author: LaROSE, Judge.

text:
    Joan B. PAUL, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 2D10-3889.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 2011.

      Barbara Goolsby and Angela Thompson of Florida Rural Legal Services, Inc., Fort Myers, for Appellant.
    Erin M. Berger of Florida Default Law Group, P.L., Tampa, for Appellee.
   LaROSE, Judge.

The trial court entered a summary foreclosure judgment against Joan B. Paul. The trial court subsequently denied her motion to set aside that judgment. Mrs. Paul moved for relief from that decision; the trial court entered an order denying relief. Mrs. Paul appeals from that order. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Because the trial court denied the motion based on a mistake of law, we reverse.

Factual Background

In July 2009, Wells Fargo filed a foreclosure action against Mrs. Paul. She was elderly and suffered from multiple physical and mental ailments. She did not respond to the complaint. Wells Fargo moved for a default and summary judgment. The trial court entered a final summary judgment against Mrs. Paul in February 2010; a foreclosure sale was set for May 2010.

Mrs. Paul’s nephew, William Chiste, held a durable power of attorney authorizing him to act on Mrs. Paul’s behalf. He lived in Missouri and did not learn of the foreclosure lawsuit until late March 2010. When he learned of the lawsuit, Mr. Chiste came to Florida promptly. He assisted his aunt in retaining Barbara Goolsby of Florida Rural Legal Services to file an emergency motion to set aside the final judgment and cancel the scheduled sale. See Fla. R. Civ. P. 1.540(b). Because the crowded foreclosure docket made it uncertain whether the trial court could hear the motion before the sale date, Ms. Goolsby asked Wells Fargo to abate the sale. The sale took place as scheduled. Wells Fargo purchased the property and assigned its rights to Freddie Mac, the Federal National Mortgage Association.

Thereafter, the trial court heard Mrs. Paul’s motion to set aside the judgment. Mrs. Paul first argued that Wells Fargo lacked standing to foreclose on a note and mortgage issued by Washington Mutual National Bank. The trial court properly rejected this argument. Wells Fargo’s “possession of the original note, indorsed in blank, [is] sufficient under Florida’s Uniform Commercial Code to establish that it was the lawful holder of the note, entitled to enforce its terms.” Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010); see also Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So.2d 394, 395-96 (Fla. 2d DCA 1995) (citing § 671.201(20), Fla. Stat. (1993)). We need say nothing further on this issue.

The trial court then considered the merits of Mrs. Paul’s motion to set aside. We acknowledge that “default judgments are generally not favored by the courts, and a court’s discretion should be liberally exercised and all reasonable doubt resolved in favor of granting appliea-tions for relief so as to permit a determination of the controversy upon the merits.” U.S. Tobacco Co. v. Hartford Accident & Indem. Co., 444 So.2d 81, 83 (Fla. 2d DCA 1984). But to set aside the default judgment, Mrs. Paul was required to demonstrate a legal excuse — such as excusable neglect — for not responding to the complaint, a meritorious defense, and due diligence in seeking relief after learning of the default. See Szucs v. Qualico Dev., Inc., 893 So.2d 708, 710 (Fla. 2d DCA 2005). Any reasonable doubt is to be resolved in favor of Mrs. Paul. Id.

Mrs. Paul and her daughter provided an affidavit asserting excusable neglect because they were incapable of responding to the complaint. They attached letters from physicians stating that Mrs. Paul lacked capacity to pay bills and take care of things in her daily life because of her mental ailments. The letters also reflected that the daughter’s psychological limitations made it difficult for her to focus on her mother’s affairs. As for a meritorious defense, Mrs. Paul averred that she qualified for a mortgage modification and could make the payments.

Wells Fargo countered that Mrs. Paul failed to show excusable neglect. It noted that Mrs. Paul’s power of attorney was signed in late July 2009. According to Wells Fargo, because Mr. Chiste had the power of attorney before entry of the default, Mr. Chiste should have known about the foreclosure lawsuit and hired counsel sooner for Mrs. Paul. Wells Fargo relied on the general principle that “a defendant’s failure to retain counsel or to understand the legal consequences of his inaction is not excusable neglect.” Szucs, 893 So.2d at 711 (holding shareholder’s failure to hire counsel because he did not understand plaintiff corporation was seeking money judgment did not constitute excusable neglect) (citing Joe-Lin, Inc. v. LRG Rest. Group, Inc., 696 So.2d 539, 540-41 (Fla. 5th DCA 1997) (holding defendant corporation’s officers’ belief that writing letter to plaintiff, instead of hiring counsel to answer complaint, was sufficient response did not constitute excusable neglect)); see Goldome v. Davis, 567 So.2d 909, 910 (Fla. 2d DCA 1990) (holding defendant’s failure to hire counsel because he did not realize plaintiff sought money judgment was not excusable neglect); Claffey v. Serafino, 338 So.2d 270, 271 (Fla. 2d DCA 1976) (holding defendant’s failure to hire counsel to answer the complaint because he thought he would receive further notice of the proceedings not excusable neglect). A close reading of those cases reveals that they involved defendants whose only excuse for failing to hire counsel was their misunderstanding of their legal obligations. None involve a defendant, such as Mrs. Paul, who claimed excusable neglect based on her mental ailments. Thus, the governing principle may be more accurately stated as “absent other justifications, failure to hire counsel does not qualify as excusable neglect.” Schauer v. Coleman, 639 So.2d 637, 639 (Fla. 2d DCA 1994) (emphasis added) (citing Kapetanopoulos v. Herbert, 449 So.2d 947, 949 (Fla. 2d DCA 1984)).

Alternatively, Wells Fargo argued that Mrs. Paul did hire counsel and that counsel failed to answer the complaint. Wells Fargo used these same arguments to claim that Mrs. Paul did not act diligently in seeking relief. The record, however, contains nothing controverting Mrs. Paul’s assertions that the attorney hired in 2009 was retained only to prepare a power of attorney so that Mr. Chiste could act on her behalf if needed and that Mr. Chiste did not know about the foreclosure lawsuit until sometime in March 2010. Mrs. Paul had no counsel in this lawsuit until she retained Ms. Goolsby.

The trial court denied Mrs. Paul’s motion to set aside. It felt compelled to let the foreclosure stand because the property was already sold and Mrs. Paul did not act when she should have. The transcript of the hearing reflects the following exchange:

MS. GOOLSBY: Well, we are entitled to a hearing and an appeal on our motion to set aside the verified—
THE COURT: If you take an appeal, I have no jurisdiction to do anything in the case. It has been sold and I can’t stop whatever has happened now.
MS. GOOLSBY: Well, you have the authority to stop it.
THE COURT: If you want a hearing on that matter, you need to bring me case law, a statute that says I can intervene. There is a rightful owner of that property at this point in time, ma’am. You’re going to have to set another hearing. I’m not just going to jump into something. If you present me with case law, a statute, I’ll be inclined to do that. MS. GOOLSBY: Well, your honor, if there is an order that we brought before this Court and it has been denied, we are entitled—
THE COURT: Set up the hearing and give me a statute, and bring the authority-
MS. GOOLSBY: Under the Florida constitution—
THE COURT: Ma’am, I just ruled. If you want a hearing, please set a hearing.
MS. GOOLSBY: All right, we will be filing a motion. Thank you, your Honor.

The trial court directed Wells Fargo’s counsel to prepare an order denying the motion. Counsel stated that he would show the proposed order to Ms. Goolsby before submitting it to the court. Instead, counsel sent the proposed order directly to the trial court without notice to Ms. Gools-by. The trial court signed the proposed order. The service list attached to the order included Mrs. Paul, but not Ms. Goolsby. Ms. Goolsby was not served with a copy of the order, despite having filed numerous documents as Mrs. Paul’s counsel.

Within a couple of weeks, Ms. Goolsby discovered that the trial court had issued its order. She filed a motion for relief. As previously directed by the trial court, Ms. Goolsby submitted case law to allay the trial court’s concern about its jurisdiction. See Sterling Factors Corp. v. U.S. Bank Nat’l Assoc., 968 So.2d 658, 665 (Fla. 2d DCA 2007) (holding circuit court has jurisdiction to set aside or reconsider foreclosure judgment upon proper motion after foreclosure sale).

Ms. Goolsby asked the trial court to vacate the earlier order and grant relief from the default foreclosure judgment. Ms. Goolsby requested that if the trial court declined to set aside the default judgment, the trial court allow Mrs. Paul an opportunity to appeal.

The parties addressed all issues related to the earlier order, including (1) whether the trial court should have copied Ms. Goolsby with the order, (2) whether the trial court could grant relief after sale, (3) whether Mrs. Paul’s illness could be a basis to find excusable neglect, and (4) whether Wells Fargo had shown it had standing to foreclose. The trial court denied the motion, and this appeal ensues.

Failure to Copy Counsel with First Order

The trial court stated that it found no notice of appearance by Ms. Goolsby that would require copying her with the order denying relief from judgment. Ms. Goolsby, however, was not required to file a notice of appearance. Florida Rule of Judicial Administration 2.505(e)(1) provides that an attorney may appear in a proceeding by “serving and filing, on behalf of a party, the party’s first pleading or paper in the proceeding.” Florida Rule of Civil Procedure 1.080(b) provides that “[w]hen service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court.” Boosinger v. Davis, 46 So.3d 152, 154 n. 1 (Fla. 2d DCA 2010) (reversing order denying motion for relief where counsel received no notice because court clerk failed to update service list, remanding for reinstatement of cause of action). The trial court’s failure to provide Ms. Goolsby with the order denying the motion to set aside the default foreclosure judgment warrants Florida Rule of Civil Procedure 1.540(b) relief, even if for no other purpose than to reenter the order with a fresh date to preserve the right to appeal or to file a motion for rehearing. See Hall v. Dep’t of Health & Rehabilitative Servs., 487 So.2d 1147 (Fla. 1st DCA 1986); see also, e.g., Smith v. Garst, 289 So.2d 774, 775-76 (Fla. 2d DCA 1974) (remanding case to trial court pursuant to rule 1.540 for reentry of order where counsel for incompetent petitioner not advised of order entry until after appeal deadline); Kanecke v. Lennar Homes, Inc., 543 So.2d 784, 785 (Fla. 3d DCA 1989) (holding where appellant did not receive notice of entry of order until after time for appeal expired, trial court as matter of law must grant rule 1.540(b) relief request to vacate and reenter it to restart time for appeal); Woldarsky v. Woldarsky, 243 So.2d 629, 630 (Fla. 1st DCA 1971) (upholding trial court’s setting aside of final judgment pursuant to rule 1.540(b) and reentering it to allow appellant not timely served with copy of order time to appeal) (citing Rogers v. First Nat’l Bank at Winter Park, 232 So.2d 377 (Fla.1970)).

Relief After Sale

Mrs. Paul advised the trial court of Sterling Factors, 968 So.2d 658, in support of her position that the trial court had jurisdiction to grant relief even after a sale. Wells Fargo did not respond, and the trial court did not further question its jurisdiction after the sale. The trial court continued under the impression that, as a matter of law, it could not vacate the judgment. Sterling Factors instructs otherwise.

Excusable Neglect

Wells Fargo relied principally on three cases to support its argument that Mrs. Paul’s ailments could not establish a basis for the trial court to grant relief: Home Owners’ Loan Corp. v. Wilkes, 130 Fla. 492, 178 So. 161, 163 (1938) (“The obligation of the mortgagor to pay or the mortgagee to foreclose in accordance with the covenants in the note and mortgage are all absolute and none of them are made contingent on the borrower’s health, good fortune, or ill fortune, or the regularity of his employment.”); Lee Cnty. Bank v. Christian Mut. Found., Inc., 403 So.2d 446, 449 (Fla. 2d DCA 1981) (“[Cjourts may not withhold entry of a foreclosure judgment merely because of adverse economic conditions and the resultant misfortunes of the mortgagor.”); and Republic Fed. Bank, N.A. v. Doyle, 19 So.3d 1053, 1054 (Fla. 3d DCA 2009) (holding trial court abused its discretion in granting continuance of foreclosure sale date on ground of benevolence and compassion). After hearing arguments, the trial court ruled that it would not set aside the judgment because “unfortunately ... the ill health of the debtor and her daughter cannot be excusable neglect. The case law seems to be very clear on that, the good health, the poor health, the employment, the unemployment, it is not a factor that the Court should consider.”

The cases upon which Wells Fargo relies are inapposite. All address proceedings to foreclose where the mortgagor’s health or ill fortune resulted in nonpayment of a mortgage. Here, Mrs. Paul argued that the trial court could grant rule 1.540 relief from a default foreclosure based on her excusable neglect in failing to respond to the complaint. See Am. Network Transp. Mgmt., Inc. v. A Super-Limo Co., 857 So.2d 313, 314-15 (Fla. 2d DCA 2003) (holding defendant’s failure to respond to complaint because of kidney stones was excusable neglect); Rosenblatt v. Rosenblatt, 528 So.2d 74, 75 (Fla. 4th DCA 1988) (holding trial court has discretion to set aside default judgment for excusable neglect where husband did not answer complaint because he was shot and hospitalized); Leinberger v. Leinberger, 455 So.2d 1140, 1141 (Fla. 2d DCA 1984) (holding evidence that defendant suffered from psychosis was a sufficient ground to vacate default for excusable neglect); Jasson D. Radding, Inc. v. Coulter, 138 So.2d 380, 383 (Fla. 2d DCA 1962) (holding no abuse of discretion to set aside default judgment for excusable neglect based on defendant’s affidavit that he failed to answer complaint due to illness); Jax Sani Serva Sys., Inc. v. Burkett, 509 So.2d 1251, 1252 (Fla. 1st DCA 1987) (holding default judgment could be set aside for excusable neglect where defendant was illiterate and wife was emotionally ill when served with process) (citing Leinberger). We stress, however, that as we understand them Mrs. Paul’s ailments do not constitute a meritorious defense to nonpayment should the trial court set aside the default judgment and reopen the litigation. See Home Owners’ Loan Corp., 178 So. at 163.

Wells Fargo also relies on John Crescent, Inc. v. Schwartz, 382 So.2d 383, 385-86 (Fla. 4th DCA 1980), as precedent for its position that the trial court had no discretion to find excusable neglect. Such reliance is misguided. As illustrated above, our own cases hold that illness or psychological condition can be a valid ground for finding excusable neglect. We agree with the First District’s decision in Jax Sani Serva System declining to follow Crescent’s rationale. 509 So.2d at 1252. Moreover, Crescent may be an anomaly because subsequently in Rosenblatt, 528 So.2d at 75, the Fourth District held that the defendant’s medical condition could constitute excusable neglect.

Propriety of Second Motion for Relief

Wells Fargo suggests on appeal that Mrs. Paul’s second motion to vacate was an improper second attempt to obtain relief from the final judgment. We disagree. Steeprow Enterprises, Inc. v. Lennar Homes, Inc., 590 So.2d 21 (Fla. 4th DCA 1991), cited by Wells Fargo, holds that a second motion is improper if it tries to relitigate issues settled by a previous order denying relief. Id. at 23; see also Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So.2d 1305, 1306 (Fla. 3d DCA 1987). This rule provides a rationale against successive motions but is not an absolute bar; it should be ignored “where its strict application would work an injustice.” Id. at 1307. For example, the Third District in Crocker affirmed a trial court’s order granting a second motion that raised additional legal grounds revealing that the default judgment was erroneously entered. Id. at 1308; see also Dep’t of Transp v. Bailey, 603 So.2d 1384 (Fla. 1st DCA 1992) (holding that denial of first motion for relief from judgment, where jurisdictional argument was raised but not actually adjudicated, did not preclude review of second motion, which reasserted movant’s position more clearly).

Here, the issues had not been settled at the first hearing; the trial court advised Ms. Goolsby that it was sympathetic to Mrs. Paul’s plight and would be inclined to set aside the foreclosure if she set another hearing and presented additional legal grounds that allowed him to intervene. At the subsequent hearing, Wells Fargo did not object that the motion was successive. Additionally, an order entered under rule 1.540, like the one appealed here, is itself subject to relief under that same rule. See Intercontinental Props., Inc. v. U.S. Sec. Servs., Inc., 515 So.2d 321, 322 (Fla. 3d DCA 1987); Nichols v. Hepworth, 604 So.2d 574, 575-76 (Fla. 4th DCA 1992).

Conclusion

Generally, we review an order denying a motion to vacate a default for abuse of discretion. See Szucs, 893 So.2d at 709. We conclude that the trial court did not base its orders on the exercise of discretion. Rather, it mistakenly concluded that it had no discretion to grant relief (1) after the sale and/or (2) based on Mrs. Paul’s mental condition. See Rosenblatt, 528 So.2d at 75 (reversing denial of motion to set aside default where trial court mistakenly believed that it had no discretion to grant relief); Wells Fargo Fin. Sys. Fla., Inc. v. GRP Fin. Servs. Corp., 890 So.2d 383 (Fla. 2d DCA 2004) (reversing denial of motion to vacate foreclosure sale because trial court mistakenly believed it lacked discretion to vacate). Additionally, as stated above, the trial court was required as a matter of law to vacate the order denying the first motion to set aside because it did not provide Ms. Goolsby with a copy. See Hall, 487 So.2d 1147.

The determination of the correct legal standard to apply is a question of law that we review de novo. Henderson v. Henderson, 905 So.2d 901, 903 (Fla. 2d DCA 2005) (“[A] [trial court’s] misconception of a controlling principle of law can constitute grounds for reversal”) (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979)). Because the trial judge ruled based on mistakes of law, we reverse the order denying relief and remand for reconsideration of Mrs. Paul’s motion to set aside the default foreclosure judgment.

Reversed and remanded for further proceedings.

SILBERMAN, C.J., and MORRIS, J., Concur.

      . Because the matter has not been framed for us, we offer no opinion as to the impact, if any, that this assignment may have upon remand.

      . Wells Fargo’s counsel told the trial court, "The power of attorney attached to this motion is a durable designation of a guardian.” That statement implies that Mr. Chiste became immediately responsible for Mrs. Paul's affairs. However, the document, titled "Durable Power of Attorney and Designation of Guardian,” does not designate Mr. Chiste as Mrs. Paul’s immediate guardian; rather, he becomes her guardian only if an attending physician deems her unable to make an informed consent to medical treatment or if it becomes necessary for a court to appoint a guardian for her person or property. The record does not suggest that either condition occurred.

      . Wells Fargo has not argued that if, in fact, Mr. Chiste did not learn of the default until late March 2010, he did not then exercise due diligence in seeking relief on Mrs. Paul's behalf.

      . In Crescent, the trial court found the wife's "unresolved anxiety” to be excusable neglect in not answering the complaint, but refused to set aside the default foreclosure judgment, presumably because the homeowners alleged no meritorious defense. 382 So.2d at 386. The trial court did set aside the judicial sale of the home, however, finding the sale price grossly inadequate and that the wife’s condition constituted that kind of "mistake, accident or surprise” necessary to invoke the court's equity powers. Id. The Fourth District reversed, holding that although the sale price was inadequate, the trial court erred in setting aside the sale because the wife’s allegations of mental incompetency failed to establish any of the augmenting grounds of "mistake, accident, surprise, fraud, misconduct or irregularity.” Id. at 385. The court cited American National Bank v. Lau, 268 So.2d 567, 571 (Fla. 2d DCA 1972), and Arlt v. Buchanan, 190 So.2d 575, 577 (Fla.1966), as controlling. Lau and Arlt each involved motions to set aside judicial sales where the appellants did not challenge the validity of the underlying foreclosure judgments. Both Lau and Arlt set forth the general rule that to set aside a judicial sale of property for grossly inadequate sales price, appellants must sufficiently allege augmenting facts or circumstances showing "mistake, accident, surprise, fraud, misconduct or irregularity” — a list from which "excusable neglect” is conspicuously absent — by the purchaser or other person connected to the sale. Similarly in Crescent, the validity of the underlying foreclosure judgment was not on appeal, and the court was reviewing only whether the sale should be set aside. In contrast here, we are reviewing not only the sale resulting from the foreclosure judgment, but the foreclosure judgment itself, which is a default judgment subject to set-aside for excusable neglect. This distinction may explain the result in Crescent.


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    Timothy GARTNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-723.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2011.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Timothy Gartner appeals his judgment and sentence for robbery with a deadly weapon, contending that the trial court erred in permitting the State to introduce “Williams Rule” evidence regarding his alleged commission of two other robberies. We agree.

Gartner was charged with the robbery of an employee of the Spring Hill Lock & Key store on December 19, 2007. Prior to trial, the State filed a notice of intent to offer evidence of other crimes, wrongs or acts; specifically, that Gartner had robbed a convenience store on December 17, 2007 and a hair salon on December 18, 2007. After a pretrial hearing, the trial court found that the three robberies were sufficiently similar to permit the use of this collateral crime evidence. In permitting the State to present this evidence, the trial court accepted the State’s argument that the collateral crime evidence was relevant to the issue of identity.

At trial, the State presented testimony from six different witnesses regarding the convenience store and hair salon robberies. Indeed, the State did not present any evidence regarding the charged crime itself until the second day of testimony.

Similar fact evidence that the defendant committed a collateral crime is inherently prejudicial because it creates the risk that a conviction will be based on the defendant’s bad character or propensity to commit crimes, rather than on proof that he committed the charged offense. McLean v. State, 934 So.2d 1248, 1255 (Fla.2006). Accordingly, to minimize the risk of the wrongful conviction, similar fact evidence must meet a strict standard of relevance. Id.

In cases in which the purported relevancy of the collateral crime evidence is the identity of the defendant, there must be “identifiable points of similarity” between the collateral act and the charged crime that “have some special character or [are] so unusual as to point to the defendant.” Id. In essence, the evidence must show both similarity and uniqueness. Thus, a mere general similarity is insufficient to establish legal relevance. Id.

In the instant case, the collateral offenses were not substantially or uniquely similar to the charged offense. The evidence below established that in each of the three robberies, the perpetrator wore a hat or cap, used a black gun, initially carried the gun in the front of his jeans, and demanded money from a female store employee. While these robberies show generally similar characteristics, the threatened use of a gun and a demand for money are characteristics that one might expect in a robbery with a deadly weapon. See Carbonell v. State, 47 So.3d 944, 947 (Fla. 3d DCA 2010).

Our conclusion that it was error to admit evidence of the collateral crimes is further supported by the existence of several dissimilar facts in the three robberies. The robberies occurred at different times of day and at different types of business establishments. In one robbery, the perpetrator waited until the only customer in the store exited before making a demand for money, while in another robbery the perpetrator robbed both the store employee and the customer. In one of the robberies, the perpetrator brought merchandise to the cash register as if to buy the items, while in the other two robberies, the perpetrator made no pretense of being a bonafide customer. In two of the robberies, the perpetrator removed the gun from his pants and pointed it at the store employee; in the other instance, the perpetrator left the gun tucked in his jeans.

We further reject the State’s argument that the introduction of the collateral crime evidence was harmless. The admission of improper collateral crime evidence is presumed to be harmful error because of the danger that a jury will consider a defendant’s propensity to commit a crime as evidence of guilt of the crime charged. Fike v. State, 4 So.3d 734, 739 (Fla. 5th DCA 2009). While the State appeared to have a strong case against the defendant, it is also noteworthy that the State apparently believed the collateral crime evidence was important enough to present nearly a full day of trial testimony regarding these non-charged offenses. We conclude that the State failed to establish that there was no reasonable possibility that the error contributed to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986).

As to the second issue raised on appeal, we affirm the trial court’s determination that the photograph line-up utilized by law enforcement was not impermissibly suggestive.

AFFIRMED, in part; REVERSED, in part; REMANDED for new trial.

PALMER and LAWSON, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . Section 90.404(2)(a), Florida Statutes (2007) provides:
      (2) Other crimes, wrongs, or acts.—
      (a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of ... identity ... but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.


text:
    Eric P. GICK and Marilyn J. Gick, Appellants, v. WELLS FARGO BANK, N.A. etc., Appellee.
    No. 5D10-1515.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2011.
    Matthew D. Valdes, of Kaufman, En-glett & Lynd, PLLC, Orlando, for Appellants.
    Erin M. Berger, of Florida Default Law Group, P.L., Tampa, for Appellee.
   EVANDER, J.

The Gicks appeal from a final summary judgment entered in this mortgage foreclosure proceeding. We reverse. Wells Fargo Bank filed its motion for summary judgment before the Gicks answered the complaint, but failed to meet its burden to conclusively establish that the Gicks could not plead or otherwise raise a genuine issue of material fact.

In May 2008, Wells Fargo filed an unverified complaint alleging that the Gicks had defaulted on their mortgage by failing to make the monthly payment due on November 1, 2007. In response, the Gicks propounded discovery requests upon Wells Fargo and successfully sought an extension of time in which to answer the complaint. After responding to the Gicks’ discovery requests, Wells Fargo filed a motion for summary judgment in June 2009, alleging generally that the Gicks had defaulted on the mortgage and that there were no genuine issues as to any material facts. A supporting affidavit executed by David Perez, an assistant vice president for the servicer of the loan, was attached to the motion for summary judgment. In a conclusory statement, Mr. Perez set forth the sums of money due and owing on the mortgage. However, Mr. Perez’ affidavit did not reference the alleged non-payment in November 2007, and indeed, did not include any averment that the Gicks had defaulted on the mortgage.

Subsequent to the filing of the motion for summary judgment, the Gicks filed a motion to dismiss, asserting that the complaint failed to state a cause of action. After a hearing, the trial court granted Wells Fargo’s motion and entered a final summary judgment of mortgage foreclosure.

Florida Rule of Civil Procedure 1.510(a) permits a plaintiff to move for summary judgment twenty days after suit has been filed, even if the defendant has not filed an answer. Brakefield v. CIT Group/Consumer Fin., Inc., 787 So.2d 115 (Fla. 2d DCA 2001). However, the burden for such a movant is extremely heavy in that the movant must demonstrate conclusively that the defendant cannot plead or otherwise raise a genuine issue of material fact. Greene v. Lifestyle Builders of Orlando, Inc., 985 So.2d 588 (Fla. 5th DCA 2008); see Getman v. Tracey Constr., Inc., 62 So.3d 1289 (Fla. 2d DCA 2011); Brakefield; Beach Higher Power Corp. v. Granados, 717 So.2d 563 (Fla. 3d DCA 1998).

In the instant case, the Gicks argue that there were several potential defenses that could have been pled which were not negated by the record. We find it necessary to address only one. Because of the afore-described deficiencies in Mr. Perez’ affidavit, the record was insufficient to negate an answer alleging that the Gicks had made their payments. See, e.g., Brakefield (error to grant motion for summary judgment in mortgage foreclosure action where motion was filed prior to defendant’s answer and record did not contain affidavit or other documentation demonstrating conclusively that defendant could not raise any genuine issue of material fact).

REVERSED AND REMANDED.

SAWAYA and TORPY, JJ., concur.

      . We reject the Gicks’ argument that the trial court was required to first enter an order on their motion to dismiss prior to hearing Wells Fargo’s motion for summary judgment. The motion to dismiss was never scheduled for hearing and was clearly meritless.

      . Rule 1.510. Summary Judgment.
      (a) For Claimant. A party seeking to recover upon a claim, counterclaim, cross-claim, or third-party claim or to obtain a declaratory judgment may move for a summary judgment in that party’s favor upon all or any part thereof with or without supporting affidavits at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.


author: PER CURIAM.

text:
    Steven NIEDERKORN, Appellant, v. Melissa TRIVINO, Appellee.
    No. 5D10-3009.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2011.
    Robert L. Sirianni, Jr. and Paetra T. Brownlee of Brownstone, P.A., Winter Park, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Mr. Steven Niederkorn timely appeals the denial of his petition for injunction for protection against dating violence. Both he and the Appellee, Melissa Trivino, filed petitions for protection against dating violence arising out of the same incident. At the trial on the merits of both parties’ claims, Mr. Niederkorn advised the court that he had no objection to the entry of Ms. Trivino’s injunction against him. Ms. Trivino, however, objected to an injunction being entered against her, and the case proceeded to an evidentiary hearing.

During the hearing, Mr. Niederkorn testified as to the events that occurred. The court then asked Ms. Trivino if she had any questions for Mr. Niederkorn. She had no substantive questions for him. The court then called Ms. Trivino as a witness and examined her as to the events that had occurred and did not permit Mr. Nied-erkorn to cross-examine her. The court then called Ms. Trivino’s sister to testify as to the events that occurred and again did not permit Mr. Niederkorn to cross-examine the witness. After the testimony of Ms. Trivino’s sister, the court denied Mr. Niederkorn’s injunction. It is from that order that Mr. Niederkorn appeals.

This court has dealt with this subject in the past. We recognize that trial courts are pressed for time and that typically on a domestic violence hearing day there are numerous hearings that need to be heard. As a result, trial courts tend to move them along quickly and expeditiously and sometimes by doing so deny litigants fundamental due process.

In this case, Mr. Niederkorn was entitled to a full evidentiary hearing which includes direct examination of witnesses, cross-examination of witnesses, and the presentation of any other evidence. He was denied that right. See Ohrn v. Wright, 963 So.2d 298 (Fla. 5th DCA 2007); see also Pope v. Pope, 901 So.2d 352 (Fla. 1st DCA 2005). The final judgment denying Mr. Niederkorn’s petition for protection against dating violence is reversed, and the case is remanded for a full eviden-tiary hearing in accordance with section 741.30(5)(c), Florida Statutes.

REVERSED and REMANDED for full evidentiary hearing.

TORPY, EVANDER and JACOBUS, JJ., concur.


text:
    Luis Alfredo LUCIANO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-3626.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2011.
    Luis A. Luciano, Milton, Pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

ON MOTION FOR REHEARING

We grant petitioner’s motion for rehearing, and withdraw our prior order denying relief. For the reasons explained in Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011) and Hodges v. State, 64 So.3d 142 (Fla. 5th DCA 2011), we grant the petition alleging ineffective assistance of appellate counsel, vacate petitioner’s attempted second-degree murder conviction and remand for a new trial. In granting this relief, we rely upon Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011), which expressly conflicts with the Fourth District’s decision in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So.3d 1262 (Fla.2011). Accordingly, we certify that this opinion also conflicts with Williams, which is currently being reviewed by the Florida Supreme Court.

PETITION GRANTED.

PALMER, LAWSON, and EVANDER, JJ., concur.


text:
    Megan Maynard KIRBY, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D11-695, 5D11-696, 5D11-697.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2011.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Pursuant to a plea agreement to resolve several cases, Kirby entered a no contest plea in Case 2010-00685-CFFA to the charge of sale of oxycodone. Unfortunately, the trial court pronounced that it was adjudicating Kirby guilty of sale of cocaine, rather than sale of oxycodone. The error was compounded in that the sentencing order also reflected an adjudication for sale of cocaine. As Kirby suggests, it appears that the trial judge simply misspoke. We remand for entry of an amended sentencing order to correctly reflect that Kirby’s conviction was for sale of oxy-codone.

REMANDED FOR CORRECTION OF FINAL JUDGMENT.

TORPY, EVANDER and JACOBUS, JJ., concur.


text:
    James E. CLARK, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2307.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2011.
    Robert Wesley, Public Defender, and Harold Wesley, Assistant Public Defender, Orlando, for Appellant.
    James E. Clark, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2010-CF-012797-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and MONACO, JJ., concur.


text:
    Alphonso PASSMORE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2412.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2011.

      Alphonso Passmore, Wewahitchka, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the motion for postconviction relief in Case No. 05-1310-CF-53 in the Circuit Court in and for Putnam County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, TORPY and COHEN, JJ., concur.


text:
    Kevin James COLLINS, Appellant, v. Stacie Leigh COLLINS, Appellee.
    No. 5D10-2956.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 2011.
    Kevin J. Collins, Cross City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hirsch v. Hirsch, 642 So.2d 20 (Fla. 5th DCA 1994).

SAWAYA, LAWSON and COHEN, JJ., concur.


author: SUAREZ, J.

text:
    Rene VALDES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1252.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2011.
    Rene Valdes, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the post-conviction record, shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Valdes claims that he was not advised by the trial court of the deportation consequences of his plea. The trial court’s order denying relief failed to address this claim. Because the record now before us fails to make the required showing, we reverse the order and remand for an evi-dentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

      . The plea colloquy, for example.


author: EHRLICH, MERRILEE, Associate Judge.

text:
    David McCABE, Appellant, v. FLORIDA POWER AND LIGHT COMPANY, a Florida corporation, Appellee.
    No. 4D10-1306.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.

      Kenneth D. Cooper, Fort Lauderdale, for appellant.
    Juliet M. Roulhac, Miami, for appellee.
   EHRLICH, MERRILEE, Associate Judge.

David McCabe (“Plaintiff’) appeals from a final summary judgment in favor of Florida Power and Light (“FPL”) in a negligence action where liability was stipulated to and where Plaintiff sought damages from FPL which allegedly resulted from a fire caused by a power line that fell on Plaintiffs house. We hold that: (1) the circuit court erred in granting final summary judgment, as the amount of damages is a fact still in dispute; and (2) the insurer’s and FIGA’s (the Florida Insurance Guaranty Association) satisfaction and releases do not bind Plaintiff even if FPL may be entitled to a collateral source set-off at some future point in the proceedings. We reverse and remand for the reasons expressed below.

Plaintiff received the policy limits from his homeowner’s insurer and FIGA for his losses, as well as an additional $15,000 from FPL, totaling $296,900. He never signed a full release in favor of his insurance company, FIGA, or FPL for the loss. In this action, Plaintiff sought over $600,000 in itemized damages, executed an affidavit, and gave a deposition with regard thereto.

FPL moved for summary judgment, arguing that Plaintiffs claim was barred by release, accord and satisfaction because: (1) it entered into settlement agreements with Plaintiffs insurer and FIGA, who subrogated Plaintiffs rights under the homeowner’s insurance policy and made claims to FPL for reimbursement of all claims paid to Plaintiff; (2) the insurer and FIGA substituted themselves in the place of Plaintiff and as subrogees for Plaintiff, both executing release agreements accepting these amounts in full satisfaction of their respective claims; and (3) Plaintiff received $297,000 for all damages related to the fire.

Plaintiff opposed the motion, argued that the amount of damages are in dispute, and delineated the specific amount of damages being claimed, which differed substantially from the payments he received to date, and filed an affidavit with a delineated list in support thereof. FPL conceded, at the hearing, that not all of the items delineated by Plaintiff were damages already addressed by FPL. Further, Plaintiff challenged FPL’s stance that the insurer and FIGA stood in his shoes, as subro-gees, for all purposes, thus ending his claim for additional damages because the insurer and FIGA entered into a release, accord and satisfaction with FPL in the fire incident.

The circuit court granted FPL’s motion for summary judgment. First, the circuit court reasoned that Plaintiff was paid for his claims prior to filing this action. Second, the circuit court stated that when the insurer and FIGA subrogated the rights of Plaintiff to recover monies paid out by them to Plaintiff from FPL, and upon receipt of such reimbursement executed release, accord and satisfaction, they stood in Plaintiffs shoes for that, as well. Finally, the circuit court found that Plaintiffs claim is the same as that already paid to him and if there are any additional damages not previously contemplated by the prior payments and settlements, they arise out of the same fire and are specifically covered by the releases entered into by Plaintiffs “subrogees.” Plaintiff filed a motion for rehearing, which was denied. This appeal followed.

Orders granting summary judgment are reviewed de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010).

A summary judgment can be affirmed only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.” Lindsey, 50 So.3d at 1206. Summary judgment is proper only where the facts are “so crystallized” that nothing remains but questions of law. Tolan v. Coviello, 50 So.3d 73, 74 (Fla. 4th DCA 2010). We conclude that the circuit court erred in granting final summary judgment, as the amount of damages was clearly a factual issue still in dispute.

In addition, the insurer’s and FIGA’s satisfaction and releases do not bind Plaintiff even if FPL may be entitled to a collateral source set-off at some future point in the proceedings. An insurer and successor in interest may subrogate to the rights of its insured but subrogation “is not available to an extent greater than the amount paid by the insurer, and then only after the insured has been fully indemnified.” DeCespedes v. Prudence Mut. Cas. Co. of Chi., Ill., 193 So.2d 224, 227 (Fla. 3d DCA 1966), cert. denied, 202 So.2d 561 (Fla.1967).[T]hey may execute a release, accord and satisfaction for themselves but not for their insured. Such is not binding on the insured. In the case at bar, damage claims may be in excess of policy limits, or such claims may fall outside of the purview of the insurance policy or otherwise. FPL’s negotiation with and reimbursement of the insurer and FIGA, and securing a release and satisfaction from them, is an agreement separate and apart from any additional damages dispute stemming from the fire incident between Plaintiff and FPL.

For the reasons expressed above, we reverse and remand to the circuit court for further proceedings consistent with this opinion.

Reversed and Remanded.

WARNER and POLEN, JJ., concur.


author: STEVENSON, J.

text:
    VMD FINANCIAL SERVICES, INC. and BPS R.E. Holdings LLC, Appellants, v. CB LOAN PURCHASE ASSOCIATES, LLC, a New Jersey limited liability, AJ Petroleum II, LLC, a Florida Limited liability company, Flovest, LLC, a Florida limited liability company, Robert Half International, Inc. d/b/a Robert Half Legal and d/b/a The Affiliates a/k/a Affiliates, a Delaware Corporation qualified to do business in Florida, David Hayes, Rosalee Rogovin, and Unknown Tenant, Appellees.
    No. 4D10-1802.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.

      Peter J. Sosin and Alen H. Hsu of Sosin & Hsu, P.L., Boca Raton, for appellants.
    Steven S. Newburgh of Steven S. New-burgh, P.A., Edgewater, New Jersey, for appellee CB Loan Purchase Associates, LLC.
   STEVENSON, J.

This case began with a mortgage foreclosure complaint filed by CB Loan Purchase Associates, LLC (“CB Loan”), against the first mortgagor, AJ Petroleum II, LLC (“AJ Petroleum”), and junior lien-holders, VMD Financial Services, Inc. (“VMD”) and BPS R.E. Holdings, LLC (“BPS”). The trial court subsequently entered a final judgment of foreclosure pursuant to a settlement agreement entered into between only CB Loan and AJ Petroleum. This appeal was filed by VMD and BPS. Because VMD and BPS were not parties to the settlement agreement, we reverse.

In its complaint, CB Loan sought to foreclose upon a first mortgage that it held on the subject property. VMD and BPS both held subordinate interests in that property. Subsequent to filing the complaint, CB Loan, AJ Petroleum, VMD and BPS entered into a settlement agreement. The settlement agreement acknowledged that VMD and BPS held junior mortgages and granted BPS the right to receive notices of default, as well as the right to cure. The agreement was entered as an agreed order on April 28, 2009.

On February 3, 2010, CB Loan filed a motion to enforce the settlement agreement and to re-institute the foreclosure action. At the hearing held on this motion, and before the parties had presented any evidence, CB Loan stated that it was prepared to announce on the record the terms of a new settlement that it had reached with AJ Petroleum. VMD and BPS informed the trial court that they had not agreed to any new settlement agreement; however, the trial court permitted the new agreement to be read into the record. The new agreement called for entry of a final judgment of foreclosure and granted an entity designated by AJ Petroleum a five-year option to purchase the property. VMD and BPS objected to this and requested the opportunity to defend their interests in the property and to present evidence of their attempts to cure. The trial court declined this request, adopted the new settlement agreement and issued a final judgment of foreclosure. The property was subsequently sold at a judicial sale. VMD and BPS now appeal, arguing that preventing them from defending their interest in the property denied them due process.

“Whether the trial court has complied with the guarantees of due process is subject to de novo review.” Dep’t of Revenue ex reí Poynter v. Bunnell, 51 So.3d 543, 546 (Fla. 1st DCA 2010). Due process requires that a party ‘“be given ... a real opportunity to be heard and defend in an orderly procedure, before judgment is rendered against him.’ ” Burch v. City of Lakeland, 891 So.2d 654, 656 (Fla. 2d DCA 2005) (quoting Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 960 (Fla.1991)). VMD and BPS were completely denied the opportunity to defend their interests in the property. Further, VMD and BPS were not parties to the new settlement agreement and did not agree to, nor were they bound by, its terms. Cf Seminole Elec. Co-op., Inc. v. Dep’t of Envtl. Prot., 985 So.2d 615, 621 (Fla. 5th DCA 2008) (“As a general rule,

... stipulations are binding on the parties who enter them.... ”). Thus, entry of the final judgment of foreclosure was error because it adjudicated the rights of VMD and BPS without allowing them the opportunity to defend their interests. See, e.g., Morroni v. Peeples, 872 So.2d 366, 367 (Fla. 2d DCA 2004) (reversing order of dismissal that occurred pursuant to stipulation agreement because the appellant was not a party to the stipulation and was not bound by it). Our reversal of the final judgment of foreclosure renders sale of the property invalid. See, e.g., Haren v. Sundie, 233 So.2d 417, 418 (Fla. 3d DCA 1970) (“[A] sale pursuant to a judgment which has been reversed is not a valid sale.”).

Reversed.

GROSS, J., and STREITFELD, JEFFREY E., Associate Judge, concur.


author: ROTHENBERG, J.

text:
    The STATE of Florida, Appellant, v. Pedro GIL, Appellee.
    No. 3D10-150.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2011.

      Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

The State of Florida appeals the trial court’s order dismissing the information charging Pedro Gil (“the defendant”) with unlawfully driving a motor vehicle while his driver’s license is revoked as a habitual traffic offender pursuant to section 322.34(5), Florida Statutes (2009), based on double jeopardy grounds. Because we agree with the Fourth District Court’s decision in State v. Cooke, 767 So.2d 468 (Fla. 4th DCA 1999), that convictions for violation of sections 322.34(2) and (5) do not constitute double jeopardy, and for the reasons stated herein, we reverse.

The defendant was arrested and issued several citations for driving with a revoked driver’s license pursuant to section 322.34(5) (habitual traffic offender revocation), driving with a suspended driver’s license pursuant to section 322.34(2), and various other traffic offenses. On October 27, 2009, the defendant was formally charged with violating section 322.34(2), a misdemeanor, and other traffic offenses in county court, and with violating section 322.34(5), a felony, in circuit court. The defendant pled guilty to violating section 322.34(2) in county court on October 27, 2009, and then moved to dismiss the felony charged under section 322.34(5) filed in circuit court, on double jeopardy grounds. The trial court granted the defendant’s motion, finding that convictions under section 322.34(2) and 322.34(5) would constitute double jeopardy.

Our analysis is governed by section 775.021(4), Florida Statutes (2009), codifying the double jeopardy guidelines established by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and the Florida Supreme Court’s decision in Valdes v. State, 3 So.3d 1067, 1076 (Fla. 2009), adopting Justice Cantero’s special concurrence in State v. Paul, 934 So.2d 1167, 1176 (Fla.2006), concluding that the legislative intent in section 775.021(4)(b)(2) was to “disallow separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees.”

Section 775.021 provides in relevant part:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

A review of subsections (2) and (5) of section 322.34 reflect that violations do not require identical elements of proof because they include elements not found in the other, and that neither offense is a lesser included offense of the other. See also Cooke, 767 So.2d at 469 (concluding that subsections 322.34(2) and (5) contain elements not found in the other offense, and therefore convictions for both offenses do not constitute double jeopardy). Thus, the issue we must resolve is whether these offenses are “degrees of the same offense” under section 775.021(4)(b)(2) or “degree variants” under Valdes.

At first blush, section 322.34(5), dealing with habitual traffic offenders, appears to be a degree variant of section 322.34(2), dealing with drivers who have had their licenses canceled, suspended, or revoked for a reason other than being a habitual traffic offender, because they are found in the same statute. However on closer inspection, it is not, and, in fact, these offenses have little in common except they both provide for punishment for driving while a driver’s license or privilege is revoked.

Section 322.34 provides in relevant part as follows:

(1) Except as provided in subsection (2), any person whose driver’s license or driving privilege has been canceled, suspended, or revoked, except a “habitual traffic offender” as defined in s. 322.264, who drives a vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked is guilty of a moving violation, punishable as provided in chapter 318.
(2) Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
(a) A first conviction is guilty of a misdemeanor of the second degree....
(b) A second conviction is guilty of a misdemeanor of the first degree....
(c) A third or subsequent conviction is guilty of a felony of the third degree....
(5) Any person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree....

Subsection (5) is not a degree variant of subsection (2) because: subsection (2) punishes for driving with a canceled or revoked license, whereas subsection (5) only punishes for driving with a revoked license; subsection (2) requires that the driver have knowledge that his license was canceled, suspended, or revoked, whereas subsection (5) does not require knowledge; and subsection (2) provides for different penalties based on the number of convictions the driver has for violating section 322.34 (sixty days incarceration for a first conviction, 364 days incarceration for a second conviction, and five years incarceration for a third or subsequent conviction), whereas a violation under subsection (5) is punishable up to five years incarceration regardless of the number of times the driver has been convicted for this offense. Additionally, subsection (2) specifically ex-eludes habitual traffic offenders under subsection (5) from its application: “Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264 [the habitual traffic offender statute].... ” § 322.34(2), Fla. Stat. (2009) (emphasis added).

Subsection (5) is also not a degree variant of subsection (2) because a violation of subsection (2) is not a “moving violation,” whereas a violation of subsection (5) is a “moving violation,” see § 322.34(1); and the cancellation, suspension, or revocation of a driver’s license under subsection (2) is based on the number of “points” a driver has accumulated pursuant to the point system provided in section 322.27 over a certain period of time, whereas subsection (5) is based on the number of convictions for the offenses listed in sections 322.264(1) and (2) over a five-year period.

When a driver’s license is suspended under section 322.34(2) it is because the driver has accumulated a specific number of “points” or upon a conviction for certain offenses. Section 322.27(3) provides for the assessment of points: four points for reckless driving; six points for leaving the scene of an accident resulting in property damage of more than $50; six points for driving at an unlawful speed resulting in a crash; four points for passing a stopped bus; various points for driving in excess of certain posted speed limits; four points for violating certain traffic control devices; three points for all other moving violations; three points for any conviction under section 403.413(6)(b); and four points for any conviction under section 316.0775(2). Pursuant to section 322.27(3) when a licensee accumulates a certain number of points during a specific period of time, his license shall be suspended for a certain number of days:

(a) When a licensee accumulates 12 points within a 12-month period, the period of suspension shall be for not more than 30 days.
(b) When a licensee accumulates 18 points, including points upon which suspension action is taken under paragraph (a), within an 18-month period, the suspension shall be for a period of not more than 3 months.
(c) When a licensee accumulates 24 points, including points upon which suspension action is taken under paragraphs (a) and (b), within a 36-month period, the suspension shall be for a period of not more than 1 year.

Section 322.27 also provides for suspension of a driver’s license where mandated by law, for example: after a conviction for violation of a traffic law that resulted in a crash that caused the death or personal injury of another or property damage in excess of $500, under section 322.27(1)(b); if the driver is incompetent to drive a motor vehicle, under section 322.27(l)(c), etc.

Whereas suspension or revocation under subsection (2) of section 322.34 is based on the number of accumulated points or the commission of certain offenses, subsection (5) is based on the number of traffic convictions during a specified period of time. Subsection (5) provides that “[a]ny person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree.... ” Section 322.264, the habitual traffic offender statute, provides that “[a] ‘habitual traffic offender’ is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period.”

Because suspension or revocation under subsection (2) of section 322.34 is based on entirely different conduct and on a completely different criteria than a revocation under subsection (5), subsection (5) cannot be a degree variant of subsection (2), and therefore convictions for violating subsection (2) and subsection (5) do not constitute double jeopardy. Subsection (2) punishes those who drive while their license is canceled, suspended, or revoked as a result of having committed certain enumerated offenses or by accumulating a certain number of points over a specified period of time. Subsection (5) punishes those who drive while their license is revoked as a result of being convicted of a certain number of the specified offenses. Each time a driver commits a subsection (2) violation, he is assessed moving violation points and the penalty increases. On the other hand, driving on a revoked license under subsection (5) does not result in the award of additional points nor an increased penalty.

Based on the reasons articulated in this opinion, we reverse the trial court’s order dismissing the information charging the defendant with driving a motor vehicle while his driver’s license is revoked as a habitual traffic offender pursuant to section 322.34(5).

Reversed and remanded.


author: SHEPHERD, J.

text:
    UNITED TEACHERS OF DADE, Appellant/Cross-Appellee, v. The SCHOOL DISTRICT OF MIAMI-DADE COUNTY, etc., et al, Appellees/Cross-Appellants.
    No. 3D11-163.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2011.

      Phillips, Richard & Rind and Patricia Ireland, for appellant/cross-appellee.
    National Right to Work Legal Defense Foundation and Milton L. Chappell and Erin E. Smith, Springfield, Pro Hac Vice; Sachs Sax Caplan and Robert Boyd, Tallahassee, for appellees/cross-appellants.
    Before RAMIREZ and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This case arises out of a refusal by the School District of Miami-Dade County (the District) to permit a non-union teacher from having representation at a performance review proceeding. If the teacher had been a union member, he would have been permitted to have representation. The appellant, United Teachers of Dade (UTD), insists the District acted alone. The teacher appellee, Shawn Beightol, argues the District did not act alone, but rather UTD “caused” the District’s action, and UTD’s actions were unlawful within the meaning of sections 447.501(2)(a) and (b), Florida Statutes (2010). After taking testimony, a Commission-designated hearing officer agreed with Beightol. The Florida Public Employees Relations Commission (PERC) found competent substantial evidence to support the recommendation of the hearing officer and entered a final order adopting the recommendation. We affirm this order. We disagree with the hearing officer and PERC only in their decision not to award attorney fees to Beightol for his trouble.

A brief summary of the procedural background and history of this case is necessary to explain our decision.

Procedural Background and History

UTD is the exclusive bargaining agent for all teachers employed by the District, including non-union members. The District and UTD were signatories to a collective bargaining agreement (CBA) from July 1, 2006, to June 30, 2009, and are signatories to a successor CBA in effect from July 1, 2009, to June 30, 2012. Both the predecessor and successor contracts provide for eonferences-for-the-record (CFRs), which are formal meetings between an employee and his or her worksite administrator or representative from the Office of Professional Standards (OPS) to address performance standards or the results of an investigation. Article XXI, “Employee Rights and Due Process, Subsection 1A., Conference-for-the-Record,” states, in pertinent part:

2. Any employee summoned ... for a Conference-for-the-Record which may lead to disciplinary action or reprimand, shall have the right to request Union representation and shall be informed of this right. If Union representation is provided, the employee shall have the right to be accompanied at the Conference-for-the-Record by up to two representatives of the Union and shall be informed of this right.
3. Employees shall be given two days’ notice and a statement of the reason for the conference, except in cases deemed to be an emergency. When Union representation is requested, and the employee is to be represented by the Union, the Conference-for-the-Record must be scheduled at a time when Union representation (building steward, where appropriate) can be present.
5. Where Union representation is provided herein, the employee shall be represented by the bargaining agent. The bargaining agent shall have the right to refuse representation in accordance with its own internal, nondiscriminatory rules. An employee may not be represented by an attorney in a eonference-for-the-record.

On September 29, 2009, Beightol received a notice summoning him to a CFR scheduled for October 7, 2009. Upon receiving the notice, Beightol requested representation by Professional Educators Network (PEN), a professional organization of which Beightol was a member. Beightol also requested representation from UTD, but UTD’s Deputy Chief of Staff denied representation because Beigh-tol was not a dues-paying member of the union. OPS also denied Beightol’s request to have a PEN representative, stating he had a right to request union representation, but that any non-union representative would have to sit in the waiting area and could periodically consult with Beightol outside the hearing room. At the CFR on October 7, Beightol’s non-attorney PEN representative was refused entry to the hearing room. Beightol’s unfair labor practice charges followed.

Analysis

The charges in this case were brought pursuant to sections 447.501(2)(a) and (b) of the Florida Public Relations Act, Chapter 447, Part II, of the Florida Statutes. These sections of the Act prohibit a public employee organization from:

(a) Interfering with, restraining, or coercing public employees in the exercise of any of their rights guaranteed them under [Chapter 447, Part II, of the Florida Statutes]....
(b) Causing or attempting to cause a public employer to discriminate against an employee because of the employee’s membership or non-membership in an employee organization ....

§ 447.501(2).

The issue on appeal is whether substantial competent evidence supports the findings of the hearing officer. If the record contains substantial competent evidence in support of the findings, neither PERC nor an appellate court can overturn the hearing officer’s findings based upon disputed issues of fact. Boyd v. Dep’t of Revenue, 682 So.2d 1117, 1118 (Fla. 4th DCA 1996).

UTD first seeks refuge in the agreement itself, emphasizing that the provision it negotiated does not require the District’s policy of excluding non-union representatives from CFRs. Here, UTD fails to appreciate its legal obligation to the bargaining unit. UTD is the bargaining agent for all employees in the bargaining unit, union members and non-union members alike. UTD may not prefer its dues-paying members over non-dues-paying members in its representation and negotiations. See § 447.501(2)(b). By the same token, it cannot in good faith negotiate, maintain or condone a contract provision which it knows to create and perpetuate a system which requires employees to become UTD members to obtain a benefit. See § 447.501(2)(b); Spiegel v. Dade Cnty. Police Benevolent Ass’n, 14 FPER ¶ 19092 (1988). Article XXI, section 1A, subsections 2, 8, and 5 of the collective bargaining agreement provide a benefit available only to UTD dues-paying members in that only dues-paying UTD members are entitled to have up to two UTD representatives at a CFR. UTD neglected to negotiate a comparable contractual right for bargaining unit employees who are not dues-paying UTD members. The hearing officer found, and PERC agreed, that UTD’s motivation in negotiating, administering, and maintaining Article XXI, section 1(A) of the CBA was “to create and perpetuate a system which requires employees to become UTD members to obtain the right of representation at a CFR.” Competent substantial evidence supports the hearing officer’s findings. ■

The contract provision at issue in this case has been part of the CBA since some time prior to 1995. UTD Deputy Chief of Staff, Michael Molnar, testified it has long been UTD policy to refuse union representation to non-union members who are summoned to a CFR. Joyce Castro, a district director of OPS, testified that the District prohibits non-union employees from having representation at a CFR. Deputy Chief of Staff Molnar confirmed that UTD is well aware the District’s policy of refusing representation to non-union members of the bargaining unit results in a lack of representation for non-union members at a CFR. Furthermore, Beightol’s own testimony confirms this practice has long existed and been condoned by UTD. In February 2008, Beightol, then a UTD steward, attempted to represent a non-UTD member at a CFR. UTD would not allow him to represent the non-member during the conference-for-the-record and neither would the District.

UTD next argues it had nothing to do with the District’s policy of not allowing employees who are not union members to have a non-union representative at their CFRs. UTD relies on the fact that no evidence has been found of specific discussions between UTD and the District relating to the implementation of the discriminatory provision. However, as UTD must know, “unless the employer is a latter day George Washington, [direct evidence of] discrimination is as difficult of proof as who chopped down the cherry tree.” Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 638 (5th Cir.1985); see also Sch. Bd. of Leon Cnty. v. Hargis, 400 So.2d 103, 107 (Fla. 1st DCA 1981) (finding direct evidence of discriminatory intent is “seldom present”). For this reason, it is well established in the field of discrimination that circumstantial evidence evaluated in the light of common experience may be relied upon to establish discriminatory motive. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir.1987) (noting that “[t]he McDonnell Douglas-Burdine proof structure ‘was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination’ ”).

In this case, the plain language of the CBA, in tandem with evidence of the District’s and UTD’s implementation of that language, results in the discriminatory conferral of a benefit on union members. OPS District Director Joyce Castro testified she understood the Article XXI “Employee Rights and Due Process” subsections at issue in this case only allow for UTD representation at CFRs, and during the years she has been a District Director, UTD had never appeared on behalf of a non-union member at a CFR. UTD Deputy Chief of Staff Michael Molnar testified that as long as he has been employed by UTD, since 1995, it has been UTD policy to refuse union representation to non-union members at a CFR, with full knowledge non-union members would have no representation at CFRs. During these years, UTD negotiated at least five successor contracts with the District. It never sought to rectify the discriminatory effect of Article XXI, section 1A on non-union members. Our task on review of the final order before us is directed to whether there is competent substantial evidence in the record to support the hearing officer’s finding of intent, approved by PERC in its Final Order, not whether there is substantial competent evidence to support a different or contrary finding. See Tamiami Trail Tours, Inc. v. King, 143 So.2d 313, 316 (Fla.1962). Based upon the record before us, we find there is substantial competent evidence in the record to support the decision of the hearing officer in this case. Only a willing suspension of belief would liberate us to accept UTD’s urging of a different or contrary finding.

Although PERC correctly determined UTD committed an unfair labor practice, it erred in denying Beightol an award of attorney fees and costs. Under section 447.503(6)(c), Florida Statutes (2010), “the commission may award to the prevailing party all or part of the costs of litigation, reasonable attorney fees, and expert witness fees whenever the commission determines that such an award is appropriate.” Such an award is appropriate where the party in violation knew or should have known that its conduct violated established law. City of Delray Beach v. Prof'l Firefighters of Delray Beach, 636 So.2d 157, 163 (Fla. 4th DCA 1994). UTD knew or should have known that its conduct in this case violated established law. Florida is a right-to-work state. Those who work in this state have a constitutionally protected right to refrain from joining a labor organization. See art. I, § 6, Fla. Const.; see also § 447.301, Fla. Stat. (2010). The Florida legislature has enacted laws expressly designed to protect public employees from interference and coercion in the exercise of this right. See § 447.501(2)(a). PERC also has been vigilant in protecting non-union members of a bargaining unit from being treated differently by their bargaining agent.

The seminal PERC decision in this area is Spiegel v. Dade County Police Benevolent Ass’n, 14 FPER ¶ 19092 (1988). In Spiegel, the Dade County Police Benevolent Association (Dade PBA) and the City of Hialeah entered into a collective bargaining agreement which allowed employees to select from one of two health insurance programs: Option A was available to any member of the bargaining unit, while Option B was available only to Dade PBA members. Option B provided benefits which were superior to those provided in Option A. In a fashion uncannily parallel to the case before us, the hearing officer in Spiegel described the central issue in the case to be

whether it is an unlawful encouragement to join the union and an act of interference, restraint or coercion of public employees’ right to ‘refrain from forming, joining or participating in an employee organization for a certified union to maintain and administer a contractual provision providing for optional health insurance exclusively for its members.’

14 FPER ¶ 109092, at 228. Applying case law rising under the National Labor Relations Act, 29 USCA sections 158(a)(1), (2), (8), and (b)(1)(A) and (2), both the hearing officer and PERC “[found] the Dade PBA guilty of committing an unfair labor practice by administering and maintaining a contract provision which provided benefits to its members which are not available to non-members.” 14 FPER ¶ 109092, at 223. Spiegel is distinguishable from our case only in that the discrimination there was apparent on the face of the collective bargaining agreement. However, as we have demonstrated, a party cannot escape judgment simply because no direct evidence is available to the party seeking relief. The evidence before the hearing officer in our case included not only a provision of the collective bargaining agreement, but also competent substantial evidence of the District’s and UTD’s implementation of the provision. Both the hearing officer and PERC correctly relied upon Spiegel in reaching their respective decisions. The logic and reasoning found in Spiegel are directly applicable to the facts of our case.

UTD argues that Spiegel is inapplicable to the knowledge element of the attorney fee and cost issue because it was decided twenty-three years ago and has not been cited by a court. However, as counsel for UTD agreed in oral argument, Spiegel is readily discoverable through computer assisted research commonly available to lawyers and law firms. We are unaware of any statute of limitations applicable to PERC decisions and opinions.

In approving the hearing officer’s decision not to award attorney fees and costs to Beightol, PERC mistakenly thought Beightol did not bring Spiegel to the attention of the hearing officer. That is not so. Beightol brought Spiegel to the attention of the hearing officer both during the proceedings and in his proposed final order. This oversight formed the substantial basis for PERC’s denial of an award of attorney fees and costs to Beightol in this proceeding. As we have shown, Spiegel is the seminal case prohibiting labor organizations from encouraging membership in a union by providing union members with superior contractual privileges. The prohibition is an intuitively obvious one, about which UTD should need little formal guidance. However, Spiegel, in the books now for twenty-three years, resolves all doubt concerning whether UTD knew or should have known it violated established law. Beightol is entitled to an award of his attorney fees and costs in this case.

Accordingly, we affirm that portion of the final order finding that UTD committed an unfair labor practice, but reverse that portion of the final order denying Beightol his attorney fees and costs.

Affirmed in part, reversed in part and case remanded with directions.

      . The UTD bargaining unit — the employees it claims to represent — includes all instructional staff, paraprofessionals, and office staff employed by the District. Sixteen thousand of these employees have elected not to join the union.

      . However, a non-union member’s representative is allowed to sit in the reception area, and the employee may consult with his or her representative in the reception area as often as the employee desires.


text:
    Donterious Marquis EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5978.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2011.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Jones v. State, 25 So.3d 681 (Fla. 1st DCA 2010).

DAVIS, VAN NORTWICK, and CLARK, JJ., concur.


text:
    J.U. and B.U., Prospective Adoptive Parents, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D11-3354.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2011.
    Randall A. Werre of Werre & Fitzgerald, P.A., Milton, for Appellants.
    Ward L. Metzger, General Counsel, Florida Department of Children and Families, Tallahassee, for Appellee.
    Kelley Schaeffer, Guardian Ad Litem Program, Tavares.
   PER CURIAM.

DISMISSED. See C.M. v. Dep't of Children & Families, 981 So.2d 1272, 1272 (Fla. 1st DCA 2008) (holding that in termination of parental rights proceeding, individuals who “were not parties to the proceedings below,” lack standing to bring an appeal). See also D.M. v. State, Dep't of Children & Family Servs., 980 So.2d 498, 498 (Fla. 2d DCA 2008) (holding that “participant” who was not a “party” lacked standing to bring appeal).

WOLF, LEWIS, and RAY, JJ., concur.


text:
    Robert WILLIAMS, Petitioner, v. STATE of Florida, and Al Lamberti, Broward County Sheriff, Respondents.
    No. 4D11-3268.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 2011.
    Howard Finkelstein, Public Defender, and Tamara L. Curtis, Assistant Public Defender, Fort Lauderdale, for petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for respondent, State of Florida.
   PER CURIAM.

Petitioner seeks a writ of habeas corpus challenging his pretrial detention for third-degree felony failure to return a hired vehicle. See § 817.52(3), Fla. Stat. (2009). The trial court ordered petitioner held without bond following a failure to appear for a hearing. Petitioner argues that his failure to appear was not willful and that the trial court failed to make a finding that no reasonable conditions could secure petitioner’s presence at trial. We grant the petition.

After this court’s decision in Williams v. State, 59 So.3d 387 (Fla. 4th DCA 2011), where this court quashed a prior pretrial detention order, the trial court released petitioner on pretrial supervision.

Thereafter, petitioner’s private counsel moved to withdraw. The court granted the motion at a hearing and a status hearing was set for later that month. Petitioner did not appear at the status hearing, and the court issued a no-bond capias. When petitioner appeared at his previously-scheduled calendar call hearing, the court took him into custody.

Petitioner moved to set bond. Petitioner testified that he had not received notice of the hearing on counsel’s motion to withdraw, or the status hearing, and was aware of the previously-scheduled calendar call hearing only. The notice of the status hearing was sent to a residence where he no longer lived and a business address where he was no longer employed. He was not even aware that counsel had withdrawn.

The state does not dispute petitioner’s testimony that he continuously followed all conditions of his pretrial release supervision, including calling his pretrial release officer two times per week, and that he advised his pretrial release officer of his current address. Petitioner testified that, at the prior bond hearing, he had provided the court with an address where he would be residing. The transcript of the hearing, however, does not reflect that the defendant provided his address on the record.

The trial court refused to release petitioner. The court recalled that petitioner’s former counsel had apologized for having previously sought habeas corpus and indicated at the hearing on the motion to withdraw that he had been unable to contact petitioner, who was “in the wind.” The court found that the mailing of notice to petitioner’s last known addresses was sufficient. The court did not believe that defendant would appear.

Criminal defendants are presumed innocent and are generally entitled to pretrial release. To order pretrial detention based on a failure to appear, the court must find that the failure to appear was willful and that the constitutional criteria are met, that “no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process.” State v. Blair, 39 So.3d 1190, 1192 (Fla.2010) (quoting art. I, § 14, Fla. Const.). We review an order of pretrial detention for an abuse of discretion. See Watkins v. Lamberti, — So.3d -, 2011 WL 1084968 (Fla. 4th DCA 2011).

No evidence was presented that petitioner was actually aware of the hearing at issue. The court appears to have concluded that the mailing of notice to the addresses on file with the clerk was sufficient to establish constructive notice. Petitioner, however, advised his pretrial supervision authorities of his new address and remained in contact with them. Nothing in the record indicates that petitioner should have known he needed to do more, and nothing disputes his testimony.

We are sympathetic to the trial judge’s view that a pretrial releasee should have a duty to maintain a current address with the court. But, neither the court nor the state identified a legal source imposing an express duty upon a pretrial releasee to advise the court clerk of a change in address. Florida Rule of Criminal Procedure 3.131(e)(2) requires a pretrial releas-ee to “appear to answer the charges before the court in which he or she may be prosecuted and submit to the orders and process of the court and ... not depart without leave.” This imposes no such duty, in contrast to other procedural rules that, in other contexts, do. Cf. Fla. R. Juv. P. 8.224(b) (requiring parties to provide a permanent address which then imposes a duty on the party to keep the court informed of any address change); Fla. Fam. L. R. Form 12.915 (Notice of Current Address form, to be provided to clerk of court).

Without a duty to maintain a current address with the court, mailing a notice to petitioner’s last known addresses was insufficient to notify him of the status hearing. Based on this record, we cannot say that petitioner’s failure to appear at the status hearing was willful.

Even if we were to accept the" clerk’s mailing of notice to petitioner’s last known address as sufficient in this case, the trial court did not find that “no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.” § 907.041(4)(c)7., Fla. Stat. (2011). To the extent the trial court implicitly made this determination, we conclude that, considering the totality of the evidence as it presently stands, the trial court abused its discretion. Petitioner has complied with the requirements of his pretrial supervision, such as surrendering his passport, and has maintained phone contact with his pretrial release officer twice per week. He appeared at the regularly-scheduled calendar call hearing. The prior pretrial release conditions have already proven sufficient to secure petitioner’s presence. Nothing in the record suggests that petitioner poses any threat of physical harm to the community.

We grant the petition and direct the trial court to release petitioner with reasonable conditions. This opinion should not be read to limit the trial court’s ability to take additional evidence or impose additional conditions on pretrial release.

Petition granted.

GROSS, HAZOURI and GERBER, JJ„ concur.


author: EMAS, J.

text:
    Arlides BERTOT, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D11-62.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 2011.
    Rehearing Denied Sept. 28, 2011.

      Erik W. Scharf, and Wayne R. Atkins, for appellant.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for appellees.
    Before WELLS, C.J., and SHEPHERD and EMAS, JJ.
   EMAS, J.

Arlides Bertot (“Bertot”) appeals a final order of the Unemployment Appeals Commission (“UAC”) which affirmed the decision of the Agency for Workforce Innovation (“the Agency”) to deny Bertot unemployment compensation benefits, based upon the untimely filing of an appeal from the initial determination. The issue presented in this case is whether an untimely appeal from an initial determination is rendered timely by the issuance of a redetermination, pursuant to section 443.151(3)(e)(3), Florida Statutes. We hold that it is not, and affirm the decision of the UAC.

Bertot injured his back in July 2010, and a physician ordered two weeks of rest. On July 12, 2010, Bertot telephoned his employer, Sun Commodities, to advise of his physical condition and his doctor’s orders. On or about July 18, 2010, Bertot went to his workplace to deliver a physician’s note to his manager. Upon arriving at the office, the supervisor told Bertot that his employment had been terminated.

Bertot filed for unemployment benefits on July 18, 2010. The Agency mailed a notice of determination (“Initial Determination”) on August 13, 2010, advising Ber-tot benefits were not payable, and that “the determination will be final unless an appeal is filed within 20 calendar days after the [August 13, 2010] mailing date.” Although Bertot filed an appeal from the Initial Determination, he concedes he did so untimely, filing it several days after the expiration of the twenty-day deadline. On October 1, 2010, the Agency mailed Bertot a “Notice of Redetermination” (“Redeter-mination”), which indicated that the Initial Determination remained unchanged, and benefits were not payable to Bertot. Although the Redetermination provided notice to Bertot that he had twenty days to file an appeal from the Redetermination, he did not file an appeal of the Redetermi-nation.

On October 27, 2010, the appeals referee held a telephone hearing. The first (and, as it turned out, the only) issue addressed was whether Bertot filed a timely appeal from the Initial Determination. The referee concluded that Bertot’s appeal was not filed within twenty days of the Initial Determination’s mailing, and accordingly, dismissed the appeal for lack of jurisdiction. The UAC affirmed this decision, and this appeal followed.

Bertot argues that a plain reading of section 443.151(3)(e)(3), Florida Statutes (2010), renders his appeal timely. That subsection provides:

If an appeal of an original determination is pending when a redetermination is issued, the appeal unless withdrawn is treated as an appeal from the redetermi-nation.

Although Bertot concedes that his appeal of the Initial Determination was untimely, he argues that this untimely appeal was “pending” at the time the Agency issued its Redetermination, and therefore, under the statute, this court is required to treat his untimely appeal from the Initial Determination “as an appeal from the Re-determination” and, thus, a timely appeal.

UAC argues that an untimely appeal from the Initial Determination cannot be transformed into a timely appeal by the issuance of a Redetermination. It argues the only logical interpretation of the term “pending” in section 443.151(3)(e)(3) is a timely pending appeal. Because the failure to timely file the appeal is jurisdictional in nature, we agree that the statute can only properly be construed as requiring the pending appeal to be timely filed.

Section 443.151(3)(c), Fla. Stat., provides that a “determination is final unless within 20 days after the mailing of the notices to the parties’ last known addresses, ... an appeal or written request for reconsideration is filed by the claimant....” The late filing of an appeal deprives the appeals referee of jurisdiction to consider the merits of the underlying claim. Mejia v. Cottonimages.com, Inc., 27 So.3d 688 (Fla. 3d DCA 2010); Leon v. Unemployment Appeals Comm’n, 476 So.2d 761 (Fla. 3d DCA 1985).

Bertot concedes that his appeal from the Initial Determination was untimely. This alone deprived the appeals referee of jurisdiction to consider the merits of Bertot’s claim. Pursuant to section 443.151(3)(c), Florida Statutes, the Initial Determination was final. Because the untimely appeal from that Initial Determination could not confer jurisdiction, we hold that the issuance of a Redetermination could not cure this jurisdictional bar, or provide Bertot with greater rights than he otherwise would have been afforded had the Rede-termination never been issued.

Affirmed.

      . There is nothing in the record to indicate why a Redetermination was issued, nor is there any record evidence that Bertot requested such a Redetermination. The Redetermi-nation was, in all material respects, identical to the Initial Determination.

      . Although the issue appears to be one of first impression, at least one district court of appeal has implicitly held that a pending appeal from an initial determination necessarily means a pending and timely appeal. Brooks v. Unemployment Appeals Comm’n, 760 So.2d 1108, 1110 (Fla. 4th DCA 2000) (noting that "because Brooks' appeal, which was timely filed, ... was still pending on the date the redetermination issued and because he never withdrew his notice of appeal, his appeal must be treated 'as an appeal from such rede-termination.”).

      . Although case law has carved out a narrow exception allowing an untimely appeal to proceed based upon due process considerations, see, e.g., Leichering v. Unemployment Appeals Comm’n, 854 So.2d 850 (Fla. 5th DCA 2003) (permitting untimely appeal where the notice of determination appealed from was not received by claimant within the time for filing an appeal), such an exception is inapplicable here. The appeals referee in fact conducted a timeliness hearing and determined that claimant failed to establish any good cause for the untimely appeal from the Initial Determination. Bertot does not appeal this factual finding.