text:
    Eugene DOUSE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2148.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.
    Eugene Douse, Jr., Bowling Green, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant filing a Rule 3.800(a) motion which alleges where in the record the information regarding jail time can be located and explains how the record demonstrates entitlement to that relief. See Thompkins v. State, 3 So.3d 438 (Fla. 4th DCA 2009); Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998).

POLEN, MAY and CONNER, JJ., concur.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Richard S. KEMP, Appellant, v. Ann Marie Dahl KEMP, n/k/a Ann Marie Welsh, Appellee.
    No. 5D09-3007.
    District Court of Appeal of Florida, Fifth District.
    May 20, 2011.
    Susanne D. McCabe, of Bonus McCabe, PLLC, Orlando, for Appellant.
    Paul E. Rice, Jr., Rice & Rose, P.A., Daytona Beach, for Appellee.
   ORFINGER, J.

In this post-dissolution proceeding, we affirm the trial court’s judgment of contempt in all respects, save one. Under prevailing law, the trial court must make findings to substantiate an award of attorney’s fees to allow for meaningful appellate review. See DeLillo v. DeLillo, 848 So.2d 454, 455 (Fla. 4th DCA 2003). When someone other than an attorney’s own client is required to pay their fees, the trial court must award a reasonable fee, determined from testimony (absent any stipulations) as to the prevailing rates for attorneys in comparable circumstances and the amount of time reasonably expended by the attorney on the matter. See Franklin & Marbin, P.A. v. Mascola, 711 So.2d 46, 48-49 (Fla. 4th DCA 1998); see also Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985). This determination requires the trial court to make findings of fact regarding the number of hours spent, and a reasonable hourly rate. Simpson v. Simpson, 780 So.2d 985, 988 (Fla. 5th DCA 2001). Absent such factual findings, the award of attorneys’ fees must be reversed and remanded for further proceedings. In all other respects, the judgment of contempt is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and LAWSON, JJ., concur.


author: PALMER, J.

text:
    Max R. WHITNEY, Appellant, v. Michael HILL, Appellee.
    No. 5D10-420.
    District Court of Appeal of Florida, Fifth District.
    May 20, 2011.
    Max R. Whitney of Max R. Whitney, P.A., Deerfield Beach, for Appellant.
    Bonnie J. Jackson of the Jackson Law firm, P.A., Winter Park, for Appellee.
   PALMER, J.

In this legal malpractice action, Attorney Max Whitney appeals the amended final judgment entered by the trial court in favor of appellee, Dr. Michael Hill. Whitney’s claims of error are without merit and, therefore, we affirm the final judgment. However, we remand for correction of a mathematical error in the award of attorney’s fees in the final judgment. The award amount should be $17,875 rather than $18,875.

AFFIRMED; REMANDED for correction of mathematical error.

GRIFFIN and SAWAYA, JJ., concur.


text:
    SUN GROUP ENTERPRISES, INC., Appellant, v. SOUTH POINT, INC., et al., Appellee.
    No. 5D10-1988.
    District Court of Appeal of Florida, Fifth District.
    May 20, 2011.
    Allan P. Whitehead of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, Melbourne, for Appellant.
    Michael E. Dujovne and David J. Volk of Volk Law Offices, P.A., Melbourne, for Appellee.
   PALMER, J.

Sun Group Enterprises, Inc., appeals the final summary judgment of foreclosure entered in favor of Mayan Mainstreet Investors II, LLC. We affirm the summary judgment, having determined from a thorough review of the record that there is no genuine issue as to any material fact and that Mayan was entitled to judgment as a matter of law.

AFFIRMED.

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


author: PER CURIAM.

text:
    M.H.-R., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2108.
    District Court of Appeal of Florida, Fifth District.
    May 20, 2011.
    Nancy C. Wear, B.C.S., Coral Gables, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the trial court’s determination that M.H.-R. was guilty of resisting a law enforcement officer without violence. See Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (individual may be required to provide his or her name to law enforcement officer where officer has initiated a valid Terry stop). However, we remand for a new disposition hearing (assuming the issue has not become moot) because of the inconsistencies between the trial court’s oral pronouncement and its written order as to the length of M.H.-R.’s curfew and probationary periods.

AFFIRMED in part; REVERSED in part; REMANDED

GRIFFIN, PALMER and EVANDER, JJ., concur.

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


text:
    Ezra FOWLER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4490.
    District Court of Appeal of Florida, Fifth District.
    May 20, 2011.
    Ezra Fowler, Jr., Malone, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

On September 8, 2010, the trial court rendered an order denying Fowler’s motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Subsequently, on September 15, 2010, Fowler moved for leave to amend his motion, as provided in Spera v. State, 971 So.2d 754 (Fla.2007). Although leave to amend was granted, Fowler filed a notice of appeal from the September 8 order on October 6, 2010. He then filed his amended rule 3.850 motion seven days later. Fowler subsequently moved for an extension of time to file a second amended rule 3.850 motion. The circuit court’s November 29, 2010, order partially granted the motion and also denied the additional ground raised in the first amended motion. Fowler filed a notice of appeal from that order on December 16, 2010. This appeal deals only with those rulings.

A notice of appeal filed from an order denying a motion for postconviction relief deprives the circuit court of jurisdiction to consider an amended motion or any other motion pertaining to that postconviction proceeding. See Tellas v. State, 811 So.2d 756, 756 (Fla. 1st DCA 2002). Likewise, after filing a notice of appeal from a final order in a postconviction proceeding, a defendant abandons any pending motions in the circuit court relating to that case. See Lopez-Merced v. State, 949 So.2d 362, 363 (Fla. 5th DCA 2007); Moore v. State, 789 So.2d 551, 552 (Fla. 5th DCA 2001). Because Fowler appealed the order denying relief rendered on September 8, 2010, the order entered on November 29, 2010, was a nullity. It is, therefore, vacated and the appeal therefrom is dismissed. See Meintzer v. State, 943 So.2d 966, 968 (Fla. 5th DCA 2006).

ORDER VACATED; APPEAL DISMISSED.

TORPY, LAWSON, and COHEN JJ„ concur.

      . That appeal is currently pending.

      . While Fowler labels the first amendment an addendum/supplement to the original rule 3.850 motion, it is effectively an amended motion which raised an additional ground.


author: LaROSE, Judge.

text:
    Brian Michael SHIVELY, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3149.
    District Court of Appeal of Florida, Second District.
    May 25, 2011.

      Corinda Luchetta, St. Petersburg, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Brian Michael Shively pleaded no contest to driving under the influence, driving while license suspended, and cocaine possession. See §§ 316.193(1), (4), 322.34(2)(a), 893.13(6)(a), Fla. Stat. (2008). He reserved the right to appeal the denial of his dispositive motion to suppress evidence. See Fla. R.App. P. 9.140(b)(2)(A)(i). The trial court withheld adjudication and sentenced him to twelve months of probation. We affirm.

An off-duty sheriffs deputy was working as a security officer at the Channelside parking garage in Tampa late at night. A garage employee called the officer over to assist Mr. Shively, who was sitting in his vehicle at the garage exit. The officer saw that Mr. Shively was having trouble putting a parking token into the machine to raise the gate. Mr. Shively was moving the token “everywhere around like he just couldn’t focus on it, getting it into the machine.” The officer suspected that Mr. Shively was impaired. Mr. Shively appeared confused, his eyes were bloodshot, and his speech was slurred. Vehicles coming down the garage exit ramp were backing up behind Mr. Shively’s vehicle.

The officer diverted the other vehicles and directed Mr. Shively to back out of the exit lane and pull over against the garage wall where he would not block traffic. Mr. Shively did so. He then got out of his vehicle, staggered, and leaned against the vehicle to maintain his balance. The officer smelled alcohol as he approached Mr. Shively.

The officer escorted Mr. Shively to the bottom of the ramp and requested assistance from a Tampa Police Department DUI unit. After conducting field sobriety exercises, the police arrested Mr. Shively for DUI and driving with a suspended license. They found cocaine in his pocket during a search incident to arrest.

Mr. Shively argues that the trial court should have granted his motion to suppress. According to Mr. Shively, the officer lacked reasonable suspicion to direct him to back out of the exit lane and pull over to the wall. He contends that he was illegally seized because he did not feel free to leave. See, e.g., Popple v. State, 626 So.2d 185, 186 (Fla.1993); Thomasset v. State, 761 So.2d 383, 385-86 (Fla. 2d DCA 2000). The trial court ruled that the officer did not seize Mr. Shively with those directions. We agree.

Many police-citizen contacts involving automobiles occur because the officer believes that the driver has violated the law; many more occur because a vehicle has become disabled or involved in an accident. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In such cases, law enforcement officers engage in what we recognize as “community caretak-ing functions” necessary for public safety and welfare. Id.; accord Ortiz v. State, 24 So.3d 596, 600 (Fla. 5th DCA 2009) (en banc).

This incident occurred late at night when nearby entertainment venues were closing, there was a mass exodus of cars from the parking garage, and the officer was providing security for Channelside-area patrons. Mr. Shively’s inability to operate the token machine and leave the garage impeded the traffic flow. This, alone, was a valid basis for the officer to direct him to move his vehicle. The officer properly exercised a “community caretak-ing function.” Mr. Shively voluntarily exited his vehicle, staggered, and smelled of alcohol. These conditions then precipitated his arrest.

Even if we deemed the officer’s direction to Mr. Shively to move his vehicle an investigative stop, the officer’s actions were lawful. “[A] legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” Dep’t of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992); accord Dep’t of Highway Safety & Motor Vehicles v. Kurdziel, 908 So.2d 607, 608-09 (Fla. 2d DCA 2005). “A stop may be justified even in the absence of a traffic infraction when the vehicle is being operated in an unusual manner.” State v. Rodriguez, 904 So.2d 594, 598 (Fla. 5th DCA 2005) (citing Ndow v. State, 864 So.2d 1248, 1250 (Fla. 5th DCA 2004)); see Bailey v. State, 319 So.2d 22, 26 (Fla.1975) (upholding stop to determine reason for driver’s “unusual operation” of vehicle at slow speed and weaving within lane, even where court stated that no circumstances reasonably would have led the officer to believe criminal activity was taking place); accord Brown v. State, 595 So.2d 270, 270-71 (Fla. 2d DCA 1992).

Mr. Shively’s failure to place the parking token in the slot after several attempts and resulting inability to exit the garage was “unusual” enough to prompt the garage employee to ask the officer for help. The officer’s observation that Mr. Shively’s eyes were bloodshot and his speech was slurred added to the officer’s suspicion that something was wrong. These circumstances certainly warranted a brief investigatory stop.

We see no error in the denial of Mr. Shively’s motion to suppress.

Affirmed.

WHATLEY, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.


text:
    Marcline, Memose and Marc ALEXIS, Appellants, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellee.
    No. 4D09-4948.
    District Court of Appeal of Florida, Fourth District.
    May 25, 2011.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Joshua A. Blacksten of Stabinski & Funt, P.A., Miami, for appellants.
    Cristian D. Valois of Hernandez & Hicks, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Appellants appeal the trial court’s order dismissing their case with prejudice. We hold that the dismissal order entered after a status conference was improper, and we reverse.

Appellants filed a claim for benefits with appellee after their insurer was declared insolvent. When several months passed without payment, appellants sued appellee, claiming breach of the insurance contract. Appellee responded by filing a motion to compel appraisal; the trial court granted the motion and the parties appraised the loss. Through the appraisal process, appellants were awarded $47,616.79. Appel-lee issued a check for the full amount and filed a notice that it could assert “no coverage defenses.”

Thereafter, the trial court held a status conference to consider appellants’ motion to add claims for additional living expenses and to adjudicate their claims for attorney’s fees. The trial court held that appellants had not alleged an entitlement to attorney’s fees, and the court dismissed the case “based upon the parties having been directed to appraisal, the appraisal having been completed and the award having been made.”

We conclude that the trial court erred in dismissing the case with prejudice. The hearing at which the case was dismissed was noticed as a status conference, and without proper notice, the entry of an order of dismissal results in a denial of due process. See, e.g., Liton Lighting v. Platinum Television Grp., Inc., 2 So.3d 366, 367 (Fla. 4th DCA 2008) (“When a trial judge sua sponte dismisses a cause of action on grounds ‘not pleaded,’ the trial judge denies the parties due process because the claim is being dismissed without ‘notice and an opportunity for the parties and counsel to be heard.’ ”) (citation omitted). Dismissal should be predicated on a properly filed and noticed motion to dismiss or other dispositive motion to protect the parties’ rights to due process. See Hagen v. Fla. Drug, Inc., 402 So.2d 57, 57 (Fla. 4th DCA 1981). While appellee had filed a motion for summary judgment, the motion was insufficient under Rule 1.510(c) and (e), as the motion was filed less than twenty days prior to the hearing and the documentary evidence submitted in support of the motion was not authenticated. See Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1108 (Fla. 4th DCA 2010). Because appellants had no notice that the claim might be dismissed at the hearing, the trial court’s order was improperly entered.

Accordingly, we reverse the order of dismissal and remand for further proceedings consistent with this opinion. Because we find the dismissal order to be disposi-tive of this appeal, we do not consider the merits of appellants’ claims for trial attorney’s fees.

Reversed and remanded.

MAY, DAMOORGIAN and LEVINE, JJ., concur.


author: SILBERMAN, Judge.

text:
    STATE of Florida, Appellant, v. Teodoro PABLO-RAMIREZ, Appellee.
    No. 2D10-758.
    District Court of Appeal of Florida, Second District.
    May 27, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellant.
    Bryant R. Camareno of Bryant R. Ca-mareno, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

A jury convicted Teodoro Pablo-Ramirez of sexual battery on a victim under twelve and child abuse after the State presented evidence that Ramirez impregnated his wife’s sister when she was eleven years old. The State seeks review of the order which granted Pablo-Ramirez’s motion for new trial. In the order, the trial judge stated that a predecessor judge “erred as a matter of law” in denying Pablo-Ramirez’s motion to suppress. We reverse because the trial judge exceeded his authority by conducting what amounts to an appellate review of a predecessor judge’s ruling and overturning the predecessor judge’s decision.

The charges against Pablo-Ramirez arose after it was discovered that a newly-enrolled student at a middle school had a two-year-old child. The fourteen-year-old student provided the police with information that led them to Pablo-Ramirez, who was then thirty years old. When the police interviewed Pablo-Ramirez, who is from Guatemala, one officer asked questions in English and another officer translated into Spanish. Pablo-Ramirez waived his Miranda rights and gave a statement in which he confessed to the charged crimes.

Prior to trial, Pablo-Ramirez filed a motion to suppress in which he argued that his confession was involuntary because he was not offered the services of an interpreter who was fluent in Pablo-Ramirez’s Guatemalan dialect, Mam. Judge J. Rodgers Padgett conducted a hearing on the motion to suppress. Although Pablo-Ramirez testified through a Spanish interpreter at the hearing, he claimed that he did not understand his Miranda rights when they were read to him in Spanish. He said he understood some things that were said to him in the interview, but he did not understand others. He also could not read or write in Spanish.

Deputy Vasquez testified that Pablo-Ramirez gave no indication that he did not understand his Miranda rights. Deputy Vasquez explained that he questioned Pablo-Ramirez in Spanish and asked questions posed in English by Detective Bashner, who did not speak or understand Spanish. Deputy Vasquez was aware that Pablo-Ramirez was from Guatemala, and the deputy sometimes had to use different words to explain certain questions. Both Deputy Vasquez and Detective Bashner testified that Pablo-Ramirez otherwise responded appropriately to the questions without indicating that he did not understand.

Gloria Munoz, the interpreter who transcribed the interview, also testified that Pablo-Ramirez answered the questions asked of him and could understand Spanish. Although portions of the recorded interview were unintelligible, Munoz explained this was due to the quality of the recording and not the difference in dialects.

Judge Padgett denied the motion to suppress based on his determination that Pablo-Ramirez understood the interview questions and gave logical answers. Judge Padgett made an express credibility determination that Deputy Vasquez and Detective Bashner were more believable than Pablo-Ramirez.

Judge Wayne S. Timmerman conducted the trial in this case, and it appears that a Spanish interpreter was used at trial. The State adduced testimony similar to that presented at the suppression hearing. Pablo-Ramirez’s interview with the police was played for the jury, but Pablo-Ramirez did not testify. The trial judge questioned Pablo-Ramirez regarding his waiver of his right to testify. Pablo-Ramirez indicated that he spoke another dialect and did not “understand the laws here.” The judge noted that Pablo-Ramirez appeared to understand what the judge had said. Pablo-Ramirez stated, “Well, I am realizing now that it is different. My country you can get together with someone like that. You can get married at a young age but now I am realizing that things are different.” Pablo-Ramirez then confirmed that he did not want to testify.

After the jury found Pablo-Ramirez guilty and the court imposed the mandatory life sentence, Pablo-Ramirez timely filed a motion for new trial. Several months later, the trial judge conducted a hearing to determine whether Pablo-Ramirez was competent. At this hearing, the judge repeatedly expressed his concern about whether Pablo-Ramirez understood that he had committed a crime by having sexual relations with an eleven-year-old. The judge noted that the victim had left for Guatemala and refused to come back. He also expressed concern because Pablo-Ramirez had rejected a ten-year plea deal and was ultimately sentenced to a mandatory term of life in prison. Judge Timmerman explained,

I have this abiding feeling that this man then and now really has no comprehension of [sic] because of cultural difference and linguistic and lack of education, did not comprehend that he was in the United States he was doing something that was acceptable in his country but over here he can get life in prison.

He then declared Pablo-Ramirez incompetent to proceed.

A week after this ruling, Pablo-Ramirez filed another motion for new trial in which he argued that Judge Padgett erred in denying his motion to suppress. Judge Timmerman granted the motion without hearing any substantive argument or making any findings on the record except to say he had “severe issues in this case” because Pablo-Ramirez “was convicted of an offense that carries a mandatory life sentence.” The order granting the motion states in its entirety that the judge who denied the motion to suppress “erred as a matter of law in finding that the defendant ‘knowingly and voluntarily waived his Miranda Warnings’ with the aid of a Spanish interpreter because the defendant is not fluent in Spanish. The defendant is fluent in MUM [sic] which is a unique dialect and would require a special interpreter.”

On appeal, the State argues that Judge Timmerman erred in granting a new trial on this basis. The State claims that the motion for new trial was untimely and that Judge Padgett had properly denied Pablo-Ramirez’s motion to suppress. We reject the first argument, but we reverse as to the second.

Timeliness

The jury rendered its verdict on February 24, 2009, and Pablo-Ramirez filed a timely motion for new trial on March 4, 2009. See Fla. R. Crim. P. 3.590(a) (providing that a motion for new trial may be made within ten days of the jury’s verdict). The motion did not have a notice of hearing attached, and a hearing was never scheduled on it. On September 21, 2009, Pablo-Ramirez filed a second motion for new trial with an attached notice of hearing, and the motion was ultimately heard and granted by the court.

The State argues that Pablo-Ramirez’s first motion was abandoned because it was not filed with a notice of hearing. Because the second motion was filed well beyond the ten-day time limitation, the State argues that it was untimely and the court was without jurisdiction to rule on the motion. In support of its argument, the State cites to Hillsborough County Administrative Order S-2009-119, which provides, in pertinent part, “Except for demands for speedy trial and motions for discharge, all motions will have a notice of hearing attached concerning the scheduled hearing time. If a motion does not have an attached notice of hearing, the motion will be deemed abandoned and the clerk will not calendar it.”

Our record does not contain the original motion for new trial, and the parties do not address whether the second motion was materially different from the original motion. It does not appear that the State argued to the trial court that Pablo-Ramirez had abandoned his original motion for new trial or that the trial court lacked jurisdiction to consider whether to grant a new trial. Further, other than relying on the requirements of the administrative order regarding a notice of hearing, the State has not cited any authority in support of its argument on appeal that the trial court was divested of jurisdiction in this case.

We are mindful that the time period for filing a motion for new trial is jurisdictional and that the trial court does not have the power to hear an untimely motion for new trial. See Porter v. State, 749 So.2d 514, 515 n. 1 (Fla. 2d DCA 1999). Here, however, Pablo-Ramirez’s original motion for new trial timely invoked the court’s jurisdiction. While Administrative Order S-2009-119 authorized the clerk’s failure to calendar the motion for a hearing because a notice of hearing was not attached to the motion, we conclude that the failure to attach the notice of hearing to the original motion did not divest the trial court of jurisdiction.

Merits

A trial court has the inherent power to reconsider its previous ruling on a motion to suppress even after the jury has returned its verdict, and there is no requirement that new evidence be adduced to support the ruling. State v. Graham, 721 So.2d 361, 362 (Fla. 4th DCA 1998) (citing Savoie v. State, 422 So.2d 308, 312 (Fla.1982)). Further, there is authority for the proposition that a successor judge may vacate or modify a predecessor’s interlocutory rulings. See, e.g., Hull & Company, Inc. v. Thomas, 834 So.2d 904, 906 (Fla. 4th DCA 2003). However, regarding motions to suppress, a successor judge is permitted to reconsider the interlocutory ruling of a predecessor judge denying the motion, but such reconsideration must be based on evidence adduced before the successor judge. See, e.g., Brinkley v. State, 898 So.2d 1175, 1176 (Fla. 2d DCA 2005) (“ ‘[T]he existing law of Florida is that a successor judge may not enter an order or judgment based upon evidence heard by the predecessor.’ ” (quoting Beattie v. Beattie, 536 So.2d 1078, 1079 (Fla. 4th DCA 1988))).

In this case, Judge Padgett denied Pablo-Ramirez’s suppression motion after a pretrial evidentiary hearing. Judge Timmerman, the successor judge, conducted the trial of the case, heard evidence pertaining to the suppression issue, and observed Pablo-Ramirez’s language abilities at trial. Thus, the trial judge could have reconsidered Pablo-Ramirez’s motion to suppress based on the evidence adduced at trial. However, he did not do so. Instead, he granted Pablo-Ramirez’s motion for new trial, indicating that Judge Pad-gett “erred as a matter of law in finding that the defendant ‘knowingly and voluntarily waived his Miranda Warnings.’ ”

In so ruling, the successor judge exceeded his authority by conducting something akin to an appellate review of the prior judge’s ruling. Because the successor judge simply did not have the legal authority to conduct the appellate review of the earlier ruling on the motion to suppress, we reverse the order granting a new trial.

We note that the trial judge’s statements made during the competency hearing reflect a concern that due to Pablo-Ramirez’s Guatemalan heritage, he may not have appreciated that he was committing a crime by having sex with an eleven year old, which under Florida law subjects him to a life sentence. But apart from any question regarding the accuracy of Pablo-Ramirez’s self-serving assertions regarding Guatemalan culture, any cultural misunderstandings that he may have had do not bear on the voluntariness of his confession or the criminal nature of his conduct under Florida law.

Reversed.

CASANUEVA, C.J., and WHATLEY, J., Concur.

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

      . It is not clear from the record what precipitated the setting of a competency hearing.


author: KHOUZAM, Judge.

text:
    Darian JAMES, Petitioner, v. STATE of Florida, Respondent.
    No. 2D10-4256.
    District Court of Appeal of Florida, Second District.
    May 27, 2011.

      Darían James, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.
   KHOUZAM, Judge.

Darían James, in a petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises four grounds alleging ineffective assistance of appellate counsel. We agree with James’s contention that counsel was ineffective in failing to argue that his convictions for both conspiracy to commit racketeering and conspiracy to traffic in cocaine were barred by the constitutional prohibition against double jeopardy. We deny the remaining grounds without comment.

Following a jury trial, James was convicted of racketeering, conspiracy to commit racketeering, conspiracy to traffic in cocaine, and trafficking in cocaine. Count two of the information charged conspiracy to commit racketeering. It listed various participants in the conspiracy, including the petitioner. The conspiracy to commit racketeering charged conspiracy to traffic in cocaine as one of the goals of the conspiracy. Count four charged the same fifteen defendants with conspiracy to traffic in cocaine. No other persons were listed. The information alleged that both the conspiracy to commit racketeering charged in count two and the conspiracy to traffic in cocaine charged in count four were committed between August 1, 2005, and November 10, 2005. There was no evidence presented at trial that the petitioner or his coconspirators engaged in a conspiracy to traffic in cocaine outside the dates alleged, and the State, in its response to the petition, acknowledges both conspiracies had the same duration and participants. Thus, the time period for the conspiracy to commit racketeering incorporated the time period for the conspiracy to traffic in cocaine, and the conspiracy to traffic in cocaine was subsumed into the conspiracy to commit racketeering. James contends that because of this, his convictions for both conspiracy to commit racketeering and conspiracy to traffic in cocaine were violative of double jeopardy protections and that counsel was ineffective in failing to raise this claim on direct appeal.

As James correctly states, a double jeopardy violation constitutes fundamental error which may be raised for the first time on appeal. See Rios v. State, 19 So.3d 1004, 1006 (Fla. 2d DCA 2009); Gisi v. State, 848 So.2d 1278 (Fla. 2d DCA 2003). In this instance, we are governed by our opinion in Rios, which issued before the initial brief in the direct appeal was filed in the present case. Rios was convicted of conspiracy to commit racketeering and conspiracy to traffic in heroin. 19 So.3d at 1005. The conspirators were the same in both counts, and the time period for the conspiracy to commit racketeering incorporated the time period for the conspiracy to traffic in heroin. This court in Rodriguez v. State, 36 So.3d 177, 179 (Fla. 2d DCA 2010), summarized the Rios decision as follows:

In Rios v. State, 19 So.3d 1004, 1006-07 (Fla. 2d DCA 2009), this court held that counsel was ineffective in failing to argue that Rios’s convictions for both conspiracy to commit racketeering and conspiracy to traffic in heroin violated double jeopardy protections.... Rios did not preserve the issue in the trial court. However, we held that because a double jeopardy violation constitutes fundamental error, it may be raised for the first time on appeal. Id. at 1006. Thus, we found that appellate counsel was ineffective in failing to argue that Rios’s dual conspiracy convictions were prohibited by double jeopardy considerations and we granted Rios relief on this claim. Id. at 1006-07.

Here, it was fundamental error for the trial court to convict the petitioner of both conspiracy to commit racketeering and conspiracy to traffic in cocaine, and we hold that counsel rendered ineffective assistance when he failed to raise this issue on direct appeal.

A new appeal would be redundant in this case. See Rios, 19 So.3d at 1007. Because the conspiracy to commit racketeering drew a lesser sentence, we reverse that conviction and remand to the trial court to strike it. See Rodriguez, 36 So.3d at 180.

Petition denied in part and granted in part.

DAVIS and VILLANTI, JJ., Concur.

      . James was sentenced to concurrent sentences of twenty years' imprisonment on both conspiracy counts; however, the sentence on the conspiracy to traffic in cocaine conviction included a fifteen-year minimum mandatory term.


text:
    Zackary Lawan HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1076.
    District Court of Appeal of Florida, Second District.
    May 27, 2011.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

A jury convicted Zackary Lawan Henderson of battery on a person over sixty-five and robbery. See §§ 784.03(1), .08(2)(c), 812.13(2)(c), Fla. Stat. (2008). The trial court sentenced him to ten years in prison. Although tried as an adult, Mr. Henderson was sixteen when he committed the crimes. He now appeals his judgment and sentence. Section 985.565, Florida Statutes (2008), provides sentencing procedures and alternatives for juveniles prosecuted as adults. The trial court complied with the statutory requirements. Accordingly, we affirm.

The Department of Juvenile Justice (DJJ) multidisciplinary panel recommended that Mr. Henderson remain in the juvenile justice system and be committed to a high-risk residential program. The presentence investigation report and the panel recommendation chronicle a sad but perhaps all-too-common history plaguing many in our juvenile justice system. A behavioral evaluation observed that Mr. Henderson “has endured hardships that most adults do not experience in a lifetime” and concluded that “[h]is rehabilitation and entrance into the community as an adult would be better served in the juvenile system,” with qualification for “a [Statewide Inpatient Psychiatric Program] placement given his extensive mental health history and ongoing psychiatric admissions.” The DJJ panel thoroughly considered Mr. Henderson’s family background, mental stability, criminal background, and seriousness of the offenses in making its recommendation. The panel acknowledged that the DJJ had not provided “the full range of services available” to Mr. Henderson and that the recommended placement could “help him become a law abiding citizen.” The presen-tence investigation report stated that Mr. Henderson needed mental health and substance abuse counseling and recommended youthful offender sentencing.

It does not appear from our record that Mr. Henderson’s trial counsel advocated strenuously for juvenile sentencing. She characterized the panel recommendation merely as “[DJJ] is willing to take him back.... ” She argued that it was “appropriate” to sentence him as a juvenile but asked the court, if it decided otherwise, to consider a bottom-of-guidelines youthful offender sentence. His lowest permissible adult sentence was 26.85 months and the maximum was twenty years.

The trial court declined to place Mr. Henderson in a juvenile high-risk program or to sentence him as a youthful offender. Instead, it sentenced him to ten years in prison, reasoning as follows:

Okay. I know you’re young. I know you’ve had quite a bit of contact with the system. Like most people who come through the juvenile system, they haven’t had the best of a background or family lives, on the other hand, this is a main street in the middle of Clearwater in broad daylight where you go in and rob an elderly person, knock him to the ground. Fortunately, nobody was hurt any more than they were. It’s sad to me that somebody so young finds themselves in this spot. It’s sad to me how often I deal with young people finding themselves in this spot.

The trial court did not offer a detailed explanation for not following the DJJ panel recommendation. However, Florida statutes no longer require the trial court to make specific findings of fact setting forth its reasons for imposing adult sanctions on a juvenile. Compare § 985.565(4)(a)(4) (“Any sentence imposing adult sanctions is presumed appropriate, and the court is not required to set forth specific findings or enumerate the criteria ....”) with former § 39.059(7)(d), Fla. Stat. (1993) (requiring specific findings of fact and reasons).

The presumption of appropriateness of adult sanctions compels us to conclude that this record provides no basis for reversal on direct appeal.

Affirmed.

DAVIS and KELLY, JJ„ Concur.

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


text:
    Jamie C. RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-999.
    District Court of Appeal of Florida, Second District.
    May 27, 2011.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Mum Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

We affirm, but we remand with directions to the circuit court to correct Rodriguez’s probation order, which incorrectly states that he was convicted of first-degree murder and sexual battery, and to conform the probation order to the judgment, which accurately reflects that Rodriguez was convicted of second-degree murder. Rodriguez need not be present for this correction.

Affirmed and remanded.

NORTHCUTT, KELLY, and WALLACE, JJ„ Concur.


author: WALLACE, Judge.

text:
    COMPASS CONSTRUCTION, INC., Appellant, v. FIRST BAPTIST CHURCH OF CAPE CORAL, FLORIDA, INC., Appellee.
    No. 2D09-5455.
    District Court of Appeal of Florida, Second District.
    May 27, 2011.
    Curtright C. Truitt of Curtright C. Truitt, P.A., Fort Myers, for Appellant.
    W. Gus Belcher, II, of Nuckolls, Johnson, Belcher & Ferrante, P.A., Fort Myers, for Appellee.
   WALLACE, Judge.

We reverse the final judgment for attorney’s fees and remand for the entry of an amended final judgment for attorney’s fees to be calculated in accordance with the agreed hourly rate stated in the applicable fee agreement. See Compass Constr., Inc. v. First Baptist Church of Cape Coral, Fla., Inc., 61 So.3d 1273, 2011 WL 2091149 (Fla. 2d DCA 2011). We certify that our decision is in direct conflict with the Fourth District’s decision in Wolfe v. Nazaire, 758 So.2d 730 (Fla. 4th DCA 2000).

Reversed and remanded with directions.

NORTHCUTT and DAVIS, JJ„ Concur.


text:
    Kontney FAURISMA, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-179.
    District Court of Appeal of Florida, Second District.
    June 1, 2011.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Kontney Faurisma appeals three orders granting restitution. He argues that the trial court erred in entering the restitution orders without providing him with notice, a hearing, or an opportunity to object. The State agrees that the trial court erred. See Iaconetti v. State, 869 So.2d 695 (Fla. 2d DCA 2004).

Mr. Faurisma preserved this issue for appeal by filing a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). However, the trial court did not rule on the motion within sixty days so it is deemed denied. See Fla. R.Crim. P. 3.800(b)(1). Because the trial court should have held a hearing, required the State to prove the appropriate amount of restitution, and given Mr. Faurisma notice of the hearing and an opportunity to be heard, we must reverse the orders and remand for a de novo restitution hearing. See § 775.089(7), Fla. Stat. (2009); Iaconetti, 869 So.2d at 700.

Reversed and remanded.

ALTENBERND, KELLY, and KHOUZAM, JJ., Concur.


author: KELLY, Judge.

text:
    Jay Alan MYERS, Appellant, v. W. Brad STEUBE, Sheriff of Manatee County, Appellee.
    No. 2D10-1663.
    District Court of Appeal of Florida, Second District.
    June 1, 2011.
    Jay Alan Myers, pro se.
    Crystal D. Golm of Crystal D. Golm, P.A., Bradenton, for Appellee.
   KELLY, Judge.

Jay Alan Myers appeals from the trial court’s order denying his petition for a writ of mandamus. Myers argued in his petition that the Manatee County Sheriff could not deduct subsistence and other costs from his inmate account because the account was funded with veteran’s disability benefits protected from seizure under 38 U.S.C. § 5301. He requested that the trial court order the sheriff to refund the money deducted from his account. The trial court issued an order to show cause requiring the sheriff to respond to Myers’ petition. The sheriff responded, in pertinent part, as follows:

Myers’ veteran benefit checks are not deposited directly into his jail trust account. Rather, it appears that Myers’ mother, who holds Durable Power of Attorney for Myers, places small denominations of cash, usually $25.00 or so, into Myers’ trust account by bringing cash to the jail. Thus, the Sheriff lacks the ability to determine the source of the funds deposited into Myers’ account. It follows then, that in levying upon Myers’ trust account, the Sheriff does not violate § 5301 as the funds deposited therein are not protected by § 5301.

The trial court denied Myers’ petition, citing Purvis v. Crosby, 2006 WL 1836034 (N.D.Fla.2006) (holding that funds are exempt pursuant to 38 U.S.C. § 5301 only if the check from the Veteran’s Administration is deposited directly into an inmate account; once otherwise protected funds are deposited elsewhere, or otherwise cashed, the funds become unidentifiable and lose-their protected status). “A writ of mandamus is used to enforce an established legal right by compelling a public officer or agency to perform a duty required by law.” Lee Cnty. v. State Farm Mut. Auto. Ins. Co., 634 So.2d 250, 251 (Fla. 2d DCA 1994). The petitioner has the burden to show that there is clear legal right on the part of the petitioner and an indisputable legal duty on part of the respondent. Id. Because Myers has failed to show that there is an indisputable legal duty on the part of the sheriff to protect untraceable funds in Myers’ account, we affirm the order denying the petition for a writ of mandamus.

Affirmed.

WHATLEY and CRENSHAW, JJ., Concur.

      . 38 U.S.C. § 5301 provides in relevant part:
      (a)(1) Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.


author: LEVINE, J.

text:
    James Edward PEARSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1644.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented is whether the trial court committed reversible error by answering a question from the jury without first consulting the defense attorney and prosecuting attorney. We find that the trial court’s response to a juror’s question without first consulting with the attorneys was per se reversible error. For that reason, we reverse.

Appellant was charged with sale of cocaine within 1000 feet of a park and possession of cocaine. During trial, the jury viewed a video of appellant selling a cocaine rock to two individuals, who at the time were students at the police academy and acting as “confidential informants.” The two former students identified appellant in court as the person who sold them the cocaine.

Later that day, a detective arrested appellant for an unrelated crime of possession of drug paraphernalia. The state filed a notice pursuant to section 90.404(2)(c)(1), Florida Statutes, to elicit evidence that when appellant was arrested for the unrelated crime, he was wearing the same clothes as depicted on the video of the sale of cocaine. The state would not mention that his arrest was for another crime. The trial court allowed the admission of the testimony, over defense counsel’s objection, finding it was inextricably intertwined with the present case.

During deliberations, the jury asked to view the video of the alleged sale of cocaine. After further deliberations, the jury asked the court to define “an abiding conviction of guilt.” At this point, the trial court asked the prosecutor and the defense counsel for their input. The parties agreed that the trial court would reread the standard jury instruction and add the words “in other words” so that the jury instruction would read as follows:

On the other hand, if after carefully considering, comparing, and weighing all of the evidence, there is not an abiding conviction of guilt, or in other words, having a conviction it is one which is not stable, but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because that doubt is reasonable.

After reading what was previously approved by the parties, the trial court then asked the jury if what was just read helped, and the jury indicated that it did not. The trial court then inquired who the foreperson was and asked if defining “abiding” would help. A juror responded that “it might be a good start.” The trial court defined abiding, over the state’s objection, as “the same as a lasting conviction.” The juror then said the definition did “not entirely” help and asked for a “short synopsis of possible doubt and reasonable doubt, the difference between a possible doubt and a reasonable doubt.” The trial court then stated:

Alright. It’s not that I can’t. And I probably will. It’s that I have to be very careful that I don’t overstep my role of defining things and ... explaining things as a — -as a judge when I’m not the fact finder, you all are. So I’ve got to be careful with this. And um — I’m going to define it the best that I can at my own peril. Um, but I’m going to use, so that I’m not taking too much of a peril, I’m going to use extremes.
If someone were accused of driving under the influence, we all know DUI generally, so driving under the influence, and um the — the defendant’s defense, the doubt he was trying to raise was that I wasn’t driving, an alien had flown down and landed in the driver’s seat and was driving the car. That would be an impossible doubt, most of us would agree.
A — the second possible, more — more probable but still only possible example would be that um I wasn’t driving, but somebody else was. And but there was, when the officer pulled somebody over, um there didn’t appear to be anybody around. Matter of fact, no one was around. Therefore it’s a — it’s possible that somebody else was driving, but it— it may, and this would be for your determination depending on the facts and circumstances of the case, um, it — it—it—it may be reasonable that that’s a defense. You have to make the decision.
In other words, if — if it’s only a possible doubt, then you shouldn’t be influenced by that as long as you believe that the elements have been met beyond a reasonable doubt.
Only doubts in your mind regarding the — if they are based upon reason, if they are reasonable to have that doubt because it’s not just a possible doubt because anything is possible, I’m not— I’m having difficulty here.
But — but the point I’m trying to make is the reasonable — that a possible — a reasonable doubt is not a mere possible doubt because if any possible doubt were enough to make a determination of reasonable doubt, then there is a multitude of possibilities in any — any circumstance or case.

The trial court continued further, and after the jury resumed deliberations, the court inquired if there were any objections to the court’s instructions to the jury. At this point, the defense attorney stated, “It’s a little late, isn’t it?” and further stated, “I will lodge an objection to the conversation you had with the jury that we did not discuss beforehand.” Subsequently, appellant was convicted of both counts, and this appeal ensues.

Florida Rule of Criminal Procedure 3.410 requires that jury instructions “shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.” Generally, a reviewing court applies the abuse of discretion standard when reviewing a trial court’s response to a jury question. See Perriman v. State, 731 So.2d 1243, 1246 (Fla.1999). However, the Florida Supreme Court has “established a per se reversible error rule where a trial court responds to a jury’s question without giving counsel notice and ‘the opportunity to participate in the discussion of the action to be taken on the jury’s request.’ ” Mills v. State, 620 So.2d 1006, 1007 (Fla.1993) (quoting Ivory v. State, 351 So.2d 26, 28 (Fla.1977)). In adopting a per se reversible error rule, the court recognized that “communication with the jury is ‘so fraught with potential prejudice that it cannot be considered harmless.’ ” Id. (quoting Ivory, 351 So.2d at 28).

We find this case to be significantly similar to Jenkins v. State, 688 So.2d 422 (Fla. 4th DCA 1997). In Jenkins,

the trial court was in the process of responding to a jury question raised during deliberations [when] a juror asked a new question, the substance of which went well beyond the initial question. Without consulting counsel, the court instructed the jury in response to the additional inquiry. Although the court afforded counsel an opportunity to subsequently request an addition to the instruction and to object to the instruction as given, such belated consultation with counsel is insufficient to overcome the taint of the court’s communicating with the jury without affording a party a meaningful opportunity to have input on the court’s framing of the instruction.

Id. at 422-23. Like in Jenkins, the trial court responded to new requests for clarification and questions from the jury without affording defense counsel any “meaningful opportunity to have input.” The trial court subsequently asked if the defense attorney had any objections to the trial court’s statements. As in Jenkins, the trial court in the present case committed per se reversible error, and since “such error is per se reversible, we give no consideration to whether it may be harmless error.” Id. at 423. Thus, based on Jenkins, we reverse and remand.

Reversed and remanded for a new trial.

WARNER and CONNER, JJ., concur.

      . Since we are reversing and remanding, we also note that the admission of the detective’s testimony as to the same clothing worn by appellant at the time of the unrelated arrest was not an abuse of discretion by the trial court. See Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001) ("The standard of review for admissibility of evidence is abuse of discretion."). Significantly, the jury was not informed that appellant was arrested for an unrelated crime when he was found wearing the same clothing.

      . The state claims that the error is not preserved. We find under these particular circumstances, the claim of error has been preserved for appellate review. See Brooks v. State, 762 So.2d 879, 892 n. 16 (Fla.2000) (finding a claim preserved where counsel did not immediately object but raised objections shortly after the objected to testimony was offered).


text:
    Nicholas ELLIOTT, Charlene Elliott, Alexander Elliott, Linda Frontiero and Katie Marie Frontiero, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 4D09-3887.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Roy T. Mildner of Blake, Mildner & Ohle, P.A., Fort Pierce, for appellants Nicholas Elliott, Charlene Elliott and Alexander Elliott.

      Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, West Palm Beach, and David M. Carter of Gould Cooksey Fennell, P.A., Vero Beach, for appellants Linda Frontie-ro and Katie Marie Frontiero.
    Susan S. Lerner and Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Bernstein, Chackman, Liss & Rose, Hollywood, for appellee.
   LEVINE, J.

The issue presented is whether a homeowners’ insurance policy covered a golf cart accident that occurred on a private road near, but not on, the insured’s residential property. We find that this accident was not covered under the homeowners’ policy of the insured, and we affirm the trial court’s entry of a declaratory judgment on behalf of appellee.

Alexander, the minor son of appellants Nicholas and Charlene Elliott, was operating a golf cart on a private road within the Plantation at Sewall’s Point community in Stuart. Katie, the minor daughter of appellant Linda Frontiero, was a passenger on the golf cart, and at some point during the ride, Katie fell out of the golf cart and sustained injuries. Subsequently, the Frontieros filed a negligence complaint against the Elliotts. As a result of this claim, appellee filed an action for declaratory judgment seeking a determination of coverage under the Elliotts’ homeowners’ insurance policy.

Appellee disputed that the allegations in the underlying negligence action would invoke the coverage of the Elliotts’ homeowners’ policy. Appellee claimed that the accident took place outside of the insured premises and was not covered by the homeowners’ policy. The Frontieros also filed a counterpetition for declaratory relief, seeking a declaration that appellee had an “obligation to defend and indemnify” the Elliotts in the negligence allegations. The trial court agreed with appellee and granted final judgment declaring that the policy did not cover the injuries Katie sustained in the accident. This appeal ensues.

Since this case “presents a question of insurance policy interpretation, which is a question of law,” we review the trial court’s conclusions de novo. Penzer v. Transp. Ins. Co., 29 So.3d 1000, 1005 (Fla. 2010).

In this case, the Elliotts’ homeowners’ insurance policy excluded from coverage any “bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading” of any “motor vehicle owned or operated by or rented or loaned to any insured.” The insurance policy defined a golf cart as a “recreational vehicle,” but a recreational vehicle was considered a motor vehicle “while off an insured location.” The policy defined the “insured location” in pertinent part as follows:

a. the residence premises;
b. the part of any other premises, other structures and grounds used by you as a residence. This includes premises, structures and grounds you acquire while this policy is in effect for your use as a residence;
c. any premises used by you in connection with the premises included in [a.] or [b.]....

The policy further defined the “residence premises” as “the one, two, three or four-family dwelling, other structures and grounds” or “that part of any other building” where the insured “reside[s].”

The main thrust of appellants’ argument is that the private street, within the development, constituted an “insured location” under the homeowners’ policy, and as such, the “motor vehicle” exception did not apply to the golf cart, and appellee would be liable for the injuries Katie sustained in the accident. Appellants argue that the language of the homeowners’ policy, which includes “any premises used” in “connection with the premises,” renders the private roads and common areas of the community to be “insured locations.”

Appellee offered evidence at trial that the roads and common areas within the community were owned by the Sewall’s Point Plantation Homeowner’s Association. The covenants for the development also stated that each owner enjoys a “permanent and perpetual easement for ingress and egress for pedestrian and vehicular traffic over and across the walkways, private streets, sidewalks and driveways.” Nicholas Elliott testified that the roads within the community were private, and the roads were open and available to all invitees of the owners of the home within the community. No guards were posted at the entrance to the community; members of the public need only pull up to the gate and wait for the gate to open.

The trial court found several different, but interrelated, reasons to grant final judgment and find that the accident was not covered under the homeowners’ policy. The trial court concluded that the accident took place on land owned by the homeowners’ association, which is not an “insured location,” that the road where the accident took place was not a “premises” under the policy, and finally, that the location was not “premises used” in “connection with the premises.”

We are persuaded by the case law and the plain language of the homeowners’ policy that the trial court correctly entered a declaratory judgment on behalf of the ap-pellee. In the absence of ambiguity, the language of the contract is the best expression of the parties’ intent. Barakat v. Broward Cnty. Hous. Auth., 771 So.2d 1193, 1194-95 (Fla. 4th DCA 2000). Unambiguous contract language “must be afforded its plain meaning.” Lazzaro v. Miller & Solomon Gen. Contractors, Inc., 48 So.3d 974, 975 (Fla. 4th DCA 2010).

In Federal Kemper Insurance Co. v. Derr, 386 Pa.Super. 382, 563 A.2d 118 (1989), the court found that an accident that occurred on a private road was not covered by the homeowners’ policy. Like the present case, the accident in Derr took place on a private road which was the sole ingress and egress for the homeowners in the community. The homeowners’ association was responsible for the common maintenance of the roadway. The court concluded that “the property owners cannot control, alter or restrict the use of the road in any fashion, as it is dedicated” for the “use as a roadway to all property owners.” Id. at 122. In the present case, none of the homeowners in the community can “control, alter or restrict” any part of the road on which the golf cart accident took place. Thus, we agree with the court in Deir that a private road cannot be part of the premises where the individual homeowners exercise no individual control over the roadway, as in the present case.

We are also persuaded by Massachusetts Property Insurance Underwriting Ass’n v. Wynn, 60 Mass.App.Ct. 824, 806 N.E.2d 447 (2004), in which the court considered whether a homeowners’ insurance policy provided coverage for injuries sustained during an accident involving an ATV on a nearby beach. The beach was the property of the homeowners’ association, which was comprised of the 242 homeowners who shared “rights to the beach and pond.” Id. at 449 n. 2. The beach, where the accident took place, did not “adjoin” the homeowners’ property and was “some distance away.” Id. at 451. The court in Wynn rejected the view that the beach was an “insured location” simply because it was “used regularly in connection with [the] nearby residence.” Id. The court concluded that to view the beach as being used “in connection” with the “insured location” would “render the definition of ‘insured location’ meaningless and provide no discernible geographical limit to coverage.” Id.

Likewise, in United States Fire Insurance Co. v. Schnackenberg, 88 Ill.2d 1, 57 Ill.Dec. 840, 429 N.E.2d 1203 (1981), the court was asked to determine if there was coverage for an accident, involving a bicycle, that took place two-and-a-half blocks from the insured premises. The court concluded that to provide coverage as “incidental” to the insured premises two-and-a-half blocks away would render the definition of “insured premises” “meaningless.” Id. at 1207. The court in Schnackenberg postulated that if riding a bicycle “2 1/2 blocks away from the insured premises is a use incidental to those premises because it originated there, it is just as incidental if the rider is 2 1/2 miles or any greater distance from home.” Id.

Similarly, in the present case, the golf cart accident took place approximately one-and-a-half to three blocks away from the insured premises on a private road within the gated community. To accept the legal principle that the private road located blocks away from the “insured location” was used “in connection” with the insured location, as a roadway in and out of the community, could effectively make all roads within all gated communities covered locations “used in connection with” the insured location. This interpretation is untenable.

In the present case, the definition of “insured premises” or “insured location” would be rendered meaningless without a “discernible geographic” limitation to coverage.

In conclusion, we find the trial court correctly determined that the accident was not covered under the homeowners’ policy, inasmuch as it did not occur on the insured premises. Therefore, we affirm the court’s declaratory judgment in favor of appellee.

Affirmed.

WARNER and STEVENSON, JJ., concur.

      . The trial court also found that the distance of the area of the accident from the covered residential premises was "too far to qualify as an 'insured location.' "

      . We are also persuaded by Indiana Insurance Co. v. Dreiman, 804 N.E.2d 815 (Ind.Ct.App.2004), in which the court found the term "premises” was unambiguous, and as such the "premises” did not include public roadways. "The references to 'premises' include related references to 'structures and grounds,’ places 'rented,' and places where an insured temporarily ‘resid[es].' ” Id. at 820. The court concluded that "[n]either the definitions nor the context of the policy supports a determination that a public roadway constitutes 'premises used in conjunction' " with the insured’s premises. Id. No roadway, whether public or private, can be a "premises” under this policy language.

      . The Third District held that a vacant lot, across the street from the insured’s residence, was not used "in connection with” the insured premises, merely because the lot was regularly used by the insured. Id. at 1155. The court found the contrary interpretation, that "any non-owned empty lot regularly used by an insured to ride her motor vehicle” was an "insured premises,” to be "absurd.” Marchese v. Lititz Mut. Ins. Co., 524 So.2d 1155 (Fla. 3d DCA 1988).


text:
    Allan LITUCHY, Appellant, v. The ESTATE OF Carol R. LITUCHY, Appellee.
    No. 4D11-1203.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Allan Lituchy, West Palm Beach, pro se.
    No appearance for appellee.
   PER CURIAM.

The trial court denied the pro se petition for formal administration of the estate of the appellant’s wife, because the appellant was not represented by an attorney. We reverse, because the petition states that the appellant is his wife’s sole beneficiary. Thus, he is entitled to file the petition without the necessity of an attorney. See Fla. Prob. R. 5.030(a) (“Every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida.”) (emphasis added); Benedetto v. Columbia Park Healthcare Sys., 922 So.2d 416 (Fla. 5th DCA 2006).

Reversed and remanded with directions to reinstate the petition for administration.

GROSS, C.J., WARNER and TAYLOR, JJ., concur.