author: KHOUZAM, Judge.

text:
    Michael CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-805.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 2011.
    Rehearing Denied Dec. 9, 2011.
    Michael Campbell, pro se.
   KHOUZAM, Judge.

Michael Campbell appeals the summary denial of his motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.172. We affirm the denial because the trial court properly found that without a showing of manifest injustice or clear prejudice, Mr. Campbell was not entitled to withdraw his plea after he was sentenced.

On November 30, 1999, pursuant to a plea of nolo contendere, Mr. Campbell was convicted of the following charges: four counts of attempted sexual battery by an adult, victim less than twelve; one count of lewd and lascivious conduct, victim less than sixteen; and one count of sexual battery by a person in familial or custodial authority. On February 11, 2000, Mr. Campbell was sentenced to a total of forty-five years’ imprisonment for the above offenses. On January 24, 2011, Mr. Campbell filed his motion to withdraw plea pursuant to rule 3.172(g). In his motion, Mr. Campbell argued that he was entitled to withdraw his plea even after he was sentenced, without a showing of any justification, simply because the trial court failed to formally accept his plea during the plea colloquy.

In denying Mr. Campbell’s claim, the postconviction court found that rule 3.172(g), allowing the withdrawal of pleas, applies “only before sentencing” citing to Harrell v. State, 894 So.2d 935, 939 (Fla.2005). The postconviction court ruled that the trial judge’s inadvertent failure to formally accept Mr. Campbell’s plea did not entitle Mr. Campbell to withdraw his plea nearly eleven years after the sentence had been imposed. In his brief, Mr. Campbell argues that the trial court erred in failing to follow Cox v. State, 35 So.3d 47 (Fla. 1st DCA 2010), which he argues is controlling. In Cox, the First District, apparently relying on Harrell, reluctantly held that the defendant should be allowed to withdraw his plea more than two years after sentencing because the trial court had failed to formally accept the plea. 35 So.3d at 48-49. The First District certified a question of great public importance regarding whether the holding in Harrell requires granting a motion to withdraw plea after sentencing where the trial court inadvertently neglected to state that it had “accepted the plea.”

For the reasons set forth below, we disagree with the First District’s interpretation of Harrell and hold that rule 3.172(g) only applies before sentencing and therefore certify conflict with Cox.

Our analysis begins with a discussion of Demartine v. State, 647 So.2d 900 (Fla. 4th DCA 1994), a case on which the supreme court heavily relied in Hairell. In Demar-tine, the defendant was charged with vehicular homicide and driving with a suspended license. Id. at 900. He pleaded guilty to the charges. The trial court found that his plea was freely and voluntarily given, determined that there was a factual basis for the plea, and sentenced him in accordance with the plea agreement. Seventeen days after he was sentenced, Mr. Demartine filed a motion to withdraw his plea, arguing that because the trial court failed to accept his plea as required by rule 3.172(f), he was entitled to withdraw his plea without setting forth any justification. In rejecting Mr. Demar-tine’s argument, the Fourth District analyzed the cases and rules governing plea withdrawal and concluded that, absent a showing of manifest injustice or clear prejudice, Mr. Demartine may not withdraw his plea after he was sentenced solely upon the trial court’s failure to formally accept his plea. Demartine, 647 So.2d at 900-02. It then certified the following question of great public importance to the Florida Supreme Court:

May a defendant, after sentencing, withdraw a plea of guilty or nolo contendere based solely upon a trial court’s failure to formally accept the plea as set forth in Florida Rule of Criminal Procedure 3.172(f) without a showing that the trial court’s failure to formally accept the plea caused manifest injustice or clear prejudice[?]

Id. at 902.

In analyzing the existing case law, the Fourth District noted that the “[ajppellant has not cited nor has our independent research revealed any case in which a defendant has been permitted to withdraw his plea after sentencing based solely on a trial court’s failure to formally accept a plea.” Id. at 901. The court determined that in plea withdrawal analysis, sentencing becomes “a critical juncture.” Id. It then considered rules 3.170 and 3.172, the two related rules governing the operation of pleas, and noted that while rule 3.170 contains a time limitation and 3.172 does not, both rules should be read in pari materia.

Rule 3.170(f) provides that “[t]he court may in its discretion, and shall upon good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn....” (Emphasis added.) Rule 3.172(g), however, provides the following:

No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.

In reading both rules in pari materia, the Demartine court concluded that, based on its history, rule 3.172 “simply codified in greater detail the requirements for acceptance of a plea.” 647 So.2d at 902. It sets forth the requirements that the trial judge must follow to ensure that the plea complies with the acceptance of a guilty or nolo contendere plea. It does not grant a right to withdraw a plea simply because the trial judge did not formally accept the plea.

The supreme court in Harrell appears to agree with the reasoning of Demartine. The supreme court explained that rule 3.170(f) limits the opportunity for a defendant to withdraw his plea to the period of time before sentencing, noting that motions to withdraw plea after sentencing are clearly governed by “rule 3.170(Z), which allows withdrawal of a plea only for the specific reasons listed in Florida Rule of Appellate Procedure 9.140(b).” Harrell, 894 So.2d at 939 n. 2. The court acknowledged that while rule 3.172(f) contains no period of limitation, it indicates that the criminal rules establish sentencing as a critical juncture in a defendant’s ability to withdraw a plea. To support this proposition, the court cited its own case, State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003), which held that in order for a defendant to withdraw his plea after sentencing, he must demonstrate a manifest injustice.

Even though it did not directly answer the certified question, it is evident that the supreme court clearly agreed with Demar-tine that rule 3.172(f) applies only before sentencing and not after sentencing. The court stated the following: “Accordingly, the [Demartine] court held that both [rule 3.172 and rule 3.170(f)] apply only before sentencing. We agree.” Harrell, 894 So.2d at 939. Thus, based on the supreme court’s approval of Demartine, we conclude that rule 3.172(g) only applies prior to sentencing.

Therefore, we affirm the postconviction court’s denial of Mr. Campbell’s motion and certify conflict with the First District’s opinion in Cox, 35 So.3d 47.

Affirmed; conflict certified.

WHATLEY and MORRIS, JJ„ Concur.

      . Rule 3.172(f) was the predecessor to what is now rule 3.172(g). Consequently, in much of the relevant caselaw, any and all mentions of rule 3.172(f) should be read as referring to what is now rule 3.172(g).


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    Fedeline GEORGES, C.N.A., Appellant, v. DEPARTMENT OF HEALTH, Board of Nursing, Appellee.
    No. 2D10-4734.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 2011.
    Rehearing Denied Dec. 12, 2011.

      Thomas C. Grajek, Lakeland, for Appellant.
    Brittany Adams Long, Assistant General Counsel, Department of Health, Tallahassee (withdrew after briefing); Mark Graham Hanson,- Assistant General Counsel, Department of Health, Tallahassee (substituted as counsel of record), for Appellee.
   MORRIS, Judge.

Fedeline Georges appeals a final administrative order entered by the Board of Nursing revoking her certified nursing assistant (C.N.A.) license as a result of a complaint filed by the Department of Health which alleged that Georges stole ten dollars from a patient. Following an administrative hearing, the administrative law judge (ALJ) determined that Georges was guilty of unprofessional conduct and recommended a $250 fine and probation. The Department filed an exception to the recommended penalty and moved to increase it to a revocation of Georges’ license. The Department argued that a revocation was warranted because the Board routinely revokes the licenses of C.N.A.S who have stolen from patients. Ultimately, the Board rejected the ALJ’s recommended penalty, imposed costs of $15,703.17, and permanently revoked Georges’ license.

Because there is competent, substantial evidence in the record to support the ALJ’s determination that Georges stole money from a patient and that she was therefore guilty of unprofessional conduct, we affirm that determination without further comment. But we reverse the revocation of Georges’ license because the Board failed to follow proper procedure in imposing that penalty, which resulted in a violation of Georges’ due process rights. We also reverse the imposition of the attorneys’ fees portion of the $15,703.17 in costs because the Board failed to provide Georges with proper documentation, which also constituted a due process violation.

Rule 64B9-15.009 of the Florida Administrative Code sets forth the disciplinary guidelines applicable to C.N.A.S. And rule 64B9-15.009(3)(ii) provides that for a first offense of unprofessional conduct, the minimum recommended penalty is a fine of $50, a reprimand, probation, and continuing education. The maximum recommended penalty is a $150 fíne, a reprimand, and suspension followed by probation. In order to deviate from these guidelines, rule 64B9-15.009(5)(a) provides in relevant part that “[i]f a formal hearing is held, any aggravating or mitigating factors must be submitted to the hearing officer at formal hearing. At the final hearing following a formal hearing, the Board will not hear additional aggravating or mitigating evidence.” If aggravating or mitigating factors are presented, they must be established by clear and convincing evidence. Id. Factors which may be considered for purposes of aggravation or mitigation of penalty are set forth in rule 64B9-15.009(5)(b). They include, but are not limited to:

1. The danger to the public.
2. Previous disciplinary action against the registrant in this or any other jurisdiction.
3. The length of time the registrant has practiced.
4. The actual damage, physical or otherwise, caused by the violation.
5. The deterrent effect of the penalty imposed.
6. Any efforts at rehabilitation.
7. Attempts by the registrant to correct or stop violations, or refusal by the registrant to correct or stop violations.
8. Cost of treatment.
9. Financial hardship.
10.Cost of disciplinary proceedings.

Id.

Here, the Department failed to offer evidence of any aggravating factors at the formal hearing. And the ALJ did not independently make any written findings of any aggravating circumstances which were proven by clear and convincing evidence. Even in the Department’s exception to the recommended penalty, the Department failed to enumerate any aggravating circumstances which it sought to prove against Georges. Consequently, the Board did not have any aggravating factors properly before it to justify deviating from the ALJ’s recommended penalty. The Board’s revocation of Georges’ license was not authorized pursuant to rule 64B9-15.009(5)(a), and it constituted a violation of Georges’ due process rights.

Similarly, the Board failed to follow the procedure outlined in section 456.072(4), Florida Statutes (2009), when it imposed costs of $15,703.17 against Georges. While section 456.072(4) permits the Board to impose “costs related to the investigation and prosecution of the case,” the Board is required to “determine the amount of costs to be assessed after its consideration of an affidavit of itemized costs and any written objections thereto.” But in this case, $13,525.38 of the costs arose out of 120 hours of attorney time. The Department presented an affidavit from the operations and management consultant manager for the consumer services and compliance management unit to detail the various costs. Yet, there was no affidavit from an attorney presented to verify the amount of time spent on the case or the amount of the fees. Nor was there any corroborating affidavit from an outside attorney to verify the reasonableness of the time spent on the matter or the amount of the fees. An award of attorneys’ fees must be supported by competent, substantial evidence by the attorney performing the services and by an expert as to the value of those services. See Saussy v. Saussy, 560 So.2d 1385, 1386 (Fla. 2d DCA 1990); Seitlin & Co. v. Phoenix Ins. Co., 650 So.2d 624, 626-627 (Fla. 3d DCA 1994); Ashourian v. Ashourian, 519 So.2d 35, 36 (Fla. 1st DCA 1987); Cooper v. Cooper, 406 So.2d 1223, 1224 (Fla. 4th DCA 1981). And because no attorney affidavits were presented, Georges was not provided with a meaningful opportunity to object to the imposition of at least that portion of the costs. Without such evidence, the Board did not have the evidence before it to justify imposing the attorneys’ fees portion of the costs. The Board’s failure to abide by the statutory requirements violated Georges’ due process rights.

The Department argues that Georges waived any right to challenge the penalty and the imposed costs in this case. But the Board improperly aggravated the penalty in violation of the law and the Board’s own rules. The Board also improperly imposed the attorneys’ fees portion of the costs against Georges without a sufficient evidentiary basis to do so. And “[a] denial of due process, if proven, constitutes fundamental error, which may be challenged for the first time on appeal.” Verizon Bus. Network Servs., Inc., ex rel. MCI Commc’ns, Inc. v. Dep’t of Corrections, 988 So.2d 1148, 1151 (Fla. 1st DCA 2008); see also Henderson v. Dep’t of Health, Bd. of Nursing, 954 So.2d 77, 81 n. 2 (Fla. 5th DCA 2007) (noting that “[mjatters not excepted to or raised properly before a licensing board may still be raised where an appellant can show ... fundamental error”).

Accordingly, the decision of the Board is reversed and this case is remanded for the imposition of a penalty which is in conformance with rule 64B9-15.009(3)(ii). Additionally, the imposition of the attorneys’ fees portion of the costs must be stricken.

Reversed and remanded.

ALTENBERND and WHATLEY, JJ., Concur.

      . We note that the ALJ's recommended $250 fine exceeded the maximum recommended fine for a first offense as provided in rule 64B9 — 15.009(3)(ii). That discrepancy does not matter to our analysis, however, because the Board exceeded even that recommended penalty when it revoked Georges' license and imposed costs of $15,703.17.


author: DAVIS, Judge.

text:
    David BANEK, Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-110.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 2011.

      Frances Martinez of Escobar & Associates, P.A., Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Respondent.
   DAVIS, Judge.

David Banek was charged with attempted first-degree murder with a weapon. A jury convicted him of the lesser-included offense of attempted second-degree murder with a weapon. This court affirmed the judgment and sentence. See Banek v. State, 11 So.3d 945 (Fla. 2d DCA 2009) (unpublished table decision). Banek subsequently filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(d), alleging solely that appellate counsel was ineffective for failing to argue that the standard jury instruction for attempted manslaughter by act, also known as attempted voluntary manslaughter, constituted fundamental error because it improperly imposed an additional element of an intent to kill. We agree, and we reverse Banek’s attempted second-degree murder conviction, vacate the sentence, and remand for new trial.

The evidence presented at trial showed that Banek stabbed the victim with a knife numerous times in the chest. The victim also was stabbed in the hand, lip, and face. As part of the jury charge, the trial court instructed the jury on attempted second-degree murder and attempted manslaughter by act, as both are category one lesser-included offenses of attempted first-degree premeditated murder. See Fla. Std. Jury Instr. (Crim.) 6.2. With regard to attempted manslaughter, the jury was instructed as follows:

To prove the crime of attempted voluntary manslaughter, the State must prove the following element beyond a reasonable doubt:
David Banek committed an act, which was intended to cause the death of Jerome Clark and would have resulted in the death of Jerome Clark, except that someone prevented David Banek from killing Jerome Clark or he failed to do so.

This was the standard jury instruction at the time of trial and still is today. See Fla. Std. Jury Instr. (Crim.) 6.6.

Subsequent to the resolution of the direct appeal in this case, this court has held that the standard attempted manslaughter by act jury instruction constitutes fundamental error. See Houston v. State, — So.3d - (Fla. 2d DCA 2011); Gonzalez v. State, 40 So.3d 60 (Fla. 2d DCA 2010). Both Houston and Gonzalez were based on the Florida Supreme Court’s opinion in State v. Montgomery, 39 So.3d 252 (Fla.2010).

In Montgomery, the Florida Supreme Court approved the First District’s decision in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), which was the first case to hold that the then-standard manslaughter by act instruction was fundamentally erroneous because it imposed an additional element of intent to kill. 39 So.3d at 254. In the direct appeal in the present case, the initial brief was filed on December 16, 2008, and the answer brief was filed on January 5, 2009-both prior to the issuance of the First District’s Montgomery opinion. However, because our per curiam affirmance in Banek did not issue until three months after the issuance of the First District’s opinion, appellate counsel should have sought to file a supplemental brief. See Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005).

In Ortiz, this court concluded that appellate counsel performed deficiently in failing to seek supplemental briefing in order to argue that there was fundamental error in the justifiable use of deadly force instruction. 905 So.2d at 1017. This court’s conclusion was based on two Fourth District cases that issued subsequent to Ortiz filing his initial brief in his direct appeal but prior to the filing of the answer brief. This court reasoned that although the Fourth District’s opinions “ ‘were not available to appellate counsel prior to the completion of her initial Anders brief ..., she should have been aware of them and could have filed a motion to file a supplemental brief.’ ” Id. at 1017 (quoting York v. State, 891 So.2d 569, 571 (Fla. 2d DCA 2004)).

In the present case, even though the First District’s Montgomery opinion issued subsequent to the filing of both the initial and answer briefs, we conclude that appellate counsel performed deficiently in failing to seek supplemental briefing on the issue of whether the attempted manslaughter by act instruction was fundamentally erroneous. Counsel should have been aware of the First District’s Montgomery opinion and should have sought to argue that the standard attempted manslaughter by act instruction that was given in the present case was fundamentally erroneous based on the reasoning applied in Montgomery.

We do note that prior to the issuance of the First District’s Montgomery opinion, this court in Hall v. State, 951 So.2d 91, 96 (Fla. 2d DCA 2007) (en banc), held “that a conviction for manslaughter by act does not require an intent to kill but only an intentional act that causes the death of the victim.” This court’s Hall opinion also included dicta stating that “[a]n intent to kill is required to commit an attempted manslaughter.” Id. Subsequent to the issuance of the mandate in the direct appeal in the present case, this court specifically held that the manslaughter by act instruction was not erroneous when considered as a whole, and we certified conflict with the First District’s opinion in Montgomery. See Zeigler v. State, 18 So.3d 1239, 1244-45 (Fla. 2d DCA 2009).

However, in Del Valle v. State, 52 So.3d 16, 18 (Fla. 2d DCA 2010), this court recognized that in Montgomery, “the supreme court effectively overruled this court’s decision in Zeigler.” Thus this court held that appellate counsel was ineffective in failing to argue based on the First District’s Montgomery decision that the then-standard manslaughter by act instruction was fundamentally erroneous even though the Hall court did not consider the instruction to be erroneous at all. Del Valle, 52 So.3d at 17-19. We concluded in Del Valle that had counsel made such an argument we would have been compelled to certify conflict with Montgomery, as we did in Zeigler, and that Mr. Del Valle would have ultimately been afforded relief as part of the direct appeal process. 52 So.3d at 19. In the present case, we presume that had counsel argued in a supplemental brief that the attempted manslaughter by act instruction constituted fundamental error, this court would have certified conflict with the First District’s Montgomery decision and Banek would have ultimately been afforded relief as part of the direct appeal process.

To establish a claim of ineffective assistance of appellate counsel, a petitioner must show that counsel’s performance was deficient and that “ ‘the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.’ ” Downs v. Moore, 801 So.2d 906, 909-10 (Fla.2001) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985)). Here, we conclude that counsel’s failure to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction did compromise the appellate process to the extent that we cannot be confident in the fairness and correctness of the result of the direct appeal.

We therefore conclude that counsel rendered ineffective assistance in this case and that under the current law Banek is entitled to have his conviction set aside. Because a new appeal would be redundant in this case, we reverse Banek’s conviction for attempted second-degree murder with a weapon, vacate the sentence imposed, and remand for a new trial. See Del Valle, 52 So.3d at 19.

Petition granted.

SILBERMAN, C.J., and LaROSE, J., Concur.

      . The Florida Supreme Court currently has before it a proposal of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases to amend the standard jury instruction on attempted voluntary manslaughter by removing the phrase "intended to cause the death of (the victim)” and adding the word "intentionally" before "committed an act.” See Florida Supreme Court Publication Notice, available at http://www.florida supremecourt.org/decisions/probin/sc 10-2434_PublicationNotice.pdf. If this proposal is approved by the supreme court the new standard jury instruction on attempted voluntary manslaughter would read as follows: “(Defendant) intentionally committed an act which would have resulted in the death of (victim) except someone prevented (defendant) from killing (victim) or [he] [she] failed to do so.” Id.

      . We must conclude that this court would have permitted counsel to file a supplemental brief on this issue.


author: VILLANTI, Judge.

text:
    Thomas B. BROCK and Sue C. Brock, Appellants, v. Raymond OROZCO, Individually, and as Trustee of the Raymond Orozco Revocable Living Trust dated January 10, 1995; and Pamela Orozco, Appellees.
    No. 2D10-4970.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 2011.
    Rehearing Denied Dec. 19, 2011.
    Daniel Joy of Law Office of Daniel Joy, Sarasota; and Robert M. Pretschner of Tucker & Pretschner, P.A., Sarasota, for Appellants.
    Roger H. Miller, III, and George T. Williamson of Farr, Farr, Emerich, Hack-ett and Carr, P.A., Punta Gorda, for Ap-pellees.
   VILLANTI, Judge.

Thomas and Sue Brock appeal the trial court’s summary final judgment in favor of Raymond and Pamela Orozco in an action brought by the Orozcos to terminate the Brocks’ use of a boat slip in a marina owned by the Orozcos. We reverse and remand for further proceedings because genuine issues of material fact remain in dispute regarding the affirmative defenses of res judicata and collateral estoppel.

In June 1989, Thomas and Sue Brock purchased a residence from the Fendts. At that time, the Fendts also owned a marina located on a separate property. On the marina, the Fendts operated a twenty-one slip docking facility over submerged land owned by the State of Florida, and they had a submerged land lease with the State. As part of the sale of the residence to the Brocks in 1989, the Fendts granted the Brocks exclusive use of a specific boat slip in the marina; the Brocks had used a boat slip ever since. The current version of the Brock-Fendt agreement for use of the boat slip, dated October 1995, was styled “Amendment to License Exchange Agreement.”

In January 1993, the State renewed the Fendts’ submerged land lease for a period of five years. The Fendts, however, sold the marina to a third party in October 1995, before the submerged land lease with the State expired. The Brocks continued to use the boat slip after the sale pursuant to their agreement with the Fendts. That third party sold the marina to the Orozcos in June 1997. Shortly after purchasing the marina, the Orozcos obtained from the State a “Modified Sovereignty Submerged Lands Lease Renewal.” The Brocks also continued using the boat slip after sale of the marina to the Orozcos.

The Orozcos filed a previous lawsuit against the Brocks in 2001. Our record has very little information regarding the issues presented to the trial court in that first lawsuit; it contains only a copy of the final judgment in the prior action. That final judgment reflects that Count I of that action sought “a declaration that the [Brocks] ha[d] breached the terms of the Amendment to License Exchange Agreement and a determination of the parties!’] respective rights under the agreement.” Count II of that action sought “termination of the [Brocks’] possession of Boat Slip Number 2 located in the Chadwick Cove Marina.” However, the final judgment in the 2001 case suggests that the dispute between the parties at that time was the Brocks’ alleged commercial use of the boat slip, in violation of the terms of the Amendment to License Exchange Agreement. On those arguments, the final judgment in the first case denied the Oroz-cos relief and found in favor of the Brocks. Moreover, the judgment specifically found that the Brocks were not engaged in commercial use of the boat slip. It also stated:

The Court further finds as a matter of law that the warranty deed which originally conveyed the boat slip to Defendants and the License Exchange Agreement as amended does not provide for a defeasance of the Defendant’s interest in the Boat Slip on the basis [of] a breach of a condition in the instruments.

In March 2009, the Orozcos filed another lawsuit against the Brocks asserting counts for ejectment, trespass, eviction, and to quiet title. The complaint again sought to remove the Brocks from the boat slip. The gist of the Orozcos’ argument was that the Brocks’ permission to use the boat slip arose from the submerged land lease between the Fendts and the State and that, once the Fendts sold the marina, their lease with the State expired and the Brocks’ use of the boat slip also expired. As affirmative defenses, the Brocks asserted that this second lawsuit was precluded by res judicata and collateral estoppel because the issues “were raised or could have been raised in the previous action” between the Brocks and the Orozcos, which had been decided on the merits.

Both parties moved for summary judgment. The Brocks argued, inter alia, that the second lawsuit was barred by res judi-cata and collateral estoppel based on the final judgment in the 2001 lawsuit, because the 2001 lawsuit had sought to terminate the Brocks’ right to possess the boat slip and had resulted in a final judgment in the Brocks’ favor. The Orozcos responded that the prior litigation had been limited to “[the Brocks’] use of the boat slip and whether such use qualified as ‘personal’ use.” The Orozcos argued that res judica-ta and collateral estoppel did not apply to the second lawsuit because the two lawsuits involved different issues. The Oroz-cos explained that “[t]he previous action did not adjudicate, nor did it seek to adjudicate, the parties’ respective rights under [the Orozcos’] Submerged Land Lease [with the State]” because the present lease between the State and the Orozcos did not exist until 2003. After a hearing, the trial court in the instant case granted summary judgment in favor of the Orozcos and ordered the Brocks removed from the boat slip. In doing so, the trial court rejected the Brocks’ affirmative defenses of res ju-dicata and collateral estoppel, finding that

the issues raised in the above styled cause could not have been raised in the previous action between these parties in Case No.2001-0862 CA styled Raymond Orozco and Pamela Orozco v. Thomas G. Brock and Sue Brock because the Plaintiffs [sic] interest in the submerged land under the 2003 lease did not arise until after conclusion of that case. Accordingly, the court finds that Plaintiffs [sic] action is not barred by the Doctrine of Res Judicata and/or Collateral Estop-pel.

This appeal followed.

We review de novo an order granting a final summary judgment. Deutsch v. Global Fin. Servs., 976 So.2d 680, 682 (Fla. 2d DCA 2008). “The moving party is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Fla. R. Civ. P. 1.510(c)). The party moving for summary judgment bears the burden of proving the nonexistence of genuine issues of material fact. Id. To obtain summary judgment when a defendant has raised affirmative defenses, the moving party must refute those affirmative defenses by evidence or establish their legal insufficiency. See id.; Fla. Web Printing, Inc. v. Impact Adver., Inc., 723 So.2d 884, 885 (Fla. 2d DCA 1998) (“In the absence of some proof contradicting an affirmative defense, entry of summary judgment is improper.”); Alejandre v. Deutsche Bank Trust Co. Americas, 44 So.3d 1288, 1289 (Fla. 4th DCA 2010) (same).

The trial court’s statement that the Orozcos’ interest in the submerged land lease arose after the conclusion of the 2001 litigation is factually erroneous. The Or-ozcos had a submerged land lease with the State — and an interest in the submerged land — since 1997. At oral argument, the Orozcos’ counsel acknowledged this fact and that the Orozcos could have brought a similar action under the earlier lease to remove the Brocks from the boat slip before 2003, but he disputed that the Orozcos were legally required to do so. Regardless, the trial court’s legal ruling was premised on a factual error and cannot be upheld on that basis.

In this ease, the Brocks asserted res judicata and collateral estoppel as affirmative defenses. In rejecting the Brocks’ argument, the trial court relied solely on an incorrect understanding of the facts not supported by the record. Accordingly, on remand, the trial court must reconsider whether collateral estoppel or res judicata bar the Orozcos’ claims against the Brocks in light of the facts actually supported by the record.

Reversed and remanded for further proceedings consistent with this opinion.

KHOUZAM and CRENSHAW, JJ„ Concur.

      . The Fendts are not parties to this controversy.

      . Contrary to representations made at oral argument, this document was not an "assignment” of the lease from the prior owner to the Orozcos, but was a modified lease and renewal agreement. The State and the Oroz-cos are the parties to the lease.

      . A transcript of the summary judgment hearing is not part of the record on appeal.


author: ROTHENBERG, J.

text:
    Jose Antonio PACHECO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2178.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    Rehearing Denied Dec. 28, 2011.
    Jose Antonio Pacheco, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Jose Antonio Pacheco (“Pacheco”) appeals the trial court’s order denying his motion for a copy of Sentencing Transcripts At State’s Expense. We affirm. See Sanders v. State, 62 So.3d 1176, 1176 (Fla. 4th DCA 2011) (“Beyond the record provided for a direct appeal, [a prisoner] is not entitled to free transcripts to assist in the preparation of either a postconviction motion or a petition for extraordinary relief.”) (quoting Golden v. State, 870 So.2d 167, 167 (Fla. 2d DCA 2004)); accord Vanover v. State, 946 So.2d 1152, 1152 (Fla. 4th DCA 2006); Ridge v. Adams, 643 So.2d 116, 117 (Fla. 5th DCA 1994) (holding that although prisoners are entitled to free copies and services for plenary appeal, there is no provision in law to obtain them thereafter).

Affirmed.


text:
    Charleen SKYRME, Petitioner, v. R.J. REYNOLDS TOBACCO COMPANY; Philip Morris USA, Inc.; Lorillard Tobacco Company; Lorillard, Inc.; Liggett Group, LLC (f/k/a Liggett Group, Inc., Liggett & Myers Tobacco Company); and Vector Group, Ltd., Inc. (f/k/a Brooke Group, Ltd.), Respondents.
    No. 2D11-1986.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2011.

      David J. Sales of David J. Sales, P.A., Jupiter, for Petitioner.
    Elliot H. Scherker, David L. Ross, and Julissa Rodriguez of Greenberg Traurig, P.A., Miami, and Dawn I. Giebler-Millner and Michele L. Johnson of Greenberg Traurig, P.A., Orlando, for Respondents R.J. Reynolds Tobacco Company, Philip Morris USA Inc., Lorillard Tobacco Company and Lorillard, Inc.
    Maria H. Ruiz of Kasowitz, Benson, Torres & Friedman LLP, Miami, for Respondents Liggett Group LLC and Vector Group Ltd.
   MORRIS, Judge.

Charleen Skyrme seeks certiorari review of an order denying her motion to amend her and her deceased husband’s personal injury complaint to state an action for wrongful death and her motion to substitute herself, as personal representative of her husband’s estate, as the plaintiff. We dismiss the petition for lack of jurisdiction.

In December 2007, Bobby Skyrme and Charleen Skyrme filed a personal injury action against the tobacco defendants. This was timely filed under Engle v. Liggett Group, Inc., 945 So.2d 1246, 1254 (Fla.2006), which allowed “class members [to file] individual claims within one year of the issuance of [the] mandate in this case with res judicata effect given to certain Phase I findings” regarding common liability of the tobacco defendants. In September 2008, the Skyrmes amended their initial complaint.

Bobby Skyrme died in March 2009, and Charleen Skyrme filed a motion to substitute herself, as the personal representative of Bobby Skyrme’s estate, as the plaintiff and to amend the complaint to assert that the tobacco defendants’ actions wrongfully caused Bobby Skyrme’s death. The tobacco defendants objected to the motion to substitute and to amend on the basis that because the personal injury action was extinguished upon Bobby Skyrme’s death, the personal injury lawsuit must be dismissed and a new lawsuit filed asserting the claim for wrongful death, citing Capone v. Philip Morris U.S.A., Inc., 56 So.3d 34 (Fla. 3d DCA 2010). After a hearing, the circuit court denied the motion to substitute and to amend. The circuit court subsequently denied Mrs. Skyrme’s motion for reconsideration.

In order for this court to have cer-tiorari jurisdiction over the order on review, Mrs. Skyrme must show that the order creates material harm that is irreparable on appeal. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995) (“[Petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before this court has power to determine whether the order departs from the essential requirements of the law.”). The law generally holds that the denial of a motion to amend is not reviewable by certiorari because the error is later reviewable on plenary appeal. See, e.g., Harry Pepper & Assocs. v. City of Cape Coral, 369 So.2d 969, 970 (Fla. 2d DCA 1979); Hawaiian Inn of Daytona Beach, Inc. v. Snead Constr. Corp., 393 So.2d 1201, 1202 (Fla. 5th DCA 1981).

There is essentially no longer a substantive claim in the circuit court because the personal injury claim cannot survive on its own since it has now become a wrongful death claim, see § 768.20, Fla. Stat. (2008), and because the circuit court denied Mrs. Skyrme’s motion to amend to assert the wrongful death claim. Accordingly, a final order of dismissal should be entered, after which Mrs. Skyrme may appeal the order of dismissal, seeking review of the order denying her motion to substitute and to amend. Because the harm can be corrected on postjudgment appeal, we do not have jurisdiction over the order on review at this time.

Mrs. Skyrme contends that the order is reviewable by certiorari, citing this court’s opinion in Niemi v. Brown & Williamson Tobacco Corp., 862 So.2d 31 (Fla. 2d DCA 2003). But the facts of Niemi are distinguishable from the facts in this case. In Niemi, the husband and wife plaintiffs asserted a personal injury action against the tobacco defendants. Id. at 32. The husband later died, and the wife and a third person filed “a motion in the circuit court alleging that they had been appointed co-personal representatives of [the husband’s] estate and asking the court to substitute them as plaintiffs in the action in place of [the husband].” Id. at 33. The circuit court denied the motion, “concluding that the action had automatically abated at the time of [the husband’s] death. The trial court did not dismiss the action,” which this court noted may have still been pending on the wife’s consortium claim. Id. The pleading in the circuit court did not “claim that [the husband’s] death was either the result of his personal injury or the result of some independent cause.” Id. at 34. “Thus, the pleadings d[id] not permit the personal injury action to be abated under section 768.20, and the action [could not] be dismissed in light of section 46.021.” Id.

Addressing the jurisdictional prongs required for certiorari review, this court stated that

the ruling may never be reviewable on direct appeal because the co-personal representatives were not permitted to become parties and would not have the power to file an appeal at a later time. Without the substitution of parties, the trial court would never be able to resolve this action by correctly applying sections 768.20 and 46.021 because there would never be a party who could proceed or against whom a dismissal could be entered.

Id. Accordingly, this court treated the proceeding as a petition for writ of certio-rari, granted the petition, and instructed the circuit court to grant the motion to substitute parties. Id.

This case is distinguishable from Niemi because the wife in Niemi, who was a plaintiff in the original action, had not sought to amend the complaint to assert a wrongful death claim. In fact, this court noted that the action “may still [have been] pending on [the wife’s] consortium claim.” Id. at 33. More important, the court in Niemi noted that the record was not clear on the husband’s cause of death and that the complaint did not “currently claim that his death was either the result of his personal injury or the result of some independent cause.” Id. at 34. Therefore, the co-personal representatives should have been substituted as parties in order to resolve the factual issue of whether the personal injury claim was abated by the husband’s death so as to become a claim for wrongful death.

In this case, it is clear that the same actions alleged to have caused personal injury to Bobby Skyrme are the same actions alleged to have caused his wrongful death. Thus, there is no possibility of a surviving personal injury claim that would need to be prosecuted by Bobby Skyrme’s estate, making the facts of this case different from those in Niemi. And while the wife’s original claims for consortium may have remained pending in Niemi, it appears that in this case the wife’s original claims for consortium damages have been absorbed into the damages claimed for wrongful death. See Martin v. United Sec. Servs., Inc., 314 So.2d 765, 770 (Fla.1975) (holding that a wrongful death action “substitute^] a survivor’s pain and suffering for a decedent’s pain and suffering as an element of damages”). In addition, one of the co-personal representatives seeking to be substituted as a plaintiff in Niemi was not an original party to the case whereas in this case, Mrs. Skyrme was one of the original parties and is the only personal representative seeking to be substituted.

In light of these distinctions, we see no apparent reason why an order of dismissal could not be entered in this case and why Mrs. Skyrme could not then seek plenary review of the denial of her motion to substitute herself as plaintiff as personal representative of the husband’s estate as well as the denial of her motion to amend her complaint to state a wrongful death claim.

Although we do not have certiorari jurisdiction over the order sought to be reviewed, we take the opportunity to express our concern with the circuit court’s ruling. In Capone, 56 So.3d at 36, which was relied upon by the circuit court, the Third District held that when a personal injury plaintiffs death is the result of the personal injuries, an amendment to the personal injury complaint should not be permitted and a new, separate lawsuit for wrongful death must be filed.

We are concerned that requiring such wrongful death claims to be filed as new lawsuits would cause such new lawsuits to be barred as untimely under Engle when the original personal injury lawsuits were timely filed under Engle. There is no dispute that the Skyrmes timely filed their initial complaint in December 2007. However, because Mr. Skyrme died in 2009, a separate wrongful death lawsuit could not have been timely filed within the Engle window. In light of the Engle consideration in these tobacco cases, which often involve the death of the plaintiff who suffered the personal injuries on which the original personal injury claim was based, we do not see how the result in Capone is consistent with the law in Florida addressing the unique relationship between a personal injury claim and a •wrongful death claim or how it is supported by the law in Florida regarding the liberal amendment of pleadings. We believe that if a new, separate wrongful death lawsuit is required to be filed where a personal injury lawsuit had been timely filed under Engle, it would be inequitable to bar that new wrongful death lawsuit as being untimely under Engle.

Petition dismissed.

CASANUEVA and CRENSHAW, JJ„ Concur.

      . Section 46.021, Florida Statutes (2002-2008), addresses, generally, the survival of claims outside of the unique personal injury/wrongful death context: “No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.”

      . See Toombs v. Alamo Rent-A-Car, Inc., 833 So.2d 109, 118 (Fla.2002) ("[T]he language of the [Wrongful Death] Act makes clear a cause of action for wrongful death that is predicated on the decedent's entitlement to 'maintain an action and recover damages if death had not ensued.’” (quoting § 768.19, Fla. Stat. (1995)); Celotex Corp. v. Meehan, 523 So.2d 141, 147 (Fla.1988) (holding that a wrongful death action is predicated on "the injured person's right, while living, to recover for personal injury” and would not exist but for the alleged personal injuries to the deceased); Martin, 314 So.2d at 770 ("The only logical construction of [section 768.20] is that it expresses the legislative intent that a separate lawsuit for death-resulting personal injuries cannot be brought as a survival action under [sjection 46.021. The action can be brought, in a consolidated form, under the new Wrongful Death Act. The purpose of [section 768.20] is to implement the consolidation.”); Niemi, 862 So.2d at 33 ("[W]hen death is the result of a personal injury, the law of Florida essentially substitutes a statutory wrongful death action for the personal injury action. ...”); Laizure v. Avante at Leesburg, Inc., 44 So.3d 1254, 1258 (Fla. 5th DCA 2010) (holding that a wrongful death "action is predicated on the ‘wrongful act, negligence, default or breach of contract or warranty’ committed by the defendant which, as the result of the decedent’s death, transformed a personal injury claim into one for wrongful death” (quoting § 768.19, Fla. Stat. (2009)).

      . " ‘Leave to amend should be freely given, the more so ... when the amendment is based on the same conduct, transaction[,] and occurrence upon which the original claim was brought.’ ” Dausman v. Hillsborough Area Reg'l Transit, 898 So.2d 213, 215 (Fla. 2d DCA 2005) (omission in original) (quoting Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Aviation Mgmt. of Cent. Fla., Inc., 637 So.2d 968, 970 (Fla. 5th DCA 1994)); see also Fla. R. Civ. P. 1.190(a) ("Leave of court shall be given freely when justice so requires.”).


author: PER CURIAM.

text:
    VENTURE HOLDINGS & ACQUISITIONS GROUP, LLC and Vincenzo Gurrera, Appellants, v. A.I.M. FUNDING GROUP, LLC, Appellee. Real Investments, LLC and Alexander Gonzalez, Appellants, v. A.I.M. Funding Group, LLC, Appellee. Real Investments, LLC and Alexander Gonzalez, Appellants, v. A.I.M. Funding Group, LLC, Appellee.
    Nos. 4D10-832, 4D10-1159, 4D10-1848.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.

      Carol C. Asbury, Fort Lauderdale, for appellants.
    Thomas D. Oates of the Law Offices of Oates & Oates, P.A., Pompano, for appel-lee.
   PER CURIAM.

In these consolidated appeals, appellants challenge three separate final summary judgments of foreclosure entered in favor of appellee, A.I.M. Funding Group, LLC. Appellants raise several arguments on appeal, two of which merit discussion: (1) A.I.M., having assigned the promissory note as collateral for a loan, was not the proper party in interest to file suit, and (2) the trial court erred in granting summary judgment for A.I.M. without receiving the original promissory note or accounting for its absence. We find that because A.I.M. did not file the original promissory note or account for its absence before the court entered summary judgment, we must reverse the summary judgment orders in each of the cases. We further find that A.I.M. lacked standing to foreclose at the time it filed its complaints, but that some parties waived the defense of lack of standing. Any remaining issues are rendered moot by our decision and we decline to address them.

Factual Background

In April 2007, Venture Holdings & Acquisitions Group, Inc. and Vincenzo Gurr-era, individually, entered into a loan agreement with A.I.M., and gave A.I.M. a mortgage on certain real property. Gurr-era, Venture’s president, signed the promissory note as a guarantor.

Likewise, Real Investments LLC, entered into two loans with A.I.M, one in January of 2008 and another in May of 2008. In connection with these loans, Real gave A.I.M. a mortgage on two properties. Alexander Gonzalez, Real’s president, signed the promissory notes as a guarantor.

There is no dispute that the borrowers failed to remain current on their payments and defaulted on all three loans. Accordingly, A.I.M. filed mortgage foreclosure actions on the three properties.

In case no. 09-19686, A.I.M. sought to foreclose on Venture’s property. Gurrera filed a proper answer, but Venture did not. A.I.M. moved for default against Venture and the court granted the motion. This default has not been contested in this appeal.

In case nos. 09-018086 and 09-18089, A.I.M. sought to foreclose on the two properties owned by Real. In case no. 09-018086, Gonzalez filed a proper answer, but Real did not. A.I.M. moved for a default against Real and the court granted the motion. This default has not been contested in this appeal. In case no. 09-18089, however, both Real and Gonzalez answered the complaint.

In each of its complaints, A.I.M. alleged that it “now owns and holds the Mortgage Note and Mortgage.” Prior to initiating suit, A.I.M. assigned its interest in the properties as collateral for a loan. This was indicated by an allonge attached to each promissory note. The assignment was still in effect when A.I.M. filed suit.

The circuit court, in each case, determined that no issues of genuine fact were raised by the defendants. In each case summary judgment was entered against the defendants and in favor of A.I.M. These consolidated appeals follow.

Analysis

“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). We examine the record in the light most favorable to the non-moving party. Id. The moving party must conclusively show the absence of any genuine issue of material fact. Id.

An assignment of a promissory note or mortgage, or the right to enforce such, must pre-date the filing of a foreclosure action. Jeff-Ray Corp. v. Jacobson, 566 So.2d 885, 886 (Fla. 4th DCA 1990). A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing. Progressive Exp. Ins. Co. v. McGrath Community Chiropractic, 913 So.2d 1281 (Fla. 2d DCA 2005). “The assignee of a mortgage and note assigned as collateral security is the real party in interest, that he holds the legal title to the mortgage and note, and that he, not the assignor is the proper party to file a suit to foreclose the mortgage.” Laing v. Gainey Builders, Inc., 184 So.2d 897 (Fla. 1st DCA 1966); see also A & B Discount Lumber & Supply, Inc. v. Mitchell, 799 So.2d 301, 307-08 (Fla. 5th DCA 2001).

Here, before A.I.M. filed any of the foreclosure actions below, A.I.M. assigned the promissory note and mortgage to a third party as collateral for a loan. Thus, A.I.M. did not have standing to foreclose on any of the properties at the time it filed suit.

However, “the entry of default precludes a party from contesting the existence of the plaintiffs claim and liability thereon.” Fla. Bar v. Porter, 684 So.2d 810, 813 n. 4 (Fla.1966) (citations omitted). Real, in case no. 09-018086, was found to be in default. Venture in case no. 09-19636, was found to be in default. Neither party may contest AJ.M.’s standing at the inception of the suit. See Glynn v. First Union Nat’l Bank, 912 So.2d 357, 358 (Fla. 4th DCA 2005) (holding that a homeowner waived any claim that the bank lacked standing to foreclose where the homeowner never filed a motion or an answer in the trial court).

But even a party in default does not admit that the plaintiff in a foreclosure action possesses the original promissory note. See Lenfesty v. Coe, 34 Fla. 363, 16 So. 277, 278 (1894). “The decree pro con-fesso cannot be extended to a confession of ownership of the note in complainant up to the time of the master’s report and the confirmation thereof by the court, and the authorities above cited sustain the view that a production of the note or securities at the hearing is essential to show complainant’s right to judgment then.” Id. A.I.M., in order to be entitled to summary judgment, must establish that it is the proper holder of the promissory note. Id.

In this case, A.I.M. failed to produce the original promissory note, failed to account for its absence, and failed to present evidence to otherwise establish it was the proper holder of the note. The allonge established that the note was indorsed to a third party. A.I.M.’s failure to produce the original promissory note, or account for its absence, created a genuine issue of material fact. Lenfesty, 16 So. at 278. For this reason alone, the summary judgments were improper in each of the cases.

Accordingly, in case no. 09-18089, we reverse the final summary judgment and remand with direction that the action be dismissed in its entirety without prejudice.

In case no. 09-19636, we reverse the summary judgment and vacate the final judgment of foreclosure. With regard to appellant Vincenzo Gurrera only, we direct that the action be dismissed without prejudice. With regard to Venture, however, we do not direct dismissal of the action.

In case no. 09-018086, we reverse the summary judgment and vacate the final judgment of foreclosure. With regard to appellant Alexander Gonzalez only, we direct that the action be dismissed without prejudice. With regard to Real, however, we do not direct dismissal of the action.

While A.I.M. is free to file the original promissory note and to move for summary judgment in the actions that have not been dismissed as to Venture and Real, we caution that the absence of Gurrera and Gonzalez from those proceedings would leave those parties’ interests unaffected by any judgment.

Reversed and Remanded.

TAYLOR, HAZOURI and LEVINE, JJ., concur.

      . Ultimately, the cause of action was assigned to A.I.M., but this did not occur until after the suits were filed.

      . A.I.M. possessed the original notes at the hearings for summary judgment, but failed to properly present them to the circuit court. Because the documents were not filed with the clerk of court until well after the entry of summary judgment we cannot determine whether the trial court relied upon them in coming to its decision. Servedio v. U.S. Bank Nat. Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010).


text:
    P.G., Appellant, v. E.W., Appellee.
    No. 2D10-3989.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 2011.

      Mark P. Kelly of Lopez, Kelly & Bible, P.A., Tampa, for Appellant.
    Donald A. Foster of The Foster Law Group, P.A., Tampa, for Appellee.
   DAVIS, Judge.

P.G., the Former Husband, challenges the trial court’s final order denying his petition to disestablish his paternity as to A.G., the minor child of the Former Wife, E.W. We reverse.

The Former Husband and the Former Wife maintained an “on and off’ relationship prior to their marriage. During a period when their relationship was “off,” the Former Wife dated other gentlemen. The parties subsequently reconciled and moved in together after the Former Wife learned that she was pregnant. Upon the birth of A.G.,. the Former Husband signed the birth certificate as the father. Then in 1996, when A.G. was approximately two years old, the parties married. However, the union did not last, and the parties divorced in September 2004.

As a part of the dissolution proceeding, the Former Husband acknowledged that he was the father of A.G., and the final judgment of dissolution treated him as such by naming him primary residential parent for A.G. and requiring him and the Former Wife to equally share in the child’s medical bills, dental bills, and other childcare-related expenses.

According to the Former Husband, A.G. began experiencing behavioral and mental health issues in June 2009. Recognizing that there was no history of mental health issues in his family, the Former Husband began to question whether, in fact, he was A.G.’s biological father. To satisfy his curiosity, he took A.G. to a medical lab that specialized in DNA testing. The clinical results indicated that there was a zero percent chance that he was A.G.’s biological father, prompting the Former Husband to file a petition to disestablish paternity pursuant to section 742.18, Florida Statutes (2009).

At the hearing on the Former Husband’s petition, the Former Wife testified that the parties never used any type of birth control and that at the time of A.G.’s birth, she was confident that the Former Husband was the child’s biological father. She further testified that two days before the child’s birth, the Former Husband questioned her as to whether he was in fact the father of the child considering the timing of their reconciliation and the date of the child’s conception. However, after she reassured him, the Former Husband asserted that he did not care who the father was; that as far has he knew, he was the father; and that he wanted to be the father for her. Finally, the Former Wife testified that the Former Husband declined her offer to have testing done once the child was born.

The Former Husband, however, maintained that he always had believed that he was A.G.’s natural father despite his being aware that the Former Wife had been involved with other men around the time of A.G.’s conception and despite the fact that during that same time he and the Former Wife always used a condom during sexual intercourse.

The trial court entered an order denying the Former Husband’s petition and concluding (1) that the Former Husband could not avail himself of section 742.18’s mechanism for disestablishing paternity because he was not a “male ordered to pay child support” as referred to in the statute, (2) that the new DNA test results did not provide newly discovered evidence because he “knew all along there was some chance [A.G.] was not his biological child,” and (3) that the Former Husband was estopped from denying that he is A.G.’s biological father because “he acted in every way as [her] father and primary custodian even after having conclusive proof that he is not her biological parent.” The court also made a specific determination that the Former Wife’s testimony “that she and [the Former Husband] reconciled and moved in ‘permanently’ after the possibility that there could be another biological parent to [A.G.]” was more believable than the Former Husband’s testimony that pri- or to receiving the DNA test results, he always had believed himself to be AG.’s biological father.

On appeal, the Former Husband first argues that the trial court erred in determining that section 742.18 was inapplicable here because the Former Husband has not been ordered to pay child support. We agree with the Former Husband. As part of the final judgment of dissolution of the parties’ marriage, he was ordered to share equally with the Former Wife the child’s medical, dental, and childcare-related expenses. Additionally, as the child’s primary residential parent, the Former Husband unquestionably was obligated to contribute to this child’s support. As such, for purposes of the statute, he may be considered a “male ordered to pay child support.”

The Former Husband also argues on appeal that the trial court erred in determining that the DNA test results attached to his petition did not constitute the “newly discovered evidence” required by the statute. See § 742.18(l)(a), (2)(a).

Section 742.18(1) provides as follows:

(1) This section establishes circumstances under which a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child. To disestablish paternity or terminate a child support obligation, the male must file a petition in the circuit court having jurisdiction over the child support obligation. ... The petition must include:
(a) An affidavit executed by the petitioner that newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.
(b) The results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father of the child for whom support is required....
(c) An affidavit executed by the petitioner stating that the petitioner is current on all child support payments for the child for whom relief is sought....

(Emphasis added.)

Here, the Former Husband’s petition identified the DNA test results as the newly discovered evidence that entitled him to relief. He maintains that pursuant to section 742.18(2), “[t]he court shall grant relief on a petition” that it finds satisfies an enumerated list of conditions. (Emphasis added.) Those conditions include the following:

(a) Newly discovered evidence relating to the •paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.
(b) The scientific test required in paragraph (l)(b) was properly conducted.
(c) The male ordered to pay child support is current on all child support payments for the applicable child or that the male ordered to pay child support has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due.
(d) The male ordered to pay child support has not adopted the child.
(e) The child was not conceived by artificial insemination while the male ordered to pay child support and the child’s mother were in wedlock.
(f) The male ordered to pay child support did not act to prevent the biological father of the child from asserting his paternal rights with respect to the child.
(g) The child was younger than 18 years of age when the petition was filed.

(Emphasis added.)

It is undisputed here that the Former Husband has satisfied section 742.18(2)(b)-(g). As to subsection (2)(a), the DNA test results that the Former Husband became aware of since the initial paternity determination conclusively prove that he is not the biological father of the child. The trial court, however, concluded that such did not amount to the newly discovered evidence referred to in subsections (l)(a) and (2)(a). Specifically, the trial court determined:

[The Former Wife’s] testimony indicates that [the Former Husband] knew or should have known at the time of the child’s birth that there was a possibility that he was not [A.G.’s] biological father. He nonetheless accepted paternity and married her mother. This takes credence out of the argument that the DNA provided “newly” discovered evidence, since the Court believes that [the Former Husband] knew all along there was some chance [A.G.] was not his biological child.

We do not agree. Although there was evidence to support the finding that the Former Husband should have suspected that he was not the child’s biological father, there was no evidence to support a finding that he did in fact know that he was not the child’s father at the time he signed the child’s birth certificate. Furthermore, the Former Wife testified at trial that at the time of A.G.’s birth she herself was confident the Former Husband was the child’s biological father and that she reassured the Former Husband of that fact two days prior to the child’s birth. The trial court specifically found this testimony to be more credible than that of the Former Husband.

We therefore agree with the Former Husband that based on this record, the trial court was obligated to grant relief on his petition unless it found that he was precluded by a provision of subsection (3).

Section 742.18(3) mandates that the trial court “shall not set aside the paternity determination or child support order if the male engaged in [certain] conduct after learning that he is not the biological father of the child.” (Emphasis added.) The list of prescribed conduct includes marriage to the child’s mother, acknowledging paternity in a sworn statement, consenting to his name being placed on the birth certificate as the father, voluntarily agreeing to support the child and being required to pay support based on the agreement, disregarding a written notice from a state agency to appear for scientific testing, and signing a voluntary acknowledgement of paternity as provided for by law. § 742.18(3)(a)-(f).

The Former Husband testified below that he had not engaged in any of the conduct described in subsection (3) after he obtained the DNA test results that show a zero percent chance that he was this child’s biological father. In its final order, however, the trial court dismissed this assertion as “intellectually disingenuous” because

accepting [the Former Wife’s] credibility on the history of their relationship and the possibilities regarding [A.G.’s] paternity, the Court notes that [the Former Husband], a man who at the time of [the Former Wife’s] conception of the child was engaged in an on-and-off again [sic] relationship and had reason to question the Mother’s fidelity, nonetheless married her, consented to be named on the birth certificate, and voluntarily — and aggressively — pursued primary custody of said child in their divorce action and in all postjudgment attempts by the Mother to pursue modification....

The language of subsection (3), however, clearly refers to the male engaging in these acts “after learning that he is not the biological father of the child.” § 742.18(3). Reading subsection (3) in conjunction with subsections (1) and (2), which speak of the father’s knowledge after he has received “newly discovered evidence” that came to him “after the initial paternity determination,” we conclude that the “learning” referred to in subsection (3) is the knowledge resulting from the “newly discovered evidence.”

Arguably, the Former Husband’s consent to his name being placed on the birth certificate was the original establishment of paternity. See § 742.10(1) (“[I]f ... a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as provided for in s. 382.013 ... is executed by both parties ... such ... constitutes the establishment of paternity for purposes of this chapter.”); see also § 382.013, Fla. Stat. (2009) (dealing with “birth registration”). The Former Husband’s marriage to the child’s mother and then his acceptance of parental responsibilities upon the dissolution of the marriage were subsequent to the original establishment of paternity but prior to his receiving the newly discovered evidence of the conclusive DNA test results. There is nothing in the record that suggests that the Former Husband engaged in any of the listed conduct after receiving those DNA results. Accordingly, subsection (3) does not apply to this case, and the trial court should have granted the relief as required by subsection (2).

We recognize that our conclusion here conflicts with the First District’s opinion in Hooks v. Quaintance, 71 So.3d 908 (Fla. 1st DCA 2011). In that case, the Fust District concluded that “the plain language in section 742.18 requires a showing of newly discovered evidence in addition to DNA test results indicating that a male is not the father of the child.” Id. at 911. The First District set forth the facts in Hooks as follows:

It [wa]s undisputed that at the time [a]ppellant voluntarily acknowledged paternity, he was well aware of the fact that there was only a fifty percent chance that he was the biological father, and he admitted that he chose not to have a DNA test. Appellant could have discovered whether he was the biological father in 2005 before he voluntarily acknowledged paternity.

Id.

We, however, conclude that DNA test results performed since the initial determination of paternity satisfy the statutory requirement for newly discovered evidence so long as they meet the statute’s other time requirements. We further conclude that because the plain language of the statute only addresses the petitioner’s “knowledge since the initial paternity determination,” see § 742.18(l)(a), (2)(a), any suspicions he may have had prior to that initial establishment of paternity are irrelevant. As such, we certify conflict with Hooks, 71 So.3d 908.

Finally, the Former Husband argues on appeal that the trial court erred in concluding that he was estopped from disestablishing his paternity to A.G. because he “continued to assert parental responsibility over” her after receiving the DNA test results. Again, we agree with the Former Husband.

This case comes to us in an unusual posture. It is not the typical situation contemplated by the statute where the child resides with his or her mother and the biological father has been ordered to pay child support. In that typical situation, the statute requires the biological father to continue to meet his parental responsibility — paying child support — in order to even maintain the action. See § 742.18(l)(c) (requiring that the petition for disestablishment include an affidavit of the petitioner stating that he “is current on all child support payments for the child ... or that he has substantially complied with his child support obligation”). Here, the child lives with the Former Husband. As such, it would be necessary, and in keeping with the spirit of the statute, for the Former Husband to continue in his role as A.G.’s primary residential parent during the pendency of this proceeding.

We do observe that prior to the adoption of this statute, the law would have required that the petition be denied. The controlling issue in any case questioning paternity would have been the best interests of the child. See Fla. Dep’t of Revenue ex rel. R.A.E. v. M.L.S., 756 So.2d 125, 127 (Fla. 2d DCA 2000) (“Our paramount consideration in paternity cases is the best interests of the child.”). And the best interests of the child historically suggested the presumption of legitimacy. See Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305, 307 (Fla.1993) (“We must start from the premise that the presumption of legitimacy is based on the policy of protecting the welfare of the child, i.e., the policy of advancing the best interests of the child.”). Furthermore, the law previously provided that the established father would have been required to raise the paternity issue in the dissolution proceedings and that absent such a challenge, res judicata principles barred him from further litigating the issue. See, e.g., Dep’t of Health & Rehabilitative Servs. v. Chambers, 472 So.2d 1358 (Fla. 2d DCA 1985); Johnson v. Johnson, 395 So.2d 640 (Fla. 2d DCA 1981). Accordingly, based on the facts of this case, the Former Husband may have been equitably estopped from challenging paternity at this time. See Sacks v. Sacks, 267 So.2d 73, 76 (Fla.1972) (“The respondent’s actions with respect to the child conclusively show that he not only treated the child as his, but also admitted that he is the child’s father.... The welfare of the child demands that we recognize and honor not the fiction, but the underlying purpose upon which the fiction was created. The respondent is the father; he wed the mother; he acknowledged paternity; and the law should not keep him from meeting his responsibilities to his child.”).

However, in 2006 the legislature provided that even after paternity has been established and the father-child relationship has been fostered, there is a mechanism by which a man may disestablish his paternity and avoid further obligation to support the child. Ch. 2006-265, Laws of Fla. We do understand that in this particular case the equities are extreme, but this legislative provision is available to the Former Husband, and his petition should have been granted.

Reversed and remanded for the trial court to enter a final order consistent with this opinion; conflict certified.

VILLANTI and KHOUZAM, JJ„ Concur.

      . On appellate review, we accept the factual findings of the trial court if they are supported by competent, substantial evidence in the record. See Thorpe v. Myers, 67 So.3d 338, 341 (Fla. 2d DCA 2011) ("We defer to the circuit court's findings of fact when they are based on competent, substantial evidence.”). Additionally, based on the trial court’s determination that the Former Wife's version of the circumstances regarding the birth of the child was more credible than that of the Former Husband, we must accept the facts as testified to by the Former Wife. See De Uejbe v. Wehbe, 875 So.2d 1284, 1284 (Fla. 3d DCA 2004) ("The determination of the credibility of witnesses is for the trial court, not this court.”). However, we review de novo the trial court’s application of the statute to those facts. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) ("The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.”).


text:
    James D. BRYSON, Appellant, v. BRANCH BANKING AND TRUST COMPANY, Appellee.
    No. 2D10-3360.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 2011.

      Michael E. Rodriguez of Foreclosure Defense Law Firm, PL, Tampa, for Appellant.
    Miguel A. Gonzalez of Spear and Hoffman, P.A., Miami, for Appellee.
   VILLANTI, Judge.

James D. Bryson appeals the final summary judgment of foreclosure entered in favor of Branch Banking and Trust Company (BB & T). Because BB & T did not meet its burden of conclusively showing that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law, we reverse the summary judgment and remand for further proceedings.

BB & T filed a complaint on July 16, 2008, seeking foreclosure, alleging that Bryson had not made any payments on his mortgage since February 1, 2008. Thereafter, BB & T filed a motion for summary judgment. Bryson answered the complaint and admitted that he had executed the mortgage in question and that he had missed at least one payment. However, he asserted as an affirmative defense that BB & T had not provided a notice to cure as required by section 22 of the mortgage. Paragraph 22 of the mortgage, which was attached to the complaint, required BB & T to give notice to Bryson prior to accelerating the debt:

Acceleration, Remedies!!.] Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise)[.] The notice shall specify (a) the default, (b) the action required to cure the default, (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured, and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non existence of a default or any other defense of Borrower to acceleration and foreclosure^] If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate pay-merit in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Agreement by judicial proceeding[.] Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence[.]

On April 27, 2009, BB & T filed a copy of two default letters purportedly sent to Bryson on April 28, 2008, at two different addresses. However, the letters were not attached to an affidavit or authenticated in any way. BB & T then filed a revised summary judgment motion.

At a hearing held on the summary judgment motion, Bryson argued that BB & T had not refuted the affirmative defenses related to paragraph 22 of the mortgage and that the two default notice letters were not authenticated and could not be considered for summary judgment purposes. BB & T responded that the letters were “self-authenticating” because they were created by the bank. The court granted summary judgment. This appeal followed.

“A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). The party moving for summary judgment bears the burden of establishing irrefutably that the nonmoving party cannot prevail. See Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2d DCA 1995). “[I]t is only after the moving party has met this heavy burden that the nonmoving party is called upon to show the existence of genuine issues of material fact.” Id. at 646; see also Holl v. Talcott, 191 So.2d 40, 48 (Fla.1966) (“Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried.”); Deutsch v. Global Fin. Servs., LLC, 976 So.2d 680, 682 (Fla. 2d DCA 2008) (“The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof.”); Berenson v. S. Baptist Hosp. of Fla., Inc., 646 So.2d 809, 810 (Fla. 1st DCA 1994) (noting that “the nonmoving party need make no showing in support of his claim until the moving party has, by affidavit or otherwise, completely negated all allegations and inferences raised by the nonmoving party”).

On summary judgment, the trial court’s function “is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, ‘the nonexistence of a genuine issue of a material fact.’” Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004) (quoting Besco USA Int’l Corp. v. Home Sav. of Am. FSB, 675 So.2d 687, 688 (Fla. 5th DCA 1996)). Where a defendant pleads affirmative defenses, the plaintiff moving for summary judgment must either factually refute the affirmative defenses by affidavit or establish their legal insufficiency. See Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009); Newton v. Overseas Private Inv. Corp., 544 So.2d 224, 225 (Fla. 3d DCA 1989).

In numerous foreclosure cases summary judgment has been reversed because the defendant has pleaded lack of notice and opportunity to cure as an affirmative defense and nothing in the bank’s complaint, motion for summary judgment, or affidavits established that the bank gave the homeowners the notice and opportunity to cure required by the mortgage. See, e.g., Laurencio v. Deutsche Bank Nat’l Trust Co., 65 So.3d 1190, 1192 (Fla. 2d DCA 2011); Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285 (Fla. 2d DCA 2011) (“[N]othing in Busey’s complaint, motion for summary judgment, or affidavits indicates that Busey gave Konsulian the notice which the mortgage required.... Further, Busey did not refute Konsulian’s defenses nor did it establish that [they] were legally insufficient.”); Frost, 15 So.3d at 906. We reach the same conclusion in this case.

The unauthenticated copies of default letters purportedly sent to Bryson by BB & T were insufficient for summary judgment purposes because only competent evidence may be considered in ruling on a motion for summary judgment. Daeda v. Blue Cross & Blue Shield of Fla., Inc., 698 So.2d 617, 618 (Fla. 2d DCA 1997); Tunnell v. Hicks, 574 So.2d 264, 266 (Fla. 1st DCA 1991) (explaining that court could not consider certain documents in its summary judgment decision because “Tunnell failed to attach either document to affidavits that presumably would have ensured their admissibility”).

At the summary judgment hearing, BB & T took the position that the letters were self-authenticating because they were the bank’s own letters. Self-authentication is a concept that, due to a document’s very nature of being notarized or certified in some fashion, eliminates hearsay and other extrinsic objections to admissibility. However, a document bereft of genuineness, such as a purported copy, cannot be said to be self-authenticating because extrinsic evidence to establish its truthfulness is still required. With this in mind, BB & T’s letters are clearly not self-authenticated. Hence, we reject BB & T’s argument in this regard. See, e.g., Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997) (“Merely attaching documents which are not ‘sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e).”); Morrison v. U.S. Bank, N.A., 66 So.3d 387, 387 (Fla. 5th DCA 2011) (reversing summary judgment of foreclosure where defendant asserted she had not received a notice of default as required by the mortgage and the bank had simply filed an unauthenticated notice letter). In this case, the letters at issue were not admitted by the pleadings, nor were they accompanied by an affidavit of a record custodian or other proper person attesting to their authenticity or correctness. See id.

Finally, BB & T argues that it was entitled to summary judgment because “Bryson did not file any affidavits in opposition or tender sufficient evidence to demonstrate to the court that a genuine issue of material fact existed.” BB & T has misunderstood the summary judgment standard. If the defendant pleads affirmative defenses, the plaintiff moving for summary judgment must either factually refute the affirmative defenses by affidavit or establish their legal insufficiency. Frost, 15 So.3d at 906; Newton, 544 So.2d at 225. “The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof.” Deutsch, 976 So.2d at 682. Because BB & T did not tender any competent evidence on the issue of Bryson’s notice of the default, it did not meet its burden of proof on summary judgment.

Reversed and remanded.

ALTENBERND and KHOUZAM, JJ., Concur.


text:
    Jeffrey David TISHNER, Petitioner, v. Bill CAMERON, Sheriff, and Mike Scott, Sheriff, Respondents.
    No. 2D11-4695.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 2011.
    Steven P. Burch, Punta Gorda, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ralph E. Guerra, Assistant Attorney General, Tallahassee, for Respondents.
   MORRIS, Judge.

Jeffrey David Tishner seeks a writ of habeas corpus. We previously granted his request on October 6, 2011, by unpublished order, stating that an opinion would follow. In the October 6, 2011, order, for the reasons explained below, we directed the circuit court to release Tishner and restore his bond status as it existed prior to his latest arrest.

On September 14, 2010, Tishner was placed on five years’ probation for the charges of burglary of an unoccupied structure and grand theft in Lee County case number 10-CF-015334. On February 15, 2011, Tishner was arrested in Charlotte County on a charge of driving under the influence. As a result of the new offense, on March 4, 2011, a warrant from Lee County was issued alleging that Tishner had violated his probation in case number 10-CF-015334, and Tishner was served with this warrant on April 7, 2011, while in custody on the new offense. Shortly thereafter, Tishner’s bond in case number 10-CF-015334 was set at $10,000.

On May 2, 2011, Tishner, through counsel, filed a waiver of arraignment and plea of not guilty in case number 10-CF-015334, the Lee County violation of probation (VOP). Once his Charlotte County proceedings were resolved, Tishner posted bond on his Lee County VOP. Upon doing so, on July 13, 2011, Tishner filled out a general surety appearance bond form with Bankers Insurance Company, stating that he would appear on demand at the next regular or special term of court. On August 5, 2011, a court order was issued setting Tishner’s VOP arraignment in case number 10-CF-015334 for September 6, 2011. Following Tishner’s failure to appear, a warrant was issued for his arrest, and he was taken into custody on September 20, 2011.

In his petition, Tishner alleges that pursuant to Florida Rule of Criminal Procedure 3.160(a), “counsel may file a written plea of not guilty at or before arraignment and thereupon arraignment shall be deemed waived.” Tishner argues that his May 2, 2011, waiver and plea of not guilty, although filed before the VOP arraignment was set, effectively invoked this rule. Tishner further alleges that the trial court refused to acknowledge his waiver and issued a warrant for his arrest for a failure to appear based simply on the judge’s personal policy requiring all defendants to be at arraignments on VOPs.

While judges have some latitude on how to enforce rule 3.160, this court has previously held that a blanket policy “ordering all defendants and counsel to appear at arraignment arbitrarily denied [defendants] the privilege afforded by rule 3.160.” Albritton v. White, 948 So.2d 852, 854 (Fla. 2d DCA 2007). In addition, “[r]efusal to honor a written plea of not guilty would never be approved as a standard procedure by a trial court and an exception to the right to enter a written plea of not guilty should be employed only under the most unusual circumstances.” Tellis v. State, 779 So.2d 352, 354 (Fla. 2d DCA 2000). Even if such circumstances exist, “then defense counsel and the defendant must be clearly advised that the defendant’s personal presence is required, notwithstanding the waiver of presence.” Cruz v. State, 822 So.2d 595, 596 (Fla. 3d DCA 2002). Here, the order setting VOP arraignment simply established the date and location, with no indication of unusual circumstances or even requirements to appear.

In its response, the State argues that Tishner had not provided the required appendix complete with a transcript from his VOP hearing in order for the court to determine what arguments and objections were made below. See Fla. R.App. P. 9.100(g); 9.220. However, the included appendix contains sufficient portions of the record to assess the petition on the merits. Substantively, the State also relies upon Tishner’s July 13, 2011, bond form, in which he stated that he would appear on demand at all future terms of court. The State maintains that this form, filed after Tishner’s waiver of arraignment and plea of not guilty, superseded the prior waiver. However, the bond form was merely a third-party insurance document, not a binding court document.

Finally, the State argues that Tishner had failed to file the necessary motions with the trial court according to Florida Rule of Criminal Procedure 3.131(d)(3), which provides in part that “[i]f any trial court fixes bail and refuses its reduction before trial, the defendant may institute habeas corpus proceedings seeking reduction of bail.” However, on September 21, 2011, Tishner filed an “Emergency Motion to Dismiss Bench Warrant, and Set Aside D-6 and Bond Estreature.” Upon learning that the motion would not be considered as an emergency, Tishner filed the current habeas petition. In addition, the situation is somewhat unique here as Tish-ner had already posted bond and was taken into custody again merely because he did not appear at arraignment.

We conclude that having filed a valid waiver of arraignment and plea of not guilty prior to arraignment, Tishner thus satisfied the requirements of rule 3.160. Furthermore, the order setting Tishner’s VOP arraignment did not advise him that his personal presence was required, notwithstanding the waiver of his presence that he had previously executed. Accordingly, we granted Tishner’s petition for writ of habeas corpus and ordered his immediate release.

KHOUZAM, J., Concurs.

CRENSHAW, J., Dissents.