author: PARIENTE, J.

text:
    Rayvon L. BOATMAN, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-1630.
    Supreme Court of Florida.
    Dec. 15, 2011.

      Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Thomas H. Duffy, Assistant Attorneys General, Tallahassee, FL, for Respondent.
   PARIENTE, J.

The question presented in this case is whether an individual who has been tried and determined to be a sexually violent predator under the Jimmy Ryce Act is entitled to release and dismissal of the Jimmy Ryce proceedings on the grounds that he was not brought to trial within thirty days as required by the Act, where the individual objects in the trial court but waits until after trial to seek relief in the appellate courts. In Boatman v. State, 39 So.3d 391, 394 (Fla. 1st DCA 2010), the First District Court of Appeal determined that Boatman had waived the remedy of dismissal without prejudice, which would have been available if he had filed a petition for writ of habeas corpus before trial.

In this case, Boatman does not attack any aspect of his Jimmy Ryce trial pertaining to the fairness of the trial proceeding itself. Rather, Boatman asserts that because his pretrial detention was improper, he should be released and the petition dismissed, even though a trial has been held and he has been determined to be a sexually violent predator under the Act.

In its decision, the district court certified a question to be of great public importance, which we rephrase as two separate certified questions. The first rephrased certified question is:

1. When a respondent who has served his or her prison sentence is not brought to trial within thirty days of the finding of probable cause under the Jimmy Ryce Act, and he or she has objected or filed a motion to dismiss in the trial court, must the respondent seek relief by habeas corpus prior to trial or else waive the claim?

In order to resolve this case, our answer to the first rephrased certified question also requires us to answer the next question:

2. If the respondent waits to bring the claim on appeal after the trial, is the respondent entitled to the remedy of release and dismissal of the Jimmy Ryce proceedings, where the challenge is to the length of the pretrial detention and there is no demonstration of an impact on the fairness of the trial?

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

For reasons more fully explained below, we answer both of the rephrased certified questions in the negative. With respect to the first rephrased certified question, we hold that a Jimmy Ryce respondent who has unsuccessfully objected to a continuance or filed a motion to dismiss in the trial court may challenge a violation of the thirty-day statutory time limit by way of filing a petition for writ of habeas corpus prior to trial or may choose to wait until the conclusion of trial to bring the challenge on direct appeal. With respect to the second rephrased certified question, we hold that should the respondent wait until after the trial to raise this challenge, he or she must demonstrate an impact on the fairness of the trial to be entitled to relief.

In this case, we hold that although Boatman did not waive his claim by waiting to bring it until after the trial, he is not entitled to release and dismissal of the Jimmy Ryce proceedings because he is challenging the length of his pretrial detention and not alleging that the improper continuance had any impact on the fairness of his trial. Thus, we approve the result reached by the First District but not its reasoning.

FACTS AND PROCEDURAL HISTORY

In 1994, Rayvon L. Boatman pled guilty to one count of committing sexual battery with slight force. While serving a prison sentence for sexual battery, Boatman was referred to the multidisciplinary team of the Department of Children and Families (DCF) on November 16, 2007, for an assessment to determine whether he should be involuntarily committed as a sexually violent predator under the Jimmy Ryce Act.

On May 28, 2008, the multidisciplinary team determined that Boatman required a mental health evaluation in order to determine whether he met the criteria to be considered a sexually violent predator. Boatman was evaluated by two psychologists, both of whom concluded that Boatman suffered from a mental abnormality that made him likely to engage in acts of sexual violence if he was not confined in a secure facility for long-term control, care, and treatment. On July 9, 2008, the multidisciplinary team issued a written assessment finding that Boatman met the definition of a sexually violent predator and recommended that the state attorney file a petition seeking civil commitment.

Nearly three months later, on October 1, 2008, the state attorney filed a petition to involuntarily commit Boatman as a sexually violent predator. The petition alleged that Boatman was scheduled to be released on October 5, 2008. The same day that the petition was filed, the trial court entered an order finding probable cause to believe that Boatman met the criteria of a sexually violent predator under the Act, ordering Boatman’s transfer to DCF at the completion of his sentence, and setting the case for trial on October 20, 2008. On October 8, 2008, the trial court held a pretrial hearing, appointed counsel for Boatman, and confirmed the trial date for October 20.

On October 10, 2008, the State filed a motion to continue the trial. While the Act requires that a trial must be conducted within thirty days of the determination of probable cause, it also provides for a continuance of not more than 120 days upon a showing of good cause, provided that the individual will not be substantially prejudiced. § 394.916(l)-(2), Fla. Stat. (2008). In support of its motion, the State asserted that one of the experts who had evaluated Boatman was “out of the country and unavailable for trial.” The State asserted that other reasons existed to support a showing of good cause to continue, including that the defense would not have time to engage in discovery and thus the defense expert who was to evaluate Boatman would have “virtually no information from which to testify effectively.” The State also noted that it would not have time to depose the expert. The State asserted: “The bottom line in this case is that neither side is prepared for trial at this time.”

At an October 13, 2008, hearing, Boatman opposed the motion. Boatman’s counsel stated that the multidisciplinary team recommended on July 9, 2008, that the petition be filed, but the State failed to file the petition until the end of Boatman’s sentence in October. Boatman’s counsel argued that Boatman was being deprived of his liberty solely for this civil matter and that it was not the State’s job to determine whether the defense was ready for trial.

The trial court granted the continuance, finding that the State had demonstrated good cause and that Boatman did not establish substantial prejudice. The court scheduled the trial for the week of February 2, 2009. The court also scheduled an adversarial probable cause hearing for the week of October 20, 2008. It appears from the record that an adversarial probable cause hearing was never held; however, the record does not contain any explanation for why the hearing was not held. The trial was later continued for one week by stipulation of the parties because the State’s experts were unavailable the week that the trial was originally scheduled.

The trial was held on February 9 and 10, 2009. The morning of the first day of trial, just before jury selection, Boatman briefly renewed his objection to the trial proceeding because it did not take place within the thirty days contemplated by the statute and asked that the proceedings be dismissed. The trial judge denied the motion.

At the conclusion of the trial, the jury returned a verdict finding Boatman to be a sexually violent predator. That same day, the trial court entered a final judgment determining Boatman to be a sexually violent predator and committing him to the custody of DCF.

Boatman appealed to the First District Court of Appeal, contending that the trial court erred in granting the State’s motion to continue and that he was entitled to immediate release because his civil commitment trial was not held within thirty days of the probable cause finding. Specifically, Boatman asserted that the State failed to show good cause for a continuance. Boatman also asserted that he was substantially prejudiced because at the time the State sought the continuance, Boatman would have been free but for being detained while awaiting trial.

The First District concluded that the thirty-day deadline was not validly extended, holding that the trial court abused its discretion in granting the continuance because Boatman was substantially prejudiced. Boatman, 39 So.3d at 394. The First District then addressed Boatman’s argument that the proper remedy for an improper continuance was Boatman’s release and dismissal of the State’s petition without prejudice, stating that the

remedy contemplates that “the State may be entitled to continue the proceedings, but the respondent may be entitled to his freedom where the State has not scrupulously complied with the Act’s provisions.” Thus, dismissal without prejudice would release appellant from custody without depriving the trial court of jurisdiction over the case.

Id. (quoting Mitchell v. State, 911 So.2d 1211, 1219 (Fla.2005)). The First District concluded, however, that any relief provided by a dismissal without prejudice would be moot because Boatman

already ha[d] been tried and committed under the Act. A dismissal without prejudice would only prolong the proceedings by allowing the state to refile the petition and requiring yet another trial. The purpose of the thirty-day deadline is to minimize pretrial detention by requiring commitment trials to be held promptly, not to give respondents a proverbial “second bite at the apple.”

Id. at 395. The First District then addressed what it believed to be the proper remedy: “[T]o further the legislature’s intent that such trials be held promptly, the proper remedy in such cases is for the respondent to file a motion to dismiss the petition as soon as the thirty-day deadline has expired, and to seek immediate relief by habeas corpus if the motion is denied.” Id. Because Boatman waited to raise the issue on appeal, rather than seeking immediate relief by habeas corpus upon expiration of the thirty-day deadline, the First District concluded that he waived his claim. Id. Thus, the First District affirmed Boatman’s involuntary civil commitment under the Act, but certified the question as one of great public importance to this Court. Id.

ANALYSIS

The first rephrased certified question asks this Court to determine the proper procedure for asserting a claim that the thirty-day deadline was violated after the respondent raised the issue to the trial court, but the trial court denied relief. Specifically, the question asks whether the respondent must file a petition for writ of habeas corpus prior to trial or else waive the claim. The second rephrased certified question asks this Court to determine whether release and dismissal of the Jimmy Ryce proceedings is an available relief where the respondent waits to bring the claim on appeal after the trial, but does not demonstrate an impact on the fairness of the trial itself. These questions involve pure questions of law and thus are subject to de novo review. See Sanders v. State, 35 So.3d 864, 868 (Fla.2010) (“Pure questions of law are subject to de novo review.”).

We begin with a brief overview of the Jimmy Ryce Act. Then, we discuss our case law pertaining to the thirty-day deadline in the Act. Next, we address the first rephrased certified question and hold that a challenge to the thirty-day limit need not be sought before trial by way of a petition for writ of habeas corpus, but may be brought on appeal after trial. Finally, we address the second rephrased certified question and conclude that although a challenge to the thirty-day deadline may be brought after trial, in cases where the respondent waits until direct appeal to bring the claim, but does not demonstrate any impact on the fairness of the trial itself, he or she is not entitled to the relief of release and dismissal of the Jimmy Ryce proceedings.

The Jimmy Ryce Act

First passed by the Legislature in 1998, see ch. 98-64, § 24, at 455, Laws of Fla., the Jimmy Ryce Act provides for the civil commitment of sexually violent predators upon their release from “total confinement.” Total confinement is defined by the Act to mean that the individual is “currently being held in any physically secure facility being operated or contractually operated for the Department of Corrections, the Department of Juvenile Justice, or the Department of Children and Family Services.” § 394.912(11), Fla. Stat. (2008). Commitment proceedings under the Act are civil in nature, Mitchell v. State, 911 So.2d 1211, 1215 (Fla.2005), and generally the “Florida Rules of Civil Procedure apply unless otherwise specified” in the Act. § 394.9155(1), Fla. Stat. (2008).

Under the Act, the commitment process is initiated by the “agency with jurisdiction over a person who has been convicted of a sexually violent offense.” § 394.913(1), Fla. Stat. (2008). Under section 394.913, which provides the applicable procedure when a person’s release has not become immediate, the agency with jurisdiction gives written notice to a multidisciplinary team prior to the person’s anticipated release. Id. The Act then provides for time frames in which to give the notice and for when the team is to issue a written assessment as to whether the person meets the definition of a sexually violent predator and to give a written recommendation to the state attorney and DCF. § 394.913(l)(a)-(c), Fla. Stat.; § 394.913(3)(e), Fla. Stat.

Following receipt of the written assessment and recommendation from the team, the state attorney may file a petition with the circuit court alleging that the individual is a sexually violent predator. § 394.914, Fla. Stat. The judge must then determine whether probable cause exists to believe that the individual is a sexually violent predator. § 394.915(1), Fla. Stat. If the judge determines that there is probable cause, then the judge must order that the individual “remain in custody and be immediately transferred to an appropriate secure facility if the person’s incarcerative sentence expires.” Id. Section 394.9135 provides for expedited procedures when the anticipated release from total confinement “becomes immediate for any reason.” § 394.9135(1), Fla. Stat. (2008).

Regardless of which procedure is used to initiate Jimmy Ryce proceedings, the Act provides for the possibility of an adversarial probable cause hearing in addition to the initial determination of probable cause

[ujpon the expiration of the incarcerative sentence and before the release from custody of a person whom the multidisciplinary team recommends for civil commitment, but after the state attorney files a petition under s. 394.914, ... if [the court] determines such a hearing is necessary. The court shall only consider whether to have an adversarial probable cause hearing in cases where the failure to begin a trial is not the result of any delay caused by the respondent.

§ 394.915(2), Fla. Stat. (2008). During the adversarial probable cause hearing, the judge shall receive evidence and hear argument, and the respondent has the right to be represented by counsel, present evidence, and cross-examine any witnesses. § 394.915(2)-(3), Fla. Stat. This Court has observed that the adversarial probable cause hearing “was apparently intended by the Legislature to be a fallback procedure for persons who were entitled to release from prison but still had not been brought to trial under the commitment petition ... [and] provides the person with more rights than the initial ex parte probable cause determination.” Goode, 830 So.2d at 827.

In addition to the protection of the adversarial probable cause hearing, the Act places strict time limits on when the trial shall commence, mandating that the trial take place within thirty days after the determination of probable cause, unless continued. § 394.916(1), Fla. Stat. Continuances are also guided by the Act, which provides:

The trial may be continued once upon the request of either party for not more than 120 days upon a showing of good cause, or by the court on its own motion in the interests of justice, when the person will not be substantially prejudiced. No additional continuances may be granted unless the court finds that a manifest injustice would otherwise occur.

§ 394.916(2), Fla. Stat. The focus of this case is the thirty-day statutory deadline to bring a respondent to trial.

The Thirty-Day Deadline

This Court has previously held that the thirty-day provision is mandatory, meaning that the trial must be held within thirty days and compliance with the time limit is not a matter of convenience. However, this Court held that the provision is not jurisdictional, meaning that the trial court does not lose jurisdiction over the case after the thirty days has elapsed. Goode, 830 So.2d at 820-21. In concluding that the thirty-day deadline is mandatory, this Court noted that the Legislature was concerned about the constitutional issues implicit in an involuntary commitment scheme involving indefinite detention to be imposed in addition to specific criminal penalties for the same act. Id. at 822. The Court concluded that because of this concern, it was “apparent that [the Legislature] sought to counter those concerns and temper the drastic effects of the indefinite detention scheme by the imposition of rigid time constraints set out in explicit language in the act[].” Id. This Court stated that “the intent of the legislature in enacting the thirty-day time limit was to ensure that detainees be brought to trial loithout undue delay. Therefore, we also conclude that the thirty-day time limit is mandatory.” Id. (quoting Kinder v. State (Kinder I), 779 So.2d 512, 514-15 (Fla. 2d DCA 2000), approved 830 So.2d 832 (Fla. 2002)).

This Court later clarified that the proper remedy when the State fails to timely try a case under the mandatory time provisions of the Act is release of the respondent and dismissal of the State’s petition without prejudice. Osborne v. State, 907 So.2d 505, 506-08 (Fla.2005). We concluded that a dismissal of the petition with prejudice would be incongruous with our prior interpretation of the thirty-day rule. Id. at 508. The Court held “that where a respondent has completed his criminal sentence and is being detained awaiting a Ryce Act trial and the trial period has exceeded thirty days without a continuance for good cause, the respondent’s remedy is release from detention and a dismissal without prejudice of the pending proceedings.” Id. at 509.

Our case law illustrates that the thirty-day deadline is an important protection to a respondent in the Act to guard against Jimmy Ryce respondents being detained for long periods of time before trial based only on a showing of probable cause where the respondent does not either seek the continuance or consent to the delay. See Osborne, 907 So.2d 505 (majority opinion); Goode, 830 So.2d 817; State v. Kinder (Kinder II), 830 So.2d 832 (Fla.2002); see also Westerheide v. State, 831 So.2d 93, 105 (Fla.2002) (“[T]he act provides a range of procedural safeguards to the individuals.... ”). Further, as held in Osborne, where the challenge to a violation of the thirty-day deadline is brought prior to trial while the respondent is being detained, the appropriate remedy is dismissal of the petition without prejudice. Osborne, 907 So.2d at 509.

The cases from this Court that embraced the remedy of dismissal without prejudice for an individual who is not tried within the statutory guidelines were in distinctly different procedural postures than the case presently before us. In each case, Goode, Kinder, and Osborne, the State did not seek a continuance for good cause, as required by the Act. In Goode and Osborne, the respondents moved to dismiss the Jimmy Ryce proceedings upon the expiration of the thirty-day period and prior to trial, the dismissal was granted, and the State appealed. Osborne, 907 So.2d at 507; Goods, 830 So.2d at 819. In Kinder, the respondent’s motion to dismiss was denied, and the respondent sought a writ of prohibition in the district court prior to trial. Kinder I, 779 So.2d at 514.

The Certified Questions

As stated above, the posture of this case differs significantly from Goode, Kinder, and Osborne. It is the different procedural history of this case — wherein the respondent objected to the continuance, later moved to dismiss the proceedings, the dismissal was denied, and the respondent waited until after trial to challenge the denial — that makes the issue one of first impression. As to the issue raised by the first rephrased certified question, the First District held that a respondent who would have been released but for the detention under the Act and who was not tried within the thirty-day deadline waives his or her claim if he or she does not seek relief by filing a petition for writ of habeas corpus prior to trial.

At the outset, we note that it is well established that a respondent can file a motion to dismiss after the expiration of the thirty-day deadline and, upon denial of that motion, seek pretrial relief by filing a petition for habeas corpus. See Murray v. Regier, 872 So.2d 217, 221-22 (Fla.2002) (recognizing that habeas corpus is a proper means to challenge the legality of pretrial detention under the Jimmy Ryce Act). As this Court explained in Mmray:

The State argues that Murray should simply wait until the civil commitment process is complete and then raise his constitutional challenge on appeal. However, as Murray points out in his brief, he has already been held in pretrial detention for more than three years after his criminal incarceration expired .... Indeed, the traditional purpose of the writ of habeas corpus is to furnish a speedy hearing and remedy to one whose liberty is unlawfully restrained.

Id. at 222 (footnote omitted).

However, here, the respondent did not seek relief in the appellate court prior to trial. The issue before us is unique — a direct analogy cannot be drawn to situations in criminal prosecutions involving either challenges to pretrial detention, which are generally to be brought prior to trial, or speedy trial violation claims, which may be brought prior to trial or on appeal. In pretrial detention claims, one of the available remedies may be pretrial release, but the proceedings are not dismissed, unlike the pretrial remedy in Jimmy Ryce cases provided for in Osborne, which is release and dismissal of the petition without prejudice to refile. In contrast, the remedy for a speedy trial violation in the criminal context is that the defendant is “forever discharged from the crime.” Fla. R.Crim. P. 3.191(p)(3). Further, the criminal speedy trial rules operate to provide an accused with clear parameters in order to assure the protection of the Sixth Amendment right to a speedy trial, which is a critical right that operates in criminal prosecutions. See Bulgin v. State, 912 So.2d 307, 309 (Fla. 2005); see also U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....”).

We conclude that while seeking a writ of habeas corpus prior to trial is the preferable method of challenging pretrial detention under the Act, nothing in our case law mandates that habeas corpus is the only remedy for challenging the legality of holding an individual in pretrial detention under the Act. We disagree with the First District’s holding that a respondent waives a claim predicated on a violation of the thirty-day deadline if he or she does not file a petition for habeas corpus before trial. Accordingly, we answer the first rephrased certified question in the negative.

We now turn to the second rephrased certified question, which concerns whether release and dismissal of the Jimmy Ryce proceedings is the proper remedy for an individual who waits for the conclusion of the trial to raise the issue on appeal. In Osborne, the Court stated that release from detention and dismissal without prejudice is the appropriate remedy when the respondent “has completed his criminal sentence and is being detained awaiting a Ryce Act trial and the trial period has exceeded thirty days without a continuance for good cause.” Osborne, 907 So.2d at 509 (emphasis added). Additionally, as stated by the First District: “The purpose of the thirty-day deadline is to minimize pretrial detention by requiring commitment trials to be held promptly, not to give respondents a proverbial ‘second bite at the apple.’ ” Boatman, 39 So.3d at 395 (emphasis added); see also Osborne, 907 So.2d at 509 (“[T]he Legislature was concerned that a respondent not be indefinitely detained and that the State act promptly in bringing the matter to trial so that the respondent’s detention after the criminal sentence expires be kept to a minimum.”).

We conclude that once a respondent has been tried and the respondent waits until after the trial to seek review of a continuance or denial of a motion to dismiss, a remedy requiring reversal of the trial, release, and dismissal of the Jimmy Ryce proceedings is not available where the claim pertains to the pretrial detention and there is no demonstration of an impact on the fairness of the trial itself.

This Case

In this case, the State sought and was granted a 120-day continuance based on its assertion of good cause. See § 394.916(l)-(2), Fla. Stat. (mandating that the trial shall be conducted within thirty days after the determination of probable cause, but allowing for a continuance for not more than 120 days upon a showing of good cause and no substantial prejudice to the individual). Boatman and the State later agreed to an additional one-week continuance. Boatman was ultimately tried approximately four-and-a-half months after the determination of probable cause.

Boatman also did not avail himself of the opportunity to participate in an adversarial probable cause hearing where he could have tested the State’s evidence and cross-examined the State’s witnesses through counsel. Rather than challenging the circuit court’s granting of the State’s continuance by way of habeas corpus, he waited until after he was tried and was determined to be a sexually violent predator. Although he did not waive his claim by doing so, he is not entitled to relief because he alleges no effect on the fairness of the trial and no impeded ability to obtain witnesses or any other error flowing from the continuance. In short, Boatman’s only challenge is to his pretrial detention, which has terminated. Under these circumstances, we conclude that Boatman is not entitled to a reversal of his adjudication as a sexually violent predator, release from commitment, and dismissal of the Jimmy Ryce proceedings.

CONCLUSION

For the foregoing reasons, we answer the first rephrased certified question in the negative and hold that a Jimmy Ryce respondent who is detained past his or her incarcerative sentence and who has objected to a continuance or filed a motion to dismiss may seek immediate redress by way of filing a petition for habeas corpus or may choose to wait until after the conclusion of trial to bring such a challenge on appeal. However, we also answer the second rephrased certified question in the negative and hold that should the respondent wait until after the conclusion of trial, he or she must demonstrate an impact on the fairness of the trial itself to be entitled to relief.

In this case, because Boatman’s challenge is to the length of the pretrial detention and he does not allege any impact on the fairness of the trial itself, he is not entitled release and dismissal of the Jimmy Ryce proceedings. Accordingly, we approve the result of the First District’s decision, but not its reasoning.

It is so ordered.

QUINCE, LABARGA, and PERRY, JJ., concur.

CANADY, C.J., concurs in result.

LEWIS, J., dissents.

POLSTON, J„ recused.

      . Sections 394.910-.932, Florida Statutes (2008) (entitled "Involuntary Civil Commitment of Sexually Violent Predators”), is commonly known as the Jimmy Ryce Act. The current 2011 version of the statutory scheme remains nearly identical and substantively the same as the 2008 version, except for section 394.922, Florida Statutes, which was repealed. See ch.2011-213, § 38, Laws of Fla.
      In 2009, this Court promulgated rules of procedure for Jimmy Ryce Act proceedings. See In re Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators, 13 So.3d 1025 (Fla.2009). Those rules are not at issue in this case.

      . The question, as certified is:
      WHEN A RESPONDENT WHO HAS SERVED HIS OR HER PRISON SENTENCE IS NOT BROUGHT TO TRIAL WITHIN THIRTY DAYS OF THE FINDING OF PROBABLE CAUSE UNDER THE JIMMY RYCE ACT, MUST THE RESPONDENT FILE A MOTION TO DISMISS AND, IF THE MOTION IS DENIED, SEEK RELIEF BY HABEAS CORPUS, TO PRESERVE THE CLAIM THAT THE MOTION SHOULD HAVE BEEN GRANTED?

        Id. at 395.

      . Section 394.915(2), Florida Statutes, provides for an adversarial probable cause hearing if, after the state attorney files a petition under section 394.914, a person is still in custody and his or her sentence expires, if the court determines such a hearing is necessary.

      . We decline to address the State's alternative argument that the trial court did not err in granting the continuance of Boatman’s trial because Boatman was not substantially prejudiced by the continuance.

      . The agency with jurisdiction is defined as "the agency that releases, upon lawful order or authority, a person who is serving a sentence in the custody of the Department of Corrections, a person who was adjudicated delinquent and is committed to the custody of the Department of Juvenile Justice, or a person who was involuntarily committed to the custody of the Department of Children and Family Services upon an adjudication of not guilty by reason of insanity.” § 394.912(1), Fla. Stat.

      . Justice Anstead dissented, stating that the majority opinion "essentially eliminated] the mandatory requirement of the statutory scheme since the State is simply permitted to refile over and over again without sanction.” Id. at 511 (Anstead, J., dissenting).

      . In the Kinder case, the respondent was apparently tried during the pendency of the appellate proceedings and before this Court’s decision was issued; however, the respondent had brought the challenge prior to trial. See Kinder II, 830 So.2d at 833 (”[T]he decision below indicates that although the commitment proceedings in the trial court were not stayed during the defendant’s appeal, the ‘State did not proceed to trial until ... some eleven months after the ex parte probable cause hearing that resulted in Kinder's confinement.’ ").

      . See Greenwood v. State, 51 So.3d 1278, 1279 (Fla. 2d DCA 2011) ("A petition for writ of habeas corpus in the appellate court is the appropriate way to challenge a trial court’s ruling on the conditions of pretrial release.”); see, e.g., Blair v. State, 15 So.3d 758, 760 (Fla. 4th DCA 2009) ("The petition for writ of habe-as corpus is granted and the trial court shall hold a bond hearing and release the defendant on reasonable conditions unless the court determines that the failure to appear was willful and that 'no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process.’ ” (quoting art. I, § 14, Fla. Const.)), approved, 39 So.3d 1190 (Fla.2010).

      . Sherrod v. Franza, 427 So.2d 161, 163 (Fla.1983) ("[PJrohibition (which is the remedy sought here) may properly be used in the context of a speedy trial violation.”); Winter v. State, 865 So.2d 555, 556-57 (Fla. 1st DCA 2003) (reversing conviction on appeal for denial of speedy trial and ordering that the defendant be discharged from the crimes); McKinney v. Yawn, 625 So.2d 885, 886 (Fla. 1st DCA 1993) (reviewing order denying discharge for speedy trial violation under writ of prohibition, citing Sherrod, 427 So.2d at 163).

      . State v. Nelson, 26 So.3d 570, 575 (Fla. 2010) (trial court denied motion to discharge and defendant filed writ of prohibition, stating that after the defendant files a notice of expiration of speedy trial time, provided that no exceptions exist, "the trial court must order that the defendant be brought to trial within the ten-day recapture period. This allows the State an additional opportunity to prosecute the defendant after the expiration of the speedy trial period. If the State fails to bring the defendant to trial within the recapture period and none of the exceptions exists, the defendant 'shall be forever discharged from the crime’ ” (citation omitted)).

      . We recognize that the First District has recently held that the effect of release and dismissal without prejudice is that the State would be unable to refile a petition until the respondent is again in lawful custody. See Taylor v. State, 65 So.3d 531 (Fla. 1st DCA 2011). However, we decline to address this issue and Boatman's argument that such a dismissal would preclude the State from refiling a petition until he is again in lawful custody in total confinement in the future. That issue is not squarely before us because we hold that the relief of release and dismissal of the Jimmy Ryce proceedings is not available under the facts of this case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Brett COOKER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Carmax Auto Superstores Inc., Appellee.
    No. 1D11-5971.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2012.
    Brett Cooker, pro se, Appellant.
    A. Robert Whaley, General Counsel, and Louis A. Gutierrez, Tallahassee, for Appel-lee.
   PER CURIAM.

The appellee’s Motion to' Dismiss is hereby granted. DISMISSED. Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998).

WOLF, CLARK, and WETHERELL, JJ., concur.


text:
    J.C., Father of C.C., K.C., J.B., H.C., etc., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-2275.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2012.
    Paulina Minelga, St. Augustine, and Jeffrey Deen, Regional Counsel, Casselberry, for Appellant.
    Rosemarie Farrell, Orlando, for Appel-lee.
    Laura E. Lawson, Guardian ad Litem Program, Tavares, for Appellee.
   PER CURIAM.

Appellant appeals an order from the dependency court placing his five children in permanent guardianship with their paternal aunt and terminating Department of Children and Families supervision. He argues that the court erred in denying his request for reunification. We agree and reverse.

During the hearing on Appellant’s motion for reunification, Appellee acknowledged that Appellant had complied with his case plan and that it had no evidence to support its position that reunification would jeopardize the children. Nevertheless, the lower court denied reunification with Appellant without evidence to support its finding. In doing so, it improperly relied solely on issues existing at the time the dependency case was initiated, without regard to Appellant’s progress in overcoming those issues. C.D. v. Dep’t of Children & Families, 974 So.2d 495, 500 (Fla. 1st DCA 2008). The lower court also improperly relied upon a failed prior reunification attempt. The record indicates that the children previously were reunified with both their parents and were subsequently removed because of the mother’s actions. Appellant and the children’s mother are no longer together. In fact, the mother had relocated to Georgia at the time of the hearing. In the absence of substantial, competent evidence to support the conclusions of the trial judge, we are constrained to reverse.

Accordingly, we reverse and remand the challenged orders with instruction that the trial court grant Appellant’s motion for reunification.

REVERSED AND REMANDED.

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


text:
    Travious Demar NORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5851.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

VAN NORTWICK, THOMAS, and ROWE, JJ., concur.


author: KHOUZAM, Judge.

text:
    Rosamma PANJIKARAN, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 2D10-5841.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2012.
    Amy S. Farrior and Raymond T. Elli-gett of Buell & Elligett, P.A., Tampa; and Kelly L. Kubiak of Merlin Law Group, P.A., Tampa, for Appellant.
    Scot E. Samis and Jennifer J. Kennedy of Traub, Lieberman, Straus & Shrewsber-ry, St. Petersburg, for Appellee.
   KHOUZAM, Judge.

Rosamma Panjikaran appeals the trial court’s order granting summary judgment in favor of State Farm Florida Insurance Company. Because material questions of fact remain, summary judgment was premature and we remand for further proceedings.

Panjikaran’s home was insured by State Farm when Hurricane Charley severely damaged it in August 2004. When Panjik-aran reported the damages to State Farm, the insurer accepted her claim and acknowledged that there was coverage. Over the next four years, State Farm disbursed the policy limits of Coverage A benefits to Panjikaran to repair her home.

Thereafter, a dispute arose over the benefits owed under the Building Ordinance or Law Coverage Endorsement in the policy. This provision of Panjikaran’s policy, which provides an additional amount of insurance to cover the cost of bringing the structure into compliance with applicable ordinances and laws, authorized payment of up to an extra 25% of Panjikaran’s Coverage A limit. After some disagreement regarding the proper documentation and payment of this extra coverage, State Farm demanded appraisal of Panjikaran’s claim pursuant to the policy.

Instead of submitting to appraisal, Pan-jikaran filed suit on February 4, 2010. Panjikaran’s complaint consisted of two claims. The first was for declaratory judgment, seeking a determination of whether appraisal was required. The second claim was for breach of contract. Common to both claims was an allegation that State Farm refused to tender any amount of benefits owed under the Ordinance or Law Coverage in the policy. Panjikaran acknowledged in the complaint that State Farm had demanded appraisal, but she alleged that coverage — not the amount of loss — was the only disputed issue.

State Farm filed no answer to the complaint. Instead, it responded on March 3, 2010, by filing a motion to dismiss, a motion for protective order, and a motion for summary judgment. Despite stating multiple times that the material facts were undisputed, State Farm took the position that the dispute concerned the amount of loss rather than coverage. No affidavits were filed in support of this assertion, yet State Farm argued that because Panjikar-an had not submitted to appraisal to determine the amount of loss, she had failed to comply with her contractual obligations and the suit was premature.

A hearing on the motion for summary judgment was held on August 3, 2010. Panjikaran argued, as she alleged in her complaint, that State Farm refused to tender any amount of benefits owed under the Ordinance and Law Coverage and that this constituted a denial of coverage rather than a dispute over the amount of loss. State Farm adhered to its argument that the lawsuit was premature because the parties disputed the amount of loss and Panjikaran had not submitted to appraisal. The judge granted State Farm’s motion for summary judgment as to both counts of the complaint.

Appellate review of a grant of summary judgment is de novo. State Farm Mut. Auto. Ins. Co. v. Colon, 880 So.2d 782, 783 (Fla. 2d DCA 2004). “The purpose of a summary judgment proceeding is to determine the existence or absence of triable issues of fact. A party moving for summary judgment must show conclusively there is no genuine issue as to any material fact.” Pamperin v. Interlake Cos., Inc., 634 So.2d 1137, 1139 (Fla. 1st DCA 1994) (citing Lee v. Old S. Trucking, Inc., 552 So.2d 277 (Fla. 1st DCA 1989), review denied, 562 So.2d 346 (Fla.1990)). A motion for summary judgment should be granted only where “the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). In reviewing a grant of summary judgment, “an appellate court should indulge all proper inferences in favor of the party against whom summary judgment was sought.” Hodges v. Citrus World, Inc., 850 So.2d 648, 649-50 (Fla. 2d DCA 2003) (citing Humphrys v. Jarrell, 104 So.2d 404 (Fla. 2d DCA 1958)).

Here, summary judgment was improper. A review of the record on appeal and the transcript of the summary judgment hearing shows that a genuine question of material fact exists as it is unclear whether the parties dispute the amount of loss or a denial of coverage. Because of this conflict, the trial court erred in granting summary judgment to State Farm. Although the claim may ultimately end in appraisal depending on the resolution of this factual issue, at this point in the proceedings State Farm is not entitled to judgment as a matter of law.

Accordingly, we reverse the final summary judgment and remand the case for further proceedings consistent with this opinion.

Reversed and remanded.

WHATLEY and CRENSHAW, JJ„ Concur.

      . The appraisal provision in the policy provides that if the parties “fail to agree on the amount of loss, either one can demand that the amount of the loss be set by appraisal.”

      . In her appellate brief, Panjikaran acknowledges that State Farm applied $21,186.92 to Ordinance and Law Coverage for storm shutters but alleges that she did not request such payment. Rather, she alleges that State Farm applied this coverage on its own initiative because it determined that the policy limits and extra coverage on the dwelling had been exhausted.


author: MORRIS, Judge.

text:
    Robert ARSENEAU, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1809.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2012.

      Robert Arseneau, pro se.
   MORRIS, Judge.

Robert Arseneau appeals the summary denial of his original and amended motions for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of three of his four claims, but we reverse and remand for further proceedings on his claim that his counsel was ineffective for failing to investigate his competency to enter his plea.

In October 2006, Arseneau entered a guilty plea to burglary with a battery, abuse of an elderly person, witness tampering, and grand theft. The offenses were committed against Arseneau’s elderly mother. In September 2007, Arseneau was sentenced to fifteen years on the burglary and to a concurrent five years in prison on the other charges. Arseneau’s convictions were per curiam affirmed in October 2010. Arseneau v. State, 46 So.3d 52 (Fla. 2d DCA 2010). On December 20, 2010, Arseneau filed a timely rule 3.850 motion, raising two grounds. The postcon-viction court struck both grounds, giving Arseneau leave to amend within thirty days. Arseneau then filed a timely, amended motion, raising two additional grounds. It is the denial of the second additional ground which we reverse.

In ground two of his amended motion, Arseneau claimed that his trial counsel was ineffective in failing to investigate his competency based on his history of mental illness. In response to this claim, the postconviction court noted that Arseneau did not allege that he was, in fact, incompetent at the time he entered his plea. The court also concluded that any claim of incompetence is refuted by the record.

Arseneau filed a timely motion for rehearing along with a second amended motion, amending ground two of his first amended motion to allege that he was in fact incompetent to proceed when he entered his plea. The postconviction court denied the motion for rehearing without explanation.

Arseneau’s “narrow argument that counsel was ineffective for failing to raise [his] competency is cognizable in a rule 3.850 motion.” Demarco v. State, 31 So.3d 975, 976 (Fla. 2d DCA 2010).

There are no set criteria to determine whether a prisoner’s allegation that he was incompetent at the time of the plea or the trial is sufficient to require an evidentiary hearing. For the most part, the determination will be based on an examination of the record before the trial court. Nevertheless, the court will also consider evidence subsequent to the plea or trial, when it appears the record does not satisfactorily resolve the allegations of incompetency.

Savage v. State, 530 So.2d 1077, 1078 (Fla. 1st DCA 1988) (citations omitted).

A defendant is competent to proceed if he has the “sufficient present ability to consult with counsel with a reasonable degree of rational understanding and ... a rational, as well as factual, understanding of the pending proceedings.” Fla. R.Crim. P. 3.211(a)(1). When determining a defendant’s competency, the trial court must consider the defendant’s capacities to (1) appreciate the charges or allegations against the defendant; (2) appreciate the range and nature of possible penalties; (3) understand the adversary nature of the legal process; (4) disclose to counsel facts pertinent to the proceedings at issue; (5) manifest appropriate courtroom behavior; and (6) testify relevantly. Fla. R.Crim. P. 3.211(a)(2)(A).

A review of the plea and sentencing hearings in this case indicates that Arse-neau’s competency was questionable. At the plea hearing in October 2006, defense counsel informed the court that Arseneau had not been cooperative with defense counsel and had refused to see him at the jail and at the pretrial hearing. Defense counsel saw Arseneau the week before, and Arseneau was still uncooperative with defense counsel. Defense counsel also informed the court that Arseneau has mental health issues due to a head injury he suffered and that the defense was hoping to seek a downward departure sentence based on those issues. Counsel explained: “[Arseneau] has been undergoing treatment by a neurologist and I think he has been declared disabled.” Counsel told the court that he had explained everything to Arseneau but that Arseneau did not believe counsel and instead wanted to hear from the court about the open-plea option that would allow him to present mitigating mental health evidence as to sentencing.

The trial court then explained to Arse-neau the charges and possible prison time he faced. The trial court also explained the plea/departure process to Arseneau and asked if he wanted to enter a plea and then set a departure hearing for a date in the future. Arseneau answered ‘Tes” three times. Defense counsel again explained that “in order to pitch a departure, you’re going to have to enter a plea [to] the charges today.” Arseneau answered “Okay.” The trial court then conducted a plea colloquy with Arseneau, which involved Arseneau’s replying affirmatively to all of the questions asked of him. But his competency was never addressed. Also, he was never asked if he was on medications, and counsel had earlier told the trial court that he had a “list from [Arse-neau’s] mom [of] seven different meds he was on.”

At the sentencing hearing held almost a year later in September 2007, defense counsel told the court that Arseneau’s mother, the victim in the case, told defense counsel that Arseneau had suffered a beating years before, resulting in an “extensive coma” and “some mental health issues.” Defense counsel stated that he had Arse-neau evaluated for purposes of offering mitigating departure evidence. Defense counsel told the court that Arseneau had mentioned withdrawing his plea and had also asked defense counsel to suppress a statement, although Arseneau did not make any statements that could have been suppressed. Defense counsel also reported that Arseneau mentioned wanting to have defense counsel investigated.

Arseneau then addressed the court. He expressed dissatisfaction with the assistance he had received from the two attorneys he had during the case. He claimed nothing had been done on his case, and he insisted that the charges should have been dismissed against him because he did not steal anything. He stated that he wanted help and did not know what to do. The trial court then explained again the maximum penalty that Arseneau faced and that Arseneau had already entered his plea and was there for sentencing, and Arseneau replied ‘Tes, sir.” Arseneau then claimed that he was threatened by his attorneys that he would get life if he did not enter his plea. Arseneau then asked if he could get some help with a downward departure, and the trial court explained that that was what they were there for that day.

The trial court then heard testimony from the defense’s mental health expert, Dr. McClain, a licensed psychologist. She evaluated Arseneau in November 2006. She diagnosed him with mental health difficulties and a history of substance abuse. She testified that he suffered from difficulties with impulse control and poor judgment caused by the head injury but that he would be amenable to mental health treatment. She testified that he has “cognitive issues” and would “have to have a repetition of information and no efforts [sic] making sure that he is alerting the information due to the memory problems.”

In arguing for a downward departure sentence, defense counsel argued that Ar-seneau suffered “closed head trauma and has had some mental health issues resulting from that.” After the State explained the beating Arseneau committed against his mother, defense counsel argued that it was probably a direct result “of what he suffered and ... the issues that Dr. McClain spoke about.”

Later on in the sentencing hearing, Ar-seneau addressed the court and again denied having committed the offenses against his mother. Even after the trial court sentenced him, he addressed the court again, claiming that he wanted “this investigated,” that he did not hurt his mother, that he had been waiting two years for a lawyer to help him, and that he did not know what he needed to do.

The record of both hearings does not conclusively refute Arseneau’s claim that he was incompetent. See Rivera v. State, 995 So.2d 191, 197 (Fla.2008) (“Under our postconviction rules, we must accept [the defendant’s claims as true and direct an evidentiary hearing on their validity unless the record conclusively demonstrates that [the defendant] is not entitled to relief.”). Arseneau answered questions in a way which suggested that he appreciated the charges and allegations against him and the possible penalties he faced and that he understood the adversarial nature of the proceedings. But he then asked the trial court questions indicating that he did not understand what was happening. Accordingly, Arseneau’s affirmative answers to the trial court’s limited questions were not sufficient to demonstrate his competency. See Savage, 530 So.2d at 1079 (reversing for an evidentiary hearing because defendant’s mental status was never addressed at the plea hearing and the record “reveals that [defendant's participation in the plea colloquy was limited almost entirely to affirmative responses to the questions posed to him by the trial court”).

In addition, because Arseneau had been uncooperative with defense counsel, it is not clear that he was able to disclose to counsel facts pertinent to the case or consult with his counsel with a reasonable degree of rational understanding. Furthermore, Arseneau’s mental health issues were discussed during both hearings but neither the trial court nor counsel ever addressed his competency. See Jackson v. State, 29 So.3d 1161, 1162 (Fla. 1st DCA 2010) (holding that plea colloquy did not refute defendant’s claim that counsel was ineffective for failing to investigate his competency because defendant’s competency was never addressed at the plea colloquy); Ortiz v. State, 968 So.2d 681, 686 (Fla. 1st DCA 2007) (“There is nothing in the portions of the record presented to this Court that would suggest how Appellant’s alleged depression and delusions may have affected his competence to enter a plea. Consequently, an evidentiary hearing was necessary to resolve this issue.”).

Because the record does not conclusively refute Arseneau’s claim that he was incompetent to proceed and that counsel was therefore ineffective for failing to investigate his competency, the postconviction court erred in summarily denying this claim. See Houle v. State, 74 So.3d 143, 144 (Fla. 1st DCA 2011) (holding that record did not conclusively refute postconviction movant’s allegations that “counsel was aware of [movant’s] long history of mental illness, including the fact that he had been institutionalized multiple times, had attempted to commit suicide, was diagnosed as bi-polar, alcoholic and depressive, and had a long history of being on (and was currently on) psychotropic medications”). Accordingly, we reverse and remand for an evidentiary hearing on this claim.

Affirmed in part; reversed in part; remanded.

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

      . When Arseneau first raised this claim, Arse-neau alleged that he may have been incompetent, which was insufficient to show that counsel was ineffective, i.e., that any prejudice occurred. On rehearing, Arseneau cured this defect by alleging that he was in fact incompetent at the time he entered his plea.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. MILLENNIUM RADIOLOGY, LLC, d/b/a Millennium Open MRI, (Horace McQueen), Respondent.
    No. 4D11-3248.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.
    Lara J. Edelstein, Miami, for petitioner.
    Robert J. Bradford, Jr., of the Law Office of R.J. Bradford, Jr. P.C., Gray, TN, for respondent.
   PER CURIAM.

United Automobile Insurance Company petitions for a writ of certiorari seeking review of a circuit court order dismissing petitioner’s appeal. We grant the petition.

Based on a scrivener’s error in the final judgment the circuit court, sitting in its appellate capacity, believed the trial court’s order was not final or appealable and issued United an order to show cause why the appeal should not be dismissed. United responded that the order was final and there were no remaining matters pending in the trial court. There is no dispute that judicial labor in the trial court had ended.

The circuit court permitted United to obtain a corrected final judgment, but provided that if it failed to do so before the appellate record was transmitted, the appeal would be dismissed. At the time this order issued, the clerk had already transmitted the record on appeal, making it impossible for United to fully comply with the appellate court’s order. However, United obtained a corrected final judgment and five days later filed an amended notice of appeal, otherwise complying with the order. Twenty-nine days after the trial court entered the corrected final judgment, the circuit court dismissed the appeal because the record was transmitted before United complied with the circuit court’s order. United did not receive the circuit court’s dismissal order in time to file a new notice of appeal from the corrected final judgment.

We agree that, based on the circumstances in this case, dismissal of the appeal was a departure from the essential requirements of law, and United was denied due process. See Tucker v. Charles D. Franken, P.A., 62 So.3d 1207 (Fla. 4th DCA 2011); Rupp v. Dep’t of Health, 963 So.2d 790, 793 (Fla. 3d DCA 2007) (recognizing “Florida law is clear that the law does not impose penalties upon an individual for failing to take certain actions which it is physically impossible for that individual to take”); Perez & Perez, M.D., P.A. v. Holder, 867 So.2d 622, 624 (Fla. 2d DCA 2004) (“Due process requires that a court imposing a deadline on a litigant for the performance of a particular act give the litigant reasonable notice of the deadline before the deadline arrives.”). We grant the petition for second-tier certiorari and quash the dismissal order.

Petition Granted.

WARNER, HAZOURI and LEVINE, JJ., concur.


author: TAYLOR, J.

text:
    Kate PEACOCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1101.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 2012.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Kate Peacock appeals her sentence of three years in prison,' arguing that the trial court erred in concluding that she forfeited her bargained-for sentence of one year and one day by willfully failing to appear for a sentencing hearing. We agree and reverse for reinstatement of the original negotiated plea agreement and sentence of one year and one day.

Appellant was charged with possession of oxycodone, possession of cocaine, and possession of drug paraphernalia. The State offered appellant a plea deal of one year and one day in prison, which appellant accepted.

Appellant pleaded no contest to all counts. During the plea colloquy, appellant informed the court that she was taking prescription medication and that she was seeing a mental health professional in jail to treat her bipolar disorder. After finding that the plea was entered freely and voluntarily, the court adjudicated appellant guilty and initially sentenced her to one year and one day in prison on Counts I and II, and time served on Count III.

Before the completion of the sentencing hearing, appellant requested a two-week furlough to put her affairs in order following the recent death of her mother. The trial court agreed to the furlough on the condition that appellant would receive a ten-year sentence, which would be mitigated to one year and one day if appellant surrendered on January 25, 2011. However, appellant failed to appear at the required date and time.

On February 1, 2011, defense counsel filed a motion to reduce or modify sentence. The motion claimed that appellant was admitted to the hospital on January 25, 2011, and was not released for several days. At the hearing on appellant’s motion to reduce her sentence, the trial court was advised that appellant was hospitalized for a suicide attempt on the day she was supposed to surrender for sentencing. The court did not question that appellant’s failure to appear was the result of her suicide attempt.

The trial court then asked defense counsel: “Do you have any evidence to present that ... she was prevented by something outside of her control from appearing in court at the appointed time?” Defense counsel did not present any evidence on this issue, but instead simply explained that appellant “was hospitalized that day because of a suicide attempt.” The court then asked whether appellant’s wounds were self-inflicted. When defense counsel responded that they were, the court stated, “So it wasn’t like someone else inflicted these wounds or prevented her from being here?” The prosecutor did not appear to take any position on the issue, remaining silent during the vast majority of the hearing.

Although the trial court rejected defense counsel’s argument that the failure to appear was non-willful, it nonetheless agreed that a ten-year sentence would be draconian under the circumstances. The court ultimately decided to sentence appellant to three years in prison, with credit for time served. This appeal follows.

As a preliminary matter, we reject the State’s argument that this issue cannot be reviewed on direct appeal because appellant did not file a motion to withdraw plea. Florida appellate courts have consistently reviewed on direct appeal the issue of whether a defendant’s failure to appear at sentencing was willful, even without the filing of any prior motion to withdraw plea. See, e.g., Lowery v. State, 22 So.3d 745, 747-49 (Fla. 2d DCA 2009) (rejecting argument that issue of the willfulness of the failure to appear was not preserved for appellate review where defendant did not file a motion to withdraw plea; ineffective assistance of counsel was established on face of the record and the appropriate remedy was remand for enforcement of defendant’s agreed-upon plea where there was no evidence that failure to appear was willful); see also Fulton v. State, 66 So.3d 950, 951 (Fla. 3d DCA 2011) (reviewing similar sentence on direct appeal).

On the merits, “ ‘[wjhere timely appearance for sentencing is made a condition of a plea agreement, a non-willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.’ ” Robinson v. State, 946 So.2d 565, 567 (Fla. 2d DCA 2006) (quoting Johnson v. State, 501 So.2d 158, 160-61 (Fla. 3d DCA 1987)). If a defendant’s failure to appear is beyond his control, “only in the most merciless and draconian system of justice could such failure result in a forfeiture” of the bargained-for sentence. Johnson, 501 So.2d at 161. Thus, where a defendant’s failure to appear is found to be non-willful, the defendant is entitled to the bargained-for mitigation of his or her sentence. See Garcia v. State, 10 So.3d 687, 689 (Fla. 2d DCA 2009); accord Lee v. State, 471 So.2d 195, 195-96 (Fla. 4th DCA 1985) (where the defendant was late for sentencing due to accidental car breakdown, the defendant was entitled to be sentenced in accord with the plea agreement because no evidence supported finding of a willful failure to appear); Fulton v. State, 66 So.3d 950, 951 (Fla. 3d DCA 2011) (defendant was entitled to evidentiary hearing before a new judge to determine whether his failure to appear was willful; trial court improperly found that defendant’s failure to surrender in court at 9:00 a.m. was willful based solely on the fact that the arrest report showed that defendant was arrested almost two hours after he was supposed to have surrendered); Gee v. State, 38 So.3d 806, 807 (Fla. 2d DCA 2010) (reversing for enforcement of negotiated plea of 364 days in county jail where the trial court never made findings on whether the defendant’s failure to appear was willful; defendant sent letter to trial court before sentencing to explain that he was in a different part of the state without means of transportation and no one questioned the defendant’s credibility at subsequent hearing when defendant did appear); Ingmire v. State, 9 So.3d 1278, 1281-82 (Fla. 2d DCA 2009) (evidence insufficient to establish that defendant willfully failed to appear for sentencing where evidence showed that defendant’s failure to appear was a mistake in reading the date on his paperwork, the defendant did not hide or seek to leave area, and the State offered no motive why defendant would place his probationary sentence at risk by willfully failing to appear); Johnson, 501 So.2d at 159-61 (defendant was entitled to mitigation where his failure to appear was due to the fact that, while on his way to report, he was arrested on a traffic charge).

A trial court is required to make a factual determination as to whether a defendant’s failure to appear at sentencing was willful. Ingmire, 9 So.3d at 1281-82. The burden is on the State to prove the willfulness of a defendant’s failure to appear. See id. at 1281. Furthermore, “[i]n the ‘absence of positive evidence to establish willfulness,’ reversal and remand with instructions that [the defendant] be sentenced according to the plea agreement accepted by the trial court is appropriate.” Lowery v. State, 22 So.3d 745, 749 (Fla. 2d DCA 2009) (quoting Ingmire, 9 So.3d. at 1282).

Here, appellant’s motion to mitigate sentence sufficiently alleged a non-willful reason for her failure to appear at the sentencing. In this case, the trial court did not question that appellant was hospitalized for a suicide attempt on the day she was supposed to appear for sentencing. Rather, the trial court opined that appellant’s suicide attempt constituted a willful failure to appear.

The case law appears to be split on whether a suicide attempt constitutes a voluntary absence from a court proceeding. Compare, e.g., United States v. Davis, 61 F.3d 291, 302-03 (5th Cir.1995) (concluding defendant who was hospitalized after attempting suicide during trial was voluntarily absent and waived right to be present at trial); People v. Price, 240 P.3d 557, 560-61 (Colo.Ct.App.2010) (trial court did not err by finding that defendant had voluntarily absented himself from trial by his conduct; his suicide note reflected both that he understood the proceedings against him and purposefully determined to absent himself from trial); Finnegan v. State, 764 N.W.2d 856, 862 (Minn.App. 2009) (holding that a suicide attempt can constitute a voluntary and unjustified absence from trial constituting a waiver of the right to be present); and Bottom v. State, 860 S.W.2d 266, 267 (Tex.Ct.App.1993) (“The competent evidence shows Bottom was not absent because of some sudden unexpected medical emergency, but because he chose to ingest large quantities of aspirin and arthritis medication. Because Bottom chose to act in this way, his absence was voluntary.”); with United States v. Latham, 874 F.2d 852, 858 (1st Cir.1989) (“It defies common sense to maintain that a sane defendant would attempt suicide to avoid a trial on drug charges. And, death is not the type of ‘voluntary absence from trial’ that concerns us.... This situation is markedly different from fleeing to avoid the trial altogether.”); and United States v. Hanhardt, 361 F.3d 382 (7th Cir.2004) (trial court’s decision to impose a sentencing enhancement for obstruction based on the defendant’s absence from required court appearance, due to hospitalization for attempted suicide, was clearly erroneous), vacated on other grounds by Altobello v. United States, 543 U.S. 1097, 125 S.Ct. 994, 160 L.Ed.2d 996 (2005).

The State relies upon Hodges v. State, 595 So.2d 929 (Fla.1992), vacated on other grounds, 506 U.S. 803, 113 S.Ct. 33, 121 L.Ed.2d 6 (1992), in arguing that a suicide attempt is a willful absence from court. In Hodges, which was a death penalty case, the defendant argued on appeal that after his suicide attempt during the penalty phase of the trial, the trial court should have halted the proceedings and conducted a competency hearing rather than ruling that defendant had absented himself voluntarily and continuing with the penalty phase. The Florida Supreme Court rejected this argument, holding that the part of the proceeding that the defendant missed was not “a crucial portion of the trial where the [defendant’s] absence would have caused him undue prejudice,” and that “the trial court did not err in holding that [the defendant] voluntarily absented himself.” Id. at 933. The Florida Supreme Court also emphasized that there were no reasonable grounds to question the defendant’s competency prior to the suicide attempt. Id. at 932.

The Hodges decision does not require an affirmance here. First, Hodges does not stand for the proposition that a suicide attempt always constitutes a voluntary absence as a matter of law. Second, unlike the situation in Hodges, an absence from a sentencing hearing that could increase a defendant’s sentence is undeniably prejudicial.

In our view, the issue of whether a suicide attempt constitutes a willful absence from sentencing is not susceptible to a bright-line rule, but rather is a factually intensive question that ordinarily must be addressed on a case-by-case basis. Indeed, if getting arrested or having car trouble can constitute a non-willful failure to appear for sentencing, it follows that a suicide attempt could also constitute a non-willful failure to appear.

Here, nothing in the record contradicted appellant’s assertion that her failure to appear for sentencing was because she was hospitalized for a suicide attempt. The trial court never held an evidentiary hearing to make a factual determination as to the willfulness of appellant’s failure to surrender, but instead simply assumed that a suicide attempt is, ipso facto, a voluntary act. Although a suicide attempt could be deemed voluntary in some circumstances, a suicide attempt could also be an involuntary product of mental illness. In this ease, the plea colloquy confirmed that appellant had a history of mental health issues. Furthermore, although the trial court did ask defense counsel if there was any evidence that appellant was prevented from appearing at sentencing by “something outside of her control,” the State bore the burden to prove a willful failure to appear; it was not appellant’s burden to prove that her failure to appear was non-willful. See Ingmire, 9 So.3d at 1281. Here, the prosecution did not prove that appellant’s failure to appear was willful, nor did the prosecution even request an opportunity to present evidence on the issue.

Because appellant alleged a facially sufficient non-willful reason for her failure to appear and the prosecution did not prove that appellant’s failure to appear was willful, we reverse the three-year sentence and remand for reinstatement of the original negotiated sentence of one year and one day.

Reversed and Remanded,.

POLEN AND HAZOURI, JJ., concur.

      . To the extent that appellant’s initial brief challenges the amount of jail credit awarded, we find that this issue was not preserved below.


author: DAMOORGIAN, J.

text:
    Nicholas AGATHEAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4870.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.
    Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

DAMOORGIAN, J.

We reconsider on remand our opinion in Agatheas v. State, 28 So.3d 204 (Fla. 4th DCA 2010), which was quashed by the Florida Supreme Court in Agatheas v. State, 77 So.3d 1232 (Fla.2011). Consistent with the supreme court’s holding that the admission of the 45-caliber revolver, photographs of the gun, bandana, and latex gloves found in Agatheas’s backpack, was error, we conclude that Agatheas was denied a fair trial by the cumulative effect of the admission of this irrelevant and inadmissible evidence elicited by the State. See Penalver v. State, 926 So.2d 1118, 1137 (Fla.2006) (providing that where multiple errors exists, courts must consider whether the cumulative effect of those errors deprives the defendant of a fair trial) (citing Nowitzke v. State, 572 So.2d 1346, 1350 (Fla.1990)).

Accordingly, we reverse Agatheas’s conviction and sentence and remand for a new trial.

Reversed.

MAY, C.J., and CIKLIN, J., concur.


author: ROTHENBERG, J. SHEPHERD, J.,

text:
    REGIONS FINANCIAL CORP., Appellant, v. Carlos MERCENARI, Guillermo Romo, and Seahaven Phase I, LLC, Appellees.
    No. 3D10-1836.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 2011.
    Rehearing Denied Nov. 16, 2011.
    Holland & Knight, Peter P. Hargitai and Sarah Stoddard Toppi and Gigi Rollini, Tallahassee; and Erin K. Allen, Jacksonville, for appellant.
    Reiner & Reiner and David P. Reiner, II, Miami, for appellees Carlos Mercenari and Guillermo Romo.
    Before SHEPHERD and ROTHENBERG, JJ„ and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The defendant, Regions Financial Corp. (“Regions”), appeals from a non-final order denying its motion to transfer venue to Bay County, Florida, pursuant to section 47.122, Florida Statutes (2010). We affirm.

Carlos Mercenari and Guillermo Romo (“the plaintiffs”) are residents of Miami-Dade County. The plaintiffs entered into, but subsequently terminated, three agreements to purchase pre-construction condominium units from Seahaven Phase I, LLC (“Seahaven”). The plaintiffs sued Regions and Seahaven in Miami-Dade County. As to Regions, the complaint alleged the wrongful disbursement of a portion of the plaintiffs’ deposits held in escrow by Regions, and breach of fiduciary duty. The plaintiffs also alleged that all amounts due are payable in Miami-Dade County. Regions moved to transfer venue to Bay County, arguing that because a number of witnesses reside in Bay County, Escambia County, or Alabama, Bay County is the more convenient forum. After a hearing (of which no transcript exists), the trial court denied the motion and issued the instant order. This appeal followed.

We review the trial court’s decision for an abuse of discretion. Garcia v. Garcia, 958 So.2d 947, 948 (Fla. 3d DCA 2007); R.C. Storage One, Inc. v. Strand Realty, Inc., 714 So.2d 634, 635 (Fla. 4th DCA 1998). “The plaintiffs venue choice is presumptively correct, and a defendant bears the burden to prove that a trial in the county in which the action was filed would work a substantial inconvenience to it, and to witnesses.” R.C. Storage, 714 So.2d at 635. The trial court reviewed the complaint, Regions’ motion and attached affidavits, and considered the argument of counsel. Based on the record now before us, we cannot conclude that the trial court abused its discretion.

Affirmed.

SCHWARTZ, Senior Judge., concurs.

SHEPHERD, J.,

dissenting.

I respectfully dissent. This is an appeal by Regions Bank of a Miami-Dade County Circuit Court order denying the Bank’s motion to transfer this case to the Fourteenth Judicial Circuit, in and for Bay County, Florida, filed pursuant to Florida’s statutory forum non-conveniens provision, section 47.122 of the Florida Statutes (2010). I would reverse the order of the trial court.

This case arises out of an ill-fated decision by two Miami-Dade County residents, Carlos Mercenari and Guillermo Romo, to place pre-construction purchase deposits on three units in a beachfront condominium in Panama City Beach (Bay County), Florida, being developed by the defendant, Seahaven Phase I, LLC. The parties executed the purchase contracts for each unit on June 20, 2006. Pursuant to the Purchase and Sale Agreements, the deposit monies were placed in escrow with Am-South Bank, an Alabama based bank with a branch office in Panama City. Regions Bank succeeded to the interest of Am-South Bank in this matter sometime in 2007.

On December 11, 2008, Mercenari, Romo, and Seahaven entered into written termination agreements for the units. Regions Bank was not a signator to these agreements. On September 14, 2009, the Bank returned half of each deposit to Mer-cenari and Romo. The remaining portions of the deposits apparently have been released to Seahaven. Mercenari and Romo claim they are entitled to the return of all of their monies and have sued both Seaha-ven and Regions Bank in the Miami-Dade County Circuit Court.

The only connection this case has to Miami-Dade County is the serendipitous fact the plaintiffs live in Miami-Dade County. While the plaintiffs choice of venue is an important consideration, the trial court must balance this choice with the convenience of all the parties and witnesses. Morrill v. Lytle, 893 So.2d 671, 673-74 (Fla. 1st DCA 2005). “The plaintiffs venue privilege will not be honored where the convenience of the parties or witnesses, or the interest of justice require the action to be transferred.” P.V. Holding Corp. v. Tenore, 721 So.2d 430, 431 (Fla. 3d DCA 1998). All of the activity relating to this case occurred in Bay County, Florida. Both the purchase and termination agreements were signed there, and all the activity relating to the escrow agreements occurred there. All of the defendants’ witnesses are located in Bay County. See Fla. Patient’s Comp. Fund v. Fla. Physicians’ Ins. Reciprocal, 507 So.2d 778, 779 (Fla. 3d DCA 1987) (concluding no abuse of discretion in granting change of venue from Duval County based on convenience of key witnesses); Gaboury v. Flagler Hosp., Inc., 316 So.2d 642, 645 (Fla. 4th DCA 1975) (expressing primary purpose of venue statute is to require litigation be instituted in forum that causes least amount of inconvenience and expense for parties required to answer and defend an action). Bay County is 600 miles from Miami-Dade County. Travel out of Panama City is more difficult than travel out of Miami-Dade County.

In support of its motion to transfer venue, the Bank submitted affidavits of Neel Bennett, the manager of Seahaven, and Nathan Lucas, a Regions Bank relationship manager, escrow services. The plaintiffs filed no affidavits or other sworn proof opposing the Bank’s motion and affidavits in support of the transfer. The majority faults the Bank for not providing this court with the June 9, 2010, transcript from the hearing on the motion to transfer venue. See majority op. p. 1-2. While I do not dispute the hearing transcript would make review more complete, the absence of the transcript is not dispositive and does not mandate affirmance here. Once the Bank filed its affidavits controverting the plaintiffs’ venue allegations, the burden shifted to the plaintiffs to establish the propriety of the venue selection. See Residential Sav. Mortg., Inc. v. Keesling, 73 So.3d 280, 283 (Fla. 2d DCA 2011) (quoting Am. Vehicle Ins. Co. v. Goheagan, 35 So.3d 1001, 1003 (Fla. 4th DCA 2010) (“[Wjhen a defendant challenges venue by filing an affidavit controverting the plaintiffs venue allegations, the burden shifts to the plaintiff to establish the propriety of the venue selection.”)); Tropicana Prods., Inc. v. Shirley, 501 So.2d 1373, 1375 (Fla. 2d DCA 1987). The plaintiffs were required to prove their selection of Miami-Dade County was proper. See Eth-Wha, Inc. v. Blankenship, 483 So.2d 872, 873 (Fla. 2d. DCA 1986). As in Eth-Wha, Inc., the plaintiffs here “failed to do so,” and thus, “their bare allegation in [the plaintiffs’] ... complaint is insufficient to sustain their initial selection of venue.” Id. I, therefore, conclude the trial court abused its discretion by denying the Bank’s motion. See Tulli v. Tulli, 780 So.2d 213, 214 (Fla. 2d DCA 2001) (reversing denial of motion to transfer where appellants’ affidavit established a more convenient forum, the appellee did not file a countervailing affidavit, and the complaint was unsworn); Eggers v. Eggers, 776 So.2d 1096, 1098 (Fla. 5th DCA 2001) (holding the trial court abused its discretion in denying the appellant’s sworn motion to transfer where the appellee countered with no sworn evidence, and the trial court had before it only evidence that another county was the more convenient forum); accord Holiday Truck & Car Sales, Inc. v. Coldewey, 434 So.2d 344, 345 (Fla. 2d DCA 1983).

Fourteen years ago, in a case nearly identical to the one before us and involving the same venue provision, we proclaimed our fealty to the “literal and philosophical ethos” expressed by our high court in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996), that “Florida should not be the forum for cases that, in reality, have no connection with Florida.” Westchester Fire Ins. Co. v. Fireman's Fund Ins. Co., 673 So.2d 958, 959 (Fla. 3d DCA 1996). We then continued:

In this context, we extend the philosophical train of thought to its next and logical plane: Our district should not be a forum for cases that have little or no connection to Dade and Monroe counties. Therefore, it is the stated policy of our Court to literally apply the doctrine of forum non-conveniens where there is little else other than the plaintiffs choice of venue and where witnesses reside in other more suitable venues.

Id. The only connection this case has to Miami-Dade County is the plaintiffs’ choice of venue. The case should be transferred to the Fourteenth Judicial Circuit.

I would reverse and remand with directions to the trial court to enter an order transferring this action to Bay County, Florida.


author: SUAREZ, J.

text:
    Silverio Antonio Gonzalez PLAZA, et. al., Appellants, v. Maria Gabriela Gonzalez PLAZA, et. al., Appellees.
    No. 3D11-986.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2011.
    Rehearing Denied Nov. 9, 2011.

      Dirk Lorenzen, Coral Gables, for appellants.
    R. Martin Saenz, Miami, for appellees.
    Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

The issues on appeal arise from a conflict between a father and his son — Silverio Gonzalez Plaza (father) and Silverio Antonio Gonzalez Plaza (son). Son and other defendants appeal from a non-final order appointing a receiver and enjoining son and other defendants from allegedly fraudulently disposing of money father claims is his. The funds at issue were transferred to Tecno-FL, a subsidiary corporation, incorporated in Florida and created to receive a refund from a failed transaction father brokered between the Venezuelan government and a Bosnian corporation. We have jurisdiction. See Fla. RApp. P. 9.130(a)(3)(B). We reverse and remand, as the trial court’s order does not list findings of fact necessary to meet the required elements for a preliminary injunction or receivership.

Father created a Venezuelan company (Tecno-Venezuela) that brokered the sale of ammunition and equipment to the Venezuelan police and armed forces. While working for the company, father established business relationships with ML Marketing Company (“ML Marketing”), an American company with experience in the brokerage of ammunition, and with Igman International Limited (“Igman”), a Bosnian company in the business of manufacturing and selling ammunition. Acting as exclusive agent and representative of Igman and ML Marketing, father entered into a commercial contract for the purchase and sale of ammunition with the Ministry of Defense of Venezuela. Under the contract, Tecno-Venezuela (father’s Venezuelan company) agreed to manufacture, through Igman, and deliver ammunition to the Venezuelan government in return for $7,249,989.90. Father subsequently was arrested by the Venezuelan Government and convicted of fraud and sentenced to a five-year prison term. Father, apparently while in prison, negotiated a partial refund from the Bosnian company. A subsidiary of Tecno-Vene-zuela called Tecno-FL was formed in Florida for the purpose of receiving the refund, and Igman transferred $5,000,000 to a Tecno-FL Florida bank account. Son and others allegedly withdrew the funds and used them for their own benefit. Father, now residing in Florida, Tec-no-FL, and other plaintiffs, sued to account for the money, which allegedly had been stolen by the son. The complaint against son and other defendants included counts for violations of the RICO Act; civil theft; conversion and conspiracy to convert; breach of fiduciary duty; fraud and deceit; conspiracy to defraud; accounting; constructive trust, equitable lien, and a temporary injunction.

Father moved to enjoin son from disposing of the funds transferred to Tecno-FL and to appoint a receiver to control those funds. The trial court granted father’s motion and this non-final appeal followed.

For the issuance of a temporary injunction, a party must establish all four of the following elements: (1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) the threatened injury to the petitioner outweighs any possible harm to the respondent; and (4) the granting of a temporary injunction will not disserve the public interest. See Cordis Corp. v. Prooslin, 482 So.2d 486 (Fla. 3d DCA 1986).

The trial court’s order on appeal granting the injunction restricts the disbursement of money from the account. However, the order does not make any finding of a special showing of irreparable harm apart from the alleged past loss of monetary assets. An injunction is inappropriate even when sought under the RICO Act when there is no special showing of future immediate danger or loss other than past loss of monetary assets. See United Auto. Ins. Co. v. Sanar Clinical Rehab Ctr., Inc., 766 So.2d 356 (Fla. 3d DCA 2000). Both the record and the order are void of any showing or finding of irreparable harm other than the loss of money. Accordingly, the order granting the injunction must be reversed.

Additionally, the order does not support the appointment of a receiver. Appointing a receiver is a rare and extraordinary remedy. Barnett Bank, N.A. v. Steinberg, 632 So.2d 233 (Fla. 1st DCA 1994). The appointment of a receiver is within the discretion of the trial court; it is an abuse of discretion to appoint a receiver in the absence of a showing that property is subject to a serious loss. Alafaya Square Ass’n v. Great W. Bank, 700 So.2d 38 (Fla. 5th DCA 1997). “To authorize the appointment of a receiver, the petitioner must show clear legal right ... to the property in controversy, or that he has some lien upon or property right in it, or that it constitutes a special fund of which he is entitled to satisfaction of his demand.” Apalachicola N.R. Co. v. Sommers, 79 Fla. 816, 85 So. 361, 361 (1920). Neither the record demonstrates nor the order makes a finding as required by case law of any risk of loss, clear legal right to property or a special fund creating irreparable harm to father other than an alleged past loss of monetary assets. As such, the appointment of the receiver must also be reversed. Apalachicola, 85 So. at 361.

Reversed and remanded for further proceedings.

      . The reason for father’s arrest and imprisonment by the Venezuelan Government arises out of the transaction for the sale of arms but the details are not relevant to the issues presented.

      . Son first filed a notice of appeal, and this Court later granted son’s motion to relinquish jurisdiction so that the trial court could rule on son's motion below to dissolve the receivership and vacate the injunction. The trial court, however, deferred ruling on the matter.


author: WELLS, Chief Judge.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Jonathan ADRABI, Appellee.
    No. 3D10-1573.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2011.
    Rehearing Denied Nov. 9, 2011.
    Banker Lopez Gassier, Mark D. Tinker and Charles W. Hall, St.Petersburg, for appellant.
    Arnold R. Ginsberg; Mintz Truppman and Cheryl L. Riess, Miami, for appellee.
    Before WELLS, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

Allstate Insurance Company appeals from a final judgment requiring it to cover $32,000 in damages sustained by Jonathan Adrabi under the uninsured motorist (“UM”) provisions of Adrabi’s Allstate policy. Because Adrabi’s injuries did not arise out of the ownership, maintenance or use of an uninsured vehicle, we conclude that his injuries were not compensable under the UM coverage delineated in the policy at issue and reverse the judgment.

In August 2000, Adrabi was the victim of a carjacking during which he was substantially injured. On the night in question, Adrabi was dropped off at his Ford Mustang by friends after an evening out. As Adrabi drove out of the parking lot where his car had been parked, he stopped behind another car at a stop sign. After Adrabi stopped his car, the occupants of the car ahead of him got out of their car and accosted him, injuring him while pushing him against, and then while forcing him into, his own car. The assailants also hit him with the barrel of a shotgun, forced him into the trunk of his car, and then drove around at high rates of speed, periodically slamming on the brakes, banging him against the interior of the trunk. The assailants also repeatedly taunted him with threats of violence and death, repeatedly playing a song titled “Kill You” through the car’s compact disc player.

Adrabi subsequently sought to recover under the UM provisions of the Allstate policy insuring his car, arguing essentially that his vehicle became a UM vehicle once under the control of his assailants. After Allstate denied coverage, rejecting this unique theory, Adrabi filed the underlying action for declaratory relief and to recover UM benefits under the UM provisions of his Allstate policy. The court below determined that Adrabi’s injuries were covered by the policy, and he was awarded $32,000 for his injuries. We reverse the award because the damages incurred are not covered by the UM provisions of this policy.

The UM provision at issue here, in pertinent part, provides as follows:

We will pay damages for bodily injury ... which a person insured is legally entitled to recover from the owner or operator of an uninsured auto. Injury must be caused by accident and arise out of the ownership, maintenance or use of an uninsured ... auto.

Adrabi’s injuries did not arise out of the ownership, maintenance or use of a uninsured vehicle. By his own testimony, the injuries claimed all occurred at the hands of the assailants both inside and outside his Mustang — an auto covered by his Allstate policy — not a UM vehicle at all — and as such, his injuries were not covered by this policy.

The UM provisions of Adrabi’s policy defines an “insured auto” as a vehicle described in the policy — in this case, Adrabi’s Mustang. It also defines the term “uninsured auto” as: (1) a motor vehicle which has no bodily injury insurance policy in effect at the time of the accident; (2) a motor vehicle for which the insurer denies coverage; or (3) a hit-and-run motor vehicle. Adrabi’s car, even after being stolen, was none of these, and thus was not a UM vehicle even after it was carjacked.

We reject the notion advanced by Adra-bi that the decision in Curtin v. State Farm Mutual Automobile Insurance Co., 449 So.2d 293 (Fla. 5th DCA 1984), stands for the proposition that Adrabi’s car became an “uninsured vehicle” for purposes of UM coverage once his assailants took possession of it. Curtin is not at all on point. That case did not involve a claim that an insured vehicle went from being insured to uninsured once it was carjacked. In fact, that case did not involve a stolen vehicle at all. Rather, Curtin considered an altogether different question as to the availability of UM coverage under a policy other than the one covering the vehicle in which the insured was traveling when injured. Id. at 294-95.

If anything, Curtin confirms that the insured auto could not be transformed into a UM vehicle so as to allow UM recovery on the insurance policy covering that vehicle:

Appellant concedes on appeal that he is barred from any recovery under the policy insuring the Cadillac, the car in which he was injured. The family exclusion provision of the liability portion of that policy would clearly bar his recovery there. Under the uninsured motor vehicle coverage, he is also clearly barred by the language of the policy which provides that the vehicle insured under that policy cannot be considered to be an uninsured motor vehicle.
This kind of exclusion has been upheld by the Florida Supreme Court in Reid v. State Farm Fire & Casualty Company, 352 So.2d 1172 (Fla.1977).

Curtin, 449 so.2d 294. Only because of an entirely separate insurance policy was UM coverage found in Curtin, making the facts and findings of Curtin irrelevant to the instant matter.

As Race v. Nationwide Mutual Fire Insurance Co., 542 So.2d 347, 351 n. 1 (Fla.1989) (emphasis added), clearly states:

PIP insurance covers injuries which arise out of the ownership, maintenance, or use of any motor vehicle; whereas automobile liability UM coverage contemplates injuries which arise out of the ownership, maintenance, or use of the tortfeasor’s motor vehicle.

There was simply no evidence in this case that Adrabi’s injuries arose out of the ownership, maintenance or use of the assailants’ vehicle. See also Progressive Express Ins. Co. v. Russell, 763 So.2d 557, 559 (Fla. 4th DCA 2000) (confirming that a policy providing UM coverage for accidents “arising out of the ownership, maintenance, or use of an automobile” does not extend coverage in circumstances “where the automobile merely transports or contained the assailant”). We therefore find no basis for imposing coverage under the UM portion of the policy insuring Adrabi’s car for what transpired that day.

Furthermore, while the above analysis resolves the instant UM coverage question, we also question whether the necessary elements for recovery as set out in Race are present in this case at all. Therein, the Florida Supreme Court certainly decided that “intentional acts should not militate against the recovery of UM benefits by an innocent person injured by the intentional act of an uninsured motorist.” Race, 542 So.2d at 349. However, the court then referenced a treatise, stating that in order to recover UM benefits an insured must establish that:

1. The accident must have arisen out of the inherent nature of the [uninsured] automobile, as such; 2. The accident must have arisen within the natural territorial limits of an automobile, and the actual use, loading, or unloading must not have terminated; 3. The [uninsured] automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury.”

Id. at 349 (quoting 6B J,. Appleman, Insurance Law & Practice § 4317 (Buckley ed. 1979)).

Here, even if a UM vehicle were involved, using a vehicle to inflict injuries at the receiving end of a beating or the vehicle’s trunk as a vessel of containment in no way goes to the inherent nature of the automobile and thus, to our way of thinking, Adrabi’s vehicle was no more than a mere contributor to the cause of the condition which produced the injury. See id. at 349-50 (citing cases where the accidents at issue were so attenuated from the ownership, maintenance, or use of the uninsured automobile to support a finding of coverage).

As this court observed in Lancer Insurance Co. v. Gomez, 799 So.2d 334, 337 (Fla. 3d DCA 2001):

Injuries caused by criminal assaults in and about an automobile, but which are not caused by the automobile itself, or do not arise out of the operation, maintenance, or use of an automobile, are not covered under a policy of automobile liability or uninsured motorist coverage.

We simply cannot adopt Adrabi’s attempt to pigeon hole himself into that exception by claiming it was the automobile that caused his injury — it was the actions of his assailants that did that.

“Coverage determinations are legal questions decided by the court, not a jury.” AON Trade Credit, Inc. v. Quintec, S.A., 981 So.2d 475, 478 (Fla. 3d DCA 2008). Because Adrabi’s injuries did not arise out of the ownership, maintenance, or use of an uninsured auto, his policy’s UM provisions simply did not cover his injuries. Accordingly, we reverse and remand with instructions to enter judgment in Allstate’s favor.

      . Adrabi did not make a claim for personal injury protection ("PIP”) benefits or for coverage under the bodily injury liability limits of the instant policy. We therefore do not discuss the application of either coverage in this opinion.

      . Which is why Adrabi could not look to the assailants’ vehicle as the basis for his UM claim and he thus turned to his own vehicle in asserting the UM claim in this case.

      . As Race explains, the term "accident” may include intentional criminal acts. Id. at 348.


author: FERNANDEZ, J.

text:
    Latoya MAHONEY-SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2229.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.
    Rehearing Denied Nov. 9, 2011.
    Latoya Mahoney-Smith, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and FERNANDEZ, J., and SCHWARTZ, Senior Judge.
   FERNANDEZ, J.

This matter is before the Court on the denial of a “Motion for Rehearing Sentencing and Probation not in Compliance with Oral and Written Pronouncement.” We treat this appeal from that order as an appeal from the denial of a rule 3.800 motion for post-conviction relief. Because we conclude that the trial court’s written judgment is consistent with the court’s oral pronouncement at sentencing, we affirm.

The sole basis for appellant Latoya Ma-honey-Smith’s motion for rehearing below was that the trial court’s sentence was inconsistent with the oral and written pronouncement and that there were multiple scrivener’s errors in the written sentence. Mahoney-Smith is mistaken. At the sentencing hearing on December 13, 2007, the trial court orally pronounced sentence as a Habitual Violent Felony Offender as follows:

I will sentence you as a habitual violent offender to ten years State prison with a minimum mandatory five years to be followed by ten years of probation.

The written sentence imposed on December 24, 2007 conforms with the court’s oral pronouncement at sentencing, and thus there is no sentencing error.

We decline to address the other issues Mahoney-Smith raises in her Initial Brief, as these issues are meritless.

Affirmed.

      . Mahoney-Smith has been before this Court twice before, challenging her conviction and sentence. She first appealed her conviction and sentence, which this Court affirmed. See Mahoney-Smith v. State, 7 So.3d 644 (Fla. 3d DCA 2009). She then filed a subsequent appeal, which this Court ultimately dismissed.


text:
    Rafael BARRETO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2257.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.
    Rafael Barreto, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See Green v. State, 906 So.2d 1246, 1247 (Fla. 3d DCA 2005); Smith v. State, 902 So.2d 293 (Fla. 3d DCA 2005).