author: GROSS, J.

text:
    WEST CONSTRUCTION, INC., Appellant, v. FLORIDA BLACKTOP, INC., Appellee.
    No. 4D11-408.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Rehearing Denied June 13, 2012.

      Larry A. Klein of Holland & Knight LLP, West Palm Beach, and Allen R. Tomlinson of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellant.
    Joseph W. Lawrence, II of Vezina, Lawrence & Piscitelli, P.A., Fort Lauderdale, for appellee.
    Francisco Touron, III of Touron Law, Miami, and Eric B. Travers of Kegler, Brown, Hill & Ritter, LPA, Columbus, Ohio, for Amicus Curiae American Subcontractors Association, Inc.
   GROSS, J.

In this case between a subcontractor and a general contractor, we reverse a final judgment for the subcontractor because the parties’ dealings did not give rise to an enforceable contract.

Florida Blacktop, Inc., an asphalt paving subcontractor, sued West Construction, Inc., a general contractor. The essence of Blacktop’s complaint was that, even though West used its bid to secure a project contract with the Village of Royal Palm Beach, West contracted with another to perform the work.

Florida Blacktop’s complaint asserted three causes of action: breach of oral contract, promissory estoppel, and unjust enrichment, which is also called a contract implied in law. See Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., Inc., 695 So.2d 383, 386 (Fla. 4th DCA 1997). The case went to a jury trial. An issue of fact to be decided by the jury was whether there was a contract between the parties. In a blended jury instruction, the jury was told about an express oral contract, where an agreement is arrived at by words. See id. at 385. Also, without objection, the jury was instructed about a contract implied in fact, where an agreement “is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement.” See id. By answering an interrogatory verdict, the jury found that Blacktop and West “enter[ed] into an oral agreement” that West would use Blacktop “as its asphalt paving contractor if’ West “was awarded the Project” by Royal Palm Beach. The jury also found that West breached that “oral contract” and awarded damages. Thus, given the way the jury was instructed and the structure of the verdict form, the jury’s finding of an “oral contract” could have been based on an express oral contract, a contract implied in fact, or both.

On appeal, West argues that, when “reviewing the evidence in a light most favorable to [Blacktop], there [was] no competent evidence creating an oral agreement,” so that the trial court should have granted its motion for directed verdict. Because of the way the case was submitted to the jury, our inquiry must focus on whether either an enforceable oral contract or contract implied in fact was formed between the parties.

Evidence at Trial

The Village of Royal Palm Beach initiated a public competitive bidding process, inviting contractors to submit bids in connection with the construction of a building. West decided to compete for the project and invited subcontractors to submit bids for parking lot and asphalt work. Blacktop submitted a “Proposal/Contract” offering to do the paving for a unit price of $14.10, but reserving the right to alter its price due to changes in material costs.

Page four of the proposal contained this preprinted, small print clause:

Florida Blacktop, Inc. has devoted time, money and resources toward the preparation of this bid and as consideration therefore itf’Js submitting this bid to “buyer" with the express understanding and agreement of the parties that in the event the “buyer" in any way uses Florida Blacktop, Inc.’s bid such as figures contained therein for purposes of shopping the bid with third parties and/or divulging information contained in the bid to third parties similarly competing with Florida Blacktop, Inc. for the work at issue and/or incorporating any portion of Florida Blacktop, Inc.’s bid in correspondence with third parties competing or in any way involved with the construction work on the project at issue such action(s) shall in all instances constitute acceptance of Florida Blacktop, Inc.’s bid and shall create a binding contract between the parties consistent with the bid documents.

(Emphasis added). Without explanation or elaboration, the president of Blacktop vaguely testified that this clause was the “industry standard,” meaning he understood the clause to mean that, if West used Blacktop’s bid and got the job, “a contractual agreement” arose. Although Blacktop’s “Proposal/Contract” had places for signatures for both Blacktop and West, neither party signed the document. There was no evidence that West orally agreed to the pre-printed paragraph of the proposal quoted above. There was no evidence that West, either orally or in writing, accepted Blacktop’s proposal. The parties never entered into a written contract.

Thereafter, West submitted its bid to the Village and was notified that it was the lowest bidder. West then furnished the Village with a list of proposed subcontractors and suppliers, indicating that $165,259.93 was attributable to asphalt paving work, which would be performed by Blacktop. Even though Blacktop sent a letter to West thanking it for the work, West never discussed the project with Blacktop, taking the position that Blacktop had been listed as a subcontractor by accident. West hired a different company to do the paving work.

The trial court denied West’s motions for directed verdict and submitted the case to the jury on the blended contract theory described above.

Discussion

For there to be an enforceable contract, “there must be an offer, an acceptance, consideration, and sufficient specification of terms so that the obligations involved can be ascertained.” Savoca Masonry Co., v. Homes & Son Constr. Co., 112 Ariz. 392, 542 P.2d 817, 819 (1975). A subcontractor’s bid is “nothing more than an offer to perform the subcontract under specified terms.” Corbin-Dykes Elec. Co. v. Burr, 18 Ariz.App. 101, 500 P.2d 632, 633 (1972). The bid does not evolve into a contract until it is accepted by the general contractor; “no contract is formed when a bid is made pursuant to an invitation to bid.” Hoon v. Pate Constr. Co., 607 So.2d 423, 426 (Fla. 4th DCA 1992). Acceptance of an offer may be by the words used or by “other manifestations of intent having reference to the contract.” Corbin-Dykes, 500 P.2d at 634.

Here, there was no express oral or written acceptance of Blacktop’s bid. If there was an acceptance by West, it must be found in a contract implied in fact by evaluating the circumstances under an objective standard. See Holman Erection Co. v. Orville E. Madsen & Sons, Inc., 330 N.W.2d 693, 695 (Minn.1983). “It is a settled common law contract principle that utilizing a subcontractor’s bid in submitting the prime or general contract bid does not, without more, constitute an acceptance of the subcontractor’s offer conditioned upon being awarded the general contract by the awarding authority.” Id. at 696 (quoting Mitchell v. Siqueiros, 99 Idaho 396, 582 P.2d 1074, 1077 (1978)); see also Merritt-Chapman & Scott Corp. v. Gunderson Bros. Eng’g Corp., 305 F.2d 659, 662-63 (9th Cir.1962) (“At the outset, it is clear that in Washington [state] use of a bid by a prime contractor is not the legal equivalent of acceptance.” (citation omitted)). West’s mere use of Blacktop’s bid in submitting its bid did not constitute an acceptance.

Nor did West’s use of Blacktop’s bid amount to a manifestation of its assent because of the preprinted paragraph quoted above. An offeree has a right to not reply to offers. Columbia Malting Co. v. Clausen-Flanagan Corp., 3 F.2d 547, 551 (2d Cir.1924). Unless the offeree agrees in advance, the offeror cannot, by the offer, define the form and manner of the offeree’s acceptance. See id. Thus, “ ‘[a]n offer made to another, either orally or in writing, cannot be turned into an agreement because the person to whom it is made or sent makes no reply, even though the offer states that silence will be taken as consent, for the offerer cannot prescribe conditions of rejection so as to turn silence on the part of the offeree into acceptance.’ ” Leslie v. Brown Bros. Incorporation, 283 P. 936, 942 (Cal.1929) (quoting 13 C.J. Contracts § 74 (1917), available at http://bit.ly/HPQfOY).

Here, West never signed the proposal or agreed to any of its terms, in particular the terms in the preprinted paragraph. West’s silence in response to the preprinted paragraph was not acceptance of its terms for the purpose of the formation of a contract. The vague, bare statement that the proposal was consistent with “industry standard” and, also, “consistent with previous business opportunities with West” fails to establish a custom and usage or a previous course of dealing, pursuant to which West’s silence could be understood as acceptance of the proposal’s terms.

This case is distinguishable from W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So.2d 297 (Fla. 1st DCA 1999), a case involving the trial court’s dismissal of a subcontractor’s complaint for failure to state a cause of action. The first district found that the subcontractor had adequately pleaded an express contract where the subcontractor only agreed to provide a bid calling for labor and materials at a fixed cost because the general contractor promised to contract with the subcontractor subject to two contingencies: that the subcontractor’s price was the lowest price at the time of the bid and the general secured the construction contract. Id. at 301. Here, there was no such express contract and Blacktop “merely submitted a subcontractor’s potential price or bid.” Id. This was not a case where Blacktop agreed to bid “only after receiving the general contractor’s promise to accept the bid if it were the low bid and if the general contractor were awarded the prime contract.” Elec. Constr. & Maint. Co., v. Maeda Pac. Corp., 764 F.2d 619, 621 (9th Cir.1985). Also, unlike in W.R. Townsend, there was no unjust enrichment claim in this case that turned on the subcontractor’s provision of a guaranteed bid that allowed West to be “the low bidder on the project.” 728 So.2d at 303.

Based on the foregoing, we hold that the trial court erred in denying West’s motions for directed verdict. This result is consistent with the equities of the bidding process identified by the Minnesota Supreme Court:

[T]he nature of the bidding process compels allowing the general sufficient leeway to maintain its flexibility in executing subcontracts and selecting the subcontractors it will hire for a project. ...
... The subcontractors have the luxury of preparing their bids on their own timetable, subject only to the deadline for submitting their bids to the general contractors. The same bid goes to all the general contractors and covers the same work. The generals, on the other hand, are dealing with all the various construction aspects of the project and with numerous potential subcontractors. They compile their bids, as the various subcontractor bids are received, within a few hours of the deadline for submission of the prime bid. Specifics are necessarily given less than thorough consideration and are left for future negotiations. Finally, the lowest dollar amount bidder is not always the one chosen to do the work or the one listed as the potential subcontractor. Reliability, quality of work, and capability to handle the job are all considerations weighed by the general in choosing subcontractors. MBE regulations requiring an effort to use a percentage of minority contractors are another potential consideration.
Binding general contractors to subcontractors because a particular bid was listed in the general bid or was utilized in making the bid would remove a considerable degree of needed flexibility.

Holman Erection, 330 N.W.2d at 698-99.

Reversed and remanded for the entry of judgment for the defendant.

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

      . The promissory estoppel count was not submitted to the jury.

      . In reviewing the denial of a motion for directed verdict, we view the evidence in a light most favorable to Blacktop, the non-moving party, and we "must affirm the denial of a motion for directed verdict if any reasonable view of the evidence could sustain a verdict in favor of the non-moving party." Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009).

      . "Custom or usage is defined as an habitual or customary practice, more or less widespread, which prevails within a geographical or sociological area.” Corbin-Dykes, 500 P.2d at 634. Although custom and usage or course of dealings may be considered for the purpose of deciding whether a contract inl-plied in fact has been formed, see Indus. Elec-Seattle, Inc. v. Bosko, 67 Wash.2d 783, 410 P.2d 10, 17-18 (1966), the testimony must consist of more than conclusory statements, see Cinghina v. Racik, 647 So.2d 289, 291-92 (Fla. 4th DCA 1994).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Billy James LEWIS, Jr., Appellant, v. DEPARTMENT OF REVENUE and Tiffany L. Brown, Appellees.
    No. 4D10-122.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Rehearing Denied June 13, 2012.
    Billy James Lewis, Jr., Lake City, pro se.
    William H. Branch, Tallahassee, for ap-pellee Department of Revenue.
   CONFESSION OF ERROR

PER CURIAM.

We accept the Department of Revenue’s confession of error in which it concedes that the lower court erred by denying appellant’s supplemental petition for modification of child support and motion requesting paternity test following a hearing at which the appellant was unable to participate due to his incarceration. The Department acknowledges that appellant is entitled to a hearing, and that he may participate in the hearing by telephone. We reverse and remand this cause for a new hearing and for further proceedings consistent herewith.

Reversed and Remanded.

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


author: SHEPHERD, J.

text:
    Mercedes LEZCANO, Appellant, v. In re ESTATE OF Exzun Lazaro HIDALGO, Appellee.
    No. 3D11-714.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Rehearing Denied May 29, 2012.

      Grumer & Macaluso, and Keith T. Grumer and Maidenly Macaluso, Fort Lauderdale, for appellant.
    Mendez & Mendez, and Sergio L. Mendez, Coral Gables, for appellee.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   SHEPHERD, J.

Mercedes Lezcano appeals an order of the probate court, removing her as personal representative of the estate and co-trustee of the trust of her deceased brother pursuant to a generalized order instructing her to show cause why she should not be held in contempt for a purported failure, in her capacity as personal representative, to comply with “[certain] orders [of the court]” and “failing to place all income and assets into [a] restricted depository” and related alleged misdeeds. “Because [the] removals were] ordered without notice or an evidentiary hearing, ‘the ruling did not meet even the most rudimentary requirements of due process.’ ” Zulon v. Peckins, 81 So.3d 647 (Fla. 3d DCA 2012) (quoting LoCascio v. Estate of LoCascio, 78 So.3d 573, 574 (Fla. 3d DCA 2011)). We reverse and remand with instructions to reinstate Lezcano as personal representative of the estate and co-trustee of the trust, and discharge Mr. Mendez as curator of the estate.

Reversed and remanded with directions.


author: SWANSON, J.

text:
    Robert L. HENTZE, Appellant, v. Cherolyn Janel DENYS, f/k/a Cherolyn Hentze, Appellee.
    No. 1D11-650.
    District Court of Appeal of Florida, First District.
    May 1, 2012.

      Nick James and Brian P. North of Leigh, James & Associates, Fleming Island, for Appellant.
    No appearance for Appellee.
   SWANSON, J.

Robert L. Hentze (“former husband”) seeks review of the trial court’s Corrected Order on Former Husband’s Motion for Contempt, Former Wife’s Motion for Contempt, Motion to Compel and Supplemental Petition to Modify (“Final Order”), as well as its Corrected Income Deduction Order. We affirm in part and reverse in part.

I. Relevant Facts

On September 13, 2001, former husband and Cherolyn J. Denys (“former wife”) dissolved their marriage by Consent Final Judgment of Dissolution of Marriage (“Judgment of Dissolution”). The Judgment of Dissolution provided that the parties would have rotating custody of their three minor children, the former husband would be responsible for paying all daycare expenses for the minor children, and neither one of the parties would be obligated to pay the other any amounts for child support. The Judgment of Dissolution also required the former husband to provide for all of the children’s health and dental insurance premiums, but the parties were to equally divide any non-covered medical, dental or prescription expenses and co-payments. Finally, paragraph 8 of the Judgment of Dissolution, titled “SCHOOL PICTURES, ETC.[,]” provided that “[ojther expenses relating to the minor children of the parties, sports, and any other related activities shall be shared equally by the parties.”

After a dispute arose between the former husband and former wife, the trial court entered an Interim Order Modifying Final Judgment of Dissolution of Marriage (“Interim Order”) on July 15, 2003. The Interim Order provided that any party who incurred a non-covered or deductible expense “shall provide the other party with all appropriate documentation including proof of payment ... within 30 days of the date of the invoice billing.” The other party was then required to reimburse the first party within 30 days of receipt of the documentation. Additionally, since 2004, the parties had agreements between themselves and through Hope Haven’s Parenting Coordination program to split certain expenses.

The former husband reopened the case by filing a motion for contempt seeking reimbursement from the former wife for certain expenses. In support of his motion, he testified that although he had been giving the former wife receipts for non-covered medical expenses or deductible health care expenses incurred for the children since April 2004, he had not received full reimbursement.

The former wife also filed a motion for contempt, and testified the former husband willfully failed to pay expenses related to the minor children. The former wife acknowledged the former husband had sent her monthly emails outlining the monthly expenses he had incurred. She also admitted the former husband had not received any receipts from her until several years later, although she had tried to hand him receipts on occasion which he refused to accept.

The former wife also filed a supplemental petition for modification of the Judgment of Dissolution, which sought child support payments from the former husband. It alleged a substantial change of circumstances in that the children’s needs had increased, the former husband’s income had increased, and the former wife’s income had decreased.

The former wife was originally employed by Nationwide Money Services from May 1999 through August 2009. She became pregnant in 2008 and missed some time before going out on disability. In its Final Order, the trial court found:

When she attempted to return from leave [to Nationwide] she resigned from her job because they were going to reassign her to a different format involving a decrease in income, a change in distributions or sales to a different market. She choose [sic] not to accept either.' She testified that money was already tight before she quit her job leading the [sic ] question of why she did not attempt to accept one of the company’s offers and at least maintain income.

Additionally, the Final Order found “she clearly resigned her job, she wrote an email that is in evidence to Kathy saying that, ‘she and her husband decided to start a family with the intention .of her being able to work from home and stating that she did not plan to work in the office upon her return from pregnancy.’ ”

The former wife testified that recently she had been working for her current husband in some of his business ventures. According to the Final Order, her income derived from those ventures was substantially less in 2009 and 2010 than it had been in her final years at Nationwide.

The trial court granted the former wife’s supplemental petition and modified the Judgment of Dissolution to require the former husband to pay child support. After determining the spouses’ net monthly incomes and adjusting for equal time sharing and the cost of the children’s health insurance, the trial court determined the former husband’s support obligation is $977 per month.

The trial court granted the former husband’s motion for contempt to the extent that the former wife must reimburse him for $970.31 in medical, dental, vision, and medicine expenses for the minor children that were not covered by insurance. That calculation was based upon the former husband having paid $1,900 and the former wife having paid $930.

The trial court denied the former wife’s motion for contempt and motion to compel. It also modified the Judgment of Dissolution, deciding the parties “shall share equally the cost of agreed upon extra curricular activities!,]” and ordering each party to pay their own attorney’s fees and costs. Finally, the trial court entered a Corrected Income Deduction Order with the termination dates for the husband’s child support payments. The termination date for support of the youngest child (T.J.H.) is set for June 2018.

II. Analysis

The former husband first argues the trial court erred as a matter of law when it failed to properly apply the law of the case to the former husband’s request for reimbursement of non-covered medical expenses. In support of his argument, the former husband asserts the law of the case was established by the trial court’s Interim Order, which required a former spouse to submit proper documentation within 30 days of incurring non-covered or deductible medical expenses in order to be reimbursed by the other spouse. The trial court offset the former husband’s reimbursement by crediting $930 to the former wife, despite her failure to follow the Interim Order’s documentation guidelines.

The former husband’s reliance on the law of the case doctrine is misguided because the doctrine does not apply to trial court orders. Rather, “[l]aw-of-the-case principles do not apply unless the issues are decided on appeal." State v. McBride, 848 So.2d 287, 290 (Fla.2003) (emphasis in original); see also Empire Club, Inc. v. Hernandez, 974 So.2d 447, 449 (Fla. 2d DCA 2007) (“Law of the case is not established by a trial court’s initial ruling but rather by an appellate decision that binds a subsequent proceeding.”).

Even if the law of the case doctrine were applicable, the former husband is raising this argument for the first time on appeal. At the trial court hearing, the former wife’s attorney asked her why she had not sent the former husband most of the receipts until after filing the court action. The former wife answered “I sent them through you after the court action!,]” at which point the former husband’s counsel objected on the grounds that the testimony was outside the scope of his cross-examination. The trial court overruled the objection.

Because the objection at the hearing was on grounds different than the argument now put forth by the former husband, the present argument is not preserved. “[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection ... below.” Aills v. Boemi, 29 So.3d 1105, 1108 (Fla. 2010) (citations and internal quotation marks omitted). Likewise, the former husband did not specifically assert his law of the case argument in his motion for rehearing.

The former husband next argues the trial court erred when it failed to apply the law of the case to the former husband’s request for reimbursement of the children’s expenses. Once again, the law of the case doctrine is not applicable to a trial court’s order, and even if it were, the former husband has improperly raised it for the first time on appeal.

The former husband’s third argument asserts the trial court erred when it awarded a $970.31 judgment to him without providing for interest, even though the funds had accrued since 2004. Section 55.03, Florida Statutes (2010), states that any money judgment shall, on its face, provide the rate of interest that is payable on the judgment. The former husband’s argument on this point fails because it, too, was not preserved for appeal. The trial court’s alleged error in failing to apply statutory interest first appears in its final order. “If the error is one that first appears in the final order, the aggrieved party must bring it to the judge’s attention by filing a motion for rehearing.” Hamilton v. R.L. Best Intl., 996 So.2d 233, 234 (Fla. 1st DCA 2008). Although the former husband did file a motion for rehearing, it did not address the issue of statutory interest.

The former husband next argues the trial court improperly modified child support when it failed to impute income to the former wife. The standard of review for a trial court’s decision of whether to impute income in determining a child support award is abuse of discretion. DeBacher v. DeBacher, 867 So.2d 404, 404 (Fla. 3d DCA 2003).

Section 61.30(2)(b), Florida Statutes (2010), provides that “[mjonthly income shall be imputed to an ... underemployed parent if such ... underemployment is found by the court to be voluntary on that parent’s part.” (Emphasis added). Courts have stressed the provision’s mandatory language. See, e.g., DeBacher, 867 So.2d at 404 (emphasizing “shall”); Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999) (emphasizing trial court “must” impute income to a voluntarily unemployed parent).

In its Final Order, the trial court found the former wife resigned from her job “because” they were going to reassign her, and she chose not to accept any of the options presented despite the fact that “money was already tight.” The trial court also found she intended to start a family rather than continue working.

Because it failed to impute income to the former wife, despite finding her underemployment was voluntary, we conclude the trial court abused its discretion. See Overbey v. Overbey, 698 So.2d 811, 815 (Fla.1997) (stating, in a case involving a parent who voluntarily left employment to pursue further education and training, that “under the circumstances of this case, the father’s reduction in income is voluntary and consequently insufficient to support a finding of substantial change in circumstances”). Accordingly, we must reverse on this point, and remand with instructions to impute to the former wife income consistent with the guidelines set out in section 61.30(2)(b). See Young v. Taubman, 855 So.2d 184, 186 (Fla. 4th DCA 2003) (reversing child support award and remanding so that trial court could recalculate the amount of support owed by each parent after imputing additional income to the former wife).

Finally, the former husband argues the trial court erred by entering a Corrected Income Deduction Order that requires payments past T.J.H.’s age of majority and graduation date. If true, this would violate the Final Order — which provides that child support payments shall cease when each respective child reaches the age of 18 or graduates high school, whichever occurs first. Neither the former husband’s motion for rehearing nor his initial brief cites to any evidence of T.J.H.’s age or graduation date. Nonetheless, we reverse the trial court’s Corrected Income Deduction Order and remand for reconsideration of this issue, because two documents in the record appear to indicate T.J.H. will be 19 years old before the former husband’s child support payments are scheduled to terminate in June 2018.

AFFIRMED, in part, REVERSED, in part, and REMANDED for further proceedings.

ROBERTS and CLARK, JJ., concur.

      . Although the provision makes an exception for unemployment or underemployment caused by mental incapacity or other circumstances beyond the parent’s control, that is not at issue in this case.

      . The former husband has also argued that, even if the trial court did not err when it refused to impute a higher income to the former wife, it nonetheless erred when it improperly deviated from the child support guidelines. Because we hold the trial court erred as to the former issue, we need not address this subsequent one.

      . See R. at 57, 96.


text:
    Charles THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4808.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.

      Charles Thompson, Belle Glade, pro se.

      No appearance required for appellee.
   PER CURIAM.

We affirm the circuit court’s summary denial of appellant’s Rule 3.850 motion for postconviction relief. The claims raised in the motion lack merit. We write to address two of the claims and to clarify the legal standard that applies to postconviction claims of ineffective assistance of counsel related to a defendant’s competency to proceed to trial or to enter a plea. We affirm the denial of the remaining claims without discussion.

Background

Appellant broke into the home of an 81-year old woman and sexually battered her. He was convicted after jury trial of sexual battery and burglary of an occupied structure and sentenced to two consecutive fifteen-year sentences. This court affirmed on direct appeal. Thompson v. State, 995 So.2d 979 (Fla. 4th DCA 2008) (table).

In the claims at issue, Appellant first asserts that his trial counsel was ineffective in failing to request a competency evaluation and in failing to demand a competency hearing. Appellant also asserts that the trial court abused its discretion in failing to sua sponte conduct a competency hearing. The latter aspect of Appellant’s claim is procedural in nature, but underlying both of these claims is an implication of actual incompetency to proceed at the time of trial, a so-called “substantive incompetency” claim.

Analysis

An important distinction exists between procedural and substantive incompetency claims. See James v. Singletary, 957 F.2d 1562, 1569-74 (11th Cir.1992). A procedural claim alleges that a court erred in failing to follow procedures adequate to protect a defendant’s right not to be tried while incompetent. A substantive incompetency claim, on the other hand, alleges that the defendant’s due process rights were violated by being proceeded against while actually incompetent.

As discussed in this opinion, the legal standard that courts apply to procedural claims differs significantly from the standard that applies to claims of substantive incompetency. Federal courts in habeas corpus proceedings allow postconviction claims of substantive incompetency to be raised, but the standard is stringent and the burden is on the movant to establish a sufficient likelihood of actual incompetency.

In Florida state courts, neither a procedural nor a substantive competency claim of trial court error may be raised in a postconviction motion. Nelson v. State, 43 So.3d 20, 33 (Fla.2010). Florida courts, however, continue to recognize a “narrow” claim of ineffective assistance of counsel for failure to raise a defendant’s alleged incompetency, see Jackson v. State, 29 So.3d 1161, 1162 (Fla. 1st DCA 2010), but the legal standard that applies to such claims is unsettled.

Procedural Pate Claims

The Supreme Court of the United States has long recognized that “the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.” Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). A trial court’s failure to sua sponte order a competency hearing can result in a denial of procedural due process. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

Florida Rule of Criminal Procedure 3.210(b) requires a court to schedule a competency hearing if, at any material stage of the criminal proceeding, the court has “reasonable ground to believe that the defendant is not mentally competent to proceed.” See also Scott v. State, 420 So.2d 595, 597 (Fla.1982) (recognizing that the court is obligated to schedule a hearing if there is reasonable ground to believe defendant may be incompetent). Rule 3.210 was enacted to satisfy the mandate of Drope and Pate by setting forth procedures sufficient to ensure that a defendant is not tried while incompetent. See Lane v. State, 388 So.2d 1022, 1025 (Fla.1980).

Pursuant to Pate, a rebuttable presumption of incompetency attaches if the defendant shows that the court failed to hold a competency hearing despite information creating a “bona fide” doubt as to competency. Nelson, 43 So.3d at 33 (citing James, 957 F.2d at 1570). Because of the difficulty or impossibility of retroactively determining competency, on direct appeal, a trial court’s error in failing to order a competency hearing under Rule 3.210(b) generally results in reversal for a new trial. See Tingle v. State, 536 So.2d 202, 204 (Fla.1988). The Pate presumption is prophylactic — to ensure that courts do not systemically fail to adequately safeguard the criminal defendant’s procedural due process right not to be tried while incompetent. The presumption does not apply in postconviction proceedings. Nelson 43 So.3d at 33. The net of procedural safeguards is broader in a direct appeal.

A Pate claim that the trial court erred in failing to follow procedures to ensure competency can and must be raised on direct appeal only. Nelson, 43 So.3d at 33; James, 957 F.2d at 1572; Bundy v. State, 538 So.2d 445, 447 (Fla.1989). Appellant’s claim that the trial court abused its discretion in failing to sua sponte conduct a competency hearing is procedurally barred.

Substantive Incompetency Claims

A criminal defendant has a due process right not to be proceeded against while incompetent. Medina v. California, 505 U.S. 437, 440, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992); Caraballo v. State, 39 So.3d 1234, 1252 (Fla.2010).

In Florida, a substantive incompetency claim can be raised on direct appeal only and is procedurally barred from being raised in a postconviction motion. Carroll v. State, 815 So.2d 601, 610 (Fla.2002); Patton v. State, 784 So.2d 380, 393 (Fla. 2000); Johnston v. State, 583 So.2d 657, 660 (Fla.1991).

In the recent decision in Nelson, the Florida Supreme court rejected the post-conviction movant’s substantive incompetency claim determining that the claim was “procedurally barred because he failed to raise it on direct appeal.” 43 So.3d at 33.

Nevertheless, the court further explained that the claim of substantive incompetency lacked merit because the mov-ant had not sufficiently shown that he was actually incompetent. Id. The court quoted with approval federal case law in habe-as corpus proceedings: “[A] petitioner is entitled to an evidentiary hearing on a substantive incompetency claim if he or she ‘presents clear and convincing evidence to create a real, substantial and legitimate doubt’ as to his or her competency.” Id. (quoting James, 957 F.2d at 1578) (additional citation omitted).

Federal decisions permit substantive incompetency claims to be raised in collateral proceedings but apply the stringent standard set out above. Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir.1995). To show entitlement to a postconviction evidentiary hearing on a substantive incompetency claim, “the standard of proof is high [and] the facts must positively, unequivocally, and clearly generate the legitimate doubt.” Id. (citations omitted). “[T]he petitioner must present a preponderance of ‘clear and convincing evidence’ of ‘positive’, ‘unequivocal’, and ‘clear’ facts ‘creating a real, substantial and legitimate doubt’ as [to] his competence.” Pardo v. Sec’ y, Fla. Dep’t. of Corr., 587 F.3d 1093, 1101 (11th Cir.2009) (quoting Medina, 59 F.3d at 1106).

Both Florida and federal decisions addressing postconviction claims involving alleged incompetence focus on actual prejudice, that is, whether the defendant was actually incompetent at the relevant time.

Ineffective Assistance Claims

Nelson also addressed a claim of ineffective assistance of counsel for failure to request a competency determination. 43 So.3d at 29. The court found that the movant had not established deficient performance by counsel. Id. Although the court did not determine whether prejudice was established, the court quoted Futch v. Dugger, 874 F.2d 1483 (11th Cir.1989), which states, “In order to demonstrate prejudice from counsel’s failure to investigate his competency, a petitioner has to show that there exists ‘at least a reasonable probability that a psychological evaluation would have revealed that he was incompetent to stand trial.’ ” Id. at 1487 (emphasis supplied) (quoting Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir.1988)); see also Johnston v. State, 63 So.3d 730, 741 (Fla.2011).

We agree that a postconviction movant claiming ineffective assistance of counsel for failure to investigate or request a competency determination must establish “at least ” a reasonable probability that he or she would have been found incompetent. We see no reason, however, why the standard should differ depending on whether the postconviction claim is couched as “substantive incompetency” or as “ineffective assistance of counsel.”

The general rule is that procedurally barred claims of trial court error cannot be raised in postconviction proceedings under the guise of ineffective assistance of counsel. Israel v. State, 985 So.2d 510, 520 (Fla.2008). Arguably, this rule would bar an ineffective assistance of counsel claim involving alleged incompetency. For example, in Patton, the Florida Supreme Court held that the defendant’s claim of ineffective assistance was not sufficient to overcome the procedural bar to the competency issue which should have been raised on direct appeal. 784 So.2d at 393.

Courts, however, have recognized post-conviction claims of ineffective assistance of counsel in connection with counsel’s handling of a defendant’s competency to proceed. See, e.g., Jackson v. State, 29 So.3d 1161 (Fla. 1st DCA 2010); Coker v. State, 978 So.2d 809 (Fla. 1st DCA 2008). We now clarify the standard that applies to such a claim.

To establish ineffective assistance of counsel, the movant must show both counsel’s deficient performance and actual prejudice. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland standard is stringent, and fearing that criminal trials might come to be followed by a “second trial,” the Court cautioned against allowing “intrusive post-trial inquiry” into an attorney’s performance. Id. at 690. Evidentiary hearings on non-capital postconviction claims should be rare.

To satisfy the deficiency prong based on counsel’s handling of a competency issue, the postconviction movant must allege specific facts showing that a reasonably competent attorney would have questioned competence to proceed. The standard for competency to proceed is set out in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), and codified in Florida Rule of Criminal Procedure 3.211. The question is “whether the defendant has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and whether the defendant has a rational, as well as factual, understanding of the pending proceedings.” Fla. R.Crim. P. 3.211(a)(1). Conclusory allegations of incompetency are not enough to warrant an evidentiary hearing. See Atwater v. State, 788 So.2d 223, 229 (Fla.2001). “[N]ot every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges.” Card v. Singletary, 981 F.2d 481, 487-88 (11th Cir.1992). “[N]either low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial.” Medina, 59 F.3d at 1107.

The prejudice standard that applies to a typical claim of ineffective assistance of counsel, whether a reasonable probability exists that the outcome of the proceeding would differ, is ill-suited to a claim of alleged incompetency. The issue is not whether the outcome of the trial would have differed. Likewise, the Pate presumption and standard are inapplicable. The issue is not whether, had counsel acted differently, the court would have been required to hold a competency hearing under Rule 3.210. The focus of the prejudice inquiry is on actual prejudice, whether, because of counsel’s deficient performance, the defendant’s substantive due process right not to be tried while incompetent was violated. In order to establish prejudice in a properly raised ineffective assistance of counsel claim, the postconviction movant must, as with a substantive incompetency claim, set forth clear and convincing circumstances that create a real, substantial and legitimate doubt as to the movant’s competency. Cf. Luckey v. State, 979 So.2d 353, 354 (Fla. 5th DCA 2008) (holding that ineffective assistance of counsel claim was insufficient where defendant had not alleged actual incompetency); see also Gillis v. State, 807 So.2d 204 (Fla. 5th DCA 2002); Baker v. State, 404 So.2d 1151 (Fla. 5th DCA 1981) (recognizing that conclusory and uncorroborated postconviction claims alleging incompetency were insufficient to warrant an evidentiary hearing).

The presumption of incompetency that can arise when a Pate claim is raised on direct appeal does not apply in a post-conviction posture. See James, 957 F.2d at 1571-72. A postconviction proceeding is not a second appeal, and procedural errors that may be reversible on direct appeal do not necessarily merit postconviction relief. See Ives v. State, 993 So.2d 117, 121 (Fla. 4th DCA 2008). The wider protective net cast in a direct appeal by the Pate presumption is inappropriate to a postconviction claim of ineffective assistance of counsel.

A strong interest in finality attaches once a conviction has been upheld on appeal. Johnson v. State, 904 So.2d 400, 407 (Fla.2005) (quoting Witt v. State, 387 So.2d 922, 925 (Fla.1980)). The conviction and sentence are presumptively valid and correct. In addition, trial counsel is strongly presumed to have provided effective assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Johnson v. State, 921 So.2d 490, 500 (Fla.2005). Accordingly, a postconviction movant is presumed to have been competent, and the burden is on the movant to show otherwise.

To be entitled to an evidentiary hearing on this type of claim, the movant must set forth clear and convincing circumstances that create a real, substantial and legitimate doubt as to competency. In making this determination, a court may consider the totality of the circumstances, including: (1) the nature of the mental illness or defect which forms the basis for the alleged incompetency; (2) whether the movant has a history of mental illness or documentation to support the allegations; (3) whether the movant was receiving treatment for the condition during the relevant period; (4) whether experts have previously or subsequently opined that defendant was incompetent; and (5) whether there is record evidence suggesting that the movant did not meet the Dusky standard during the relevant time period.

The Present Case

In this case, appellant simply alleged that he had “a history of mental disorders with alcohol and drug dependency.” He attached to his motion a psychological evaluation prepared before trial by a confidential expert retained by the defense. He claims that counsel should have requested a competency hearing.

Before trial, defense counsel had appellant examined by a clinical and forensic psychologist. The psychologist reported that appellant, who was 35 years old at the time of the evaluation, was borderline retarded (70 IQ) and had a history of depression, as well as a 20-year history of crack cocaine abuse. As a teenager, appellant was on several occasions admitted to a mental hospital for evaluation of oppositional and rebellious behavior. He had a history of attempted suicide. The motion does not indicate that appellant has ever been diagnosed with a mental illness or any condition that would impact his ability to understand the proceedings or assist counsel.

These circumstances are not sufficient to raise a legitimate doubt as to competency or to require an evidentiary hearing in this non-capital case. As the Florida Supreme Court observed, in Bush: “The numerous psychological problems now pointed out, such as learning disabilities, a passive and dependent personality, and possible ‘diffuse organic brain damage’ do not, when taken together, sufficiently raise a valid question as to [the movant’s] competency to stand trial.” 505 So.2d at 411 (citation omitted). Similarly, appellant’s history of drug abuse, depression, and aggressive, rebellious behavior do not raise a valid question as to his competency to stand trial.

Florida does not recognize a diminished capacity defense. Chestnut v. State, 538 So.2d 820 (Fla.1989). Many people have a low IQ or suffer from behavioral and mood disorders and are able to function in today’s society. The fact that one suffers from mental disorders and has a history of behavioral problems or drug abuse does not mean “that one may engage in violent, dangerous behavior and not be held accountable.” James, 489 So.2d at 739. Further, a suicide attempt is not alone sufficient to raise a question about competency to stand trial. Nelson, 43 So.3d at 29. This court has rejected the notion “that anyone with a low intelligence is automatically suspect as being legally incompetent to stand trial.” Fuse, 642 So.2d at 1146.

Finally, at trial, the defense presented the psychologist as a defense expert witness, and he testified that, in his opinion, appellant did not understand the Miranda rights he waived in his taped statement to police because of his low IQ and intoxication on drugs and alcohol at the time of the statement. On cross-examination, although the expert had not examined appellant for competency, the expert acknowledged that appellant understood that he was on trial, understood the role of defense counsel, the prosecutor, the judge and the jury, and was able to communicate with defense counsel.

Conclusion

A claim of trial court error for failure to sua sponte make a competency determination is procedurally barred from being raised in a postconviction motion. The standard that applies on direct appeal to a procedural Pate claim is inapplicable in postconviction proceedings.

Postconviction evidentiary hearings regarding competency issues are reserved for extraordinary situations where the movant makes a strong preliminary showing that competency to proceed was legitimately in question at the relevant stage. To be entitled to an evidentiary hearing on a claim of ineffective assistance of counsel based on the movant’s alleged incompetency at the time of a plea or trial, the movant must set forth circumstances that create a real, substantial and legitimate doubt as to his or her ability to understand the charges or assist counsel.

Appellant in this case failed to set forth circumstances sufficient to warrant an evi-dentiary hearing on his claim. The record demonstrates that trial counsel did not perform ineffectively in failing to seek a competency determination.

Affirmed.

WARNER, TAYLOR and CIKLIN, JJ., concur.

      . Prior decisions appear to have acknowledged the viability of postconviction substantive incompetency claims where the circumstances strongly suggested actual incompetency. See Jones v. State, 478 So.2d 346, 347 (Fla.1985), on appeal after remand, 740 So.2d 520 (Fla.1999). The supreme court has distinguished Jones where the circumstances suggesting substantive incompetency were not strong. Bush v. Wainwright, 505 So.2d 409, 410-11 (Fla.1987); James v. State, 489 So.2d 737, 739 (Fla.1986).

        In Hill v. State, 473 So.2d 1253 (Fla.1985), where the evidence suggesting substantive incompetency was compelling, the court granted postconviction relief based on the trial court's failure to have sua sponte conducted a competency hearing. Soon thereafter, the court distinguished Hill where the circumstances suggesting actual incompetency were not compelling. Card v. State, 497 So.2d 1169 (Fla.1986); Mason v. State, 489 So.2d 734 (Fla.1986); see also Fuse v. State, 642 So.2d 1142 (Fla. 4th DCA 1985) (distinguishing Hill).

      Postconviction claims of incompetency are extremely fact-dependent. Relief has been available only where the circumstances strongly suggest actual incompetency. These principles guide the holding in this case.

      . Capital postconviction proceedings are different. See generally Fla. RXrim. P. 3.851. Postconviction evidentiary inquiry into a capital defendant’s mental capacity is more common because mental capacity is relevant to the penalty phase of the proceedings. See Thompson v. State, 3 So.3d 1237 (Fla.2009); Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); Fla. R.Crim. P. 3.202 (setting out procedures for presenting expert testimony for mental mitigation during the penalty phase); Fla. R.Crim. P. 3.203 (setting out procedures for determining whether retardation is a bar to the death penalty).

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


author: DAMOORGIAN, J.

text:
    Dexter Lavon THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3220.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.

      Carey Haughwout, Public Defendei', and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, J.

Dexter Lavon Thompson appeals his convictions and sentences for attempted second-degree murder, aggravated battery with a deadly weapon, and robbery with a deadly weapon. For each count, the jury found that Thompson was in actual possession of a firearm, discharged the firearm, and wore a mask. Thompson raises two issues on appeal relating to (i) the impropriety of certain questions asked by the State during voir dire and (ii) the impropriety of the State’s closing arguments. We affirm.

First, Thompson argues that the trial court erred by denying his motion for mistrial based on the State’s questions during voir dire regarding the reliability of gunshot residue evidence. By way of background, defense counsel objected to the three questions posed on this topic and the trial court sustained the objection. Moreover, the trial court immediately gave a curative instruction to the jury, telling them to disregard the questions relating to gunshot residue. Defense counsel moved for a mistrial shortly thereafter, which the trial court denied. However, the trial court indicated that it would allow defense counsel to raise the issue again at the close of evidence. After a lengthy discussion with both sides about the matter, the trial court decided to provide an additional curative instruction to the selected jury immediately prior to opening statements. It instructed the jury panel that “what the lawyers say at all times in this case whether in jury selection, opening statement and argument is not evidence. The evidence will come from the testimony of witnesses and items which may be produced as evidence.” At the close of evidence, the trial court again denied Thompson’s motion for mistrial.

Thompson contends that a main focus at trial was whether he used an actual firearm or a “fake” gun. The defense argued that the lack of gunshot residue and other forensic evidence meant that the State had not met its burden of proving Thompson had a firearm during the commission of the crimes. Accordingly, Thompson submits that the State’s questions to prospective jurors on this topic were an attempt to undermine his defense, resulting in the jury finding that he actually possessed a firearm. The State responds that any improper questions during voir dire were cured by the trial court’s curative instructions.

We review the denial of a motion for mistrial under an abuse of discretion standard. Durrant v. State, 839 So.2d 821, 824 (Fla. 4th DCA 2003). “A motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial.” Pagan v. State, 830 So.2d 792, 814 (Fla.2002) (citation omitted). “The purpose of voir dire is to ‘obtain a fair and impartial jury, whose minds are free of all interest, bias, or prejudice,’ not to shock potential jurors or to obtain a preview of their opinions of the evidence.” Hoskins v. State, 965 So.2d 1, 13 (Fla.2007) (quoting Ferreiro v. State, 936 So.2d 1140, 1142 (Fla. 3d DCA 2006)). Here the trial court did not abuse its discretion in denying the motion for mistrial. Any prejudice that resulted from the State’s questioning during voir dire was cured by the trial court’s multiple curative instructions to the jury.

Next, Thompson argues that the State erred in closing by arguing facts unsupported by evidence at trial, by expressing its personal opinion that the victim was truthful, by insinuating that Thompson was a liar, by shifting the burden of proof to Thompson and by appealing to the community’s conscience. The State responds that these errors were not objected to at the time of trial and did not constitute fundamental error.

Because the State’s alleged improper arguments went unobjected to by the defense, reversal is proper only if the prosecutor’s statements constituted fundamental error. Evans v. State, 62 So.3d 1203, 1204 (Fla. 4th DCA 2011). Fundamental error in closing argument is “error that *reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’” Kilgore v. State, 688 So.2d 895, 898 (Fla. 1996) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)).

We note that the courts of this state allow attorneys wide latitude in arguing to a jury during closing argument. Breedlove v. State, 413 So.2d 1, 8 (Fla.1982). Logical inferences may be drawn from the evidence, and counsel is allowed to advance all legitimate arguments. Id. “The law requires a new trial only in those cases in which it is reasonably evident that the remarks may have influenced the jury to reach a more severe verdict of guilt than it would have otherwise done.” Thomas v. State, 748 So.2d 970, 984 (Fla.1999) (citation omitted).

We conclude that the statements Thompson points to as error because they allegedly argued facts not in evidence, improperly shifted the burden of proof, and appealed to the jury’s community conscience were not improper. See Walls v. State, 926 So.2d 1156, 1166 (Fla.2006) (“A prosecutor’s comments are not improper where they fall into the category of an ‘invited response’ by the preceding argument of defense counsel concerning the same subject.”); McKenzie v. State, 830 So.2d 234, 238 (Fla. 4th DCA 2002) (“[A] prosecutor’s comments [in closing argument] must be based on facts in evidence or fair inference from those facts.”). As such, we find no error with respect to those statements.

We agree that the comment vouching for the victim’s credibility and the singular comment insinuating Thompson was lying were improper. However, these two isolated comments did not amount to fundamental error. See, e.g., Montanye v. State, 976 So.2d 29, 31 (Fla. 5th DCA 2008) (holding that prosecutor’s comments that “Josh Montanye is lying. Josh Montanye is lying, and he is doing it to get you all to buy it” was an improper expression of the prosecutor’s personal opinion about the credibility of a witness, but did not rise to the level of fundamental error). Finally, Thompson’s claim of cumulative error in regard to closing argument likewise fails. See Roberts v. State, 840 So.2d 962, 972 (Fla.2002).

Affirmed.

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


text:
    Kenneth JACKMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3726.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.
    Rehearing Denied June 13, 2012.
    See also, 27 So.3d 220.
    Kenneth Jackman, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Kenneth Jackman appeals an order entered August 4, 2009, summarily denying his motion for leave to file a belated motion for postconviction relief. For the following reasons, we reverse.

By way of background, the defendant has previously appealed an order summarily denying his motion for postconviction relief under Rule 3.850. In that appeal, filed under case number 4D09-329, we reversed and directed the trial court on remand to permit Jackman a limited period of time in which to allege the same grounds in a legally sufficient motion. Jackman v. State, 27 So.3d 220 (Fla. 4th DCA 2010). The mandate issued on February 26, 2010.

In May 2009, while case number 4D09-329 was pending in this court, Jackman filed in the trial court a pro se “motion for leave to file a belated motion for postcon-viction relief,” in which he sought to raise an additional claim based upon the allegation that his trial counsel failed to advise him of the availability of an entrapment defense. In its response, the State incorrectly characterized Jackman’s motion as a claim based on ineffective assistance of appellate counsel. The State went on to argue that pursuant to then-Florida Rule of Appellate Procedure 9.141(c)(2), the trial court lacked jurisdiction to consider Jackman’s motion because the motion should have been filed in this court. The trial court denied the motion for the reasons set forth in the State’s response. This appeal followed.

Ordinarily, our analysis might end with our reversal of the order because the State incorrectly led the trial court to conclude that Jackman’s claim was for ineffective assistance of appellate counsel when it related to trial counsel and had correctly been filed in the circuit court. However, the procedural posture of Jackman’s motion causes us to reconsider our holding in Washington v. State, 823 So.2d 248 (Fla. 4th DCA 2002), that a trial court has no jurisdiction to rule on a subsequent rule 3.850 motion while an order denying a prior rule 3.850 motion, even one seeking relief on different grounds, was on appeal.

Under Washington, we would be compelled to conclude that the trial court lacked jurisdiction to consider Jackman’s motion because, when the trial court ruled on the motion, Jackman had a pending appeal on another rule 3.850 motion before this court. See also Wells v. State, 362 So.2d 441 (Fla. 4th DCA 1978); Lee v. State, 392 So.2d 913 (Fla. 1st DCA 1980) (holding that the trial court had no jurisdiction to rule on second rule 3.850 motion where an order denying a prior rule 3.850 motion seeking relief on different grounds was on appeal).

At the time we issued Washington, Judge Klein, writing for the majority, recognized the potential problem with the two-year period of limitations for rule 3.850 motions and “recommend[ed] that when trial courts are precluded by a pending appeal from ruling on a second motion for post-conviction relief, the second motion be stayed rather than dismissed for lack of jurisdiction. This would solve the problem created if the two year limitation period expires while the first appeal is pending, and could decrease post-conviction litigation.” 823 So.2d at 249-50.

Most recently, the Second District, sitting en banc, in Bryant v. State, — So.3d —, 2012 WL 28713 (Fla. 2d DCA 2012), receded from its own line of cases consistent with our precedent, and concluded that where a subsequent motion raises unrelated issues, “the postconviction court has jurisdiction to consider the subsequent motion and to either stay it or rule upon it,” notwithstanding the pendency of an appeal of an order on a previously filed postconviction motion. Id. at —. The court explained that accepting the filing of the subsequent motion rather than dismissing it protects the defendant from the risk of procedural default resulting from the two-year time limit. Id. at —. If the trial court deems it prudent to defer ruling while the appeal is pending, it has the authority to stay its consideration of the new motion. Id.

We adopt the rationale of Bryant and now expressly recede from Wells, Washington and their progeny. Accordingly, we hold that a trial court has authority to consider or to defer ruling and stay a subsequently filed postconviction motion that raises unrelated issues notwithstanding the pendency of an appeal of an order on a previously filed postconviction motion.

This holding should not be viewed as encouraging the filing of successive motions. Successive motions are generally prohibited and should not be allowed when the grounds alleged were known or could have been known at the time of the first motion. Baker v. State, 878 So.2d 1236, 1243-44 (Fla.2004); Christopher v. State, 489 So.2d 22, 24 (Fla.1986). If a successive motion amounts to an abuse of process, it may be dismissed. Fla. R.Crim. P. 3.850(f).

Consistent with the reasoning in Bryant, we further conclude that if the subsequent motion raises the same or related issues to those on appeal, the trial court may not consider the merits while the related appeal is pending. The trial court however has authority to determine that the motion is procedurally barred and may dismiss the motion as successive or untimely.

We reverse and remand for the trial court to consider appellant’s motion. We express no opinion on the merits of his motion.

Reversed and Remanded.

MAY, C.J., WARNER, POLEN, STEVENSON, GROSS, TAYLOR, HAZOURI, CIKLIN, GERBER, LEVINE and CONNER, JJ„ concur.

      . The contents of former rule 9.141(c)(2), concerning the proper forum for petitions for belated appeal and petitions alleging ineffective assistance of appellate counsel, now appear in rule 9.141(c)(3) (petitions seeking belated appeal) and (d)(3) (petitions alleging ineffective assistance of appellate counsel). In re Amendments to Florida Rules of Criminal Procedure 3.850 and 3.851; Amendments to Florida Rules of Appellate Procedure 9.141 and 9.142, 72 So.3d 735, 741-42 (Fla.2011).


author: WARNER, J.

text:
    KPMG LLP, Appellant, v. Robert COCCHI, Penny Ellen Fromm, PEF Associates, Inc., Brian Gaines, John Johnson, Dr. David Schwartzwald, Rand Schwartzwald, Dr. Herbert Silverberg, John Silverberg, Dr. Jerry Weiss, Donna Weiss, The Norman Shulevitz Foundation, Inc., RM Management, LLC, Sande Wische, Carol Wische, Paula Zitrin, Dr. Jaron Zitrin, Rachel Zitrin, Dr. Roger Zitrin, Tremont Group Holdings, Inc., Tremont Partners, Inc., Rye Select Broad Market Fund, LP, Rye Select Broad Market Prime Fund, LP, Rye Select Broad Market XL Fund, LP, Appellees. KPMG LLP, Appellant, v. Robert Cocchi, Penny Ellen Fromm, PEF Associates, Inc., Brian Gaines, John Johnson, Dr. David Schwartzwald, Dr. Herbert Silverberg, Dr. Jerry Weiss, Donna Weiss, The Norman Shulevitz Foundation, Inc., RM Management, LLC, Sande Wische, Carol Wische, Paula Zitrin, Dr. Jaron Zitrin, Rachel Zitrin, Dr. Roger Zitrin, Tremont Group Holdings, Inc., Tremont Partners, Inc., Rye Select Broad Market Fund, LP, RYE Select Broad Market Prime Fund, LP, Rye Select Broad Market XL Fund, LP, Appellees.
    Nos. 4D09-867, 4D10-988.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.

      Edward A. Marod of Gunster, Yoakley & Stewart, P.A., West Palm Beach, Gregory G. Ballard of Sidley Austin LLP, New York, New York, and Williams & Connolly LLP, Washington, D.C., for appellant.
    Marshall A. Adams and Richard A. Ser-afini of Adams Cassidy & Phillippi, Fort Lauderdale, Jeff I. Ross of Ross & Oren-stein LLC, James L. Volling, Michael F. Cockson, and Liz Shields Keating of Faegre Baker Daniels, Minneapolis, Minnesota, and Gerald F. Richman and John R. Whittles of Richman Greer, P.A., West Palm Beach, for appellees Robert Cocchi, Penny Ellen Fromm, PEF Associates, Inc., Brian Gaines, John Johnson, Dr. David Schwartzwald, Rand Schwartzwald, Dr. Herbert Silverberg, John Silverberg, Dr. Jerry Weiss, Donna Weiss, The Norman Shulevitz Foundation, Inc., RM Management, LLC, Sande Wische, Carol Wische, Paula Zitrin, Dr. Jaron Zitrin, Rachel Zitrin, and Dr. Roger Zitrin.
   WARNER, J.

We reconsider the appeal of an order denying the appellant’s motion to compel arbitration of disputes between it and ap-pellee after vacation of our prior opinion by the United States Supreme Court. In our original appeal we addressed the arbi-trability of two of four of the claims made by appellee against appellant and concluded that those were not subject to arbitration. Upon petition for certiorari to the Supreme Court, the Court vacated our opinion because we had failed to address the arbitrability of the other two claims. It did not direct reconsideration of the two claims that we had addressed, nor did it address the entirely distinct issue that we decided in our prior opinion, namely the trial court’s denial of the appellant’s motion to dismiss for forum non conveniens. We therefore readopt our holdings on these matters. As to the two claims we did not address in our prior opinion, we reverse the denial of the motion to compel arbitration of those claims only. Because we had considered those claims moot, we remand for the trial court to determine whether they constitute “pendent claims” and are subject to arbitration.

We adopt and incorporate our prior opinion. See KPMG LLP v. Cocchi, 51 So.3d 1165 (Fla. 4th DCA 2010). We reprint that portion regarding the motion to compel arbitration:

The plaintiffs are nineteen individuals and entities, most of whom are Florida residents, who bought a limited partnership interest in one of three limited partnerships — referred to collectively here as the “Rye Funds.”FN The limited partnerships invested with Bernard Ma-doff in his infamous Ponzi scheme and lost millions of dollars. The limited partnerships were managed by Tremont Group Holding, Inc., and Tremont Partners, Inc. The plaintiffs sued the limited partnerships and the Tremont defendants, together with its auditing firm KPMG. As to KPMG, the plaintiffs alleged causes of action for negligent misrepresentation, violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), professional malpractice, and aiding and abetting a breach of fiduciary duty. Each cause of action is grounded in the alleged failure of KPMG to use proper auditing standards on the financial statements on which the plaintiffs relied in making and maintaining their investments in the partnerships. These resulted in substantial misrepresentations of the financial health of the partnerships, causing the plaintiffs to lose all of their investments.
KPMG first moved to compel arbitration, basing its claim on its audit services agreement with the Tremont Group Holding, Inc., which contained an arbitration clause. That clause purports to require arbitration and/or mediation of all disputes arising from the services performed by KPMG for the Tremont defendants under the agreement, “including any dispute or claim involving any person or entity for whose benefit the services in question are or were provided.” None of the plaintiffs, however, expressly assented in any fashion to this agreement or the arbitration provision. Instead, KPMG claimed that the plaintiffs’ claims were derivative and arose from the audit services that KPMG performed under the contract. Therefore, according to KPMG, the arbitration clause should be enforced as to the plaintiffs’ claims.
Both parties agree that Delaware law applies to the resolution of this issue, as the Rye Funds and the Tremont defendants were all Delaware partnerships. In Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1033 (Del.2004), the Delaware Supreme Court established a test when analyzing whether an action by stockholders (or limited partners) was direct or derivative of the corporation/general partnership’s cause of action. The questions which must be asked are: 1) who suffered the harm, the corporation or the stockholders individually, and 2) who received the benefit of the recovery or remedy? Because the claims of negligent misrepresentation and violation of FDUTPA allege individual harm to the plaintiffs and involve torts directed at the individual limited partners, we conclude that the limited partners suffered individual harm. See, e.g., Anglo Am. Sec. Fund, L.P. v. S.R. Global Int'l Fund, L.P., 829 A.2d 143 (Del.Ch.2003); Newman v. Family Mgmt. Corp., 2010 WL 4118083 (S.D.N.Y. Oct. 20, 2010) (under Delaware law, common law claims of negligent misrepresentation and fraud were direct claims which could be brought by limited partners); Stephenson v. Citco Group, Ltd., 700 F.Supp.2d 599, 608-12 (S.D.N.Y.2010) (negligent misrepresentation is a direct claim, and noting that the same set of facts may result in both direct and derivative claims). We therefore affirm the trial court’s denial of the motion to compel arbitration.

Id. at 1167-68. At oral argument prior to the issuance of our opinion, plaintiffs’ attorney conceded that some of the claims could be direct and some derivative. Pointedly, the panel asked whether some claims could be heard in arbitration while some would be heard in civil court. In response, counsel advised that the plaintiffs would drop any derivative claims, rather than submit to arbitration. Indeed, when KPMG moved for rehearing, in response the plaintiffs claimed that the two claims not addressed in the opinion had been dismissed. This court denied rehearing.

KPMG petitioned for certiorari to the United States Supreme Court, arguing that this court’s failure to address the remaining claims and to enforce arbitration with respect to them was contrary to the Federal Arbitration Act. The plaintiffs responded but did not include in their response the fact that the claims not addressed by this court had been dismissed. Apparently, plaintiffs had refiled those claims, although they may have been dismissed again. The record is unclear on their present posture.

In vacating this court’s opinion with respect to arbitration, the Supreme Court noted that the “Federal Arbitration Act reflects an ‘emphatic federal policy in favor of arbitral dispute resolution.’ ” KPMG LLP v. Cocchi, et al., — U.S. —, —, 132 S.Ct. 23, 25, 181 L.Ed.2d -323 (2011) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). It relied on its prior opinion of Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), to explain that even where there are multiple claims, some arbitrable and some not, those that are subject to arbitration must be arbitrated.

In Dean Witter, the Court noted that the Act “provides that written agreements to arbitrate controversies arising out of an existing contract ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” 470 U.S., at 218, 105 S.Ct. 1238, 84 L.Ed.2d 158 (quoting 9 U.S.C. § 2). The Court found that by its terms, “the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” 470 U.S., at 218, 105 S.Ct. 1238, 84 L.Ed.2d 158 (emphasis in original). Thus, when a complaint contains both arbitrable and non-arbitrable claims, the Act requires courts to “compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.” Id., at 217, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158.

Id. at 25-26. This policy requires that the tribunal carefully examine all claims to determine whether any are arbitrable. Consistent with that policy, the Court found that this court had not addressed two of the claims brought by plaintiff, and remanded for this court to “examine the remaining two claims to determine whether either requires arbitration.” Id.

After the Supreme Court’s opinion and mandate to us, we directed the filing of supplemental briefs. The plaintiffs argued that the issue was moot because they have dismissed the two remaining claims, and there are no “pendent arbitrable claims.” They did not argue that the two remaining claims of professional malpractice, and aiding and abetting a breach of fiduciary duty were direct claims. KPMG, however, disputes whether these claims have been completely dismissed. It also requests us to revisit our prior holdings as to the negligence and FDUTPA claims. We decline to do so.

Having been directed by the Supreme Court to examine the two remaining claims, we will not dismiss them as moot. We conclude that KPMG is correct in its assertion that these are derivative claims subject to arbitration. See Stephenson, 700 F.Supp.2d at 610; Askenazy v. Tremont Group Holdings, Inc., 2012 WL 440675 (Mass.Super.Jan. 26, 2012). Plaintiffs have furnished no contrary authority.

As to the trial court’s denial of the motion to compel arbitration, we thus affirm in part and reverse in part. As we did in our original opinion, we affirm as to the claims for negligent misrepresentation and for violation of the FDUTPA. We reverse as to the claims of professional malpractice and aiding and abetting a breach of fiduciary duty. On remand, we direct the trial court to determine whether these arbitra-ble claims are still “pendent claims” in this suit. If so, they must be submitted to arbitration. If they have been dismissed, as the plaintiffs claim, then there would be no remaining claims entitled to arbitration.

Affirm,ed in part, reversed in part and remanded, with instructions.

POLEN and CONNER, JJ., concur.

      . The three partnerships are Rye Select Broad Market Fund, L.P., Rye Select Broad Market Prime Fund, L.P., and Rye Select Broad Market XL Fund, L.P.


text:
    Kevin PATTERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-726.
    District Court of Appeal of Florida, Third District.
    May 2, 2012.
    Kevin Patterson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.

      Before CORTINAS, LAGOA, and SALTER, JJ.
   PER CURIAM.

The defendant, Kevin Patterson, appeals an order dated February 2, 2012, denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We treat the defendant’s notice of appeal as a petition for belated appeal and grant the petition. On the merits, we affirm. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).

Additionally, the order dated March 8, 2012, is affirmed, as the defendant’s motion was successive. See Fla. R.Crim. P. 3.850(f); Owen v. Crosby, 854 So.2d 182, 187 (Fla.2003).


text:
    Justin E. MAYS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-313.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.
    Rehearing Denied June 13, 2012.
    Justin E. Mays, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

We grant Justin Mays’ petition for writ of habeas corpus alleging ineffective assistance of appellate counsel so that the trial court may correct a scrivener’s error contained in the petitioner’s judgment. See Sinyard v. State, 799 So.2d 1067 (Fla. 2d DCA 2000); see also Fla. R.App. P. 9.141(d). Mays’ judgment incorrectly lists one of his charges as “Count 3” (Criminal Solicitation) instead of “Count 5” (also Criminal Solicitation). Count 3 of the information charged Mays’ codefendant— Hakam Sueliman — not Mays. Mays, however, was charged with Criminal Solicitation under Count 5. We direct the trial court to enter a corrected judgment. The remaining claims raised are denied without comment.

Petition Granted in part; Denied in part; and Remanded.

HAZOURI, CIKLIN and CONNER, JJ., concur.


text:
    Olatunjir SAHEED, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-267.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.

      Kathy Hamilton of the Law Offices of Kathy Hamilton, Coconut Grove, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011).

WARNER, TAYLOR and DAMOORGIAN, JJ., concur.


text:
    Quentrell PHOENIX, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4150.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.
    Quentrell Phoenix, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Knight v. State, 882 So.2d 1081 (Fla. 4th DCA 2004) (citing Williams v. State, 667 So.2d 914 (Fla. 3d DCA 1996)); Gethers v. State, 838 So.2d 504, 508 (Fla.2003); Ishmael v. State, 735 So.2d 509 (Fla. 2d DCA 1999).

WARNER, GROSS and TAYLOR, JJ., concur.


text:
    Kayla Lynne RESSEQUE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2558.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Javier NOA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-204.
    District Court of Appeal of Florida, Third District.
    May 2, 2012.
    Javier Noa, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Affirmed. See Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011); Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


author: ROTHENBERG, J.

text:
    Edwin Fernando IVALDI, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D12-370.
    District Court of Appeal of Florida, Third District.
    May 2, 2012.
    Edwin Fernando Ivaldi, in proper person.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for respondent.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The defendant, Edwin Ivaldi (“Ivaldi”), who was convicted of second degree murder with a firearm, seeks habeas corpus relief claiming his appellate counsel was ineffective because he failed to raise on direct appeal the defective manslaughter by intentional act instruction provided to the jury. Fundamental error occurred and reversal of the second degree murder conviction is mandated because: the instruction given was exactly the same instruction the Florida Supreme Court concluded was defective in State v. Montgomery, 39 So.3d 252 (Fla.2010); manslaughter is just one step removed from Ivaldi’s second degree murder conviction; and the jury was not also given a manslaughter by culpable negligence instruction. See Montgomery, 39 So.3d at 259; Moore v. State, 57 So.3d 240, 245 (Fla. 3d DCA 2011) (distinguishing Montgomery and finding no fundamental error requiring reversal because the jury was also instructed on manslaughter by culpable negligence); see also Daniels v. State, 46 So.3d 630, 630 (Fla. 3d DCA 2010); Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010).

Accordingly, we grant the petition for writ of habeas and remand for a new trial as to the charge of second degree murder with a firearm. We do not disturb Ivaldi’s conviction for possession of a firearm by a convicted felon.

Petition granted; remanded for new trial.


author: CASANUEVA, Judge.

text:
    James H. JOHNSON, III, Appellant, v. Kristina JOHNSON, Appellee.
    No. 2D11-1102.
    District Court of Appeal of Florida, Second District.
    May 9, 2012.

      Carmen R. Gillett of Carmen R. Gillett, PLLC, Sarasota, for Appellant.
    Jeffrey H. Morris of Jeffrey H. Morris, P.A., Sarasota, for Appellee.

      .§§ 61.501-.542, Fla. Stat. (2010).

   CASANUEVA, Judge.

James H. Johnson, III (Col.Johnson), appeals the trial court’s order dismissing his petition for dissolution of marriage after a telephonic hearing in consultation with two courts of a foreign jurisdiction — a New York family court and a New York supreme court — as authorized by section 61.519, Florida Statutes (2010). The petition sought not only to dissolve his twenty-three-year marriage to Kristina Johnson but also to establish custody and visitation rights to the parties’ minor son. We reverse.

I. Background

As of November 2010, Col. Johnson was a long-time member of the United States Army, stationed as base commander in Vicenza, Italy. Mrs. Johnson and their son lived with him on the base. On November 6, 2010, while Col. Johnson was on deployment to Afghanistan, Mrs. Johnson left Italy with their fourteen-year-old son and flew to New York state. On November 10, 2010, she instituted an action for custody of the son unconnected to dissolution in the New York family court (the New York custody action). On December 14, 2010, Col. Johnson filed the underlying dissolution action in Sarasota County (the Florida action) which included a request for a parenting plan. On December 16, 2010, Mrs. Johnson commenced a dissolution of marriage action in the New York supreme court in which she also sought custody of the child (the New York dissolution action).

Along with his petition for dissolution, Col. Johnson complied with the requirements of Florida’s Uniform Child Custody, Jurisdiction, and Enforcement Act (UC-CJEA) by filing the required affidavit. This affidavit indicated that for the preceding five years, the son had lived in Florida except for temporary residences in various cities outside of Florida for those same five years occasioned by the colonel’s military service. Thus Col. Johnson asserted what he termed “vacuum jurisdiction” or default jurisdiction that allowed the Florida court to assert jurisdiction over the son. Mrs. Johnson moved to dismiss the Florida petition for lack of jurisdiction or for forum non conveniens, asserting that Col. Johnson’s allegations of residency were untrue, that she was at all times a citizen of New York, and that the New York family court had jurisdiction over the son by virtue of her November 10, 2010, petition. This record does not indicate that Col. Johnson was served with a summons in either New York action.

Pursuant to section 61.511(2), and section 61.519, Col. Johnson moved for a hearing involving the two New York courts by telephone and an opportunity to be heard and to present evidence and legal argument. The trial court held this hearing on February 17, 2011, in conjunction with the two New York courts by telephone during which the three courts concurred that it was appropriate to allow the New York state courts to exercise jurisdiction over all the proceedings. Col. Johnson had timely requested to also be present telephonically to testify but, when he called in, he was not put through to the hearing. Based upon legal argument regarding jurisdiction over the child, but no presentation of evidence, the trial court dismissed Col. Johnson’s Florida petition for dissolution. Col. Johnson’s counsel objected, stating that the hearing was only pursuant to section 61.519 to determine the child’s home state and substantial compliance with the UCCJEA and was not a hearing on Mrs. Johnson’s motion to dismiss Col. Johnson’s petition. The trial court overruled counsel’s objection.

II. Analysis

We turn first to the “[ijnitial child custody jurisdiction” issue as outlined in section 61.514. We will undertake a separate analysis of the trial court’s dismissal of the colonel’s petition for dissolution of marriage.

A. The UCCJEA Hearing To Determine Jurisdiction Over the Child

Col. Johnson’s petition for dissolution of marriage requested a parenting plan. Mrs. Johnson’s motion to dismiss put the Florida court’s jurisdiction over their child at issue. Thus, the first determination the trial court had to make was whether Florida had jurisdiction over the child pursuant to the UCCJEA. See § 61.508. The child’s “home state” determines jurisdiction over the child. Section 61.503(7) defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” But the record conclusively shows that at the commencement of these proceedings — either Mrs. Johnson’s commencing the New York custody action on November 10, 2010, or Col. Johnson’s commencing the Florida action on December 14, 2010 — their son had lived in neither state for the requisite previous six months. Col. Johnson expeditiously moved the case forward by requesting the trial court to hold a conference with the New York courts. Col. Johnson also invoked his right to appear and give evidence at this hearing pursuant to section 61.511(2).

Once the trial court undertook to communicate by telephone with the two New York courts, the trial court was required to allow Col. Johnson to participate under section 61.511(2) which provides that the court “shall allow the parties to participate in the communication [and] [i]f the parties elect to participate ..., they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.” We construe the words “shall” and “must” in this provision to impose a mandatory duty upon the trial court that must be performed before ruling. See K.I. v. Dep’t of Children & Families, 70 So.3d 749, 753-54 (Fla. 4th DCA 2011) (“Where a court’s decision on whether to allow a sister state to exercise jurisdiction is ‘based, in whole or in part, upon conversations the judge has with the judge of a sister state, then the court must allow the parties to be present during the conversation and set forth specific findings regarding the basis for concluding that jurisdiction in a sister state is appropriate.’ Poliandro v. Springer, 899 So.2d 441, 444 (Fla. 4th DCA 2005) (emphasis in original)[.]”). Section 61.511(2) operates as a due process provision.

The trial court had no facts upon which to base its conclusion that the New York family court was the proper forum for the child custody determination because it heard no sworn testimony, only legal argument. It further failed to set forth specific findings to support its conclusion that New York was the home state. Because this record establishes that these statutory requirements were not properly met, Col. Johnson was denied due process. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (stating “that at a minimum [the words of the Due Process Clause of the Fourteenth Amendment] require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case”); Masiello v. Masiello, 850 So.2d 650 (Fla. 2d DCA 2003) (holding that it was error for the trial court to proceed to a hearing on a particular issue without proper notice to the husband that that particular issue was to be determined at the noticed hearing); Busch v. Busch, 762 So.2d 1010 (Fla. 2d DCA 2000) (holding that upon noticing a hearing on the husband’s motion for emergency relief seeking an injunction to keep the wife out of marital home and where the motion did not mention the issue of child custody, it was error for the trial court to change primary custody of the children to the husband at the hearing). A new UCCJEA hearing to determine the Johnsons’ child’s home state is required wherein Col. Johnson shall be allowed to appear — and Mrs. Johnson too, should she so wish — to give evidence. See K.I., 70 So.3d at 754 (reversing and remanding for a ruling on whether jurisdiction in Florida was proper after due notice to the mother, the father, and the Virginia court and based on factual findings).

We cannot conclude that the violation of Col. Johnson’s due process rights under section 61.511(2) was harmless.

B. The Dismissal of the Petition for Dissolution of Marriage

Col. Johnson petitioned for dissolution and requested a parenting plan. Because of the simultaneous proceedings in New York, he also initiated the telephonic hearing under section 61.519 to determine whether Florida or New York should have jurisdiction over his son. The record in this case established that Mrs. Johnson’s motion to dismiss was never noticed for hearing nor was ever heard. Either the trial court overlooked the fact that the hearing with the two New York courts had not been noticed to also hear Mrs. Johnson’s motion to dismiss the colonel’s dissolution petition, or the trial court misconstrued the reach of the UCCJEA to encompass dissolution of marriage proceedings. Child custody jurisdiction is a separate determination from dissolution of marriage jurisdiction. See Ray v. Pentlicki 375 So.2d 875, 877 (Fla. 2d DCA 1979) (stating that a Uniform Reciprocal Enforcement of Support Act [predecessor statute to the UCCJEA] proceeding was maintainable as a separate action even in the same court where a modification of a prior dissolution action relative to child support was proceeding, although it was desirable to consolidate the two to avoid opposite outcomes). A dissolution action can, and usually does, subsume a child custody determination but the reverse does not hold true. See § 61.520(4) (providing that “[a] court of this state may decline to exercise its jurisdiction under this part if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceedings”).

After the trial court determined at the hearing with the New York courts that New York should have jurisdiction over the parties’ son, the trial court also dismissed Col. Johnson’s petition for dissolution of his marriage without notice to Col. Johnson and an opportunity to be heard on Mrs. Johnson’s motion to dismiss. The trial court’s dismissal further denied Col. Johnson due process in this regard.

[T]he constitutional guarantee of due process requires that each litigant be given a full and fair opportunity to be heard. The right to be heard at an evidentiary hearing includes more than simply being allowed to be present and to speak. Instead, the right to be heard includes the right to introduce evidence at a meaningful time and in a meaningful manner. It also includes the opportunity to cross-examine witnesses and to be heard on questions of law. The violation of a litigant’s due process right to be heard requires reversal.

Vollmer v. Key Dev. Props., Inc., 966 So.2d 1022, 1027 (Fla. 2d DCA 2007) (internal citations and quotation marks omitted).

III. Conclusion

We reverse the order dismissing Col. Johnson’s petition for dissolution of marriage and remand for new proceedings undertaken in compliance with the UCCJEA and due process. It will be necessary for the trial court to allow the parties to present evidence to determine whether the evidence warrants a conclusion that “vacuum jurisdiction” over the minor child rests with the Florida court and whether the New York court was in substantial compliance with the UCCJEA at the time Mrs. Johnson commenced proceedings there. We note that, as time has passed, their son is likely well established in a high school and with a social life in the state of New York. This is a reality that the trial court will need to consider on remand as well as the similar circumstances outlined in Hindle v. Fuith, 33 So.3d 782 (Fla. 5th DCA 2010).

Reversed and remanded for further proceedings in accordance with this opinion.

KELLY and MORRIS, JJ., Concur.

      .Throughout their marriage, the couple had always lived in military housing, but Col. Johnson declared Florida as his domicile, using his parents' address in Sarasota County and filing his federal income taxes as a Florida resident.

      .Mrs. Johnson filed her petition as a proceeding under part 3 (custody) of article 6 (Permanent Termination of Parental Rights, Adoption, Guardianship And Custody) of New York's Family Court Act. N.Y. Family Law §§ 651-56 (McKinney 2010).

      . Col. Johnson later amended the jurisdictional language in his petition for dissolution of marriage to add: "Alternatively, because of the military assignment of Colonel Johnson to the United States Army base in Vicenza, Italy, since July of 2008, Italy should be considered the state of habitual residence of the minor child." Col. Johnson then instituted an interlocutory federal proceeding under the "Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct. [19]80 (the "Hague Convention”) and its implementing statutes, the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et. seq. (ICARA).” Pursuant to the federal proceeding, Col. Johnson sought to have his son returned to him at the base in Vicenza, Italy, because he alleged Italy to be his son’s habitual residence. During the pendency of these proceedings, the Florida and New York actions were stayed until the federal proceeding was concluded by a finding that the son’s habitual residence was not in Italy. See Johnson v. Johnson, No. 11 Civ. 37(RMB), 2011 WL 569876 at *6 (S.D.N.Y. Feb. 10, 2011). The federal district court then dismissed Col. Johnson's petition. Then the actions in Florida and New York resumed.

      . However, subsequent to the notice of appeal that Col. Johnson filed in this case, the parties have been negotiating a settlement agreement in the New York actions. We are unaware of the final disposition of the New York proceedings as of the writing of this opinion.

      . Section 61.511, Fla. Stat. (2010), provides: Communication between courts.—
      (1) A court of this state may communicate with a court in another state concerning a proceeding arising under this part.
      (2) The court shall allow the parties to participate in the communication. If the parties elect to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.
      (3) Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.
      (4) Except as otherwise provided in subsection (3), a record must be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record.
      (5) For purposes of this section, the term "record” means a form of information, including, but not limited to, an electronic recording or transcription by a court reporter which creates a verbatim memoriali-zation of any communication between two or more individuals or entities.

      .Section 61.519(2) provides:
      Simultaneous proceedings.—
      (2) Except as otherwise provided in s.61.517 [temporary emergency jurisdiction], a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to s.61.522. If the court determines that a child custody proceeding was previously commenced in a court in another state having jurisdiction substantially in accordance with this part, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this part does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.

      . Section 61.508 provides:
      Priority. — If a question of existence or exercise of jurisdiction under this part is raised in a child custody proceeding, the question, upon request of a party, must be given priority on the calendar and handled expeditiously.

      . Aside from the due process violation requiring reversal, we note, based merely on allegations of counsel, that the Florida and New York courts may have reached the correct conclusion as to which had jurisdiction over the parties’ son. In Hindle v. Fuith, 33 So.3d 782 (Fla. 5th DCA 2010), the appellate court reviewed a final judgment of paternity in which the trial court had determined, inter alia, that Florida courts had jurisdiction over the parties’ minor daughter. The trial court took jurisdiction over the child there because it had found that no other state had jurisdiction; the mother and the child had lived in several other states for the six months prior to their arrival in Florida where the mother filed the action to establish paternity, custody, and child support. Id. at 785. The Fifth District affirmed that part of the final judgment finding that jurisdiction over the child was properly in the Florida court. Id. at 787.

      . The parties' suggestion that they are negotiating a settlement raises a fervent hope in this court that they will reach an accord so as to obviate the need for the trial court to hold further proceedings that are required to protect Col. Johnson’s due process rights.