author: WHATLEY, Judge.

text:
    Juan Maldonado MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4352.
    District Court of Appeal of Florida, Second District.
    March 20, 2009.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robert J. Krauss, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

This is an appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), of Morales’s conviction of aggravated assault on a law enforcement officer and his sentences for two misdemeanors. After his motion for postconviction relief was granted in part, Morales entered a plea of guilty to the felony in exchange for a sentence of fifteen years’ imprisonment, but he did not enter a plea to the misdemeanors. In a motion to correct illegal sentence filed with regard to the felony, Morales pointed out that no action had been taken on the misdemeanors. In response, the trial court sentenced him to concurrent terms of 364 days in county jail on the two counts. Morales filed a second motion to correct illegal sentence asserting that it was improper to sentence him without his having entered a plea to the charges or having been found guilty of them. The State then nol prossed the charges, so the trial court denied the second motion as moot.

A trial court may only sentence a defendant who has been adjudicated guilty, and Morales had not been adjudicated at the time the court sentenced him. See Fla. R.Crim. P. 3.700(a) (“Sentence defined. The term sentence means the pronouncement by the court of the penalty imposed on a defendant for the offense of which the defendant has been adjudged guilty.” (Emphasis supplied).) Accordingly, we reverse Morales’s sentences for the two misdemeanors and remand to the trial court with directions that it vacate those sentences nunc pro tunc to April 22, 2008, the day before the State nol prossed the charges.

Reversed and remanded with directions.

NORTHCUTT, C.J., and LaROSE, J„ Concur.

      . In its answer brief, the State did not contest Morales’s suggestion of this disposition.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Reginald Velentino COBBS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0944.
    District Court of Appeal of Florida, First District.
    March 24, 2009.
    Rehearing Denied May 22, 2009.
    Reginald Velentino Cobbs, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

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


author: CASE, JAMES R., Associate Senior Judge.

text:
    Kelvin O. REYES, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1333.
    District Court of Appeal of Florida, Second District.
    March 25, 2009.

      James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   CASE, JAMES R., Associate Senior Judge.

Kelvin Reyes seeks review of a revocation of community control and the sentence imposed thereon. Because the trial court failed to enter a written order revoking community control, we reverse and remand.

An affidavit of violation of community control was filed against Reyes alleging failure to pay costs of supervision and failure to live and remain at liberty without violating any law. The alleged new law violations were possession of cannabis with intent to sell within 1000 feet of a school, possession of a weapon or ammunition by a convicted felon, and possession and/or use of drug paraphernalia.

After an evidentiary hearing, the trial court determined simply that “there has been a violation of probation” but entered no written order. Reyes filed a motion to correct sentencing error due to the lack of a written order of revocation of community control, Fla. R. Crim. P. 3.800(b)(2), but the court failed to rule on that motion within sixty days. Thus, the motion is deemed denied. Johnson v. State, 921 So.2d 715, 717 (Fla. 2d DCA 2006).

It is well settled that “the trial court is required to enter a formal order of violation of probation that lists the specific conditions the court determined [the defendant] violated.” Cato v. State, 845 So.2d 250, 251 (Fla. 2d DCA 2003). Reyes argues, and the State rightfully concedes, that the trial court erred by failing to enter a written order of revocation of community control. Accordingly, we reverse and remand for the trial court to enter a formal order identifying the specific conditions Reyes was found to have violated.

Reversed and remanded with directions.

WHATLEY and VILLANTI, JJ., Concur.


author: POLEN, J.

text:
    BETA DRYWALL ACQUISITION, LLC, a Florida limited liability company; Beta Drywall, LLC n/k/a Beta Construction, LLC, a Florida limited liability company; Stephen Feldman, individually, and B. Michael Watkins, individually, Appellants, v. MINTZ & FRAADE, P.C., a foreign professional corporation; Frederick Mintz, individually, and Alan P. Fraade, individually, Appellees.
    No. 4D08-1688.
    District Court of Appeal of Florida, Fourth District.
    March 25, 2009.
    Rehearing Denied June 18, 2009.

      John J. Shahady, T. Robert Shahady II, and Jeffrey A. Backman of Adorno & Yoss LLP, Fort Lauderdale, for appellants.
    John C. Rayson of Law Office of John C. Rayson, Fort Lauderdale, for appellees.
   POLEN, J.

Appellants, Beta Drywall Acquisition, LLC, Beta Drywall, LLC, Stephen Feld-man, individually, and B. Michael Watkins, individually (Beta), brought an action against Appellees, Mintz & Fraade, P.C., Frederick Mintz, individually, and Alan Fraade, individually, for legal malpractice and breach of fiduciary duty. The trial court granted M & F’s motion to dismiss for lack of personal jurisdiction, and we now reverse.

Beta retained Mintz & Fraade, P.C., a New York law firm, and Frederick Mintz and Alan Fraade, lawyers licensed in New York, to perform the necessary legal work for its acquisition of the assets of Beta Drywall, a Florida corporation doing business in Florida. To accomplish this, Mintz and Fraade formed two Florida LLCs: Beta Drywall, LLC, and Beta Acquisition, LLC. All legal work, except for the closing, was performed in New York.

In the underlying action for legal malpractice and breach of fiduciary duty, Beta alleged that Mintz and Fraade negligently failed to formalize a written operating agreement and/or other pre-incorporation document(s), executed by and among the members of Beta Acquisition prior to or contemporaneously with the filing of the Beta Acquisition Articles, which memorialized the rights, duties and liabilities of the managing members of Beta Acquisition. This failure, according to Beta, ultimately caused a dispute among its members which then resulted in a derivative action by one member against the other two. Beta settled the derivative action for $750,000.

The standard of review of an order granting a motion to dismiss for lack of personal jurisdiction is de novo. Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002). To evaluate personal jurisdiction, a court must engage in a two-part analysis. Renaissance Health Publishing, LLC v. Resveratrol Partners, 982 So.2d 739, 741 (Fla. 4th DCA 2008)(citing Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989)). First, the court must determine that the facts of the underlying action bring it within the ambit of the Florida long arm statute. Id. Second, the court must determine whether the defendant has sufficient “minimum contacts” with Florida such that due process requirements are satisfied. Id. Due process is satisfied where the foreign defendant would reasonably anticipate being haled into court in Florida. Doe v. Thompson, 620 So.2d 1004, 1005 (Fla.1993). Both prongs must be satisfied for a Florida court to properly exercise personal jurisdiction. Renaissance Health, 982 So.2d at 741.

Mintz and Fraade’s actions which gave rise to Beta’s malpractice and breach of fiduciary claims are within the scope of section 48.193(l)(b) , Florida Statutes, which provides for personal jurisdiction over a foreign entity which has committed a tortious act within Florida.

In Becker v. Hooshmand, 841 So.2d 561 (Fla. 4th DCA 2003) this court discussed section 48.193(l)(b), and explained several principles which inform a court’s determination that a defendant’s actions bring it within this provision of the long arm statute: (1) a cause of action for tort accrues wherever plaintiff suffers damage to his property; (2) in order to commit a tortious act in Florida, a defendant’s physical presence is not required; (3) a foreign defendant can commit a tort within Florida via its electronic, telephonic, or written communications into the state so long as the cause of action arises from those communications; (4) a defendant need not commit a physical tort within Florida in order to be brought within the ambit of the long-arm statute. 841 So.2d at 562.

Under Becker, the tort of legal malpractice in the instant case accrued in Florida where Beta, a Florida corporation, alleges it suffered $750,000 in damages as a direct result of Mintz and Fraade’s negligence. Though Mintz and Fraade performed most of the necessary legal services from a New York office, they caused allegedly faulty

Mintz and Fraade also have sufficient minimum contacts with Florida to satisfy the due process requirement. This prong is satisfied “if the defendant purposefully directs activities at Florida and litigation arises out of those activities, or the defendant purposefully avails himself of the privilege of conducting activities within the forum state.” Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716, 719 (Fla. 4th DCA 1998). Mintz and Fraade performed the necessary legal work for the formation of two Florida LLCs created for the purpose of acquiring the assets of an existing Florida corporation. Beta claims Mintz and Fraade were negligent in their performance, and thus, that they are liable for legal malpractice and breach of fiduciary duty. Beta’s claims arise from the activity Mintz and Fraade directed into the state of Florida. A reasonable person having conducted the activities conducted by Mintz and Fraade in the present case would reasonably foresee being haled into court in Florida should an issue regarding the very formation of Beta arise.

Acquisition Articles to be filed in Florida which caused injury to Beta. Thus, Mintz and Fraade committed a tortious act in Florida within the meaning of section 48.193(l)(b), Florida Statutes, and their actions are within the ambit of the long-arm statute.

Reversed and remanded.

HAZOURI and CIKLIN, JJ., concur.

      . (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:

      (b) Committing a tortious act within this state.


author: STEVENSON, J.

text:
    A.A.V., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-841.
    District Court of Appeal of Florida, Fourth District.
    March 25, 2009.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

In this appeal, A.A.V. challenges an order of the trial court committing him to a level 8, high-risk facility instead of the moderate-risk facility recommended by the Department of Juvenile Justice (“DJJ”). As a consequence of our supreme court’s decision in E.A.R. v. State, 4 So.Sd 614 (Fla.2009), issued during the pendency of this appeal, we reverse the order appealed and remand the matter to the trial court for additional findings.

Five different “restrictiveness levels” for commitments to DJJ custody are defined in chapter 985, i.e., minimum-risk nonresidential, low-risk residential, moderate-risk residential, high-risk residential, and maximum-risk residential. See § 985.03(44), Fla. Stat. (2007). Chapter 985 further provides that

The court shall commit the child to the department at the restrictiveness level identified [by DJJ] or may order placement at a different restrictiveness level. The court shall state for the record the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.

§ 985.433(7)(b), Fla. Stat.

With respect to the trial court’s obligations in the event that it intends to order the child committed to a restrictiveness level other than that recommended by DJJ, in E.A.R., our supreme court wrote that

The only rational or logical means through which the juvenile court may provide “reasons” that explain, support, and justify why one restrictiveness level is more appropriate than another — and thereby rationalize a departure disposition — is for the court to:
(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.

4 So.3d at 638. The Florida Supreme Court emphasized that “the juvenile court’s stated ‘reasons,’ must provide a legally sufficient foundation for ‘disregarding’ the DJJ’s professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.” Id. at 638.

The trial court in this case did not have the benefit of the supreme court’s E.A.R. decision and the reasons offered in support of his departure fall short of this newly-aiticulated standard. We thus reverse the order appealed and remand the matter to the trial court so that it can either commit the child at the restrictiveness level recommended by DJJ or impose the level 8, high-risk commitment after making the findings required by E.A.R.

Reversed and Remanded.

TAYLOR and MAY, JJ., concur.


author: GRIFFIN, J.

text:
    WEST BEND MUTUAL INSURANCE COMPANY, Petitioner, v. Ann Louise HIGGINS and Anthony P. Higgins, Respondents.
    No. 5D08-2987.
    District Court of Appeal of Florida, Fifth District.
    March 27, 2009.

      John W. Weihmuller, and James Michael Shaw, Jr. of Butler, Pappas, Weih-muller, Katz, Craig, LLP, Tampa, for Petitioner.
    Raymond O. Bodiford, of Bodiford Law Group, Orlando and Howard G. Butler, Jacksonville, for Respondents.
   GRIFFIN, J.

In this first-party bad faith action brought pursuant to section 624.155, Florida Statutes (2007), Petitioner insurer seeks certiorari review of an order of the trial court granting Respondent claimants discovery of certain documents that insurer claims are protected by attorney-client privilege. We deny in part and grant in part the petition for writ of certiorari. As we will briefly discuss below, we conclude that nothing in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005), eliminates the attorney-client privilege in first-party insurance eases where the plaintiff asserts statutory bad faith under section 624.155. XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So.2d 578 (Fla. 1st DCA 2006). Moreover, even if the privilege were eliminated, such a nullification of privilege cannot logically extend to communications made after the underlying first-party insurance dispute is adjudicated.

All of the three disputed documents at issue in this proceeding were generated following entry of the “excess” judgment against Petitioner. Apart from their doubtful relevance, the two memoranda are not discoverable for that reason. The third, a bill for legal services, does contain a description of billed-for attorney activities that predate the underlying judgment. Therefore, under the assumption that invoices for legal services are not inviolate and that their discovery is within the discretion of the trial court — and given our conclusion that no substantive, privileged communications are contained in the statement — and with the caveat that post-litigation entries must be redacted prior to disclosure — we will not disturb the trial court’s order that the statement be discovered.

There are essential distinctions between an immunity from discovery based on the work product doctrine and the attorney-client privilege. First, they have different sources — work product immunity is governed by rule and is designed to facilitate litigation. The attorney-client privilege is the oldest confidential communication privilege known in the common law and is now codified by statute and contained in the Evidence Code, section 90.502, Florida Statutes (2007). The purpose of the attorney-client privilege is to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” American Tobacco v. State, 697 So.2d 1249, 1252 (Fla. 4th DCA 1997) (quoting Haines v. Liggett Group, Inc., 975 F.2d 81 (3d Cir.1992)). It is an interest traditionally deemed worthy of maximum legal protection. Id. The principles governing application of the attorney-client privilege and work product immunity and exceptions to their application— differ.

On the other hand, work product is a device born of practical necessity to facilitate the orderly prosecution and defense of lawsuits. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). It is designed to protect the work and mental impressions of counsel under the circumstances controlled by Florida Rule of Civil Procedure 1.280(b)(3). Work product may be susceptible to disclosure based on considerations of need and relevance; attorney-client privilege is not. Although the Florida Supreme Court has concluded that section 624.155 applies to first-party insurance disputes as well as third-party claims, and that the immunity from disclosure of the claim file based on work product ought not to apply, nothing in Ruiz suggests that the attorney-client privilege available to any contracting party, including insurers, somehow evaporates uniquely for insureds upon the filing of a bad-faith claim. We see nothing in Ruiz to suggest that a first-party insurer against whom a bad faith claim has been made is subject to the exposure of all its communications with its own counsel.

A first-party claim under section 624.155 is subject to an objectively determinable test — whether, if it acted fairly and honestly and with due regard for her or his interests, the insurer should have paid its insured more money. Proof of the claim does not depend on disclosure of attorney-client communications, and even if it did, it would not justify eliminating the privilege. As with virtually any other dispute resulting in litigation, communications between an insurance company and its attorney might be revealing, or even probative, but that will not defeat the privilege because it has a broader purpose. Nor, seemingly, would it be prudent in the larger scheme, to create an environment in which an insurer is unable to engage in candid discussions with its counsel about the legal justification for its conduct. See generally, The Elastic Contours of Attorney-Client Privilege and Waiver in Context of Insurance Company Bad Faith: There’s a Chill in the Air, 34 Seton Hall L. Rev. 513 (2004), cf. Adega v. State Farm Fire and Cas. Ins. Co., 2008 WL 1009719 (S.D.Fla. Apr. 9, 2008).

Section 90.502 recognizes certain limited exceptions to attorney-client privilege, most notably, where a crime or fraud is facilitated through attorney-client communications. § 90.502(4)(a), Fla. Stat. (2007). There are also implied waivers, such as litigant’s reliance on an “advice of counsel” defense. But those are not implicated here. If there is to be a “first-party-bad-faith-brought-under-section-624.155-exception” to Florida’s statutory privilege for communications between attorney and client, it would be up to the Legislature to create it.

WRIT DENIED in part and GRANTED in part.

PALMER, C.J. and LAWSON, J„ concur.

      . There is one phrase, on page 1129 of the Ruiz opinion:
      In contrast, a case like this one is totally indistinguishable from the familiar “bad faith" failure to settle or defend a third-party's action against a liability carrier's insureds. In those cases, like this one, the pertinent issue is the manner in which the company has handled the suit including its consideration of the advice of counsel so as to discharge its mandated duty of faith. Virtually the only source of information on these questions is the claim file itself.
      (Emphasis supplied.) It is not clear what this means; it may be a reference to a defense of advice of counsel. This one cryptic phrase in a ten-page opinion, otherwise expressly pertaining to work product, is no basis to conclude that the attorney-client privilege no longer exists in first-party insurance cases. See Ruiz, 899 So.2d at 1132 (Wells, J., dissenting).

      . In Spiniello Companies v. Hartford Fire Ins. Co., 2008 WL 2775643 (D.N.J. July 14, 2008), the court observed that judicial recognition of a right to pierce attorney-client privilege by bringing a first-party bad faith claim is a minority view best not to be adopted.


author: MAY, J.

text:
    STATE of Florida, Appellant, v. Letiva WILLIAMS, Appellee.
    No. 4D08-361.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.

      Bill McCullom, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellee.
   On Motion for Clarification

MAY, J.

We grant the State’s motion for clarification, withdraw our previously issued opinion, and substitute the following.

The State appeals the defendant’s sentence. It argues that the trial court erred in finding that the defendant’s conviction on a felony battery charge did not satisfy the catch-all provision for prison releasee reoffender (PRR) sentencing. We agree and reverse.

The State charged the defendant with felony petit theft; felony battery causing great bodily harm, permanent disability or disfigurement; and use of an anti-shoplifting control device counter measure. The Information alleged the defendant had caused great bodily harm, permanent disability or permanent disfigurement by biting the victim on the shoulder and arm causing lacerations requiring emergency medical treatment. The State gave notice of its intent to seek habitual felony offender (HFO) and PRR sentences.

The defendant entered a plea of no contest. At sentencing, the State requested the court to sentence the defendant on the felony battery charge as both an HFO and a PRR. Defense counsel argued that the defendant did not qualify as a PRR. The trial court initially rejected the defendant’s argument, but then changed its ruling based upon the last two paragraphs of our opinion in Spradlin v. State, 967 So.2d 376 (Fla. 4th DCA 2007).

On appeal, the State argues this case, which involved the defendant biting the victim and causing the need for emergency medical attention, sufficiently established the requisite violence for imposition of a PRR sentence for the felony battery charge under the catch-all provision of section 775.082(9)(a)l.(o), Florida Statutes (2005). That provision provides for a PRR sentence for “[a]ny felony that involves the use or threat of physical force or violence against an individual.” § 775.082(9)(a)l.(o). We agree with the State.

In Spradlin, we addressed whether a second offense of misdemeanor battery qualified for PRR sentencing. The defendant had been convicted of felony battery based upon multiple simple battery charges under section 784.03(2), Florida Statutes (2006). We held that because a felony battery does not always involve physical force or violence, the charge does not automatically qualify for PRR sentencing. We then concluded with the following sentence.

Because felony battery is not one of the enumerated batteries in the forcible felony statute, it is not one of the specific offenses for which a defendant can be made to suffer the enhanced punishments of a PRR.

Id. at 378. It was this language that understandably caused the trial court to reach its conclusion.

That sentence however was unnecessary to the holding in Spradlin. It was not meant to be a broad generalized statement that no felony battery can ever qualify for imposition of a PRR sentence. Certainly, that will depend on whether the statutory elements of section 784.01, Fla. Stat (2006) are satisfied. See Thomas v. State, 983 So.2d 746, 747 (Fla. 4th DCA 2008).

Here, the defendant was adjudicated guilty of felony battery under section 784.041, Florida Statutes (2005), which requires great bodily harm, permanent disability, or permanent disfigurement. Unlike the crime committed by the defendant in Spradlin, the crime committed by the defendant in this case cannot “be committed without the use or threat of physical force or violence.” Spradlin, 967 So.2d at 378.

The defendant was released from the Department of Corrections on August 23, 2005. Less than a year later, the defendant committed the instant felony battery charge. This qualifies the defendant as a PRR under section 775.082(9)(a)l.(o). We therefore reverse the sentence and remand the case to the trial court to impose the PRR sentence.

Reversed and Remanded.

TAYLOR and HAZOURI, JJ., concur.


author: COHEN, J.

text:
    Mark ELLIOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3465.
    District Court of Appeal of Florida, Fifth District.
    April 3, 2009.
    Rehearing Denied May 28, 2009.

      Mark Elliott, Quincy, pro se.
    No Appearance for Appellee.
   COHEN, J.

Mark Elliott appeals the denial of his postconviction motion to correct illegal sentence. We affirm.

Elliott entered a nolo contendere plea after being charged with robbery and possession of a hoax bomb in the commission of a felony. The State informed the trial court that it was seeking to have Elliott sentenced as a habitual felony offender on both counts. The trial court found Elliott met the criteria to be sentenced as a habitual felony offender, but sentenced him to a split sentence of five years’ imprisonment followed by ten years’ probation on both counts, the sentences to run consecutively. In total, Elliott was sentenced to ten years in prison and twenty years on probation.

Unhappy with this turn of events, Elliott filed a motion contending his sentences were illegal because they were imposed consecutively despite the fact both charges arose from the same criminal episode and were enhanced by his classification as a habitual felony offender, citing Hale v. State, 630 So.2d 521 (Fla.1993). The trial court denied this motion on two grounds. First, the trial court found that Elliott’s motion failed to point to any record facts showing that both charges were committed in a single criminal episode, citing Pullins tí. State, 777 So.2d 451 (Fla. 1st DCA 2001). Notwithstanding this pleading failure, the trial court proceeded to address the merits of his motion. • The trial court concluded Hale did not apply because even though it found Elliott met the criteria for being sentenced as a habitual felony offender, he “was sentenced to the legal maximum length of supervision of 15 years (5 years DOC followed by 10 years probation) on each case, without any enhancements beyond the legal máximums.... ”

We agree that Elliott’s motion is facially deficient because he failed to attach any non-hearsay record evidence that the two charges arose from the same criminal episode. Neither is it evident from the face of the record that the two charges arose from the same criminal episode. Normally, this court would not review this issue because of this defect. However, because the issue is likely to recur, we take the opportunity to consider it.

If a defendant is charged with two or more offenses arising from the same criminal episode, and the State seeks to have the defendant sentenced as a habitual felony offender, there are three sentencing possibilities. If the trial court adjudicates the defendant a habitual felony offender as to all the charges, it may enhance the sentences as provided by section 775.084(4)(a), Florida Statutes (2006), but the sentences must run concurrently. Hale, 630 So.2d 521. Relevant to the case at bar, a habitual felony offender may be sentenced to a term not to exceed thirty years for a second-degree felony. § 775.084(4)(a)2.

If the trial court adjudicates the defendant a habitual felony offender as to one charge, but not the other, then the sentences may be imposed consecutively as long as the total punishment does not exceed the statutory maximum enhanced under the habitual felony offender statute. Fuller v. State, 867 So.2d 469, 470 (Fla. 5th DCA 2004); Kiedrowski v. State, 876 So.2d 692, 694 (Fla. 1st DCA 2004). Finally, the trial court can adjudicate a defendant a habitual felony offender, but sentence him without regard to section 775.084, if it sets forth written reasons why it is not necessary for the protection of the public. § 775.084(4)(e). The trial court can then sentence the defendant separately on each charge, imposing them concurrently or consecutively as it sees fit. § 775.021(4)(a). Relevant to the case at bar, a defendant convicted of a second-degree felony may be sentenced up to fifteen years in prison. § 775.082(3)(c).

In the instant case, the trial court adjudicated Elliott a habitual felony offender on both charges. However, instead of enhancing his sentences and running them concurrently, the trial court decided to give him split sentences, imposed consecutively, on each charge that did not exceed the maximum Elliott could have received had he not been adjudicated a habitual felony offender. Thus, Elliott received sentences totaling thirty years of prison and probation. This is the same term he could have received had the trial court simply enhanced his sentences as authorized by section 775.084.

The trial court’s reason for sentencing Elliott in this manner is not clear. What is clear is that the trial court reasoned Hale was inapplicable because Elliott’s sentences did not exceed the maximum he could have received had his sentences been fully enhanced under the habitual felony offender statute. It is possible that the trial court believed it was unnecessary for the safety of the public to sentence him as a habitual felony offender. The trial court then could have sentenced Elliott to consecutive terms, notwithstanding the fact he was adjudicated a habitual felony offender. § 775.084(4)(e). Alternatively, the trial court may have concluded that Hale only applies when a habitual felony offender’s sentence is actually enhanced. Thus, because Elliott’s sentences were not enhanced, his sentences could be imposed consecutively. Under either scenario, we believe his sentence is lawful.

In Hale, 630 So.2d at 522, the defendant was charged with selling cocaine and possession of cocaine with the intent to sell. After being adjudicated a habitual violent felony offender, the trial court enhanced the defendant’s sentences to twenty-five years on each charge, imposed consecutively. The supreme court reversed, finding that nothing in the habitual felony offender statute suggested the Legislature intended that once sentences arising from the same criminal episode were enhanced, that the total penalty could then be further enhanced by running them consecutively. Id. at 524. The supreme court then concluded that “under the statutory penalty for each offense, the trial court may sentence ... separately for possession, and ... separately for the sale, and make each sentence consecutive to the other. However, the trial court is not authorized ... to both enhance Hale’s sentence as a habitual offender,” and then impose the sentences consecutively. Id. at 525.

In State v. Hill, 660 So.2d 1384, 1385 (Fla.1995), the supreme court addressed the certified question of whether Hale “precludes under all circumstances the imposition of consecutive sentences for crimes arising out of a single criminal episode for habitual felony or habitual violent felony offenders.” Although answering this question affirmatively, the supreme court’s holding simply reaffirmed Hale. Once again the supreme court stated, “[W]e find that a trial court is without authority to enhance sentences from multiple crimes committed during a single criminal episode by both sentencing a defendant as a habitual offender and ordering that the sentences be served consecutively.” Id. at 1386.

This court has stated that the “whole point in Hale is that once the habitual offender sentencing scheme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode,” consecutive sentences may not be imposed to further lengthen the overall sentence. Fuller, 867 So.2d at 470. Similarly, this court in Reeves v. State, 920 So.2d 724, 726 (Fla. 5th DCA 2006), stated, “The rule established in Hale and Daniels applies to sentences that have been enhanced beyond the statutory maximum.” When viewed as a whole, the language in these cases plainly suggests that Hale only applies when a sentence is enhanced under the habitual felony offender statute. This conclusion is bolstered by Daniels v. State, 595 So.2d 952 (Fla.1992).

In Daniels, the defendant was sentenced as a habitual violent felony offender to three consecutive life terms, with minimum mandatory imprisonment of fifteen years on each charge. Noting that the prescribed punishment for the defendant’s underlying charges did not impose minimum mandatory penalties, the supreme court concluded his sentences had to run concurrently because they were enhanced when he was sentenced as a habitual violent felony offender and subjected to minimum mandatory imprisonment. In reaching this conclusion, the supreme court distinguished those crimes whose punishment imposed a minimum mandatory sentence.

The underlying principle of Hale and its progeny is that once a defendant’s sentences are enhanced under the habitual felony offender statute, they cannot be imposed consecutively. This is because the Legislature’s intent that repeat felony offenders be incarcerated for a longer period of time is satisfied when the sentence is, in fact, enhanced. Thus, absent legislative authorization, a court cannot both increase a defendant’s sentences, as allowed by the habitual felony offender statute, and then add a further enhancement by imposing them consecutively. Hale, 630 So.2d at 524. In this case, Elliott received the maximum sentence allowed had he not been subject to habitual felony offender status. He also received the maximum sentence allowed had his sentences been fully enhanced under the habitual felony offender statute and imposed concurrently. Because Elliott’s sentences were never enhanced, in that he was not subjected to increased penalties as a result of his habitual felony offender status, Hale is inapplicable. Even assuming Hale applies, Elliott’s sentences are still lawful because they do not exceed the maximum he could have received if his sentences were enhanced. See Kiedrowski, 876 So.2d at 694 (defendant’s sentence violated Hale where it exceeded maximum sentence he could have received had both sentences been enhanced and run concurrently, or neither sentence enhanced and run consecutively).

Accordingly, we affirm.

AFFIRMED.

ORFINGER and TORPY, JJ., concur.

      . Both of these crimes are second-degree felonies punishable by up to fifteen years in prison. § 775.082(3)(c), Fla. Stat. (2006).

      . The split sentences appear to violate the prohibition against a probationary term falling between or interrupting incarcerative sentences. Horner v. State, 617 So.2d 311, 312 (Fla.1993) (quoting Humphrey v. State, 579 So.2d 335, 336 (Fla. 2d DCA 1991)). We do not address this aspect of Elliott's sentence as it was not raised for our review.


author: BROWNING, J.

text:
    Edmond David BELCHER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2049.
    District Court of Appeal of Florida, First District.
    April 3, 2009.
    Rehearing Denied May 29, 2009.
    Michael R. Rollo, Pensacola, for Appellant.
    Bill McCollum, Attorney General; and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Edmond Belcher appeals his second-degree murder conviction on three grounds, only one of which bears comment. Bel-cher argues that the trial court erred in denying his motion for a juror interview. Belcher claims three jurors misrepresented whether they or their immediate family had been prosecuted. We affirm because the record does not reflect good cause for bringing a motion for juror interview after the deadline imposed by rule.

Florida Rule of Criminal Procedure 3.575 governs motions for permission to interview a juror or jurors. By rule, such motions must be filed -within ten days after rendition of the verdict, unless good cause is shown for delay. Such motions must state the names of the juror(s) to be interviewed and must give the reasons the moving party believes that the verdict may be subject to challenge.

The jury rendered its verdict on February 1, 2006, and Belcher brought a motion for new trial on February 8, 2006. The motion for new trial focused on the jury instructions and the sufficiency of the evidence. The motion was denied without a hearing on February 12, 2006, but defense counsel brought it up during the sentencing hearing on March 30, 2006. Defense counsel claimed that the motion reserved the right to claim juror misconduct at hearing.

Defense counsel then made an oral motion for a jury interview, claiming three jurors had misrepresented whether they or their family had been prosecuted. Defense counsel acknowledged the 10-day time limit under Rule 3.575. The state objected to the motion as untimely, but the trial court allowed testimony from Bel-cher’s mother to establish when she first learned of the prosecutions.

Ms. Belcher testified that she hired a private investigator on the day after her son’s conviction. She testified that the investigator obtained copies of the juror questionnaires within the ten-day window. She testified that she notified defense counsel right after she “found out on the computer about all these things so it was with just in a few days.”

Defense counsel stated that, at the time he filed the motion for new trial on February 8, Ms. Belcher had not told him what she learned. The trial judge found that defense counsel had not filed an amended motion for new trial or otherwise raised allegations of juror misconduct within the time established by rule.

We agree. The record reflects that defense counsel knew of possible juror misconduct by mid-February at the latest but did not raise the issue until March 30, 2006. The motion for jury interview was therefore time-barred. Fla. R.Crim. P. 3.575.

AFFIRMED.

KAHN and BENTON, JJ., concur.

       The motion for new trial concluded with this cryptic sentence: "If, upon hearing of this Motion, there arrives any indication of a denial of the Defendant's rights to a fair trial, and in particular with regard to conduct by the State, the Court, Defense Counsel, a juror, or any Court personnel, the Defendant submits such was without fault by him, and thus alleges that such comprises a basis for a new trial.” It is not obvious what this means, but whatever it means, it does not satisfy Rule 3.575.


text:
    STATE of Florida, Appellant, v. Kelvin L. DUNN, Appellee.
    No. 1D08-840.
    District Court of Appeal of Florida, First District.
    April 3, 2009.
    Rehearing Denied May 21, 2009.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The State appeals the trial court’s resen-tencing of Kelvin L. Dunn to a downward departure sentence following this court’s reversal and remand of his original downward departure sentence in State v. Dunn, 970 So.2d 922 (Fla. 1st DCA 2007). The State contends that on remand, the trial court was required to sentence Dunn within the guidelines. We agree.

In Pope v. State, the supreme court held, “[W]hen an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.” 561 So.2d 554, 556 (Fla.1990); see also Henderson v. State, 622 So.2d 172, 173 (Fla. 1st DCA 1993) (reversing the defendant’s departure sentence due to the trial court’s failure to provide reasons for departure and remanding “for resentencing within the guidelines, with no possibility of departure therefrom”); State v. Tiedge, 670 So.2d 191, 192 (Fla. 3d DCA 1996) (instructing the trial court to sentence the defendant to a sentence within the guidelines on remand when the trial court had failed to give reasons for the downward departure); Pressley v. State, 921 So.2d 736, 736 (Fla. 1st DCA 2006) (reversing the defendant’s upward departure sentence where the trial court failed to state its reasons for the upward departure and directing the trial court to impose a guidelines sentence on remand). Accordingly, we reverse Dunn’s sentence and remand with directions that the trial court sentence him within the guidelines.

REVERSED and REMANDED with directions.

BARFIELD, ALLEN, and LEWIS, JJ., concur.


author: FULMER, Judge. ALTENBERND, Judge,

text:
    In re ESTATE OF Beulah K. TROLLINGER. Betty J. Savoretti, Personal Representative, Petitioner, v. MHC/CSI Florida, Inc.; MHC Florida Holding Company; MHC Holding Company; Mariner Health Care Management Company; Mariner Health Care, Inc. f/k/a Mariner Post-Acute Network, Inc.; East Bay NC, LLC; SBK Capital, LLC; Southern Healthcare Management, LLC; Sovereign Healthcare Holdings, LLC; Sovereign Healthcare, Inc.; Samuel B. Kellett; Darrel L. Hager; Lynda K. Lovell; and Steve Batten a/k/a Stephen Batten a/k/a Stephen Craig Batten; (as to East Bay Nursing Center f/k/a Mariner Health of Clearwater), Pinellas III Healthcare, Ltd. (L.P.) f/k/a Pinel-las III Healthcare, Ltd.; SBK of Georgia, LLC; Sak, Jr. LLC; Southern Healthcare Management II, LLC; William J. Krystopowicz; and John Noterman; (as to East Bay Nursing Center f/k/a Mariner Health of Clearwater), Respondents.
    No. 2D08-2275.
    District Court of Appeal of Florida, Second District.
    April 8, 2009.

      Isaac R. Ruiz-Carus and Blair N. Mendes of Wilkes & McHugh, P.A., Tampa, and Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, for Petitioner.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Respondents, East Bay NC, LLC; SBK Capital, LLC; Southern Healthcare Management, LLC; Sovereign Healthcare Holdings, LLC; Sovereign Healthcare, Inc.; Samuel B. Kellett; Darrel L. Hager; Lynda K. Lovell; and Steve Batten a/k/a Stephen Batten a/k/a Stephen Craig Batten; (as to East Bay Nursing Center f/k/a Mariner Health of Clearwater).
   FULMER, Judge.

Betty J. Savoretti, personal representative of the Estate of Beulah K. Trollinger, sued the owners and operators of East Bay Nursing Center, where Ms. Trollinger resided prior to her death. The complaint sought both survival and wrongful death damages. The trial court granted the Defendants’ Motions to Dismiss on the basis of section 400.023(1), Florida Statutes (2005), which provides: “If the action alleges a claim for the resident’s rights or for negligence that caused the death of the resident, the claimant shall be required to elect either survival damages pursuant to s. 46.021 or wrongful death damages pursuant to s. 768.21.” In dismissing her complaint, the trial court granted Savoretti twenty days to file an amended complaint in which she elects her remedy of either survival damages or wrongful death damages. Savoretti now petitions for a writ of certiorari to challenge the trial court’s order.

Savoretti argues that forcing the election at the pleading stage departs from the essential requirements of law. The cases she relies on are not persuasive because they do not involve actions governed by the statutory requirement in section 400.023(1). In her reply, she concedes that she raises an issue of first impression. She also asserts that she will not have an adequate remedy on plenary appeal because she will be forced to show her hand in an initial trial.

Section 400.023(1) is silent as to whether the election of remedies must be made at the pleading stage or at the end of trial, and this appears to be an issue of first impression. We conclude that certiorari relief is not available because Savoretti cannot demonstrate that she will be irreparably harmed by electing her remedy at the pleading stage. Because any error in the trial court’s ruling can be corrected in a postjudgment appeal, we dismiss the petition for writ of certiorari.

Dismissed.

KELLY, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I reluctantly agree that the trial court’s order, which I regard as erroneous, cannot be quashed at this time. If the trial court’s order results in prejudice to the plaintiff prior to the entry of an adverse final order, then that error can be corrected on direct appeal. See Diamond, v. Whaley, Chapman & Hannah, M.D.’s, P.A., 550 So.2d 54 (Fla. 2d DCA 1989).

Beulah K. Trollinger was a resident of a nursing home with which the various defendants had some connection. She resided at the home between January 2003 and May 2005. She died in July 2005. Her personal representative has filed an action alleging that the nursing home’s treatment of Ms. Trollinger was negligent in certain respects and that this negligence either caused her injuries prior to her death or caused her death. The trial court has entered an order dismissing the multi-count complaint and requiring the personal representative to file an amended complaint that omits one cause of action or the other.

As I read section 400.023(1), it requires the personal representative to elect to receive only one of thé two different measures of damages that are available in such a case. The statute does not require the personal representative to choose to pursue only one of the two different causes of action available to the personal representative. It certainly does not state that the election must be made in the complaint. As a general rule, a plaintiff is allowed to plead alternative causes of action in a single complaint even if the claims require proof of distinctly different facts. See Fla. R. Civ. P. 1.110(g) (stating that “[a] pleader may set up in the same action as many claims or causes of action or defenses in the same right as the pleader has, and claims for relief may be stated in the alternative”); DiChristopher v. Bd. of County Comm’rs, 908 So.2d 492, 495 (Fla. 5th DCA 2005) (allowing plaintiff to plead alternative bases for relief); Hines v. Trager Constr. Co., Inc., 188 So.2d 826, 830-31 (Fla. 1st DCA 1966) (noting that a pleader may seek relief under different theories of law even if relief depends upon materially different or inconsistent facts).

Even if one assumes that section 400.023(1) requires a plaintiff to elect one cause of action, this election of a claim would not logically occur at the pleading stage. See Diamond* 550 So.2d at 55. If the plaintiff is required to elect one measure of damages, there is little reason why this election cannot take place after the jury returns its verdict. See Monco of Orlando, Inc. v. ITT Indus. Credit Corp., 458 So.2d 332, 334-35 (Fla. 5th DCA 1984) (finding that the trial court erred in requiring election of remedies prior to trial); cf. Rolfs Marina, Inc. v. Rescue Serv. & Repair, Inc., 398 So.2d 842, 843 (Fla. 3d DCA 1981) (concluding that the trial court properly required plaintiff to elect either rescission or damages prior to trial on a breach of contract claim, but the first trial for rescission does not bar a second trial for damages). Election of remedies is a somewhat complex theory, but it is generally designed to prevent a double recovery, which can be avoided in this case even if the jury is presented with a verdict form containing both theories. See Barbe v. Villeneuve, 505 So.2d 1331 (Fla.1987); Am. Process Co. v. Fla. White Pressed Brick Co., 56 Fla. 116, 47 So. 942 (1908).

The personal representative’s two theories are factually and legally distinct. One theory requires proof that negligence caused only injury and the other theory requires proof that negligence caused death. In Florida, a standard verdict form asks the jury to decide “whether there was negligence on the part of the defendant which was a legal cause of damage to the plaintiff.” Fla. Std. Jury Instr. (Civ.) MI 1. If the jury is instructed on only one of the causes of action and the damages appropriate under that theory, there is nothing in the verdict form to demonstrate that the verdict forecloses an action on the other theory for the damages available under the other theory. In other words, if a jury were to find that an act of negligence did not cause wrongful death damages, that verdict would not prevent another jury from finding that an act of negligence caused survivorship damages. Thus, whichever theory is tried first, the trial court is likely to be called upon to try the second theory later.


author: SHEPHERD, J.

text:
    Mark LAWRENCE, Appellant, v. Donna Shuman PEYTON, Appellee.
    No. 3D08-1665.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Mark Lawrence, in proper person.
    Donna Shuman Peyton,’ in proper person.
    Before RAMIREZ, WELLS, and SHEPHERD, JJ.
   SHEPHERD, J.

In this excessively litigated, post-dissolution proceeding — in which there appears to be no limit to which the parties, now both proceeding pro se, will go to spar over issues relating to the care and upbringing of their now six-year-old son — the former husband, Mark Lawrence appeals that portion of a non-final omnibus order in which the trial court deferred ruling on a paragraph of a “Custody/Access Agreement,” parceling the son’s summer days between the parents depending largely upon the former husband’s residence. The trial court reasoned — at the behest of the former wife, Donna Shuman Peyton — that the language of the operative provision was ambiguous and an evidentiary hearing, therefore, was needed on its application to the facts. That portion of the omnibus order is before us for review.

As finally conceded by the former wife. — • but suspiciously not. until she filed her answer brief during the very last days of last summer — the provision is not ambiguous, and she now accepts that the former husband is entitled to have the son during the summer under “Option 2” of the Custody/Access Agreement.

Although we are comfortable that non-final orders determining visitation in family law cases are reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii) (allowing appeal of non-final orders determining “child custody in family law matters”) see also § 61.503(3) Fla. Stat. (2008) (“ ‘Child custody determination’ means a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child.”); Doyle v. Owens, 881 So.2d 717, 718 (Fla. 1st DCA 2004) (applying Rule 9.130(a)(3)(C)(iii) to temporary order granting visitation in pending paternity case); McGlamry v. McGlamry, 608 So.2d 553, 554 (Fla. 4th DCA 1992) (applying Rule 9.130(a)(3)(C)(iii) to temporary order terminating visitation in dissolution case); Johnson v. Henck, 482 So.2d 588, 589 (Fla. 1st DCA 1986), it likely would be an extraordinary circumstance in which relief might be obtainable here on an order that defers ruling upon visitation for a short period, even if, as all parties now agree, the reason for calling an evidentiary hearing is unmeritorious.

Happily for us, we are not required to consider our jurisdiction in this case because the former wife finally has agreed the provision is operable and applicable into the future so long as the former husband lives in Maryland. Unhappily for the parties’ son — who just had his sixth birthday — it has taken an unnecessarily lengthy time to resolve this embarrassingly unmer-itorious appeal. The former wife argues the former husband has refused to dismiss the appeal in a quest to support himself in a failing law practice by obtaining our consent to his motion for attorney fees. We deny the former husband’s motion.

We linger in this appeal and expend our limited resources on it because it is clear to us it is almost certainly the parties’ son who is suffering the most in this case. See Perez v. Perez, 769 So.2d 389, 392 (Fla. 3d DCA 1999) (“Children should not be ‘played’ as if in a game of ping-pong where the parent with the greater resources to serve the greatest number of motions wins.”). The former wife, no less than the former husband, has misused the trial court.

Appeal dismissed.

      . Paragraph 14.2, Option 2, states:
      Husband resides outside Miami-Dade County, Broward County or Palm Beach County, Florida. Depending on the driving distance, Husband has the option of ... electing to get the minor child for the summer. Summer is defined as the period of time beginning the Friday before Memorial Day until the Sunday before Labor Day, provided that the minor child’s school schedule shall not be interfered with. Husband’s pick up from Wife and drop off to Wife shall be at Husband's expense. During summer, Wife shall have two (2) consecutive weeks to be used how Wife wants with the minor child. During the Summer, Wife shall at her expense pick up and drop of the minor child from Husband's residence. Wife shall also be entitled to additional time with the minor child with reasonable notice at the Husband’s residence so long as it does not disturb the child’s activities. Under this option, Husband gets the minor child whenever he visits Miami from out of town, except Husband’s visitation cannot interfere with Wife’s holiday weekends.

      . The former husband recently was disbarred. See Fla. Bar v. Lawrence, 6 So.3d 53 (Fla. 2009).


text:
    Anthony WOOD, Appellant, v. Andrew S. BLUESTONE, Appellee.
    No. 4D08-3428.
    District Court of Appeal of Florida, Fourth District.
    April 8, 2009.

      Howard D. DuBosar of DuBosar & Perez, P.A., Boca Raton, for appellant.
    John R. Hargrove and W. Kent Brown of Sedgwick, Detert, Moran & Arnold LLP, Fort Lauderdale, for appellee.
   POLEN, J.

Appellant Anthony Wood (“Wood”) timely appeals the trial court’s denial of his motion to dismiss for forum non conve-niens under rule 1.061 of the Florida Rules of Civil Procedure. This court has jurisdiction. Fla. RApp. P. 9.130(a)(3)(A) (2008).

Appellee Andrew S. Bluestone (“Blue-stone”) sued Wood to enforce ten promissory notes, each for $25,000, executed by Wood. Each note provided that “[i]n the event [Wood] shall fail to make'any payment hereunder within thirty (30) days following written demand from [Blue-stone], this Note shall be in default and [Wood] shall immediately pay the entire balance ilue, plus all costs of collection including reasonable attorney’s fees.” On December 12, 2007, Bluestone sent a written demand to Wood for full payment of all ten notes, but Wood never made any payments.

In defense, Wood claimed that the notes were not evidence of a loan, but part of a larger transaction in which Wood, through his unincorporated Florida entity, provided services to Bluestone’s company headquartered in New York. In his motion to dismiss, Wood argued that even though he is a Florida resident, Bluestone’s complaint should be dismissed for forum non conve-niens because, inter alia, the notes — executed and delivered in New York — call for payments in New York and all witnesses and documents regarding the causes of action are in New York. Wood submitted an affidavit in support of his motion.

Bluestone did not respond to Wood’s motion. The court responded by holding a very brief hearing and finding, “[Wood] lives here. He can defend in his own home territory. They are free to sue him where he lives. They can bring the witnesses down.... It’s real hard to say it’s not convenient to where you are living.” The court’s order denying Wood’s motion contained no findings of fact or legal analysis.

Generally, “[t]he decision to grant or deny the motion for dismissal [for forum non conveniens ] rests in the sound discretion of the trial court, subject to review for abuse of discretion.” Fla. R. Civ. P. 1.061 (2000); see also Kinney Sys., Inc. v. Continental Ins. Co., 674 So.2d 86, 93-94 (Fla.1996). Despite such authority of the Florida Supreme Court, the Third District has developed a hybrid “abuse of discretion/de novo standard,” accounting for “the extent of the trial judge[’]s analysis and whether the appellate record is sufficient to allow the reviewing court to reach its own conclusions.” Kawasaki Motors Corp. v. Foster, 899 So.2d 408, 410 (Fla. 3d DCA 2005). Based on such development in the Third District and the concurring opinion in this court’s decision in Bridgestone/Firestone North American Tire, LLC v. Garcia, 991 So.2d 912 (Fla. 4th DCA 2008), Wood argues that the standard of review in this case should be de novo.

Given that Wood has not cited to a decision of this Court, applying the hybrid abuse of discretion/de novo standard to a case involving a forum non conveniens motion, and under the Florida Supreme Court’s authority in both rule 1.061 and Kinney, the standard of review, here, is abuse of discretion.

Substantively, Wood argues that the trial court erred in denying his motion to dismiss for forum non conveniens because the court failed to engage in the four-part analysis outlined in Kinney and relied on only one factor in denying his motion— that he is a Florida resident. The Supreme Court in Kinney mandated that when deciding a forum non conveniens motion, a court should consider the following factors:

As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. [2] Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice. [3] If the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum. [4] If he decides that the balance favors such a ... forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

674 So.2d at 90 (emphasis in original) (quoting Pain v. United Techs. Corp., 637 F.2d 775, 784-85 (D.C.Cir.1980)).

There is, however, “no per se rule requiring a remand whenever an order granting or denying dismissal on forum non conveniens grounds fails explicitly to set forth the court’s resolution of the four-step analysis.” Smith Barney Inc. v. Potter, 725 So.2d 1223 (Fla. 4th DCA 1999). “If the record is sufficient to review the trial court’s ultimate determination, the scarcity of the text of the order will not matter.” Id. Nonetheless, the court must still “engage in the [Kinney ] analysis, either at the hearing or in its written order of denial.” Charles v. McMahon, 916 So.2d 1013, 1014 (Fla. 4th DCA 2006).

In Potter, where the “scarcity of the text of the order” did not result in a reversal, this Court relied on the fact that “[a]ll of these steps [of the Kinney analysis] were discussed at length during the hearing and in legal memoranda filed by the parties.” 725 So.2d at 1224. On the other hand, in Charles, where neither a hearing nor a written order existed to reveal the court’s application of the Kinney analysis, this Court reversed and remanded the case for further proceedings. 916 So.2d at 1014.

Just as, in Charles, “[i]t appeared] that the court’s only basis for denying the motion was the general presumption in favor of plaintiffs choice of forum,” here, because there was no meaningful hearing or written order, it appears that the court’s only basis for denying Wood’s motion was his residency in Florida. Thus, we reverse and remand this case. The trial court must perform the Kinney analysis in considering Wood’s claims for forum non conveniens, either through a hearing or a written order.

WARNER and HAZOURI, JJ., concur.

      . The author of the instant opinion also wrote the concurring opinion in Garcia.

      . As appellee is a foreign plaintiff, his choice of forum is not entitled to any special weight. See Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1118 (Fla. 4th DCA 1997).


author: COPE, J.

text:
    Derrick MOSS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-131.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Derrick Moss, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   COPE, J.

This is an appeal of an order summarily denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm the order, but on a basis different from that which was stated by the trial court.

The trial court’s denial order points out that defendant-appellant Derrick Moss has filed numerous previous postconviction motions. The denial order states, in part, that “Defendant provides no explanation for why these claims could not have been raised in his previous motions. Defendant’s claims are therefore denied as successive.”

We are unable to affirm the denial order on the stated basis. While Florida Rule of Criminal Procedure 3.850 contains a provision barring successive motions, see Fla. R.Crim. P. 3.850(f), there is no such bar in Florida Rule of Criminal Procedure 3.800(a). The Florida Supreme Court has explained that “Rule 3.800 ... allows a court to correct an illegal sentence ‘at any time.’ Florida courts have held, and we agree, that the phrase ‘at any time’ allows defendants to file successive motions under rule 3.800.” State v. McBride, 848 So.2d 287, 290 (Fla.2003).

If a later rule 3.800(a) motion raises the same issue as an earlier rule 3.800(a) motion, then it will be barred by the doctrine of collateral estoppel where the earlier motion was denied on the merits. Id. at 290-91; see Mims v. State, 994 So.2d 1233, 1235 (Fla. 3d DCA 2008); Pleasure v. State, 931 So.2d 1000, 1002 (Fla. 3d DCA 2006).

The trial court attached to its denial order the defendant’s prior motions to vacate or correct illegal sentence. However, it does not appear that the defendant has raised in the current motion any issue which is identical to issues raised in the prior motions. Therefore the current motion is not barred by collateral estoppel.

We affirm instead on the merits. The defendant’s current offense date is November 14, 1994. He was adjudicated as a habitual felony offender. One of the predicate offenses was his conviction in Miami-Dade County Circuit Court case number 90-98589. The defendant committed his 1994 offense less than five years after the date of the 1990 conviction, and less than five years after his release from prison. See § 775.084(l)(a)2., Fla. Stat. (1993).

Contrary to the defendant’s argument, the fact that the defendant was on control release for the 1990 offense when he committed the 1994 offense does not prevent the 1990 conviction from being used as a qualifying offense. The statute allows the five-year period to run from “the date of conviction of the last prior felony ... or within five years of the defendant’s release, on parole or otherwise, from a prison sentence ... whichever is later.” Id. The defendant’s release on control release was a release under the “otherwise” provision of the statute. Whether measured from the date of the 1990 conviction or the subsequent date of release on control release, the 1990 conviction is a qualifying offense. See Ruiz v. State, 844 So.2d 800 (Fla. 3d DCA 2003); see also Smith v. State, 935 So.2d 1223, 1224 (Fla. 3d DCA 2006).

The defendant also argues that his prior conviction in Miami-Dade County Circuit Court case number 82-23151 cannot be used as a qualifying offense because it was more than five years prior to the 1990 adjudication. That argument is without merit. Under the statute, only one qualifying offense must meet the five-year test discussed above. There is no temporal requirement for the other qualifying offense. The trial court reached the correct result in denying relief.

Affirmed.