author: SUAREZ, J.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Osvaldo MAYTIN, Appellee.
    No. 3D10-693.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Hinshaw & Culbertson and Maureen G. Pearcy and Paul R. Wallace, Miami, for appellant.
    Amado Alan Alvarez, for appellee.
    Before SUAREZ, CORTIÑAS and LAGOA, JJ.
   SUAREZ, J.

Citizens Property Insurance Corporation (“Citizens”) appeals a non-final order granting Osvaldo Maytin’s motion to compel appraisal of a claim under his homeowners’ insurance policy with Citizens. After Maytin filed suit for breach of contract against Citizens, he moved to compel appraisal. Citizens answered the complaint and asserted that Maytin failed to comply with post-loss conditions and prevented Citizens from fully inspecting his property, thereby, precluding the invocation of the appraisal clause under the insurance policy.

On the authority of Citizens Property Insurance Corp. v. Galeria Villas Condominium Association, 48 So.3d 188 (Fla. 3d DCA 2010), we reverse the trial court’s grant of the motion to compel appraisal and remand for an evidentiary hearing to determine if Maytin complied with the post-loss conditions under the policy. See First Home Ins. Co. v. Fleurimond, 36 So.3d 172 (Fla. 3d DCA 2010); see also Sunshine State Ins. Co. v. Corridori, 28 So.3d 129, 131 (Fla. 4th DCA 2010) (“[W]here the ‘insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented’ regarding the necessity or sufficiency of compliance.... Whether appellees’ compliance with the policy terms was necessary or sufficient is a dispute of fact.”) (citation omitted); U.S. Fid. & Guar. Co. v. Romay, 744 So.2d 467 (Fla. 3d DCA 1999).

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William C. SMITH, Appellant, v. Greg RISKA, Warden, and Walter A. McNeil, Secretary, Florida Department of Corrections, Appellees.
    No. 1D10-2842.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2010.
    William C. Smith, pro se, Appellant.
    Bill McCollum, Attorney General, and Eric Neiberger, Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

In accordance with appellees’ proper concession of error and motion to remand, the order of dismissal being appealed herein is reversed. The matter is remanded to the lower tribunal with directions to transfer the petition for writ of mandamus to the Circuit Court for the Second Judicial Circuit, in and for Leon County, for further proceedings. See Bush v. State, 945 So.2d 1207 (Fla.2006).

REVERSED and REMANDED.

BENTON, C.J., VAN NORTWICK and ROBERTS, JJ., concur.


text:
    Julio Cesar PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2855.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 2011.
    Julio Cesar Perez, Miami, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Julio Cesar Perez (“the defendant”) appeals from the denial of a motion for additional jail credit, which we treat as the denial of a motion under Florida Rule of Criminal Procedure 3.800. We affirm in part, and reverse in part.

The defendant asserts that the trial court erred in calculating the credit for time served (“CTS”) when he was sentenced. In connection with his plea, the defendant agreed to CTS from February 5, 2009, to November 10, 2009. The sentence provides for 246 days of CTS. The defendant contends that he should have been awarded 309 days. The proper calculation is 277 days. Thus, the trial court erred in calculating the defendant’s CTS.

The defendant also contends that the trial court erred in not awarding CTS for the time served in 2008. The CTS ac-knowledgement form the defendant signed clearly shows that he would not be awarded CTS for 2008. Therefore, the trial court properly excluded the 2008 CTS.

Accordingly, we affirm the trial court’s denial of CTS for 2008, but reverse and remand for correction of the sentence to 277 days CTS.

Affirmed in part, reversed in part, and remanded for correction of sentence.


author: ORFINGER, J.

text:
    STATE of Florida, Appellant, v. Daniel L. MURRAY and James L. Brink, Appellee.
    No. 5D10-1376.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    J. Brian Page, of DeCarlis, Sawyer & Alba, PL, Gainesville, for Appellee, Daniel L. Murray.
    No appearance for Appellee, James L. Brink.
   ORFINGER, J.

While allegedly street racing, Daniel Murray and James Brink were involved in a crash that killed another motorist. As a result, the State charged both men as principals to vehicular homicide. The State now appeals the trial court’s order suppressing the test results obtained from the blood drawn from both men. Because Murray and Brink voluntarily consented to the blood draw, we reverse.

A motion to suppress involves mixed questions of law and fact. See, e.g., Seibert v. State, 923 So.2d 460, 468 (Fla.2006); Dewberry v. State, 905 So.2d 963, 965 (Fla. 5th DCA 2005). In reviewing the trial court’s ruling on such a motion, an appellate court must determine whether competent, substantial evidence supports the lower court’s factual findings, but the trial court’s application of the law to the facts is reviewed de novo. Connor v. State, 803 So.2d 598, 606-08 (Fla.2001).

The facts related to the blood draw are largely undisputed. After the crash, Murray and Brink remained at the scene. The investigating state troopers testified that neither man appeared to be impaired nor smelled of alcohol. Consequently, the troopers concluded that they had no probable cause to arrest either man for driving under the influence or to request a breath, urine or blood sample from them. Nonetheless, they asked both men to voluntarily provide blood samples. The troopers advised the men that the blood would be tested for the presence of alcohol and drugs and that the potential for criminal charges arising from the crash existed. No implied consent warnings were given. Both men signed written consent forms, acknowledging that they had given permission for the blood draw.

The trial court denied Murray and Brink’s first joint motion to suppress, finding that they had voluntarily consented to the blood draw. However, the court granted Murray and Brink’s second joint motion to suppress. Relying on Chu v. State, 521 So.2d 330 (Fla. 4th DCA 1988), the court concluded that despite Murray’s and Brink’s voluntary consent to the blood draws, suppression was required because they should have been informed that the implied consent law requires submission only to a breath or urine test, and that a blood test is offered only as an alternative. On appeal, the State does not dispute the trial court’s factual findings; rather, it contends that Chu is either distinguishable or wrongly decided. Specifically, the State argues that because the implied consent laws were not implicated in this case, the troopers were not required to inform Murray and Brink about the provisions of implied consent. We agree.

In Chu, the defendant was involved in a one-car traffic accident in which her car overturned. Emergency medical personnel were the first to arrive at the scene, but Chu was uninjured. The investigating trooper testified that Chu was cooperative, but had a strong odor of alcohol on her breath, and, at times, appeared to be incoherent. As a result, the trooper asked her to submit to a blood test at the scene. The implied consent warning was read to her and the trooper obtained written consent from Chu for the blood test. The trooper testified that he opted for the blood test instead of a breathalyzer test because the paramedics were already there and he thought it would be the easiest and most accurate way to test her. There was no question that Chu was not going to be transported to the hospital.

After the test results were received, the State charged Chu with driving under the influence of alcohol. The trial court denied Chu’s motion to suppress the blood alcohol test, after which she entered a no contest plea, reserving for review the trial court’s ruling. The fourth district affirmed, but held:

We think it is clear that the legislature intended and provided for the use of breath and urine tests, except under the circumstances described in sections 316.1932(l)(c) and 316.1933(1) and that the legislature did not intend to authorize a law enforcement officer to request a blood test when the conditions described in these statutes do not exist. However, we also recognize that circumstances may occur where it is more convenient for a person to submit to a blood test rather than a breath or urine test. Under such circumstances we see no reason to exclude a voluntary blood test provided the person has been fully informed that the implied consent law requires submission only to a breath or urine test and that the blood test is offered as an alternative ....

Id. at 332 (emphasis added).

Chu can be easily distinguished, although its holding likely sweeps too broadly. Unlike Chu, this case does not involve implied consent. In Chu, the trooper had probable cause to believe that she had been driving while under the influence of alcohol. No such evidence existed in this case. Hence, the limitations on blood testing found in section 316.1932(1)(c), Florida Statutes (2007), and section 316.1933(1)(a), Florida Statutes (2007), are not implicated because this test was done outside the scope of the implied consent law.

The implied consent statute and its exclusionary rule “apply only when blood is being taken from a person based on probable cause ... as a result of a DUI offense specified in the statutes.” Robertson v. State, 604 So.2d 783, 790 n. 7 (Fla.1992). A person only receives the protection of the implied consent law if the testing provisions of that law are being utilized by the state. “If the defendant has con sented to the test ... then the blood test falls wholly outside the scope of the implied consent law.” Id. at 790.

The implied consent law is not the exclusive manner by which blood tests may be admitted into evidence. As the United States Supreme Court held in Schmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), if a blood test “was performed in a reasonable manner,” the results should be admissible under traditional common law rules. If Chu is read to require a contrary result, we acknowledge our direct and express conflict with it.

Because both Murray and Brink voluntarily consented to the blood draw, the suppression order is reversed.

REVERSED and REMANDED.

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

      . The implied consent law, section 316.1932(1)(a)1.a.f Florida Statutes (2007), provides that a person who accepts the privilege of operating a motor vehicle in this state is deemed to consent to testing to determine the "alcoholic content of his or her blood or breath if the person is lawfully arrested....” Further, section 316.1932(1 )(c), Florida Statutes (2007), authorizes blood withdrawals where an officer has probable cause to believe that the driver was impaired and the driver appears for treatment at a medical facility and the administration of a breath or urine test is impractical or impossible. Likewise, section 316.1933(l)(a), Florida Statutes (2007), expressly authorizes blood tests where an officer has probable cause to believe an impaired driver has caused death or serious injury to a human being. Here, Murray and Brink were not under lawful arrest and did not seek medical treatment, and the troopers did not have probable cause to believe that they were impaired. Consequently, the implied consent law was clearly not implicated.

      . While Robertson involved section 316.1933(1)(a), the provisions of section 316.1932(l)(a)l.a. and (c), not at issue in Robertson, would also trigger implied consent.

      . If the provisions of the implied consent law are not utilized by the state, then the state is not entitled to rely on any of the presumptions created by the implied consent law and the admissibility of the results is dependent on the three-prong predicate described in State v. Bender, 382 So.2d 697 (Fla.1980).


author: KHOUZAM, Judge.

text:
    Patricia Yglesias TILCHIN, Appellant/Cross-Appellee, v. Louis Meyers TILCHIN, Appellee/Cross-Appellant.
    No. 2D09-1560.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2011.

      David A. Maney and Paul S. Maney of Maney, Damsker, Jones & Kuhlman, P.A., Tampa, for Appellant/Cross-Appellee.
    Cynthia L. Greene of Greene Smith and Associates, P.A., Miami, and S. David Anton of Anton Legal Group, Tampa, for Appellee/Cross-Appellant.
   KHOUZAM, Judge.

Patricia Yglesias Tilchin, the Wife, appeals a final judgment of dissolution of marriage. She challenges the imputation of income to her as well as the absence of bridge-the-gap alimony. Louis Meyers Tilchin, the Husband, cross-appeals. He challenges the equitable distribution plan as well as the monthly amount of permanent alimony awarded to the Wife. We affirm, without discussion, the trial court’s rulings with respect to imputation of income, bridge-the-gap alimony, and permanent alimony. We reverse the equitable distribution portion of the final judgment because the trial court’s stated reason for the disproportionate distribution does not justify the unequal distribution plan.

The final judgment reflected that the parties’ marital estate had a gross value of $3,429,198, of which $1,947,536 was allocated to the Husband and $1,481,622 was allocated to the Wife. However, after certain liabilities were allocated and deducted, the marital estate had a net value of $2,169,535, of which $698,068 (32%) was allocated to the Husband and $1,471,467 (68%) was allocated to the Wife. For the most part, the gross disparity in the distribution plan arose from the handling of all matters relating to the parties’ marital home and a second home.

Section 61.075(1), Florida Statutes (2008), provides that the distribution of assets and liabilities should be equal unless there is a justification for an unequal distribution, and section 61.075(3) requires the trial court to make findings addressing the factors in section 61.075(l)(a)-(j). In justifying the unequal distribution, the trial court relied exclusively upon the statutory factor that authorizes an unequal distribution if necessary to do equity and justice between the parties. See § 61.075(l)(j). The trial court reasoned:

Regarding the marital home, the Court finds that the Husband paid off the balance of the mortgage in order to relieve himself of the potential obligation to pay $4,000.00 each month toward the Wife’s need for alimony. This was inequitable, and certainly supports unequal distribution of the asset. The Court initially thought this might be a cause for “lump sum alimony,” however in order to avoid any tax burden upon the Wife (or further inequitable benefit to the Husband) the Court instead awards the home to the Wife with no offset to the Husband. In short, there will be no equalizing payment. Additionally, because of the Husband’s unilateral decision to pay this bill, he also is going to be assigned the $350,000.00 liability (again with no offset).

The trial court abused its discretion in granting to the Wife a grossly disparate percentage of the marital assets simply because the Husband paid off the mortgage on the parties’ primary marital home during the pendency of the case. Based on this record, we recognize that the distribution of the marital home was a critical element of the equitable distribution plan and the alimony award, and that error arising from this distribution cannot be corrected in isolation.

Accordingly, we reverse the equitable distribution plan and we remand for further proceedings. If the trial court again enters an unequal distribution, it must make adequate and consistent findings of fact justifying the unequal distribution. In the event that the trial court is not able to articulate a valid reason for an unequal distribution, on remand the court is authorized to fashion a new equitable distribution plan and alimony award to achieve an appropriate result articulating supporting findings of fact based on the evidence presented at and in conjunction with the final hearing.

Main appeal affirmed and cross-appeal affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.

KELLY and BLACK, JJ., Concur.


author: DAVIS, Judge.

text:
    Rodney G. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1201.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2011.

      Rodney G. Williams, pro se.
   DAVIS, Judge.

Rodney G. Williams challenges the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm that portion of the postconviction court’s order denying Williams’ claim for prison credit against the sentence imposed upon revocation of probation. However, we reverse the court’s denial of his claim for jail credit against that sentence, and we remand with directions to the postcon-viction court to consider the claim.

Williams was convicted after jury trial of count one, sale of a controlled substance within 1000 feet of a place of worship, and count two, possession of a controlled substance with intent to sell within 1000 feet of a place of worship. On April 16, 2002, he was sentenced to six years’ prison on count one followed by ten years’ probation on count two. On May 5, 2008, Williams admitted to violating the probation imposed on count two, and the trial court revoked his probation and sentenced him to five years’ prison with all prior jail credit.

In his rule 3.800(a) motion, Williams alleged that he was only awarded a total of twenty-eight days’ jail credit against the sentence imposed upon revocation of probation in count two and that he is entitled to both additional jail credit and credit for the time he served in prison on count one. He further maintained that it was part of his “plea agreement” that he receive the prison credit in exchange for admitting the violations of his probation. Finally, Williams alleged that his claims were determinable from the face of the trial court record and the sheriffs jail log.

Under the Criminal Punishment Code, Williams is not entitled to have credit for the time served in prison on count one applied to the sentence upon revocation of probation on count two. See Moore v. State, 882 So.2d 977, 985 (Fla.2004) (“[Djefendants who violate a consecutive term of probation are not entitled to credit for prison time served on a separate offense.”). Furthermore, there is no separate postconviction procedure to enforce a plea agreement, and Williams would have to seek relief through Florida Rule of Criminal Procedure 3.850. See Sweet v. State, 987 So.2d 747, 747 (Fla. 2d DCA 2008). However, the transcript of Williams’ violation of probation hearing refutes his claim that an agreement existed by which he would receive prison credit upon admitting the violations of his supervision. We therefore decline to provide Williams with additional time in which to file a rule 3.850 motion despite the fact that the rule’s two-year filing time limit expired during the pendency of this appeal.

The postconviction court’s order denying Williams’ rule 3.800(a) motion failed to address Williams’ allegation that he also was entitled to jail credit for the following periods: from December 21, 2000, when he was first arrested, until December 22, 2000, when he was released on bond; from July 31, 2001, when he was arrested after failing to appear, until April 16, 2002, when he was sentenced to prison on count one to be followed by probation on count two; from August 1, 2007, when he was arrested on the violation of probation warrant on count two, until September 7, 2007, when he was released following the dismissal of the affidavit of violation; and from April 8, 2008, when he was arrested on the violation warrant, until his May 5, 2008, sentencing. In his postcon-viction motion, Williams clearly claimed that he was entitled to more than the twenty-eight days’ jail credit that he allegedly received. Because the postconviction court did not address this claim in its order denying the motion, we reverse and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and LaROSE, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Rashad S. LEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2400.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2011.
    Rashad S. Lee, pro se.
   NORTHCUTT, Judge.

Rashad S. Lee appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, raising two claims for relief. We affirm without comment as to ground two but reverse and remand as to ground one.

In 2008, Lee pleaded nolo contendere to possession of cocaine with intent to sell within one thousand feet of a place of worship and was sentenced to five years in prison. He also pleaded guilty to possession of paraphernalia and received time served. Lee argues that his counsel was ineffective for allowing him to enter into a plea agreement without advising him that the evidence was insufficient to sustain the conviction in regard to his intent to sell. He maintains that the mere fact that he possessed four baggies of cocaine weighing a total of approximately 1.5 grams, as recited in the police report, could not establish his intent to sell without additional evidence. Lee avers that but for counsel’s deficient performance, he would have gone to trial and would have been found not guilty of possession with intent to sell.

In denying the claim, the post-conviction court found that possession of multiple baggies of cocaine is consistent with street level sales. The court relied upon the probable cause affidavit and attached a copy of the arrest report. However, the Fourth District, examining similar facts in a probable cause affidavit, held that they were insufficient to support a conviction for possession with intent to sell in Valentin v. State, 974 So.2d 629, 630 (Fla. 4th DCA 2008). The Fourth District held that “[discovering individually packaged narcotics does not automatically establish intent to sell.” Id. The packaging or quantity of drugs found in the defendant’s possession “may be circumstantial evidence of an intent to sell it, but only if [they are] inconsistent with personal use.” Jackson v. State, 818 So.2d 539, 541 (Fla. 2d DCA 2002). In this case, although the arresting officer reported that the cocaine was “carried in a manner consistent with street level sales,” nothing else in the report indicates that the cocaine was intended for sale and not for Lee’s personal use.

To prevail on a claim of ineffective assistance, Lee must allege sufficient facts establishing both deficient performance of counsel and prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of a plea for failure to advise of a potential defense, the prejudice prong of Strickland is met by “demonstrating a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Grosvenor v. State, 874 So.2d 1176, 1181 (Fla.2004). “The merits of any defense ... is relevant to the credibility of the defendant’s assertion that he would have insisted on going to trial.” Id. at 1181; see also Munroe v. State, 28 So.3d 973, 976 (Fla. 2d DCA 2010) (“Munroe’s claim of prejudice — that he would have proceeded to trial — is credible if he can demonstrate that the defense was viable.”).

The limited record attached to the order denying relief does not refute Lee’s allegation that he would not have pleaded guilty had his counsel advised him of this potential defense. Therefore, we reverse and remand for the postconviction court to either attach portions of the record conclusively refuting ground one or conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

WHATLEY and LAROSE, JJ., Concur.


text:
    Raquel CARVALHO, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D10-299.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 2011.

      Raquel Carvalho, Holly Hill, pro se.
    Louis A. Gutierrez, Tallahassee, for Ap-pellee.
   PER CURIAM.

Raquel Carvalho appeals a final order of the Unemployment Appeals Commission (UAC) affirming the appeals referee’s ruling that she was disqualified from receiving unemployment benefits. The UAC adopted the referee’s findings that Carval-ho was discharged for misconduct connected with work. We affirm.

Carvalho argues on appeal that her failure to perform her duties appropriately was the result of mental illness, not intentional misconduct. We cannot review the evidentiary basis of the referee’s ruling because Carvalho neither provided a transcript nor asked the UAC to provide the court with a transcript of the proceedings below. Carvalho has the burden to demonstrate error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (holding that without record of trial proceedings, court cannot properly resolve underlying factual issues so as to conclude that trial court’s judgment is not supported by evidence or by alternative theory). Because there is no transcript, we must assume that the referee’s finding of work-related misconduct is supported by the evidence. See Roach v. Unemployment Appeals Comm’n, 873 So.2d 617 (Fla. 5th DCA 2004).

AFFIRMED.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.


author: EVANDER, J.

text:
    Robert Roy SPEER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1080.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 2011.

      James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Speer appeals from orders establishing restitution amounts entered approximately six months after his sentencing hearing. Contrary to his assertions, no double jeopardy violation occurred.

Speer entered a guilty plea to the charge of fraudulent use of personal identification information and contracting without a license or certificate. The plea agreement called for Speer to be placed on probation with a special condition of making restitution to the victims of his crimes. During the plea hearing, Speer was advised that the State would be seeking restitution in the amount of $4,567 for one of the victims (Precision Aluminum), as well as restitution for Speer’s other victims. The trial court specifically advised Speer that it would be entering one restitution order that day, but reserving jurisdiction to determine the amount of restitution owed to the other victims. Speer acknowledged his understanding that the full amount of his restitution obligation would not be determined that day. The trial court accepted Speer’s plea and sentenced him in accordance with the plea agreement. Speer’s probation order included the following special conditions:

Court Retains Jurisdiction for Restitution Purposes.
Defendant must make restitution to vie-tim(s).

The trial court also entered an order requiring Speer to pay $4,567, as restitution, to Precision Aluminum.

Approximately six months later, over Speer’s objection, the trial court held a hearing to determine the restitution amounts to be paid to Speer’s three other victims. At the conclusion of the hearing, separate restitution orders were entered as to each of the victims.

An order of restitution may be imposed at the time of sentencing or within sixty days thereafter. State v. Sanderson, 625 So.2d 471, 472-73 (Fla.1993). If an order of restitution has been entered in a timely manner, a court can determine the amount of restitution beyond the sixty-day period. Sanderson, 625 So.2d at 473; see also L.O. v. State, 718 So.2d 155 (Fla.1998); Kittelson v. State, 980 So.2d 533 (Fla. 5th DCA 2008). However, once the court has entered a final order setting the full amount of restitution, jeopardy attaches, thereby precluding the court from increasing that amount. Kittelson, 980 So.2d at 535; see also Ely v. State, 855 So.2d 90, 91 (Fla. 2d DCA 2003) (where court entered order awarding no restitution, order was final even if based on erroneous information and could not be subsequently modified); Strickland v. State, 681 So.2d 929, 930 (Fla. 3d DCA 1996) (where trial court ordered defendant to pay victim’s medical bills as restitution and determined amount “that everyone took ... as the final amount,” amount could not subsequently be increased).

Speer argues that the later orders constituted an improper increase of his sentence in violation of the constitutional protection against double jeopardy. We reject this argument because the trial court had not previously entered a final order that established (or purported to establish) Speer’s full restitution obligation. Rather, the trial court had ordered Speer to make full restitution to his victims, had made a partial detei'mination of Speer’s restitution obligation, and had reserved jurisdiction to determine the remainder of that obligation. Thus, the trial court did not increase Speer’s sentence. It simply made complete the incomplete sentence that had been imposed at the earlier hearing.

AFFIRMED.

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

      . § 817.568(2), Fla. Stat. (2007).

      . § 489.127(1)(f), Fla. Stat. (2007).


text:
    William T. McLEOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3372.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 2011.

      William T. Mcleod, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

William T. McLeod seeks review of the trial court’s summary denial of his motion seeking additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The issue that we address is whether a defendant can, as part of a plea agreement, waive jail credit, which results in the defendant serving a term of imprisonment that exceeds the statutory maximum for the offense that he committed. We conclude that such a sentence is illegal and reverse the order under review.

McLeod’s original sentence for a third-degree felony included a period of probation. The maximum sentence allowed by law for a third-degree felony is a term of imprisonment not to exceed five years. See § 775.082(3)(d), Fla. Stat. (2007). Following his second violation of probation, McLeod entered into a plea agreement with the State wherein he admitted his most recent violation in exchange for a five-year prison sentence, suspended upon the successful completion of five years of drug offender probation. Included in the written plea agreement was the following language: “CTS from arrest on any future V.O.P.” The trial court accepted the plea agreement and the agreed-upon sentence was imposed.

Not surprisingly, McLeod violated his probation yet again, and the court reimposed the previously suspended five-year prison term. The trial court awarded McLeod only 92 days of jail credit, apparently the amount of time that he spent in jail from the date of his most recent arrest to the date that his suspended sentence was reimposed. In his motion for additional jail credit, McLeod claims entitlement to a total of 318 days spent in the county jail awaiting the disposition of his various probation violations, and an additional 177 days for the time that he spent in a residential drug treatment facility. The trial court concluded that the language “CTS from arrest on any future V.O.P.” amounted to a waiver of all jail credit except for the 92 days that it awarded.

“[Ajlthough a defendant can waive jail credit as a condition of a plea, the waiver must be knowing and affirmatively appear as a condition of the plea agreement.” Canada v. State, 1 So.3d 338, 339 (Fla. 5th DCA 2009) (quoting Hill v. State, 985 So.2d 1216, 1217 (Fla. 5th DCA 2008)). We, however, do not view the statement “CTS from arrest on any future V.O.P.” as conclusive evidence that McLeod knowingly and voluntarily waived jail credit to which he would otherwise be legally entitled. Davis v. State, 968 So.2d 1051, 1052 (Fla. 5th DCA 2007). Consequently, reversal is required to allow the trial court to demonstrate that McLeod knowingly and voluntarily waived any jail credit by providing a copy of the plea and sentencing transcript.

The issue of waiver notwithstanding, it appears that McLeod’s sentence exceeds the five-year maximum period set forth by law for the felony that he committed, and thus, constitutes an illegal sentence. See Henderson v. State, 720 So.2d 1121, 1122 (Fla. 4th DCA 1998). Even with a defendant’s agreement, a court is without jurisdiction to impose a sentence in excess of the statutory maximum. See Collins v. State, 697 So.2d 1305, 1307-08 (Fla. 4th DCA 1997). If McLeod served 318 days in jail prior to his various sentencing hearings (an allegation that the State does not contest), then his five-year prison sentence allowing only 92 days of jail credit will cause him to serve, in the aggregate, more than the five-year statutory maximum.

For these reasons, we reverse the order denying McLeod’s motion for additional jail credit and conclude that a defendant may not, as part of a plea agreement, waive jail credit, which would result in the defendant serving a term of imprisonment that exceeds the statutory maximum for the offense committed.

REVERSED AND REMANDED.

TORPY and JACOBUS, JJ„ concur.

      . The record fails to disclose the sentence that McLeod originally received.

      . “CTS” means credit for time served. "V.O.P." means violation of probation.

      . We reach this conclusion by beginning with McLeod’s five-year sentence, adding the 318 days served to it, and subtracting the 92 days of credit awarded. The net time of the sentence is five years and 226 days without regard to gain time.

      . If, as McLeod contends, he is entitled to additional credit for the time that he spent in a residential drug treatment facility, the illegal nature of his sentence is magnified. However, McLeod would only be entitled to this additional credit if the drug treatment facility is the functional equivalent of incarceration. See Carrier v. State, 925 So.2d 386 (Fla. 4th DCA 2006); Nowell v. State, 742 So.2d 345, 346 (Fla. 5th DCA 1999) (explaining that test is whether stay in facility constitutes coercive deprivation of liberty). Such a determination generally can be made only after an evidentia-ry hearing. See Columbro v. State, 777 So.2d 1208, 1209 (Fla. 5th DCA 2001). Because rule 3.800 is unsuited for claims requiring a factual determination, this issue must be resolved, if at all, in a timely motion filed under Florida Rule Criminal Procedure 3.850.


text:
    Freddie LAWRENCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4880.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Freddie Lawrence, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Munn v. Florida Parole Commn., 807 So.2d 733 (Fla. 1st DCA 2002).

WOLF, KAHN, and THOMAS, JJ., concur.


text:
    Emory E. CARTER, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-5202.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Emory E. Carter, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Clark v. State, 954 So.2d 685 (Fla. 1st DCA 2007).

WOLF, KAHN, and THOMAS, JJ., concur.


text:
    Henry LAMB, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5264.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Henry Lamb, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Munn v. Florida Parole Commn., 807 So.2d 733 (Fla. 1st DCA 2002).

WOLF, KAHN, and THOMAS, JJ., concur.


text:
    Shaun C. PHILLIPS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6215.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Shaun C. Phillips, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, HAWKES, and WETHERELL, JJ., concur.


text:
    Patrick Jamane BRIGGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6243.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Patrick Jamane Briggs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, HAWKES, and WETHERELL, JJ., concur.


text:
    Thomas W. MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6299.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Thomas W. Martin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, HAWKES, and WETHERELL, JJ., concur.


text:
    Marvin ALLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6426.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Marvin Allen, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, HAWKES, and WETHERELL, JJ., concur.


text:
    Marion E. WATTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6482.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Marion E. Watts, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, HAWKES, and WETHERELL, JJ., concur.


text:
    Reginald M. GREENWICH, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-430.
    District Court of Appeal of Florida, Fifth District.
    Jan. 11, 2011.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   ON CONCESSION OF ERROR

PER CURIAM.

Reginald M. Greenwich appeals his judgment and sentence. He argues that the judgment fails to accurately reflect his convictions, and that the trial court erred by increasing his sentence after he had begun serving it. We agree, and remand with directions to correct the judgment and to impose the original sentence.

Greenwich was charged with several felonies. Following a jury trial, he was convicted of the misdemeanor offenses of domestic violence battery, trespass in a structure, battery, and assault. At the sentencing hearing held on December 16, 2009, Greenwich was sentenced to time served for the trespass and assault convictions and to concurrent terms of 364 days in the county jail on each of the battery charges. However, the written judgment and sentence fails to reflect either the trespass or assault convictions.

For reasons not apparent from the record, a second sentencing hearing was conducted on January 22, 2010. At the conclusion of that hearing and over Greenwich’s objection, the trial court re-sentenced him to consecutive terms of one year in the county jail on each of the battery charges, followed by two six-month terms of probation to be served consecutively to the jail sentences for the two remaining misdemeanors. The net result of the resentencing was a sentence enhanced from one year in the county jail to two years in the county jail followed by a year of probation.

On appeal, Greenwich contends, and the State properly concedes, two errors in the sentencing process. First, the original judgment erroneously indicated that the court had set aside the trespass and assault convictions. In fact, Greenwich was sentenced to time served on both those counts. On remand, the judgment should be corrected accordingly. Second, the court erred when it resentenced Greenwich to a greater term, as he had begun serving his sentence and the imposition of a harsher sentence violates double jeopardy principles. See Engram v. State, 853 So.2d 1123, 1124 (Fla. 5th DCA 2003).

For these reasons, on remand, the trial court shall correct its judgment to reflect that Greenwich received time served for the trespass and assault convictions and reimpose the sentences orally pronounced for the remaining two charges.

REVERSED and REMANDED.

ORFINGER, TORPY and JACOBUS, JJ., concur.

      . The plea and sentence order stated: "The Court set aside the two lessers of the verdict form. The higher lesser of the verdict form will stand.” We are not sure what this means.


text:
    The STATE of Florida, Appellant, v. Dudley COHN, Appellee.
    No. 3D09-822.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 2011.

      Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellant.
    Dudley Cohn, in proper person.
    Before GERSTEN, WELLS, and CORTINAS, JJ.
   PER CURIAM.

The State of Florida appeals from the denial of a request for restitution. We reverse.

At trial, the jury convicted Dudley Cohn (“the defendant”) of organized fraud. At sentencing, the State requested that the defendant be ordered to pay full restitution to his victims. The trial court held an evidentiary hearing where two of the victims testified.

After hearing from the defendant and the victims, the trial court denied the State’s request for restitution. The trial court gave two reasons for its ruling, that: (1) the victims had or could obtain damages in civil suits; and (2) the victims’ losses resulted from gambling in speculative real estate investments.

On appeal, the State asserts that the trial court abused its discretion in denying restitution because neither of the reasons given is legally sufficient. The defendant contends the trial court properly denied restitution. We agree with the State.

Absent clear and compelling reasons not to do so, a trial court must order a defendant to make restitution to his or her victims for damages or loss caused by the defendant’s offense. § 775.089(l)(a), Fla. Stat. (2009). The statute further provides that a restitution order will not bar any subsequent civil recovery, although the amount of restitution shall be set off against such recovery. § 775.089(8). Thus, this Court has held that “[i]t is not permissible to deny restitution because the victim intends to file, or has actually filed, a civil lawsuit for the same loss.” State v. Hitchmon, 678 So.2d 460, 462 (Fla. 3d DCA 1996).

Here, the trial court abused its discretion in denying restitution based on the victims’ ability to file civil actions to recover their losses. Further, the jury verdict finding the defendant guilty of organized fraud determined what caused the victims’ loss. Therefore, the trial court improperly considered the speculative nature of the land transactions in denying restitution.

Accordingly, we reverse the denial of restitution, and remand for further proceedings to determine the amount of restitution in accordance with the statute. § 775.089(6)(b) (“The criminal court ... shall consider the financial resources of the defendant, the present and potential future financial needs and earning ability of the defendant and his or her dependents, and such other factors which it deems appropriate.”).

Reversed and remanded for further proceedings.


text:
    IZAAK WALTON INVESTORS, LLC and Sherwood Partners, LLC., Appellant, v. Ralph E. OESTERLE, II, and Clara R. Oesterle, Appellee.
    No. 1D10-112.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2011.

      Thomas C. Jennings, III of Repka & Jennings, P.A., Clearwater, for Appellant.
    Clay C. Schuett of Clay C. Schuett, P.A., Clearwater, for Appellee.
   PER CURIAM.

Appellants, Izaak Walton Investors, LLC (IWI) and Sherwood Partners, LLC (Sherwood), challenge a judgment entered after a bench trial they claim was conducted in the face of Sherwood’s demand for trial by jury. We reverse, finding the trial court erred by refusing to conduct a jury trial as requested.

This case involves a May 16, 2005, commercial purchase agreement between Sherwood and appellees, Ralph and Clara Oesterle. Sherwood, having assigned its interest in the contract to IWI, nonetheless brought an action for declaratory relief against appellees, seeking a determination as to the effects of appellees’ alleged noncompliance with the purchase agreement. After IWI was substituted as the sole plaintiff, the Oesterles filed an answer, affirmative defenses, and a counterclaim for breach of contract. On October 10, 2006, Sherwood moved to dismiss the counterclaim and joined IWI’s independent motion to dismiss.

On June 5, 2009, Sherwood filed its answer and affirmative defenses, requesting “a jury trial for all issues.” In the pleading Sherwood also “counterclaimed,” asserting a new cause of action for publication of a defamatory statement. Again, Sherwood requested “a jury trial for all issues.” Appellees moved to dismiss the counterclaim, arguing Sherwood failed to state a cause of action. Without having ruled on appellees’ motion to dismiss, the court set the matter for a non-jury trial.

We review de novo the trial court’s construction or interpretation of a rule of civil procedure. See Swait v. Swait, 958 So.2d 552, 553 (Fla. 4th DCA 2007). “The right of trial by jury as declared by the Constitution or by statute shall be preserved ... inviolate.” Fla. R. Civ. P. 1.430(a). Any party may demand a jury trial “by serving upon the other party a demand therefor in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.” See Fla. R. Civ. P. 1.430(b). “Regardless of who makes the demand, once made it cannot be withdrawn without the consent of the parties.” Barge v. Simeton, 460 So.2d 939, 940 (Fla. 4th DCA 1984). “To constitute a waiver of the existing demand for jury trial ... there must be affirmative action on the part of a party.” Id. The “affirmative action must be a written stipulation or oral stipulation in open court.” Id.

The right to trial by jury is enforced by the rules of procedure. See Fla. R. Civ. P. 1.430(a). Sherwood served its jury trial demand in a timely fashion, including the demand in the answer and counterclaim filed June 5, 2009. See Fla. R. Civ. P. 1.430(b). The record does not reveal either that the parties subsequently consented to withdraw the request or that Sherwood took some affirmative action to waive the right to a jury trial. Accordingly, we conclude the trial court erred by denying Sherwood’s demand to schedule the matter before a jury. See Simeton, 460 So.2d at 940.

Appellees argue against this result, contending appellants’ counsel announced a waiver during the pretrial conference. The waiver, appellees argue, is reflected in a pretrial conference order. We observe that the record on appeal includes no evidence either of the substantive content of any pretrial conference or, more particularly, a waiver of the right to jury trial at such conference. As a result, we find the waiver argument unavailing. See id. (requiring “affirmative action” to constitute waiver of an existing demand for jury trial).

REVERSED.

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


author: MARSTILLER, J.

text:
    M.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2490.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2011.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

At issue in this Anders appeal is whether M.M. was correctly adjudicated delinquent for resisting an officer without violence where the evidence shows he was neither under arrest nor being detained when he refused to give his name or identification to the requesting officer. We reverse the adjudication because M.M.’s refusal to identify himself did not constitute obstruction or resistance.

On the evening of December 9, 2009, M.M. and a group of youngsters visited a Jacksonville-area Starbucks which is located in a shopping center anchored by a Publix supermarket. While there, the group got into a loud disagreement with another patron over a twenty dollar bill to which a girl in the group claimed ownership. M.M. did not initially take part in the dispute but at some point spoke angrily to the patron involved and to another who tried to help defuse the situation. No threats were made and no physical contact of any kind occurred. The shift supervisor, Ustacia Smith, eventually persuaded the group to stop the commotion and go outside. She testified that M.M., at her request, ushered out the two in the group causing the “main problems.” In the meantime, law enforcement was called.

By the time Sheriffs Department Officer Erica Valente arrived, the disturbance had ended and the group was sitting quietly outside the Starbucks at a table on or near the sidewalk. Officer Valente first went inside the establishment to find out what had occurred then went outside to ask the group to leave. “After a lot of protest and cursing and yelling,” all the youngsters except sixteen-year-old M.M. left the area as requested by the officer. At first, M.M. refused to leave. But Officer Valente kept coaxing him to leave, “giving him a lot of leeway because I knew he was young, you know, trying to stay [sic] face.” She told him, “I am begging you. Please do not make me take you to jail.” When Officer Valente made it clear she wanted M.M. to leave the shopping center altogether, he began walking away from the Starbucks, though still insisting he did not have to leave. She followed M.M. as he walked “extremely slowly” toward the Publix, passing several of the shopping center businesses along the way. M.M. was “inside of Publix” when Officer Valente asked his name and for identification. When M.M. twice refused to give his name and claimed he had no identification on him, Officer Valente arrested him for resisting without violence and for trespass. M.M. only was charged with the former.

The crime of resisting an officer without violence is a misdemeanor and occurs when one “resist[s], obstructs], or oppose[s] any officer ... in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer.... ” § 843.02, Fla. Stat. (2009). To sustain a conviction or delinquency adjudication, the state must show (1) the officer was lawfully executing a legal duty, and (2) the defendant’s action constituted obstruction or resistance of that legal duty. See S.G.K v. State, 657 So.2d 1246, 1247 (Fla. 1st DCA 1995). “If a police officer is not engaged in executing process on a person, is not legally detaining that person, or has not asked the person for assistance with an ongoing emergency that presents a serious threat of imminent harm to person or property, the person’s words alone can rarely ... rise to the level of obstruction.” D.G. v. State, 661 So.2d 75, 76 (Fla. 2d DCA 1995). Providing false information to a police officer during a valid arrest or Terry stop can rise to that level. See Sauz v. State, 27 So.3d 226, 227 (Fla. 2d DCA 2010). But failing to give one’s correct identity is not a crime unless the person is legally detained. See id. at 228; Burkes v. State, 719 So.2d 29, 30 (Fla. 2d DCA 1998).

M.M. was not under arrest or otherwise lawfully detained when he declined to give Officer Valente his name or provide identification. Although M.M. had refused to leave the area when the officer first arrived on the scene, he ultimately complied with the officer’s request. The disturbance at Starbucks had ended, the group had dispersed, and M.M. had walked, albeit slowly, a substantial distance away. Officer Valente had invited — indeed, be-seeched — M.M. to leave, indicating he would not be arrested if he did so, and then essentially escorted him away from the scene. At no time was M.M. under lawful detention. Thus he was free to refuse to identify himself to the officer.

We reached a similar conclusion in R.S. v. State, 531 So.2d 1026 (Fla. 1st DCA 1988), in which a juvenile was arrested for refusing to respond to sheriffs deputies investigating a disturbance. The deputies were called to an apartment complex because a rowdy group of youths were raising a ruckus in the swimming pool area. R.S. and his friends had left the pool area by the time the deputies arrived and eventually were found in the apartment laundromat. The deputies neither arrested the youths nor told them they were being detained prior to questioning them. When one of the deputies attempted to question R.S. and another youth, R.S. refused to answer and repeatedly told his friend to do the same. As a result, the deputy arrested R.S. for interfering with her investigation. In reversing R.S.’s delinquency adjudication for resisting an officer without violence, we recognized his behavior was “frustrating and annoying.” Id. at 1027. But in view of all the circumstances, we found that refusing to answer the deputies’ questions and encouraging his friend to stay mum did not “sufficiently impede[] the deputies so as to constitute a violation of [section 843.02].” Id.

In the instant case, M.M. was not being detained when asked to identify himself, and Officer Valente’s investigation into the Starbucks disturbance had long since ended. Consequently, M.M.’s refusal to provide his name or identification did not obstruct the officer in executing a legal duty. We therefore reverse M.M.’s adjudication for resisting an officer without violence.

REVERSED.

WEBSTER and LEWIS, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


text:
    Wendall HALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6681.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2011.
    Wendall Hall, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Pettway v. State, 776 So.2d 930 (Fla.2000).

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


text:
    Matthew JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6624.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2011.
    Matthew Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Kenneth SAFFOLD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6182.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2011.
    Kenneth Saffold, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

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


text:
    Glen KRAUSE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6101.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2011.
    Glen Krause, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

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


text:
    Raymond L. LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4955.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2011.
    Raymond L. Lewis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse the order because the trial court neither elaborated on its reasons for denial, nor attached any portions of the record that refute the appellant’s allegations, without which we are precluded from conducting meaningful review. See Thomas v. State, 707 So.2d 1189 (Fla. 1st DCA 1998). The State, in its response to the court’s order to show cause, provided facts with record citations which, if true, would refute Lewis’s claims. However, the trial court did not incorporate the State’s response into its order, and neither the State nor the court attached those portions of the record which support the State’s contentions.

Accordingly, we reverse and remand for either attachment of those portions of the record conclusively showing that Lewis is entitled to no relief, or for an evidentiary hearing. See Brown v. State, 689 So.2d 1287, 1287 (Fla. 1st DCA 1997).

REVERSED AND REMANDED.

WEBSTER, ROWE, and MARSTILLER, JJ., concur.


text:
    Kitty COOK, Appellant, v. PALM BEACH COUNTY SCHOOL BOARD and F.A. Richard & Associates, Appellees.
    No. 1D10-4595.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2011.
    Harvey Kaufman of the Law Office of Harvey Kaufman, Palm Beach Gardens, for Appellant.
    Scott A. Silver of Silver, Bass & Brams, P.A., West Palm Beach, for Appellees.
   MARSTILLER, J.

On February 10, 2010, Kitty Cook (“Claimant”) filed a petition for worker’s compensation benefits seeking medical benefits for work-related injuries she sustained on August 23, 1994. Specifically, she sought from the Employer/Carrier (“E/C”) payment of five medical bills for treatment she received from Dr. Alex Igle-sias. The E/C responded to the petition stating they had not denied treatment, but Dr. Iglesias had never submitted medical bills for payment. Having finally received the bills via Claimant’s petition, the E/C sent them on for processing and payment. The E/C moved for a summary final order arguing that Claimant’s request for payment of Dr. Iglesias’ bills is a reimbursement dispute over which the Judge of Compensation Claims (“JCC”) lacks jurisdiction. The JCC agreed, and entered an Amended Order Granting Employer/Carrier’s Motion for Summary Final Order, which Claimant now appeals. We affirm the JCC’s order.

Claimant asserts on appeal, as she did below, that there is a genuine dispute of material fact as to whether Dr. Iglesias was and continues to be authorized. See Fla. Admin. Code R. 60Q-6.120. She has presented no evidence, however, to contravene the E/C’s position that Dr. Iglesias was and remains authorized. The fact of nonpayment suggests nothing about the doctor’s authorization status because, as the E/C’s response to the petition indicates, the E/C had not declined to pay but merely was not in receipt of the bills. Elsewhere in the record is evidence that the bills were paid shortly thereafter. Because there is no evidence that Dr. Iglesias was not or is not authorized, and viewing the evidence in a light most favorable to the nonmoving party, it appears Dr. Iglesi-as was and remains authorized. See Thomas v. Eckerd Drugs, 987 So.2d 1262 (Fla. 1st DCA 2008) (viewing evidence in light most favorable to nonmoving party, on review of summary final order). Hence, there is no genuine question of material fact — only a disputed question of law as to whether this is a reimbursement.

The JCC correctly resolved the legal dispute. Under section 440.13(1)(r), Florida Statutes (2009), “any disagreement between a health care provider or health care facility and carrier concerning payment for medical treatment” is a reimbursement dispute. The Department of Financial Services has exclusive jurisdiction over such disputes. See § 440.13(11)(c), Fla. Stat. (2009); Bryan LGH Med. Ctr. v. Fla. Beauty Flora, Inc., 36 So.3d 795, 796 (Fla. 1st DCA 2010). Accordingly, the JCC lacked jurisdiction over Claimant’s petition and correctly granted the E/C’s motion for summary final order. See Avalon Ctr. v. Hardaway, 967 So.2d 268, 273 (Fla. 1st DCA 2007) (holding JCC does not have jurisdiction over reimbursement dispute because jurisdiction is vested in another agency).

AFFIRMED.

WEBSTER and ROWE, JJ., concur.


text:
    Jessie Leon WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4087.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2011.
    Nancy A. Daniels, Public Defender and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

After the trial court denied his disposi-tive motion to suppress, Appellant pled no contest to possession of a concealed weapon by a convicted felon (count I) and altering or removing the manufacturer’s serial number from a firearm (count II), reserving the right to appeal the denial of the motion to suppress. Appellant’s appointed counsel filed an Anders brief, and after our independent review of the record, we find no error in the trial court’s ruling on the motion to suppress.

Appellant’s sentences of 48 months (with a 3-year minimum mandatory) for count I and a concurrent 36 months for count II are legal insofar as they are within the statutory maximum for the offenses and do not exceed the 48-month cap in the plea agreement. However, because the trial court orally pronounced a 36-month sentence (with the 3-year minimum mandatory) for count I, it appears that the subsequent written sentence of 48 months for that count is illegal. See Ashley v. State, 850 So.2d 1265, 1267-68 (Fla.2003). This error was not properly preserved for our review by a contemporaneous objection or a rule 3.800(b)(2) motion and, thus, we cannot correct the error in this direct appeal. See Geftos v. State, 12 So.3d 910, 912 (Fla. 4th DCA 2009); Young v. State, 988 So.2d 1128, 1129 (Fla. 2d DCA 2008). Accordingly, we affirm Appellant’s judgment and sentence without prejudice to any right that he may have to file an appropriate post-conviction motion concerning the sentence imposed for count I.

AFFIRMED.

WOLF, HAWKES and WETHERELL, JJ., concur.


text:
    FLORIDA CENTER FOR ORTHOPAEDICS, etc., Petitioner, v. PROGRESSIVE EXPRESS INS. CO., Respondent.
    No. 5D10-1010.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 2011.
    Kevin B. Weiss, of Weiss Legal Group, P.A., Maitland, for Petitioner.
    Michael C. Clarke, Betsy E. Gallagher, and William J. Vericker, of Kubicki Draper, P.A., Tampa, for Respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari and quash the final order affirming the trial court’s summary final judgment. See United Auto. Ins. Co. v. Prof'l Med. Group, Inc., 26 So.3d 21 (Fla. 3d DCA 2009); see also Sys. Components Corp. v. Fla. Dep’t of Transp., 14 So.3d 967, 973, n. 4 (Fla.2009). We note, parenthetically, that the record reveals that the respondent concedes that the trial court erred in entering summary judgment in its favor and that the circuit court applied the wrong law in rendering the order under review affirming the summary judgment.

PETITION GRANTED; ORDER QUASHED.

GRIFFIN, SAWAYA and TORPY, JJ., concur.


text:
    Roy A. WILLIAMS and Dorothy Williams, Appellants, v. U.S. BANK NATIONAL ASSOC., etc., Appellees.
    Nos. 5D10-1808, 5D10-2859.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 2011.
    Matthew D. Valdes and Craig R. Lynd of Kaufman, Englett & Lynd, PLLC, Orlando, for Appellants.
    Thomasina F. Moore, and Dennis W. Moore, of Butler & Hosch, P.A., Orlando, for Appellees.
   ON CONFESSION OF ERROR

PER CURIAM.

Pursuant to the Appellees’ confession of error, the order on appeal is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

TORPY, EVANDER and COHEN, JJ., concur.


author: ALTENBERND, Judge.

text:
    Lathesia PENN, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4907.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2011.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Lathesia Penn appeals her judgment of conviction for third-degree grand theft and the resulting thirty-eight month term of probation. She raises five issues on appeal. We address only one issue: Ms. Penn is entitled to a new trial because the court did not conduct a preliminary Nelson inquiry after hearing that Ms. Penn wanted to discharge her lawyer. See Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

In November 2006, Ms. Penn allegedly convinced a man that she was a licensed accountant and could help him start a trucking business and resolve some tax issues necessary to obtain a license plate for his tractor-trailer. The man claimed that he gave Ms. Penn $550 in cash without receiving a receipt and that Ms. Penn kept the money and did not perform any work. Ms. Penn disputed the amount of money she had received and denied that she had failed to perform work for the man. This dispute, which might seem to be a matter appropriate for resolution in the small claims division of county court, ultimately resulted in the filing of this felony information charging Ms. Penn with grand theft.

Several trial court judges handled this case and it is clear that all the parties involved wanted to resolve this matter by a pretrial intervention program — except for Ms. Penn, who was insistent of her innocence and demanded a trial. Shortly before the trial commenced, Ms. Penn and her attorney appeared before the trial court to determine whether she was going to agree to pretrial intervention or proceed to trial. Her attorney explained that “the last time I spoke to her outside of the court, she wanted to have me off of her case.” The attorney explained that he did not know if that was still her request. Although the attorney did not expressly ask the trial court to conduct a Nelson hearing, the record leaves no doubt that the attorney was asking for such a hearing.

The trial court was understandably frustrated by this case. By the time the court learned that Ms. Penn wanted to discharge her lawyer, it knew that two witnesses were already being flown to Florida from Ohio to testify at the scheduled trial. Ms. Penn tried twice to explain herself to the court during this short hearing. Each time she was immediately cut off. The court never conducted even the most basic Nelson hearing, but simply told the parties to be ready to pick a jury.

This court recently discussed the necessary procedures for a Nelson hearing in Torres v. State, 42 So.3d 910, 912 (Fla. 2d DCA 2010). As we explained, the first preliminary step for the trial court is to determine whether the defendant is making an unequivocal request to discharge counsel. Id.; see also Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004). The State does not argue that the trial court performed this first step. It primarily argues that Ms. Penn never moved to discharge her attorney.

The State is correct that general allegations of dissatisfaction by a defendant are not enough to trigger the need for a full Nelson hearing. See Morrison v. State, 818 So.2d 432, 440 (Fla.2002); Tucker v. State, 754 So.2d 89, 92 (Fla. 2d DCA 2000). In this case, however, Ms. Penn was not making any allegations; her attorney was explaining that Ms. Penn wanted him removed from the case. It was not the trial attorney’s responsibility to explain the reasons or details of his client’s dissatisfaction. An attorney in this context essentially has a built-in conflict. It was the attorney’s responsibility to inform the court of the client’s discontent and allow the trial court to take the next step of allowing the client to explain the perceived problems. In this case, Ms. Penn never made an oral motion to discharge her attorney because the trial court would not hear from her and gave her no opportunity to make a motion or state her complaint.

We conclude that the trial court erred in this regard. Such an error is a per se error that requires this court to reverse the judgment and sentence and remand this case for a new trial. Maxwell, 892 So.2d at 1103 (“The failure to conduct an appropriate Nelson inquiry is a structural defect in the trial requiring reversal as per se error.”).

Reversed and remanded.

SILBERMAN and KELLY, JJ., Concur.

      . We note that this case has been pending in this court for nearly three years. This is not the fault of Ms. Penn's current attorney. Private counsel, Heather M. Gray, originally filed this appeal. When she did not file a brief, this court finally removed her as counsel of record and appointed the public defender, who has filed a brief entitling Ms. Penn to a new trial. See Fla. Bar v. Gray, 28 So.3d 46 (Fla.2010) (table report of unpublished order).


text:
    Angel M. MALDONADO MELENDEZ, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 5D09-2001.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 2011.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant/Cross-Appellee.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee/Cross-Appellant.
   PER CURIAM.

Angel Maldonado Melendez appeals his conviction for kidnapping with a firearm, arguing the facts were insufficient to establish confinement. Melendez recognizes the three-part test in Faison v. State, 426 So.2d 963 (Fla.1983), is inapplicable because he was charged under section 787.01(1)(a)3., Florida Statutes, not under section 787.01(1)(a)2., kidnapping with the intent to commit or facilitate the commission of any felony. See Sutton v. State, 834 So.2d 332 (Fla. 5th DCA 2003). Instead, the issue is the sufficiency of the evidence relating to the confinement element.

Melendez relies upon Conner v. State, 19 So.3d 1117 (Fla. 2d DCA 2009), where the court found that holding a victim to the ground while strangling her did not constitute confinement under the kidnapping statute. In contrast, Melendez dragged the victim at gunpoint, by her hair, down a hallway and up half a flight of stairs to a more secluded landing in the back of a building. Those facts are sufficient to establish confinement under the statute. We affirm.

The State cross-appeals the trial court’s order granting Melendez’s motion to correct sentencing error. We find no error in the trial court’s determination that one of Melendez’s aggravated assault convictions was prohibited by double jeopardy.

The sentencing documents designated the kidnapping with a firearm as a first-degree felony punishable by life. This appears to be a scrivener’s error. The judgment and sentence should be corrected to reflect the offense as a life felony. § 775.087(l)(a), Fla. Stat. (2008).

AFFIRMED.

GRIFFIN, TORPY and COHEN, JJ„ concur.

      . [I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
      (a) Must not be slight, inconsequential and merely incidental to the other crime;
      (b) Must not be of the kind inherent in the nature of the other crime; and
      (c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

        Faison v. State, 426 So.2d 963, 965 (Fla.1983) (quoting State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)).

      . The information charged Melendez with forcibly, secretly, or by threat, confining, abducting, or imprisoning the victim against her will, without lawful authority, and with the intent to inflict bodily harm or terrorize the victim.


author: CRENSHAW, Judge.

text:
    Joseph Gerhard MATISSEK and Kelly Beth Matissek, Appellants, v. Roland D. WALLER, Appellee.
    No. 2D09-2250.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2011.
    Edward B. Cole of Cole Law Firm, P.A., Dunedin; and Shelly M. Johnson of Shelly M. Johnson, P.A., New Port Richey, for Appellants.
    Roland D. Waller, pro se.
   CRENSHAW, Judge.

Joseph Gerhard Matissek and Kelly Beth Matissek, homeowners in the deed restricted community of Hidden Lakes Estates, in Pasco County, Florida, appeal a final judgment directing them to bring an airplane hangar built on their property in compliance with the Hidden Lakes Estates’ deed restrictions. The issue that we must decide is whether the Marketable Record Titles to Real Property Act (MRTA), chapter 712, Florida Statutes (2008), extinguished both the original and amended restrictions placed upon the Ma-tisseks’ property. We find the MRTA did extinguish these restrictions, and therefore the Matisseks have a free and clear, marketable record title to their property. Accordingly, the circuit court erred as a matter of law by failing to enter a final summary judgment in favor of the Matis-seks on this basis, and we reverse.

The original and amended restrictions

On April 16, 1971, developer Hidden Lakes Estates, Inc. (HLEI) platted a parcel of land known as “Hidden Lakes Estates Unit One.” This plat was recorded at Plat Book 10, Pages 80-81 of the Public Records of Pasco County, Florida. HLEI designed Hidden Lakes Estates to be an airpark community that would include its own airport and permit its residents to construct aircraft hangars on their property. In support of this plan, HLEI also recorded restrictions, titled “Hidden Lake Estates Restrictions,” to be placed upon all lots in Unit One. Of particular importance, provision (9) of the restrictions required that “[a]ll buildings shall be constructed of masonry or similar materials.” The restrictions also stated in provision (27) that “[t]he Developer reserves the right to modify restrictions on any lot or lots,” and in provision (31) that “[t]he Developer, or its assigns, reserves the right to make reasonable modifications and clarifications to any and all restrictions set forth herein.” HLEI recorded these restrictions on May 18, 1971, at O.R. Book 544, Pages 248-51, of the Public Records of Pasco County, Florida.

On August 15, 1977, HLEI recorded an amendment to the original restrictions pursuant to its authority under provision (31). The amended restrictions deleted provisions (14), (27), and (31), amended provisions (5), (8), and (18), and stated that the “remaining restrictions shall remain in full force and effect.” This amendment, which will be referred to as Amendment 1, was recorded at O.R. Book 904, Pages 126-27.

On November 7, 1977, HLEI recorded another amendment to amend both the original restrictions and Amendment 1 pursuant to provision (31) of the original restrictions. This amendment, which will be referred to as Amendment 2, provided a list of restrictions that “shall be controlling and binding on all future owners of properties” in Hidden Lakes Estates. The list of restrictions included the same provision (9) that was in the original restrictions. HLEI recorded this amendment at O.R. Book 915, Pages 1910-18.

Between recording the original restrictions in 1971 and Amendments 1 and 2 in 1977, HLEI gave Peter Dreher an indenture for lots 28, 24, 25, and 26 in Unit One of Hidden Lakes Estates. The indenture, recorded on June 28, 1974, simply stated that these lots, as recorded in Plat Book 10, Pages 80-81, were “[s]ubject to easements and restrictions of record.” Mr. Dreher then conveyed the indenture for lots 23, 24, and 25 to Stephen Covert, which was recorded on April 14, 1980. Though this indenture referred to the plat recorded at Plat Book 10, Pages 80-81, it did not refer to any restrictions. After this conveyance, lot 25 and a portion of lot 24 changed hands three times — from Mr. Covert to Radial Development Corporation (RDC), from RDC to Charles and Johnnie Coward, and from the Cowards to Agnes Rice, respectively. Each of these conveyances was properly recorded in Pasco County, and each of these conveyances described the parcel from the plat recorded at Plat Book 10, Pages 80-81. Two of the conveyances — from Mr. Covert to RDC and from RDC to the Cowards— contained a general statement that the parcel was “[s]ubject to easements of record,” and the third conveyance from the Cowards to Ms. Rice made no mention of any restrictions.

The Matisseks’ acquisition of the subject 'property

Finally, on December 18, 1995, the Ma-tisseks became the fee simple owners of lot 25 and a portion of lot 24. The warranty deed granting them the subject property from Ms. Rice did not cite to the original plat, nor did it mention any restrictions on the property. During the summer of 2007, Mr. Matissek began constructing an airplane hangar on the property and submitted his plans to Pasco County to get a permit to build a pre-engineered hangar containing a steel frame and steel paneling. Unfortunately for Mr. Matissek, fellow Hidden Lakes Estates resident Roland Waller noticed the construction and believed Mr. Matissek’s plan to place a metal exterior on his hangar violated provision (9) of the Hidden Lakes Estates’ restrictions requiring all buildings to be constructed of masonry or similar materials. Mr. Waller communicated to Mr. Matissek that if he did not bring the hangar in compliance with the Hidden Lakes Estates’ restrictions, an injunction would be sought. Despite this warning, Mr. Matis-sek continued with the construction of his hangar, and Mr. Waller filed a complaint in January 2008 seeking a mandatory injunction requiring the hangar’s removal. We note that during the pendency of Mr. Waller’s action, Mr. Matissek applied a stucco finish covering the hangar’s metal exterior.

The summary judgment motion

The Matisseks filed a motion for summary judgment arguing the MRTA extinguished HLEI’s 1971 restrictions and 1977 amended restrictions. The circuit court denied the motion, and the matter proceeded to trial. The circuit court found at the conclusion of the proceedings that the MRTA extinguished the 1971 restrictions but did not extinguish the 1977 amended restrictions because the amended restrictions were recorded after the root of title created by the 1974 conveyance of the property from HLEI to Mr. Dreher. Accordingly, the circuit court found that Mr. Matissek’s hangar did not comply with the 1977 amended restrictions and entered a final judgment directing Matissek to bring the hangar in compliance by either removing the hangar or by constructing “masonry walls of block, brick, prestressed concrete or other masonry materials to the building.”

On appeal, the Matisseks argue the circuit court misapplied the MRTA because the 1977 amended restrictions could not stand alone and the original 1971 restrictions could only be preserved through specific identification in the muniments of title under section 712.03(1) or by recording a proper notice under sections 712.03(2), 712.05, and 712.06, which was never done. Therefore, they contend the circuit court erred by denying the motion for summary judgment because the original 1971 restrictions and 1977 amended restrictions were extinguished by the MRTA as a matter of law. Our standard of review of a motion for summary judgment is de novo. See, e.g., Shaw v. Tampa Elec. Co., 949 So.2d 1066, 1069 (Fla. 2d DCA 2007); see also Deep S. Sys., Inc. v. Heath, 843 So.2d 378, 379 (Fla. 2d DCA 2003) (“Orders granting or denying motions for summary judgment are reviewed de novo.”).

Background of the MRTA

The Florida Legislature enacted the MRTA in 1963 to simplify and facilitate land transactions. See Blanton v. City of Pinellas Park, 887 So.2d 1224, 1227 (Fla.2004). To effectuate this legislative purpose, section 712.10 requires the MRTA “be liberally construed ... by allowing persons to rely on a record title as described in [section] 712.02 subject only to such limitations as appear in [section] 712.03.” Section 712.02, titled “Marketable record title; suspension of applicability,” provides:

Any person having the legal capacity to own land in this state, who, alone or together with her or his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in [section] 712.03.

Similarly, section 712.04, titled “Interests extinguished by marketable record title,” provides:

Subject to the matters stated in [section] 712.03, such marketable record title shall be free and clear of all estates, interests, claims, or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title.

Subsection (1) of the exceptions listed under section 712.03 states:

Such marketable record title shall not affect or extinguish the following rights:
(1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title; provided, however, that a general reference in any of such muniments to easements, use restrictions or other interests created prior to the root of title shall not be sufficient to preserve them unless specific identification by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; subject, however, to the provisions of subsection (5).

Finally, the “root of title” is defined under section 712.01(2) as

any title transaction purporting to create or transfer the estate claimed by any person and which is the last title transaction to have been recorded at least 30 years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it was recorded.

The application of the MRTA to the Ma-tisseks’ property

In this case, the circuit court determined that the effective date of the root title of the Matisseks’ property was June 28, 1974, when HLEI gave Peter Dreher an indenture for lots 23, 24, 25, and 26. The parties do not dispute this finding, nor do we. Because this action commenced in January 2008, and because the next recorded title transaction after the original indenture occurred in 1980, the 1974 indenture was the last title transaction to have been recorded prior to the circuit court’s determination of the subject property’s marketability.

The circuit court also found that the 1971 restrictions, which predated the 1974 root of title, were extinguished by the MRTA in accordance with section 712.04. We agree with the circuit court’s determination because there is nothing in the record which would provide an exception to the marketability under section 712.03. Standing alone, the 1974 indenture was insufficient to preserve the 1971 restrictions because the indenture’s vague provision that the conveyance was “[sjubject to easements and restrictions of record” did not comply with the “specific identification” language of section 712.03(1). Rather, “ ‘specific identification’ to the title transaction can be made in one of two ways: (1) by reference to the book and page in the public records where the title transaction that imposed the restriction can be found, or (2) by reference to the name of a recorded plat that imposed the restriction.” Sunshine Vistas Homowners Ass’n v. Caruana, 623 So.2d 490, 491-92 (Fla.1993) (quoting § 712.03(1), Fla. Stat. (1989)). Although the 1974 indenture does cite to the original plat recorded on April 16, 1971, the indenture does not reference the book or page of the title transaction or the name of the plat that imposed the original restrictions on May 18, 1971. See Martin v. Town of Palm Beach, 643 So.2d 112, 114 (Fla. 4th DCA 1994) (finding use restrictions created prior to the root of title are extinguished by section 712.02 unless the use restrictions are disclosed and specifically identified in a muniment of title); but cf. Canana, 623 So.2d at 490 (finding the MRTA did not extinguish plat restrictions recorded in 1925 because subsequent mu-niments of title recorded in 1951,1977, and 1990 contained specific identifications referencing the 1925 plat).

Despite finding that the MRTA extinguished the 1971 restrictions, the circuit court then simply concluded, without explanation, that the MRTA “[did] not cut off the 1977 deed restrictions.” The Matis-seks contend this was error because the 1977 amendments could not exist independently of the original 1971 restrictions and should either have been extinguished or been found simply inapplicable to their property pursuant to Berger v. Riverwind Parking, LLP, 842 So.2d 918 (Fla. 5th DCA 2003).

We agree that the 1977 amended restrictions, just like the 1971 restrictions, do not provide an exception under section 712.03 that would prevent HLEI’s interest in the property from being extinguished under section 712.04. The 1977 amendments address revisions to the 1971 restrictions and do not concern a chain of title to any property, let alone the Matis-seks’ property. Thus, the amendments are not considered to be “muniments of title,” and subsection 712.03(1) is inapplicable. Similarly, the 1977 amendments do not apply under subsection 712.03(4) because the amendments are not “title transactions” as defined in section 712.01 (3), and the legislature did not intend that a covenant or restriction be considered an estate, interest, claim, or charge affecting title. See Berger, 842 So.2d at 922 (noting the legislature’s purposeful distinction between “estates, interests, claims or charges” and “covenants or restrictions” in subsection 712.03(2)).

We also find that the 1977 amended restrictions in this case were recorded outside of the chain of title of the Matisseks’ property, similar to the factual scenario presented in Berger. 842 So.2d at 918. Berger addressed the application of the MRTA to nine lots which had restrictions limiting these lots to residential use. Lots 7 and 8, which are the most factually relevant in our case, concerned restrictions that were recorded in September 1957, roots of title that were created in September 1958, and amended restrictions that were recorded in January 1959. The amended restrictions, as applied to lots 7 and 8, “merely reinstated the original restrictions.” Id. at 920.

The Fifth District determined in Berger that the MRTA extinguished all limitations imposed by the initial restrictions recorded in September 1957 as to lots 7 and 8 (and as to some of the other lots) because the limitations were over thirty years old, predated the root of title, and did not fall under any exception in section 712.03. Id. As to the amended restrictions created in January 1959, the court found that the developer of the lots did not purport to amend the restrictions in a manner consistent with the original restrictions. Id. at 921. More importantly, the court concluded that because “the recording of the amended restrictions outside the chain of title of lots 7 and 8 did not give constructive notice,” the amended restrictions were inapplicable to those lots. Id.

Likewise, it is hard to see in this case how the Matisseks would have known of the masonry restriction under provision (9) because the 1974 root of title and the subsequent title transactions to Mr. Covert, RDC, the Cowards, and Ms. Rice fail to comply with the “specific identification” language of subsection 712.03(1). None of the conveyances reference either the original 1971 restrictions or the 1977 amended restrictions. See Cunningham v. Haley, 501 So.2d 649, 65B (Fla. 5th DCA 1986) (finding restrictive covenants to be extinguished under the MRTA and noting that “no title transaction imposing, transferring, or continuing the use restrictions in question ... has been specifically identified in muniments of title in appellants’ chains of title since the date of the roots of title in each chain of title”).

Therefore, we find the circuit court erred by denying the Matisseks’ motion for summary judgment as a matter of law because the MRTA extinguished the original 1971 restrictions and 1977 amended restrictions placed upon the Matisseks’ property. Accordingly, we reverse the entry of final judgment in favor of Mr. Waller and direct the circuit court on remand to enter a final summary judgment finding that the Matisseks have a marketable record title to their property that is free and clear of any of HLEI’s earlier restrictions.

Reversed and remanded.

ALTENBERND and KHOUZAM, JJ., Concur.

      . Kelly Beth Matissek is Joseph Gerhard Ma-tissek's ex-wife. Although she is listed as a party in the circuit court proceedings and in this appeal, she did not assist in constructing the airplane hangar under review, and she did not testify at trial.

      . Though the Matisseks raise two other issues on appeal, we find their first issue is disposi-tive. Therefore, we will not address their remaining arguments.

      .Though it is not pertinent to our findings, we observe that this amendment does not address the earlier deletion of provision (31) in Amendment 1.

      . As Mr. Waller notes in his communications to Mr. Matissek, the Hidden Lakes Estates did not create a standing homeowners association to enforce the deed restrictions. Rather, Mr. Waller pursued this action as an interested party with an ownership interest in Unit One of Hidden Lakes Estates.

      . The circuit court did not differentiate between Amendments 1 and 2 in its findings.

      . Though the circuit court did not address the Matisseks’ other argument concerning the failure of any interested party to file a proper notice under sections 712.03(2), 712.05, and 712.06 to preserve the original 1971 restrictions, we observe that there was no evidence in the record indicating any recorded notice that would have satisfied the requirements of these sections.

      . A muniment of title is any documentary evidence upon which title is based. Muni-ments of title are deeds, wills, and court judgments through which a particular land title passes and upon which its validity depends. ... Muniments of title do more than merely “affect” title; they must carry title and be a vital link in the chain of title.

        Cunningham v. Haley, 501 So.2d 649, 652 (Fla. 5th DCA 1986).

      . " 'Title transaction’ means any recorded instrument or court proceeding which affects title to any estate or interest in land and which describes the land sufficiently to identify its location and boundaries.” § 712.01(3).

        .Berger also pointed out that the amendment to the restrictions did not reimpose the initial restrictions because the amendment did not refer to the instrument creating the original restrictions. 842 So.2d at 921 n. 6. In contrast, Amendments 1 and 2 both cite to the original restrictions at O.R. Book 544, Pages 248-51 as their bases to amend the restrictions.