text:
    Kevin D. HARVEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2066.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.

      Kevin D. Harvey, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

Kevin D. Harvey appeals from the summary denial of his Florida Rule of Criminal Procedure 3.800 motion to correct an illegal sentence. We reverse.

After a jury trial, defendant was convicted of one count of attempted first degree murder, four counts of robbery with a firearm, and one count of aggravated assault. On October 25, 1989, the trial court sentenced defendant to fifteen years in prison, with three years mandatory, for the attempted murder, and life terms for each robbery count, with consecutive three years mandatory on each life term. This Court affirmed the judgment on direct appeal. Harvey v. State, 575 So.2d 663 (Fla. 3d DCA 1991).

Thereafter, defendant moved for post-conviction relief under Florida Rule of Criminal Procedure 3.850, alleging, among others contentions, that the consecutive mandatory terms on the four robbery counts were an illegal sentence. The trial court summarily denied defendant’s motion and defendant appealed to this Court. For unknown reasons, this Court dismissed the appeal. Since then, defendant has filed and appealed numerous post-conviction motions, none of which raised the sentencing error. Recently, defendant filed a Rule 3.800 motion to correct the illegal sentence, and the trial court denied the motion on the ground that the error should have been raised on direct appeal. This recent filing is the subject of the current appeal.

It is well settled that a postcon-viction claim of an illegal sentence may be raised at any time, see Fla. R. Crim. P. 3.800(a), although collateral estoppel may bar successive motions for post-conviction relief raising the same issue. See State v. McBride, 848 So.2d 287, 291 (Fla.2003). The collateral estoppel bar, however, only applies when the identical issue is raised in a prior motion and the issue is decided on the merits. Pleasure v. State, 931 So.2d 1000, 1002 (Fla. 3d DCA 2006). Because defendant’s prior post-conviction claim of an illegal sentence was not decided on the merits, defendant’s claim is not collaterally estopped. Additionally, defendant was not required to raise the illegal sentencing claim in his direct appeal first. See Bedford v. State, 633 So.2d 13, 14 (Fla.1994) (holding that illegal sentence may be corrected even after it is erroneously affirmed on appeal).

Accordingly, we reverse the trial court’s summary denial of defendant’s Rule 3.800 motion, and remand for the trial court to decide the motion on the merits.

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JAMES CROSS, INC., Appellant/Cross Appellee. v. R. Stuart HUFF and Caroline Susan Huff, Appellee/Cross Appellants.
    No. 3D09-467.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.
    Robert A. Milne, for appellant/cross-ap-pellee.
    R. Stuart Huff, for appellees/cross-ap-pellants.
    Before CORTIÑAS, SALTER, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979); Trytek v. Gale Industries, Inc., 3 So.3d 1194, 1196 (Fla.2009).


text:
    Vladimir JEANTY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2351.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.
    Vladimir Jeanty, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

We affirm the denial of relief under Florida Rule of Criminal Procedure 3.800(a), without' prejudice for Jeanty to first seek and exhaust his administrative remedies with the Department of Corrections. See Washington v. State, 68 So.3d 919 (Fla. 3d DCA 2011).

Affirmed.


author: SUAREZ, J.

text:
    James Lee NAILS, Appellant, v. The State of FLORIDA, Appellee.
    No. 3D11-975.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.
    James Lee Nails, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   SUAREZ, J.

We affirm the trial court’s dismissal of James Lee Nails’ petition for habeas corpus without prejudice, as that court has no jurisdiction to consider a judgment and sentence that was not entered in Miami-Dade County. See Valdez-Garcia v. State, 965 So.2d 318 (Fla. 2d DCA 2007); Razz v. State, 828 So.2d 433 (Fla. 1st DCA 2002).

Affirmed.


author: PER CURIAM. EMAS, J.,

text:
    Michael Patrick RYAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1709.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2011.
    Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

EMAS, J.,

concurring in part and dissenting in part.

I join the majority in affirming without discussion the conviction. However, I dissent from the majority’s affirmance of the sentence. I believe we should vacate the sentence and remand to the trial court for resentencing before a different judge. Where it is reasonably evident that the trial court, in determining the appropriate sentence, considered at least in part a defendant’s lack of remorse (as opposed to a court’s determination that a defendant’s claim of remorse has not been established ), the sentence should be vacated and a new sentencing proceeding held before a different judge. See, e.g., Mentor v. State, 44 So.3d 195 (Fla. 3d DCA 2010); T.R. v. State, 26 So.3d 80 (Fla. 3d DCA 2010); Soto v. State, 874 So.2d 1215 (Fla. 3d DCA 2004); A.S. v. State, 667 So.2d 994 (Fla. 3d DCA 1996); Branson v. State, 492 So.2d 1155 (Fla. 3d DCA 1986); Jackson v. State, 39 So.3d 427 (Fla. 1st DCA 2010); Holt v. State, 33 So.3d 811 (Fla. 4th DCA 2010); Whitmore v. State, 27 So.3d 168 (Fla. 4th DCA 2010); Jiles v. State, 18 So.3d 1216 (Fla. 5th DCA 2009); Hannum v. State, 13 So.3d 132 (Fla. 2d DCA 2009); K.N.M. v. State, 793 So.2d 1195 (Fla. 5th DCA 2001); K.Y.L. v. State, 685 So.2d 1380 (Fla. 1st DCA 1997), disapproved on other grounds, State v. J.P.C., 731 So.2d 1255, 1256 n. 1 (Fla.1999); Hubler v. State, 458 So.2d 350 (Fla. 1st DCA 1984).

It may well be that the sentence imposed by the trial court was a fair and proper sentence under the circumstances. However, if we are to maintain public confidence in the court system, we must be vigilant in ensuring not only actual fairness, but the appearance of fairness as well.

SHEPHERD, J., and SCHWARTZ, Senior Judge, concur.

      . This is not a situation where a defendant acknowledged his guilt (or admitted the act but not the intent) and expressed remorse at sentencing in an effort to mitigate his culpability or seek a reduced sentence. See, e.g., § 921.0026(2)(j), Fla.Stat. (2011) (allowing the trial court to depart downward from the sentencing guidelines where it established the "offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse”); Peake v. State, 490 So.2d 1325 (Fla. 1st DCA 1986) (defendant pled guilty and had consistently acknowledged that he committed the offenses; at sentencing, in an apparent attempt to mitigate his conduct, he attempted to place some of the blame upon the victim); Shelton v. State, 59 So.3d 248 (Fla. 4th DCA 2011) (holding sentence was proper where court's comments regarding lack of remorse were merely a recognition that there was no basis to grant defendant’s request for a reduced sentence). Under those circumstances, the trial court may find the defendant’s testimony insincere, not credible or otherwise unsupported, and may properly reject a defendant’s claim of remorse (or the attempt to minimize culpability) in support of a reduced sentence. However, rejecting as unsupported a defendant’s claim of remorse in a bid for a lower sentence is far different from unilaterally considering a defendant’s lack of remorse as a factor in arriving at the proper sentence. In the instant case, Ryan had maintained his innocence before, during, and after trial. At sentencing, Ryan was not expressing remorse in support of a request for a reduced sentence. The statements Ryan made to the trial court during sentencing were offered in an effort to persuade the trial judge that, given his background, history and hardships, Ryan should receive a lower sentence than that recommended by the state. Following Ryan’s statements, the trial court raised sua sponte the defendant’s apparent lack of remorse and unwillingness to accept responsibility:
      Mr. Ryan, I don't know, frankly, that much about your history in terms of your life’s history, your education, your training, your medical condition other than what’s been presented here. I’m sure you have a story, and I'm sure you have some hardship that you’ve endured, and that is certainly the most weighty of the extenuating circumstances.
      But in terms of your criminal misconduct, sir, you are in complete 100 percent denial, complete denial. And I find it very troubling that a man who has 36 priors documented on this score sheet, has just been convicted of two more crimes very much related can't even find it somewhere in his lengthy presentation to acknowledge some personal responsibility and some little modicum of remorse, none of it. It’s everybody else’s fault. And maybe that’s the way you feel being wheelchair bound at this particular point, that all the hardship is everybody else’s fault and not yours. But that's not the case, Mr. Ryan. You’re still responsible for your own conduct.
      Under these circumstances, I cannot reasonably conclude that the trial court did not consider lack of remorse as a factor in imposing sentence.
      If we follow a rule that allows a trial court to consider, sua sponte, a defendant's lack of remorse as a sentencing factor, we risk forcing a defendant to choose between maintaining his innocence after trial (and thus preserving, as a practical matter, his appellate rights) and a defendant's right to allocution before sentencing. See Ventura v. State, 741 So.2d 1187 (Fla. 3d DCA 1999); Barry v. State, 330 So.2d 512 (Fla. 1st DCA 1976); Fla. R.Crim. P. 3.720(b). A defendant who maintains his innocence and wishes to appeal the judgment of conviction might well decide to forego his right to allocution rather than risk the possibility of an increased sentence should the trial court consider the defendant’s failure to express any remorse at sentencing. Alternatively, a defendant could walk the legal tightrope at his sentencing by trying to express remorse while continuing to maintain his innocence, increasing the risk that the trial judge will find such expressions of remorse insincere, and thereby exposing a defendant to the possibility of a harsher sentence.


text:
    Osvaldo ACOSTA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Gulfside Supply Inc., Appellees.
    No. 3D11-1075.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2011.
    Osvaldo Acosta, in proper person.
    M. Elaine Howard, Deputy General Counsel for Unemployment Appeals Commission, for appellees.
    Before SUAREZ, SALTER, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Chacon v. Joell Designers Corp., 17 So.3d 716 (Fla. 3d DCA 2009); Saintil v. Fla. Unemployment Appeals Comm’n, 944 So.2d 1228 (Fla. 3d DCA 2006); Torre v. New Century Mortg. Corp., 935 So.2d 1264 (Fla. 3d DCA 2006).


text:
    John Lucius ROSE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-27.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2011.
    Gabriela C. Novo, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before RAMIREZ and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We reject both of Rose’s arguments on appeal, holding (a) that the evidence was amply sufficient to show that defendant intentionally and substantially violated the terms of his probation by, among other things, deliberately tampering with his required monitoring device, see Correa v. State, 43 So.3d 738, 745 (Fla. 2d DCA 2010) (recognizing that “intentional disregard of the GPS monitoring rules, tampering with the equipment, or actual violations of curfew or other activity restrictions will generally amount to willful and substantial violations of the conditions imposed”), and (b) that the sentence imposed upon revocation of the defendant’s probation was not legally “vindictive.” See Snow v. Crosby, 851 So.2d 222 (Fla. 3d DCA 2003).

Affirmed.


text:
    Mervin WATTY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1970.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2011.
    Rehearing Denied Nov. 17, 2011.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before RAMIREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Even indulging both of the very dubious propositions that the single ruling complained of on appeal was (a) properly preserved below and (b) in fact erroneous, we nonetheless affirm the conviction and sentence under review on the ground that, beyond a reasonable doubt, the ruling complained of could not have contributed to the verdict and was thus harmless. See Franqui v. State, 59 So.3d 82, 102 (Fla. 2011).

Affirmed.


text:
    Carlos MEJIAS, Appellant, v. SHELBOURNE OCEAN BEACH HOTEL CONDOMINIUN, INC., Appellee.
    No. 3D10-2360.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2011.
    Robert P. Bissonnette, Fort Lauderdale, for appellant.
    Cole, Scott & Kissane and Scott A. Cole, Key West and Kristen A. Tajak, Miami, for appellee.
    Before RAMIREZ, CORTINAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Given that the standard of review for a motion for continuance is abuse of discretion, see Cargile-Schrage v. Schrage, 908 So.2d 528, 529 (Fla. 4th DCA 2005) (“[N]o judge in his right mind would have denied the continuance.”), it certainly was not an abuse of discretion for the trial court to deny a continuance in a case that had been pending for ten years.


text:
    NEWPORT OPERATING CORP., a Florida corporation, Appellant, v. WESTGATE MIAMI BEACH, LTD., a Florida limited partnership Appellee.
    No. 3D11-1874.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2011.
    Arnstein & Lehr and Franklin Zemel and Alan L. Raines, Fort Lauderdale, for appellant.

      Robert P. Frankel & Associates and Robert P. Frankel, Miami, for appellee.
    Before RAMIREZ, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

We treat the petition for writ of certio-rari as an appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(4). We reverse the order of the trial court. See Moffatt & Nichol, Inc. v. B.E.A. Int’l Corp., Inc., 48 So.3d 896 (Fla. 3d DCA 2010).

Reversed and remanded.


author: ALTENBERND, Judge.

text:
    Michael B. WILKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1914.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 2011.
    James Marion Moorman, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Michael B. Wilkins appeals the judgment and sentences entered after a jury found him guilty of burglary of a dwelling, grand theft, and dealing in stolen property. Although the jury returned a guilty verdict on all three charges, the trial court correctly entered the judgment and sentences only on burglary of a dwelling and dealing in stolen property, not on grand theft. Mr. Wilkins argues that the trial court’s remedy was erroneous. He asserts that he is entitled to a new trial pursuant to Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010), arguing that the trial court fundamentally erred by failing to instruct the jury that under section 812.025, Florida Statutes (2006), it could not return a guilty verdict for both grand theft and dealing in stolen property. With respect to this issue, this court has previously certified conflict with Kiss, as well as certifying three questions of great public importance related to this issue. Poole v. State, 67 So.3d 431 (Fla. 2d DCA 2011); Williams v. State, 66 So.3d 360 (Fla. 2d DCA 2011), review granted, No. SC11-1543, 2011 WL 4597556 (Fla. Sept. 22, 2011) (table decision); see also Blackmon v. State, 58 So.3d 343 (Fla. 1st DCA 2011) (disagreeing with Kiss and concluding that when a jury returns verdicts for both dealing in stolen property and petit theft, the trial court may vacate the conviction for the lesser offense), review granted, 67 So.3d 198 (Fla. 2011) (table decision). We affirm, but again certify conflict with Kiss, and also certify the same three questions of great public importance.

On August 29, 2006, Mr. Wilkins stole property and then pawned a portion of the property. The property that he took had limited value. As a result, the evidence would appear sufficient to support a conviction of grand theft of $300 or more, as charged, only if the amount included within the pawn shop transaction is also included within the theft.

At trial, the court did not instruct the jury that it could find Mr. Wilkins guilty of either grand theft or dealing in stolen property, but not both, and Mr. Wilkins did not request this instruction. See § 812.025 (providing that under proper circumstances a defendant may be charged with and tried for both “theft and dealing in stolen property in connection with one scheme or course of conduct ..., but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts”). All of the charges were submitted to the jury, and it found Mr. Wilkins guilty of each offense. With respect to dealing in stolen property and grand theft, the trial court entered a judgment and sentence for dealing in stolen property, as a second-degree felony, but not for grand theft, as a third-degree felony in this case. This is the same procedure “that most, if not all, circuit courts have used in this district for many years” to satisfy the intent of section 812.025. Williams, 66 So.3d at 362.

In Williams, which was decided after Kiss, this court held that a new trial was not warranted on the basis of the trial court’s failure to give an instruction on section 812.025, even when the defendant requested the instruction and preserved the issue for review. Williams, 66 So.3d at 365. In Williams, the offenses occurred on two separate days and Mr. Williams pawned only a portion of the stolen items. Id. Thus, it may have been possible to sustain a conviction for grand theft and a conviction for dealing in stolen property due to the break in time and by allocating portions of the amount stolen to each offense.

We affirm this case based on the reasoning in Williams, recognizing that the facts in this case cannot be distinguished from those in Kiss. Our affirmance in this case is in direct conflict with Kiss.

Affirmed; conflict certified; questions certified.

VILLANTI and WALLACE, JJ., Concur.


text:
    Luis JEREZ, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D09-2867, 3D09-2860, 3D09-2861, 3D09-2862, 3D09-2863, 3D09-2864, 3D09-2865, 3D09-2866.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.

      Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Public Defender.
    Before RAMIREZ, SHEPHERD, and FERNANDEZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Based on the State’s concession of error, with which we agree, we reverse the sentence imposed in case 08-CF-731-K, and remand for the trial court to resentence the defendant to a specific term of years not to exceed ten years in case 08-CF-731-K.

Reversed and remanded.


text:
    Lazaro YERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1518.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.
    Lazaro Yero, in proper person.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before RAMIREZ and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Huerta, 38 So.3d 883, 885 (Fla. 3d DCA 2010) (stating that, as long as the sentence imposed does not exceed the legal maximum, a claim of alleged scoresheet error is not cognizable under Florida Rule of Criminal Procedure 3.800).


author: LEWIS, J.

text:
    JERRY ULM DODGE, INC. d/b/a Jerry Ulm Dodge Chrysler Jeep, and Ferman on 54, Inc. d/b/a Ferman Chrysler Dodge at Cypress Creek, Appellants, v. CHRYSLER GROUP LLC, Appellee.
    No. 1D11-515.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2011.
    Rehearing Denied Jan. 31, 2012.

      John W. Forehand and R. Craig Spick-ard of Kurkin Forehand Brandes LLP, Tallahassee, for Appellants.
    Dean Bunch and Andy Bertron of Nelson Mullins Riley & Scarborough LLP, Tallahassee; Robert D. Cultice of Wilmer Cutler Pickering Hale & Door, pro hac vice, Boston, MA, for Appellee.
   LEWIS, J.

Appellants, Jerry Ulm Dodge, Inc. d/b/a Jerry Ulm Dodge Chrysler Jeep (“Ulm”), and Ferman on 54, Inc. d/b/a Ferman Chrysler Dodge at Cypress Creek (“Fer-man”), seek review of a final order issued by the Department of Highway Safety and Motor Vehicles (“Department”), which concluded that the establishment by Chrysler Group LLC (“Chrysler Group”) of North Tampa Chrysler Jeep Dodge, Inc. (North Tampa), a successor motor vehicle dealer, was exempt under section 320.642(5)(a)l, Florida Statutes (2010), from the notice and protest requirements in sections 320.642(l)-(3), Florida Statutes (2010). Because we conclude that Chrysler Group’s establishment of North Tampa is not exempt from the notice and protest requirements, we reverse and remand for further proceedings.

I. Background and Procedural History

Chrysler Group, the successor in interest to Chrysler Motors, LLC (“Chrysler Motors”), manufactures and sells Chrysler, Dodge, and Jeep vehicles to authorized Chrysler, Dodge, and Jeep motor vehicle dealers. Ulm and Ferman are licensed “motor vehicle dealers” as defined in section 320.60(11), Florida Statutes (2010), in Tampa, Florida, who possess franchise and dealer agreements (“dealer agreements”) with Chrysler Group for the sale of Dodge, Chrysler, and Jeep motor vehicles. Before April 2008, Bob Wilson Dodge Chrysler Jeep, LLC (“Wilson”), operated a Dodge, Chrysler, and Jeep dealership in Tampa, Florida, under dealer agreements with Chrysler Motors. However, in April 2008, Wilson filed a Chapter 11 petition in the United States Bankruptcy Court in the Middle District of Florida (“Bankruptcy Court”). At about the same time, Wilson closed its doors for business and ceased selling and servicing Dodge, Chrysler, and Jeep vehicles.

Upon the filing of Wilson’s bankruptcy petition, the automatic stay under section 362 of the Bankruptcy Code went into effect, thereby preventing Chrysler Motors from terminating Wilson’s Dodge, Chrysler, and Jeep dealer agreements. See 11 U.S.C. § 362 (2010). On July 30, 2008, Chrysler Motors filed a motion with the'Bankruptcy Court seeking relief from the automatic stay in order to terminate Wilson’s dealer agreements. On January 8, 2009, Wilson’s motor vehicle dealer license issued by the Department expired. On January 30, 2009, the Bankruptcy Court entered an order dismissing Wilson’s bankruptcy proceeding effective February 20, 2009. On February 9, 2009, the Bankruptcy Court entered an order granting Chrysler Motors’ motion for relief from the automatic stay for the purpose of allowing Chrysler Motors to terminate Wilson’s dealer agreements. On March 10, 2009, Chrysler Group terminated Wilson’s dealer agreements.

Subsequently, Chrysler Group established North Tampa as a replacement dealer for Wilson. The location of North Tampa is within two miles of Wilson’s former location. Chrysler Group received confirmation from an employee of the Department via email, based on information Chrysler Group provided the employee via email on February 5, 2010, that North Tampa would be exempt from the notice and protest requirements of section 320.642(5)(a)l, Florida Statutes (2010). On February 24, 2010, North Tampa applied for a motor vehicle dealer license from the Department to operate a Chrysler, Dodge, and Jeep dealership. The Department issued the dealer license to North Tampa.

Ulm and Ferman filed a petition with the Department for determination that Chrysler Group had established an additional motor vehicle dealership in violation of section 320.642. The Department forwarded the petition to the Division of Administrative Hearings. After an evidentia-ry hearing, the administrative law judge (“ALJ”) entered a Recommended Order concluding that the establishment of North Tampa is exempt from the notice and protest requirements of section 320.642. The ALJ found that the doctrine of equitable tolling applied to the facts of this case to toll the start of the twelve-month exemption period under section 320.642(5)(a) until March 10, 2009, the date Chrysler Group terminated Wilson’s dealer agreements. The Department adopted the ALJ’s Recommended Order as its Final Order. This appeal follows.

II. Analysis

An appellate court reviewing an agency action may not “substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact” if the agency’s finding of fact is supported by competent, substantial evidence. § 120.68(7)(b), Florida Statutes (2010). However, “[although appellate courts generally uphold administrative agency decisions if they are supported by competent, substantial evidence, ‘the same standards of review do not apply to an erroneous application of the law to the facts.’ ” Seneca v. Fla. Unemp’t Appeals Comm’n, 39 So.3d 385, 387 (Fla. 1st DCA 2010) (quoting City of Coral Gables v. Coral Gables Walter F. Stathers Mem’l Lodge 7, Fraternal Order of Police, 976 So.2d 57, 63 (Fla. 3d DCA 2008)). In other words, an agency’s decision is given no deference when an agency commits an error of law. Id. As the material facts in this case are not in dispute, our review of the Department’s final order is de novo. See S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 319 (Fla.2005) (“This question involves a pure question of law and thus is subject to de novo review.”) (italics added); Steward v. Dep’t of Children & Families, 865 So.2d 528, 530 (Fla. 1st DCA 2004).

Section 320.642 regulates a licensee’s ability to establish an additional dealership in a market. If the licensee desires to establish an additional dealership in a market, the licensee must give notice to the Department of its intent to establish an additional dealership. § 320.642(1). After receiving the licensee’s notice, the Department shall publish a notice of the proposed additional dealership in the Florida Administrative Weekly, whereupon dealers who have standing may file a petition protesting the proposal. § 320.642(1)-(3). However, the statute also provides exemptions from the statutory notice and protest requirements. § 320.642(5). Whether Chrysler Group is entitled to an exemption from the statutory notice and protest requirements is the issue in this appeal. Section 320.642(5)(a)l allows an exemption to the statutory notice and protest requirements if a successor motor vehicle dealer is opened or reopened within twelve months and is within the same or adjacent county and is within two miles of the former dealership’s location. The North Tampa location is less than two miles from the Wilson location. While the statute does not define when the twelve-month exemption period begins, Florida Administrative Code Rule 15C-7.004(4)(a) clarifies that the twelve-month exemption period begins as follows:

If the license of an existing franchised motor vehicle dealer is revoked for any reason, or surrendered, an application for a license to permit the reopening of the same dealer or a successor dealer within twelve months of the license revocation or surrender shall not be considered the establishment of an additional dealership if one of the conditions set forth in Section 320.642(5), Florida Statutes, is met by the proposed dealer.

Fla. Admin. Code R. 15C-7.004(4)(a) (2010).

Wilson surrendered its license on January 8, 2009. North Tampa submitted its license application to open at the successor location on February 24, 2010, more than twelve months after January 8, 2009. Thus, Chrysler Group did not timely appoint Noi'th Tampa as a successor dealer within the twelve-month exemption period under the Rule. We must, therefore, determine whether the Department erred as a matter of law in determining that the doctrine of equitable tolling applied to toll the beginning of the twelve-month exemption period under section 320.642(5)(a) until March 10, 2009.

Under the doctrine of equitable tolling, a late-filed petition should be accepted “when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum,” provided that the opposing party will suffer no prejudice. Machules v. Dep’t of Admin., 523 So.2d 1132, 1134 (Fla.1988). In Machules v. Department of Administration, the Florida Supreme Court expressly held that this doctrine applies in administrative proceedings. Id. at 1136-37. In so holding, the court noted that the Florida Administrative Procedure Act was intended to ensure that “the public would receive due process and significantly improved fairness of treatment ... than was commonly afforded under the predecessor act.” Id. (quoting Machules v. Dep’t of Admin., 502 So.2d 437, 446 (Fla. 1st DCA 1986) (Zehmer, J., dissenting)). The Supreme Court further noted that “[ejquitable tolling is a type of equitable modification which ‘focuses on the plaintiffs excusable ignorance of the limitations period and on [the] lack of prejudice to the defendant.’ ” Id. at 1134 (quoting Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir.1987)). Ulm and Ferman argue that Chrysler Group did not allege that it was misled or lulled into inaction, or that it was in some extraordinary way prevented from asserting its rights.

Ulm and Ferman also argue that our holding in Vantage Healthcare Corp. v. Agency for Health Care Administration, 687 So.2d 306 (Fla. 1st DCA 1997), controls the facts of this case. In Vantage Healthcare, this Court addressed whether equitable tolling could apply in the application process context. Id. at 307. The Agency for Health Care Administration (“AHCA”) determined that there was a need for sixty-three more nursing home beds in Manatee County, Florida. Id. Vantage timely filed a letter of intent to apply for a certificate of need for those beds. Id. Manatee, a competing applicant, had until November 16, 1994, to file its letters of intent to be approved for those additional beds within the time granted under the applicable administrative rule. Id. On November 15, 1994, Manatee delivered both letters to an overnight delivery company. Id. Manatee did not confirm that the letters were delivered before the deadline, and the delivery company did not deliver the letters until November 17,1994. Id. AHCA accepted the late-filed letters of intent from Manatee, ruling that it could accept the late-filed letters of intent under the doctrine of equitable tolling. Id. We reversed, explaining that “[i]n every case cited by [the party asserting equitable tolling] in which the doctrine of equitable tolling has been applied, a party was attempting through judicial or quasi-judicial proceedings to assert or protect a claim or right.” Id. We concluded that “[t]he certificate of need application process is not comparable to such judicial or quasi-judicial proceedings.” Id.

Ulm and Ferman argue, in the alternative, that even if the doctrine of equitable tolling applies to the facts of this case, the tolling period ended more than twelve months prior to the date North Tampa submitted its application to the Department to be a successor dealer. On the other hand, although Chrysler Group did not timely appoint a successor dealer within twelve months of the surrendering of Wilson’s license, as required by Rule 15C-7.004(4)(a) to be exempt from the statutory notice and protest requirements, Chrysler Group argues that the starting point for the twelve-month exemption period, after application of the doctrine of equitable tolling, should be March 10, 2009, the date that Chrysler Group terminated Wilson’s dealer agreements. It is Chrysler Group’s position that regardless of what happens in the bankruptcy proceeding, the starting date for the exemption period has to be equitably tolled until such time as a manu-faeturer can terminate the preceding dealer’s agreements. We agree with Ulm and Ferman.

The sole basis for tolling the beginning of the exemption period to any date other than the date Wilson lost its license is Wilson’s bankruptcy proceeding. In our view, if equitable tolling applied to the facts of this case, Wilson’s bankruptcy could not operate to toll the beginning of the exemption period to any date later than February 9, 2009, the date the Bankruptcy Court granted Chrysler Motor’s motion to lift the stay so that it could terminate Wilson’s dealer agreements. As of this date, there was no impediment of the bankruptcy proceeding to Chrysler Group’s termination of Wilson’s dealer agreements, any basis for tolling the effective date of the license termination ceased to exist, and the twelve-month exemption period began to run as clearly stated in Rule 15C-7.004(4)(a). Additionally, the record is devoid of any other action or circumstance which occurred after this date that would continue to toll the beginning of the twelve-month exemption period. Assuming arguendo that the doctrine of equitable tolling applied to the facts of this case, it operated to toll the start of the twelve-month exemption period from January 8, 2009, the date Wilson surrendered its license to February 9, 2009, the effective date of the lifting of the bankruptcy stay. Thus, the tolling period would have ended more than twelve months prior to February 24, 2010, the date North Tampa submitted its application to the Department. Therefore, we need not reach the merits of whether the doctrine of equitable tolling applies to the facts of this case because even if equitable tolling applied, Chrysler Group did not timely apply for a dealer license on behalf of North Tampa within twelve months after the tolling period would have ended. As such, the establishment of North Tampa by Chrysler Group is not exempt from the statutory notice and protest requirements.

Chrysler Group also argues that the twelve-month exemption period should not have begun until March 10, 2009, because it could not begin negotiating with replacement dealers until Wilson’s dealer agreements were terminated on March 10, 2009. However, if there had never been a bankruptcy and, on February 9, 2009, Wilson had voluntarily surrendered its license, then Rule 15C-7.004(4)(a) makes it clear that Chrysler Group would have until February 9, 2010, to appoint a replacement dealer in order to qualify for the exemption even if Chrysler Group had to go through the process of terminating Wilson’s dealer agreements. The language of the Rule is clear that the twelve-month exemption period runs from the date the previous dealer ceases to be licensed, and not from the date of the termination of the dealer agreements. The Rule provides no contingency to change the date if the license revocation precedes the dealer agreements termination. Therefore, even if the doctrine of equitable tolling applied to the facts of this case, it tolled the effective date of Wilson’s license termination to February 9, 2009.

III. Conclusion

Accordingly, the establishment of North Tampa by Chrysler Group is not exempt under section 320.642(5)(a)l from the notice and protest requirements in sections 320.642(l)-(3). We, therefore, reverse the final order and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

WOLF and RAY, JJ., concur.


author: WARNER, J.

text:
    FLORIDA DEPARTMENT OF HEALTH, an Agency of the State of Florida, Appellant, v. ALLAN J. DINNERSTEIN, M.D., P.A., a Florida Professional Association, and Allan J. Dinnerstein, M.D., individually, Appellees.
    No. 4D10-2600.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.
    Rehearing Denied Jan. 19, 2012.
    Pamela Jo Bondi, Attorney General, Scott D. Makar, Solicitor General, and Louis F. Hebener, Chief Deputy Solicitor General, Tallahassee, for appellant.
    Robert M. Presley and Michael R. Presley of Presley Law and Associates, P.A., Wellington, for appellees.
   WARNER, J.

Appellant, the Florida Department of Health, timely appeals a final summary judgment declaring that the appellees, Dr. Allan Dinnerstein and his professional association, were entitled to sovereign immunity — under a volunteer health care contract and in accordance with the Access to Health Care Act — for causes of action alleged in a related medical malpractice case. The Department claims that the court erred in granting summary judgment because genuine issues of material fact remain. We agree and reverse.

In 2005, Dr. Allen Dinnerstein, M.D., through his corresponding professional association, entered into a contract with the defendant, the Florida Department of Health, whereby he agreed to participate in Florida’s Volunteer Healthcare Provider Program. The Legislature enacted this program in section 766.1115, Florida Statutes, to improve the access of indigent residents to health care by offering health care- providers immunity from suit for their agreement to offer free health care to indigent residents. See § 766.1115(2), Fla. Stat. (2005). A volunteer provider may not be named as a defendant in any malpractice action where the care is performed under the health care provider’s contract with the Department. § 766.1115(4), Fla. Stat. (2005).

The statute mandates that “[pjatient se- ■ lection and initial referral must be made solely by the governmental contractor, and the provider must accept all referred patients.” § 766.1115(4)(d), Fla. Stat. (2005). “If emergency care is required, the patient need not be referred before receiving treatment, but must be referred within 48 hours after treatment is commenced or within 48 hours after the patient has the mental capacity to consent to treatment, whichever occurs later.” § 766.1115(4)(e), Fla. Stat. (2005). The Department’s standard contract, signed by Dr. Dinnerstein, contains language based on the statutory language of section 766.1115(4)(e). It requires that a designated agent of the Department must make the referral pursuant to Patient Referral Form, DH 1032, and the health care provider must obtain the approval of the Department prior to delivery of services. Consistent with the statute, the contract included the statutory language regarding emergency treatment.

The Patient Referral Form, DH 1032, informs the patient that the services of the volunteer health care professional are being provided at no charge and that the state is solely liable for any injuries and damages with its liability being limited by sovereign immunity. The patient must sign the form agreeing to the referral.

Diane Carlson, a nurse employed with the Palm Beach County Health Department, was in charge of the Volunteer Health Care Provider Program. Ms. Carlson testified that when Dr. Dinnerstein signed the contract, he was in private practice. However, Dr. Dinnerstein called Ms. Carlson, informing her that he was going to start working at Bethesda Memorial Hospital and that he was going to draw down on his private practice. Dr. Dinnerstein said that he no longer wanted to accept patients from the network. Nonetheless, Dr. Dinnerstein never withdrew from the network and his volunteer contract was still in effect in March 2007.

In 2007, Ludana Prophete was a patient receiving prenatal care at the Lanta-na clinic of the Palm Beach County Health Department, a designated agency for the Department. On March 5, 2007, Ms. Prophete arrived by ambulance at Bethesda Memorial Hospital in Palm Beach County, complaining of abdominal pain. This appears to be a self-referral and not one made by the clinic. Dr. Din-nerstein has not claimed that he is covered by immunity for his treatment of Ms. Prophete on this date. A nurse made a diagnosis that Ms. Prophete had potential preeclampsia. Dr. Dinnerstein was the physician on call at Bethesda, and he initially saw Ms. Prophete and rendered some treatment. Upon discharge, Ms. Prophete was instructed to return if she experienced other problems. She was also told to keep her next appointment with the Lantana clinic.

On March 8, 2007, Ms. Prophete went to the Lantana clinic for her appointment, where she was seen by a nurse, Sandra Smith. Based upon her examination and Ms. Prophete’s complaints, Smith believed that Ms. Prophete was suffering from preeclampsia, which required immediate delivery. Smith called the Labor and Delivery Unit at Bethesda and notified the clerk of Ms. Prophet’s situation. Smith then arranged for an ambulance to take Ms. Prophete to Bethesda, because that is where the clinic routinely sends its patients requiring hospitalization. On a prescription pad which Smith gave to the paramedics, Smith noted Ms. Prophete’s vital signs as well as her symptoms. Smith did not know which physician was on duty, nor did she speak to any doctor regarding Ms. Prophete. She has no responsibility for referring patients to doctors pursuant to the volunteer health program.

Dr. Dinnerstein saw Ms. Prophete at Bethesda on March 8th, where her blood pressure was elevated. He gave her two prescriptions and told her to return the next day to get her blood pressure checked. She returned on March 9th, and Dr. Dinnerstein again examined her and released her, this time instructing her to return in two days to have her blood pressure checked. Unfortunately, Ms. Proph-ete died two hours after leaving the hospital. Dr. Dinnerstein never billed for his services, although Bethesda did generate a bill, which was later written off as uncol-lectable.

The personal representative of Ms. Prophete’s estate brought a medical malpractice action against Dr. Dinnerstein and Bethesda Memorial. The Department took the position that Dr. Dinnerstein was not entitled to sovereign immunity pursuant to the contract and section 766.1115 for any medical services rendered to Ms. Prophete and therefore refused to defend.

Dr. Dinnerstein then filed this declaratory judgment seeking to establish his immunity from suit pursuant to his contract and the Volunteer Health Care Provider Program. In his suit, he contended that Ms. Prophete had been referred to his care by the clinic in compliance with the terms of his contract. He relied on nurse Smith’s note given to the paramedics as the referral and demanded the immunity from suit promised by his contract. In his later-filed motion for summary judgment, he argued that the Department referred Ms. Prophete to Bethesda Memorial Hospital on an emergency basis on March 8, 2007, and that upon receiving Nurse Smith’s prescription pad notes, Dr. Din-nerstein began treatment. Dr. Dinner-stein further argued that he was under no duty to determine the patient’s eligibility for the program, that he provided health care services to the patient at no charge, and that the forty-eight hour emergency provision of the contract applied.

The Department opposed summary judgment, contending that Ms. Prophete had not been referred to Dr. Dinnerstein as part of the Volunteer program. The Department argued that Nurse Smith’s notes did not constitute a referral, and in any event Ms. Prophete was not referred to any particular physician at Bethesda. Assuming that Ms. Prophete did present as an emergency case, pursuant to the statute and the terms of the contract, a written referral had to be generated within forty-eight hours after treatment commenced. This was not done, although Dr. Dinnerstein argued that Ms. Prophete died before the expiration of the forty-eight hours and thus could not consent to the referral.

The trial court granted summary judgment. In the order granting summary judgment, the trial court found that the obstetrical services performed by Dr. Din-nerstein on March 8th and 9th, 2007, were rendered in accordance with the Volunteer Health Care Provider Agreement. The trial court further held:

While it is also undisputed that the patient’s eligibility for the program was found to be lacking and that the notice of referral form, DH # 1032, was never executed and sent to the Plaintiffs, the contract provides that the necessity of having a predetermination of eligibility and the attendant execution of the referral form are dispensed with when the transfer of the patient is made during a declared medical emergency of the patient as was the case herein.

Accordingly, the trial court entered a final declaratory judgment in the plaintiffs’ favor, declaring that sovereign immunity was afforded under the contract and in accordance with section 766.1115, Florida Statutes, to Dr. Dinnerstein and all health care providers under his control for the causes of action in the malpractice lawsuit filed by the estate of Ms. Prophete. From this order, the Department appeals.

We review an order granting summary judgment de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010). When reviewing an order granting summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party. Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211,1213 (Fla. 4th DCA 2009). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

The facts in this case are disputed. First, the evidence is conflicting as to whether a referral was made to Dr. Din-nerstein through the Volunteer Health Care Program, whether be it by way of emergency or by the normal referral process. Dr. Dinnerstein had already told the volunteer program coordinator that he did not intend to take further volunteer patients, because he was commencing work at Bethesda Hospital. On March 5th, Dr. Dinnerstein treated Ms. Prophete in an emergency capacity at the hospital, where she appeared on her own as a “self-referral.” That he treated her without referral by the Volunteer program in this instance is evidence that he was not acting within the course and scope of his Volunteer Health Care Provider contract in his work at Bethesda. When Nurse Smith sent Ms. Prophete to Bethesda on March 8th, she did not send her to Dr. Dinnerstein specifically but to any physician on call. Therefore, it is a question of fact as to whether he was acting in his capacity as a volunteer physician when treating Ms. Prophete at Bethesda.

While it is undisputed that a referral was not made pursuant to the required Patient Referral Form DH 1032, the trial court found that this was excused by the emergency treatment provision in the contract. That is, no referral form is necessary prior to treatment in emergency cases, but the referral must be made within forty-eight hours of treatment commencing or within forty-eight hours of the patient having the mental capacity to consent to treatment. Contrary to the trial court’s interpretation of the contract, however, the requirement of the referral is not completely “dispensed with” when the treatment is given during a declared medical emergency of the patient. Instead, as a general proposition, the referral requirement is merely delayed.

Under the contract, if the patient had the mental capacity to consent to treatment, the fact that the patient died within the forty-eight hour period from the commencement of treatment would not excuse the lack of a referral. If Ms. Prophete did have the mental capacity to consent, then the requirement of executing the referral form is crucial, because it informs the patient that sovereign immunity would be extended to the health care provider and she would be waiving her right to a full recovery in tort for any medical negligence. It is also mandated by statute.

Here, it is clear that no referral was executed within forty-eight hours after treatment was commenced on March 8th. Thus, the emergency provision could apply only if a referral was obtained “within 48 hours after the patient has the mental capacity to consent to treatment.” If Ms. Prophete had the mental capacity to consent to the terms of treatment in the volunteer network, either on March 8th or March 9th, then the referral requirement was not “dispensed with.” Here, as the Department argues, Ms. Prophete was discharged from Bethesda Memorial Hospital on both March 8th and March 9th, suggesting that she would have had the mental capacity to consent to treatment. The fact that Dr. Dinnerstein discharged her two days in a row cuts against his argument below that there was no opportunity for Ms. Prophete to sign the referral form and thus consent to her treatment by him as a volunteer physician. At the very least, it is clear that Dr. Dinnerstein was not entitled to summary judgment, as he did not prove that Ms. Prophete lacked the mental capacity to consent to treatment.

Because disputed issues of fact remain, the trial court erred in granting summary judgment. We therefore reverse and remand for further proceedings.

HAZOURI, J., and MONACO, TOBY S., Associate Judge, concur.


text:
    Willie Fred SIMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2665.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2011.
    Willie Fred Sims, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, Willie Fred Sims [“Sims”], asserts that the jury instruction for manslaughter by intentional act given at his trial constituted fundamental error and that appellate counsel rendered ineffective assistance when he failed to raise this issue on direct appeal. This Court’s decisions in Hodges v. State, 64 So.3d 142 (Fla. 5th DCA 2011), and Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011), compel that we grant relief to Sims.

Sims argues that his appellate counsel was ineffective for failing to raise the un-preserved but fundamental error caused by the court giving the standard jury instruction for manslaughter by act, which was held to be defective in State v. Montgomery, 39 So.3d 252 (Fla.2010), approving Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009).

Sims was tried in March 2009, just after the First District’s decision in Montgomery was released, and his appeal was in the pipeline at the time that State v. Montgomery was decided by the supreme court. State v. Montgomery was decided on April 8, 2010, and the mandate was issued in Sims’ direct appeal in October 2010.

In Hodges, the defendant was convicted of attempted second-degree murder after being tried for attempted first-degree murder. He filed a petition alleging ineffective assistance of appellate counsel because appellate counsel failed to raise the issue of whether the attempted manslaughter jury instruction given in his trial was fundamental error. In Hodges, as in this case, the error was unpreserved below. As noted in the Hodges opinion: “Given the Florida Supreme Court’s April 2010 Montgomery decision, we are bound to conclude that appellate counsel should have raised the issue at the appellate level.... ” Hodges, 64 So.3d at 143 (citing Minnich v. State, — So.3d-, 2011 WL 265765 (Fla. 1st DCA 2011)); Bailey v. State, — So.3d -, 2011 WL 265769 (Fla. 1st DCA 2011); Sharpe v. State, 39 So.3d 342 (Fla. 1st DCA 2010); Asberry v. State, 32 So.3d 718 (Fla. 1st DCA 2010); Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009).

We grant the petition and remand for a new trial on the attempted first-degree murder charge.

PETITION GRANTED; REMANDED.

GRIFFIN, PALMER and EVANDER, JJ., concur.


author: VILLANTI, Judge.

text:
    MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a sovereign nation and federally recognized Indian tribe, Petitioner, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, on behalf of The BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, Respondent.
    No. 2D11-2797.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2011.
    Rehearing Denied Feb. 2, 2012.

      Bernardo Roman, III, Miami, for Petitioner.
    Pamela Jo Bondi, Attorney General, and J.A. Spejenkowski, Assistant Attorney General, Tallahassee, for Respondent.
   VILLANTI, Judge.

The Miccosukee Tribe of Indians of Florida petitions for a writ of certiorari to quash the trial court’s order that denied its motion for final summary judgment in an eminent domain proceeding based on the Tribe’s alleged sovereign immunity and/or the provisions of the Federal Noninter-course Act, 25 U.S.C. § 177. In response, the Department of Environmental Protection contends that the three parcels of land at issue, which the Tribe purchased on the open market, are not protected by either the Tribe’s sovereignty or the Noninter-course Act. Because the Tribe has not shown that the trial court’s ruling departs from the essential requirements of the law, we deny the petition.

By way of background, the Tribe reached a settlement with the State of Florida in 1982 concerning what land in Florida constituted “aboriginal land” of the Tribe. As part of that settlement agreement, the Tribe relinquished all rights that it had in any land other than certain identified aboriginal lands and its reservation, which is located wholly in Dade County. In 1987, Congress approved the settlement agreement between the Tribe and the State. See 25 U.S.C. § 1772c.

In 1997, the Tribe purchased three parcels of land in Collier County on the open market. One parcel was purchased from an individual; the other two were purchased from IMC Agribusiness, Inc., a phosphate mining company. Title to the land was held in fee simple by the Tribe. The Tribe took no immediate action to have the federal government take title to the land in trust for the Tribe so as to protect it as tribal land.

On June 12, 2003, the Tribe filed a “fee-to-trust” application with the Department of the Interior, seeking to have the federal government take title to the land in trust for the Tribe. However, on August 26, 2003, before the Department of the Interi- or could take any action on the application, the Department of Environmental Protection filed a “petition in eminent domain” seeking to take these three parcels of land as part of an Everglades restoration project. Upon learning of this action, the Department of the Interior deferred any consideration of the Tribe’s “fee-to-trust” application pending resolution of the eminent domain proceedings.

On October 16, 2003, the Tribe filed a motion to dismiss the petition in eminent domain based on insufficient service of process and sovereign immunity. The trial court denied this motion, and the Tribe sought certiorari review of the denial of sovereign immunity in this court. This court denied certiorari without opinion. See Miccosukee Tribe of Fla. v. Dep’t of Envtl. Prot. ex rel. Bd. of Trustees of the Internal Improvement Trust Fund, 892 So.2d 1030 (Fla. 2d DCA 2004) (table decision). Thereafter, on May 17, 2005, the trial court entered an Order of Taking that vested title to the land in the Department of Environmental Protection upon its payment into the registry of the court of its good faith estimate of value, i.e., $2,228,137.50. This amount was deposited on May 20, 2005, and title to the land was vested in the State shortly thereafter. Importantly, the Tribe did not seek review of this order.

For reasons not apparent from the parties’ appendices, the case then sat idle until late 2010, when the Department of Environmental Protection noticed the case for jury trial on the issue of compensation. In response, on February 28, 2011, the Tribe filed a motion for summary judgment seeking to have the 2005 deeds to the land set aside and the land returned to its ownership. The Tribe argued that it was entitled to summary judgment in its .favor due to its sovereign immunity. Alternatively, the Tribe argued that the land should be returned to it because it was taken in violation of the provisions of the Nonintercourse Act. After a full hearing, the trial court denied the Tribe’s motion.

In this petition, the Tribe contends that the denial of its motion for summary judgment constituted a departure from the essential requirements of the law. Because the issue is one of sovereignty, we have jurisdiction to review this ruling through certiorari. See, e.g., Seminole Tribe of Fla. v. McCor, 903 So.2d 353, 357-58 (Fla. 2d DCA 2005). However, the Tribe is not entitled to issuance of the writ because neither sovereign immunity nor the Nonin-tercourse Act prohibit the Department’s in rem condemnation action against land acquired by the Tribe on the open market and held by the Tribe in fee simple.

The issues of both sovereign immunity and the applicability of the Nonintercourse Act were squarely addressed and decided adversely to the position taken by the Tribe here by the North Dakota Supreme Court in Cass County Joint Water Resource District v. l.43 Acres of Land in Highland Township, 643 N.W.2d 685 (N.D.2002)—a case that is quite similar to the present case. In that case, the facts showed that the Chippewa Indians had purchased a 1.43 — acre parcel on the open market after plans for taking the property for construction of a dam had been announced. Id. at 688. The Chippewas were a federally recognized tribe that had a 43,000-acre reservation in North Dakota. Id. The 1.43-acre parcel was located some 200 miles from the reservation, did not lie within the aboriginal homelands of the Chippewa, was not allotted land, and was not held in trust for the Chippewas by the federal government. Id. When the Water Resource District sought to condemn the land, the Chippewas filed a motion to dismiss, arguing that they were immune from suit due to sovereign immunity and that condemnation would violate the Nonintercourse Act. Id. The North Dakota Supreme Court disagreed with both points.

On the issue of sovereign immunity, the court noted that a condemnation action is an action in rem rather than in personam. Id. at 688-89. Because a proceeding in rem is an action against the property itself, the court is not required to acquire in personam jurisdiction over the landowner as a prerequisite to a valid court action. Id. at 690. Instead, “the purpose of service of the summons and complaint upon the landowner is only to provide notice and an opportunity to be heard.” Id. Thus, the Chippewas’ tribal sovereign immunity, while perhaps a bar to an action against the tribe itself, did not necessarily bar an action against the tribe’s land since personal jurisdiction was not required.

In addressing the extent of in rem jurisdiction, the Cass County court relied on the discussion of the differences between in rem and in personam jurisdiction in County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992). In that case, the Supreme Court noted that the county had the authority to assert jurisdiction over and assess property taxes on land owned by the Yakima tribe. Id. at 263-64, 112 S.Ct. 683. This was true because the ad valorem tax created “a burden on the property alone,” rather than on the owner. Id. at 266, 112 S.Ct. 683. Such in rem assessments were proper against lands owned by the Yakimas in fee. Id. at 266-68, 112 S.Ct. 683. However, the Court distinguished such in rem assessments against land from a “transactional tax” on the sale of land, which is assessed against the seller rather than the land itself. Id. at 268, 112 S.Ct. 683. Because such taxes were imposed against the seller rather than the land, actions to collect those taxes would require in personam jurisdiction, which would, in turn, implicate the Yakimas’ sovereign immunity. Id. at 267-68, 270, 112 S.Ct. 683. Thus, such a “transactional tax” would be impermissible.

Based on the Yakima Court’s explanation of the differences between in rem jurisdiction and in personam jurisdiction as they relate to Indian land, the Cass County court held that the state court had jurisdiction over an in rem action seeking the condemnation of land owned by the Chippewas in fee simple and that the tribe’s sovereign immunity was not implicated. In doing so, the court stated:

The State, and the District acting on behalf of the State, has broad authority to acquire property located within its territorial jurisdiction to be used for public purposes. A condemnation action is purely in rem, and does not require acquisition of in personam jurisdiction over the owners of the land. In the words of the United States Supreme Court, the power to condemn “does not depend upon the consent or suability of the owner.” State of Georgia [v. City of Chattanooga], 264 U.S. [472] at 482, 44 S.Ct. 369, 68 L.Ed. 796 [1924].
The land at issue in this case is essentially private land which has been purchased in fee by an Indian tribe. It is not located on a reservation, is not allotted land, is not part of the Tribe’s aboriginal land, is not trust land, and the federal government exercises no superintendence over the land. Under these circumstances, the State may exercise territorial jurisdiction over the land, including an in rem condemnation action, and the Tribe’s sovereign immunity is not implicated.

Cass Cnty., 643 N.W.2d at 694.

The Cass County court’s reasoning is equally applicable to the Tribe’s argument in this case. The eminent domain action here is not an action against the Tribe itself, but instead is an action against land held in fee by the Tribe. The Department of Environmental Protection does not need personal jurisdiction over the Tribe — it needs only in rem jurisdiction over the land. And the land in question is not tribal reservation land, is not within the aboriginal homelands of the Tribe, is not allotted land, and is not held in trust by the federal government for the Tribe. Therefore, on these facts, the Tribe’s sovereign immunity is not implicated and does not bar this eminent domain action.

Alternatively, the Tribe argues that the Nonintercourse Act bars this action. The Nonintercourse Act provides, in pertinent part:

No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.

25 U.S.C. § 177. When it was originally enacted in 1834, the Nonintercourse Act was intended to protect Indian tribes by ensuring that Indian lands were settled peacefully and that Indians were treated fairly. See, e.g., United States v. Candelaria, 271 U.S. 432, 441-42, 46 S.Ct. 561, 70 L.Ed. 1023 (1926). The Act did not distinguish between Indian trust lands and Indian fee lands, “presumably because [Congress] did not contemplate that Indian tribes could hold land in fee simple.” Penobscot Indian Nation v. Key Bank of Maine, 112 F.3d 538, 549 (1st Cir.1997).

Subsequent legislation, however, did allow tribes to hold land in fee simple. In the late 19th century, Congress began “allotting” lands to individuals on a tribe-by-tribe basis, and the allotted land could be sold immediately. Cnty. of Yakima, 502 U.S. at 253-54, 112 S.Ct. 683. Because the immediate sale of allotted land compromised Congress’s intent of encouraging tribes to become self-sufficient, Congress enacted the Indian General Allotment Act in 1887. Id. at 254, 112 S.Ct. 683. Under that Act, the allotted land was held by the United States in trust for a period of at least twenty-five years, after which the United States would issue a “fee-patent” that removed the restraints on alienation. Id. Subsequently, in 1934, Congress passed the Indian Reorganization Act, which “halted further allotments[,] ... extended indefinitely the existing periods of trust applicable to already allotted (but not yet fee-patented)” land, and restored unal-lotted surplus Indian lands to tribal ownership. Id. at 255. However, this Act did not reimpose any restraints on alienation of land that was already fee-patented, and it did not prevent tribes from purchasing land in fee simple on the open market. Id. at 255-56, 112 S.Ct. 683.

As part of the Indian General Allotment Act in 1887, Congress provided that once any restraints on alienation on Indian land were removed, state civil and criminal law would apply and the owner would be subject to state law jurisdiction. Id. at 255, 112 S.Ct. 683; see also South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 508-09, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986). As the Court explained:

“With the issue of the patent, the title not only passed from the United States but the prior trust and the incidental restrictions against alienation were terminated. This put an end to the authority theretofore possessed by the Secretary of the Interior by reason of the trust and restriction-so that thereafter all questions pertaining to the title were subject to examination and determination by the courts, appropriately those in Nebraska, the land being there.”

Catawba Indian Tribe, 476 U.S. at 508 n. 19, 106 S.Ct. 2039 (quoting Larkin v. Paugh, 276 U.S. 431, 439, 48 S.Ct. 366, 72 L.Ed. 640 (1928)).

Based on this language in the Indian General Allotment Act, courts have determined that “the protections of the Nonin-tercourse Act do not apply to land which has been rendered freely alienable by Congress, held by private parties, and subsequently acquired by an Indian tribe.” Cass Cnty., 643 N.W.2d at 696; see also Lummi Indian Tribe v. Whatcom Cnty., Wash., 5 F.3d 1355, 1359 (9th Cir.1993) (holding that “once Congress removes restraints on alienation of [Indian] land, the protections of the Nonintercourse Act no longer apply”); Mashpee Tribe v. Watt, 542 F.Supp. 797, 803 (D.Mass.1982); Bay Mills Indian Cmty. v. State, 244 Mich.App. 739, 626 N.W.2d 169, 174 (2001); Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 130 Wash.2d 862, 929 P.2d 379, 387 (1996); cf. City of Sher- rill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197, 202-03, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005) (holding that the Oneida tribe could not “unilaterally revive its ancient sovereignty” over land “through open-market purchases from current titleholders” even though the land had previously been reservation land). Thus, once a tribe owns land in fee simple, the Nonin-tercourse Act provisions simply do not apply-

In this case, there is nothing in the record to show that the land in question was ever held in trust by the federal government for the Tribe or any other Indian nation. And if it ever was, it was long ago fee-patented and held by private ownership. The record shows that the Tribe purchased one small parcel from a private individual and two larger parcels from a phosphate mining company. Since this land was purchased on the open market in fee simple, is not within the confines of the Tribe’s reservation, has apparently never been held in trust for the Tribe, and was privately owned for an extended period of time before the Tribe’s purchase, the provisions of the Nonintercourse Act simply do not apply to this land. Thus, the protections of the Nonintercourse Act do not preclude this eminent domain proceeding.

Because we conclude that the trial court did not depart from the essential requirements of the law, we need not reach the Department’s suggestion that the Tribe’s argument is barred by the law of the case doctrine. We note that we denied without opinion the Tribe’s 2004 certiorari petition, in which it raised the identical sovereign immunity issue raised in this petition. However, “[a] simple denial of certiorari without opinion is not an affirmance and does not establish the law of the case.” Don Mott Agency, Inc. v. Harrison, 362 So.2d 56, 58 (Fla. 2d DCA 1978). Therefore, our denial of that petition did not, as a matter of law, preclude the Tribe from raising this issue again in this second petition. Nevertheless, we do not see the wisdom in filing a successive certiorari petition raising an issue already reviewed and denied by this court in a prior petition when neither the facts of the case nor the law has changed in the interim.

Denied.

ALTENBERND and MORRIS, JJ., Concur.


text:
    Melvee Wanel TUCKER, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D11-3353.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 2012.

      W. Sam Holland, for petitioner.
    Pamela Jo Bondi, Attorney General, and Michael Mervine, Assistant Attorney General, for respondent.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Melvee Wanel Tucker petitions this Court for issuance of a writ of habeas corpus, alleging that he is being incarcerated illegally in lower court case number F10-31496.

Petitioner was arrested on November 2, 2010 for purchase of cocaine and possession of cocaine. Bond was set at $5000, which Petitioner posted the next day. On November 24, 2010, the State filed an information charging Petitioner with possession of cocaine. At some point between the day of his pretrial release in this case and May 19, 2011, Petitioner was taken into custody for an outstanding detainer on a parole violation. However, he was not taken into custody on the instant case.

On May 19, 2011, Petitioner accepted a court-offered plea. Petitioner pled nolo contendere to the charge and the trial court withheld adjudication and placed Petitioner on one day of probation. A special condition of the probation was jail time equal to the amount of time he had already served in this case. This meant, in effect, that his sentence was complete upon the court’s acceptance of the plea and entry of the judgment and sentence. Because Petitioner had already completed the incarceration which was a special condition of his probation, the trial court “terminated” Petitioner’s probation following acceptance of the plea. The court then discharged the $5000 bond Petitioner had previously posted.

The court’s plea offer was made over the objection of the State. The sentence departed below the sentencing guidelines, and the trial court did not provide written reasons for the departure. See Fla.R.Crim. P. 3.701(d)(11) and Pope v. State, 561 So.2d 554 (Fla.1990) (holding district court correctly reversed a departure sentence where the trial court failed to provide written reasons for the departure).

At the time of the plea, the State indicated that it would appeal the sentence. However, the State did not appeal the sentence. Instead, on May 27, 2011, the trial court, over Petitioner’s objection, sua sponte vacated the judgment and sentence, and set the case for trial. The trial court indicated it was vacating the sentence because it was “illegal” and because the State had indicated it was going to appeal the sentence.

The State concedes, and we agree, that the trial court did not have the authority to vacate a sentence which had already been served. Once Petitioner had completed his sentence, the trial court no longer had authority, over Petitioner’s objection, to vacate the judgment and sentence, even if it was illegal or invalid. Maybin v. State, 884 So.2d 1174 (Fla. 2d DCA 2004). As our sister court explained in Maybin: “Once a sentence has already been served, even if it is an illegal sentence or an invalid sentence, the trial court loses jurisdiction and violates the Double Jeopardy Clause by reasserting jurisdiction and resentencing the defendant to an increased sentence.” Id. at 1175. See also, Johnson v. State, 881 So.2d 706 (Fla. 3d DCA 2004). The proper procedure for the State to challenge a below-guidelines sentence imposed without written reasons is by way of an appeal. Gartrell v. State, 626 So.2d 1364 (Fla.1993).

We therefore grant the petition insofar as it seeks a reinstatement of the judgment and sentence imposed on May 19, 2011 in case number F10-31496, as that sentence was fully completed on the very day it was imposed. However, we deny the petition insofar as it seeks Petitioner’s release from custody. Although Petitioner is in custody, he has failed to provide any record support for his claim that he is currently in custody on this case. The State contends, with apparent accuracy, that Petitioner is not in custody on the instant case but rather is being held in custody on the detainer issued for his parole violation.

As we are confident that the trial court will proceed in a manner consistent with this opinion, we withhold formal issuance of the writ.

      . The purchase of cocaine charge was no-actioned.

      . Petitioner was under community supervision stemming from a conviction for attempted murder in 1977.

      . Generally speaking, a court cannot withhold an adjudication of guilt if the court is also imposing a term of incarceration. See Fla. R.Crim. P. 3.670; McClellan v. State, 819 So.2d 946 (Fla. 2d DCA 2002). This is true even if the court is sentencing the defendant to time he has already served in jail prior to the plea. State v. Green, 581 So.2d 1008 (Fla. 4th DCA 1991). However, the court can withhold adjudication, place a defendant on probation, and impose a period of incarceration as a special condition of that probation, so long as the period of incarceration is less than one year. Id.


text:
    Diane KROCK, Appellant, v. Irwin ROZINSKY and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 4D09-4815.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Rehearing Denied Feb. 17, 2012.

      Diane Krock, Reddick, pro se.
    Nancy W. Gregoire of Kirsehbaum, Birnbaum, Lippman & Gregoire, PLLC, and Patrick Shawn Spellacy of Kirwan & Spellacy, P.A., Fort Lauderdale, for appel-lee State Farm Mutual Automobile Insurance Company.
   WARNER, J.

Appellant, Diane Krock, appeals a final judgment awarding attorney’s fees and costs to State Farm Mutual Automobile Insurance Company in the amount of $163,415.79 pursuant to an offer of settlement. Krock challenges the trial court’s denial of her request for a continuance of the fee hearing. Finding no abuse of the court’s discretion, we affirm.

This case began in 2002 when Krock filed a negligence action against another driver for personal injuries Krock suffered in an automobile accident in 1999. Krock later filed an amended complaint in which she asserted a claim for underinsured motorist benefits against State Farm. State Farm denied liability and served a proposal for settlement which Krock did not accept. At trial, she recovered less than the proposal. She appealed the resulting judgment, which this court per curiam affirmed on appeal. See Krock v. Kahan, 989 So.2d 649 (Fla. 4th DCA 2008). In connection with the appeal of that final judgment, this court conditionally granted State Farm’s motion for appellate fees to be set by the trial court. Shortly after the conclusion of the appeal, Krock’s attorney withdrew from her representation. After the underlying final judgment was affirmed on appeal, State Farm filed an Amended Motion to Tax Attorney’s Fees and Costs pursuant to section 768.79, Florida Statutes, and also filed a motion for the trial court to award appellate fees and costs. Those motions were filed in 2008 and set for hearing first in December 2008, which hearing was continued at Krock’s request, and again in February 2009. Pri- or to that hearing, Krock requested a six-month continuance based on various health problems. The trial court granted the motion.

About six months after Krock’s previous request for a continuance had been granted, State Farm re-noticed its fee motions for hearing on October 9, 2009. On October 5, 2009, Krock sent a letter to the judge. Attached to Krock’s letter was a doctor’s note, which stated that she was 100% disabled, that she had multiple medical and psychological problems, that she was in no condition to travel, and that she would never be able to drive again. This same letter and request for continuance was faxed to the judge the day before the hearing.

The trial court denied Krock’s request for an extension of time and went forward with the hearing on State Farm’s fee motions. In the order denying Krock’s motion for an extension of time, the trial court explained in detail its reasoning for denying the request:

This action came before the Court upon receipt of a letter that appears to be ex parte, in other words there is no certificate of service. Therefore a copy of the letter is attached to this order.
Plaintiff Mrs. Krock requests an extension of time based on a medical note from her doctor that in essence said that she will never be able to drive again and she is in no condition to travel. This is not the first time that this matter has been extended for Mrs. Krock’s benefit so that she can attend a hearing. This case was tried before a jury and a verdict [was] rendered on September 15, 2006 and an amended final judgment was entered on September 15, 2006 and an amended final judgment was entered on March 20, 2007. The defense has been waiting for its hearing in order to have its fees and costs taxed. Mrs. Krock’s medical condition apparently has never allowed her to appear. There appears to be no likelihood that Mrs. Krock will ever appear. Therefore to have extended the last hearing would have been pointless. The hearing remained scheduled and never extended. The motion to vacate that order and further extend the time is hereby denied.

Subsequently, the trial court entered a final order awarding attorney’s fees and costs to State Farm in the amount of $168,415.79. The final order mentioned that Krock “made no attempt to appear telephonieally or make other arrangements to participate in the hearing.” Krock filed a motion for rehearing, raising a litany of allegations. However, before any ruling from the trial court on her motion for rehearing, Krock filed a notice of appeal as to the final fee judgment and as to the order denying her an extension of time. Therefore, any matters in her motion for rehearing were abandoned. See Fla. R.App. P. 9.020(h)(8).

In her brief, Krock contends that the trial court abused its discretion in denying her motion for extension of time based upon her medical condition. The standard of review of a trial court’s denial of a motion for continuance is abuse of discretion. See A.P.D. Holdings, Inc. v. Reidel, 865 So.2d 682, 683 (Fla. 4th DCA 2004). An appellate court will not reverse unless an abuse of discretion is “clearly shown.” Taylor v. Mazda Motor of Am., Inc., 934 So.2d 518, 520 (Fla. 3d DCA 2005).

Factors to be considered in determining whether the trial court abused its discretion in denying the motion for continuance include the following: 1) whether the denial of the continuance creates an injustice for the movant; 2) whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and 3) whether the opposing party would suffer any prejudice or inconvenience as a result of a continuance. Fleming v. Fleming, 710 So.2d 601, 603 (Fla. 4th DCA 1998). However, “when undisputed facts reveal that the physical condition of either counsel or client prevents fair and adequate presentation of a case, failure to grant a continuance is reversible error.” Ziegler v. Klein, 590 So.2d 1066, 1067 (Fla. 4th DCA 1991). As noted by the Fifth District in Myers v. Siegel, 920 So.2d 1241 (Fla. 5th DCA 2006), cases involving illness of counsel or a party do not mandate reversal in all circumstances. Instead, additional factors should be considered, including:

(1) the length of the requested continuance; (2) whether the counsel who becomes unavailable for trial has associates adequately prepared to try the case; (3) whether other continuances have been requested and granted; (4) the inconvenience to all involved in the trial; and (5) any other unique circumstances. Consideration of these factors allows the courts to balance the protection of the client’s right to counsel of his or her choice with the general interest in the prompt and efficient administration of justice, which includes an opposing party’s right to prompt resolution of the issues involved in the proceedings.

Id. at 1243.

Applying these factors to the present case, we cannot say that the trial court abused its discretion. Krock’s medical condition appears not to be disputed and has been ongoing. Her physical issues began with another automobile accident in 2008, and she had additional issues which predated that accident, which she claimed arose from the 1999 automobile accident. The cause of the need for the continuance was clearly foreseeable, yet Krock waited until just a few days prior to each hearing to make a request for continuance. In the case of the final hearing, although the notice of hearing was sent in August, Krock did not send her motion for continuance until four days prior to the hearing.

Based upon the history of requests at the last minute, the trial court could conclude that the request was dilatory and solely to delay the proceedings. This is reinforced by Krock’s failure to make other arrangements to attend the hearing either telephonically or through other means. And, the request for a delay of nine months appears unreasonable, given the prior lengthy continuances.

Because the hearing involved the setting of attorney’s fees, we cannot conclude that Krock’s absence prevented a fair and adequate presentation of the case. In this regard, this is unlike Ziegler v. Klein, where the husband, who was pro se, was absent from the final hearing on his divorce because he was hospitalized. His absence meant that he could not present his own testimony on the issue of child custody, child support, or alimony. In this case, on the other hand, the issue was the amount of attorney’s fees to be awarded. That would require expert attorney testimony. Krock has not suggested that she had made arrangements to submit such evidence to the court.

The trial court granted substantial continuances to Krock as a result of her medical conditions. Considering the balance of her right to attend the hearing with the efficient administration of justice and the right of the opposing party to have its day in court, we cannot say that the court abused its discretion in denying her request for the additional nine-month continuance.

While Krock makes a litany of other claims, including that State Farm’s attorney agreed to a continuance and that the judge’s judicial assistant told her the hearing would be continued, there is no record support for such claims. A party may not go outside the record in making appellate arguments. See, e.g., Doctors Assocs., Inc. v. Thomas, 898 So.2d 159, 162 (Fla. 4th DCA 2005) (“An appellate court may not consider matters outside the record.”). Therefore, they do not provide a ground for reversal.

For the foregoing reasons, we affirm.

POLEN, J., and EHRLICH, MERRILEE, Associate Judge, concur.


author: GROSS, J.

text:
    Janet RODGERS and Douglas Carl Rodgers, as co-personal representatives of the estate of Carl Shane Douglas Rodgers, deceased, Appellants, v. AFTER SCHOOL PROGRAMS, INC., Appellee.

      No. 4D10-1307.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Rehearing Denied Feb. 17, 2012.

      Louis Thaler of Louis Thaler, P.A., Coral Gables, for appellants.

      Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellee.
   GROSS, J.

We write to address the claim that the plaintiffs below were entitled to interview the jurors after trial to demonstrate that juror nondisclosure of information justified a new trial. We affirm and hold that the plaintiffs were not entitled to the interviews because the jurors’ failure to disclose the information, if any, were attributable to the plaintiffs’ lack of diligence in uncovering the information during voir dire.

The case below was a wrongful death action filed by Janet and Douglas Rodgers against After School Programs, Inc., which operated an after school care program at an elementary school. The Rodgers claimed that the defendant was negligent in its failure to properly handle their son’s complaint of a headache.

Through questionnaires, potential jurors were asked about their prior experiences in court proceedings, but the form generally provided no guidance as to what type of information was being requested. This inquiry elicited responses from four jurors who were ultimately empanelled. Juror # 4 revealed that she had previously been an alternate juror, but otherwise had no in-court experience, except as a witness in a criminal case. Juror # 9, a “strong believer” in the jury system, indicated that he had been to court on a traffic matter. Plaintiffs’ attorney later followed up with juror # 9 as follows:

Q: You had indicated before that you had been in court before. Was that in a civil matter?
A: No. Traffic.

Jurors # 8 and # 16 stated that they had never been in court before. The only follow-up question posed by plaintiffs’ counsel was a general one asked to the entire prospective panel: “Has anyone here been — this is a little different area — been sued in a civil case, for breach of contract or promissory note.” The question generated no response from the four jurors listed above.

After a defense verdict, the Rodgers moved, inter alia, for leave to interview jurors #4, #8, #9, and # 16 on the ground that they had concealed prior involvement with the court system during voir dire. As grounds, the motion alleged that (1) juror # 9 had failed to disclose that he had been convicted of two misdemeanors over 10 years before and that he was a plaintiff in a county court case which was dismissed for lack of prosecution; (2) juror # 4, a woman with a common name, had been involved in five civil cases, and at the time of the trial, was a defendant in two mortgage foreclosures; (3) juror # 8 had failed to reveal that she was a plaintiff in a civil case, was a trustee in a probate proceeding, and had a traffic infraction in 2009; and (4) juror # 16 had been a defendant in an indebtedness case.

The circuit court denied the motion to interview the jurors.

In Sterling v. Feldbaum, 980 So.2d 596, 598-99 (Fla. 4th DCA 2008), we summarized the law on requests for post-trial juror interviews:

The standard of review for an order on a motion for juror interviews is abuse of discretion. Marshall v. State, 976 So.2d 1071 (Fla.2007). Florida Rule of Civil Procedure 1.431(h) states
A party who believes that grounds for legal challenge to a verdict exist may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge ... If the interview is permitted, the court may prescribe the place, manner, conditions, and scope of the interview.
Post-trial juror interviews should be “rarely granted and the sanctity of the jury process as well as the privacy rights of the jurors themselves should be closely guarded and protected.” Schmitz v. S.A.B.T.C. Townhouse Ass’n, 537 So.2d 130, 131 (Fla. 5th DCA 1988). However, “[wjhere there are reasonable grounds to believe concealment of a material fact has taken place, a party is entitled to conduct a jury interview.” Singletary v. Lewis, 584 So.2d 634, 636 (Fla. 1st DCA 1991). Allegations in the motion for interview cannot be “bottomed on mere conelusory statements based on speculation and surmise that, if interrogated, the jurors might have something to say that would be material to whether or not the court should award a new trial.” Albertsons, Inc. v. Johnson, 442 So.2d 371, 372 (Fla. 2d DCA 1983).

Instead, post-trial jury inquiry is permissible only when “the moving party has made sworn factual allegations that, if true, would require a trial court to order a new trial.” Baptist Hosp. of Miami, Inc. v. Maler, 579 So.2d 97, 100 (Fla.1991). When the basis of a request for post-trial juror interviews- is a juror’s nondisclosure of information during voir dire, the motion should demonstrate entitlement to a new trial under the three-part test of De La Rosa v. Zequeira:

First, the complaining party must establish that the information is relevant and material to jury service in the ease. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence. 659 So.2d 239, 241 (Fla.1995) (citing Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379, 380 (Fla. 2d DCA 1972)).

Here, the Rodgers’ motion failed to demonstrate that, if their allegations were true, they would be entitled to a new trial because the Rodgers’ attorney’s questioning of the jurors was imprecise and not designed to elicit the type of information that was supposedly concealed. Thus, the Rodgers’ motion did not satisfy the third part of the De La Rosa test; the failures to disclose were “attributable to the complaining party’s lack of diligence.” Id.

In order to establish concealment, the Rodgers were required to “ ‘[... ] demonstrate (among other things) that the voir dire question was straightforward and not reasonably susceptible to misinterpretation.’ ” Gamsen v. State Farm Fire & Cas. Co., 68 So.3d 290, 294 (Fla. 4th DCA 2011) (quoting Birch v. Albert, 761 So.2d 355, 360 (Fla. 3d DCA 2000)). A juror’s response to a question cannot constitute concealment entitling a movant to a jury interview “ ‘[... ] where the juror’s response ... about litigation history is ambiguous, and counsel does not inquire further to clarify that ambiguity.” Id. (quoting Birch, 761 So.2d at 358).

Juror # 9’s disclosure that he had previously been in court triggered only the follow-up question as to whether that experience involved a “civil matter.” The juror’s identification of the matter as “traffic” was not inconsistent with the later discovery of the two stale misdemeanors, which might have been unearthed had counsel asked a follow-up question. There was no indication that the litigation experience of the remaining jurors involved what the jurors understood to be court proceedings, as most litigation is resolved without a trip to court. Nor was there any indication that three of the jurors had been sued for breach of contract or promissory note, the only type of civil case about which the jurors were specifically asked.

As to the juror with a common name, there was insufficient proof that she was the same person who was involved in all of the prior civil cases. See Sterling, 980 So.2d at 599 (“If the concealment by a juror occurred during voir dire questioning about the juror’s prior experiences with litigation, the identity of the juror as a litigant in a prior legal proceeding must be shown.” (citation omitted)). And, if she was the same person involved in the mortgage foreclosures, there was no showing that her involvement in such a case arose from the breach of a promissory note, as opposed to a tenancy. A differently phrased question may well have resulted in disclosure.

For these reasons, we affirm the circuit court’s denial of the motion to interview the jurors. We have considered the other issues raised and find no error; in particular, there was no irregularity in the way the verdict was returned that justifies post-trial jury interviews. If there are no bases for such interviews, there can be no basis for a new trial due to juror nondisclosure. See Davis v. State, 778 So.2d 1096, 1097 (Fla. 4th DCA 2001).

Affirmed.

MAY, C.J., and WARNER, J., concur.

      . We do not reach the issue of whether the undisclosed information was relevant and material to jury service in this case.