text:
    QUEST DIAGNOSTICS INCORPORATED, Petitioner, v. Maria RAPIO, Respondent.
    No. 3D10-1525.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.
    Rehearing Denied Feb. 17, 2011.
    Marlow Connell Abrams Adler Newman & Lewis and Philip Glatzer, Coral Gables, for petitioner.
    Greenberg & Stone and Stewart G. Greenberg, Miami, for respondent.
    Before SUAREZ, CORTIÑAS, and LAGOA, JJ.
   SUAREZ, J.

Quest Diagnostics Incorporated (“Quest”) petitions for a writ of certiorari to quash discovery orders compelling responses to First Supplemental Interrogatories, Request to Produce and Subpoena Duces Tecum. We have jurisdiction. See Baptist Hosp. v. Garcia, 994 So.2d 390 (Fla. 3d DCA 2008). We deny in part and grant in part the petition for writ of certio-rari.

Maria Rapio (“Rapio”) filed an amended complaint against Quest, two counts of which were for negligence and medical malpractice. The amended complaint alleges that Quest was negligent in the handling of Rapio’s tissue sample which was sent to the Quest laboratory for pathology analysis. Quest does not dispute that Ra-pio’s tissue sample, which later proved to be malignant, got mixed up with a tissue sample that was not malignant from another individual (“Patient X”). Seven months after Rapio received the incorrect pathology report stating that her tissue sample was not malignant, she was informed of the mistake and began treatment. Rapio alleges that she was informed incorrectly that her tissue sample was not malignant and that the delay in informing her caused her treatment to be more extensive.

Rapio propounded extensive discovery, including requests for the name of Patient X, all of Patient X’s treating doctors, and “all of the medical care providers known ... to have treated Patient X.” Rapio also moved to inspect and photograph Quest’s premises. Quest objected to producing this information on relevancy grounds and on grounds that the information was privileged and confidential medical information. Rapio moved to compel production of the information concerning Patient X. The trial court sustained Quest’s objection to the production of the records pertaining to “the tissue sample that was mixed up with [Rapio’s] tissue sample” and to revealing the name of Patient X, but ordered Quest to provide the “names and last known addresses of all medical providers known by [Quest] to have treated Patient X.” The trial court also granted Rapio’s motion to photograph the premises of Quest.

We deny Quest’s request for a petition for writ of certiorari as to those portions of the trial court’s orders that require production of information from the medical records of Patient X, while protecting patient X’s identity, which could lead to discovery of evidence admissible at trial and is relevant to the mix up of the tissue samples. See Amente v. Newman, 653 So.2d 1030 (Fla.1995); Sachs v. Innovative Healthcare, Inc., 799 So.2d 355 (Fla. 3d DCA 2001) (holding that the trial court may fashion an order that provides discovery of non-party patients by redacting the identifying information); see also Tanchel v. Shoemaker, 928 So.2d 440 (Fla. 5th DCA 2006).

We grant certiorari as a departure from the essential requirements of law and quash the portion of the trial court’s orders requiring production of the names and last known addresses of all medical providers known by Quest to have treated Patient X. Such disclosure is not only irrelevant, but would also lead to the name of Patient X which is protected from discovery in this litigation. Likewise, we quash the portion of the trial court’s order allowing Rapio’s attorney and photographer to enter onto Quest’s premises, as it is a departure from the essential requirements of law. The laboratory contains records and tissue samples, including the names of numerous individuals, which could be photographed and observed; thereby, invading the privacy of non-party patients. The order allows the production of non-relevant discovery that would invade the privacy of non-parties which would cause irreparable harm to non-parties and departs from the essential requirements of law. See Nat’l Sec. & Cas. v. Dunn, 705 So.2d 605, 608 (Fla. 2d DCA 1998) (holding that compelling production of non-party medical records is a departure from essential requirements of law where right of privacy not overcome).

Petition for writ of certiorari denied in part and granted in part.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carlos ASPIAZU, Appellant, v. Christina Aspiazu RINGEL, Appellee.
    No. 5D10-1059.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    Rehearing Denied Feb. 18, 2011.
    Carlos Aspiazu, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Carlos Aspiazu appeals the entry of a final judgment of injunction for protection against domestic violence. Because no transcript of the lower court proceedings was provided, the record is inadequate to demonstrate reversible error. The lower court’s determination is therefore affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

AFFIRMED.

LAWSON, EVANDER and COHEN, JJ., concur.


text:
    Guy BLAIN, Petitioner, v. Maria BLAIN, Respondent.
    No. 3D11-111.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2011.
    Rehearing Denied March 10, 2011.
    Louis C. Arslanian, Hollywood, for petitioner.
    Kim A. Marjenhoff, Fort Lauderdale, for respondent.
    Before SHEPHERD, LAGOA, and EMAS, JJ.
   PER CURIAM.

Denied. See Select Builders of Fla., Inc. v. Wong, 367 So.2d 1089, 1091 (Fla. 3d DCA 1979) (“[W]e find the court to be correct in striking the voluntary dismissal and reinstating the matter to prevent a fraud on the court.”); accord Tobkin v. State, 777 So.2d 1160, 1163-64 (Fla. 4th DCA 2001) (“Florida courts have determined that this right to dismiss [voluntarily] is almost absolute. An exception to this absolute right arises where the party taking the voluntary dismissal perpetrates a fraud on the court.”) (citations omitted).


author: SALTER, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. William SWINDOLL and Fernando Lopez, Appellees.
    No. 3D10-487.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 2011.
    Cooney Trybus Kwavnick Peets, and Warren B. Kwavnick, Fort Lauderdale, for appellant.

      Kimberly L. Boldt, Hollywood; Hoffman & Hoffman, and John D. Hoffman, Miami, for appellees.
    Before CORTIÑAS, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

State Farm Mutual Automobile Insurance Company appeals an order assessing attorney’s fees against it as a sanction for a mistrial caused by its expert witness, Dr. Stephen Wender. Finding that there is no evidence, and no finding, of bad faith on the part of State Farm itself, we reverse the order. We do so without prejudice, however, to the appellee’s right to seek the imposition of such a sanction against Dr. Wender personally. In the event that such a motion is made after remand, Dr. Wender must be afforded an opportunity to present evidence in defense of his actions and any legal authority he considers pertinent to that defense.

Background

William Swindoll was insured with State Farm. His vehicle was totaled in an accident with an uninsured vehicle; he was not at fault. When the policy’s personal injury protection (PIP) benefits were exhausted, State Farm refused to pay any further bills. Swindoll sued State Farm for uninsured motorist benefits. State Farm’s defense theory at trial was that Mr. Swindoll was not believable and that he did not actually suffer injuries as a result of the accident.

State Farm called Dr. Wender on the second day of trial. Dr. Wender acknowledged that over $1,000,000 had been paid by State Farm for his expert medical consultations and testimony during the three calendar years preceding his examination of Mr. Swindoll. While being cross-examined by Mr. Swindoll’s counsel, Dr. Wen-der ignored the questions asked of him and delivered his own, unsolicited opinions regarding Mr. Swindoll. On several occasions, the trial court admonished Dr. Wen-der and instructed him to answer the questions directly. In one such instance, Dr. Wender stated:

Q: [by plaintiffs counsel] Did you see in the records where he said he felt like he got hit by a Mack truck the next day, sir?
A: [Dr. Wender] Sir, I think the best way to crystallize what happens to somebody is see what was specifically stated at the scene. The patient said nothing was wrong with him sir. He didn’t even go to the hospital.
Q: Doctor, have you ever in your 30 years of practice ever had any patients where after trauma, after an event, they say, well, jeeze, I think I am okay, no problem, but, boy, the next day, the following day they wake up and say, Boy, my neck hurts, my leg hurts, my knee hurts. Has that ever happened to any patient you have ever treated in 30 years?
A: Yes, and the following day they go to a hospital emergency room. Did he go to an emergency room? No.

After this answer, the trial judge excused the jury and spoke directly to Dr. Wender:

THE COURT: Let me just observe it is a quarter to 5. I understand this is the trial and we need a little bit of drama, but Mr. Hoffman, ask questions; Doctor, answer them.
THE WITNESS: Don’t be combative, then.
THE COURT: No, the combative is coming from both sides. Answer the question and then explain it.- Okay?
THE WITNESS: Then ask me straight questions.
THE COURT: I believe he has been asking you straight questions. You need to answer them. Okay.
THE WITNESS: I will try.
THE COURT: Okay. You answer and explain.
THE WITNESS: As long as I am given a chance to, Judge.
THE COURT: Dr. Wender, answer the questions, most of them are yes or no, and then you may explain.

Despite these clear directions and his extensive experience as an expert witness, Dr. Wender continued to circumvent counsel’s questions. This resulted in further objections and admonitions. The “final straw” in the sequence occurred in this exchange during the continued cross-examination:

Q: And you just told me he never had one neck complaint prior to that car crash that we just saw the picture of, correct?
A: Well, sir, you know — •
Q: Correct?
A. Well, in answer to your question, correct. However,
Q. Thank you doctor.
A. As you know, but I bet he will not have a com/plaint the day you walk out of this courtroom either, sir.
Mr. Hoffman: Judge—
THE COURT: Okay. Take the jury out, please. Do not discuss the case.
THE COURT: Do you have any motions?
MR. HOFFMAN: Mistrial, Your Honor. THE COURT: Dr. Wender?
THE WITNESS: Yes, ma'am?
THE COURT: You are a highly respected physician in this community. And you have testified, I don’t know, hundreds, maybe thousands of times as an expert witness. Do you not know that that sort of speculative and inflammatory opinion which has nothing to do with your opinion in this case, but comments on the credibility of a witness as to what you bet his is going to do causes extreme damage to your opinion and to the Court’s ability to adjudicate fairly and impartially in this matter and the jury’s ability to adjudicate fairly and impartially in this matter?
THE WITNESS: In all candor, I didn’t.
THE COURT: Well, you just learned it, because I am granting a mistrial.
Don’t ever do that again. You know darned well that you can’t say what you bet somebody is going to do. Your job is to come in here, Doctor, and to give your opinions based upon what you see, what the tests are. But you are never to comment on whether or not a witness is credible or not credible and what they are going to walk out of the courtroom and do, as if to imply that they are not telling the truth, and number two, that their lawsuit is frivolous. That is just not for you to do.
THE WITNESS: Okay. I am sorry. I really didn’t know.
THE COURT: I am granting a mistrial. MR. HOFFMAN: Thank you, Your Honor.
THE COURT: I will see you tomorrow.
For the record, I don’t think there is anything that can be done to cure that sort of inflammatory statement. And, Doctor, I am going to think about this and consider whether or not I need to do anything else in this matter. But that was highly inflammatory and uncalled for statement in this case.
THE WITNESS: Okay. I am sorry. I didn’t know I couldn’t say that.
THE COURT: You didn’t know that you couldn’t say that you would bet that tomorrow a plaintiff is going to walk out and say the he doesn’t have any complaints? You didn’t know that you couldn’t say that? How many jury trials have you testified in?
THE WITNESS: It never came up like that.
THE COURT: Well, you know what, Doctor, you volunteered that information without it being called for.

(Emphasis added).

The plaintiff then filed a motion for sanctions, including attorney’s fees and costs, against State Farm based on the “flagrant violations” of the court’s instructions by Dr. Wender as State Farm’s expert. During the hearing on the motion for sanctions, the court made additional observations:

THE COURT: Yes. What I wanted to put on the record was, that may have not made the record, was that there was — it was while the doctor was testifying about the EMT and what the procedure of the EMT was. And there was an objection, the question was whether or not the EMT would have gone through certain procedures.
There was an objection, I turned to go when you came sidebar, both sides, and before that, and I think the record will reflect at least my one word, before that the doctor turned to the jury and goes, “Well, they really do that.” And it was sort of under his breath, and I don’t know if it was caught on the record. But I said — gave him a look, “a look,” and said, “Doctor.”
It was those sorts of behaviors in addition to his last testimony. And that happened, that sort of nonverbal communication with the jury, that is at least one time that I can remember, specifically remember it happening, but I believe it happened more than once. And that throughout his testimony there was this nonverbal communication with the jury and that was when an objection was pending, when the court was ready to rule.
It was at that time disturbing enough to the court that, even in front of the jury, that I, only with one word, granted, but I let the doctor know, as minimal a way as I could because the jury is sitting there, that his behavior was inappropriate.

The trial court further found that:

Dr. Wender’s behavior was totally unacceptable, disrespectful to the Court and to the jury, to the plaintiffs attorney. I know that there were times that the plaintiffs attorney’s, some of his questions were argumentative, but his questions did not rise nearly to the level of behavior that Dr. Wender’s behavior was, the behavior of Dr. Wender that was witnessed by the Court. And it is Dr. Wender’s responses that caused the mistrial. It was just so uncalled for.

The court found that the mistrial was caused by State Farm through its expert’s behavior and that the misconduct was in furtherance of State Farm’s defense. Regarding the imputation of Dr. Wender’s misconduct to State Farm, the trial court’s order found:

As State Farm’s expert witness, it was State Farm’s counsel’s responsibility to control its witness. As such, State Farm’s counsel should have requested a recess and spoken with their expert witness about his inappropriate conduct prior to the mistrial.

The trial court imposed sanctions of $20,100.00 for attorney’s fees and costs against State Farm, and this appeal followed.

Analysis

The trial court has inherent authority to impose attorney’s fees against an attorney for bad faith conduct. Moakley v. Smallwood, 826 So.2d 221 (Fla.2002). Such a sanction requires a finding of bad faith that “must be predicated on a high degree of specificity in the factual findings.” Id.

Similarly, the court may impose such a sanction against a party that has engaged in “inequitable conduct,” i.e., “where one party has exhibited egregious conduct or acted in bad faith.” Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla.1998). But in this case, there is no finding that State Farm’s attorneys, much less any State Farm officer or employee, coached Dr. Wender or elicited the testimony in question.

We agree that “[i]n practice it is generally understood that the party designating an expert witness in civil actions becomes responsible for the expert’s conduct as a witness.... ” Pevsner v. Frederick, 656 So.2d 262, 264 (Fla. 4th DCA 1995) (Farmer, J., concurring). An expert’s failure or refusal to comply with court orders “may, in the court’s discretion, result in the loss of the right to call that expert to testify at trial.” Id. at 266. The power to regulate a party’s use of expert witnesses is a matter respecting the conduct of trial that lies in the sound discretion of the trial judge. Id. (citing Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982)). As regards the imposition of sanctions against a party or its counsel for the misconduct of an expert, however, we find no rule of imputation that can justify such an award without some bad faith or egregious conduct on the part of the party or counsel as well.

In Pevsner, the Fourth District quashed an order awarding sanctions against a non-party defense witness for discovery violations. The majority opinion concluded that, in the case of personal sanctions (as opposed to remedies affecting a party under the Florida Rules of Civil Procedure), “the sole sanction available for a nonparty deponent’s failure to obey an order compelling his deposition is contempt.” Id. at 263. In that case, the trial court had expressly stated that it was not holding the expert witness in contempt, and there was no finding that the expert’s disobedience was willful. Under that analysis, a sanction directed against Dr. Wender individually would require a finding of contempt after appropriate notice and hearing.

Based on the existing motion, record, and findings, we reverse the order imposing sanctions against State Farm for the misconduct of Dr. Wender.

Reversed and remanded.

      . As detailed below, the trial court indicated a disinclination to sanction Dr. Wender individually. The record discloses, however, that this occurred at a hearing on the only motion for sanctions before the court — a motion by the plaintiff/appellee against State Farm and only State Farm. The trial court also denied the appellee's motion to strike Dr. Wender as a State Farm expert upon retrial. We neither encourage nor discourage the appellee regarding a redirected motion.

      . In the unrelated case of Buck v. Chin, 19 So.3d 1132, 1134 (Fla. 3d DCA 2009), we summarized Dr. Wender's compensation by State Farm and observed that those figures “should be sufficient to allow the plaintiff to argue that Dr. Wender might be more likely to testify favorably on behalf of one side rather than another, and for jurors to get the point.”

      . Prudently, Dr. Wender arranged for personal counsel to be present at the hearing on the motion for sanctions. The pending motion did not, however, seek the imposition of sanctions against Dr. Wender individually. During the hearing on that motion, the trial court said she had "thought about holding him in contempt and sanctioning him” but would not do so.


author: SHEPHERD, J.

text:
    Michelle C. FERGUSON, Appellant, v. Jason E. FERGUSON, Appellee.
    No. 3D10-479.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 2011.
    Rehearing Denied March 14, 2011.

      Nancy C. Wear, Miami, for appellant.
    Schweitzer & Schweitzer-Ramras and Darlene Schweitzer-Ramras, Coral Gables, for appellee.
    Before SHEPHERD, CORTIÑAS and SALTER, JJ.
   SHEPHERD, J.

This is an appeal from an order voiding a provision of a mediated marital settlement agreement as a result of changes in the economy. Based upon the bedrock principle of contract law — applicable as well to marital settlement agreements— that bad deals are as enforceable in the law as good deals, we reverse the order under review.

The mediated marital settlement agreement in this case was signed and the final judgment of dissolution entered on August 8, 2008. The paragraph of the agreement which gives rise to this action reads as follows:

18. REAL PROPERTY:
(A)The parties are owners as tenants by the entirety real property located at: ... and referred to as the marital residence. The approximately [sic] market value is $950,000.00 and there is currently one mortgage on the home of approximately $608,000.00.
(B) In consideration the Husband shall pay to the Wife the sum of $185,000.00 within sixty (60) days from the execution of this agreement.
(C) Said refinancing shall take place within 120 days from the execution of this agreement. The Husband shall be solely responsible for all of the expenses associated with the refinancing.
(C) [sic] Simultaneously with the execution of the agreement the Wife shall execute and deliver unto the Husband, a Quil^Claim Deed transferring all of her right, title and interest in and to the above described property together with all fixtures located therein to him and said property shall thereupon become his sole property and he shall be entitled to a quiet and peaceful enjoyment of said property including any and all utility deposits in connection therewith. Said Quit-Claim Deed shall be held in escrow by the Husband’s counsel to be given to the closing agent at the time of the refinancing.
(D) The Husband shall indemnify and hold harmless the Wife from any and all property taxes, assessments, insurance payments, repair expenses, maintenance expenses, utility bills and all other expenses concerning said real property after the Wife vacates the marital home.
(E) If the Husband fails to refinance the home to release to the Wife within 120 days, then the home shall be immediately placed for sale with a licensed realtor to be agreed upon solely by Husband. The net proceeds of the sale shall be the sole property of the Husband.
(F) The parties agree that the Wife shall be able to reside in the marital residence with the minor child once the Temporary Certificate of Occupancy has been issued by the city of Palmetto Bay. While the Wife is occupying the marital home, she shall be responsible for the utilities during the period of time of her occupancy. The marital home is to be returned to the Husband upon the conclusion of the occupancy period absent normal wear and- tear. The Husband shall give to the Wife reasonable notice when he will be going to the marital home and access to the home cannot be unreasonably denied.
(G) The Wife shall vacate the marital home thirty days after she receives the $185,000.00 as her equalization payment for the marital home and the $5,500.00 in child support arrears minus one half of the net proceeds from the sale of the mobile home.

Although not a candidate for a future style manual, the agreement is unambiguous. Subsection (C) obligated the former wife to execute and deposit a quitclaim deed in escrow with the former husband’s counsel upon execution of the marital settlement agreement, which she did. Subsection (B) required the former husband to pay the former wife an “equalization payment” of $185,000 (subject to minor adjustments) within sixty days of the date the agreement was executed. Subsection (C) requires the former husband to refinance the home within 120 days of the agreement’s execution. The plain language of the agreement establishes that its object was (1) to bring about an unconditional payment of $185,000 to the former wife; (2) achieve an ownership transfer of the property to the former husband; and (3) relieve the former wife of any further financial responsibility for the property contemporaneously with the transfer. Notably, the couple, in paragraph (E) of the agreement, anticipated the possibility of one future circumstance, the failure of the former husband to refinance the property within 120 days of the execution of the agreement. In that circumstance, the parties agreed the property immediately would be placed for sale, with the net proceeds going to the former husband. It cannot be gainsaid that the couple’s mutual understanding of the value of the property influenced the negotiation.

Shortly after August 8, 2008, and apparently unanticipated by the former husband, the Florida real estate market entered into one of its periodic downward adjustments, for which it has become famous since the time of the Great Depression. The former husband neither paid his former wife the approximate $185,000 equalization payment nor tried to refinance the house. Instead, he unilaterally sought to list the house for sale with a realtor, but the former wife, who has lived in the home with the parties’ minor child, has not cooperated.

Rather, the former wife filed a motion for contempt and enforcement of paragraph eighteen, specifically for the payment of $185,000 and the refinancing of the house. The former husband filed a motion requesting the trial court to order the former -wife to cooperate with the sale of the home pursuant to the parties’ agreement. In his motion, the former husband stated, “Due to the real estate market conditions, the former husband has not been able to refinance the former marital home solely under his name and thus has not been able to pay the monies owed to the former wife pursuant to the parties’ agreement.”

After hearing arguments on the motions, the trial court declared paragraph eighteen “to be an impossibility of performance due to changes in the economy and therefore void.” The court further ordered the former wife to vacate the home, that the home be appraised, and finally that it immediately be listed for sale with the net proceeds divided between the parties. The former wife appeals.

The former husband advances the preliminary complaint that the former wife has not brought forward an adequate appellate record for our review. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). He complains specifically that the record lacks a transcript or approved statement of the proceedings from which emanated the orders under review. See Fla. R.App. P. 9.200(b). The record in this case is sparse. The absence of a transcript of a hearing can be fatal to an appellant, especially if the hearing was an evidentiary hearing. However, it is not a rule absolute in an appellate proceeding that the appellant must present a transcript of the proceeding below. For example, an appellate court may, as we now do, reverse a trial court order if there exists reversible error on the face of the order or judgment. See Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990) (finding reversible error on the face of the amended judgment alone). In this case, we find the trial court reversibly erred by voiding paragraph eighteen of the mediated marital settlement agreement for impossibility of performance due to changes in the economy.

A marital settlement agreement entered into by the parties and ratified by a final judgment is a contract, subject to the laws of contract. See Andersen Windows, Inc. v. Hochberg, 997 So.2d 1212, 1213 (Fla. 3d DCA 2008); Delissio v. Delissio, 821 So.2d 350, 353 (Fla. 1st DCA 2002). Because of the central importance placed upon the enforceability of contracts in our culture, the defense of impossibility (and its cousins, impracticability and frustration of purpose) must therefore be applied with great caution if the contingency was foreseeable at the inception of the agreement. Home Design Ctr.-Joint Venture v. Cnty. Appliances of Naples, Inc., 563 So.2d 767, 769-70 (Fla. 2d DCA 1990). As further developed by Professor Willi-ston in his treatise,

The important question [in an impossibility inquiry] is whether an unanticipated circumstance has made performance of the promise vitally different from what should reasonably have been within the contemplation of both parties when they entered into the contract. If so, the risk should not fairly be thrown upon the promisor.

6 Williston, Contracts (Rev. ed.) § 1931 (1938).

In this case, the decline in the real estate market shortly after the Former Husband signed the marital settlement agreement, while marked and unfortunate, was not the sort of unanticipated circumstance that falls within the purview of the doctrine of impossibility. Economic downturns and other market shifts do not truly constitute unanticipated circumstances in a market-based economy. The assignment of this risk before a final closing of the transaction between the parties was therefore among those for which a reasonably prudent person, represented by counsel, might have provided. A trial court is not authorized to intervene to ameliorate a hardship that a promisor, such as the former husband in this case, could have thus avoided. McCutcheon v. Tracy, 928 So.2d 364, 364 (Fla. 3d DCA 2006) (“[A] court may not deviate from the terms of a voluntary contract either to achieve what it might think is a more appropriate result or ‘to relieve the parties from the apparent hardship of an improvident bargain.’ ”) (quoting Beach Resort Hotel Corp. v. Wieder, 79 So.2d 659, 663 (Fla.1955)).

In addition, the former husband cannot sidestep the consequence of his failure to include such a provision with the argument that the lack of such a provision renders this otherwise unambiguous agreement ambiguous. See Life Ins. Co. of N. Am. v. Cichowlas, 659 So.2d 1333, 1338 (Fla. 4th DCA 1995) (“[W]here a contract is simply silent as to a particular matter, that is, its language neither expressly nor by reasonable implication indicates that the parties intended to contract with respect to the matter, the court should not, under the guise of construction, impose contractual rights and duties on the parties which they themselves omitted.”). The former husband is bound to the agreement he struck.

Accordingly, the trial court was obligated to enforce the mediated marital settlement agreement as voluntarily agreed upon by the parties. See McCutcheon, 928 So.2d at 364. The former wife is entitled to a judgment against the former husband for the $185,000 equalization payment after any adjustments required by the marital settlement agreement. If the marital residence has a temporary certificate of occupancy, the former wife and child shall be entitled to occupy the house consistent with the terms of the marital settlement agreement until such time as the equalization amount is paid or the house is sold. The marital residence should be listed for sale with a real estate agent chosen by the former husband, who shall be contractually entitled to receive the net proceeds of the sale, as provided in the marital settlement agreement.

Reversed and remanded for further proceedings consistent with this opinion.

      . The former husband’s agreement to pay is not enforceable by contempt at this stage of the proceeding. See Braswell v. Braswell, 881 So.2d 1193, 1198 (Fla. 3d DCA 2004). However, if the former wife occupies the marital home, she must pay the utilities as required by the agreement and, of course, cooperate in any effort to sell the property.


author: ROTHENBERG, J.

text:
    The STATE of Florida, Appellant, v. Elvis PITA, Appellee.
    No. 3D09-3267.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 2011.

      Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellant.
    Manto & Kassebaum and Ronald J. Manto, Miami, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG and SALTER, JJ.
   ROTHENBERG, J.

The State of Florida (“the State”) appeals from the downward departure imposed by the trial court over the State’s objection. Because the bases for the imposition of the downward departure sentence relied on by the trial court were either legally invalid or unsupported by competent substantial evidence, we reverse for imposition of a guidelines sentence, or in the alternative, the withdrawal of the defendant’s plea. State v. Walters, 12 So.3d 298, 805 (Fla. 3d DCA 2009).

On July 7, 2005, the defendant, Elvis Pita, entered into a negotiated plea with the State to resolve three separate felony cases consisting of seven felony and one misdemeanor offenses: (1) burglary of a Red Lobster Restaurant, possession of burglary tools, and criminal mischief in case no. F04-13870; (2) burglary of a Ruby Tuesday’s Restaurant and grand theft (of money) in case no. F04-13871; and (3) burglary of a Blockbuster Video store on two separate occasions and grand theft (of money) in case no. F04-13872. Pursuant to the plea, Pita pled guilty to the charges, was adjudicated guilty, and received a sentence of eighteen months community control (house arrest), followed by five years of probation, with the special condition that he pay restitution. This plea was offered despite the fact Pita had previously been convicted of aggravated assault with a deadly weapon, grand theft, and aggravated assault on a law enforcement officer, and he scored 22.35 months to thirty-five years under the Criminal Punishment Code.

Despite the substantial gift and opportunity afforded the defendant, he continued to violate the law and was arrested five more times on five separate felony cases while on probation. The defendant was able to continue engaging in criminal activity because he was inexplicably released on his own recognizance after each new felony arrest while on probation (except upon his fifth felony arrest which finally put a stop to the defendant’s criminal activity), even though an affidavit of violation of probation was filed upon each new arrest which enabled the trial court to hold the defendant in custody without bond.

The new arrests were as follows: (1) on March 15, 2006, for the theft of a boat valued in excess of $100,000 on or about December 29, 2005, less than six months after the defendant had entered his plea and was placed on house arrest, in case number F06-8371; (2) on September 17, 2008, for title fraud in case number F06-34368; (3) on December 16, 2008, for two counts of grand theft vehicle, one count of unlawful possession of a motor vehicle registration, title, or bill of sale and one count of organized scheme to defraud in case number F08-45903; (4) on March 4, 2009, for theft of a motor vehicle on September 7, 2008, in case number F09-7379; and (5) on August 21, 2009, for grand theft of a motor vehicle, unlawful possession of an altered VIN number, and for unlawful sale of a fraudulent vehicle title on July 28, 2009, in case number F09-27681.

The State filed a notice to seek an enhanced penalty under the habitual offender statute as to the new charges filed in case numbers F06-8371, F06-34368, F08-45903, and F09-7379, and was seeking a ten-year sentence as a habitual offender. The record reflects that the defendant was facing a sentence of between 22.35 months and thirty-five years’ incarceration for the violation of his probation in case numbers F04-13870, F04-13871, and F04-13872, and a consecutive sentence of anywhere from 6.8 years to life as a habitual offender for the new felony offenses charged in case numbers F06-8371, F06-34368, F08-45903, and F09-7379. However, the trial court departed from the guidelines in both the probation cases and the new felony cases and sentenced the defendant to 364 days in the county jail on the probation cases and a concurrent habitual offender sentence of 364 days in the county jail followed by two years of community control with restitution for the new felony offenses. Unlike some cases we have seen, the State objected timely and with specificity as to the downward departure sentences imposed by the trial court.

Although the trial court may in its discretion impose a sentence below the sentencing guidelines, it must articulate valid legal grounds for doing so and the grounds articulated must be supported by competent substantial evidence. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999); State v. Salgado, 948 So.2d 12, 15 (Fla. 3d DCA 2006); State v. Carlson, 911 So.2d 234, 236 (Fla. 2d DCA 2005). The grounds relied on by the trial court were either legally invalid or unsupported by the record. They will be addressed individually.

1. That the plea resulted from an un-coerced plea bargain

Although, to his credit, defense counsel on appeal admits that under the facts of these cases, this is a legally invalid ground for imposition of a downward departure sentence, we will address it to provide guidance to the trial courts.

While an uncoerced plea bargain may constitute a valid ground for departure below the recommended guidelines, this ground contemplates an agreement between the State and the defendant which is approved by the trial court, not a situation where the defendant enters an open plea with the court with the promise by the trial court that it will impose a particular sentence. State v. Beck, 763 So.2d 506, 508 (Fla. 4th DCA 2000), disagreed with on other grounds by State v. Van Bebber, 848 So.2d 1046 (Fla.2003) (finding that “a plea bargain contemplates an ‘agreement’ between the state and the defendant which is approved by the court,” thus “it was error for the trial court to depart from the guidelines on this basis”); State v. Honiker, 675 So.2d 681, 682 n. 1 (Fla. 2d DCA 1996) (“While a ‘legitimate, uncoerced plea bargain’ is generally a valid reason to depart from the guidelines, the state did not join with the trial court and [the defendant] in the plea bargain reached in this case and is not bound by it.”); State v. Johnson, 512 So.2d 1116, 1117 (Fla. 3d DCA 1987) (“If the ‘departure’ sentence is one to which the State did not agree, it is as though no plea bargain had occurred, and the court must justify its departure.”). In the instant cases, the State clearly and unequivocally objected to the trial court’s downward departure and specifically put the trial court on notice that because the State was not involved in, and objected to, the departure sentence, this was not a legally valid ground.

2. That the defendant paid the court-ordered restitution for the cases in which he was serving probation

This Court has previously rejected this reason for imposition of a downward departure sentence. See State v. Walters, 12 So.3d 298, 303 (Fla. 3d DCA 2009) (holding that the law does not excuse the consequences of a theft based on a thiefs ability to make his victim monetarily whole). Although the victim’s need for restitution may have been a motivation for the original probation sentences imposed, the payment of restitution, which was a requirement under the original plea bargain in which the defendant received probation, cannot constitute a legally valid basis for a downward departure for a subsequent sentence imposed for the violations of the defendant’s probation, especially, as here, where the violations are the commission of additional felony offenses.

3. That the need for restitution outweighs the need for prison as to the new felony cases

Although section 921.0026(2)(e), Florida Statutes (2009), permits the imposition of a downward departure sentence where the “need for payment of restitution to the victim outweighs the need for a prison sentence,” there must be competent substantial evidence demonstrating that the victim’s need does in fact outweigh the need for incarceration. Kirby v. State, 863 So.2d 238, 245 (Fla.2003); Walters, 12 So.3d at 303 (finding departure sentence invalid where no pressing need for restitution was shown where insurance company, as part of its normal business expectations, had already reimbursed the victim); State v. Kasten, 775 So.2d 992, 998 (Fla. 3d DCA 2000).

In the instant cases, there was absolutely no record evidence regarding any of the victims’ overriding need for restitution. In case number F06-34368 the trial court ordered no restitution. In case number F06-8371 the record evidence was that the victim paid the $1,000 deductible required under the victim’s insurance policy and the insurance company paid the remainder. The record reflects that in case number F08-45903, which involved two thefts, the insurance company paid the claim and had filed a civil lawsuit against the defendant to recover its damages regarding the first theft, and no restitution was awarded as to the second theft. As to case number F09-7379, there was no testimony or proffer indicating whether or not the victim’s loss was covered by insurance. What is clear, however, is that there was no evidence that any of the victims had suffered “greater than normal harm” as required by Walters or had requested that the defendant be placed on probation to permit the payment of restitution. We therefore find that this ground for a downward departure from the sentencing guidelines was unsupported by the record and thus invalid.

4.That defendant “cooperated” with State and Federal authorities

The record reflects that the defendant cooperated with law enforcement and provided useful information regarding narcotics offenses, auto theft, and fraud. However, his cooperation predated the commission of many of the offenses he was facing at the time of his plea. Additionally, the State noted that the defendant’s cooperation was of little value after he committed additional offenses undermining his credibility and value as a witness. There also was no evidence that any of the information provided by the defendant led to the arrest, prosecution, and conviction of those involved. We therefore conclude that this ground was invalid. See State v. Quintanal, 791 So.2d 23 (Fla. Bd DCA 2001).

5. The defendant’s remorse

As the defendant concedes, remorse as a basis for a downward departure must be accompanied by two additional elements: that the offense was committed in an unsophisticated manner and it was an isolated incident. See State v. Salgado, 948 So.2d 12, 16 (Fla. 3d DCA 2006) (finding that section 921.0026(2)(j) permits a downward departure where an offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse, and this ground is valid only where substantial competent evidence supports all three elements). While we make no comment regarding the genuineness of the defendant’s remorse, there was no evidence submitted that any of the defendant’s numerous criminal offenses were unsophisticated, and it is certainly well established that his criminal conduct did not constitute an isolated event.

6. The “weakness of the State’s evidence

The defendant also recognizes the invalidity of this ground for departure. Because none of these cases had gone to trial nor been subject to a motion to dismiss or other means of evaluating the evidence, it is uncertain how the trial court came to this conclusion. We note, however, that it is the function of the jury as the trier of fact to determine the strength and sufficiency of the evidence and the credibility of the witnesses. More importantly, defense counsel admitted that at least as to one of the cases, the defendant was “dead to rights.” We note as well that the defendant was facing up to thirty-five years on the probation cases, the standard of proof is substantially lower than what is required to obtain a conviction in a criminal trial, and the sentence the defendant could have received on any one of the new cases was at least ten years as a habitual offender.

Conclusion

Because none of the grounds articulated by the trial court were legally valid, we reverse the sentences imposed and remand for entry of guidelines sentences, or in the alternative, to allow the defendant to withdraw his plea.

Reversed and remanded.

      . The charges in case number F09-27681 were "no actioned” by the State.


text:
    Marisol ALONSO, etc., Appellant, v. FORD MOTOR COMPANY, Appellee.
    No. 3D09-2130.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 2011.
    Rehearing Denied March 15, 2011.

      Ralph 0. Anderson, Davie; Ralph G. Patino, Coral Gables, for appellant.
    Carlton Fields, and Andrew D. Manko, Tallahassee, and Wendy F. Lumish and Alina Alonso, Miami, for appellee.
    Before CORTIÑAS, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

Marisol Alonso appeals an order denying a motion for new trial based on alleged misconduct by certain jurors. Ms. Alonso is the personal representative for the estate of Kristine Fernandez, original plaintiff in a severe (and ultimately fatal) motor vehicle collision and rollover case. After a three-week trial, the jury returned a verdict in favor of appellee Ford. We affirm the denial of the motion for new trial.

The issues raised by the appellant are (1) an allegation of premature deliberations by certain members of the jury, (2) an allegation that one member, Juror S., suffered a “high blood pressure headache” and “went along with a defense verdict in this case only because he was fearful of having a stress-induced stroke caused by his severe hypertension,” and (3) an allegation by Juror S. that another juror, Juror K, “smelled like a batch of beer,” and seemed to Juror S. to have been intoxicated at one or more points during the trial. Of these, only the third issue merits extended analysis as a basis for the motion denied by the trial court.

An allegation of juror intoxication, of course, cuts to the very heart of our nationally-revered right to trial by jury. “An excessive use of liquor by a juror during the trial is such misconduct as will vitiate the verdict.” Goldring v. Escapa, 338 So.2d 871, 873 (Fla. 3d DCA 1976) (citing 58 Am.Jur.2d New Trial § 81 (1971)), cert. denied, 346 So.2d 1248 (Fla.1977).

In the case at hand, the allegation was considered diligently by the trial court. The court initially allowed Juror S. to address the court, with counsel present, in a sworn narrative. Unsurprisingly, much of that narrative involved subjective impressions and hearsay comments purportedly made by other jurors. The narrative did not include any claim that Juror K. had actually been seen imbibing any alcoholic beverage or that he had admitted drinking any such beverage while court was in session (including any break taken in the course of any particular day’s proceedings). Nevertheless, upon motion by the appellant and further briefing by both sides, the trial court permitted a further interview of another juror, Juror R. Juror R. testified that K. “smelled of liquor” on two occasions, but that he did not appear intoxicated. R. recounted a conversation with another juror in which that juror told R. that K. smelled of liquor and “looked like he was hung over or something to that effect.” R. said that K. looked like “he had quite a few drinks the night before or something.” But R. also testified that he never saw K. drinking or fall asleep during the trial, and that K. never indicated that he was “not listening to or considering the evidence at the trial.”

Analysis

We review an order denying new trial under the abuse of discretion standard. Southwin, Inc. v. Verde, 806 So.2d 586, 587 (Fla. 3d DCA 2002). We afford great deference to the trial court’s superi- or vantage point in assessing the credibility of those who testified in the post-verdict inquiry.

The appellant argues that:

“[i]f intoxicants be shown to have been used by the jury, the presumption arises in favor of the [verdict loser] that it resulted injuriously to him, and the burden is on the [verdict winner] to show affirmatively, to the entire satisfaction of the court, that its use was to such a limited and moderate extent as to completely and satisfactorily negative any harm to the defendant from its use by the jury or any member of it.”

Gamble v. State, 44 Fla. 429, 33 So. 471, 473 (1902) (citations omitted).

In this case, the evidence considered by the trial court included evidence that Juror K. was employed as an accountant; that the bailiff did not see impairment in his behavior as K. entered and exited the courtroom; that K. described in detail to other jurors his calculations regarding the impact of the two vehicles involved in the rollover accident; and that Juror S. was angry that the other jurors had not agreed with his position in favor of the plaintiff earlier in deliberations. In his initial narrative, S. described a confrontation when Juror K. “got up to me, and came into my face” in the jury room. “If I were on the street, I would have beat the living daylights out of him,” Juror S. told the court. Later in S.’s narrative, he described asking himself during the jury’s deliberation, “what do I do here? Go for a hung jury, and put up with these cretins, or what? Or do I just cave in and go with them?” Nonetheless, Juror S. ultimately agreed with the other jurors and confirmed his agreement again in open court when all jurors were polled after the verdict was announced.

Other cases involving incidents or allegations of juror intoxication involve much less ambiguous incidents. In Goldring, a juror appeared intoxicated during the fourth day of trial “by having alcohol on his breath, making grimacing motions, waving his hands and attempting to engage in conversation with the other jurors about the case during the reception of issues which disturbed the jurors.” 338 So.2d at 873. Because these signs were obvious, the defendants moved for a mistrial. The motion was denied, and “the judge simply removed the troublesome juror and put an alternate juror in his place.” Id.

In Langston v. State, 212 So.2d 51 (Fla. 1st DCA 1968), there was evidence that the jury foreman in a murder case in Wakulla County bought whiskey “which he took to the motel where the jury spent the night during the trial and that the jury consumed the whiskey and had a good time doing so.” Id. at 52. The convicted defendant raised this as one of three points on appeal and cited Gamble, to support his argument. The district court reversed and ordered a new trial, but without further or particular reference to the jurors’ consumption of alcohol at night. Rather, the court determined that the collective result of all three points on appeal and the entire record was the denial of the defendant’s right to a fair trial.

Both parties also briefed this Court’s decision in Baez v. State, 699 So.2d 305 (Fla. 3d DCA 1997). In that case, a jury-in a Monroe County D.U.I. trial sent out a note to the trial judge during deliberations: “One of the jurors has admitted to having a couple of beers at lunch. Is he qualified to help make a decision?” The trial judge did not interview the accused juror or any other jury member, but instead declared the accused juror incompetent to proceed. The defendant refused to stipulate to a five person jury, and the trial judge declared a mistrial. This Court concluded that a mistrial should not have been ordered because, “without any inquiry into the precise condition of the allegedly impaired juror, there could be no showing that he was not competent to deliberate with the consequence that he need not have been excused at all.” Id. at 306 (citing Gamble, Langston, and Goldring).

In the present case, none of the other jurors or any other witness saw Juror K. consume an alcoholic beverage, whether at lunch or at any other point in the trial, and counsel for the appellant did not accept opposing counsel’s suggestion for an interview of K. There was also no demonstration that Juror K.’s conduct during the trial actually influenced the verdict rendered by the jury.

Conclusion

When Juror S.’s allegations were brought to the trial court’s attention, the trial court allowed a careful and conscientious inquiry into the facts, balancing the appellant’s right to have her case considered by unimpaired jurors against the jurors’ rights to deliberate in privacy and without subsequent second-guessing. The trial judge did not abuse her discretion in denying the appellant’s motion for a new trial.

Affirmed.

      . Because of the nature of the allegations and the publication of this opinion (including dissemination through searchable electronic media), the names of the jurors are not used here.

      . As to the first point, the allegations of premature deliberations were thin on specifics and long on Juror S.’s subjective belief at the outset of deliberations that the other five members of the jury had already made up their minds. In actuality, the jury deliberated over three hours after Juror S. formed that belief, and each juror was polled after the defense verdict was returned. As to the second point, Juror S. did not at any point during voir dire, trial, jury deliberations, or the post-verdict polling, advise the trial court that the stress of jury deliberations or his hypertension might place him at risk. Instead, ten days after the verdict, Juror S. apprised the appellant’s attorney and the trial court of his concern that his blood pressure had ’’gone ballistic” during deliberations. There was no evidence that Juror S. asked for an overnight break in the deliberations or that he consulted a physician after the verdict was returned. The trial court did not abuse its discretion in rejecting these claims as a basis for a new trial.

      . At this point, an interview with Juror K. himself might have provided more significant (and direct) evidence regarding Juror S.'s allegations about K.'s alleged consumption of alcohol and the conduct of both of them during trial and deliberations. Counsel for the appellee proposed interviews with three additional jurors. The trial court agreed to permit a further interview with one other juror. Counsel for the appellee then suggested that, if only one more interview was to be permitted, Juror K. ought to be interviewed, but counsel for the appellant suggested that Juror K. would only deny drinking.

      . Gamble concerns a case tried in Miami in 1902. An all-male, twelve person jury in a first-degree murder case was sequestered in the "Everglade” hotel several blocks from the then-Dade County courthouse. The jurors slept four to a room, and a lone bailiff struggled to keep an eye on all of them. The jurors "loitered” to say “a few words to some girls who were staying there,” and apparently "procured and had in their rooms at the hotel ten or a dozen bottles of lager beer, a pint and half pint flasks of whiskey and a regular bottle of whiskey during the time of the trial.” The trial court ultimately satisfied itself that the jurors had paid for their own liquor, that they drank "sparingly and moderately,” and that "nothing occurred from it to influence the verdict.” The Supreme Court of Florida, although concerned that the bailiff’s and jurors' conduct "was highly irregular and unbecoming the proper and decorous conduct of the trial of a citizen for his life,” affirmed the trial court's rulings. Id.


text:
    Antonio JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-699.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 2011.
    Antonio Johnson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Medina v. State, 919 So.2d 566, 568 (Fla. 3d DCA 2006).


text:
    S.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1741.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 2011.
    S.C., a juvenile, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Affirmed. See State v. J.H., 898 So.2d 240 (Fla. 4th DCA 2005).


text:
    Jeffrey H. VAN POYCK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2115.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 2011.
    Jeffrey H. Van Poyck, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order denying a “Petition Seeking Compensation for Wrongful Incarceration.” The trial court dismissed the petition stating that Jeffrey H. Van Poyck had to initiate the application process for compensation with the Department of Legal Affairs pursuant to section 961.06(2). Thus, the petition was filed in the wrong jurisdiction. However, before such a petition may be filed, the petitioner must first establish that he was a “wrongfully incarcerated person” by filing a petition “with the original sentencing court” pursuant to section 961.03. Although the caption of the petition improperly delineated the relief sought, in the “wherefore” clause, Van Poyck properly requested a finding of whether he was a “wrongfully incarcerated person.” We therefore reverse and remand for the trial court to make such a determination.

Reversed and remanded.


text:
    Luis COSTA, et al., Appellants, v. Gary DOEHLA, Appellee.
    No. 3D10-2825.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 2011.

      Kramer and Golden and Richard Golden, North Miami; Stephan N. Rosenthal, for appellants.
    Scott Alan Orth, Hollywood, for appel-lee.
    Before SUAREZ, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Appellants, the defendants below, seek review of an “Order Granting Plaintiffs Motion to Strike Affirmative Defenses or for Judgment on the Pleadings or alternatively for summary Judgment” and a subsequent order denying their motion for rehearing. Because we conclude that we lack jurisdiction to hear this appeal, we are compelled to dismiss the appeal. See Dixon v. Allstate Ins. Co., 609 So.2d 71 (Fla. 1st DCA 1992); Northcutt v. Pathway Fin., 555 So.2d 868 (Fla. 3d DCA 1989); Smith v. Glisson, 468 So.2d 894 (Fla. 3d DCA 1985).

Significantly, the order on appeal concludes with the following language:

18. Rule of Civil Procedure 1.510(d) provides that the Court should specify and narrow the issues for trial where full and final judgment is not yet appropriate. Accordingly, this Court rules that:
a. The affirmative defenses do not bar Plaintiffs claim and they are hereby stricken and alternatively partial summary judgment on all of the remaining defenses in favor of Doehla is appropriate;
b. Plaintiff Gary Doehla has a valid judgment lien against The Property;
c. The amount of Plaintiffs claim has yet to be determined and will be determined by subsequent proceedings.

Because no final judgment has been entered and the order at issue does not fall within any of the limited categories of appealable non-final orders, we lack jurisdiction to entertain this appeal. The appeal is, therefore, dismissed without prejudice.

Appeal dismissed.


text:
    Twon ADAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2042.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 2011.
    Twon Adams, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Baker v. State, 878 So.2d 1236, 1245-46 (Fla.2004); Richardson v. State, 918 So.2d 999, 1004 (Fla. 5th DCA 2006).


author: EMAS, J.

text:
    Keith SULLIVAN, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D09-1279, 3D09-1281.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 2011.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before WELLS, LAGOA and EMAS, JJ.
   EMAS, J.

Upon motion of Appellant, and with the agreement of the State, we acknowledge that the trial court properly has entered corrected judgments and sentences which conform to the oral pronouncement. This being the sole issue raised by Appellant, the appeal is hereby dismissed as moot.


author: DAVIS, Judge.

text:
    Deandre T. WOODRUFF, Petitioner, v. STATE of Florida, Respondent.
    No. 2D09-4836.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 2011.

      Deandre T. Woodruff, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Respondent.
   DAVIS, Judge.

Deandre T. Woodruff, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), contends that appellate counsel was ineffective in failing to challenge the sentence the trial court imposed for his conviction of one count of third-degree murder. He alleges that because his trial counsel failed to preserve the issue, his appellate counsel was ineffective for failing to file a motion to correct the sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Although we agree that his appellate counsel’s performance was deficient at the time of the appeal, under current ease law Woodruff is not entitled to relief and we must deny his petition.

Woodruffs conviction resulted from the jury finding that he discharged a firearm resulting in the death of the victim. The third-degree murder charge is a second-degree felony for which the statutory maximum penalty is fifteen years. See §§ 777.04(4)(c), 775.082(3)(c), Fla. Stat. (2005). However, the trial court sentenced Woodruff to thirty-five years’ prison to be followed by fifteen years’ probation based on its application of section 775.087(2)(a)(3) of the 10-20-Life statute. That portion of the statute provides that if a person is convicted of discharging a firearm resulting in death, “the convicted person shall be sentenced to a minimum term of imprisonment of not less than [twenty-five] years and not more than a term of imprisonment of life in prison.”

Woodruff, however, argues that prior to the time of his appeal, this court had construed section 775.087(2)(a)(3) to limit his sentence to twenty-five years because the statutory maximum for his offense was less than the bottom of the 10-20-Life sentencing range. See Sousa v. State, 976 So.2d 639, 640 (Fla. 2d DCA 2008) (stating that the statutes setting statutory máxi-mums should be construed together with the minimum mandatory sentence set by the 10-20-Life statute in the light most favorable to the defendant), disapproved, Mendenhall v. State, 48 So.3d 740, (Fla. Oct. 28, 2010). Because Woodruff faced a statutory maximum of fifteen years and a minimum mandatory under the 10-20-Life statute of twenty-five years, Soma indicated that Woodruff could be sentenced to no more than twenty-five years. Accordingly, Woodruff argues that if his appellate counsel had filed the rule 3.800(b) motion to correct sentence, either the sentencing court would have resentenced him pursuant to Sousa or this court would have granted him a new sentence on direct appeal.

“[T]his court must apply the law in effect at the time of the appeal to determine whether counsel’s performance was deficient....” Brown v. State, 25 So.3d 78, 80 (Fla. 2d DCA 2009). Because Sousa was the law in effect at the time of his appeal, we conclude that Woodruffs appellate counsel’s performance was deficient when he failed to file a rule 3.800(b)(2) motion based on Sousa. However, “we must apply the current law to determine whether [the petitioner] is entitled to relief on the issue raised.” Brown, 25 So.3d at 80. Since the conclusion of Woodruffs direct appeal, the Florida Supreme Court has disapproved this court’s opinion in Sousa and held “that the specific provisions of the 10-20-Life statute with regard to mandatory mínimums control over the general provisions of section 775.082 regarding statutory máximums.” Mendenhall, 48 So.3d 740 at 752. Had Woodruffs appellate counsel properly litigated this issue, Woodruff would have been resen-tenced based on Sousa prior to the issuance of Mendenhall. However, under the current case law, he is no longer entitled to relief.

We therefore deny the petition alleging ineffective assistance of appellate counsel. In so doing, we certify the following question to be one of great public importance:

WHEN A PETITIONER CLEARLY ALLEGES DEFICIENT PERFORMANCE ON THE PART OF APPELLATE COUNSEL BASED ON CASE LAW IN EFFECT AT THE TIME OF THE APPEAL THAT WOULD HAVE RESULTED IN RELIEF HAD APPELLATE COUNSEL RAISED THE ISSUE ON APPEAL BUT THE CASE LAW UPON WHICH THE PETITIONER BASES THE CLAIM IS SUBSEQUENTLY DISAPPROVED, IS THE PETITIONER STILL PREJUDICED BY APPELLATE COUNSEL’S DEFICIENT PERFORMANCE AND THUS ENTITLED TO RELIEF THROUGH A PETITION ALLEGING INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL?

Petition denied; question certified.

KELLY and LaROSE, JJ., Concur.

      . Woodruff also was convicted of shooting at, within, or into a building; however, the sentence for that conviction is not challenged within this petition.


text:
    Terry Wayne LEWIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4679.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.
    Terry Wayne Lewis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on July 22, 2009, in Suwannee County Circuit Court case number 08-430-CF, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal shall appoint counsel to represent petitioner on appeal.

KAHN, PADOVANO, and CLARK, JJ., concur.


text:
    James FLEISCHMAN, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-5032.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.
    James Fleischman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Maricruz R. Fincher, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

It appearing that the circuit court has disposed of the petition filed below, the petition for writ of mandamus is denied as moot.

KAHN, PADOVANO, and CLARK, JJ., concur.


text:
    Richard BLANE, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4179.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.
    Glenn M. Swiatek, Criminal Defense Attorney, Shalimar, for Appellant.
    Pamela Jo Bondi, Attorney General and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of his convictions and sentences for trafficking in methamphetamine, possession of cannabis, and possession of drug paraphernalia. Appellant raises four issues on appeal, including a claim that the trial court erred in failing to renew the offer of conflict free counsel at sentencing and resentencing as required by Florida Rule of Criminal Procedure 3.111(d)(5). The state properly concedes that the court erred, warranting reversal of Appellant’s sentence. Parker v. State, 539 So.2d 1168 (Fla. 1st DCA 1989); Kepner v. State, 911 So.2d 1256 (Fla. 4th DCA 2005). Therefore, Appellant’s sentences are VACATED and the cause is remanded for resentencing. We affirm the remaining claims without further comment.

WOLF, HAWKES and WETHERELL, JJ., concur.


author: WOLF, J.

text:
    Craig Lydell LEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0173.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.
    Gerard M. Virga, Panama City, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges the trial court’s dismissal of his motion for postconvietion DNA testing which he filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes. Appellant raises several issues but we address only one: whether the trial court erred in finding appellant was precluded from seeking postconvietion DNA testing because he was resentenced after violating probation. We find the trial court erred and reverse and remand for consideration of the motion on the merits.

In its order denying appellant’s motion for postconvietion DNA testing, the court noted on August 22, 2005, appellant entered a no contest plea to one count of lewd and lascivious battery and was sentenced to 15 years’ probation. On October 18, 2005, the court found appellant violated the terms of his probation, but his sentence was reinstated. On January 24, 2006, the court again found appellant violated probation and his probation was revoked and he was sentenced to 15 years in prison.

In denying his motion for postconvietion DNA testing, the trial court found appellant was precluded from challenging the evidence relevant to the lewd and lascivious battery charge because appellant’s current sentence was entered as a result of his violation of probation. The court reasoned this challenge would have the effect of “undermining the finality of a VOP judgment and sentence.”

However, “[a] ‘violation of probation is not itself an independent offense punishable at law in Florida.’ ” Cozza v. State, 756 So.2d 272, 273 (Fla. 3d DCA 2000) (quoting Lambert v. State, 545 So.2d 838, 841 (Fla.1989)). “Instead, once the court revokes probation or community control, the court resentences the offender on the original charge, and may ‘impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control.’ ” Cozza, 756 So.2d at 273 (quoting § 948.06(1), Fla. Stat. (1995), now codified at § 948.06(2)(b), Fla. Stat. (2009)).

When appellant’s probation was revoked, he was sentenced for lewd and lascivious battery, not violation of probation. Therefore, the fact appellant’s sentence for lewd and lascivious battery was entered after violation of probation does not preclude him from seeking postconviction DNA testing of physical evidence relevant to the lewd and lascivious battery charge. Thus, we reverse and remand for the trial court to consider appellant’s motion on the merits.

REVERSED AND REMANDED.

KAHN and WEBSTER, JJ„ concur.


author: PER curiam:.

text:
    Clarence Lee ROBBINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1796.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER curiam:.

In this appeal briefed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the appellant appeals the order entered by the trial court which revoked his probation based on his admission that he violated a number of conditions of probation. The order revoking probation erroneously indicates that the appellant violated condition five by committing a new law violation. However, while the appellant admitted other violations, the state specifically dismissed the allegation that the appellant violated condition five. Thus, we affirm the appellant’s convictions and sentences, but remand for entry of a corrected revocation order which omits reference to a violation of condition five. See, e.g., Campbell v. State, 972 So.2d 263 (Fla. 5th DCA 2008) (affirming order revoking probation but remanding for court to correct order to show correct ground for revocation).

AFFIRMED and REMANDED with instructions to enter a corrected revocation order.

KAHN, PADOVANO, and CLARK, JJ., concur.

      . The issue was preserved for appeal by the filing of a rule 3.800(b)(2) motion.

      . The order should also be corrected to reflect that a sentence of 31.5 months' imprisonment was imposed.


text:
    Samuel C. GOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2059.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.
    Samuel C. Golden, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the trial court’s order denying his motion for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540(b). In this motion, the appellant claimed that he did not receive a copy of the trial court’s order denying his motions for declaratory judgment until after the time for initiating an appeal had expired. The appellant requested that the trial court vacate and then reenter the prior order so as to preserve his right to appeal. Cases such as Griffin v. Florida Parole Commission, 727 So.2d 1092 (Fla. 1st DCA 1999), and Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980), suggest that such relief should be afforded under rule 1.540(b) when a party does not receive a copy of the order as entered by the court. The appellant’s motion is thus facially sufficient and may warrant relief if the allegations therein are established as accurate and true. The appealed order is therefore reversed and the case is remanded to the trial court. On remand, the trial court is directed to conduct an evidentiary hearing as to whether the appellant received the prior order before the time to initiate an appeal expired or, in the alternative, to reenter the prior order so that the appellant may appeal that order.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


author: CORTINAS, J. SALTER, J.

text:
    Rafael O. LOPEZ, Appellant, v. A AARON SUPER ROOTER, INC. and Florida Unemployment Appeals Commission, Appellees.
    No. 3D10-890.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.

      Erik W. Scharf, Coconut Creek, Jeffrey M. Hearne and Jose F. Fons, Miami, and Eli Bilek, Certified Legal Intern, for appellant.
    Louis A. Gutierrez, Sr. Attorney for Unemployment Appeals Commission, Tallahassee, for appellee.
    Before CORTIÑAS, ROTHENBERG, and SALTER, JJ.
   CORTINAS, J.

Rafael 0. Lopez appeals a final order of the Florida Unemployment Appeals Commission affirming an unemployment appeals referee’s conclusion that Mr. Lopez could not receive benefits. Following a telephonic hearing at which Mr. Lopez, his employer, and a co-employee testified, the referee concluded that Mr. Lopez was disqualified from receiving benefits because he had been discharged for misconduct connected with his work. We conclude, after a thorough review of the record and applicable statutes, that the appeals referee’s findings were based on competent substantial evidence and the referee’s credibility determinations. Hines v. Dep’t of Labor and Employment Sec., 455 So.2d 1104, 1106 (Fla. 3d DCA 1984).

Mr. Lopez has also raised a due process issue in his appeal before this Court. He maintains that the basis for the initial administrative determination regarding disqualification — the absence of good cause for an alleged “voluntary quit” — was recast by the appeals referee into a hearing on the topic of misconduct. We reject this argument as well based on the notice of hearing sent by mail to Mr. Lopez some twelve days before the hearing. The issues to be heard were identified as “[wjhether the claimant was discharged for misconduct connected with work or voluntarily left work without good cause.... ” The dual nature of the inquiry was specified in writing and in advance of the hearing, distinguishing this case from those cited by Mr. Lopez. Mr. Lopez thus received “proper notice of the issues to be heard,” and no departure from due process has been demonstrated. Smith v. Unemployment Appeals Comm’n, 751 So.2d 639, 640 (Fla. 1st DCA 1999).

Affirmed.

SALTER, J.

(concurring).

I concur in my colleagues’ decision that the unemployment compensation appeals referee’s findings of fact are grounded on competent, substantial evidence, and that the controlling statutory provisions were correctly applied to that evidence by the referee and the Commission. I write only to express a concern about the manner in which the Agency for Workforce Innovation (Agency) provides record materials— or perhaps does not provide them — to the parties when an employee or employer appeals an adverse administrative determination.

In this ease, Mr. Lopez had worked for A Aaron Super Rooter, Inc., for three years before the events occurred that resulted in his claim for unemployment benefits. Mr. Lopez’s claim had an effective date of May 24, 2009, and he was determined on May 29, 2009, to be eligible for benefits of $275.00 per week. Over three months later, in a redetermination notice dated September 1, 2009, Mr. Lopez was notified that (a) the Agency had concluded that he was not in fact eligible for those benefits because he had “quit after receiving a justifiable disciplinary action” and “chose not to continue the employer-employee relationship,” and (b) he was not entitled to the eleven weekly payments he had received since the initial May determination (a total of $3,025.00), such that those were “overpayments” he was required to repay.

Section 443.151(3)(e)l., Florida Statutes (2009), expressly authorizes the Agency to “reconsider a determination if it finds an error or if new evidence or information pertinent to the determination is discovered after a prior determination or redeter-mination.” A redetermination ordinarily may not be made more than one year after the last day of the benefit year. In Mr. Lopez’s case, it appears that the “new evidence or information” obtained by the Agency consisted of four documents: (1) an Agency form UCB-412 filled out by the owner of the employer, Mr. Tuffy, and dated June 8, 2009, marked to claim that Mr. Lopez was discharged for misconduct; (2) an accompanying letter of the same date from Mr. Tuffy to the Agency alleging specific acts of misconduct and identifying a secretary, a job supervisor, and a customer as persons with knowledge of those acts; (3) a further letter from Mr. Tuffy to the Agency dated July 27, 2009, explaining why Mr. Tuffy felt it was unfair to be charged unemployment compensation by “an employee that quit his job because he wanted to collect unemployment;” and (4) an Agency form UCB-208 containing handwritten entries dated August 24, 2009, apparently summarizing a telephone interview of Mr. Lopez by an interviewer from the Agency. There is no indication that copies of any of these four documents were provided to Mr. Lopez in advance of, or even during, his telephonic appeal hearing, and they were not received as evidence by the referee. The four documents were not part of the indexed record of Mr. Lopez’s claim, appeal, and hearing as filed here by the Commission.

However, we know the four documents were received by the Agency because the Commission attempted to file them as attachments to its answer brief in this Court. The Commission argued that the documents were the new evidence justifying a redetermination and disqualification (over three months after Mr. Lopez was determined to be eligible), and that the documents justified the addition of a “misconduct” issue in the notice of telephonic hearing by the office of appeals. Because there was nothing to indicate that the Commission record included the four documents, or that copies had been provided to Mr. Lopez, we granted his motion to strike the documents in the present case.

It is a logical inference that the Agency “adjudicator” who made the September 1, 2009, redetermination of disqualification for benefits, and the appeals referee who then considered Mr. Lopez’s appeal, saw the four documents that Mr. Lopez apparently did not see until the Commission attempted to file them here. A review of the transcript of the administrative appeals hearing discloses that Mr. Lopez was not aware of the documents, and neither the referee nor Mr. Tuffy made reference to them.

If the documents had been provided to Mr. Lopez before his hearing, he might have been better able to prepare his defense to Mr. Tufty’s accusations. In addition, a review of Mr. Tufty’s letters before the telephonic hearing by the appeals referee may have “poisoned the well” and influenced the referee’s consideration of Mr. Lopez’s credibility. Basic fairness and due process afford a party, even in an informal process, the right to advance notice of the claims, witnesses, and other evidence to be presented against that party. Penton v. Royal Crown Bottling Co., 646 So.2d 267 (Fla. 1st DCA 1994).

The Agency’s Form UCA Bulletin 6E in the record before us states that “copies of all documents available to the referee are enclosed with the Notice of Telephonic Hearing” (paragraph 10) and that copies must be submitted to the referee and all parties if they are to be considered, “unless the right to view the documents is waived” (paragraph 11). In this case, the notice of telephonic hearing did not attach the four documents apparently considered by the Agency. There is no evidence that Mr. Lopez waived his right to view all documents available to the referee.

But the record before us does not establish reliably which persons and administrative entities saw the four documents, and when. We are not prepared to reverse the referee’s findings or the Commission’s af-firmance in this case on the basis of speculation. For the sake of future claims and cases, however, this concurrence will provide notice to referees and the Commission that this due process concern should be addressed.

      . Section 443.036(29), Florida Statutes (2010), defines “misconduct” for purposes of a disqualification for unemployment compensation benefits under section 443.101(l)(a)2.

      . In those cases, such as Montalbano v. Unemployment Appeals Comm’n, 873 So.2d 417 (Fla. 4th DCA 2004), an issue that had not been identified in the hearing notice was raised for the first time during the course of the appeal hearing.

      .We express our appreciation for the professional briefs and oral argument presented on behalf of Mr. Lopez by pro bono counsel and a certified legal intern from the University of Miami School of Law.

      . Many of these allegations are hearsay reports of what third party witnesses said, from purported declarants who did not testify during the only telephonic hearing in Mr. Lopez’s administrative appeal.


author: WELLS, Judge.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. MANGO HILL CONDOMINIUM ASSOCIATION 12 INC., Appellee.
    No. 3D10-2014.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.

      Hinshaw & Culbertson, Maureen G. Pe-arcy and Paul R. Wallace, Miami, for appellant.
    Alvarez, Carbonell, Feltman, Jimenez & Gomez and Paul B. Feltman, for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   WELLS, Judge.

Citizens Property Insurance Corporation appeals from an order summarily compelling appraisal over its objection that the insured, Mango Hill Condominium Association 12, Inc., failed to comply with the post-loss provisions of the insurance policy issued by Citizens. We reverse and remand for an evidentiary hearing on the issue of post-loss compliance.

Mango Hill is the insured under a policy of insurance issued by Citizens, which, in pertinent part, provides:

E. Loss Conditions
The following conditions apply in addition to the Common Policy Conditions.
2. Appraisal
If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and umpire equally.
If there is an appraisal, we will still retain our right to deny the claim.
3. Duties in The Event of Loss or Damage
a. You must see that the following are done in the event of loss or damage to Covered Property:
(1) Notify the police if a law may have been broken.
(2) Give us prompt notice of the loss or damage. Include a description of the property involved.
(3) As soon as possible, give us a description of how, when and where the loss or damage occurred.
(4) Take all reasonable steps to protect the Covered Property from further damage, and keep a record of your expenses necessary to protect the Covered Property, for consideration in the settlement of the claim. This will not increase the Limit of Insurance. However, we will not pay for any subsequent loss or damage resulting from a cause of loss that is not a Covered Cause of Loss. Also, if feasible, set the damaged property aside and in the best possible order for examination.
(5) At our request, give us complete inventories of the damaged and undamaged property. Include quantities, costs, values and amount of loss claimed.
(6) As often as may be reasonably required, permit us to inspect the property proving the loss or damage and examine your books and records.
Also permit us to take samples of damaged and undamaged property for inspection, testing and analysis, and permit us to make copies from your books and records.
(7) Send us a signed, sworn proof of loss containing the information we request to investigate the claim. You must do this within 60 days after our request. We will supply you with the necessary forms.
(8) Cooperate with us in the investigation or settlement of the claim.
b. We may examine any insured under oath, while not in the presence of any other insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including an insured’s books and records. In the event of an examination, an insured’s answers must be signed.

In October of 2005, Mango Hill made a claim to Citizens to recover for damages sustained to its condominium buildings during Hurricane Wilma. Citizens investigated the claim and issued a number of checks to Mango Hill for repairs after determining that the damages claimed were covered under its policy.

Mango Hill subsequently retained a public adjuster and demanded additional funds for repairs. Unsatisfied with Citizens’ response, Mango Hill demanded appraisal, supporting that demand with a sworn proof of loss, an “estimate and contents report,” and a report from its engineering firm regarding the damages. The current president of the condominium association (who was not president when the losses were incurred) also submitted to an examination under oath. Thereafter, Citizens made requests for additional documents and information regarding this new claim and refused to proceed to appraisal until such information was provided.

In February of 2010, Mango Hill brought suit claiming that it had satisfied all post-loss obligations under its policy with Citizens. Citizens answered the complaint, denying coverage and claiming that Mango Hill had failed to comply with its post-loss obligations under the policy. When Mango Hill subsequently moved to compel appraisal, Citizens balked claiming that appraisal could not be ordered until Mango Hill complied with its policy obligations. In response, Mango Hill argued that compliance with post-loss policy obligations relates to coverage, an issue which may, at the trial court’s discretion, be determined after appraisal is compelled. The trial court apparently agreed and granted the motion compelling appraisal. For the following reasons, we reverse.

A challenge to coverage is, as the Florida Supreme Court has confirmed, a matter for determination by a court; whereas, a challenge to the amount of a covered loss is for determination by an appraisal panel. See Johnson v. Nationwide Mut. Ins. Co., 828 So.2d 1021, 1022 (Fla.2002). While at first blush it would appear that coverage should be resolved by a court before the amount of a covered loss is determined by appraisal, this Court has recognized that “putting the issue of coverage first before arbitration in every case might have adverse effects on the expeditious, out of court disposition of litigation, which is the reason arbitration is a favored remedy.” Sunshine State Ins. Co. v. Rawlins, 34 So.3d 753, 754-55 (Fla. 3d DCA 2010). Thus, we have left it to the trial court’s discretion to decide “the order in which the issues of damages and coverage are to be determined by arbitration and the court.” Id. (also stating that the trial court should determine “whether or not to allow the appraisal and coverage processes to move forward on a dual track basis”).

The discretion to determine the order in which coverage and loss issues are considered does not, however, override a preliminary determination as to whether an arbitrable issue exists. Before arbitration (or appraisal) under an insurance policy such as the one at issue here may be compelled, a disagreement, or “arbitrable issue,” must be demonstrated to exist. U.S. Fid. & Guar. Co. v. Romay, 744 So.2d 467, 469 (Fla. 3d DCA 1999). No disagreement or arbitrable issue exists unless “some meaningful exchange of information sufficient for each party to arrive at a conclusion” has taken place. Id. at 470. Thus, an “insured must comply with all of the policy’s post-loss obligations before the appraisal clause is triggered.” Id. at 471; see First Home Ins. Co. v. Fleurimond, 36 So.3d 172, 174 (Fla. 3d DCA 2010).

In Citizens Property Insurance Corp. v. Galeria Villas Condominium Association, 48 So.3d 188, 191-92 (Fla. 3d DCA 2010), this Court concluded that as a preliminary matter a trial court must determine “that a demand for appraisal is ripe,” before it may exercise its “discretion to control the order in which the appraisal and coverage determinations proceed.” There, the insured submitted and was paid on its initial claim. It thereafter retained a public adjuster and submitted a supplemental claim supported by detailed construction cost estimates broken down by building, line item, quantity, unit costs, contractor’s overhead and profit, and sales taxes. The insurer acknowledged receipt of these items and demanded a sworn proof of loss as well as a number of other documents. The sworn proof of loss was provided, but after some jousting over the documents, the insured filed suit for breach of the insurance policy and moved to compel appraisal. The motion to compel appraisal was granted.

This Court reversed on appeal, concluding that until the policy’s post-loss conditions were met, there was no disagreement as to the amount of loss to be appraised, and until it was determined such a dispute existed, the court below had no discretion to control the order in which the loss and coverage issues would be determined:

Until [the policy’s post-loss] conditions are met and the insurer has a reasonable opportunity to investigate and adjust the claim, there is no “disagreement” (for purposes of the appraisal provision of the policy) regarding the value of the property or the amount of loss.... Once the trial court determines that a demand for appraisal is ripe [that is, that a disagreement exists], the court has the discretion to control the order in which the appraisal and coverage determinations proceed.

Id.

Because the same circumstances exist here, we reverse the order compelling appraisal and remand for an evidentiary hearing on whether Mango Hill sufficiently complied with the policy’s post-loss requirements. See Sunshine State Ins. Co. v. Corridori, 28 So.3d 129, 131 (Fla. 4th DCA 2010) (confirming that where an insured cooperates to some degree or explains non-compliance with a policy’s post-loss requirements, a fact question is presented which should be resolved on an evidentiary hearing); Citizens Property Ins. Corp. v. Maytin, 51 So.3d 591 (Fla. 3d DCA 2010) (confirming the necessity of an evidentiary hearing when a dispute arises as to whether an insured’s compliance satisfies policy post-lost requirements).

Reversed and remanded.

      . Should the court below determine that this matter is ripe for appraisal and that appraisal should proceed before trial on the coverage issue, no further order need be issued to reserve jurisdiction to determine legal questions regarding the policy's terms and coverage following appraisal. See Galeria Villas Condominium Ass’n, 48 So.3d at 192.


author: . PER CURIAM. SALTER, J.

text:
    Roy BORGES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2851.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.
    Roy Borges, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, ROTHENBERG, and SALTER, JJ.
   . PER CURIAM.

Affirmed.

SALTER, J.

(concurring).

The record regarding Roy Borges’s appeal from the denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 demonstrates no error, and thus I concur in the decision to affirm that denial. The legal theories set forth in Borges’s motion and brief, and the published articles and awards described in his attachments to the motion, are not matters that are relevant to a claim for relief under Rule 3.850.

The record does not disclose whether Borges has also sought relief from the executive branch under Chapters 940 and 947, Florida Statutes (2010). In the event he has not done so, this concurrence identifies those provisions to Borges for his further research, while expressing no position regarding the availability or merits of any such application.


text:
    Gustavo CASTILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2989.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.
    Gustavo Castillo, in proper person.
    Pamela Jo Bondi, Attorney General for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   WELLS, Judge.

Gustavo Castillo appeals an order summarily denying his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

The excerpt of the Rule 3.800 hearing transcripts provided to this Court reflect that the court below denied the instant motion as successive based upon a prior order denying the defendant’s claim that he was improperly classified as a habitual felony offender. However, the lower court failed to attach to the instant order under review either Castillo’s prior Rule 3.800 motion or the prior order denying the motion. Therefore, because the record now before us fails to make the required showing that the defendant is entitled to no relief, we reverse the order and remand for further proceedings. . If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach the record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Chentee KEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3035.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.
    Rehearing Denied March 3, 2011.
    Chentee Key, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Affirmed. See Fulcher v. State, 766. So.2d 243 (Fla. 4th DCA 2000).


text:
    Ranier GILLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3226.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.
    Ranier Gillis, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Florida Rules of Appellate Procedure 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. 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.


text:
    Dam LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3269.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.
    Dam Lopez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, CORTINAS, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. 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.


text:
    Moises FAIDENGOLD, Appellant, v. Diana ESCORIHUELA, Appellee.
    No. 3D10-2498.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.
    Alan S. Fine, for appellant.
    Ricardo Pines, Coral Gables; Gonzalez & Wermuth, J. Michael Wermuth, Miami, and Vijay G. Brijbasi, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Affirmed. See LaRose v. A.K., 37 So.3d 265 (Fla. 2d DCA 2009).