text:
    Christopher BEICH, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4612.
    District Court of Appeal of Florida, Second District.
    June 29, 2012.
   PER CURIAM.

Christopher Beich appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he alleged that he was entitled to additional prison credit. We reverse the postconviction court’s order of denial and remand for further proceedings.

On October 23, 2007, Beich pleaded nolo contendere to one count of leaving the scene of an accident with injuries and was sentenced to a term of two years in prison followed by two years of community control and one year of probation. On November 15, 2009, Beich was released from prison and placed on community control. Shortly thereafter, Beich admitted violating community control, and he received a suspended sentence of five years’ imprisonment. On May 6, 2010, Beich once again admitted violating community control and was subsequently sentenced to five years’ imprisonment with 109 days of credit for time served in jail.

In his motion, Beich alleged that he is entitled to an additional two years of credit for time served in prison during the incar-cerative portion of his original split sentence. In support, Beich claimed that he was initially sentenced on April 29, 2008, and released on November 15, 2009. However, Beich alleged that the court only gave him credit for the time served in jail while awaiting sentencing on his two violations of community control. Beich ultimately claimed that the trial court’s failure to include the incarcerative portion of his initial sentence in its credit calculation resulted in his current sentence exceeding the five-year statutory maximum for a third-degree felony.

Beich’s claim is cognizable in a rule 3.800(a) motion, and “[ujpon violating the probationary portion of a split sentence, the defendant is entitled to credit for time served on the incarcerative portion.” Layman v. State, 787 So.2d 44, 45 (Fla. 2d DCA 2001); see also Singletary v. Slay, 688 So.2d 319, 320 (Fla.1997). It appears that the trial court did not award prison credit because the corresponding box on the written judgment and sentence was left blank. “It is the trial court’s responsibility to place a check in the appropriate box concerning prison credit.” Andrews v. State, 822 So.2d 540, 541 (Fla. 2d DCA 2002); see also Downing v. State, 779 So.2d 562, 563 (Fla. 2d DCA 2001).

Because Beich has raised a valid claim for credit for time served during the incar-cerative portion of his probationary split sentence, we reverse the denial of Beich’s motion and remand for the postconviction court to check the box indicating Beich’s entitlement to prison credit.

Reversed and remanded.

VILLANTI, WALLACE, and CRENSHAW, JJ., Concur.


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    Jaqueal Edward HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5004.
    District Court of Appeal of Florida, Second District.
    June 29, 2012.
   BLACK, Judge.

Jaqueal Edward Harris appeals the summary denial of his motion for postcon-viction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We affirm the denials of grounds two, three, and four without comment but reverse and remand the denial of ground one.

In ground one, Harris claimed that counsel was ineffective for permitting him to plead guilty to the robbery charges in trial court case number 09-674 when no factual basis existed for the imposition of the ten-year minimum mandatory sentences pursuant to section 775.087(2)(a)(1), Florida Statutes (2008), the 10-20-Life Statute. He asserted that, although he advised counsel that there was evidence showing that he was not in actual possession of a firearm when the offenses were committed, counsel failed to raise this assertion with the court. He maintains that but for counsel’s deficiency, he would not have accepted the plea offer and would have gone to trial.

The postconviction court denied the claim, finding that by pleading guilty, Harris admitted that he was in actual possession of a firearm when he committed the offenses, as alleged in the information. However, neither the attachments to the postconviction court’s order — which include the information, the plea agreement, and the judgment and sentence — nor the record before this court conclusively refute Harris’s legally sufficient claim. See Harris v. State, 32 So.3d 197, 197 (Fla. 4th DCA 2010) (citing Young v. State, 935 So.2d 1263 (Fla; 2d DCA 2006)). Additionally, the form language from Harris’s plea agreement is insufficient to establish a factual basis for the minimum mandatory penalty imposed. See Morin v. State, 947 So.2d 1250,1251 (Fla. 2d DCA 2007).

Accordingly, we reverse and remand ground one for the postconviction court to either attach portions of the record that conclusively refute the allegation or to conduct an evidentiary hearing.

Affirmed in part; reversed in part; remanded.

VILLANTI and LAROSE, JJ„ Concur.


author: CRENSHAW, Judge.

text:
    Nathan DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3615.
    District Court of Appeal of Florida, Second District.
    June 29, 2012.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   CRENSHAW, Judge.

Nathan Davis appeals his judgment and sentences for burglary of a conveyance with a battery while armed with a firearm and robbery with a firearm. We affirm Davis’s judgment and sentences without comment. However, we conclude that the trial court was divested of its jurisdiction to enter a nunc pro tunc order adjudicating Davis competent to proceed at trial because the trial court entered the order after Davis filed his notice of appeal.

“The law is well established that, once an appeal is filed, the trial court loses jurisdiction with regard to the matter which is the subject of the appeal.” Pace v. State, 919 So.2d 545, 546 (Fla. 5th DCA 2005). The trial court was therefore divested of jurisdiction to cure any deficiencies or omissions, and the nunc pro tunc order is a nullity. See Dragomirecky v. Town of Ponce Inlet, 891 So.2d 633, 634 (Fla. 5th DCA 2005) (“[A]n order entered without jurisdiction is a nullity, and cannot be considered harmless error.”). Nonetheless, it is clear from the record that Davis was competent at the time of trial. Accordingly, once the trial court obtains jurisdiction on remand, it is directed to enter a nunc pro tunc order adjudicating Davis competent to proceed at trial. See Mason v. State, 489 So.2d 734, 737 (Fla.1986) (determining that “no per se rule exists in Florida forbidding a nunc pro tunc competency determination regardless of the surrounding circumstances”).

Affirmed and remanded with directions.

SILBERMAN, C.J., and LaROSE, J., Concur.


author: PER CURIAM.

text:
    Stuart DELANCY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2960.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Rehearing Denied Aug. 10, 2012.
    Start Delaney, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, ROWE, and RAY, JJ., concur.


author: GERBER, J.

text:
    Rufus BETHEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3697.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.

      Hilliard E. Moldof, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals his convictions for being a felon in possession of a firearm and possession of cannabis in an amount twenty grams or less. He argues that the circuit court erred in denying his motion to suppress the firearm and cannabis because: (1) at the time of the arrest, the arresting officer lacked probable cause that the defendant committed a crime; and (2) the officer entered into the curti-lage of the defendant’s house to arrest him without a warrant. We conclude those arguments lack merit. We affirm.

The undisputed facts are as follows. The arresting officer, while driving on patrol with his partner in a residential area, saw a car commit a traffic infraction. The officer activated his lights to conduct a traffic stop. The car came to a sudden stop in front of a house which had a fenced-in front yard. The officer saw one man in the driver’s seat and saw the defendant in the passenger’s seat. When the defendant exited the car, the officer saw four inches of the butt of a handgun sticking out of the defendant’s right pants pocket. The officer immediately recognized that the object was a handgun based on his experience of having seen thousands of handguns. The defendant walked into the fenced-in front yard towards the front door of the house. The officer yelled to his partner that the defendant had a gun. The officer then drew his own gun, ran into the yard towards the defendant, and ordered him to stop and put his hands up. The defendant complied. The officer then arrested the defendant and retrieved the gun from the defendant’s pocket.

The officer learned that the defendant was a convicted felon. Thus, the officer charged the defendant for being a felon in possession of a firearm. A search of the defendant also revealed that the defendant possessed cannabis in an amount twenty grams or less. The officer charged the defendant for that offense as well.

At the hearing on the motion to suppress, the officer testified that, upon seeing the gun in the defendant’s pocket, he did not know if the defendant had a concealed weapons permit. The officer also testified that, upon seeing the gun, he did not think to ask the defendant about the gun before taking action. Instead, he immediately sought to arrest the defendant out of concern for his and his partner’s safety. The officer further testified that, at the time that he drew his gun and ran towards the defendant, the defendant did not reach for the gun. The officer acknowledged that some pellet guns and BB guns look very similar to firearms until close inspection occurs. The officer also acknowledged later learning that the defendant lived at the house where the arrest occurred.

The defendant argued that the court should suppress the firearm and cannabis because, at the time of the arrest, the officer lacked probable cause that he committed a crime. He further argued that even if the officer had probable cause that he was committing the crime of open carrying of a weapon, the officer could not enter into the curtilage of his house to arrest him without a warrant. The state responded that the officer had probable cause that the defendant was committing the crime of open carrying of a weapon, and that the officer could enter into the curtilage of the defendant’s house because the officer was in fresh pursuit of the defendant.

The circuit court denied the motion to suppress. The defendant later pled no contest to the charges, while expressly reserving the right to appeal the dispositive motion. The court then adjudicated the defendant guilty and sentenced him. This appeal followed.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Rowell v. State, 83 So.Sd 990, 993-94 (Fla. 4th DCA 2012) (citation and quotations omitted). “The appellate court defers to the trial court’s findings regarding the facts and uses the de novo standard of review for legal conclusions.” Nshaka v. State, 82 So.3d 174, 178-79 (Fla. 4th DCA 2012) (citation omitted).

Applying the foregoing standard of review, we conclude that the officer had probable cause to believe that the defendant committed the crime of open carrying of a weapon. “Probable cause to arrest or search exists when the totality of the facts and circumstances within an officer’s knowledge sufficiently warrant a reasonable person to believe that, more likely than not a crime has been committed.” State v. Blaylock, 76 So.3d 13, 14 (Fla. 4th DCA 2011) (citation and quotations omitted). The misdemeanor crime of “open carrying of weapons” is committed when “any person ... openly carries] on or about his or her person any firearm or electric weapon or device” except as provided by law. § 790.53(1) & (3), Fla. Stat. (2008).

The totality of the facts and circumstances within the officer’s knowledge sufficiently warranted a reasonable person to believe that the defendant committed the crime of open carrying of a weapon. The officer testified that once the defendant exited the car, the officer saw four inches of the butt of a gun sticking out of the defendant’s right pants pocket. The officer immediately recognized that the object was a handgun based on his experience of having seen thousands of handguns. Thus, the officer had probable cause to arrest the defendant for openly carrying on his person a firearm in violation of section 790.053(1). Cf. Dorelus v. State, 747 So.2d 368, 372 (Fla.1999) (“[Although the observations of the police officer will not necessarily be dispositive, a statement by the observing officer that he or she was able to ‘immediately recognize’ the questioned object as a weapon may conclusively demonstrate that the weapon was not concealed as a matter of law because it was not hidden from ordinary observation.”) (citation omitted).

Although the officer acknowledged that some pellet guns and BB guns look very similar to firearms until close inspection occurs, such a theoretical possibility does not defeat a finding of probable cause in light of the officer’s testimony that he immediately recognized the object was a gun based on his experience of having seen thousands of handguns. See Leighty v. State, 981 So.2d 484, 486 (Fla. 4th DCA 2008) (“In dealing with probable cause as the very name implies, the process does not deal with certainties but with probabilities. These are not technical niceties. They are factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians act.”) (emphasis and citation omitted).

We further conclude that the officer was able to arrest the defendant by entering into the curtilage of the defendant’s property without a warrant. We recognize that “[t]he zone of protection under the Fourth Amendment extends to the curtilage of a home, which includes a fenced or enclosed area encompassing the dwelling.” Tillman v. State, 934 So.2d 1263, 1272 (Fla.2006), superseded by statute on other grounds, § 776.051(1), Fla. Stat. (2008). However, “[officers are permitted to conduct a warrantless seizure of an item in ‘plain view’ if (1) the police see the item from a place they have a lawful right to be, (2) the incriminating nature of the item is ‘immediately apparent,’ and (3) the police have lawful access to the incriminating item.” Oliver v. State, 989 So.2d 16, 17 (Fla. 2d DCA 2008) (citing Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). The third criterion “is simply a corollary of the familiar principle ... that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ ” Horton, 496 U.S. at 137 n. 7, 110 S.Ct. 2301 (citation and quotations omitted).

Here, all three criteria were satisfied: (1) the officer saw the gun from a place he had a lawful right to be, that is, outside of the defendant’s fenced-in yard; (2) the incriminating nature of the gun was immediately apparent to the officer based on his experience of having seen thousands of handguns; and (3) the officer had lawful access to the gun because exigent circumstances existed, that is, the need to seize the gun to protect the officers’ safety. See Riggs v. State, 918 So.2d 274, 279 (Fla.2005) (“The kinds of exigencies or emergencies that may support a warrantless entry include those related to the safety of persons or property, as well as the safety of police.”) (citation omitted). Florida law also was satisfied because the defendant committed the crime in the officer’s presence and the officer made the arrest immediately or in fresh pursuit of the defendant. See § 901.15(1), Fla. Stat. (2008) (“A law enforcement officer may arrest a person without a warrant when ... [t]he person has committed a felony or misdemeanor ... in the presence of the officer. An arrest for-the commission of a misdemeanor ... shall be made immediately or in fresh pursuit.”).

The cases upon which the defendant relies are distinguishable. See Regalado v. State, 25 So.3d 600, 607 (Fla. 4th DCA 2009) (reversing an order denying a motion to suppress where neither an anonymous tip nor the officer’s observations of a bulge in the defendant’s waistband revealed any reasonable suspicion of past, present, or future criminal activity); Rodriguez v. State, 964 So.2d 833 (Fla. 2d DCA 2007) (reversing the defendant’s conviction where exigent circumstances did not exist to justify an officer’s warrantless entry into the curtilage of the defendant’s home to arrest the defendant’s husband); Oliver, 989 So.2d at 18 (reversing an order denying a motion to suppress because the incriminating nature of the seized items was not immediately apparent before the officers entered the backyard without a warrant).

Affirmed.

TAYLOR and CIKLIN, JJ., concur.


author: CONNER, J.

text:
    Iliana ALVAREZ, Appellant, v. DE LAGE LANDEN FINANCIAL SERVICES, INC., Appellee.
    No. 4D10-3750.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Rehearing Denied Aug. 15, 2012.
    Julio E. Gil De Lamadrid of Gil De Lamadrid PSC, Bayamon, Puerto Rico, for appellant.
    Tracye K. Solove of Solove & Solove, P.A., Miami, for appellee.
   CONNER, J.

Iliana Alvarez (“Alvarez”) appeals the final judgment for damages entered against her, contending a violation of her constitutional right to due process. We affirm the final judgment.

Alvarez personally guaranteed a loan to a business. The loan was not paid. Alvarez was sued as a guarantor by the lender’s assignee, De Lage Landen Financial Services, Inc. (“De Lage”), the appellee.

At a pretrial conference conducted on May 19, 2010, a settlement agreement was announced on the record. Alvarez was not present at the pretrial conference, but her attorney was. The settlement agreement committed Alvarez to a payment plan to avoid judgment being entered against her. It was also agreed that judgment could be entered against Alvarez without a hearing and based on an affidavit if there was a default in payment as agreed. The settlement agreement was not reduced to writing and signed by the parties.

The same day and prior to the pretrial conference, Alvarez’s attorney had filed a motion to withdraw from representing Alvarez, citing irreconcilable differences. During the pretrial conference, Alvarez’s attorney advised the trial judge that his client had asked him to withdraw. He also advised the trial court that although Alvarez agreed in concept to the proposed settlement agreement, she did not know all the exact terms. He explained she advised him the day before the pretrial conference that she did not want to proceed with the settlement agreement until she knew more. At the conclusion of the pretrial conference, the court concluded the case was settled.

An order was entered on May 25, 2010, approving the settlement agreement. Attached to the order was a transcript of the pretrial conference where the terms of the settlement agreement were stated on the record. The order, approving the settlement agreement, stated: “[this] cause is hereby dismissed with prejudice subject to the Court retaining jurisdiction of the parties and this cause in order to enforce the settlement terms as set forth in the transcript thereof attached hereto as Exhibit A.”

On June 1, 2010, Alvarez filed a pro se affidavit and motion seeking to disqualify the trial judge. The next day, an order was entered, allowing her attorney to withdraw. Alvarez did not pay the first payment due under the settlement agreement. On June 22, 2010, De Lage filed a motion for the entry of a judgment after default in payment. On August 9, 2010, Alvarez’s new attorney filed a motion to set aside the order approving the settlement agreement and a motion for summary judgment. On August 18, 2010, the trial court entered the final judgment upon default. No motion for rehearing or reconsideration was filed after the final judgment. Instead this appeal was filed.

On appeal, Alvarez asserts the final judgment after default on the settlement agreement should be reversed because the order approving the settlement agreement violated her constitutional right to due process. More specifically, she argues that the trial court should never have approved the settlement agreement because the assertions of her attorney at the pretrial conference made it clear she had not agreed to all the terms of the settlement. Her contention is that the finding by the trial court that she approved the settlement agreement constitutes a violation of due process because there was no meeting of the minds.

The problem with this argument is that Alvarez’s appeal is based on an issue raised in her motion to set aside the order approving the settlement agreement. Alvarez never called up this motion for a hearing before the trial judge. She also did not move for rehearing as to the final judgment raising the issue of the propriety of the order approving the settlement agreement. Even if we were to treat the motion to set aside the order approving the settlement agreement as a Rule 1.540(b) motion, this issue was not preserved for appellate review since an appeal was filed before the motion was heard. Hamilton v. R.L. Best Int’l, 996 So.2d 233, 235 (Fla. 1st DCA 2008) (“The preservation of error requirement is not ordinarily completed until the aggrieved party has obtained a ruling on the motion or objection made in the lower tribunal.”).

Affirmed.

CIKLIN and GERBER, JJ., concur.

      . We note that the record on appeal includes an Order on Plaintiff’s Motion For Final Default Judgment Against Defendant, Iliana Alvarez, Pursuant to Breach of Payment Stipulation entered after the notice of appeal. The order states:
      The court does not find it equitable to enforce the aforementioned default terms against defendant Alvarez, when the record before the court demonstrates that she never agreed to them. Accordingly, it is ORDERED AND ADJUDGED that the motion for default final judgment is DENIED.
      The record does not reveal why this order was entered. The trial court did not have jurisdiction to enter an order after the notice of appeal was filed. State v. Meneses, 392 So.2d 905, 907 (Fla. 1981).

      . The motion to vacate the order approving the settlement agreement does not state it is pursuant to Florida Rule of Civil Procedure 1.540(b).


author: CIKLIN, J.

text:
    STATE of Florida, Appellant, v. Alexis COLLAZO, Appellee.
    No. 4D11-694.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellee.
   CIKLIN, J.

The state appeals Alexis Collazo’s sentence, in which the trial court declined to impose a three-year mandatory minimum for possession of a firearm by a convicted felon. The mandatory-minimum sentence was only available for actual possession of a firearm. Because the jury was instructed on both actual and constructive possession — and was not provided a special interrogatory or verdict form to indicate which theory of possession it used to find Collazo guilty — it is unclear as to whether the jury found Collazo to have actually possessed a firearm. Therefore, we affirm.

The state charged Collazo with a single count of possession of a firearm by a convicted felon. Pursuant to section 775.087(2)(a)1.r, Florida Statutes (2009), the state sought a three-year mandatory-minimum sentence for actual possession of a firearm by a felon.

The case proceeded to trial on January 25, 2011. Broward County Sheriffs Deputy Joseph Sedawie testified that he was driving in the Dania Beach area on the evening of October 25, 2009 looking for a suspect connected to a recent commercial theft. The deputy pulled into an alleyway and saw a male and female walking toward the deputy’s vehicle. Deputy Sedawie smelled the odor of marijuana, so he got out of his vehicle to investigate, at which point he observed the male “reach down to his left ankle and retrieve a shiny metal object and discard it approximately a foot away from him into a bush line that he was standing by.” Deputy Sedawie identified Collazo as the male in the alleyway that night.

No more than a minute later, Deputy Sedawie found a .22 caliber firearm in the bushes near where he observed Collazo toss the shiny object. Deputy Sedawie testified that Collazo denied that the firearm was his and claimed instead that he was smoking a marijuana cigar and that was the object he discarded into the bushes. Deputy Sedawie recalled searching the area for a marijuana cigar but found nothing other than the gun.

Upon reviewing Collazo’s criminal background at the scene, Deputy Sedawie discovered that Collazo was a convicted felon and arrested him. The firearm was not processed for fingerprints because it was wet.

Collazo’s wife testified that on the night in question she and her husband walked their dogs, during which time Collazo smoked a marijuana cigar. She testified that she was certain her husband did not have a gun on his person. Finally, Collazo testified in his own defense. He denied having a gun at any point and said that he knew that he could not possess one.

After both sides rested, the state and defense counsel discussed and negotiated proposed jury instructions. These discussions were not on the record. During the charge conference, they presented the jury instructions, which included instructions on both actual and constructive possession of a firearm. After closing arguments, the trial court then instructed the jury pursuant to the agreed-upon instructions, which included both actual and constructive possession. The attorneys also discussed the verdict form with the trial court. They disagreed primarily over how to exclude language from the verdict form relating to lesser included offenses. Neither side addressed whether to include a special interrogatory or special verdict form. The jury returned a verdict finding Collazo guilty of possession of a firearm by a convicted felon. The jury was not presented with a special interrogatory or special verdict form to indicate which theory of possession it used to determine guilt.

Prior to the sentencing hearing, defense counsel filed a memorandum advising the trial court that the mandatory-minimum statute was not applicable because the jury’s verdict did not clearly reflect a finding that Collazo was in actual possession of a firearm. At the sentencing hearing, the trial court agreed with Collazo and found that because the jury was instructed on both actual and constructive possession, it was impossible to discern on what possession theory the jury convicted Collazo without a special interrogatory or verdict form. The trial court did not impose the three-year, mandatory-minimum sentence, and instead imposed a sentence of five years’ probation, which the state appeals. See Fla. R.App. P. 9.140(c)(1)(M).

“The standard of review for the legality of a criminal sentence is de novo.” State v. Valera, 75 So.3d 330, 331-32 (Fla. 4th DCA 2011).

Section 775.087(2)(a)1.r., Florida Statutes (2009), provides that an individual convicted of possession of a firearm by a convicted felon shall be subject to a three-year mandatory-minimum sentence; however, it is only applicable if the defendant is found to have been in actual possession of a firearm. See Banks v. State, 949 So.2d 353, 355 (Fla. 4th DCA 2007) (“To impose a three-year mandatory minimum sentence ... the factfinder must make a specific finding of actual possession.”).

In the instant case, we cannot say that the jury made a specific finding of actual possession because the jury was instructed on both actual and constructive possession and returned a general verdict which did not indicate which theory of possession it used. The state invited this error by acquiescing to this instruction. See Tomas v. State, — So.3d —, 2012 WL 1605294 (Fla. 4th DCA 2012) (“Under the rule of invited error, a party may not make or invite error at trial and then take advantage of the error on appeal.” (citation and internal quotation marks omitted)).

Therefore, we affirm the sentence without the mandatory minimum.

Affirmed.

TAYLOR and GERBER, JJ., concur.


text:
    Michael BARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2047.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Rehearing Denied Aug. 17, 2012.
    Michael Barrett, Chipley, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ives v. State, 993 So.2d 117,120 (Fla. 4th DCA 2008).

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


author: VILLANTI, Judge.

text:
    THI HOLDINGS, LLC, Petitioner, v. Brenda S. SHATTUCK, as Personal Representative of the Estate of Arlene Anne Townsend, Deceased, Respondent.
    No. 2D11-5913.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.

      Keith D. Skorewicz and J. Carter Andersen of Bush Ross, P.A., Tampa; and Ben Rottenborn of Kirkland & Ellis, LLP, Chicago, IL, for Petitioner.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Respondent.
   VILLANTI, Judge.

THI Holdings, LLC, petitions for a "writ of certiorari directed to the trial court’s order that denied its motion to have its out-of-state counsel, Gabor Balassa, appear pro hac vice in this case. Because the trial court applied the incorrect law when considering the motion, we grant the petition, quash the order, and remand with directions to admit Balassa pro hac vice.

The underlying facts are straightforward. Brenda S. Shattuck, as Personal Representative of the Estate of Arlene Anne Townsend, Deceased (the Estate), sued THI Holdings and twenty-five other defendants alleging that all of the defendants were involved in the negligent treatment of Ms. Townsend while she was a patient at the Auburndale Oaks nursing home. THI Holdings retained Balassa, a partner with Kirkland & Ellis, LLP, in Chicago, to represent it in this case because Balassa had represented THI Holdings in other matters in the past. Balassa is an Illinois attorney in good standing with the Illinois bar.

THI Holdings’ local counsel filed a verified motion seeking to have Balassa admitted pro hac vice in Florida, and Balassa submitted an affidavit in support of the motion. The Estate filed a notice of objection to Balassa’s admission. In that notice, the Estate did not contest any of the sworn representations contained in THI Holdings’ motion or Balassa’s affidavit. Instead, the sole basis for the Estate’s objection was its assertion that Balassa had “irreconcilable conflicts of interest.” However, the notice did not explain what conflicts the Estate believed existed or how it had standing to raise these alleged conflicts.

At the hearing on THI Holdings’ motion to admit Balassa pro hac vice, the Estate argued that Balassa should not be admitted because he had previously represented two different entities who were also defendants in the Estate’s action — Trans Healthcare, Inc., and Trans Health Management, Inc. The Estate admitted that the alleged prior representation was in completely separate matters. Additionally, the Estate did not contend that these prior matters were substantially related to the current case. Moreover, the Estate did not argue that Balassa had ever represented either the Estate or any party related to the Estate in any matter whatsoever. Instead, it argued only that Ba-lassa’s prior representation of Trans Healthcare, Inc., and Trans Health Management, Inc., might result in these defendants raising Balassa’s alleged conflict of interest at some point during the current litigation and that, if they did so, it would delay justice for the Estate. Notably, the Estate offered no evidence to support its stated concerns and relied solely on the arguments of counsel concerning these alleged potential conflicts of interest.

In response, THI Holdings argued that the Estate’s concerns did not impact the question of whether Balassa should be admitted pro hac vice. Further, THI Holdings argued that the Estate had no standing to raise alleged conflicts of interest between the various defendants. Nevertheless, the trial court denied THI Holdings’ motion to have Balassa admitted pro hac vice. THI Holdings now seeks certio-rari review of that order.

The standard by which a petition for writ of certiorari is reviewed is quite narrow. A petitioner seeking a writ of common law certiorari “must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). “Certiorari is available to review orders denying a motion to appear pro hac vice.” Brooks v. AMP Servs., Ltd., 979 So.2d 435, 437 (Fla. 4th DCA 2008); see also Pepsico, Inc. v. Roque, 743 So.2d 160,161 (Fla. 3d DCA 1999) (granting certiorari to review an order denying the admission of attorneys pro hac vice); Keller Indus., Inc. v. Yoder, 625 So.2d 82, 82 (Fla. 3d DCA 1993) (same). The reason for this is a practical one: since neither the lawyer nor his firm are “currently involved in the litigation and he is not otherwise a party,” the lawyer is left “with no remedy on the final appeal of the underlying litigation.” Clare v. Coleman (Parent) Holdings, Inc., 928 So.2d 1246, 1248 (Fla. 4th DCA 2006). Moreover, the effect of the court’s ruling is to deny a party its counsel of choice, which also constitutes a material injury that cannot be remedied on postjudgment appeal. See Akrey v. Kindred Nursing Ctrs. E., LLC, 837 So.2d 1142, 1144 (Fla. 2d DCA 2003). Thus, the only question in this case is whether the trial court departed from the essential requirements of the law when it denied Balassa’s motion for admission pro hac vice.

The supreme court explained the law underlying the admission pro hac vice requirements in Huff v. State, 569 So.2d 1247,1249-50 (Fla.1990):

[R]ule 2.060(b), Florida Rules of Judicial Administration, provides:
(b) Foreign Attorneys. Upon motion filed with a court showing that an attorney is a member in good standing of the bar of another state, attorneys of other states may be permitted to appear in particular cases in a Florida court. A request for an appearance shall be submitted before oral arguments in an appellate court proceeding and before trial in a trial court. Attorneys of other states shall not do a general practice unless they are members of The Florida Bar in good standing.
Likewise, rule 9.440(a) of the Florida Rules of Appellate Procedure provides:
(a) Foreign Attorneys. Attorneys who are members in good standing of the bar of another jurisdiction may be permitted to appear in a proceeding if a motion to appear has been granted.
The Committee Notes to rule 9.440(a) make clear that “[t]his rule leaves disposition of motions to appear to the discretion of the court.” Where the action of the trial court is discretionary, the order of the lower court will not be disturbed on appeal unless an abuse of discretion is clearly shown. See West Shore Restaurant Corp. v. Turk, 101 So.2d 123 (Fla.1958). The following statement of the test for review of a judge’s discretionary power has been cited with favor by this Court:
Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.
Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980), (quoting Delno v. Market Street Ry. Co., 124 F.2d 965, 967 (9th Cir.1942)). The Court further observed that
[t]he discretionary power that is exercised by a trial judge is not, however, without limitation.... The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result. The trial courts’ discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner.
Canakaris, 382 So.2d at 1203 (emphasis added)....
Although the denial of such a motion is within the discretion of the trial court, the ruling should be based on matters that appear of record before the court. For example, something which casts doubt upon whether the applicant is actually a member of the bar of another jurisdiction or whether, if such a member, the applicant is a member in good standing, may support a denial of the motion. See Fla. R.App. P. 9.440(a).

(Footnotes omitted; underline emphasis added.) Cf. Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553, 1559 (11th Cir.1997) (noting that “[a]dmission to a state bar creates a presumption of good moral character that cannot be overcome merely by the whims of the [trial ejourt. An applicant for admission pro hac vice who is a member in good standing of a state bar may not be denied the privilege to appear except ‘on a showing that in any legal matter ... he has been guilty of unethical conduct of such a nature as to justify disbarment of a lawyer admitted generally to the bar of the court’ ” (quoting In re Evans, 524 F.2d 1004, 1007 (5th Cir.1975))). As the rules and ease law demonstrate, a motion for admission pro hac vice, while subject to the discretion of the trial court, should usually be granted on a pro forma basis if it is facially sufficient and if the attorney is a member in good standing of the bar of another jurisdiction.

Here, THI Holdings filed a facially sufficient verified motion, and Balassa filed a supporting affidavit that asserted that he met the standards for admission pro hac vice. The Estate did not object to Balas-sa’s admission based on any information contained in that motion. Nor did it challenge any of the assertions in Balassa’s affidavit or point to any facts that would “east doubt” on whether he was an attorney in good standing of another bar or otherwise met the qualifications for admission pro hac vice. Thus, the record does not establish any reasonable basis for finding that Balassa was not qualified to be admitted pro hac vice. In the absence of such a reasonable basis, the trial court departed from the essential requirements of the law in denying THI Holdings’ motion.

In this court, as it did in the trial court, the Estate argues that THI Holdings’ motion was properly denied because of potential conflicts of interest Balassa allegedly had with two codefendants. This argument has no merit for several reasons.

First, regardless of any conflicts of interest Balassa may have, those conflicts would not be a basis for denying him admission pro hac vice. Rule 2.510(a) sets forth the requirements for admission pro hac vice, and the absence of conflicts of interest is not among them. Thus, the existence of a potential conflict of interest is not a legally permissible basis for denying admission pro hac vice. See, e.g., Srour v. Srour, 733 So.2d 593 (Fla. 5th DCA 1999) (holding that it was improper for a trial court to revoke an attorney’s pro hac vice status based on an alleged conflict of interest and that his disqualification based on his familial relationship with one of the parties constituted an abuse of discretion); see also Schlumberger Techs., 113 F.3d at 1562-63 (reversing denial of pro hac vice motion because there was no evidence that counsel violated any ethical rules that would justify the denial of admission even though he had interviewed opposing parties as part of a legal audit prior to the pending litigation being started). To the extent that the trial court denied THI Holdings’ motion based on the existence of Balassa’s potential conflicts of interest, the decision constituted an application of the incorrect law, which in and of itself is a departure from the essential requirements of the law that warrants granting certiorari relief. See, e.g., Housing Auth. of City of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004) (noting that a departure from the essential requirements of the law “has been held synonymous with a failure to apply ‘the correct law’ ”).

Second, even if Balassa’s potential conflicts of interest were a relevant consideration when deciding a motion for admission pro hac vice, the Estate in this case did not have standing to raise the alleged conflicts. As a general proposition, “a party ... does not have standing to seek disqualification where, as here, there is no privity of contract between the attorney and the party claiming a conflict of interest.” Cont’l Cas. Co. v. Przewoznik, 55 So.3d 690, 691 (Fla. 3d DCA 2011); see also Anderson Trucking Serv., Inc. v. Gibson, 884 So.2d 1046, 1050-51 (Fla. 5th DCA 2004). Here, as a matter of undisputed fact, there is no privity between the Estate and Balassa or his firm. And while there is a limited exception to this standing rule for parties who “stand in the shoes” of a former client, see State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 632-33 (Fla.1991), the Estate cannot demonstrate that it has any shoes whatsoever in which to stand to seek disqualification of Balassa. Thus, even if potential conflicts of interest were properly considered by the trial court in making a pro hac vice admission determination, the Estate had no standing to raise those conflicts and thus could not use them as a basis to seek the denial of Balassa’s admission.

Third, even if the Estate could convince this court that it had standing to raise the disqualification issue, it cannot establish the legal requirements for disqualification. A party seeking to disqualify opposing counsel based on a conflict of interest must demonstrate that:

(1) an attorney-client relationship existed, thereby giving rise to an irrefutable presumption that confidences were disclosed during the relationship, and (2) the matter in which the law firm subsequently represented the interest adverse to the former client was the same or substantially related to the matter in which it represented the former client.

K.A.W., 575 So.2d at 633; see also Kaplan v. Divosta Homes, L.P., 20 So.3d 459, 462 (Fla. 2d DCA 2009).

Here, there is not now and never has been any attorney-client relationship between the Estate and Balassa. Further, none of the Estate’s allegations show that the current litigation is “the same or substantially related to” Balassa’s prior representation of Trans Healthcare, Inc., or Trans Health Management, Inc. Thus, the Estate has not established either of the two required elements necessary to even attempt to successfully seek disqualification of Balassa.

Finally, even if the disqualification issue was properly before the trial court— which it was not — the trial court “departed from the essential requirements of the law by relying on unsworn argument as its only factual basis” for supporting its ruling. Bon Secours-Maria Manor Nursing Care Ctr., Inc. v. Seaman, 959 So.2d 774, 780 (Fla. 2d DCA 2007); see also Akrey, 837 So.2d at 1145 (granting certiorari and quashing an order disqualifying opposing counsel that was based on incompetent affidavits and a “bald assertion” by un-sworn counsel). Here, the Estate filed no verified pleading and no affidavits, and it relied on nothing more than the bald assertions of its counsel to support its argument that Balassa had disqualifying conflicts of interest. Thus, the trial court’s decision to rely on these unsworn assertions constituted a departure from the essential requirements of the law.

For all of these reasons, the trial court departed from the essential requirements of the law when it denied THI Holdings’ motion to admit Balassa pro hac vice. Therefore, we grant the petition for certio-rari, quash the order denying THI Holdings’ motion, and remand for the trial court to admit Balassa pro hac vice.

Petition granted.

LaROSE and CRENSHAW, JJ., Concur.

      . The relationship between these three parties is not fully explained in the record. From some of the arguments made at the hearing, it appears that THI Holdings was — at some point — the parent company of Trans Healthcare, Inc., and that Trans Healthcare, Inc., was the parent company of Trans Health Management, Inc. It also appears that both Trans Healthcare, Inc., and Trans Health Management, Inc., are now defunct. However, the exact relationship between these parties and their current status is not pertinent to our analysis.

        . While rule 2.060(b) has been renumbered as rule 2.510(a), the general requirements for admission pro hac vice remain the same. In addition, rule 2.510(b) now provides a form motion that the attorney seeking admission pro hac vice must complete and verify.


text:
    Paul James TYSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4644.
    District Court of Appeal of Florida, Second District.
    July 11, 2012.
    Paul James Tyson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Paul James Tyson appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.800(a), in which he raised one ground for relief. We affirm the postcon-viction court’s denial of Tyson’s claim but write to clarify Tyson’s current sentence.

On January 30, 2001, Tyson was convicted of several crimes in four different cases — ease numbers CF00-5614, CF00-4484, CF00-5214, and CF00-5215 — and sentenced to a total of thirty-two months’ imprisonment followed by five years’ probation. On May 5, 2006, in case number CF06-0600, Tyson was convicted of violating section 794.05, Florida Statutes (2005), a second-degree felony, and was sentenced as a habitual felony offender (HFO) to two years’ imprisonment followed by thirteen years’ probation. On October 5, 2009, Tyson violated probation in case number CF06-0600 and was sentenced to eight years’ imprisonment, a sentence for which he alleged he was again classified as an HFO.

In his rule 3.800(a) motion, Tyson claims that he lacks the requisite predicate felonies to have ever been classified as an HFO. In support, Tyson noted that “to be a ‘prior felony’ for the purpose of habituali-zation, the offense must ‘have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.’ ” Smith v. State, 764 So.2d 571, 571 (Fla.2000) (quoting § 775.084(5), Fla. Stat. (1995)). Furthermore, “where the requisite predicate felonies essential to qualify a defendant for habitualization do not exist as a matter of law and that error is apparent from the face of the record, rule 3.800(a) can be used to correct the resulting habitual offender sentence.” Bover v. State, 797 So.2d 1246,1247 (Fla.2001).

Although Tyson was convicted in four different cases on January 30, 2001, he claimed that these convictions were all sentenced in the same sentencing proceeding and that he had no other convictions— outside of violations of probation — prior to his new conviction in 2006. Based on this record and the fact that HFO treatment requires two or more prior convictions, see § 775.084(1)(a)(1), Fla. Stat. (2005), Tyson alleged that his treatment as an HFO is illegal because, for the purpose of HFO classification, he has only one prior conviction.

Pursuant to an order to show cause why this case should not be reversed and remanded, the State pointed to an inconsistency in Tyson’s sentencing record. Specifically, the State noted that while the written judgment and sentence from his original 2006 conviction for case number CF06-0600 indicated HFO treatment, the written judgment and sentence for the 2009 violation of probation (VOP) in that case did not. Recognizing that the oral pronouncement is controlling, see Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003), the State noted that the transcript from Tyson’s VOP sentencing in 2009 would resolve any uncertainty as to the details of his sentence. Furthermore, in State v. Akins, 69 So.3d 261, 270-72 (Fla.2011), the supreme court held that the failure to orally sentence a defendant as an HFO upon revocation of probation — even though he was originally sentenced as an HFO for the underlying offense — means that the defendant does not retain HFO classification after the revocation of probation.

In response to an order to supplement the record, this court obtained a copy of the transcript of the October 5, 2009, sentencing on the revocation of probation in case number CF06-0600. The proceedings contain no mention of HFO treatment. Therefore, while Tyson’s apparent treatment as an HFO at the original sentencing in 2006 may have been illegal, his current non-HFO sentence of eight years’ imprisonment on a second-degree felony is not. Because Tyson is challenging a legal sentence, we affirm the postconviction court’s denial of Tyson’s motion. However, to the extent that any confusion exists about the details of Tyson’s sentence, we write to clarify that Tyson is not currently designated, nor should he be treated, as an HFO.

Affirmed.

WHATLEY and WALLACE, JJ., Concur.


text:
    Willie Charles HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2221.
    District Court of Appeal of Florida, First District.
    July 11, 2012.
    Nancy A. Daniels, Public Defender, and Jennifer P. Lavia, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of a commitment order entered under the Jimmy Ryce Act. He contends that the trial court erred by denying his peremptory challenge to a female juror, by admitting unreliable hearsay evidence concerning victims G.B. and L.J., and by preventing him from attacking the credibility of these victims based on their past crimes of dishonesty. We reverse and remand for a new trial because the trial court erred in denying the peremptory challenge.

During jury selection Appellant sought to use a peremptory challenge on a young, female prospective juror. The State objected to the challenge and asked for a gender-neutral reason, noting that Appellant previously struck one prospective female juror and attempted to strike another. Defense counsel replied that the prospective juror at issue was young and did not appear to be strong in her convictions. Counsel expressed concern that the juror would be influenced by other jurors if her views were in the minority. The trial court denied the challenge, stating in reference to defense counsel’s reason for the strike: “I don’t believe it’s gender-neutral.” This was error.

The three-step procedure in Melbourne v. State, 679 So.2d 759 (Fla.1996), applies where, as here, a party objects to the use of a peremptory challenge on gender grounds. First, the objecting party must make a timely objection, show that the prospective juror is a member of a distinct protected group (here, female), and request that the moving party provide its reason for the strike (step one). Id. at 764. The burden then shifts to the proponent of the strike to present a gender-neutral explanation for striking the disputed juror (step two). Id. If the court finds that the proffered reason is not facially neutral, it must sustain the objection to the strike. Id. at 764 n. 7 (“If the explanation is not facially neutral, the inquiry is over; the strike will be denied.”). Otherwise, the court should inquire of the opponent of the strike as to why the proffered reason is pretextual and, then, based on all the attendant circumstances, the court must determine whether the proffered reason was “genuine” or merely a pretext for a discriminatory motive (step three). Id. at 764; see also Hayes v. State, 94 So.3d 452, 461-64, 2012 WL 1123745 (Fla. 2012).

The error in this case occurred in step two. The issue before the trial court in step two is the facial neutrality of the proponent’s reason for the strike, and unless a discriminatory intent is apparent in the reason, the court should find the reason to be neutral. See Melbourne, 679 So.2d at 763; see also Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859,114 L.Ed.2d 395 (1991) (explaining in the context of an objection to a preemptory challenge to a racial minority that “[a] neutral explanation ... means an explanation based on something other than the race of the juror”). This is true even if the reason given is not persuasive or even plausible. Melbourne, 679 So.2d at 768 (quoting Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769,1771, 131 L.Ed.2d 834 (1995)).

Here, the reason given by defense counsel for the peremptory challenge was that the prospective juror was young and malleable. This reason, on its face, is gender-neutral. See, e.g., Cobb v. State, 825 So.2d 1080 (Fla. 4th DCA 2002) (holding that the State’s explanation for the use of a peremptory strike, that the prospective juror was young and a student, was facially race-neutral). Accordingly, the trial court should have determined that the reason was gender-neutral and then proceeded with the third step in the Melbourne analysis to determine whether the reason was genuine.

The State concedes that the proffered reason for the strike was facially gender-neutral, but argues that the record suggests that the trial court’s ruling was actually intended to be a finding that the reason was not genuine. We reject this argument because, although a trial court is not required to follow a specific script or incant particular words in conducting the Melbourne analysis, see Hayes, 94 So.3d at 463, we have to assume that the trial court in this case said what it meant and meant what it said in ruling that the reason for the strike was not gender-neutral. Indeed, under these circumstances, it would be improper for this court to assume that the trial court conducted a genuineness inquiry and determined that the reason for the strike was pretextual. Id. at 463 (“[WJhere the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court ... cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court.”).

The trial court’s erroneous determination that the proffered reason for the peremptory challenge at issue in this case was not gender-neutral and its subsequent failure to carry out step three of the Melbourne analysis constitutes per se reversible error. Id. at 464-65; see also Russell v. State, 879 So.2d 1261 (Fla. 3d DCA 2004) (holding that the per se reversible error occurred in the trial court’s failure to accept a facially race-neutral reason for a strike and failing to then inquire as to the genuineness of the reason); Anderson v. State, 750 So.2d 741, 744 (Fla. 3d DCA 2000) (reversing and holding that the trial court erred in finding that the defense’s reason for a peremptory strike was not facially race or gender-neutral and failing to carryout step three of the Melbourne analysis). Accordingly, we are compelled to reverse the order on appeal and remand for a new trial.

REVERSED and REMANDED.

DAVIS, WETHERELL, and SWANSON, JJ„ concur.

      . In light of this disposition, we need not reach Appellant’s additional arguments on appeal. However, we note that the State properly conceded at oral argument that the trial court erred in preventing Appellant from impeaching the victims with their prior crimes of dishonesty. See § 90.610(1), Fla. Stat. ("A party may attack the credibility of any witness ... by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year ... or if the crime involved dishonesty or false statement regardless of the punishment....”); § 90.806(1), Fla.Stat. (providing that a hearsay declarant may be impeached in the same manner as a witness who testified at trial).


author: CASANUEVA, Judge.

text:
    STATE of Florida, Appellant, v. Mark A. Dungan CARPENTER, Appellee.
    No. 2D11-3515.
    District Court of Appeal of Florida, Second District.
    July 11, 2012.

      Pamela Jo Bondi, Tallahassee, and Helene S. Parnés and John M. Klawikofsky, Assistant Attorneys General, Tampa, for Appellant.
    Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, P.A., Sarasota, and John Torraco of Law Office of John Torraco, P.L., Grove City, for Appellee.
   CASANUEVA, Judge.

The State appeals the trial court’s order suppressing the statements made by Mark A. Dungan Carpenter during an interview with members of the Sarasota County Sheriffs Office. The court ruled that law enforcement had Mr. Carpenter in custody and had failed to give him his Miranda warnings before eliciting his incriminating statements. Because we conclude that the trial court applied the incorrect legal standard, we reverse.

A person cannot be compelled to be a witness against himself, so the constitutional protections afforded by Amendment V to the United States Constitution and by article I, section 9 of the Florida Constitution are “fully applicable during a period of custodial interrogation.” Ramirez v. State, 739 So.2d 568, 572 (Fla.1999). To determine whether these protections apply, the supreme court has “adopted an objective, reasonable-person framework in determining whether a suspect was in custody” while he was being interrogated. Peterson v. State, 94 So.3d 514, 2012 WL 1722581 (Fla.2012) (citing Ross v. State, 45 So.3d 403, 415 (Fla.2010), cert. denied,, — U.S. —, 131 S.Ct. 925, 178 L.Ed.2d 803 (2011)). “The ultimate inquiry is twofold: (1) the ‘circumstances surrounding the interrogation’; and (2) ‘given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.'” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 663, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)) (emphasis added).

But in this case, the trial court did not use a reasonable person standard. It erroneously concluded in its written order that “[t]his analysis is subjective[,] not objective.” The court compounded the error by concluding that “in the mind of the Defendant, he was not free to leave.” The trial court should have applied an objective standard.

Accordingly, we reverse the trial court’s order of suppression and remand for further consideration utilizing the objective, reasonable person standard. Additionally, the trial court is directed to consider and rule upon Mr. Carpenter’s pending suppression claims so that should there be a subsequent appeal by either party, the issues may be considered at one time and not in a piecemeal manner.

Reversed and remanded with instructions.

SILBERMAN, C.J., and KELLY, J., Concur.

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

      . To aid in its "ultimate inquiry,” the trial court properly utilized four factors that our supreme court has provided to analyze relevant case-specific facts. See Peterson, 94 So.3d at 527-28 (quoting Ross, 45 So.3d at 415). However, the trial court erroneously viewed the facts from a subjective viewpoint. We cannot determine whether the trial court would have come to the same result if it had utilized the proper objective standard.


author: TAYLOR, J.

text:
    Dr. Tim IOANNIDES and Tim Ioannides, M.D., LLC, Appellants, v. Dr. Richard A. ROMAGOSA, Appellee.
    No. 4D10-4670.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Larry A. Klein of Holland & Knight LLP, West Palm Beach, and Louis B. Vo-celle, Jr. of Vocelle & Berg, LLP, Vero Beach, for appellants.
    Daniel B. Rogers, Paul T. Reid, and Alfred J. Saikali of Shook, Hardy & Bacon L.L.P., Miami, and Theodore C. Miloch, II and Carlos A. Zumpano of Infante Zumpa-no, Coral Gables, for appellee.
   TAYLOR, J.

Dr. Tim Ioannides appeals a final judgment entered in favor of Dr. Ricardo Ro-magosa after a jury found him liable for both breach of contract and fraudulent inducement. He argues that the trial court erred in denying his motion for summary judgment on the fraudulent inducement claim because any alleged fraudulent oral representations that he made to Dr. Ro-magosa regarding his earnings were adequately addressed in a written employment agreement subsequently executed by the parties. We agree that the contract between the parties precluded relief on the fraud claim and reverse.

Dr. Ioannides and Dr. Romagosa met during Dr. Romagosa’s first year of medical school. At that time, Dr. Ioannides was further along in his studies. He opened a dermatology practice after finishing his residency. His practice was very successful, and he began opening satellite offices throughout the Treasure Coast. Dr. Ioannides recruited Dr. Romagosa, who was nearing the end of his residency, to open one of his satellite offices in Stuart and work with him for three years under a contract. It was anticipated that after three years Dr. Romagosa would become a partner. According to the allegations in the fraud in the inducement claim brought by Dr. Romagosa, Dr. Ioannides told him that “if he worked for Defendants his total annual compensation from salary and bonuses would easily exceed $500,000 per year for the years prior to making partner.”

Thereafter, Dr. Ioannides and Dr. Ro-magosa entered into a contract which contained specific provisions regarding how Dr. Romagosa’s salary and bonuses would be calculated:

F. Employee Compensation. For all services rendered by Employee under this agreement, Employee shall be entitled to a base salary plus production bonus:
Base salary:
Working three days per week (August 20th, 2003 to December 31st, 2003), base salary of $150,000 annually;
Working 4 days per week (January 1st, 2004 to August 31st, 2004), base salary of $200,000 annually;
Working 5 days per week (September 1st, 2004-August 31st, 2006), base salary of $250,000 annually.
Romagosa is required to work 4 full days per week on January 1st, 2004 and required to start 5 full days per week on September 1st, 2004.
Production bonus:
During the first 12 months of employment (August 20th, 2003 to August 20th, 2004); after office expenses (including Romagosa base salary and billing fees as discussed below) of setting up and running the new office (Stuart office plus Collagen, Botox, and Peels of the any office location as applicable to Romago-sa’s practice; plus advertising fees for the Vero Beach office and Stuart) plus 5% of aforementioned expenses, the next 50,000 in collections will be added to Romagosa base salary. The next $1,000,000 in profits after expenses will be split with 60% of those collections going to Romagosa and 40% to Ioan-nides. All profits above $1,000,000 will be split 80% to Romagosa and 20% to Ioannides. Romagosa would be responsible for his portion billing fees. The billing fees will be calculated based on the percentage of total revenue that Ro-magosa collects. Romagosa is to enter into a partnership track after the first year of employment (starting September 1st, 2004), during this time, in order to maintain a partnership track, he must work a 5 day, 40 hour workweek. He would be eligible for partnership benefits after a consecutive of two years of the aforementioned full-time work. The specific details and terms of such partnership are to be discussed at the time Romagosa starts full-time employment which is required of employee to be September 1st, 2004.
After the first 12 months of employment, the bonus with will be calculated as follows: After office expenses (as defined above) all profits will be split 80% to Romagosa and 20% to Ioannides.

The contract also contained an integration clause:

L. Integration. This Agreement sets forth the entire agreement between the Parties with regard to the subject matter hereof. All prior agreements, and covenants, express or implied, oral or written, with respect to the subject matter hereof, are hereby superseded by this agreement. This is an integrated agreement. Should the language of this contract conflict with any Employer manual or memorandum, the language of this contract shall control unless the external document specifically states that it shall act as a modification of company employment contracts and the Employee consents to this modification.

Dr. Romagosa began working for Dr. Ioannides, but the relationship soon soured. Dr. Romagosa left the dermatology practice after twenty-three months. He then filed suit against Dr. Ioannides, claiming that Dr. Ioannides breached the employment contract and had fraudulently induced him into entering into it by orally representing that he would earn more than $500,000 per year.

Dr. Ioannides filed a motion for summary judgment as to the fraud claim. He argued that the claim for fraudulent inducement failed as a matter of law because a party may not recover for fraudulent inducement when the allegedly false statements were adequately addressed by a subsequent written agreement entered into between the parties. The trial court denied the motion and the case proceeded to trial. The jury awarded Dr. Romagosa $481,000 for bonuses he was due under the contract and $760,000 in damages for the fraudulent inducement claim. This appeal concerns only the fraud damages award.

An order denying a motion for summary judgment is reviewed de novo. Tarin v. Sniezek, 942 So.2d 458, 460 (Fla. 4th DCA 2006) (citing Fla. Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003)). Additionally, the interpretation of a written document, in this case a contract, also presents a question of law and is reviewed de novo. Port-A-Weld, Inc. v. Padula & Wadsworth Constr., Inc., 984 So.2d 564, 568 (Fla. 4th DCA 2008) (citing Sumner Grp., Inc. v. M.C. Distributec, Inc., 949 So.2d 1205,1206 (Fla. 4th DCA 2007)).

Dr. Romagosa argues that our recent decision in Sunrise Lakes Condominium Apts. Phase III, Inc. 5 v. Frank, 73 So.3d 901 (Fla. 4th DCA 2011), bars Dr. Ioannides from challenging the trial court’s denial of his motion for summary judgment on appeal because judgment was entered against him after a full trial on the merits. In Sunrise Lakes, we stated “that any error in failing to enter summary judgment on behalf of [the appellant] is moot in light of the trial court’s judgment against [the appellant] at trial.” Id. However, we have previously addressed the denial of a motion for summary judgment when the issues raised by the parties presented a pure question of law. E.g., Tunnage v. Green, 947 So.2d 686, 688-89 (Fla. 4th DCA 2007) (reversing trial court’s denial of motion for summary judgment because trial court misapplied the law). The Florida Supreme Court and other district courts have also addressed the denial of a party’s pre-trial motion for summary judgment after a full trial on the merits. See, e.g., Shuster v. N.Y. Life Ins. Co., 351 So.2d 62, 64-65 (1977) (reversing trial court’s denial of pre-trial motion for summary judgment because plaintiff established she was entitled to relief as a matter of law), overruled on other grounds, 373 So.2d 916 (Fla.1979); Ray-Mar Beauty Coll., Inc. v. Ellis Rubin Law Offices, P.A., 475 So.2d 718, 718 (Fla. 3d DCA 1985) (same); Give Kids the World, Inc. v. Sanislo, — So.3d —, 2012 WL 1645607 (Fla. 5th 2012) (same).

Sunrise Lakes found support for its holding in a decision of the Georgia Court of Appeals, Certain Underwriters at Lloyd’s of London v. Rucker Construction, Inc., 285 Ga.App. 844, 648 S.E.2d 170 (Ga.Ct.App.2007). In Rucker, the court stated:

After verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case. Stated differently, where a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at trial authorizes the verdict (judgment) on that issue, any error in overruling the motion for summary judgment is harmless.

Id. at 172 (emphasis in original) (quotations omitted). When the evidence at trial does not authorize the verdict, then the denial of a motion for summary judgment is not moot. Schirmer v. Amoroso, 209 Ga.App. 682, 434 S.E.2d 80, 82 (Ga.Ct.App.1993).

The Supreme Court has recently addressed this issue and noted that there is a distinction between a motion for summary judgment that is denied for evidentiary reasons and a motion for summary judgment that is denied based upon the trial court’s interpretation of the law. See Ortiz v. Jordan, — U.S.—, 131 S.Ct. 884, 892, 178 L.Ed.2d 703 (2011). In Ortiz, the Court held that a party may not challenge the denial of its motion for summary judgment after a full trial on the merits. Id. at 888-89. However, the Court limited its holding by clarifying that it was not addressing cases dealing with purely legal issues such as cases dealing with “disputes about the substance and clarity of preexisting law.” Id. at 892. This distinction has been recognized by several federal circuit courts. See, e.g., Banuelos v. Constr. Laborers’ Trust Funds for S. Cal., 382 F.3d 897, 902 (9th Cir.2004) (“This general rule, however, does not apply to those denials of summary judgment motions where the district court made an error of law that, if not made, would have required the district court to grant the motion.” (citing Pavon v. Swift Transp. Co., Inc., 192 F.3d 902, 906 (9th Cir. 1999))); see also Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1521 (10th Cir.1997) (“[Wjhen the material facts are not in dispute and the denial of summary judgment is based on the interpretation of a purely legal question, such a decision is appealable after final judgment.” (citing Wilson v. Union Pac. R.R. Co., 56 F.3d 1226, 1229 (10th Cir.1995); Ruyle v. Cont’l Oil Co., 44 F.3d 837, 841-42 (10th Cir.1994))); Fencorp, Co. v. Ohio Ky. Oil Corp., 675 F.3d 933, 940 (6th Cir.2012) (“But because Ortiz leaves open the possibility that cases ‘involving] ... [only] disputes about the substance and clarity of pre-existing law’ may still be considered, we briefly consider two legal arguments for summary judgment on the state law claims.” (alterations in original) (internal citation omitted) (quoting Ortiz, 131 S.Ct. at 892) (citing Owatonna Clinic-Mayo Health Sys. v. Med. Protective Co. of Fort Wayne, Ind., 639 F.3d 806, 809-10 (8th Cir.2011))).

We conclude that when, as here, the material facts are not in dispute and the denial of summary judgment is based on the resolution of a purely legal question, such a decision is appealable after final judgment. Thus, Sunrise Lakes does not apply to this case. Here, no evidence was presented at trial that “authorize[d] the verdict” and rendered denial of the motion for summary judgment moot. Dr. Ioannides was entitled to judgment on the fraudulent inducement claim as a matter of law.

We also reject Dr. Romagosa’s argument that Dr. Ioannides failed to move for summary judgment on the fraudulent misrepresentation claim regarding annual earnings and thus failed to properly preserve this argument for appeal. The record reflects that Dr. Ioannides’s motion for summary judgment on the fraudulent inducement claim, as well as his argument at the hearing on the motion, included the alleged misrepresentation about earning more than $500,000 per year. He argued then, as he does now on appeal, that Section F. of the Employment Agreement adequately addressed what Dr. Romagosa’s salary would be, and as such, negated his ability to rely upon the representations made by Dr. Ioannides concerning his annual earnings.

In his motion for summary judgment, Dr. Ioannides cited cases in support of this proposition that he relies upon in this appeal: Hillcrest Pacific Corp. v. Yamamura, 727 So.2d 1053 (Fla. 4th DCA 1999), and Mac-Gray Services, Inc. v. DeGeorge, 913 So.2d 630 (Fla. 4th DCA 2005).

In Hillcrest, we stated that “[a] party cannot recover in fraud for alleged oral misrepresentations that are adequately covered or expressly contradicted in a later written contract.” 727 So.2d at 1056 (citations omitted). There, we held that an allegation of fraud in the inducement pertaining to the purchase of a golf course was insufficient as a matter of law, where the agreement clearly stated the purchase price of the property was $9.3 million and thus barred any claim for fraudulent inducement based upon the real estate agent’s knowledge that the seller was only seeking to net $6.2 million. Id. at 1058.

Similarly, in Mac-Gray, we held that a sales representative’s statements that a new laundromat could expect near six-figure profits were negated by a subsequent contractual provision disclaiming any guarantee of profits. 913 So.2d at 633.

In this case, given the specific provisions in the contract detailing Dr. Romagosa’s salary and formula for computing bonuses, Dr. Romagosa cannot recover in fraud for alleged oral statements about potential earnings made prior to entering into the contract. Under Hillcrest, Dr. Romago-sa’s annual compensation was “ádequately covered” by the agreement.. Contrary to Dr. Romagosa’s argument, the complexity of the bonus formula did not cause it to be ambiguous so as to render the allegedly fraudulent oral representation of Dr. Ioan-nides actionable. Accordingly, the trial court erred when it denied Dr. Ioannides’s motion for summary judgment.

Having determined that the trial court erroneously denied Dr. Ioannides’s motion for summary judgment on the fraud claim, we remand with directions to vacate the $760,000 award on the fraudulent inducement claim and enter judgment in favor of Dr. Ioannides on this claim. Our holding on this issue moots Dr. Ioannides’s argument that the jury’s award on the fraudulent inducement claim and the breach of contract claim overlapped and constituted a double recovery.

Reversed and Remanded for proceedings consistent with this opinion.

STEVENSON and CIKLIN, JJ., concur.

      . We acknowledge that the Court addressed an interpretation of the Federal Rules of Civil Procedure and that its holding is not binding upon this court. However, Federal Rule of Civil Procedure 56 served as the foundation for Florida Rule of Civil Procedure 1.510. Authors' Comments, Fla. R. Civ. P. 1.510 (1967). As such, we find Ortiz and other federal cases to be persuasive on this issue.


author: MAY, C.J.

text:
    Cynthia J. SIMONSON, Appellant, v. PALM BEACH HOTEL CONDOMINIUM ASSOCIATION, INC., and Ottawa Properties 3, LLC, Appellees.
    No. 4D12-706.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Jonathan A. Berkowitz of Cohen, Norris, Wolmer, Ray, Telepman & Cohen, North Palm Beach, for appellant.
    Ana C. Malave of Tucker & Tighe, P.A., Fort Lauderdale, for appellee, Palm Beach Hotel Condominium Association, and Jonathan J. Alfonso of Wesoloski & Carlson, P.A., Miami, for appellee, Ottawa Properties 3, LLC.
   MAY, C.J.

A homeowner appeals an order denying her Objections to Judicial Sale and Motion to Set Aside Judicial Sale. She argues the trial court erred in denying her motion because no pre-sale publication notice was made, pursuant to section 45.031, Florida Statutes (2011). We agree and reverse.

After entering a judgment of foreclosure for $66,314.12, the trial court set the date of the foreclosure sale for several months later. The Final Judgment of Foreclosure stated that “the clerk of this Court shall sell the subject property at public sale ... to the highest bidder for cash ... in accordance with section ⅛5.031, Florida Statutes ” (emphasis added).

A third-party purchaser submitted the high bid of $100,100 in an online public auction. On the same date, the condominium association served, and filed with the trial court, a motion to vacate and reschedule the foreclosure sale because the Clerk of Court had indicated that the Clerk would not issue a Certificate of Title as the Notice of Sale had not been published. Upon receiving the association’s motion, the purchaser moved to confirm the foreclosure sale.

At the hearing, both the association’s and purchaser’s counsel presented the trial court with an agreed order. When the homeowner received a copy of the order, she learned that the order directed the Clerk of Court to issue a Certificate of Sale to the purchaser. Two days later, the Clerk of Court issued the Certificate of Sale, certifying that “Notice of Public Sale of the property described in the Order of Final Judgment was published in the Daily Business Review ... in the manner shown by the Proof of Publication.”

A day later, the homeowner served and filed her Objections to Judicial Sale and Motion to Set Aside Judicial Sale and Certificate of Sale, asserting that the “Plaintiff failed to publish the Notice of Sale.” The homeowner expressed her intention “to exercise her Right of redemption ... and deposit with the Clerk of Court’s Registry by tendering the performance due.”

Notwithstanding the Clerk’s certification that a Notice of Sale was published, the agreed order indicated that it was not. The Vice President of the Daily Business Review provided an affidavit, attesting that the Daily Business Review did not publish a Notice of Sale or issue any proof of publication for the property. The Clerk’s online docket also failed to disclose a Proof of Publication.

The trial court held a hearing on the homeowner’s Motion to Set Aside the Foreclosure Sale and denied the motion. From this Order, the homeowner now appeals.

The homeowner argues that the foreclosure sale did not comply with section 45.031, which requires advance notice of a sale. The homeowner requests a reversal of the foreclosure sale and asks for it to be reset with proper notice. The purchaser and association respond that the trial court did not abuse its discretion in refusing to set aside the foreclosure sale because section 45.031 does not provide a mandatory framework for the Clerks of Court to conduct foreclosure sales. The purchaser and association also argue that the homeowner failed to demonstrate that the foreclosure bid was grossly or startlingly inadequate, and that the inadequacy of the bid resulted from some mistake, fraud, or other irregularity in the sale.

We review orders on motions to set aside foreclosure sales for an abuse of discretion. Long Beach Mortg. Corp. v, Bebble, 985 So.2d 611, 613 (Fla. 4th DCA 2008).

Section 45.031 provides, in relevant part: In any sale of real or personal property under an order or judgment, the procedures provided in this section and §§ 45.0315-45.035 may be followed as an alternative to any other sale procedure if so ordered by the court.
(2) PUBLICATION OF SALE. — Notice of sale shall be published once a week for 2 consecutive weeks in a newspaper of general circulation, as defined in chapter 50, published in the county where the sale is to be held. The second publication shall be at least 5 days before the sale.
(4) CERTIFICATION OF SALE.— After a sale of the property the clerk shall promptly file a certificate of sale and serve a copy of it on each party....
(10) ELECTRONIC SALES. — The clerk may conduct the sale of real or personal property under an order or judgment pursuant to this section by electronic means. Such electronic sales shall comply with the procedures provided in this chapter, except that electronic proxy bidding shall be allowed and the clerk may require bidders to advance sufficient funds to pay the deposit required by subsection (3).

§ 45.031, Fla. Stat. (2011). The statute provides in detail how to proceed with the sale, the publication of the sale, the issuance of the Certificate of Sale and Certificate of Title, and the disbursement of the proceeds. Id.

We recently considered the requirement for publication of sale, and its effect on the trial court’s ability to issue the appropriate certificates, in Castelo Development, LLC v. Aurora Loan Services LLC, 85 So.3d 515 (Fla. 4th DCA). There, we held “[s]ection 45.031, Florida Statutes, requires that notice of sale ‘be published once a week for 2 consecutive weeks in a newspaper of general circulation.’ ... A plain reading of the statute ... supports the ... interpretation that a foreclosure sale should not be confirmed if the notice of sale was not published.” Id. at 517 (quoting § 45.031(2), Fla. Stat. (2011)).

We further held:

Subsection four of the statute dictates that after the sale of the property, the clerk of the court shall promptly file a certificate of sale. The statute, however, requires that as part of the certificate of sale, the clerk must certify that the “notice of public sale of the property described in the order or final judgment was published in ... a newspaper circulated in” the county where the property is located. Thus, if the clerk cannot certify that the notice of sale was published, the clerk should not issue the certificate of sale. Without a certificate of sale, the clerk of the court lacked authority to issue a certificate of title and thereby confirm the sale.

Id. (quoting § 45.031(4), Fla. Stat. (2011)) (citations omitted).

Here, the judgment of foreclosure also provided for the public sale to be “in accordance with section 45.031, Florida Statutes.” Like Castelo, neither party disputes that the Clerk failed to publish the notice of sale in accordance with section 45.031. Because the Clerk could not certify that the notice of sale was published, the Clerk should not have issued the Certificate of Sale. And without a Certificate of Sale, the Clerk of the Court lacked the authority to issue a Certificate of Title. Id.

Nevertheless, the purchaser and association argue that the provisions of section 45.031 are elective, not mandatory. Specifically, they assert that “the plain language of the statute demonstrates that the procedure set forth in section 45.031 is not the exclusive procedure for setting a foreclosure sale and that a judge has the discretion to use a different procedure.” Royal Palm Corporate Ctr. Ass’n v. PNC Bank, NA, 89 So.3d 923, 927 (Fla. 4th DCA 2012). While that may be true, where the trial court explicitly adopts the statutory framework of section 45.031, it must adhere to the statute’s provisions.

As in Castelo, the trial court elected to adopt the procedures in section 45.031, but then failed to adhere to them. The trial court abused its discretion in upholding the sale in light of the homeowner’s timely-filed objection.

The purchaser and association also argue that to vacate a foreclosure sale, the trial court must find that the foreclosure bid was grossly or startlingly inadequate and that the inadequacy of the bid resulted from some mistake, fraud, or other irregularity in the sale. This is plainly incorrect. See Arsali v. Chase Home Fin., LLC, 79 So.3d 845, 848 (Fla. 4th DCA 2012) (en banc) (receding from previous cases indicating “that inadequacy of price must always be part of the legal equation in a motion to set aside a foreclosure sale.”) Id.

We therefore reverse and remand the case to the trial court to vacate the foreclosure sale and the Certificates of Sale and Title, and to reset the foreclosure sale in accordance with section 45.031.

Reversed and Remanded.

TAYLOR and CIKLIN, JJ„ concur.

      . The docket does not reflect that the homeowner ever deposited the monies with the Clerk of Court.

      . We note the trial court did not have the benefit of either Castelo or Arsali when it rendered its decision.


text:
    Raul E. CALDERON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2939.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Hoss Hernandez, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Raul E. Calderon appeals the trial court’s order denying his motion to allow him to live at home with his wife while on sexual offender probation. We affirm because the Legislature of the State of Florida has not preempted the local regulation of post-conviction treatment of individuals convicted of certain sexual offenses, and choice of address is not a fundamental right.

Calderon pled guilty in March 2010 to one count of lewd or lascivious exhibition on a child under sixteen years of age, pursuant to section 800.04(7), Florida Statutes (2010), and one count of burglary of an occupied residence. The court sentenced Calderon to 366 days in state prison followed by ten years of sex offender probation on the lewd or lascivious exhibition count. Condition fifteen of Calderon’s probation prohibited Calderon from living within 1000 feet of a school because his victim was under the age of eighteen. Condition five of Calderon’s probation mandated him to live without violating the law.

In September 2010, Calderon was released from prison and filed a motion to allow him to live at home with his wife. The home is located within 2500 feet of a school but allegedly more than 1000 feet from any school. The trial court denied the motion.

We conclude that the trial court correctly denied Calderon’s request to reside in the home where his wife presently resides. Section 21-281(a) of the Miami-Dade County Sexual Offender and Sexual Predator Ordinance provides:

It is unlawful for any person who has been convicted of a violation of Sections 794.011 (sexual battery), 800.04 (lewd and lascivious acts on/in presence of persons under age 16), 827.071 (sexual performance by a child) or 847.0145 (selling or buying of minors for portrayal in sexual explicit conduct), Florida Statutes, or a similar law or another jurisdiction, in which the victim of the offense was less than sixteen (16) years of age, to reside within 2,500 feet of any school.

See MIAMI-DADE COUNTY, FLA., CODE OF ORDINANCES § 21-281(a) (2010). The home of Calderon’s wife is located within 2500 feet of a school, and Calderon’s victim was less than sixteen years of age. Calderon, a sexual offender on probation, was thus not permitted to live in the home where his wife presently resides.

Calderon argues on appeal that the trial court erred when it ruled that he had to comply with the ordinance even though it is in conflict with section 794.065, Florida Statutes (2010), and that the county ordinance is void as it is in direct conflict with the statute. We disagree.

There is no impermissible conflict between the state law and county ordinance. Section 794.065 states that persons convicted of certain sexual offenses who have served their sentences, and are on probation, are forbidden from establishing residence within 1000 feet of any school, day care, park, or playground. Section 21-281(a) increases the exclusionary residence zone to 2500 feet. As we stated in Exile v. Miami-Dade County, 35 So.3d 118, 119 (Fla. 3d DCA 2010), “[t]he legislature has not clearly preempted local regulation of the field of the post-conviction treatment of sexual predators, so as to invoke the severely restricted and strongly disfavored doctrine of ‘implied preemption’ ... The 2,500 foot provision is not in cognizable ‘conflict’ with the less restrictive 1000 foot buffer zone.... ”

Similarly, in this case, Calderon can comply with the ordinance, and thereby find himself in compliance with the statute. Thus, there is no conflict between the state statute and county ordinance.

Calderon further argues that enforcement of the county ordinance imper-missibly enhances the conditions of his probation. This argument is misplaced. Breaches of municipal ordinances are sufficient to support a violation of probation. See Caston v. State, 58 So.2d 694, 697 (Fla.1952). Condition five of Calderon’s probation mandates him to live without violating the law. The law includes the county ordinance that prohibits him, as a sex offender, from living within 2500 feet of a school. Enforcement of the ordinance thus does not enhance the penalty of his probation, as it was already implicitly included in condition five of his probation.

We decline to address all other issues Calderon raised in this appeal, as we conclude that they are meritless. Therefore, we affirm the trial court’s order denying Calderon’s motion to live in the home where his wife presently resides.

Affirmed.

      . On May 26, 2010, this section was renumbered. See § 775.215, Fla. Stat. (2010).