source: Caselaw Access Project

author: PER CURIAM. CANADY, C.J.,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Michael Eugene AKINS, Respondent.
    No. SC10-896.
    Supreme Court of Florida.
    May 26, 2011.
    Rehearing Denied Aug. 31, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, and Patricia A. McCarthy, Assistant Attorneys General, Tampa, FL, for Petitioner.
    Terry P. Roberts, Tallahassee, FL, for Respondent.
   PER CURIAM.

This case is before the Court for review of the decision of the Second District Court of Appeal in Akins v. State, — So.3d -, 2009 WL 5125174 (Fla. 2d DCA 2009). In its decision the district court ruled upon the following question, which the court certified to be of great public importance:

IF A DEFENDANT HAS BEEN DECLARED TO BE A HABITUAL OFFENDER BEFORE THE IMPOSITION OF HIS INITIAL SPLIT SENTENCE, WHEN THE DEFENDANT LATER VIOLATES PROBATION AND HAS HIS PROBATION REVOKED, DOES THE DEFENDANT LOSE HIS STATUS AS A HABITUAL OFFENDER IF THE TRIAL COURT DOES NOT REPEAT THIS STATUS AT THE SENTENCING HEARING ON VIOLATION OF PROBATION?

Id. at-. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question in the affirmative.

FACTS AND PROCEDURAL HISTORY

On January 18, 1991, in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida, Michael Eugene Akins was adjudicated guilty of the sale and possession of cocaine, a second-degree felony, and sentenced as a habitual felony offender (HFO) to thirty years in prison for the following reasons:

[I]n '75 and '84 and '87, he had three felonies. The '75 felony was a grand theft. The '84 was a sale and possession. The '87 was a sale and possession of marijuana. His other prior record was a dealing in stolen property. That was it. But he classified because of the three prior felonies.

Akins received a true split sentence, under which he was to serve the first twenty-years of his sentence in prison, and the remaining portion as a suspended sentence to be satisfied by probation. The Second District affirmed Akins’ judgment and sentence on direct appeal. See Akins v. State, 591 So.2d 187 (Fla. 2d DCA1991).

After serving twelve years, Akins was released from prison in 2003. Subsequently, Akins committed technical violations of his probation twice by testing positive for cocaine. The first violation occurred on July 15, 2008. On September 26, 2003, Akins entered an admission to a charge of violation of probation (VOP) and the court continued him on probation. As part of the court order, Akins entered the Goodwill rehabilitation treatment program. According to the Department of Corrections (DOC) reports, Akins performed well and consistently tested negative for cocaine. During this time, Akins completed the program, did not commit any new law violations, and made continual payments as required by the terms of his probation. The State filed an affidavit of VOP, which Akins did not contest. The second violation occurred on June 11, 2004, when Akins was arrested after again testing positive for cocaine. Initially, Akins denied the allegations, but on October 1, 2004, Akins entered a plea withdrawing his prior denial and entering an admission to the VOP charge.

On November 19, 2004, the trial court conducted a sentencing hearing. During the sentencing hearing, Akins’ defense counsel presented mitigation and referred to Akins’ designation as an HFO. Defense counsel acknowledged that “Mr. Miglore [the prosecutor] [is] going to ask for the maximum, 10 years.” Akins’ probation officer recommended that Akins be placed on community control for two years for the VOP. Defense counsel then stated, “I’m asking the court for an appropriate punishment and I’m asking the court to consider several factors. First of all, the nature of his habitualization.” Defense counsel asked the court to either terminate Akins’ probation, or alternatively, to follow the recommendation of Akins’ probation officer of two years community control. The prosecutor directed the court’s attention to the transcript of the hearing held on September 26, 2003, on the prior VOP and the colloquy that transpired between the court and Akins. The prosecutor asked the court to enforce the deal that Akins made with the State during that hearing. The 2003 colloquy proceeded as follows:

THE COURT: You’re familiar with the transcript of the last time that you were before the Court before you changed your plea?
THE DEFENDANT: True, sir.
THE COURT: We acknowledged that you had been sentenced to 30 years. We acknowledged that you did 20.
THE DEFENDANT: True, sir.
THE COURT: Correct?
THE DEFENDANT: Yes, sir.
THE COURT: All right. And then I said, ‘You are 50 years old.”
THE DEFENDANT: Yes, sir.
THE COURT: And I said, “You are too old for that.”
And you responded, ‘Tes, Sir.”
THE DEFENDANT: True.
THE COURT: I said, “We are going to give you one last chance.”
You said, “Thank you, sir.”
THE DEFENDANT: True.
THE COURT: I said, “Dabble in drugs and you are going to do the last 10.” Do you remember that?
THE DEFENDANT: Yes, sir.
THE COURT: You answered, “Thank you, sir.”
THE DEFENDANT: Yes, sir.
THE COURT: I asked this question on page 10, line 14: “Do you have any doubt that I will not impose that 10 years for you?”
You answered, “No.”
I said, “I mean, you come back here on another dirty urine or I find out that you’re doing something else unlawful, then we just say good-bye,” right?
THE DEFENDANT: True, sir.
THE COURT: And you said, “I appreciate it.”

Akins acknowledged that the court gave him a fair warning at the 2003 sentencing hearing. He also acknowledged that the court told him if he tested positive for cocaine again, “we’re going to say goodbye.” Notwithstanding Akins’ acknowledgment of the fair warning, the trial court decided not to impose the full balance of the suspended portion of Akins’ original sentence. The trial court explained:

THE COURT: I am going to take into consideration the fact that you’ve entered a plea.
THE COURT: I’m also going to take into consideration that the Department of Corrections is probably going to take away some of the gain time that you might have got on that additional — the first 20 years. They’re probably going to take some time away that you thought you had earned.
THE COURT: So what I’m going to do is I’m going to sentence you to five years. And I’m going to give you credit for the time that you’ve served on the charge of violation of probation.

The trial court found that Akins was entitled to 289 days credit for time served in the county jail since his arrest on the first VOP. The judge went on to state:

THE COURT: [T]he only reason I didn’t give you the 10 is because I know that that [Department of Corrections] is going to take some [gain] time away from you on that 20 years that you’ve already served. That’s the way they work. And I don’t control the Department of Corrections, so I’m trying to give you some equity here. But I’m also letting you know that you’ve had your last chance the last time. So you — in effect, out of the 10 years that you had, I’ve imposed five.
THE COURT: And we’re just going to leave it go at that.
THE COURT: And you’re not any longer going to be on probation. So when you get out of prison, you are on your own.

That same day, the trial court filed a judgment adjudicating Akins guilty of the violation of probation. At that time, the sentencing order did not contain any language regarding Akins’ designation as an HFO.

Subsequently, Akins filed a motion seeking additional jail credit. On February 7, 2005, the trial court amended Akins’ sentence to allow 270 days, instead of 239 days, of credit for time served.

On April 29, 2005, on its own motion, the trial court amended the judgment to adjudicate Akins as an HFO. The amended judgment reflects the following:

* The defendant is adjudicated a habitual felony offender and is sentenced to an extended term in accordance with the provision of 775.084(4)(a), Florida Statutes. * amended 4/29/05 per court order dated 4/22/05.

On November 20, 2005, Akins filed a motion to vacate, set aside, or correct judgment and sentence pursuant to Florida Rules of Criminal Procedure 3.850, 3.800(a), and 3.800(b) in the trial court. On January 16, 2006, Akins filed an amended motion to vacate, set aside, or correct judgment and sentence. Akins alleged that it was illegal to sentence him as an HFO because there was no oral pronouncement or written judgment made at his VOP sentencing designating him as an HFO and that his due process rights were violated because he was not present when the amendment was made.

Akins also filed an appeal in the Second District, seeking review of his 3.800(a) motion and filed a motion seeking review of a nonappealable rule 3.800(c) order. See Akins v. State, 926 So.2d 412, 413 (Fla. 2d DCA 2006). Akins alleged that the amendment of his sentence offended double jeopardy. Id. at 413. The Second District concluded that it lacked jurisdiction to review Akins’ double jeopardy claim because Akins’ motion to mitigate and his appeal from the denial of the motion were filed before the amended sentence was rendered. Id. Moreover, the Second District concluded that the record did not establish that Akins first challenged the amendment in the trial court. Id. Thus, the Second District dismissed the appeal without prejudice to his right to raise the issue in a rule 3.800(a) motion. See id.

On June 18, 2007, the trial court ordered the State to respond to Akins’ January 16, 2006, amended rule 3.850 motion. Later, on October 29, 2007, the trial court entered its final order denying defendant’s amended motion to vacate, set aside, or correct judgment and sentence. In its order, the trial court acknowledged that it did not “specifically announce that the Defendant’s sentence was as an HFO.” However, the trial court explained that “a sentencing judge was not required to use the magic words ‘habitual felony offender’ in order to effectuate a legal sentence where it was obvious from the record that the trial court found that the defendant qualified as an HFO and intended to and did impose an HFO sentence.” The trial court concluded that “the fact that the Court acknowledged the Defendant’s original HFO sentence and then sentenced him accordingly demonstrates that this Court’s intention was to sentence the Defendant as an HFO.”

On November 29, 2007, Akins filed a notice of appeal in the trial court regarding the final order summarily denying his motion to vacate, set aside, or correct judgment and sentence. On December 18, 2007, Akins, through collateral counsel, filed his initial brief in the Second District. In his initial brief, Akins alleged that the trial court erred in denying Akins’ amended motion to vacate, set aside, or correct judgment and sentence because (1) Akins’ sentence was illegal and he was entitled to have the HFO designation removed from his sentence; (2) the subsequent imposition of the HFO status amounted to a double jeopardy violation under this Court’s decision in Ashley v. State (Ashley II), 850 So.2d 1265, 1267 (Fla.2003); (3) the subsequent imposition of the HFO status is inconsistent with the decisions in White v. State, 892 So.2d 541 (Fla. 1st DCA 2005), and Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996); (4) Akins is distinguishable from O’Neal v. State, 862 So.2d 91 (Fla. 2d DCA 2003); (5) the trial court’s amendments to Akins’ sentence did not amount to the mere ministerial function of correcting a scrivener’s error; and (6) the trial court’s failure to make specific oral or written findings precluded the subsequent amendment to Akins’ judgment and sentence designating him as an HFO. On November 7, 2008, the Second District per curiam affirmed the trial court’s denial. See Akins v. State, 996 So.2d 860, 860 (Fla. 2d DCA 2008) (table). Akins filed a motion for rehearing or clarification in the Second District, which was denied on December 9, 2008.

On December 15, 2008, Akins, pro se, filed a motion to correct sentence pursuant to rule 3.800(a) in the trial court. Akins alleged that (1) it was illegal to retroactively sentence him as an HFO because there was no oral pronouncement or written judgment made at the time of his sentencing designating him as an HFO; (2) the April 29, 2005, amendment to his judgment adjudicating him as an HFO offended double jeopardy; and (3) the trial court’s actions denied him due process because neither he nor his attorney was provided notice or an opportunity to respond to the amendment. On December 30, 2008, the trial court issued an order denying Akins’ motion to correct sentence. The trial court found that the claim was barred by res judicata and the law of the case doctrine because the trial court had previously heard and denied an identical claim from Akins. The trial court further found that the claim was barred because, on appeal, the Second District per curiam affirmed the trial court’s previous denial of Akins’ identical motion. See Akins, 996 So.2d at 860. The mandate issued on January 15, 2009.

On January 8, 2009, Akins, pro se, filed a Notice of Appeal in the trial court, appealing the denial of his motion. In his initial brief, he argued that the trial court erred in denying his pro se Motion to Correct Sentence, which was filed in the trial court on December 15, 2008. Akins maintained that the trial court’s amendment to his judgment, designating him as an HFO, was illegal, offended double jeopardy, and denied him due process. He alleged that the increase in his designation gave the DOC the authority to forfeit 2673 days of earned gain-time.

This time, the Second District reversed the trial court’s denial and held that Akins’ sentence was illegal because the trial court failed to announce that the sentence imposed on the VOP remained an HFO designation. See Akins, — So.3d at -. The Second District relied on this Court’s decision in Ashley II and the Fourth District’s decision in Evans, which was approved by this Court’s decision in Ashley II, in concluding that modification of Akins’ sentence in 2005 offended double jeopardy. See Akins, — So.3d at-. Noting that the issue in Akins was not identical to Ashley II and that it appeared to be in conflict with Mann v. State, 851 So.2d 901 (Fla. 3d DCA 2003), the Second District reversed and remanded the trial court’s order denying Akins’ December 15, 2008, motion to correct sentence and certified the aforementioned question as one of great public importance. See Akins, — So.3d at-.

Pursuant to Florida Rule of Appellate Procedure 9.330, the State filed a timely motion for rehearing with attachments on January 14, 2010. The State raised the following arguments: (1) the Second District overlooked that Akins previously raised an identical claim which the Second District denied in Akins, 996 So.2d 860 (table); (2) collateral estoppel barred sue-cessive review of Akins’ claim; (3) Akins’ case did not contain a manifest injustice that would except it from collateral estop-pel; (4) double jeopardy was not offended by the amendment because Akins had no expectation of finality regarding his sentence; (5) the Second District overlooked that double jeopardy does not apply to sentencing in a noncapital case where the sentence has been challenged; (6) the Second District overlooked that Akins was distinguishable from Ashley II and Evans; (7) sentencing a prisoner in a noncapital case pursuant to the habitual offender statute does not implicate double jeopardy concerns; (8) Akins received the enhanced punishment because of his recidivism, so neither due process nor double jeopardy were implicated; (9) neither the federal nor the state proscription against double jeopardy precluded clarification of Akins’ designation as an HFO; and (10) the Second District failed to consider the trial court’s reference to Akins’ original status as an HFO during the sentencing. On January 25, 2010, Akins, pro se, timely filed a response to the state’s motion for rehearing. On April 22, 2010, the Second District denied rehearing without elaboration.

On May 10, 2010, the State filed a Motion to Stay Mandate in the Second District. On May 19, 2010, the Second District granted the motion and stayed issuance of the Second District’s mandate until July 15, 2010.

Meanwhile, on May 11, 2010, the State filed a Notice to Invoke Discretionary Jurisdiction in this Court. This Court granted the State’s motion to stay regarding the proceedings below on June 1, 2010. The order to stay was issued on June 10, 2010. That same day, this Court accepted jurisdiction and required only merits briefing. This review followed.

ANALYSIS

Alleged Procedural Bars

The State contends that the law of the case doctrine and collateral estoppel barred the Second District from addressing this claim below. We disagree. Under Florida law, appellate courts have “the power to reconsider and correct erroneous rulings [made in earlier appeals] in exceptional circumstances and where reliance on the previous decision would result in manifest injustice.” Muehleman v. State, 3 So.3d 1149, 1165 (Fla.2009) (alteration in original) (recognizing this Court’s authority to revisit a prior ruling if that ruling was erroneous) (quoting Parker v. State, 873 So.2d 270, 278 (Fla.2004)); see State v. J.P., 907 So.2d 1101, 1121 (Fla.2004) (same); Parker v. State, 873 So.2d 270, 278 (Fla.2004) (same); see also Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 106 (Fla.2001) (“[A]n appellate court has the power to reconsider and correct an erroneous ruling that has become the law of the case where a prior ruling would result in a ‘manifest injustice.’ ” (quoting Strazzulla v. Hendrick, 177 So.2d 1, 3 (Fla.1965))). Because we conclude that the trial court’s subsequent imposition of an HFO designation to Akins’ judgment and sentence violated double jeopardy and amounted to an illegal sentence, we also conclude that the Second District was proper in addressing Akins’ claim to correct his illegal sentence.

The Certified Question

“A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo.” Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006).

An illegal sentence is “one that imposes a punishment or penalty that no judge under the entire body of sentencing statutes and laws could impose under any set of factual circumstances.” Williams v. State, 957 So.2d 600, 602 (Fla.2007); see also State v. McBride, 848 So.2d 287, 289 (Fla.2003). In the instant case, we address a sentence that violates double jeopardy by a postsentencing enhancement that is clear from the record and is thus illegal.

The federal proscription against double jeopardy provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” amend. V, U.S. Const. Similarly, Florida’s proscription against double jeopardy provides: “No person shall be ... twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const. Generally, both the federal and state proscriptions apply to criminal cases and provide three separate constitutional protections: (1) they protect against a second prosecution for the same offense after acquittal; (2) they protect against a second prosecution for the same offense after conviction; and (3) they protect against multiple punishments for the same offense. See Delemos v. State, 969 So.2d 544, 546 (Fla. 2d DCA 2007) (citing United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)).

In the instant case, our focus is on the third type of constitutional protection — protection against multiple punishments for the same offense. This protection is the genesis for the general rule that once a sentence has been imposed, the sentencing hearing has ended, and the defendant has begun to serve his sentence, the sentence may not thereafter be made more onerous, such as by extending the term of imprisonment. See, e.g., Troupe v. Rowe, 283 So.2d 857, 859 (Fla.1973).

We have explained that imposition of a true split sentence means that the trial court has effectively sentenced the defendant in advance for a probation violation and is not later permitted to order a period of incarceration to exceed the sentence because to do so would violate double jeopardy. See Poore v. State, 531 So.2d 161, 164-65 (Fla.1988), superseded by statute on other grounds, § 948.06(6), Fla. Stat. (1989).

In the case at bar, Akins received a true split sentence, which consists of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion. Here, Akins does not dispute that the trial court, at the time of sentencing, had the authority to sentence him up to ten years on the original suspended sentence and that its sentence of five years was within that limitation. Rather, Akins argues that the five-year sentence should not have subsequently been amended to reflect an HFO designation because the trial court failed to impose that designation during the oral pronouncement when it revoked Akins’ prior sentence and imposed a five-year sentence.

“Generally, courts have held that a written order must conform to the oral pronouncement ... because the written sentence is usually just a record of the actual sentence required to be pronounced in open court.” Justice v. State, 674 So.2d 123, 125 (Fla.1996) (citing Vasquez v. State, 663 So.2d 1343, 1349 (Fla. 4th DCA 1995)). As a result, when there is a discrepancy between the written sentence and “the oral pronouncement, the oral pronouncement prevails.” Justice, 674 So.2d at 125.

In Akins, the Second District concluded the trial court’s failure to orally pronounce Akins’ HFO designation and its subsequent modification of Akins’ judgment and sentence to reflect an HFO designation constituted an illegal sentence and violated double jeopardy. Akins, — So.3d at-. In so concluding, the Second District relied on Ashley II, 850 So.2d 1265; Evans, 675 So.2d 1012; Barron v. State, 827 So.2d 1063 (Fla. 2d DCA 2002); and White v. State, 892 So.2d 541 (Fla. 1st DCA 2005).

In Ashley II, we granted discretionary review based on express and direct conflict between the First District’s decision in Ashley v. State (Ashley I), 772 So.2d 42 (Fla. 1st DCA 2000), and the Fourth District’s decision in Evans, 675 So.2d 1012. There, we observed that the issue in both Ashley I and Evans was whether double jeopardy is violated when a trial court vacates an imposed sentence and resen-tences the defendant to what amounts to a more onerous sentence after the defendant has begun serving the original sentence. See Ashley II, 850 So.2d at 1266.

In Ashley I, Ashley was convicted of possession of a firearm by a convicted felon. Ashley I, 772 So.2d at 42-43. The State filed notice of intent to classify Ashley as a habitual violent felony offender (HVFO). Id. at 42. There, the trial judge was presented with evidence of Ashley qualifying as an HVFO, and it was argued that the judge had discretion in deciding whether to sentence Ashley as an HVFO. Id. at 42-43. During the actual sentencing, the trial court failed to pronounce Ashley an HVFO; instead the court orally pronounced Ashley an HFO and sentenced him to twenty-five years. Id. at 42. However, the written judgment and sentence reflected that Ashley was sentenced as an HVFO and sentenced to twenty-five years with no minimum term. Id. Subsequently, Ashley reappeared in court and the trial judge orally resentenced Ashley as an HVFO to serve twenty-five years with a ten-year minimum term. Id. On appeal, Ashley argued the alteration in the written judgment and sentence amounted to a double jeopardy violation. The First District concluded that the trial court’s imposition of an HFO sentence was “the result of a simple mistake about what had been noticed and then proven the day before. It was not a discretionary judgment based on the facts to impose a lighter sentence.” Id. at 43 (citing Harris v. State, 645 So.2d 386, 388 (Fla.1994)).

In Evans, Evans entered a plea agreement, whereby he agreed that he qualified as an HFO and that he would be sentenced as an HFO if he violated his probation. Evans, 675 So.2d at 1013. Evans then committed a technical violation of his probation and was sentenced as an HFO. Id. Evans’ sentences were suspended and he was given probation, but his HFO designation was not set aside. Id. Evans’ sentences were vacated and he was resen-tenced on the initial VOP. However, at resentencing, the trial court did not state that Evans would retain his HFO designation. See id. at 1014. Two days later, the State filed a motion to clarify the sentence because it did not reflect Evans’ HFO designation. Id. Evans objected, arguing that to amend his judgment and sentence to reflect the HFO designation amounted to a double jeopardy violation. Id. The trial court amended the judgment and sentence. Id. On appeal, the Fourth District concluded that even if the trial court’s failure to impose the HFO designation during the oral pronouncement was an oversight, the trial court’s subsequent clarification was erroneous. Id. The Fourth District reasoned that once a legal sentence is imposed, jeopardy attaches and the defendant cannot be sentenced to a greater term of imprisonment. Id.

On review, we agreed with the Fourth District’s reasoning in Evans. Ashley II, 850 So.2d at 1267. We considered our previous decision in Justice, in which we explained that pursuant to “judicial policy ... the actual oral imposition of sanctions should prevail over any subsequent written order to the contrary.” 674 So.2d at 125 (citing Vasquez, 668 So.2d at 1349). There, this Court’s conclusion was based, in part, on the proposition that “written sentences are usually just a record of the actual sentence required to be pronounced in open court.” Ashley II, 850 So.2d at 1268. Thus, this Court approved Evans and disapproved Ashley I, noting that “[t]o hold otherwise does serious harm to the double jeopardy principles which have guided our courts for centuries.” Ashley II, 850 So.2d at 1268-69.

Furthermore, in White, the First District reversed the trial court’s summary denial of White’s rule 3.800(a) motion. White, 892 So.2d at 542. There, White was originally sentenced as an HFO. See id. Subsequently, White committed technical violations of his probation and was sentenced to nine years’ imprisonment. Id. However, White was not designated as an HFO at that time. Id. The First District relied on this Court’s holding in Ashley II and the Fourth District’s decision in Evans in recognizing that “upon a revocation of probation, a trial court must orally pronounce habitual felony offender status, even when the appellant was initially sentenced as a habitual felony offender for the substantive offense and the designation has not been set aside.” White, 892 So.2d at 542. In reversing, the First District explained that because the trial court failed to sentence White as an HFO at his revocation of probation hearing, his sentence was illegal since it exceeded the statutory maximum. Id. The First District’s holding in White ultimately provides that upon revocation of probation, a trial court must orally pronounce habitual offender status, even when the defendant was initially sentenced as a habitual felony offender for the substantive offense and the designation has not been set aside. Otherwise, the limit of the defendant’s sentence is prescribed by the statutory maximum. WMie, 892 So.2d at 542. The Second District, in Barron, 827 So.2d 1063, reached a similar result as the Fourth District did in Evans.

Based on the aforementioned, we conclude that the trial court’s subsequent imposition of the HFO designation in Akins constitutes an illegal sentence because Akins’ sentence was made more onerous after he began serving it. However, in its decision below, the Second District acknowledged that its holding in Akins was consistent with this Court’s holding in Ashley II, but appeared to conflict with the Third District’s decision in Mann, 851 So.2d 901.

The instant case is distinguishable from Mann. In Mann, the trial court clearly misspoke during sentencing; the record revealed that both the state and defense acknowledged that Mann would be sentenced as a habitual violent felony offender (HVFO) and the trial court imposed the mandatory minimum for an HVFO during sentencing. Mann, 851 So.2d at 902. Mann’s sentence was not increased after it was imposed, and therefore double jeopardy was not offended. See id. Thus, the Third District affirmed the trial court’s denial of Mann’s motion to correct illegal sentence. See id. This is unlike Ashley II, where the alteration to Ashley’s judgment and sentence resulted in an increase to his sentence and thus violated double jeopardy. Mann, 851 So.2d at 903.

As this Court noted in Ashley II:

Generally, the oral pronouncement prevails unless the oral pronouncement is in error due to a clerical error such as the calculation of jail credit. See Martindale v. State, 678 So.2d 883, 884 (Fla. 4th DCA 1996).[n.3]
[n.3]. Florida Rule of Criminal Procedure 3.800(b) specifically provides that a motion to correct a scrivener's error may be filed by the State. A scrivener's error literally refers to a written error. The definition for scrivener's error in Black’s Law Dictionary directs the reader to "[s]ee clerical error.” Black's Law Dictionary 1349 (7th ed. 1999). However, we have defined scrivener's error as those "clerical or ministerial errors in a criminal case that occur in the written sentence, judgment, or order of probation or restitution. The term scrivener’s error refers to a mistake in the written sentence that is at variance with the oral pronouncement of sentence or the record but not those errors that are the result of a judicial determination or error.” Amendments to Fla. Rules of Criminal Procedure 3.111(e) & 3.800, 761 So.2d 1015, 1023 (Fla.2000) (court commentary) (emphasis added).
We recognize that the trial court’s failure to state during its oral pronouncement of sentence that it was sentencing Ashley as a habitual violent felony offender may have been a simple mistake. However, based on the prior precedent from this Court, we must approve the Fourth District’s opinion in Evans and disapprove the First District’s decision in Ashley, because the oral pronouncement of sentencing controls. To hold otherwise does serious harm to the double jeopardy principles which have guided our courts for centuries.

Ashley II, 850 So.2d at 1268-69.

In both Akins and Evans, the trial court completely neglected to orally pronounce the HFO sentence or expressly designate defendant as an HFO in any way. The parties did not agree to an HFO sentence during the hearing, and the trial court did not use any language indicating that an HFO sentence was being imposed. Similarly, in the instant case, the trial court’s oral pronouncement, despite defense counsel’s brief reference to Akins’ habitualized status, does not definitively demonstrate any intent to designate Akins as an HFO:

THE COURT: [T]he only reason I didn’t give you the 10 is because I know that that [Department of Corrections] is going to take some [gain] time away from you on that 20 years that you’ve already served. That’s the way they work. And I don’t control the Department of Corrections, so I’m trying to give you some equity here. But I’m also letting you know that you’ve had your last chance the last time. So you — in effect, out of the 10 years that you had, I’ve imposed five.
THE COURT: And we’re just going to leave it at that.
THE COURT: And you’re not any longer going to be on probation. So when you get out of prison, you are on your own.

The absence of any clear intent of designating Akins as an HFO and the trial court’s subsequent imposition of an HFO status to Akins’ VOP judgment and sentence after Akins began serving his sentence violated double jeopardy and amounted to an illegal sentence and manifest injustice. Because Akins’ sentence was illegal, the Second District was proper in correcting it. Accordingly, we approve the Second District’s decision in Akins and answer the certified question in the affirmative.

It is so ordered.

PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.

LEWIS, J., concurs in result.

CANADY, C.J., dissents with an opinion, in which POLSTON, J., concurs.

CANADY, C.J.,

dissenting.

Because I conclude that the designation of a defendant as a habitual felony offender (HFO) with respect to a particular offense need not be reestablished in a sentencing upon revocation of probation, I would answer the certified question in the negative. In line with that answer, I would quash the decision of the Second District on review; disapprove the decisions in White v. State, 892 So.2d 541 (Fla. 1st DCA 2005), Barron v. State, 827 So.2d 1063 (Fla. 2d DCA 2002), and Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996); and recede from Ashley v. State, 850 So.2d 1265 (Fla.2003), to the extent that it approved Evans.

In his opinion for the Second District in the case on review, Judge Altenbernd made the following observation:

Once the trial court has determined that a defendant qualifies as a habitual felony offender and has announced a split sentence pursuant to that determination, we would think that the defendant’s status as a habitual felony offender subject to an extended sentence remained his status without need of additional determinations or announcements at later proceedings.

Akins v. State, — So.3d-,(Fla. 2d DCA 2009). There is indeed no reason to think otherwise. Judge Alten-bernd went on to discuss the bearing of this fact on the double jeopardy claim raised by Akins:

For purposes of double jeopardy, once this [HFO] status has been formally determined and the trial court has announced that it will rely on this status for purposes of imposing a split sentence, we do not entirely understand why the trial court violates double jeopardy when it relies on that determination and announcement without repeating it at a sentencing or revocation of probation.

Id. at-. The Second District’s lack of understanding is entirely understandable.

Nothing in section 775.084, Florida Statutes (1989) — the statute which sets forth the HFO sentencing scheme — requires or suggests that an HFO designation imposed in connection with a split sentence lapses and must be reestablished or reannounced when the defendant is sentenced upon revocation of probation. On the contrary, once the HFO determination has been made with respect to an offense committed by a defendant — unless that determination is affirmatively set aside — the defendant remains subject to the consequences of the HFO designation throughout all subsequent proceedings with respect to that offense.

Here, the failure of the 2004 sentencing order to reflect that Akins had HFO status was nothing more than a “scrivener’s error” that was subject to correction under rule 3.800(b). From the time that he was subjected to the split sentence in 1991, Akins was on notice that he was being punished as a habitual felony offender. When he violated his probation in 2004, he knew his HFO status and was chargeable with knowledge of the consequences of that status in his sentencing upon revocation of probation. As the majority opinion reflects, in the probation revocation proceeding in 2004, counsel for Akins specifically referred to “his habitualization.” It is undeniable that Akins’ counsel understood that the HFO designation had not lapsed but would be a predicate for the sentence to be imposed upon revocation of probation.

Contrary to the majority’s decision here, the Double Jeopardy Clause does not require that a determination bearing on a defendant’s punishment which has been properly made and announced and has never been set aside must be reestablished or redeclared in a sentencing upon revocation of probation. Given the continuing validity of the original HFO designation, the corrected sentencing order reflecting that designation did nothing to increase the punishment to which Akins was lawfully subject. The recognition in that sentencing order of the HFO determination made in 1991 did not subject Akins to double jeopardy.

This Court’s decision in Ashley is distinguishable on its facts from the case on review. In Ashley, there was a variation between the designation originally declared by the sentencing court (HFO) and the designation reflected in the written sentence (habitual violent felony offender). Here, there is no such variation. Nonetheless, the decision here shows the foresight in the concern of the Ashley dissenters, 850 So.2d at 1271 (Harding, Senior Justice, dissenting), that the majority’s opinion there would “turn sentencing hearings into the game-like atmosphere that the United States Supreme Court condemned in [United States v. DiFrancesco, 449 U.S. 117, 135, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) ],” where it observed that “the Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.”

Akins is entitled to no relief. The decision of the Second District should be quashed, and the order of the postconviction court denying the rule 3.800 motion should be upheld.

POLSTON, J., concurs.

      .Pursuant to section 775.084, Florida Statutes (1991), a habitual felony offender is defined as:
      (1) As used in this act:
      (a) “Habitual felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
      1. The defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses;
      2. The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony or other qualified offense of which he was convicted, or within 5 years of the defendant’s release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later;
      3.The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this section; and

        4. A conviction of a felony or other qualified offense necessary to the operation of this section has not been set aside in any post-conviction proceeding.


author: PER CURIAM.

text:
    Jack Frederick DURIE, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. SC10-1668.
    Supreme Court of Florida.
    June 2, 2011.
    Rehearing Denied Aug. 30, 2011.
    See also, 878 So.2d 1236.

      Jack Frederick Durie, Jr., pro se, Orlando, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, for Respondent.
   PER CURIAM.

Jack Frederick Durie, Jr., filed a pro se petition seeking extraordinary relief from the Court with respect to his 1999 conviction for grand theft entered by the Ninth Judicial Circuit, in and for Orange County, Florida, in State v. Durie, Case No. CR97-13255 (Fla. 9th Cir.Ct. Jan. 8, 1999). The Court denied the petition on December 7, 2010, because Durie raised the same issues as presented in a prior case, which the Court rejected as unauthorized. See Durie v. State, 50 So.3d 1137 (Fla.2010) (table).

Although denying relief, the Court retained jurisdiction in this case for purposes of determining whether sanctions were warranted, based upon Durie’s repeated filing of frivolous and abusive actions in this Court attacking his 1999 judgment of conviction. Accordingly, on December 7, 2010, the Court directed Durie to show cause why he should not be barred from filing further pleadings or other papers pertaining to his 1999 judgment unless signed by a member of The Florida Bar in good standing. In the interim, the Court issued an order on March 2, 2011, directing the Clerk of Court not to accept further pleadings or other requests for relief from Durie relating to State v. Durie, Case No. CR97-13255, until further order of the Court. Durie v. State, No. SC10-1668 (Fla. order filed Mar. 2, 2011). Having reviewed Durie’s response, we now order that any pro se pleadings or other papers submitted by Durie pertaining to his conviction under Case No. CR97-13255 shall be discarded unless signed by a member in good standing of The Florida Bar.

Since March 2007, Durie has repeatedly and unsuccessfully sought relief from this Court pertaining to his conviction in State v. Durie, Case No. CR97-13255. Durie has filed a substantial volume of documents in the proceedings brought in this Court, on nearly a weekly basis and averaging over 1000 pages in each case. Undaunted by the Court’s dispositions in the prior cases, on August 10, 2010, Durie initiated this case upon filing a petition for writ of habeas corpus. Durie has filed over 1500 pages in support of that petition, many of which include copies of, or revisions to, filings presented in prior cases.

This Court has the “inherent judicial authority to sanction an abusive litigant.” Sibley v. Fla. Judicial Qualifications Comm’n, 973 So.2d 425, 426 (Fla. 2006). In response to the Court’s order to show cause why he should not be sanctioned, Durie did not address the issue of his frivolous and abusive filings. Instead, Durie reasserted the facts and arguments presented in his petition for writ of habeas corpus, previously denied by the Court as successive. See Durie v. State, 50 So.3d 1137 (Fla.2010). After filing his response, Durie filed an additional twelve documents or letters over the next six weeks. Therefore, on March, 2, 2011, the Court issued an order barring Durie from filing pro se documents until further order of the Court. Durie v. State, No. SC10-1668 (Fla. order filed Mar. 2, 2011).

One justification for sanctioning an abusive litigant “lies in the protection of the rights of others to have the Court conduct timely reviews of their legitimate filings.” Pettway v. McNeil, 987 So.2d 20, 22 (Fla.2008). Sanctioning abusive litigants by prohibiting pro se filings and requiring that all prospective filings with the Court be signed by a member of The Florida Bar in good standing furthers the right of access to the courts. Such a sanction allows the Court to devote its “finite resources to the consideration of legitimate claims of persons who have not abused the process.” Attwood v. Singletary, 661 So.2d 1216, 1217 (Fla.1995); see also Pettway, 987 So.2d at 22.

Durie’s response to the show cause order, addressing only the merits of the underlying petition previously denied by the Court, and his express intention to continue raising the same matter, which the Court has determined to be frivolous and abusive in nature, highlight the necessity of the sanction we now impose. In light of Durie’s filing history, “[t]here is a strong inference that unless he is stopped, [Durie] will continue filing nonmeritorious requests for relief in this Court” regarding his conviction and sentence in State v. Durie, Case No. CR97-13255. Pettway, 987 So.2d at 22; see also Lanier v. State, 982 So.2d 626, 627-28 (Fla.2008); Tate v. McNeil, 983 So.2d 502, 504 (Fla.2008); Jackson v. Fla. Dep’t of Corrections, 790 So.2d 398, 401-02 (Fla.2001). Under the sanction herein imposed, Durie is not being denied access to the courts; access is simply being limited due to his abusive and frivolous pro se filings. We cannot tolerate Durie’s continued inability or unwillingness to abide by the legal processes of the judicial system. Therefore, the Court makes clear that, in the event Durie submits a filing in violation of this order, he may be subjected to contempt proceedings or other appropriate sanctions.

Accordingly, to preserve the right of access for all litigants and promote the interests of justice, all pending motions or other requests for relief are hereby stricken as unauthorized. We also direct the Clerk of this Court to accept no pleadings, petitions, motions, notices, or other filings submitted by Jack Frederick Durie, Jr., that are related to his conviction or sentence in State v. Durie, Case. No. CR97-13255, unless such filings are signed by a member in good standing of The Florida Bar. All other pending petitions, motions, or requests for relief filed in this cause are hereby denied.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

      . See, e.g., Durie v. State, No. SC07-343 (Fla. order filed Mar. 16, 2007) (unpublished) (order transferring petition for habeas corpus to the Ninth Judicial Circuit, Orange County); Durie v. State, 18 So.3d 527 (Fla.2009) (table) (petition for habeas corpus dismissed as repetitive); Durie v. State, 42 So.3d 233 (Fla. 2010) (table) (petition for writ of habeas corpus dismissed as unauthorized pursuant to Baker v. State, 878 So.2d 1236 (Fla.2004)).


author: WOLF, J.

text:
    Noni STINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5225.
    District Court of Appeal of Florida, First District.
    March 13, 2009.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett and Thomas D. Wino-kur, Assistant Attorneys General, Tallahassee, for Appellee.
   WOLF, J.

Appellant, Noni Stinson, challenges her conviction for murder in the second degree with a firearm. Appellant raised three issues on appeal, two of which merit discussion. First, appellant asserts the trial court erred in denying her motion for judgment of acquittal because appellant established a prima facie case of self defense, and the State failed to present evidence rebutting appellant’s theory of self-defense beyond a reasonable doubt. As discussed below, we affirm as to this issue. See Rasley v. State, 878 So.2d 473, 476 (Fla. 1st DCA2004).

Second, appellant asserts the trial court fundamentally erred in giving the standard jury instruction for manslaughter by act, as it erroneously suggests that intent to kill is an element of the crime. We find that giving this instruction constituted fundamental error and reverse for a new trial.

We have addressed the issue of the State’s burden of proof where the issue of self defense is raised. In Rasley, this court stated:

As applied to the theory of self-defense in particular, the following rules should be taken into consideration regarding the state’s burden: The state is required to prove beyond a reasonable doubt that the defendant did not act in self-defense. See Brown v. State, 454 So.2d 596, 598 (Fla. 5th DCA 1984). “If a defendant establishes a prima facie case of self-defense, the state must overcome the defense by rebuttal, or by inference in its case in chief.” See State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998).

Id. at 476. The court further stated,

[A]n appellate court, in reviewing the record in a case where such defense is interposed, is required to heed the rules that “[t]he question of self defense is one of fact, and is one for the jury to decide where the facts are disputed.” Dias v. State, 812 So.2d 487, 491 (Fla. 4th DCA 2002) (citing Scholl v. State, 94 Fla. 1138, 115 So. 43, 44 (1927)). “A motion for judgment of acquittal should not be granted unless ‘the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.’ ” See Hernandez v. State, 842 So.2d 1049, 1051 (Fla. 4th DCA 2003), quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974).
[T]he state submitted evidence from which the jury could reasonably infer that appellant acted out of anger and jealousy because she had discovered that the husband/victim was having an extramarital affair. The evidence, in its entirety, was susceptible of two views, either justifiable self-defense, or an act arising out of jealousy and anger from the fact that the husband was having an affair.

Id. at 476-77.

In the instant case, the State presented evidence that appellant (1) lied to both the 911 operator and the police about her involvement in the shooting; (2) hid the murder weapon; and (3) had recently discovered evidence that her husband had been unfaithful. Additionally, one of the police officers testified that appellant did not appear disheveled and did not have any bruises that would indicate that she had recently been the victim of domestic violence. Pursuant to Rasley, this evidence was sufficient to sustain the State’s burden.

We are required to reverse, however, based on the trial court’s instruction on the lesser included offense of manslaughter by act. The trial court stated that the State was required to prove that “Noni Jamil Stinson intentionally caused the death of Solomon Stinson.” This constitutes fundamental, reversible error. Montgomery v. State, 34 Fla. L. Weekly D360, 70 So.3d 603, 2009 WL 350624 (Fla. 1st DCA Feb. 12, 2009) (on motion for rehearing); see also Burroughs v. State, 997 So.2d 522 (Fla. 1st DCA 2008); Davis v. State, 34 Fla. L. Weekly D131, — So.3d -, 2009 WL 47384 (Fla. 1st DCA Jan. 9, 2009).

Reversed and remanded for a new trial.

LEWIS and ROBERTS, JJ., concur.


text:
    Willie HARDEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2528.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2009.

      Rick Sichta and Frank J. Tassone of Tassone & Siehta, LLC, Jacksonville, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Willie Hardee, challenges his conviction for second-degree murder with a weapon. Because the trial court gave the standard jury instruction for the lesser included offense of manslaughter by act, Appellant’s conviction for second-degree murder is reversed and the case is remanded for a new trial. Montgomery v. State, 70 So.3d 608, 2009 WL 350624 (Fla. 1st DCA 2009), review granted, State v. Montgomery, 11 So.3d 943 (Fla.2009). All other issues raised on appeal are affirmed without further discussion.

REVERSED and REMANDED.

BARFIELD, DAVIS, and ROBERTS, JJ., concur.


author: SUAREZ, J.

text:
    CIMA CAPITAL PARTNERS, LLC, etc., Appellant, v. PH CELLULAR, INC., etc., Appellee.
    No. 3D09-1896.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Alvarez, Armas & Borron and J. Alfredo De Armas and Arturo Alvarez, Coral Gables, for appellant.
    Lipscomb, Brady & Bobadilla and Deborah B. Jofre, Miami, for appellee.
    Before SUAREZ, CORTINAS, and SALTER, JJ.
   SUAREZ, J.

CIMA Capital Partners, LLC seeks to reverse the final judgment awarding specific performance and to remand for an award of damages. We reverse and remand. CIMA Capital Partners (CIMA) sued PH Cellular, Inc. (PHC), for breach of contract and the trial court was able to quantify the amount of damages as of the date of the breach, which required an award of damages and not an award for specific performance.

CIMA brought an action at law for money damages against PHC, a closely held corporation, in a suit for breach of contract. The contract between CIMA and PHC specified that CIMA was entitled upon “successful funding” to “a warrant to purchase 5% of shares” so that it “could own, on exercise, five percent of the fully diluted shares.” CIMA properly exercised its option, PHC refused to honor the provision and terminated the relationship. The trial court conducted a bench trial and based on the evidence presented correctly concluded that PHC breached the contract and determined that the shares owed to CIMA at the time of breach were worth $353,000. Nevertheless, the trial court ordered specific performance rather than award the damages sued for by CIMA. CIMA argues on appeal that it should receive the value of the shares at the time of breach, in December 2007, when PH Cellular was worth approximately $7 million, rather than the shares themselves as ordered transferred by the court in May 2009, when PH Cellular was worth far less. We agree.

The aim of money damages is not merely to restore the plaintiff to its former position, as in tort, but to award a sum that is equivalent to the performance of the bargain; the attempt is to place the plaintiff in the position he would have been in had the contract been fulfilled. See Williston on Contracts, § 64:1 (2002); Restatement (Second) of Contracts § 346 (1981). Damages for breach of contract are to be measured as of the date of breach. See Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037 (Fla.1982); Lake Region Paradise Island, Inc. v. Graviss, 335 So.2d 341 (Fla. 2d DCA 1976) (finding that where the contract provided that plaintiff could purchase 10% interest in the business, valuation of the business was to be measured at date of defendant’s breach of contract, with interest up to the date of trial).

The trial court after taking evidence found that PHC breached the contract with CIMA in December 2007 and was able to determine the value of PHC as of the date of breach and found five percent of that value to be $353,000. Instead of awarding those damages, the trial court, without explanation, ordered specific performance by the transfer of shares, at that time probably devalued. CIMA had brought an action at law for damages for breach of contract, not an action in equity for specific performance. Specific performance is the rare exception when only equitable relief is available, as in the case of an oral contract. See WiUiston, § 64:1 at 4-5 (2002). In this case, damages were the preferred legal remedy where there was a written contract between the parties, measurable value to the business, and a date certain of the breach.

Furthermore, PHC cannot claim that because the shares are unsellable they cannot be valued. Valuation of closely-held shares is done all the time. See, e.g., Kay v. Key West Dev. Co., 72 So.2d 786, 788 (Fla.1954) (“It is a matter of common knowledge that stock in such closed or closely held corporations have no recognized or standard market value and in order to effect a sale thereof, prospective purchasers usually look into the financial status, management and background of such corporation.”); Munshower v. Kolbenheyer, 732 So.2d 385 (Fla. 3d DCA 1999) (looking to New York law to determine the “fair value” of closely held corporate shares); London v. Metropolitan Dade Co., 280 So.2d 714 (Fla. 3d DCA 1973) (finding that consideration of cash value of taxpayers’ stocks in a closely held corporation may be used with other factors to arrive at a just valuation of the shares, such as ratio of assets to liabilities, funded debt, character of assets, value of assets, volume of business, impermanence of the business, attractiveness of the stock to investors, stability of net income from the assets, or any other impediments to true taxable value may be considered when making the stock assessment); 12 B William M. Fletcher, Fletcher Cyclopedia of the Law of Corporations, § 5906.120 (supp. 2007) (“Stock of closely held corporations cannot reasonably be valued by application of any inflexible formula; one tailored to the particular case must be found”).

PHC relies on the inapposite case of Shearson Loeb Rhoades, Inc. v. Medlin, 468 So.2d 272 (Fla. 4th DCA 1985), that held a showing of plaintiffs entitlement to damages for delay in delivery of stock is accomplished by the plaintiff demonstrating that had it possessed the shares, it would have sold them during the interim between the breach and the actual date of delivery. This is not the situation in this action. PHC did not delay delivering the shares — it refused delivery outright, thus breaching the contract between itself and CIMA.

We reverse the order on appeal and remand for entry of money damages to CIMA as measured on the date of breach, together with prejudgment interest.

Reversed and remanded.


author: WARNER, J. WARNER, J.

text:
    CORPORACION AERO ANGELES, S.A., Appellant, v. Jaime Gaston FERNANDEZ & Fernandez Aviation, LLC, Appellees.
    No. 4D09-4997.
    District Court of Appeal of Florida, Fourth District.
    April 20, 2011.
    Opinion Denying Rehearing June 29, 2011.

      Ricardo J. Cata and Ronnie Guillen of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Miami, for appellant.
    Joseph S. Shook, Coral Gables, for ap-pellees.
   WARNER, J.

The appellant, a Mexican corporation, challenges a trial court’s order denying its motion to dismiss for lack of personal jurisdiction in a breach of contract action for failure to pay a commission on the sale of the corporation’s airplane. The trial court supported its denial on the ground that the plaintiff, a Florida broker, was instrumental in finding a buyer for the airplane and received some materials in Florida, which the court found sufficient to confer jurisdiction. We reverse, because these reasons were insufficient to show minimum contacts by the corporation with Florida to support personal jurisdiction.

This case arises out of the breach of an oral brokerage agreement for the sale of a jet owned by Aero Angeles, a Mexican Corporation. The plaintiff, Jaime Gaston Fernandez, claims that he was not paid a commission in connection with the sale and filed suit seeking damages from Aero An-geles. The corporation contends that it did not enter into a contract to pay him a commission.

Aero Angeles owned a Falcon 900B jet, which was its only asset, according to Antonio Ortiz Palero, the general director of Aero Angeles and also the pilot of the aircraft. The corporation itself was owned by a Mexican national who used the jet primarily for personal use. The jet was headquartered in Mexico and was never offered for charter flights to Florida or for Florida residents. Palero testified that the company had no type of business in Florida. The company did not have employees, offices, phone listings, bank accounts, leases or sales in Florida. It did not engage in business in Florida and did not register to do business in the state. It did not have an agent in Florida for service of process and never paid Florida taxes. The company did not bring paying passengers to Florida.

When the owner of Aero Angeles decided to purchase a new aircraft, he directed Palero to sell the Falcon. Palero contacted Fernandez about selling the aircraft, although he testified that Fernandez was only one of many persons who were contacted about the jet. Palero testified that the company would not engage an exclusive broker, nor would its owner agree to pay a commission. Instead, the owner expected a certain price, and anything over that amount could be kept by the broker. Essentially, Fernandez testified to the same agreement, but he testified that his agreement regarding the commission was between him and Palero, because Palero would be splitting the commission with Fernandez. In fact, according to Fernandez, Palero told him to give a net price to the owner of $17,000,000, and he and Fernandez would split the amount above that price. Fernandez also claimed that he obtained the exclusive listing for the aircraft from Palero.

Fernandez testified that he approached several buyers in Florida and advertised the plane in national magazines. Palero sent him pictures of the plane to use in the advertising. Initially Fernandez obtained an offer of $17,000,000 for the plane but the owner rejected the offer. Later, Pale-ro received another call from Fernandez that certain Canadian clients wanted to see the plane. Fernandez received permission from Palero to show the plane to the clients in Mexico. The Canadian clients then sent Fernandez $25,000 for expenses to view the airplane in Mexico. Most of these funds were eventually returned to the buyers.

After viewing the plane in Mexico, the buyers placed a $500,000 deposit on a contract for sale, which deposit was held by an Oklahoma escrow agent. Without Fernandez being present, Palero met with the Canadian buyers in Montreal and worked out a contract. Other brokers or salesmen were involved. On behalf of the owner, Palero accepted a purchase price of $18,575,000. The $575,000 was to be for Fernandez or the other brokers. The sale eventually closed in Canada. Neither the buyer nor the other brokers paid Fernandez the commission.

Several years later Fernandez sued Aero Angeles for breach of contract for failure to pay him a commission. To establish jurisdiction, he alleged that Aero Angeles had breached a contract by failing to pay the commission to Fernandez in this state. He also detailed his efforts to market the plane in Florida and his execution of a contract of sale in Florida. The corporation moved to dismiss, and the court held an evidentiary hearing on the issue.

After hearing the witnesses, the court determined that Palero and Fernandez had some discussions regarding making a sale of the aircraft. Palero ultimately told Fernandez that he wanted $18,000,000 for the plane, and anything over that would be for Fernandez or would be a private split between Palero and Fernandez. The court found that Fernandez had authority to sell the aircraft, introduced the eventual buyer to the seller, and received $25,000 [from the buyers] in Florida for the purposes of showing the aircraft. The court concluded that because Fernandez was a Florida broker, these contacts were sufficient to provide jurisdiction. Aero Ange-les appeals the determination of jurisdiction.

We review a trial court’s denial of a motion to dismiss for lack of personal jurisdiction using the de novo standard. See Wendt v. Horowitz, 822 So.2d 1252, 1256-57 (Fla.2002). However, where “the trial court’s decision is based on live testimony, the appellate court defers to the trial court’s determination as to the credibility of witnesses.” Evans v. Thornton, 898 So.2d 151, 152 (Fla. 4th DCA 2005). Thus, with respect to the determination of facts, we defer to the trial court. With respect to the application of those facts to the law, we review de novo.

In Stomar, Inc. v. Lucky Seven Riverboat Co., 821 So.2d 1183, 1185 (Fla. 4th DCA 2002), we explained the dual inquiry required to make a jurisdictional determination under Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989):

The trial court must first decide whether the complaint alleges sufficient jurisdictional facts to bring the action within Florida’s long arm jurisdiction statute. Second, the court must determine whether the non-resident lacks sufficient contacts with Florida such that the maintenance of the suit here would offend traditional notions of fair play and substantial justice because defendant could not reasonably anticipate being sued in Florida.

(footnote omitted). Here, the complaint alleged that Aero Angeles breached a contract by failing to pay Fernandez a commission in this state, thus bringing the action within section 48.193(g) of the Florida long-arm statute: “Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.” Whether the trial court found that Aero Angeles agreed to pay Fernandez a commission is subject to debate. The trial court found, consistent with both the testimony of Fernandez and Palero, that the owner would seek a set price ($18,000,000 according to the trial court), and Fernandez and Palero would split any money obtained above that figure. We question whether such an agreement amounts to one between the corporation and Fernandez. Nevertheless, for purposes of this opinion we will assume that this constituted a contract between the corporation and Fernandez to pay a commission.

Where no place of payment is designated in a contract, payment is presumed to be made at the residence of the creditor. See Global Satellite Commc’n Co. v. Sudline, 849 So.2d 466, 468 (Fla. 4th DCA 2003). Fernandez lives in Florida. Therefore, Fernandez has satisfied the first prong of the jurisdictional analysis.

The second prong requires a determination as to whether the non-resident has sufficient minimum contacts to bring the action in the forum state. The trial court made no analysis of the contacts of the corporation to Florida which would bring it within the minimum contacts. It merely listed the contacts that the broker has with the state. In essence, because a Florida broker sold the airplane, the court found sufficient jurisdiction in Florida. We disagree.

Accepting the trial court’s finding that a contract existed, the contract the court accepted was a contract to sell a Mexican plane to a Canadian buyer. When Fernandez’ Canadian prospects developed an interest, they went to Mexico to view and test the plane. Fernandez signed a contract with the Canadian buyer, with an escrowed down payment being held in Oklahoma. The Canadian buyers, not Aero Angeles, sent money to Fernandez in Florida to pay for the expense of viewing the airplane in Mexico. The remaining contract negotiations occurred in Canada between Palero and the Canadian buyers.

The Supreme Court has set the contours of the minimum contacts of a defendant with a forum state necessary to satisfy due process.

Due process requirements are satisfied when in personam jurisdiction is asserted over a nonresident corporate defendant that has “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). When a controversy is related to or “arises out of’ a defendant’s contacts with the forum, the Court has said that a “relationship among the defendant, the forum, and the litigation” is the essential foundation of in personam jurisdiction. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977).

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). This type of jurisdiction is referred to as specific jurisdiction. Stated another way, to satisfy the minimum contacts requirement for purposes of personal jurisdiction a defendant’s contacts (1) must be related to the plaintiffs cause of action or have given rise to it, (2) must involve some act by which the defendant has purposefully availed itself of the privilege of conducting activities within the forum, and (3) the defendant’s contacts with the forum must be such that the defendant should reasonably anticipate being haled into court there. See Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 631 (11th Cir.1996) see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Worlds Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

The court determined that a contract existed to sell the plane to Canadian buyers. The court did not determine that Aero Angeles gave Fernandez an exclusive listing agreement to sell the plane. Aero Angeles’ contacts with Florida in relation to the sale of the plane to Canadian buyers are non-existent. Neither the plane, the owner, nor even Palero came to Florida in connection with this sale. No contract was delivered to Aero Angeles here. No deposit was escrowed in Florida. The closing took place in Canada. In short, none of the three criteria for minimum contacts has been satisfied.

Fernandez relies primarily on two cases, both of which we find distinguishable. First, he claims that under similar circumstances we found in Stomar that an out-of-state owner hiring a broker in Florida to sell a vessel satisfied minimum contacts. However, the broker was hired “to perform brokerage services on its behalf in Florida, including negotiations, for the purpose of selling Lucky Seven’s vessel here.” (emphasis supplied). Thus, where the vessel is located in Florida and the sale is made in Florida, there is every reason for the owner who fails to pay a broker commission to expect to be haled into court in Florida. Here, however, the jet was not located in Florida, nor did the closing occur in Florida, and thus Stomar is distinguishable on its facts.

Tallmadge v. Mortgage Finance Group, Inc., 625 So.2d 1313 (Fla. 4th DCA 1993), is factually a closer ease. There, a California resident sought mortgage refinancing on his home. He contacted a Florida mortgage broker and sent a deposit and signed contract to the broker in Florida. The broker then found the lender, and the transaction closed in California. We held that there were sufficient minimum contacts with Florida to confer jurisdiction over the California resident. In Tall-madge, a written contract was sent to Florida with a deposit, acknowledging Florida’s centrality to the mortgage broker. In contrast, no contract regarding the commission or exclusive brokerage agreement was sent to Florida, nor was any money sent by Aero Angeles to Florida. While the trial court found that $25,000 was sent to Fernandez, it was sent by the buyers, not the seller, to arrange the viewing of the plane. Moreover, the Tallmadge court acknowledged that the Florida Supreme Court in Venetian Salami recognized that retaining a Florida agent to perform services in this state was sufficient to constitute minimum contacts. Here, Fernandez was retained to close the sale of a Mexican airplane to Canadian buyers and was not retained to furnish services in this state.

We conclude that the appellant has not shown that jurisdiction can be constitutionally asserted over Aero Angeles. Specific jurisdiction based upon minimum contacts between Aero Angeles and Florida has not been established.

Reversed with directions to dismiss the cause of action for lack of jurisdiction.

POLEN and LEVINE, JJ., concur.

On Motion for Rehearing

WARNER, J.

We deny the motion for rehearing, but add the following to our opinion.

Fernandez first contacted Palero by telephone in Mexico inquiring into whether the Falcon 900B was for sale in 1999 several years before Aero Angeles actually placed it on the market. He continued to ask about the plane during the ensuing years. Finally, in 2002, Palero told him that Aero Angeles would be selling the plane. Thus, this case is distinguishable from those cases which found minimum contacts where the non-resident initiated contact with the Florida resident in Florida. See Banco Inversion, S.A. v. Celtic Fin. Corp., S.A, 907 So.2d 704 (Fla. 4th DCA 2005) (Banco contacted Celtic in Florida to provide services in connection with bond sale, and Celtic performed services in Florida); Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071 (Fla. 4th DCA 2002) (non-resident who initiated contact with commodities broker in Florida to trade commodities through its offices in Florida and sent payment to Florida was engaged in business activity in the state sufficient to meet minimum contacts).

POLEN and LEVINE, JJ., concur.

      . Jurisdiction may also be predicated on a defendant's activities in a forum state. This is termed general jurisdiction. Aero Angeles conducted no activities in Florida and thus could not be subject to general jurisdiction.


author: PER CURIAM. PER CURIAM.

text:
    Jacqueline HARVEY, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee for American Home Mortgage Investment Trust 2005-1, Mortgage-Backed Notes Series 2005-1, Appellee.
    No. 4D10-674.
    District Court of Appeal of Florida, Fourth District.
    April 20, 2011.
    Opinion Denying Rehearing June 29, 2011.

      Jacqueline Harvey, Palm City, pro se.
    Katherine E. Giddings and Nancy M. Wallace of Akerman Senterfitt, Tallahassee, and William P. Heller of Akerman Senterfitt, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932 (Fla. 4th DCA 2010). As to denial of appellant’s motion for reconsideration without holding a hearing thereon, see Aubourg v. Erazo, 922 So.2d 1106 (Fla. 4th DCA 2006).

GROSS, C.J., POLEN and DAMOORGIAN, JJ., concur.

On Motion for Rehearing

PER CURIAM.

We deny appellant’s motion for rehearing but write to address the points argued by appellant, pro se, in her brief.

Deutsche Bank filed a two-count foreclosure complaint against Harvey on April 6, 2009: Count I (to reestablish the lost note); Count II (foreclosure). Deutsche alleged that on March 4, 2005, Harvey executed and delivered to American Home Mortgage Acceptance, Inc. (AHMAI), a promissory note in the principal amount of $228,000.00 and a purchase money mortgage, securing payment of the note. Deutsche attached to the complaint a “substantial” copy of the note and a copy of the mortgage, showing AHMAI as the lender and Mortgage Electronic Registration Systems, Inc. (MERS) as the nominal mortgagee. The copy of the note payable to AHMAI is indorsed in blank, and the in-dorsement is signed by Vaughn Johnson, assistant secretary, AHMAI. The complaint further alleged that Harvey is in default under the note held by Deutsche and that the payment due January 1, 2009, and all subsequent payments, have not been made. The transcript from the summary judgment hearing reveals that Harvey filed a pro se answer; however, Harvey’s answer is not contained in the record on appeal.

On September 17, 2009, Deutsche filed a motion for summary judgment, along with an affidavit of indebtedness. On September 30, 2009, Deutsche filed an affidavit of lost note. A hearing on Deutsche’s motion for summary judgment was held on October 12, 2009. At the hearing, the judge determined that the lost note affidavit was not in the case file and declined to rule on the motion without first reviewing the lost note affidavit. Harvey argued that she had “reason to believe that the assignment is fraudulent, manufactured paperwork.” The trial judge told Harvey that nothing would be done until the lost note affidavit was filed and in the court file.

On October 29, 2009, Deutsche filed a copy of the assignment of mortgage from MERS to Deutsche with an effective date of March 31, 2009, and a re-notice of hearing on the motion for summary judgment. A hearing was held on January 11, 2010, and the judge found that the original note was now in the court file, indorsed in blank by AHMAI. The judge stated: “I have an affidavit of indebtedness, I have all the affidavits I need. I mean, there’s nothing in this file that would legally stop what’s happening.... And the law is that they’re entitled to summary judgment.” Harvey again argued that the assignment was fraudulent because Deutsche did not file the assignment until twenty days after it filed the foreclosure. The trial judge responded that there was no record evidence or sworn documentation which supported Harvey’s contentions. A final foreclosure judgment was entered on January 14, 2010.

Harvey filed a motion for reconsideration on January 22, 2010, arguing that (1) Deutsche did not have standing to enforce the note because the assignment of mortgage was signed and recorded after the complaint was filed; and (2) the validity of Deutsche’s assignment of mortgage contained questionable authorized signatures. On January 22, 2010, Harvey noticed a hearing on her motion for reconsideration to be heard on February 8, 2010. The court denied the motion for reconsideration before the hearing, but Harvey did not cancel the hearing and attended the hearing on February 8, 2010. The judge, who had already denied the motion, stated:

Miss Harvey, a couple of things that I need to tell you. I didn’t even receive this from you, but I was alerted to the fact that you had filed some type of motion for reconsideration, which if you go on my website, you see how that’s handled. You don’t automatically set it for hearing. You’re not entitled to a hearing unless I tell you you’re entitled to a hearing, either a motion for consideration or a motion for rehearing. And if you go on the website and look at my policies, you’ll see that that is the case.
I’ve already denied your motion, I did that in chambers. So there’s nothing for us to do today. Okay?

Harvey then appealed to this court, arguing that the circuit court erred by (1) granting Deutsche’s motion for summary judgment because a genuine issue of material fact existed as to Deutsche’s standing to foreclose; and (2) denying Harvey’s motion for reconsideration without first holding a hearing. Deutsche argued that, as holder of the original note, indorsed in blank, it had standing to enforce the note, and that the circuit court properly entered final summary judgment of foreclosure after reviewing the original note and other affidavits supporting its motion for summary judgment.

1. The Order Granting Deutsche’s Motion for Summary Judgment

“The standard of review of an order granting summary judgment is de novo.” Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211,1213 (Fla. 4th DCA 2009). When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party; the burden is upon the moving party to show conclusively the complete absence of any genuine issue of material fact. Id. The person entitled to enforce a negotiable instrument, such as a promissory note, is the “holder of the instrument.” § 673.3011, Fla. Stat. (2009). A “holder” is “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession....” § 671.201(21)(a), Fla. Stat. (2009). “Bearer” means “a person in possession of a negotiable instrument ... that is payable to bearer or indorsed in blank.” § 671.201(5), Fla. Stat. (2009).

In Riggs v. Aurora Loan Services, LLC, 36 So.3d 932 (Fla. 4th DCA 2010), Aurora filed a mortgage foreclosure action against Riggs, alleging that it was the owner and holder of the underlying promissory note. Id. at 933. With the complaint, Aurora filed copies of the mortgage and promissory note, which named Riggs as the mortgagor and First Magnus Financial Corporation as the mortgagee. Id. Aurora moved for summary judgment, and in support, it filed two affidavits attesting that it owned and held the note and mortgage. Id. At the hearing on the motion, Aurora produced the original mortgage and promissory note. The note had an indorsement in blank with the hand printed signature of Humberto Alday, an agent of the indorser, First Magnus. Id. The circuit court granted summary judgment in favor of Aurora over Riggs’s objections that Aurora’s status as lawful owner and holder of the note was not conclusively established by record evidence. Id. This court agreed with the circuit court and held:

Aurora’s possession of the original note, indorsed in blank, was sufficient under Florida’s Uniform Commercial Code to establish that it was the lawful holder of the note, entitled to enforce its terms. The note was a negotiable instrument subject to the provisions of Chapter 673, Florida Statutes (2008). An indorsement requires a “signature.” § 673.2041(1), Fla. Stat. (2008). As an agent of First Magnus, Alda/s hand printed signature was an effective signature under the Code. See §§ 673.4011(2)(b), 673.4021, Fla. Stat. (2008). The indorsement in this case was not a “special indorsement,” because it did not “identify] a person to whom” it made the note payable. § 673.2051(1), Fla. Stat. (2008). Be cause it was not a special indorsement, the indorsement was a “blank indorsement, which made the note “payable to bearer” and allowed the note to be “negotiated by transfer of possession alone.” § 673.2051(2), Fla. Stat. (2008). The negotiation of the note by its transfer of possession with a blank indorsement made Aurora Loan the “holder" of the note entitled to enforce it. §§ 673.2011(1), 673.3011(1), Fla. Stat. (2008).

Id. (emphasis added). In WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682 (Fla. 4th DCA 2004), this court held that “a mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt....” Id. (quoting Johns v. Gillian, 279 Ala. 232, 184 So. 140, 148 (Fla.1938)).

Here, because the note at issue is payable to AHMAI, and indorsed in blank, and because Deutsche possessed the original note and filed it with the circuit court, its standing may be established from its status as the note holder, regardless of any recorded assignments. As to Harvey’s argument regarding “questionable signatures,” although Harvey argued this point in her motion for reconsideration, she failed to present any evidence below to support her contention that the signatures were fraudulent. Even if Harvey could prove this, the dispute would be between AHMAI and Deutsche. Importantly, Harvey has never denied that she was in default as to her mortgage payments.

2. The Order Denying Harvey’s Motion for Reconsideration

Harvey argues that the circuit court’s denial of her motion for reconsideration violated her due process rights. In Aubourg v. Erazo, 922 So.2d 1106 (Fla. 4th DCA 2006), this court held that due process does not require a trial court to hold a hearing before it can deny a motion for new trial. Id. at 1107.

Because the circuit court properly found Deutsche had standing to enforce the note — based on uncontroverted record evidence, Harvey’s motion was properly denied without a hearing. Under this court’s decision in Riggs, the circuit court properly entered summary judgment in favor of Deutsche, and pursuant to our decision in Aubourg, the trial court did not abuse its discretion when it refused to hold a hearing prior to denying Harvey’s motion for reconsideration.

GROSS, C.J., POLEN and DAMOORGIAN, JJ., concur.

      . The transcript from the January 11, 2010 hearing on Deutsche’s motion for summary judgment reflects that on October 27, 2009, Deutsche withdrew its count in its complaint to reestablish the note.

      . As to this point, Harvey specifically argued that on April 16, 2009, an assignment of mortgage was executed by Korell Harp, vice president for MERS, as nominee for AHMAI, and Tywanna Thomas, assistant secretary for MERS. Harvey stated that on May 6, 2009, an assignment of mortgage in a different and unrelated foreclosure case was executed by Korell Harp; Harp was listed as vice president and assistant secretary for Argent Mortgage Company, LLC. Harvey further stated that in another unrelated foreclosure case, an assignment of mortgage was executed by Cheryl Thomas and Tywanna Thomas; Cheryl Thomas was listed to be vice president of Sand Canyon Corporation and Tywanna Thomas was listed as assistant vice president. Harvey stated that in yet another unrelated foreclosure case, an assignment of mortgage was executed by Korell Harp and Tywanna Thomas. Harvey argued that the signatures of Harp and Tywanna Thomas "appear to be different when compared with the other assignments signed by Ms. Harp and Ms. Thomas,” and "[b]ecause there was a dispute concerning either the facts of the controversy or the inferences to be drawn from those facts, a summary judgment was improper.”


text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellant, v. Louise MESSINA, Appellee.
    No. 4D09-4448.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2011.
    Opinion on Rehearing Aug. 24, 2011.

      Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellant.
    Scott A. Mager of Mager Lawyers, LLC, Fort Lauderdale, for appellee.
   PER CURIAM.

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

WARNER, TAYLOR and CONNER, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

The motion for rehearing filed by appellant, Florida Insurance Guaranty Association, Inc. (FIGA), is denied. Both Florida Insurance Guaranty Ass’n v. Smothers, 65 So.3d 541 (Fla. 4th DCA 2011) and Florida Insurance Guaranty Ass’n v. Ehrlich, — So.3d -, 2011 WL 1661386, 36 Fla. L. Weekly D939 (Fla. 4th DCA May 4, 2011) are distinguishable. In Smothers, FIGA filed a demand for an appraisal, not an answer and affirmative defenses. In Ehrlich, the court compelled an answer and affirmative defenses, when FIGA sought additional extensions. In this case, FIGA filed an answer and affirmative defenses denying coverage without a court order compelling an answer. It then settled the case, which may be deemed a confession of judgment. See Willey v. M.E Roark, Inc., 616 So.2d 1140, 1142 (Fla. 4th DCA 1993). While FIGA has argued that it did not really contest coverage, there is no record to reflect that or the circumstances of the payment of the claim, as appellant’s initial brief concedes.

After having filed an answer and affirmative defenses affirmatively denying coverage for the claim and the amount of damages, FIGA proceeded to settle the claim. Without showing the circumstances of the settlement and whether there was a real contest to the claim, FIGA has not provided an appellate record sufficient for this court to consider its contentions that it did not deny coverage by affirmative action other than delay. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979).

WARNER, TAYLOR, and CONNER, JJ., concur.


text:
    Michael R. BRONSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3036.
    District Court of Appeal of Florida, First District.
    July 15, 2011.
    Rehearing Denied Sept. 14, 2011.
    Michael R. Bronson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Patrick DAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3554.
    District Court of Appeal of Florida, First District.
    July 25, 2011.
    Rehearing Denied Sept. 23, 2011.
    Patrick Day, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

BENTON, C.J., ROBERTS and RAY, JJ., concur.


author: POLEN, J.

text:
    PAUL JACQUIN & SONS, INC., a Florida corporation, Appellant, v. CITY OF PORT ST. LUCIE, a municipal corporation, Appellee.
    No. 4D11-643.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Rehearing Denied Oct. 6, 2011.

      Douglas W. Ackerman and Claire Ash-ington-Pickett of Kirwin Norris, P.A., Orlando, for appellant.
    Pam E. Booker Hakim, Senior Assistant City Attorney, Port St. Lucie, for appellee.
   POLEN, J.

Appellant, Paul Jacquin & Sons, Inc. (Jacquin), an unsuccessful bidder for a City of Port St. Lucie (City) construction project, timely appeals the non-final order of the trial court, denying Jacquin’s motion for a temporary injunction. We find that the issue is moot, as the City, by vote, has rejected all bids, pursuant to its reservation of this right in its Invitation to Bid and by section 255.20(l)(d)l., Florida Statutes (2009). However, we write to emphasize that if a city desires to perform a project, using its own services, employees, and equipment, it must comply with the requirements of section 255.20(l)(c)9., Florida Statutes, and conduct a public meeting pursuant to section 286.011, Florida Statutes.

On August 13, 2010, the City put out an Invitation to Bid for the construction of the Ravenswood Community Center Project (Project). In the Invitation, the City informed all bidders that it intended to have its Construction Division submit a bid for the project. The Invitation also contained the following statement: “The City of Port St. Lucie reserves the right to reject any and all bids, to waive any and all informalities or irregularities, and to accept with his bid, a bid bond, a bid guaranty, in the amount of five percent (5%) of the bid total, made payable to the City of Port St. Lucie.” On September 30, 2010, the City received five sealed bids for the Project: The City’s Construction Division was the low bidder for the Project; Jacquin was the second lowest bidder. On January 18, 2011, the City Council voted (3-2) to award the contract to the City’s Construction Division, with Bayview Construction, Certified Construction and Eddie Huggins as the three “subcontractors” performing the work for the City’s Construction Division. The scope of work for Bayview, Huggins and Certified all exceeded $300,000; Bayview, Huggins and Certified did not provide the City with a bid bond. The Construction Division also did not provide a bid bond.

On January 19, 2011, Jacquin filed a complaint and motion for temporary injunction, seeking injunctive and declaratory relief against the City’s award of the contract to its own Construction Division. On January 26, 2011, after both an ex parte hearing and an evidentiary hearing, the lower court entered an order denying Jacquin’s motion, finding that Jacquin did not prove the elements of irreparable harm, no adequate remedy at law, or that the injunction would serve the public interest. Jacquin then timely appealed. On March 14, 2011, the City Council voted (3-2) to reject all bids and to rebid the project without the City’s Construction Division bidding on the Project.

On appeal, the City argues that this issue is moot because it has decided to reject all bids and re-bid the Project, pursuant to its reservation of this right in its Invitation to Bid and by section 255.20(1)(d)1., Florida Statutes. We agree. As the purpose of Jacquin’s motion for temporary injunction was to prevent the City from awarding the contract to its Construction Division, and because the contract will not be awarded to the Construction Division on re-bid, the issue is moot.

“An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect. Godwin v. State, 598 So.2d 211, 212 (Fla.1992) (citing DeHoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (1943)). “A case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist.” Id. (citing Blade's Law Dictionary 1008 (6th ed. 1990)). “A moot case generally will be dismissed.” Id. However, mootness does not destroy an appellate court’s jurisdiction when the questions raised are of great public importance, are likely to recur, or if collateral legal consequences that affect the rights of a party flow from the issue to be determined. Id. (citing Holly v. Auld, 450 So.2d 217, 218 n.1 (Fla.1984); Keezel v. State, 358 So.2d 247 (Fla. 4th DCA 1978)).

“Even if the public entity makes an erroneous decision about which reasonable people may disagree, the discretion of the public entity to solicit, accept and or reject contract bids should not be interfered with by the courts, absent a showing of dishonesty, illegality, fraud, oppression or misconduct.” Sutron Corp. v. Lake County Water Auth., 870 So.2d 930, 932 (Fla. 5th DCA 2004). In Solares v. City of Miami, 23 So.3d 227, 228 (Fla. 3d DCA 2009), the purpose of appellants’ emergency motion for temporary injunction was to prevent the county’s sale of bonds until the lawsuit could be decided. On appeal, the Third District found that because the bonds had been sold, the appeal of the order denying the emergency motion for temporary injunction was moot. Id.

The City has already rejected all bids, pursuant to its reservation of this right in its Invitation to Bid, granted to it by section 255.20(l)(d)l. The City also maintains that its Construction Division will not rebid on the Project. Thus, we hold that the issue is moot. However, although not raised by Jacquin in its brief, and although the record is unclear as to whether the City complied with section 255.20(l)(c)9.’s public meeting requirement, we write to emphasize that requirement. Section 255.20(l)(e)9., Florida Statutes (2009), provides, in pertinent part:

(1) A county, municipality, special district as defined in chapter 189, or other political subdivision of the state seeking to construct or improve a public building, structure, or other public construction works must competitively award to an appropriately licensed contractor each project that is estimated in accordance with generally accepted cost-accounting principles to cost more than $300,000.... As used in this section, the term “competitively award” means to award contracts based on the submission of sealed bids, proposals submitted in response to a request for proposal, proposals submitted in response to a request for qualifications, or proposals submitted for competitive negotiation ....
(c) The provisions of this subsection do not apply:
9. If the governing board of the local government complies with all of the requirements of this subparagraph, conducts a public meeting under s. 286.011 after public notice, and finds by majority vote of the governing board that it is in the public’s best interest to perform the project using its own services, employees, and equipment. The public notice must be published at least 21 days before the date of the public meeting at which the governing board takes final action. The notice must identify the project, the components and scope of the work, and the estimated cost of the project using generally accepted cost-accounting principles that fully account for all costs associated with performing and completing the work, including employee compensation and benefits, equipment cost and maintenance, insurance costs, and materials. The notice must specify that the purpose for the public meeting is to consider whether it is in the public’s best interest to perform the project using the local government’s own services, employees, and equipment. Upon publication of the public notice and for 21 days thereafter, the local government shall make available for public inspection, during normal business hours and at a location specified in the public notice, a detailed itemization of each component of the estimated cost of the project and documentation explaining the methodology used to arrive at the estimated cost. At the public meeting, any qualified contractor or vendor who could have been awarded the project had the project been competitively bid shall be provided with a reasonable opportunity to present evidence to the governing board regarding the project and the accuracy of the local government’s estimated cost of the project.

(Emphasis added). Here, the record is unclear as to whether the City complied with section 255.20(l)(c)(9)’s public meeting requirement; in future invitations to bid, we emphasize that the City must conduct a public meeting pursuant to section 286.011, Florida Statutes (2009), after public notice, if it intends to perform a project using its own services, employees, and equipment. Thus, although we hold that the issue is moot, and Jacquin is not entitled to any relief at this stage of the proceedings, the City could not have awarded the Project to its own Construction Division if it did not fully comply with section 255.20(l)(c)9.

Affirmed.

WARNER and LEVINE, JJ., concur.

      . The lower court did not address the third prong: likelihood of success on the merits.

      . Section 255.20(l)(d)l., Florida Statutes, provides: "The county, municipality, or special district may reserve the right to reject all bids and to rebid the project, or elect not to proceed with the project.” The City argues that it could not award the bid to the next lowest bidder (Jacquin) because its bid, like all the others, was over the budget for the Project. The City has directed its Construction Division to not re-bid the Project and maintains that it will not allow its Construction Division to bid for the Project on re-bid.

      . Section 286.011(1), Florida Statutes (2009), provides: “All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings."


text:
    Eric BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3619.
    District Court of Appeal of Florida, First District.
    July 29, 2011.
    Rehearing Denied Sept. 26, 2011.
    Eric Brooks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.141(d)(6)(C).

WOLF, DAVIS, and MARSTILLER, JJ., concur.


text:
    Stephen M. REYNOLDS, Appellant, v. COMMERCIAL CARRIER CORPORATION and Gallagher Bassett Services, Inc., Appellees.
    No. 1D11-0167.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Rehearing Denied Sept. 26, 2011.
    Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Kevin E. Leisure and Bruno DeZayas of the Law Offices Harbsmeier DeZayas, LLP, Lakeland, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) awarding prevailing party costs to the Employer/Carrier (E/C). Claimant is entitled to relief. Specifically, prior to the 2003 amendment to section 440.34(3), Florida Statutes, only a prevailing claimant was permitted to tax “reasonable costs” against an E/C, whereas since that time any prevailing party may recover costs. See Ch. 03-412, § 26, at 3944, Laws of Fla. Here, it is not disputed that the accident happened in 1996, before the amendment took effect. Because the right to costs is substantive, the amendment is not retrospective, and the JCC erred in awarding the E/C prevailing-party costs. See Carrilo v. Case Eng’g, 53 So.3d 1214 (Fla. 1st DCA 2011).

REVERSED.

WOLF, DAVIS, and MARSTILLER, JJ., concur.


text:
    SCHOOL BOARD OF ORANGE COUNTY, Appellant, v. FLORIDA POWER CORPORATION, Appellee.
    No. 5D10-1872.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 2011.
    Rehearing and Rehearing En Banc Denied Sept. 13, 2011.
    Bernard F. Daley, Jr., of The Daley Law Office, P.A., Tallahassee, for Appellant.
    Stephen H. Grimes, Elizabeth L. Bev-ington and Matthew Mears, of Holland & Knight LLP, Tallahassee, for Appellee.
   PER CURIAM.

We find no error and affirm. We specifically reject appellant’s contention that the trial court was bound to declare whether the School Board was excluded from the terms of the Apopka city ordinance and that the trial court acted in excess of its jurisdiction in concluding that the terms of the ordinance did not control the billing of the franchise fees to its customers.

AFFIRMED.

GRIFFIN, SAWAYA and COHEN, JJ., concur.