author: PER CURIAM. TORPY, J.,

text:
    SPECIAL OLYMPICS FLORIDA, INC., Appellant/Cross-Appellee, v. Margaret SHOWALTER, et al., Appellees/Cross-Appellants.
    Nos. 5D07-2104, 5D07-2332.
    District Court of Appeal of Florida, Fifth District.
    March 13, 2009.
    Rehearing Denied April 14, 2009.

      Elliot H. Scherker and Brigid F. Cech Samóle of Greenberg Traurig, P.A., Miami, for Appellant.
    Jamie Billotte Moses of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellees.
   PER CURIAM.

The central question in this case is whether Appellant may be found liable for the acts of one of its volunteers who molested Appellees, two developmentally disabled adults, in a bowling center parking lot. Although we reverse the judgment and instruct the trial court to direct a verdict as to two counts, we remand for a new trial on the negligence count.

Appellant is a nonprofit organization that “[p]rovide[s] sports training and competition for persons with ... disabilities, [and] ongoing opportunities to participate with their families and the community.” Appellant sponsors between 11 and 13 competitions per year in Florida. All of Appellant’s activities are run by county coordinators, who are volunteers, as are the coaches and others who assist in operating the programs. Appellant has approximately 34 paid staff members throughout Florida and as many as 17,000 volunteers. Appellees, Margaret Showal-ter and Nancy Vasil, are both developmentally disabled adults who participate as athletes in Appellant’s events. Ms. Show-alter is apparently somewhat self-reliant, although a social worker resides with her. Ms. Vasil lives with her father, who is her guardian.

One of Appellant’s organized activities, in which Appellees participate, is an annual bowling competition. The athletes practice between August and November each year and then participate in county, regional and state competitions. Appellant arranged with Colonial Lanes, a public bowling center in Orange County, to conduct much of its bowling activity there. Practices were scheduled to begin every Saturday at 1:30 p.m. and the athletes were instructed to arrive no earlier than 1:00 p.m. However, the athletes widely ignored this instruction. As a consequence, volunteers routinely arrived at practices early because they anticipated that the athletes would arrive early and need supervision.

On October 25, 2003, the day of the molestations, bowling practice was scheduled for 1:30 p.m. On the same day and at the same facility, Appellant also scheduled physicals for some of the athletes, beginning at 10:00 a.m. Appellant had announced the physicals at a prior event via loudspeaker. Appellees knew they were not scheduled for physicals, but they both arrived early to socialize before practice. Ms. Showalter travelled to the bowling center using public transportation. Ms. Vasil’s father dropped her off at the bowling alley at 10:00 a.m. Although Ms. Vasil’s father was aware that practice started at 1:30 p.m., he assumed, based on past experience, that someone from Special Olympics would be there to supervise.

Another early arriver to the October 25 practice was the accused molester, 79-year-old James McDonald, who had been involved with Appellant for many years in several capacities. As his son was an athlete, Mr. McDonald participated in events as a parent. He was also a registered volunteer. In this capacity, he had been head bowling coach from the 1980s until 1994, at which time he stepped down as head coach due to accusations that he had molested another athlete and her sister. The incidents were investigated by the police, but the charges were dropped two years later. Although Appellant disputes that Mr. McDonald continued to serve in a volunteer capacity after 1994, the evidence taken in the light most favorable to Appel-lees suggests to the contrary.

Evidence was presented that Mr. McDonald’s volunteer application remained on file until after the molestations involved in this case. According to Appellant’s routine practice, this suggested that Mr. McDonald’s volunteer status had not been terminated. He continued to attend practices and events regularly, even arriving early to help all the athletes, not just his son. Louise Newton, the successor bowling coach, admitted that Mr. McDonald was still there every week acting like he was in charge. As she stated: “I guess it was hard [for Mr. McDonald] to let go.” After the instant molestations, Appellant sent a letter to Mr. McDonald banning him from attendance at events, but stating that “there will be an investigation and [Appellant] shall either reinstate your volunteer duties and opportunities or we shall have to determine an appropriate course of action ... depending on the outcome of the investigation.” Mr. McDonald apparently heeded the directive as he did not attend any of Appellant’s events up to the date of trial in 2007.

In addition to the accusations that Mr. McDonald had previously molested an athlete and her sister in 1994, other allegations against Mr. McDonald were brought to Appellant’s attention prior to October 25, 2003. Between 1994 and 2003, one of the Appellees reported to Ms. Newton that Mr. McDonald had molested her on more than one occasion, albeit not in connection with any of Appellant’s events. During this same time period, Ms. Newton was also informed that Mr. McDonald attended dances conducted for developmentally disabled adults (not associated with Appellant’s activities) where he escorted attendees to and from his van. Ms. Newton discussed these issues with Mr. McDonald but accepted his denial of claims of wrongdoing. She did, however, caution him to avoid taking developmentally disadvantaged people to his van because it appeared inappropriate. At some point in the year 2000 or 2001, Ms. Newton began keeping a “closer eye” on Mr. McDonald and had a discussion with Charlotte Day, Appellant’s county coordinator, about whether he was a liability. Ms. Newton did not, however, warn anyone else associated with Appellant or the athletes’ parents or guardians about any suspicions concerning Mr. McDonald.

Other than to accept Mr. McDonald’s resignation as head bowling coach, Appellant did nothing to limit his involvement with its activities. In fact, most people within Appellant’s organization gave no apparent credit to the accusations against Mr. McDonald. For example, the county coordinator in 1994, Jane Fournier, did nothing to investigate the 1994 incident, assuming that because prosecutors dropped the charges two years later, Mr. McDonald was cleared of wrongdoing. When Charlotte Day took over as county coordinator in 1998, Ms. Fournier told her that the 1994 incident had been unfounded. Consequently, Ms. Day did not investigate the charges in any way. The county co-coordinator, Patricia Webb, although aware of many of the allegations against Mr. McDonald, concluded that he was “completely harmless.”

On the day of the instant molestations, Ms. Webb arrived at the bowling center shortly after 10 a.m. to assist a volunteer physician with performing the physicals. Meanwhile, Mr. McDonald lured Appellees outside to his van where he subsequently molested them, one after the other, either in or near his van. At some point in time, Ms. Webb looked out the window into the parking lot and saw Mr. McDonald molesting one of the Appellees. While she was summoning police to report the incident, Mr. McDonald molested the other Appel-lee. He was subsequently arrested, and his culpability is not herein disputed.

Appellees’ theory of liability was threefold. In their first count, Appellees asserted that Appellant was under a duty to protect them or control Mr. McDonald, or both, so as to prevent the foreseeable conduct of Mr. McDonald, and Appellant’s failure to do so amounted to negligence. In them second count, Appellees asserted that Appellant was liable on a statutory theory. Finally, in their third count, Ap-pellees sought to impose liability on Appellant under an agency theory. The jury returned a verdict for each Appellee on all three counts. Appellant contends that it was entitled to a directed verdict on all three counts. We agree as to the second and third counts, but disagree as to the negligence count. For the sake of clarity, we address each count in reverse order.

The third count, although labeled “Direct Liability,” in substance seeks to impose vicarious liability under an agency theory for the negligence or intentional wrongdoing of Mr. McDonald. Under either theory of liability, liability must be imputed to Appellant by showing that Mr. McDonald was an agent of Appellant and was acting within the scope of his status as agent when he committed the wrong. Appellant argues that neither was established sufficiently to create a jury issue. We disagree in part. We think the evidence of agency was sufficient to be resolved by the jury. Although Mr. McDonald had resigned as head coach, there was more than ample evidence that he remained a volunteer. He remained registered as such and, more important perhaps, he continued to act as such with Appellant’s acquiescence.

We agree with Appellant, however, that Mr. McDonald was not acting within the scope of his agency at the time of the incidents, notwithstanding the jury’s determination to the contrary. “Generally, sexual assaults and batteries by employees are held to be outside the scope of an employee’s employment and, therefore, insufficient to impose vicarious liability on the employer.” Nazareth v. Herndon Ambulance Serv., Inc., 467 So.2d 1076, 1078 (Fla. 5th DCA 1985). Unless it can be established that the abuse occurred in furtherance of the employer’s business, this type of conduct is not within the scope of employment. Agriturf Mgmt., Inc. v. Roe, 656 So.2d 954 (Fla. 2d DCA 1995) (finding abuse occurring on Agriturfs property during time perpetrator closing business not within scope of employment because sexual abuse not in furtherance of employer’s business objectives); see Mason v. Fla. Sheriffs’ Self-Ins. Fund, 699 So.2d 268 (Fla. 5th DCA 1997) (holding sexual assault by officer not within scope of employment, even though officer on duty, in uniform and serving warrant on woman he raped).

The second count is based on purported statutory liability under section 393.13(3)(g), Florida Statutes (2004). The parties devote considerable argument to whether a violation of the statute is negligence per se, which is how the jury was instructed. We need not address this issue because we conclude that there was no statutory violation by Appellant. If at all, the statute only imposes civil liability on the one who harms the victim and perhaps those who are vicariously liable for that person’s actions. Here, Appellant is not the abuser. Further, as previously discussed, Mr. McDonald was not acting within the scope of his agency with Appellant. Thus, Appellant is not vicariously liable for Mr. McDonald’s conduct.

Our conclusion on the agency issue does not resolve the first count, however, which Appellees label “NEGLIGENCE.” Although not a model of clarity, this count seeks to impose direct liability against Appellant because Appellant either had a duty to protect Appellees or had a duty to control Mr. McDonald, or both', and failed in that duty with resulting harm. This theory of liability is not dependent on a finding that the abuser’s conduct fell within the scope of the agency or, for that matter, that the abuser was an agent. Instead, liability turns on whether there existed a “special relationship” giving rise to a duty to control or protect or both.

According to the Restatement (Second) of Torts:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts § 315 (1965) (emphasis supplied). Comment c. of the restatement states:

The relations between the actor and a third person which require the actor to control the third person’s conduct are stated in §§ 316-319. The relations between the actor and the other which require the actor to control the conduct of third persons for the protection of the other are stated in §§ 314A and 320.

Of the enumerated sections, the one relevant here is section 320 which provides as follows:

One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor
(a) knows or has reason to know that he has the ability to control the conduct of the third persons, and
(b) knows or should know of the necessity and opportunity for exercising such control.

Restatement (Second) of Torts § 320 (1965) (emphasis supplied). Appellant concedes that it had a special relationship with Appellees during scheduled activities. It contends, however, that the relationship was not in effect at the time of the molestation because Appellees were at the bowling center for social reasons and were not under Appellant’s “voluntary custody.” Appellees counter that this issue is a question of fact in this case. We agree with Appellees.

The record is replete with evidence that, despite any contrary instruction, athletes routinely arrived early, to the point that volunteers undertook the responsibility to themselves arrive early so they could supervise the athletes. Appellant was conducting an activity at the time of the incident and the evidence is not clear that the coach’s general instruction that the athletes should not show up early was intended to apply when other Appellant-sponsored activities were ongoing. There is also no evidence that any instruction was given to Ms. Showalter’s social worker or Ms. Vasil’s father concerning early arrival, despite the fact that this practice was apparently commonplace. The jury could have concluded that any attempt to restrict the temporal scope of Appellant’s duty should have been communicated to someone with the maturity to control Ap-pellees’ behavior. The evidence also reflects that Appellant attempted to control Mr. McDonald by counseling him about the propriety of escorting developmentally disabled people to his van. The jury could have inferred from this evidence that Appellant was aware of its ability and duty to control Mr. McDonald.

Although Appellees’ negligence claims are legally viable, a new trial is necessary in this case because the jury was not correctly instructed on the law. The jury was given no guidance about the nature and scope of Appellant’s purported duty and was improperly advised that, by statute, the Appellees were guaranteed “the right to be free from harm” and that a violation of this statute constituted negligence.

We affirm as to the “empty chair” argument and the cross-appeal without discussion. Appellant’s point regarding expert testimony is moot because we have disposed of the statutory claim. Because we are reversing the judgment for damages, we also reverse the attorney’s fees award.

REVERSED AND REMANDED.

LAWSON and EVANDER, JJ., concur.

TORPY, J., concurs and concurs specially, with opinion.

TORPY, J.,

concurring specially.

I do not think that Appellant’s duty was limited to the period during which it had actual custody of Appellees. In my view, the existence of the special relationship with both Appellees and Mr. McDonald triggered some ongoing duty to control Mr. McDonald by, at a minimum, expelling Mm from Appellant’s activities as a parent or volunteer. To merely lecture him about the propriety of taking athletes to his van hardly discharges the duty to control. I also think Appellant had a duty to warn parents or guardians of this particular danger before the athletes were exposed to the danger.

I think this is a case for the application of Restatement (Second) of Torts section 302B (1965), which provides:

An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.

One of the comments to this section states that it applies:

Where the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct.

Restatement (Second) of Torts § 302B cmt. e.D. Under this theory, it makes no difference whether the incident occurred while the victims were in Appellant’s actual custody.

I am persuaded by the decision of the Supreme Court of Washington in C.J.C. v. Corporation of Catholic Bishop of Yakima, 138 Wash.2d 699, 985 P.2d 262 (1999), and would adopt its holding. There, under analogous facts, the court imposed liability on a church after its deacon had molested a child of the congregation because of:

(1) the special relationship between the Church and [the] deacon ...; (2) the special relationship between the Church and the plaintiffs; (3) the alleged knowledge of the risk of harm possessed by the Church; and (4) the alleged causal connection between [the deacon’s] position in the Church and the resulting harm.

Id. at 275.

      . Appellees’ counsel commendably conceded at oral argument that these assaults did not occur within the scope of the agency.

      . Because the judge charged the jury that a violation of the statute is negligence, it is impossible to tell whether the verdict for Ap-pellees on the negligence count was premised on a violation of the statute or a violation of the common law duty.

      . See Hinckley v. Palm Beach County Bd. of County Comm'rs, 801 So.2d 193, 195 (Fla. 4th DCA 2001) (holding special relationship existed between caregiver and developmentally disabled individual).


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Edward E. CAMBAS, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 5D07-191.
    District Court of Appeal of Florida, Fifth District.
    March 13, 2009.
    Rehearing Denied April 14, 2009.

      Edward E. Cambas, North Miami, Pro Se.
    Patricia Nelson, Assistant General Counsel, Department of Business and Professional Regulation, Tallahassee, for Ap-pellee.
   ORFINGER, J.

Edward E. Cambas appeals an order of the Florida Real Estate Commission (the “Commission”) suspending his real estate license for two years and imposing a fine. Cambas argues that the Commission denied him due process by failing to conduct a timely, formal hearing. Cambas also argues that the Commission erred as a matter of law in concluding that he had committed a crime of moral turpitude. We affirm.

The Department of Business and Professional Regulation, Division of Real Estate (the “Department”) filed an administrative complaint against Cambas, seeking to discipline him for his felony conviction .of leaving the scene of an accident with injury. Cambas answered and requested a formal hearing, pursuant to section 120.57(1), Florida Statutes (2002). In his request for a formal hearing, Cambas admitted that he had pled guilty to one count of misdemeanor DUI and one count of leaving the scene of an accident. However, he argued that these were not crimes of moral turpitude or fraudulent or dishonest dealings, and thus, were not subject to discipline pursuant to section 475.25(1)(f), Florida Statutes (2002). Asserting that Cambas failed to dispute any specific material facts in its complaint, the Department filed a motion for an informal hearing, pursuant to section 120.57(2), Florida Statutes. The Commission granted the Department’s motion, concluding that there were no material disputed factual issues, and an informal hearing was held. After hearing arguments from both sides, the Commission determined that leaving the scene of an accident with an injury was a crime of moral turpitude and entered an order suspending Cambas’s real estate license. Cambas now appeals.

Cambas first argues that the Commission erred by denying his request for a formal hearing. The Department concedes that Cambas requested a formal hearing, but argues that Cambas was not entitled to a formal hearing because there were no disputed material issues of fact. Section 120.57(1), Florida Statutes, provides a party the right to a formal hearing when material facts are in dispute. “However, when no material facts are in dispute, an agency is not required to hold a formal hearing.” Weiss v. Dep’t of Bus. & Prof'l Regulation, 677 So.2d 98, 99 (Fla. 5th DCA 1996); see Village Saloon, Inc. v. Div. of Alcoholic Beverages & Tobacco, Dep’t of Bus. Regulation, 463 So.2d 278, 285 (Fla. 1st DCA 1984) (“When material facts are not in dispute, an agency is not required to grant a formal proceeding, even though requested by the party, and is free to insist that the matter be handled by informal proceeding.”). Therefore, even when a party specifically requests a formal hearing, an agency may conclude that no dispute of material fact has been demonstrated and proceed informally. Nicolitz v. Bd. of Opticianry, 609 So.2d 92, 93-94 (Fla. 1st DCA 1992). Because Cam-bas points to no disputed material facts, we see no error in denying his request for a formal hearing.

Cambas also argues that the Commission erred in determining that he committed a crime of moral turpitude that would authorize the Commission to discipline him. Section 475.25(1)(f), Florida Statutes, allows the Commission to discipline a real estate licensee who is “convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the activities of a licensed broker or sales associate, or involves moral turpitude or fraudulent or dishonest dealing.” Section 475.25 does not define what constitutes moral turpitude. However, the Florida Supreme Court has written:

Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933) (citations omitted). “[C]rimes constituting violations of one’s duties in dealings with members of society may be classified as crimes involving moral turpitude.” Pearl v. Fla. Bd. of Real Estate, 394 So.2d 189, 191 (Fla. 3d DCA 1981).

While Florida courts have not specifically addressed whether leaving the scene of an accident with injury is a crime of moral turpitude, the courts of several other states have determined that it is. See Frederickson v. Superior Court, 187 Ariz. 273, 928 P.2d 697, 698 (Ariz.Ct.App.1996) (determining that leaving scene of accident is crime of moral turpitude because it is “an act which reflects adversely on one’s honesty and integrity”); People v. Dewey, 42 Cal.App.4th 216, 49 Cal.Rptr.2d 537, 541 (1996) (holding that person seeking to evade criminal prosecution by leaving scene of accident commits crime of moral turpitude); People v. Bautista, 217 Cal.App.3d 1, 265 Cal.Rptr. 661, 664-65 (1990) (noting that offense of felony hit- and-run is crime of moral turpitude for purposes of impeaching witnesses); State v. Horton, 271 S.C. 413, 248 S.E.2d 263, 264 (1978) (concluding that offense of hit- and-run is contrary to justice, honesty and good morals, involves moral turpitude, and therefore, properly admitted into evidence as bearing on appellant’s credibility). We agree with these decisions.

We conclude the Commission correctly determined that leaving the scene of an accident with injury is a crime of moral turpitude, as it reflects on the honesty, integrity, and good morals of the offender.

We find no merit in the remaining issues. The Commission’s order is affirmed.

AFFIRMED.

PALMER, C.J. and SAWAYA, J., concur.

      . §§ 316.027, 316.062, Fla. Stat. (2002).

      . Crimes that Florida courts have determined constitute acts of moral turpitude with regards to disciplining real estate licensees include, but are not limited to: bookmaking, Carp v. Florida Real Estate Commission, 211 So.2d 240 (Fla. 3d DCA 1968); manslaughter, Antel v. Department of Professional Regulation, Florida Real Estate Commission, 522 So.2d 1056 (Fla. 5th DCA 1988); and possession of a controlled substance with intent to sell, Milliken v. Department of Business & Professional Regulation, 709 So.2d 595 (Fla. 5th DCA 1998). Crimes that do not constitute moral turpitude include, but are not limited to: unlawful possession of lottery tickets, Everett v. Mann, 113 So.2d 758 (Fla. 2d DCA 1959); possession of a controlled substance, Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981); and battery and criminal mischief for setting off a smoke bomb as a political protest, Nelson v. Department of Business & Professional Regulation, 707 So.2d 378 (Fla. 5th DCA 1998).


author: SILBERMAN, Judge.

text:
    Taurean Jamaal BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1615.
    District Court of Appeal of Florida, Second District.
    March 13, 2009.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Taurean Jamaal Brown appeals the revocation of his probation for driving while license suspended or revoked as a habitual traffic offender. We affirm the revocation of probation and resulting sentence but remand for the trial court to strike the finding of a violation of condition 2 from the revocation order.

The evidence presented at the revocation hearing was sufficient to prove that Brown violated conditions 4 and 50 of his probation, which included the new law violation of sale of cocaine. However, before finding that Brown violated condition 2, failure to pay the cost of supervision, the trial court was required to find that Brown had the ability to make the required payments. See Neves v. State, 502 So.2d 1343, 1344 (Fla. 2d DCA 1987); Coxon v. State, 365 So.2d 1067, 1068 (Fla. 2d DCA 1979).

At the revocation hearing, the probation officer testified that Brown had other monetary obligations in addition to the cost of supervision and that Brown was unemployed. Further, Brown had been declared indigent for the revocation proceedings. The trial court found that Brown had failed to pay his cost of supervision of $80 that had accrued as of June 30, 2004. The trial court found that Brown “had money” because he got $80 when he sold the cocaine to an undercover detective on June 15, 2004. Based on the evidence that Brown was unemployed and had other monetary obligations in connection with his probation, the evidence that he received $80 in an undercover drug deal was insufficient to prove that he had the ability to pay the cost of supervision.

Nevertheless, we affirm the revocation of probation and sentence because the trial court would have revoked probation based on the new law violation alone. See Underwood v. State, 455 So.2d 1133, 1133 (Fla. 2d DCA 1984). We remand for the trial court to strike the finding of a violation of condition 2 from the revocation order. See id. at 1134.

Affirmed and remanded.

NORTHCUTT, C.J., and WHATLEY, J., Concur.


author: CASANUEVA, Judge.

text:
    Clarence PRINGLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4733.
    District Court of Appeal of Florida, Second District.
    March 13, 2009.
    James Marion Moorman, Public Defender, and J.L. “Ray” LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Clarence Pringle was accused of sexually molesting a young teenage girl while her family and his were on a weekend campout together. He was tried before a jury on two counts: sexual battery on a person twelve years of age or older, a second-degree felony violation of section 794.011(5), Florida Statutes (2006); and lewd and lascivious molestation, a second-degree felony violation of section 800.04(5)(a), Florida Statutes (2006). He was found guilty of both counts, declared a sexual predator, and sentenced to fifteen years’ incarceration on the first count only. He appeals, raising ten issues related to the conviction and two issues relating to the sentence. We affirm the conviction without discussion of the issues relating to it. We reverse the sentence and the sexual predator designation and remand for resentencing.

A new sentencing hearing is required because immediately after the jury returned the guilty verdict, the circuit court proceeded to sentence Mr. Pringle over objection of his counsel who asked for a short continuance. Counsel claimed he and his client were not ready to present mitigation evidence and had not been provided a scoresheet. This was error and requires a new sentencing hearing. See Bennett v. State, 974 So.2d 578 (Fla. 1st DCA 2008) (reversing for a hearing because the circuit court sentenced the defendant without first conducting a hearing as defendant requested); see also Davenport v. State, 787 So.2d 32 (Fla. 2d DCA 2001) (reversing for a new sentencing hearing because defendant was not allowed to present evidence or speak at the prior sentencing hearing, citing State v. Scott, 439 So.2d 219 (Fla.1983)).

As to Mr. Pringle’s designation as a sexual predator, the State concedes that the record is incomplete and does not show whether Mr. Pringle’s predicate offenses qualify him as a sexual predator under section 775.21(4)(a), Florida Statutes (2006). See Castaneda v. State, 922 So.2d 451 (Fla. 2d DCA 2006); Hickey v. State, 915 So.2d 663 (Fla. 2d DCA 2005). Therefore, we vacate the sexual predator designation and remand for resentencing without prejudice to the State to provide evidence that Mr. Pringle has the predicate offenses.

Conviction affirmed, sentence and sexual predator designation reversed, and cause remanded for resentencing.

WHATLEY and LaROSE, JJ., Concur.


author: PER CURIAM.

text:
    Marcos LANZA, Appellant, v. DAMIAN CARPENTRY, INC. and FCCI Insurance Group, Appellees.
    No. 1D08-2971.
    District Court of Appeal of Florida, First District.
    March 13, 2009.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, and Richard E. Zaldivar, Miami, for Appellant.
    Cora Cisneros Molloy and Scott A. Beatty of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Appellees.
   PER CURIAM.

Claimant challenges the Judge of Compensation Claims’ (JCC) order enforcing the parties’ agreement to settle Claimant’s case for $17,500, inclusive of attorney’s fees and costs, arguing the essential terms of the agreement were not reached. We affirm.

Claimant’s accident occurred on December 21, 1999. Claimant hired Richard Zal-divar as his attorney and filed a petition for benefits (PFB) in 2004. In response, the Employer/Carrier (E/C) denied all benefits based on the expiration of the statute of limitations. The E/C never rescinded their denial and no benefits were paid to Claimant.

The record indicates that during settlement negotiations, Zaldivar made an offer to settle the claim for $17,500, inclusive of fees and costs. The E/C accepted the offer.

After the parties reached settlement, Zaldivar provided a “breakdown” of the settlement funds to the E/C. He requested that the E/C create documents indicating a settlement of $11,750, with a $10,000 payment to Claimant (of which $1,750 was to be designated as a “statutory” fee), along with a separate stipulation for fees paid by the E/C in the amount of $5,750. At no time prior to reaching the settlement agreement of $17,500, inclusive of fees and costs, did Zaldivar discuss a separate stipulation for fees to be paid by the E/C.

Because Zaldivar did not secure any benefits for his client (the sole legal basis for a fee payable by the E/C), the E/C did not agree to draft documents in the manner requested. Zaldivar then requested that the E/C rescind their statute of limitations defense so as to give the appearance that he obtained “benefits” and provide justification for a fee payable to him by the E/C. The adjuster refused and sent the $17,500 to Zaldivar, indicating he was free to reach an agreement with his client for the fees he desired.

The E/C filed a motion to enforce the settlement agreement and the JCC held two hearings on this motion. Zaldivar did not attend the initial hearing due to a family medical issue. The JCC continued the hearing to ensure Zaldivar’s personal appearance. The JCC entered an order continuing the hearing and requiring Zal-divar’s personal appearance at the next hearing.

Zaldivar did not attend the continued hearing held nearly 90 days later and instead sent an associate who informed the JCC that, due to medical reasons, it was impossible for Zaldivar to appear in person. The JCC called Zaldivar and left a message informing him the hearing would be rescheduled when he could personally attend. The JCC received a return message from Zaldivar that “he didn’t care what the judge was going to do regarding the hearing.” Based on this course of conduct, the hearing proceeded without any evidence being introduced opposing the E/C’s assertion that the parties entered into an agreement settling the claim, inclusive of attorney’s fees and costs, for $17,500. At the conclusion of the hearing, the JCC found that the parties entered into an agreement to settle the entire claim for $17,500, inclusive of attorney’s fees and costs, and that the issues raised by Claimant’s counsel did not address whether there was a binding settlement, but rather addressed whether there was a basis for Zaldivar to obtain an attorney’s fee in excess of the statutory guidelines. The JCC enforced the agreement and dismissed Claimant’s case with prejudice.

On appeal, Zaldivar concedes the fact that the parties reached an agreement to settle the case for a gross sum of $17,500, inclusive of fees and costs, but argues that the parties did not have a meeting of the minds as to the “essential terms” of the agreement because the E/C, after reaching such an agreement, refused to restructure the settlement in a manner that would deny Claimant monies to which he might be entitled. Zaldivar contends that the fact that the settlement was negotiated for $17,500, inclusive of fees and costs, should not control the outcome of this case because it is common practice to negotiate “all inclusive” settlements and, once the dollar amount is agreed upon, to determine a breakdown after the fact.

The definition of “essential term” varies widely according to the nature and complexity of each transaction and is evaluated on a case-by-case basis. Nichols v. The Hartford Ins. Co. of the Midwest, 834 So.2d 217 (Fla. 1st DCA 2003). Contracts are made in legal contemplation of the existing applicable law. Carter v. Gov’t Employees Ins. Co., 377 So.2d 242 (Fla. 1st DCA 1979); see also S. Crane Rentals, Inc. v. City of Gainesville, 429 So.2d 771 (Fla. 1st DCA 1983) (explaining where parties’ contract was silent as to right to anticipatory repudiation, governing law, rather than trade custom, controlled available remedy).

Here, at the time the settlement agreement was reached, Claimant was responsible for paying his attorney’s fees and costs and Claimant’s demand for settlement was for a sum certain, inclusive of fees and costs. Once these terms were established, under no interpretation of the agreement would the E/C have to pay an amount greater than $17,500 to fully settle all claims whether raised by Claimant or his attorney. Consequently, the issue as to the amount of Zaldivar’s fee (which he failed to include as an initial term of settlement) would be an issue in which the E/C had no contractual interest. Rather, it would be an issue between Claimant’s counsel and Claimant (and ultimately the JCC). Thus, the amount of Zaldivar’s fee was a non-essential term of the agreement. The parties, having reached an agreement to settle the case inclusive of fees and costs for a sum certain with no other contingencies, had agreed on the essential terms of the settlement.

Zaldivar’s later attempts to secure a self-serving “breakdown” were new offers to settle additional matters which could be rejected without nullifying the original agreement. See Bonagura v. Home Depot, 991 So.2d 902, 904 (Fla. 1st DCA 2008).

AFFIRMED.

KAHN, THOMAS, and ROBERTS, JJ., concur.


author: VAN NORTWICK, J.

text:
    Michael Darrell ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5953.
    District Court of Appeal of Florida, First District.
    March 13, 2009.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Daniel A. David, Assistant Attorney General, and Trisha Meggs Pate, Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Michael Darrell Robinson, a sexual offender, appeals his conviction for failure to comply with the sexual offender registration requirements of section 943.0435(4), Florida Statutes (2006). In addition, he appeals his sentence contending that the trial court mistakenly concluded it was precluded from considering other mitigating factors besides the statutory factors in section 921.0026(2), Florida Statutes (2006), in determining whether it could downwardly depart from the sentencing guidelines. We reverse appellant’s conviction because, as a matter of law, the evidence was insufficient to establish a violation of section 943.0435(4). Because of our holding, it is not necessary for us to address the sentencing issue.

It is undisputed that appellant was advised of the sexual offender reporting requirements when he was released from prison. On February 5, 2007, appellant completed the Florida Department of Law Enforcement (FDLE) sexual offender registration form stating that he was vacating his residence at 7028 S.W. 18th Place, Gainesville, Florida and would be residing at 413 South Main Street, St. Francis House, in Gainesville, the local homeless shelter. He listed St. Francis House as his current permanent residence. Section 943.0435(1)(c) provides that “permanent residence” has the same meaning ascribed in section 775.21, Florida Statutes (2006). Section 775.21(2)(f) defines “permanent residence” as a “place where the person abides, lodges, or resides for 5 or more consecutive days.” The FDLE form does not provide the offender the option of stating that he has no residence due to homelessness.

The detective who monitors and tracks sexual offenders and predators began an investigation because he knew that it was the policy of the St. Francis House not to allow sexual offenders and predators to reside at the facility. In the meantime, on February 21, 2007, appellant executed another FDLE registration form in which he changed his permanent address from St. Francis House to 7204 S.W. 44th Place, Apartment 2, Gainesville.

On May 3, 2007, appellant was charged with “knowingly and intentionally” failing “to report a change of his temporary or permanent address ... contrary to section 943.0435(4) ...” Section 943.0435(4)(b) provides:

A sexual offender who vacates a permanent residence and fails to establish or maintain another permanent or temporary residence shall, within 48 hours after vacating the permanent residence, report in person to the sheriffs office of the county in which he or she is located. The sexual offender shall specify the date upon which he or she intends to or did vacate such residence. The sexual offender must provide or update all of the registration information required under paragraph (2)(b). The sexual offender must provide an address for the residence or other location that he or she is or will be occupying during the time in which he or she fails to establish or maintain a permanent or tempomng residence.

(Emphasis supplied).

At his subsequent nonjury trial, a client services representative for St. Francis House testified that appellant was not a resident in February 2007, explaining that “[h]e inquired about a room, but he never stayed there.” She added that sexual offenders are not allowed a room, but that they can eat at the shelter. She acknowledged that individuals who could not obtain a room often “hang out around St. Francis House.” Regarding those individuals, she testified that she would know who was at the shelter during her work hours, 7:30 a.m. to 3:30 p.m., but that she had no personal knowledge about the people who came after she left work.

Appellant testified that he arrived at St. Francis House on or about February 2 and for the next two weeks he slept outside the shelter with about 100 other people. He stated that he never asked to sleep inside on a bed, but he did ask a client services representative if he could sleep inside when the temperature was below freezing. He testified that, when he worked for Labor Finders, he left the shelter at approximately 4:30 a.m. and, when he secured a job with a construction company, he left between 6:00 and 6:15 a.m. After sleeping approximately two weeks at the shelter, he rented an apartment late on a Friday afternoon and the following Monday morning he registered with FDLE and at the county jail.

The trial court ruled that the shelter could not constitute appellant’s permanent residence because “sleeping on the sidewalk outside the place where you’re not allowed is [not] lodging and residing at the place,” and that, therefore, appellant had violated section 943.0435(4). We must respectfully disagree.

We do not believe it is necessary to reach the question of whether a homeless shelter qualifies as a permanent residence under the particular facts of this case. We reach this conclusion because it is undisputed that appellant did advise the local authorities where he could be located and complied with the requirement of section 943.0435(4)(b) that he “provide an address for the residence or other location that he ... is or will be occupying during the time in which he ... fails to establish or maintain a permanent or temporary residence” when he gave the address of St. Francis House. The fact that a client services representative at St. Francis House did not see appellant at the shelter is not dispositive, because appellant explained that he left early in the morning to go to work, before the representative arrived at the shelter for her workday. See Hines v. State, 881 So.2d 52 (Fla. 4th DCA 2004) (holding that the fact that the probation officer did not locate the offender at the registered residence after several attempts did not establish that the offender had changed his residence). The State did not contradict appellant’s unrebutted testimony that he was sleeping at the shelter during the evening hours and leaving before the shelter’s representative arrived at work in the morning. Accordingly, the evidence is insufficient that appellant knowingly and intentionally failed to report a change in residence. Compare Van Wagner v. State, 677 So.2d 314, 317 (Fla. 1st DCA 1996) (“While for a time [the probationer] had no fixed abode and no address to give, he did not withhold information he had from Ms. Glesenkamp. Nor was it shown that he made any change of residence without her consent. Appellant’s penury, homelessness, and unemployment were not intentional, as far as the record shows.”).

REVERSED.

KAHN and WEBSTER, JJ., concur.


text:
    Peggy A. SCHATZ and William E. Schatz, her husband, Appellants, v. Forrest C. HASLUP, M.D.; St. Joseph’s Specialty Services, Inc.; Thomas M. Kerr, M.D.; Thomas M. Kerr, M.D., P.A.; St. Joseph's Health Care Center, Inc.; and St. Joseph's Hospital, Inc., d/b/a St. Joseph's Hospital, Appellees.
    No. 2D08-2825.
    District Court of Appeal of Florida, Second District.
    March 13, 2009.

      H. Dennis Rogers of H. Dennis Rogers, P.A., Clearwater, for Appellants.
    H. Hamilton Rice, III, and Ronald E. Bush of Bush, Graziano & Rice, P.A., Tampa, for Appellees.

      . Judge Fulmer has been substituted for Judge Stringer, an original panel member in this proceeding, and she has viewed and listened to a recording of the oral argument.

   MORRIS, ROBERT J., JR., Associate Judge.

Peggy A. Schatz and William E. Schatz, the plaintiffs below, appeal a final summary judgment entered against them on their medical malpractice and related claims against Forrest C. Haslup, M.D.; St. Joseph’s Specialty Services, Inc.; Thomas M. Kerr, M.D.; Thomas M. Kerr, M.D., P.A.; St. Joseph’s Healthcare Center, Inc.; and St. Joseph’s Hospital, Inc., d/b/a St. Joseph’s Hospital (referred to collectively as the “Defendants”). Because the record reveals a disputed issue of material fact, we reverse.

Ms. Schatz obtained sclerotherapy from Robert J. Ailes, M.D., at Ideal Image, Inc., in order to remove spider veins on her legs. Complications arose and she presented to St. Joseph’s Hospital in Tampa for diagnosis and treatment. Within about two weeks of presenting to the emergency room and being admitted to the hospital, Ms. Schatz’s right leg was amputated.

The Schatzes filed a lawsuit against numerous parties, including, among others, Dr. Ailes, Ideal Image, and the Defendants. The Schatzes settled with Dr. Ailes and Ideal Image. Several years later and shortly before the scheduled trial, the Defendants filed a motion for summary judgment asserting that the Schatzes’ release of the claims against Dr. Ailes and Ideal Image also released them. The Defendants argued that Dr. Ailes and Ideal Image were initial tortfeasors and that they were subsequent tortfeasors and that the release did not expressly reserve to the Schatzes a right to proceed against them.

In response to and in opposition of the Defendants’ motion for summary judgment, the Schatzes filed a number of items most notable of which was a written irrevocable assignment of rights to the Schatzes that was signed by Dr. Ailes and the president of Ideal Image. The trial court granted the Defendants’ motion and entered a final summary judgment in their favor. This appeal ensued.

The trial court erred in granting summary judgment in favor of the Defendants. The trial court concluded that the only recourse available to the Schatzes was to file a separate action for reformation. A separate reformation proceeding was not required in this case. Here, the Schatzes presented a written document signed by Dr. Ailes and Ideal Image in which they reassigned to the Schatzes all rights they might have inadvertently acquired as a result of the release. Therefore, summary judgment was improperly entered.

Reversed and remanded.

FULMER and WALLACE, JJ, Concur.

      . The trial court’s ruling implicitly suggests that there is no dispute concerning whether the Defendants were subsequent tortfeasors, rather than joint tortfeasors. It appears, however, that the Defendants' tortfeasor status is disputed. Our opinion should not be read as a determination that Dr. Ailes and Ideal Image were initial tortfeasors and that the Defendants were subsequent tortfeasors.

      . The Defendants’ argument was based on principles that generally arise when a person injured by the negligence of another seeks medical treatment, which in turn aggravates the injury- See Keith v. B.E.W. Ins. Group, Inc., 595 So.2d 178, 179 (Fla. 2d DCA 1992). In such circumstances, the law regards the negligence of the initial wrongdoer as the proximate cause of the subsequent negligent treatment; the aggrieved party may recover the entirety of their damages from the initial tortfeasor and the initial tortfeasor may then maintain an independent action for subrogation against the subsequent tortfeasor. Id. at 179. "When the injured party and the initial tortfeasor enter into a settlement and the injured party does not clearly reserve his cause of action against the successor tortfeasor, the legal presumption is that the injured party recovered the entirety of his damages by way of the settlement.” Id. at 180. The aggrieved party thus loses the right to sue the subsequent tortfeasor. Id. (citing Rucks v. Pushman, 541 So.2d 673 (Fla. 5th DCA 1989)).

      . In Smith v. Harr, 571 So.2d 575 (Fla. 5th DCA 1990), the Fifth District opined that a similar reassignment of rights established an issue of material fact relating to the intention of the settlement between the plaintiff and the initial tortfeasor and that summary judgment was thus improper. We conclude that the reassignment of rights from Dr. Ailes and Ideal Image made it unnecessary to address the issue of the intent of the release signed by the Schatzes.


author: VILLANTI, Judge.

text:
    JP MORGAN CHASE, as Trustee for Residential Funding Corporation, Appellant, v. NEW MILLENNIAL, LC; Branch Banking & Trust Company, Successor by merger to Republic Bank; Ross W. Jahren; Unknown Tenant No. 1; Unknown Tenant No. 2; and All Unknown Parties Claiming Interests by, Through, under or against a named defendant to this action, or having or claiming to have any right, title, or interest in the property herein described, Appellees.
    No. 2D07-5937.
    District Court of Appeal of Florida, Second District.
    March 18, 2009.

      Roy A. Diaz of Smith, Hiatt & Diaz, P.A., Fort Lauderdale, for Appellant.
    A. Christopher Kasten and Karen Cox of Bush Ross, P.A., Tampa, for Appellees New Millennial, LC, and Branch Banking & Trust Company.
    No appearance for remaining Appellees.
   VILLANTI, Judge.

JP Morgan Chase (JP Morgan) appeals an order granting summary judgment in favor of New Millennial, L.C., and Branch Banking & Trust (BB & T). The appeal arises from a mortgage foreclosure action filed by JP Morgan against New Millennial and BB & T. JP Morgan sought to foreclose two mortgages which originated in favor of AmSouth Bank and which were subsequently assigned to JP Morgan. Because the assignments from AmSouth to JP Morgan were not recorded, the trial court granted summary judgment against JP Morgan and in favor of New Millennial and BB & T, finding that New Millennial was a subsequent purchaser and BB & T was a subsequent creditor for valuable consideration without notice of the assignments to JP Morgan. Because the trial court erred in so holding under the facts of this case, we reverse.

FACTS

In 2000, Ross W. Jahren obtained two mortgages from AmSouth in connection with the purchase of real property located in Pinellas County. The two mortgages in favor of AmSouth were recorded in the public records of Pinellas County. In 2004, AmSouth assigned the mortgages to JP Morgan, but this assignment was not recorded in the public records.

In 2006, Jahren entered into an agreement to sell the property to New Millennial. BB & T financed New Millennial’s purchase. As part of the sales process, New Millennial’s closing agent performed a title search on the property and discovered the two recorded AmSouth mortgages, which were reflected as still outstanding. Chicago Title Insurance Company then issued a Commitment for Title Insurance indicating that it would issue title insurance upon receipt of the “cancelled note[s] and satisfaction^] or release[s]” for the two mortgages executed by Jahren in favor of AmSouth. New Millennial’s closing agent failed to obtain the cancelled notes and satisfactions or releases requested by Chicago Title. Instead, the closing agent contacted AmSouth by telephone and was allegedly told by an unidentified AmSouth representative that the loans were paid off and that written confirmation of this fact would be provided. On April 24, 2006, someone on behalf of AmSouth faxed to the closing agent two computer screen printouts styled “Installment Loan Account Profile,” which reflected that the loans had a “close date” of June 30, 2004, and had a current balance of $0. The documents also stated “ *PD OFF.” Jahren and New Millennial finalized the sale of the property without obtaining the cancelled notes and satisfactions or releases specifically requested by Chicago Title.

The AmSouth mortgages were never satisfied, and JP Morgan began foreclosure proceedings as AmSouth’s assignee. Importantly, New Millennial and BB & T did not defend by arguing that the two notes had been paid off and the mortgages satisfied. Rather, they defended by arguing that the mortgages were ineffective and unenforceable against them because JP Morgan had not recorded the assignments received from AmSouth, as required by section 701.02, Florida Statutes (2004). Both sides filed motions for summary judgment. On September 11, 2007, the trial court denied JP Morgan’s motion for summary judgment and granted New Millennial and BB & T’s motion, finding:

1. AmSouth Bank assigned the two mortgages at issue in this case to JP Morgan Chase (“Assignments”). The Assignments were not recorded in accordance with § 701.02, Florida Statutes.
2. New Millennial is a subsequent purchaser for valuable consideration, was without notice of the Assignments, and is protected by § 701.02, Florida Statutes.
3. BB & T is a subsequent creditor for valuable consideration, was without notice of the Assignments, and is protected by § 701.02, Florida Statutes.
4. The mortgages being foreclosed by JP Morgan Chase in this case are ineffective and unenforceable against New Millennial and BB & T[.]

(Underline emphasis added.) The court subsequently denied JP Morgan’s motion for rehearing or reconsideration, stating:

Moreover, the Court finds that the Defendant New Millennial was a subsequent purchaser for valuable consideration, who had no knowledge or notice of the mortgages at issue here. Rather, New Millennial made a diligent inquiry to determine whether any amounts were due on the AmSouth mortgage and they were advised that the loan in question was paid in full. Moreover Defendant BB & T is a subsequent creditor for valuable consideration with no knowledge or notice of the mortgages at issue. Accordingly, pursuant to section 701.02, Florida Statutes, the mortgages at issue are not effective or enforceable against New Millennial or BB & T.

(Underline emphasis added.) This appeal followed.

ANALYSIS

We review de novo an order granting summary judgment. Knowles v. JPMorgan Chase Bank, N.A., 994 So.2d 1218, 1219 (Fla. 2d DCA 2008). Summary judgment should be granted “only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, and (2) the moving party is entitled to a judgment as a matter of law.” Id. (citations omitted).

Chapter 701, Florida Statutes (2004), is entitled “ASSIGNMENT AND CANCELLATION OF MORTGAGES.” Section 701.01 states:

Assignment. — Any mortgagee may assign and transfer any mortgage made to her or him, and the person to whom any mortgage may be assigned or transferred may also assign and transfer it, and that person or her or his assigns or subsequent assignees may lawfully have, take and pursue the same means and remedies which the mortgagee may lawfully have, take or pursue for the foreclosure of a mortgage and for the recovery of the money secured thereby.

(Underline emphasis added.) Section 701.02 provides, in relevant part:

Assignment not effectual against creditors unless recorded and indicated in title of document.—
(1) No assignment of a mortgage upon real property or of any interest therein, shall be good or effectual in law or equity, against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless the assignment is contained in a document which, in its title, indicates an assignment of mortgage and is recorded according to law.
(2) The provisions of this section shall also extend to assignments of mortgages resulting from transfers of all or any part or parts of the debt, note or notes secured by mortgage, and none of same shall be effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration without notice, unless a duly executed assignment be recorded according to law.

(Underline emphasis added.)

JP Morgan first argues that the trial court misapplied section 701.02 when it held that New Millennial was a subsequent purchaser and BB & T was a subsequent creditor for valuable consideration and without notice of the assignments. JP Morgan’s position is that section 701.02(1) only applies to estop an earlier purchaser/assignee of a mortgagee — the person or entity that loaned the money involved in the mortgage and obtained a security interest on the piece of property — from claiming priority in the same mortgage chain as against a subsequent assignee of the same mortgage when the earlier mortgagee fails to record the earlier assignment of the mortgage. In other words, if the original mortgagee assigns the mortgage to Entity A and Entity A fails to record that assignment, Entity A cannot claim priority over a latter assignee of the same mortgage (Entity B). We agree with JP Morgan’s interpretation of the statute.

Although this is an issue of first impression in this district, we are guided in its resolution by Kapila v. Atlantic Mortgage & Investment Corp. (In re Halabi), 184 F.3d 1335 (11th Cir.1999). In that case, Mr. Halabi gave Republic Savings Bank a mortgage on real property. Id. at 1336. Although Republic Savings Bank recorded the mortgage, that mortgage was later assigned several times and the entity to which the mortgage was last assigned failed to record its assignment. Id. When the bankruptcy trustee, standing in the shoes of mortgagor Halabi, tried to avoid the mortgage debt based on the last as-signee’s failure to record the assignment, the bankruptcy court held that section “701.02’s recording requirement is applicable only to (and enforceable by) competing creditors or subsequent bon,a fide purchasers of the mortgagee, not by the mortgagor.” Id. at 1338 (underline emphasis added). The court concluded that the statute does not protect the mortgagor, nor anyone “claiming under a mortgagor.” Id. We agree with the reasoning of In re Halabi because its interpretation of the statute makes sense.

First, “[w]hen interpreting a statute and attempting to discern legislative intent, courts must first look at the actual language used in the statute.” Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000). Here, the title of chapter 701 — Assignment and Cancellation of Mortgages — bears out the obvious: it applies to purchasers of mortgages, not to purchasers of real property or their lenders.

Furthermore, as noted in In re Halabi:

The recording requirement is not intended to protect one claiming under a mortgagor-against whose property there is already a perfected mortgage-with respect to subsequent assignments of the mortgage. The mortgagor has actual notice of the original mortgage, and anyone claiming under the mortgagor has constructive notice if the mortgage is recorded. From the point of view of the mortgagor or someone standing in his shoes, a subsequent assignment of the mortgagee’s interest-ivhether record,ed or not-does not change the nature of the interest of the mortgagor or somsone claiming under him. Nor should a failure to record any subsequent assignment afford the mortgagor or [anyone] standing in his shoes an opportunity to avoid the mortgage.

184 F.3d at 1338 (emphasis added). Because the mortgagor’s successor “had constructive notice of a mortgage by whomever held, he cannot assume the status of a bona fide purchaser without notice.” Id. at 1338 n. 1 (underline emphasis added). Any other interpretation of section 701.02 would turn well-established secured transaction principles on their heads: a buyer could effectively ignore a recorded mortgage simply because the mortgage/note has been sold in the aftermarket to a different financial institution which has failed to record the assignment. Like the court in In re Halabi, we find that “[w]hile each subsequent assignment had a bearing on the rights of the mortgagees inter se, it did not affect the rights or interests of the debtor or the debtor’s [successor]....” Id. at 1339.'

As pointed out in In re Halabi, in Bradley v. Forbs, 116 Fla. 350, 156 So. 716 (1934), the Florida Supreme Court held that the predecessor of section 701.02 applied only to creditors or subsequent purchasers of a mortgagee. In re Halabi, 184 F.3d at 1338 n. 1. The court in Bradley explained:

[Wjhen the original mortgage was recorded and no satisfaction thereof entered upon the record, in the absence of other definite proof to the contrary, it must be assumed that the mortgage is still in full force and effect in the hands of some one and a subsequent purchaser or mortgagee has the right to require the production of the mortgage and note which it is given to secure, or a satisfaction on record.

156 So. at 718; see also Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000) (“As long as the debt remained and the mortgage was unsatisfied of record, there was no right to presume that it had been satisfied or extinguished.”).

The fact of the matter is that, in this case, the original mortgages on the property were duly recorded and no satisfaction was entered on the public record. New Millennial and BB & T had actual knowledge of the existence of the two recorded mortgages and also had actual knowledge that the public records reflected that those mortgages had not been satisfied. Therefore, until they received satisfactions on record, New Millennial and BB & T should have assumed that the mortgages were still in full force and effect in someone’s hands. Their title insurance agent, Chicago Title, specifically requested “production of the cancelled note[s] and satisfaction^] or release[s]” of the recorded mortgages executed by Jahren to AmSouth. Nevertheless, New Millennial and BB & T failed to obtain those documents which would have eliminated any doubt that the debt had been satisfied or which would have alerted them to the fact that they needed to withhold monies at the closing to satisfy the notes and mortgages. By failing to do so, they cannot be considered a bona fide purchaser and a bona fide creditor without notice and cannot consequently avoid the mortgages assigned to JP Morgan. Accordingly, the trial court, erred in concluding that New Millennial and BB & T could avoid the mortgages just because JP Morgan had failed to record the assignments.

Next, New Millennial and BB & T posit that even if this court agrees with the reasoning and holding of In re Halabi, that case is inapplicable here because their representatives followed the procedures set forth in section 701.04 by obtaining a computer printout furnished by AmSouth indicating that the recorded debt had been satisfied. Therefore, their argument follows, they had no notice of the assignment, and they reasonably believed the original mortgages had been paid off. The trial court adopted this argument, finding that New Millennial was a bona fide purchaser without notice because it had “diligently” inquired about the AmSouth mortgages and had been advised that they had been paid in full. We reject New Millennial and BB & T’s argument because the procedures outlined in section 701.04 were not followed in this case.

Section 701.04 provides, in relevant part:

Cancellation of mortgages, liens, and judgments.—
(1) Within 14 days after receipt of the written request of a mortgagor, the holder of a mortgage shall deliver to the mortgagor at a place designated in the written request an estoppel letter setting forth the unpaid principal balance, interest due, and the per diem rate. Whenever the amount of money due on any mortgage, lien, or judgment shall be fully paid to the person or party entitled to the payment thereof, the mortgagee, creditor, or assignee, or the attorney of record in the case of a judgment, to whom such payment shall have been made, shall execute in writing an instrument acknowledging satisfaction of said mortgage, lien, or judgment and have the same acknowledged, or proven, and duly entered of record, in the book provided by law for such purposes in the proper county. Within 60 days of the date of receipt of the full payment of the mortgage, lien, or judgment, the person required to acknowledge satisfaction of the mortgage, lien, or 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.

(Underline emphasis added.) The plain effect of the above provision is to enable the closing agent to timely obtain a satisfaction of mortgage if it remits to the mortgagee the amount set forth in an es-toppel letter. In this case, the title search reflected two recorded mortgages on the property. In an affidavit signed by Jahren on May 8, 2006, before closing on the transaction, he stated that the property was free and clear of all encumbrances, except those which were shown on the Title Insurance Commitment issued by Chicago Title. By so qualifying his affidavit, Jahren thereby acknowledged the debt with AmSouth was still outstanding as of that date. Yet, neither Jahren nor New Millennial nor its agents made a written request for an estoppel letter related to the two recorded mortgages, as required by section 701.04(1). Instead, they proceeded to closing even though there was no recorded “instrument acknowledging satisfaction of [the] mortgage, lien, or judgment ... duly entered, of record in the book provided by law for such, purposes in the proper county.” § 701.04(1) (emphasis added). The computer printouts faxed by AmSouth to the closing agent pursuant to a telephone inquiry were, at best, a red flag that raised the questions: (1) Did the printouts mean that the mortgages and notes were satisfied two years prior or were the notes “closed out” because they and the mortgages were transferred to or purchased by a third party?; and (2) Given that section 701.03 requires that the mortgagee cancel a fully paid mortgage “within 60 days” of payment, why was there no satisfaction of the mortgages on record two years after the debt was allegedly satisfied? Thus, the printout screens obtained by New Millennial and BB & T could not be viewed as an estoppel letter, nor could they serve as substitute for duly recorded satisfactions of mortgage documents. Under any interpretation of the undisputed facts, the continued existence and validity of the mortgages and notes was never explained away so as to establish New Millennial’s and BB & T’s status as bona fide purchaser and creditor for value.

CONCLUSION

“[I]t is the debt and not the mere evidence of it which is secured.” Drake Lumber Co. v. Semple, 100 Fla. 1757, 130 So. 577, 581 (1930). Under the circumstances of this case, in the absence of cancelled notes or recorded satisfactions of the two mortgages, the trial court could not legally declare the loans “ineffective and unenforceable” as against New Millennial and BB & T. To do so deprived JP Morgan of its right to pursue the means and remedies of foreclosure, which are legal attributes of the mortgages it purchased. Hence, we reverse the summary judgment. Because the record is clear that JP Morgan’s priority was not impugned vis-a-vis the Appellees, we remand for the trial court to vacate the summary judgment and reinstate the foreclosure proceedings with the priority status established as set forth in this opinion.

Reversed and remanded with directions.

ALTENBERND and DAVIS, JJ., Concur.

      . The closing agent did not obtain the name of the AmSouth representative who provided this information.

      . Although Jahren is a nominal party to this appeal and did not file an appearance, we note that his defenses below did not create a disputed issue of material fact as to whether the two AmSouth notes had been paid off and the mortgages satisfied. He did not attach proof of payment, such as checks showing that the two AmSouth notes had been paid off and the mortgages satisfied. Rather, he filed copies of the same two computer screen printouts discussed above. As discussed herein, these documents did not demonstrate that the mortgages had been satisfied.

      . Our opinion should not be viewed as condoning JP Morgan's failure to record the assignment. Rather, we simply conclude that the failure to record the assignment here was not fatal to JP Morgan's right as a matter of law to pursue the remedy of foreclosure. Obviously, a large part of the underlying litigation would have been avoided if the assignment had been duly recorded, as is typically done.

      . In opposition to New Millennial and BB & T's motion for summary judgment, JP Morgan filed the affidavit of Brian Buzbee, Assistant Vice President of Regions Bank. Regions Bank is the successor to AmSouth. Mr. Buz-bee’s affidavit stated that the type of screen printout obtained by New Millennial's closing agent would show a zero balance on a loan either when a loan is legitimately paid off in full or when the loan was transferred, assigned, or sold.

      . Although this opinion likely precludes New Millennial and BB & T from obtaining relief from JP Morgan, nothing herein should be construed to preclude them from pursuing any other remedies that may be available to them against any other party involved in this transaction.


author: PER CURIAM. FARMER, J.,

text:
    Alan HEDRICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4752.
    District Court of Appeal of Florida, Fourth District.
    March 18, 2009.
    Rehearing Denied May 6, 2009.

      John M. Weinberg, Fort Lauderdale, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals a trial court order that denied his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief after holding an evidentiary hearing on two of the claims. We affirm, but write to address an ever-increasing problem facing trial and appellate courts— abuse of the post-conviction relief process.

Factual and Procedural Background

The defendant was convicted after jury trial of first-degree felony murder, burglary of a dwelling with an assault or battery, and two counts of aggravated battery. The court sentenced the defendant to life in prison on the murder and burglary convictions and fifteen years in prison on the aggravated battery counts. We affirmed the convictions on direct appeal. Hedrick v. State, 848 So.2d 333 (Fla. 4th DCA 2003).

The evidence of the defendant’s participation in the savage, home-invasion attack that resulted in the death of one of the three victims was overwhelming. The attack occurred after Stanley Grontkowski’s son and some of his friends stole marijuana from the victims’ home. Thereafter, the victims directed an individual to accost the boys. The boys were beaten up and Grontkowski’s son suffered a broken nose.

In retaliation, Grontkowski gathered a group of men, including the defendant, and organized a plan to exact revenge on the victims. A member of the group cut the phone line to the victims’ home. The men knocked on the door and then forced their way into the home, brutally beating the victims with a two-by-four, golf club, and baton-like weapon, which they had brought for that purpose. One of the victims died from massive head injuries suffered in the attack. Numerous witnesses testified that the defendant was a willing participant in the plan and the attack.

After the crime, three of the attackers, Grontkowski, the defendant, and Charles “Chip” Alienello, went to a hotel room and celebrated by drinking beer. Police, who had been investigating the bloody crime scene and were already aware that Gront-kowski was involved in the attack, learned of the defendants’ location and confronted them early the next morning. Two assistant state attorneys were called to the hotel to assist the officers by overseeing the collection of evidence.

The Post-conviction Filings

On January 10, 2005, the defendant filed a pro se 109-page, post-conviction motion, excluding exhibits, which raised about 24 claims for relief. He then filed a supplemental motion raising additional allegations and more claims. Judge Sehack entered a detailed order explaining the basis for summarily denying each of the claims. Judge Schack ordered an evidentiary hearing on two claims: (1) counsel was ineffective in permitting the defendant to remain shackled during the trial, preventing him from walking around the courtroom and viewing exhibits; and (2) counsel was ineffective in failing to object to the co-defendants appearing in shackles and prison garb when the state used them to demonstrate the relative heights of the attackers.

Then, through post-conviction counsel, the defendant filed a supplemental motion raising three more claims. These claims were summarily denied as well. In total, the defendant raised more than thirty claims in more than 130 pages of type-spaced text, not including the hundreds of pages attached as exhibits. Many of the claims in the abusive motion accused assistant state attorneys of misconduct because they were present at the hotel during the investigation and one of them wielded a gun provided by a police officer before the attackers were confronted. The motions make many speculative, unfounded and paranoid allegations’ that the prosecutors, several defense attorneys, and the trial judge conspired to manipulate records.

Abusing the Process of Post-Conviction Relief

The laudable goals of post-conviction relief are lost when defendants abuse the process. The pro se motions filed in this case were clearly abusive. Thirty claims in more than 130 pages of type-spaced text, not including the hundreds of pages attached as exhibits, created a legal forest in which even a valid claim could easily be lost.

Trial courts have discretion to impose reasonable page limits on motions for post-conviction relief. See Gidney v. State, 925 So.2d 1076 (Fla. 4th DCA 2006) (commenting on an estimated 250-page, post-conviction relief motion); Schwenn v. State, 958 So.2d 531 (Fla. 4th DCA 2007) (trial court has authority to place page limitations on post-conviction filings and 50 pages is a reasonable benchmark). Even post-conviction motions filed in death penalty cases in Florida are subject to a 75-page restriction. Fla. R.Crim. P. 3.851(e)(1).

We urge the Supreme Court of Florida and the Criminal Procedure Rules Committee to consider amending Rule 3.850 to provide a reasonable page restriction on post-conviction motions filed in non-capital cases. Other states have recognized the problems caused by abusively lengthy post-conviction motions and have implemented such page restrictions. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35, 39 (2003) (discussing a long-standing rule limiting post-conviction pleadings to ten pages without leave of court); State v. Leiser, 294 Wis.2d 695, 717 N.W.2d 852 (Wis.Ct.App.2006) (describing a 20-page limitation on post-conviction motions implemented by trial court local rule).

Post-conviction litigants need to understand that, when seeking post-conviction relief, less is more. A legitimate claim that may merit relief is more likely to be overlooked if buried within a forest of frivolous claims. In post-conviction proceedings, the search for injustice is like the search for a needle in a haystack. See Brown v. Allen, 344 U.S. 443, 537, 73 S.Ct. 397, 97 L.Ed. 469 (1953) (Jackson, J., concurring) (observing that one “who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search”). The needle is far more difficult to find the larger the haystack. Movants and the criminal justice system would be well-served by a rule that requires more careful consideration of the post-conviction claims, limiting them to serious, cognizable errors. A page limitation would hopefully lead movants to carefully construct their claims and discourage frivolous claims.

Rule 3.850 was intended to provide relief for a very narrow class of serious errors that could not be corrected on direct appeal. Ives v. State, 993 So.2d 117, 121 (Fla. 4th DCA 2008). See Baker v. State, 878 So.2d 1236, 1239-1240 (Fla.2004) (discussing the history of Rule 3.850).

Instead, convicted defendants now file Rule 3.850 and 3.800(a) motions as a matter of course in almost every case. In many instances, the movant persists in filing successive motions. See Fla. R.Crim. P. 3.850(h). An already burdened, and under-financed, criminal justice system is further constrained by the increasing number of frivolous, abusively lengthy, and time-consuming post-conviction motions. Rules that help limit the filing of frivolous claims would reduce the amount of “hay” in the justice system, so the “needle” of injustice is easier to find.

The legislature has provided a mechanism for courts to sanction abusive post-conviction litigants by referring them to prison authorities for disciplinary proceedings. § 944.279(1), Fla. Stat. (2008). However, disciplinary procedures may not be effective to deter those serving life sentences without eligibility for parole. Sometimes the sanction of dismissal and refusal to accept further pro se filings from the abusive litigant is the only efficacious remedy to conserve the judiciary’s limited resources. See State v. Spencer, 751 So.2d 47 (Fla.1999). We now address the substance of the defendant’s numerous claims.

Summarily Denied Claims

In his initial brief, the defendant’s post-conviction counsel makes a conclusory argument that the trial court should not have summarily denied the numerous claims raised in these motions. Counsel attempts to list all of the defendant’s claims, but notes that, if he has missed some, this court should reverse the denial of those claims as well. We find this conclusory argument is insufficient to merit relief in this appeal, and these claims are deemed waived. Doorbal v. State, 983 So.2d 464, 482-83 (Fla.2008).

Despite our finding that the claims were waived, we have reviewed them and determine that the defendant is not entitled to relief. Prosecutors did not engage in misconduct in this case and none of the claims demonstrate a reasonable probability that the outcome of the case would differ. Stancle v. State, 980 So.2d 619 (Fla. 4th DCA 2008) (explaining that where one prong of an ineffective assistance of counsel claim is not met, such as prejudice, a court need not address the other prong, i.e. whether counsel was deficient).

Motions to Disqualify

Counsel also argues that Judge Fennelly should have granted a series of motions to disqualify that were filed by the defendant and his post-conviction counsel during these proceedings. Judge Fennelly was the trial judge, but was retired at the time the post-conviction motion was filed. Judge Schack entered the order summarily denying the vast majority of the claims, but requiring an evidentiary hearing on two of them. Judge Schack later recused himself from presiding over the evidentia-ry hearing, and Judge Fennelly, who was recalled and assigned to the case, heard and ruled on the claims argued at the evidentiary hearing.

The defendant argues that he was entitled to have Judge Schack’s order summarily denying his claims reconsidered, but he did not move for reconsideration within the twenty-day period provided by rule. Fla. R. Jud. Admin. 2.330(h). The defendant also argues that Judge Fennelly should have granted a November 2004 motion to disqualify and a series of renewed motions to disqualify. The initial motion to disqualify was untimely and legally insufficient and did not require disqualification.

A motion to disqualify a trial court judge must be filed within ten days after discovery of the facts constituting the grounds for the motion and must be promptly presented to the court for a ruling. Fla. R. Jud. Admin. 2.330(e). The defendant’s motion was based on his speculative and unfounded allegations of official misconduct and also complained that Judge Fen-nelly demonstrated bias through his rulings on pretrial motions. These claims are untimely and, because they relate to matters which occurred at trial, procedurally barred. Rodriguez v. State, 919 So.2d 1252, 1274 (Fla.2005) (explaining that “any claim of judicial bias during trial should have been raised on direct appeal and is procedurally barred in this post-conviction proceeding”).

The defendant’s subjective and unreasonable fear that Judge Fennelly was involved in a conspiracy against him was legally insufficient to warrant disqualification. Fischer v. Knuck, 497 So.2d 240, 242 (Fla.1986) (explaining that fear of judicial bias must be objectively reasonable).

In his Third Renewed Motion to Disqualify, post-conviction counsel argued that Judge Fennelly’s failure to have ruled on the prior motions within thirty days required automatic disqualification. Fla. R. Jud. Admin. 2.330(j); Schisler v. State, 958 So.2d 503 (Fla. 3d DCA 2007) (applying the bright-line rule that was created following the decision in Tableau, Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299, 302-03 (Fla.2003)).

A motion is deemed granted under Rule 2.330(j), however, only if the trial court has failed to rule within thirty days after service of the motion as required by Rule 2.330(c). None of the motions to disqualify were ever served on the judge as required by Rule 2.330(c). Thus, the motion was not deemed automatically granted by operation of the rule. See Johnson v. State, 968 So.2d 61, 63 n. 2 (Fla. 4th DCA 2007). The defendant was not entitled to have his meritless claims considered by another judge.

Claims Denied After Evidentiary Hearing

The defendant argues that trial counsel was ineffective in not seeking to have his shackles removed during trial. It is undisputed that the jury never saw the defendant in shackles. The defendant admitted at the evidentiary hearing that the jury never saw him in shackles. Nevertheless, post-conviction counsel argues that because the defendant had to remain seated at counsel’s table and could not move about the courtroom to view evidence presented on a projection screen, he appeared disinterested and aloof and was presented as a real life version of “Lenny” from John Steinbeck’s Of Mice and, Men. This fanciful argument lacks merit.

Considering the overwhelming evidence of guilt, no reasonable probability exists that the defendant’s inability to walk around the courtroom to view exhibits affected the jury’s verdict. Stancle, 980 So.2d at 621.

[Tjhere is no reason for a court deciding an ineffective assistance claim ... even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In addition, defense counsel testified that he discussed the decision not to have the defendant get up to view the projections of the images during trial. The trial court concluded that this decision was tactical as counsel wanted to downplay the significance of the images. The trial court found counsel’s testimony regarding this strategic decision credible. A trial court’s factual determinations following an evidentiary hearing on a post-conviction motion are entitled to deference and should not be disturbed if they are supported by competent substantial evidence. Jeantilus v. State, 944 So.2d 500 (Fla. 4th DCA 2006).

The second aspect of this point is the court’s denial of the defendant’s claim that counsel should have objected to the co-defendants appearing at trial in shackles and prison garb. The co-defendants were brought into the courtroom during the testimony of one of the victims, who identified the defendant as the tallest of the attackers. The defendant was much taller than the co-defendants and the state used the co-defendants as a demonstrative exhibit. The defendant’s motion alleged that the jury may have perceived him as guilty by association because the co-defendants’ appearance in prison garb and shackles indicated that they were in custody.

Trial counsel testified that he felt this actually helped the defendant because the state was relying on prisoners to make its case. The trial court denied the motion because the co-defendants were state witnesses, essentially used as a demonstrative exhibit. The court found persuasive Morgan v. State, 818 So.2d 1163 (Miss.2002), which found that a defendant was not prejudiced by the appearance of state witnesses in shackles.

The defendant cannot meet the prejudice prong so it is unnecessary to determine whether counsel performed deficiently. Nevertheless, counsel’s decision not to object was reasonable. There was no question that the co-defendants were involved in the attack in this case. The defendant’s theory of defense was that he was merely present and did not participate in the beatings. The fact the co-defendants were guilty was a foregone conclusion as far as the defense was concerned. The defense theory was not (nor could it reasonably have been) that the beatings did not occur or that the police did not know who committed the beatings. The defendant wanted to play down his involvement in the beatings. The co-defendants’ appearance in prison garb had no bearing on the defense.

Multiple witnesses, who were present throughout the evening when the attack was planned and executed, testified to the defendant’s willing involvement. The defendant suggested that the attackers bring a gun, and he was seen grabbing a golf club as they left for the victims’ home. Two witnesses who waited outside in the car during the attack testified at trial that they saw the defendant enter the house with the rest of the attackers. He exited at the same time as the rest of the attackers. One of the victims testified at trial and identified the defendant as one of the attackers who actively beat the victims. The evidence of the defendant’s guilt as a principal and accessory to the felony murder, and the other offenses, was overwhelming. None of the claims raised by the defendant alone, or cumulatively, present any compelling ground for ordering a new trial in this case.

Conclusion

The defendant’s abusively lengthy post-conviction filings, which raised unfounded claims of prosecutorial misconduct and paranoid allegations of a vast conspiracy by government officials, were wholly without merit. Based on the overwhelming evidence of guilt presented at trial, the defendant cannot show prejudice that would entitle him to post-conviction relief. The trial court correctly denied all of the claims. This case presents a compelling reason for the Supreme Court of Florida to consider an amendment to the rules of criminal procedure to provide a reasonable page limitation for post-conviction motions in non-capital cases.

Affirmed.

HAZOURI and MAY, JJ., concur.

FARMER, J., concurs specially with opinion.

FARMER, J.,

concurring specially.

I concur in the opinion for the Court and write only to append a personal note.

Post-conviction relief was meant to be infrequently used, coming as it does after a trial and a full appeal, whose processes are designed to eliminate errors in conviction and punishment. But after Clarence Earl Gideon filed his hand-drawn petition for post-conviction relief in the United States Supreme Court and was instrumental in fundamentally changing criminal procedure in this country, Judges shrink in horror at the prospect of missing that rare entreaty with serious merit.

The opinion makes clear that routine post-conviction filings have since become customary in all serious felony cases. Camus once wrote that there is no limit to the fancies indulged by the captive. We are ever being reminded of his truth in these petitions. A large number are wretchedly overwrought and difficult or impossible to navigate. A very high majority of them are facially meritless. As a consequence Judges keep searching for reliable routines for realizing that singular snippet of truth hidden deep in a mountainous mire of post-conviction excess, the rare one justly demanding relief.

I doubt the exhortation to prisoners to do more with less will reduce our mountain. And so I agree — unhappily—that some change in the post conviction statutes and rules is perhaps warranted.

      . In addition to all the above, the defendant also filed a 34-page "Motion to Set Aside Fraudulent Judgment” which repeated many of these same spurious attacks against his conviction and attempted to raise new claims. The motion was denied as successive. Fla. R.Crim. P. 3.850(f).

      . The third victim died before trial from causes unrelated to this attack.

      . Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

      . With some assistance, to be sure, from Abe Fortas.


text:
    Joseph R. MORGAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D08-5086, 4D09-147.
    District Court of Appeal of Florida, Fourth District.
    March 18, 2009.
    Rehearing Denied May 6, 2009.
    Joseph R. Morgan, Orlando, pro se.
    No appearance required for appellee.
   PER CURIAM.

Joseph R. Morgan’s petition to invoke the all writs jurisdiction of this court is treated as an appeal of a December 11, 2008 order denying his petition for habeas corpus. We also consolidate this appeal with his appeal in Case No. 09-147, which involves the identical order. We affirm the denial, as the matters raised therein involve challenges to the proceedings in the trial court which should have been raised on direct appeal from his conviction and sentence. We note that to the extent that the petition addressed a motion to return personal property, the trial court did not rule on that aspect of the petition and is thus not properly a subject of this appeal. Moreover, that would not be an appropriate subject of a petition for habeas corpus.

Affirmed.

WARNER, FARMER and STEVENSON, JJ., concur.

      . The court's "all writs” authority cannot serve as an independent basis for jurisdiction but "operates as an aid to the Court in exercising its ‘ultimate jurisdiction,' conferred elsewhere in constitution." See Williams v. State, 913 So.2d 541, 543 (Fla.2005).


author: GRIFFIN, J.

text:
    Ray CASCELLA, Appellant, v. CANAVERAL PORT AUTHORITY, Appellee.
    No. 5D08-1437.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2009.
    Rehearing Denied April 17, 2009.
    Paul E. Bross, Merritt Island, for Appellant.
    Francis H. Sheppard and Candy L. Mes-sersmith, of Rumberger, Kirk & Caldwell, Orlando, for Appellee.
   GRIFFIN, J.

Raymond Cascella [“Cascella”] appeals the trial court’s summary final judgment in favor of the Canaveral Port Authority [“CPA”]. On appeal, Cascella argues that the trial court erred because a material issue of fact existed as to whether he had a leasehold interest in real property to transfer through assignment.

In prior bankruptcy proceedings, there had been a specific finding of the Bankruptcy Court that the lease at issue was validly terminated prior to April 6, 1999, thereby invalidating Cascella’s effort to assign the lease in 2001. We understand Cascella’s argument why the lease was not terminated and was subject to assignment; however, the unexplained source of the subsequent events on which he relies appears to be due to some arcanum of bankruptcy law or an incomplete record. Even if the bankruptcy order were not disposi-tive, the trial court correctly entered summary judgment in favor of CPA because, under the facts, it did not, as a matter of law, unreasonably withhold consent. See Sun First Nat’l Bank v. Grinnell, 416 So.2d 829 (Fla. 5th DCA 1982).

AFFIRMED.

LAWSON and COHEN, JJ., concur.


text:
    Robert James MISURACA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-371.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2009.
    Robert James Misuraca, Daytona Beach, pro se.
    No Appearance for Respondent.
   GRIFFIN, J.

Petitioner seeks a belated appeal of his judgment and sentence. We deny the petition.

The petition was filed under the mailbox rule on January 3, 2009. According to Petitioner’s allegations, on September 12, 2005, he was sentenced to fifteen years in prison. He alleges that at the time of sentencing he asked counsel to file the appeal, but she failed to do so. Petitioner further alleges that he learned of defense counsel’s omission after receiving a response to his notice of appeal inquiry from the clerk of court on September 25, 2007. That response from the clerk indicated that no notice of appeal had ever been filed. Petitioner admits his awareness of the two-year window for filing a timely petition for belated appeal, but he contends that the instant petition is timely because “it is filed within two-years [sic] of the petitioner becoming aware that no appeal was filed despite his request that counsel do so.”

Florida Rule of Appellate Procedure 9.141(c)(4)(A) provides the relevant time limit to be applied to a petition seeking a belated appeal. It states in pertinent part:

(A) A petition for belated appeal shall not be filed more than 2 years after the expiration of time for filing the notice of appeal from a final order, unless it alleges under oath with a specific factual basis that the petitioner
(i) was unaware an appeal had not been timely filed or was not advised of the right to an appeal; and
(ii) should not have ascertained such facts by the exercise of reasonable diligence.

Here, Petitioner’s own assertions demonstrate that, within the two-year window for seeking a belated appeal, he learned that no appeal had been filed. Petitioner alleges that he was sentenced on September 12, 2005. Thus, he had thirty days from this date (i.e., until October 12, 2005) to file a timely notice of appeal. When no appeal was filed, rule 9.141(c)(4)(A) became applicable. The rule allows two years from the “expiration of time for filing the notice of appeal” to file a petition for a belated appeal. Thus, Petitioner had until October 12, 2007, to file a timely petition for belated appeal.

According to Petitioner, he learned that defense counsel had failed to file a notice of appeal on September 25, 2007, seventeen days prior to the expiration of the two-year window. Petitioner has failed to offer any basis for concluding that he could not have filed a timely petition for belated appeal.

Accordingly, the instant is DENIED.

PALMER, C.J., and COHEN, J., concur.

      . We also note that Petitioner failed to file his petition until approximately fourteen months after his two-year filing window had closed.


author: SUAREZ, J.

text:
    Felix ROMAN, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D08-723.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Bernard P. Perlmutter and Michael Pieciak and Diane McLaughlin, Certified Legal Intern, and Kristofor Nelson, Legal Intern, for appellant.
    Bill McCollum, Attorney General, and Garnett W. Chisenhall and Lisa McGlynn, Tallahassee and Charles Fahlbusch, Fort Lauderdale, Assistant Attorneys General, for appellee.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Felix Roman appeals a final order from the Department of Children and Families confirming a Hearing Officer’s termination of benefits pursuant to section 409.1451(b), Florida Statutes (2008), the Road to Independence Program. We find that the order of the Department of Children and Families under review is supported by substantial competent evidence. See § 120.68(7)(b), Fla. Stat. (2008). We affirm the order without prejudice to the right of Mr. Roman to apply for reinstatement pursuant to section 409.1451(k).

Affirmed.


text:
    Henry T. OLIPHANT, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Child Support Enforcement o/b/o Donna R. Porter Oliphant, Appellee.
    No. 4D08-4154.
    District Court of Appeal of Florida, Fourth District.
    March 25, 2009.
    Rehearing Denied April 27, 2009.
    Henry T. Oliphant, Riviera Beach, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

FARMER, HAZOURI and DAMOORGIAN, JJ., concur.