text:
    William CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 3D09-1139.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before LAGOA and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

William Cruz appeals his conviction and sentence for attempted second degree murder. We reverse the conviction on each of two independently-sufficient grounds. First, the attempted voluntary manslaughter instruction, as given to the jury, violates the holding in State v. Montgomery, 39 So.3d 252 (Fla.2010).

Second, we find that Cruz’s second demand to represent himself was unequivocally made, necessitating a Faretta hearing. Rodriguez v. State, 982 So.2d 1272 (Fla. 3d DCA 2008). Because such a hearing was not conducted before the trial court denied Cruz’s demand, a reversal on this ground is also required.

Reversed and remanded.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


source: Caselaw Access Project

author: SCHWARTZ, Senior Judge. SALTER, J.

license: Public Domain

text:
    TBOM MORTGAGE HOLDING, LLC, Petitioner, v. Cecilia BROWN, et al., Respondents.
    No. 3D11-229.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.

      Mathew Seth Sarelson and Max M. Nelson, for petitioner.
    No appearance for respondents.
    Before GERSTEN and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Although the plaintiff mortgagee in this “routine” home foreclosure case clearly established its right to a default against the mortgagor, the trial court refused to enter one, giving only what must be called the spurious reason that the nonmilitary affidavit was in some unspecified (because non-existent) way “insufficient.” In fact and in law, the affidavit, which was in the universally accepted form, and was supported by evidence which clearly established that the defendant, who was personally served at his home in Miami-Dade County, was not in the military service, was legally impeccable. Since it is established and we repeat that the trial court is not free to refuse to follow the law because of some personal disinclination or otherwise, see Republic Federal Bank, N.A. v. Doyle, 19 So.3d 1053, 1054 (Fla. 3d DCA 2009), and that it is, therefore, mandatorily required to enter the default sought in this case, see Fla. R. Civ. P. 1.500(b); Comcoa, Inc. v. Coe, 587 So.2d 474, 477 (Fla. 3d DCA 1991) (granting mandamus when the trial court impermissibly refused to issue writ required by law; “in a statute such as this one, the term ‘may,’ which indeed ordinarily implies the exercise of choice or discretion, simply does not do so, and must, in contrast, be given a definition equivalent to the mandatory ‘shall.’ ”), it is ordered that it expeditiously do so.

Mandamus granted.

GERSTEN, J., concurs.

SALTER, J.

(dissenting).

I respectfully dissent. First, the petition was untimely. The essence of the petition is a claim that the trial' court departed from the essential requirements of law in its ruling — not that it has failed to rule despite a clear legal duty to do so. The petitioner’s claim thus should be treated as a petition for certiorari rather than a petition for mandamus. Judicial notice of the circuit court docket in this case reveals that the order denying the motion for default was docketed the day it was signed by the trial court, October 26, 2010. The petition was not filed within thirty days of the order as required by Florida Rule of Appellate Procedure 9.100(c).

Second, the rule governing the entry of a motion for default by the court, Florida Rule of Civil Procedure 1.500(b), states:

When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute .or order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, the party shall be served with notice of the application for default, (emphasis provided).

The word “may” connotes a discretionary, not ministerial act, and thus one ordinarily ineligible for mandamus. The majority cites Comcoa, Inc. v. Coe, 587 So.2d 474, 477 (Fla. 3d DCA 1991), for the proposition that in certain statutes “the term ‘may,’ which ordinarily implies the exercise of choice or discretion, simply does not do so and must, in contrast, be given a definition equivalent to the mandatory ‘shall.’ ”

In the case at hand, however, we are construing a rule, not a statute, and we have no “indications of legislative intent to the contrary” or “obvious inferences from the structure and purpose of the statute” from which to engage in verbal prestidigitation. United States v. Rodgers, 461 U.S. 677, 706, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983). As the creations of lawyers, judges, rules committees, and Justices, rules should be presumed to appropriately differentiate “may” from “shall” and to record in the published comments any thoughts or inferences to the contrary.

Third, the adequate remedy at law at this stage is a motion for final summary judgment in the trial court. The extraordinary writ proceeding in this Court does not seem calculated to achieve the “just, speedy, and inexpensive” determination of the petitioner’s claims.

Finally, the petitioner’s assumptions regarding the trial judge’s thought processes are not supported by a transcript and are, in my view at least, unprofessional. I would deny the petition.

      . Neither the respondent who was ordered, nor the trial judge, who was invited to do so, has filed any response to the petition.

        . See Monroe County v. Cisneros, 49 So.3d 801 (Fla. 3d DCA 2010).

      .The docket further reflects that the petitioner filed a “notice of filing” a copy of the same order on February 2, 2011.

      . Fla. R. Civ. P. 1.010.

      . The petition alleges that the trial judge was "vehement” in his refusal to provide clarification for his denial of the motion for default; complains of the court’s "non-responsiveness” at the hearings; and accuses the trial court of attempting to "come to the rescue of Ms. Brown by nakedly crying 'insufficiency' sua sponte." Counsel’s aspersions are no substitute for a record. The trial court may just as well have been uncomfortable with the use of "XXX-XX-XXXX” in the non-military affidavit, as the Department of Defense Military Status Report is expressly limited to "the information that you provided.” Nothing in the affidavit or Military Status Report assures a reviewing court that Ms. Brown's actual Social Security number was provided and used for the search, or that her SSN ends in "XX-XXXX.” While the use of "XXX” in lieu of the first three digits may represent an effort to protect Ms. Brown from identity theft and to comply with other rules, there are adequate means to provide that protection while allowing the trial court and this Court an opportunity to assure ourselves that the full and correct Social Security number (i.e., one supplied by Ms. Brown in loan documents or from some other reliable source) was supplied to the Department of Defense.


author: PER CURIAM.

text:
    Crystal BITON, a/k/a Saphyre Redford, f/k/a Marcelle Biton, Appellant, v. Jacob BITON, Appellee.
    Nos. 3D10-2920, 3D10-3054.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.

      Crystal Biton a/k/a Saphyre Redford f/k/a Marcelle Biton, in proper person.
    Jacob Biton, in proper person.
    Before, SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).


text:
    Rafael LLOVERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1042.
    District Court of Appeal of Florida, Fourth District.
    April 20, 2011.
    Rafael Llovera, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010).

WARNER, STEVENSON and DAMOORGIAN, JJ., concur.


text:
    Terrance L. MOSES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1326.
    District Court of Appeal of Florida, Fourth District.
    April 20, 2011.
    Terrance L. Moses, Stuart, pro se.
    No appearance required on behalf of appellee.
   PER CURIAM.

The appellant’s rule 3.800(a) motion actually sought to challenge the factual basis for his plea. We affirm its denial without prejudice to his filing a timely sworn rule 3.850 motion seeking to withdraw his plea.

Affirmed.

GROSS, C.J., POLEN and STEVENSON, JJ., concur.


text:
    Craig MACK, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-684.
    District Court of Appeal of Florida, Fourth District.
    April 20, 2011.

      Craig Mack, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. As to ground one, see Solorzano v. State, 25 So.3d 19 (Fla. 2d DCA 2009); as to ground two, see Bryant v. State, 901 So.2d 810, 821-22 (Fla.2005); Corp v. Sec., Fla. Dept. of Corr., 2010 WL 3469506 at *13 (M.D.Fla. Aug. 31, 2010); as to ground three, see Zack v. State, 911 So.2d 1190, 1198 n. 3 (Fla.2005).

TAYLOR, CIKLIN and GERBER, JJ., concur.


author: GRIFFIN, J.

text:
    Robert DINGLE and Janet Dingle, etc., Appellant, v. Elena PRIKHDINA a/k/a Elena Kyreakakis, Appellee.
    No. 5D10-78.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2011.
    Craig A. Brand, of The Brand Law Firm, P.A., Orlando, for Appellant.

      Brett L. Swigert, of Brett L. Swigert, P.A., Eustis, for Appellee.
   GRIFFIN, J.

Robert Dingle and Janet Dingle [“the Dingles”] appeal a summary final judgment entered in favor of Elena Rrikhdina, a/k/a Elena Kyreakakis [“Kyreakakis”]. The Dingles challenge the trial court’s conclusion that the power of attorney of the decedent, John Kyreakakis [“the decedent”], did not give him the power to gift the corporate property of Whiteway Investments, Inc. [“Whiteway”]. We affirm.

The Dingles filed a complaint for ejectment, seeking to recover possession of real property located in Lake County, Florida, [“the subject property”] from Kyreakakis. Attached to the complaint was a quit-claim deed of gift, prepared by Attorney Jacqueline C. Dellinger, conveying the subject property from Whiteway to the Dingles. After Kyreakakis filed her answer and affirmative defenses, she filed a motion for summary judgment and memorandum of law. The motion alleged that Kyreakakis was entitled to judgment as a matter of law because the attorney-in-fact, the decedent, lacked the authority to make a gift of corporate property in favor of the Dingles; therefore; the Dingles’ deed was void.

The Dingles filed an affidavit in opposition to Kyreakakis’ motion, asserting lawful ownership of the subject property. The affidavit recounted that the Dingles and the decedent were friends and that the Dingles transported the decedent and helped him while he was ill with cancer. The affidavit also described the relationship between the decedent and Kyreakak-is. .

After a hearing, the trial court granted the motion for summary judgment, finding that the power-of-attorney instrument employed by the décedent contained no power to make gifts of the corporation’s property. The court concluded that since the decedent lacked the authority to make the conveyance by gift, the deed was void.

The English translated version of the power of attorney document from White-way to the decedent, prepared in Spanish, provides:

FIRST: That she grants a General Power of Attorney in favor of [the decedent], to act individually, on behalf of [White-way] in any place of the world, with power to act on behalf of and for the Corporation in any act, transaction, contract or business, either civil, judicial, mercantile, or of any other nature and before third persons, either natural or judicial, public, private or mixed.[ ... ] SECOND: Especially, but not limited to the above, the present Power of Attorney is granted in favor of [the decedent], to act individually, in any place of the world and before the above mentioned persons, for the following: One: To sell, exchange or transfer for any valuable consideration, any real estate or personal properties belonging to the principal; Two: To purchase or acquire' in any manner, for the principal, real estate or personal properties on the principal’s behalf; Three: To lease, give for deposit, any property of the principal or to impose limitations on the ownership thereof; Four: To mortgage, pledge or in any other many encumber any property of the principal....

(Emphasis added). The deposition testimony of the attorney who prepared the deed, and the language of the deed itself, reflect that the deed was made as a gift to the Dingles.

Generally, the rule is that a power of attorney must be strictly construed and the instrument will be held to grant only those powers which are specified. Bloom v. Weiser, 348 So.2d 651, 653 (Fla. 3d DCA 1977). An agent cannot make a gift of his principal’s property to himself or others unless it is expressly authorized in the power. James v. James, 843 So.2d 304, 308 (Fla. 5th DCA 2003). A general power does not include the power to make a gift. See Johnson v. Fraccacreta, 348 So.2d 570 (Fla. 4th DCA 1977). Here, the power of attorney clearly included the power to convey real property, however, it did not specifically authorize its use to make a gift.

In Johnson, the Fourth District court reversed a summary judgment that had upheld a transfer pursuant to a power of attorney. There, a decedent owned real property during her lifetime and executed a power of attorney, appointing her daughter as her attorney in fact. The power of attorney gave the daughter the power to: “Bargain, sell, release, convey and mortgage lands ... upon such terms and conditions, and under such covenants, as she shall think fit and also for me and in my name as my act and deed to sign, sell, execute and deliver and acknowledge such deeds_” Id. at 571. As attorney in fact, the daughter executed a warranty deed conveying the decedent’s property to the decedent and her husband as tenants by the entireties. The decedent died several months later.

The Fourth District concluded that no language in the subject power of attorney expressly or impliedly indicated an intention to authorize a gift of an interest in the principal’s property to the husband. Id. An agent has no power to make a gift of his principal’s property unless that power is expressly conferred upon the agent by the instrument or unless such power arises as a necessary implication from the powers which are expressly conferred. Id.

Here, when the language of the power of attorney is examined to discern the corporation’s intent, the most persuasive indicator of its intent is the omission of the power to gift. Of the four principal purposes of asset transfer — sale, lease, mortgage, and gift — all but gift are expressly authorized by the power of attorney. The Dingles rely on the first paragraph of the power, which contains a more general delegation. The powers given in the first paragraph, however, are general powers of the decedent to act on behalf of the business, and nothing implies the power to gift property. Moreover, the second paragraph, which specifically concerns asset transfer, is qualified in its entirety by the phrase “for valuable consideration.” We find no error in the trial court’s conclusion that the only asset transfer powers conferred by the enumeration of the specific and general powers were transfers for value. Thus, the deed was void. See In re Estate of Bell, 573 So.2d 57, 59 (Fla. 1st DCA 1990).

AFFIRMED.

SAWAYA and PALMER, JJ., concur.

      . Based on Ms. Dellinger's deposition testimony, the decedent hired Ms. Dellinger to draft a quit-claim deed, transferring the subject property from Whiteway to the Dingles. The power of attorney appointed the decedent attomey-in-fact for Whiteway. The power of attorney was originally drafted in Spanish, and the record on appeal only contains a translated version in English. There was also testimony by Ms. Dellinger that, after the transfer of the property, the decedent tried' to reclaim ownership and rescind the quit-claim deed.

      . • According to the Dingles’ affidavit, Kyreak-akis was a "mail order” companion, twenty-four years younger than the decedent, whom the decedent eventually married.

      . The Dingles asserted below that Florida law would not apply to the interpretation of a power of attorney under Panamanian law. We recognize that a general power of attorney under the law of Panama is a unique creature; however, the Dingles have not pleaded or proved that the law of Panama would be different from that of Florida in this context.'


author: EVANDER, J.

text:
    LASALLE BANK NATIONAL ASSOCIATION, etc., Appellant, v. BLACKTON, INC., et al., Appellee.
    No. 5D10-499.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2011.
    Katherine E. Giddings and Nancy M. Wallace, and Mary Whitney, of Akerman Senterfitt, Tallahassee, and William P. Heller, of Akerman Senterfitt, Fort Laud-erdale, for Appellant.
    Barry Kalmanson, of Barry Kalmanson, P.A., Maitland, for Appellee, Blackton, Inc.
   EVANDER, J.

LaSalle Bank National Association, as trustee for First Franklin Mortgage Loan Trust 2007-1, Mortgage Loan Asset-Backed Certificate Series 2007-1, (La-Salle) appeals an order determining that a construction lien filed by Blackton, Inc., was. superior to LaSalle’s interest in the same property. We have jurisdiction. See Cone Bros. Const. Co. v. Moore, 141 Fla. 420, 193 So. 288 (1940); Citimortgage, Inc., v. Henry, 24 So.3d 641 (Fla. 2d DCA 2009). We conclude-, that the earlier-recorded mortgages held by LaSalle had priority and, accordingly, reverse.

On December 22, 2006, Independence Homes, LLC, (Independence) recorded a notice of commencement of construction of a single-family residence on the subject property. The notice of commencement listed Independence as both the owner and the contractor.

Subsequently, Bruce and Michelle Morrissette purchased the home from Independence. Funding was provided by LaSalle’s predecessor-in-interest, First-Financial Corp., and was secured by two mortgages on the property. Both mortgages were recorded on March 26, 2007. On that same date, Independence recorded a notice of termination providing, inter alia, that the previously-recorded notice of commencement “is terminated as of 30 days after the recording of the Notice of Termination.” The notice of termination similarly identified Independence as both the owner and the contractor. A contractor’s affidavit executed by Independence was attached to the notice of termination. No subcontractors or materialmen filed liens within the 30 days following March 26, 2007.

After moving into the residence, the Morrissettes experienced several construction problems, including the cracking of tiles. The Morrissettes notified Independence and Independence retained Blackton to remedy the tile problem. Blackton commenced and completed its work on August 29, 2007. On September 24, 2007, after providing a “Notice to Owner” to the Morrissettes, Blackton recorded a claim of lien against the property for the unpaid balance of $8,651.29 plus interest. Neither Independence nor the Morrissettes paid Blackton for its work. Subsequently, the Morrissettes defaulted on their mortgages.

Blackton and LaSalle commenced separate foreclosure actions. They each prevailed against the Morrissettes. On January 8, 2010, a hearing was held on motions in both lawsuits to determine whether La-Salle or Blackton have the superior interest. The trial court determined that Independence’s notice of termination did not strictly comply with section 713.132, Florida Statutes (2006), and, as a result, had been ineffective to terminate the notice of commencement. The trial court then concluded that Blackton’s lien related back to the date of filing of the notice of commencement, December 27, 2006, and therefore was superior to the mortgages recorded on March 26, 2007.

We respectfully disagree with the trial court. We conclude that the notice of termination was effective to terminate the notice of commencement and, therefore, Blackton’s lien was inferior to the previously-recorded mortgages.

Pursuant to section 713.13, the notice of commencement filed by Independence would be effective for one year unless terminated or extended. Blackton’s lien would relate back to the date of the recording of the notice of commencement only if Independence’s notice of termination was ineffective to terminate the notice of commencement. § 713.07(2), Fla. Stat. (2006). Otherwise, Blackton’s lien would take priority as of the date it was recorded.

In finding Independence’s notice of termination to be invalid, the trial court erroneously concluded that “a Notice of Termination cannot be effective having both the owner and contractor as the same entity.” As conceded by Blackton in its answer brief, there is no support in the law for this conclusion. See, e.g., Aetna Cas. Sur. Co. v. Buck, 594 So.2d 280 (Fla.1992). Blackton argues that the trial court’s decision should nonetheless be affirmed because the contractor’s affidavit attached to Independence’s notice of termination was invalid because it was executed by Independence. Blackton argues that a contractor’s affidavit is a nullity where the provider of the contractor’s affidavit (the contractor) is the' same entity as the recipient of the affidavit (the owner). We reject Blackton’s argument because it was not necessary for Independence to attach a contractor’s affidavit to its notice of termination. Section 713.132(1) provides that an owner may terminate the period of effectiveness of a notice of commencement by executing, swearing to, and recording a notice of termination that contains:

(a) The same information as the notice of commencement;
(b) The recording office document book and page reference numbers and date of the notice of commencement;
(c) A statement of the date as of which the notice of commencement is terminated, which date may not be earlier than 30 days after the notice of termination is recorded;
(d) A statement specifying that the notice applies to all the real property subject to the notice of commencement or specifying the portion of such real property to which it applies;
(e) A statement that all lienors have been paid in full; and
(f) A statement that the owner has, before recording the notice of termination, served a copy of the notice of termination on the contractor and on each lienor who has given notice. The owner is not required to serve a copy of the notice of termination on any lienor who has executed a waiver and release of lien upon final payment in accordance with s. 713.20.

(Emphasis added).

Independence’s notice of termination complied with this section. Blackton argues that section 713.132(2) required Independence to additionally attach a contractor’s affidavit. We find this argument to be without merit. Subsection (2) provides:

An owner has the right to rely on a contractor’s affidavit given under section 713.06(3)(d)-However, the notice of termination must be accompanied by the contractor’s affidavit.

We interpret this subsection to grant an owner the right to rely on a contractor’s affidavit as an alternative to giving a sworn statement in its notice of termination that “all lienors have been paid in full.” Here, the contractor’s affidavit attached to the notice of termination was superfluous because Independence, as owner, had already averred in the notice of termination that all lienors had been fully paid.

REVERSED and REMANDED.

COHEN and JACOBUS, JJ., concur.

      . Under Blackton’s interpretation of section 713.132, a notice of termination executed by an entity that was both the owner and the contractor would be valid only if accompanied by contractor's affidavits executed by each and every subcontractor retained on the job. We conclude that chapter 713 does not impose such a cumbersome and unnecessary procedure.


text:
    David H. TEDDER, Appellant, v. Sandy MAGID, etc., Appellee.
    No. 5D09-3276.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2011.
    David P. Johnson, of Law Office of David P. Johnson, LLC, Fern Park, for Appellant.
    Joey E. Schlosberg, of Adams & Reese LLP, St. Petersburg, for Appellee.
   PER CURIAM.

This appeal comes to us based on a final summary judgment in favor of the appel-lee, Sandy Magid, as successor Trustee of the Alta Trust dated June 80, 1999, and against the appellant, David H. Tedder. After a de novo review, we conclude that there was no genuine issue of material fact presented to the trial court, and that the appellee was entitled to a judgment as a matter of law. See Fla. R. Civ. P. 1.510. Accordingly, we affirm.

AFFIRMED.

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


text:
    Carlos COSTA, Phyllis Skora, and Gary Emken, Appellants, v. MMG DEVELOPMENT CORP., et al., Appellees.
    No. 5D10-177.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2011.
    Lilliana M. Fariñas-Sabogal, Marlene Kirtland of Becker & Poliakoff, P.A., Coral Gables, for Appellants.
    Robert W. Thielhelm and Benjamin A. Webster of Baker & Hostetler, LLP, Orlando, for Appellees, MMG Development Corp., Diamond Resorts Management, Inc., Troy Magdos, Marilyn Windsor, and Linda Riddle.
    Stacy J. Ford of Pohl & Short, P.A., Winter Park, for Appellee, Polynesian Isles Resort Master Association, Inc.
   PER CURIAM.

In this appeal, the Appellants challenge the trial court’s order entering final summary judgment in favor of Appellees. The record confirms that the trial court’s ruling was correct. We agree that there were no genuine issues of material fact and that the Appellees were entitled to a judgment as a matter of law.

AFFIRMED.

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


text:
    DEPARTMENT OF REVENUE, CHILD SUPPORT, etc., Appellant, v. Travis MAGRUM, Appellee.
    No. 5D10-2391.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2011.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

After careful consideration of the record, we hold that the Department of Revenue is correct in its assertion that the circuit court’s final judgment on the Department’s Petition for Enforcement of Administrative Support Order did not prospectively change the child support amount established in the earlier Administrative Support Order and thus, pursuant to section 409.2568(10)(b), Florida Statutes (2010), the final judgment could not “supersede” the administrative order.

Accordingly, we affirm the Final Judgment on Petition for Enforcement of Administrative Support Order in all respects except in regard to the lower court’s attempt to have the final judgment supersede the administrative order. We remand to the circuit court with instructions to strike this provision.

AFFIRMED in part, REVERSED in part and REMANDED.

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


author: COHEN, J.

text:
    Amy M. GROVER, Appellant, v. Christian A. GROVER, Appellee.
    No. 5D10-2861.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2011.

      Richard L. Wilson, Orlando, for Appellant.
    Christian A. Grover, Orlando, pro se.
   COHEN, J.

Former Wife, Amy Grover, challenges an order granting Former Husband’s, Christian A. Grover, petition for modification and partially granting her request for attorney’s fees. We affirm the judgment in all respects, except the trial court’s decision to partially deny and reduce Former Wife’s request for attorney’s fees.

Former Husband’s petition for modification and Former Wife’s request for attorney’s fees were tried before a magistrate. The magistrate correctly determined that Former Wife was entitled to an award of attorney’s fees based on the disparity in the parties’ incomes. As to amount, Former Wife presented evidence that she was represented by two attorneys. Her primary attorney, Richard Wilson, spent 54.75 hours and billed $800 an hour for a lodestar of $16,425. The second attorney, Angela Robinson, billed 7 hours at $150 an hour for a lodestar of $1,050.

The magistrate found that Wilson’s hours and hourly rate were reasonable, but recommended his fee be reduced to $12,295 based on Former Wife’s “bad faith” conduct. The magistrate recommended that no fees be awarded to Robinson because she did not expressly request a fee award in her supporting affidavit or when she testified at trial. The trial court adopted the magistrate’s recommendation to reduce Wilson’s fees. It also agreed with the denial of fees for Robinson, but articulated a different rationale: Former Wife did not present any evidence showing a need for more than one attorney, citing Osherow v. Osherow, 785 So.2d 743 (Fla. 4th DCA 2001).

We recognize that Osherow, 785 So.2d at 743, states “a court should not assess fees for multiple lawyers used by a requesting party unless the trial court concludes that there is a need for more than one lawyer on the case.” This statement, however, appears to be overbroad in light of the fact that the court cited Tomaino v. Tomaino, 629 So.2d 874 (Fla. 4th DCA 1993), as support. Tomaino stands for the proposition that a trial court should reduce a party’s request for attorney’s fees when multiple attorneys bill for duplicative work. See also Brevard County v. Canaveral Props., Inc., 696 So.2d 1244, 1245 (Fla. 5th DCA 1997); Donald S. Zuckerman, P.A. v. Alex Hofrichter, P.A., 676 So.2d 41, 43 (Fla. 3d DCA 1996). It appears the Osherow court followed this legal principle when it affirmed the trial court’s decision to award only a fraction of the fees sought by multiple attorneys.

We do not believe Osherow supports the trial court’s decision, in the instant case, to deny Former Wife’s request for attorney’s fees for Robinson. The issue is not whether there is a need to hire or have more than one attorney, but whether the attorneys engaged in duplicative billing, and, if so, the amount by which the award must be reduced. See Tomaino; Brevard County. It is not uncommon for firms to allocate certain tasks to a lawyer who bills at a lower hourly rate in an effort to reduce a client’s bill or to allocate tasks based on an attorney’s expertise. There is nothing improper in either scenario and we do not believe the requesting party must present evidence justifying the use of a second lawyer.

In the case at bar, there does not appear to be any evidence that the work performed by the two attorneys was duplicative. However, because the trial court may not have explored this issue, we remand for the trial court to reconsider the entire attorney’s fee award pursuant to Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997).

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

PALMER and EVANDER, JJ., concur.

      . Former Wife earned $9,492 per year while Former Husband earned over $100,000 per year, plus benefits.

      . This was not a valid basis to deny Robinson a fee award.

      . Former Wife's brief challenged the judgment’s lack of findings as to bad faith. However, that issue was not preserved for appeal because she did not file a motion for rehearing. See Anaya v. Anaya, 987 So.2d 806 (Fla. 5th DCA 2008).


text:
    Headly Berry EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-90.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2011.
    Headley B. Edwards, Malone, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Headly Edwards, appeals the order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. One of Edwards’ four claims is that the sentencing court did not advise him of his right to challenge the public defender fees assessed against him. The lower court held the claim should have been raised on direct appeal and is not cognizable in a motion for post-conviction relief. However, Florida courts have held that defendants have the right to utilize post-conviction proceedings to challenge a lack of notice and opportunity to contest fees assessed against them. See Hall v. State, 784 So.2d 491, 492 (Fla. 4th DCA 2001); Lewis v. State, 629 So.2d 1051, 1052 (Fla. 2d DCA 1993). On remand, Edwards shall have 30 days from the issuance of our mandate to file a written objection to the amount of the fees imposed by the trial court. If an objection is filed, the trial court shall conduct a hearing. Otherwise, the trial court may reimpose the public defender fees without a hearing. See White v. State, 32 So.3d 132 (Fla. 2d DCA 2010).

AFFIRMED in part; REVERSED in part; REMANDED.

PALMER, COHEN and JACOBUS, JJ., concur.


text:
    Kevin DENNISON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-537.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2011.
    Kevin Dennison, DeFuniak Springs, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2009-CF-000227, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, TORPY and EVANDER, JJ., concur.


text:
    Hector CAMPOS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-874.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2011.
    Robert Wesley, Public Defender, and Kimberly A. LaSure, Assistant Public Defender, Kissimmee, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 07-CF-004626, in the Circuit Court in and-for Osceola County, Florida. See- Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, ORFINGER and COHEN, JJ., concur.


text:
    Michael GRILLO, Appellant, v. Sandi CLAY, Appellee.
    No. 4D10-4553.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.
    Peter Mineo, Jr. of Mineo & Mineo, P.A., and Christopher A. Grillo of Christopher A. Grillo, P.A., Fort Lauderdale, for appellant.
    Otto D. Rafuse of Moss, Rafuse & Rosa-ti, Jacksonville, for appellee.
   PER CURIAM.

Michael Grillo appeals the trial court’s order modifying his child support obligation by requiring him to pay for private preschool tuition for the minor child. Because the trial court issued this order without first holding an evidentiary hearing on the matter, the order is reversed. Upon remand, the trial court shall hold an evi-dentiary hearing on the matter, assuming it is still relevant, before entering a new order addressing the preschool tuition issue. Further, we note that the order itself was defective in that it conditioned Grillo’s exercise of time sharing upon his payment of the new preschool tuition obligation. See, e.g., Hastings v. Rigsbee, 875 So.2d 772, 777 (Fla. 2d DCA 2004) (“A parent’s visitation rights may not be conditioned on the payment of the parent’s financial obligations, including the payment of child support.”).

We decline to address the remaining issues raised by the parties.

Reversed and remanded for further proceedings consistent with this opinion.

HAZOURI, MAY and CIKLIN, JJ., concur.


text:
    Daniel DELMONICO, Petitioner, v. Tony CRESPO and Donovan Marine, Inc., a Louisiana Corporation, Respondents.
    No. 4D10-3688.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.
    Ismael Diaz of the Law Office of Ismael Diaz, P.L., Coral Gables, for petitioner.

      A. Rodger Traynor, Jr., of Akerman Senterfitt, Miami, for respondent Donovan Marine, Inc.
   ON RESPONDENT’S MOTION FOR CLARIFICATION

PER CURIAM.

We grant respondent Donovan Marine’s motion for clarification, withdraw our opinion issued March 2, 2011, and replace it with the following opinion.

Petitioner, Daniel Delmonico, seeks cer-tiorari review of an order denying his motion for a protective order. Respondent, Donovan Marine, Inc., sought financial discovery of both petitioner and non-parties “in aid of execution” of an award of attorney’s fees. See Fla. R. Civ. P. 1.560.

Respondent asserts that this court, in a separate related case, ordered petitioner to pay attorney’s fees, in accordance with section 768.79, Florida Statutes. However, as a determination has not yet been made by the trial court as to the amount of those fees, we agree with petitioner that he may be irreparably harmed if forced to reveal financial information where no judgment has yet been entered. See Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla.2003) (general rule is that financial information is ordinarily discoverable only in aid of execution after judgment).

Thus, we find that the trial court departed from the essential requirements of law when it prematurely allowed discovery in aid of execution of a non-existent judgment. See, e.g., In re Estate of Posner, 492 So.2d 1093, 1093 (Fla. 3d DCA 1986) (finding “the probate court departed from the essential requirements of law when it permitted contingent creditors to take prejudgment discovery in aid of execution”).

We accordingly grant the petition for writ of certiorari and quash the order which denied petitioner s motion for a protective order.

Petition Granted; Order Quashed.

STEVENSON, DAMOORGIAN and GERBER, JJ., concur.


text:
    Bruce L. SALITURI and Susan Salituri, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for HALO 2007-2 and HSBC Mortgage Company (USA), Appellees.
    No. 4D10-1911.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.
    Garry W. Johnson and Bruce K. Herman of 511 Law, P.A., Fort Lauderdale, for appellants.
    Wm. David Newman, Jr., of Law Offices of Marshall C. Watson, P.A., Fort Lauder-dale, for appellee Deutsche Bank National Trust Company, as Trustee for HALO 2007-2.
   PER CURIAM.

Pursuant to the Appellee’s concession of error, the order denying the motion to vacate final judgment and cancel certificate of title is reversed and this cause is remanded for further proceedings.

Reversed and Remanded.

WARNER, LEVINE and CONNER, JJ., concur.


text:
    Andre PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5289.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Andre Payne, appeals the trial court’s oral revocation of his community control due to a new offense in violation thereof. We find that the trial court erred when it failed to reduce the oral pronouncement to a written order.

Payne was on probation which was modified to include six months of community control. Upon being charged with aggravated battery with a deadly weapon in violation of his community control, the trial court orally pronounced the revocation of the community control. However, the trial court failed to enter a written order for the same.

This court remands the case for entry of a written order which conforms with the oral pronouncement by the trial court. This act is ministerial for future reference, is not a resentencing, and does not require the presence of the defendant.

Remanded.

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


text:
    BRT HOLDINGS, INC., a Delaware Corporation, Appellant, v. FIFTH GENERATION SYSTEMS, INC., a Delaware corporation qualified to do and doing business in the State of Florida, Appellee.
    No. 4D09-3738.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.
    Keith T. Grumer and Maidenly Macalu-so of Grumer & Macaluso, P.A., Fort Lauderdale, for appellant.

      Richard F. Hussey of Richard F. Hus-sey, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

BRT Holdings, Inc./plaintiff appeals from a final summary judgment in favor of defendant, Fifth Generation Systems, Inc., involving an asset purchase agreement. It claims that the court erred in interpreting the agreement between the parties as to the liabilities assumed by Fifth Generation. However, we find that the agreement did not provide for the assumption of the liabilities BRT claims were covered. We therefore affirm.

WARNER, POLEN and STEVENSON, JJ., concur.


text:
    G & H PARKER CONSTRUCTION INC., Appellant, v. Richard CAPRIGLIONE, Appellee.
    No. 4D09-3303.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.
    Andrew Degraffenreidt, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

WARNER, POLEN and TAYLOR, JJ., concur.


author: CIKLIN, J.

text:
    Kimon BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1052.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, 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.
   CIKLIN, J.

Kimon Black appeals his convictions for two first-degree murder charges and the resulting two life sentences. We review whether the trial court erred in denying Black’s motion to suppress the statements he made to police after his Miranda rights were administered. Because Black clearly and unequivocally invoked his right to counsel, we hold that the police were required to immediately stop questioning him, and any statements that resulted from continued questioning- should have been suppressed. Because the error was not harmless, we must reverse and remand for a new trial.

On August 8, 2003, Stanley Johnson and Otis Hayes were shot to death outside a party in Broward County during a fray involving multiple individuals. Almost three years later, on June 2, 2006, Kimon Black was arrested for the murders and taken into custody by detectives of the Broward County Sheriffs Office. After leaving Black in an interrogation room by himself and with a video camera recording all activities within the room, Detectives Timothy Duggan and Frank Ilarraza entered. Following some preliminary questioning of Black relating to his name and ability to read, the detectives had Black read a Miranda form out loud, including Black’s answers to each Miranda inquiry. As to Black’s Miranda rights, the following exchange between Black and Detective Duggan took place:

THE DEFENDANT: You have the right to remain silent. That is, you need not talk to me nor answer any questions that you do not want to. Do you understand that?
THE DETECTIVE: Do you understand?
THE DEFENDANT: Yes.
THE DETECTIVE: Okay. What about number three?
THE DEFENDANT: Should you talk to me, anything you say can and may be used against you in a court of law. Do you understand? Yes.'
You have the right to talk to an attorney or a lawyer before you talk to — and have an attorney/lawyer here with you during any questioning — during questioning now or in the future, do you understand? Yes.
If you cannot afford to retain your own attorney/lawyer and you want an attorney/lawyer, one will be appointed for you before we ask any questions. Do you understand that? Yeah, I understand that.
If you decide to answer the question now without any attorney present, you will have — you will still have the right to stop answering at any time until you talk to an attorney. Do you understand? [No audible answer]
Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney? No.
Have you previously requested any lawyer enforcement — have you previously requested any law enforcement officer to allow you to speak to any lawyer? Not yet.
THE DETECTIVE: Okay, put no. Sign your name.
THE DEFENDANT: I, Kimon Black, have read or have had it read to me and I understand my rights. Were these rights (inaudible) — a statement and answer questions regarding an attorney present.
I understand that I can stop answering any questions at any time. No threats or promises have been made to me. I understand and know that I’m (inaudible) — and this statement will be used in a court of law. Put in the time here?
THE DETECTIVE: Sure, it’s 9:42. Sign your name here and print your name here. I will witness it. Thank you. Kimon, do you want to talk to either Frank or I about the double murder?

At this point, Black began a lengthy narrative- response which directly addressed the events surrounding the double homicide. Recognizing that Black had, minutes earlier, unequivocally invoked his right to counsel, Detective Ilarraza asked Black whether he was “still willing to talk to us now about this?” This time, Black replied, ‘Yeah, I’ll talk to you briefly about it; briefly.” The detective inquired one last time, “Without an. attorney?” and Black responded, “Yeah.” After this exchange, the detectives questioned Black extensively about the double slaying. While Black did not' specifically confess or make any directly inculpatory statements, he detrimentally contradicted himself numerous times and made statements that became the centerpiece of the state’s case against him.

Defense counsel filed a motion to suppress any statements that Black made after he invoked his right to counsel. The trial court held a suppression hearing at which the detectives testified and a DVD recording of the entire interrogation was played. The trial court issued a written order denying the motion to suppress, stating that one of the detectives had testified that he did not comprehend Black’s response of “no” (to the question of answering questions in the absence of an attorney) and that the same detective had been up for an extended period of time and “missed” Black’s responses to the Miranda questions. A thorough review of the suppression hearing transcript reveals no evidence to support these findings by the trial court. Neither detective testified about being tired and neither detective used the word “missed” when describing their comprehension of Black’s answers. As a matter of fact, Detective Duggan testified repeatedly on cross-examination that he clearly understood Black’s responses to each Miranda question the first time. Finally, the trial court found that Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)—in which the United States Supreme Court held that after a defendant waives his Miranda rights, he can only reassert them with clear and unequivocal language — controlled this case. The trial court concluded that, notwithstanding Black’s clear in-voeation of his right to counsel, he waived his Miranda rights when he continued to speak with the detectives anyway.

Ordinarily, “when reviewing a ruling on a motion to suppress, an appellate court presumes the trial court’s findings of fact are correct and reverses only those findings not supported by competent substantial evidence.” Pierre v. State, 22 So.3d 759, 765 (Fla. 4th DCA 2009) (citation omitted). Additionally, the trial court’s findings of law are reviewed de novo. Id. However, “this deference to the trial court’s findings of fact does not fully apply when the findings are based on evidence other than live testimony.” Id. (quoting Parker v. State, 873 So.2d 270, 279 (Fla.2004)). In this case, the main issue before us relates back to the administration of Miranda warnings to Black and the exchange that occurred afterward — all of which was captured by a video camera and preserved on DVD. This DVD was played in its entirety at the suppression hearing and it appears to be largely on what the trial court based its findings. The trial court also based its order (denying the motion to suppress) on testimony offered by both detectives at the suppression hearing. As such, we review the trial court’s findings that are based on hearing each detective’s live testimony under the ordinary “competent and substantial evidence” standard. However, to the extent that the trial court’s findings are based on viewing the interrogation DVD, which this court of course, has also viewed, we utilize a much less deferential standard.

To protect suspects’ constitutional right against self-incrimination, law enforcement officers are required to inform them of their right to remain silent and to have counsel present at any custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Once an individual has invoked his or her right to counsel, police questioning of the person must cease immediately. Id at 474, 86 S.Ct. 1602 (“If the individual states that- he wants an attorney, the interrogation must cease until an attorney is present.”); Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (“We ... emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.”); Davis, 512 U.S. at 458, 114 S.Ct. 2350 (reiterating the Miranda and Edwards holdings that the police must cease interrogation of a person once he or she has clearly invoked the right to counsel). The United States Supreme' Court has explained why police must immediately halt any questioning of the suspect upon the suspect’s invocation of the right to counsel:

[A]ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle ór otherwise. Without the right to cut off- questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

Miranda, 384 U.S. at 474, 86 S.Ct. 1602.

Any statements that are produced as a result of a Miranda violation must be suppressed. Id. at 479, 86 S.Ct. 1602 (“[U]nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”).

“The safeguards provided by Miranda apply only if an individual is in custody and subject to interrogation.” Timmons v. State, 961 So.2d 378, 379 (Fla. 4th DCA 2007). Black was clearly in custody as he had been arrested and placed in an interrogation room by law enforcement officials. The detectives intended to interrogate Black about his involvement in the double homicide, so Miranda warnings were obviously required. This factor is undisputed. The interrogating detectives were also aware of this necessity as they dutifully 'administered Black’s Miranda warnings' prior to interrogating him. Accordingly, the issue here is not whether Miranda warnings were necessary, but whether the police honored Black’s answer that he did not want to speak to them without his attorney present. We find that they did not.

In the instant case, Black clearly asserted his right to counsel when he answered “no” to the inquiry, “Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney?” The detective who administered Black’s Miranda warnings testified repeatedly that Black’s answers to each Miranda inquiry were clear and he understood them. Having determined that Black clearly invoked his right to counsel, we must now determine whether the police continued interrogating Black in spite of that invocation.

“[T]he term ‘interrogation’ under Miranda refers not only to express- questioning, but also-to any words or actions on the part of the police. (other- than those normally attendant to arrest and custody) that the police should knpw are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). (footnotes omitted).

Quite simply, asking Black — after he clearly invoked his right to counsel— “Kimon, do you want to talk to either Frank or I [sic] about the double murder?” is likely to elicit an incriminating response. In fact, a follow-up question asking a suspect — after he or she just clearly invoked his or her right to counsel — whether the person wants to speak to the police anyway, appears to be the type of question designed to wear down a suspect’s resist tance to police questioning. Given Black’s clear invocation of his right to counsel, the detective’s follow-up question can only-be viewed as an effort (intended or not) to wear down Black’s resistance and make him change his mind. As such, all of the statements that resulted from the failure to respect Black’s right to counsel are — by definition — in violation of Miranda.

After Black clearly invoked his right to counsel, his responses to additional police questioning would be admissible only if this court were to find that Black “(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (citation omitted). The law is abundantly clear that “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards, 451 U.S. at 484, 101 S.Ct. 1880. Black did not re-initiate any conversation with the detectives; rather, it was the detectives who continued to question Black after he invoked his right to counsel. Therefore, the later attempt by one of the detectives to establish Black’s waiver of his right to counsel was ineffective. It is for this reason as well that the trial court erred in relying upon Davis. Davis applies where a defendant, who has already validly waived his or her Miranda rights, attempts to re-assert them later. See Davis, 512 U.S. at 461, 114 S.Ct. 2350 (“[A]fter a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.”). In the instant case, any waiver of Black’s Miranda rights was invalid because it was based upon police-initiated interrogation. See Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880 (“[A]n accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police

The state repeatedly emphasized Black’s interrogation statements in its opening statement and played to the jury the entire interrogation DVD. Black did not testify at trial and the main focus of the state’s closing argument was the interrogation DVD. The state’s constant closing argument drumbeat was that of a challenge to the jury to test the credibility of the state’s case by reviewing the DVD. The state used Black’s interrogation answers to urge a guilty conscience and implored the jury to play the DVD again during deliberations. Thus, the error here was not harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (stating that, to prove that an error was harmless, the state must show “there is no reasonable possibility that the error contributed to the conviction”).

In many matters — if not most — involving custodial interrogation vis-á-vis Miranda, cases fall on particular distinctions, differences, and factual nuances that are intricately imbedded .within complex and sometimes obscure factual scenarios. Seldom are appellate courts presented with a set of facts that illuminate a bright line thereby permitting a clear and simple application of the exclusionary rule. To that extent, we are fortunate.

The issue before us could not be more straightforward and uncomplicated. The digital recording of the interrogation that occurred in this matter leads to only one inescapable conclusion. When the suspect audibly read and unhesitatingly answered “no” to the following question, his interrogation should have immediately halted: “Do you wish to answer any questions without a lawyer present?” To hold otherwise would strike at the very heart and meaning of the Fifth Amendment. While we do not ascribe any ill motives to the detectives involved in Black’s interrogation, the bright line in this case was clearly crossed.

Reversed and remanded for a new trial.

POLEN and LEVINE, JJ., concur.

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

      . At this point, Black proceeded to read each Miranda inquiry out-loud as well as state his answer to each without being prompted by Detective Duggan.

      . The entire interrogation was video recorded onto a DVD, which was played, in its entirety, at the suppression hearing and trial.

      . This right is enshrined in both the United States Constitution and the Florida Constitution. U.S. Const, amend. V; art. 1, § 9, Fla. Const.

      . Had Black's response to the Miranda inquiries been unclear or ambiguous, the detectives would not only have been allowed to but also obligated to ask clarifying questions to determine Black's intent. See Alvarez v. State, 15 So.3d 738, 745 (Fla. 4th DCA 2009) ("Thus, an ambiguous waiver ;must be clarified before initial questioning.”). However, Black's answer was not ambiguous in any sense, so clarifying follów-up quéstions were unnecessary.

      . We acknowledge that the First District held differendy in a recent case. See Serrano v. State, 15 So.3d 629, 635 (Fla. 1st DCA 2009) ("Because a suspect's yes-or-no response to a question seeking verification of even an unequivocal clear invocation of the right to counsel could hardly be characterized as incriminating or testimonial, an officer's question to confirm the suspect's wishes, without more, does not violate clearly established law.”). While we disagree with that holding to the extent that it is inconsistent with the reasoning in this opinion, we note that in Serrano one judge dissented and another concurred with the outcome only and decided to affirm under a harmless error analysis. Therefore, the First District advanced three very different legal reasons to resolve the case, none of which had majority support. Because of the fractured nature of the Serrano opinion, the Florida Supreme Court found that it was unable to review the holding on appeal. See Serrano v. State, 26 So.3d 582 (Fla.2010) ("[T]he Court has determined that it lacks jurisdiction in this case because there is no majority decision on the merits.”). As such, we do not certify Serrano as being in conflict with our holding here.

      . “The right to counsel established by Miranda is a procedural safeguard that is not a right itself protected by the Constitution but is instead a measure to protect the Fifth Amendment right against compulsory self-incrimination.” Spivey v. State, 45 So.3d 51, 54 (Fla. 1st DCA 2010) (citing Davis, 512 U.S. at 457, 114 S.Ct. 2350).


text:
    E. QUALCOM CORP., a Florida corporation, Appellant, v. GLOBAL COMMERCE CENTER ASSOCIATION, INC., a Florida nonprofit corporation, Appellee.
    No. 4D09-4099.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.

      Samuel B. Reiner, II of Reiner & Rein-er, P.A., Miami, for appellant.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellee.
   CIKLIN, J.

E. Qualcom Corporation (“Qualcom”) appeals various summary judgments entered against it in a foreclosure action centered around non-payment of master association assessments owed to Global Commerce Center Association, Inc. (the “Association”). We reverse becáuse the Association failed to meet its burden of proving the absence of genuine issues of material fact with regard to Qualcom’s allegations that it suffered damages as a result of the Association’s failure to provide ■ proper maintenance and upkeep.

The appellant, Qualcom, is a telecommunications company that began doing business in 2003. That same year, Qualcom purchased property in the Global Commerce Center, a commercial building located in Weston, Florida. The appellee, the Association, is the master homeowners’ association for the Global Commerce Center. At the time Qualcom moved into the building, the company was still in its “start-up stage.”

In January 2008, the Association filed a complaint against Qualcom seeking foreclosure against Qualcom for its alleged failure to pay commercial homeowners’ association assessments. Qualcom filed an answer with affirmative defenses and a counterclaim. The counterclaim sought damages- for negligence and breach of contract, stemming from the Association’s alleged failure to .maintain the roof of Qualcom’s unit. According to Qualcom’s counterclaim, the failure to maintain the roof led to water damage that irreparably-damaged Qualcom’s computer hardware and other equipment necessary for Qual-com to carry on its business. More specifically, Qualcom sought damages for loss of personal property, loss of business opportunities, and loss of business income. As an affirmative defense to the Association’s foreclosure and collection action, Qualcom asserted, among other defenses, that it was entitled to a set-off in an amount equal to the damages suffered by Qualcom due to the leaking roof.

In July 2009, after a period of discovery between the, parties, the Association filed a motion for partial summary judgment of foreclosure based on Qualcom’s alleged failure to show proof of payment of any and all assessments allegedly due by Qual-com to .the Association. Additionally, in August 2009, the Association filed a motion for final summary judgment as to Qual-com’s counterclaim asserting that Qualcom had failed to prove damages to a reasonable degree of certainty as a matter of law.

Following a September 2009 hearing, the trial court ■ granted the Association’s motion for partial summary judgment of foreclosure and entered judgment against Qualcom in the amount of $55,200.82 for unpaid assessments, attorney’s fees, and costs. Subsequently, following a hearing on the Association’s motion for final summary judgment on Qualcom’s counterclaim, the trial court granted that motion as well, writing that, “for the reasons stated in the record, as to damages ... there is no issue of material fact in dispute.” Qualcom timely appealed both orders.

Review of an order granting summary judgment is de novo. Gomez v. Fradin, 41 So.3d 1068, 1071 (Fla. 4th DCA 2010). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available.” Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002). “The burden of proving the absence of a genuine issue of material fact is upon the. moving party. This burden is shifted to the nonmoving party once the movant has successfully met his burden.” Palm Beach Pain Mgmt., Inc. v. Carroll, 7 So.3d 1144, 1145 (Fla. 4th DCA 2009) (citations and internal quotation marks omitted).

Qualcom argues that the Association, as the moving party, failed to meet its burden of proving the absence of a genuine issue of material fact on Qualcom’s counterclaim. We agree. In support of its claim for damages to personal property, Qualcom produced pictures of damaged equipment as well as various invoices, receipts and proofs of payment evidencing Qualcom’s original purchases for almost all of the damaged equipment. Rather than submitting opposing evidence to show that Qualcom’s personal property suffered no damage or-that the property had ho market value when it was damaged, the Association successfully argued that Qualcom had failed to prove its damages to a reasonable degree of certainty.

Proving its damages to a reasonable degree of certainty, however, was not the standard that Qualcom was required to meet to overcome summary judgment. “Summary judgment may not be used as a substitute for trial. If the affidavits and other evidence raise any doubt as to any issue of material fact then a summary judgment may not be entered.” Cummins v. Allstate Indem. Co., 732 So.2d 380, 382-83 (Fla. 4th DCA 1999).

Qualcom next argues that the trial court erred in granting the Association’s motion for summary judgment on Qual-com’s counterclaim for lost profits. We agree.

The Association argued that since Qualcom had never earned a net profit in its business, any claim for “lost prospective profits” was too speculative. In W.W. Gay Mechanical Contractor, Inc. v. Wharfside Two, Ltd., 545 So.2d 1348 (Fla.1989), the Florida Supreme Court, however, established the standard for the award of lost prospective profits to a business that is not well-established:

A business can recover lost prospective profits regardless of whether it is established or has any “track record.” The party must prove that 1) the defendant’s action caused the damage and 2) there is some standard by which the amount of damages may be adequately determined.

Id. at 1351; see also Fu Sheng Indus. Co. v. T/F Sys., Inc., 690 So.2d 617, 624 (Fla. 4th DCA 1997) (applying the two-part test as defined in W.W. Gay Mechanical Contractor ).

Qualcom produced photographs of water-damaged equipment as well as testimony that the damage led to interruptions in service which in turn led to loss of clients and caused Qualcom to develop a poor reputation among’its target market. This evidence was sufficient to create a genuine issue of material fact with respect to causation, the first requirement under the W.W. Gay test.

The second prong of the W.W. Gay test requires that Qualcom provide “some standard by which the amount of damages may be adequately determined.” W.W. Gay, 545 So.2d at 1351. “Any ‘yardstick’ used to show the amount of profits must be reasonable, and the loss of the profits as a result of the [breach] must be reasonably certain.” Sostchin v. Doll Enters., Inc., 847 So.2d 1123, 1128 (Fla. 3d DCA 2003) (citing Halliburton Co. v. E. Cement Corp., 672 So.2d 844 (Fla. 4th DCA 1996)). An award of damages for lost profits cannot be “based upon speculation or conjecture.” Id.

In 4 Corners Insurance, Inc. v. Sun Publications of Florida, Inc., 5 So.3d 780 (Fla. 2d DCA 2009), the Second District held that the affidavit of the plaintiff corporation’s owner was sufficient to establish a genuine issue of material fact regarding whether the corporation suffered lost profits damages under the yardstick theory. Id. at 783-84. The affidavit attested that, according to industry standards, the plaintiffs gross revenues would have doubled but for the defendant’s wrongful eviction. The court noted that “[w]hile this evidence in itself might not be sufficient to sustain a verdict for lost profits damages, it is sufficient to establish a genuine issue of material fact on the issue.” Id. at 784.

Like the corporate plaintiff in I Comers, Qualcom did in fact provide some standard by which to measure damages. Qualcom produced evidence whereby its president explained the company’s business plan and its “conservative forecast” of having 2200 clients per year with revenues near $7 million in four years. Thus, while Qual-com’s president’s testimony might not be sufficient to sustain a verdict for lost profit damages, it was sufficient to establish a genuine issue of material fact. See id.

The Association points out that Qual-com’s president, acknowledged multiple problems that Qualcom encountered which may also have affected its business income. These obstacles included a computer virus that contaminated Qualcom’s equipment, better prices from competitors, and the impact that the economic downturn had on Qualcom’s customers. These problems, however, do not affect the “yardstick” which could be used' to measure lost profit. Rather, the evidence of these other problems goes to causation, and if anything, just shows that there was an issue of material fact which should have precluded summary judgment on that issue.

The questions of causation and the amount of “lost profit” damages are genuine issues of material fact that remain to be decided by the finder of fact in this case. Thus, the trial court erred in determining that the Association was entitled to summary judgment in its favor as a matter of law with respect to Qualcom’s claim for lost profit damages.

Next, Qualcom argues the trial court erred in granting the Association’s motion for partial final judgment of foreclosure because the trial court failed to address Qualcom’s affirmative defense of set-off for damages incurred due to the Association’s failure to timely repair Qual-com’s roof. We agree.

“In the absence of some proof contradicting an affirmative defense, entry of summary judgment is improper.” Fla. Web Printing, Inc. v. Impact Adver., Inc., 728 So.2d 884, 885 (Fla. 2d DCA 1998). As we explained in Alejandre v. Deutsche Bank Trust Co. Ams., 44 So.3d 1288 (Fla. 4th DCA 2010):

When a party raises affirmative defenses, a summary judgment should not be granted where there are issues of fact raised by the affirmative defenses which have not been effectively factually challenged and refuted. Thus, in order for a plaintiff to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses. In such instances, the burden is on the plaintiff, as the moving party, to demonstrate that the defendant could not prevail.

Id. at 1289. (alterations removed) (citations and internal quotation marks omitted). Set-off is an affirmative defense which precludes summary judgment if the moving party does not “demonstrate that the defendant could not prevail.” See Fla. Web Printing, 723 So.2d at 885 (“The trial court erred in granting [the counterplaintiffs] motion for partial summary judgment without addressing [the counterdefen-dant’s] affirmative defense of damages ... which could, and did, offset the amount awarded by the summary judgment.”).

Here, Qualcom raised the affirmative defense of set-off based on- its allegations that the Association had a duty to maintain the roof of Qualcom’s building,, and that failure to maintain the roof caused damages to Qualcom’s personal property and business opportunities. This set-off is based on the same operative facts and legal principles as Qualcom’s counterclaim for damages. As stated above, however, there are issues of material fact that remain "with respect to Qualcom’s counterclaim. Thus, as “there are issues of fact raised by the affirmative defenses which have not been effectively factually challenged and refuted,” the partial summary judgment of foreclosure should not have been granted. See Alejandre, 44 So.3d at 1289.

Sometime after filing its notice of appeal, Qualcom paid the $55,200.82 judgment in order to avoid the sale of its property. The Association argues that Qualcom waived its right to appeal the partial summary judgment of foreclosure by paying the judgment. We disagree. Where a party pays an adverse money judgment to avoid a forced sale of property, the payment is deemed “involuntary” and the payment does not result in a waiver of the right to appeal the judgment. See Whipple v. JSZ Fin. Co., 717 So.2d 608, 609 (Fla. 4th DCA 1998); Ronette Commc’ns Corp. v. Lopez, 475 So.2d 1360, 1360 (Fla. 5th DCA 1985).

While this appeal was pending, the trial court granted a satisfaction of judgment. On remand, the trial court must vacate the satisfaction of judgment as the trial court was without jurisdiction to enter the satisfaction while this appeal was pending. See Spencer v. DiGiacomo, 56 So.3d 92 (Fla. 4th DCA 2011).

Accordingly, we reverse the final summary judgment against Qualcom on its counterclaim; we reverse the partial summary judgment of foreclosure in favor of the Association; we order the trial court to vacate the satisfaction of judgment; and we remand for further proceedings consistent with this opinion.

Reversed and'remanded for further proceedings consistent with this opinion.

POLEN and HAZOURI, JJ., concur:

      .. We also note that at the hearing on the Association’s motion for summary judgment on Qualcom’s counterclaim, the trial court indicated that it was awarding summary judgment in favor of the Association because Qualcom had failed to identify in advance, pursuant to Florida Rule of Civil Procedure 1.510(c), any evidence on which it would rely in opposition to the motion for summary judgment. Qualcom, however, as the non-moving party did not have to present. any evidence to prevail at summary judgment because the Association did not first meet its burden of proving that there were no genuine issues of material fact. Thus, entry of summary judgment on this issue was improper.

      . The record shows that Qualcom actually did have a track record with respect to some of the "lost profit” that it is claiming. For example, Qualcom contends that it had two tenants that abandoned the property because of the leaking roof before the terms of their contracts with Qualcom expired. Qualcom claims that it lost nearly $250,000 in unpaid rents because these tenants left. If Qualcom ultimately proves that the tenants abandoned the property because of the Association’s failure to promptly fix the damaged roof, the measurement of damages would be "reasonably certain.” See Sostchin, 847 So.2d at 1128.


author: LEVINE, J.

text:
    STATE of Florida, OFFICE OF The ATTORNEY GENERAL, Appellant, v. SHAPIRO & FISHMAN, LLP, Appellee.
    No. 4D10-4526.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.

      Pamela Jo Bondi, Attorney General, and Jason Vail, Assistant Attorney General, Tallahassee, for appellant.
    Gerald F. Richman, Michael J. Napole-one and Leora Freire of Richman Greer, P.A., West Palm Beach, for appellee.
   LEVINE, J.

The issue presented in this appeal is whether the trial court erred in quashing a civil investigative subpoena duces tecum issued by the Office of the Attorney General and served on appellee Shapiro & Fishman, LLP, a law firm. We find the trial court did not err since the Attorney General’s investigative subpoena, issued exclusively under the statutory authority of Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA), sections 501.201-.213, Florida Statutes, was issued to investigate actions of the appellee law firm not covered under the rubric of “trade or commerce” as clearly required by this statute. Since we find the Attorney General failed to establish that the object of the civil subpoena was connected to “trade or commerce,” we need not address the other issues raised by the appellant, and we affirm.

On August 6, 2010, the Office of the Attorney General issued a civil investigative subpoena to Shapiro & Fishman, a law firm which provides legal services in foreclosure cases. The subpoena sought production of documents related to thirteen different subjects involving the law firm’s representation of lending institutions in foreclosure cases. The subpoena sought information on any corporations, companies, partnerships, or associations in which the law firm and the named partners had any interest. It also asked for the names of all servicing companies the firm had represented in the past five years; all nondisclosure agreements the firm executed in the past five years with employees, subcontractors, and independent contractors; copies of checks or evidence of other payment from plaintiffs represented in foreclosure cases by the firm; and documents on the amount paid to the firm’s employees, subcontractors, and independent contractors for completion of foreclosure cases within a certain time period.

The subpoena clearly indicated that the Attorney General relied exclusively on the statutory authority of FDUTPA. The subpoena stated, in pertinent part, as follows: “The general purpose and scope of this investigation extends to possible unfair and deceptive trade practices which involve the advertising and marketing practices of the above named recipient [the Shapiro Firm].” Nowhere in the subpoena, however, did the Attorney General include a specific request for information related to the law firm’s advertising or marketing practices.

The law firm filed a petition to quash the subpoena. The Attorney General filed a response to the motion to quash and alleged that the subpoena was, in fact, a response to complaints alleging that the law firm had been fabricating or presenting false or misleading documents for utilization in foreclosure cases. The trial court held a hearing and quashed the subpoena for several reasons, including that the Attorney General did not have the authority to subpoena the law firm under the FDUTPA statute. This appeal of the trial court’s quashing of the subpoena ensues.

We review this issue on appeal de novo. See Murray v. Manner Health, 994 So.2d 1051, 1056 (Fla.2008) (“Statutory interpretation is a question of law subject to de novo review.”); Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000) (providing that “the standard of review for a pure question of law is de novo”).

The Office of the Attorney General issued a civil investigative subpoena pursuant to section 501.206, Florida Statutes, a part of FDUTPA. FDUTPA was designed in part to “protect the consuming public and legitimate- business enterprises from those who engage in unfair methods of competition, or .unconscionable, deceptive, or unfair acts. or practices in the conduct of any trade or commerce.” § 501.202(2), Fla. Stat.

The term “trade or commerce” is specifically defined in section 501.203(8) of the act:

“Trade or commerce” means the advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or -otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. “Trade or commerce” shall include the conduct of any trade or eotomerce, however denominated, including any nonprofit or not-for-profit person or activity.

In Florida, two federal courts have addressed issues similar to the case at bar. In Trent v. Mortgage Electronic Registration Systems, Inc., 618 F.Supp.2d 1356 (M.D.Fla.2007), a class action suit was initiated by mortgage borrowers against the successor to the original lender, based on the successor’s actions in foreclosing on mortgages. The borrowers alleged that the successor to the original lenders violated FDUTPA by engaging in the unlicensed practice of law and by using deceptive means to collect debts on residential mortgage loans.

The district court found that the successors did not, in fact, engage in “unfair” and “deceptive” acts. However, the district court stated:

Even assuming arguendo the facts as pled establish that MERS engaged in deceptive acts or unfair trade practices, MERS’ actions do not qualify as “trade or commerce” under the Act.... The Court agrees with MERS that under the plain language of the statute, MERS did not “advertise, solicit, provide, offer or distribute” anything.

Id. at 1365 n. 12. The district court concluded:

What MERS did is obtain a legal interest in a note from third party lenders (becoming the “holder” of the note so that it could lawfully foreclose) and then proceeded to foreclosure. That MERS communicated pre-suit with plaintiffs that it was a “creditor” or “owned” the debt does not fall within the purview of “trade or commerce.”

Id.

In Kelly v. Palmer, Reifler, & Associates, P.A., 681 F.Supp.2d 1356 (S.D.Fla. 2010), individuals who received civil theft demand letters -from a law firm, threatening to file a lawsuit if payments were not made, filed a class action suit against the law firm alleging, among various claims, a violation of FDUTPA by that law firm. The district court granted summary judgment for the law firm on claims of FDUT-PA violations, concluding that the plaintiffs did not satisfy the “ ‘trade or commerce’ element of FDUTPA.” Id. at 1374. The Kelly court concluded:

[W]e do not agree with Plaintiffs that the Palmer Law Firm’s pursuit of civil theft remedies ... falls within the meaning of “trade or commerce” such that the firm could be subject to liability under FDUTPA. While it has some initial appeal, we do not find that the firm’s offer to settle and release claims for money constitutes soliciting and offering to Plaintiffs a “thing of value” under the act.

Id. at 1375. “The Palmer Law Firm’s acts-conduct ostensibly occurring during the exercise of a legal remedy-had zero connection whatsoever to any ‘trade or commerce.’ ” Id

We are persuaded by the Trent and Kelly cases to find that the alleged conduct of the law firm in the present case does not fall within the rubric of “trade or commerce” as required for civil investigative subpoenas under FDUTPA. The Office of the Attorney General’s subpoena centers on the law firm’s conduct in the processing of foreclosure cases, as opposed to the initial applications for mortgages or the initial lending relationships, which would be more akin to traditional notions of “trade or commerce” as defined by the FDUTPA statute.

Courts from other jurisdictions have concluded that alleged actions similar to those in the present case would not constitute “trade or commerce” under equivalent consumer protection statutes, which are similar to FDUTPA. See Dalesandro v. Longs Drug Stores Cal., Inc., 383 F.Supp.2d 1244, 1250-51 (D.Haw.2005) (concluding that a pharmacy owner was not engaged in “trade or commerce” when it refused to provide a customer complete copy of records, where the refusal was “in the context of settlement and preparation for litigation, which is distinct from a ‘business context’ ”); Begelfer v. Najarian, 381 Mass. 177, 409 N.E.2d 167, 176 (1980) (finding that “defendants’ pursuit of their contractual and legal remedies” was not engaging in “trade or commerce,” and the demand for payment under a note did not constitute an “unfair or deceptive act”).

At oral argument, the Attorney General conceded it had decided to proceed exclusively under this one particular statutory provision. It could have proceeded under another statutory provision, such as a criminal investigative subpoena if other relevant criteria were satisfied, which would not require the subpoena to qualify as connected to “trade or commerce” under FDUTPA. This was exclusively the choice of the state.

We find that the trial court did not err in quashing the civil investigative subpoena since the information sought under this subpoena had no connection or nexus to “trade or commerce,” which is a key component of the FDUTPA statute. The Attorney General argued at the hearing before the trial court that this particular subpoena could be utilized since it was merely “gathering evidence.” Although that is unquestionably true for all investigative subpoenas, there still has to be statutory basis for the issuance of a subpoena that is moored to a particular statute, that being FDUTPA in this case.

We are compelled to require that the subpoena issued pursuant to a specific statute be connected to that particular statute. As Justice Cardozo once wrote: ‘We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take the statute as we find it.” Anderson v. Wilson, 289 U.S. 20, 27, 53 S.Ct. 417, 77 L.Ed. 1004 (1933). Similarly, we take FDUTPA as we find it, and we affirm the trial court’s order to quash the subpoena.

Affirmed.

WARNER and HAZOURI, JJ., concur.

      . The Office of the Attorney General does not challenge the trial court's determination that the investigative subpoena was overbroad, vague, and unduly burdensome. Instead, it challenges the trial court’s other determination that the Office of the Attorney General lacks authority to issue the civil investigative subpoena pursuant to FDUTPA, so it can withdraw the subpoena and issue a new subpoena "more narrowly tailored than the original.”

      . At the hearing, counsel for the Attorney General conceded that the "front of the subpoena does misstate the purpose of the investigation.”

      . This case was originally filed as a petition for writ of certiorari, but we have re-designated it ás a final appeal since the trial court's ruling disposed of the entire pending matter. See Fla. R.App. P. 9.040(c); Transcall Am., Inc. v. Butterworth, 604 So.2d 1253 (Fla. 1st DCA 1992).


text:
    MASNEY AUTO TRANSPORT, INC., Appellant, v. SHIPPER’S TRANSPORT COMPANY, Appellee.
    No. 5D10-1216.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2011.
    Keith A. Graham, of Marchena and Graham, P.A., Orlando, for Appellant.
    Sharon C. Degnan, of Kubicki Draper, Fort Lauderdale, for Appellee.
   PER CURIAM.

Masney Auto Transport, Inc. [“Mas-ney”] obtained a judgment against Shipper’s Transport Company [“Shipper’s”] and now appeals the order denying Mas-ney’s motion for attorney’s fees and the order striking Masney’s claim for prejudgment interest. Masney correctly contends that the trial court erred by striking its claim for pre-judgment interest on the $155,399.00 of past, out-of-pocket, lost profits damages that the jury’s verdict liquidated. See Bosem v. Musa Holdings, Inc., 46 So.3d 42 (Fla.2010). The trial court’s order denying Masney’s motion for attorney’s fees incurred due to Shipper’s refusals to admit certain of Masney’s requests for admissions is affirmed without discussion.

AFFIRMED in part; REVERSED in part.

GRIFFIN, SAWAYA and ORFINGER, JJ., concur.


text:
    Gregory EVERETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2867.
    District Court of Appeal of Florida, Second District.
    April 29, 2011.
    Gregory Everett, pro se.
   PER CURIAM.

Gregory Everett appeals the order denying his timely motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which raised four grounds for relief. We reverse and remand for further proceedings on ground two only.

Everett alleged under oath that he was deprived of due process when the trial judge failed to dismiss the jury for misconduct after the prosecutor, the victim, and the victim’s mother “held a conference” with jurors in a courthouse corridor during a recess. Everett further claimed that his trial attorney brought this matter to the judge’s attention in open court but that the judge failed to inquire about the substance of the hallway discussion.

Attached to Everett’s motion was his trial counsel’s affidavit, which supported the contention that the attorney had alerted the trial judge about the potentially improper conversation between one or more jurors and the victim but that portion of the proceedings was not recorded. In response, the State conceded the need for a hearing to resolve issues relating to possible witness contact with the jurors during trial. The postconviction court then ordered an evidentiary hearing on this matter. However, before the hearing was held, a successor judge sua sponte denied the motion on the merits, finding that Everett was not entitled to an eviden-tiary hearing because claims of trial court error must be raised on appeal rather than in a rule 3.850 motion.

Nothing attached to the order on appeal demonstrates that the issue Everett raised in his postconviction motion could have been raised on direct appeal. Indeed, the allegations appear to be that the trial judge and trial counsel failed to have the court reporting system in place or operating when the matter was addressed to the judge. If that is the case, given that trial counsel was not the appellate counsel, there would have been little or no ability for appellate counsel to even appreciate that the issue existed.-

We conclude that this motion could not be summarily denied on the grounds relied upon by the postconviction court. Accordingly, we reverse and remand for further proceedings. We would note that the State, while conceding that an evidentiary hearing was necessary, did not concede that the motion was facially sufficient to establish the prejudice prong of Strickland. See Thompson v. State, 990 So.2d 482, 490-91 (Fla.2008) (requiring a showing that the result of the proceeding was rendered unreliable, and confidence in the outcome undermined by counsel’s deficiency). On remand, the postconviction, court is authorized to allow Everett to amend his motion to allege prejudice in greater detail. However, given that the motion was filed in 2002 and it alleges a due process violation, the postcoriviction court may find that it is more expedient at this time to conduct an evidentiary hearing to determine the facts surrounding the alleged hallway conference.

Affirmed in part; reversed in part; and remanded. ■

ALTENBERND, NORTHCUTT, and KELLY, JJ., Concur.

      . From our record, we cannot determine whether the trial was digitally recorded or whether there was a court reporter present at trial.

      . Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: CRENSHAW, Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Osner EXANTUS, Appellee/Cross-Appellant.
    No. 2D10-1385.
    District Court of Appeal of Florida, Second District.
    April 29, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellee/Cross-Ap-pellant.
   CRENSHAW, Judge.

The State appeals a trial court order granting Osner Exantus’ motion to suppress evidence based on what Exantus alleged was a facially insufficient search warrant. Exantus cross-appeals the denial of his motion to suppress evidence obtained from an allegedly unlawful vehicle search. We conclude the trial court erred by determining that the magistrate did not have probable cause to issue the warrant, and therefore we reverse the order suppressing the evidence and remand for further proceedings. We affirm, without discussion, the trial court’s ruling with respect to the initial search of the vehicle.

The State charged Exantus with unauthorized acting as a money transmitter and money laundering in excess of $20,000 and less than $100,000 under sections 560.125(5)(b) and 896.101(3), Florida Statutes (2008). In support of these charges, Lee County Sheriffs Deputy Jason Fithian sought a search warrant to conduct an ion scan of the interior of a vehicle driven by Exantus. Deputy Fithian pulled the vehicle over during a routine traffic stop and, after observing Exantus’ irregular behavior, had Bucky, a trained narcotics detection dog, conduct an air sniff around the vehicle. Bucky alerted near the trunk. Exantus consented to a vehicle search, and law enforcement discovered a large shopping bag containing approximately $83,220 in U.S. currency wrapped in dozens of rubber-banded bundles hidden in the rear of the vehicle. Bucky also alerted to the currency during a controlled box test. Based on these circumstances, law enforcement wanted to conduct an ion scan to determine whether additional testing for the presence of drugs would link Exantus to the charges. The search warrant issued by the magistrate contained a sworn affidavit from Deputy Fithian attesting to the circumstances surrounding the stop and subsequent search of the vehicle.

The ion scan detected trace elements of MDMA and cocaine. Exantus moved to suppress the results of the scan arguing, inter alia, that the search warrant was deficient because Deputy Fithian’s affidavit did not contain sufficient information linking Exantus to the suspected narcotics. The trial court agreed, summarily concluding that the supporting affidavit omitted material information and could not support the magistrate’s finding of probable cause.

Our review of an order involving the suppression of evidence seized pursuant to a search warrant requires us to consider the test used by the magistrate issuing the warrant, the test used by the trial court when ruling on a motion to suppress, and the appropriate appellate standard of review assessing the trial court’s decision. Pilieci v. State, 991 So.2d 883, 889 (Fla. 2d DCA 2008). The magistrate’s decision as to whether probable cause exists to issue the search warrant is limited to the facts stated in the affidavit. Id. “To establish probable cause, the affidavit must set forth two elements: (1) the commission element — that a particular person has committed a crime — and (2) the nexus element — that evidence relevant to the probable criminality is likely to be located at the place searched.” State v. Vanderhors, 927 So.2d 1011, 1013 (Fla. 2d DCA 2006). The magistrate must then examine the sufficiency of the probable cause alleged in the affidavit under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

The trial court, in turn, must determine “whether the issuing magistrate had a substantial basis for concluding that probable cause existed, and this determination is made by examining the affidavit in its entirety.” Vanderhors, 927 So.2d at 1013. The trial court should afford “great deference” to the magistrate’s decision and should not review the magistrate’s decision de novo. Gates, 462 U.S. at 236, 103 S.Ct. 2317; Pilieci, 991 So.2d at 892; Rios v. State, 483 So.2d 39, 41 (Fla. 2d DCA 1986). Where, as here, the parties also challenge the sufficiency of the affidavit based on material omissions, the trial court “must determine whether the omitted material, if added to the affidavit, would have defeated probable cause, and ... must find that the omission resulted from intentional or reckless police conduct that amounts to deception.” Johnson v. State, 660 So.2d 648, 656 (Fla.1995) (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)); see also Pagan v. State, 880 So.2d 792, 807 (Fla.2002); Pilieci, 991 So.2d at 895. Finally, this court reviews the trial court’s probable cause determination “with a presumption of correctness given to the trial court’s conclusion, which in turn would give great deference to the magistrate.” Pilieci, 991 So.2d at 894; see also Terry v. State, 668 So.2d 954, 959 (Fla.1996).

The issuing magistrate was required to rely solely on the affidavit when considering, under the totality of the circumstances, whether there was probable cause that Exantus acted unlawfully under sections 560.125 and 896.101 and whether a nexus to these offenses existed. The affidavit contained information that Exantus behaved erratically during the traffic stop, Bucky alerted during an air sniff and a controlled box test, and $83,220 in U.S. currency was discovered in a plastic bag hidden in the rear of the vehicle. We, like the magistrate, conclude the totality of these factors established a factual basis for the magistrate to find probable cause to issue the search warrant to conduct an ion scan of the vehicle. Yet the trial court, when it reviewed the magistrate’s findings, appeared to focus on the sufficiency of the affidavit as to whether there was probable cause to find that Exantus committed a drug offense rather than whether there was probable cause to find that he committed the offenses of acting as a money transmitter and money laundering. The trial court failed to afford great deference to the magistrate’s decision and appeared to apply an improper de novo standard of review.

Moreover, pursuant to Johnson, after finding that Deputy Fithian’s affidavit was insufficient due to material omissions, the trial court should have addressed Ex-antus’ claims that the omitted material, if added, would have defeated probable cause and that the omissions resulted from intentional or reckless police conduct that amounted to deception. We conclude the addition of most of the omitted material would have strengthened, not defeated, a finding of probable cause. Likewise, there is no indication that Deputy Fithian purposefully misled the magistrate in his affidavit. Therefore, Exantus failed to meet his burden under Johnson.

Accordingly, we reverse, in part, the trial court’s order granting Exantus’ motion to suppress evidence obtained from the ion scan and remand for further proceedings. We affirm the trial court’s order in all other respects.

Affirmed in part, reversed in part, and remanded.

DAVIS, J., Concurs.

SILBERMAN, J., Concurs in result only.

      . An ion scan is used to “detect and isolate the location of minute quantities of illegal drugs” through the "scientific technique of ion mobility spectrometry.” Marjorie A. Shields, Annotation, Admissibility of Ion Evidence, 124 A.L.R. Fed. 691, § 2 (2004).

      . Nonetheless, the Florida Supreme Court pointed out Franks dealt solely with the .problem of misstatements and thus Franks "could not logically be applied precisely the same way to factual omissions from the affidavit.” Johnson, 660 So.2d at 655.