author: CASANUEVA, Judge.

text:
    MDC 6, LLC, a Florida limited liability company; Medallion Convenience Stores, Inc.; and Kenneth L. Wood, Appellants. v. NRG INVESTMENT PARTNERS, LLC, Appellee.
    No. 2D11-3793.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2012.
    Jon M. Oden, Kimberly E. Lorenz, and Jamie Billotte Moses of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellants.

      Margaret D. Mathews and Richard H. Martin of Akerman Senterfitt, Tampa; and Joseph E. Foster of Akerman Senter-fitt, Orlando, for Appellee.
   CASANUEVA, Judge.

MDC 6, LLC, a Florida limited liability company; Medallion Convenience Stores, Inc.; and Kenneth L. Wood (collectively MDC 6) appeal that part of the trial court’s order of June 29, 2011, that denied arbitration of a mortgage foreclosure dispute. MDC 6 argues that the trial court erred in denying its motion with regard to the foreclosure claims because section 10.15 of the subject mortgages requires arbitration of any claim or controversy between the parties when requested by either party. We agree with MDC 6 and reverse.

Facts

NRG Investment Partners, LLC (the Mortgagee), filed suit against MDC 6 to foreclose and collect under a number of mortgages and related loan documents it held in which MDC 6 was the debtor. In response, MDC 6 filed a motion to compel arbitration based upon section 10.15. The trial court ruled:

2. Plaintiff, [the Mortgagee’s,] claims for foreclosure relating to the Plant City Loan Agreement, the Riverview Loan Agreement and the Polk City Loan Agreement, as defined in Plaintiffs Verified Amended Complaint, shall proceed [in the trial court].
3. Any claims of Plaintiff on promissory notes and guarantees relating to the Plant City Loan Agreement, the Riverview Loan Agreement and the Polk City Loan Agreement, as defined in Plaintiffs Verified Amended Complaint, are stayed and shall be arbitrated.

MDC 6 appeals the portion of this order that denies arbitration of the claims for foreclosure. We review this interlocutory order de novo. See Tubbs v. Hudec, 8 So.3d 1194, 1196 (Fla. 2d DCA 2009); Auchter Co. v. Zagloul, 949 So.2d 1189, 1191 (Fla. 1st DCA 2007).

The Issue

To establish entitlement to arbitration, a party must satisfy three separate prongs: (1) that a valid written agreement to arbitrate exists, (2) that an arbitrable issue exists, and (3) that the right to arbitrate has not been waived. Swan Landing Dev., LLC v. Fla. Capital Bank, N.A., 19 So.3d 1068, 1070 (Fla. 2d DCA 2009); Kolsky v. Jackson Square, LLC, 28 So.3d 965, 968 (Fla. 3d DCA 2010). The existence of prongs one and three is undisputed in this case, so the only question is whether the Mortgagee’s foreclosure claims are “arbi-trable issues” and thus satisfy the second prong.

“[T]he determination of whether an arbitration clause requires arbitration of a particular dispute necessarily ‘rests on the intent of the parties.’ ” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (quoting Seaboard Coast Line R.R. Co. v. Trailer Train Co., 690 F.2d 1343, 1348 (11th Cir.1982)). For that, we look to the plain language of the arbitration agreement in the subject documents. See Crawford v. Barker, 64 So.3d 1246, 1255 (Fla. 2011) (“Where the terms of a contract are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document.”).

We begin with section 10.15, titled “Mandatory Arbitration.” In bold lettering it states:

Any controversy or claim between or among the parties hereto including but not limited to those arising out of or relating to this mortgage or any related agreements or instruments, including any claim based on or arising from an alleged tort, shall be determined by-binding arbitration....

Section 10.15 further provides in subsection (b), titled “Reservation of Rights”:

Nothing in this mortgage shall be deemed to ... (iii) limit the right of the mortgagee hereto (A) to exercise self help remedies, or (B) to foreclose against any real or personal property collateral, or (C) to obtain from a court provisional or ancillary remedies such as (but not limited to) injunctive relief or the appointment of a receiver. The mortgagee may exercise such self help rights, foreclose upon such property, or obtain such provisional or ancillary remedies before, during or after the pen-dency of any arbitration proceeding brought pursuant to this mortgage....

Lastly, section 10.15(b) concludes with the following acknowledgment:

Neither this exercise of self help remedies nor the institution or maintenance of an action for foreclosure or provisional or ancillary remedies shall constitute a waiver of the right of any party, including the claimant in any such action, to arbitrate the merits of the controversy or claim occasioning resort to such remedies.

Analysis

By its express language, section 10.15 applies to “[a]ny controversy or claim ... arising out of or relating to this mortgage.” “[T]he phrase ‘arising out of or relating to’ the contract has been interpreted broadly to encompass virtually all disputes between the contracting parties, including related tort claims.” Seifert, 750 So.2d at 637. This phrase’s expansive reach reveals that the controversy regarding foreclosure falls within the contractual obligation to arbitrate.

However, the language of section 10.15(b) purports to exempt from the grasp of arbitration the mortgagee’s right to foreclose against real property collateral secured by the mortgage. The mortgagee is given broad discretion to foreclose upon such property at any time — “before, during or after the pendency of any arbitration proceeding brought pursuant to this mortgage.”

Unfortunately, section 10.15(b) goes on to create a waiver of the rights which it had just reserved with regard to foreclosure actions. The section concludes by providing that “the institution or maintenance of an action for foreclosure” will not “constitute a waiver of the right of any party ... to arbitrate.”

To summarize, this contract requires arbitration of the Mortgagee’s foreclosure claims, then excludes them from arbitration, then reintroduces them to the mandate of the arbitration clause. After traveling this circuitous route, we conclude that the plain meaning of the agreement is to require arbitration for foreclosure claims, despite the fact that there is obviously a clause in section 10.15(b) that might be read otherwise. Cf. Apartment Inv. & Mgmt. Co. v. Flamingo/S. Beach 1 Condo. Ass’n, Inc., 84 So.3d 1090 (Fla. 3d DCA 2012) (affirming denial of motion to arbitrate where a provision of the contract excluded equitable claims from the duty to arbitrate).

Consequently, we reverse the trial court’s order in part and hold that all claims pursuant to the mortgages between MDC 6 and the Mortgagee shall be arbitrated. The Mortgagee may continue its foreclosure action against any junior lien-ors or claimants.

Reversed and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Atef ZAKHARY, M.D., and Heba Zakhary, Appellants, v. RAYMOND THOMPSON PSM, INC.; Raymond Thompson, individually; and Eric Blackburn, an individual, Appellees.
    No. 2D11-2145.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2012.
    Steven L. Brannock and Maegen P. Luka of Brannock & Humphries, Tampa, for Appellants.
    Scott A. Cole and Kristen A. Tajak of Cole Scott & Kissane, P.A., Miami, for Appellees.
   ALTENBERND, Judge.

Atef Zakhary, M.D., and Heba Zakhary, his wife (“the Zakharys”), appeal a final summary judgment in their action against Raymond Thompson PSM, Inc.; its employee, Eric Blackburn; and Raymond Thompson individually (collectively “Raymond Thompson”). We reverse and remand for further proceedings.

The Zakharys filed a lawsuit against Raymond Thompson, which is a land surveying company, alleging a claim of professional malpractice. The Zakharys allege that Raymond Thompson negligently prepared a survey for their next-door neighbors, resulting in damage to the Zakharys. Raymond Thompson obtained a summary judgment by convincing the trial court that the outcome of an earlier lawsuit estopped the Zakharys from pursuing this claim. Thus, to understand the error that requires reversal in this case, we must first discuss the underlying lawsuit.

I. The Lawsuit between the Neighbors

The Zakharys have owned residential property on Davis Islands in Tampa since 2003. When they purchased this property, there was an old fence between their property and a neighboring lot, which ran roughly east to west. At the time, no one was concerned about whether the fence was precisely on the lot line. If good fences truly make good neighbors, this was not a good fence.

The Zakharys tore down their existing home in 2004 in order to construct a new, larger home, which was to be built right up to the setback line that ran roughly parallel to the fence. The Zakharys apparently obtained their building permit and prepared their lot plan based on a survey of the property that they obtained from a qualified surveyor.

When the Zakharys began construction on their home, their neighbors on the other side of the fence objected. The neighbors claimed that the Zakharys were building the home over the setback line. The neighbors relied on a survey prepared for them by Raymond Thompson in 2003, when they were building an addition to their house. The difference between the two surveys is slight. In essence the dif-. ference involves the placement of the boundary at the west corner of the fence. The dispute at that location involves a difference of 2 1/2 feet. This difference creates a disputed territory that is a skinny triangle of land about 2 1/2-feet wide at the west corner of the properties and coming to a point at the east corner. Although it may involve less than 200 square feet of land, the difference of even a few inches affects the setback line.

The disagreement between the neighbors was not quickly resolved. Construction was halted on the home. Eventually, the neighbors sued the Zakharys. The Zakharys unsuccessfully attempted to add Raymond Thompson to that lawsuit. Following a day of court-ordered mediation in May 2006, the Zakharys and their neighbors reached a handwritten settlement agreement. Raymond Thompson was not a party to this agreement. The mediated settlement did not involve an agreement to quiet title along any specified property line that the parties agreed to be correct.

The agreement between the two neighbors provided that the Zakharys would execute and deliver “commercially reasonable transfer documents” so that their neighbors would have fee simple title to the disputed triangle created by the discrepancy between the two surveys. Thus, the agreement anticipated that the line established by the Raymond Thompson survey would ultimately define the property line between these two lots but would not otherwise affect the description of the property owned by the Zakharys. The agreement further contemplated the creation of a perpetual use easement and the building of a wall between the properties on the line established by the Raymond Thompson survey.

When the parties attempted to establish this line for the new wall, a dispute arose over how to interpret the Raymond Thompson survey to create an actual line on earth. This resulted in efforts to enforce the mediated settlement in court. Following an initial ruling on the issue, Judge Pendino, who was the presiding judge in the earlier action, agreed to rehear the matter and conducted an extensive, day-long evidentiary hearing. Significantly, on April 8, 2008, at the beginning of the evidentiary hearing, counsel for the Zakharys explained that the judge would be hearing from the surveyors during testimony that day but that “the purpose of the survey testimony is not to determine which survey is right and which is wrong.” He explained that the surveyors were testifying to demonstrate confusion over the location of the west corner — a confusion that the Zakharys believed caused the parties not to have reached a meeting of the minds at the time of the mediation. The attorney for the neighbors immediately agreed that the parties were not litigating a boundary dispute at the hearing.

Ultimately, Judge Pendino ruled in favor of the neighbors on May 6, 2008. He enforced the settlement agreement. The final judgment adjudged that “based on the evidence presented and tried in connection with the settlement enforcement proceedings, ... the property line dividing [the two lots] is determined by the boundary survey prepared by Raymond Thompson.”

The Zakharys appealed that ruling. Raymond Thompson was not a party to the appeal. This court affirmed the trial court’s ruling without a written opinion. See Zakhary v. Giammarco, 16 So.3d 142 (Fla. 2d DCA 2009) (table decision).

II. The Lawsuit against Raymond Thompson

Following the loss of the dispute between the neighbors, the Zakharys brought this action against Raymond Thompson. It alleges that the Raymond Thompson survey was negligently prepared. The complaint claims that this professional negligence caused the Zakharys to suffer economic damages, including costs associated with the delay in construction and the expense involved in defending the lawsuit brought by the Zakharys’ neighbors.

Raymond Thompson moved for summary judgment, arguing that the outcome of the earlier lawsuit precluded this lawsuit. It argued that the validity or accuracy of its survey was established in the earlier lawsuit and that this case is barred either by collateral estoppel or judicial es-toppel. The trial court was persuaded by this argument and granted summary judgment.

In fairness to the trial court in this case, the final judgment in the earlier lawsuit is confusing on its face. The style of the final judgment shows Raymond Thompson as a third-party defendant. But it is clear that Raymond Thompson was not a party to either the settlement agreement or the lawsuit when the final judgment was entered. Apparently, the style of the final judgment merely reflects the unsuccessful effort to join Raymond Thompson as such. Thus, no issue between these parties was directly resolved in the earlier lawsuit.

Perhaps more importantly, the accuracy of the Raymond Thompson survey has never been litigated. As explained earlier, the lawyers in the underlying action made that very clear to Judge Pendino. His judgment merely stated: “[Biased on the evidence presented and tried in connection with the settlement enforcement proceedings, ... the property line dividing [the two lots] is determined by the boundary survey prepared by Raymond Thompson.” It is determined by that line because of the agreement reached in mediation, not because any court has determined the Raymond Thompson survey to be accurate.

Accordingly, the trial court erred in granting summary judgment on any theory of estoppel. Judicial estoppel is an equitable doctrine that authorizes judges to prevent, litigants from taking totally inconsistent positions in separate judicial or quasi-judicial proceedings. Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla.2001). This doctrine is inapplicable because the Zakharys are not asserting a position that is inconsistent with that which they took in the prior litigation. Equitable estoppel is inapplicable as well because the Zakharys have made no representation of material fact contrary to the position they now assert, and Raymond Thompson has not relied or changed its position to its detriment based on any representation by the Zakharys. See Win-ans v. Weber, 979 So.2d 269, 274-75 (Fla. 2d DCA 2007). Finally, collateral estoppel is inapplicable because this case does not involve relitigation of the same issues by the same parties in a different cause of action. See M.C.G. v. Hillsborough Cnty. Sch. Bd, 927 So.2d 224, 226 (Fla. 2d DCA 2006). For these reasons, we must reverse and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and DAVIS, JJ., Concur.

      . In its order granting Raymond Thompson’s motion for summary judgment, the trial court clarified that the basis for its decision was "judicial estoppel or equitable estoppel, not collateral estoppel.”


author: TAYLOR, J.

text:
    R.T.G. FURNITURE CORP. d/b/a Rooms To Go, Appellant, v. Franklin COATES and Lorie A. Coates, Appellees.
    No. 4D11-2399.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Scott A. Cole and Kristen A. Tajak of Cole, Scott & Kissane, P.A., Miami, for appellant.

      Leonard P. Haberraan of Haberman Law, P.A., Boca Raton, for appellees.
   TAYLOR, J.

R.T.G. Furniture Corporation (“RTG”) appeals a final order denying its motion for entitlement to attorney’s fees pursuant to a proposal for settlement. The trial court ruled that RTG’s proposal for settlement was one day late under Florida Rule of Civil Procedure 1.442. We reverse and hold that the proposal for settlement was timely served “45 days before” the date set for trial within the meaning of rule 1.442(b). Therefore, the trial court erred in denying RTG’s motion for entitlement to attorney’s fees.

By way of background, the appellees, Franklin and Lorie Coates, sued RTG for negligence and loss of consortium after a shelf installed in the appellees’ home by RTG employees fell and struck Mr. Coates on the head. On January 28, 2011, which was the 45th day before the trial start date of March 14, 2011, RTG served a proposal for settlement on Mr. Coates. Mr. Coates did not accept the proposal. Following a trial, the jury returned a verdict in favor of RTG, and the trial court entered final judgment for RTG. RTG then filed a motion for entitlement to attorney’s fees and costs.

The trial court held a hearing, at which the court considered only the issue of entitlement. The hearing focused upon the meaning of rule 1.442(b), which provides in pertinent part: “No proposal shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier.”

After hearing argument from the parties, the trial court ultimately ruled that the proposal for settlement was untimely. The trial court’s reasoning can be summarized as follows: (1) the 45 days had to be counted forward from the date of service of the proposal, rather than backwards from the date of trial; (2) the date of service could not be counted in calculating the 45 days, (3) the trial in this case began on the 45th day after the proposal was served, and (4) in order for the proposal to be timely, the 45th day had to be the day before the start of trial.

The trial court thus concluded that the January 28 proposal for settlement was one day short of being timely under rule 1.442 and that RTG was not entitled to attorneys’ fees based on the proposal. The trial court did, however, grant RTG’s motion for costs.

The trial court subsequently entered an order denying RTG’s motion for attorney’s fees based on the January 28 proposal for settlement. The order stated in pertinent part: “Granted as to Defendant RTG[’s] motion for entitlement for fees [sic]. Denied as [to] Defendant RTG[’s] Jan. 28, 2011 Proposal for Settlement.” This appeal follows.

On appeal, RTG argues that the plain language of rule 1.442 permits proposals for settlement to be served on the 45th day before the date set for trial. RTG thus argues that the trial court erred in determining that the January 28 proposal for settlement was not timely served under rule 1.442 where it was served on the 45th day before the start of trial.

The appellees respond that because rule 1.442 must be strictly construed, the rule should be interpreted as meaning that 45 days must elapse between the date of service and the trial date. The appellees assert that rule 1.090(a) and the definition of “before” in Black’s Law Dictionary both contemplate that the day upon which the first act is done — service of the proposal— is to be excluded from the computation of the 45 days. The appellees maintain that “counting backwards” from the trial date is improper and that the trial court correctly denied RTG’s motion for attorney’s fees pursuant to the proposal for settlement.

The standard of review of a trial court’s interpretation of the rules of civil procedure is de novo. Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 599 (Fla.2006). “It is well settled that the Florida Rules of Civil Procedure are construed in accordance with the principles of statutory construction.” Id. When the language at issue is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). Rather, the court must give unambiguous language its plain and ordinary meaning, unless it leads to a result that is either unreasonable or clearly contrary to legislative intent. Tillman v. State, 934 So.2d 1263, 1269 (Fla.2006), superseded by statute on other grounds as stated in Motes v. State, 37 So.3d 301 (Fla. 4th DCA 2010); Green v. State, 604 So.2d 471, 473 (Fla.1992). When necessary, the plain and ordinary meaning of text may be discerned by reference to a dictionary. W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 9 (Fla.2012); Rollins v. Pizzarelli, 761 So.2d 294, 297-98 (Fla.2000).

Text is ambiguous only if reasonable people could find different meanings from the same language. See Blanton v. City of Pinellas Park, 887 So.2d 1224, 1230 (Fla. 2004). When language is ambiguous, a court may turn to rules of construction. See Samples v. Fla. Birth-Related Neurological, 40 So.3d 18, 21 (Fla. 5th DCA 2010). One such rule of construction is that the language of rule 1.442 must be strictly construed because it is in derogation of the common law rule that each party must pay its own fees. See Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003).

As stated above, rule 1.442(b) restricts service of a proposal for settlement to no “later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier.” Fla. R. Civ. P. 1.442(b); see also Kroener v. Fla. Ins. Guar. Ass’n, 63 So.3d 914, 918 (Fla. 4th DCA 2011). Accordingly, when this case is boiled down to its essence, this court is called upon to interpret the phrase “no ... later than 45 days before the date set for trial....”

The phrase “no later than” is equivalent to “on or before” and “conveys an important nuance” in legal writing. See Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995). “It is not equivalent to before, which does not include the date specified.” Id.

RTG relies upon this definition of “no later than” as set forth in the Dictionary of Modern Legal Usage, but this definition alone does not answer the relevant question. The relevant question is how to count “45 days before the date set for trial” for purposes of determining the deadline to serve a proposal for settlement under rule 1.442(b). In other words, we must still decide whether the proposal in this case was served “45 days before the date set for trial.”

The term “before” means “prior to” or “preceding.” See, e.g., Black’s Law Dictionary 125 (2d ed. 1910). Although the current Black’s Law Dictionary no longer contains a definition of “before,” earlier versions of Black’s Law Dictionary stated the following under the definition of “before”:

[W]here an act is required to be done a certain number of days or weeks before a certain other day upon which another act is to be done, the day upon which the first act is to be done must be excluded from the computation, and the whole number of the days or weeks must intervene before the day fixed for doing the second act.

Id. at 125 (citing Ward v. Walters, 63 Wis. 39, 22 N.W. 844 (1885)).

To be sure, this entry in earlier versions of Black’s Law Dictionary supports the appellees’ argument and the trial court’s reasoning. Nonetheless, we find that the trial court’s ruling is inconsistent with both Florida Supreme Court precedent and the natural reading of rule 1.442.

Our supreme court has held that in computing the time for performance of an act which must take place a certain number of days before a known future date, one of the terminal days must be excluded and the other included. See Jacksonville Land Holding Co. v. Am. Oil Co., 136 Fla. 491, 498, 188 So. 809, 812 (1938); see also McMillen v. Hamilton, 48 So.2d 162, 163 (Fla.1950) (“The general rule for the computation of time accepted and recognized in this jurisdiction is that where an act is to be performed within a specified period of time, the first day is excluded in the computation and the last day of the period is included.”).

In Jacksonville Land Holding, the supreme court explained that where an act is required to be done within a specified number of days from or after a given occurrence, the rule usually adopted “has been to exclude the day of giving the notice and include the day of required performance.” 136 Fla. at 498, 188 So. at 811. However, where an act is required to be done a stated number of days before or prior to a day to be specified, that time should be computed by including the first day and excluding the last day. See id. at 498, 812 (“[W]e hold that if a notice is required to be given a stated number of days prior to a day to be specified that time should be computed counting and including the day notice is given and excluding the specified day of performance.”).

The reasoning of Jacksonville Land Holding applies equally to this case. Because the proposal for settlement was required to be served 45 days before the date set for trial, the proper method for counting the 45 days is to include the day the proposal for settlement was served and to exclude the date set for trial. See id. at 498, 812.

The appellees nonetheless argue that Florida Rule of Civil Procedure 1.090(a) prohibits this court from including the day the proposal for settlement was served in computing the 45 days under rule 1.442(b). Rule 1.090(a) provides, in pertinent part, as follows:

(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday.

(Emphasis added).

Contrary to the appellees’ argument, rule 1.090(a) does not change the result in this case. Indeed, in this case it is unnecessary to consult rule 1.090(a) given the clarity of rule 1.442(b). See Goldstein v. Wortmann, 712 So.2d 397 (Fla. 4th DCA 1998). In Goldstein, the question presented was whether an affidavit in opposition to summary judgment was timely under Florida Rule of Civil Procedure 1.510(c) where it was delivered to opposing counsel at 4:00 p.m. on March 18, 1997, and the summary judgment hearing was set for March 20, 1997. Rule 1.510(c) provides in pertinent part that the affidavit is timely if delivered to the movant’s attorney “no later than 5:00 p.m. two business days prior to the day of hearing.” The trial court struck the affidavit as untimely, but our court reversed. We explained that the affidavit was timely under rule 1.510(c): “If the day of the hearing was March 20, one day prior to the hearing was March 19, and two days prior to the hearing was March 18. Accordingly, appellant had until 5:00 p.m. on March 18 to deliver the affidavit.” Id. at 397. Moreover, in computing the number of days, this court reasoned that “it is unnecessary to consult rule 1.090(a), because of the clarity of rule 1.510(c).” Id.

The analysis in Goldstein is instructive here. By including the first day in the computation (March 18) and excluding the last day (March 20), the Goldstein court interpreted the phrase “no later than ... two business days prior” in rule 1.510(c) consistent with the methodology set forth in Jacksonville Land Holding. Similarly, in this case, if the date set for trial was March 14, one day before the trial date was March 13, two days before the trial date was March 12, and so forth. Simple arithmetic therefore confirms that January 28 was “45 days before” the date set for trial within the meaning of rule 1.442(b). Accordingly, RTG timely served the proposal for settlement on January 28, 2011.

Our conclusion is further supported by the natural reading of rule 1.442(b). Logically, in a case where the relevant period of time is defined as a certain number of days before or prior to a specified event, the period of time must be counted backwards from the day of the event (excluding the day of the event itself). This method of counting the days is consistent with a natural reading of the phrase “no later than (X number of days) before” a specified date. For example, if, hypothetically, a professor told a class that an essay was due “no later than two days before Friday,” the only reasonable interpretation of that statement would be that the deadline was on Wednesday. If the professor had intended the deadline to be Tuesday, no reasonable person would ever recognize that deadline from the description of “no later than two days before Friday.”

Likewise, the plain and ordinary meaning of rule 1.442(b) is that the deadline for serving a proposal for settlement is the 45th day before the date set for trial; in other words, the 45 days includes the date of service of the proposal for settlement but does not include the trial date.

In sum, the language of rule 1.442(b) is unambiguous and its natural meaning should be applied as written without resort to any other rules of construction, such as the rule that fee shifting rules are strictly construed. Because the January 28 proposal for settlement was served on the 45th day before the March 14 trial date, the proposal was timely under rule 1.442(b) and the trial court erred in concluding otherwise. Accordingly, we reverse the denial of RTG’s motion for entitlement to attorney’s fees based on the January 28 proposal for settlement and remand for further proceedings.

Reversed and Remanded.

STEVENSON and CIKLIN, JJ„ concur.

      . The trial court’s oral ruling makes clear that the trial court must have meant "costs” instead of fees in the written order.


author: LEVINE, J.

text:
    James LEYRITZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1114.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    J. David Bogenschutz of Bogenschutz, Dutko & Kroll, P.A., Fort Lauderdale, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for Appellee.
   LEVINE, J.

The issue presented is whether the trial court erred in failing to specifically allocate the costs of prosecution, where appellant was charged with two offenses, the trial court entered a judgment of acquittal as to one count, and appellant was convicted of a lesser-included misdemeanor for the charged felony. We And the trial court erred and should have enumerated the costs of prosecution related to the crime for which appellant was convicted. We reverse the orders of the trial court.

Appellant was charged with manslaughter by impairment and manslaughter based on unlawful blood alcohol level. The trial court entered a judgment of acquittal on manslaughter by impairment. As to manslaughter based on unlawful blood alcohol level, the jury found appellant guilty of the lesser-included offense of misdemeanor driving under the influence.

The state moved to tax the sum of $28,162 as costs of prosecution, which included $16,497 as costs for expert witness fees, transcripts, exhibits, travel expenses, and other costs for trial preparation. These costs also included fees associated with expert witnesses Dr. Mark Montgomery and Marla Carroll, a forensic video expert. The state also moved to tax costs of $12,860 for the testimony of toxicology experts Dr. Harold Schueler and Michael Wagner.

The trial court held a hearing to determine if the state was entitled to the costs of prosecution and the fees for the toxicology experts. At the hearing, appellant contested the charges and maintained that there should be allocation of costs, since appellant, although charged with manslaughter by impairment and manslaughter based on unlawful blood alcohol level, was convicted only of a lesser-included misdemeanor. The trial court determined that appellant was responsible to pay the entire cost of $12,360 for the toxicologist experts and a flat $15,000 out of the requested $28,162 for the other costs of prosecution. Responding to whether it was “differentiating between the fact that it was ... a misdemeanor that was returned as opposed to a felony,” the trial court stated the following in its ruling:

That’s why I’m going to be intentionally vague. I am reducing it based on all the arguments I’ve heard, what I feel is some overlapping, what I feel is — I don’t know that anybody’s going to be happy with what I do but that’s happened before, I’m sure it will happen again. But for the record, I mean, it’s hard for a judge to sit here and dissect this. I mean, obviously, the Defense feels that it should be a small fraction of what it is based on what we would normally expect in a DUI case alone by the party, the Defendant. But in this particular case that’s just not the way it was, you had experts, she had to respond to them, she had to meet with them, take the depositions, things of that nature.
But having said that, as to Dr. Schueler I’m giving the entire amount $12,360. As for the remaining costs, I’m going to give you one number; $15,000; $12,360 for Dr. Schueler and $15,000.

Appellant appeals the trial court’s order assessing costs of prosecution and the order assessing expert witness costs.

We review the trial court’s orders assessing costs under an abuse of discretion standard. Davis v. State, 42 So.3d 807, 809 (Fla. 1st DCA 2010). Further, we review “[questions of statutory interpretation” de novo. Allen v. State, 82 So.3d 118,120 (Fla. 4th DCA 2012).

We initially begin by reviewing the pertinent statute. According to section 938.27(1), Florida Statutes (2010), “convicted persons are liable for payment of the costs of prosecution, including investigative costs incurred by law enforcement agencies.” The statute states further that the “court shall include these costs in every judgment rendered against the convicted person.” § 938.27(1), Fla. Stat. (2010) “[CJonvicted” for purposes of this statute means “a determination of guilt ... which is a result of a plea, trial, or violation proceeding.” Id. Finally, any dispute as to the proper amount or type of costs to be paid shall be resolved by the trial court by the preponderance of the evidence. § 988.27(4), Fla. Stat. (2010).

While “the trial court has broad discretion to determine the amount and type of costs of prosecution to be assessed against a convicted person,” the design of the statute relied upon by the trial court is “to compensate the state for the expenses of prosecution associated with individual violations.” Davis, 42 So.3d at 809-10. Clearly, a defendant who is acquitted or discharged is not liable for any costs or fees of the court or any ministerial office. § 989.06, Fla. Stat. (2010). In the present case, appellant was discharged from one offense and convicted of a lesser-included misdemeanor for the charged felony. Thus, the trial court has the discretion to assess costs associated with the crimes for which appellant received a “determination of guilt.”

We are persuaded by the reasoning of United States v. Palmer, 809 F.2d 1504 (11th Cir.1987), where the defendant was indicted on three counts of willfully and knowingly attempting to evade the payment of income taxes. At trial, on each count, the defendant was found guilty of the lesser-included offense of willful failure to file a federal income tax return. The government submitted a bill for $57,950. The defendant objected, arguing that some of the requested costs were relevant only to proving the allegations of tax evasion. Although the government conceded that some of the costs associated with certain witnesses should be deducted from the requested costs, the defendant continued to object, claiming that much of the government’s case still went to the allegations of evasion.

The Eleventh Circuit concluded that “a defendant convicted on fewer than all the counts- of an indictment cannot be properly taxed with the costs of the counts on which he was a[c]quitted or otherwise discharged.” Id. at 1508-09. The appellate court determined that it could not resolve the factual disputes as to which evidence related to the evasion charges, as opposed to which evidence related to the failure to file charges. The Eleventh Circuit remanded in order for the trial court to receive evidence which would demonstrate that “the cost incurred in presenting such evidence [was] reasonable and necessary to the proof of the ... offense.” Id, at 1509. In the present case, the trial court must find that the costs incurred by the state and paid by appellant are “reasonable and necessary to the proof’ of the crime for which appellant was convicted, misdemeanor driving under the influence. See also People v. Palomo, 272 P.3d 1106, 1113 (Colo.App.2011) (holding that “[o]n remand, the trial court may assess only those costs that are related to the prosecution of the eluding counts of which defendant was convicted, to the extent an allocation is practicable”); Commonwealth v. Smith, 239 Pa.Super. 440, 361 A.2d 881, 881-84 (1976) (remanding for the trial court “to determine what portion of the costs, if any were necessary to try [the defendant] only on those charges which resulted in acquittal” where the defendant was convicted of a misdemeanor charge of firearm possession but acquitted of a felony charge of murder).

In summary, the trial court must determine that the costs sought by the state were reasonably and necessarily related to the prosecution of the crime for which appellant was convicted. The trial court may not, like in the present case, be “intentionally vague” as to whether the costs requested were reasonably and necessarily related to the prosecution of the crime of driving under the influence.

We reverse the trial court’s orders relating to costs of prosecution and expert testimony costs, and remand for a determination consistent with this opinion.

Reversed and remanded for further proceedings.

GROSS and TAYLOR, JJ., concur.


author: CIKLIN, J.

text:
    A.T., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3348.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

A.T. appeals the disposition order in which the trial court found him guilty of resisting an officer without violence and withheld adjudication. He argues that the trial court should have granted his motion for judgment of dismissal because the state failed to establish that the officer had reasonable suspicion to justify an investigatory detention when appellant refused the officer’s request for identification and attempted to walk away from the officer. We are compelled to agree and therefore reverse.

During appellant’s trial, an officer from the Davie Police Department testified that on December 17, 2010, he was dispatched to a call “in reference to a suspicious vehicle.” Upon arrival, he exited his marked vehicle and observed three people standing around a parked car. As the officer approached the group, he smelled “a strong odor of cannabis emitting from the area of the vehicle where the subjects were standing.” When asked if he could tell from which individual the odor was emanating, the officer responded, “It was in the general area.”

The officer asked the three individuals for identification. Two of the individuals produced identification, but appellant, who was the third individual, did not. The officer warned appellant that he would be arrested if he did not produce identification. Appellant responded, “I don’t need to give you my ID,” and proceeded to walk away. Thereupon, the officer grabbed appellant by his arm in order to detain him and appellant pulled away. Appellant continued to struggle and pull away from the officer as the officer attempted to put handcuffs on appellant.

After the state rested, defense counsel moved for a judgment of dismissal arguing that this was a consensual encounter in which appellant was free to walk away, and that the police officer who was responding to an anonymous tip regarding a suspicious vehicle did not observe anything that would give rise to a reasonable and well-founded suspicion that appellant was engaged in unlawful activity. The trial court denied the motion. Appellant argues on appeal that the trial court erred in denying his motion.

We review a trial court’s denial of a motion for judgment of dismissal de novo. A.W. v. State, 82 So.3d 1136, 1138 (Fla. 4th DCA 2012). “A conviction for resisting an officer without violence requires proof that (1) the officer was engaged in the lawful execution of a legal duty; and, (2) the actions of the defendant obstructed, resisted or opposed the officer in the performance of that legal duty.” Id. (emphasis added) (citation and quotation marks omitted).

Because the state contended that appellant resisted an officer in the execution of an investigatory detention, the state was required to prove that the officer had a reasonable suspicion of criminal activity that would support the detention. See id. (“In [resisting without violence] cases involving an investigatory detention, it is necessary for the State to prove that the officer had a reasonable suspicion of criminal activity .... ” (quoting Davis v. State, 973 So.2d 1277, 1279 (Fla. 2d DCA 2008))). “Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop.” Fuentes v. State, 24 So.3d 1231, 1234 (Fla. 4th DCA 2009) (citation and quotation marks omitted).

In this case, the officer testified that his decision to conduct an investigatory detention was based solely on the fact that he could smell an odor of marijuana emanating from the general area where appellant and the two other individuals were standing. The officer acknowledged that he never observed any of the individuals committing a crime nor did he observe them make any furtive movements. Additionally, when the officer approached the group of individuals, none of them tried to run from the location. The fact that appellant “was standing with a group of [individuals] surrounded by the odor of burned marijuana was insufficient to supply more than a ‘mere suspicion’ that [appellant] was in possession of marijuana.” See Robinson v. State, 976 So.2d 1229, 1238 (Fla. 2d DCA 2008). However, “[m]ere suspicion is not enough to support a stop.” Popple v. State, 626 So.2d 185, 186 (Fla.1993).

In summary, the odor of marijuana emanating from the general area where appellant and two other individuals were standing did not provide the officer with reasonable suspicion to detain appellant; therefore, the officer was not acting in the lawful execution of a legal duty when appellant refused to present his identification and attempted to walk away. Thus, the finding of guilt as to resisting an officer without violence must be reversed.

Reversed and remanded for entry of judgment of dismissal.

STEVENSON and TAYLOR, JJ., concur.

      . In State v. Hernandez, 706 So.2d 66 (Fla. 2d DCA 1998), the Second District held that "[t]he [strong] odor of marijuana [emanating from a cluster of people] gave the officers probable cause to believe the members of the group had marijuana in their possession and, therefore, to search each person who was present.” Id. at 67. In Green v. State, 831 So.2d 1243 (Fla. 2d DCA 2002), however, the Second District held that the odor of marijuana did not give the police probable cause to believe the members of a group had marijuana in their possession and to search each person who was present. Id. at 1245. The court seems to have narrowed its Hernandez holding by distinguishing the fact that, in Hernandez, the police stopped the defendant only after he had walked away from the group, and an officer who had followed the defendant detected the odor of marijuana emanating from the defendant's person. Id. at 1245. Thus, given the Second District’s later opinions in Green and Robinson, we do not certify conflict with Hernandez.


author: PER CURIAM.

text:
    STATE FARM FIRE AND CASUALTY COMPANY, Petitioner, v. REMBRANDT MOBILE DIAGNOSTICS, INC. a/a/o Nerece Francois, Respondent.
    No. 4D12-2169.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.

      Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale and Matthew D. Heilman of Matt Heilman, P.A., Plantation, for petitioner.
    Marlene S. Reiss of Marlene S. Reiss, P.A., Miami, for respondent.
   PER CURIAM.

In this petition for second-tier certiorari, the petitioner argues that the circuit court, in its appellate capacity, departed from the essential requirements of the law in denying the petitioner’s motion for entitlement to recover a conditional award of appellate costs and attorney’s fees under the proposal for settlement statute, section 768.79, Florida Statutes (2011). We agree and grant the petition.

In the appellate proceedings before the circuit court, the respondent conceded that the court should grant the motion. The coui't, however, concluded that the petitioner was not entitled to recover its appellate costs and attorney’s fees because the petitioner’s success in obtaining a reversal of the county court order on appeal was not itself a money judgment.

The instant petition followed. The respondent concedes in this court that the circuit court’s conclusion departed from the essential requirements of the law. We agree. The plain and mandatory terms of the proposal for settlement statute encompass all costs and attorney’s fees incurred leading up to a final judgment. The statute provides, in pertinent part:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him ... if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award.

§ 768.79(1), Fla. Stat. (2011) (emphasis added). See also Hotter Roofing, Inc. v. Leibowitz, 883 So.2d 788, 789 (Fla. 3d DCA 2002) (“This Court, along with all district courts in Florida, has ruled that Section 768.79 also applies to fees incurred on appeal.... Thus, the circuit court, sitting in its appellate capacity, departed from the essential requirements of law by denying the petitioner’s request for appellate attorney’s fees.”) (internal citations omitted).

Accordingly, we grant the petition and quash the circuit court’s order denying the petitioner’s motion for entitlement to recover a conditional award of appellate costs and attorney’s fees under the proposal for settlement statute. If the proposal for settlement statute ultimately is satisfied, then the petitioner shall be entitled to recover its appellate costs and attorney’s fees. We direct the circuit court to enter an order on the petitioner’s motion consistent with this opinion.

Petition granted.

POLEN, HAZOURI and GERBER, JJ., concur.


author: LAGOA, J.

text:
    Pedro VALDES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-464.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and CORTIÑAS and LAGOA, JJ.
   CONFESSION OF ERROR

LAGOA, J.

Pedro Valdes (“Valdes”) appeals the judgment and sentence for count two, grand theft. Based on the State’s proper confession of error, we reverse.

On November 26, 2003, Valdes pled guilty to the following three charges: (1) burglary, (2) grand theft, and (3) dealing in stolen property. Valdes received a withhold of adjudication and five years’ probation. On March 9, 2007, Valdes’s probation was revoked and he was sentenced to fifteen years on the burglary charge, five years on the grand theft charge, and fifteen years on the dealing in stolen property charge for a total of thirty-five years. The sentences ran consecutively. On October 21, 2009, this Court affirmed the trial court’s order of the revocation of probation, but remanded for the trial court to correct the written order of revocation “to reflect the sole reason for which the court orally revoked [Valdes’s] probation.” Valdes v. State, 20 So.3d 987, 988 (Fla. 3d DCA 2009).

On June 29, 2010, Valdes, pursuant to Florida Rule of Criminal Procedure 3.800(a), filed a Motion to Correct Illegal Sentence, arguing that he could not be sentenced on both dealing in stolen property and grand theft. On October 20, 2010, the State filed its response to the motion, and citing to Hall v. State, 826 So.2d 268 (Fla.2002), conceded that Valdes’s adjudication and sentence on the grand theft charge should be vacated, and that the record should be corrected to reflect that Valdes shall serve only two consecutive fifteen-year terms of confinement. On December 21, 2010, the trial court vacated the judgment and sentence as to grand theft.

On January 21, 2011, the trial court adjudicated Valdes guilty of grand theft, and resentenced Valdes to “sentence suspended,” on that charge. Neither Valdes nor his attorney were present. Valdes appeals.

Based on this Court’s decision in Cono v. State, 916 So.2d 44 (Fla. 3d DCA 2005), Valdes’s conviction and sentence for grand theft must be reversed. “Convictions for both dealing in stolen property and grand theft violate double jeopardy when the convictions arise ‘in connection with one scheme or course of conduct....’ § 812.025, Fla. Stat. (2005).” Id. at 46; see also Hall, 826 So.2d at 271. As the record reflects that both charges for dealing in stolen property and grand theft relate to one scheme or course of conduct, we reverse the judgment and sentence for grand theft. On remand, the trial court shall enter an order vacating Valdes’s conviction and sentence for grand theft.

Reversed and remanded.

      . Valdes does not appeal the judgment and sentence for either burglary or dealing in stolen property. As such, we do not disturb the judgment and sentence as to those charges.


author: DAVIS, Judge.

text:
    Edward Harris KOUNTZE, Individually and as the Trustee of the Denman Kountze, Jr., Revocable Trust, Appellant, v. Charles Denman KOUNTZE, Appellee.
    No. 2D11-3758.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2012.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers (withdrew after briefing), for Appellant; Adrian P. Thomas of Adrian Philip Thomas, P.A., Fort Laud-erdale, for Appellant.
    Jeffrey D. Fridkin, D. Keith Wickenden, and Michael T. Traficante of Grant, Frid-kin, Pearson, Athan & Crown, P.A., Naples, for Appellee.
   DAVIS, Judge.

Edward Harris Kountze, Individually and as the Trustee of the Denman Kountze, Jr., Revocable Trust (Trustee), challenges an order of the trial court entered in Charles Kountze’s breach of fiduciary duty suit against Edward, as Trustee of their deceased father’s trust. Specifically, Edward challenges only the portions of the trial court’s order removing him as Trustee and requiring him to transfer trust documents to the temporary successor trustee. Because he was not provided with notice or the opportunity to be heard prior to imposition of this sanction, we reverse those portions of the order but affirm the remainder of the order.

Section 736.0706(1), (2)(c), Florida Statutes (2010), provides that “a trustee may be removed by the court on the court’s own initiative ... if ... [d]ue to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries.” The statute therefore suggests that a factual finding must be made by the trial court as to the trustee’s unfitness, unwillingness, and persistent failure to administer the trust effectively.

On appeal, Edward Kountze argues that it was error for the trial court to make such a finding and remove him as Trustee without providing him notice and an opportunity to be heard. We agree. Edward was put on notice of a hearing on Charles’ motion to compel discovery. In that motion, Charles did seek a sanction against Edward for his failure to comply with discovery, but that sanction — the only sanction of which Edward was aware — was the imposition of an attorney’s fee award, not removal as Trustee. Additionally, in a pri- or contempt order entered in this case, the trial court had given Edward twenty days to comply with the discovery request then at issue and had stated that if he failed to do so “Defendant shall pay to Plaintiff $100.00 per day beginning the day after such items are due, and shall continue to pay Plaintiff $100.00 each day until Defendant has fully complied with this order.” There is nothing in the record to put Edward on notice that removal as Trustee was a possible sanction. As such, Edward had no reason to be prepared to defend against such a sanction.

Furthermore the trial court’s order expressly states that this sanction is being imposed not only for Edward’s failure to provide Charles with the requested trust accounting but also for failing to comply with previous court orders. As such, the sanction is analogous to an indirect civil contempt order, which does require notice and an opportunity to be heard. See Bresch v. Henderson, 761 So.2d 449, 451 (Fla. 2d DCA 2000) (“[A] person facing civil contempt sanctions is ... entitled to a proceeding that meets the fundamental fairness requirements of the due process clause.... Such fundamental fairness includes providing the alleged eontemnor with adequate notice and an opportunity to be heard.”); Whitby v. Infinity Radio, Inc., 961 So.2d 349, 355 (Fla. 4th DCA 2007) (reviewing order finding appellant in indirect civil contempt and concluding that “[a] person facing civil contempt sanctions is entitled to notice and an opportunity to be heard”).

Accordingly, we reverse only those portions of the trial court’s order removing Edward Kountze as the Trustee and directing him to transfer trust documents to the successor trustee, and we remand for further proceedings. We affirm the remainder of the order.

Affirmed in part, reversed in part, and remanded.

WALLACE and MORRIS, JJ., Concur.


author: CRENSHAW, Judge.

text:
    R.H., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1276.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2012.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

R.H. appeals the trial court’s revocation of her probation and resulting disposition. Because we conclude that the trial court lacked jurisdiction to revoke R.H.’s probation and enter a new disposition, we reverse.

On July 21, 2010, the trial court placed R.H. on six months of probation after she pleaded guilty to possessing drug paraphernalia. On January 18, 2011, law enforcement filed a sworn affidavit alleging that R.H. had violated her probation by running away from home. However, neither the State nor the Department of Juvenile Justice (DJJ) filed a corresponding petition with the court pursuant to section 985.439(l)(b), Florida Statutes (2010), and Florida Rule of Juvenile Procedure 8.120(a)(3) alleging a violation of probation. Thus, by the time of R.H.’s probation hearing on February 7, 2011, R.H. argued that the trial court lost jurisdiction to consider the violation because she was no longer on probation due to the State’s or the DJJ’s failure to file the petition. The trial court disagreed, finding that the filing of the affidavit tolled the expiration of R.H.’s probation. R.H. ultimately admitted to the violation, and the trial court placed her on an additional three months of probation.

This court recently held that “there is no provision in either the statutes or the rules governing juvenile delinquency proceedings that allows for [the] tolling of probation upon the filing of an affidavit and the issuance of a warrant.” T.L.H. v. State, 93 So.3d 396 (Fla. 2d DCA 2012) (citing K.L.T. v. State, 65 So.3d 102 (Fla. 5th DCA 2011)). Because section 985.439(l)(b) and rule 8.120(a)(3) both- require either the State or the DJJ to file a petition alleging a violation of juvenile probation before revocation proceedings can occur and because no petition was filed in this case, we conclude that R.H.’s probation expired prior to the revocation hearing. Therefore, we adopt this court’s reasoning in T.L.H. and hold that the trial court did not have jurisdiction to consider R.H.’s alleged violation of probation.

Reversed.

NORTHCUTT and MORRIS, JJ., Concur.

      . During the pendency of this appeal, the State filed a pleading suggesting that R.H.’s appeal was moot because she had already served the duration of her probation. For reasons that we recently stated in T.L.H. v. State, 93 So.3d 396 (Fla. 2d DCA 2012), and M.L.J. v. State, 93 So.3d 348 (Fla. 2d DCA 2012), we conclude that R.H.’s appeal is not moot. This case concerns a procedural error that is subject to repetition. T.L.H., 93 So.3d at 397 (citing N.W. v. State, 767 So.2d 446, 447 n. 2 (2000)).


text:
    Robert P. OCHALA, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0395.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2012.

      Melissa Montle and Seth E. Miller of Innocence Project of Florida, Inc., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Robert P. Ochala, who was convicted of various crimes in connection with a burglary, appeals an order denying his motion for DNA testing of a glove recovered from the crime scene. The trial court denied the motion because the court concluded the motion was a successive motion. Because we find the motion was not a successive motion, we reverse and remand for further proceedings.

In 2002, appellant was convicted of burglary of a structure while armed, attempted second degree murder, grand theft of a firearm, and possession of burglary tools. He received a life sentence. In March 2009, on the authority of rule 3.853, Florida Rules of Criminal Procedure, appellant, pro se, moved for DNA testing of blood obtained from the crime scene. That motion was denied following a hearing. The circuit court denied relief explaining:

The defendant has failed to carry his burden of showing that there is any relevant evidence that was not tested for DNA purposes. Consalvo v. State, 3 So.3d 1014 (Fla.2009). In fact, the State has clearly proven that all relevant materials were tested by the Florida Department of Law Enforcement (FDLE) and no blood was found. Since there is nothing untested, the defendant has certainly not proven that there is anything existing that would tend to exonerate him.

In August 2011, with the assistance of counsel, appellant moved for DNA testing of gloves recovered from the crime scene. The State opposed the second motion arguing that the gloves were at issue in a previous proceeding and were already tested. In reply, appellant argued (i) that the gloves were previously examined for blood, and none was found; (ii) that such prior examination was not a test for the presence of DNA, which may be found in other substances; and (iii) that rule 3.853 does not contain a prohibition against successive motions.

The trial court denied the motion to test the gloves noting that all evidence in the cause had been previously “tested” and, thus, the pending motion was successive. According to the trial court, Florida case law requires that a successive motion for DNA testing under rule 3.853 may not be filed so long as a prior motion was heard.

On appeal, appellant argues that the trial court erroneously denied the motion to test the gloves because (i) there is no provision against successive motions for DNA testing under rule 3.853 and (ii) the motion at issue is not successive. More specifically, appellant asserts that rule 3.853, Florida Rules of Criminal Procedure, does not contain a prohibition, explicit or implicit, against successive motions. Appellant notes that, unlike rule 3.850 which requires a party seeking post-conviction relief to state whether a previous motion was filed and an explanation why matters raised in a current motion were not raised in the previous motion, see rule 3.850(c)(4), there is no such disclosure obligation set forth in rule 3.853. Appellant contends this indicates that rule 3.853 does not bar successive motions. Appellant argues further that, besides lacking a provision forbidding a second or a successive motion, rule 3.853 also differs from rule 3.850 in that it lacks a period of time in which a motion for postconviction can be filed.

The circuit court erred in denying the second motion as successive. The motion at issue in this appeal is not identical to the one previously filed and, thus, is not successive per se. A “successive motion” for the purposes of postconviction relief has been defined as a “motion stating substantially the same grounds as a previous motion attacking the same conviction or sentence under the Rule.” McCrae v. State, 437 So.2d 1388, 1390 (Fla.1983). In the first motion, appellant sought DNA testing of blood discovered at the crime scene. The second motion, by contrast, sought testing of the gloves believed to be used by the burglar. The second motion plainly asserts that “the Defendant does not request testing of the blood sample.” Thus, appellant sought different relief in the second motion and did not raise “substantially the same ground” as previously raised. Compare McCrae. Because of our holding, we do not address appellant’s argument that rule 3.853 does not prohibit successive motions.

Finally, the doctrine of collateral estoppel would not bar appellant’s second motion for DNA testing since the prior motion for DNA testing raised a different issue. See Rogers v. State, 970 So.2d 884 (Fla. 2d DCA 2007) (explaining that for the doctrine of collateral estoppel to bar reliti-gation of an issue, the identical issue must have been actually adjudged in the prior proceeding). The doctrine of res judicata does not bar a second motion under rule 3.853 because the rule allows for the filing of a motion “at any time.” Compare Raley v. State, 675 So.2d 170 (Fla. 5th DCA 1996)(holding that there is no bar to a successive motion under rule 3.800(a) because an illegal sentence may be corrected “at any time” so long as issue raised was not already considered on its merits).

Accordingly, the order denying DNA testing of the gloves is REVERSED, and the cause is remanded for an evidentiary hearing on the motion.

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

      . Rule 3.850(b) provides that a motion (which does not seek to vacate a sentence which exceeds that time limits provided by law) must be filed within two years of a judgment of conviction and sentence becoming final, unless the facts giving rise to the motion were not previously known or unless a fundamental constitutional right asserted was not established within the two-year window. In contrast, the current version of rule 3.853 simply provides that a motion seeking DNA testing "may be filed or considered at any time following the date that the judgment and sentence in the case becomes final.”


author: KELLY, Judge.

text:
    STATE of Florida, Appellant, v. Sandy Keenan SALLE-GREEN, Appellee.
    No. 2D10-5638.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellant.
    Mina Morgan, Tampa, for Appellee.
   KELLY, Judge.

In this DUI manslaughter case, the State appeals from the trial court’s order suppressing Sandy Salle-Green’s legal and medical blood alcohol level test results. Because Salle-Green failed to show that the State improperly obtained her medical blood alcohol test results, we reverse.

Salle-Green was the driver of a vehicle involved in a collision in which the driver of the other vehicle died. Salle-Green was transported by helicopter to the hospital before law enforcement officers arrived. On his way to the scene of the collision, Corporal Brown, the traffic homicide investigator, directed Trooper Moseley to go to the hospital to check on Salle-Green’s status. Trooper Moseley provided the nurse on duty with a “legal blood draw kit” to obtain a blood sample from Salle-Green. He did not prepare a police report describing the events preceding the administration of the test.

Subsequently, Salle-Green was charged with DUI manslaughter. She filed a motion to suppress her blood test results. At the hearing on the motion, Trooper Moseley identified the legal blood draw kit and the associated paperwork, but he could not independently recall what led him to request the blood draw to be performed. Trooper Moseley stated that he had “never gotten any information from a nurse prior to or even after doing a legal blood draw.” He could not even recall getting a legal blood sample but was able to identify his own signature on a “consent form.”

Nurse Bell testified that she did not remember the events of the evening, but she confirmed her signature on the legal blood draw kit and described the general procedure for conducting a blood draw. She testified that hospital policy was that “we can verbally give [a law enforcement officer] the blood alcohol level of a patient if it has to do with an injury or a vehicle crash.” She could not remember whether she told Trooper Moseley the results of the medical blood alcohol test or whether she showed him a lab report.

Following this testimony, the trial court concluded that it had no choice but to grant the motion to suppress because the witnesses “were not able to provide this court with the reason why this blood was requested.” The court found that the State failed to present any probable cause to justify the legal blood draw and that no testimony was received to justify admission of any of Salle-Green’s medical records. The trial court’s order suppressed both the legal and medical blood alcohol evidence.

The State then filed a motion to “resub-poena” Salle-Green’s medical records. At the hearing on that motion, the State acknowledged that the motion was better phrased as either a motion for the court to reconsider its ruling suppressing the medical records or as a motion to “cure” by resubpoena. The State conceded that at the first hearing it did not establish a factual basis to obtain the legal blood alcohol test results under section 316.1933, Florida Statutes (2007). However, the State contended that it had additional evidence which provided an independent basis to obtain Salle-Green’s medical records under section 395.3025(4)(d), Florida Statutes (2007).

The court stated that the State already had the evidence that it was seeking to subpoena and that a ruling from the court on the motion would be a “waste of paper.” In response to the court’s concerns, the State explained that, although it had the evidence it was seeking to resubpoena, the court’s suppression ruling prevented its admission into evidence. Thus, the State was providing an independent basis to admit the evidence. Although the court expressed its consternation that the State failed to present the evidence at the suppression hearing, the court agreed to receive the State’s supplemental evidence from Corporal Brown, the officer in charge of the crime scene investigation.

Corporal Brown testified that he was dispatched to the accident on August 20, 2007, at around 11:00 p.m. He did not have information about the crash when he asked dispatch to send a trooper to the hospital where Salle-Green was being treated. He surveyed the scene, obtained the names of witnesses, and photographed and inspected the vehicles. He recovered an open bottle of liquor from Salle-Green’s car in the area between the driver’s seat and the center console. Witnesses informed him that Salle-Green had been driving approximately 100 miles per hour before the crash. He later interviewed the EMS personnel who transported Salle-Green to the hospital. One of the paramedics advised Corporal Brown that he detected a strong odor of alcohol coming from Salle-Green’s breath.

Following receipt of Corporal Brown’s testimony, the defense argued that the State acted in bad faith in obtaining the blood alcohol test results and that it should be barred from another attempt to lawfully obtain the medical record evidence. The State responded that it should be able to resubpoena the medical records based on independent evidence.

Ultimately, the court declined to reconsider its suppression ruling based on the State’s failure to introduce Corporal Brown’s testimony at the suppression hearing the week before. The court acknowledged that Corporal Brown’s testimony “may have been able to establish the probable cause to get [the medical] records” because “[t]he threshold is actually fairly low for the State to obtain the medical records.” Despite noting that had the motion to suppress been done properly the first time the court’s ruling may have been different, the court declined reconsideration.

Legal Blood Test Results Under Section 316.1933

A law enforcement officer may request that a blood test be conducted on a person involved in a crash when (1) the officer has independent probable cause to believe that the person was driving under the influence, see § 316.1933(l)(a); or (2) a healthcare provider has informed the officer that the patient’s medical blood test results show a blood alcohol level that is over the legal limit, see § 316.1933(2)(a)(l). In this case, Trooper Moseley’s testimony did not establish either that he had probable cause before requesting the legal blood draw or that Nurse Bell had informed him Salle-Green’s medical blood test showed an alcohol level above the legal limit. Therefore, the trial court properly suppressed the legal blood draw test results. See State v. Webb, 753 So.2d 145 (Fla. 3d DCA 2000) (affirming the trial court’s suppression of legal blood test results where there was no evidence that the officer, before ordering the blood draw, had probable cause to believe that the driver was under the influence of any substance at the time of the accident).

Medical Blood Test Results Under Section 395.3025(4)(d)

“A patient’s medical records enjoy a confidential status by virtue of the right to privacy contained in the Florida Constitution, and any attempt on the part of the government to obtain such records must first meet constitutional .muster.” State v. Johnson, 814 So.2d 390, 393 (Fla.2002). However, “[t]he right to privacy is not absolute and will yield to compelling governmental interests.” Id. Section 395.3025(4), provides exceptions to the general rule requiring patient confidentiality. Pertinent to this case is subsection (4)(d), which states as follows:

(4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent....
(d) In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.

Salle-Green argues that having failed to establish that Trooper Moseley had probable cause to obtain her blood test results, the State should be barred from having a second chance to obtain her blood test results by subpoenaing her medical records under section 395.3025(4)(d). We disagree.

The record does not demonstrate that Trooper Moseley acted improperly. Cf. Frank v. State, 912 So.2d 329 (Fla. 5th DCA 2005) (holding that where an investigating police officer obtained the defendant’s medical records from the hospital eight weeks after the crash without complying with the notice requirements of section 395.3025, the improperly obtained evidence must be excluded); State v. Kutik, 914 So.2d 484 (Fla. 5th DCA 2005) (holding that suppression of medical records was required where a police officer obtained the defendant’s medical blood test results but did not comply with section 395.3025 and did not request that blood be drawn and tested pursuant to section 316.1933(1)). Trooper Moseley testified that he went to the hospital to determine Salle-Green’s status. Under section 316.1933(2)(a)(l), Trooper Moseley would have been authorized to request a blood sample if a doctor or nurse had notified him that Salle-Green’s blood alcohol level was above the legal limit. Trooper Moseley and Nurse Bell each testified that a legal blood draw was in fact performed but could not positively state, for lack of memory, that it was because of Salle-Green’s medical test results. The trooper’s actions do not amount to bad faith requiring the suppression of Salle-Green’s medical records. See Thomas v. State, 820 So.2d 882, 383-84 (Fla. 2d DCA 2002) (noting that the officer’s verbal request for the nurse to tell him the defendant’s blood test results did not warrant exclusion of medical records subsequently obtained through the State’s subpoena issued after proper notice.)

Accordingly, we reverse the trial court’s order suppressing Salle-Green’s medical blood alcohol test results.

Reversed.

DAVIS and BLACK, JJ., Concur.

      . Section 316.1933(2)(a)( 1) states the following:
      [IJf a health care provider, who is providing medical care in a health care facility to a person injured in a motor vehicle crash, becomes aware, as a result of any blood test performed in the course of that medical treatment, that the person’s blood-alcohol level meets or exceeds the blood-alcohol level specified in s. 316.193(1 )(b), the health care provider may notify any law enforce^ ment officer or law enforcement agency.... Any such notice shall be used only for the purpose of providing the law enforcement officer with reasonable cause to request the withdrawal of a blood sample pursuant to this section.


text:
    Richard C. DAVIS, Individually, etc., et al., Appellant, v. MARION COUNTY, Rainbow Springs, etc., et al., Appellee. Joseph Kent Koeval, et al., Appellant, v. Marion County, Lake Tropicana, etc., et al., Appellee. Warren R. Smith, Individually, etc., Appellant, v. Marion County, Timberwood Improvement, etc., et al., Appellee.
    Nos. 5D11-1597, 5D11-2297, 5D11-2298.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2012.
    Rehearing Denied Aug. 22, 2012.

      Richard Bennett, Law Offices of Bennett & Bennett, Coral Gables, for Appellants.
    Gregory T. Stewart, Heath R. Stokley and Carly J. Schrader, of Nabors, Giblin & Nickerson, P.A., Tallahassee, and Matthew G. Minter, Ocala, for Appellees, Marion County, Lake Tropicana Ranchettes (Phase I) Improvement Area MSBU, Lake Tropicana Ranchettes (Phase I) Reassessment Improvement Area MSBU, Timber-wood Improvement Area MSBU, and Tim-berwood Reassessment Improvement Area MSBU, and Rainbow Springs (Phase I), Improvement Area MSBU and Rainbow Springs(Phase I) Re-Assessment Improvement Area MSBU.
    No Appearance for Appellees, Marion County Property Appraiser and Tax Collector.
   PER CURIAM.

Appellants, three plaintiff classes below, (“Plaintiffs”), timely appeal final summary judgments in favor of Marion County which declared .and held that Marion County may lawfully impose a special assessment (by reassessment) on property specially benefited by completed road improvements within a Municipal Services Benefit Unit (“MSBU”), specifically, the Rainbow Springs (Phase I) Improvement Area MSBU, the Lake Tropicana Ranch-ettes (Phase I) Improvement Area MSBU and the Timberwood Improvement Area MSBU. We affirm.

The trial courts correctly determined that these cases are controlled by longstanding precedent upholding assessment or reassessment for completed public works projects that specially benefit those being assessed. See, e.g., Phillip Wagner, Inc. v. Leser, 239 U.S. 207, 216-17, 36 S.Ct. 66, 60 L.Ed. 230 (1915) (rejecting claim that the state had no authority to levy a special assessment or reassessment on property to pay for benefits previously accrued for a completed public work, recognizing that such an assessment is not a violation of due process); City of Seattle v. Kelleher, 195 U.S. 351, 359, 25 S.Ct. 44, 49 L.Ed. 232 (1904) (“The principles of taxation are not those of contract. A special assessment may be levied upon an executed consideration, that is to say, for a public work already done.... If this were not so it might be hard to justify reassessments.” (citations omitted)); Prospere v. City of New Port Richey, 98 Fla. 508, 124 So. 2, 4 (1929) (recognizing invalidity of assessment does not relieve abutting owner from paying his just proportion of cost of benefits under subsequent assessment); Anderson v. City of Ocala, 88 Fla. 344, 91 So. 182, 186 (1922) (recognizing that where original special public improvement assessments by municipalities have been found unenforceable for error or irregularity, reassessment may be upheld on the theory that the improvements will enhance the value of abutting property, and as a consequence there rests on the property an obligation to contribute its just share of the expense, and failure of the original assessment does not discharge the obligation); see also Moody v. City of Vero Beach, 208 So.2d 345, 347 (Fla. 4th DCA 1967) (“Public works must be paid for even though they were constructed before any assessment was levied on their account. If the assessment otherwise is levied properly as a special assessment for benefits, then, in view of the fact that the benefit and payment are both compulsory, the benefit already executed when the procedure for authorizing the assessment was passed will sustain the assessment.”).

Plaintiffs attempt to avoid application of this well-settled law by arguing that reassessment should be barred in this case because the county lacked “jurisdiction” to build the improvements when the assessments were first made, citing to Simmons v. Fessenden, 111 Fla. 83,149 So. 21 (1933) and Hillsborough County v. De Sear, 120 Fla. 317, 162 So. 703 (1935). This argument ignores the broad scope of home rule powers granted to counties under the 1968 Constitution and under general law. Under the constitution and laws in effect at the time that these road improvements were constructed (between 2007 and 2009), the County enjoyed a broad grant of general power (or “jurisdiction”) to make road improvements and to impose special assessments based upon the benefits conferred by those improvements. Art. VIII, § 1(f), Fla. Const.; § 125.01, Florida Statutes (2007); see also, e.g., City of Boca Raton v. State, 595 So.2d 25 (Fla.1992).

AFFIRMED.

ORFINGER, C.J., LAWSON and EVANDER, JJ., concur.

      . We consolidated our cases 5D11-1597 and 5D11-2297 for purposes of oral argument, and now consolidate them for purposes of decision. The cases present the same legal issues.


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    STATE of Florida, Petitioner, v. Michael Allen THOMAS, Respondent.
    No. 5D11-3964.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2012.
    Brad King, State Attorney, Ocala and Blake Shore, Assistant State Attorney, Office of the State Attorney, Inverness, for Petitioner.
    Howard “Skip” Babb, Jr., Public Defender, Office of the Public Defender and Edward C. Spaight, Assistant Public Defender, Inverness, for Respondent.
   PER CURIAM.

The State of Florida seeks certiorari review of an order striking witness Bambi Wilmot from the State’s witness list (and thereby barring the State from calling Wil-mot to testify at trial) as a sanction for her failure to appear at scheduled depositions. We grant the writ and quash the challenged order. See generally State v. Jackson, 436 So.2d 985, 986 (Fla. 3d DCA 1983) (“It is not the responsibility of the state to produce a witness subpoenaed by a defendant for discovery purposes; to order the state to do so, or to dismiss a criminal case for failure of the state to do so, constitutes a departure from the essential requirements of law.”) (citations omitted). The law is clear in this context that “[t]he exclusion of a witness is justified only after some lesser sanction, such as contempt or a writ of bodily attachment, has been attempted without success in making the witness attend a deposition.” State v. Gonzalez, 695 So.2d 1290, 1292 (Fla. 4th DCA 1997). Because lesser sanctions had not yet been shown to be futile in securing Ms. Wilmot’s attendance at a discovery deposition, the trial court departed from the essential requirements of the law by excluding Wilmot as a witness. Id.

WRIT GRANTED; ORDER QUASHED. '

ORFINGER, C.J. and PALMER and LAWSON, JJ., concur.


text:
    Heather CIAMBRONE, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5349.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2012.
    Heather Ciambrone, pro se.
   ALTENBERND, Judge.

Heather Ciambrone appeals an order denying her postconviction motion pursuant to Florida Rule of Criminal Procedure 3.800(a), in which she claimed her sentence of life without possibility of parole was an illegal sentence. We affirm. This case demonstrates that a defendant who is allowed to withdraw a plea sometimes runs the risk of an outcome far worse than the sentence under the original plea.

Heather Ciambrone and her husband, Joseph Ciambrone, were separately indicted in 1995 for the death of their son, Lucas. Mr. Ciambrone was convicted and sentenced to life in prison in 1997. We affirmed his judgment and sentence. Ciambrone v. State, 733 So.2d 523 (Fla. 2d DCA 1999) (table decision). The trial court delayed Mrs. Ciambrone’s case for several years after she was declared incompetent to stand trial.

The indictment charged that Mrs. Ciam-brone committed felony murder because her son’s death occurred at the end of an extended period of aggravated child abuse. The State filed a statement of particulars in her case claiming that Lucas died within forty-eight hours of May 11, 1995. The period of aggravated child abuse began as early as June 1, 1993, and extended until the day he died. The boy was about seven years old and weighed thirty pounds at his death. The State argued that sometime in May 1995 Mrs. Ciambrone struck the final blows that actually resulted in Lucas’s death.

In 2001, Mrs. Ciambrone negotiated a plea to second-degree murder in exchange for a sentence of fifty-five years’ imprisonment. Although this is a long sentence, Mrs. Ciambrone was a young woman and she could have been released from prison when she was older.

In a subsequent postconviction motion, she sought to withdraw the plea, claiming that her lawyer had misadvised her about gain time rules that would affect her sentence. The trial court denied that motion, but this court reversed, holding that she was entitled to withdraw her plea. See Ciambrone v. State, 938 So.2d 550 (Fla. 2d DCA 2006).

On remand, Mrs. Ciambrone withdrew her plea. She was tried by a jury in 2007 and convicted of first-degree felony murder. As a result, the trial court was required to sentence her to life without possibility of parole, the same sentence that her husband is serving. We affirmed that judgment and sentence on direct appeal. Ciambrone v. State, 38 So.3d 139 (Fla. 2d DCA 2010) (table decision). She did not raise a sentencing issue in that appeal.

In this postconviction proceeding, she argues that her sentence is illegal and that she is entitled to a sentence that is parole eligible after twenty-five years. Although she admits that life without possibility of parole was the mandatory sentence for a murder committed in May 1995, she theorizes that the murder was a continuing crime that commenced with the first acts of aggravated child abuse. As a result, she claims she is entitled to be sentenced under the law that applied to homicides in 1993.

The trial court rejected this argument, as do we. Even assuming that the aggravated child abuse in this case might have been a continuing criminal enterprise, a matter that we do not decide, the actions that actually and ultimately resulted in the death of this child occurred in May 1995. The indictmént specifically identified May 1995 as the time of this homicide and so did the statement of particulars. Even factually, there is nothing to suggest that this crime should be sentenced under earlier law, and this proceeding is based on a motion to correct an illegal sentence. Accordingly, we affirm the trial court’s order.

Other prisoners who fantasize about a future court proceeding in which their motion to withdraw from their negotiated plea results in their freedom should consider the fact that their plea was negotiated with the assistance of a trained attorney. They should reflect on Mrs. Ciambrone, whose motion to withdraw a plea to a lesser offense now makes it very likely that she will die in custody.

Affirmed.

KELLY and KHOUZAM, JJ., Concur.


text:
    Michael Joe GREEN, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-124.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2012.
    Nancy A. Daniels, Public Defender and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Trisha Meggs Pate, Bureau Chief, Criminal Appeals, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Michael Joe Green, II appeals his conviction and sentence for the lesser-included offense of attempted second degree murder due to the trial court’s use of the standard jury instruction for attempted manslaughter by act, an alternate lesser-included offense to the primary charge of attempted first degree murder. As required in this situation by State v. Montgomery, 39 So.3d 252 (Fla.2010); Rushing v. State,-So.3d-, 2010 WL 2471903 (Fla. 1st DCA 2010) and Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009), the conviction is reversed and remanded for new trial. In light of this reversal, we decline to address the other issues raised by the appellant and the cross appeal raised by the state.

LEWIS, CLARK, and MARSTILLER, JJ., concur.


author: CLARK, J.

text:
    Larry Gene WILLIAMS, Husband, Appellant, v. Wanda Elaine WILLIAMS, Wife, Appellee.
    No. 1D11-3400.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2012.

      Lynn W. Martin, Esq., Fleming Island, for Appellant.
    J. Nickolas Alexander, Jr., Esq., Orange Park, for Appellee.
   CLARK, J.

Larry Gene Williams, (“Former Husband”) appeals the trial court’s final order granting in part and denying in part Former Husband’s petition for modification, including an award of a contribution by Former Husband towards Former Wife’s attorney’s fees in the amount of $5,000.00.

On the sparse record before this court, which does not include a transcript of the final hearing or a proper substitute, Former Husband has failed to show any error in the trial court’s order denying modification of his alimony obligation and requiring Former Husband to make periodic payments on his substantial alimony arrearages.

However, the trial court’s award of a contribution towards the Former Wife’s attorney’s fees does not include any findings of the parties’ relative financial abilities or any specific findings on the reasonableness of Former Wife’s attorney’s hourly rate, number of hours expended, and the appropriateness of any reduction or enhancement factors. § 61.16, Fla. Stat.; Giovanini v. Giovanini, 89 So.3d 280 (Fla. 1st DCA 2012).

Accordingly, the trial court’s rulings regarding alimony are affirmed and the order awarding $5,000.00 towards Former Wife’s attorney’s fees is reversed. This cause is remanded to the trial court for further proceedings regarding attorney’s fees.

LEWIS and MARSTILLER, JJ., concur.


text:
    Jeff David BRADFORD, Appellant, v. STATE of Florida, PAROLE COMMISSION, Appellee.
    No. 1D12-0485.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2012.
    Jeff David Bradford, pro se, Appellant.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   CLARK, J.

Jeff David Bradford, a state prisoner serving the life sentence imposed in 1974 by the Seventeenth Judicial Circuit in and for Broward County, appeals the trial court’s denial of the writ of habeas corpus. Bradford sought the writ to challenge the Florida Parole Commission’s continuation of its suspension of his Presumptive Parole Release Date and its conclusion, pursuant to section 947.18, Florida Statutes, that the Commission “has been unable to find that there is a reasonable probability that, if you are released on parole, you will live and conduct yourself as a respectable and law-abiding person and that your release will be compatible with your own welfare and the welfare of society.”

Bradford originally filed his petition for writ of habeas corpus in the Second Judicial Circuit Court in and for Leon County, and that court transferred the action to the Third Judicial Circuit Court in Lafayette County, pursuant to section 79.09, Florida Statutes. On appeal, Bradford seeks reversal of the trial court’s order on grounds that the Third Judicial Circuit Court lacked subject matter jurisdiction over his case and that Lafayette County was an improper venue.

The proper venue for petitions for habe-as corpus is set out in section 79.09, Florida Statutes, which requires the filing of such petitions in “the circuit court in the county in which the prisoner is detained.”

Considering the circuit court’s jurisdiction, all circuit courts have jurisdiction over writs of habeas corpus. Fla. Const. Art. V, § 5(b)(cireuit courts shall have power to issue writs of habeas corpus; jurisdiction shall be uniform throughout the state). Accordingly, while the trial court’s order denying the writ of habeas corpus went into great detail and addressed matters beyond the scope of whether Bradford is being detained by the State without lawful authority (see § 79.01, Fla. Stat.), the circuit court’s denial of the writ was certainly within the court’s jurisdiction and the action was located in the proper venue. Appellant has shown no error in the trial court’s denial of the writ of habeas corpus.

AFFIRMED.

LEWIS and MARSTILLER, JJ., concur.


text:
    Shirley ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0734.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2012.
    Shirley Robinson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a rule 3.850 motion raising two claims. In claim one she argues that section 893.13, Florida Statutes, is unconstitutional, based upon Shelton v. Secretary, Florida Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011). We affirm the trial court’s denial of this claim. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

Regarding claim two the appellant argues that she should have been permitted to amend this claim, pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), after the trial court found her argument that counsel acted ineffectively to be facially insufficient. In response to this Court’s order issued pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the state has conceded that this portion of the order denying the claim due to facial insufficiency should be reversed and remanded to allow the appellant to amend the claim, if she can do so in good faith. See Spera.

We therefore affirm the court’s denial of relief on claim one and reverse and remand claim two with direction that the lower court allow the appellant the opportunity to amend this claim to attempt to make it facially sufficient.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Lonnie David SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1155.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2012.
    Lonnie David Smith, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Lonnie David Smith appeals from an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) seeking jail credit for time served in the county jail prior to resentencing. The trial court denied the motion based upon the conclusion that the appellant was only due the same amount of jail credit awarded in the original judgment and sentence. We reverse for further proceedings.

A court is required to give a defendant credit for all of the time served in county jail prior to sentencing. § 921.161, Fla. Stat. (1999). Further, “a prisoner is entitled to credit for jail time spent prior to re sentencing.” Kitchen v. State, 20 So.3d 975, 976 (Fla. 4th DCA 2009) (emphasis in original).

In the instant case, the appellant set out a facially sufficient rule 3.800(a) motion, with exhibits reflecting additional days that he served in the county jail prior to being resentenced in June 2009. In its denial, the trial court did not address these exhibits or attach records demonstrating that the appellant was entitled no relief.

Accordingly, we reverse the trial court’s order denying the appellant’s rule 3.800(a) motion. On remand, should the trial court again conclude that appellant’s rule 3.800(a) motion lacks merit, it shall attach to its order the portions of the record conclusively refuting that claim. Otherwise, it shall grant the relief requested.

REVERSED and REMANDED.

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Marcell Kamill MICKLES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5958.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla. 2012).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Gregory L. BECK, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6616.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2012.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2848908 (Fla.2012).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Bossie Samuel WATTS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4969.
    District Court of Appeal of Florida, First District.
    Aug. 7, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

BENTON, C.J., LEWIS, and ROWE, JJ., concur.


text:
    Stacy Lynn SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4942.
    District Court of Appeal of Florida, First District.
    Aug. 7, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

BENTON, C.J., LEWIS, and ROWE, JJ., concur.


text:
    Michael Andrew JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6730.
    District Court of Appeal of Florida, First District.
    Aug. 7, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, — So.3d —, 2012 WL 2849485 (Fla.2012).

BENTON, C.J, LEWIS, and ROWE, JJ., concur.