text:
    Charleston Karrem LARRY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1825.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2011.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Charleston Larry appeals his conviction for delivery of a controlled substance within 1,000 feet of a convenience business and possession of cocaine. On appeal, he contends that the court erred in denying his motion for judgment of acquittal and that his counsel was ineffective, which is apparent from the face of the record. For the following reasons, we affirm in part and reverse in part.

The lead investigator testified at trial that an alleged drug transaction involving Mr. Larry took place at a gas station that had “at least 10,000 feet of retail space with the gas and the convenience store.” That testimony is of particular relevance because the term “convenience business” excludes any business that has at least 10,000 square feet of retail floor space. See § 812.171(3), Fla. Stat. (2010). Thus, in its case in chief, the State proved that the business where the drug transaction occurred was not a convenience business as defined by statute. Though trial counsel moved for a judgment of acquittal, he failed to raise this obvious defense. Had it been raised, the trial court would have been obliged to reduce the charge to the necessarily lesser-included offense of delivery of a controlled substance. See State v. Higdon, 814 So.2d 1196, 1197 (Fla. 2d DCA 2002); Harris v. State, 655 So.2d 1179, 1182 (Fla. 1st DCA 1995).

Ineffective assistance of counsel is found when counsel’s performance falls outside the range of reasonable professional assistance and when there is a reasonable probability that the results of the proceeding would have been different but for the inadequate performance. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As a general rule, claims of ineffective assistance of counsel may not be raised on direct appeal. See, e.g., Bruno v. State, 807 So.2d 55, 63 (Fla.2001); Stewart v. State, 420 So.2d 862, 864 n. 4 (Fla.1982); Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002). However, “appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” Corzo, 806 So.2d at 645. To obtain relief on the basis of ineffective assistance of counsel on direct appeal, the facts upon which the claim is based must be clearly evident in the record. Stewart, 420 So.2d at 864; Henley v. State, 719 So.2d 990, 990 (Fla. 4th DCA 1998) (explaining that “[i]n-stances where the appellate court will address an ineffectiveness claim on the face of an appellate record are rare indeed”). Moreover, the ineffectiveness must be so clear that “it would be a waste of judicial resources to require the trial court to address the issue.” Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987); see Ross v. State, 726 So.2d 317, 318 (Fla. 2d DCA 1998).

The State’s unrebutted evidence proved that the business had at least 10,-000 feet of retail space, and thus, could not be considered a “convenience business” as defined by statute. However, Mr. Larry’s trial counsel did not raise this defense. We can discern no plausible strategic reason why trial counsel did not pursue this defense in light of the State’s evidence. This failure amounts to deficient performance that prejudiced Mr. Larry as he was convicted of a more serious charge. See In re Hubert, 138 Wash.App. 924, 158 P.3d 1282, 1285 (2007) (holding that counsel’s failure to discover and advance defense constituted ineffective assistance of counsel); see also State v. Sellers, 248 P.3d 70 (Utah App.Ct.2011) (reversing conviction as counsel’s failure to object to faulty affirmative defense instruction constituted ineffective assistance of counsel); State v. Powell, 150 WashApp. 139, 206 P.3d 703 (2009) (holding that counsel’s failure to request instruction on potential defense constituted ineffective assistance of counsel was recognizable on direct appeal as there was no objectively reasonable tactical basis for failing to request instruction when (1) evidence supported instruction; (2) defense counsel, in effect, argued statutory defense; and (3) statutory defense was entirely consistent with defendant’s theory of case); see also Mizell v. State, 716 So.2d 829 (Fla. 3d DCA 1998) (holding that defendant received ineffective assistance of counsel reviewable on direct appeal when counsel did not object to exces-siveness of sentence on one count).

Trial counsel’s “ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.” Blanco, 507 So.2d at 1384. By addressing the issue now, we can “avoid the legal churning, ... which would be required if we made the parties and the lower court do the long way what we ourselves should do the short.” Mizell, 716 So.2d at 830. Mr. Larry’s conviction must be reduced to the necessarily lesser-included offense of delivery of a controlled substance and remanded for resentencing. See § 924.34, Fla. Stat. (2010); Higdon, 814 So.2d at 1197; Harris, 655 So.2d at 1182. In all other respects, the convictions are affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER and COHEN, JJ., concur.

      . Appellate counsel was not trial counsel.

      . Such a defense was not inconsistent with Mr. Larry's primary defense that no drug transaction occurred.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Marvin E. NOACK, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0244.
    District Court of Appeal of Florida, First District.
    May 13, 2011.
    Jeffrey Lewis, Regional Conflict Counsel, Jacksonville, Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, and Luke Newman, Special Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Charmaine M. Millsaps, Assistant Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This case is one of many reaching us in the wake of State v. Montgomery, 39 So.3d 252 (Fla.2010). Mr. Noack argues that his convictions for second-degree murder and attempted second-degree murder should be overturned because the trial court gave an instruction on manslaughter by act similar to the instruction that the supreme court found to be fundamentally erroneous in Montgomery. The state properly concedes error under our cases, in which we have found the “interim” instruction given in the present case to be fundamentally erroneous. See, e.g., Pryor v. State, 48 So.3d 159, 161-62 (Fla. 1st DCA 2010); Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010). We have also found that the standard instruction for attempted manslaughter by act suffers from the same defect. See Herring v. State, 43 So.3d 823 (Fla. 1st DCA 2010); Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009); contra Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010). Because we are reversing and remanding for a new trial, we do not address Mr. Noack’s claim that he was improperly denied a peremptory challenge. See generally Melbourne v. State, 679 So.2d 759 (Fla.1996).

Reversed and remanded for a new trial.

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


text:
    Edwin G. BUSS, Secretary, Florida Department of Corrections, Appellant, v. Harry E. STONE, Appellee.
    No. 1D10-3384.
    District Court of Appeal of Florida, First District.
    May 13, 2011.
    Pamela Jo Bondi, Attorney General, and Marcus 0. Graper, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance, for Appellee.
   PER CURIAM.

The State of Florida challenges an order which treats a petition for a writ of mandamus as a petition for a writ of habeas corpus and which transfers such petition to the county where the petitioner resides. We reverse.

Appellee Harry E. Stone, a prisoner in the custody of the Florida Department of Corrections, was charged to have been in possession of a weapon, a violation of Department rules. Following a hearing, a disciplinary team found appellee guilty, and he was ordered to serve 60 days in disciplinary confinement. Appellee grieved this disciplinary action and eventually filed a grievance before the Department Secretary. In this lengthy grievance, appellee takes issue with several procedural aspects of the investigation and the hearing; he also challenges the evi-dentiary basis for the disciplinary action taken against him. But, appellee does not challenge in this grievance his eventual assignment to close management status. Upon the denial of his grievance by the Department Secretary, appellee filed a petition for a writ of mandamus in Leon County challenging this denial. In his request for relief, appellee seeks the removal of the disciplinary report from his institutional records, the removal from close management status, and the restoration of gain time, though he elsewhere concedes that in fact no gain time was forfeited as a result of the disciplinary action taken against him. Upon receipt of a response by the State which argued that the petition had to be dismissed to the extent it challenged appellee’s close management status, the trial court issued an order treating the mandamus petition as a habe-as petition and transferring it to Santa Rosa county, where appellee was then incarcerated.

While the mandamus petition does imprecisely challenge appellee’s placement within close management, that issue was not actually before the trial court given the claims actually raised in the grievance of April 19, 2009. Thus, the transfer was not warranted. See McNeil v. Davis, 46 So.3d 1136 (Fla. 1st DCA 2010)(explaining that when close management status is no longer an issue, a mandamus petition may be heard in Leon County where the Dept, of Corrections is headquartered).

Accordingly, the order transferring venue is reversed, and the cause is remanded back to the Second Judicial Circuit for Leon County which is to consider only the merits of appellee’s challenge to the disciplinary report as stated in the grievance of April 19, 2009.

REVERSED and REMANDED.

WEBSTER, VAN NORTWICK, and THOMAS, JJ., concur.


author: POLEN, J.

text:
    Juan GUARDADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4422.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Juan Guardado, appeals his judgment, convicting him of DUI manslaughter (Unlawful Blood Alcohol Level (UBAL)) and sentencing him to ten years’ imprisonment. We reverse Guardado’s conviction and remand for a new trial.

On October 7, 2005, Guardado was involved in a three-vehicle crash on 1-595 in Broward County, Florida. The two passengers in Guardado’s car were killed. When Trooper Anderson arrived at the scene, he saw Guardado in the driver’s seat with injuries to his face; the other two occupants did not appear to be alive. Guardado was extracted from the car and taken to Broward General Medical Center, where Trooper Nardiello requested that blood samples be taken.

On October 14, law enforcement received the toxicology results from the Examiner’s Office. Thereafter, a six-count information was filed, charging Guardado with two counts of DUI manslaughter; two counts of DUI manslaughter (UBAL); and two counts of DUI property damage. Guardado filed a written plea of not guilty to the two counts of DUI manslaughter (UBAL). The State then notified Guardado that it sought to subpoena his medical records. Guardado objected pursuant to sections 395.3025(4) and 456.057, Florida Statutes (2005), but the court granted the State authority to subpoena the medical records based on the State’s compelling interest. Guardado then filed an amended motion to suppress, arguing that the State’s motion to subpoena the medical records was based solely on the results of the blood draw done at the request of Florida Highway Patrol (FHP).

At the hearing on Guardado’s motion to suppress, the State stipulated that FHP did not have probable cause to take the legal blood. The hearing then proceeded to the issue of the medical blood. There is no transcript from the hearing on Guarda-do’s objection to the subpoena; however, the transcript from the hearing on Guarda-do’s motion to suppress references the hearing on Guardado’s objection to the State’s subpoena. The transcript from the suppression hearing reflects that at the hearing on Guardado’s objection to the subpoena, the only evidence that the State relied on was the fact that there was legal blood. There was no other testimony, no other evidence presented, and nothing proffered by the State as far as the odor of alcohol or anything considered to be impairment of the normal facilities. At the suppression hearing, the State admitted that there was no information in the State’s file that could have constituted independent probable cause at the time the medical blood subpoena was issued.

The trial judge entered an order suppressing the legal blood draw and denying the suppression of the medical blood evidence, finding that pursuant to Hunter v. State, 639 So.2d 72 (Fla. 5th DCA 1994), and McAlevy v. State, 947 So.2d 525 (Fla. 4th DCA 2006), the relevance of the medical blood evidence was obvious and that a compelling state interest existed to support its admission. Guardado then entered a nolo contendere plea, specifically reserving the right to appeal the denial of the dispositive motion to suppress. Guar-dado was sentenced to ten years’ Florida State Prison, followed by five years’ probation, on each count, to be served concurrently. This appeal followed.

On appeal, Guardado argues that the lower court reversibly erred by failing to suppress the medical blood because the subpoena issued for the medical blood was based solely on the legal blood, which the State stipulated was unlawfully obtained. Further, Guardado argues that the State failed to establish the relevance of the medical blood because it failed to establish a nexus between the medical blood and the crash. The State argues that the lower court properly found that the medical blood was relevant because even if the medical blood evidence was initially released pursuant to a subpoena based solely on the unlawfully seized legal blood evidence, any error was harmless in that the other facts in the probable cause affidavit would have also justified the issuance of the subpoena. The State further argues that any crash plus a death always makes medical blood relevant.

Although legal conclusions are reviewed under a de novo standard of review, a trial court’s ruling on a motion to suppress is clothed with the presumption of correctness on appeal. McNamara v. State, 357 So.2d 410, 412 (Fla.1978). Patient medical records are protected under Florida’s right to privacy as well as statute. Art. I, § 23, Fla. Const.; McAlevy, 947 So.2d at 529. Section 395.3025(4)(d), Florida Statutes, is a legislative attempt to balance a patient’s privacy rights against legitimate access to medical records. State v. Johnson, 814 So.2d 390, 393 (Fla.2002). Section 395.3025(4)(d) outlines the procedure for obtaining medical records under subpoena:

(4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent ...
(d) In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by-the party seeking such records to the patient or his or her legal representative.

§ 395.3025(4)(d), Fla. Stat. (2005). If the patient objects, a hearing must be held to determine if the records are relevant to a criminal investigation. Cerroni v. State, 823 So.2d 150, 152 (Fla. 5th DCA 2002). Thus, an intrusion into a fundamental privacy right can be met by demonstrating a compelling state interest. Shaktman v. State, 553 So.2d 148, 151 (Fla.1989). A compelling state interest exists upon a showing that the materials contain information relevant to an ongoing criminal investigation. McAlevy, 947 So.2d at 529 (citing State v. Rivers, 787 So.2d 952, 953 (Fla. 2d DCA 2001)). When the State seeks a subpoena for medical records, the court can rely on the State’s argument and the accident report or probable cause affidavit to establish relevance. Id.

In Cerroni, Cerroni filed a motion to suppress, asserting that his blood was drawn after the accident without á warrant and without the State following the dictates of Florida’s implied consent law. 823 So.2d at 151. The State stipulated that there was no probable cause to support the blood draw, and the trial court granted the motion to suppress. Id. The State then filed its notice of intent to subpoena medical records that “pertain[ed] to the blood sample taken from [Cerroni] subsequent to a vehicular accident involving a car driven by the defendant which was tested in part for alcohol content.” Id. In other words, since the “legal blood draw” results had been suppressed, the State was seeking the “medical blood draw” results. Id. Cerroni objected to the subpoena, and after a hearing, the trial court approved its issuance and also acknowledged that the order was dispositive. Id.

On appeal, the Fifth District held that the State had the obligation and burden to demonstrate relevancy, via evidence, before the subpoena could issue, and the State’s failure to do so below was fatal to the order on appeal. Id. at 152. However, the court held that the State was not precluded from again seeking the medical records through a subpoena, because the State did not, in bad faith, fail to comply with section 395.3025(4)(d): “If the state subpoenas the medical records again and, upon objection, proffers evidence which demonstrates the relevance of the blood-alcohol results, then the trial court may allow the issuance of the subpoena.” Id.

Here, the trial court relied on Hunter and McAlevy in denying Guardado’s motion to suppress the medical blood. In Hunter, the court stated that although it appeared obvious that the State sought the records to determine if Hunter had been drinking alcohol on the day of the accident, the State never argued to the trial judge the relevancy of the patient records to the criminal investigation. 639 So.2d at 73. However, the Fifth District held that the accident report, coupled with the fact that the other driver died as a result of the two-car accident, made the relevancy of the documents obvious. Id. In McAlevy, the court held that in determining whether the State had shown a nexus between the medical records and the pending criminal investigation, a trial court can “rely upon the state’s argument and the probable cause affidavit (akin to an accident report, as in Hunter).” 947 So.2d at 530 (emphasis added).

Hunter is distinguishable from the present case because in Hunter there was record evidence presented by the State to show both a compelling state interest and that the medical records sought were relevant to the criminal investigation. Here, aside from the unlawfully obtained legal blood evidence, the State failed to show a nexus between the medical records sought and the pending investigation. Instead, the State simply relied on the inadmissible legal blood to obtain the medical blood. The State did not rely on any lawful evidence which showed any nexus between Guardado’s medical blood and the traffic crash investigation, i.e., no police reports, arrest affidavits, or other documents were presented to the court. Finally, the State’s theory, “a crash plus a death always makes medical blood relevant,” is not the law.

The “crash plus death” standard has been held to create only part of the basis to establish relevance. For example, in Hunter the court noted that although the State failed to argue the relevancy of the medical records to the criminal investigation, the court found that “the accident report, coupled with the fact that the other driver died ... [made] the relevancy of the documents obvious.” Hunter, 639 So.2d at 73 (emphasis added). Similarly, in McAlevy, the court stated that the lower court was correct in relying on the “state’s argument and the probable cause affidavit (akin to the accident report in Hunter).” 947 So.2d at 530 (emphasis added). Thus, although the State correctly contends that it can properly rely upon the probable cause affidavit and argument to establish relevance pursuant to Hunter and McAlevy, there is no evidence in the record that the State actually relied on the probable cause affidavit at the hearing on Guardado’s objection to the issuance of the subpoena. Although there is no transcript in the record of said hearing, the State’s acknowledgment at Guardado’s hearing on his motion to suppress, that it did not proffer any other proof other than the legal blood, proves that it did not rely on the probable cause affidavit at the hearing to establish relevance. Consequently, the State’s “crash plus death” argument, standing alone, falls short of the relevancy requirements set forth in Hunter and McAlevy.

We hold that Cerroni is indistinguishable from the present case and reverse the trial court’s order denying the suppression of the medical blood because the State failed to establish a nexus between the medical blood and the crash. However, on remand, the State is not precluded from again seeking the medical records through a subpoena if it proffers evidence which demonstrates the relevance of the medical blood evidence, as its actions below did not rise to the level of bad faith. See Cerroni, 823 So.2d at 152 (holding that “the state is not precluded from again seeking the medical records through a subpoena, because the state did not in bad faith fail to comply with section 395.3025(4)(d)”; “[i]f the state subpoenas the medical records again and, upon objection, proffers evidence which demonstrates the relevance of the blood-alcohol results, then the trial court may allow the issuance of the subpoena.”).

Reversed.

GROSS, C.J., and DAMOORGIAN, J., concur.

      . Two samples were taken; the first at 4:57 a.m. and the second at 5:57 a.m. The blood specimens were sent by Trooper Nardiello to the Broward County Medical Examiner’s Office.

      . The results for the first blood kit were .215 and .218 grams ethanol alcohol per 100 milliliters of blood; the results for the second kit were .197 and .194.

      .The State entered a nolle prosequi on the DUI manslaughter counts and the DUI property damage counts.

      . The legal blood draw refers to the draw done at the request of FHP; the medical blood draw refers to the draw performed by the hospital in order to treat Guardado for his injuries.


author: LAGOA, J.

text:
    WESTERN AND SOUTHERN LIFE INSURANCE COMPANY, Appellant, v. Jessica BEEBE, Appellee.
    No. 3D10-672.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Denise V. Powers, for appellant.
    Waterman McPhee and John S. McPhee and Lynn S. Waterman, for appellee.
    Before GERSTEN, CORTINAS, and LAGOA, JJ.
   LAGOA, J.

Western and Southern Life Insurance Co. (“Western”) appeals from a final judgment awarding attorney’s fees and costs to Jessica Beebe (“Beebe”). Western challenges only the amount of fees awarded, not entitlement. Because the trial court improperly awarded fees in excess of those provided for in the contingent fee contract (the “contract”), we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

Beebe entered into a contract with Lynn Waterman (“Waterman”) for representation concerning coverage under a life insurance policy issued by Western. Ultimately, final summary judgment was entered in favor of Beebe and against Western. In granting final summary judgment, the trial court found that Beebe was entitled to recover her attorney’s fees and taxable costs pursuant to section 627.428, Florida Statutes (2010), but deferred determination of the amount. This Court affirmed the summary judgment in favor of Beebe. W. & S. Ins. Co. v. Beebe, 11 So.3d 960 (Fla. 3d DCA 2009).

Beebe then filed an amended motion for final judgment awarding attorney’s fees and taxable costs. In opposition, Waterman filed an affidavit stating that a reasonable hourly rate for the services rendered was $300. In her supporting memorandum, Beebe requested an award based on an hourly rate of $451 per hour, plus a multiplier of 2.5.

The trial court conducted several hearings on Beebe’s motion and subsequently entered a detailed order finding that $350 an hour was the reasonable hourly rate and that Beebe was entitled to a multiplier of 1.5. The trial court then entered a final judgment awarding Beebe attorney’s fees in the amount of $281,610, in addition to costs, and pre-judgment interest, for a total of $356,344.44. This appeal ensued.

II. ANALYSIS

Relying upon Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), Western argues on appeal that the trial court erred in applying an hourly rate of $350 rather than $300 as set forth in the contract. We agree with Western, and reverse the award of attorney’s fees.

The contract between Beebe and Waterman contained the following language:

Lynn S. Waterman, Esq.’s (“Attorney”) fee shall be $300.00 per hour; however, Attorney shall receive for her fee only such fees as may be awarded against the Defendant(s) by the court or hearing officer to whom the subject claim is presented. In the event a recovery is made on the claim by settlement, the client agrees not to take any action which would prejudice Attorney’s right to obtain her fee from the Defendant(s), absent prior consent of the Attorney.
IT IS AGREED and UNDERSTOOD that this employment is upon a contingent fee basis, and if no recovery is made, I, JESSICA BEEBE, will not be indebted to my attorney for any sum whatsoever as attorney’s fees.

Therefore, according to the terms of the contract, Waterman would only receive fees in the event that Beebe prevailed on her claim, and then, only those awarded by the court against Western.

Rowe and its progeny stand for the proposition that the amount of attorney’s fees awarded by the trial court in a case involving a contingency fee agreement may not exceed the actual fee agreement between the prevailing party and his or her attorney. In Rowe, the Supreme Court established the lodestar formula for setting a reasonable attorney’s fee, and stated that “[o]nce the court arrives at the lodestar figure, it may add or subtract from the fee based upon a ‘contingency risk’ factor and the ‘results obtained.’ ” Rowe, 472 So.2d at 1151. In addressing the contingency risk factor, the Court stated:

Because the attorney working under a contingent fee contract receives no compensation when his client does not prevail, he must charge a client more than the attorney who is guaranteed remuneration for his services. When the prevailing party’s counsel is employed on a contingent fee basis, the trial court must consider a contingency risk factor when awarding a statutorily-directed reasonable attorney fee. However, because the party paying the fee has not participated in the fee arrangement between the prevailing party and that party’s attorney, the arrangement must not control the fee award: “Were the rule otherwise, courts would find themselves as instruments of enforcement, as against third parties, of excessive fee contracts.” Further, in no case should the court-awarded fee exceed the fee agreement reached by the attorney and his client.

Id. (citations omitted, emphasis added); see also Miami Children’s Hosp. v. Tamayo, 529 So.2d 667 (Fla.1988) (holding that trial court properly limited court awarded fees to the forty percent contingent fee payable under contingency fee contract). See generally Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 831 (Fla.1990) (explaining that Rowe “effectively established a cap on the fee by holding that ‘in no case should the court-awarded fee exceed the fee agreement reached by the attorney and his client’ ”).

Here, the contract provides that “Lynn S. Waterman, Esq.’s (“Attorney”) fee shall be $300 per hour; however, Attorney shall receive for her fee only such fees as may be awarded against the Defendants) by the court or hearing officer to whom the subject claim is presented.” (emphasis added). Consistent with the contract, Waterman stated in her affidavit in support of the motion for summary judgment for fees and costs that $300 was a reasonable hourly rate for her services. However, Waterman later claimed in her memorandum in support of an amended motion to fees and costs that she had “not stipulated to any particular hourly fee.” Indeed, her explanation at the hearing below was that she just “thought you had to have some kind of rate in there.” Her expert also opined that the $300 per hour figure was “surplusage” that “means nothing in the contract.” The trial court agreed, and found that it was not bound by the hourly rate set in the contract because “if the [cjourt was bound to that rate then had the attorney set $1,000 hourly rate, the [cjourt would have to uphold that rate. Clearly that would be unreasonable.”

We find that the trial court erred in applying an hourly rate of $350 per hour. The contract clearly and unambiguously states that Waterman’s hourly rate was $300 per hour. Waterman swore that this was a reasonable rate for her services in her affidavit in support of fees. Pursuant to the statute, the trial court was bound to make an award of a reasonable sum as fees, and, contrary to the trial court’s reasoning, it was indeed bound by the hourly rate set forth in the contract— as a cap on that award. The fact that the contract provides for an hourly rate rather than the more traditional percentage of recovery is of no moment. Accordingly, we reverse the final judgment awarding attorney’s fees and costs to Beebe.

Reversed.

      . The statute provides, in relevant part:
      627.428. Attorney’s fee
      (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had.

      . The contract at issue here is a "full contingency-fee arrangement." See Lane v. Head, 566 So.2d 508, 509 n. 1 (Fla.1990).

      . In contrast, in cases where the client agrees that the attorney will be paid either a specific percentage of the recovery or the amount awarded by the court pursuant to a prevailing party statute, whichever is higher, the Supreme Court has held that the trial court may award fees which exceed the amount recoverable under the percentage alternative of the fee agreement. This is so because the court-awarded fee does not exceed the fee agreement entered into by the client and the attorney. Florida Patient's Comp. Fund v. Moxley, 557 So.2d 863 (Fla.1990); Kaufman v. MacDonald, 557 So.2d 572 (Fla.1990).

      . The trial court’s belief that it was not bound by the rate stated in the contract because then it would be forced to uphold any rate stated in a contingency fee contract, regardless of how high, ignores the overriding principle that pursuant to Rowe, the trial court is required “to determine a reasonable hourly rate for the services of the prevailing party’s attorney.” Rowe, 472 So.2d at 1150 (emphasis added).

      . After oral argument and the preparation of this opinion, the parties advised this Court that the cause has since been settled. As a result, we are not compelled to remand for further proceedings below.


author: ROTHENBERG, J.

text:
    Knowlan DAWSON, Appellant, v. WACHOVIA BANK, N.A., etc., et al., Appellees.
    No. 3D09-3298.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.

      Knowlan Dawson, in proper person.
    Krinzman Huss & Lubetsky and Cary A. Lubetsky, Miami, for appellees.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, J.

Knowlan Dawson (“Dawson”) appeals the trial court’s denial of his emergency objection to foreclosure sale, motion to vacate the October 21, 2009 foreclosure sale, and motion to strike final judgment of foreclosure. Because we find no abuse of discretion, we affirm.

Dawson, who defaulted on a mortgage secured by commercial property, sought relief from an order affecting the sale of the property. In June, 2005, Dawson and his business, Sonder Enterprises, Inc. (“Sonder”), entered into a mortgage for $340,000, which was secured by commercial property located in Miami-Dade County. The mortgage, which was recorded in the public records of Miami-Dade County, required regular monthly payments. SF Partners Mortgage, LLC, assigned the mortgage and its companion promissory note to Wachovia Bank, N.A. (“Wacho-via”), but continued to service the mortgage on behalf of Wachovia. The assignment was recorded in the public records of Miami-Dade County, Florida. Beginning in January, 2008, Dawson and Sonder stopped making the necessary payments, and failed to pay property taxes, as required under the note and mortgage.

On April 10, 2008, Wachovia filed a foreclosure suit. Dawson delayed Wachovia’s path to judgment and payment by: (1) filing for bankruptcy; (2) entering into a forbearance agreement with Wachovia; (3) breaching the forbearance agreement after a few payments; (4) delaying enforcement of the forbearance agreement by transferring the property to someone else, who then declared bankruptcy; and (5) filing a motion to strike the final judgment. Dawson’s final effort to delay the foreclosure sale was the instant motion to strike the final judgment of foreclosure. A more complete recitation of these proceedings follows.

The record reflects that Sonder delayed Wachovia’s foreclosure suit by filing a suggestion of bankruptcy on June 9, 2008. Sonder and Dawson agreed to summary judgment against them in exchange for a delay of the property’s sale, and pursuant to that agreement, summary judgment of foreclosure was entered on September 16, 2008. As part of the consideration of the forbearance agreement, Sonder waived all defenses. On December 8, 2008, Wachovia filed a motion to set a sale date, and the sale was set for March 5, 2009. The agreement provided that Sonder’s default on the conditions of the forbearance agreement would permit Wachovia to seek an earlier sale date.

On the eve of the expiration of the time period they had negotiated, Sonder and Dawson took steps to further delay the sale of the property. On February 26, 2009, Dawson, through Sonder, filed a motion seeking a later date to allow time for Sonder to sell the property. The next day, the trial court entered an order changing the sale date from March 5, 2009 to June 24, 2009. However, on June 11, 2009, Son-der filed a motion seeking to vacate the summary judgment, alleging that Wacho-via had no standing to foreclose. On June 16, 2009, after Wachovia filed additional evidence of its standing, the trial court denied Sonder’s motion. Prior to the June 24, 2009, sale date, Sonder transferred the property to Debbie Dawson, and on the sale date, Debbie Dawson filed for bankruptcy. However, on August 3, 2009, the bankruptcy was dismissed as filed in bad faith, Wachovia asked the trial court to reschedule the foreclosure sale, and the trial court set the new sale date for September 18, 2009. Undaunted, on the eve of the new sale date, Sonder filed an emergency motion to cancel the sale, and the trial court postponed the sale to October 21, 2009. On October 21, 2009, the property was sold to a bidder who is not a party to this appeal.

Even after the sale, Dawson sought to retain the property. On November 4, 2009, Dawson filed an emergency objection to the foreclosure sale, a motion to vacate foreclosure sale, and Assignment of Judgment and Right to Bid for Fraud on the Court, a motion to strike final judgment, and a memorandum of law. The trial court denied Dawson’s motions. Dawson then filed additional objections to the sale, raising similar arguments, which were denied on November 24, 2009. Dawson, but not Sonder, appeals the November 24, 2009 order entered by the trial court.

In this appeal, Dawson contends the trial court improperly granted summary judgment in favor of Wachovia. We decline to address the merits of this claim as the order granting final summary judgment on September 16, 2008 was not appealed, and Dawson waived all defenses to summary judgment when he entered into the forbearance agreement. Additionally, the summary judgment was based on a settlement agreement, and “a stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and the court.” Antar v. Seamiles, LLC, 994 So.2d 439, 442 (Fla. 3d DCA 2008). The record reflects that Dawson and Sonder made payments pursuant to the agreement’s terms.

Consequently, at issue in this appeal is whether the trial court properly denied the motion to vacate the judgment and vacate the sale of the property. The standard of review is abuse of discretion. Balbin v. Lexington Ins. Co., 982 So.2d 10, 11 (Fla. 3d DCA 2008); Phenion Dev. Group, Inc. v. Love, 940 So.2d 1179, 1181 (Fla. 5th DCA 2006). The trial court clearly did not abuse its discretion in this case.

Under Florida Rule of Civil Procedure 1.540(b), relief from judgment is only available under limited circumstances. A motion for relief from judgment is not a substitute for an appeal. Balbin, 982 So.2d at 11. There are five grounds upon which a motion for relief from judgment may be granted. See Fla. R. Civ. P. 1.540(b). The first three grounds must be asserted within one year of the judgment or order challenged. Id.

The first ground, excusable neglect, surprise, or inadvertence, is not evident on this record. Sonder and Dawson actively participated in the foreclosure process, had the benefit of counsel when negotiating the forbearance agreement, and they were not surprised by any previously unknown facts in support of setting the sale date. Dawson and Sonder simply failed to comply with their obligations under the agreement. See Aegis Props. of S. Fla. v. Avalon Master Homeowner Ass’n, Inc., 37 So.3d 960, 962 (Fla. 4th DCA 2010).

The second ground, newly discovered evidence that could not have been discovered in time to raise a motion for rehearing even with due diligence, is also unavailing, as Dawson has not provided any basis in any of his pleadings to support this ground.

The third ground, fraud, misrepresentation, or misconduct, is similarly absent. Dawson does not contend he or Sonder was duped into defaulting on their obligations under the mortgage, but rather, contends that the party who owned the note was changed without his knowledge. There is no reason this fact, on its own, would be material to whether he was duped into defaulting. Dawson does not provide any evidence how the ownership change affected his ability to make timely payments where the servicer to whom he made payments did not change. Dawson does not allege he made any payments that were not credited. Thus, the judgment is neither void nor voidable based on fraud because the issue raised by the alleged fraud is immaterial. See Greenwich Ass’n, Inc. v. Greenwich Apts., Inc., 979 So.2d 1116, 1118-19 (Fla. 3d DCA 2008); see also Freemon v. Deutsche Bank Trust Co. Ams., 46 So.3d 1202, 1205 (Fla. 4th DCA 2010) (holding fraud alleged must affect the case’s outcome). Moreover, Dawson and Sonder signed an agreement waiving all defenses to Wachovia’s foreclosure complaint.

The fourth ground, that the judgment was void, is unsupported by the record. Dawson does not contest that he defaulted on the mortgage. He merely challenges how money that he paid was collected and transferred, for which he demanded an accounting. The foreclosure judgment, however, includes credit for payments made under the forbearance agreement.

Lastly, the judgment was not satisfied, which is fatal to the fifth basis upon which Dawson could have obtained relief.

Dawson (and Sonder) defaulted on their note with Wachovia in 2008; they delayed the sale date for nearly two years; the sale was proper; and Dawson’s objections to the sale and to vacate the final judgment were properly denied. Accordingly, we affirm the order under review.

Affirmed.

      . LeaseFlorida Development, LLC ("Lease-Florida”) currently owns the property. Lea-seFlorida intervened in this appeal, and filed a brief adopting Wachovia’s arguments and adding its own arguments regarding its status as a bona fide purchaser for value without notice of Dawson’s continuing suit over the property. Because we affirm on the basis of Wachovia’s argument, we need not and do not address LeaseFlorida's additional arguments.

      . The purchaser subsequently transferred the property to LeaseFlorida.


author: SALTER, J.

text:
    BANKATLANTIC, Appellant, v. ESTATE OF Richard GLATZER, Appellee.
    No. 3D11-196.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    May, Meacham & Davell, and William C. Davell, Carolyn B. Brombacher and Christopher D. Barber, Fort Lauderdale, for appellant.
    Steven Silverman, Miami, for appellee.
    Before GERSTEN and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

BankAtlantic appeals two non-final circuit court orders directing it to transfer the funds in a deceased physician’s professional association account to the depository account (at a different bank) established for the administration of his estate. We reverse both orders and remand for the entry of an order directing repayment of the funds (and any earnings thereon) to the account from which they were transferred.

BankAtlantic was a secured creditor of the late doctor’s professional association under a note and mortgage. The promissory note included a right of setoff:

RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower’s accounts with Lender (whether checking, savings, or some other account).... Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any and^all such accounts and, at Lender’s option, to administratively freeze all such accounts to allow Lender to protect Lender’s charge and setoff rights provided in this paragraph.

The decedent personally guaranteed his professional association’s promissory note, and his death constituted an event of default under that note. The orders requiring transfer of the funds to a different bank thus impaired BankAtlantic’s right of setoff. Although the parties agreed that the deceased physician owned all of the shares of his professional association, there was no evidence presented to support a “piercing of the corporate veil” under Dania Jai-Alai Palace v. Sykes, 450 So.2d 1114 (Fla.1984), or any other alter ego theory. While the appellee Estate was apparently entitled to take possession of the professional association stock held by the doctor at his death, no such conclusion extended to the association’s funds on deposit in the corporate name at BankAtlantic. In Gettinger v. Gettinger, 165 So.2d 757 (Fla.1964), the Supreme Court of Florida held that “the affairs of a corporation, even though substantially owned by a decedent, cannot be administered by decedent’s executor as assets of the decedent’s estate.” In this case, “substantially” is 100%, and the result is identical.

The Estate seeks affirmance of the orders below on three independent grounds: (1) that the orders are not appealable; (2) that the Estate has the power to “take charge of and marshal” the funds in the professional association account; and (3) that the probate court ruling should be upheld because no decision was made regarding any competing claims to the funds. None of these arguments is persuasive.

As to jurisdiction, the orders are reviewable non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3)(B). CMR Distrib., Inc. v. Resolution Trust Corp., 593 So.2d 593 (Fla. 3d DCA 1992). Regarding the Estate’s second argument, section 69.031(1), Florida Statutes (2010), and the cases cited by the Estate refer to marshaling “part or all of the personal assets of the estate” and to the use of court-approved depositories for such assets. The point in this case is that the stock of the professional association is an asset of the Estate, but the funds of the professional association are a step removed from the Estate. The decedent’s Estate essentially ignored the separate corporate existence of the professional association and that entity’s obligations to its own creditors.

The third argument also fails. BankAt-lantic’s rights are not protected just because the funds are frozen in a restricted depository account of the Estate. In this case, BankAtlantic’s possessory and contractual rights to setoff are impaired by the transfer to a different bank.

Reversed and remanded, with directions to order the return of the transferred funds (and any interest earned on such funds while in the transferee bank’s possession) to BankAtlantic.

      . § 733.607(1), Fla. Stat. (2010); Perez v. Lopez, 454 So.2d 777 (Fla. 3d DCA 1984).

      . As an example of another such impairment, if the transferee bank later failed, BankAtlantic would have to protect its interests as an indirect creditor of the estate’s depository account (not as a direct creditor of a named account holder/debtor) in the transferee bank’s liquidation.


text:
    Collins POWERS, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D10-6849.
    District Court of Appeal of Florida, First District.
    May 18, 2011.
    Collins Powers, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the judgment and sentence rendered on March 12, 2009, in Clay County Circuit Court case number 2000-CF-000586. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

BENTON, C.J., CLARK and MARSTILLER, JJ., concur.


text:
    Samuel GAMBLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0879.
    District Court of Appeal of Florida, First District.
    May 18, 2011.
    Samuel Gamble, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of his motion for posteonviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we reverse.

The appellant was convicted of possession of a firearm by a convicted felon (count one) and failure to appear (count two) and was sentenced in accordance with a negotiated plea agreement to concurrent terms of four years’ imprisonment with a three-year minimum mandatory for count one for possessing a firearm. The appellant asserts that there is no factual basis to support the imposition of the three-year minimum mandatory sentence. “An appellant can challenge the factual basis for his plea in a rule 3.850 motion.” Franklin v. State, 645 So.2d 166, 166 (Fla. 4th DCA 1994); see also Jones v. State, 647 So.2d 182 (Fla. 1st DCA 1994) (“When a 3.850 movant alleges that his plea had no factual basis, and the trial court fails to attach to its order those portions of the record establishing that basis, the order does not conclusively show that the movant is enti-tied to no relief’). Here, the appellant alleges that he did not have actual possession of the firearm because it was found in the trunk of a car he was driving, which, if true, would not support the minimum-mandatory sentence imposed. See Sims v. State, 44 So.3d 1222 (Fla. 5th DCA 2010) (“In the context of possession of a firearm by a convicted felon, this court has interpreted subsection 775.087(2)(a)1.’s use of ‘actually possessed’ to require evidence that the defendant actually carried the firearm in order to impose the three-year minimum mandatory”); Johnson v. State, 855 So.2d 218 (Fla. 5th DCA 2003) (“The three-year minimum mandatory applies, but only if it is shown that Appellant ‘actually possessed’ the firearm, which we construe to mean carried on his person”).

In response, the state asserts in part that the denial should be affirmed because the appellant agreed to the three-year minimum mandatory portion as a part of his plea. However, this Court has held that a defendant’s agreement to be subject to a minimum-mandatory sentence for possessing a firearm does not constitute an admission that the defendant was in actual possession of the firearm. See Turpin v. State, 651 So.2d 176 (Fla. 1st DCA 4995). Thus, we reverse and remand for the trial court to attach records conclusively refuting the appellant’s claim or to hold an evidentiary hearing. We note that if the trial court finds that a factual basis did not exist to support the imposition of the mandatory-minimum portion of the sentence, the appellant would not be entitled to automatic resentencing. Instead, the remedy would be for the State to be allowed to withdraw from the plea and proceed to trial on the original charges or for the striking of the minimum-mandatory sentence only if the state agreed. See Bartkel v. State, 862 So.2d 28 (Fla. 2d DCA 2003) (holding that where an agreed upon minimum-mandatory sentence was illegal, remedy was not automatic resentencing, instead, the state would be given the opportunity to agree to resentencing or to withdraw from the plea agreement and proceed to trial on the original charges).

REVERSED and REMANDED for proceedings consistent with this opinion.

WOLF, WEBSTER, and VAN NORTWICK, JJ., concur.


text:
    Carlos A. SEGURA, et al., Petitioners, v. Fernando Segura RODRIGUEZ, et al., Respondents.
    No. 3D10-3023.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Dunwody White & Landon and Jack A. Falk, Jr., and Jeremy P. Leathe, Coral Gables; Shutts & Bowen and Candice Manes and Jonathan Cohen, for petitioners.
    Elizabeth K. Russo and Susan S. Lerner, Miami; Beasley & Demos, for respondents.
    Before GERSTEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The petition for writ of certiorari is dismissed. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995) (“[J]ust as an appellant must establish that a nonfinal order falls within one of the authorized categories in Florida Rule of Appellate Procedure 9.130 before this court has the power to review the merits of the nonfinal order by appeal, a petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before this court has power to determine whether the order departs from the essential requirements of the law. If the jurisdictional prongs of the standard three-part test [ (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on post-judgment appeal] are not fulfilled, then the petition should be dismissed rather than denied.”).


text:
    David SOUTH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3275.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Bruce A. Rosenthal, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, CORTIÑAS, and SALTER JJ.
   PER CURIAM.

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


text:
    Lenzy B. JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-51.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Lenzy B. Johnson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Contreras-Mayahua v. State, 40 So.3d 861 (Fla. 4th DCA 2010).


author: WELLS, Judge.

text:
    Ari PALEWSKY, Appellant, v. DEPARTMENT OF REVENUE o/b/o Rachel MILLER, Appellee.
    No. 3D11-282.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Ari Palewsky, in proper person.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Tallahassee, Assistant Attorney General, Child Support Enforcement, for appellee.
    Before RAMIREZ, C.J., and WELLS, . and CORTINAS, JJ.
   ON CONFESSION OF ERROR

WELLS, Judge.

Ari Palewsky appeals from an order approving a magistrate’s report determining paternity and awarding child support. On the Department of Revenue’s proper confession of error regarding the award of child support absent a child support guidelines worksheet, we reverse the support award and remand for an evidentiary hearing on the amount of support to be awarded. See Fla. Fam. L.R.P. 12.285(j) (“If the case involves child support, the parties shall file with the court at or prior to a hearing to establish or modify child support a Child Support Guidelines Worksheet .... This requirement cannot be waived by the parties.”); Durham v. Dep’t of Revenue ex rel Durham, 850 So.2d 653, 654 (Fla. 2d DCA 2003) (finding that “given the mandatory language of [Rule 12.285(j) ] it was error for the trial court to modify Durham’s child support without the benefit of a guidelines worksheet”). In light of the fact that Palewsky does not contest paternity, we affirm the order on review on that point. Finding no merit to his claim that he is entitled to representation by the Public Defender’s office, we affirm the remainder of the order. See § 27.51(1), Fla. Stat. (2010) (authorizing appointment of the public defender to represent any person determined to be indigent and who is under arrest for or charged with: a felony or misdemeanor authorized for prosecution by the state attorney; a violation of chapter 316 punishable by imprisonment; criminal contempt; a violation of a special law or county or municipal ordinance ancillary to a state charge, or if not ancillary to a state charge only if the public defender contracts with the county or municipality to provide representation); § 409.2557(1)-(2), Fla. Stat. (2010) (designating the Department of Revenue as the state agency responsible for child support enforcement under Title IV-D of the Social Security Act and authorizing the Department of Revenue to commence both judicial and administrative proceedings to determine paternity and establish child support).

The order on appeal is, therefore, affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.


text:
    Kevin BURRELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-327.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Kevin Burrell, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


text:
    Pedro TORRES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-439.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Pedro Torres, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.850(b).


text:
    Stevenland DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2505.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Carlos J. Martinez, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before GERSTEN and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Stevenland Davis appeals his conviction and sentence for two counts of second-degree murder. We reverse and remand for a’ new trial because the trial court fundamentally erred in instructing the jury that intent to kill was an element of manslaughter by act, a lesser-included offense of second-degree murder. See State v. Montgomery, 39 So.3d 252 (Fla.2010).

Reversed and remanded for a new trial.


text:
    James CORPORA, Appellant, v. Doran JASON, et al., Appellees.
    No. 3B10-1190.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Andrew M. Kassier, for appellant.
    Brooks & Alayon and Gary S. Brooks, Coral Gables, for appellees.
    Before GERSTEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Ham v. Dunmire, 891 So.2d 492, 495 (Fla.2004).


text:
    J.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1740.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and SHEPHERD and SALTER, JJ.
   PER CURIAM.

Affirmed. J.M. v. State, 960 So.2d 813, 815 (Fla. 3d DCA 2007); Billips v. State, 777 So.2d 1094 (Fla. 3d DCA 2001)


text:
    Victor LECHUGA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2247.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.

      Victor Lechuga, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Victor Lechuga appeals from the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion to correct jail time credit afforded on his sentence. Because the record fails to show conclusively that the defendant is not entitled to relief, we reverse the order and remand for a hearing or attachment of record excerpts conclusively refuting the defendant’s claim.

Reversed and remanded.


text:
    CENTURY SURETY INSURANCE COMPANY, Appellant, v. FIT KIDS, CORP. d/b/a Fit for Life, Inc., Appellee.
    No. 3D10-2530.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Litchfield Cavo and John Catizone, Fort Lauderdale, for appellant.
    Jay M. Levy; Carlos Cruanes, Miami, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

There is no competent evidence on either ground adopted by the trial court to support its conclusion that the appellant insurer provided coverage to the appellee insured for the liability in question. Accordingly, the judgment below is reversed and the cause remanded with instructions to enter judgment for appellant.

Reversed and remanded.

SHEPHERD, J„ and SCHWARTZ, Senior Judge, concur.

EMAS, J., concurs in result only.


text:
    E.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1023.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    E.D., a juvenile, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See C.C. v. State, 943 So.2d 905 (Fla. 5th DCA 2006).


author: EMAS, J.

text:
    Anthony NOTTAGE, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-938.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Anthony Nottage, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

Anthony Nottage timely filed an initial motion for postconviction relief pursuant to Florida Rule of Criminal Procedure, 3.850. The trial court entered an order summarily denying the motion. The order simply states:

[T]his Court having reviewed the motion, the State’s response thereto, the court files and records in this case, and being otherwise fully advised in the premises therein, hereby denies Defendant’s Motion for Post Conviction Relief on the following ground: Defendant’s Motion for Post Conviction Relief is legally insufficient and/or refuted by the record.

In Spera v. State, 971 So.2d 754 (Fla.2007) the Supreme Court discussed the differing treatment accorded postconviction claims that are legally insufficient and those claims which, while legally sufficient, are conclusively refuted by the record:

[R]ule 3.850 distinguishes between claims that are facially insufficient and those that are facially sufficient but are also conclusively refuted by the record. A determination of facial sufficiency will rest upon an examination of the face, or contents, of the postconviction motion. Because the determination of facial sufficiency under rule 3.850 is one of law and involves an evaluation of the legal sufficiency of the claim alleged, the evidence in the record will ordinarily be irrelevant to such an evaluation.

Id. at 758.

The order in this case denies the motion based upon the alternative findings that the claims were conclusively refuted by the record or that the motion was legally insufficient. To the extent the denial of the motion was based upon the record, the Court failed to attach to its order any portion of the files or record that conclusively show appellant was entitled to no relief. See Fla. R. Crim. P. 3.850(d).

To the extent the denial of the motion was based upon the legal insufficiency of the motion, the trial court failed to follow the procedure outlined in Spera when determining that an initial motion for postconviction relief is legally insufficient:

[W]hen a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.... [W]e hold that the proper procedure is to strike the motion with leave to amend within a reasonable period. We do not envision that window of opportunity would exceed thirty days and may be less. The striking of further amendments is subject to an abuse of discretion standard that depends on the circumstances of each case. As we did in Bryant [v. State, 901 So.2d 810 (Fla.2005) ] we stress here, too, that “we do not intend to authorize ‘shell motions’those that contain sparse facts and argument and are filed merely to comply with the deadlines, with the intent of filing an amended, more substantive, motion at a later date.” Bryant, 901 So.2d at 819.
We also stress that our decision is limited to motions deemed facially insufficient to support relief that is, claims that fail to contain required allegations. When trial courts deny relief because the record conclusively refutes the allegations, they need not permit the amendment of pleadings.
Id. at 761-62.

We therefore reverse and remand this cause with directions that the trial court either: 1) enter an amended order which attaches those portions of the files and record that conclusively establish that appellant is entitled to no relief; or 2) permit appellant an opportunity to amend his motion to state a legally sufficient claim, and for proceedings thereafter consistent with this opinion.

      . Of course, as discussed supra, an order which denies relief on this basis must attach the relevant portions of the files or record that conclusively establish a defendant is entitled to no relief. Fla. R. Crim. P. 3.850(d).


text:
    Earl James RAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0569.
    District Court of Appeal of Florida, First District.
    May 19, 2011.
    Earl James Ray, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

HAWKES, THOMAS, and ROBERTS, JJ., concur.


text:
    Walter Leon GRANDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2179.
    District Court of Appeal of Florida, First District.
    May 19, 2011.
    Walter Leon Granderson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

HAWKES, THOMAS, and ROBERTS, JJ., concur.


text:
    GUARANTEE INSURANCE COMPANY, Appellant, v. WORKER’S TEMPORARY STAFFING, INC., Appellee.
    No. 5D10-1905.
    District Court of Appeal of Florida, Fifth District.
    May 20, 2011.

      Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, GA, and Robert J. Grace of Stiles, Taylor & Grace, P.A., Tampa, for Appellant.
    Matthew S. Mokwa and Aaron C. Bates of Bates Mokwa, PLLC, Orlando, for Ap-pellee.
   PER CURIAM.

Appellant challenges the judgment awarding attorney’s fees and costs to Ap-pellee, pursuant to section 627.428, Florida Statutes (2006), after Appellant voluntarily dismissed (without prejudice) its action for unpaid premiums. Because the voluntary dismissal was neither a judgment nor the functional equivalent of a confession of judgment — a precondition to an award under section 627.428 — we reverse.

Appellant filed a one-count breach of contract complaint against Appellee for alleged failure to pay additional premiums owed under a worker’s compensation policy. Although Appellant attached the original policy to its complaint, it failed to attach the policy renewals. The lower court, upon Appellee’s motion, entered an order dismissing the complaint for failure to attach the policy renewals, and affording Appellant twenty days to file an amended complaint. Before the time period to file the amendment lapsed, Appellant filed a notice of voluntary dismissal without prejudice. Appellee then filed a motion for attorney’s fees and costs pursuant to section 627.428, Florida Statutes (2006), which provides:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

Despite Appellant’s assertion that section 627.428 did not apply because there was no “rendition of a judgment or decree” entered against it, the lower court entered an order awarding Appellee attorney’s fees and costs.

Appellant relies solely upon O.A.G. Corporation v. Britamco Underwriters, Inc., 707 So.2d 785 (Fla. 3d DCA 1998), abrogated on other grounds by Canfield v. Cantele, 837 So.2d 371 (Fla.2002), to demonstrate that its voluntary dismissal without prejudice does not constitute a judgment or decree. There, the insurer filed a complaint against the insureds seeking a determination of no coverage in a personal injury action. The insurer voluntarily dismissed without prejudice, and, three days later, refiled the action. Id. at 786. The insureds responded by filing a motion for attorney’s fees as the prevailing parties of the original action pursuant to section 627.428. The trial court denied the motion upon a finding that the insureds were not prevailing parties. Id. On appeal, our sister court concluded that because the dismissal was without prejudice to refile another action, it did not constitute an adjudication on the merits. Id. Therefore, it was not a judgment, or the functional equivalent of a confession of judgment, and the insureds were not entitled to attorney’s- fees and costs pursuant to section 627.428. Id. at 787.

Appellee urges this Court to hold otherwise. It relies upon Wollard v. Lloyd’s & Companies of Lloyd’s, 439 So.2d 217 (Fla.1983), to argue that Appellant’s voluntary dismissal was the “functional equivalent” of a judgment. In Wollard, an insured filed suit against his insurer after the insurer denied coverage of his claim. On the eve of trial, the parties reached a settlement, but submitted the issue of attorney’s fees to the court. The court awarded attorney’s fees to the insured pursuant to section 627.428. Id. at 218. The Third District reversed, ruling that a negotiated settlement does not entitle the insured to fees. Id. (citing Lloyd’s & Cos. of Lloyd’s v. Wollard, 420 So.2d 940, 941 (Fla. 3d DCA 1982)). The Florida Supreme Court quashed the Third District’s holding, stating:

When the insurance company has agreed to settle a disputed case, it has, in effect, declined to defend its position in the pending suit. Thus, the payment of the claim is, indeed, the functional equivalent of a confession of judgment or a verdict in favor of the insured. Requiring the plaintiff to continue litigation in spite of an acceptable offer of settlement merely to avoid having to offset attorney’s fees against compensation for the loss puts an unnecessary burden on the judicial system, fails to protect any interest — the insured’s, the insurer’s or the public’s — and discourages any attempt at settlement.

Id. (emphasis supplied).

We think O.A.G. was correct and governs here. This case is distinguishable from Wollard. Here, Appellant did not make a concession on the merits. Rather, it merely dismissed without prejudice to refile its lawsuit. The fact that it had not refiled suit prior to the date on which the motion for fees was filed is of no consequence. Legal entitlement to fees must be based upon the events preceding the filing of the motion.

REVERSED.

TORPY, LAWSON and COHEN, JJ., concur.

      . Appellee argues entitlement to costs only pursuant to section 627.428. Accordingly, we address only Appellee's entitlement to costs under that statutory provision.

      . Appellee makes the alternative argument that the order of dismissal is a "decree." We reject this contention. A "decree" is the counterpart to a judgment entered in a court of equity. Black’s Law Dictionary (9th ed. 2009); see also Henry P. Trawick, Jr., Trawick’s Fla. Prac. & Proc. § 25:1 (2011 ed.) (“With the consolidation of law and chancery procedure, the term decree, formerly used in equity, became obsolete.”).


text:
    Precious FEACHER, Appellant, v. TOTAL EMPLOYEE LEASING/GUARANTEE INSURANCE COMPANY, Appellees.
    No. 1D10-4130.
    District Court of Appeal of Florida, First District.
    May 23, 2011.
    Jeremiah J. Talbott, Pensacola, and Stephen R. Hogan of the Law Office of Stephen R. Hogan, P.A., Pensacola, for Appellant.
    Cindy R. Galen of Eraclides, Johns, Hall, Gelman, Johannessen & Goodman, L.L.P., Sarasota, and Barbara J. Glas, Pensacola, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying temporary total disability (TTD) benefits, denying temporary partial disability (TPD) benefits from the date of accident until her visit with an independent medical examiner (IME), and awarding TPD benefits from the IME visit through the date of the final hearing. For the reasons below, we reverse and remand.

The sole medical evidence of work restrictions is from Claimant’s IME, who testified Claimant “should remain tempo-rar[il]y totally disabled and off work,” based on the closed head injury [and] also based on her neck and back injuries,” “from the date of accident through the date, at least until the date [he] saw [Claimant],” and “continuing] until she actually receives medical care.” The JCC’s justification for denying TPD benefits for the period preceding the IME visit was his finding that there was no medical evidence of work restrictions for that period.

This finding was apparently based, at least in part, on the JCC’s rejection of Claimant’s testimony that she was informed by the emergency room doctor she saw on the date of accident that she could not return to work. The JCC rejected this testimony in part because the emergency room records contained no work restrictions, and in part because the JCC found Claimant’s ability to accurately relate her medical history was, at times, poor. Another factor that apparently played a role in the JCC’s finding was the fact that the IME did not review the emergency room records and his agreement with the emergency room doctor that she should not have returned to work at the time. Because the JCC found that testimony was not credible and, apparently under the impression that Claimant’s testimony was the only evidence of disability from the date of accident until her visit with the IME, the JCC also found that there was no evidence of disability at all for that time period. Although it was the JCC’s prerogative to reject all or part of Claimant’s testimony, the JCC apparently either overlooked the IME’s above-quoted testimony, or erroneously concluded that, as a matter of law, a doctor cannot impose work restrictions retroactively. Although the IME testified that he agreed with what Claimant told him were the emergency room doctor’s instructions not to return to work, instructions the JCC determined were never actually given, the IME also expressly testified that it was his opinion that, given the nature of her injuries, Claimant was in a TTD status from the date of accident forward. See § 90.702, Fla. Stat. (2010) (allowing experts to offer opinion on matters in dispute); cf. Charles v. Suwannee Swifty, 622 So.2d 114 (Fla. 1st DCA 1993) (acknowledging possibility of “retrospective [medical] testimony that claimant could have worked during” the period for which TTD benefits were sought). Ultimately, however, the TPD issue may be moot given the following TTD issue.

The JCC’s justification for denying TTD benefits was his finding that Claimant’s headaches had resolved by the time of the final hearing. Although Claimant did testify her headaches had resolved, the JCC’s ruling ignores that the IME’s restrictions were “also based on her neck and back injuries.” The JCC apparently concluded, from testimony of the IME that he did not “recommend” Claimant take a job involving heavy lifting, that Claimant in fact was capable of sedentary work but for her head injury. Such an interpretation discounts the context of that testimony, which concerned Claimant’s desire to work, rather than her abilities: Claimant “seemed very sincere in the desire to continue to work, although she states that it would [be] along the lines of a sit-down type job; she did not feel that she was capable of doing stressful heavy lifting type work nor did I recommend that.”

For these reasons, the JCC erred in rejecting the IME’s unrefuted medical testimony that Claimant should remain off-work from the date of accident until she receives medical care. See Vadala v. Polk County Sch. Bd., 822 So.2d 582, 584 (Fla. 1st DCA 2002) (holding that JCC may reject unrefuted medical testimony but must give a legally valid reason). It follows that this case should be REVERSED and REMANDED for further proceedings consistent with this opinion.

WOLF, THOMAS, and CLARK, JJ., concur.


text:
    Ray Jose WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4154.
    District Court of Appeal of Florida, First District.
    May 23, 2011.

      Nancy A. Daniels, Public Defender; and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant pled no contest to a charge of possession of a firearm and ammunition by a convicted felon. Prior to his plea, the appellant had unsuccessfully moved to suppress the shotgun and shotgun shells that were seized by deputies from the bedroom of the appellant’s home. As the shotgun and shells were the only evidence of the crime, a ruling favorable to the appellant at trial would have required the dismissal of the charges. On appeal, the state concedes, rightfully, that exigent circumstances did not exist to search the appellant’s bedroom without a warrant.

REVERSED and REMANDED with instructions to discharge the appellant.

WEBSTER, VAN NORTWICK, and ROBERTS, JJ., concur.


text:
    Kenneth Paul BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0357.
    District Court of Appeal of Florida, First District.
    May 23, 2011.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Kenneth Paul Brown (“Appellant”) appeals the denial of his motion filed under Florida Rule of Criminal Procedure 3.800(b)(2) to correct asserted sentencing errors. He raises no challenge to his conviction for sale or delivery of cocaine.

On July 16, 2010, Appellant filed a 3.800(b)(2) motion asserting that the trial court erred in imposing a Habitual Felony Offender (“HFO”) sentence because it failed to order a presentence investigation report and because the state failed to prove up the requisite prior felonies. See §§ 775.084(1)(a)2.b., (3), Fla. Stat. (2009). Rule 3.800 requires a trial court to dispose of such a motion within 60 days from the date the motion is filed. See Fla. R.Crim. P. 3.800(b)(2)(B). Failure to rule on the motion within 60 days operates as a denial, and any order the trial court enters thereafter is a nullity. See, e.g., Dupree v. State, 20 So.3d 989 (Fla. 1st DCA 2009); Calidonio v. State, 951 So.2d 87 (Fla. 1st DCA 2007); Mills v. State, 949 So.2d 1186 (Fla. 1st DCA 2007). Although the trial court in this case resentenced Appellant, granting the relief sought, it did not do so until November 18, 2010, well outside the 60-day time period prescribed by Rule 3.800(b). Because the court effectively denied the motion in error, as the state properly concedes, we reverse Appellant’s HFO sentence and remand for resentencing.

REVERSED and REMANDED.

BENTON, C.J., CLARK, and MARSTILLER, JJ., concur.


author: PER CURIAM.' WETHERELL, J.,

text:
    CLAY COUNTY BOARD OF COUNTY COMMISSIONERS/SCIBAL ASSOCIATES, Appellants, v. Richard A. BRAMLITT, Appellee.
    No. 1D10-3888.
    District Court of Appeal of Florida, First District.
    May 23, 2011.
    Richard M. Stoudemire of Saalfield, Shad, Jay, Stokes, and Inclan, P.A., Jacksonville, for Appellants.
    Kelli Biferie Hastings of Bichler & Kelley, P.A., Maitland, and John J. Schickel, Jacksonville, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.'

We deny the Employer/Carrier’s motion for rehearing, but on our own motion, we withdraw our prior opinion and substitute the following in its place.

The Employer/Carrier (E/C) raises two issues in this workers’ compensation appeal, contending the Judge of Compensation Claims erred (1) in concluding that Claimant’s hypertension is compensable, and (2) in ordering the E/C to reimburse Claimant for out-of-pocket medical expenses. We affirm as to the first issue without further comment.

We reverse as to the second issue because Claimant did not file a petition for benefits seeking reimbursement for out-of-pocket medical expenses, and the Judge of Compensation Claims’ finding that the E/C stipulated to determination of the issue is not supported by competent substantial evidence. Due process bars a ruling on matters not at issue because the parties are entitled to notice in order to fairly present their case. See Specialty Risk Servs. v. Fleming, 875 So.2d 742 (Fla. 1st DCA 2004); Commercial Carrier Corp. v. LaPointe, 723 So.2d 912, 915 (Fla. 1st DCA 1999); Lakeside Baptist Church v. Jones, 714 So.2d 1188, 1190 (Fla. 1st DCA 1998).

AFFIRMED in part; REVERSED in part.

BENTON, C.J., and PADOVANO, J., concur; WETHERELL, J., concurs specially with opinion.

WETHERELL, J.,

specially concurring.

I agree with the disposition of this case. I write separately because, in my view, the first issue is premised on the erroneous assumption that the JCC found Claimant’s hypertension compensable.

The final order finds Claimant’s “heart condition” compensable, but it includes no findings regarding Claimant’s hypertension. It is clear from the record that the parties separately litigated the compensa-bility of Claimant’s heart condition (coronary artery disease, unstable angina, and heart lesion) and his hypertension. It is also clear from the record that the JCC understood that Claimant’s heart condition and his hypertension were different, both medically and for purposes of compensability. Nevertheless, the compensability of Claimant’s hypertension is not addressed in the final order.

Arguably, Claimant’s failure to secure a ruling from the JCC on the compensability of his hypertension constitutes a denial of that benefit because it was ripe, due, and owing' at the time of the final hearing. However, this argument was not made by the E/C and, in any event, it appears that the E/C may be responsible for the treatment of Claimant’s hypertension under the hindrance-to-recovery theory because the record contains medical testimony that the failure to treat the hypertension will hinder the treatment and recovery of Claimant’s heart condition, which the E/C now concedes is compensable. Thus, as a practical matter, it likely makes little difference whether we affirm or reverse the first issue. However, because this issue, as re-framed by the E/C in its reply brief, does not present a basis for reversal, I agree that the issue should be affirmed.

       The initial brief framed the first issue as whether "[t]he JCC erred in determining that Claimant's heart condition and hypertension were compensable under § 112.18, Fla. Stat.” (emphasis added). On this issue, the E/C argued that the JCC erred in determining that the presumption applied to Claimant’s hypertension; that the E/C rebutted the presumption that Claimant’s hypertension was work-related; and that the JCC applied the wrong standard of proof and misconstrued this court’s decision in Punsky v. Clay County Sheriff’s Office, 18 So.3d 577 (Fla. 1st DCA 2009), in determining that the E/C failed to rebut the presumption as to both the hypertension and heart condition. The reply brief clarified that "it is only the application of the [section 112.18] presumption to Claimant's hypertension that is at issue in the present appeal.” The E/C argues in its motion for rehearing that the panel misconstrued this "inarticulately phrased” statement because ”[i]n making the statement that the presumption issue only applied to the claimant’s hypertension, the [E/C] did not state that they were abandoning the issue of whether they had successfully rebutted the presumption as to the hypertension and the heart condition.” However, this argument overlooks the fact that, in addition to this statement, the reply brief also specifically re-framed the first issue as whether ”[t]he JCC erred in determining that Claimant’s hypertension was compensable under § 112.18, Fla. Stat.” (emphasis added). Accordingly, notwithstanding the explanation of the statement offered by the E/C in its motion for rehearing, I do not see how the reply brief can be interpreted as anything other than a concession that Claimant’s heart condition is compensable. (I note that the E/C’s briefs were not filed by counsel listed in this opinion.)


text:
    Olivia CALLOWAY, Mother, Appellant, v. Benjamin SHIRLEY, Father, Appellee.
    No. 1D10-6174.
    District Court of Appeal of Florida, First District.
    May 23, 2011.
    Bradley G. Johnson of Johnson & Green, P.A., Milton, for Appellant.
    Michael Gibson of Gibson & Jarvis, P.A., Pace, for Appellee.
   PER CURIAM.

The sole issue in this appeal concerns whether, after ruling that Appellee is the biological father of the child born out of wedlock on March 31, 2004, to Appellant, the trial court erred in changing the child’s legal surname at Appellee’s request. We conclude the record lacks competent, substantial evidence establishing the name change is in the child’s best interests. See Hutcheson v. Taylor, 43 So.3d 921, 922-23 (Fla. 1st DCA 2010); Bardin v. State, Dep’t of Revenue, 720 So.2d 609, 612-13 (Fla. 1st DCA 1998), and cases cited therein; Collinsworth v. O’Connell, 508 So.2d 744, 746-47 (Fla. 1st DCA 1987). Accordingly, we vacate that portion of the Final Judgment on Father’s Amended Complaint for Paternity rendered October 19, 2010, changing the child’s last name, and remand with directions to enter an order returning the child’s name to that listed on her birth certificate.

VACATED in part and REMANDED with directions.

BENTON, C.J., CLARK, and MARSTILLER, JJ., concur.


text:
    B.P. Mother of B.S., X.S. and J.S., minor children, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D11-2165.
    District Court of Appeal of Florida, First District.
    May 24, 2011.
    Robert Keep, Assistant Regional Conflict Counsel, Jacksonville, for Appellant.
    Ward L. Metzger, Appellate Counsel, Children’s Legal Services, Jacksonville, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of April 27, 2011, the Court has determined that the notice of appeal, filed on April 21, 2011, failed to timely invoke the Court’s jurisdiction. Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby dismissed. Any remedy the appellant may have lies with the lower tribunal. See In the Interest of E.H., 609 So.2d 1289 (Fla.1992).

DAVIS, LEWIS, and WETHERELL, JJ., concur.


author: CORTIÑAS, J.

text:
    UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, v. Armando COLOSIMO and Patty Colosimo, Appellee.
    No. 3D11-180.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.

      DeMahy, Labrador, Drake, Payne & Cabeza and Michael T. Tomlin, Coral Gables, for appellant.
    Alonso & Perez and Rafael Alonso, Coral Gables, and William C. Brown, for ap-pellee.
    Before RAMIREZ, C.J., and WELLS and CORTIÑAS, JJ.
   CORTIÑAS, J.

On November 26, 2009, Armando and Patty Colosimo (the “Insureds”) suffered water damage to their kitchen. On or about December 1, 2009, the Insureds reported their claim to Universal Property and Casualty Insurance Company (“Uni-vei'sal”), with whom they maintained a homeowners insurance policy (the “Policy”). Universal sent a letter to the Insureds in January 2010 advising them that the claim was not covered under the Policy. However, on February 8, 2010, Universal advised that the claim would be covered. Despite having already received a sworn proof of loss from the Insureds, Universal forwarded a new proof of loss form to them for execution and notarization. In response, on March 12, 2010, the Insureds sent Universal a copy of their previously filed proof of loss along with a request to commence the appraisal process pursuant to the terms of the Policy. Shortly thereafter, the Insureds formally invoked the appraisal process, selected their appraiser, and Universal, in turn, selected their own. In the months that followed, disputes arose between the parties’ respective appraisers and there was a failure to select a neutral umpire as set forth in the Policy.

In July 2010, the Insureds filed suit against Universal for breach of contract and breach of implied covenant of good faith and fair dealing. Universal filed its answer and affirmative defenses, and, in late September 2010, filed a motion for the appointment of a neutral umpire and concurrent motion for stay (the “Motion”). Following a hearing, the trial court denied the Motion based upon Universal’s failure to comply with section 627.7015, Florida Statutes (2009). We affirm.

Section 627.7015 sets forth an alternative mediation procedure for resolution of disputed property insurance claims and highlights the “particular need for an informal, nonthreatening forum for helping parties ... because most homeowner’s ... residential insurance policies obligate insureds to participate in a potentially expensive and time-consuming adversarial appraisal process prior to litigation.” § 627.7015(1), Fla. Stat. (2009). The statute specifically provides that “[a]t the time a first-party claim within the scope of this section is filed, the insurer shall notify all first-party claimants of their right to participate in the mediation program under this section.” § 627.7015(2), Fla. Stat. (2009). However,

[i]f the insurer fails to comply with subsection (2) by failing to notify a first-party claimant of its right to participate in the mediation program under this section or if the insurer requests the mediation, and the mediation results are rejected by either party, the insured shall not be required to submit to or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action for breach of contract against the insurer for its failure to pay the policyholder’s claims covered by the policy.

§ 627.7015(7), Fla. Stat. (2009) (emphasis added). The statutory requirements are further clarified in rule 69J-166.031 of the Florida Administrative Code, which “implements Section 627.7015, F.S.[,]” and specifies that:

1. Within five days of the insured filing a first-party claim which falls within the scope of this rule, the insurer shall notify the insured of their right to participate in this program.
2. Notification shall be in writing and shall be legible, conspicuous, printed in at least 12-point type, and printed in typeface no smaller than any other text contained in the notice. The first paragraph of the notice shall contain the following statement: “The Chief Financial Officer for the State of Florida has adopted a rule to facilitate the fair and timely handling of residential property insurance claims. The rule gives you the right to attend a mediation conference with your insurer in order to settle any claim you have with your insurer. An independent mediator, who has no connection with your insurer, will be in charge of the mediation.... ”
3. The notice shall also:
a. Include detailed instructions on how the insured is to request mediation, including the address, phone number, and fax number for requesting mediation through the Department;
b. State that the parties have 21 days from the date of the notice within which to settle the claim before the Department will assign a mediator;

Fla. Admin. Code R. 69J-166.031(1) & 4(a)1-3 (emphasis added). “As we on more than one occasion have explained, a statute that is clear and unambiguous on its face requires no construction and should be applied in a manner consistent with its plain meaning.” Banton v. State Farm Mut. Auto. Ins. Co., 54 So.3d 1062, 1063 (Fla. 3d DCA 2011) (quoting Turnberry Invs., Inc. v. Streatfield, 48 So.3d 180, 182 (Fla. 3d DCA 2010)). The plain language of section 627.7015, as well as that of rule 69-166.031, clearly provide that if an insurer fails to supply written notice of the right to mediate, the insured shall not be required to engage in a contractual loss appraisal process as a prerequisite to litigation. See § 627.7015, Fla. Stat. (2009); Fla. Admin. Code R. 69-166.031.

In the case before us, Universal did not send notice to the Insureds regarding the right to participate in the state mediation program as required by section 627.7015. Universal argues that because the Insureds were aware of the mediation process in a contemporaneous, but separate, claim they filed, such knowledge obviated the need for the statutory notice. Universal proffers no case law, and our independent research has yielded none, that supports this argument. To the contrary, a federal court in the Southern District of Florida has held that even where parties have participated in mediation, and thus, knowledge of the process was clearly evident, an insurer’s failure to comply with the statutory notice requirement alleviates the insured from participating in a contractual appraisal process prior to litigation. See QBE Ins. Corp. v. Dome Condo. Ass’n, 577 F.Supp.2d. 1256, 1258 (S.D.Fla.2008). More specifically, in QBE,

There [was] no question that the [insurer] did not notify [the insured] of its right to participate in the mediation program. However, as noted above, the parties did utilize the mediation program. Despite [the insurer’s] arguments about notice, the statute specifically states that the insurer “shall notify all first-party claimants of their right to participate in the mediation program.” Fla. Stat. § 627.7015(2). The statute squarely puts the responsibility of notification on the insurer. [The insurer] did not meet this requirement. Thus, taking all of [the insured’s] facts as true, under the statute[, the insured] has the right to bring its counterclaims without having participated in the appraisal process.

Id. at 1258 (emphasis added). We find this persuasive. Here, the Insureds provided affidavits stating that they never received the statutorily required notice from Universal. In addition, Universal, produced no evidence that it had complied with section 627.7015. Because Universal did not comply with the statutory notice requirements, we must affirm. See id.; Fla. Ins. Guar. Ass’n, Inc. v. Shadow Wood Condo. Ass’n, 26 So.3d 610, 614 (Fla. 4th DCA 2009) (holding that insured was not required to participate in a contractual loss appraisal process where the insurer’s predecessor had failed to provide written notice as required by section 627.7015(2)).

We note that Universal also argues that the Policy referenced the Insureds’ right to mediate and, because the Insureds voluntarily commenced the appraisal process, they must be bound to participate in the process through its conclusion. Again, no case law supports these arguments. First, the language in the Policy does not include all of the information required by rule 69J-166.031. See Fla. Admin. Code R. 69J-166.031. Furthermore, section 627.7015 clearly places the burden of notification upon the insurer and specifies that, absent proper notification, an insured cannot be required to participate in the appraisal process. See § 627.7015(2) & (7), Fla. Stat. (2009). Here, although the Insureds initiated the appraisal process, they were unsatisfied with the alleged lack of progress, and decided to pursue litigation instead. There is no language in the statute to indicate that an insured’s commencement or exploration of a contractual appraisal process irrevocably binds that party through the conclusion of the appraisal. Likewise, there is nothing either in the statute, or in case law, demonstrating that the commencement of the appraisal process relieves the insurer of its burden of notification. Were we to follow Universal’s theory of interpretation, we would be contravening the purpose of the statute as an insurance carrier could, by withholding notification, trap an uninformed insured into the very same potentially lengthy and costly appraisal process the statute was meant to guard against. See § 627.7015(1) (“This section sets forth a nonadversarial alternative dispute resolution procedure for a mediated claim resolution conference prompted by the need for effective, fair, and timely handling of property insurance claims.”); Fla. Admin. Code R. 69J-166.031 (“The program established under this rule is prompted by the critical need for effective, fair, and timely handling of residential property claims.”). Quite simply, because Universal did not comply with the requirements of section 627.7015 and rule 69J-166.081, “the [I]nsured[s] shall not be required to ... participate in [the] contractual loss appraisal process ... as a precondition to legal action.” See § 627.7015(7).

Accordingly, the trial court’s order denying Universal’s Motion is affirmed.

Affirmed.

      . Universal also argues that correspondence sent to the Insureds on or about March 11, 2010, as to the other claim, satisfied the statutory notice requirement. The March 11 letter was neither presented to, nor considered by, the trial court, and Universal cannot now raise this issue for the first time on appeal. We note, however, that even if the issue was properly before us, the letter was sent well beyond the five-day requirement of rule 69J-166.031. See Fla. Admin. Code R. 69J-166.031 (4)(a)(1).