author: CIKLIN, J.

text:
    EAGLETECH COMMUNICATIONS, INC., a Nevada Corporation authorized to do business in the State of Florida, Appellant, v. BRYN MAWR INVESTMENT GROUP, INC., a/k/a Valley Forge Securities, Inc., a Pennsylvania corporation; John Serubo, individually and as an agent of Valley Forge Securities, Inc., f/k/a Bryn Mawr Investment Group, Inc.; Lloyds Bahamas Securities, Ltd., a Bahamian corporation; T.R. Kessler; Robert Dobbs; Robert Bergman; Paradigm Group, II, L.L.C., a Delaware Limited liability company; The Paradigm Group, Inc., a Delaware corporation; Paradigm Millennium Fund, L.P., a Delaware limited partnership; Paradigm/Eagletech, L.P., an Illinois limited partnership; LBC Capital Resources, Inc., a/k/a LBC Capital Group, a Massachusetts corporation; Goulding Trust, an Illinois trust; Randal S. Goulding; Sheldon Drobny; Thomas Papoutsis; Sigmund A. Eisenschenk; Jerome Schachter; Buzz Simmons; Richard Kushnir; J.E. Liss Financial Services, a Minnesota corporation; Michael O’Brien; Oscar Gruss & Son, a New York corporation; National Securities, a Washington State corporation; Arbus Capital Ltd., an Illinois limited partnership; Arbus/Eagletech, L.P., an Illinois limited partnership; Stephen Jouzapaitis; Harry Leopold; Hawthorn Capital Corporation, a New York corporation; John Dorocki; Charles Parkhurst; Christopher Fitzmaurice; Peter G. Hirsch; William Kelly; Thomas Tierney; Salomon Smith Barney, a Delaware corporation; Knight Securities, a Delaware corporation; Schwab Capital Markets, L.P., a Massachusetts limited partnership; Trinity Technology Management Incorporated, a Pennsylvania corporation; William Mongiardo; Thomson Kernaghan & Company, Ltd., an Ontario, Canada corporation; Richmond Associates, Inc.; and T.J. Madison, Appellees.
    No. 4D09-3949.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.

      Fred O. Goldberg and Charles H. Lieht-man of Berger Singerman, Miami, and Joe E. Luce, Stephen Ray Smith, and Stephen H. Cagle of Christian, Smith & Jewell LLP, Houston, Texas, for appellant.
    Jane W. Moscowitz of Moscowitz & Mos-cowitz, P.A., Miami, for appellees Harry Leopold, LBC Capital Corporation, and Hawthorne Capital Corporation.
    Christopher N. Bellows, Tiffani G. Lee and Monica Vila of Holland & Knight LLP, Miami, for appellees Salomon Smith Barney, Inc., Peter Hirsch, Charles Park-hurst, Thomas Tierney, and Christopher Fitzmaurice.
    Carl F. Schoeppl of Schoeppl & Burke, P.A., Boca Raton, for appellees John Do-rocki, Trinity Technology Management, Inc., and T.J. Madison.
   CIKLIN, J.

In this appeal, Eagletech Communications, Inc. (“Eagletech”) is seeking review of the trial court’s final order dismissing its Fifth Amended Complaint with prejudice. We affirm the trial court’s dismissal of the complaint; however, we reverse the order to the extent it dismissed the complaint with prejudice.

BACKGROUND

Factual Allegations

Eagletech was a Nevada startup corporation with its principal place of business located in Fort Lauderdale, Florida. Ea-gletech’s founder had developed and patented both a “telecommunications ‘core’ technology” and a method for implementing that technology. Eagletech required, but lacked, the capital that it needed to develop and market its technologies. To meet its capital requirements, Eagletech underwent a series of three rounds of financing involving the twenty-nine named defendants.

In November 1998, Eagletech’s founder was introduced to John Serubo, who in turn introduced him to the Bryn Mawr Investment Group (“Bryn Mawr”) and Lloyds Bahamas Securities, Ltd. (“Lloyds”). In June 1999, Bryn Mawr promised to commit an aggregate amount of $5 million (the “First Funding”). As conditions of providing capital, Bryn Mawr and Lloyds required Eagletech, among other concessions, to hire LBC Capital Corp. (“LBC Capital”) as its consultant and to hire Robert Dobbs as its chief operating officer. Eagletech reluctantly agreed to the requirements based upon certain representations from Bryn Mawr, Lloyds, LBC Capital, and Dobbs. Instead of the $5 million initially sought, Eagletech netted only $950,000 due in part to prepaid contract fees required as a condition of funding. After securing an extension on Dobbs’ employment agreement as a condition of further funding, Bryn Mawr and Lloyds informed Eagletech that they were not capable of providing more capital.

Because Eagletech was still in desperate need of capital, Eagletech subsequently entered into a funding agreement in February 2000 with T.R. Kessler and Richmond Associates, both affiliates of the First Funding investors. This agreement was represented to be additional funding in the amount of $490,000 (the “Second Funding”). Dobbs attended the closing and accepted a single promissory note instead of cash. The promissory note contained privileges to convert portions of the note into Eagletech’s stock.

Immediately thereafter, also in early February 2000, Eagletech was introduced by a member of LBC Capital to John Dorocki at Salomon Smith Barney (“SSB”) in New York. Dorocki was employed by SSB where he held a high management position. Eagletech decided to enter into a financing transaction with Dorocki and his investors based on Dorocki’s representations that SSB would underwrite this funding and that the financial transaction would have the source and backing of SSB (the “Third Funding”).

During March and April 2000, Eagletech negotiated on the financial requirements of this Third Funding with Dorocki and the investors that he had organized. On April 5, 2000, Dobbs traveled to Chicago to meet with some of the potential investors referred to in the Fifth Amended Complaint as Paradigm. Around this time, Dorocki and SSB formed Trinity Technology Management, Inc. to fund the transaction separate and apart from SSB which, according to Dorocki, was customary for transactions such as the Third Funding here.

Between April 5 and April 16, all the named defendants set about executing short sales to drive down the price of Eagletech stock prior to their investment. This short-selling activity resulted in a sharp decline in Eagletech’s stock price. Eagletech’s board of directors subsequently decided, on April 16, 2000, to accept the terms of the Third Funding. The terms approved by Eagletech’s board provided that there would be no short-selling of Eagletech’s stocks by the Third Funding investors or any of their affiliates, agents, or servants.

On Friday, May 5, 2000, at 4:27 p.m., Robert Coyne, attorney for Paradigm and Trinity (two of the investment groups in the Third Funding), sent an email to Christopher Flannery, an attorney and one of Eagletech’s board members. The email stated, “Your changes to the term sheet are accepted. I have made several changes, none of which I believe are material.” In fact, Coyne had altered the term sheets, enlarging the definition of a “DRP transaction” to include a short sale in a single day of up to 20% of the weekly trading volume of Eagletech’s stock. This altered definition of the term “DRP transaction” was not the industry definition of the term and would permit the investors to circumvent the “no short-selling” clause of the agreement. On May 12, 2000, relying on Coyne’s representation that none of the changes he had made were material, combined with Coyne’s acceptance of the term redlined by Eagletech’s attorney, Eagle-tech’s board voted to accept the term sheet sent by Coyne on May 5, 2000.

The Third Funding closed on May 16, 2000. The investors in this funding received shares of Eagletech preferred stock which were convertible "into common shares. The conversion was based on the market price of the common stock and there was no limit to the number of common shares into which the preferred shares could convert.

On May 14, 2001, Paradigm (a group of Third Funding investors) filed a Form 144 with the SEC announcing its intention to sell one million shares of Eagletech’s restricted stock. As of its filing, Paradigm owned no shares of Eagletech’s stock, restricted or otherwise. According to Eagle-tech, Paradigm filed this Form 144 with the purpose of triggering a shareholder sell off. Between May 14, 2001 and May 18, 2001, Eagletech’s stock plummeted over 40%, from $.73 to $.42. On May 18, 2001, Paradigm caused conversion notices to be filed, seeking to convert its preferred stock to common stock. Eagletech refused to comply with the conversion requests.

Procedural History

In November 2001, Eagletech filed its initial complaint in Miami-Dade county against the investors in the three rounds of capital funding described above. Many of the defendants filed motions to dismiss, but before the trial court ruled on any such motions, Eagletech amended its complaint in June 2002.

In October 2002, Eagletech filed its second amended complaint. Most of the defendants again filed motions to dismiss. In February 2003, Eagletech, with leave of the trial court, filed its third amended complaint. In May 2003, the case was transferred to the Seventeenth Judicial Circuit in Broward County. In August 2004, the trial court denied LBC Capital’s motion to dismiss.

In December 2005, with leave of the trial court, Eagletech filed its fourth amended complaint. The defendants again filed motions to dismiss. In April 2007, the trial court entered an order denying two defendants’ motion to dismiss for lack of personal jurisdiction. In that order, the trial court wrote that the “Fourth Amended Complaint adequately sets forth allegations of a conspiracy to commit a tortious act.” Without any further rulings on the remaining motions to dismiss the fourth amended complaint, the trial court entered an order transferring the case to the complex business civil division.

In October 2008, Eagletech filed its Fifth Amended Complaint. Eagletech’s complaint contains 142 numbered paragraphs spanning forty-nine pages and raises eleven counts. In this appeal, Ea-gletech only argues that five of those counts were sufficiently pled: fraud (count one), conspiracy (count two), violations of the Florida RICO statutes (counts three and four), and violations of the Florida Securities Investors Protection Act, i.e. securities fraud (count six). Most (if not all) of the defendants filed motions to dismiss the Fifth Amended Complaint. Following a hearing on the motion, the trial court entered an order granting the dismissal of the Fifth Amended Complaint with prejudice. Subsequently, the trial court entered final orders as to all named defendants. Eagletech now appeals the dismissal of its action with prejudice.

ANALYSIS

A dismissal for failure to state a cause of action is reviewed de novo. Wells v. Wells, 24 So.3d 579, 582 (Fla. 4th DCA 2009). “A motion to dismiss for failure to state a cause of action admits all well pleaded facts as true, as well as reasonable inferences that may arise from those facts.” Id. (emphasis added) (citation and quotation marks omitted).

Count One — Fraud

“To state a cause of action for fraud in the inducement, the Plaintiff must allege (a) a misrepresentation of a material fact; (b) that the representor of the misrepresentation knew or should have known of the statement’s falsity; (c) that the rep-resentor intended that the representation would induce another to rely and act on it; and (d) that the plaintiff suffered injury in justifiable reliance on the representation.” Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 497 (Fla. 4th DCA 2001). Furthermore, “[i]n order for a claim of fraud in the inducement to withstand a motion to dismiss, it must allege fraud with the requisite particularity required by Florida Rule of Civil Procedure 1.120(b), including who made the false statement, the substance of the false statement, the time frame in which it was made and the context in which the statement was made.” Bankers Mut. Capital Corp. v. U.S. Fid. & Guar. Co., 784 So.2d 485, 490 (Fla. 4th DCA 2001).

In count one of the Fifth Amended Complaint, Eagletech alleged fraud and sought damages from all twenty-nine named defendants. The count re-alleged the first seventy-three paragraphs of the complaint and then included an additional ten paragraphs. In paragraph seventy-four of the complaint, Eagletech then listed nine “misrepresentations” that were allegedly made to induce Eagletech to agree to the terms of the three rounds of funding. Those allegations, however, were all insufficiently pled.

Many of the statements were simply inactionable as either statements of opinions or promises of future action. See Wadlington v. Cont'l Med. Servs., Inc., 907 So.2d 631, 632 (Fla. 4th DCA 2005) (“As a general rule, a false statement of fact, to be a ground for fraud, must be of a past or existing fact, not a promise to do something in the future.” (citation and quotation marks omitted)). To the extent that some of the statements were false statements of past or existing facts, Eagletech failed to identify who made the statements and in what context. In Simon v. Celebration Co., 883 So.2d 826 (Fla. 5th DCA 2004), the Fifth District wrote, “The lack of specificity is particularly troublesome here where nine separate defendants are lumped together in each count in a complaint that often fails to particularize which of the nine defendants made which statements.” Id. at 833. Here, rather than lumping a mere nine defendants together, Eagletech lumped twenty-nine defendants together and failed to identify which defendant made which statement. Thus, the trial court correctly concluded that these other allegations of fraud lacked the required specificity.

On appeal, Eagletech notes that its fraud claim re-alleged the first seventy-three paragraphs of the complaint and argues that in paragraphs fifty, and fifty-three to fifty-five of the Fifth Amended Complaint, it stated facts with the requisite particularity to support a claim for fraud in the inducement. In those paragraphs, Eagletech alleged that on April 16, 2000, its board of directors approved terms for the Third Funding that included a “no short-selling clause.” On Friday, May 5, 2000, at 4:27 p.m., Robert Coyne, who Eagletech identifies as “attorney for Defendants Paradigm and Trinity,” sent an email to Christopher Flannery, an attorney and a member of Eagletech’s board of directors. The email stated, “[y]our changes to the term sheet are accepted. I have made several changes, none of which I believe are material.” According to the complaint, Coyne’s changes in fact were material as they permitted the investors to circumvent the “no short-sell clause” by modifying the definition “DRP transaction” to permit certain short-selling transactions. Eagletech alleged that the industry definition of “DRP Transaction” did not include short-selling transactions. Ea-gletech further claimed that it relied on Coyne’s representation that he had accepted Eagletech’s changes and that none of the changes he made to the final draft were material.

We agree that the paragraphs cited by Eagletech could support a fraud claim against a single appellee — Trinity Technology Management, Inc. Nevertheless, the trial court correctly dismissed Eagletech’s single fraud count because Eagletech im-permissibly comingled separate and distinct fraud claims in a single count. See Fla. R. Civ. P. 1.110(f) (“Each claim founded upon a separate transaction or occurrence ... shall be stated in a separate count ... when a separation facilitates the clear presentation of the matter set forth.”); KR. Exch. Servs., Inc. v. Fuerst, Humphrey, Ittleman, PL, 48 So.3d 889, 893 (Fla. 3d DCA 2010) (“A party should plead each distinct claim in a separate count, rather than plead the various claims against all of the defendants together.”). The transaction described in paragraphs fifty-three to fifty-five relating to events that occurred around the Third Funding are distinct from the alleged misrepresentations made by different parties to induce Eagletech to enter into the First Funding. Although the trial court was correct in dismissing the fraud claim because it was improperly pled, the allegations in the paragraphs cited above demonstrate that the complaint is amendable to state a cause of action.

Count Two — Civil Conspiracy

In Florida, “[a] civil conspiracy requires: (a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.” Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla. 3d DCA 1997). “General allegations of conspiracy are inadequate.” World Class Yachts, Inc. v. Murphy, 731 So.2d 798, 799 (Fla. 4th DCA 1999). A complaint must “set forth clear, positive, and specific allegations of civil conspiracy.” See id.

In its conspiracy count, Eagletech alleged that the named defendants “combined, agreed, and conspired with each other to devise a scheme.” Eagletech never explained what this alleged “scheme” was. As such, Eagletech failed to clearly set forth the “act” — the second required element for pleading a conspiracy — which the appellees allegedly agreed to undertake. As such, the trial court correctly concluded that the complaint “makes only the barest allegations about the alleged conspiracy, with no details as to the unlawful scheme or the actual agreement of the parties.”

Eagletech’s conspiracy count was also insufficient because Eagletech failed to allege sufficient facts from which a reasonable inference could be drawn that all of the named defendants participated in a conspiracy to defraud Eagletech. Eagle-tech’s complaint merely speculates that the appellees all participated in some conspiracy because they ultimately received some benefit from the transactions. But, “[t]o assume or speculate ... that the [appel-lees] participated in a conspiracy ... merely because they ultimately received some benefits from the [investments] is insufficient for the imposition of liability against them.” Raimi, 702 So.2d at 1285.

Counts Three and Four — Violations of Florida’s RICO Statute

In counts three and four of the Fifth Amended Complaint, Eagletech alleges violations of The Florida Civil Remedies for Criminal Practices Act — Florida’s RICO equivalent. Section 772.103, Florida Statutes, makes it unlawful for any person “[t]hrough a pattern of criminal activity ... to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property,” or for a person “[e]mployed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of criminal activity,” or to conspire to do so. § 772.103, Fla. Stat. (2000). Section 772.104(1) provides civil remedies for violations of section 772.103.

Section 772.102 .defines a “pattern of criminal activity” as “engaging in at least two incidents of criminal activity that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents.” § 772.102(4), Fla. Stat. (2000) (emphasis added).

Thus, to bring a RICO action in Florida, a plaintiff has to show “there has been some sort of ongoing criminal behavior.” Ginsberg v. Lennar Fla. Holdings, 645 So.2d 490, 501 (Fla. 3d DCA 1994). The purpose of the statutes “is to punish, through civil penalties, actions which are ongoing and criminal in nature.” Id. To maintain an action under section 772.103, a plaintiff must plead the necessary predicate acts or continuity of endeavor. See id.

Eagletech has not properly alleged the necessary predicate acts in its Fifth Amended Complaint. At best, the complaint alleges potential fraudulent activity surrounding the Third Funding. Nevertheless, Eagletech has attempted to allege multiple criminal acts all related to the Third Funding. For example, Eagle-tech alleged that the appellees committed mail fraud when they mailed the conversion notices. These allegations are insufficient, however, as section 772.102(4) states, “For the purposes of this chapter, the term ‘pattern of criminal activity’ shall not include two or more incidents of fraudulent conduct arising out of a single contract or transaction against one or more related persons.” § 772.102(4).

Thus, even if mailing the conversion notices constituted “fraudulent conduct,” this arose out of the same contract or transaction with Eagletech as the alleged misrepresentations that occurred in inducing Eagletech to agree to the sale of the preferred stock. As such, Eagletech’s complaint fails to allege “at least two incidents of criminal activity” as required. We also note that for the purpose of establishing a common enterprise consisting of the named defendants, Eagletech has treated the three funding agreements as a single transaction. As such, Eagletech would have had to have pled at least one incident of criminal activity that was unrelated to any of the three funding agreements in order to sufficiently plead its RICO claims.

Eagletech’s RICO claims are also insufficient in that the allegations merely track the language of the statute in an attempt to allege a cause of action. But, “[a] party does not properly allege a cause of action by alleging in conclusive form, which tracks the language of the statute, acts which lack factual allegations and merely state bare legal conclusions.” See Ginsberg, 645 So.2d 490 at 501.

Thus, the trial court properly dismissed Eagletech’s two counts for violations of the Florida Civil Remedies for Criminal Practices Act.

Count Six — Florida’s Securities Investor Protection Act

Count six of the Fifth Amended Complaint alleges violations of the Florida Securities and Investor Protection Act, and in particular violation of section 517.301, Florida Statutes (2000). Section 517.211(2) creates a civil remedy for a violation of section 517.301:

Any person purchasing or selling a security in violation of s. 517.301, and every director, officer, partner, or agent of or for the purchaser or seller, if the director, officer, partner, or agent has personally participated or aided in making the sale or purchase, is jointly and severally liable to the person selling the security to or purchasing the security from such person in an action for rescission, if the plaintiff still owns the security, or for damages, if the plaintiff has sold the security.

§ 517.211(2), Fla. Stat. (2000) (emphasis added). The Florida Supreme Court has interpreted the emphasized language above as requiring buyer/seller privity to maintain a cause of action for securities fraud under the Florida statutes. See E.F. Hutton & Co. v. Rousseff, 537 So.2d 978, 980 (Fla.1989).

In count six, Eagletech alleged that the named defendants had violated section 517.301(1) via a market manipulation scheme. According to Eagletech, the defendants engaged in short-selling of Eagletech’s stock from a “naked position” with the intent of driving down the price of the stock. Because the investors in the Third Funding had received floorless convertible preferred stock, they would benefit from the low stock price because they could convert their preferred shares into a huge number of common shares to cover their previously naked short positions.

Eagletech’s Fifth Amended Complaint fails to allege that Eagletech was the purchaser in the allegedly fraudulent naked short-sale transactions. To the contrary, Eagletech alleges that the short sales occurred on the open market. Eagletech argues that the conversion demands made by the investors from the Third Funding constituted a purchase and sale of its stock. This argument fails for two reasons. First, the exercise of the conversion feature in the preferred stock from the Third Funding does not qualify as a purchase or sale of a security. See Log On Am., Inc. v. Promethean Asset Mgmt. L.L.C., 223 F.Supp.2d 435, 446 (S.D.N.Y.2001). Second, Eagletech alleged in its complaint that it refused to comply with the conversion requests. As such, Eagletech has failed to allege the requisite buyer/seller privity.

Dismissal with Prejudice

Eagletech argues that even if the trial court correctly concluded that the Fifth Amended Complaint was legally insufficient, the trial court abused its discretion in dismissing its complaint with prejudice rather than with leave to amend. We agree. Eagletech was never given an opportunity to cure the defects in the pleading found by the trial court. See Horton v. Freeman, 917 So.2d 1064, 1066 (Fla. 4th DCA 2006) (“[T]rial courts must generally afford a litigant an opportunity to cure a defect in the pleading before dismissing it with prejudice.”); Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999) (“A claim should not be dismissed with prejudice without giving the plaintiff an opportunity to amend the defective pleading, unless it is apparent that the pleading cannot be amended to state a cause of action.” (citation and quotation marks omitted)).

Prior to the trial court’s dismissal of the Fifth Amended Complaint, no previous trial court hearing this case had granted any motion to dismiss previous complaints in their entirety for failure to state a cause of action. To the contrary, the record contains orders wherein prior trial judges had denied motions to dismiss based on a failure to state a cause of action. Thus, although Eagletech has filed six complaints in this case over seven years, the dismissal being appealed from in this case is the first time that a trial court had ruled that Eagletech’s complaint was insufficient.

The causes of action which Eagletech argues on appeal were sufficiently pled have remained virtually unchanged since Eagletech filed its Third Amended Complaint in February 2003. In August 2004, the previous trial court entered an order denying LBC Capital’s motion to dismiss which raised the same issues as the motions the trial court ultimately granted. Furthermore, in April 2007, the previous trial court entered an order denying a motion to dismiss for lack of jurisdiction. In that order, the trial court wrote that the “Fourth Amended Complaint adequately sets forth allegations of a conspiracy to commit a tortious act.” Thus, Eagletech was left to believe for a period of at least five years that its complaint sufficiently pled the causes of action at issue in this appeal.

Florida Rule of Civil Procedure 1.190(a) states that leave of the court to amend a pleading should be “given freely when justice so requires.” This rule requires giving a party leave to amend a complaint where, as here, after a prior judge rules that a complaint is legally sufficient, a successor judge later determines that an amended complaint which retains the same counts and factual allegations fails to state a cause of action. See Radaker v. Houston, Cooper, Shahady & Frazier, P.A., 608 So.2d 940-41 (Fla. 4th DCA 1992) (“However, based upon the trial court’s earlier order denying appellees’ motion to dismiss appellant’s amended verified complaint, we hold the trial court abused its discretion when it dismissed appellee’s second amended verified complaint with prejudice.”). It is not the number of amendments which determine when a complaint should be dismissed with prejudice, but rather the number of “ineffective attempts to state the same cause of action” which must be considered. See Walters v. Ocean Gate Phase I Condo., 925 So.2d 440, 443 (Fla. 5th DCA 2006) (“Generally three ineffective attempts to state the same cause of action ... are enough.” (emphasis added) (quoting Trawick’s Florida Practice & Procedure § 14-2 at 225 (2006))).

CONCLUSION

We affirm the trial court’s ruling dismissing Eagletech’s Fifth Amended Complaint for failure to state a cause of action. We find, however, that based on the orders of the previous trial judges denying similar motions to dismiss the third and fourth amended complaints, the trial court erred in dismissing the Fifth Amended Complaint with prejudice. Accordingly, we reverse the trial court’s order to the extent that it dismisses the Fifth Amended Complaint with prejudice and remand this cause to the trial court with instructions to allow appellant leave to amend its complaint.

Affirmed in part, reversed in part, and remanded for further proceedings.

MAY, C.J, and STEVENSON, J., concur.

      . The following facts are taken from Eagle-tech’s Fifth Amended Complaint and supporting documents, which we must accept as true in reviewing a motion to dismiss for failure to state a cause of action. See Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011) ("A court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true.” (citation and quotation marks omitted)).

      . The Paradigm group of investors included the following nine named defendants: Paradigm Group II, L.L.C.; The Paradigm Group, Inc.; Paradigm Millennium Fund, L.P.; Paradigm/Eagletech, L.P.; Goulding Trust; Randal S. Goulding; Sheldon Drobny; Thomas Papoutsis; and Sigmund Eisenschenk. The appeal as to these defendants was dismissed as untimely filed.

      . We reiterate that the above facts are cited as alleged in the Fifth Amended Complaint. We accept these facts as true only for the purpose of analyzing the sufficiency of the complaint.

      . "An investor sells short when he sells a security that he does not own by borrowing the security, typically from a broker. At a later date, he 'covers' his short position by purchasing the security and returning it to the lender. A short seller speculates that the price of the security will drop.” ATSI Commc'ns, Inc., v. Shaar Fund, Ltd., 493 F.3d 87, 96 n. 1 (2d Cir.2007).

      . This type of security is referred to as a "floorless” convertible security. See ATSI Commc'ns, 493 F.3d at 94.

      . The paragraphs could also support a claim against the group of investors that the complaint refers to as Paradigm, but the appeal against those defendants was untimely filed and dismissed for lack of jurisdiction. As such, Eagletech can no longer assert any claims against those parties based on the facts it has alleged in its Fifth Amended Complaint. We recognize that in paragraph fifty-four, Ea-gletech alleged that Coyne was an "agent of ... LBC." Without more, however, an allegation of an agency relationship is a mere legal conclusion which we do not have to accept as true in analyzing the sufficiency of the complaint. This is distinguishable from the allegation in paragraph fifty-three that Coyne was the "attorney for Defendants Paradigm and Trinity.”

      . Section 517.301(1) provides:
      It is unlawful and a violation of the provisions of this chapter for a person:
      (a) In connection ... with the offer, sale, or purchase of any investment or security, ... directly or indirectly:
      1. To employ any device, scheme, or artifice to defraud;
      2. To obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or
      3.To engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon a person.

      . In its Fifth Amended Complaint, Eagletech explained that short-selling from a "naked position” means that the investor who sells the security does not own or have access to the stock when sold. That is, the naked short seller does not borrow the stock that he or she sells.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Stanley GRONTKOWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2338.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.
    Rehearing Denied March 12, 2012.
    Stanley Grontkowski, Bowling Green, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s successive motion for postconviction relief from his 2002 convictions for felony murder, aggravated burglary of a dwelling, and aggravated battery. He based his motion upon newly discovered evidence, namely, the deposition testimony of one of the co-defendants charged with felony murder along with appellant and others. While the trial court found that the motion was successive and untimely, the court also reviewed the newly discovered evidence and determined that it probably would not produce an acquittal. The co-defendant may have made some statements that could have been helpful to appellant’s defense, but on the whole his testimony actually supports the convictions. It shows that the appellant actively participated in planning the event and the beatings, even if he was not the person who delivered the fatal blows, a point not really contested at trial. As appellant was convicted of felony murder under a principal theory, the trial court’s conclusion that the newly discovered evidence would not have made that conviction any less likely is supported by the record. Even if the motion could be considered timely with respect to the newly discovered evidence, on the merits it fails. We agree with the conclusions of the trial court.

Affirmed.

WARNER, TAYLOR and GERBER, JJ., concur.


text:
    HALLANDALE CHIROPRACTIC CENTER (a/a/o Kristi Cox), Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 4D11-2761.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.
    Marlene S. Reiss of Marlene S. Reiss, Esq., P.A., Miami, for petitioner.
    Michael J. Neimand, Miami, for respondent.
   PER CURIAM.

Hallandale Chiropractic Center seeks review of the circuit court’s denial of a motion for appellate attorney’s fees. Hal-landale prevailed in part on appeal, and the insurer agrees that pursuant to section 627.428(1), Florida Statutes, Hallandale is entitled to appellate attorney’s fees contingent upon it prevailing in the underlying action on remand. Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla.1994); Ramirez v. United Auto. Ins. Co., 67 So.3d 1174 (Fla. 3d DCA 2011); Comprehensive Health Ctr., LLC v. United Auto. Ins. Co., — So.3d -, 2011 WL 2848667 (Fla. 3d DCA 2011). Accordingly, we grant the petition for writ of certiorari and quash the denial of Hallandale’s motion for appellate attorney’s fees. On remand the court shall grant the motion contingent on petitioner prevailing in the trial court.

Petition Granted.

MAY, C.J., GROSS and CONNER, JJ., concur.


text:
    Grant Mason FOWLER, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D10-4201, 1D10-4203.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2012.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant; Grant Mason Fowler, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This consolidated Anders appeal arises from two separate judgments and sentences. We affirm both judgments and sentences but remand for the trial court to correct the order of revocation of probation in one case and to enter a formal, written order of revocation of probation in the other. In case number 09-260, the order fails to specify the new law offenses that led to the revocation of Appellant’s probation. Therefore, it must be corrected. See Nickolas v. State, 66 So.3d 1077, 1077 (Fla. 1st DCA 2011) (affirming but remanding for entry of a revocation order conforming to the trial court’s oral pronouncements). In case number 09-213, the trial court neglected to enter an order revoking Appellant’s probation, even though the court orally found that Appellant willfully and substantially violated his probation. A formal, written order of revocation is required even when the record clearly reflects the trial court’s intention to revoke probation and its reasons for doing so. See Robinson v. State, 74 So.3d 570, 572 (Fla. 4th DCA 2011) (recognizing the requirement that the trial court enter a formal, written order of revocation of probation). Based on these considerations, we remand for entry of revocation orders consistent with the trial court’s oral pronouncements in both cases. Appellant need not be present for the correction and entry of the orders. See Nickolas, 66 So.3d at 1077.

AFFIRMED and REMANDED.

BENTON, C.J., ROWE, and RAY, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Jorge SARIOL, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3624.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2012.
    Jorge Sariol, Florida City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

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

PALMER, EVANDER and JACOBUS, JJ., concur.


text:
    Joshua James WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2842.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2012.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

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

ORFINGER, C.J., PALMER and EVANDER, JJ., concur.


text:
    Timothy L. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-162.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2012.
    Timothy L. Brown, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

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

SAWAYA, MONACO and JACOBUS, JJ., concur.


text:
    Justin M. KNOWLES, Appellant, v. Lilliani KNOWLES, Appellee.
    No. 4D10-3737.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    David J. Majcak and Eric N. Klein of Eric N. Klein & Associates, P.A., Boca Raton, for appellant.
    No brief filed on behalf of appellee.
   CIKLIN, J.

Justin Knowles (the “former husband”) appeals the trial court’s final order denying his post-dissolution petition to modify the custody and visitation arrangements for his and his former wife’s two minor children. Because the trial court’s order was based on an erroneous legal conclusion regarding the effect that a post-dissolution agreed order had on the current parenting plan and time-sharing schedule, we reverse and remand for a new evidentiary hearing.

The former husband and the former wife have been married and divorced twice. The first action was filed in 2004 and resulted in a final judgment of dissolution of marriage entered in March 2005 (the “2004 case”). The second action was filed in 2006 and resulted in a final judgment of dissolution of marriage entered in November 2006 (the “2006 case”). In the 2006 final judgment, the Honorable Jack H. Cook found that it was in the best interests of the parties’ two minor children that neither party be designated the primary residential custodian of the children. The parties were to have shared parental responsibility and co-primary residential custodianship of the minor children.

On November 5, 2007, Judge Cook entered an agreed order on primary residential custodianship (the “2007 agreed order”) effectively modifying the 2006 final judgment and giving the former husband primary residential custodianship. In an apparent scrivener’s error, the 2007 agreed order was filed with the 2004 case rather than the 2006 case.

In July 2009, the former husband filed a pro se petition to modify the custody and visitation arrangements for the minor children. The former husband requested, among other relief, that the court grant the former wife “regular state visitation.” According to the former husband’s initial brief, the purpose of this petition was to have the trial court designate the former wife as a “secondary residential parent” and then designate a visitation schedule in accordance with the Fifteenth Judicial Circuit’s Model Time Sharing Schedule. Subsequently, in August 2009, the former wife filed her own pro se petition to modify the parenting plan requesting that she be designated as the “primary residential custodian.”

In December 2009, both parties attended a hearing on their petitions before a magistrate. Neither party was represented by counsel at the hearing. Subsequently, the magistrate issued her report. The magistrate found the current custodial relationship to be that which was specified in the 2006 final judgment: shared parental responsibility and co-primary residential custodianship of the minor children.

The magistrate recognized that the 2007 agreed order designated the former husband as primary residential custodian of the minor children, but erroneously concluded that because the 2007 agreed order was filed with the 2004 case, the 2007 agreed order was superseded by the earlier 2006 final judgment. The magistrate concluded by finding that there had not been a substantial change in circumstances since the 2006 final judgment was entered. Therefore, the magistrate recommended that the trial court deny both petitions.

In January 2010, the subsequent trial court entered a final order incorporating by reference the findings of the magistrate and denying both the former husband’s and the former wife’s petitions to modify the parenting-plan/time-sharing schedule. The trial court further ordered the parties to adhere to all provisions in the 2006 final judgment concerning shared parental responsibility, time-sharing, and visitation. The former husband filed a pro se motion for rehearing and subsequently, with the assistance of counsel, an amended motion for rehearing. In both motions, the former husband argued that the trial court erred by ignoring the 2007 agreed order and instead reverting to the 2006 final judgment. After the trial court summarily denied the former husband’s amended motion for rehearing, the former husband filed a timely notice of appeal and this appeal follows.

The former husband argues that the trial court committed reversible error in concluding that the 2007 agreed order was superseded by the 2006 final judgment. We agree. The 2007 agreed order was intended to and did modify the 2006 final judgment of dissolution of marriage, which was rendered by the same judge. The error in filing the 2007 agreed order with the 2004 case rather than the 2006 case does not change the legal effect of that order.

The trial court’s error in concluding that the 2007 agreed order had been superseded compels us to reverse its January 11, 2010 order denying the parties’ petitions to modify the parenting plan/time-sharing schedule. The 2007 agreed order specified the parenting plan and time-sharing schedule that the former husband and former wife were legally required to follow. These arrangements could not be modified by the trial court without a showing of a substantial, material, and unanticipated change in circumstances. See § 61.13(3), Fla. Stat. (2011) (“A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.”); § 61.13(2)(c) (“Modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances.”); Wade v. Hirschman, 903 So.2d 928, 931 n. 2 (Fla.2005).

The trial court’s order denying the parties’ petitions to modify the custody arrangements, however, modified this parenting plan and time-sharing schedule by reverting the arrangements to those specified in the 2006 final judgment. Because the trial court explicitly found that there had been no change in circumstances, this modification was contrary to established law.

Accordingly, we reverse the trial court’s order denying the former husband’s petition to the extent that the order modifies the child custody and visitation arrangements from that specified in the 2007 agreed order. Furthermore, we remand with instructions for the trial court to hold a new hearing on both parties’ petitions to determine if there has been a substantial, material, and unanticipated change in circumstances since the 2007 agreed order, and if so, to determine if modification of the custody arrangement specified in the 2007 agreed order is in the best interests of the children.

Reversed and remanded with instructions.

GERBER and CONNER, JJ., concur.

      . We recognize that in 2008, “the Florida Legislature amended various sections of Chapter 61, including section 61.13, to remove the references therein to 'custody,' ‘primary residence,’ 'primary residential parent,' and 'visitation' in favor of a ‘parenting plan’ that includes 'time sharing.' ” Hahn v. Hahn, 42 So.3d 945, 947 n. 2 (Fla. 4th DCA 2010) (citation and quotation marks omitted). Nevertheless, as the 2008 amendments were prospective only, we continue to use the pre-2008 terminology when referring to custody orders that pre-date the amendments. See id. at 947-48.

      . While this appeal was pending, this court, in response to a motion by the former husband, has directed the clerk of the circuit court to amend the 2007 agreed order such that it properly reflects the 2006 case number.

      . A new evidentiary hearing is required because the magistrate at the 2009 hearing used the wrong benchmark to determine if there had been a substantial, material, and unanticipated change in circumstances that would warrant modification of the custody arrangements. Furthermore, because the magistrate originally concluded that there had been no material change in circumstances, the magistrate made no findings regarding the best interests of the children. See § 61.13(3)(a)-(t), Fla. Stat. (2011).


text:
    Ernst EXAVIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-628.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    Antony P. Ryan, Regional Counsel, Nancy Jack, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, 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.

The defendant appeals his conviction for racketeering. He argues that the trial court erred in: (1) denying his motion for judgment of acquittal; (2) admitting into evidence certain of his and his associates’ past judgments of convictions; (3) overruling his objection to a question which the state posed to a witness; and (4) entering an order for costs of prosecution in the amount of $4,000 and a separate order assessing an additional $100 for costs of prosecution where its oral pronouncement was that it would impose costs of prosecution in the amount of $4,000.

As to the first three arguments, we affirm without discussion. As to the fourth argument, the state properly concedes error. See State v. Akins, 69 So.3d 261, 269 (Fla.2011) (“[Wjhen there is a discrepancy between the written sentence and the oral pronouncement, the oral pronouncement prevails.”) (citation and internal quotations omitted). Accordingly, we reverse on this fourth argument only and remand to the trial court with directions to vacate that portion of the order assessing additional charges which included an additional $100 for costs of prosecution.

Affirmed in part, reversed in part, and remanded with directions.

TAYLOR, GERBER and LEVINE, JJ., concur.


text:
    Marvin DABEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-988.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

In this opinion, we address whether the trial court followed the proper procedure tor assessing certain public defender fees. The trial court imposed various fees against Marvin Dabel at the conclusion of his criminal case without first providing notice of the intent to impose these fees. We find that the trial court improperly assessed a discretionary public defender attorney’s fee without first providing Da-bel notice. On the other hand, we find that the public defender application fee was statutorily mandated and therefore no notice was required before it could be imposed.

Dabel was convicted of driving while license suspended or revoked as a habitual offender and sentenced to a year and a day in prison. Additionally, Dabel was assessed $300 in public defender attorney’s fees, $50 for a public defender application fee, and $100 for costs of prosecution. Dabel filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), challenging the validity of the two fees imposed because the trial court did not provide Dabel with notice before assessing these fees. The trial court took longer than sixty days to issue an order on the motion to correct sentence, which operated as a de facto denial of the motion. See Fla. R.Crim. P. 3.800(b)(1)(B), 3.800(b)(2)(B); Brooks v. State, 867 So.2d 1276, 1276 (Fla. 4th DCA 2004) (finding that a trial court’s failure to rule within sixty days on a motion to correct sentence under 3.800(b) operates as a denial of the motion). Dabel appeals the trial court’s de facto denial of his motion to correct sentencing error and argues that the public defender attorney’s fees ($300) and the public defender application fee ($50) should be reversed.

Both section 938.29(5), Florida Statutes (2007), and Florida Rule of Criminal Procedure 3.720(d)(1) required that a

defendant receive notice before a trial court can impose public defender attorney’s fees. Because Dabel did not receive notice of the trial court’s intent to impose public defender attorney’s fees, we strike this $300 fee.

Dabel’s $50 public defender application fee, however, falls under a different statute, section 27.52(l)(b), which states, “An applicant shall pay a $50 application fee to the clerk for each application for court-appointed counsel.” § 27.52(l)(b), Fla. Stat. (2008) (emphasis added). Because this application fee is clearly mandatory and not within the trial court’s discretion, no notice was necessary; the statute itself provides notice that any applicant for court-appointed counsel is required to pay $50. See State v. Beasley, 580 So.2d 139, 142 (Fla.1991) (holding that a defendant receives constructive notice of the imposition of statutorily mandated fees by virtue of them being published in the Laws of Florida or the Florida Statutes); Finkelstein v. State, 944 So.2d 1226, 1227 (Fla. 4th DCA 2006) (“Statutorily mandated costs may be imposed without notice to the defendant.”). Therefore, the $50 public defender application fee the trial court assessed against Dabel is affirmed.

In Smith v. State, 7 So.3d 646 (Fla. 4th DCA 2009), this court addressed the requirement that the defendant be informed of his right to contest the amount of the public defender attorney’s fees being assessed against him. While clearly addressing public defender attorney’s fees under section 938.29(5) and Florida Rule of Criminal Procedure 3.720(d), occasionally this court used the imprecise term “fees,” which could be read to encompass the public defender application fee as well. To clarify, the notice requirement discussed in Smith and appearing in section 938.29(5) and rule 3.720(d), applies to public defender attorney’s fees only. The public defender application fee is statutorily mandated and therefore does not require notice of intent to impose it. § 27.52(l)(b), Fla. Stat. (2008).

In this case, Dabel was not provided notice of the trial court’s intent to impose the public defender attorney’s fees or of his right to contest the fees at a hearing. Therefore, the $300 in public defender attorney’s fees was imposed erroneously. The $50 application fee, however, is affirmed as no notice was required for this mandatory fee. We remand for the trial court to enter an order striking the $300 in public defender attorney’s fees only.

Reversed and remanded in part and affirmed in part.

HAZOURI and LEVINE, JJ., concur.

      . Dabel does not contest the costs of prosecution imposed by the trial court.

      . In 2008, after Dabel requested a public defender in this case, the legislature amended section 938.29(l)(a), so that it now sets a minimum public defender attorney's fee that must be imposed in every case ($50 for misdemeanors and $100 for felonies). See ch. 2008-111, § 45, at 1199-1200, Laws of Fla. The trial court retains the discretion, however, to assess public defender attorney's fees greater than those amounts.


text:
    Dwayne OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1222.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.

      Philip R. Horowitz, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Roby, 246 So.2d 566 (Fla.1971); Ruger v. State, 941 So.2d 1182 (Fla. 4th DCA 2006).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Kevin Martin WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1227.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

We affirm, but remand to the trial court to enter a written order of violation of probation/community control, including the grounds upon which appellant was found to have violated probation/community control. See Harris v. State, 961 So.2d 1131 (Fla. 4th DCA 2007).

Affirmed; Remanded.

POLEN, TAYLOR and HAZOURI, JJ, concur.


author: MAY, C.J.

text:
    STATE of Florida, Appellant, v. Matthew TAYLOR, Appellee.
    No. 4D10-4930.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellee.
   MAY, C.J.

The State appeals an order granting the defendant’s motion to suppress. It argues that the trial court erred in failing to apply the “good faith” exception to the officer’s conduct, which was in compliance with existing law at the time of the arrest. We agree and reverse.

The State charged the defendant with Possession of MDMA and Driving While License Suspended. The defendant filed a motion to suppress, arguing that the traffic stop was illegal, pursuant to the then recently decided Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Citing Brown v. State, 24 So.3d 671 (Fla. 5th DCA 2009), the State argued that the trial court should apply the “good faith” exception to the officer’s conduct because Gant had not been decided at the time of the arrest. The trial court disagreed and granted the motion.

Testimony revealed that a deputy conducted a traffic stop of the defendant due to loud music emitting from his vehicle. He asked the defendant for his driver’s license. The defendant indicated that he did not have it with him, and gave the deputy his Florida identification card. A teletype check revealed the defendant’s license had been suspended.

The deputy handcuffed the defendant and read him Miranda warnings. The defendant told the deputy that he lied about the suspended license because he was nervous. The deputy arrested the defendant for driving with a suspended license with knowledge.

The defendant sat in the backseat of the patrol car while the deputy conducted a search of his vehicle incident to the arrest. The deputy found a small plastic bag containing pills, which field tested positive for a controlled substance. The deputy could not see the pills until he explored a compartment to the left of the steering wheel.

The trial court rendered a written order, finding the search unlawful under Arizona v. Gant. The trial court acknowledged Brown v. State, but declined to follow it. From that decision, the State now appeals.

The State argues the trial court erred in granting the defendant’s motion to suppress because the traffic stop occurred before the Court decided Gant. The defendant acknowledges that the more recent case of Davis v. U.S., — U.S. -, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), may compel a reversal.

We “must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth ... Amendment.” Connor v. State, 803 So.2d 598, 608 (Fla.2001). We have de novo review of the legal issue presented. Id.

Last year’s decision in Davis controls. Davis decided whether the exclusionary rule should be applied “when the police conduct a search in objectively reasonable reliance on binding judicial precedent.” Davis, 131 S.Ct. at 2428. Just as in this case, the Davis search occurred prior to the Court’s decision in Gant. Id. The Court held the “good faith” exception to the exclusionary rule applied, and affirmed the denial of the defendant’s motion to suppress. Id. at 2434.

Under Davis, courts are required to apply the “good faith” exception to the exclusionary rule in pre-Gant searches. This case falls into that categoi’y. When the officer conducted the search, the Court had not yet decided Gant. Consequently, the “good faith” exception applies and the motion to suppress must be denied.

Reversed and Remanded.

STEVENSON and GROSS, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We note the trial court did not have the benefit of Davis at the time it granted the motion to suppress.

      . The First District certified the following question to our supreme court in State v. Harris, 58 So.3d 408 (Fla. 1st DCA 2011):
      Does the good-faith exception to the exclusionary rule apply to evidence seized by the police in contravention of Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)?
      58 So.3d at 411. Our supreme court dismissed Harris following the United States Supreme Court's decision in Davis. See Harris v. State, 73 So.3d 760 (Fla. Oct. 3, 2011).


author: JACOBUS, J.

text:
    Andrew WILCOX, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2474.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2012.
    Andrew Wilcox, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   JACOBUS, J.

Andrew Wilcox appeals from an order denying his motion for relief from a judgment that placed a lien on his prisoner’s trust account for the collection of court costs arising out of his criminal conviction. Wilcox contends there is no statutory basis for the imposition of the lien. We agree and reverse.

The trial court’s order found that the lien was permissible under section 775.089, Florida Statutes. However, the court appears to have erred in relying upon this section, which deals with restitution, because nothing in the court’s order imposing costs on Wilcox involves restitution. Further, the State has failed to cite to any statute that would allow for a lien on a prisoner’s trust account for the collection of court costs.

Section 938.27(5), Florida Statutes, which controls the collection of court costs after default, provides that “[a]ny default in payment of costs may be collected by any means authorized by law for enforcement of a judgment.” The State is no different than any other judgment creditor and has other statutory remedies to collect its money. However, it does not have the right to impose a lien on a prisoner’s trust account based on the facts of this case.

Therefore, the court erred by imposing the lien on Wilcox’s trust account and the order of the court is vacated and reversed. The lien on the prisoner’s trust account shall be removed.

VACATED and REVERSED with instructions.

TORPY and EVANDER, JJ., concur.

      . See Connor v. State, 944 So.2d 488, 492 (Fla. 5th DCA 2006) (Sawaya, J., concurring) (explaining that section 775.089 was enacted "to make payment of restitution to crime victims mandatory unless clear and compelling reasons exist to justify nonpayment”).


author: GRIFFIN, J.

text:
    Luis M. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1897.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2012.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Luis Harris [“Harris”], appeals his judgment and sentence after a violation of probation.

On April 28, 2011, the trial court held a hearing on Harris’s violation of probation. Prior to the hearing, the trial court offered Harris appointed counsel. Harris refused counsel and decided to represent himself. After a contentious hearing, the trial court found that Harris violated probation and immediately sentenced him. However, prior to sentencing Harris, the trial court did not renew the offer of counsel.

On appeal, Harris correctly asserts that he is entitled to a new sentencing because the offer of counsel was not renewed. Hays v. State, 63 So.3d 887 (Fla. 5th DCA 2011). The State properly concedes error. Accordingly, we vacate the sentence and remand for a resentencing consistent with this opinion.

SENTENCE VACATED and REMANDED.

TORPY and LAWSON, JJ., concur.


text:
    Tyrone E. MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2158.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2012.
    Tyrone E. Murray, Panama City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Tyrone Murray appeals the trial court’s order denying his postconviction motions filed pursuant to Florida Rule of Criminal Procedure 3.850. The order denied Murray’s original postconviction motion, supplemental motion, and addendum. We affirm the trial court’s denial of all the claims except for one.

In claim nine, Murray alleged that trial counsel was ineffective for failing to object to the witness tampering jury instruction. Murray alleged the trial court instructed the jury on acts not alleged in the Information. Specifically, Murray alleged that he was charged with a violation of subsection 914.22(l)(a), Florida Statutes, but the trial court instructed the jury on subsections 914.22(l)(a)-(f), Florida Statutes. In denying the postconviction motion, the trial court found that Murray’s allegations failed to show that counsel’s performance was deficient. The trial court did not elaborate on its holding.

“A challenge to a jury instruction is properly raised on appeal, but when defense counsel has failed to preserve the right to appeal the issue, a defendant may challenge his counsel’s performance through a motion for postconviction relief filed pursuant to rule 3.850.” Ottesen v. State, 862 So.2d 30, 30 (Fla. 2d DCA 2003). It is improper to instruct on subsections of the witness tampering statute that are not charged. See Casica v. State, 24 So.3d 1236, 1241 (Fla. 4th DCA 2009) (holding it reversible error to instruct the jury on subsections (a) and (e) of section 914.22(1), Florida Statutes (2005), where defendant was charged with violating only subsection (e)). Accordingly, we reverse only the portion of the order denying postconviction relief as to claim nine and remand this case to the trial court for an evidentiary hearing as to that claim or for the attachment of those portions of the record that conclusively refute claim nine.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, C.J., GRIFFIN, and SAWAYA JJ., concur.


text:
    Nathaniel A. STEPHENSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3825.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2012.

      Nathaniel Stephenson, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant appeals the summary denial of his post-conviction motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. Of the three claims he raised in his motion, we find that the denial of only one warrants reversal. In claim two, Appellant asserts that his trial counsel was ineffective for advising him not to testify at trial. Because the record does not adequately refute this legally sufficient claim, we reverse that part of the order summarily denying it and remand this case to the trial court for an evidentiary hearing. See Ferrer v. State, 2 So.3d 1111 (Fla. 4th DCA 2009). Otherwise, we affirm the order under review.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, C.J., SAWAYA and MONACO, JJ., concur.


text:
    Arthur L. DISBROW, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3999.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2012.
    Arthur L. Disbrow, Live Oak, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the summary denial of Dis-brow’s motion seeking postconviction relief. Our affirmance is without prejudice to Disbrow challenging his sentence on double jeopardy grounds. See, e.g., Obantu v. State, 50 So.3d 107 (Fla. 5th DCA 2010) (probationer, whose original sentences were true split sentences, could not be sentenced in two violation of probation cases to term exceeding remaining balance of suspended portion of his sentences).

AFFIRMED.

MONACO, EVANDER and COHEN, JJ., concur.


text:
    Robert E. TOLVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0130.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2012.
    Robert E. Tolver, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that a petition for writ of habeas relief cannot be used to litigate issues that could have been or were raised on direct appeal or in post-conviction motions).

WOLF, PADOVANO, and MARSTILLER, JJ., concur.


text:
    Antonio WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6793.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2012.
    Antonio Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989) (stating that lack of access to a law library does not show good cause for the failure to timely file a notice of appeal).

WOLF, PADOVANO, and MARSTILLER, JJ, concur.


text:
    Henry Percy GREENE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3536.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2012.
    Henry P. Greene, Lowell, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

In 1988, defendant/appellant Henry Percy Greene was convicted by a jury of capital sexual battery on a child, attempted sexual battery on a child, and multiple counts of lewd and lascivious assault on a child. At trial, the victim testified and Greene’s taped confession was admitted into evidence. He received life, and other lesser sentences. He has since filed numerous claims seeking post-conviction relief on a variety of unmeritorious grounds.

Now more than twenty years after his conviction was final, Greene filed a successive non-meritorious claim of newly discovered evidence that the trial court denied. This court granted him a belated appeal, however, as required by State v. Trowell, 739 So.2d 77 (Fla.1999). Upon review of his most recent appeal, we entered a show cause order pursuant to Florida Rule of Criminal Procedure 3.850(m) and State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999).

Having carefully considered Greene’s response, we conclude that he has provided no valid reason to allow him to continue to file frivolous appeals like this one. We conclude that he is abusing the judicial process, and that he should be barred from further pro se filings. We, therefore, prohibit Greene from filing with this Court any more pro se pleadings concerning case number 87-CF-4152 in the Circuit Court of the Eighteenth Judicial Circuit in and for Brevard County. See Hastings v. State, 79 So.3d 739, 2011 WL 5573935 (Fla.2011), and Steele v. State, 14 So.3d 221, 223 (Fla.2009) (recommending sanctions for both defendants and stating that the courts need to devote their finite resources to consideration of legitimate claims); Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (defendant’s “pro se filings have become frivolous, an abuse of process, and a waste of the taxpayers’ money”); Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995) (“Enough is enough.”).

The Clerk of this Court is directed to forward a certified copy of this opinion to Greene and the appropriate institution for consideration of available disciplinary procedures. See Fla. R.Crim. P. 3.850(m). Rehearing will not be entertained.

AFFIRMED; Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Greene and the Department of Corrections.

ORFINGER, C.J., GRIFFIN and MONACO, JJ., concur.


text:
    Mark Leroy HARRISON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1657.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.
    Howard H. Babbs, Jr., Public Defender, and Syed M. Qadri, Assistant Public Defender, Ocala, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Ransone v. State, 20 So.3d 445 (Fla. 4th DCA 2009), approved. 48 So.3d 692 (Fla.2010).

SAWAYA, PALMER and EVANDER, JJ., concur.


text:
    Daniel CANADY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1715.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.

      James S. Purdy, Public Defender, and Atiene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

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

GRIFFIN, EVANDER and JACOBUS, JJ., concur.


text:
    Joshua Wayne ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1814.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. Leonard v. State, 760 So.2d 114 (Fla.2000); Burns v. State, 884 So.2d 1010 (Fla. 4th DCA 2004)

SAWAYA, TORPY and JACOBUS, JJ., concur.


text:
    Cari V. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3523.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.
    James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

TORPY, EVANDER and JACOBUS, JJ., concur.


text:
    Samuel Eleaser JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-573.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

TORPY, EVANDER and JACOBUS, JJ., concur.


text:
    Michael S. ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-290.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.
    Michael S. Anderson, Lake Butler, pro se.
    No Appearance for Appellee.
   PER CURIAM.

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

SAWAYA, MONACO and LAWSON, JJ., concur.


text:
    Randall BOJACK, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2324.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.
    Kevin R. Monahan, Palatka, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Paey v. State, 943 So.2d 919 (Fla.2d DCA 2006).

ORFINGER, C.J., PALMER and EVANDER, JJ., concur.


text:
    Synthia POOLE, et al., Appellants, v. STATE of Florida, Appellee.
    Nos. 5D11-2896, 5D11-2897, 5D11-2898, 5D11-3247, 5D11-3249, 5D11-3274, 5D11-3278, 5D11-3302, 5D11-3315, 5D11-3316, 5D11-3317, 5D11-3318, 5D11-3319, 5D11-3320, 5D11-3321, 5D11-3322.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

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

MONACO, LAWSON and COHEN, JJ., concur.


text:
    Kendall L. FURLOW, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-164.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.
    Kendall L. Furlow, Coleman, pro se.
    No Appearance for Appellee.
   PER CURIAM.

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

GRIFFIN, PALMER and MONACO, JJ., concur.


text:
    Ariel Benito CARMENATE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-239.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.
    Ariel B. Carménate, Avon Park, pro se.
    No Appearance for Appellee.
   PER CURIAM.

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

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


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Melba SHERMAN, as Personal Representative of the Estate of John Sherman, deceased, Appellee.
    No. 4D09-2472.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.
    Donald Ayer of Jones Day, Washington, D.C., Stephanie E. Parker, John F. Yarber and John M. Walker of Jones Day, Atlanta, Georgia, and Gordon James, III, and Eric L. Lundt of Sedgwick LLP, Fort Lauderdale, for appellant.
    Robert S. Glazier of the Law Office of Robert S. Glazier, Miami, Gary M. Paige and Adam Trop of Paige, Trop & Ameen, P.A., Hollywood, and Alex Alvarez of The Alvarez Law Firm, Coral Gables, for ap-pellee.
   PER CURIAM.

Affirmed. See R.J. Reynolds Co. v. Brown, 70 So.3d 707 (Fla. 4th DCA 2011).

MAY, C.J., DAMOORGIAN and CONNER, JJ., concur.


author: WARNER, J.

text:
    Elizabeth NORBERG, Appellant, v. Kenneth NORBERG, Jr., Appellee.
    Nos. 4D10-3260 and 4D11-1603.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.

      Amy D. Shield of Amy D. Shield, P.A., Boca Raton, for appellant.
    David J. Schottenfeld of David J. Schot-tenfeld, P.A., Plantation, for appellee.
   WARNER, J.

The former wife challenges an order finding her in contempt of court for failing to abide by the terms of the final judgment of dissolution of marriage. While she claims that the court’s' order of contempt did not contain a finding that she had the ability to pay the purge amount ordered, the trial court did not order incarceration, and we conclude that the finding of ability to pay was not required. However, the court modified visitation without any pleading to support it, which violated the wife’s due process rights. We therefore affirm the order of contempt but reverse the order modifying visitation.

The parties divorced in 2000. The Mediation Agreement incorporated into the final judgment established an apportioned contribution between the former wife and former husband to the children’s extracurricular activity costs, private education costs, and uncovered health expenditures. Ten years later, the former husband moved to enforce the final judgment and for contempt, alleging that the former wife had failed to pay her portion of the childcare expenses. He also complained that she was subverting his ability to communicate with the children. He requested that the former wife be held in contempt and that he be awarded a judgment against her for her portion of the child expenses that he had paid.

The former wife did not appear at the noticed hearing. The former husband testified to the expenses that he paid, totaling them at $8,500. He also testified as to the many ways that the wife was interfering with his relationship with the children. Although not mentioned in his motion, at the hearing the husband testified that the parties had difficulty with summer visitation and requested a change. The court noted that the issue should be addressed in a petition to modify the final judgment.

The trial court entered a final order finding the wife in arrears of her obligation with respect to the childcare expenses in the amount of $8,500. It also found that she had interfered with the former husband’s relationship with the children and prevented communication. Based upon the court’s findings, it held the wife in contempt of the final judgment. It ordered her to repay the $8,500 to the husband at a rate of $150 per month and required her to provide the former husband with a life insurance policy, as required by the Mediation Agreement and final judgment. It made other provisions to improve the former husband’s ability to communicate with the children, as well as provisions to prevent the former wife from disparaging the husband to the children. Despite its reluctance at the hearing, the court also modified visitation with the children.

The former wife contends on appeal that the court erred in finding her in contempt without making a finding that she had the ability to pay the amount of the arrearages. In this case, however, the trial court did not order incarceration if she did not comply with the purge provision of $150 per month. Bowen v. Bowen, 471 So.2d 1274, 1278-79 (Fla.1985), makes clear that a finding of ability to pay is mandated when incarceration is deemed appropriate. The court was not required to make such a finding, where incarceration was not contemplated. The court will have to make a finding of ability to pay, should incarceration be sought for violation of the purge provision.

As to the amount of the arrearage, we find no error in the trial court determining the arrearages of $8,500, based upon the former husband’s testimony. The trial court is the trier of fact and the judge of the credibility of the evidence. The former husband testified to the amount from his own personal knowledge, as he was the person making the payments. The former wife elected not to attend the hearing and therefore did not challenge the testimony of the former husband.

We also affirm the trial court’s award to the husband of his attorney’s fees in connection with the motion for contempt, as the mediation agreement provided that the defaulting party to the mediation agreement is obligated to pay the fees of the non-defaulting party seeking to enforce the agreement.

We do find error, however, in the trial court’s modification of visitation. In the context of modification of visitation rights, we recently said:

“It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.” Neumann v. Neumann, 857 So.2d 372, 373 (Fla. 1st DCA 2003); accord Mizrahi v. Mizrahi, 867 So.2d 1211, 1213 (Fla. 3d DCA 2004) (“Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings.”). Therefore, “Florida courts have repeatedly held that it is a violation of a parent’s due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below.” Foerster v. Foerster, 885 So.2d 927, 929 (Fla. 2d DCA 2004).

Albert v. Rogers, 57 So.3d 233, 236-37 (Fla. 4th DCA 2011). Having modified visitation without any pleading requesting the same, the court violated the wife’s due process rights. That portion of the order is therefore reversed and remanded to strike those portions of the order modifying visitation.

Affirmed in part; reversed in part and remanded with directions.

DAMOORGIAN and CONNER, JJ., concur.


text:
    James FRANCOIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2148.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2012.

      James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

After a full and independent review of the record, we affirm Francois’ convictions and sentences but remand to the trial court to correct the judgment to reflect that Francois’ conviction on Count II (robbery with a firearm) is for a first-degree felony punishable by life rather than a second-degree felony.

AFFIRMED.

PALMER, EVANDER and JACOBUS, JJ., concur.

      . Our affirmance is without prejudice to Francois’ right to seek postconviction relief as to the apparent sentencing errors on Counts III-V. See Dunbar v. State, 35 So.3d 54, 55 (Fla. 5th DCA 2010) (sentencing errors that occur after effective date of amendment to Florida Rule of Criminal Procedure 3.800(b), even if formerly deemed fundamental or patent on face of record, cannot be reviewed by appellate court if issue is not raised at sentencing or in timely post-sentencing proceeding pursuant to rule 3.800); see also Williams v. State, 56 So.3d 899 (Fla. 5th DCA 2011).


text:
    Terence MERRIEL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3757.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2012.
    Terence Merriel, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 05-2008-CF-11679, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, PALMER and LAWSON, JJ„ concur.


text:
    Leroy GRESHAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2874.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2012.

      Leroy Gresham, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED without prejudice to address supplemental motion filed on or about March 2, 2010.

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


text:
    Robert HILL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-4160.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2012.
    Robert Hill, Carrabelle, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying the motion to correct illegal sentence in case number 1990-CF-001543, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, MONACO and EVANDER, JJ., concur.


text:
    Timothy L. TINSLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-4050.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2012.
    Timothy L. Tinsley, Bowling Green, pro se.
    No Appearance for Respondent.
   PER CURIAM.

We elect to treat the Petition for Certio-rari as an appeal and hereby affirm the trial court’s order.

AFFIRMED.

SAWAYA, LAWSON and EVANDER, JJ., concur.


author: PERKINS, T.R., Associate Judge.

text:
    Charles KADLECIK, as personal, etc., Appellant, v. Y. Daniel HAIM, M.D. and Central Florida, etc., Appellee.
    No. 5D10-4103.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2012.
    Arthur J. Ranson, III, and Stephanie L. Cook, of Shuffield, Lowman & Wilson, P.A, Orlando, for Appellant.

      Thomas E. Dukes, III, and Pamela A. Padilla, of McEwan, Martinez & Dukes, P.A., Orlando, for Appellee.
   PERKINS, T.R., Associate Judge.

Charles Kadlecik appeals the trial court’s attorneys’ fees award to prevailing wrongful death defendants, Y. Daniel Haim, M.D., and Central Florida Pulmonary Group, P.A. (collectively, “the appel-lees”). We reverse the trial court’s order directing that Mr. Kadlecik, as survivor, pay the awarded fees.

Mr. Kadlecik’s wife, Linda Kadlecik, died during a medical procedure performed by Dr. Haim at Florida Hospital. As personal representative of the Estate of Linda Kadlecik, Mr. Kadlecik filed a wrongful death claim against the appellees and Florida Hospital, seeking survivor damages and the Estate’s loss of net accumulations. After the claims against Florida Hospital settled, Mr. Kadlecik apportioned the entire settlement to his sole survivor claims. Before trial, the appel-lees served settlement proposals on Mr. Kadlecik, as personal representative of the Estate. These offers were rejected. The wrongful death claim proceeded to jury trial, and resulted in a judgment in favor of the appellees, which this Court affirmed. Kadlecik v. Haim, 53 So.3d 237 (Fla. 5th DCA 2011). The trial court further awarded attorneys’ fees and costs of $202,592 against Mr. Kadlecik, as personal representative of the Estate, for failing to accept the proposals of settlement, which this Court also affirmed. Kadlecik v. Haim, 66 So.3d 948 (Fla. 5th DCA 2011). The appellees then petitioned the probate court to apportion Florida Hospital’s settlement proceeds for the amount of their fee awards or, in the alternative, to surcharge the personal representative. After a hearing, the trial court ordered Mr. Kad-lecik to pay the awarded attorneys’ fees “sixty (60) days prior to distributing the remaining settlement proceeds and assets to himself as the sole survivor.”

On appeal, Mr. Kadlecik claims that attorneys’ fees awarded against the personal representative cannot be recovered against funds allocated to a survivor under the Wrongful Death Act. Because this appeal only challenges the entitlement to attorneys’ fees, our review is de novo. Allstate Ins. Co. v. Regar, 942 So.2d 969, 971 (Fla. 2d DCA 2006).

Under Florida’s Wrongful Death Act, an estate’s personal representative brings all claims on behalf of both the estate and the decedent’s survivors. §§ 768.16-.26, Fla. Stat. (2010). The personal representative has the exclusive authority to conduct litigation and settle all claims. Thompson v. Hodson, 825 So.2d 941 (Fla. 1st DCA 2002); Pearson v. DeLamerens, 656 So.2d 217 (Fla. 3d DCA 1995). The survivors are not parties to the wrongful death litigation, even when the claims are brought for their benefit. Accordingly, it is error to award attorneys’ fees against the survivors because the personal representative is the only person with authority to settle the claim and the individual survivors cannot be fairly said to have rejected an offer of settlement. See Beseau v. Bhalani, 904 So.2d 641, 642 (Fla. 5th DCA 2005) (holding that entry of judgment against survivor was erroneous as, despite being individually named on complaint, she was not proper party to proceeding); Thompson, 825 So.2d at 952 (holding that attorneys’ fees cannot be assessed against survivors in wrongful death action based on offer of judgment since personal representative alone has authority to settle and survivors cannot be said to have rejected offer of settlement).

The appellees contend that allowing a survivor to escape all liability to a prevailing defendant in a wrongful death action is contrary to the language of section 768.26, which states:

Attorneys’ fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their award.

Although this provision does allow for the deduction of litigation expenses from awards made to survivors, it only applies to fees and costs incurred by attorneys representing the survivor and not for attorneys representing the prevailing defendant. As observed by the First District in Thompson:

Despite its decades-long existence, the [Wrongful Death] statute has never been cited as authority for recovery of fees from survivors by the opposing party. Cases construing section 768.26, Florida Statutes generally address the question of fees due to the personal representative’s attorney. See, e.g., Wiggins v. Estate of Wright, 786 So.2d 1247, 1249 (Fla. 5th DCA 2001) (discussing the allocation of fees among the personal representative’s attorney and attorneys hired by other beneficiaries); In re Estate of Catapane, 759 So.2d 9, 11 (Fla. 4th DCA 2000) (same); Adams v. Montgomery, Searcy & Denney, P.A., 555 So.2d 957, 958 (Fla. 4th DCA 1990) (same). As the Catapane court noted, “Section 768.26 provides for payment of counsel selected by the personal representative .... ” Catapane, 759 So.2d at 11.

825 So.2d at 951.

Of course, a prevailing defendant in a wrongful death case may recover fees from the estate when the personal representative rejects a reasonable offer of settlement. See In re Estate of Bronk, 502 So.2d 65 (Fla. 1st DCA 1987); accord Walker v. Bozeman, 243 F.Supp.2d 1298 (N.D.Fla.2003) (holding that award of attorneys’ fees under Florida’s offer of judgment statute in favor of defendant in wrongful death action could not be recovered from survivors, but only from personal representative as claim against estate). Accordingly, the trial court properly awarded attorneys’ fees and costs against the Estate. Moreover, the trial court correctly recognized that the appellees had a Class 1 administrative claim against the Estate. However, where an estate has no viable claim in a wrongful death matter, the trial court cannot require that the personal representative apportion money to it. Consequently, the trial court’s requirement that Mr. Kadlecik pay the appellees’ fee claim before distributing the remaining settlement proceeds to himself as the sole survivor is contrary to current law and improper, because, in essence, it required that the claim against the Estate be paid from funds collected for the benefit of the survivor. See Thompson, 825 So.2d 941; see also Beseau, 904 So.2d 641; Puig v. Saga Corp., 543 So.2d 238 (Fla. 3d DCA 1989); Vendola v. S. Bell Tel. & Tel. Co., 474 So.2d 275 (Fla. 4th DCA 1985); Johnson v. Schneegold, 419 So.2d 684 (Fla. 2d DCA 1982).

The appellees attempt to distinguish Thompson and similar holdings by pointing out that Mr. Kadlecik was not just the personal representative and survivor but the sole survivor. However, Mr. Kadle-cik’s status as both the personal representative and sole survivor does not change the analysis or result. The awarded attorneys’ fees may only be collected from the Estate not the survivor.

The appellees complain that this construction of the Wrongful Death Act permits the survivors to reject reasonable offers of judgment with complete impunity. Assuming arguendo that this is true, Florida’s courts have consistently applied this construction of the wrongful death statute since the 1982 decision in Johnson. In all that time, the Legislature has seen no need to correct this alleged deficiency.

For these reasons, the Order under review is hereby REVERSED.

ORFINGER, C.J., and MONACO, J., concur.

      . A similar concern was raised regarding this "apparent legislative oversight” in Johnson, and echoed in the dissent in Thompson. Johnson, 419 So.2d at 685; see Thompson, 825 So.2d at 954 (Benson, J., concurring in part and dissenting in part) ("Today’s decision effectively immunizes plaintiffs in wrongful death actions against cost and fee awards under the offer of judgment statute, in defiance of the statutory directive....”).