author: WETHERELL, J.

text:
    Nabor MENDOZA, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4888.
    District Court of Appeal of Florida, First District.
    July 16, 2012.
    Rehearing Denied Aug. 10, 2012.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Nabor Mendoza appeals his convictions and sentences for kidnapping and two counts of sexual battery. Mendoza argues that he is entitled to a new trial because the prosecutor undermined his constitutional right to be present at trial by implying during cross-examination that Mendoza tailored his testimony after hearing the other witnesses’ testimony. For the reasons that follow, we affirm.

At trial, the victim testified that Mendoza drove up in his van to a bus stop where she was waiting and asked if she needed a ride. When she refused the offer, he pointed a gun at her and told her to get in his van. After the victim got inside the van, Mendoza ripped off her dress and forced her to give him oral sex. Mendoza also forced the victim to have vaginal sex. Later, after Mendoza made her get out of the van, the victim noticed that she was bleeding from her vagina.

A medical examination revealed vaginal tears consistent with a sexual battery. A vaginal swab confirmed the presence of sperm cells in the victim’s vagina. Mendoza’s DNA profile matched the DNA obtained from these sperm cells. The victim later positively identified Mendoza as her assailant from a photo spread.

Mendoza testified at trial that the victim approached him for a ride. After driving around for a while, she asked if he wanted to have sex with her, and they had consensual sex. This account differed from Mendoza’s pretrial statements to the police that he did not have sex with the victim. During cross-examination, the prosecutor confronted Mendoza with this inconsistency and also asked:

STATE: You’ve had the opportunity to sit through each witness’ testimony, correct?
MENDOZA: We talking about this moment?
STATE: Yes. Today.
MENDOZA: Yes, sir.
STATE: You heard what they said?
MENDOZA: Yes, sir.
STATE: And you’ve had an opportunity after hearing what they say to testify yourself?
MENDOZA: Yes, sir.
STATE: You would agree that that has given you an advantage over the other witnesses, wouldn’t you?
MENDOZA: I don’t understand what do you mean an advantage? Can you explain?
STATE: Sure.
STATE: I’ll clarify. [None] of the other witnesses have been able to hear the other witnesses testify, correct?
MENDOZA: Correct.

Defense counsel objected to this line of questioning, arguing that Mendoza had a constitutional right to be present at his own trial and that the questions amounted to an improper comment on that right. The trial court overruled the objection, finding that the questions were not unfair or improper. Following the jury’s guilty verdict, the trial court sentenced Mendoza to life in prison with a 25-year minimum mandatory on the sexual battery counts and to a concurrent term of 25 years in prison on the kidnapping count.

We have found no Florida authority, and Mendoza cites none, supporting his contention that error occurs when a prosecutor comments on the defendant’s right to attend his own trial. Mendoza analogizes such comments to prosecutorial comments on a defendant’s Fifth Amendment right against self-incrimination, which courts have held to be improper. See, e.g., State v. Hoggins, 718 So.2d 761, 769 (Fla.1998) (“If the comment is fairly susceptible of being construed by the jury as a comment on the defendant’s exercise of his or her right to remain silent, it violates the defendant’s right to silence.”).

A similar issue to that presented in this case was addressed by the United States Supreme Court in Portuondo v. Agard, 529 U.S. 61,120 S.Ct. 1119,146 L.Ed.2d 47 (2000). In Portuondo, the defendant filed a federal habeas petition in which he argued that his Fifth, Sixth, and Fourteenth Amendment rights were violated when the prosecutor suggested in closing argument that the defendant had tailored his testimony after hearing the other witnesses testify. Id. at 64, 120 S.Ct. 1119. The District Court denied the petition, but the Second Circuit reversed because the comments implied that the defendant’s presence at trial was evidence of guilt and thus penalized the defendant for exercising his constitutional rights. Agard v. Portuondo, 117 F.Sd 696, 709 (2d Cir.1997) (explaining that the comments implied that “a truthful defendant would have stayed out of the courtroom before testifying or would have testified before other evidence was presented”). The Supreme Court reversed the Second Circuit and held that the prosecutor’s comments concerned the defendant’s credibility as a witness and thus were constitutionally permissible. Agard, 529 U.S. at 69-73,120 S.Ct. 1119.

The Supreme Court reasoned that when a defendant takes the stand, he assumes the role of a witness and places his credibility at issue as other witnesses do and that allowing the prosecutor to argue the defendant’s credibility to the jury was an appropriate means of counteracting any tailoring of the defendant’s testimony. Id. at 70, 120 S.Ct. 1119. The Court specifically rejected the contention that comments of tailoring were analogous to comments concerning the Fifth Amendment right to remain silent. Id. at 74-75, 120 S.Ct. 1119. The Court noted that the Fifth Amendment, through the Miranda warnings, contained an implicit “assurance that silence will carry no penalty.” Id. at 74, 120 S.Ct. 1119. In contrast, there was no similar promise of impunity in Sixth Amendment jurisprudence concerning a defendant’s right to be present at trial. Id. at 75,120 S.Ct. 1119.

The Portuondo majority noted that the Circuit Court’s decision distinguished between comments made in closing argument and accusations of tailoring made during cross-examination of the defendant, with the Circuit Court finding the latter permissible and the former not. Id. at 72-73, 120 S.Ct. 1119 (citing Agard, 117 F.3d at 708). The majority, however, rejected the notion that “the distinction between cross-examination and summation is critical” in determining the validity of attacks on a defendant’s credibility. Id. Accordingly, because the Supreme Court deemed tailoring comments during closing argument to be proper, it implicitly deemed such comments made during cross-examination to be proper as well. Indeed, Justice Ginsburg, in her dissent, acknowledged that it was permissible for prosecutors to make accusations of tailoring during cross-examination as this would serve the truth-seeking function of a trial and cross-examination was the primary means of contesting the credibility of any witness. Id. at 79, 87, 120 S.Ct. 1119 (Ginsburg, J., dissenting).

The weight of authority both before and after Porbuondo favors permitting the prosecutor to question a defendant on cross-examination about possible tailoring of his testimony due to his presence during the testimony of other witnesses. The general rationale for allowing such questions is that when a defendant chooses to take the stand and testify on his own behalf, he is subject to impeachment and credibility attacks on cross-examination, the same as any other witness. Additionally, unlike closing argument, the defendant is afforded the opportunity to respond to cross-examination attacks during re-direct examination, and, during cross-examination, the jury has the opportunity to assess the defendant’s credibility and the accuracy and reasonableness of his testimony.

We agree with this rationale and hold that a prosecutor may question a defendant on cross-examination about the possibility of tailoring his testimony based on his presence in the courtroom during the testimony of other witnesses. Such questions are designed to challenge the credibility of the defendant as a witness, which is a proper purpose of cross-examination. See Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982) (recognizing that a proper purpose of cross-examination is “to weaken, test, or demonstrate the impossibility of the testimony of the witness on direct examination”).

Accordingly, the trial court did not err in overruling the objection to the prosecutor’s questions on cross-examination of Mendoza. Moreover, even if the ruling in this case was erroneous, the error was harmless beyond a reasonable doubt. The line of questions quoted above comprised less than two of the 280 pages of the trial transcript, and there was considerable DNA evidence and other testimony presented against Mendoza. Furthermore, the jury could see that Mendoza had been present for the entire trial and could use its own judgment in weighing his testimony. Consequently, there is no reasonable possibility that the cross-examination questions affected the jury’s verdict. See Ventura v. State, 29 So.3d 1086 (Fla.2010) (explaining that the harmless error test asked whether error contributed to jury’s verdict).

For these reasons, we affirm Mendoza’s convictions and sentences.

AFFIRMED.

THOMAS and MARSTILLER, JJ., concur.

      . We commend Mendoza’s appellate counsel for bringing this case to our attention in his reply brief even though the State had not cited the case in its answer brief. See Boca Burger, Inc. v. Forum, 912 So.2d 561, 573 (Fla.2005) (“The heart of all legal ethics is in the lawyer's duty of candor to a tribunal .... [ejvery lawyer must spontaneously disclose contrary authority to a tribunal.”).

      . See e.g., State v. Walker, 972 S.W.2d 623 (Mo.App.1998) (holding that not plain error for prosecutor to question defendant about his presence in courtroom during testimony of other witnesses); Davis v. State, 221 Ga.App. 131, 470 S.E.2d 520 (1996) (holding that trial court properly overruled defendant’s objection to prosecutor's questions on cross-examination concerning the fact that he was present throughout trial and was the only witness who heard all other testimony); State v. Hoxsie, 101 N.M. 7, 677 P.2d 620 (1984) (determining that state had right to inquire on cross-examination whether defendant’s testimony had been tailored to the testimony of other witnesses because related to credibility of defendant as witness), overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 779 P.2d 99 (1989). But see People v. Paul, 229 A.D.2d 932, 645 N.Y.S.2d 682 (N.Y.App.Div.1996) (calling attention to the impropriety of the prosecutor in suggesting that defendant fabricated his testimony after having advantage of hearing proof against him).

      . See e.g., State v. Martin, 171 Wash.2d 521, 252 P.3d 872 (2011) (agreeing with Justice Ginsburg’s dissent that suggestions of tailoring are appropriate during cross-examination); Rosales-Martinez v. State, 810 N.W.2d 26, 2011 WL 6740152 (Iowa 2011) (stating that the prosecutor’s questioning of defendant about his presence through trial before having to testify was permissible cross-examination); Commonwealth v. Gaudette, 441 Mass. 762, 808 N.E.2d 798 (2004) (noting that prosecutor’s questions during cross-examination concerning the differences in defendant’s testimony and other witnesses' testimony was proper); Valdez v. Mazzuca, 2002 WL 1364089 (E.D.N.Y. Jun. 21, 2002) (determining no constitutional violation where prosecutor in cross-examination suggested that defendant had advantage of hearing witnesses and tailoring his testimony accordingly). But see State v. Daniels, 182 N.J. 80, 861 A.2d 808, 820 (2004) (stating that, although issue was not raised by defendant, "if there is evidence in the record that a defendant tailored his testimony, the prosecutor may cross-examine the defendant based on that evidence. However, at no time during cross-examination may the prosecutor reference the defendant's attendance at trial or his ability to hear the testimony of preceding witnesses.”); State v. Dobbins, 725 N.W.2d 492 (Minn.2006) (holding that state’s cross-examination questions about defendant’s presence at trial and ability to tailor testimony based on evidence presented was improper where state failed to present any evidence of "actual tailoring”).


source: Caselaw Access Project

author: CIKLIN, J.

license: Public Domain

text:
    Nyro Gustavis FREDERICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3762.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Antony P. Ryan, Regional Counsel, and Jennifer Workman Jesness, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Nyro Gustavis Frederick appeals his convictions and sentences for two counts of attempted first-degree murder with a firearm, one count of shooting into a building, and one count of shooting into an occupied vehicle. Frederick raises two points on appeal. We affirm on both points and write only to discuss Frederick’s assertion that the trial court committed fundamental error by instructing the jury on the doctrine of transferred intent with respect to the crime of attempted first-degree murder.

At approximately 7:30 p.m. on December 3, 2007, Mildred Walter, her husband David Walter, and her daughter LeShaun-ta Warthen were at their home in Riviera Beach. Mr. Walter and Warthen sat in their respective vehicles which were parked in the driveway. Mrs. Walter was inside the house. Her son, Reshard Reed, was on the porch. Mrs. Walter’s grandson and four of Reed’s friends were all in the yard at the time.

As Mrs. Walter exited the house, she stopped on the porch and began talking with Reed. At that point in time, a white, four-door Chevrolet slammed on its brakes in front of the gate to the house. Frederick exited from the front passenger side of the vehicle and began shooting toward the porch where Mrs. Walter and Reed were conversing.

Mrs. Walter was hit by a bullet in her lower right leg and fell to the ground. Warthen, seeing her mother fall, jumped out of her car and covered her mother with her own body to protect her. There was a lull in the shooting, and then the driver of the Chevrolet exited the vehicle and began shooting an assault rifle at Mr. Walter’s vehicle. At some point, some people in the Walters’ yard returned fire. The two assailants returned to their vehicle and left. Mrs. Walter was taken to the hospital for treatment of the gunshot wound that she suffered.

Based on the aforementioned events, the state charged Frederick with attempted first-degree murder with a firearm based on his act of shooting Mrs. Walter (count I), attempted first-degree murder with a firearm based on his co-felon’s shooting at Mr. Walter (count II), shooting into a building (count III), and shooting into an occupied vehicle (count IV).

At trial, the state requested the following instruction on transferred intent be included when instructing the jury on the charge for the attempted murder of Mrs. Walter:

If a person aims or shoots a firearm at another person but instead hits a different person, the law transfers the intent to shoot from the person who was the intended target to the person who was actually hit.

Defense counsel did not object to the inclusion of this instruction. The jury found Frederick guilty as charged on all four counts.

Frederick now contends that the trial court committed fundamental error by instructing the jury on the doctrine of transferred intent with respect to the crime of attempted first-degree murder. We disagree.

“Jury instructions are subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on appeal only if fundamental error occurred.” State v. Weaver, 957 So.2d 586, 588 (Fla.2007) (citation and quotation marks omitted). For an error to be fundamental, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. (citation and quotation marks omitted).

Frederick relies on Bell v. State, 768 So.2d 22 (Fla. 1st DCA 2000), to support his contention that instructing the jury on transferred intent for an attempted first-degree murder charge is contrary to Florida law. In Bell, the First District analyzed dicta from State v. Brady, 745 So.2d 954 (Fla.1999), where the Florida Supreme Court explained:

[Transferred intent is inapplicable where no death results and the defendant is charged with attempted murder of the intended victim, because the defendant committed a completed crime at the time he shot at the intended victim regardless of whether any injury resulted to the unintended victim.

Id. at 956 n. 2 (emphasis added). The First District then concluded that it shared the views of the Florida Supreme Court as well as those of the Fifth District, and held that “if the issue is whether the defendant attempted to murder multiple victims, then such specific intent is not subject to transfer but rather such intent should be independently evaluated as to each victim.” Bell, 768 So.2d at 28 (quoting Brady v. State, 700 So.2d 471, 473 (Fla. 5th DCA 1997)).

Frederick’s reliance on Bell is misplaced because, in Bell, the defendant was charged with the attempted first-degree murder of both the intended and unintended victims. Contrarily, Frederick was only charged with the attempted first-degree murder of a single victim based on his shooting of Mrs. Walter. Thus, the issue before the jury was not whether Frederick attempted to murder multiple victims. See id.

In summary, Frederick would be guilty of attempted first-degree murder with a firearm as charged in count I of the information regardless of whether his premeditated intent was to murder Mrs. Walter or to murder Reed. See § 782.04(l)(a)l., Fla. Stat. (2007) (defining first-degree murder as the unlawful killing of a human being with the “premeditated design to effect the death of the person killed or any human being ” (emphasis added)). Therefore, we conclude that no fundamental error occurred as a result of the trial court instructing the jury on the doctrine of transferred intent with respect to the crime of attempted first-degree murder as charged in count I of the information. As such, we affirm Frederick’s convictions and sentences.

Affirmed.

TAYLOR and DAMOORGIAN, JJ., concur.


author: MAY, C.J.

text:
    Telly KAVANTZAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4644.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals his conviction and sentence for burglary of a dwelling, resisting an officer without violence, and criminal mischief causing less than $200 in damages. He argues the trial court erred in: (1) refusing to conduct an evidentiary hearing on his motion in limine to suppress his statement and (2) sustaining the State’s objection to testimony concerning the foreclosure status of the burglarized home. We find no error and affirm.

Law enforcement caught the defendant in the attic of the victim’s home when they responded to the victim’s 911 call. When an officer asked the defendant what he was doing in the house, the defendant responded, “I’m just trying to make a living, come on, guys.”

Just prior to trial, the defendant filed a motion in limine to suppress the statement he made in the victim’s attic. Defense counsel indicated that the statement had just been discovered during a recent deposition. Defense counsel had not received the transcript before he announced ready for trial. The trial court deferred ruling on the motion in limine because defense counsel failed to file a motion to suppress before trial. The court indicated it would address the issue later.

When the issue came up at trial, the court ruled on the merits of the motion. It found the defendant was not under arrest at the time the statement was made, and that the statement was voluntary. In short, the statement was not the product of a custodial interrogation.

“A trial judge’s ruling on a motion to suppress is clothed with a presumption of correctness, and the ruling should not be disturbed on appeal absent an abuse of discretion.” Lock v. State, 799 So.2d 384, 385 (Fla. 4th DCA 2001) (citation omitted).

Florida Rule of Criminal Procedure 3.190(h) governs the procedure for filing a motion to suppress and provides, in relevant part:

(h) Motion to Suppress a Confession or Admission Illegally Obtained.
(3) Time for Filing. The motion to suppress shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial.
(4) Hearing. The court shall receive evidence on any issue of fact necessary to be decided to rule on the motion.

Fla. R.Crim. P. 3.190(h)(3)-(4) (emphasis added).

“In exercising the discretionary authority to entertain a motion to suppress during trial, ‘the judge must balance the rights of the defendant to due process and effective assistance of counsel with the rights of the state to ... appeal an adverse ruling on a motion to suppress.’ ” State v. Gaines, 770 So.2d 1221, 1227 (Fla.2000) (quoting Savoie v. State, 422 So.2d 308, 312 (Fla.1982)). Our supreme court has explained:

[T]he general requirement that a motion to suppress be made before trial is “designed to promote the orderly process of trial by avoiding the problems and delay caused when the trial judge must interrupt trial, remove the jury from the courtroom, and hear argument on a motion to suppress that could have been disposed of before trial.” Further, when the ruling is issued before trial, the State is given the opportunity to appeal the ruling of a trial judge in the event the evidence is suppressed.

Id. (quoting Savoie, 422 So.2d at 311).

Here, the defendant filed a motion in limine to suppress his statement just prior to trial. The trial court denied the motion, and declined to hear the matter in a separate evidentiary hearing during the trial. Instead, the trial court alternatively ruled on a defense objection when the State attempted to introduce the statement. We find no abuse of discretion in the trial court’s handling of the issue. See Smith v. State, 695 So.2d 864, 865-66 (Fla. 4th DCA 1997) (finding no abuse of discretion in the trial court entertaining an objection at trial on the voluntariness of a statement).

In this case, there was no need for additional testimony to rule on the objection. The trial court found the defendant was not in custody, and the statement was not made during an interrogation. Instead, the remark was a spontaneous statement made by the defendant as law enforcement discovered him hiding in the victim’s attic. Rule 3.190(h) specifically provides the trial court with the option of ruling on an objection when no motion to suppress is filed prior to trial.

We also find no abuse of discretion in the trial court’s exclusion of evidence concerning the foreclosure status of the home. The victim had a possessory interest in the home as a tenant that was not affected by a foreclosure having been filed against the home’s owner. The trial court properly found the evidence irrelevant.

Affirmed.

TAYLOR and CIKLIN, JJ., concur.


author: EMAS, J.

text:
    D’Andre ROLACK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2062.
    District Court of Appeal of Florida, Third District.
    July 18, 2012.

      Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before ROTHENBERG, SALTER and EMAS, JJ.
   EMAS, J.

Appellant, D’Andre Rolack, appeals the trial court’s summary denial of his motion for post-conviction relief. We affirm in part and reverse in part.

Rolack’s motion was based upon affidavits from two witnesses: Joy Battle and Johnny Darling. Rolack asserted in his motion that both affidavits constituted newly-discovered evidence and that the nature of this evidence was such that it would probably produce an acquittal at a new trial. The trial court denied the motion without an evidentiary hearing.

We hold the trial court correctly determined the affidavit and proffered testimony of Joy Battle was not “newly-discovered,” as Joy Battle and her testimony were concededly known to the defense at the time of trial, but she was not called to testify. To qualify as newly-discovered, the evidence “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.” Jones v. State, 709 So.2d 512, 521 (Fla.1998).

With regard to the recanted testimony of Johnny Darling and his proffered testimony at a new trial, the trial court determined that, even though it was newly-discovered, it did not meet the second prong of Jones, which requires a defendant to establish that the evidence is “of such a nature that it would probably produce an acquittal upon retrial.” Id. In reaching such a conclusion, a trial court is required to “consider all newly discovered evidence which would be admissible” at trial and then evaluate the “weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Id.

Although an evidentiary hearing is not automatically required before making this determination, see e.g., Poff v. State, 41 So.3d 1062 (Fla. 3d DCA 2010); Andrews v. State, 919 So.2d 552 (Fla. 4th DCA 2005); Williams v. State, 876 So.2d 1234 (Fla. 4th DCA 2004), an evidentiary hearing is the general rule rather than the exception. This is especially true in the case of recanted testimony, because the trial court is obligated to assess the weight and credibility of the witness’ new testimony. McLin v. State, 827 So.2d 948, 955 (Fla.2002). An order which summarily denies a motion for postconviction relief must demonstrate that the court conducted the requisite evaluation, including attaching those portions of the record which conclusively demonstrate the defendant is entitled to no relief. Id. at 955-56; Fla. R.Crim. P. 3.850(d) (providing “[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion shall be denied without a hearing”); Fla. R.App. P. 9.141(b)(2)(D) (providing “[o]n appeal from the [summary] denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief’).

The order summarily denying relief failed to meet this requirement; it indicated, without evaluation and without record attachments, that Darling’s recanted testimony was inconsistent with the other testimony and other evidence adduced at trial. The trial court then concluded Rolack had failed to establish the evidence is of such a nature that it would probably produce an acquittal at a new trial.

Because the order fails to conclusively demonstrate the appellant is entitled to no relief, we reverse that portion of the order which denied Rolack’s motion for postcon-viction relief predicated upon the recanted testimony of Johnny Darling. On remand, the trial court shall either enter a new order which includes those portions of the record conclusively establishing Rolack is entitled to no relief, or hold an evidentiary hearing on the portion of Rolack’s claim which was predicated upon the recanted testimony of Johnny Darling.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

      . The affidavit of Johnny Darling consisted of a recantation of his trial testimony in which he testified as a State witness.

      . Recanted testimony is a discrete form of newly-discovered evidence and postconviction relief predicated upon recanted testimony is subject to a different and more stringent test than other newly-discovered evidence. A defendant is entitled to a new trial based upon recanted testimony only if (1) the trial court is satisfied that the recantation is true; and (2) the witness’ testimony will change to such an extent as to render probable a different verdict. Armstrong v. State, 642 So.2d 730, 735 (Fla.1994). This more rigorous standard reflects the fact that “recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury.” Id. (quoting Henderson v. State, 135 Fla. 548, 185 So. 625, 630 (1938)). However, this standard is applied only in the ultimate determination of whether a defendant is entitled to a new trial. It does not affect the initial determination of whether a defendant is entitled to an eviden-tiary hearing on a postconviction claim. That standard, as set forth in Florida Rule of Criminal Procedure 3.850(d), is the same regardless of the nature of the newly-discovered evidence.


author: WHATLEY, Judge.

text:
    Anastasios ZERVAS and Dina Zervas, Appellants, v. WELLS FARGO BANK, N.A., as trustee for the MLMI Trust Series 2005-FM1, Appellee.
    No. 2D11-750.
    District Court of Appeal of Florida, Second District.
    July 18, 2012.
    Daniel K. Sehaffner, Clearwater, for Appellants.

      Roy A. Diaz and Diana B. Matson of Smith, Hiatt & Diaz, P.A., Fort Lauder-dale, for Appellee.
   WHATLEY, Judge.

Anastasios and Dina Zervas appeal a final judgment of foreclosure entered in favor of Wells Fargo Bank, N.A., as trustee for the MLMI Trust Series 2005-FM1. We reverse because Wells Fargo did not establish that no answer which the Zervas-es might file could present a genuine issue of fact.

On October 6, 2009, Wells Fargo filed a mortgage foreclosure complaint against the Zervases when they stopped making their monthly mortgage payments in June 2009. Seeking additional time to obtain a mortgage loan modification, on November 9, 2009, the Zervases filed a motion to stay time for filing an answer to the complaint. Thereafter, on December 21, 2009, Wells Fargo filed a motion for final summary judgment and attorney’s fees. On June 24, 2010, the trial court granted the motion to stay and gave the Zervases ten days to file an answer to the complaint. The Zer-vases instead filed a motion to dismiss on July 1, 2010.

About one month later, on August 2, 2010, the trial court held a hearing on Wells Fargo’s motion for final summary judgment and on that same day entered an order granting the motion. There is no order in the record addressing the Zervas-es’ motion to dismiss. On August 12, 2010, the Zervases filed a motion to set aside judgment and notice of filing proposed answer and affirmative defenses. The, Zer-vases alleged several affirmative defenses, including the allegation- that Wells' Fargo failed to satisfy the condition precedent in paragraph twenty-two of the mortgage, which specifically required Wells Fargo to provide the Zervases with notice of the alleged default and a reasonable opportunity to cure.

We conclude that this case was not at issue when summary judgment was entered. The Zervases had not filed an answer and a default had not been entered against them. “[I]f ‘a plaintiff moves for summary judgment before the defendant has filed an answer, “the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.” ’ ” Howell v. Ed Bebb, Inc., 35 So.3d 167, 168-69 (Fla. 2d DCA 2010) (quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 937-38 (Fla. 2d DCA 2010)); see Goncharuk v. HSBC Mortg. Servs., Inc., 62 So.3d 680, 682 (Fla. 2d DCA 2011) (“The plaintiff must essentially anticipate the content of the defendant’s answer and establish that the record would have no genuine issue of material fact even if the answer were already on file.”). Wells Fargo failed to meet its burden to show that no answer which the Zervases might file could present a genuine issue of fact.

Most mortgages on the market contain an acceleration clause which is a condition precedent to filing a complaint for foreclosure. The clause in this case, like others this court has observed, is located in paragraph twenty-two of the mortgage and provides as follows:

Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure ....

Although Wells Fargo made the general allegation in its complaint that “[a]ll conditions precedent to the filing of this action have been met by Plaintiff,” there is no evidence in the record that Wells Fargo complied with paragraph twenty-two. Similar to Goncharuk, 62 So.3d at 682, Wells Fargo did not establish that the record would have no genuine issue of material fact where it did not address the notice of acceleration in the motion for summary judgment or accompanying affidavits. See also Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285 (Fla. 2d DCA 2011); Sandoro v. HSBC Bank, 55 So.3d 730, 732 (Fla. 2d DCA 2011).

We also note that the mortgage and note attached to the complaint show the lender to be Fremont Investment and Loan. On April 1, 2010, approximately six months after the complaint was filed, Wells Fargo filed a lost note affidavit, which alleged that the note was lost by its attorney sometime after the attorney received it on November 2, 2009. In their motion to dismiss, the Zervases alleged, among other grounds, that Wells Fargo did not have standing to bring the foreclosure complaint because it did not have a written assignment of the loan. Then on July 26, 2010, seven days before the hearing on the motion for summary judgment, Wells Fargo filed the note as a supplemental exhibit to its complaint. The note contains an endorsement in blank, but there is no evidence in the record establishing that the endorsement in blank was made to Wells Fargo prior to the filing of the foreclosure complaint. See Feltus v. U.S. Bank Nat’l Ass’n, 80 So.3d 375, 377 n. 2 (Fla. 2d DCA 2012) (holding that bank was required “to prove the endorsement in blank was effectuated before the lawsuit was filed”).

We reverse the final judgment of foreclosure and remand for further proceedings.

Reversed and remanded.

CASANUEVA and BLACK, JJ., Concur.


author: MORRIS, Judge.

text:
    Erik ROMERHAUS, Appellant, v. Julia ROMERHAUS, Appellee.
    No. 2D11-5123.
    District Court of Appeal of Florida, Second District.
    July 18, 2012.
    Erik Romerhaus, pro se.
    No appearance for Appellee.
   MORRIS, Judge.

Erik Romerhaus appeals the circuit court’s denial of his motion to affirm expiration of a domestic violence injunction. We affirm but write to point out that the injunction expired on its own terms on February 14, 2007. To the extent that Romerhaus claims that the notification requirements of section 741.30(8)(c)(5), Florida Statutes (2006), were not followed, our affirmance is without prejudice to any right he may have to seek mandamus relief in the circuit court. See City of Tarpon Springs v. Planes, 30 So.3d 693, 695 (Fla. 2d DCA 2010) (holding that mandamus may be employed to require a governmental entity to perform a ministerial duty that is expressly imposed by law).

Affirmed.

WHATLEY and DAVIS, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Jorge A. CERRON, Appellant, v. GMAC MORTGAGE, LLC, Appellee.
    No. 2D11-3425.
    District Court of Appeal of Florida, Second District.
    July 18, 2012.
    Jorge A. Cerrón, pro se.
    Marc James Ayers and Jose D. Vega of Bradley Arant Boult Cummings LLP, Birmingham, Alabama, for Appellee.
   NORTHCUTT, Judge.

Jorge Cerrón, pro se, appeals a final summary judgment of foreclosure on a mortgage in favor of GMAC Mortgage, LLC, the successor to the original lender. We reverse because GMAC failed to refute Cerron’s affirmative defense alleging lack of notice.

GMAC filed a complaint seeking to foreclose a mortgage given by Cerrón, and it alleged generally that all conditions precedent to acceleration had been performed or had occurred. The complaint attached a copy of the mortgage, paragraph 22 of which required the lender to give thirty days’ written notice of default prior to acceleration. Cerrón filed a pro se answer, which was not a model pleading. The answer set forth several pages of narrative in opposition to the foreclosure complaint and then alleged four affirmative defenses. The first affirmative defense asserted that GMAC failed to give timely notice of default and of the lender’s intent to accelerate as required by the mortgage, note, and Florida law. Cerron’s answer included a plea for the court to dismiss the action.

GMAC subsequently filed a motion for summary judgment and asserted, in part, that Cerron’s affirmative defenses were legally insufficient. In support of its motion, GMAC filed an affidavit setting forth the amounts due and owing and an affidavit regarding attorney’s fees and costs. It subsequently filed a notarized, recorded document recounting that the mortgage had been assigned to GMAC on a date just prior to the filing of the complaint. GMAC also filed the note that was indorsed in blank. None of GMAC’s filings specifically addressed or refuted Cerron’s affirmative defenses.

The circuit court denied Cerron’s motion to dismiss and directed him to file an amended answer, which he did. In the amended answer, Cerrón specifically alleged as his seventh affirmative defense that GMAC failed to give a notice of default and that it thus failed to comply with a contractual condition precedent. GMAC filed updated affidavits of amounts due and attorney’s fees, but it never addressed Cerron’s affirmative defenses, either by affidavit or by memorandum in support of summary judgment.

On appeal, Cerrón argues that the circuit court erred in granting summary judgment when GMAC failed to refute his affirmative defenses. Based on our de novo review of the summary judgment, we agree. See Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1117 (Fla. 2d DCA 2011) (“The standard of review on a summary judgment is de novo.”). The party moving for summary judgment must show that there are no disputed issues of material fact and that it is entitled to judgment as a matter of law. Id. at 1116-17 (citing Fla. R. Civ. P. 1.150(c)). In addition, a plaintiff moving for summary judgment must refute the nonmoving party’s affirmative defenses. Id.; see also Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So.3d 251, 253 (Fla. 2d DCA 2011).

On appeal, GMAC maintains that Cer-rón had the burden to file an affidavit stating that he never received a notice of default, at which point GMAC would have been required to refute the contention with contrary evidence. That is incorrect. A plaintiff moving for summary judgment must either conclusively refute the factual bases for the defendant’s affirmative defenses or show that the defenses are legally insufficient. Coral Wood Page, 71 So.3d at 253. As in Taylor and Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011), when Cerrón alleged GMAC’s failure to provide a contractually required notice of default, GMAC’s burden on summary judgment was to show that it had satisfied this condition precedent. It failed to do so.

Reversed and remanded.

SILBERMAN, C.J., and CRENSHAW, J., Concur.


text:
    Darius BERRIEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3293.
    District Court of Appeal of Florida, Second District.
    July 18, 2012.

      Ita M. Neymotin, Regional Counsel, Second District, and Jeffrey Sullivan, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Darius Berrien, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Darius Berrien appeals numerous convictions and sentences in nine circuit court cases. We affirm the convictions and sentences without comment, but we remand for the circuit court to correct a scrivener’s error in his written judgment in case 09-CF-6141. The written judgment lists count five as carjacking, but Berrien entered a plea on that count to the lesser-included offense of grand theft of a motor vehicle. On remand, the circuit court shall correct the judgment to reflect the proper charge of grand theft of a motor vehicle.

Affirmed; remanded.

WHATLEY and DAVIS, JJ., Concur.


author: PER CURIAM.

text:
    Santiago MENDOZA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3259.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Santiago Mendoza, Orlando, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the circuit court’s denial of the defendant’s motion for postconviction relief primarily seeking to apply retroactively State v. Montgomery, 39 So.3d 252, 257-58 (Fla.2010) (standard jury instruction on manslaughter, which required the jury to find that the defendant intended to kill the victim, constituted fundamental error). We already have held that Montgomery “does not apply retroactively to convictions which were final before our supreme court issued that decision.” Ross v. State, 82 So.3d 975, 976 (Fla. 4th DCA 2011). Our sister courts have held likewise. Harricharan v. State, 59 So.3d 1162, 1163 (Fla. 5th DCA 2011), rev. denied, 92 So.3d 213 (Fla.2012) (table); Rozzelle v. State, 29 So.3d 1141, 1142 (Fla. 1st DCA 2009), rev. denied, 92 So.3d 214 (Fla.2012) (table). Further, Montgomery does not apply substantively here because the defendant was convicted of first-degree murder, an offense two steps removed from the lesser-included offense of voluntary manslaughter. Montgomery, 39 So.3d at 259; Joseph v. State, 42 So.3d 323, 324-25 (Fla. 4th DCA 2010).

The circuit court did not address appellant’s second claim which alleged ineffective assistance of counsel. This claim is procedurally barred as untimely and successive. Fla.Crim. P. 3.850(b); Fla. R.Crim. P. 3.850(f).

Affirmed.

POLEN, DAMOORGIAN and GERBER, JJ., concur.


text:
    Otis Ray McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2623.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Ramsey, 475 So.2d 671 (Fla.1985); Zecchino v. State, 691 So.2d 1197 (Fla. 4th DCA 1997).

GROSS, HAZOURI and CONNER, JJ., concur.


text:
    Marcin Sylwester BALEWICZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2918.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Marcin Sylwester Balewicz, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010); Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).

POLEN, GERBER and CONNER, JJ., concur.


text:
    Summer ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4379.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Carey Haughwout, Public Defender, and John Conway, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

GROSS, HAZOURI and CONNER, JJ., concur.


text:
    Charles FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5276.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence. He claims prosecutorial misconduct in closing argument when the prosecutor referred to the defendant several times as having lied. The objection was not preserved, but even so, the prosecutor’s comments were not improper. See Craig v. State, 510 So.2d 857, 865 (Fla.1987) (“When counsel refers to a witness or a defendant as being a ‘liar,’ and it is understood from the context that the charge is made with reference to testimony given by the person thus characterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence.”). Not only was it a permissible inference that defendant had lied in his testimony, but it could also be inferred that he had lied to his supervisors on the evening of the incident regarding his actions, all of which was corroborated by the testimony of other witnesses.

WARNER, POLEN and DAMOORGIAN, JJ., concur.


text:
    Roderick D. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-811.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Roderick D. Edwards, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s post-conviction motion. The filing, variations of which this court has seen before, alleges that the trial court lacked jurisdiction because it operated under admiralty jurisdiction and that appellant is illegally detained under commercial law. He claims there are no courts in America and that he is not a party to the U.S. Constitution because he is a “flesh-n-blood man.” The motion and this appeal are frivolous. The clerk of this court shall forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. § 944.279(1), Fla. Stat. (2011); § 944.28(2)(a), Fla. Stat. (2011).

Appellant is cautioned that filing of such frivolous motions and appeals will result in sanctions, including a prohibition against pro se filing in this court. See State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed.

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


text:
    Lionel Yon LAING, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3518.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed and cross-appeal dismissed.

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


text:
    Francisco Javier REYES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-330.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Antony P. Ryan, Regional Counsel, Genevieve Hall and Melanie L. Casper, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant was tried and convicted of home invasion robbery and kidnapping and sentenced to life in prison. He challenges his conviction and sentence for kidnapping on the ground that the state failed to prove the elements of kidnapping, as found in Faison v. State, 426 So.2d 963, 965 (Fla.1983). Not only was this issue not preserved because the appellant failed to raise it in the trial court, it is also meritless. See Berry v. State, 668 So.2d 967, 970 (Fla.1996) (holding that the fact that the victim “freed [him]self shortly after the robbers left does not negate this finding as to [his] confinement”). Likewise, we reject his claim that the trial court erred in failing to suppress the victim’s out-of-court identification of appellant. The court properly concluded that it was not tainted by an unduly suggestive photographic lineup. See Neil v. Biggers, 409 U.S. 188,198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Affirmed.

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Marco L. McBURROWS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5279.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant, Marco McBurrows, appeals his convictions for possession of cocaine, possession of drug paraphernalia, resisting an officer without violence, and driving with a suspended license. He raises two issues on appeal. First, he argues that the trial court committed fundamental error by not declaring a mistrial after the jury twice informed the court that it was unable to reach a unanimous verdict on two of the four counts. Second, he argues that section 893.101, Florida Statutes (2002), is facially unconstitutional. We affirm on both issues.

The defendant’s criminal charges arose from a traffic stop for running a stop sign. When an officer approached him, the defendant fled on foot to a nearby field. The officer observed him throw a cigarette box on the ground as he pursued him. The defendant struggled with the officer when he tried to handcuff him. After the defendant was placed in custody, officers recovered the cigarette box. Inside the cigarette box were rock cocaine and a pipe, which tested positive for cocaine.

At the close of trial, the jury began its deliberations. Two hours into its deliberations, the jury informed the trial court that it was deadlocked on two of the four charges. The trial court gave the jury a modified Allen charge and instructed the jurors to continue with their deliberations. Shortly thereafter, the jury informed the court it was still having trouble reaching a verdict. The trial court asked the parties whether it should give the jury the Allen charge or bring the jury back the next day and give the charge. Defense counsel said that the defense would prefer to have the jurors come back the next day. Rather than give another Allen charge, the trial court sent the jury home for the evening.

The next morning, the jury immediately informed the court that it wished to have testimony read back to them. The jury returned a verdict of guilty on all counts after hearing the read-back of the requested testimony.

We reject the defendant’s argument that the trial court fundamentally erred by ordering the jury to deliberate after the jury informed the trial court twice that they were unable to reach unanimous verdicts on two of the four courts. We have previously held that it is fundamental error to give a second Allen charge after a jury informs the trial court that it is irreversibly deadlocked on an issue. Tomlinson v. State, 584 So.2d 43, 45 (Fla. 4th DCA 1991). However, in this case, only one Allen charge was given. A trial court is not required to immediately give an Allen charge in response to a jury’s declaration of deadlock. Washington v. State, 758 So.2d 1148, 1154 (Fla. 4th DCA 2000). Instead, a court may exercise its discretion by choosing to “delay the giving of the Allen charge for a short time to allow the jurors an opportunity for further discussion without intervention or direction from the court.” Id. Similarly, a trial court may exercise its discretion by choosing not to immediately declare a mistrial after a jury, having already received an Allen charge, informs the court that it is still deadlocked on an issue. As noted in Tomlinson, the trial court may not demand that the jury continue deliberating, but it may sit in silence and wait a reasonable amount of time for the Allen charge to take effect before declaring a mistrial. See Nottage v. State, 15 So.3d 46, 50 (Fla. 3d DCA 2009) (“[W]e are urged again to declare that an overnight recess alone, after an Allen charge, constitutes reversible error, a rule we decline to adopt.”).

We also reject the defendant’s argument that statutory provisions in sections 893.101(2) and (3), Florida Statutes (2002) are facially unconstitutional because they eliminate the element of mens rea. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012) (“Here, the Legislature’s decision to make the absence of knowledge of the illicit nature of the controlled substance an affirmative defense is constitutional.”).

Affirmed.

TAYLOR, HAZOURI and LEVINE, JJ., concur.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . The defendant argues that language in Rubi v. State, 952 So.2d 630, 633-34 (Fla. 4th DCA 2007), mandates a reversal in this situation. However, Rubí involved a court's issuance of two Allen charges after two declarations of deadlock, a situation that did not occur in the instant case.


author: VILLANTI, Judge.

text:
    Gregory GEORGE, Appellant, v. Tammy GEORGE, Appellee.
    No. 2D11-1388.
    District Court of Appeal of Florida, Second District.
    July 18, 2012.

      David M. Wall, Clearwater, for Appellant.
    Jeanne L. Coleman, Tampa, for Appel-lee.
   VILLANTI, Judge.

Gregory George, the former husband, appeals the trial court’s final judgment awarding the former wife, Tammy George, $89,034.57 in attorney’s fees and costs. The court ordered the former husband to pay the award at the rate of $3200 per month. The former husband claims trial court error, inter alia, in finding entitlement to fees, the amount of fees, and the manner in which payment was ordered. We affirm on all issues, except one. Because we have been unable to corroborate the trial court’s calculations regarding the former husband’s net income and resulting ability to pay the award as ordered, we reverse in part and remand for further proceedings on this issue only.

The parties, both in their forties, were married fourteen years. Them marriage produced no children. The couple’s only major marital assets were a house — which was worth less than its mortgage and was in foreclosure — and the former husband’s retirement account, which the court found that he had improperly liquidated and spent. The only other issue was whether the former wife was entitled to some type of alimony. The trial court found that, but for the former husband’s obstreperous behavior, the parties should have been able to quickly resolve all issues and obtain a final judgment of dissolution. Yet, the case spiraled out of control, languished in the trial court since 2007, and has been the subject of four interlocutory appeals all filed by the former husband. The record contains competent, substantial evidence supporting the trial court’s conclusions except on two related issues. As explained below, this warrants a limited reversal for further fact finding.

I. Trial Court’s Tax Findings

The former husband argues that the trial court’s tax findings were not based on competent, substantial evidence. The former husband’s financial affidavit indicated that his gross monthly salary was $10,649, subject to the following deductions: $2631.42 (federal, state, and local income tax), $642.35 (FICA), and $150.24 (Medicare). The final judgment on fees concluded that the former husband’s taxes were exaggerated:

The Former Husband lists $2,631.42 for federal and state taxes, $642.35 for FICA and $150.24 for Medicare for a total of $3,424.01 when his total monthly deductions should be no more than $1,816 ($514 for federal taxes, $596.00 for state taxes, $552 for FICA, and $154 for Medicare). The Former Husband receives a substantial deduction in his taxes for his alimony payment. The Former Husband is manipulating his taxes to avoid payment of support obligations .... Without imputing the $2,200 in income for unpaid rental expenses to the Former Husband, the Former Husband has available income to him of $5,383 after the payment of his alimony obligation. Including the imputed rental income of $2,200 per month for which the Former Husband pays no taxes, the Former Husband has available income to him of $7,583 after the payment of his alimony obligation.

(Emphasis added.) The court then arrived at its own tax liability calculations but, unfortunately, it did not explain how it reached those numbers. Although it is likely that the trial court adopted certain figures set forth in a worksheet filed by the former wife as part of her closing argument, that worksheet by itself is not competent, substantial evidence. We have also been unable to independently corroborate record evidence supporting the trial court’s finding that the former husband’s “total monthly deductions should be no more than $1,816 ($514 for federal taxes, $596.00 for state taxes, $552 for FICA, and $154 for Medicare).”

A trial court’s determination of a party’s net income must be supported by competent, substantial evidence. McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008). In a case such as this one involving a significant dispute about one of the party’s income, “meaningful appellate review is hampered by the absence of findings as to how the trial court determined the income amount.” Id. Generally, this is the pivotal building block from which all other economic issues flow.

A trial court should determine a party’s net income by subtracting statutorily allowable deductions, such as tax deductions, from the party’s monthly income. Chaney v. Fife, 18 So.3d 44, 45 (Fla. 1st DCA 2009). Lack of competent, substantial evidence supporting the numbers the court used for a party’s tax liability warrants reversal. Id. (reversing income calculation in child support case because there was no competent, substantial evidence to support the number used for each party’s federal tax liability). Because there is no competent, substantial evidence supporting the tax liability numbers attributed by the trial court to the former husband, we must remand for the trial court to reconsider this issue and include that information in the final judgment.

II. The Trial Court’s Imputation of Income to the Former Husband

The former husband also complains about the trial court’s imputation of income to him. We find no error in the trial court’s decision to impute income to the former husband because he was living rent-free in a house owned by his parents. But, for the reasons explained below, the trial court erred in how it applied that imputation of income to the facts of this case.

Imputation of income to a spouse for purposes of determining support is appropriate when someone, such as an employer or parent, is paying or subsidizing some of that spouse’s monthly living expenses. See, e.g., Posner v. Posner, 39 So.3d 411, 413-14 (Fla. 4th DCA 2010) (affirming trial court’s decision to impute $1400 income to the father based on the rental value of the home owned by the parents, where they allowed him to live rent-free); Chapoteau v. Chapoteau, 659 So.2d 1381,1384 (Fla. 3d DCA 1995) (holding that husband’s employer-provided residence was income). In this case, the former husband’s financial affidavit listed his monthly salary as $10,649, and claimed a monthly deficit of $2529 after deducting all monthly expenses. One of those expenses was monthly rent of $2200. Yet, at the final hearing on dissolution held on April 7, 2010, the former husband testified that he was living in a home owned by his parents. While he claimed he had agreed to pay his parents $2200 monthly in rent, as of the date of the hearing he had only made two payments of $1800 to them. And at the hearing held on December 10, 2010, the former husband testified that he had not paid his parents any rent in quite some time, instead, giving them “IOUs.” Clearly, the trial court rejected the former husband’s testimony regarding his rent expense, and such credibility determinations are within its discretion. See, e.g., Posner, 39 So.3d at 413-14 (imputing $1400 in income to the husband when both parents had been allowing him to live rent-free in a house owned by them, even though the parents testified that they did not intend their assistance to continue and that they intended to sell the house). Therefore, we find no error in the trial court’s decision to reject the former husband’s testimony and, in turn, impute $2200 in monthly income to him.

However, the trial court erred in how it applied that imputation of income. As a result, it reached an incorrect conclusion about the amount of income actually available to the former husband to pay the former wife’s fees. The trial court found that the former husband’s gross monthly income was $10,649. It then deducted $1816 for taxes and $3300 for alimony payments to the former wife and concluded that his available income was $5383. At that point, the court added $2200 to his monthly income and concluded that his available monthly income was $7583, as if the former husband were actually receiving a monthly $2200 payment from his parents for rent in addition to his salary. As the undisputed testimony showed, the former husband is not actually receiving any additional money from his parents on top of his net pay—he simply does not have a rent expense.

“[I]n determining the parties’ income levels ... the court may consider ‘[Reimbursed expenses or in kind payments to the extent that they reduce living expenses.’” Garcia v. Garcia, 560 So.2d 403, 404 (Fla. 3d DCA 1990) (emphasis added) (quoting § 61.30(2)(a), Fla. Stat.). Housing or housing payments are included in the determination of gross income, not net income. See, e.g., Thomas v. Thomas, 712 So.2d 822, 823-24 (Fla. 2d DCA 1998) (noting that wife’s living expenses were reduced because she was allowed to live in marital home rent-free); Jones v. Jones, 679 So.2d 1270, 1271 (Fla. 2d DCA 1996) (holding that trial court erred in including imputed income into its computation of the husband’s net income). We agree that the overall effect of the former husband’s receipt of free rent from his parents is to increase the monthly income available to pay the former wife’s fee award. But it was error for the trial court to then also add an imaginary $2200 to the former husband’s net income after apparently reducing his expenses by the rejected rent amount. This methodology effectively double counted the same $2200.

Because on remand the trial court will have to recalculate the former husband’s net income available to pay the former wife’s fee award, we offer some additional observations to aid the court in its calculation of the amount the former husband must pay the former wife monthly. As previously discussed, a court determines a party’s net income by subtracting statutorily required deductions, such as federal tax deductions, from the party’s monthly income. See Chaney, 18 So.3d at 45. The trial court should explain how it determined the amount of those deductions. The trial court is also required to exclude from the former husband’s gross income the amount of alimony he is required to pay, see, e.g., Silver v. Silver, 898 So.2d 145, 146 (Fla. 4th DCA 2005), which in this case is $8300. And the trial court is also required to consider the former husband’s own reasonable and necessary living expenses. See generally Nadrich v. Nadrich, 936 So.2d 15, 18 (Fla. 4th DCA 2006). It is clear from the record that at least one living expense listed in the former husband’s financial affidavit — $2200 in rent — was inaccurate. Other than the dispute over tax deductions and rent expense, the parties did not appear to dispute the other listed expenses and deductions which the former husband claimed from his gross income. On remand, the trial court must consider whether the former husband has the ability to pay $3300 in monthly alimony to the former wife, his tax obligations, all of his other reasonable and necessary financial obligations, and also pay the former wife $3200 monthly toward her attorney’s fees and costs. See generally id. Nothing in this opinion should be interpreted to preclude the trial court from again imposing a $3200 monthly payment toward the former wife’s attorney’s fees and costs, as long as it provides competent, substantial evidence in the record supporting its conclusion that the former husband has the ability to pay that monthly amount. In all other aspects, we affirm.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

CASANUEVA and CRENSHAW, JJ., Concur.

      . We do not disturb the trial court's findings regarding the former husband’s recalcitrant behavior during the dissolution proceedings, all of which contributed to a disproportionately large attorney fee award in view of the limited assets involved.

      . We note with interest that the former husband's financial affidavit stated that he had a monthly deficit of $2529 after paying all his monthly living expenses. Removing the nonexistent $2200 monthly rent expense almost entirely eliminates the former husband’s claimed income deficit.

      . The former husband lives in Georgia; thus the reference to state income taxes.

      . The trial court did indicate that the former husband's new wife should share in the financial expenses of the former husband’s new household. The court also found that the former husband had discharged some of his debts in bankruptcy and had put some of his debt into a bankruptcy five-year payment plan, freeing up some income which was available to pay the former wife's fees. We do not disturb those conclusions.


text:
    Holvens LABISSIERE, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4025.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2012.
    Rehearing Denied Aug. 20, 2012.
    David F. Allen of David F. Allen, P.A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Holvens Labissiere appeals his convictions for one count of armed burglary of a dwelling, one count of armed kidnapping with intent to inflict harm or terrorize, one count of armed kidnapping with intent to commit a felony, three counts of armed sexual battery, one count of aggravated stalking after an injunction, and one count of violation of a domestic violence injunction by committing domestic violence. As the State properly concedes, double jeopardy precludes Labissiere from being convicted on both kidnapping counts. We find the other issues raised by Labissiere to be without merit. On remand, the trial court shall vacate one of the kidnapping convictions. In all other respects, the judgment and sentences are affirmed.

AFFIRMED, in part; REVERSED, in part; REMANDED.

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


author: PER CURIAM. ALTENBERND, Judge,

text:
    Thomas F. HUEBNER, Petitioner, v. Kimberly P. HUEBNER, Respondent.
    No. 2D12-516.
    District Court of Appeal of Florida, Second District.
    July 20, 2012.
    Thomas F. Huebner, pro se.
    Susan J. Silverman, Sarasota; and W. Russell Snyder of W. Russell Snyder, P.A., Venice, for Respondent.
   PER CURIAM.

We deny this petition for writ of mandamus because it is moot. We write to give some guidance to counsel as to the nature of the response this court anticipates from the respondent when a response is ordered. We also address the Wife’s motion for appellate attorney’s fees.

The Huebners are involved in a dissolution proceeding in the circuit court. Although the Husband has counsel in the circuit court, he filed this petition for writ of mandamus without the assistance of counsel. The petition alleges that the final hearing was concluded on May 18, 2011, and that the judge had not issued a final order of dissolution as of February 2012. The Husband asked that we issue a writ to compel the circuit court to rule.

Because the parties had been waiting for a ruling for approximately nine months, this court issued an order on February 16, 2012, asking the Wife to respond within fifteen days. This court also served the order on the circuit court judge who was named in the petition. See Fla. R.App. P. 9.100(e)(2). Often such an order results in a brief response from the respondent, attaching a copy of an order issued by the named judge a few days after our order requiring a response. Other times, we receive a brief response admitting that the circuit court has not ruled and either joining in the petition for writ of mandamus or suggesting that we give the circuit court a time-specific period in which to rule.

In this ease, the circuit court did not rule during the fifteen-day window. Instead of a brief response, on March 2, the Wife’s attorney filed an eighteen-page brief with a long description of the proceedings below and a full discussion of the law of mandamus, arguing that a writ should not issue. The attorney also filed a motion for attorney’s fees pursuant to section 61.16, Florida Statutes (2007). This was followed on March 20 by the Wife’s motion to dismiss the petition as moot because the circuit court had issued the order. The order resolving the matter was attached to the motion. Because the circuit court has ruled, this petition is moot. We deny it on that ground.

Concerning the Wife’s motion for attorney’s fees, we conclude that section 61.16(1) does provide a basis for this court to award a fee in an appropriate case. The issues in a typical mandamus proceeding are very simple: (1) whether the case has been under advisement in the trial court for as long as the petitioner represents, (2) whether the court has ruled and, if not, (3) whether there is some explanation for the unusual delay. These proceedings are unlike appeals in which attorneys fulfill an adversarial role. All parties have a reasonable expectation of receiving a timely ruling from a court. In a mandamus proceeding, the respondent’s attorney is serving largely as an officer of the court to help this court determine the best way to resolve any logjam that may exist in the lower tribunal.

In this case, the response opposing the issuance of a writ and discussing the law in detail was well beyond the needed response. We are hesitant to make the Husband pay attorney’s fees for pleadings opposing his petition when his pro se petition was well-founded and actually benefit-ted both parties to the extent that it prompted the trial court to rule. Accordingly, we deny the motion for fees.

Petition for writ of mandamus is denied.

NORTHCUTT and DAVIS, JJ., Concur.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I agree with the court’s opinion in all respects except that I do not conclude that section 61.16, Florida Statutes (2007), gives this court authority to grant fees in this type of original proceeding. Section 61.16(1) states:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals. In those cases in which an action is brought for enforcement and the court finds that the non-compliant party is without justification in the refusal to follow a court order, the court may not award attorney’s fees, suit money, and costs to the noncompliant party.

(Emphasis added.)

A petition for writ of mandamus is an original common law proceeding commenced in this court. It is not a proceeding under Chapter 61. Just as section 61.16 does not apply in Chapter 741 proceedings, I do not believe it applies in this non-statutory common law proceeding. See Belmont v. Belmont, 761 So.2d 406, 407 (Fla. 2d DCA 2000) (holding that attorney’s fees could not be awarded under section 61.16 “for services rendered by counsel in a separately filed domestic violence injunction case”); Baumgartner v. Baumgartner, 693 So.2d 84 (Fla. 2d DCA 1997) (same).

This petition is not in the nature of an enforcement action against the other party. See, e.g., Fortner v. Fortner, 631 So.2d 327 (Fla. 2d DCA 1994). Section 61.16(2) has special provisions addressing criminal contempt, but there are no special provisions as to a petition for writ of mandamus. I have found no case expressly awarding fees under this section in a mandamus proceeding, although I am certain that this court may occasionally have done so in an unpublished order. Even under a liberal interpretation of section 61.16, I cannot agree that this statute applies in an original common law proceeding naming the trial judge and seeking a ruling in the pending trial court case.

It may be that section 61.16 should be amended to provide some discretion to the district courts to award fees in mandamus, certiorari, and prohibition proceedings that arise from pending dissolution actions. On the other hand, given that a petition for mandamus in this context addresses a delay by the circuit court that is completely beyond the control of the other spouse, there is little justification to shift the legal costs from one spouse to the other.

      . In civil cases, this court does not have a set minimum period of delay between the hearing and the order that we use to decide whether to require a response. Generally, a delay of less than ninety days is unlikely to be regarded as facially sufficient to require a response. Likewise, a delay in excess of 180 days is more likely to result in an order requiring a response.

      . This court normally does not order the named judge to file a response, and the judge is not required to respond in the absence of an order. The rule permits such a response, but it is rarely necessary. See Fla. R.App. P. 9.100(e)(3).

      . The only case I have located referencing this statute in connection with the word "mandamus” is Pefaur v. Pefaur, 617 So.2d 425 (Fla. 3d DCA 1993). Pefaur does not address this issue.


author: ALTENBERND, Judge.

text:
    Brian SPAULDING, Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-5781.
    District Court of Appeal of Florida, Second District.
    July 20, 2012.
    Michael R.N. McDonnell of McDonnell Trial Law, Naples, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

Brian Spaulding files a petition for writ of certiorari seeking review of the trial court’s order denying his motion for reduction or modification of sentence under Florida Rule of Criminal Procedure 3.800(c). We conclude that Mr. Spaulding is not entitled to relief under the limited review available by certiorari for such discretionary rulings.

In September 2009, Mr. Spaulding pleaded guilty to lewd and lascivious molestation and sexual battery for conduct involving an adopted child. Allegedly as a result of mitigating circumstances, the trial court placed Mr. Spaulding on sex offender probation. Mr. Spaulding violated probation in July 2010. The trial court sentenced him to 165.3 months’ incarceration at a sentencing hearing on July 15, 2010. This court affirmed the order revoking probation and the resulting sentence in 2011. Spaulding v. State, 69 So.3d 287 (Fla. 2d DCA 2011) (table decision).

In this certiorari proceeding, Mr. Spaulding admits that 165.3 months’ incarceration was the minimum sentence authorized by the Criminal Punishment Code and that the trial court could not impose a shorter sentence at the sentencing hearing unless that sentence was an authorized downward departure. Our record contains the transcript of the sentencing hearing. No evidence was presented at the hearing, but counsel and the court had a discussion about the possibility of a downward departure sentence. The trial court expressed doubt at the hearing as to its authority to grant a downward departure sentence. Ultimately, the court imposed the minimum guidelines sentence explaining:

The Court is going to revoke, terminate probation and readjudicate you and sentence you to the minimum under the guidelines. You have 60 days — I maintain jurisdiction for 60 days to mitigate if you can give me lawful reasons why I should — why I should consider it.

As stated above, Mr. Spaulding appealed this ruling. Our record from the direct appeal reflects that Mr. Spaulding did not raise a sentencing issue in that appeal.

Once jurisdiction returned to the trial court, Mr. Spaulding accepted the trial court’s offer to consider the issue of a downward departure by filing a motion to reduce or modify sentence under rule 3.800(c). The motion alleged various grounds for a downward departure. The accompanying memorandum explained that granting a downward departure sentence was a two-step process by which the court first decides whether there is a legal ground for a departure that is supported by competent, substantial evidence. If such a ground exists, in the second step the trial court exercises sound discretion under the totality of the circumstances to either grant or deny the request for a downward departure sentence. See Banks v. State, 732 So.2d 1065, 1067 (Fla.1999); State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006).

The trial court entered an order denying the motion, finding that it had jurisdiction to rule on the motion, but concluding that because the original term of probation was a downward departure, it was denying any reduction in the current sentence. Thereafter, the trial court denied a motion to clarify this order, and Mr. Spaulding filed this timely petition for writ of certiorari.

It is well established that an order denying a motion under rule 3.800(c) is not appealable. See Pillajo v. State, 60 So.3d 565, 566 (Fla. 2d DCA 2011); Smith v. State, 471 So.2d 1347, 1348 (Fla. 2d DCA 1985); Parker v. State, 214 So.2d 632 (Fla. 2d DCA 1968).

The appellate courts, however, have recognized that some trial court errors that occur when considering rule 3.800(c) motions may be reviewed by petition for writ of common law certiorari. See Kwapil v. State, 44 So.3d 229, 230 (Fla. 2d DCA 2010); Moya v. State, 668 So.2d 279, 280 (Fla. 2d DCA 1996). These motions are subject to the trial court’s discretion. See Schlabach v. State, 37 So.3d 230, 237 (Fla.2010). In part because the ruling on 3.800(c) motions is discretionary, the writ of certiorari has been used sparingly to correct only a very narrow range of mistakes.

Most decisions granting certiorari relief from such orders have done so because the trial court erroneously concluded that it lacked jurisdiction to consider the motion. See, e.g., Lancaster v. State, 821 So.2d 416 (Fla. 2d DCA 2002). On at least one occasion, this court has granted relief because the trial court expressly ruled that it did not have authority to modify a condition of probation in such a proceeding. See Wesner v. State, 843 So.2d 1039 (Fla. 2d DCA 2003). We have once granted certiorari relief on the State’s concession because the defendant’s motion was denied when he failed to attend a hearing that was not properly noticed. See Alexander v. State, 816 So.2d 778 (Fla. 2d DCA 2002). The First District has granted relief on the State’s concession when the trial court erroneously treated the motion as if it were filed pursuant to rule 3.800(a). See Thoas v. State, 751 So.2d 764 (Fla. 1st DCA 2000). In that situation, the trial court simply applied the wrong law.

The question in this proceeding is whether certiorari review of orders on motions pursuant to rule 3.800(c) extends to a broader range of issues than those described in the preceding paragraph. The errors that have been corrected so far in these certiorari proceedings have been errors in jurisdiction, clear violations of due process, and applications of what is obviously the wrong law. This case does not appear to fall within any of these serious errors. On the other hand, the State admits in this case that the trial court should have better explained its ruling and that it may have failed to follow the two-step process described in Subido.

Orders on motions to modify or reduce sentences are often very short and usually contain little reasoning to explain the basis for the denial. We decline to use our certiorari power to order this trial court to better explain its ruling.' In this case, the trial court’s reasoning is evident.

First, the two-step procedure contemplated by Subido is a procedure for use at sentencing hearings. There is no law mandating a similar process for use in hearings under rule 3.800(c). If the trial court did not adequately conduct the sentencing hearing, that error could have been preserved for review on direct appeal. The trial court’s willingness to reconsider the downward departure at a hearing on a motion for modification under rule 3.800(c) did not transform that hearing into a second sentencing hearing.

Second, it is not obvious to this court that the trial court’s order was based on any departure from the essential requirements of the law. In the order, the trial court appears to be explaining that it knew there were grounds for a downward departure because it had already granted such a sentence. The trial court’s decision appears to be based on its conclusion that Mr. Spaulding had been given an opportunity for a lesser sentence, but having squandered that opportunity by violating his probation, there was little justification to give him a second chance at a reduced sentence. That decision is one within the trial court’s discretion, and we have no basis to quash it in this proceeding.

Accordingly, we deny this petition and write to emphasize that this court will typically limit certiorari review of orders denying relief under rule 3.800(c) to errors involving jurisdiction, violations of due process, patent applications of the wrong law, and other clear deprivations of constitutionally guaranteed rights.

Petition for writ of certiorari denied.

KELLY and VILLANTI, JJ., Concur.

      . Note that in 1985 when Smith was decided, what is now Florida Rule of Criminal Procedure 3.800(c) was rule 3.800(b). Rule 3.800(b) became rule 3.800(c) effective July 1, 1996. See Amendments to Fla. R. App. P. 9.020(g) & Fla. R. Crim. P. 3.800, 675 So.2d 1374, 1375 (Fla. 1996).

      . Although the case law holding that orders denying motions filed pursuant to Florida Rule of Criminal Procedure 3.800(c) is without conflict, it may be worthy of reexamination. The current rule began its life in Florida in 1961 as section 921.25, Florida Statutes (1961). See Ch. 61-39, § 2, Laws of Fla. It was modeled on the version of Federal Rule of Criminal Procedure 35 that existed at that time. Under the appellate mies prior to 1977, there was no provision for appeals from orders entered after final judgment in criminal cases. See rules 4.2 and 6.2 of the Florida Appellate Rules (1962 Revision). Since 1977, the Florida Rules of Appellate Procedure have contained a rule allowing for appeal of "orders entered after final judgment" in criminal cases. See Fla. R.App. P. 9.140(b)(1)(D) (formerly rule 9.140(b)(1)(C)). It is arguable that orders denying motions filed pursuant to rule 3.800(c) are now appealable. But even if that were true, any discretionary ruling by the trial court would be subject to review only for an abuse of discretion. See, e.g., United States v. Lacey, 661 F.2d 1021, 1022 (5th Cir.1981) ("Further, insofar as the defendant complains of the trial court's denial of a reduction of sentence, under Fed.R.Crim.P. 35 such a motion is addressed to the discretion of the trial judge, and it will be reversed on review only for illegality or a gross abuse of discretion."); United States v. Yates, 553 F.2d 502, 503-04 (5th Cir.1977). In this case, however, we do not recede from our case law holding that these orders may be reviewed only by petition for writ of certiorari.

      . The Third District has reversed a "sentence” because the trial court denied a motion to mitigate. The reversal was based on the trial court’s error in relying on hearsay evidence. See Fulton v. State, 66 So.3d 950 (Fla. 3d DCA 2011). We suspect that the procedural status of the case is not correctly stated in the opinion, but the Third District would not have had appeal jurisdiction over an order denying a motion under 3.800(c), and such an order is typically not reviewable on a direct appeal of the sentence. We doubt that the error described in Fulton would have justified relief by certiorari. We decline to express conflict with this case, which simply appears to be poorly explained.


text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. Mary BOTTINI, as Personal Representative of the Estate of Gerard Bottini, Appellee.
    No. 2D11-1943.
    District Court of Appeal of Florida, Second District.
    July 20, 2012.
    Paul L. Nettleton of Carlton Fields, P.A., Miami, and Dorothy V. DiFiore of Haas, Lewis, DiFiore & Amos, P.A., Tampa, for Appellant.
    George A. Vaka of Vaka Law Group, Tampa, and C. Steven Yerrid of The Yer-rid Law Firm, Tampa, for Appellee.
   PER CURIAM.

Geico General Insurance Company raised five issues in this appeal. We conclude that none of the issues warrants reversal. We note that Geico’s arguments include claims of error that impacted the amount of damages determined by the jury. The jury verdict found that the Estate’s damages were $80,872,266. But the judgment amount entered by the trial court against Geico is $50,000, based on the applicable insurance policy limits. Based on the evidence presented, we are satisfied that even if Geico were correct that errors may have affected the jury’s computation of damages, in the context of this case and the amount of the judgment, any such errors were harmless. Thus, we do not address further Geico’s claims of error.

Affirmed.

KHOUZAM and MORRIS, JJ„ Concur.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in the affirmance of this judgment. I write to explain that I have reviewed only the judgment on appeal. In my opinion, this court’s scope of review gives it no power to consider alleged errors in the verdict that do not affect the judgment. Accordingly, I conclude that there is no proper legal basis to reverse the $50,000 judgment in this case, and I express no opinion as to the correctness of the jury’s verdict awarding $80,872,266.

Shortly after midnight on March 3, 2007, Gerald Bottini was driving on the interstate when the engine of the car in front of him malfunctioned and caught fire, emitting a large cloud of smoke. The smoke apparently disoriented Mr. Bottini, and he swerved to the left. His car rolled, and he was thrown from the vehicle. As a result, he died.

The car that exploded was driven by a young woman and owned by her mother. The car had been maintained by the owner’s husband, the driver’s father. The Estate of Mr. Bottini sued the driver and her mother. The Estate alleged that the driver was negligent on the highway because she did not pull over when the engine first showed signs of malfunction. The Estate further alleged that the driver’s mother had negligently maintained the vehicle. The case settled for approximately $1,000,000. Thereafter, the Estate maintained this action against GEICO because it provided underinsured motorist insurance coverage for Mr. Bottini.

The jury returned a verdict finding negligence on the part of both the driver and the owner of the underinsured car and finding no comparative negligence on the part of Mr. Bottini. The jury awarded $103,552 to the Estate. It awarded $14,522,478 to Mr. Bottini’s wife, $5,363,070 to one child, $5,423,256 to a second child, and $5,459,910 to a third child. After deducting the settlement that had been received from the tortfeasor, this award still totaled almost $30,000,000. Because GEICO’s policy limit for underin-sured motorist coverage was $50,000, the trial court properly limited the judgment to that amount.

On appeal, GEICO has argued several issues that might affect the judgment as to liability and comparative negligence, but this court has found no preserved reversible error on those issues. It has also argued that the verdict is excessive and that it was influenced by improper arguments. However, GEICO concedes that after finding liability, a jury would be free under the facts of this case to award a total of $1,050,000 even in the fairest of trials. Accordingly, no alleged error raised by GEICO can be a harmful error as to the judgment totaling $50,000.

This appeal is motivated by the lawsuit that both parties know will follow. The Estate will sue GEICO under section 624.155, Florida Statutes (2006), for failure to settle this claim at an earlier time. The available damages in that action are specified by the legislature. Section 627.727(10), Florida Statutes (2006), states:

The damages recoverable from an uninsured motorist carrier in an action brought under s. 624.155 shall include the total amount of the claimant’s damages, including the amount in excess of the policy limits, any interest on unpaid benefits, reasonable attorney’s fees and costs, and any damages caused by a violation of a law of this state. The total amount of the claimant’s damages is recoverable whether caused by an insurer or by a third-party tortfeasor.

(Emphasis added.) The statute does not explain how the finder of fact in the next lawsuit determines the “total amount” of the claimant’s damages. Not unreasonably, both sides in this appeal anticipate that the Estate will attempt to use the verdict in this case as evidence of the total amount of damages in the next lawsuit.

Constitutionally, this court is given power to review final judgments for reversible error. We can also write an opinion affirming a judgment as to issues that, if we were to reach an opposite result, would lead to a reversal of the judgment. But I am unconvinced that we have a scope of review that allows us to rule on issues that do not and cannot affect the judgment on appeal. In this case, given that we decided to affirm on the issues relating to liability, GEICO essentially wants this court to write an opinion that affirms the judgment, but “reverses” the verdict as to elements of damage not included within the judgment. I simply conclude that this court does not have the power to issue such an opinion. The fact that such an opinion might be convenient for purposes of the next lawsuit or facilitate its settlement does not change the authority given to me under the Florida Constitution.

Accordingly, this concurrence permits both sides to know that at least one judge on this panel has not decided that the verdict is correct or incorrect as to damages awarded in excess of $1,050,000 because that issue is not within our permissible scope of review. If I am refusing to do that which the law requires me to do, I would assume that by writ of mandamus the supreme court could order me to conduct such a review. If so ordered, I would perform that review.

      . In a standard “bad faith” case involving a liability insurance company, the verdict in excess of the insurance limits results in a judgment against the defendant, but not against his or her liability insurance company. Only in a lawsuit against the plaintiffs own insurer, a "first-party” insurance claim, does the excess verdict result in no judgment of any sort. Thus, the problem presented by this case appears unique to bad faith claims arising from coverage under section 627.727.