviewed under a “narrowed” abuse of discretion standard. Williams v. Miami-Dade Cnty. Pub. Health Trust, 17 So.3d 859, 859 (Fla. 3d DCA 2009).

The proponent of a motion to strike pleadings must prove, by clear and convincing evidence, “that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)).

On the spectrum of sanctionable conduct, perjury is perhaps the most egregious. Indeed, “few crimes ... strike more viciously against the integrity of our system of justice than the crime of perjury.” Martinsen, 736 So.2d at 796 (Sorondo, J., concurring). Accordingly, Florida appellate courts have readily affirmed the dismissal of pleadings against a party that engages in perjury when that perjury permeates throughout the trial proceedings and is related to a party’s claim or defense. Babe Elias Builders Inc. v. Pernick, 765 So.2d 119, 120-21 (Fla. 3d DCA 2000) (affirming the trial court’s entry of default judgment where the defendant instructed his employees to prepare fraudulent invoices, suborned their perjury regarding the legitimacy of these fraudulent invoices, and testified falsely regarding these actions, holding that “where a party perpetrates fraud on the court which permeates the entire proceedings, dismissal of the entire case is proper”); see also Papadopoulos v. Cruise Ventures Three Corp., 974 So.2d 418, 419-20 (Fla. 3d DCA 2007) (“Papadopoulos has forfeited his right to seek redress for his claimed injuries based upon his material misrepresentations and omissions that go to the heart of his claims.”); Martinsen, 736 So.2d at 794-95 (remanding for dismissal of the plaintiffs case because her “untruthful sworn statements,” and her “misrepresentations and omissions ... went to the heart of her claim and subverted the integrity of the action”); Cox, 706 So.2d at 47; Mendez v. Blanco, 665 So.2d 1149, 1150 (Fla. 3d DCA 1996) (holding that the trial court did not abuse its discretion in dismissing the plaintiffs complaint where he “committed serious misconduct by repeatedly lying under oath during a deposition”); O'Vahey v. Miller, 644 So.2d 550, 551 (Fla. 3d DCA 1994) (holding that the plaintiffs repeated lies in discovery, uncovered only by the “assiduous efforts of opposing counsel,” “constituted such serious misconduct” that dismissal of the case was required).

B. The Trial Court Was Justified In Striking the Cohens’ and the Corporate Defendants’ Pleadings.

In striking the Cohens’ and the Corporate Defendants’ pleadings, the trial court made specific factual findings that the Cohens attempted to defraud the Florida trial court and conceal their ownership interests in the Offshore Entities and Corporate Defendants by: (1) producing fabricated corporate documents; (2) committing perjury in affidavits and depositions; and (3) suborning the perjury of material ■witnesses and providing them with scripts of lies to repeat under oath. As demonstrated below, these conclusions were supported by overwhelming clear and convincing evidence.

(i) The Cohens produced falsified and forged documents in the Florida litigation.

The record reflects that the Cohens fabricated evidence to prove the Florida Properties were purchased and maintained with “clean” funds from a “private lender,” Whitebury, rather than with money stolen from the Bank. Specifically, the Cohens created and produced a series of sham promissory notes reflecting that ALR and other Corporate Defendants borrowed nearly $60 million from Whitebury. At the hearing on the Motion to Strike, Mr. Ha-bib Levy, Maurice Cohen’s brother-in-law, testified that to conceal the Cohens’ ownership interest in Whitebury, the Cohens fabricated a “Whitebury Shareholder Affidavit,” forging Mr. Levy’s signature as the putative 100% owner of Whitebury, and falsely notarizing it as authentic. The record reflects that, in reality, Whitebury was Maurice Cohen’s “personal investment company.” Mr. Levy testified he neither owned Whitebury nor signed the White-bury documents, and “the first time [he] ever heard of Whitebury was when Mauricio was arrested.”

(ii) The Cohens perjured themselves in deposition testimony, and invited the Florida trial court to accept the perjured depositions.

The Bank also presented evidence establishing that the Cohens committed perjury. In July 2009, Maurice and Leon Cohen appeared for deposition in the related New York litigation, and denied possessing any ownership interest in the Offshore Entities and Corporate Defendants. Early in the Florida litigation, the Cohens filed a motion for a protective order, inviting the trial court to accept the perjured testimony in lieu of live testimony at a lis pendens bond hearing. As the Cohens intended, the perjured depositions were introduced into evidence without objection at this hearing.

At the hearing on the Motion to Strike, the Bank established the deposition testimony was false. Specifically, the Bank introduced recorded telephone calls between Maurice Cohen and his HSBC bankers, as well as an unproduced document the Bank independently obtained, in which Maurice Cohen and Leon Cohen acknowledged they were the beneficial owners of ALR. Significantly, although the trial court had issued at least three discovery orders directing the defendants to reveal the identities of the beneficial owners of the Corporate Defendants, and to produce all documents relating thereto, the defendants claimed to have produced all unprivileged documents relating to the Corporate Defendants, did not produce this document, and repeatedly denied possessing any ownership interest in ALR or the other Corporate Defendants.

Additionally, in opposition to the Motion to Strike, the Cohens submitted perjured affidavits, in which they denied forging corporate documents, perjuring themselves during deposition testimony, and suborning the perjury of material witnesses.

(iii) The Cohens suborned and attempted to suborn the perjury of material witnesses, and the Corporate Defendants induced the false and ignorant testimony of their corporate representative, Sylvia Mergui.

An abundance of record evidence also reflects that the Cohens suborned and attempted to suborn the perjury of material witnesses, and induced the false and ignorant testimony of their corporate representative. Specifically, in a further attempt to conceal their ownership interests in the Offshore Entities, the Cohens designated Allegria Aich, Joelle Habib, Patricia Ben-harbon, and Robert Marabeouf as “corporate nominees” to act as the ostensible heads of the Offshore Entities. Of course, these “corporate nominees” were either relatives or friends of, or financially dependent upon, the Cohens. Thus, the Cohens maintained actual control over the Offshore Entities. Due to the designation of the “corporate nominees” as officers and directors of the Offshore Entities, the Bank scheduled them for deposition. As a result, the Cohens instructed the “corporate nominees” to lie under oath about the Cohens’ ownership interests in the Offshore Entities.

At the Motion to Strike, the Bank elicited testimony from Joelle Habib and Patricia Benharbon, who detailed the Cohens’ scheme to defraud the trial court. They testified that, as the Florida and New York actions proceeded, the Cohens arranged meetings with the “corporate nominees” in Paris, and instructed them to give false testimony under oath to conceal the Cohens’ ownership and control of the companies. To prevent inconsistencies in the fabrications, Leon Cohen provided the “corporate nominees” with typed scripts of lies to memorize and repeat at the depositions.

The Cohens were ultimately successful in suborning the perjury of Ms. Aich and Mr. Marabeouf. When deposed on March 9, 2010, and March 10, 2010, Ms. Aich repeated the scripted false testimony under oath. In addition, Ms. Aich and Mr. Marabeouf signed false affidavits, disavowing any knowledge of an agreement to testify falsely. These affidavits were given to the defendants’ attorneys for filing in New York and Florida. Importantly, the Cohens submitted these perjured affidavits in opposition to the Motion to Strike.

The Cohens’ efforts at suborning the perjury of Ms. Habib and Ms. Benharbon were largely foiled. While Ms. Habib and Ms. Benharbon repeated their scripted lies to the defendants’ Florida attorneys during deposition preparation meetings, at their actual depositions, which were conducted just days after the United States government arrested the Cohens, Ms. Ha-bib and Ms. Benharbon invoked their right against self-incrimination. Ms. Habib and Ms. Benharbon ultimately disclosed to the United States government the perjury sessions in France, and turned over the scripts to federal prosecutors.

Finally, the evidence established that several of the Corporate Defendants hired Sylvia Mergui to testify during the rule 1.310(b)(6) depositions as their corporate representative. The Corporate Defendants induced Ms. Mergui’s false and ignorant testimony by providing her with, and having her rely on, the fabricated White-bury documents in preparation for deposition testimony, and withholding corporate documents evincing the true beneficial ownership of Whitebury and the Corporate Defendants. Based on Ms. Mergui’s review of the fraudulent Whitebury promissory notes, she testified that Mr. Levy was the owner of Whitebury, and that neither Maurice Cohen nor Leon Cohen was a beneficial owner of ALR.

Based on the foregoing, the record clearly reflects that the Cohens’ material misrepresentations and omissions about their ownership interests in the Corporate Defendants and Offshore Entities went to the heart of their defense, and subverted the integrity of the Florida action. In their answer, the Cohens denied that stolen money was used to purchase and maintain the Florida Properties, and defended the action below on the theory that they could not be liable to the Bank because they had no ownership interest, direct or indirect, in the entities that defrauded the Bank or controlled the Florida Properties. As has been demonstrated, that theory, and all the evidence in support of it, was entirely fabricated by the Cohens and the Corporate Defendants. Because the evidence clearly and convincingly establishes that the Cohens and the Corporate Defendants engaged in serious misconduct calculated to interfere with the judicial system’s ability to impartially adjudicate the matter below by unfairly hampering the presentation of the Bank’s claims, we agree with the trial court that the Cohens and the Corporate Defendants have forfeited their right to proceed.

II. The Cohens’ Arguments On Appeal

The Cohens advance several arguments in favor of reversal, only two of which merit discussion: (1) none of the fraudulent misconduct took place in the Florida litigation; and (2) they were denied due process. Both arguments are refuted by the record.

A. An abundance of record evidence demonstrates that the Cohens’ and the Corporate Defendants’ misconduct was calculated to defraud the Florida trial court.

The Cohens argue that reversal is required because all of the alleged fraudulent misconduct took place in the context of a separate litigation, and none of it was calculated to defraud the Florida trial court.

Of course, a trial court may not strike a party’s pleadings solely for misconduct designed to defraud other courts. See Bertrand, 892 So.2d at 1153 (reversing the trial court’s sanction of dismissal because although the sanctioned party had engaged in widespread fraud in front of other courts, the trial court order cited “only a single reference ... that directly relate[d] to the underlying case,” and the referenced statements were “not necessarily inconsistent”); see also Cherubino v. Fenstersheib & Fox, P.A., 925 So.2d 1066, 1069 (Fla. 4th DCA 2006) (reversing the trial court’s sanction of dismissal because “the majority of the inconsistencies highlighted” by the movant occurred in a separate case, and several of the few inconsistencies present in the case at bar arguably “were not knowing deceptions” and “simply did not demonstrate the blatant or extreme conduct necessary to prove fraud on the court”). However, when analyzing a party’s intent to defraud the trial court, the trial court “may consider all the circumstances surrounding the alleged violations, including a party’s misconduct in related cases.” Quantum Commc’ns Corp. v. Star Broad., Inc., 473 F.Supp.2d 1249, 1274 (S.D.Fla.2007). The ultimate question remains whether the party’s misconduct was intended to defraud the trial court considering the sanctions.

The Cohens’ argument is without merit, if not disingenuous. There is an abundance of record evidence demonstrating misconduct in the Florida litigation.

(i) The Cohens produced the falsified Whitebury documents in the Florida litigation.

The trial court specifically found that the forged Whitebury documents were intended to and did infect the Florida litigation. Importantly, in their answer, the Cohens denied stolen money was used to purchase and maintain the Florida Properties, and they produced the “Whitebury documents in connection with their denials. In addition, in the Florida litigation, the Cohens produced these sham “Whitebury records in response to document requests. Finally, as established above, several of the Corporate Defendants hired Sylvia Mergui to testify on their behalf in the Florida litigation. To induce false and ignorant testimony, the Corporate Defendants provided the sham Whitebury documents to Ms. Mergui in her preparation for deposition, and withheld documents relating to the beneficial ownership of “White-bury and the Corporate Defendants.

(ii) The Cohens invited the Florida trial court to accept their perjured deposition testimony, and also submitted perjured affidavits in opposition to the Motion to Strike.

As established above, when the Cohens were noticed to testify before the Florida trial court at a lis pendens hearing, they filed a motion for a protective order, asking the Florida trial court to accept the New York depositions in lieu of live testimony because “testimony at the forthcoming evidentiary hearing would certainly be duplicative of that just given in New York.” As the Cohens intended, the perjured depositions were introduced into evidence without objection during the lis pen-dens bond hearings. Additionally, in a separate evidentiary hearing, the Cohens submitted their perjured New York deposition testimony to the Florida trial court to support their motion to dismiss based on improper venue. Finally, the Cohens submitted perjured affidavits to the Florida trial court in opposition to the Motion to Strike.

(iii) The Cohens suborned and attempted to suborn the perjury of witnesses that were material to the Florida litigation, and submitted the witnesses’ perjured affidavits in opposition to the Motion to Strike.

The Cohens argue the subornation of perjury and attempts to suborn perjury only prove their intent to defraud the New York court because when the perjury sessions were held, the witnesses were scheduled to be deposed only in New York. This argument, however, fails to consider that the witnesses were material in both the New York and the Florida proceedings. Further, the Cohens specifically ordered Ms. Habib to lie to the attorneys involved in the Florida litigation. As a consequence, when Ms. Habib met with several attorneys in Paris, including one representing the Cohens in the Florida case, she repeated the lies contained in the script. By lying to the Florida lawyer, the Cohens were able to use their Florida attorneys to propagate false filings with the Florida court. Finally, and perhaps most directly, the Cohens submitted the perjured affidavits of Ms. Aich and Mr. Marabeouf in opposition to the Motion to Strike.

B. The Cohens Were Not Deprived of Due Process.

The Cohens argue reversal is required because they were deprived of due process based on the untimely filing of documents by the Bank shortly before the hearing on the Motion to Strike. We disagree, as the newly-filed documents were: (1) not introduced or relied on by the trial court; (2) documents the defendants themselves supplied in the New York litigation; or (3) documents that were withheld by the defendants in violation of production orders, and independently discovered by the Bank shortly before the hearing on the Motion to Strike. More importantly, after closing arguments at the hearing on the Motion to Strike, the trial court offered to continue the hearing to provide the defendants additional time to prepare and review the newly-filed evidence, and to take any steps necessary to reduce any prejudice to the defendants.

If you have due process concerns, we can continue [the hearing] and I can give you another day to put evidence on, if you want, or to look at the evidence and look at all of the documents and all of the depositions, and if you have some concerns, we can reconvene, and I can give you time to do whatever you need to do to reduce the prejudice to the defendants.

(emphasis added). The defendants declined the offer, elected to “let the chips fall where they may,” and thereby waived any due process concerns relating to the newly-filed documents.

The Cohens also contend they were denied due process because the Bank did not specifically identify the “Whitebury Shareholder Affidavit” and “Whitebury Promissory Notes” as documents it would rely on during the hearing on the Motion to Strike. We are equally unpersuaded by this argument.

In motion practice, due process requires, among other things, “fair notice of the charges and allegations” mounted against the opposing party. Neff v. Adler, 416 So.2d 1240, 1242-43 (Fla. 4th DCA 1982) (citing Goss v. Lopez, 419 U.S. 565, 578-79, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)); see also Fla. R. Civ. Proc. 1.100(b) (“An application to the court for an order shall be by motion which shall be made in writing unless made during a hearing or trial, shall state with particularity the grounds therefore, and shall set forth the relief or order sought.”). “The purpose of rule 1.100 is to put the opposing party on notice of the grounds which will be asserted against it.” Jaffrey v. Baggy Bunny, Inc., 733 So.2d 1140, 1141 (Fla. 4th DCA 1999).

The Bank fully satisfied the requirements of due process and rule 1.100(b). To begin with, the Motion to Strike contains a detailed explanation of the Cohens’ scheme to defraud the Florida trial court, including an allegation that the Cohens “forg[ed] documents to conceal their ownership interest in various corporate entities.” (emphasis added). Moreover, prior to the hearing, the Bank filed a supplemental memorandum in support of its Motion to Strike, explaining as follows:

Mauric[e] Cohen ... is the only individual who has signature authority on all of the relevant accounts, including White-bury Limited Shipping ... only Mau-ric[e] Cohen and his children ... ever received money from any of those accounts ... and [o]nly Mauricfe] Cohen appears on bank records as the owner of the companies and their accounts, except on the forged documents showing Habib Levy as the owner of White-bury.
In furtherance of their campaign of deceit, the Cohens produced falsified documents designed to conceal their ownership of the various corporate entities. Although numerous false documents exist, a critical document relates to the purported ownership of White-bury.
To help conceal the true ownership of Whitebury, the Cohens created a bogus “Shareholder Affidavit” and a series of purported promissory notes, all of which identified a “Habib Levy” as Whitebury’s owner.
The documents purporting to bear Habib Levy’s signature and identifying him as the owner of Whitebury are forgeries. Habib Levy has clearly and unequivocally testified that he did not sign these documents....

(emphasis added). The Bank attached the Whitebury Shareholder Affidavit and the Whitebury Promissory Notes as exhibits to the Supplemental Memorandum.

Thus, the Bank, in its Motion to Strike, stated with particularity that the Cohens “forg[ed] documents to conceal their ownership interest in various corporate entities,” putting the defendants on fair notice of the Bank’s grounds for sanctions. Additionally, although the Bank, in the Motion to Strike, did not specifically refer to the “documents” by name, i.e., “Whitebury Shareholder Affidavit” or “Whitebury Promissory Notes,” it clearly cited to and explained these documents by name, and in great detail, in its- supplemental memorandum in support of its Motion to Strike. We, therefore, find no merit to the Cohens’ due process arguments.

III. Lea Cohen and the Corporate Defendants’ Arguments On Appeal

Lea Cohen and the Corporate Defendants contend the trial court erred by adopting verbatim the order submitted by the Bank, and Lea Cohen argues that there was insufficient evidence of misconduct by her to justify the striking of her pleadings. We address these arguments separately, and conclude as follows.

A. The trial court did not improperly delegate its decision-making authority to the Bank.

Lea Cohen and the Corporate Defendants contend the trial court improperly delegated its decision-making authority to the Bank by adopting the Bank’s proposed default order verbatim, without having articulated any findings of fact or conclusions of law during the hearing. We disagree because the adopted order is not inconsistent with an earlier pronouncement of the trial judge, and there was no appearance of impropriety justifying a suspicion of unfairness.

In Perlow v. Berg-Perlow, 875 So.2d 388 (Fla.2004), the Florida Supreme Court clarified the standard. governing a trial court’s adoption of a party’s proposed order. The Court made clear that a party’s proposed order “cannot substitute for a thoughtful and independent analysis of the facts, issues, and law by the trial judge,” and approved of cases holding that reversal is required based on a trial court’s adoption of a proposed order: (1) when the signed judgment is inconsistent with an earlier pronouncement of the trial judge; and (2) where the appearance of impropriety so permeated the proceeding below as to justify a suspicion of unfairness. Id. at 388-91.

The trial court’s adoption of the Bank’s proposed order did not run afoul of Berg-Perlow or its progeny, as there were no inconsistencies between the adopted orders and any earlier pronouncement by the trial court; the defendants were provided a meaningful opportunity to object; and the record reflects that the trial court actively participated in the proceedings, reviewed all of the evidence, and considered the arguments.

The trial court provided both parties an opportunity to submit their own proposed orders, specifically stating: “I would love a proposed order from both sides, but you need to email it to me because I need to look at it if I want to change it or add something or delete something.” Both parties took advantage of the opportunity, and filed proposed orders — the defendants on October 25, 2010, and the Bank on November 2, 2010. Importantly, the trial court did not enter its default order until November 8, 2010. Thus, whereas the trial court in Berg-Perlow adopted the proposed order only two hours after its submission, the trial court in this case did not adopt the Bank’s proposed order until thirteen days after the defendants’ submission, and six days after the Bank’s submission. See Beharry v. Drake, 52 So.3d 790, 792 (Fla. 5th DCA 2010) (distinguishing Berg-Perlow and finding no impropriety where the trial court received proposed final judgments from both parties and did not enter its final judgment until six days after submission of the proposed judgments); In re T.D. v. Dep’t of Children & Family Servs., 924 So.2d 827, 830 n. 2 (Fla. 2d DCA 2005) (holding that “if all parties have prepared proposed judgments, their own submissions would likely apprise the judge of their positions and their disagreements with the opposing party’s”); Cabrera v. Cabrera, 987 So.2d 753, 755 (Fla. 3d DCA 2008) (“The trial court’s active participation in the proceedings supports our conclusion that there is no appearance that the trial court did not exercise its independent judgment when entering the final judgment in the instant case.”).

For these reasons, we conclude that the trial court did not improperly delegate its decision-making authority to the Bank.

B. The Bank failed to produce evidence in support of its allegation that Lea Cohen was involved in the fraud upon the trial court.

Lea Cohen argues the default sanction should be reversed as to her because the Bank did not produce any evidence in support of its allegation that Lea Cohen was involved in the fraud on the trial court. We agree.

The Bank alleges Lea Cohen participated in the fraud on the trial court by helping to secure and induce the false and ignorant testimony of Ms. Mergui, who Lea Cohen recruited to serve as corporate representative for the Corporate Defendants. While Ms. Mergui confirmed that Lea Cohen was the one who informed her about the opportunity to serve as corporate representative, such conduct, standing alone, cannot be classified as fraudulent. In addition, the Bank’s portrayal of Lea Cohen’s participation in the inducement of false and ignorant testimony is entirely unsupported by the record evidence. Although it is true that Ms. Mergui, in preparation for deposition, was provided with the fraudulent Whitebury documents, and was not provided with corporate documents evincing the true beneficial ownership of Whitebury or the Corporate Defendants, the Bank has not produced any evidence suggesting that Lea Cohen was responsible for, or played any role in, these decisions. We therefore reverse the default sanction with respect to Lea Cohen.

CONCLUSION

While we are mindful of Florida’s strong public policy favoring the resolution of cases on their merits, the judiciary cannot be, and is not, impotent against those wishing to corrupt the litigation process by employing fraud and deception at every turn. Accordingly, we affirm the default judgment as it pertains to the Cohens and the Corporate Defendants because the record evidence establishes, clearly and convincingly, that these litigants have engaged in a massive and unprecedented scheme to defraud the trial court below. We, however, reverse the default sanction as to Lea Cohen because the Bank has failed to produce evidence in support of its allegation that she was involved in the fraud on the trial court.

Affirmed in part, and reversed in part.

      . The Cohens, Lea Cohen, and the Corporate Defendants will be collectively referred to as "the defendants.”

      . A bearer share corporation lacks records, and ownership is based on physical possession of shares, as opposed to a registered share corporation which has corporate records disclosing ownership.

      . Subsidies of one of the Corporate Defendants, American Leisure Resorts, Inc. ("ALR"), own the six Florida Properties that are the subject of the Bank’s equitable claims in this case.

      . All other counts were dropped.

      . We direct counsel for the defendants to "Tab 14” of the Bank's appendix, which contains the discovery orders referred to and disputed by counsel for the defendants at oral argument. Specifically, the order dated September 17, 2010, states: "Accordingly, the Third Motion is GRANTED. The Corporate Defendants shall produce all documents relating to and reflecting the natural personfs) who beneficially own the Corporate Defendants within 10 days of the date of this Order.”

      . The scripts even contained physical descriptions and backgrounds for the fictional owners of the Offshore Entities.

      . The Cohens argue that the Whitebury documents were merely collateral to the Florida litigation because nothing about Whitebury was alleged in the complaint, and, thus, whether the information was true or false did not go to the central issue in this case. This argument does not merit significant analysis. The Cohens injected the ownership of White-bury into issue by defending the case below on the ground that ALR was funded with "clean’' money from Whitebury, rather than with money stolen from the Bank.

      . We reject the defendants' argument that since the trial court’s offer came after the "damage had already been done,” the additional time would have served no purpose, and thus the defendants did not waive due process objections. The defendants could have used the additional time offered by the trial court to develop challenges to the admissibility of die newly-filed documents, and, based on these challenges, could have urged the trial court not to rely on the newly-filed documents in making its determination. See Petion v. State, 48 So.3d 726, 727 (Fla.2010) ("[Djuring a non-jury trial, a judge is presumed to have disregarded inadmissible evidence.”); see also EM. v. State, 61 So.3d 1255 (Fla. 3d DCA 2011).

      . Cole Taylor Bank v. Shannon, 772 So.2d 546 (Fla. 1st DCA 2000); Hanson v. Hanson, 678 So.2d 522 (Fla. 5th DCA 1996); Ross v. Botha, 867 So.2d 567 (Fla. 4th DCA 2004).

      . In Berg-Perlow, the Florida Supreme Court expressly approved of Cole Taylor Bank, in which the First District held that reversal of an adopted order is required only in three situations:
      [1] when the signed judgment is inconsistent with an earlier pronouncement of the trial judge, see Ford Motor Co. v. Starling, 721 So.2d 335, 337 n. 4 (Fla. 5th DCA 1998), [2] where the “appearance of impropriety so permeated the proceeding below as to justify a suspicion of unfairness,” Hanson, 678 So.2d at 525, or [3] where the record establishes that the final judgment does not "reflect the trial judge's independent decision on issues of a case,” Flint v. Fortson, 744 So.2d 1217, 1220 (Fla. 4th DCA 1999).
      However, in Berg-Perlow, the Supreme Court combined the second and third grounds for reversal into a single analysis, holding that there was an appearance of impropriety because there was an appearance that the final judgment does not reflect the trial judge's independent decision.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard FOWLER, Esq., et al., Appellants/Cross-Appellees, v. Leonard GARTNER, Appellee/Cross-Appellant.
    No. 3D11-2198.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Pollack, Pollack & Kogan, and Gary W. Pollack, for appellant.
    Morgan, Cintron & Hogan and Robert Cintron, Jr., for appellee.
    Before SHEPHERD, ROTHENBERG, and EMAS, JJ.
   PER CURIAM.

This appeal and cross-appeal arise from an ex parte default final judgment entered against Leonard Gartner. Therein, the trial court ordered Gartner to pay his former counsel, Richard Fowler, Esq. and the Fowler Law Firm (collectively Fowler) the amount remaining due under the terms of a mediated settlement agreement the parties reached after Gartner discharged Fowler in a dissolution of marriage action. In the same order, the trial court refused to enforce a provision of the agreement which required Gartner to pay a higher sum in the event of a default. Fowler appeals the trial court’s determination that this provision created an unenforceable penalty. Gartner cross-appeals the trial court’s determination that he defaulted and failed to timely cure his default. We conclude the default was cured timely and reverse on that basis. Accordingly, we do not reach the issue raised by Fowler’s appeal.

The facts here essentially are undisputed. Gartner retained Fowler to represent him in his dissolution of marriage proceeding. While the matter was pending, Gart-ner discharged Fowler and hired alternate counsel. Fowler and Gartner then became enmeshed in a fees dispute. Ultimately, the parties submitted to mediation and reached a settlement agreement. Gartner agreed to pay Fowler a total of $107,000, instead of the $208,000 claimed by Fowler, in twelve equal payments. Each payment was due the “first of each month.” In the event of a default, Fowler was required to issue a notice of default to Gartner. From the date of that notice, Gartner would be given “a five business day right” to cure the default. If Gartner failed to timely make a cure, Fowler would then be entitled to the full $208,000 claimed.

When Fowler did not receive a payment from Gartner on June 1, 2011, Fowler’s attorney sent an email to Gartner’s attorney, at 4:51 p.m. that day, which purported to be a notice of default. Apparently, Gartner had placed a check in the mail that day, which Fowler’s attorney received June 3, 2011. However, the check was not cashed until June 7, 2011, at which point Gartner’s account had a negative balance and the check was returned for insufficient funds. Thereafter, on June 9, 2011, Gart-ner wired his payment to Fowler’s attorney, but the transfer was refused. Instead, Fowler opted to file a motion for default judgment, seeking the $208,000, less payments made to date, as provided for in the parties’ agreement. Following a healing on the matter, the trial court entered the order on appeal, and found Gart-ner defaulted on the agreement by failing to pay on June 1 and failing to cure within five business days from June 1. We disagree.

“As a general proposition, the use of different language in different contractual provisions strongly implies that a different meaning was intended.” Kel Homes, LLC v. Burris, 933 So.2d 699, 703 (Fla. 2d DCA 2006). Here, Fowler contends both the payment and cure provisions should be given the same meaning— that of a normal working day from 9:00 a.m. to 5:00 p.m. But the parties did not use “business day” with regard to the payment date. This suggests different methods of calculating time for each event. Moreover, “day,” which is implied in the payment provision, generally refers to a natural or calendar day, which is “[a] consecutive 24-hour day running from midnight to midnight.” Black’s Law Dictionary 495 (9th ed. 2009). In calculating days, therefore, the time extends to midnight. See Young v. Young, 152 Fla. 712, 12 So.2d 885, 886 (1943); Poinciana Hotel of Miami Beach, Inc. v. Kasden, 370 So.2d 399, 400 (Fla. 3d DCA 1979). Whereas, a “business day” refers to “[a] day that most institutions are open for business,” or from 9:00 a.m. to 5:00 p.m. on weekdays. Black’s Law Dictionary 495 (9th ed. 2009).

Accordingly, we agree with Gartner that the day for payment ran until midnight June 1, 2011, and the soonest he could receive notice of default was 12:01 a.m. on June 2, 2011. Thus, the notice of default given at 4:51 p.m. on June 1 was premature, and the five-business-day cure period did not commence until June 2. Because June 4 and 5 were weekend days, the payment wired on June 9 was timely and should not have been refused. See Multach v. Adams, 418 So.2d 1254, 1255 (Fla. 4th DCA 1982) (“[T]he refusal to accept a proper tender will prevent the collection of interest or other damages because the failure to receive payment is due to the promisee’s own action.”).

Finding the default at issue was timely cured, the trial court’s final judgment against Gartner is reversed.

Reversed.

      . The notice would be premature even using Fowler’s "business day” deadline, as default was declared at 4:51 p.m., not 5:00 p.m.


text:
    Jennifer BIRGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-231.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Rehearing Denied July 3, 2012.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Lambe v. State, 53 So.3d 1137 (Fla. 4th DCA 2011).

POLEN, GROSS and LEVINE, JJ., concur.


text:
    Moses AUGUSTUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-246.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Pantoja v. State, 59 So.3d 1092 (Fla.2011); Gonzalez v. State, 871 So.2d 1010 (Fla. 4th DCA 2004).

POLEN, GROSS and LEVINE, JJ„ concur.


text:
    Mark ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3600.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Mark E. Alexander, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

MAY, C.J., TAYLOR and GERBER, JJ., concur.


text:
    OAKLAND PARK MRI, INC., Petitioner, v. USAA CASUALTY INSURANCE CO., Respondent.
    No. 4D11-3521.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Rehearing Denied June 26, 2012.
    John Beranek of Ausley & McMullen, Tallahassee, and Harley N. Kane of kane & Kane, P.A., Boca Raton, for petitioner.
    Douglas H. Stein of Seipp & Flick, LLP, Miami, for respondent.
   PER CURIAM.

Oakland Park MRI, Inc. (Oakland), the appellee below, seeks certiorari review from an opinion of the Broward County circuit court, in its appellate capacity, which reversed a county court final money judgment in its favor, which had been appealed by the defendant USAA Casualty Insurance Co. The opinion reflects that the circuit court did not take into consideration Oakland’s answer brief: “Having reviewed the brief [singular], the record on appeal, and the motions filed in this case, the Court dispenses with oral argument and finds and decides in the absence of the answer brief as follows:” (Emphasis added)

We grant the petition based on Oakland’s argument that it was deprived of procedural due process by the circuit court’s failure to consider its brief and direct the circuit court to reconsider the appeal, taking the answer brief into consideration. We do not reach Oakland’s second argument, that the circuit court departed from the essential requirements of law in reversing the county court judgment in its favor. Such review now would be premature, because the circuit court’s further proceedings could render that argument moot.

Granted in Part; Opinion Quashed.

HAZOURI, DAMOORGIAN and CONNER, JJ., concur.


text:
    Darron Darnell HUGHES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1002.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Rehearing Denied June 15, 2012.
    Darron Darnell Hughes, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Affirmed. See Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011); Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    Yomardi Perez PERRELLO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1049.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Yomardi Perez Perrello, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012).


text:
    David BLANCO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3133.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before LAGOA and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011); Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    Nehemiah WOODS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1983.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Nehemiah Woods, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   PER CURIAM.

'Affirmed. State v. Betz, 815 So.2d 627 (Fla.2002); Nazien v. State, 36 So.3d 184 (Fla. 3d DCA 2010); State v. T.P., 835 So.2d 1277 (Fla. 4th DCA 2003).


text:
    I.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1402.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Carlos J. Martinez, Public Defender, and Mellisa C. Del Valle, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General; and Patrick Colin McCardle, Certified Legal Intern, for appellee.

      Before WELLS, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See McWilliams v. State, 524 So.2d 740 (Fla. 4th DCA 1988).


author: WELLS, Chief Judge.

text:
    Edward JAMES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-90.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.
   WELLS, Chief Judge.

Affirmed. See § 810.07(2), Fla. Stat. (2010); L.S. v. State, 464 So.2d 1195 (Fla. 1985).


text:
    Rafael CASTELLANOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-93.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Rehearing Denied July 5, 2012.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (holding invocation of right to an attorney must be unambiguous and unequivocal); accord Alvarez v. State, 890 So.2d 389 (Fla. 1st DCA 2004).


text:
    Uriah ROSE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1078.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.

      Uriah Rose, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 722-23 (Fla. 3d DCA 2011) (holding that “section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional”; rejecting Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289, 1308 (M.D.Fla.2011), in which a federal court held that section 893.13, Florida Statutes (2004), “violates the due process clause and that the statute is unconstitutional on its face”); Ortega v. State, 76 So.3d 346 (Fla. 3d DCA 2011); see also State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), review granted, 71 So.3d 117 (Fla.2011).


text:
    R.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2086.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
   An Appeal from the Circuit Court for Miami-Dade County, Marcia Caballero, Judge.

Before SHEPHERD, ROTHENBERG and SALTER, JJ.

Affirmed. B.W. v. State, 784 So.2d 1219 (Fla. 2d DCA 2001); A.G. v. State, 562 So.2d 400 (Fla. 3d DCA 1990).


text:
    Alonzie WIGGINS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D11-3368.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Alonzie Wiggins, in proper person.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for respondent.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ON MOTION FOR REHEARING

WELLS, Chief Judge.

On consideration of the motion for rehearing, we withdraw this court’s prior order denying Wiggins’ petition for writ of certiorari and substitute the following opinion in its place. For the reasons set forth below, we grant the petition and remand with instructions that the trial court transfer this case to the Circuit Court for the Second Judicial Circuit in Leon County, Florida.

Where, as here, an inmate claims that the Department failed to provide him the correct credit for jail time served in the county jail after the imposition of sentence, and prior to being transferred to the custody of the Department, he must seek relief through the inmate grievance procedure set forth in section 921.161 of the Florida Statutes. See Salazar v. State, 892 So.2d 545, 547 (Fla. 3d DCA 2005). Upon exhausting his administrative remedies, “if the inmate believes that the Department[’]s ruling was incorrect, the inmate may then file a petition for writ of mandamus directed to the Department of Corrections.” Id.; see also Bush v. State, 945 So.2d 1207, 1210 (Fla.2006) (footnotes omitted) (“When challenging a sentence-reducing credit determination by the Department ... once a prisoner has exhausted administrative remedies, he or she generally may seek relief in an original proceeding filed in circuit court as an extraordinary writ petition. In such a case, ... if the prisoner does not allege entitlement to immediate release, a petition for writ of mandamus is the proper remedy.”). Venue for the mandamus proceeding is in the Circuit Court for the Second Judicial Circuit in Leon County, where the Department of Corrections has its headquarters. See Bush, 945 So.2d at 1212-13; Salazar, 892 So.2d at 547.

Here, upon allegedly exhausting his administrative remedies provided through the inmate grievance procedure, Wiggins filed a petition for writ of mandamus against the Department of Corrections in the Circuit Court for the Eleventh Judicial Circuit in Miami-Dade County. Instead of transferring the matter to the Leon County circuit court as it should have done, see Bush, 945 So.2d at 1214; Hartley v. McNeil, 52 So.3d 690 (Fla. 4th DCA 2010), the trial court erroneously treated the mandamus petition as a “Pro Se Motion for Clarification of Sentence” filed against the State of Florida and thereafter entered an “Order Clarifying Judgment and Sentence.”

We therefore grant the petition for writ of certiorari, quash the “Order Clarifying Judgment and Sentence” and remand this case with instructions that it be transferred to the Circuit Court for the Second Judicial Circuit in Leon County for further proceedings.


text:
    C.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2214.
    District Court of Appeal of Florida, Third District.
    May 30, 2012.
    Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.

      Before LAGOA, SALTER, and FERNANDEZ, JJ.
   PER CURIAM.

C.M., a juvenile, appeals an order adjudicating him delinquent on a charge of petit theft of property worth less than $100, and placing him on juvenile probation. The testimony by the State’s witness (a Wal-Mart loss prevention officer) and by C.M. is identical to the extent that C.M. actually paid for the merchandise in question. The State failed to overcome the defense of payment by introducing competent evidence to establish beyond a reasonable doubt that the merchandise was removed from the store premises (including the garden department) before the payment was made. § 812.014(l)(b), Fla. Stat. (2011). The adjudication and disposition order are thus reversed, and the case is remanded for the entry of an adjudication of non-delinquency and the discharge of the respondent/appellant.

Reversed and remanded.

      . The shoplifting charge alleged the theft of headphones having a value between five and six dollars.


author: ALTENBERND, Judge.

text:
    Shawn D. ALMOND, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-927.
    District Court of Appeal of Florida, Second District.
    June 1, 2012.
    Shawn D. Almond, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Shawn D. Almond appeals a trial court order designating him as a sexual predator. The trial court entered this order in January 2011 while Mr. Almond was on probation. His sentencing, at which the court failed to enter such an order, occurred more than twelve years earlier. Mr. Almond argues that the State should be barred by a statute of limitations or perhaps by laches because it waited so long to file this motion. He suggests that we should adopt Judge Shepherd’s dissent in Cuevas v. State, 31 So.3d 290 (Fla. 3d DCA 2010), as the opinion of this court. Although we question whether Judge Shepherd’s dissent may have been the correct outcome for the case in which he dissented, we conclude that the State was entitled to file this motion and obtain this relief while Mr. Almond was still on probation.

Mr. Almond was charged with sexual battery with force and burglary with assault for events in October 1996. In April 1998, he pleaded to the two offenses in exchange for a probationary split sentence of approximately twelve years’ incarceration followed by five years’ probation. There is no question that Mr. Almond’s conviction for sexual battery, a life felony, qualified him to be designated as a sexual predator. See § 775.21(4)(e)(l)(a), Fla. Stat. (1997). There is also no question that the trial court did not enter the order designating Mr. Almond as a sexual predator at the time of sentencing. Although it cannot be confirmed or disproved from this record, Mr. Almond alleges that designation as a sexual predator was not discussed with him during plea negotiations in 1998.

In July 2010, more than two years after Mr. Almond’s release from prison, the State filed a motion to designate him as a sexual predator. Other than noting that the designation had not occurred at the time of sentencing, the motion does not explain the delay or how the issue had come to the attention of the State after these many years. The trial court conducted a hearing on this motion. Mr. Almond elected to represent himself at that hearing, and he did an able job.

The trial court concluded that the designation was not part of the criminal sentence and that it had no discretion as to whether Mr. Almond should be so designated in light of the life felony conviction for sexual battery. It concluded that nothing in the nature of a statute of limitations prevented the late filing of the motion. Accordingly, it granted the motion.

The Florida Sexual Predators Act declares that an offender such as Mr. Almond “is a sexual predator, and the sentencing court must make a written finding at the time of sentencing that the offender is a sexual predator.” § 775.21(5)(a)(2), Fla. Stat. (2010). Anticipating that this mandatory order might occasionally be overlooked, the legislature provided:

If the Department of Corrections, the department, or any other law enforcement agency obtains information which indicates that an offender meets the sexual predator criteria but the court did not make a written finding that the offender is a sexual predator as required in paragraph (a), the Department of Corrections, the department, or the law enforcement agency shall notify the state attorney who prosecuted the offense for offenders described in subpar-agraph (a)l., or the state attorney of the county where the offender establishes or maintains a residence upon first entering the state for offenders described in subparagraph (a)3. The state attorney shall bring the matter to the court’s attention in order to establish that the offender meets the sexual predator criteria. If the state attorney fails to establish that an offender meets the sexual predator criteria and the court does not make a written finding that an offender is a sexual predator, the offender is not required to register with the department as a sexual predator. The Department of Corrections, the department, or any other law enforcement agency shall not administratively designate an offender as a sexual predator without a written finding from the court that the offender is a sexual predator.

§ 775.21(5)(c), Fla. Stat. (2010) (emphasis added).

Two aspects of this statute are important to our analysis today. First, the trial court is not given the task of deciding whether Mr. Almond is actually dangerous. The designation of “sexual predator” arises purely by virtue of Mr. Almond’s criminal record. In this case, because Mr. Almond’s sexual offense is a life felony, he qualifies without any prior conviction. So long as he has not been pardoned, Mr. Almond is a sexual predator as a matter of law. The official “designation” merely provides Mr. Almond with notice and an opportunity to be heard before the requirements of registration become effective as to him.

Second, the statute provides a procedure to address overlooked designations. If the court fails to enter this order at the time of sentencing, the state attorney is required to bring the matter to “the court’s attention.” See 775.21(5)(c), Fla. Stat. (2010). The state attorney in this case and in other cases has logically interpreted this language to require the state attorney to return to the criminal division that handled the original sentencing. In this case, the original judge had long since retired, but Mr. Almond was still serving an active term of probation. The trial court continued to have jurisdiction to address the conditions of probation as necessary and to enter an order such as this sexual predator designation.

In Cuevas, the Third District considered a case in which the defendant had fully served his sentence before the state filed its motion. 31 So.3d at 291. From the opinion in that case, it appears that the state filed its motion to designate the defendant as a sexual predator in a court that had ceased to have jurisdiction over the criminal case and over the defendant. See id. The Cuevas dissent may be correct in concluding that the state could not “haul a sexual predator back into court” under those circumstances. See id. at 292-95 (Shepherd, J., dissenting). Accordingly, we do not decide what, if any, procedure may exist to obtain an order designating a defendant as a sexual predator once the criminal court has lost jurisdiction. We simply hold that in a case like Mr. Almond’s, in which the criminal court still has jurisdiction over a defendant whose criminal record mandates the court to classify him as a sexual predator, the criminal court may designate the defendant as a sexual predator even though the designation was overlooked at sentencing many years earlier.

Affirmed.

KHOUZAM and MORRIS, JJ., Concur.

      . § 794.011(3), Fla. Stat. (1996).

      . § 810.02(2)(a), Fla. Stat. (1996).

      .The critical provision of the Florida Sexual Predators Act that applies to Mr. Almond has not changed since 1997, although it has been renumbered. See § 775.21(4)(a)(l)(a), Fla. Stat. (2010).


author: CIKLIN, J.

text:
    Michelle RIMONDI, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-750.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Michelle Rimondi appeals her convictions and sentences for third-degree grand theft in violation of section 812.014, Florida Statutes (2009), and felony retail theft in concert with others in violation of section 812.015(8)(a). Rimondi raises two issues on appeal; however, we find merit in the double jeopardy issue only and decline to discuss the other issue. We reverse Ri-mondi’s conviction and sentence for third-degree grand theft because it violates double jeopardy, but we affirm her conviction and sentence for felony retail theft.

On September 30, 2009, Rimondi and her husband, Luis Milian, entered a Wal-mart store located in Port St. Lucie. Ray Papsidero, a Walmart asset protection manager, observed Rimondi and Milian via the store’s surveillance cameras. At some point, Papsidero saw them stop in a toy aisle. Milian motioned to Rimondi who then picked up a box of merchandise and held it just above the shopping cart. Ri-mondi continued to hold up the box while Milian removed some packages of razors from their shopping cart and concealed them inside his pants. After Milian placed the last item in his pants, he nodded to Rimondi who then placed the box she was holding up into the cart. Rimondi and Milian were subsequently arrested for stealing or attempting to steal the razors which were determined to have a retail value in excess of $400.

Based on the aforementioned incident, Rimondi was charged by information with third-degree grand theft and felony retail theft in concert with others. A jury found her guilty of both offenses as charged in the information. The trial court subsequently adjudicated Rimondi guilty of both charges and sentenced her to concurrent terms of thirty months in prison, followed by thirty months of probation for each conviction.

Rimondi argues that her convictions and sentences for both crimes violate the prohibition against double jeopardy. We agree. “Because double jeopardy issues involve purely legal determinations, the standard of review is de novo.” Benjamin v. State, 77 So.3d 781, 783 (Fla. 4th DCA 2011). Additionally, because dual convictions in violation of the prohibition against double jeopardy constitute fundamental error, “a double jeopardy claim may be raised for the first time on appeal.” DeLuise v. State, 72 So.3d 248, 252 (Fla. 4th DCA 2011).

“The most familiar concept of the term ‘double jeopardy’ is that the Constitution prohibits subjecting a person to multiple prosecutions, convictions, and punishments for the same criminal offense.” Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009). The double jeopardy clauses of the United States and Florida Constitutions, however, do not prohibit “multiple punishments for different offenses arising out of the same criminal transaction as long as the Legislature intends to authorize separate punishments.” Id.; see also Borges v. State, 415 So.2d 1265, 1267 (Fla. 1982) (“The Double Jeopardy Clause presents no substantive limitation on the legislature’s power to prescribe multiple punishments, but rather, seeks only to prevent courts either from allowing multiple prosecutions or from imposing multiple punishments for a single, legislatively defined offense.” (citation and internal quotation marks omitted)).

To determine whether the Florida Legislature intended to authorize separate punishments for different offenses arising out of the same criminal transaction, courts first look to the statutes defining the crimes to see if there are any “specific, clear and precise statements of legislative intent.” Valdes, 3 So.3d at 1071. Absent a clear statement of legislative intent in the criminal offense statutes themselves, courts employ the Blockburger test, codified in section 775.021(4), Florida Statutes, to determine whether separate offenses exist. Id. at 1070-72.

Section 775.021(4)(a) provides that offenses committed in “the course of one criminal transaction or episode” are separate offenses only “if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.” In section 775.021(4)(b), the legislature has stated that its intent “is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction.” There are three enumerated exceptions to this rule of construction:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4)(b), Fla. Stat. (2009).

Here, Rimondi was convicted and sentenced for both third-degree grand theft and felony retail theft in concert with others. There is no dispute in this case that both offenses were committed in the course of one criminal transaction or episode; therefore, we must determine if the legislature intended to authorize separate punishments for these two offenses when they are committed during the same criminal transaction. Neither statute contains any “specific, clear, and precise” statement of the legislative intent to authorize separate punishments for the two offenses when they arise out of the same criminal transaction. See Valdes, 3 So.3d at 1071. Thus, we look to section 775.021(4) to discern the legislature’s intent. As a result, the resolution of this case turns on a comparison of the statutory elements of third-degree grand theft as defined in section 812.014 and felony retail theft as defined in section 812.015(8)(a).

The elements of third-degree grand theft are: (1) Knowingly (2) obtaining or using, or endeavoring to obtain or use, the property of another, (3) with the intent to either temporarily or permanently deprive the person of a right to the property or a benefit from it, or to appropriate the property to one’s own use or the use of any other person not entitled to it; and (4) the value of the property taken is valued at $300 or more. See § 812.014, Fla. Stat. (2009).

The elements of felony retail theft under section 812.015(8)(a) are: (1) Knowingly (2) taking possession of or carrying away of merchandise, property, money, or negotiable documents; (3) with intent to deprive the merchant of possession, use, benefit, or full retail value; (4) the value of the property taken is valued at $300 or more; and (5) the person, individually or in concert with one or more other persons, coordinates the activities of one or more individuals in committing the offense. See § 812.015(l)(d), (8)(a), Fla. Stat. (2009).

Although worded differently, all of the elements of third-degree grand theft are included in the offense of felony retail theft in concert with others. The felony retail theft offense, however, contains an element that is not an element of the third-degree grand theft, namely that the defendant “coordinates the activities of one or more individuals in committing the offense.” Thus, the exception enumerated in section 775.021(4)(b)3 is applicable as the statutory elements of third-degree grand theft are subsumed by the felony retail theft in concert with others offense. Although both offenses are third-degree felonies, the third-degree grand theft is a “lesser offense” because its required statutory elements are always subsumed by the retail theft offense defined in section 812.015(8)(a) “without regard to the charging document or evidence at trial.” See Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006). Consistent with this construction that retail theft in concert with others is the greater offense, the legislature has assigned a lower severity ranking to third-degree grand theft (level 2 offense) than to third-degree felony retail theft (level 5 offense). See § 921.0022, Fla. Stat. (2009).

The state contends that the dual convictions here are valid based on the Florida Supreme Court’s ruling in Valdes, 3 So.3d at 1067, because the two offenses are found in separate statutory provisions. The state’s reliance on Valdes is misplaced, however, because the supreme court in Valdes only addressed the interpretation of section 775.021(4)(b)2, which applies to “[ojffenses which are degrees of the same offense as provided by statute.” Our decision here is based on section 775.021(4)(b)3 as well as the definition of “separate offenses” as defined in section 775.021(4)(a).

The fact that all of the elements of the third-degree grand theft were subsumed by the felony retail theft charge also makes this case distinguishable from McKinney v. State, 66 So.3d 852 (Fla. 2011), where the supreme court held that a defendant could be convicted of both robbery and grand theft for the same criminal transaction. Id. at 853. The supreme court noted:

A comparison of the elements of the crimes demonstrates that each offense requires an element of proof that the other does not. Robbery requires that the State show that “force, violence, assault, or putting in fear was used in the course of the taking,” and grand theft requires that the State show the value of the property taken. Accordingly, section 775.021(4)(b)l is inapplicable. Additionally, because neither offense is wholly subsumed by the other, neither is a necessarily included offense of the other. Therefore section 775.021(4)(b)3 is also inapplicable.

Id. at 857. In this case, both the third-degree grand theft and the felony retail theft in concert with others require proof of the value of the property taken.

In summary, Rimondi’s convictions and sentences for both third-degree grand theft and felony retail theft in concert with others violate the prohibition against double jeopardy because the statutory elements of the third-degree grand theft are subsumed by the felony retail theft offense. We therefore affirm the conviction and sentence for felony retail theft in concert with others (count II) and remand with instructions that the trial court vacate the conviction and sentence for third-degree grand theft (count I). See Pizzo, 945 So.2d at 1206 (“When an appellate court determines that dual convictions are impermissible, the appellate court should reverse the lesser offense conviction and affirm the greater.”).

Affirmed in part and reversed in part.

TAYLOR and GERBER, JJ., concur.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . In 1985, the Florida Supreme Court held, "Under section 812.015, retail theft is a species of the theft defined in section 812.014, not a separate crime for purposes of penalty determination.” Emshwitler v. State, 462 So.2d 457, 458 (Fla.1985). Nothing in the legislative history from the past twenty-seven years indicates that the legislature ever disagreed with this interpretation. See Burdick v. State, 594 So.2d 267, 271 (Fla.1992) ("It is a well-established rule of statutory construction that when a statute is reenacted, the judicial construction previously placed on the statute is presumed to have been adopted in the reenactment.”). Nevertheless, it is unclear whether the supreme court’s interpretation of the retail theft statute is still authoritative after Valdes given that paragraph (b) of section 775.021(4) was added in 1988, several years after the Emshwiller opinion. See ch. 88-131, § 7 at 709-10, Laws of Fla.

      . The retail theft offenses could also be construed as containing an additional element in that the victim must be a statutorily defined "merchant.” Treating the "merchant” victim as an additional element does not change the analysis, however, as expanding the number of elements for the retail theft offense does not change the fact that all of the elements of third-degree grand theft are subsumed by it.

      . Even if the exception under section 775.02 l(4)(b)3 were inapplicable, convictions under both statutes in this case would constitute a double jeopardy violation because the two offenses are not "separate” offenses as defined in section 775.02l(4)(a) because each offense does not require “proof of an element that the other does not.” While felony retail theft as defined in section 812.015(8)(a) contains an element that is not an element of third-degree grand theft, the converse is not true — third-degree grand theft does not require "proof of an element that the other does not.”


author: STEVENSON, J.

text:
    Albert GUILDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4664.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Albert Guilder appeals his conviction for attempted first degree murder, challenging the denial of his motion for substitution of counsel and a' continuance; the self-defense jury instructions; the order granting restitution to the victim, but reserving as to amount; and the civil restitution liens entered in favor of both the Broward County Sheriffs office and the State. We affirm as to all issues except the defendant’s claim that the trial court erred in imposing civil restitution liens for incarceration costs in favor of both the Sheriffs office and the State. We write solely to address that issue.

Here, the trial court imposed a $25,500 civil restitution lien in favor of the Sheriffs office and a $250,000 lien in favor of the State, relying upon section 960.293, Florida Statutes (2006). The statute provides that

(2) Upon conviction, a convicted offender is liable to the state and its local subdivisions for damages and losses for incarceration costs and other correctional costs.
(a) If the conviction is for a capital or life felony, the convicted offender is liable for incarceration costs or other correctional costs in the liquidated damage amount of $250,000.
(b) If the conviction is for an offense other than a capital or life felony, a liquidated damage amount of $50 per day of the convicted offender’s sentence shall be assessed against the convicted offender and in favor of the state or its local subdivisions.

§ 960.293(2)(a)-(b), Fla. Stat.

The defendant insists the statute did not allow the trial court to impose a lien in favor of both the Sheriffs office and the State, relying upon Wilson v. State, 957 So.2d 683, 684-85 (Fla. 5th DCA 2007), review denied, 83 So.3d 711 (Fla.), cert. denied, — U.S.-, 132 S.Ct. 2399, — L.E.2d- (2012). In Wilson, the trial court imposed “costs of incarceration of $50 daily and $250,000,” relying upon subsections (a) and (b) of the statute. The Fifth District reversed, holding the statute was intended to impose liability for a defendant’s room, board, and other costs of incarceration and to impose a lien under both subsections would be to “double-charge” the defendant. Id. at 686. The Fifth District rejected the State’s argument that liens under both subsections were permissible as the liens “constituted separate costs.” Id.

The State insists Wilson is not disposi-tive because nothing in the opinion indicates the liens were imposed in favor of two separate entities, as is the case here. The State contends there is nothing dupli-cative in the liens as the $25,500 lien in favor of the Sheriffs office is intended to compensate it for the 1,810 days the defendant spent in jail prior to conviction. We disagree with the State’s position. Whatever factual distinctions exist between Wilson and the instant case, and regardless of the wisdom of compensating local law enforcement for pre-trial incarceration, the plain language of the statute simply does not permit the imposition of a lien under both subsections. As written, section 960.293 sets forth two scenarios: one where the defendant is convicted of a capital or life felony, triggering a liquidated damages lien of $250,000; and one where the defendant is convicted of any offense other than a capital or life felony, triggering a lien in the amount of $50 per day for each day of the sentence imposed.

Here, the defendant was convicted of attempted first degree murder, a life felony. See §§ 782.04(l)(a)l.; 777.04(4)(b); 775.087(l)(a), Fla. Stat. (2006). Thus, the only subsection of the statute that is applicable is subsection (a). Nothing in the statute can be read as authorizing a per diem restitution award where the defendant is convicted of a life felony. Accordingly, the civil restitution lien in favor of the Sheriffs Office is reversed.

Affirmed in part and Reversed in part.

WARNER and GROSS, JJ., concur.

      . In 2009, subsection (2)(b) was amended and a final sentence added. The final sentence of the subsection now reads "Damages shall be based upon the length of the sentence imposed by the court at the time of sentencing.” § 960.293(2)(b), Fla. Stat..


text:
    Robert YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5116.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


text:
    Ronaldo W. RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4926.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


text:
    Adam Benjamin HUNT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-59.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Fradley DESAMOURS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-686.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Fleming v. State, 82 So.3d 967 (Fla. 4th DCA 2011); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


text:
    Joseph GANDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1321.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Joseph Gandy, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Shiflet v. State, 50 So.3d 1153 (Fla. 4th DCA 2010).

MAY, C.J., WARNER and POLEN, JJ., concur.


text:
    Devaughn HOLSTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2997.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


author: SALTER, J.

text:
    Peter DESSA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2001.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.

      Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero and Carey Joseph, Assistant Attorneys General, for appellee.
    Before LAGOA, SALTER and FERNANDEZ, JJ.
   SALTER, J.

Peter Dessa appeals his conviction and sentence for robbery using a deadly weapon, asserting that the trial court erred in denying his motion for a new trial. We affirm the conviction and sentence, concluding that the trial court lacked jurisdiction to hear and consider Dessa’s motion for a new trial. As a consequence of that conclusion, Dessa will be able to raise the issues identified in his motion for a new trial — “newly-discovered evidence” relating to a co-defendant’s statements to federal law enforcement authorities regarding the armed robbery for which Dessa was charged, tried, and convicted — in a post-conviction motion under Florida Rule of Criminal Procedure 3.850.

Dessa was found guilty in a jury verdict returned April 17, 2008. His motion for a new trial was filed forty-seven days later, on June 3, 2008. The motion does not set forth any particulars as to when the “new and material evidence” or alleged confession of the co-defendant were obtained.

Florida Rule of Criminal Procedure 3.590(a) specifies that a motion for new trial (in a noncapital case such as this) is to be made within ten days after the rendition of the verdict. The ten-day period “is jurisdictional in nature and, hence, cannot be extended by the parties or the trial court.” State v. Bodden, 756 So.2d 1111, 1113 (Fla. 3d DCA 2000). The lack of jurisdiction in the trial court is also fatal to our jurisdiction to review the trial court’s ruling on the motion for new trial on its merits. See Daniels v. State, 712 So.2d 765 (Fla.1998).

We therefore dismiss Dessa’s appeal for lack of jurisdiction to the extent that it seeks review of the trial court’s denial of the motion for new trial, but without prejudice to his right to raise the claim of newly-discovered evidence in a separate post-conviction motion under Florida Rule of Criminal Procedure 3.850.

Affirmed in part, dismissed in part for lack of jurisdiction.

      . Dessa was not sentenced, and this appeal was not commenced, until 2010, as the trial court considered Dessa’s motion For a new trial in the interim.

      . In Bodden, we found the record sufficient to establish ineffective assistance of trial counsel regarding the late-filed motion for new trial, such that the claim could be raised and determined on direct review. 756 So.2d at 111 3— 14. In the case at hand, however, the record lacks sufficient detail to permit such a review.


text:
    Kevens LOUIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4405.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

GROSS, HAZOURI and CONNER, JJ., concur.


author: SHEPHERD, J.

text:
    Sandra P. CASTILLO, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D11-2132.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Rehearing Denied July 5, 2012.
    Jimenez, Milian & Associates and Robert R. Jimenez, for appellant.
    Smith Hiatt & Diaz, and Roy A. Diaz and Diana B. Matson, Fort Lauderdale, for appellee.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   SHEPHERD, J.

The appellant in this case challenges the appellee’s standing to bring a foreclosure action against the appellant, arguing the appellee, a common-law trust, failed to comply with its pooling and servicing agreement when it took possession of the original note and mortgage and thus the trust cannot legally be in possession of the note and mortgage when it was obtained in violation of its trust documents. Because the appellant is neither a party to nor a third-party beneficiary of the trust, we find the appellant lacks standing to raise this issue and affirm the final judgment of foreclosure in favor of the appellee, as the holder of the original note and mortgage. See In re Walker, 466 B.R. 271, 280-81 (Bankr.E.D.Pa.2012); In re Almeida, 417 B.R. 140, 149 (Bankr.D.Mass.2009); see also Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010).

Affirmed.


text:
    TOWNGATE VILLAS HOMEOWNERS, etc., Appellant/Plaintiff, v. Frank and Aurora JOSLYN, Appellees/Defendants.
    No. 3D11-2996.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Lionel Barnet, Miami, and Carol Barnet, for appellant.
    Frank Joslyn and Aurora Joslyn, in proper persons.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Alhambra Homeowners Assoc. v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006).


text:
    Damian FERNANDEZ-TELLEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-221.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Damian Fernandez-Tellez, in proper person.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the trial court’s order denying Appellant’s motion, which sought an award of additional credit for time served. Although Appellant’s motion was brought in the alternative under Florida Rules of Criminal Procedure 3.800(a) and Rule 3.850, Appellant is not entitled to relief under either provision. His claims are not properly brought under Rule 3.800(a), see Johnson v. State, 60 So.3d 1045 (Fla. 2011); Crawford v. State, 77 So.3d 807 (Fla. 3d DCA 2011), and are time-barred under Rule 3.850(b) (a motion for postcon-viction relief will not be considered if filed more than two years after the judgment and sentence become final, subject to exceptions for newly-discovered evidence, retroactive application of a fundamental constitutional right, or failure of retained counsel to file a timely postconviction motion).

Affirmed.

      . Additionally, appellant’s claim that he is entitled to credit for time served on house arrest is without merit. Perez v. State, 870 So.2d 865 (Fla. 3d DCA 2004); Fernandez v. State, 627 So.2d 1 (Fla. 3d DCA 1993).


text:
    Jose Antonio VELEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1087.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Jose Antonio Velez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and EMAS, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial,, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceeding.


text:
    Jessie Levon DYSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1132.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Rehearing Denied July 5, 2012.
    Jessie Levon Dyson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Affirmed. See Hitchcock v. State, 866 So.2d 23, 27 (Fla.2004) (holding “[A] mov-ant, in pleading the requirements of rule 3.853, must lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence. In order for the trial court to make the required findings, the movant must demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case.”); Van Poyck v. State, 908 So.2d 326, 330 (Fla. 2005) (holding a capital defendant could not make requisite showing that DNA evidence proving he was not the “triggerman” would create reasonable probability of receiving a lesser sentence, where State’s theory, jury’s recommendation, and trial court’s death sentence, was based primarily upon defendant’s status as a major participant in crime, not upon his status as a triggerman).


text:
    ARTHUR W. TIFFORD, P.A., and Tifford and Tifford, P.A., Appellants, v. LITIGATION CONCEPTS, L.C., et al., Appellees.
    Nos. 3D10-2045, 3D10-2044, 3D10-1277.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Tifford and Tifford and Arthur Tifford, Miami, for appellants.
    Kluger, Kaplan, Silverman, Katzen & Levine and Alan Kluger and Terri Meyers, Miami, for appellees.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   PER CURIAM.

We affirm, holding that the trial court properly entered final summary judgment in favor of appellees on appellants’ claims for breach of contract and fraudulent inducement. See Faro v. Romani, 641 So.2d 69, 71 (Fla.1994) (holding “when an attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation.”).

We likewise affirm the trial court’s orders denying each party’s motion for sanctions pursuant to section 57.105, Florida Statutes (2010), finding no abuse of discretion in the trial court’s determinations.

Affirmed.


text:
    Timothy PHILLIPS, Appellant, v. CENTENNIAL BANK f/k/a Marine Bank, Appellee.
    No. 3D10-2910.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.

      Christian J. Cruz, Sunrise, for appellant.
    Feldman Koenig Highsmith & Van Loon and David Van Loon, Key West, for appel-lee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   On Motion for Clarification and/or Certification

PER CURIAM.

We deny appellant’s motion for rehearing but substitute the following for our original opinion of October 19, 2011.

Affirmed.


text:
    Jimmy Willis GARDNER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2883.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 722-23 (Fla. 3d DCA 2011) (holding that “section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional”; rejecting Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289, 1308 (M.D.Fla.2011), in which federal court held that section 893.13, Florida Statutes (2004), “violates the due process clause and that the statute is unconstitutional on its face”); Ortega v. State, 76 So.3d 346 (Fla. 3d DCA 2011); see also State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), review granted, 71 So.3d 117 (Fla.2011).


text:
    William BRYANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3366.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Rehearing Denied July 5, 2012.
    William Bryant, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.Sd 722, 722-23 (Fla. 3d DCA 2011) (holding that “section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional”; rejecting Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289, 1308 (M.D.Fla.2011), in which federal court held that section 893.13, Florida Statutes (2004), “violates the due process clause and that the statute is unconstitutional on its face”); Ortega v. State, 76 So.3d 346 (Fla. 3d DCA 2011); see also State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), review granted, 71 So.3d 117 (Fla.2011).


text:
    HEARTLAND EXPRESS, INC. OF IOWA, Appellant, v. Juan TORRES, Appellee.
    No. 1D12-0606.
    District Court of Appeal of Florida, First District.
    June 6, 2012.
    E.T. Fernandez, III, and Gregory E. Blackwell, of Fernandez Trial Lawyers, P.A., Jacksonville, for Appellant.
    Dennis R. Schutt, and Jeffrey D. Devon-chik, of Schutt, Schmidt and Noey, Jacksonville, for Appellee.
   PER CURIAM.

DISMISSED. See Hernando County v. Leisure Hills, Inc., 648 So.2d 257 (Fla. 5th DCA 1994) (determining that order reserving jurisdiction to determine damages is non-final); Amendments to Fla. R. App. P., 780 So.2d 834 (Fla.2000) (repealing former rule 9.130(a)(3)(C)(iv), which allowed interlocutory review of orders determining liability in favor of a party seeking affirmative relief); see also Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009) (dismissing appeal rather than allowing lower court to enter a final order where an indeterminate amount of judicial labor remained to be done before a final order could be entered).

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    Mary ROGERS, Appellant, v. Tarawatee BHOWANI and Shandra Jairam, Appellee.
    No. 5D10-3816.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    Kenneth McKenna and Brian T. Wilson of Dellecker, Wilson, King, McKenna & Ruffer, Orlando, and Barbara Green, of Barbara Green, P.A., Coral Gables, for Appellant.

      WM. Jere Tolton, III, and Dennis R. O’Connor of Ogden, Sullivan & O’Connor, P.A., Tampa for Appellees.
   PER CURIAM.

AFFIRMED.

LAWSON and COHEN, JJ., concur.

JACOBUS, J., dissents, with opinion.

JACOBUS, J., dissents, with opinion.

I would reverse. I do not believe Ms. Rogers received a fair trial in this matter due to the misconduct of defense counsel throughout trial. First, defense counsel demonstrated his disdain for the plaintiffs expert, Dr. Craig Lichtblau. This began during his cross-examination, when defense counsel told Dr. Lichtblau that his office had vetted him, that the defense had reviewed his prior testimony and continuation of care plans, that those materials had been assembled in the two boxes next to him, and that he had drawn a few questions from those materials. Defense counsel then continued by questioning Dr. Lichtblau and making faces to the jury during the doctor’s testimony. Further, during final argument, defense counsel suggested to the jury that Dr. Lichtblau looked like Alfred E. Neumann and that he was “the Costco of experts.” Those kinds of comments are unprofessional and uncalled for in a trial.

The next issue worth discussing arose during the testimony of Grady McBride, the physician who conducted the compulsory medical examination of Ms. Rogers. The lawyers had agreed Ms. Rogers would not have to give Dr. McBride any history nor was she required to fill out any interrogatory forms regarding the accident at his office. During the cross-examination of Dr. McBride, there was testimony indicating that Dr. McBride had not reviewed certain medical records containing histories that Ms. Rogers had provided to other doctors. On re-direct, defense counsel, who was a party to the agreement, asked Dr. McBride “Doctor, is there a reason why you don’t have a history from Ms. Rogers?” After the trial court overruled plaintiffs objection to this question, Dr. McBride testified that Ms. Rogers “refused to complete the patient history form or answer or discuss any questions about the accident.” Further, Dr. McBride ultimately stated in front of the jury that he wondered “why someone is not cooperative.” The following morning, plaintiffs counsel renewed his objection to the line of questioning regarding Ms. Rogers’ failure to provide Dr. McBride a history and requested a curative instruction. Plaintiffs counsel asked that the instruction inform the jury that there was an agreement between the lawyers that Ms. Rogers would not have to give a history to Dr. McBride. Defense counsel objected to the proposed curative instruction, pointing out that it would make him look bad to the jury because he knew of the agreement and asked Dr. McBride the question. The court modified the curative instruction and informed the jury that Ms. Rogers was not obligated to give a history to Dr. McBride, but the instruction did not discuss the lawyers’ agreement. I believe the instruction left an impression with the jury that Ms. Rogers was being evasive.

Finally, in closing argument, defense counsel not only demeaned Dr. Lichtblau but he also pointed out to the jury that he knew things about the case that they did not know. Further, counsel dwelled on the fact that Ms. Rogers failed to call her treating physicians as witnesses. The court sustained the objection to that argument and gave a curative instruction, stating that the jury “should draw no inferences from the fact that a particular witness was not called to testify in this case.” Not to be deterred after the objection, defense counsel went on to say “Ladies and Gentlemen, the very physician that performed the back surgery did not testify.” Defense counsel was aware that he and Ms. Rogers had the same opportunity to call that witness. Because of the cumulative effects of defense counsel’s unprofessional behavior, I would reverse, finding that Ms. Rogers did not receive a fair trial and that she met the requirements as set out in Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000).

      . Although the boxes were placed next to defense counsel during his examination because he claimed he needed them for impeachment, counsel did not actually use any of the materials in the boxes to impeach Dr. Lichtblau.