author: SHEPHERD, J.

text:
    Mathew ROCCA, Appellant, v. Irene BOYANSKY, et al., Appellees.
    No. 3D10-764.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.

      Wintter & Associates, and Christopher Q. Wintter and Max G. Soren, Hollywood, for appellant.

      Ellis & Goldberg and David H. Goldberg; Victor K. Rones, for appellees.
    Before SHEPHERD, ROTHENBERG, and SALTER, JJ.
   SHEPHERD, J.

Mathew Rocca challenges an order admitting a will executed by his grandfather, Sidney Boyansky, on November 16, 2007, into probate and appointing appellees, Irene Boyansky, his widow, and Victor K. Rones, Esq., as personal representatives of his estate. Rocca argues that because he filed a caveat and challenge to the validity of the will prior to the appointment of Irene Boyansky and Victor Rones as personal representatives, the trial court erred in admitting the will to probate before ruling on his challenge to the validity of the will. We agree and reverse the order on appeal. A brief recitation of the factual background and procedural history of this case is necessary to our decision.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Sidney Boyansky died on April 23, 2009. He executed two wills that are at issue, dated respectively July 29, 2004, and November 16, 2007. In his November 16, 2007, will, Boyansky nominated Emile Martin and Victor K. Rones as personal representatives of his estate and directed that the residuary, after payment of expenses and distribution of personal property, pour into the Second Restated Sidney Boyansky Revocable Trust for distribution pursuant to its terms. The July 29, 2004, will nominated Joseph Rupert and Victor K. Rones as personal representatives, and directed that the remaining assets of Sidney Boyansky’s estate, after expenses and bequests of personal property, pour into an earlier Revocable Trust Agreement of November 12, 1999, as amended by a First Amendment of January 25, 2002. The substantial difference between the two sets of instruments is that Mathew Rocca is disinherited under the Second Restated Sidney Boyansky Trust, but apparently not under the November 12, 1999, revocable trust as amended.

On June 10, 2009, Irene Boyansky, Emile Martin, and Victor Rones filed a Petition for Administration accompanied by the November 16, 2007, will, seeking to have Martin and Rones appointed as personal representatives thereunder for purposes of administering the estate. On August 21, 2009, Mathew Rocca filed a “Caveat by Interested Person” in the action, requesting the court not to admit a will to probate or appoint a personal representative without providing him or his designated agent, Christopher Wintter, formal notice of the proceeding in accordance with Florida Probate Rule 5.260(f). The petitioners responded on August 25, 2009, with an Amended Petition for Administration, modified only to request that Sidney Boyansky’s widow, Irene, be appointed as co-personal representative of the estate of Sidney Boyansky under the November 16, 2007, will in the stead of Emile Martin. Formal notice of the proceeding was served on Rocca and his designated agent on August 31, 2009. In accordance with Florida Probate Rule 5.040(a), the formal notice served on Roc-ca notified him he had twenty days within which to serve written defenses to the Amended Petition, and his failure to do so “may result in a judgment or order for the relief demanded in the pleading or notice, without further notice.”

Rocca did not file a response within the period allotted by the rule. Instead, on September 21, 2009, he filed an Objection to the Amended Petition for Administration, Objection to Admission of Last Will and Testament to Probate and Motion for Enlargement of Time to File and Serve an Answer to the Petition for Administration and Counter Petition for Administration. The trial court ultimately extended Rocca’s time within which to file his answer and counter-petition to December 15, 2009. Meanwhile, on November 13, 2009, the petitioners noticed a fifteen-minute special set hearing for December 22, 2009, before the trial court on its Amended Petition for Administration. The notice of hearing did not state whether the hearing was intended to be an evidentiary hearing.

Rocca finally filed his Answer, Affirmative Defenses, and Counter Petition for Administration thirty minutes before the commencement of the December 22, 2009, hearing. He asserted in his filings that the November 16, 2007, will was invalid because his grandfather lacked testamentary capacity at the time it was executed and the will was procured by undue influence. By his Counter Petition, Rocca petitioned for administration of the July 29, 2004, will, or, alternatively, distribution pursuant to the laws of intestacy. Faced with a tardy filing, the petitioners argued at the hearing the court should admit the November 16, 2007, will to probate as sought by the Amended Petition because (1) Rocca effectively defaulted on the allegations of the Amended Petition by untimely filing his Answer, Affirmative Defenses and Counter-Petition; or, alternately, (2) the proper procedure under the circumstance was for the court to admit the November 16, 2007, will to probate and rule on its validity thereafter. Rocca stood on the allegations in his late filed Answer, Affirmative Defenses, and Counter Petition, arguing the trial court first was required to adjudicate his freshly filed challenge to the November 16, 2007, will before appointing personal representatives or issuing letters of administration. At the conclusion of the hearing, the trial court admitted the November 16, 2007, will to probate as a self-proving will, appointed Irene Boyansky and Victor Rones as personal representatives under the will, and issued letters of administration to the appellees. Perhaps swayed by the petitioners’ argument that Rocca’s tardy filing of his Answer, Affirmative Defenses and Counter Petition amounted to a default on the allegations of the Amended Petition, the trial court stated in its written order that “no objection ha[d] been made to [the will’s] probate.” The trial court erred in entering this order.

ANALYSIS

Section 733.2123 of the Florida Statutes (2009), reads as follows:

733.2123 Adjudication before issuance of letters
A petitioner may serve formal notice of the petition for administration on interested persons. A copy of the will offered for probate shall be attached to the notice. No person who is served with formal notice of the petition for administration prior to the issuance of letters or who has waived notice may challenge the validity of the will, testacy of the decedent, qualifications of the personal representative, venue, or jurisdiction of the court, except in the proceedings before issuance of letters.

(emphasis added). This section must be read in conjunction with section 731.110(3) of the Florida Probate Code and Florida Probate Rule 5.260(f). Section 731.110(3), Florida Statutes (2009), provides:

When a caveat has been filed by an interested person other than a creditor, the court shall not admit a will of the decedent to probate or appoint a personal representative until the petition for administration has been served on the caveator or the caveator’s designated agent by formal notice and the caveator has had the opportunity to participate in proceedings on the petition.

(emphasis added). Rule 5.260(f) complements this provision of the Code, stating: “After the filing of a caveat by an interested person, other than a creditor, the court shall not admit a will of the decedent to probate or appoint a personal representative without service of formal notice on the caveator or the caveator’s designated agent.” Thus, it appears that if a caveat is filed, the permissive language of section 733.2123 becomes mandatory and requires the petitioner to serve formal notice of his or her petition upon caveators, as provided under section 731.110(3). See In re Estate of Hartman v. Eberhardt, 836 So.2d 1038, 1039 (Fla. 2d DCA 2002). The clear implication of these sections of the Florida Probate Code and Rules is that will contests and the rights of caveators must be determined prior to letters of administration being issued, and we so hold. See Wheeler v. Powers, 972 So.2d 285, 289 (Fla. 5th DCA 2008); In re Estate of Hartman, 836 So.2d at 1039 (“[P]robate court was obliged to make a determination on th[e] challenge to the will prior to appointing a personal representative and admitting the will to probate.”); Grooms v. Royce, 638 So.2d 1019, 1021 (Fla. 5th DCA 1994) (“The trial court is required to rule on the challenge to the will before proceeding to probate or naming the personal representative .... ”); In re Estate of Roberg, 396 So.2d 235, 236 (Fla. 2d DCA 1981) (“In an original administration, a will contest must be resolved prior to admission of the will to probate if the personal representative petitioner has served the interested person with a copy of the petition.”); see also Street v. Crosthwait, 136 Fla. 327, 186 So. 516 (1939); Barry v. Walker, 103 Fla. 533, 137 So. 711 (1931) (noting that a caveat filed by will contestant precludes the admission of the will to probate until the caveator has been given notice, thereby affording opportunity to have will contest tried before probate). In this case, the trial court failed to adjudicate the validity of the November 16, 2007, will before admitting it to probate, contrary to sections 731.110(3) and 733.2123 of the Florida Statutes.

On appeal to this Court, the appel-lees renew their argument that affirmance nevertheless is in order because Rocca defaulted on the Amended Petition and was barred from defending against it by untimely filing his answer and affirmative defenses to the Amended Petition. Alternatively, the appellees argue Rocca was given a hearing and did not take advantage of it. We disagree.

It is true Rocca was given a hearing. The hearing was noticed by the appellees on November 13, 2009, a full month before it occurred. However, the appellees did not notice the hearing as an evidentiary hearing, and there was no reason then for them to do so since the Answer, Affirmative Defenses, and Counter-Petition had yet to be filed. Moreover, the record is clear the trial court offered Rocca no opportunity to present evidence or argument relating to the validity of the will during the course of the hearing. The hearing consisted entirely of procedural arguments by the respective parties. The fact the trial court stated in its written order that “no objection ha[d] been made to [the will’s] probate” confirms the trial court did not consider or rule on Rocca’s will contest and, in all likelihood, concluded that Roc-ca’s untimely filing of his Answer, Affirmative Defenses, and Counter Petition was fatal to his challenge to the validity of the November 16, 2007, will.

Section 731.110(3) of the Florida Statutes (2009), commands that a caveator “ha[ve] had the opportunity to participate in proceedings on the petition” before a will is admitted to probate. We believe this command to be in the nature of a statutorily created procedural due process right requiring the caveator be given a full and fair opportunity to be heard before his substantial interests are determined. In the context of a will contest, this statutory “right to be heard includes the right to introduce evidence at a meaningful time and in a meaningful manner. It also includes the right to cross-examine witnesses and be heard on questions of law.” State Dep’t of Fin. Servs. v. Branch Banking & Trust Co., 40 So.3d 829, 833 (Fla. 1st DCA 2010) (quoting Vollmer v. Key Dev. Props., Inc., 966 So.2d 1022, 1027 (Fla. 2d DCA 2007)). This right is more than simply being allowed to be present and speak. Branch Banking, 40 So.3d at 833. In our case, Rocca made clear to the trial court he desired an evidentiary hearing on the validity of the November 16, 2007, will before the court allowed it to be probated. The trial court did not accede to his request. In so doing, the trial court acted contrary to its obligation under section 731.110(3) of the Florida Probate Code.

The appellees would excuse this error on the basis that Rocca was barred from defending against the allegations of the Amended Petition by the untimely filing of his answer and affirmative defenses to the Amended Petition. We find no merit to this argument. Rocca was obligated to serve written defenses to the petition served on him within twenty days after formal notice of the petition. Fla. Prob. R. 5.040(a)(1). His Answer, Affirmative Defenses, and Counter Petition in this case was due (after court sanctioned extensions) on December 15, 2009. He filed this response seven days late and thirty minutes before the December 22, 2009, hearing. If the trial court was annoyed with Rocca and his counsel, it had every right to be so. However, the law is clear that Rule 5.040(a)(1) is neither a statute of limitations nor a mandatory non-claim provision. See Long v. Willis, - So.3d -, 2011 WL 3587411 (2011); Nardi v. Nardi, 390 So.2d 438, 440 n. 2 (Fla. 3d DCA 1980). Rather, this Court and other Florida courts which have considered the question all treat the rule as a procedural one. See Long, - So.3d at -; see also Tanner v. Estate of Tanner, 476 So.2d 793, 794 (Fla. 1st DCA 1985). Since Rocca’s Answer, Affirmative Defenses, and Counter Petition was filed before the hearing on the petition, Rocca was not barred from participation in the hearing on the Amended Petition or asserting such defenses as he had to that petition. Tanner, 476 So.2d at 794 (reversing order striking beneficiaries’ untimely filed answers to petition for administration, which were filed before the hearing on the petition and before entry of order admitting will to probate and granting letters of administration).

For these reasons, we vacate the order admitting the November 16, 2007, will to probate and remand with directions to adjudicate Rocca’s will contest before appointing personal representatives and issuing letters of administration.

Reversed and remanded with directions.


source: Caselaw Access Project

author: EHRLICH, MERRILEE, Associate Judge. WARNER, J.,

license: Public Domain

text:
    Ivana LINIC, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4706.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, 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.
   EHRLICH, MERRILEE, Associate Judge.

The defendant appeals a conviction and sentence for “culpable negligence” child neglect causing serious bodily injury, as a lesser included offense of aggravated manslaughter of a child. She raises nine points which relate to the denial of her motions for judgment of acquittal, several alleged evidentiary errors, and alleged inappropriate comments which the prosecutor made during closing arguments. We conclude that five of these points are meritorious, and reverse and remand for a new trial.

The defendant’s infant son died on February 21, 2007, due to malnutrition and prematurity. The baby was born prematurely at a hospital after thirty-three weeks’ gestation, in September, 2006. He weighed four-and-a-half pounds at birth. For the first three weeks of life, he stayed in the neonatal care unit at another hospital due to his susceptibility to infections.

On January 14, 2007, the defendant brought the baby to the hospital’s emergency room because the baby was constipated and acting as if he was in discomfort. After the ER pediatrician, Dr. Marchand, examined the baby, he diagnosed the baby with colic and constipation. The baby, then three months and twenty days old, weighed seven pounds, two ounces, having gained three pounds since his birth. The emergency room physician testified that he did not think there was anything seriously wrong with the baby, and he did not even think that the baby suffered from failure to thrive because the baby was not emaciated or dehydrated, and despite being small, was premature. His instructions to the defendant included adding one ounce of water a day between feedings. He also testified that it is not uncommon for parents without insurance, money, or Medicaid to come to the emergency room with their children.

The baby died five weeks later, on February 21, 2007, and weighed six pounds, one-half ounce. Dr. Graham, the medical examiner who performed the autopsy, testified that the baby died of malnutrition and prematurity. He testified that the baby either had not received sufficient food or was not able to process food in a constructive fashion. He concluded that the baby had clearly been fed because he found a small amount of stool in the small and large intestines and a small amount of liquid in the child’s stomach, indicating that the child had been given a bottle the morning of his death. He was unable to determine the exact point the baby was fed, as normal functions tend to slow down with starvation. The stool, however, clearly showed that the baby’s body was able to take in food, swallow it, and then take the compounds from the food and distribute them to the rest of the body. He was unsure what the small amount of nonspecific fluid found in the stomach and large and small intestines meant. However, Dr. Graham further concluded that anyone who saw the baby would know that he needed medical care if they were “people in the United States who are of sound mind.”

Dr. Graham explained that the baby did not look as if he had eaten food or that he was able to use food in order to grow, the loose skin folds over him were striking, his fat was nil, his muscle was greatly reduced, and his ribs could be counted. Dr. Graham otherwise described a baby that looked as though he was starving. He opined that the decline from inability to process food or lack of feeding and lack of hydration would take at least a week, but probably weeks, to occur. The baby may or may not have had a medical condition related to starvation. Dr. Graham said that it is easier to determine the reason for malnutrition in a live child.

Dr. Graham stated, however, that the baby’s condition would have been apparent long before he had cardiac arrest, and that had he been brought to a doctor long before cardiac arrest, he probably would still be alive. He further stated that it was apparent, on February 21, 2007, that the baby needed medical care as he had lost 20% of his body weight since he had been seen by the emergency room doctor in January, weighing six pounds, one-half ounce at the time of death, five (5) weeks later and there would be a reasonable expectation, “when you get into a circumstance of terminal malnutrition,” that the baby will be very listless, almost to the point of “suspended animation.” The cause of death was dehydration and nutritional deprivation with a contributing cause being that the child was born premature. The manner of death was undetermined as to whether it was natural, accidental, suicidal or homicidal.

Dr. Colaizzo, the medical director of the child protection team, testified as to why the baby died. He reviewed all of the baby’s medical records after the fact. His opinion differed from that of the medical examiner. He conceded that he did not know why the baby died, but the baby’s “overall condition was such that this was a child that was clearly in trouble in the days prior to death.” Dr. Colaizzo viewed the photo of the baby taken post-mortem and determined that the baby appeared extremely malnourished and wasted with extremely skinny arms and legs. Dr. Co-laizzo stated that this premature baby could have had a congenital defect in his intestines, which did not form properly and absorb nutrients, or anatomical or metabolic problems, and that often failure to thrive infants have trouble feeding and the choice of food and/or the manner of feeding must be altered accordingly. He testified that while in the neonatal unit of the hospital, when the baby was started on bottles from intravenous feeding, in October, 2006, he was spitting up but when started on lactose-free formula, he was tolerating food.

The opinions of Dr. Colaizzo and the defendant’s expert, Dr. Welty, also differed from those of Dr. Marchand, the emergency room doctor who saw the baby on January 14, 2007. Dr. Colaizzo opined that Dr. Marchand’s instructions to the child’s mother to add one ounce of water to the baby’s intake between feedings could compromise the infant’s nutritional intake and there was no reason to give water to an infant under six months of age unless the baby lived in a really, really hot climate. He agreed with the medical examiner that the baby was being fed, as there was stool in the child’s intestines; however, he opined that, on the day of his death, the child would have appeared listless like survivors of the Nazi concentration camps, and that had the baby been brought to the hospital earlier, he would have survived. He compared the amount of subcutaneous tissue, fat and muscle content relative to a normal sized baby and noted that the dramatic decrease in the baby’s fat and muscle happened over a period of time. In his medical opinion, “the child died of cache-xia, or lack of food, and dehydration.” Although he testified that there are conditions with which one can be born that can do the same, he did not believe that these types of conditions caused the baby’s death, as these other conditions are usually associated with symptoms like chronic diarrhea or vomiting. He believed that the caloric intake was woefully inadequate and that the baby would have survived if he had been brought to a doctor.

Dr. Welty also reviewed the child’s medical records, post mortem. He too came to the conclusion that the baby had been compromised from birth. According to his testimony, the baby had not been orally fed until October 9, 2006, a few days before his discharge from the hospital. At that time, the baby had not adequately adapted to oral feedings and was spitting up. Blood tests done on the baby at the time were quite unusual and not normal. He was greatly concerned that the emergency room doctor, Dr. Marchand, had not done a growth chart on the baby during his hospital visit in January, 2007, as it was his opinion that the baby was already failing and that the doctor’s instructions to give the baby more water would have compromised the child’s caloric intake. He stated that, upon reviewing the histology slides that Dr. Graham made at the autopsy, he found that the child’s lungs were “definitely impaired” which he related to the baby’s premature birth. He explained the difficulty in feeding premature infants and opined that respiratory impairment and malabsorption could not be ruled out as causes of death.

Deputy Umphrey took a voluntary statement from the defendant on the day the child died. She confirmed that the baby was born prematurely and stated that until the date of the baby’s birth, she was unaware of her pregnancy. The defendant was twenty years old and lived with her parents, two brothers, and her sixteen-month old daughter. She was no longer living with her children’s father due to his drug use and other issues. The defendant’s parents helped her care for her children when she went to work. The defendant regularly fed her baby. She denied knowing that anything was wrong with her baby and was at a loss to explain what happened to cause his death.

The defendant’s father testified in the defense case that the baby was always thin, even skinny, but he never saw anything wrong with the baby. He and his wife and their nineteen-year-old son who also lived with them helped care for the baby, gave him bottles, and played with him.

Palm Beach County Fire Rescue Paramedic David Prescott, who responded to an emergency call at 11:45 a.m. on the date of the baby’s death, described the baby as “ashen,” meaning ashy and gray and lifeless. He testified that paramedics found a thin, lifeless baby on the dining room table, with no breath or pulse. Their attempts to resuscitate him were unsuccessful. Prescott wrote in his report that the baby had “thin arms, thin legs, and a prominent rib structure.” Paramedics took the baby to Palms West Hospital where he was pronounced dead.

Dr. Mátese, the emergency room attendant on February 21, 2007 at Palms West, read his report into the record with regard to what the defendant stated: “she put the child down for a nap at 9 am and I checked on him every 5 minutes.” When she found him in respiratory distress, she called 911. According to Dr. Colaizzo’s testimony, it is difficult to estimate the time of death in a baby utilizing body temperature measurement because children lose heat more quickly than adults. He opined, though, that the baby died within hours of the emergency response.

Elizabeth Rodon, a crime scene investigator, testified that she looked for infant foodstuffs in the apartment and found two canisters of infant formula, a box of cereal for babies, a refrigerated half full bottle of white fluid, and a plastic cup with white fluid.

Maria Flores, a former receptionist for Dr. Aquino, the pediatrician who treated the baby’s older sister, testified that there was a record of the defendant bringing the baby’s older sister for an office visit five months after the baby’s death.

The defendant was convicted after a jury trial of the second-degree felony “culpable negligence” child neglect causing serious bodily injury as a lesser included offense of aggravated manslaughter of a child. The trial court, based on three separate grounds for downward departure, sentenced the defendant to eight years of probation with a condition that she serve one year in the county jail. The defendant has already served the jail term component.

The defendant raises the following nine arguments in this appeal:

(1) whether the trial court abused its discretion by sustaining the State’s relevancy objections to evidence of the defendant’s background as a Bosnian refugee;
(2) whether the trial court abused its discretion by sustaining the State’s hearsay objections to the defendant’s father’s testimony that: (a) the defendant was denied Medicaid for the baby; and (b) a local clinic did not see the baby because the defendant did not have a Florida identification card;
(3) whether the trial court abused its discretion by prohibiting the defendant from cross-examining Detective Umphrey on the subject of the defendant’s cooperation in giving other statements at Detective Umphrey’s request after the statement the defendant gave at the hospital on the day the baby died;
(4) whether the trial court abused its discretion by overruling the defendant’s hearsay objection to statements by “the mother” and “EMS” contained in the baby’s February 21, 2007 hospital medical records;
(5) whether the trial court abused its discretion by overruling the defendant’s objection to Dr. Colaizzo’s opinion testimony about the rate at which the baby’s body temperature would have declined after death;
(6) whether the trial court abused its discretion by permitting: (a) Dr. Co-laizzo’s testimony as to how someone could become aware of programs and clinics in the community that provide free medical care to infants to prevent caloric deprivation; and (b) Dr. Aquino’s receptionist’s testimony that she had not seen Dr. Aquino turn anyone away for lack of health insurance;
(7) whether the trial court erred by overruling the defendant’s hearsay and relevancy objections to the receptionist’s testimony that she searched Dr. Aquino’s medical records and found a record for the baby’s older sister, but not for the baby;
(8) whether the trial court erred by denying the defendant’s motions for judgment of acquittal on the basis that the evidence was insufficient to support the conviction for “culpable negligence” child neglect causing serious bodily injury;
(9)whether the trial court sufficiently addressed the prosecutor’s multiple comments during closing argument that were inflammatory and prejudicial to the defendant and were unsupported by the evidence and thus harmless, or whether the comments necessitated a new trial.

We address these arguments in turn below.

First, the defendant argues that the trial court abused its discretion by sustaining the State’s relevancy objections to evidence of the defendant’s background as a Bosnian refugee. “The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence.” Lucas v. State, 67 So.3d 332, 335 (Fla. 4th DCA 2011) (citation omitted). Whether evidence falls within the statutory definition of hearsay is a matter of law subject to de novo review. Id. Here, the trial court was correct to sustain the State’s objection to testimony by the defendant’s father as to background evidence of the defendant and her family being Bosnian refugees to prove the defendant’s state of mind and because the testimony was hearsay and not relevant. Further, some of this testimony was heard by the jury, in any event, and any error was therefore harmless. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Second, the defendant argues that the trial court abused its discretion by sustaining the State’s hearsay objections to the defendant’s father’s testimony that: (1) the defendant was denied Medicaid for the baby; and (2) the local clinic did not see the baby because the defendant did not have a Florida identification card. Although testimony about the official letter from DCF denying the defendant Medicaid should have been admitted as a verbal act, not hearsay, the failure to admit it was harmless, because the testimony throughout the trial established that the defendant tried multiple times to obtain Medicaid for the baby, but was unable to do so. However, the trial court properly sustained the unresponsive objection to the defendant’s father’s Florida identification card testimony. Defense counsel never addressed the hearsay issue; and defense counsel never asked the defendant’s father if the clinic turned away the defendant because she had an out-of-state identification card rather than a Florida identification card. A correctly phrased question from defense counsel would have elicited an admissible response.

Third, the defendant argues that the trial court abused its discretion by prohibiting her from cross-examining Detective Umphrey on the subject of the defendant’s cooperation in giving other statements at Detective Umphrey’s request after the statement the defendant gave at the hospital on the day the baby died. A defendant has a right to full and complete confrontation and cross examination on issues raised by direct examination. § 90.612(2), Fla. Stat. (2009) (“Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness.”). Detective Umphrey and the defendant spoke on several additional occasions after the date of the baby’s death. The attempts by defense counsel to elicit that these additional interactions occurred was certainly relevant and within the scope of direct examination. The State opened the door to this line of inquiry. What direction further cross-examination might have taken and what doors that might have then opened for the State or for the court, is unknown because the questioning never got that far, as the court improperly sustained the State’s objection. See Boyd v. State, 910 So.2d 167, 185 (Fla.2005); Johnston v. State, 863 So.2d 271, 278-79 (Fla.2003); Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982).

Fourth, the defendant argues that the trial court abused its discretion by overruling the defendant’s hearsay objections to statements by “the mother” and “EMS” contained in the child’s February 21, 2007 hospital medical records. We agree. These were not resuscitative efforts being made bedside on the baby at the time that Dr. Mátese was collecting medically necessary information from the defendant as to what happened the morning the baby died and from EMS about the baby’s body temperature at that time. The EMS information reflected that the baby’s temperature was 80 degrees. Dr. Mátese was the attending physician at the hospital where the baby was taken, post mortem. He testified that he had no recollection of the particulars in the hospital medical records. He was not the custodian of records. Dr. Matese’s entries were one of several individuals’ entries in the baby’s hospital records that date, and read into the record by Dr. Mátese, over the defense’s proper objection.

Fifth, the defendant argues that the trial court abused its discretion by overruling the defendant’s objection to Dr. Colaizzo’s opinion testimony about the rate at which the baby’s body temperature would have declined after death. The defendant failed to preserve the issue for appeal because her objection was untimely. However, “[cjourts are cautioned not to admit speculation, conjecture, or inference that cannot be supported by sound scientific principles,” especially from an “expert” witness. Rider v. Sandoz Pharms. Corp., 295 F.3d 1194, 1202 (11th Cir.2002).

Dr. Colaizzo, the medical director for the child protection team, was asked to opine on how long the baby had been dead when his body temperature of 80 degrees was recorded. He testified that this was not his field, but rather that of the medical examiner. Dr. Colaizzo further stated that the research he had done pertaining to the loss of body temperature in adults and that it is problematic because he was aware that children lose body heat much more quickly than adults and that this baby, having no body fat and being very wasted, would lose heat even more quickly than other children. Despite this, Dr. Colaizzo gave an unchallenged opinion of “hours” without further specificity.

Sixth, the defendant argues that the trial court abused its discretion by permitting: (1) Dr. Colaizzo’s testimony as to how someone could become aware of programs and clinics in the community that provide free medical care to infants to prevent caloric deprivation; and (2) Dr. Aquino’s receptionist’s testimony that she has not seen Dr. Aquino turn anyone away for lack of health insurance. The trial court properly overruled defense counsel’s speculation objection to Dr. Colaizzo’s testimony. In his capacity as Director of the Child Protection Team and as a doctor who works in an impoverished area of Pahokee, it is likely that Dr. Colaizzo had firsthand knowledge of how underprivileged individuals can become aware of places that offer free medical care. Because his response was couched in terms of what people “could” do rather than what they “usually do,” there is no reason to believe that Dr. Colaizzo’s response was based on speculation, and the defendant failed to show otherwise.

Also, the trial court properly overruled defense counsel’s hearsay and relevancy objections to the receptionist’s testimony. The receptionist’s statement was not hearsay because it was based on her personal observations and not on what anyone told her. The statement was relevant because it was necessary to rebut defense counsel’s claim during opening statements that the defendant was turned away from Dr. Aquino’s office for lack of health insurance.

Seventh, the defendant argues that the trial court abused its discretion by overruling the defendant’s hearsay and relevance objections to the receptionist’s testimony that she searched Dr. Aquino’s medical records and found a record for the baby’s older sister, but not for the baby. The defendant’s objections should have been sustained because: (1) the State failed to introduce evidence that the receptionist was a “person with knowledge” under section 90.803(6), Florida Statutes; and (2) as the State concedes, the sister’s records are not directly relevant to the facts of this case as the sister’s visit to Dr. Aquino occurred months after the baby died, and that the defendant had Medicaid for the sister at that time.

Eighth, the defendant argues that the trial court erred by denying her motions for judgment of acquittal on the basis that the evidence was insufficient to support the conviction for culpable negligence child neglect causing serious bodily injury. We review this issue de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). The properly admitted evidence, taken in the light most favorable to the State, is sufficient to establish culpable negligence (the only element at issue) and to refute the defendant’s reasonable hypothesis of innocence that she was merely following the emergency room doctor’s instructions and that the baby appeared normal and behaved normally between the emergency room visit and his death.

Finally, the defendant argues that the State’s closing argument, which she claims contains inflammatory and prejudicial argument, facts not in evidence, and misstatements of the law, necessitates reversal for a new trial. The control of comments during closing argument is within the trial court’s discretion and an appellate court will not interfere unless an abuse of discretion is shown. Thomas v. State, 326 So.2d 413, 415 (Fla.1975). Wide latitude is permitted in arguing to a jury during closing argument. Breedlove v. State, 413 So.2d 1, 8 (Fla.1982). Logical inferences may be drawn and prosecutors are allowed to advance all legitimate arguments with the limits of their forensic talents in order to effectuate their enforcement of the criminal laws. Spencer v. State, 133 So.2d 729, 731 (Fla.1961). A prosecutor is generally allowed a considerable degree of latitude in closing argument. Crump v. State, 622 So.2d 963, 972 (Fla.1993).

“A criminal trial is a neutral arena wherein both sides place evidence for the jury’s consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury’s view with personal opinion, emotion, and nonrecord evidence.” Fenster v. State, 944 So.2d 477, 480 (Fla. 4th DCA 2006) (citation and alteration omitted) (improper comments by prosecutor during closing argument of attempted murder trial to rebut defendant’s claim of self-defense, which were unsupported by the evidence, were not harmless; trial was no longer a neutral arena considering the number of improper comments, and curative instructions were insufficient). Improper appeal to sympathy in prosecutor’s closing argument is improper. Id. “In order to require a new trial based on improper prosecutorial comments, the prosecutor’s comments must either deprive the defendant of a fan* and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.” Id. at 479 (citation omitted).

The defendant presents a litany of allegedly erroneous prosecutorial comments for this court’s review. Some are preserved, whereas some are not. Some that are erroneous would be harmless were it not for the number and type of other improper prosecutorial comments and the insufficient manner in which the trial court, in some instances, responded to them.

For example, despite the egregiousness of the unsupportable inference that the separation of the defendant from the baby’s father caused the defendant to disconnect and ignore their baby may have been harmless by itself, as the jury apparently ignored the State’s “indifference” argument by acquitting the defendant of aggravated manslaughter, this impropriety did not stand alone.

When raising the defendant’s alleged failure to seek medical attention for the baby after the January 2007 emergency room visit, the State argued that free medical services in Palm Beach County are provided to every indigent person, who cannot be turned away even if they were “illegal” immigrants and without insurance or a Medicaid card. Although the court sustained the defense objection to this characterization, this highly improper, prejudicial, and facts-not-in-evidence description alluding to the defendant as an “illegal immigrant” as opposed to a “refugee,” especially after the State objected to the admissibility of any evidence with regard to the defendant being a Bosnian refugee, is repugnant especially given the current controversial nature of illegal immigration in this country.

Towards the end of closing argument, the prosecutor argued that the defendant’s apartment was so clean when EMS arrived because the defendant’s family had spent the four to five hours between the time that the baby died and the time that they called the police destroying evidence, an uncharged criminal offense. The court sustained defense counsel’s objection on the ground of pure speculation. Although on this occasion, defense counsel did not contemporaneously ask for a curative instruction or a mistrial and thus, under a strict interpretation of the rules of preservation, this argument was unpreserved, see Companioni v. City of Tampa, 51 So.3d 452, 454-56 (Fla.2010), throughout the course of the State’s closing argument, the trial court consistently refused to hear defense counsel at side bar, requesting instead that defense counsel’s motion be made after closing arguments. Thus, defense counsel’s failure to make a contemporaneous motion is somewhat explained. Additionally, after the trial court sustained the objection to this argument, the prosecutor literally said five more sentences before he concluded his closing argument and defense counsel immediately reminded the trial court about the motions that still needed to be heard. The trial court heard those motions after instructing the jurors and sending them back to deliberate.

On three occasions during the State’s closing argument, in addition to overruling defense objections to facts not in evidence and denying motions for a mistrial, the court also told the jurors to rely on their own collective memory, that they were to decide what was evidence and what was not, because “this is argument.” Where, as here, it may have been a close call for the jury and the prosecutor improperly injected facts and inferences that were not supported by the evidence on multiple occasions, which could only mislead and distract the jury from considering the evidence it had heard, the trial court should have affirmatively rebuked the offending prosecutor so as to impress upon the jury the “gross impropriety of being influenced by improper arguments,” Edwards v. State, 428 So.2d 357, 359 (Fla. 3d DCA 1983), and specifically instructed the jury, contemporaneously thereto, that the comments made during closing arguments do not constitute evidence.

This was a “close call” eviden-tiary and testimonial trial with competing experts on the cause of the baby’s death. The unpreserved error can be considered with the preserved error in order to evaluate whether the preserved error is harmless beyond a reasonable doubt. Martinez v. State, 761 So.2d 1074, 1082-83 (Fla. 2000); Ruiz v. State, 743 So.2d 1, 7 (Fla.1999). “While none of these comments in isolation would have required a new trial, this court must look at the entire trial record when considering whether the comments at issue are of such a nature as to destroy the fairness of the proceeding.” Fenster, 944 So.2d at 480; see also DeFreitas v. State, 701 So.2d 593, 596 (Fla. 4th DCA 1997). A mistrial is appropriate only when the error committed was “so prejudicial as to vitiate the entire trial.” Wicklow v. State, 43 So.3d 85, 87 (Fla. 4th DCA 2010). This is one of those cases.

Reversed and Remanded for a new trial.

POLEN, J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurs specially.

I concur in the majority opinion. I write to address the closing argument. I would find that the prosecutor’s closing argument was egregious and would require a new trial even in the absence of the evidentiary errors. In particular, on several occasions the prosecutor made prejudicial statements without any evidentiary support or even a plausible inference from the evidence presented. For instance, the prosecutor suggested that the appellant was stressed by her life and by her domineering father and that she had no future. As noted in the majority, the prosecutor also argued without any support that the separation from the baby’s father caused the appellant to disconnect and ignore the baby. As well, the prosecutor hit the hot-button issue of illegal immigrants, something sure to inflame the jury.

The prosecutor suggested that the child was unwanted and was just another mouth to feed, which the family could not afford. That the mother may have neglected her own child to the extent that she was starving him to death is akin to the fundamentally erroneous closing argument in Stephenson v. State, 31 So.3d 847 (Fla. 3d DCA 2010), where the prosecutor charged that the defendant had neglected her baby, causing its death, because the child was unwanted, and commented that the mother had contemplated having an abortion prior to the child’s birth. While abortion was not mentioned in this case, the prosecutor described the child from the defendant’s perspective as “one more mouth to feed” and the family “just could not afford” to feed the child, claiming that the defendant simply wanted to be done with this burden.

These are completely unfair and inflammatory characterizations of the evidence and are not the only examples. Most objections were overruled, but even if they had been sustained, I believe that some of the comments were so inflammatory that they so “gravely impair[ed] the dispassionate and calm consideration of the evidence and merits by the jury” that they deprived this defendant of a fair trial. See Cordoba v. Rodriguez, 939 So.2d 319, 322 (Fla. 4th DCA 2006). As our supreme court explained many years ago, “[Tjhere are situations where the comments of the prosecutor so deeply implant seeds of prejudice or confusion that even in the absence of a timely objection at the trial level it becomes the responsibility of this court to point out the error and if necessary reverse the conviction.” Pait v. State, 112 So.2d 380, 384 (Fla.1959). For me, this is one of those cases.


author: TAYLOR, J.

text:
    PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. Michel CAMILLO and Jean-Paul Camillo, Appellees.
    No. 4D10-3922.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    Rehearing Denied March 20, 2012.

      Valerie A. Dondero and Robert J. Squire of Houck Anderson, P.A., Miami, for appellant.
    Mark Perlman of Mark Perlman, P.A., Hallandale Beach, for appellees.
   TAYLOR, J.

Appellant, Progressive Express Insurance Company (“Progressive”), appeals a final declaratory judgment, which determined that insurance coverage existed under an automobile policy for an accident that occurred on July 26, 2008. The trial court entered summary judgment in favor of the insureds and ruled that Progressive’s unconditional acceptance of premiums waived its right to claim that there had been a lapse in coverage. Under the circumstances of this case, we disagree and hold that where a policy expires without the insured making a renewal payment, and a loss occurs after the expiration of the policy period, the insurer may subsequently accept premium payments and reinstate the policy prospectively without waiving the right to deny coverage for the loss. We therefore reverse the summary judgment in favor of the insureds. However, we do not remand for judgment in favor of the insurer, as we find that the insureds may have a viable estoppel claim based on a potentially misleading bill that Progressive sent to the named insured.

By way of background, Progressive issued an automobile policy to Michel Camil-lo, the named insured, for the policy period from January 9, 2008 through July 9, 2008. Michel Camillo’s brother, Jean-Paul, was also an insured on the policy.

On May 21, 2008, Progressive sent a Cancel Notice to Camillo, stating that payment must be received by June 5, 2008, in the amount of $537.68 or else the policy would be canceled. Camillo acknowledged that he received the Cancel Notice.

On June 4, 2008, Progressive sent a Renewal Bill to Camillo, which stated that the unpaid amount must be paid by June 5, 2008, to avoid cancellation of the current policy. In addition, the Renewal Bill stated that to renew the policy, Camillo was required to pay at least the minimum amount of $1,062.17 by July 9, 2008. The Renewal Bill stated that payment of the unpaid amount for the current policy would not renew the policy.

The Payment Coupon attached to the Renewal Bill stated that to avoid cancellation of the existing policy, a payment of $532.68 was due by June 5, 2008. The Payment Coupon further stated: “When all payments on your current policy are made, please pay $1,062.17 by July 9, 2008.” In Camillo’s deposition, Camillo testified that he did not recall receiving the Renewal Bill dated June 4, 2008, even though he acknowledged that the address listed on this correspondence was his correct address.

On June 6, 2008, Progressive sent Cam-illo a notice that the policy was cancelled because Progressive did not receive payment of the minimum amount due by June 5, 2008. On June 7, 2008, Camillo made a payment of $537.68. Progressive’s underwriting specialist stated in an affidavit that at the time of Camillo’s June 7th payment to reinstate the existing policy ending July 9, 2008, Camillo still owed $527.64 on the existing policy.

On June 8, 2008, Progressive sent a Reinstatement Confirmation to Camillo. This correspondence stated that Progressive had reinstated Camillo’s policy effective June 5, 2008, and that there was no lapse in coverage.

On June 8, 2008, Progressive sent Cam-illo an “Auto Insurance Bill” stating that $527.64 was the minimum amount due by June 24, 2008. However, this bill stated the following in the upper right-hand corner: “Policy Period: Jul 9, 2008 — Jan 9, 2009.” This bill did not state that the $527.64 was owed for the existing policy period that ended as of July 9, 2008. Camillo testified that he received this bill.

On June 23, 2008, Progressive sent Camillo a Renewal Reminder. The Payment Coupon attached to the Renewal Reminder set forth a “Pay now” amount of $1,060.17, which included $527.64 owed from the current policy. The Payment Coupon also unambiguously stated, “To avoid a lapse in coverage, payment must be received or postmarked by 12:01 a.m. on July 9, 2008.” (Emphasis in original). Camillo testified that he did not recall receiving the June 23, 2008 Renewal Reminder, even though he admitted that this correspondence set forth his correct address.

On June 24, 2008, Progressive sent an email reminder to the email address on file for Camillo, again stating that to avoid a lapse in coverage, a minimum payment of $1,060.17 was due by July 9, 2008. According to Progressive, this email was not returned as undeliverable. Camillo verified that Progressive had his correct email address, but he nevertheless claimed that he did not receive this email. On June 25, 2008, Progressive sent another Renewal Reminder to Camillo’s email address, but Camillo denied receiving it.

On July 3, 2008, Camillo made a payment of $527.64 to Progressive. Progressive credited this payment on only the existing policy, which was then paid in full. However, Camillo made no additional payments prior to July 9, 2008, and Camillo did not pay anything towards the renewal. Camillo testified in his deposition that he was not aware that he was required to pay anything else at that time. But after being presented with all the documents described above, Camillo agreed that the renewal was not paid before July 9, 2008.

On July 26, 2008, Jean-Paul was involved in an automobile accident. Michel Camillo reported the accident to Progressive, but Progressive took the position that the policy had expired on July 9, 2008, without being renewed and that no policy was in force at the time of the accident. After reporting the accident, Camillo made a payment that same day and his Progressive policy was reinstated. Thereafter, Camillo made monthly payments to Progressive, which Progressive accepted and did not return.

In December 2008, the insureds filed a complaint against Progressive, seeking a declaration that their automobile insurance policy with Progressive provided coverage for the motor vehicle accident that occurred on July 26, 2008. Progressive answered the complaint and filed a counterclaim for declaratory relief, requesting a declaration that there was no coverage because the policy had lapsed before the accident of July 26, 2008.

In response to a request for admissions, Camillo admitted that Progressive sent him a Verification of Insurance Form, which indicated that coverage lapsed on July 9, 2008, and resumed on July 27, 2008.

After discovery revealed the facts set forth above, the parties filed cross-motions for summary judgment. In the insureds’ motion for summary judgment, they argued primarily that Progressive waived its right to contend that there was a lapse in coverage by accepting the insurance premiums without making any effort to return the funds. By contrast, in Progressive’s motion for summary judgment, Progressive maintained that it was entitled to determination as a matter of law that there was no coverage available under the policy for the July 26, 2008, accident because Camillo failed to pay any premium towards the renewal of the policy on or before the renewal date of July 9, 2008. Progressive’s motion for summary judgment was supported by multiple exhibits, including the correspondence described above and the affidavit of a “Litigation Underwriting Specialist” for Progressive.

According to the affidavit of Progressive’s underwriting specialist, because Camillo had reported that the accident involving Jean-Paul had already occurred, Progressive reinstated Camillo’s policy with coverage commencing the next day, July 27, 2008.

At the summary judgment hearing, counsel for the plaintiffs argued that Progressive “never took the position that the policy was reinstated as of July 27 ... until after this lawsuit was filed. You won’t find one single piece of paper which says — [that] in this record.” After listening to the argument of the parties, the trial court ruled that coverage existed because Progressive unconditionally continued to accept payments from the insured. The court further reasoned:

We have documents that say the period is from July 9th forward. It doesn’t say July 27th. I didn’t see anything here that said July 27th, other than what I deem to be a self-serving affidavit filed post-litigation.... I have to assume he thought he was paying for coverage July 9th forward, because that’s what you told him.

(Emphasis added). The trial court thus granted the plaintiffs’ motion for summary judgment and denied Progressive’s motion for summary judgment. The trial court denied rehearing and entered a final declaratory judgment determining that insurance coverage existed under the Progressive policy for the accident that occurred on July 26, 2008. This appeal followed.

The standard of review of an order granting summary judgment is de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010). When reviewing an order granting summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party. Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

The threshold issue we address is whether the trial court erred in rejecting the affidavit of Progressive’s underwriting specialist in deciding the issue of coverage.

A trial court may not weigh the evidence or judge the credibility of witnesses in arriving at summary judgment. Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 480 (Fla. 4th DCA 2006) (citing Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502 (Fla. 5th DCA 2005)). An affiant’s personal knowledge may be based on his or her review of the underwriting file. See Jackson Nat’l Life Ins. Co. v. Proper, 760 F.Supp. 901, 907 (M.D.Fla.1991) (underwriting vice president, who reviewed the underwriting file and other information, was “able to gain personal knowledge of the events prior to the execution of the affidavit”); see also Lockheed Martin Corp. v. United States, 70 Fed.Cl. 745, 754 (2006) (the personal knowledge requirement “does not require that the affiant be personally involved in all matters at issue, but can include information obtained from a review of business records”). However, conclusory self-serving statements which are framed in terms only of conclusions of law are not sufficient to either raise a genuine issue of material fact or prove the non-existence of a genuine issue of material fact. See Heitmeyer v. Sasser, 664 So.2d 358, 360 (Fla. 4th DCA 1995) (collecting cases).

Here, the trial court rejected the affidavit as “self-serving,” but this was error. Stated succinctly, the underwriting specialist’s affidavit asserted that 1) Progressive mailed all the renewal bills and reminders described above, 2) Camillo failed to timely pay his renewal premium by July 9, 2008, and 3) when Camillo made a premium payment following the accident, Progressive reinstated Camillo’s policy commencing the next day, July 27, 2008. The affidavit was not framed solely in terms of conclusions of law. In fact, the affidavit did not opine at all on the legal consequences of the above facts, such as whether a waiver or estoppel occurred. Thus, the trial court should have considered the underwriting specialist’s affidavit in ruling on the motions for summary judgment.

On the issue of coverage, this case presents the following question: Where a policy expires without the insured making a renewal payment, and a loss occurs after the expiration of the policy period, may the insurer accept premium payments and reinstate the policy prospectively without waiving the right to deny coverage for the loss? We answer this question in the affirmative. No waiver should occur in such circumstances because the insurer is not retaining any premiums for the lapsed period between the expiration of the policy and the prospective reinstatement of the policy.

A waiver is the intentional relinquishment of a known right. See, e.g., WSG W. Palm Beach Dev., LLC v. Blank, 990 So.2d 708, 715 (Fla. 4th DCA 2008). The elements of waiver are: (1) the existence of a right which may be waived; (2) actual or constructive knowledge of the right; and (3) the intent to relinquish the right. Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009). “In the insurance context, Florida courts look to whether an insurer’s acceptance of a late payment was unconditional, which would constitute waiver, or whether the acceptance was conditioned on the performance of something else by the insured or the insurer, which would not constitute waiver.” Bristol W. Ins. Co. v. Albertson, 41 So.3d 378, 381 (Fla. 4th DCA 2010) (internal citation and quotation marks omitted).

Under Florida law, retention of a delinquent premium payment is a waiver of the right to cancel a policy or to refuse reinstatement. See Meeks v. State Farm Mut. Auto. Ins. Co., 460 F.2d 776, 778 n. 3 (5th Cir.1972) (applying Florida law). For example, in Mixson v. Allstate Insurance Co., 388 So.2d 608 (Fla. 3d DCA 1980), which involved an auto policy that had been canceled due to the insured’s failure to timely pay policy premiums on an existing policy, the Third District held: “An insurer cannot retain a past-due premium and at the same time claim that a forfeiture of the policy has occurred. In this case, the unconditional acceptance of the April payment constituted a waiver of the insurer’s right to contend the policy has lapsed.” Id. at 609.

By contrast, in Travelers Indemnity Co. v. Mirlenbrink, 345 So.2d 417 (Fla. 2d DCA 1977), an insured failed to pay a renewal premium until four months after receiving the initial renewal statement and nine days after being involved in an accident. The Second District explained that “[t]he policy was issued on a continuing basis, and payment of renewal premiums was, in absence of some waiver by, or estoppel against, the insurer, a prerequisite to the insured’s continued coverage.” Id. at 418. The court held that even though the insurer cashed the insured’s check for the renewal premium, the insurer was not estopped from denying coverage for the accident. The court noted that although the late premium check was cashed by the insurer, the insurer subsequently issued its own check to the insured to return the premium, which “negated any intent to effectuate a renewal of the lapsed policy.” Id. at 419.

The fact pattern of this case is similar to that in Mirlenbrink, with the notable exception that here the insurer did not return the premium and purported to reinstate the policy effective the day after the loss. The insureds suggest that the outcome of Mirlenbrink would have been different if the insurer in that case had not returned the premium to the insured. However, Mirlenbrink did not address the question of whether the insurer in that case could have issued a renewal of the policy prospectively after the loss.

The precise issue in this case appears to be one of first impression in Florida. Although no Florida cases specifically address this exact situation, we find there to be a valid distinction between an insurer that retains a late premium following a policy cancellation for non-payment of premiums, and an insurer that accepts a renewal payment after the expiration of a policy period and reinstates the policy prospectively.

Out-of-state authorities have held that an insurer does not waive a lapse of coverage where it accepts a renewal premium after the expiration of a policy and reinstates the policy effective after the loss. See Munford Union Bank v. Am. Ambassador Cas. Co., 15 S.W.3d 448 (Tenn.Ct.App.1999) (holding that trial court erred in holding that insurer waived the lapse of coverage when insurer accepted a renewal premium and reinstated the policy effective one day after the loss); Monteleone v. Allstate Ins. Co., 51 Cal.App.4th 509, 59 Cal.Rptr.2d 48 (1996) (offer to reinstate automobile liability policy that insurer made after insureds failed to pay renewal premium did not bar insurer from claiming that coverage lapsed between due date specified in renewal offer and date when insureds finally paid premium; the reinstatement offer clearly stated that coverage had terminated and that reinstatement, if effected, would be “with a short lapse in coverage,” and the insurer returned the premium for the lapsed period). We agree with these authorities and hold that where a policy expires without the insured making a renewal payment, and a loss occurs after the expiration of the policy period, the insurer may subsequently accept premium payments and reinstate the policy prospectively without waiving the right to deny coverage for the loss.

Even though we conclude that the insurer did not waive the right to deny coverage by accepting a renewal premium after the expiration of the policy, we do not direct that judgment be entered in favor of the insurer. “[E]ven when both parties move for summary judgment, asserting the absence of any genuine issues of material fact, a court need not enter judgment for either party” if it determines that there are genuine issues of material fact in dispute. Morales v. Quintel Entm’t. Inc., 249 F.3d 115, 121 (2d Cir.2001). Here, the insureds raised estoppel as an affirmative defense to Progressive’s counterclaim for declaratory relief. Where affirmative defenses are raised, the movant has the burden of either disproving them or establishing their legal insufficiency. See O’Brien v. Fed. Trust Bank, F.S.B., 727 So.2d 296, 298 (Fla. 5th DCA 1999). We find that there is a genuine issue of material fact as to whether a potentially misleading bill that Progressive sent to the named insured gave rise to an estoppel.

The elements of estoppel are: (1) a representation as to a material fact that is contrary to a later-asserted position; (2) reasonable reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. Lloyds Underwriters at London v. Keystone Equip. Fin. Corp., 25 So.3d 89, 93 (Fla. 4th DCA 2009); Mobile Med. Indus. v. Quinn, 985 So.2d 33, 35-36 (Fla. 1st DCA 2008). Although closely related, the doctrines of estoppel and waiver are distinguishable. See SourceTrack, LLC v. Ariba, Inc., 958 So.2d 523, 526-27 (Fla. 2d DCA 2007). Estoppel is designed to prevent injustice and requires a showing of detrimental reliance, while waiver is the intentional relinquishment of a known right and does not require detrimental reliance. Id.

Here, the June 8, 2008, bill that Progressive sent to the named insured stated that $527.64 was the minimum amount due, but the bill also stated that the policy period was July 9, 2008, to January 9, 2009. In our view, the June 8, 2008 correspondence was potentially misleading because it incorrectly listed the renewal policy period (i.e., July 9, 2008-January 9, 2009) when it should have listed the then-existing policy period (i.e., January 9, 2008-July 9, 2008). Camillo’s deposition testimony seemed to suggest that he relied upon that June 8th bill in believing that his July 3rd payment of $527.64 served to renew the policy.

To the extent that the June 8th bill was misleading, it was arguably clarified by all the other correspondence that Progressive apparently sent to Camillo. But in Camil-lo’s deposition, he either denied receiving the remaining correspondence or claimed that he did not recall receiving it.

Proof of mailing of a document to the correct address creates a presumption that the item mailed was, in fact, reeeived. W.T. Holding, Inc. v. State Agency for Health Care Admin., 682 So.2d 1224, 1225 (Fla. 4th DCA 1996). The presumption, however, is rebuttable. Id. “[T]he denial of receipt does not automatically overcome the presumption but instead creates a question of fact which must be resolved by the trial court.” Scutieri v. Miller, 584 So.2d 15, 16 (Fla. 3d DCA 1991).

Because the resolution of the estoppel claim depends upon a factual determination as to which correspondence the named insured actually received from Progressive, we remand for further proceedings.

Reversed and remanded for further proceedings.

GERBER and LEVINE, JJ., concur.

      . Throughout this opinion, any reference to "Camillo” will denote the named insured, Michel Camillo.

      . It is unclear why the May 21 Cancel Notice stated that the payment due was $537.68, whereas the Renewal Notice stated that the payment due was $532.68. But this discrepancy is not relevant to our disposition of this case.

      . We do not believe this was an accurate representation to the trial court. The plaintiffs admitted in their response to Progressive's request for admissions that they received a Verification of Insurance form in which Progressive asserted that there was a lapse in coverage and that the policy was reinstated on July 27, 2008.

      . Some of the questions posed to Camillo were phrased in an ambiguous way. For example, the following exchange between Progressive's attorney and Camillo is illustrative: "Q. Do you recall receiving this document (indicating)? A. No.” Thus, to the extent that a distinction between a "denial” and a “failure to recall” may be relevant, we interpret Camillo’s answers as a denial of receipt.


author: CIKLIN, J.

text:
    Dean PERRONE and Data Base Stores, Inc., Appellants, v. Edwin FRANK, Esther Frank and DB Stores of Davie, Appellees.
    No. 4D10-3640.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    Rehearing Denied March 20, 2012.

      J. Clark Dixon and John M. Camillo of Camillo & Snowden, P.A., Fort Lauder-dale, for appellants.
    Mark W. Rickard of Jacobson, Sobo & Moselle, Plantation, for appellee Esther Frank.
   CIKLIN, J.

Dean Perrone and Data Base Stores, Inc. (collectively referred to as the “appellants”) appeal the trial court’s entry of a final judgment in proceedings supplementary, in which the trial court found that Data Base Stores, Inc.’s corporate veil should be pierced and that Perrone should be personally liable. The final judgment was based upon a magistrate’s report and recommendations, to which the appellants filed timely exceptions, which the trial court overruled. The appellants argue that the magistrate’s findings were not supported by competent, substantial evidence, an argument with which we agree. Therefore, we reverse the final judgment and the order adopting the magistrate’s report and recommendations. Having reviewed the appellants’ other points on appeal, we find them without merit and choose not to discuss them further.

In 2001, Edwin and Esther Frank obtained a final judgment against DB Stores of Davie, Inc. In July 2003, the Franks filed a motion for proceedings supplementary to execution, which sought to implead Data Base Stores, Inc. and its sole owner, Perrone, individually. The Franks alleged that Data Base Stores, Inc. was a mere continuation of DB Stores of Davie, Inc., created to avoid the latter entity’s debt under the original final judgment. The Franks also alleged that Data Base Stores, Inc. was a fraudulent entity whose corporate veil should be pierced to find Perrone individually liable. Pursuant to section 56.29, Florida Statutes (2003), the Franks requested an examination of Perrone and Data Base Stores, Inc. The trial court referred the matter to a general magistrate, who held a hearing on May 3, 2005.

At the hearing, only Perrone testified. At the end of the hearing, the magistrate concluded that Perrone was not a credible witness and had not been entirely forthcoming in his testimony. Subsequently, the magistrate issued her report and recommendations finding that the appellants should be held liable for the debts of the original judgment debtor, DB Stores of Davie, Inc. The magistrate concluded in the report that Data Base Stores, Inc. was a successor corporation to and alter ego of DB Stores of Davie, Inc. The magistrate also found that Data Base Stores, Inc. was a mere instrumentality and alter ego of Perrone and that it was organized or used for fraudulent purposes. The report recommended entry of a final judgment against the appellants, jointly and severally, for the amount of the outstanding judgment lien against DB Stores of Davie, Inc.

The appellants filed timely exceptions to the magistrate’s report and recommendations, which the trial court denied. Subsequently, the trial court entered an order adopting the magistrate’s report and recommendations entirely. In August 2010, the trial court issued a final judgment in proceedings supplementary. In it, the trial court found the appellants jointly and severally liable for the amount of the outstanding judgment lien. The appellants timely appeal the final judgment.

On appeal, the appellants argue that the magistrate’s findings were not supported by competent, substantial evidence. We agree.

We review a trial court’s decision to accept or reject a magistrate’s conclusions for an abuse of discretion. In re Drummond, 69 So.3d 1054, 1057 (Fla. 2d DCA 2011). As explained by the Second District, however, the trial court’s discretion is narrower here than in other circumstances:

Because the trial court sits in its reviewing capacity when it makes such a decision and because in most instances the district court will be reviewing identical information on appeal, the discretion afforded the trial court to override the magistrate is undoubtedly narrower than the discretion we provide to trial courts in a context where the trial court is making its own findings of fact.

Id. at 1057-58 (footnote omitted).

Comparing the magistrate report’s factual findings, which are intertwined with legal conclusions, against the transcripts from the hearing, we are compelled to conclude that the magistrate’s factual findings were not supported by competent, substantial evidence. We do not question the magistrate’s finding that Perrone was not a credible witness. Indeed, as the fact finder, the magistrate was in the best position to make this credibility determination. However, Perrone was the sole witness to testify, so his lack of credibility, if anything, left a vacuum of evidence. In other words, because Perrone’s testimony was not credible, the magistrate was free to reject it, but no other evidence of any kind remained upon which the magistrate could have based her findings.

Thus, the trial court’s adoption of the magistrate’s report and recommendations, over timely exceptions, was an abuse of discretion. Further, the final judgment entered by the trial court, which was predicated on the adoption of the magistrate’s recommendations, was also erroneous. Therefore, we vacate the final judgment and reverse the order adopting the magistrate’s report and recommendations.

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

GERBER and CONNER, JJ., concur.


author: WOLF, J.

text:
    Jason JUSTICE, Former Husband, Appellant, v. Barbara JUSTICE, Former Wife, Appellee.
    No. 1D10-5539.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2012.

      • Russell S. Roberts of Roberts, Roberts & Roberts, Marianna, for Appellant.
    Rhonda S. Clyatt, Panama City, for Ap-pellee.
   WOLF, J.

Appellant, the former husband, challenges a final judgment of dissolution of marriage. Appellant raises four issues on appeal: whether the trial court erred in (1) awarding the former wife the majority of timesharing with the minor children; (2) ordering a timesharing schedule in the Final Judgment that conflicts with the time-sharing schedule attached as an exhibit to the Final Judgment; (3) awarding the former wife permanent periodic alimony without making any findings of fact; and (4) failing specifically to identify and value assets distributed in the Final Judgment.

We affirm the award of the majority of the timesharing to the former wife without further comment. We find the Final Judgment is internally inconsistent as to the timesharing schedule and remand for clarification. We determine the failure to make factual findings as to the permanent periodic alimony precludes meaningful appellate review and reverse and remand. We also find the trial court erred in failing to distribute the furniture and jewelry, and in failing to address a request that certain assets be declared nonmarital. We affirm, however, the valuation of the parties’ bank accounts and travel trailer without further comment.

On March 23, 2007, appellant filed a petition for dissolution of marriage. The petition stated the parties were married on November 4, 1995. The parties had two sons born on April 18, 1996, and February 25, 2002. Both parties sought primary residence for the children.

On August 5, 2008, the trial court entered an order for temporary relief. The court found the former wife would be the primary residential parent, and appellant would have timesharing every other weekend and every other Monday.

A hearing was held that spanned several days in September and October 2009. Appellant entered into evidence a pretrial catalog in which he stated the parties owned $8,000 in furniture and $10,000 in jewelry. He testified to each piece of furniture and its estimated worth. His estimated values totaled $21,800, but he testified he was willing to abide by the $8,000 amount he listed on his pretrial catalog. Appellant also testified as to each piece of jewelry and its estimated worth, He stated the former wife was in possession of most of the furniture and all of the jewelry.

Appellant had several personal items that he wanted to be awarded: a blue and white quilt that his grandmother made for him; a Meucci pool cue stick that his father gave to him when he was 16; two guns given to him by his father and grandfather when he was a child, and two guns he bought for his sons.

Appellant testified he earned $7,735.79 a month, and he lived paycheck to paycheck. He entered into evidence a financial affidavit in which he stated he had a deficit each month.

The former wife entered into evidence her financial affidavit, dated March 18, 2009. The affidavit stated she had no income aside from alimony and $3,990 in monthly expenses. She testified appellant had been paying $750 in alimony and $811 in child support a month pursuant to the temporary order, but it was insufficient.

The former wife worked during the beginning of the marriage, but she quit to stay home with the children in May 2003. She was 37 years old and in good health, and she had her AA degree. Her last job was doing configuration management for engineers. She testified she had been unable to find such a job in her local area, but she was also applying in other areas. She estimated her salary would be $25,000 to $35,000. She was also applying for grants to return to school to become a teacher in the event she could not find a job in configuration management.

Her financial affidavit reflected that the parties owned $10,000 worth of jewelry. She testified to each piece of jewelry and its value, and she stated she left it all at the parties’ rental house when she moved out. She also testified to each piece of furniture and household item, and she specified which items she took with her, left at the rental house, or were stored elsewhere.

On January 20, 2010, the trial court entered a Final Judgment of Dissolution of Marriage. The court noted the temporary order gave appellant timesharing “every other weekend” and “every other Monday.” The court stated it adopted “the parenting plan attached and identified as Exhibit ‘A’ to this final judgment,” which gave appellant “visitation as ordered in the aforementioned temporary order.” The court also instructed the parties to abide by the Parenting Time Schedule attached as Exhibit C, which provided appellant timesharing “[ejvery other weekend,” but did not provide him timesharing every other Monday.

The court awarded each party $5,000 in jewelry and $4,000 in furniture without specifying which personal property would be awarded to each spouse. Last, the court ordered appellant to pay $1,157 per month in child support and $1,000 a month in permanent periodic alimony. Appellant filed a motion for rehearing, raising, among other issues, the matters presently being challenged in this appeal.

Inconsistencies Regarding Timesharing

The Final Judgment is internally inconsistent. In the Final Judgment, the court specifically noted the temporary order awarded appellant timesharing “every other Monday,” and awarded appellant timesharing “as ordered in the aforementioned temporary order.” However, the court then stated timesharing was ordered pursuant to Exhibit C, the Parenting Time Schedule, which only provided for time-sharing every other weekend. Therefore, it is unclear from this order whether appellant is entitled to timesharing every other Monday.

Thus, the trial court abused its discretion in entering an inconsistent award of timesharing. See Hornyak v. Hornyak, 48 So.3d 858, 862-63 (Fla. 4th DCA 2010) (finding the trial court abused its discretion in a dissolution proceeding for imputing income to the former wife that was inconsistent with the court’s other findings). We remand for entry of a consistent order regarding timesharing.

Permanent Periodic Alimony

Section 61.08(1), Florida Statutes (2006) states, “In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature .... In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.” Subsection (2) provides:

(2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party.
The court may consider any other factor necessary to do equity and justice between the parties.

“In order to facilitate a meaningful appellate review of the trial court’s alimony determination, it is incumbent upon the trial court to include specific findings of fact regarding the factors enumerated in section 61.08(2)(a)-(g).” Geoghegan v. Geoghegan, 969 So.2d 482, 485 (Fla. 5th DCA 2007) (citations omitted) (reversing an award of alimony where the court was “unable to reconcile how [the former wife’s need] was determined by the trial court” due to a lack of factual findings). “The financial needs of one spouse and the ability of the other spouse to pay are the primary factors for the trial court to consider,” and “the lack of adequate findings hampers meaningful appellate review.” Austin v. Austin, 12 So.3d 314, 317-18 (Fla. 2d DCA 2009) (citations omitted). Furthermore, “Florida courts have held that eleven-year marriages fall within the grey area between short-term and long-term marriages. In grey-area marriages, there is no presumption for or against permanent alimony.” Welch v. Welch, 951 So.2d 1017, 1019 (Fla. 5th DCA 2007) (citations omitted). See also Brathwaite v. Brathwaite, 58 So.3d 398, 401 (Fla. 1st DCA 2011) (finding 14-year marriage fell into the “ ‘gray area’ where no presumption for or against alimony should be applied.’ ”).

Here, in the Final Judgment, the trial court found, “[appellant] shall pay to the Wife the sum of $1,000 per month as permanent periodic alimony beginning February 1, 2010 and continuing on the 1st day of each and every month thereafter until the death of either party, the Wife’s remarriage, or further order of the Court.” The trial court clearly failed to include the factual findings required by section 61.08, and the failure to do so precludes meaningful review.

Specifically, the court failed to make any findings concerning (1) the needs of the former wife; (2) appellant’s ability to pay; (3) the former wife’s need for permanent alimony; and (4) the former wife’s earning capacity. Thus, it is unclear how the trial court reached the amount of $1,000 a month, as in Geoghegan, 969 So.2d at 485. See also Segall, 708 So.2d at 987; Austin, 12 So.3d at 317.

Moreover, the parties had been married 11 years when appellant filed a petition for dissolution; therefore, this case falls into the “grey area” where there is no presumption for or against alimony. Welch, 951 So.2d at 1019. Thus, the factual findings are particularly important here. Williams v. Williams, 923 So.2d 606, 608 (Fla. 2d DCA 2006). The total lack of factual findings here precludes meaningful review. We reverse and remand for further findings.

Failure to Identify, Value, and Distribute Assets

Section 61.075(1), Florida Statutes (2006), requires the trial court “shall set apart to each spouse that spouse’s non-marital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors,” including factors set forth in subsections (a) through (j). Pursuant to section 61.075(3), where a dissolution is contested, “any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1).” Subsection (3) further requires,

The distribution of all marital assets ... shall include specific written findings of fact as to the following factors:
(a) Clear identification of nonmarital assets and ownership interests;
(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;
(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;
(d) Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.

§ 61.075(3), Fla. Stat. (2006).

Appellant argues the trial court abused its discretion in distributing the assets by (1) failing to award appellant his nonmari-tal assets; and (2) failing to identify specifically the furniture and jewelry to which he was entitled.

1. Nonmarital Assets

Appellant argues the trial court abused its discretion in failing to award him nonmarital personal property. In his motion for rehearing and on appeal, he argues he presented uncontroverted testimony that his grandmother’s blue and yellow quilt, a Meucci pool cue stick, and guns were nonmarital property. The former wife does not challenge his assertion that the items are nonmarital, but she argues the court was not required to award them to appellant because she testified he was already in possession of these items.

In Pridgeon v. Pridgeon, 632 So.2d 257, 259-60 (Fla. 1st DCA 1994), the trial court failed to award a former wife a refrigerator and freezer she acquired prior to the marriage that were in the former husband’s possession. The husband did not dispute that the items were nonmarital, but argued she had not proven that he refused to return the items to her, and the matter was “too trivial to be reviewed.” Id. at 260. This court found section 61.075 “makes no exception for either appliances or assets deemed by one spouse to be not worthy of taking up the court’s time,” and directed the trial court to award the items to the former wife on remand. Id.

Here, appellant correctly argues he presented evidence that the pool cue, guns from his father and grandfather, and quilt were given to him prior to the marriage. It is noted that the former wife argues the trial court was not required to award the items as nonmarital because she testified she did not have them. However, in Pridgeon, 632 So.2d at 259-60, this court rejected a similar argument that the former wife was not entitled to be awarded her nonmarital property because she had not proven the former husband was unwilling to return it to her. Under section 61.075(5), Florida Statutes (2006), property acquired prior to the marriage or by gift is nonmarital, regardless of where it is currently stored. Therefore, we reverse and remand for the trial court to address appellant’s request for these items to be awarded as nonmarital.

2. Furniture and Jewelry

Appellant argues the trial court erred in failing to distribute the parties’ furniture and jewelry, instead awarding each party $4,000 worth of furniture and $5,000 worth of jewelry generally. Appellant argues this failure makes him unable to determine which items he is entitled to recover from the former wife, who took most of the items. The former wife responds that she testified she did not take all of the furniture, and she did not take any of the jewelry, and the trial court was entitled to rely on her testimony.

The court’s distribution of furniture and jewelry lacked the specific factual findings required by section 61.075(3), including the “[ijdentification of marital assets,” the “designation of which spouse shall be entitled to each asset,” and “[a]ny other findings necessary to advise the parties or the reviewing court of the trial court’s rationale.”

In Kelley v. Kelley, the Fifth District reversed where a trial court “divided the $48,500 in furniture, furnishings and appliances in the marital home by providing that the parties alternatively select items from the Husband’s personal property list.” 987 So.2d 1246, 1249 (Fla. 5th DCA 2008). The former husband argued this assignment was in error because it was not agreed to by the parties and precluded appellate review. Id. The Fifth District agreed, finding the trial court “erred because there were no specific findings for allocation of all of the personal property and no actual allocation.” Id.

Similarly in Shea, this court reversed the portion of a dissolution final judgment “requiring the parties to compile a list of unspecified items of personal property to be divided between them, with distribution to be made by them on a ‘pick and choose’ basis.” Shea v. Shea, 572 So.2d 558, 559 (Fla. 1st DCA 1990). This court reasoned, “such an award affords no basis for appellate review, thus requiring remand to the trial court for further consideration of the rights of the parties with respect to any items of personal property in the possession of either party at the time of final judgment as amended, as disclosed by the evidence of record, and not otherwise disposed of by the judgment and orders of the court.” Id. The court distinguished that this “method of distribution may be satisfactory for certain property, such as household goods, where the parties agree.” Id. at n. 1. See also Burroughs v. Burroughs, 921 So.2d 802, 804 (Fla. 1st DCA 2006) (reversing a dissolution judgment, finding “the lower court erred in directing the parties to divide their furniture and household items, despite the wife’s request for the trial court to make such division in its judgment of dissolution”).

Here, however, the parties did not agree to divide the items between themselves. The former wife offered such a division, but appellant objected. Thus, pursuant to Kelley and Shea, the trial court erred in failing to distribute the parties’ furniture and jewelry.

Upon review of the record, it seems there is sufficient evidence for the trial court to make this determination. The parties presented evidence as to the identity and value of the furniture and jewelry in their pretrial catalogs and trial testimony. We, therefore, reverse and remand for the court to distribute the furniture and jewelry.

In all other respects, the trial court’s decision is affirmed.

AFFIRMED in part, REVERSED and REMANDED in part.

LEWIS and WETHERELL, JJ., concur.


author: PER CURIAM.

text:
    Pedro BORREGO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2245.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2012.
    Carl J. DiCampli of Lorenzo & Lorenzo, P.A., Tampa, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Pedro Borrego, Jr., appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the postconviction court correctly determined that his motion was untimely, we affirm. See Barrios-Cruz v. State, 63 So.3d 868, 873 (Fla. 2d DCA 2011). As in Barrios-Cruz, we hold that Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed; question certified.

CASANUEVA, LaROSE, and MORRIS, JJ., Concur.


text:
    William D. HOLLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5701.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    William D. Holley, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and William D. Holley is hereby afforded a belated appeal from judgment and sentence in Santa Rosa County case number 2010-1007-CF. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal. See Fla. R.App. P. 9141(c)(6)(D). The lower tribunal is directed to appoint counsel for appellant in the direct appeal if he qualifies for such an appointment.

LEWIS, ROBERTS, and RAY, JJ., concur.


text:
    Lemuel O. MAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5633.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    Lemuel O. May, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Lemuel 0. May is hereby afforded belated appeal of judgment and sentence issued by the Circuit Court for Escambia County in case number 2009-CF-004919-A. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D). The lower tribunal is directed to appoint counsel for appellant in the direct appeal if he qualifies for such an appointment.

LEWIS, ROBERTS, and RAY, JJ., concur.


text:
    Caleb Scott KAECK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5146.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    Caleb Scott Kaeck, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Caleb Scott Kaeck is hereby afforded belated appeal of the order of the Circuit Court for Baker County which denied his motion to correct illegal sentence in case number 2006-CF-000211-A. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

LEWIS, ROBERTS, and RAY, JJ„ concur.


text:
    James Edward OSBORNE, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-4351.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    James Edward Osborne, pro se, Petitioner.
    Jennifer Parker, General Counsel, and Michael T. Kennett, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

James Osborne seeks certiorari review of an order dismissing his petition for writ of habeas corpus as failing to establish any entitlement to immediate release. Osborne’s petition for writ of habeas corpus, as filed with the trial court, sought review of the Department of Corrections’ final agency action denying Osborne’s administrative appeal, in which Osborne alleged that the Department of Corrections had miscalculated Osborne’s release date by failing to properly credit him for time served. In dismissing Osborne’s petition, the trial court wrote:

The Petitioner maintains that the DOC has failed to take into account four years, four months, and twenty-three days of gain time. However, even assuming that the Petitioner’s allegations are true, and the Petitioner was in fact entitled to this credit, the Petitioner’s sentence would still not be complete. Accordingly, the Petitioner has failed to establish entitlement to immediate release.

Because the trial court dismissed Osborne’s petition without reaching the merits of his claim, the instant petition is hereby converted to an appeal, and the petition and response are treated as the initial and answer briefs. See Green v. Moore, 777 So.2d 425, 426 (Fla. 1st DCA 2000), (because “the circuit court proceeding [was] concluded on grounds other than the merits, the order may be appealed”).

The Department of Corrections concedes, correctly, that the trial court erred in dismissing Osborne’s petition for writ of habeas corpus, rather than redesignating it as a petition seeking mandamus relief. See Fla. R.App. P. 9.040(c); Ashley v. Moore, 732 So.2d 498, 499 (Fla. 1st DCA 1999). Furthermore, the Department of Corrections correctly concedes that the proper venue for Osborne’s mandamus petition, challenging the DOC’s final agency action, was in the Second Circuit Court in and for Leon County. See, e.g., Reeves v. State, 987 So.2d 779 (Fla. 3d DCA 2008). Thus, after redesignating Osborne’s petition as one seeking mandamus, the trial court should have transferred the petition to the Leon County Circuit Court.

Accordingly, the order dismissing the petition for writ of habeas corpus is reversed, and the matter is remanded to the circuit court for further proceedings consistent with this opinion.

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


text:
    Jeffrey Phillip LIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3735.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    Peggy-Anne O’Connor and Ronald D. Kozlowski, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Tallahassee, for Appel-lee.
   PER CURIAM.

Jeffrey Phillip Light appeals an order denying his petition to seal criminal records. Because the trial court failed to hold an evidentiary hearing or cite facts and circumstances justifying denial, we reverse and remand for further proceedings. See Johnson v. State, 336 So.2d 93, 95 (Fla.1976); Cole v. State, 941 So.2d 549, 550 (Fla. 1st DCA 2006).

REVERSED and REMANDED.

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