text:
    Ted WILLIAMS, Petitioner, v. Keith Robinson OKEN, M.D., et al., Respondents.
    No. SC10-92.
    Supreme Court of Florida.
    May 5, 2011.

      Joel Stephen Perwin, Miami, FL, and Bruce S. Bullock, Jacksonville, FL, for Petitioner.

      Katherine E. Giddings of Akerman Sen-terfitt, Tallahassee, FL, Earl E. Googe, Jr. and Megan R. Heiden of Smith, Hulsey and Busey, Jacksonville, FL, and Marjorie C. Allen, Mayo Clinic, Jacksonville, FL, for Respondents.
    Susan L. Kelsey, Tallahassee, FL, on behalf of Florida Medical Association, as Amicus Curiae.
   PER CURIAM.

Petitioner, Ted Williams, seeks review of the decision of the First District Court of Appeal in Oken v. Williams, 23 So.3d 140 (Fla. 1st DCA 2009), on the ground that it expressly and directly conflicts with a decision of the Fourth District Court of Appeal in St. Mary’s Hospital v. Bell, 785 So.2d 1261 (Fla. 4th DCA 2001), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we quash the First District’s decision in Oken, and approve the Fourth District’s decision in St. Mary’s. Because we find that the First District’s grant of certiorari was inappropriate, we decline to address Williams’ remaining issues.

Facts and Procedural History

On March 8, 2007, Ted Williams sent by certified mail, return receipt requested, a notice of intent to initiate litigation to Dr. Keith Oken and the Mayo Clinic of Jacksonville. The notice alleged that, on February 4, 2005, Williams went to the emergency room at St. Luke’s Hospital complaining of chest pain. Oken, 23 So.3d at 141. There, he was evaluated by Dr. Catherine Northrop, an emergency room physician. Id. Dr. Northrop assessed Williams and then ordered a consultation with Dr. Oken, a board certified cardiologist. Id. Williams alleged that, as a result of Dr. Oken’s negligence, he suffered an acute myocardial infarction. Id. at 142. Williams alleged that Dr. Oken was negligent in (1) misrepresenting EKG results, (2) failing to admit Williams to the hospital, (3) failing to conduct a full work-up, and (4) later recommending that Williams take Maalox when Williams called in with worsening symptoms. Id.

Attached to Williams’ notice was the corroborating affidavit and curriculum vitae (CV) of Dr. Foster. Id. Dr. Foster’s affidavit and CV revealed that he was “familiar with the appropriate work up and treatment of suspected cardiac patients in the emergency room, and the consequences of failure to timely provide appropriate work up and treatment under such circumstances,” and that he was “familiar with the standard of care of reasonably careful physicians in diagnosing and treating impending myocardial infarction under the same or similar circumstances as those presented in this case.” The affidavit and CV also revealed that Dr. Foster had been employed as an emergency room physician at multiple hospitals. See id. Dr. Oken then sent Williams a letter that requested additional corroboration of the claim. See id.

On August 6, 2007, Williams filed a formal complaint in the Fourth Judicial Circuit Court, in and for Duval County, Florida, alleging the same facts contained in the notice. Id. Pursuant to section 766.206, Florida Statutes (2005), Dr. Oken filed a motion to dismiss the complaint for Williams’ alleged failure to timely comply with statutory presuit requirements of chapter 766, Florida Statutes (2005), the Medical Malpractice Reform Act. See Oken, 23 So.3d at 142. Specifically, Dr. Oken alleged that Dr. Foster was not an expert in the field of cardiology, and as a result, Williams had failed to comply with section 766.102, Florida Statutes (2005), because he failed to attach a corroborating affidavit from a qualified medical expert. See id. Williams filed a supplemental affidavit from Dr. Foster. The supplemental affidavit indicated that Dr. Foster was board certified in emergency room and family medicine. It also indicated that both of those medical fields involve the “evaluation, diagnosis, or treatment of acute chest pain and impending myocardial infarction,” and that Dr. Foster had “performed 15,000-20,000 evaluations of chest pain in an emergency room setting.” Based on the foregoing, the trial court specifically concluded that Dr. Foster was qualified as an expert and denied Dr. Oken’s motion to dismiss. See id.

Dr. Oken petitioned the First District for a writ of certiorari. See Oken, 23 So.3d at 143. The First District held that (1) certiorari review was appropriate, and (2) Dr. Foster, as an emergency medicine and family physician, was not qualified to provide an expert corroborating affidavit for a cardiology-related claim. Id. at 150. Therefore, the First District granted Dr. Oken’s petition for writ of certiorari and quashed the trial court’s denial of the motion to dismiss. Id.

On January 13, 2010, Williams filed a notice to invoke discretionary review jurisdiction in this Court, alleging express and direct conflict between the First District’s decision below and the district court decisions in Campbell v. State, 949 So.2d 1093 (Fla. 3d DCA 2007), Fassy v. Crowley, 884 So.2d 359 (Fla. 2d DCA 2004), St. Mary’s, 785 So.2d 1261, Fine v. Carney Bank of Broward County, 508 So.2d 558 (Fla. 4th DCA 1987), and Finchum v. Vogel, 194 So.2d 49 (Fla. 4th DCA 1966). This Court granted review.

Williams raises the following three issues on review: (1) whether the district court erred or exceeded its constitutional authority in reviewing the trial court’s order on certiorari, (2) whether the district court erred in ruling that the uncontradict-ed facts provided by Dr. Foster did not satisfy the statutory presuit requirements for the corroborating affidavit of a medical expert, and (3) whether the district court erred in supporting its decision by reference to internet material cited for the first time in the respondent’s reply brief in the district court. Because the first issue is dispositive, we decline to address Williams’ remaining issues. For the reasons expressed below, we quash the First District’s decision in Oken and approve the Fourth District’s decision in St. Mary’s.

Analysis

A common-law writ of certiorari rests in the sound discretion of the court to which the application was made, and thus, a court’s grant of certiorari is subject to an abuse of discretion standard of review. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995).

Before a court may grant certio-rari relief from the denial of a motion to dismiss, the petitioner must establish the following three elements: “‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)). In other words, certiorari relief is available when a lower court has departed from the essential requirements of the law or when a lower court has acted in excess of its jurisdiction, and no appeal or direct method of reviewing the proceeding exists. See Haines, 658 So.2d at 527. The last two elements are jurisdictional and must be analyzed before the court may even consider the first element. See id.; Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648-49 (Fla. 2d DCA 1995). In the instant case, we concern ourselves with the first element — whether the trial court departed from the essential requirements of the law.

Once the district court has granted the petition for writ of certiorari, it must determine whether the first element has been established. We have explained:

[T]he phrase “departure from the essential requirements of law” should not be narrowly construed so as to apply only to violations which effectively deny appellate review or which pertain to the regularity of procedure. In granting writs of common-law certiorari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error. Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law, the district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of clearly established principle of law resulting in a miscarriage of justice.
It is this discretion which is the essential distinction between review by appeal and review by common-law certiorari. A district court may refuse to grant a petition for common-law certiorari even though there may have been a departure from the essential requirements of law. The district courts should use this discretion cautiously so as to avert the possibility of common-law certiorari being used as a vehicle to obtain a second appeal.

Haines, 658 So.2d at 527 (emphasis omitted) (quoting Combs v. State, 486 So.2d 98, 95-96 (Fla.1983)). Certiorari review is “intended to fill the interstices between direct appeal and the other prerogative writs” and allow a court to reach down and halt a miscarriage of justice where no other remedy exists; it “was never intended to redress mere legal error.” Broward Cnty. v. G.B.V. Int’l, Ltd., 787 So.2d 838, 842 (Fla.2001). This Court has cautioned that “cer-tiorari review is appropriate to determine whether a court has conducted the eviden-tiary inquiry required by section 768.72, Florida Statutes, but not so broad as to encompass review of the sufficiency of the evidence considered in that inquiry.” Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla.1995).

In the instant case, the First District categorized their inquiry as a “review [of] the trial court’s legal determination concerning the sufficiency of the corroborating affidavit.” Oken, 23 So.3d at 145. The First District attempted to justify this action by stating that the corroborating affidavit “goes to the very core of the presuit notice requirement in medical malpractice actions.” Id. However, Florida courts have created an exception to the general rule — that certiorari review is inappropriate to review the denial of a motion to dismiss — and permit certiorari review when the presuit requirements of a medical malpractice statute are at issue. See, e.g., Martin Mem’l Med. Ctr., Inc. v. Herber, 984 So.2d 661, 662 (Fla. 4th DCA 2008); Lakeland Reg’l Med. Ctr. v. Allen, 944 So.2d 541, 543 (Fla. 2d DCA 2006). The certiorari exception for the chapter 766 presuit requirements is premised on the purpose of the Medical Malpractice Reform Act — to avoid meritless claims and to encourage settlement for meritorious claims.

Here, the First District classified the trial court’s denial of Oken’s motion to dismiss as “[a] non-final order for which no appeal is provided by Rule 9.130.” Oken, 23 So.3d at 143 (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla. 1987)). Florida Rule of Appellate Procedure 9.130 governs the review of nonfinal orders by district courts and limits such review to those specified in the rule. See Reeves, 889 So.2d at 819. Orders denying a motion to dismiss, such as in the instant case, are not enumerated in rule 9.130. It is generally inappropriate to review a trial court’s denial of a motion to dismiss. See Martin-Johnson, 509 So.2d at 1099, superseded by statute on other grounds, § 768.72, Fla. Stat. (1989). We have explained, “[I]t is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that since the most urgent interlocutory orders are appealable under this rule, there will be very few cases where common law certiorari will provide relief.” Martin-Johnson, 509 So.2d at 1098-99 (quoting Fla. R.App. P. 9.130 committee note (1977)). As a result, we must determine whether the circumstances in Oleen render it one of the rare cases contemplated by Martin-Johnson in which certiorari review is appropriate.

This Court has limited certiorari as a matter of policy to avoid piecemeal review of pretrial orders. See Jaye v. Royal Saxon, Inc., 720 So.2d 214 (Fla.1998) (holding that certiorari is inappropriate to review an order striking demand for a jury trial). However, in numerous cases, Florida courts have permitted certiorari review to determine whether the defendant was afforded the proper process through procedural compliance with the statutory requirements. See, e.g., Globe, 658 So.2d at 520 (holding that appellate courts have certiorari jurisdiction to review whether circuit court has conformed with procedural requirements of statute governing pleading of punitive damages, but not to review a circuit court’s decision to grant or deny leave to amend complaint to include punitive damages once procedural requirements have been met); Tenet S. Fla. Health Sys. v. Jackson, 991 So.2d 396, 399 (Fla. 3d DCA 2008) (granting certiorari where trial court incorrectly found that presuit notice under section 766.106(2), Florida Statutes (2007), was not required); Martin Mem’l, 984 So.2d at 662 (granting certiorari where trial court failed to determine whether plaintiff conducted good faith investigation or whether there was reasonable basis for claim); Corbo v. Garcia, 949 So.2d 366, 368 (Fla. 2d DCA 2007) (granting certiorari where nonfinal order erroneously allowed plaintiff to proceed with action without complying with medical malpractice presuit requirements); Central Fla. Reg’l Hosp. v. Hill, 721 So.2d 404, 405 (Fla. 5th DCA 1998) (granting certio-rari where plaintiff was permitted to proceed with medical malpractice suit without filing corroborating expert opinion).

The Fourth District’s decision in St. Mary’s, which serves as the basis for this Court’s discretionary review, got it right. In St. Mary’s, the personal representative of the deceased’s estate filed with St. Mary’s Hospital a notice of intent to initiate litigation, pursuant to section 766.102(2), alleging failure to properly deliver medical care to the decedent. St. Mary’s, 785 So.2d at 1261. Attached to the notice was an affidavit from the decedent’s primary care physician, confirming that the mother of the decedent took the decedent to St. Mary’s emergency room several days prior to his death. Id. However, St. Mary’s filed a motion to dismiss, alleging that the plaintiff had failed to comply with the statutory presuit requirements by failing to make a reasonable presuit investigation, because the plaintiff failed to provide any documentation that the decedent had actually been treated at St. Mary’s. Id. at 1261-62. At an eviden-tiary hearing, a witness for St. Mary’s testified that the lack of records indicated the decedent had not been treated at St. Mary’s. Id. at 1262. However, the trial court denied St. Mary’s motion to dismiss. Id.

St. Mary’s petitioned the Fourth District for a writ of certiorari. The Fourth District dismissed the petition, explaining that “certiorari was unavailable to review the sufficiency of the evidence to allow a claim for punitive damages under section 768.72, Florida Statutes (2000).” St. Mary’s, 785 So.2d at 1262 (citing Ortega v. Silva, 712 So.2d 1148, 1149 (Fla. 4th DCA 1998)). In so holding, the Fourth District reasoned that “certiorari does not lie for appellate courts to reweigh the evidence presented concerning compliance with the presuit statutory requirements.” Id.

Both Williams and Dr. Oken cite to this Court’s decision in Globe to support their respective positions regarding the First District’s grant of Dr. Oken’s petition for writ of certiorari. Globe was a certified conflict case involving punitive damages. 658 So.2d at 519. In that case, the trial court permitted the plaintiff to amend his complaint to include punitive damages. Id. The trial court conducted an evidentiary hearing and found that the proffered evidence established a reasonable basis for a punitive damages claim and issued an order granting the plaintiffs motion to amend. Id. The district court denied Globe’s petition for writ of certiora-ri and certified conflict with the decisions of other districts. Id. at 520. On review, this Court approved the district court’s denial of the petition for writ of certiorari and noted that Globe’s allegations of harm — that Globe’s substantive right to be free from punitive damage litigation based on insufficient evidence — did not rise to the level of material harm that would permit certiorari review. Id. at 519-20. There, we concluded that appellate courts have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section 768.72, but do not have certiorari jurisdiction to review a decision of a trial judge granting leave to amend a complaint to include a claim for punitive damages when the trial judge has followed the procedural requirements of section 768.72. Globe, 658 So.2d at 519. We further concluded that certiorari is not available to review a determination that there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. Id. A review of Globe supports Williams’ arguments and demonstrates three things: (1) that a defendant cannot demonstrate material harm required for certiorari review concerning whether a punitive damages claim is viable, or by analogy, an expert is qualified, because those things do not deprive the defendant of the statutorily guaranteed process, (2) utilizing certiorari to review the trial court’s findings regarding whether a claim for punitive damages exists, or, by analogy, whether an expert is qualified amounts to reviewing the sufficiency of the evidence, and (3) that granting a petition for writ of certiorari to review the sufficiency of the evidence is inappropriate. Id. at 519-20.

The First District’s decision in Abbey v. Patrick, 16 So.3d 1051 (Fla. 1st DCA 2009), was issued approximately one week prior to its decision in Oken. However, Abbey is consistent with St. Mary’s and inconsistent with Oken. In Abbey, Gertrude Patrick, a patient, filed a medical negligence claim against Dr. Abbey, alleging that her recent blindness was caused by Dr. Abbey’s negligence in treating her eye disorder. Abbey, 16 So.3d at 1052. There, Patrick filed a notice of intent to initiate litigation on July 28, 2006. Id. Dr. Abbey received the notice “on August 2, 2006, thirty-seven days before the statute of limitations would have expired.” Id. Pursuant to section 766.106(4), Florida Statutes (2006), filing the notice had the effect of tolling the statute of limitations for a period of ninety days. Id. at 1052-53. The trial court concluded that Patrick was entitled to the remaining thirty-seven days and that the additional ninety days would be added at the expiration of that time — in other words, giving Patrick one-hundred and twenty-seven days to initiate litigation. Id. at 1053. After the thirty-seven days passed, Dr. Abbey moved for summary judgment, which the trial court denied. Dr. Abbey then petitioned the First District for a writ of certiorari, arguing that his motion should have been granted because “the statute of limitations expired before the plaintiff filed suit against him for medical negligence.” Id. If Dr. Abbey were correct that the tolled time should have been concurrent, as opposed to consecutive, then the trial court would have erred in denying his motion because the statute of limitations would have lapsed and Patrick’s claim would have been time-barred. The First District concluded that the alleged error in computing the time for filing a lawsuit did not deprive Dr. Abbey of his rights under the medical malpractice presuit screening requirements and thus, the order denying Dr. Abbey’s motion did not meet the requirements for certiorari relief. See id. at 1055-56. In reaching its decision, the First District relied on this Court’s decision in Globe and the Fourth District’s decision in St. Mary’s. The First District explained, “The trial judge afforded him the process he was due under the medical malpractice presuit screening statute. He had advance notice and an opportunity to evaluate the plaintiffs claim before the filing of the lawsuit.... ” Id. at 1055. The district court concluded that because there was no error that deprived him of the process, Dr. Abbey was “not in a position to argue that immediate review [wa]s necessary to protect his statutory right to the process.” Id.

Under this line of cases, the First District exceeded its authority in granting the writ of certiorari to review the sufficiency of Dr. Foster’s qualifications under chapter 766. Instead of granting Dr. Oken’s petition for writ of certiorari, the First District should have dismissed the petition because Williams complied with the procedural statutory requirements — the filing of the initial and supplemental affidavits and the CV. Dr. Oken was afforded the process guaranteed by statute because he received advance notice and an opportunity to examine Williams’ claim before the filing of the lawsuit. Thus, a deprivation of the process did not occur. Under these cases, certiorari would be inappropriate because the

justification for issuing a writ of certio-rari is diminished greatly if the parties have been afforded the essential process guaranteed by law and the judge has merely made a mistake in an order or ruling entered in the course of the proceeding. In that event, the relief afforded by an appeal from the final judgment will be adequate, and certiorari will not lie even if the error is one that amounts to a departure from the essential requirements of the law.

Abbey, 16 So.3d at 1055. We adopt this rationale. Whether the trial court erred in finding that Dr. Foster was a qualified expert under the statute is an issue of mere legal error that is insufficient to merit certiorari review. Here, as in Abbey, the trial judge’s ruling does not amount to a violation of a clearly established principle of law resulting in a miscarriage of justice.

Conclusion

While ensuring that an expert meets the statutory presuit requirements is clearly an important consideration in medical malpractice cases, in the instant case, the First District exceeded its authority by granting certiorari to review whether Williams’ expert met those qualifications. Florida courts have permitted certiorari review solely to ensure that the procedural aspects of the presuit requirements are met. The First District would have been correct in granting certiorari review to determine whether Williams complied with the procedural presuit requirements in terms of submitting a corroborating affidavit. However, we conclude that the First District exceeded the scope of certiorari review when it granted the petition to determine whether Dr. Foster was a qualified expert. As articulated in the dissent, the First District should have instead dismissed the petition and remanded the case to the trial court for an evidentiary hearing on whether Dr. Foster was qualified as an expert because it appears that “there is no doubt that Appellee complied with the presuit requirements of chapter 766; not one step was omitted.” Oken, 23 So.3d at 151 (Browning, J., dissenting).

Accordingly, we quash the First District’s decision in Oken, and approve the Fourth District’s decision in St. Mary’s. Because we find that the First District’s grant of certiorari was inappropriate, we decline to address the remaining issues.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . Florida Rule of Civil Procedure 1.650 creates presuit screening rules for medical malpractice claims. The statutory presuit screening provisions were intended by the legislature to facilitate the expedient, and preferably amicable, Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla.1991), resolution of medical malpractice claims. See Univ. of Miami v. Wilson, 948 So.2d 774, 777 (Fla. 3d DCA 2006); Wilkinson v. Golden, 630 So.2d 1238, 1239 (Fla. 2d DCA 1994). The legislative purpose is described at length in the statutes. See § 766.201, Fla. Stat. (2005). Perhaps the greatest impact of this rule is the establishment of a ''presuit investigation phase,” through a notice procedure. The rule anticipates that during the presuit investigation phase, the defendant will investigate the medical malpractice claims to determine the extent of liability, if any. See Michael v. Med.. Staffing Network, Inc., 947 So.2d 614, 618 (Fla. 3d DCA 2007). This process is intended to sort out meritless claims and encourage the resolution of meritorious claims through settlement. Univ. of Miami, 948 So.2d at 111. Ultimately, the process is intended to alleviate the associated costs with such litigation. See Weinstock v. Groth, 629 So.2d 835, 838 (Fla.1993).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Jussi Kustaa KIVISTO, Respondent.
    No. SC07-2281.
    Supreme Court of Florida.
    May 12, 2011.

      John F. Harkness, Jr., Executive Director, and Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Michael David Soifer, Bar Counsel, The Florida Bar, Sunrise, FL, for Complainant.
    Jussi Kustaa Kivisto, pro se, Lake Worth, FL, for Respondent.
   PER CURIAM.

Jussi Kustaa Kivisto was the subject of a Florida Bar disciplinary proceeding. On March 17, 2009, Kivisto filed a petition for review of a referee’s report that recommended he be disbarred. During the course of the proceedings, Kivisto filed numerous motions and writ petitions. In fact, in this matter, Kivisto submitted over 120 filings with this Court, the bulk of which were repetitive and meritless. In addition, despite the fact that it was Kivis-to who sought review of the referee’s report and recommendation, he failed to timely file an initial brief on the merits. On May 20, 2010, the Court issued an order specifically informing Kivisto that no further extensions of time would be granted for him to file an initial brief on the merits and ordering him to file his initial brief on the merits within thirty-five days or his petition for review could be subject to dismissal. See Fla. Bar v. Kivisto, No. SC07-2281, 2010 WL 2026695 (Fla. May 20, 2010); see also Fla. R.App. P. 9.410 (Sanctions). Despite this clear warning, Kivisto failed to heed the Court’s direction, and never filed a timely initial brief on the merits. Instead, he continued filing motions to toll, motions to stay, an amended motion to stay, requests for oral argument, unauthorized requests, and other pleadings, in an attempt to delay the progress of his disciplinary case. The volume of repetitive and meritless filings, coupled with Kivisto’s failure to proceed with his case by filing his initial brief, is an abuse of the Court’s limited resources.

Because of his repetitive and meritless filings, on July 9, 2010, this Court ordered Kivisto to show cause why the Court should not direct the Clerk of the Court to “reject for filing any future pleadings, petitions, motions, letters, documents, or other filings” submitted by him to the Court unless signed by a member of The Florida Bar other than Kivisto. See Fla. Bar v. Kivisto, No. SC07-2281 (Fla. July 9, 2010). In his response to the order, Kivisto continued to present arguments regarding the disciplinary case, which should have been included in a timely filed initial brief. Further, Kivisto challenged the Court’s denials of his previous filings. Kivisto has failed to show good cause why sanctions should not be imposed for his numerous repetitive filings. We now sanction him.

Both this Court and the United States Supreme Court have, when deemed necessary, exercised the inherent judicial authority to sanction an abusive litigant. See, e.g., Martin v. D.C. Court of Appeals, 506 U.S. 1, 113 S.Ct. 397, 121 L.Ed.2d 305 (1992); In re Sindram, 498 U.S. 177, 111 S.Ct. 596, 112 L.Ed.2d 599 (1991); In re McDonald, 489 U.S. 180, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989); Fla. Bd. of Bar Exam’rs re Ramos, 17 So.3d 268 (Fla. 2009); Fla. Bar v. Thompson, 979 So.2d 917 (Fla.2008); Hamilton v. State, 945 So.2d 1121 (Fla.2006); May v. Barthet, 934 So.2d 1184 (Fla.2006); Sibley v. Fla. Judicial Qualifications Comm’n, 973 So.2d 425 (Fla.2006). The need for such a sanction lies in the protection of the rights of others to timely review of their legitimate filings. See Martin, 506 U.S. at 3, 113 S.Ct. 397 (imposing sanction where petitioner’s filings for certiorari review had a deleterious effect on the Court’s fair allocation of judicial resources); Sibley, 973 So.2d at 426. The resources of our court system are finite and must be reserved for the resolution of genuine disputes. See Peterson v. State, 817 So.2d 838, 840 (Fla.2002). As noted by the United States Supreme Court, “Every paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.” In re McDonald, 489 U.S. at 184, 109 S.Ct. 993.

After considering Kivisto’s response to the order to show cause, we conclude that he has abused this Court’s processes by filing a multitude of petitions and motions that repeatedly present the same unwarranted arguments. Kivisto’s actions create a drain on the Court’s limited time, for with each filing the Court must review and consider his repetitious and meritless arguments. Therefore, we conclude. that a limitation on Kivisto’s ability to file in this Court would further the constitutional right of access because it would permit the Court to devote its finite resources to the consideration of legitimate claims filed by others.

Accordingly, in order to preserve the right of access for all litigants and promote the interests of justice, the Clerk of this Court is hereby instructed to reject for filing any future pleadings, petitions, motions, letters, notices, or other filings submitted by Jussi Kustaa Kivisto that challenge the disciplinary proceedings considered by this Court in Florida Bar v. Ki- visto, 49 So.3d 747 (Fla.2010), or are related to his potential readmission to The Florida Bar, unless the filings are signed by a member in good standing of The Florida Bar.

Under the sanction herein imposed, Ki-visto is not being denied access to the courts; that access is simply being limited due to his abusiveness. Kivisto remains eligible to seek readmission to The Florida Bar, once he has completed the five year period of disbarment, with the requirement that the filings are signed by a member in good standing of The Florida Bar. However, we cannot tolerate Kivisto’s continued inability to abide by the legal processes of the judicial system. If Kivisto submits a filing in violation of this order, he may be subjected to contempt proceedings or other appropriate sanctions, including permanent disbarment. See R. Regulating Fla. Bar 3 — 5.1(f) (“Permanent disbarment shall preclude readmission.”)

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 15, Fla. Const.

      . In the disciplinary case, the Court approved the report of referee and disbarred Kivisto. See Fla. Bar v. Kivisto, 49 So.3d 747 (Fla.2010).

      . Kivisto’s filings include four petitions for all writs, six petitions for writs of prohibition, a petition for writ of mandamus, as well as filings vaguely titled "emergency petition for writ.” He has repeatedly filed amended versions of the writ petitions. Further, Kivisto has submitted unauthorized filings and filed at least five motions for rehearing regarding the writ petitions and other motions. These filings have not resulted in relief for Kivisto.


text:
    William MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-976.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    Rehearing Denied June 10, 2011.
    William Miller, Wewahitchka, pro se.
    No appearance for Respondent.
   PER CURIAM.

William Miller petitions for certiorari review of the denial of a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We treat the petition for certiorari as an appeal, see Florida Rule of Appellate Procedure 9.040(c), and affirm.

AFFIRMED.

PALMER, LAWSON and COHEN, JJ„ concur.


text:
    Troy GILBERT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1704.
    District Court of Appeal of Florida, First District.
    May 12, 2011.
    Troy Gilbert, 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.

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


author: SCHWARTZ, Senior Judge.

text:
    Jorge M. GIRON, Petitioner, v. AMERICAS MARINE MANAGEMENT SERVICES, INC. and Sara Express, Respondents.
    No. 3D11-557.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Brill Rinaldi Garcia and David W. Brill, Pembroke Pines; Philip D. Parrish; Julio J. Ayala, Jr., for petitioner.
    Horr Novak & Skipp and David J. Horr and Stephanie H. Wylie, Miami, for respondents.

      Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

In this action for, inter alia, maintenance and cure, certiorari is granted and the order below, which authorized a medical examination of the plaintiff seaman outside the scope of the discovery rules, is quashed. See Bloom v. Weeks Marine, Inc., 227 F.Supp.2d 1273 (M.D.Fla.2002); see also Royal Caribbean Cruises, Ltd. v. Cox, 974 So.2d 462 (Fla. 3d DCA 2008); Vega v. CSCS Int’l, N.V., 795 So.2d 164 (Fla. 3d DCA 2001). While the defendant shipowner is free to proceed under Rule 1.360, Florida Rules of Civil Procedure, it is confined to that relief.

The other point raised by petitioner is not ripe for review.


text:
    Gina URSI, Appellant, v. Steve URSI, Appellee.
    Nos. 3B10-431, 3D10-751.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Rehearing Denied June 29, 2011.
    Barry S. Franklin, Aventura, for appellant.
    Tracy Belinda Newmark, for appellee.
    Before GERSTEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


author: BENTON, C.J.

text:
    Michele Jeanne DEWOLFE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5187.
    District Court of Appeal of Florida, First District.
    May 23, 2011.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

On direct appeal from her conviction and sentence for felony petit theft, Michele DeWolfe contends that the trial court erred in keeping from the jury testimony of two witnesses that they had heard one Bruce Ahlgren confess to the crime of which Ms. DeWolfe has now been convicted. Persuaded that testimony recounting Mr. Ahlgren’s declaration against penal interest should have been allowed in evidence, we reverse and remand for a new trial.

Ms. DeWolfe was found guilty of the June 29, 2007 theft of two air conditioners that were taken from a house she had recently vacated. A former neighbor, Terry Manley, testified that she spotted Ms. DeWolfe and an older man removing the air conditioners and placing them in a small pickup truck a day or two after Ms. DeWolfe moved out.

The defense sought to put on the testimony of Donald Gibson (Mr. Ahlgren’s friend of 25 years) and Maegen DeWolfe (the defendant’s daughter), that Mr. Ahl-gren had confessed to stealing the air conditioners from the empty house. Conceding the confession was hearsay, appellant relies, here as below, on section 90.804(2)(c), the declaration-against-penal-interest exception to the rule excluding hearsay:

(2) The following are not excluded under s. 90.802, provided that the declar-ant is unavailable as a witness:
(c) Statement against interest. A statement which, at the time of its making, was so far contrary to the declarant’s • pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

§ 90.804(2)(c), Fla. Stat. (2010). Mr. Ahl-gren’s unavailability was not at issue: He had died by the time of trial. His confession to theft was, moreover, plainly against his penal interest. But the trial court ruled the hearsay statements did not meet the criteria of section 90.804(2)(c), in that corroborating circumstances did not show the statements to be trustworthy.

It is for the jury, not the judge, to decide whether a declaration against penal interest should be credited. The trial judge exercises only a gatekeeping function, by deciding whether corroborating circumstances show the declaration’s “trustworthiness.” “In determining what constitutes ... a showing [of particularized guarantees of trustworthiness], ... the relevant circumstances only include those that surround the making of the statement and those that render the declarant worthy of belief.” Franqui v. State, 699 So.2d 1312, 1318-19 (Fla.1997) (citing Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)).

In making the decision whether to admit evidence of a declaration against penal interest, the trial judge should consider “the language used and the setting in which the statement was made,” and decide whether the statement is “consistent with both the defendant’s general version of events and the other evidence presented at trial.” Masaka v. State, 4 So.3d 1274, 1282 (Fla. 2d DCA 2009) (citing Carpenter v. State, 785 So.2d 1182, 1203 (Fla.2001); Machado v. State, 787 So.2d 112, 113 (Fla. 4th DCA 2001)). Ms. DeWolfe, who acknowledged that, after she had been evicted, she had help moving her personal property from the home she had rented, testified that the air conditioners were still there when she left the house. She denied returning to the house after moving out. She also testified that the front door was broken (and that when she lived there she had kept a couch against it to keep it closed), that cardboard covered a portion of the back door where glass was missing, and that keys were not necessary in order to get into the house.

Mr. Gibson testified on proffer that Mr. Ahlgren admitted to the theft of the air conditioners, and that Maegen DeWolfe, the defendant’s daughter, was present when Mr. Ahlgren confessed and apologized. Maegen testified that Mr. Ahlgren said that he and an accomplice named Patrick had taken the air conditioners from the house which Ms. DeWolfe had lived in until shortly before the theft occurred. She testified that Mr. Ahlgren admitted he took the air conditioners a night or two after Ms. DeWolfe had moved out of the house.

Mr. Gibson testified on proffer that, in early 2009, before he met Ms. DeWolfe, Mr. Ahlgren described getting extra money by taking appliances from empty dwellings and removing and selling the copper. During this conversation, Mr. Gibson reported, Mr. Ahlgren specifically mentioned removing an appliance from a house where “Michele who worked at Shoreline” was living and stated entry was simple because there was cardboard on the back window.

Separately, Maegen testified on deposition that a few weeks earlier, before he went to the nursing home, Mr. Ahlgren was at Ms. DeWolfe’s home, and bragged about stealing appliances in order to remove and sell copper. Maegen testified further that, while she was visiting the nursing home, Mr. Ahlgren told her he and somebody named Patrick returned to the rental house a night or two after Ms. DeWolfe moved out, took the air conditioners, and removed and sold copper to obtain money for drugs. Maegen testified that Mr. Ahlgren stated that Ms. DeWolfe had nothing to do with the theft and that he was sorry she had been arrested for a crime he had committed.

As Ms. DeWolfe’s daughter, Mae-gen DeWolfe presumably had an interest in the outcome of the trial. “Under Florida law, however, the credibility of an in-court witness who is testifying with regard to an out-of-court declaration against penal interest is not a matter that the trial court should consider in determining whether to admit the testimony concerning the out-of-court statement. Instead, it is the jury’s duty to assess the credibility of the in-court witness who is testifying about the out-of-court statement.” Carpenter, 785 So.2d at 1203 (citations omitted). But see Bearden v. State, 62 So.Sd 656, 664 (Fla. 2d DCA 2011) (stating “an evaluation of the credibility of the witness the defense proposes to use to place the alleged statements on the record is unavoidable”).

Under the cases, the issue is whether Mr. Ahlgren’s statements were sufficiently corroborated. “Once that admissibility threshold was met, the credibility of [Mr. Ahlgren’s] statements and [Ms. DeWolfe’s] defense was for the jury, not the trial court, to assess.” Masaka, 4 So.3d at 1283. Mr. Ahlgren’s confession at the nursing home was consistent with prior statements he made to Maegen DeWolfe at Ms. DeWolfe’s home. See Machado, 787 So.2d at 113-14 (holding the trial court properly admitted a hearsay account of statements made to a friend’s son, where the declarant had no reason to fear capture at the time). See also Chambers v. Mississippi, 410 U.S. 284, 300, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (concluding that the fact that a confession was made spontaneously to a close acquaintance provided assurance of reliability, and that the “sheer number of independent confessions provided additional corroboration”).

Mr. Ahlgren’s confession at the nursing home was consistent with a prior admission to Mr. Gibson in which Mr. Ahlgren had described an area of missing glass being covered by cardboard which made entry easy at a home rented by Michele. This was consistent, moreover, with the trial testimony of Ms. DeWolfe describing the condition of the rental home.

“As a general rule, a trial court’s ruling on the admissibility of evidence will not be reversed, absent an abuse of discretion. However, a court’s discretion is limited by the evidence code and applicable case law. A court’s erroneous interpretation of these authorities is subject to de novo review.” McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006) (citations omitted). See also Lilly v. Virginia, 527 U.S. 116, 136, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (“Nothing in our prior opinions, however, suggests that appellate courts should defer to lower courts’ determinations regarding whether a hearsay statement has particularized guarantees of trustworthiness. To the contrary, those opinions indicate that we have assumed, as with other fact-intensive, mixed questions of constitutional law, that ‘[¡Independent review is ... necessary ... to maintain control of, and to clarify, the legal principles’ governing the factual circumstances necessary to satisfy the protections of the Bill of Rights.” (quoting Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996))).

The issue in the present case is whether Ms. DeWolfe was present when the air conditioners were taken — the state offered no other evidence of involvement on her part — or whether, as Mr. Ahlgren reportedly said, he and Patrick took the machines without her knowledge. The declaration against penal interest was “consistent with both the defendant’s general version of events and [much of] the other evidence presented at trial.” Masajea, 4 So.Sd at 1282 (citing Carpenter, 785 So.2d at 1208). Only the neighbor’s testimony was to the contrary. In deciding whether the neighbor saw what she said she saw or instead mistook what was happening when Ms. DeWolfe and her friend moved her things out, the jury should have been allowed to consider the testimony concerning Mr. Ahlgren’s declaration, and decide whether to give credence to the statements against penal interest the witnesses recounted.

The excluded evidence was central to Ms. DeWolfe’s defense. “Under Florida’s harmless error analysis, the reviewing court must determine ‘whether there is a reasonable possibility that the error affected the verdict.’ State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). The State, as the beneficiary of the error, has the burden to show that the error was harmless. Id. ‘If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.’ Id.” State v. Contreras, 979 So.2d 896, 911 (Fla.2008). The state does not even argue that any error in excluding the evidence would be harmless. But see Goodwin v. State, 751 So.2d 537, 545 (Fla.1999) (“The solemn obligation of the Court to perform an independent harmless error review and establish the analysis to be applied in performing that review is so critical to the appellate function that this Court has satisfied its obligation to review for harmless error, even when the State has not argued that the complained of error was harmless.” (citing Heuss v. State, 687 So.2d 823 (Fla.1996))). It cannot be said beyond a reasonable doubt that the excluded testimony could not have produced reasonable doubt in the minds of the jurors and so have led to acquittal.

Reversed and remanded for a new trial.

WEBSTER and VAN NORTWICK, JJ., concur.

      . The declarant in the present case was far from anonymous. He was known by multiple witnesses, and had been personal friends with one of the proffered witnesses for a quarter of a century.

      . Mr. Gibson testified on proffer in response to questions from counsel and the court:
      A. Yes, sir. What he told me was — we was at the [Oar] house drinking one night, you know, taking a break from the cabs, and he told me that a girl that worked at Shoreline named Michele — I didn’t know her name — that Michele, he had went by there and supplemented his income because he didn’t have enough money to pay for his cab that day because we had been drinking.
      Q. What was the circumstances of that particular conversation?
      A. Well, he told me that — you know, he plays harmonica and he plays music. We had had a couple of pitchers of beer. He told me there was cardboard on the back window. He said it’s like walking through the back door.
      Q. My question is, how did that conversation come up at that point?
      A. I asked him where he was getting his money from.
      Q. Where he's getting—
      A. Where he’s getting his extra money. Because and I drove a cab too and I was having to hustle. He always had a little extra money. He told me at that point that he would go around and scope out empty dwellings. And if it seemed like an easy target, he would pick it out, you know, and get some help and go get it.

      Q. Okay. So he talked about generally going to houses. Did he mention a specific house?
      A. No, no, he didn’t. But he told me — he told me that the girl that worked at Shoreline named Michele, and that’s how I found out. And then later on he introduced me to Michele, which she’s a very nice lady.
      Q. So he said that — did he say when he had stolen this unit?
      A. No, he didn’t tell me when. I don’t even know where the house is at.
      Q. And he just specifically said, I stole a unit from a house that somebody who worked at Shoreline lived in?
      A. He said appliance. He didn’t say no unit or nothing. He just said he was taking appliances.
      Q. And so he was talking generally about all of the things that he did, stealing. Did he mention any other incidences specifically?
      A. Well, no. He just told me — he drove a cab, okay, so he knew where all the empty houses was.

      THE COURT: And did he tell you that he was just stealing air conditioners at random because the houses were vacant?
      THE WITNESS: Yes, sir. Because I was wondering where he was getting his extra money.
      THE COURT: What did he say he was doing with the appliances?
      THE WITNESS: He was tearing them apart and selling them.
      THE COURT: Selling what?
      THE WITNESS: Selling the copper and then selling the junk.

      . The trial court asked how Mr. Gibson knew Mr. Ahlgren was talking about the air conditioners at issue in this case as opposed to other crimes he was committing:

        THE COURT: Okay. And how do you know, sir, that he was talking about this incident in this theft as opposed to other crimes he was committing?
      THE WITNESS: Because she’s the only Michele that worked at Shoreline.
      THE COURT: You know that, right? You got their payroll down there?
      THE WITNESS: No, sir; my cousin worked there.

      . On the other hand, Mr. Gibson did not even meet Ms. DeWolfe until almost two years after the air conditioners disappeared.

      . Ms. DeWolfe's testimony that she did not get along with Ms. Manley suggested that Ms. Manley might be quick to jump to unflattering conclusions about her.
      Q. How did you get along with Ms. Manley?
      A. Me — we never got along very well. We had some differences in religion. She thought I should go to church more often. I was having trouble with my fifteen-year-old daughter. She was running wild, and I was, you know, trying to take care of her and still have that situation. Terry and I had differences — some serious differences on what I should do and what I shouldn't do. She thought I should call the police on my daughter, and I didn't think that was the right way to handle it.
      Ms. Manley acknowledged that she went to Ms. DeWolfe’s house and prayed with her and talked to her about her life-style and things of that nature.


author: THOMAS, J.

text:
    Earl GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1211.
    District Court of Appeal of Florida, First District.
    May 23, 2011.
    Earl Green, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

The appellant appeals the denial of his motion to correct illegal sentence in which he seeks additional credit for time spent in jail prior to sentencing. For the reasons discussed below, we affirm.

The appellant entered a plea of guilty to battery on a person over 65 years of age, burglary of a structure and petit theft. As part of the plea, he also admitted violating his probation imposed in another case. His written plea agreement called for him to receive a sentence of twenty-four months’ imprisonment with credit for “133 days + 48 days on [the] VOP case.” The appellant then filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) alleging an entitlement to more credit than stipulated in his plea agreement.

By entering a negotiated plea which called for a specific number of days to be awarded as credit, the appellant waived any claim that he was entitled to more credit than called for in that plea. See Hagan v. State, 25 So.3d 639, 640 (Fla. 1st DCA 2009) (“The inclusion of specific language indicating the specific date from which the defendant’s credit for time served would count towards his current sentence is sufficient to demonstrate he knowingly and voluntarily waived his right to have any credit he may have accrued prior to that date count towards his current sentence.”). Moreover, a facially sufficient rule 3.800(a) motion for jail credit must: (1) provide the dates for which he is seeking credit, (2) provide the date of his sentence, and (3) allege where in the record it can be shown that he is entitled to relief. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994); State v. Mancino, 714 So.2d 429, 433 (Fla.1998). Here, the appellant does not specifically allege where in the record (or how) it can be shown that he is entitled to relief. He merely asserts that his entitlement is clear from some unidentified records “located at the Bradford County Court House.” Finally, the Florida Supreme Court held recently in Johnson v. State, 60 So.3d 1045 (Fla.2011), that when a defendant enters into a plea agreement which specifies the number of days of credit to be awarded, a challenge to the “credit-for-time served provision” of the plea is not cognizable in a rule 3.800(a) motion.

Accordingly, we AFFIRM the denial of the appellant’s motion to correct illegal sentence.

HAWKES and ROBERTS, JJ., concur.


author: WELLS, Judge.

text:
    Jose Luis MAYNOLDI and Olga Maynoldi, individually and as legal guardians of Gabriel Maynoldi, Appellants, v. ARCHBISHOP COLEMAN F. CARROLL HIGH SCHOOL, INC., a nonprofit Florida corporation, and Archdiocese of Miami, Inc., a nonprofit Florida corporation, et al., Appellees.
    No. 3D08-3117.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.
    Rehearing Denied July 5, 2011.
    Deehl & Carlson, David L. Deehl and Michele K. Feinzig, Coral Gables, for appellants/cross-appellees.
    Gaebe, Mullen, Antonelli & Dimatteo, Michael A. Mullen, Coral Gables, and Anne C. Sullivan; Carlton Fields, Wendy F. Lumish, Alina Alonso and David L. Luck, Miami, for appellees/cross-appellants.
    Before RAMIREZ, C.J., and WELLS and CORTINAS, JJ.
   WELLS, Judge.

Jose Luis Maynoldi and Olga Maynoldi, individually and as legal guardians of Gabriel Maynoldi, appeal from an order denying their motion for attorneys’ fees and costs under Florida Rule of Civil Procedure 1.380(c) based on Archbishop Coleman F. Carroll High School, Inc. and Archdiocese of Miami, Inc.’s denial of certain requests for admission. While, under appropriate circumstances, a party requesting admissions is entitled to the reasonable expenses incurred in proving the truth of a denied request for admission— even where, as here, final judgment was entered in the opposing party’s favor on the underlying complaint — we find no abuse of discretion in the trial court’s determination that there is no basis for awarding Rule 1.380(c) expenses in this case. See Fla. R. Civ. P. 1.380(c) (“The court shall issue such an order at the time a party requesting the admissions proves the genuineness of the document or the truth of the matter, upon motion by the requesting party, unless it finds that ... (3) there was other good reason for the failure to admit.”); Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 768 So.2d 1107, 1113 (Fla. 3d DCA 2000) (recognizing that the trial court has the discretion to deny Rule 1.380(c) expenses where it finds that one of the exceptions contained within the rule applies, and holding that the expenses incurred “as a result of the opposing party’s failure to admit requests for admissions may not be assessed against the opposing party for denying a request to admit a hotly contested, central issue to the case”). We also note that, even where Rule 1.380(c) expenses must be awarded, “an award of attorney’s fees as a part of those expenses is discretionary.” Chadwick v. Corbin, 476 So.2d 1366, 1368 (Fla. 1st DCA 1985); see also Shaw v. State ex rel. Butterworth, 616 So.2d 1094, 1096 (Fla. 4th DCA 1993) (finding that an assessment of attorney’s fees is not mandatory under Rule 1.380(c)).

Accordingly, the order on appeal is, in all respects, affirmed.


text:
    Bobby James BRUCE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-750.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.
    Rehearing Denied June 23, 2011.
    Bobby James Bruce, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Ey v. State, 982 So.2d 618, 624 (Fla.2008).


text:
    Jean Moses BAPTISTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3034.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.
    Rehearing Denied June 23, 2011.

      Alberto A. Cayetano, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and SALTER, JJ, and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA2011).


author: WALLACE, Judge.

text:
    Katarzyna MORIGGIA, Appellant, v. Oscar S. MORIGGIA, Appellee.
    No. 2D10-3594.
    District Court of Appeal of Florida, Second District.
    May 27, 2011.
    Lisa P. Kirby of Kirby & Cavanaugh, P.A., Naples, for Appellant.
    No appearance for Appellee.
   WALLACE, Judge.

Katarzyna Moriggia challenges a final judgment of injunction for protection against domestic violence with minor children after notice in favor of Oscar S. Mor-iggia. Because there was no evidence that the petitioner was either the victim of domestic violence or had reasonable cause to believe he was in imminent danger of becoming a victim of domestic violence, we reverse.

Domestic violence is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” § 741.28(2), Fla. Stat. (2009).

“A court may issue an injunction when it appears that the petitioner is either the victim of domestic violence or ‘has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.’ ” Ambrefe v. Ambrefe, 993 So.2d 98, 98 (Fla. 2d DCA 2008) (quoting 741.30(l)(a), Fla. Stat. (2007)). In determining whether the victim’s fear is reasonable, “the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.” Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001) (citing Gustafson v. Maude, 743 So.2d 614, 616 (Fla. 1st DCA 1999)); see also 741.30(6)(b), Fla. Stat. (2008).

Jones v. Jones, 32 So.3d 772, 774 (Fla. 2d DCA 2010).

In this case, there is no evidentiary support for the proposition that Katarzyna has been physically abusive toward Oscar. Similarly, there is nothing to support the conclusion that Oscar has reasonable cause to believe that he will be the victim of domestic violence. In fact, the only testimony presented at the hearing about physical abuse between Oscar and Katarzyna was that Oscar had abused Katarzyna— not the other way around.

For these reasons, the trial court erred in entering the final judgment for protection against domestic violence. Accordingly, we reverse the final judgment of injunction.

Reversed.

CASANUEVA, C.J., and CRENSHAW, J., Concur.


author: VILLANTI, Judge.

text:
    James Allen HAMMOND, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4191.
    District Court of Appeal of Florida, Second District.
    June 1, 2011.
   VILLANTI, Judge.

James Hammond seeks review of the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand for further proceedings.

Hammond was charged with one count of attempted first-degree murder for events that occurred in November or December 2004. From what can be gleaned from the limited record we have, Hammond was at a bar and got into a dispute with another patron. The fight spilled over into the parking lot. While Hammond and the victim were circling each other, another bar patron rushed toward them. Hammond pulled out a knife and slashed the victim across the throat. Hammond then fled the scene.

On December 12, 2005, the first day of trial, Hammond entered an open guilty plea to the charge. On February 3, 2006, after an extensive sentencing hearing, the trial court sentenced Hammond to eighteen years in prison followed by twelve years’ probation.

On February 17, 2006, before his notice of appeal was filed, Hammond filed a pro se motion to withdraw his plea. In that motion, Hammond alleged that his plea was involuntary because his counsel had advised him that if he entered the open guilty plea, there was “no way that the Judge would sentence the Defendant to the statutory maximum.” Despite this alleged assurance from counsel, however, Hammond was sentenced to the statutory maximum of thirty years. At the hearing on his motion to withdraw plea, Hammond testified that his counsel advised him that if he pleaded open, he would receive a sentence of 60.8 months, which was the lowest permissible sentence on Hammond’s Criminal Punishment Code score-sheet. Hammond further alleged that his plea was involuntary because it was entered under duress after the trial court denied his motion to continue the trial.

Before the trial court considered Hammond’s motion to withdraw his plea, counsel filed a notice of appeal from his conviction and sentence. This court relinquished jurisdiction so that the trial court could hold a hearing on Hammond’s motion to withdraw his plea. On April 16, 2007, after a lengthy hearing, the trial court found that no motion for continuance of the trial had ever been made and that Hammond had failed to establish that his counsel had promised him any specific sentence before he entered his open guilty plea on December 12, 2005. Instead, the evidence showed only that counsel had discussed possible sentences with Hammond in February 2006 — two months after he had entered his open guilty plea. Based on these findings, the trial court denied the motion to withdraw plea. When jurisdiction returned to this court, the sole issue raised in Hammond’s direct appeal was whether the trial court had erred by denying his motion to withdraw his plea. This court affirmed that ruling without opinion. See Hammond v. State, 4 So.3d 1231 (Fla. 2d DCA 2008) (table decision).

While Hammond’s direct appeal was pending but while jurisdiction was still relinquished to the trial court, Hammond’s counsel filed a motion to reconsider and/or to mitigate Hammond’s sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). In that motion, counsel argued that there was substantial evidence to show that, the victim was the aggressor in the incident and that Hammond was acting in self-defense. Counsel pointed out that this evidence included testimony from a disinterested witness — one Frank Rosati, who was a cab driver present at the scene of the incident. Counsel also argued that the victim was known to be violent and that this evidence was supported by the testimony of the victim’s uncle, one John Tooker. Counsel noted that this was a case involving a single cut with a knife, not a repeated stabbing or similarly aggravated act. Finally, counsel pointed to Hammond’s relatively scant nonviolent prior record. Based on these facts, counsel requested that Hammond’s sentence be reduced from the statutory maximum to some lesser amount of prison time. After reviewing the evidence presented at the sentencing hearing, the trial court denied this motion.

On February 10, 2010, Hammond filed a timely motion for postconviction relief, raising four grounds for relief. In claim one, Hammond alleged that his counsel was ineffective for failing to interview and/or depose witness Jimmie Johnson, who Hammond alleged would have provided testimony favorable to his self-defense claim. In claim two, Hammond alleged that his counsel was ineffective for failing to advise him that self-defense was a viable defense to the charged crime. In claim three, Hammond alleged that counsel was ineffective for failing to explain that Hammond could be sentenced to the statutory maximum even if he entered an open guilty plea. In claim four, Hammond alleged that counsel was ineffective for leading Hammond to believe that if he entered an open guilty plea, he would receive the lowest permissible sentence as shown on his Criminal Punishment Code scoresheet.

The postconviction court summarily denied Hammond’s motion in its entirety. As to claims one and two, the court found that these claims were procedurally barred because they had been raised and ruled upon at the hearing on Hammond’s motion to reconsider, reduce, or modify his sentence. As to claims three and four, the court found that these claims were also procedurally barred because they had been raised and ruled upon in Hammond’s motion to -withdraw his plea. Hammond now appeals these rulings.

We affirm the denial of claims three and four because these claims are in fact identical to those raised in Hammond’s motion to withdraw his plea, which was denied by the trial court and affirmed by this court. Having been previously considered and denied on the merits, these claims are now procedurally barred. See Schoenwetter v. State, 46 So.3d 535, 562 (Fla.2010) (holding that claim raised in a postconviction motion was procedurally barred when the same issue had been raised and decided adversely to the defendant on direct appeal); Torres-Arboleda v. Dugger, 636 So.2d 1321, 1323 (Fla.1994) (same).

Claims one and two, however, are not procedurally barred. Hammond contends in these claims that his counsel failed to interview and/or depose a witness who would have given favorable testimony and failed to advise him that self-defense was a viable defense to the charge against him. Hammond contends that he entered his guilty plea on December 12, 2005, based on his misunderstanding of the weight of the evidence against him. While it is true that counsel did raise the self-defense argument at the hearing on the motion to reduce or modify Hammond’s sentence, the issue in that motion was whether the sentence imposed was too harsh — not what information Hammond knew when he entered his open guilty plea three months earlier. Neither the contents of the motion to reduce sentence nor the argument at the hearing on that motion bore on the question of what information Hammond knew when he entered his open guilty plea on the first morning of trial or whether his attorney had misinformed or misled him concerning the weight of the evidence against him before he entered his plea. Therefore, claims one and two of Hammond’s motion state new claims for relief that have never been considered or determined on their merits, and, as such, these claims are not procedurally barred. Hence, these claims should have been considered by the post-conviction court.

Accordingly, we affirm the denial of claims three and four but reverse the summary denial of claims one and two and remand for further proceedings on those claims. On remand, if the postconviction court finds the claims to be facially insufficient, it should give Hammond leave to amend these claims for a period not to exceed thirty days. See Spera v. State, 971 So.2d 754, 761 (Fla.2007). If the claims are facially sufficient, the court must either support a denial with the portions of the record that conclusively refute Hammond’s claims or hold an evidentiary hearing.

Affirmed in part, reversed in part, and remanded for further proceedings.

NORTHCUTT and DAVIS, JJ„ Concur.


text:
    Nilton DACOSTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-398.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Nelfrard v. State, 34 So.3d 221 (Fla. 4th DCA 2010).

WARNER, POLEN and LEVINE, JJ., concur.


author: SUAREZ, J.

text:
    David HAYES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-736.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.
    David Hayes, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   SUAREZ, J.

Affirmed. See Gethers v. State, 838 So.2d 504 (Fla.2003).


author: EMAS, J.

text:
    Gary WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-434.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.

      Gary White, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   EMAS, J.

Gary White appeals an order summarily denying his initial motion for postconviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm in part, reverse in part and remand this cause to the trial court.

White alleged in his motion that his trial counsel rendered ineffective assistance by failing to investigate defense witnesses and by failing to present defense witnesses at trial. In its response to White’s motion, the State argued that this claim was legally insufficient because White’s motion:

— Failed to identify the defense witnesses by name;
— Failed to allege that these witnesses were available to testify at trial; and
— Failed to allege how the testimony of these witnesses would have affected the outcome of the trial.

The trial court entered an order denying the motion without an evidentiary hearing. The order simply states:

THIS CAUSE having come on to be heard upon the defendant’s Motion for Post-Conviction Relief on November 1st, 2010.
ORDERED AND ADJUDGED that the defendant’s Motion for Post-Conviction Relief is hereby DENIED.

The order does not state a basis for the denial. If the denial of the motion was based upon the record, the Court failed to attach to its order those portions of the files or record establishing White is entitled to no relief on this claim. See Fla. R.Crim. P. 3.850(d).

If the denial of the motion was based upon the legal insufficiency of the motion (as urged by the State in its response), the trial court should have followed the procedure outlined in Spera v. State, 971 So.2d 754, 761-62 (Fla.2007):

[W]hen a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.... [W]e hold that the proper procedure is to strike the motion with leave to amend within a reasonable period. We do not envision that window of opportunity would exceed thirty days and may be less. The striking of further amendments is subject to an abuse of discretion standard that depends on the circumstances of each case.
We also stress that our decision is limited to motions deemed facially insufficient to support relief — that is, claims that fail to contain required allegations. When trial courts deny relief because the record conclusively refutes the allegations, they need not permit the amendment of pleadings.

We therefore affirm that portion of the trial court’s order denying White’s claim of ineffective assistance of counsel for failure to request an adversary preliminary hearing. We reverse that portion of the trial court’s order denying White’s claim of ineffective assistance of counsel for failure to investigate and present defense witnesses at trial, and remand with directions that the trial court either: 1) enter an amended order attaching those portions of the files and record that conclusively establish White is entitled to no relief; or 2) permit White an opportunity to amend his motion to state a legally sufficient claim, and for proceedings thereafter consistent with this opinion.

      . White’s motion also alleged that trial counsel was ineffective for failing to request an adversary preliminary hearing. However, this claim is without merit as a matter of law. The State’s response to the motion (and records attached thereto) establishes that the State filed an information within twenty-one days of White’s arrest. Therefore, White was not entitled to an adversary preliminary hearing. See Fla. R.Crim. P. 3.133(b)(1) ("A defendant who is not charged in an information or indictment within 21 days from the date of arrest ... shall have a right to an adversary preliminary hearing on any felony charge then pending against the defendant.”). Even if such a hearing had been held, and a finding of no probable cause made, White would not have been entitled to a dismissal of the charges, but simply a release on his own recognizance. Fla. R.Crim. P. 3.133(b)(5); State v. Brooks, 388 So.2d 1291 (Fla. 3d DCA 1980) and cases cited. We therefore affirm the trial court’s order insofar as it denies relief on this claim.


text:
    Enrique J. HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-784.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.
    Enrique J. Hernandez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   SUAREZ, J.

The trial court’s order denying a Florida Rule of Criminal Procedure 3.800(c) motion to reduce or modify sentence is not an appealable order; neither, therefore, is the order denying the motion for rehearing of that order. Accordingly, we dismiss this appeal. Smith v. State, 902 So.2d 293 (Fla. 3d DCA 2005).

Dismissed.


author: STEVENSON, J.

text:
    STATE of Florida, Appellant, v. Nicholas PHILLIPS, Appellee.
    No. 4D09-4063.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellee.
   STEVENSON, J.

The State appeals an order granting the defendant’s motion to withdraw his plea on the basis that it was involuntary since he was not advised at the colloquy by the trial judge that the plea carried 'with it a mandatory minimum sentence and no entitlement to gain time. Because the trial court specifically found that defendant was advised of the aforementioned consequences of the plea by his attorney, we reverse.

On June 2, 2004, the defendant entered a plea of no contest to a reduced charge of burglary of a dwelling. The defendant was sentenced as a prison releasee reof-fender (“PRR”) to a mandatory minimum sentence of fifteen years. However, the plea form did not indicate that the defendant was being sentenced as a PRR and the meaning of the PRR classification, or the associated mandatory minimum sentence, was not explained to the defendant during the plea colloquy. On July 18, 2006, the defendant filed the instant motion to withdraw plea, arguing that his plea was involuntary because he was not advised that the plea would subject him to a mandatory minimum sentence and that he would not be entitled to gain time.

At a hearing on the defendant’s motion, the attorney who represented the defendant at the underlying plea colloquy testified. The attorney stated that he advised the defendant that, under the terms of the plea agreement, he would be sentenced as a PRR which meant that he would serve every day of his sentence. Further, he specifically advised the defendant that he would not be entitled to gain time. The trial court found that the attorney’s testimony was credible and that the defendant had been advised by the attorney regarding the consequences of his plea. However, the trial court determined because the plea colloquy was insufficient in that the consequences of the PRR classification were not explained on the record, the defendant’s motion had to be granted.

A trial court’s decision to grant a postconviction motion to withdraw plea is reviewed for an abuse of discretion. See Townsend v. State, 927 So.2d 1064, 1065 (Fla. 4th DCA 2006). In order for a plea to be voluntary, the defendant must be advised of the consequences of his plea, including “any mandatory minimum penalty.” Fla. R. Crim. P. 3.172(c)(1); Ashley v. State, 614 So.2d 486, 488 (Fla.1993). This requirement is met where a defendant’s attorney advises the defendant of the sentencing consequences of accepting the plea. See Alexander v. State, 893 So.2d 615, 616 (Fla. 2d DCA 2005). The trial court specifically found the attorney’s testimony was credible and that the defendant had been advised regarding the PRR classification and its consequences. Since the defendant was so advised, he cannot successfully obtain postconviction relief on the ground that his plea was involuntary. See Fla. R. Crim. P. 3.172(j) (requiring a showing of prejudice where a defendant is not properly advised of the consequences of his plea); see, e.g., State v. Luders, 768 So.2d 440, 441 (Fla.2000) (defendant was not prejudiced by trial court’s failure to advise him of possible deportation consequences of plea where defendant’s attorney advised him of this risk). Thus, the trial court’s order is reversed.

Reversed.

TAYLOR and GERBER, JJ., concur.


text:
    Curley N. BRAGGS, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-1101.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.
    Curley N. Braggs, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.

      Before SUAREZ, LAGOA and EMAS, JJ.
   PER CURIAM.

Affirmed. See Braggs v. State, 815 So.2d 657, 661 n. 4 (Fla. 3d DCA 2002).


text:
    Cedrick BRANTLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-481.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.
    Rehearing Denied July 1, 2011.
    Cedrick Brantley, in proper person.
    Pamela Jo Bondi, Attorney General, and Lunar C. Alvey, Assistant Attorney General, for appellee.
    Before SHEPHERD, SALTER and EMAS, JJ.
   PER CURIAM.

Affirmed. Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997); Poff v. State, 41 So.3d 1062, 1064 (Fla. 3d DCA 2010).


text:
    STATE of Florida, Appellant, v. James T. SOUTTER, Appellee.
    No. 4D10-953.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Sun, — So.3d -, 2011 WL 2135646 (Fla. 4th DCA 2011).

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.


text:
    Genaro FERRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3472.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and EMAS, JJ.
   PER CURIAM.

Genaro Ferro appeals from a final judgment of conviction and sentence. The record shows no reversible error. We affirm without prejudice to appellant’s right to seek post-conviction relief under Florida Rule of Criminal Procedure 3.850.

Affirmed.


text:
    STATE of Florida, Appellant, v. Wilfredo GARCIA, Jr., Appellee.
    No. 4D10-956.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Sun, — So.3d -, 2011 WL 2135646 (Fla. 4th DCA 2011).

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.


author: MAY, J.

text:
    The PEP BOYS, Manny, Moe & Jack, Inc., Cooper Tire & Rubber Company, Nissan Motor Company, Ltd., Nissan North America, Inc., and Plantation Sales, Inc., d/b/a Weston Nissan, Inc., Appellants, v. Bievenida MONTILLA, as Personal Representative of the Estate of Yahaira Castro, deceased, et al., Appellee.
    Nos. 4D10-2838, 4D10-2845, 4D10-2865.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.

      Matthew C. Henning, Miami and Kathleen M. O’Connor of Kathleen M. O’Con-nor, P.A., Hudson, OH, for appellant, Cooper Tire & Rubber Company.
    Robert Rudock and Loren W. Fender of Arnstein & Lehr, LLP, Miami, for appellant, Nissan and Plantation Sales.
    Brian D. Equi of Seipp & Flick, LLP, Lake Mary, for appellant The Pep Boys-Manny, Moe & Jack, Inc.
    James D. Robinson of Law Offices of Robinson & Pecaro, P.A., Davie, and Nancy Little Hoffmann of Nancy Little Hoff-mann, P.A., Fort Lauderdale, for appellee.
   MAY, J.

Location, location, location — the defendants appeal an order denying their motion to transfer venue of a vehicular accident case based upon the doctrine of forum non conveniens. They argue the trial court abused its discretion in denying the motion. We agree and reverse.

Two wrongful death actions arose out of a vehicular accident that occurred in Sarasota County. The plaintiff in this case is the personal representative and parent of the front seat passenger. The vehicle was owned by the plaintiff and driven by another decedent, whose personal representative has sued the defendants in a separate action. The passengers in the vehicle included the plaintiffs daughter and her minor children. All occupants were residents of Port Charlotte, Charlotte County, Florida.

The driver was on Interstate 75 in Sarasota County when the accident occurred. According to the Florida Traffic Crash Report, the driver lost control of the vehicle when its left rear tire tread belt separated and he overcorrected to the right. The vehicle overturned, ejecting the driver and front seat passenger, who were not wearing seatbelts. The three minors in the vehicle were secured by child restraints or a seatbelt, and sustained “non-incapacitating” injuries. The driver was pronounced dead at the scene by Sarasota County paramedics, and the passenger was airlifted to a Tampa-area hospital where she died. The passenger’s estate is being probated in Charlotte County.

The driver’s personal representative brought a negligence and products liability action in Palm Beach County. In that case, the trial court granted the defendants’ motions to transfer venue to Sarasota County. The plaintiff retained a Bro-ward County lawyer, who filed this action alleging products liability and negligence claims against the defendants. The complaint also alleged a negligence claim against the driver’s personal representative.

The defendants filed motions to transfer venue, pursuant to section 47.122, Florida Statutes (2009). In support of the motions, the defendants established:

(1) The accident occurred in Sarasota County.
(2) The decedent and her children were residents of Port Charlotte, Charlotte County, which is adjacent to Sarasota County.
(B) The driver was a resident of Port Charlotte, Charlotte County, before his death.
(4) The vehicle and tire were “maintained and garaged” in Hillsbor-ough County, Florida, to the north of Sarasota County.
(5) The decedent’s estate is pending in probate court in Charlotte County.
(6) Two eyewitnesses to the accident live and work in Bradenton, Manatee County, which is the county just north of Sarasota County.
(7) The three Florida Highway Patrol (FHP) officers who investigated the accident are all stationed in Sarasota County.
(8) An EMT with the Sarasota County Fire Department, who responded to the crash, is stationed in Sarasota County.
(9) A paramedic in the Sarasota County Paramedics, who responded to the crash, is stationed in Sarasota County.
(10) The decedent was airlifted to a nearby hospital where she received medical care before her death.

Affidavits from two eyewitnesses, three investigating FHP officers, the EMT, and the paramedic were filed in support of the motions. Each affidavit explained that it would be expensive and greatly inconvenient for the witness to travel for court proceedings in Broward County.

In response, the plaintiff submitted one last minute affidavit, executed in New York, stating that she was a resident of Broward County at the time of the accident. Notwithstanding the affidavit, her complaint alleged that at all material times she was a resident of Hillsborough County.

The plaintiff argued that one of the defendants (Pep Boys) sold the allegedly defective tire from a Broward County store, the vehicle may have been purchased in Broward, and the vehicle and tire were now stored in Palm Beach County. The trial court conducted a hearing, reviewed the parties’ submissions, and denied the motions without explanation. This led to the current appeals, which we consolidated.

The defendants collectively argue the trial court abused its discretion in denying the motions to transfer venue where, as here, a vehicular accident has occurred, and most of the witnesses are located in a county other than the forum county. The plaintiff responds that the trial court correctly decided the issue because the defendants failed to meet their burden of proof and reasonable minds could differ as to whether a trial in Broward County would be a serious inconvenience to the most important witnesses, the experts.

This Court reviews “orders denying motions to transfer venue for an abuse of discretion.” Tomac of Fla., Inc. v. Gunn’s Quality Glass & Mirror, Inc., 17 So.3d 320, 321 (Fla. 4th DCA 2009).

Section 47.122 governs the transfer of venue from one Florida county to another on the basis of forum non conveniens. “For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.” § 47.122, Fla. Stat. (2009). “[Tjhere are three statutory factors a court considers in determining whether to grant a motion pursuant to section 47.122:(1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interest of justice.” Ford Motor Co. v. James, 33 So.3d 91, 92-93 (Fla. 4th DCA 2010).

Of the three factors, “[tjhe convenience of the witnesses is probably the single most important consideration of the three statutory factors.” Hu v. Crockett, 426 So.2d 1275, 1279 (Fla. 1st DCA 1983). The plaintiffs forum selection is no longer the “factor of over-riding importance.” Id. at 1278.

The third factor, that of the interests of justice, is a catch-all consideration including many considerations, and in some close cases this factor may be determinative. One consideration is the convenience of the attorneys which is usually accorded very little, if any, weight....
Other considerations include but are not limited to the avoidance of a crowded court docket and the imposition of jury duty on an uninvolved community.

Id. at 1280 (citations omitted).

Reviewing the three factors can lead to but one conclusion — the case should be tried in Sarasota County. First, while the personal representative is the actual party, the decedent and her children resided in Charlotte County at the time of her death. The affidavit filed by the personal representative merely indicated that at the time of the accident, she resided in Broward County. The complaint actually alleged the plaintiff had resided in Hills-borough County at all material times. All the defendants have requested the case be transferred to Sarasota County.

Second, the material "witnesses to the accident and the resulting injuries were the FHP, EMT, and paramedics, all of whom reside in Sarasota County. Only employees of defendant Pep Boys worked in Broward County, and that defendant also supports the transfer. The fact that the vehicle and tire are currently being stored in nearby Palm Beach County is a non-issue as both had to be transported from Sarasota County to Palm Beach County after the accident.

The last factor — the interest of justice— also weighs in favor of Sarasota County. The driver’s wrongful death action has already been transferred to Sarasota County. Broward County’s connections to the case are that the plaintiffs attorney is from there and the tire had been sold and installed there. Broward County is a larger, more populous county, has crowded dockets, and the community has virtually no connection to the case.

The plaintiff argues, however, that the convenience of the expert witnesses is of utmost importance. James, 33 So.3d at 93-94 (Fla. 4th DCA 2010). We disagree. It goes without saying that most expert witnesses travel for their work and are paid for doing so. There was no proof of any inconvenience to the expert witnesses in this case. This is in stark contrast to the affidavits of seven fact witnesses attesting to the inconvenience of having to travel to Broward County. Our reference to the importance of expert witnesses in James does not support the plaintiffs position in this case.

In James, a tire blowout occurred in Columbia County, resulting in the death of a passenger. The suit was filed in Bro-ward County. The defendants moved to transfer the case to Columbia County, but the trial court denied the motion. On appeal, we undertook the same analysis as we have in this case. There, the decedent, the vehicle’s driver, and eight other eye witnesses resided in Broward County; and the vehicle was rented in Broward County. The accident was the only connection to Columbia County. Id. at 92. In affirming the trial court’s decision not to transfer the case, we noted that because the case involved a tire blowout, the early responders to the accident were less critical witnesses because the case would turn on expert witness testimony. We therefore found no abuse of discretion. Id. at 93-94. We did not hold, however, that the convenience of expert witnesses is the most significant factor in determining venue.

Florida courts have consistently found error in the denial of a motion to transfer where a vehicular accident occurs in a county other than the forum venue. See, e.g., Morrill v. Lytle, 893 So.2d 671, 673-74 (Fla. 1st DCA 2005) (discussing various District Court of Appeal opinions). We find those cases persuasive.

In Kelly-Springfield Tire Co. v. Moore, 355 So.2d 451, 452 (Fla. 3d DCA 1978), the court found venue should have been transferred to the county where the accident occurred, the allegedly defective tire was sold and mounted, all plaintiffs resided, and the material witnesses to the accident resided. In Inter-American Sunbelt Corp. v. Borozny, 512 So.2d 287, 288 (Fla. 3d DCA 1987), the court found the trial court abused its discretion in denying the transfer where the only connection to the forum county was the convenience of counsel and certain unnamed expert witnesses. In another case, the Third District Court of Appeal held the trial court abused its discretion in denying a motion to transfer where the only connections to the forum venue were the plaintiffs attorney and one defendant which maintained its principal office there. Cooper Tire & Rubber Co. v. Estate of Chavez ex rel. Hernandez, 8 So.3d 1157, 1159 (Fla. 3d DCA 2009).

The only factors weighing in favor of Broward County are the location of the plaintiffs attorney and the store where the tire was purchased. We have previously held that the location of the attorney is insufficient to warrant the trial court’s denial of the defendants’ motions to transfer. Hu, 426 So.2d at 1280.

The defendants bore their burden to establish that the most convenient forum is Sarasota County. The trial court abused its discretion in denying the defendants’ motions to transfer. We therefore reverse and remand the case to the trial court for transfer of the action to Sarasota County.

Reversed and Remanded.

DAMOORGIAN and LEVINE, JJ., concur.

      . Pep Boys actually filed a motion to dismiss, but supported the other defendants’ motions to transfer. For ease of reference, this opinion will simply refer to the motions to transfer.

      . One defendant also submitted an affidavit attesting that the subject vehicle was sold in Miami-Dade County.


text:
    Patricia LEWIS, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D10-1933.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.
    Coast to Coast Legal Aid of South Florida, Jeffrey Keddie, Plantation, for appellant.
    Javier A. Ley-Soto, Chief Regional Counsel, for appellee.
    Before CORTIÑAS, SALTER, and EMAS, JJ.
   PER CURIAM.

Patricia Lewis appeals a final order of the Department of Children and Families Office of Appeal Hearings (DCF) disqualifying her from receiving food stamp assistance benefits for one year. The final order was issued on June 17, 2010, and Lewis timely filed a “notice of appeal” on July 12, 2010. Because Lewis asserts that she did not receive DCF’s notice of hearing on the alleged intentional program violation, she was entitled to claim good cause for failure to appear, under 7 C.F.R. § 273.16(e)(4) (2010), within thirty days. Accordingly, her “notice of appeal” shall be treated as a claim of good cause for failure to appear, and we reverse and remand for DCF to notice and conduct a hearing pursuant to 7 C.F.R. §§ 273.16(e)(3)(h) and (e)(4) (2010).

Reversed and remanded.

      . The federal regulations govern the Florida food stamp disqualification procedure under Florida Administrative Code Rule 65-2.069(1).


text:
    STATE of Florida, Appellant, v. Richard A. BRYANT, Appellee.
    No. 4D10-957.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Sun, — So.3d -, 2011 WL 2135646 (Fla. 4th DCA 2011).

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Vivianna Garrido BLISS, Appellee.
    No. 4D10-958.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Sun, — So.3d -, 2011 WL 2135646 (Fla. 4th DCA 2011).

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.


author: GERBER, J.

text:
    Anne Marie SPENCER, Appellant, v. Patricia DIGIACOMO, individually, and The Keyes Company, a Florida profit corporation, Appellees.
    No. 4D10-1299.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Catherine A. Riggins, Miami Gardens, for appellant.
    Manuel Farach of Richman Greer, P.A., West Palm Beach, for appellee Patricia DiGiacomo.
    No appearance for appellee The Keyes Company.
   GERBER, J.

The plaintiff appeals from a final order granting the defendant’s motion for attor-ne/s fees. That order was based upon an underlying order finding the defendant to be the prevailing party on her motion to cause the plaintiff to record a satisfaction of judgment. See § 701.04(1), Fla. Stat. (2009) (“Within 60 days of the date of receipt of the full payment of the ... judgment, the person required to acknowledge satisfaction of the ... judgment shall send or cause to be sent the recorded satisfaction to the person who has made the full payment. In the case of a civil action arising out of the provisions of this section, the prevailing party shall be entitled to attorney’s fees and costs.”).

We recently reversed the underlying order in Spencer v. DiGiacomo, 56 So.3d 92 (Fla. 4th DCA 2011). Therefore, we must reverse the attorney’s fees order as well. See S & I Invs. v. Payless Flea Market, Inc., 40 So.3d 48, 49 (Fla. 4th DCA 2010) (“ Where a court awards prevailing party attorney’s fees and the underlying judgment is vacated, the attorney’s fee judgment must also be vacated.’ ”) (citation omitted).

Reversed.

STEVENSON and TAYLOR, JJ., concur.