author: EMAS, J.

text:
    U.S. SECURITY INSURANCE COMPANY, Appellant, v. PROFESSIONAL MEDICAL GROUP, INC., Appellee.
    No. 3D10-2881.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2011.
    Rehearing Denied Dec. 22, 2011.
    David B. Pakula, Pembroke Pines, for appellant.
    Marlene S. Reiss, Miami, for appellee.
    Before SHEPHERD and EMAS, JJ. and SCHWARTZ, Senior Judge.
   EMAS, J.

This case comes to us for review of an order by the county court granting summary judgment in favor of Professional Medical Group, Inc. In its order, the trial judge certified to this Court the following question as one of great public importance:

May the statutory amendment that went into effect on January 1, 2008, providing that an insurer may limit reimbursement of no fault benefits to 80% of 200% of the applicable Medicare Part B fee schedule, be constitutionally applied retroactively to a policy with effective dates of December 7, 2007 through June 7, 2008, where the accident and medical treatment occurred after January 1, 2008 and the insurer did not issue an endorsement advising the insured that the fee schedule would be applied?

This Court initially accepted jurisdiction of this cause pursuant to Florida Rule of Appellate Procedure 9.160.

Having reviewed the briefs, and following oral argument, this Court declines to answer the question certified by the lower court to be one of great public importance, and therefore transfers this appeal, together with the filing fee, to the Eleventh Judicial Circuit of Florida, appellate division, pursuant to Florida Rule of Appellate Procedure 9.160(f)(2).

      . See Barnett v. Fla. Dep't of Mgmt. Servs., 953 So.2d 461 (Fla.2007) (declining review where the circumstances of the case were fact-specific).


source: Caselaw Access Project

license: Public Domain

text:
    Vernon ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-2311.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    Rehearing Denied Dec. 22, 2011.

      Vernon Allen, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

Vernon Allen appeals the trial court’s order denying his motion for postconvietion relief. We affirm.

Allen was arrested on August 15, 2006. On September 11, 2006, the State filed an information charging three counts: armed burglary (count one), grand theft (count two), and felony criminal mischief (count three). Trial counsel was court-appointed on September 19, 2006, to represent Allen, who was declared indigent. On February 12, 2007, a notice of expiration of the speedy trial period was filed. Trial began on February 20, 2007. Allen was found guilty of burglary of a dwelling, grand theft, and misdemeanor criminal mischief.

The trial court ordered that a presen-tence investigation report be prepared in advance of the sentencing. During the presentence investigation process, Allen met, and was interviewed by, an investigator with the Department of Corrections. During the interview, Allen protested his innocence, and made allegations that his trial counsel had provided ineffective assistance of counsel. As a result, the trial court held a hearing on Allen’s claims prior to proceeding on the sentencing. The trial court heard testimony and determined that trial counsel did not provide ineffective assistance of counsel. Allen was subsequently sentenced to twenty years’ imprisonment as a habitual felony offender (count one), five years’ imprisonment (count two) and credit for time served (count three). The convictions and sentences were affirmed on direct appeal.

Allen filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He raised four grounds, each alleging ineffective assistance of his trial counsel. The trial court denied relief. This appeal followed.

Allen’s motion alleged that his trial counsel:

1. Failed to diligently investigate and present defense witnesses that would have established his innocence;
2. Misadvised Allen regarding his right to testify at trial, resulting in an “involuntary” waiver of his right to testify;
3. Failed to object to the state’s introduction of certain evidence at trial;
4. Improperly advised Allen not to testify at a “Rule 3” hearing held pri- or to sentencing, where Allen would have asserted and established his actual innocence and an alibi defense.

Each of Allen’s claims is without merit, but the first claim warrants further discussion. Although the trial court did not hold an evidentiary hearing following Allen’s formal filing of his motion for post-conviction relief, it did not need to do so; an adequate record already existed for a denial of his claims. Allen’s claims of ineffective assistance of trial counsel were raised and sufficiently developed in the evidentiary hearing held by the trial court prior to his sentencing. The trial court properly appointed new counsel to represent Allen at this evidentiary hearing, because Allen was asserting claims that his trial counsel had provided ineffective assistance. At the evidentiary hearing, Allen’s original trial counsel was called as a witness, and testified that:

—Trial counsel had obtained a court order authorizing investigative costs to locate defense witnesses;
—Allen nevertheless insisted that trial counsel obtain a speedy trial;
—Allen wanted a speedy trial rather than wait for trial counsel to locate potential defense witnesses and develop a defense for trial;
—Allen’s strategy was to not take any continuances;
—Trial counsel advised Allen that more time was needed to investigate and locate witnesses and prepare for trial, and that such a strategy would prevent trial counsel from properly investigating and preparing for trial;
—Allen insisted on filing a notice of expiration of the speedy trial period, and the notice of expiration was filed on February 12, 2007;
—Trial began approximately one week after the filing of the notice of expiration.

After trial counsel testified, the court gave Allen an opportunity to testify at this hearing. Allen advised the court that he did not wish to testify, and the trial court conducted a thorough colloquy of Allen regarding his personal decision not to testify at the hearing.

To establish a claim of ineffective assistance of trial counsel, Allen has the burden of establishing both deficient performance and actual prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To satisfy the deficient performance prong, Allen must allege and prove that counsel did not function as the' “counsel” guaranteed by the Sixth Amendment. The relevant question to ask is whether counsel’s performance was objectively reasonable when measured under the standard of prevailing professional norms. Id. at 688, 104 S.Ct. 2052.

Based upon the evidence presented, the trial court concluded that trial counsel did not provide ineffective assistance of counsel. This determination is fully supported by the record.

We begin with the general proposition that

counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgment_ The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.

Strickland, 466 U.S. at 691, 104 S.Ct. 2052. See also Wiggins v. Smith, 589 U.S. 510, 128 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Downs v. State, 453 So.2d 1102 (Fla.1984). Here, trial counsel attempted to conduct a reasonable investigation in preparation for trial, but was thwarted by his own client’s adamant insistence on a speedy trial. Trial counsel advised Allen that more time was needed to investigate the case, locate potential witnesses, and prepare a proper defense for trial. Notwithstanding counsel’s advice, Allen insisted that trial counsel pursue a speedy trial and not request any continuance of the trial date. A defendant who insists on pursuing a speedy trial against his trial counsel’s advice — and with an understanding of the nature and consequences that will follow such a decision— will not later be heard to complain that he received ineffective assistance from trial counsel who failed to adequately investigate and prepare a proper defense. Trial counsel cannot be deemed ineffective for obeying his client’s demands regarding the investigation, preparation or presentation of a defense. Heath v. State, 8 So.Sd 1017 (Fla.2009); Grim v. State, 971 So.2d 85 (Fla.2007); Cummings-El v. State, 863 So.2d 246 (Fla.2003). Stated another way, trial counsel made a “reasonable decision” to limit or terminate his investigation, based upon his client’s adamant insistence on pursuing a speedy trial after his counsel advised against it and warned Allen of the dangers inherent in such a strategy. Rose v. State, 617 So.2d 291, 294 (Fla.1993). As the Florida Supreme Court has recognized: “When a defendant preempts his attorney’s strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.” Id. (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985)).

The record establishes the “strategic” decision to seek a speedy trial (and forego any continuances to conduct an adequate investigation and prepare a defense) was the informed decision of Allen himself, and was against the advice of his trial counsel. Allen cannot now seek to impute the consequences of that decision to his trial counsel. Trial counsel’s acquiescence to his client’s insistent demands to obtain a speedy trial fell within the “wide range of professionally competent assistance” and met the standard of “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688, 690, 104 S.Ct. 2052.

Affirmed.

      .The public defender’s office initially represented Allen, but withdrew from representation because the office was also representing a co-defendant in the case. Private counsel was then appointed as a special assistant public defender to represent Allen.

      . See Fla. R.Crim. P. 3.191(h).

      . At that hearing, and at the sentencing which followed, Allen was represented by newly-appointed counsel who had not participated at the pretrial or trial stages of the case.

      . The first three grounds were raised by Allen to the trial court prior to sentencing.

      . This was the hearing held by the trial court, prior to sentencing, to address Allen’s claims of ineffective assistance of his trial counsel. This fourth claim alleges that his newly-appointed counsel provided ineffective assistance by advising Allen not to testify at the hearing.

      . Allen's asserted alibi is that, on the day of the crimes, he was with a person named David (last name unknown) detailing cars and doing landscaping work.

      . As to Allen's claim that he “involuntarily” waived his right to testify at trial, the trial court conducted a thorough colloquy of Allen during the trial. A review of the colloquy conclusively refutes Allen’s claim. See Garcia v. State, 21 So.3d 30 (Fla. 3d DCA 2009) (holding trial court’s colloquy of defendant during trial established that he consulted with his attorney about the decision, was satisfied with his counsel’s advice, and knowingly and voluntarily waived his right to testify at trial); Lott v. State, 931 So.2d 807 (Fla.2006). Similarly, during the evidentiary hearing held pri- or to sentencing, Allen was given an opportunity to testify and declined. The trial court conducted a similarly thorough colloquy and properly determined that Allen knowingly, intelligently and voluntarily waived his right to testify at the hearing. Finally, with regard to the failure to object to certain evidence introduced at trial, Allen has failed to allege or establish the requisite prejudice required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . We need not consider the actual prejudice prong, because Allen has failed to allege or establish the deficient performance prong.


author: PER CURIAM.

text:
    Wilbert CROSTON, Appellant, v. YALE MORTGAGE CORPORATION, Appellee.
    No. 3D11-578.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    Deborah Kaicher Pastean, Homestead, for appellant.
    Weitz & Schwartz and Sarah T. Weitz, Ft. Lauderdale, for appellee.
    Before SHEPHERD, LAGOA and SALTER, JJ.
   PER CURIAM.

On the record before us, we cannot find that the trial court’s order denying the appellant’s objection to sale and motion to vacate default final judgment constitutes a gross abuse of discretion. See First Response Grp., Inc. v. Castro, 971 So.2d 986 (Fla. 3d DCA 2008). We therefore affirm.

Affirmed.


text:
    Eddie Lee REESE, Appellant, v. Amy Leslie MARCUS, Appellee.
    No. 5D11-474.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 2011.
    Rehearing Denied Dec. 9, 2011.
    Eddie Lee Reese, Bushnell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Eddie Lee Reese appeals from an order denying his motion to dissolve a Final Judgment of Injunction for Protection Against Domestic Violence. He claims that the trial court erred by failing to afford him basic due process in connection with the hearing on his motion to dissolve the injunction. Because the limited record supplied by Appellant in the appendix to his brief does not support this argument, we affirm. See, e.g., Starks v. Starks, 423 So.2d 452, 453-54 (Fla. 1st DCA 1982) (finding that without a transcript of the hearing, the appellate court is unable to ascertain whether the lower court erred; noting that “[t]he appellant retains the burden of overcoming the presumption of correctness .... [which] includes a demonstration of error from the record, which he must supply”) (quoting Kauffmann v. Baker, 392 So.2d 13, 15 (Fla. 4th DCA 1980) (emphasis in original)).

AFFIRMED.

GRIFFIN, LAWSON and TORPY, JJ., concur.


author: SALTER, J.

text:
    Jose Ramon RODRIGUEZ, et al., Appellants, v. Jose M. NIEVES, Appellee.
    No. 3D09-731.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.
    Rehearing Denied Dec. 28, 2011.

      Bonnie S. Satterfield, Coral Springs; Steven Gutter, Boca Raton, for appellants.
    Perez, Goran & Rodriguez, and Javier J. Rodriguez and Johanna Castellon-Vega, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.

       Judge Salter did not participate in oral argument.

   SALTER, J.

The Rodriguezes appeal the involuntary-dismissal of their complaint against Dennis Nieves and Dennis’ company, Trust Management Group, LLC, for fraudulent transfer under section 726.106(1), Florida Statutes (2004). We affirm.

The plaintiffs, Jose Ramon Rodriguez and Silvia A. Rodriguez, established two of three required statutory elements: that they were “creditors] whose claim arose before the transfer was made or the obligation was incurred,” and that the debtor in the proceedings supplementary, Jose Nieves, was insolvent when he made certain transfers to the appellees. The third element, however, was not established— that Jose Nieves made the transfers “without receiving a reasonably equivalent value in exchange for the transfer[s].”

Viewing the plaintiffs’ five exhibits and deposition transcript (as admitted into evidence) in the light most favorable to the Rodriguezes, there is no evidence establishing any equity in the property conveyed by Jose Nieves to his brother Dennis Nieves at the time of the transfer in May 2005. The exhibits do establish that Dennis Nieves (through his company, ap-pellee Trust Management Group), loaned his brother $120,000 in June 2004 to pay down Jose Nieves’ indebtedness on the property he had contracted to sell to the Rodriguezes. A second promissory note and mortgage on another piece of property evidenced a $195,000 loan by Trust Management Group to Jose Nieves in May 2004. The mortgage was recorded and all applicable recording fees and taxes were paid. The Rodriguezes did not prove that Jose Nieves executed the note and mortgage for less than equivalent value. It was not the burden of Dennis Nieves or Trust Management Group to produce evidence (in the plaintiffs’ case against them) that they actually loaned those amounts to Jose Nieves.

The Rodriguezes argue that Dennis Nieves and Trust Management Group ultimately were able to recover one of the loans (and, arguably, some additional sum) from a sale of the mortgaged property in June 2006. But that fact is not in any way probative of whether Dennis Nieves and Trust Management Group actually advanced funds (equivalent value) to Jose Nieves in exchange for the May and August 2004 notes and mortgages, or what equity (if any) may have existed in the mortgaged property when Jose Nieves deeded it to Dennis Nieves in May 2005. Those critical facts were not proven.

This deficit is evident upon a review of reported cases in which creditors have demonstrated that a transferee did or did not provide reasonably equivalent value. In Huntsman Packaging Corp. v. Kerry Packaging Corp., 992 F.Supp. 1439 (M.D.Fla.1998), aff'd, 172 F.3d 882 (11th Cir.1999), a secured creditor took back all of an insolvent manufacturer’s assets for the forgiveness of indebtedness (approximately $800,000), proven to be substantially less than the evidence of value of those assets (between $1,700,000 and $3,500,000) at that time. On that record, the trial court found all three elements of section 726.106(1) were satisfied. Id. at 1446. In United States v. Executive Auto Haus, Inc., 234 F.Supp.2d 1253, 1257 (M.D.Fla.2002), the trial court granted summary judgment to a defendant transferee who had satisfied or assumed various debts of the debtor transferor, thus eliminating the plaintiff creditor’s ability to prove that the debtor made the transfer “without receiving reasonably equivalent value in exchange for the transfer.... ”

In the case at hand, the arbitrator’s 2005 award and finding in the original Rodriguez-Jose Nieves case (admitted into evidence in the 2009 trial of the proceeding supplementary against Dennis Nieves and Trust Management Group) found that the testimony of Jose Nieves established that his brother “was the one who advanced the funds for him to pay down the mortgages.” There was no evidence in the 2009 trial that Jose Nieves’ deed to Dennis Nieves in 2005, subject as it was to the previously-recorded mortgage in favor of Trust Management Group, was for less than equivalent value. A sale more than a year later does not establish value at the time of transfer, nor does it address the mortgage indebtedness on the property at the time of transfer. And, again, it was not the appellees’ burden to establish the element of “without reasonably equivalent value.” For these reasons, we affirm the trial court’s final judgment of involuntary dismissal and the order denying rehearing.

Affirmed.

      . Section 56.29, Florida Statutes (2007).

      . The loan was evidenced by a note and mortgage; the. mortgage was recorded and all applicable recording fees and taxes were paid. Jose Nieves encumbered a Coconut Grove parcel and used the proceeds in an effort to permit his transaction with Mr. and Mrs. Rodriguez to be closed.

      . The award found that these paydowns to Chase Manhattan and Wachovia totaled $160,000.00 and were required in order to avert a foreclosure on the property Jose Nieves had contracted to sell the Rodriguezes.


author: FERNANDEZ, J. WELLS, Chief Judge.

text:
    Jose A. MATA, Appellant, v. Beth A. MATA, Appellee.
    No. 3D11-2297.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.

      Melvyn B. Frumkes & Associates, P.A. and Greene, Smith & Associates, P.A., and Cynthia L. Greene, Miami, for appellant.
    Schweitzer & Schweitzer-Ramras, P.A., and Darlene Schweitzer-Ramras, Coral Gables, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   FERNANDEZ, J.

Jose A. Mata appeals an order of the trial court that granted appellee Beth A. Mata’s emergency motion to permit the temporary relocation of the parties’ minor child to North Carolina. Because the court failed to comply with requirements relevant to the temporary relocation of minor children under section 61.13001(6)(b), Florida Statutes (2011), we reverse.

The final judgment of dissolution of marriage incorporated a settlement between the parties in which the parties agreed to a time-sharing schedule for the parties’ minor child. The parties agreed that it was in the child’s best interest that the parties live in close proximity in Miami-Dade County. In March 2011, the mother petitioned for the relocation of the child’s residence to Durham, North Carolina where the mother now resides. The father responded, objected, and counter-petitioned the mother’s petition to relocate the child. The mother thereafter noticed the relocation matter for trial which the court set for August 12, 2011. On August 2, 2011, the mother filed an emergency motion to permit the temporary relocation of the child during the pendency of the relocation action. The father responded.

At the hearing on August 12, 2011, on the mother’s emergency motion, the parties, counsel, and witnesses appeared before the court. The father’s counsel declared that he felt ill, after which the court agreed to continue the relocation matter. The court nevertheless addressed the mother’s emergency motion for temporary relocation pending the final hearing. The court thereafter heard argument from counsel for one hour during which the court neither received evidence nor heard testimony. The court ultimately granted the mother’s emergency motion to relocate, stating in its order that the court’s decision was “based upon the review of the pleadings and argument of counsel.” The court rescheduled the final hearing on relocation to November 18, 2011.

An abuse of discretion standard governs an appellate court’s review of the trial court’s determination of the relocation of minor children. See Manyari v. Manyari, 958 So.2d 512 (Fla. 3d DCA 2007). Section 61.13001(6)(b), Florida Statutes (2011), establishes the procedures that must be followed in matters that involve the temporary relocation of a child. Section 61.13001(6)(b) states:

(b) The court may grant a temporary order permitting the relocation of the child pending final hearing, if the court finds:
2. From an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.

The father argues that the court failed to comply with these statutory requirements when it granted the mother’s emergency motion for temporary relocation. Here, it is apparent that the court did not consider the factors listed in section 61.13001(6)(b)(2) before it granted the mother’s emergency motion for temporary relocation. There is no indication in the record that the court received or considered evidence upon which to make findings that “there is a likelihood” that the court will approve a relocation on final hearing, findings which, in turn, must be “supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.” Indeed, the court noted at the hearing on the mother’s emergency motion that it did not consider the factors outlined in section 61.13001 because it had not taken any evidence. This constituted error.

Notwithstanding the court’s error as a matter of law when it misapplied the correct legal standard set forth in section 61.13001, see Canakaris v. Canakaris, 382 So.2d 1197, 1202-03 (Fla.1980), the court abused its discretion when it granted the mother’s emergency motion to relocate. The court’s decision to grant the mother’s motion was limited to a review of the pleadings and argument of counsel. At no time did the court receive any evidence or testimony which would have provided a factual basis to support relocation. The court’s decision to relocate was thus unreasonable. See Raulerson v. Wright, 60 So.3d 487, 490-91 (Fla. 1st DCA 2011) (holding that the mother’s hand-delivery to the father of her notice of intent to relocate with the parties’ minor child, without complying with the filing requirements of section 61.13001(3), constituted an abuse of discretion).

We decline to address, as either merit-less or unsupported, the arguments the mother raises. Thus, we conclude that the court abused its discretion when it granted the mother’s emergency motion to permit the temporary relocation of the parties’ minor child without adhering to the requirements of section 61.13001.

We therefore reverse and remand the cause for an evidentiary hearing from which the court can determine the necessary findings required by section 61.13001.

Reversed and remanded with instructions.

WELLS, Chief Judge.

(Concurring).

I agree that the relocation order on review must be reversed because the court below failed to follow the dictates of section 61.13001(6) of the Florida Statutes. That provision states that a temporary relocation request may be granted when two conditions are met: first, when a proper petition is filed, and second, when evidence presented provides a factual basis likely to support permanent relocation under section 61.13001(7) :

(b) The court may grant a temporary order permitting the relocation of the child pending final hearing, if the court finds:
1. That the petition to relocate was properly filed and is otherwise in compliance with subsection (3); and
2. From an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.

§ 61.13001(6), Fla. Stat. (2010) (emphasis added); see also § 61.13001(8), Fla. Stat. (2010) (providing “Burden of proof. — The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child”) (emphasis added).

Because no evidence was adduced below, these statutory mandates could not have been met. As Canakaris v. Canakaris, 382 So.2d 1197, 1202-3 (Fla.1980) (citations omitted), long ago explained:

In order to properly review orders of the trial judge, appellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion. Where a trial judge fails to apply the correct legal rule, as when he refuses to terminate periodic alimony upon remarriage of the receiving spouse, the action is erroneous as a matter of law. This is not an abuse of discretion. The appellate court in reviewing such a situation is correcting an erroneous application of a known rule of law.
However, where the action of the trial judge is within his judicial discretion, as in the establishment of the amount of alimony or award of child custody, the manner of appellate review is altogether different.
Judicial discretion is defined as:
The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.
Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

In short, because the court below failed to comply with the mandates of section 61.13001, it erred as a matter of law in ordering temporary relocation. I therefore agree that the order must be reversed.

      . This provision requires evaluation of the following criteria:
      (a) The nature, quality, extent of involvement, and duration of the child's relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child's life.

        (b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
      (c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties: whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.
      (d) The child’s preference, taking into consideration the age and maturity of the child.
      (e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
      (f) The reasons each parent or other person is seeking or opposing the relocation.
      (g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
      (h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
      (i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.
      (j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(l)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
      (k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.
      § 61.13001(7), Fla. Stat. (2010).


author: BENTON, C.J.

text:
    Ronald Ray BEVANS, a/k/a Ronald Ray Bevens, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0226.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.

      Ronald Ray Bevans, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Christine Ann Guard, Assistant Attorney General, and Chelsea England, Certified Legal Intern, Tallahassee, for Appellee.
   BENTON, C.J.

Ronald Ray Bevans appeals the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm except insofar as his claim of ineffective assistance of counsel hinges on affirmative misadvice of counsel. We reverse in part and remand for a supplemental evidentiary hearing on whether he relied on the misadvice in deciding to go to trial.

The trial court did not reach the question of reliance because it did not recognize the misadvice as such. Mr. Bevans was convicted after trial on one count of kidnapping in violation of section 787.01(3)(a), Florida Statutes (1999), and three counts of sexual battery on a victim less than twelve years old, in violation of section 794.011(2)(a), Florida Statutes (1999). He later challenged his conviction and sentence in a timely 3.850 motion. Among other things, the motion alleged that trial counsel failed to provide effective assistance.

As clarified in an amendment to the motion, trial counsel was specifically alleged to be ineffective in advising him not to accept the state’s plea offer of thirty years’ imprisonment and to go to trial instead. At an evidentiary hearing on the motion, Mr. Bevans and members of his family testified that trial counsel told him that he should go to trial. Mr. Bevans testified that trial counsel told him that, after trial, he would receive a life sentence, but that it would be reversed on appeal, along with his convictions.

Trial counsel testified that he never advised Mr. Bevans to reject the state’s plea offer, but he also testified that he explained to Mr. Bevans what a life sentence entailed, as follows: “I explained to him that a life sentence meant he would have to do at least twenty-five years before he became eligible for parole and he could potentially spend the rest of his life in prison.” The trial court credited trial counsel’s testimony and found that trial counsel “sufficiently testified that he explained to defendant what a life sentence meant.”

But the explanation counsel gave was incorrect. Under the statute in effect at the time of the offenses, sexual battery was a capital felony punishable under section 775.082(1), Florida Statutes (1999). See § 794.011(2)(a), Fla. Stat. (1999). Section 775.082(1) provided that a person convicted of a capital felony “shall be punished by life imprisonment and shall be ineligible for parole.” (Emphasis supplied.) Under the life sentences Mr. Be-vans is serving, he is not eligible for parole after twenty-five years in prison or at any other time.

We find that Mr. Bevans’s amended claim of ineffective assistance of counsel sufficiently states a claim for relief. Since ineffective assistance was alleged in the original, timely motion, the trial court’s decision to allow the amendment was unquestionably proper. But, in order to prove that trial counsel was ineffective, a 3.850 movant must prove, as well as plead, both prongs of a two-part test: “First, the defendant must show that counsel’s performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

As to the first prong, deficient performance, courts have recognized misadviee about the maximum penalty a non-pleading defendant faces as a basis for postconviction relief. In Singleton v. State, 981 So.2d 1259 (Fla. 2d DCA 2008), Singleton was charged with capital sexual battery under the 1997 version of the statute and his trial counsel incorrectly advised him that he would be eligible for parole after twenty-five years. The Second District found that Singleton’s allegations in a 3.850 motion that “if his counsel had not misadvised him regarding his eligibility for parole if convicted, he would not have proceeded to trial but would have accepted the State’s plea offer of ten years in prison” made out a claim for postconviction relief. Id. at 1260. See also Ash v. State, 767 So.2d 1260, 1261 (Fla. 1st DCA 2000) (ruling facially sufficient a claim that the defendant was affirmatively misled as to the possible length of his sentence should he decline to accept a plea and proceed to trial).

As to the second prong, perhaps because of the state of the pleadings at the time of the original evidentiary hearing, the parties did not address at the hearing whether Mr. Bevans was prejudiced by counsel’s deficient performance, ie., whether he would have accepted the state’s plea offer but for counsel’s misad-vice. The state apparently concedes this point, and the order under review does not acknowledge the affirmative misadviee. In the circumstances, Mr. Bevans is entitled to a supplemental evidentiary hearing on the limited question of whether his counsel’s deficient performance prejudiced him by inducing his decision not to accept the plea offer, and to a ruling on that question.

Affirmed in part, reversed in part, and remanded with directions.

VAN NORTWICK and SWANSON, JJ„ concur.


text:
    Jarrad J. KNOX, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3736.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.
    Jarrad J. Knox, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on May 19, 2011, in Okaloosa County Circuit Court case number 2010-CF-000288-S is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

WOLF, LEWIS, and WETHERELL, JJ., concur.


text:
    Rickey Valentino WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4902.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.
    Rickey Valentino Ward, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks a writ of habeas corpus to challenge judgments and sentences entered in 2002 after he entered a plea to criminal charges in Duval County Circuit Court case number 02-8956-CF-A. The petition is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

Due to petitioner’s apparent abuse of the legal process by his repeated pro se filings attacking his conviction and sentence, this court issued an order directing petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence.”). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

As such, because petitioner’s continued and repeated attacks on his conviction and sentences have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Duval County Circuit Court case number 02-8956-CF-A. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. See Fla. R.App. P. 9.410.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Al D. PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1193.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.
    Al D. Prince, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The state concedes that the trial court should have allowed the appellant to amend his first postconviction motion, deemed facially insufficient by the trial court, rather than denying it. See Spera v. State, 971 So.2d 754 (Fla.2007). The state further concedes that the trial court should have considered the three new claims submitted in an amended motion because the trial court had not yet ruled on the original motion. See Hyacinthe v. State, 940 So.2d 1280, 1281 (Fla. 4th DCA 2006) (stating that “[A] 3.850 movant has the right to amend or supplement a motion at any time within the two-year time limit as long as the trial court has not yet ruled on the merits of the motion.”). We therefore reverse and remand with directions that the trial court allow the appellant to amend his first claim to attempt to make it facially sufficient, and also for the trial court to consider the three claims submitted in the amended motion. If the court finds any of those three claims to be facially insufficient the appellant should be afforded one opportunity to amend any of these three claims. See Spera; Nelson v. State, 977 So.2d 710 (Fla. 1st DCA 2008) (noting that “Spera does not mandate repeated opportunities” for a defendant to amend facially insufficient claims).

REVERSED and REMANDED.

PADOVANO, LEWIS, and CLARK, JJ., concur.


text:
    Carmen OLIVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6567.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.

      Sheila Callahan, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Carmen Oliver challenges her conviction for aggravated battery causing great bodily harm with a deadly weapon and raises two arguments for improper sentencing: First, that the trial court erred by reclassifying her conviction for aggravated battery causing great bodily harm with a deadly weapon from a second-degree felony to a first-degree felony; and second, that the trial court erred by imposing costs and fines which were not orally pronounced at the sentencing hearing. The state properly concedes error in regard to both sentencing issues. We affirm Oliver’s conviction without discussion, but remand for resentencing.

The trial court improperly imposed fines and costs by failing to provide the statutory authority for the discretionary fines at sentencing and by failing to provide an explanation as to what the costs represent. See Smiley v. State, 704 So.2d 191, 195 (Fla. 1st DCA 1997); Reyes v. State, 655 So.2d 111, 116 (Fla. 2d DCA 1995). On remand, the trial court may reimpose the assessments after providing Oliver notice and by following the proper procedure, which includes individually announcing each assessment and the authority for each. See Brooks v. State, 672 So.2d 828, 829 (Fla. 2d DCA 1995).

Section 784.045, Florida Statutes (2009), provides that a person may be convicted of aggravated battery, a second-degree felony, either by causing great bodily harm or by using a deadly weapon during the commission of the battery. Section 775.087(1), Florida Statutes (2009), provides for the reclassification of a second-degree felony to a first-degree felony if it was committed with the use of a weapon or firearm, unless the use of a weapon or firearm is an essential element of the crime. See Lareau v. State, 573 So.2d 813, 814-15 (Fla.1991). The trial court erred by classifying Oliver’s offense as a first-degree felony under section 775.087(1) because it is unclear from the record whether or not the use of a deadly weapon, an automobile, was an essential element of the jury’s finding of “aggravated battery causing great bodily harm with a deadly weapon.” See Cabral v. State, 944 So.2d 1026, 1027 (Fla. 1st DCA 2006); Perry v. State, 858 So.2d 1270, 1271 (Fla. 1st DCA 2003).

Oliver’s scoresheet should be corrected to reflect the proper points for a primary offense of aggravated battery, a second-degree felony, and the other score-sheet calculations should be adjusted accordingly. It appears that even after adjusting the scoresheet, Oliver’s 10-year sentence may still be within the guidelines. However, even where the sentence imposed is still within the permitted range after recalculating the scoresheet, the sentence imposed should be vacated and the cause remanded for resentencing upon a corrected scoresheet “to assure that a defendant was not sentenced and is not being confined because of a mistaken judicial impression based on an inaccurate guidelines scoresheet.” Lawrence v. State, 590 So.2d 1068, 1069-70 (Fla. 5th DCA 1991).

Accordingly, the judgment of conviction is AFFIRMED; the sentence is REVERSED, and the case is REMANDED for resentencing based upon a corrected scoresheet. Further, the trial court is instructed to assess costs and fines with proper notice to Oliver and with proper reference to statutory authority before re-sentencing.

DAVIS, PADOVANO, and ROWE, JJ., concur.


text:
    Oliver YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1221.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.
    Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Oliver Young appeals the denial of his motion for post-conviction relief. We affirm and write only to address a matter raised by Young in his supplemental brief.

While this appeal was pending, the federal district court for the Middle District of Florida issued Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011). Shelton holds that section 893.101, Florida Statutes, which provides that knowledge of the illicit nature of contraband is not an element of offense under chapter 813, is unconstitutional. Young argues that, in light of Shelton, this court should overturn his convictions for possession of cocaine with intent to sell. As this court recently explained in Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011), we have previously rejected this argument and are not inclined to reconsider it; further, Shelton is not binding on this court. Id. at 140-41.

AFFIRMED.

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


text:
    Michael Labarron BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2218.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.
    Rehearing Denied Dec. 15, 2011.
    Nancy A. Daniels, Public Defender and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was convicted by a jury of second degree murder and attempted second degree murder, after a shooting incident which resulted in one person’s death and injury to a bystander. We affirm the judgment and sentence, and write to address only one of the issues raised on appeal.

The trial court committed no error in denying Appellant’s request, at the conclusion of the sentencing hearing, to discharge his lawyer due to Appellant’s dissatisfaction with the attention he received from the lawyer between the time of the jury verdict and the date of sentencing. Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), established that if a defendant moves to discharge his court-appointed counsel before trial on the basis that the lawyer is incompetent, the court “should make a sufficient inquiry” of the defendant and counsel to determine if there is “reasonable cause to believe that the court-appointed counsel is not rendering effective assistance to the defendant.” Nelson v. State, 274 So.2d at 258.

Even if Appellant’s complaints about counsel’s lack attentiveness after the verdict could be interpreted as complaints that counsel was ineffective after the trial, Appellant’s request, immediately prior to the court’s imposing the sentence at the sentencing proceeding itself, was too late. As stated in Blanding v. State, 989 So.2d 173 (Fla. 1st DCA 2006), “[t]he Nelson inquiry has no role in past ineffectiveness of counsel.” Appellant did not complain about counsel’s performance at sentencing, where counsel reviewed the sentencing scoresheet and presented the testimony of witnesses and argued vigorously on Appellant’s behalf. As was the case in Denson v. State, 689 So.2d 1274, 1275 (Fla. 5th DCA 1997), Appellant “simply did not either timely or properly make an objection about his attorney that would warrant a Nelson inquiry.”

AFFIRMED.

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    William NORRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2142.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.
    William Norris, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on September 7, 2010, in Escambia County Circuit Court case numbers 2007-CF-002267-A and 2008-CF-001294-A is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

WOLF, LEWIS, and WETHERELL, JJ., concur.


text:
    Gregory Scott WELCH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2200.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.
    Gregory Scott Welch, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. Argument concerning the merits of the lower tribunal’s order denying petitioner’s motion to correct illegal sentence may be presented in the pending appeal in case number 1D11-5298.

WOLF, LEWIS, and WETHERELL, JJ., concur.


text:
    Fred D. TAYLOR, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5735.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2011.
    Fred D. Taylor, III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Sam GRIFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5836.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2011.
    Sam Griffin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, LEWIS, and CLARK, JJ., concur.


text:
    Michael CURTIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5584.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2011.

      Michael Curtis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

PADOVANO, LEWIS, and CLARK, JJ., concur.


text:
    Robert POOL, Petitioner, v. Amy BUNGER, Respondent.
    No. 1D10-3901.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Robert Pool, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Due to the fact that Petitioner, Robert Pool, has also filed an appeal in which he raises the same arguments raised in his petition for writ of certiorari, we dismiss the certiorari petition. See Majestic Sun Owners’ Ass’n v. Fla. Condos I Ltd. P’ship, 895 So.2d 534, 534 (Fla. 1st DCA 2005) (noting that a certiorari petition should be dismissed if there has been an insufficient showing of irreparable harm or material injury that cannot be remedied on appeal).

DISMISSED.

DAVIS, PADOVANO, and ROWE, JJ., concur.


text:
    TEACHERS INSURANCE COMPANY, Petitioner, v. David and Mary Jo LOEB, Respondents.
    No. 1D11-3047.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.

      Harry Vincent Satterwhite and Deena R. Tyler of Satterwhite, Buffalow, Compton and Tyler, L.L.C., Mobile, Alabama, for Petitioner.
    Kelly L. Kubiak of Merlin Law Group, Tampa, and Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa, for Respondents.
   PER CURIAM.

Petitioner, Teachers Insurance Company, seeks certiorari review of an order of the trial court allowing Respondents, David and Mary Jo Loeb, to discover attorney-client privileged information in this bad faith action brought pursuant to section 624.155, Florida Statutes. We deny in part and grant in part the petition for writ of certiorari.

In this action, Respondents filed a motion to compel the discovery of certain attorney-client communications. The trial court granted the motion and found that Petitioner had waived the attorney-client privilege in regard to the payment of checks to Minute Men Construction and in regard to the basis of Petitioner withdrawing an affirmative defense of fraud and misrepresentation in the underlying breach of contract action. The trial court based its findings on the deposition testimony of Petitioner’s corporate representative, David Harkin. We agree that Mr. Harkin disclosed confidential communications about the payment of checks to Minute Men Construction during his deposition and that he created a limited waiver of the attorney-client privilege as to that issue. Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504, 511 (Fla. 2d DCA 2006) (“When attorney-client communications are disclosed regarding a certain matter, there exists a limited waiver with respect to communications on the same, specific matter.”)

However, the trial court departed from the essential requirements of the law when it found a waiver of the attorney-client privilege on the issue of the decision to withdraw the fraud affirmative defense. Mr. Harkin did not disclose any specific discussions with counsel as to this issue, and his admission that the issue was discussed with counsel is insufficient to support a waiver of the privilege. Id. at 511 (“The client does not waive the privilege by testifying generally in the case or testifying as to the facts that were the subject of the consultation with his or her attorney....”) Moreover, Petitioner did not plead an affirmative defense of advice of counsel in this bad faith action and Petitioner’s counsel specifically stated on the record during Mr. Harkin’s deposition that Petitioner was not relying on such a defense. Petitioner did not waive the attorney-client privilege by merely defending against this lawsuit. Id. at 508.

The petition for certiorari in this case is granted in part, and the order is quashed to the extent that it requires the production of confidential information regarding the withdrawal of the affirmative defense. We otherwise deny the petition.

GRANTED in part and DENIED in part.

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


author: VAN NORTWICK, J.

text:
    Gregory L. LONDON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6402.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief-Criminal Appeals, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Gregory L. London appeals his conviction for aggravated battery with great bodily harm, disability or disfigurement arguing that the trial court erred in admitting into evidence the recording of a 911 call. Appellant asserts that allowing the recording into evidence deprived him of his right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We conclude that the statements made to the 911 operator were non-testimonial because the statements were made to assist the authorities in addressing an ongoing emergency. Accordingly, we affirm.

Prior to trial, the State indicated its intention to introduce the recording of a portion of the 911 call made by Ebony London, appellant’s daughter and the victim’s niece. The State had not been able to obtain service on Ms. London and she was not going to testify at trial. The State asserted that the 911 recording would not violate Crawford because the statements on the recording were not testimonial and enabled the police to meet an ongoing emergency. Defense counsel argued that, to the extent Ms. London told the 911 operator that her aunt was hurt and bleeding, her statements were not testimonial. Defense counsel contended, however, that the identification of Ms. London’s father was testimonial. The court ruled that the recording was admissible.

The victim, Marjorie Roberson, testified that on March 27, 2010, she had taken Ms. London to her home. While there, appellant rode up on his bicycle and he and Roberson engaged in a conversation about Ms. London and her boyfriend. Appellant expressed his opinion that the boyfriend was dangerous. Appellant said he was going to “mess up” Roberson if Ms. London got hurt. When Roberson responded that she was going to help his daughter, appellant hit her in the face and knocked her to the ground. She sustained multiple fractures to her face.

During Roberson’s testimony, the prosecutor played the recording of Ms. London’s 911 call, as follows:

THE 911 OPERATOR: 911, how may I help you?
MS. LONDON: My auntie is hurt bad. (Inaudible)
THE 911 OPERATOR: What’s the address, ma’am? What’s the address?
MS. LONDON: 1125 Southeast Second Avenue. Please come. It’s really bad.
THE 911 OPERATOR: Listen to me. (Inaudible)
MS. LONDON: Oh, God. (Cries)
THE 911 OPERATOR: Yes, ma’am. Calm down and give me the address. Okay. Come on, you can do it.
MS. LONDON: 1125 Southeast Second Avenue.
THE 911 OPERATOR: What’s the apartment?
MS. LONDON: It’s a house.
THE 911 OPERATOR: What’s the telephone number you’re calling from, area code first.
MS.' LONDON: 352-792-5682. My dad’s a punk ass bitch. You need to help me. My auntie is on the ground, just bleeding.
THE 911 OPERATOR: You need to tell me what happened.
MS. LONDON: My auntie was talking to him and I turned around and she was on the ground. She was talking to my dad. His name is Gregory London.
THE 911 OPERATOR: Listen, ma’am, I’m trying to understand what happened. Did somebody assault your daughter?
MS. LONDON: No, somebody assaulted my auntie. My father assaulted her, he hit her in her face and her nose is pouring blood.
THE 911 OPERATOR: Stay on the line with me, okay?
MS. LONDON: Yes, ma’am.
THE 911 OPERATOR: Your aunt was assaulted?
MS. LONDON: Yeah, she’s bleeding. The sidewalk is full of blood.
THE 911 OPERATOR: We’re getting you some help. Okay. Hang with me, okay?
MS. LONDON: Okay.
THE 911 OPERATOR: We’re going to send an ambulance to her. Okay?
MS. LONDON: Yes, ma’am.

Roberson testified that she asked her niece to make the 911 call.

After the State rested, the defense rested without witnesses. The jury returned a verdict finding appellant guilty as charged.

On appeal, as below, appellant argues that the recording was in part testimonial. After obtaining the address and telephone number and learning there was a need for medical assistance, the 911 operator asked “what happened,” which elicited Ms. London’s identification of appellant. Appellant asserts that this question turned the exchange into an interrogation for the purpose of gathering evidence, and the responses to the 911 operator thereafter were testimonial. We do not agree.

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions the accused shall enjoy the right ... to be confronted with witnesses against him.” U.S. Const., Amend. VI. In Crawford, 541 U.S. at 68, 124 S.Ct. 1354, the Supreme Court held the admission of a hearsay statement made by a declarant not available to testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. See also State v. Lopez, 974 So.2d 340, 345 (Fla.2008). There is no question here that appellant had no opportunity to cross-examine Ms. London because she was unavailable to testify at trial. Accordingly, we must determine whether the content of the 911 tape is “testimonial” and thus subject to the requirements of the Sixth Amendment Confrontation Clause.

The United States Supreme Court explained the distinction between testimonial and non-testimony statements in Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), as follows:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

In the context of a 911 call, the Davis court found it significant that “the nature of what was asked and answered ..., again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford ) what had happened in the past.” Id. at 827, 126 S.Ct. 2266 (emphasis theirs). Further, under Davis, a 911 operator’s questioning about the identity of an assailant does not, by itself, make the answer testimonial. As Davis explained, resolving the present emergency may require the operator “to establish the identity of the assailant, so that the dispatched officers might know whether they are encountering a violent felon.” Id. (citation omitted). Certainly, a conversation that begins as an interrogation to establish the need for emergency assistance can evolve into testimonial statements once the operator has obtained the information necessary to resolve the emergency. Id. at 828-29.

The 911 recording here was clearly non-testimonial. All of Ms. London’s statements on the recording dealt with the ongoing emergency and allowed the 911 operator to deal appropriately with the situation. Ms. London’s identification of appellant as the assailant was in response to a question asked for the purpose of providing assistance to the emergency. At the time of the statement, the operator could not be certain what to inform emergency responders, aside from the fact that a woman was suffering blood loss. The circumstances could have been anything from a nosebleed due to a blow to the face, to a shooting, to a bad fall. All of these occurrences would have required different treatments and priorities for the emergency responders. The operator was not asking questions to build evidence for a criminal case. At the time of the question, there was no reason for the operator to even suspect that a criminal action had taken place. See Williams v. State, 967 So.2d 735, 747 n. 11 (Fla.2007) (observing that the victim “was seeking emergency medical assistance for her life-threatening injuries” and therefore her responses were not testimonial); and U.S. v. Proctor, 505 F.3d 366, 371 (5th Cir.2007) (Recording of 911 call was non-testimonial because the “statements enabled the police to deal appropriately with the situation that was unfolding... .”).

AFFIRMED.

BENTON, C.J., and SWANSON, J., concur.


text:
    SPEEGLE CONSTRUCTION, COMPANY, INC., Appellant, v. DISTRICT BOARD OF TRUSTEES OF NORTHWEST FLORIDA STATE COLLEGE, a Florida public college, Appellee.
    No. 1D10-5779.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    John Beranek of Ausley & McMullen, P.A., Tallahassee; Eugene J. Heady of Smith, Currie & Hancock LLP, Atlanta, for Appellant.
    Timothy J. McDermott and Ryan R. Fuller of Akerman Senterfitt, Jacksonville; Katherine E. Giddings and Kristen M. Fiore of Akerman Senterfitt, Tallahassee; Joseph D. Lorenz of Poché & Lorenz, LLP, Shalimar, for Appellee.
   ON MOTION FOR REHEARING AND CORRECTED OPINION

PER CURIAM.

This cause is before us on Appellee’s motion for rehearing and corrected opinion. We deny the motion for rehearing, but grant the motion for corrected opinion and, accordingly, withdraw our former opinion of October 6, 2011, and substitute in its place this corrected opinion.

Appellant appeals the trial court’s order granting Appellee’s petition to stay arbitration, arguing that the trial court erred by finding that the construction contract at issue did not include any provision for arbitration. For the reasons explained below, we agree and reverse.

The relevant facts are not in dispute. The parties entered into a contract consisting of a number of different documents (collectively, Contract) whereby Appellant was to build a facility for Appellee. A dispute arose and, although it appears from the record that Appellee initially agreed that mediation and arbitration were appropriate, it eventually receded from that position and filed a petition to stay arbitration pursuant to section 682.03(4), Florida Statutes. Appellee contends that the Contract does not include any arbitration provisions:

The Contract documents include a document entitled “AIA Document A201-1997 General Conditions of the Contract for Construction” (1997 General Conditions), as well as a document entitled “Group A Plans and Specifications” (Group A document). The 1997 General Conditions document included provisions for dispute resolution that required mediation, to be followed by arbitration should mediation fail to resolve the dispute. The Group A document, which was prepared by or on behalf of Appellee, included a provision entitled “Bidding & Contract Requirements — Supplementary General Conditions” which provided:

SCOPE: The following supplements modify, change, delete or add to the ‘GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION,’ AIA Document A201, 1987 Edition. Those portions of this document, which remain unaltered by these supplements, shall remain in effect as published.”

(Emphasis added.) These Supplementary General Conditions deleted the various arbitration provisions which were in the 1987 version of the General Conditions and referenced to in the Scope.

At the hearing in question, the parties inexplicably agreed that no evidentiary hearing was necessary and that the court could rely on the four corners of the Contract in reaching its determination. The court ultimately entered an order summarily granting Appellee’s petition to stay arbitration, finding, “The contract in question ... is clear and unambiguous; and ... [t]here exists no agreement or provision for arbitration between the parties.”

Our review is de novo. See Fla. Title Loans, Inc. v. Christie, 770 So.2d 750 (Fla. 1st DCA 2000) (interpreting arbitration provision in a contract will be reviewed de novo by the appellate court).

In City of Homestead v. Johnson, 760 So.2d 80, 83 (Fla.2000), the supreme court reiterated that “any ambiguity in the terms [of a contract] should be resolved in favor of upholding the purpose of the agreement and giving effect to every term in the agreement.” (Emphasis added.) Here, although it is entirely possible that Appellee intended to avoid all prospects of contractually-mandated arbitration, at the parties’ insistence, the trial court considered only the four corners of the document when interpreting it; consequently, any inquiry into Appellee’s intent beyond those confines is unnecessary. The plain language of the Contract is that all references to the arbitration provisions contained in the 1987 version of the General Conditions were deleted, whereas those included in the 1997 version remained in effect, because there were no provisions anywhere in the Contract that expressly modified them. Applying the principle set forth in Johnson, the unaltered terms of the 1997 edition must be given effect. “[W]e rely upon the rule of construction requiring courts to read provisions of a contract harmoniously in order to give effect to all portions thereof.” 760 So.2d at 84.

Conclusion

For the foregoing reasons, the trial court erred by finding the Contract did not include any requirement that the parties submit to arbitration to resolve disputes arising under the Contract. Thus, the trial court should have denied Appellee’s petition to stay arbitration.

REVERSED and REMANDED for proceedings consistent with this opinion.

THOMAS, WETHERELL, and SWANSON, JJ., concur.


text:
    Robert POOL, Appellant, v. Amy BUNGER, Appellee.
    No. 1D10-5040.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Robert Pool, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant, Robert Pool, seeks review of the trial court’s Order on Petition[ ] for Modification of Parenting Plan and Petitioner’s Motion to Set Hearing on Petition for Modification of Parenting Plan. We affirm the order without prejudice to Appellant’s right to raise his claim that service of process was invalid in a motion filed pursuant to Florida Rule of Civil Procedure 1.540(b)(4). See Wolfe v. Stevens, 965 So.2d 1257, 1259 (Fla. 2d DCA 2007) (noting that a judgment entered without valid service is void for lack of personal jurisdiction and can be collaterally attacked at any time).

AFFIRMED.

DAVIS, PADOVANO, and ROWE, JJ., concur.


text:
    Kimberlyann V. WOJICK, Appellant, v. STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES and State of Florida Division of Risk Management, Appellees.
    No. 1D11-0918.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.

      Bill McCabe, Longwood, and Scott R. Marshall, Clearwater, for Appellant.
    James M. Hess, Maitland, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) compelling her to attend a functional medical evaluation (FME). We reverse the order. Without deciding whether an FME is identical to an independent medical examination (IME), we hold the JCC lacked jurisdiction to rule on the matter here, given there is no pending claim for benefits, no statutory authority for an FME per se within chapter 440, Florida Statutes, and insufficient proof that the FME in this case was “medically necessary” as that phrase is used in section 440.1S(2)(a), Florida Statutes. See Lehoullier v. Gevity/Fire Equip. Servs., 48 So.3d 834 (Fla. 1st DCA 2010) (holding the JCC lacked authorization to compel an IME where the claimant had not requested benefits or medical treatment that the employer declined to provide); McArthur v. Mental Health Care Inc., 35 So.3d 105, 107 (Fla. 1st DCA 2010) (holding the JCC has only those powers expressly provided by statute and, conversely, has no jurisdiction or authority beyond that specifically conferred by statute).

Although the parties extensively discussed Interior Custom Concepts v. Slovak, 969 So.2d 1095 (Fla. 1st DCA 2007), that case is inapposite as its holding addresses an order on attorney’s fees; to the extent it notes the JCC found she could not compel an FME, that ruling, entered in a prior order, was not before the court. We further note, without addressing the constitutional argument that the order to compel violates Claimant’s right to privacy, that a claimant always has the right to reject medical assistance, although the consequences may include forfeiture of certain workers’ compensation benefits. See, e.g., § 440.13(5)(d), Fla. Stat. (2006) (stating that an employee who fails to appear for an Employer/Carrier-ordered IME without sufficient notice or good cause is barred from recovering compensation for the period during which she refuses to submit to IME).

REVERSED.

DAVIS, PADOVANO, and CLARK, JJ., concur.


text:
    V.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2621.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant correctly asserts, and the state properly concedes, the trial court erred in ordering restitution based upon hearsay evidence that was improperly admitted at the restitution hearing over appellant’s objection. Butler v. State, 970 So.2d 919 (Fla. 1st DCA 2007); Forlano v. State, 964 So.2d 246 (Fla. 1st DCA 2007); I.M. v. State, 958 So.2d 1014 (Fla. 1st DCA 2007); Herrington v. State, 828 So.2d 286 (Fla. 1st DCA 2002). Accordingly, we reverse the trial court’s restitution determination and remand for a new restitution hearing. Forlano, 964 So.2d at 246; Herrington, 823 So.2d at 286-87.

REVERSED and REMANDED.

WETHERELL, MARSTILLER, and SWANSON, JJ„ concur.


text:
    Terry WEAVER, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-3457.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Terry Weaver, pro se, Petitioner.
    Jennifer Parker, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

This court in Weaver v. McNeil, 42 So.3d 805 (Fla. 1st DCA 2010), affirmed in part an order of the circuit court but reversed and remanded in part for further proceedings. Weaver petitions this court for a writ of mandamus to compel the circuit court to comply with mandate in case number 1D09-4174. Having considered the response of the Department of Corrections to the instant petition and petitioner’s reply, we find that petitioner is entitled to relief. The circuit court is directed to promptly reissue its supplemental order to show cause in its case number 2008-CA-003057, calling for a response from the Department which addresses the issues remanded to the circuit court and making provision for a reply by the petitioner to that response. When the matter is ready for the circuit court’s disposition, a final order on remand shall be promptly issued.

PETITION GRANTED.

HAWKES, MARSTILLER, and RAY, JJ., concur.


text:
    Tony B. ROBINSON, Sr., Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D11-4081.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Tony B. Robinson, Sr., pro se, Petitioner.

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

Petitioner is granted a belated appeal of the May 10, 2011, order which denied a motion to correct illegal sentence in Gadsden County Circuit Court case number 91-677-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Allen MELTON, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4428.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Allen Melton, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the March 21, 2011, order, which denied a motion for postconviction relief in Nassau County Circuit Court case number 10-549-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

DAVIS, VAN NORTWICK, THOMAS, JJ., concur.


text:
    Clifford William CUPP, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4482.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    James Owens, Public Defender, and Christopher Crawford, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the July 21, 2011, judgment and sentence in Escambia County Circuit Court case number 2011-CF-000356-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

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


author: PER curiam:.

text:
    IZAAK WALTON INVESTORS, LLC., Sherwood Partners, LLC, Gulf To Bay Yankeetown, LLC, Rdg Partners, L.P., James Sherwood, Robert E. Dowdell, Dennis Chookaszian, Karen Chookaszian, Michael J. Spittler, Michael A. Partiarca, Peter Spittler, and Michael Chookaszian, Appellants, v. BRANCH BANKING AND TRUST COMPANY, a North Carolina banking institution, successor in interest to Colonial Bank by asset acquisition from the FDIC as Receiver for Colonial Bank, Appellee.
    No. 1D11-4839.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Kimberly L. Sharpe of Johnson, Pope, Bokor Ruppel & Burns, LLP, Clearwater, for Appellants.
    John A. Anthony, and Allison C. Dou-cette of Anthony & Partners, LLC, Tampa, for Appellee.
   PER curiam:.

DISMISSED. See Bennett’s Leasing, Inc. v. First Street Mortgage Corp., 870 So.2d 93 (Fla. 1st DCA 2003) (dismissing appeal and holding a motion to vacate directed at a nonfinal order is not a motion filed under rule 1.540, Florida Rules of Civil Procedure). All pending motions are denied as moot.

HAWKES, MARSTILLER, and RAY, JJ., concur.


text:
    Donna M. McGRATH (Puckett), Appellant, v. Daniel J. PUCKETT, Appellee.
    No. 1D11-5143.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Donna M. McGrath, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

The appellant seeks review of the denial of her petition for relocation that was decided in a nonfinal order of dissolution of marriage. The order denied the petition upon determining the best interest of the minor child pursuant to an analysis of the factors set forth in section 61.13001, Florida Statutes. However, because the order does not dispose of a claim that is separate and distinct from the dissolution action, the order is not appealable as a partial final judgment pursuant to Florida Rule of Appellate Procedure 9.110(k). Jensen v. Whetstine, 985 So.2d 1218, 1220 (Fla. 1st DCA 2008); Irvine v. T. Southwood 1295, Inc., 948 So.2d 981 (Fla. 1st DCA 2007). Accordingly, the appeal is DISMISSED. Fla. R.App. P. 9.110((). This dismissal is without prejudice to the appellant’s right to file a timely appeal when a final order has been rendered.

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


text:
    K.G., Mother of N.G., minor child, Petitioner, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 1D11-5145.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Hilda Griffis, Office of Regional Conflict Counsel, Jacksonville, for Petitioner.
    Ward L. Metzger, Children’s Legal Services, Jacksonville, for Respondent.
    Kelley Schaeffer, Guardian Ad Litem Program, Tavares.
   PER CURIAM.

DISMISSED as moot.

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


text:
    A.G., Father of N.G., minor child, Petitioner, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 1D11-5154.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Lara A. Mason, Jacksonville, for Petitioner.
    Ward L. Metzger, Children’s Legal Services, Jacksonville, for Respondent.
    Kelley Schaeffer, Guardian Ad Litem Program, Tavares.
   PER CURIAM.

DISMISSED as moot.

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


text:
    Michelle RICH, Petitioner, v. PINELLAS COUNTY SCHOOL BOARD and Johns Eastern Company, Respondents.
    No. 1D11-4249.
    District Court of Appeal of Florida, First District.
    Nov. 28, 2011.
    Nancy L. Cavey of the Law Office of Cavey & Barrett, St. Petersburg, for Petitioner.
    Debra M. Metzler, Tampa, for Respondents.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.020(h), 9.100(c); Burns v. State, 906 So.2d 351 (Fla. 3d DCA 2005). See also Owens v. State, 579 So.2d 311, 312-13 (Fla. 1st DCA 1991); accord, e.g., State v. Johnson, 892 So.2d 563, 564 (Fla. 1st DCA 2005).

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


author: WELLS, Chief Judge.

text:
    Charles L. JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2136.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.
    Charles L. Johnson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD, and EMAS, JJ.
   WELLS, Chief Judge.

Charles L. Johnson appeals an order denying his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a) as successive. On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record before us fails to make the required showing, we reverse the order on appeal and remand for an eviden-tiary hearing, or for the attachment of record excerpts conclusively showing that the appellant is not entitled to relief. See Fla. R.App. P. 9.141(b)(2)(D).

Moreover, because there is no indication in the record that the trial court entered a show cause order before barring Johnson from filing further pro se post-conviction motions, we reverse that aspect of the order under review as well. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (finding that the trial court must first provide the defendant "with notice and an opportunity to respond before prohibiting further pro se attacks on a conviction and sentence as a sanction for prior repeated and frivolous motions); Fitzgerald v. State, 18 So.3d 1145, 1145 (Fla. 3d DCA 2009) (reversing an order prohibiting the defendant from filing further pro se pleadings where there was no indication in the record that the trial court had first entered a show cause order).

Reversed and remanded for further proceedings.


text:
    Larry LEATHERWOOD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2689.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.
    Rehearing Denied Dec. 28, 2011.
    Larry Leatherwood, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and CORTIÑAS and EMAS, JJ.
   WELLS, Chief Judge.

Larry Leatherwood appeals an order summarily denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 without an evi-dentiary hearing. On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record before us fails to make the required showing with respect to Leatherwood’s two claims based on the alleged recantation of a trial witness’ testimony (newly discovered evidence of witness recantation and presentation of false testimony), we reverse the order on appeal for the attachment of record excerpts conclusively showing that the appellant is not entitled to relief, or for an evidentiary hearing. See Fla. R.App. P. 9.141(b)(2)(D). We affirm the remaining two claims raised in the post-conviction motion without discussion, finding them to be without merit.

Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.

      . Although the order of denial refers to an affidavit of the trial witness denying any such recantation of testimony, the affidavit was not provided with the order in the record on appeal.


author: SUAREZ, J.

text:
    Erik RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1106.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.
    Erik Rodriguez, in proper person.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   SUAREZ, J.

Erik Rodriguez seeks to reverse his 2009 convictions and sentences, imposed pursuant to plea, for armed illegal drug trafficking and possession of a firearm by a convicted felon. We dismiss the appeal without prejudice for the defendant to file a petition in the lower court pursuant to Florida Rule of Criminal Procedure 3.800, specifically addressing the minimum mandatory sentencing issue raised in his initial brief.

Dismissed, without prejudice.


text:
    Millard SEABROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3363.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.
    Millard Seabrooks, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

Almost eight years after a jury convicted appellant for carjacking, he now alleges that at some unspecified time he met another prisoner who happened to be in the area where the offense occurred in January 2002 and who remembered the incident. The prisoner witness alleges that the victim gave appellant her car and assumes that she did so in order for appellant to go into a dangerous neighborhood to buy her drugs.

Appellant filed this, his third Rule 3.850 motion, alleging newly discovered evidence and attaching an affidavit from the prisoner. Fla. R.Crim. P. 3.850(b)(1). The State’s response argued that the motion should be denied without prejudice because it did not allege when appellant learned the information and failed to establish that, with due diligence, the claim could not have been discovered and raised in a timely motion.

The court denied the motion pursuant to the State’s response. Appellant moved for rehearing arguing that he should be granted an opportunity to amend pursuant to Spera v. State, 971 So.2d 754 (Fla.2007). The court denied rehearing. On appeal, appellant argues that the court erred in denying his motion without providing an opportunity to amend.

We conclude that the trial court denied the motion pursuant to the State’s response and without prejudice for appellant to refíle a sufficient motion. Within sixty (60) days of this opinion becoming final, appellant may file an amended motion in the circuit court raising this claim. Post-conviction movants and witnesses are again cautioned that bringing false information before the court may be punished by contempt proceedings, a perjury prosecution, or prison disciplinary action. Oquendo v. State, 2 So.3d 1001, 1006-07 (Fla. 4th DCA 2008).

Affirmed without prejudice to refile.

GROSS, DAMOORGIAN and CONNER, JJ., concur.


author: GROSS, J.

text:
    Willie J. COVINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2410.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

In an incident that occurred on March 13, 2009, Willie Covington was charged with grand theft arising from shoplifting of groceries from Publix. There was a surveillance video of the theft, but it was not introduced at trial because Publix recorded over it in May, 2009. During closing argument, Covington contended that the absence of the video was a lack of evidence creating a reasonable doubt. During the state’s closing argument, the prosecutor responded to this contention by stating:

And then a huge part about this video. Gosh, video that existed, it was a surveillance, State didn’t show it to you. Well, you know what? They could have got it too. They could have shown it to you. They had just as much of an opportunity to go and ask for that video as we did.

The prosecutor’s closing argument was improper for two reasons. First, it was factually inaccurate. Covington was arrested on March 13, 2009 and sought discovery in March. The state filed an information on April 7 and did not disclose the existence of any surveillance evidence until September, 2009. Thus, it does not appear that appellant was aware of the surveillance video during the 60 day period when it might have been obtained from Publix. Second, the argument improperly shifted the burden of proof to Covington. “[T]he state cannot comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe the defendant carried the burden of introducing evidence.” Hayes v. State, 660 So.2d 257, 265 (Fla.1995) (quoting Jackson v. State, 575 So.2d 181, 188 (Fla.1991)). The prosecutor compounded the error by implying that video would have corroborad ed the state’s case had it been shown. See Williams v. State, 548 So.2d 898, 899-900 (Fla. 4th DCA 1989).

We have reviewed the entire record and do not find the error to be harmless. On another matter, because the matter was not preserved by a specific objection, we do not reach the best evidence rule issue. See §§ 90.951-90.954, Fla. Stat. (2009).

Reversed and remanded for a new trial.

POLEN and CONNER, JJ., concur.

      . The narrow exception to the general rule, where the defendant has asserted a defense such as alibi or self defense, does not apply in this case. See Jackson v. State, 575 So.2d 181, 188 (Fla.1991); Lawyer v. State, 627 So.2d 564, 567 (Fla. 4th DCA 1993).


text:
    Rudy SUNDERLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2513.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Johnson v. State, 974 So.2d 1152 (Fla. 3d DCA 2008).

STEVENSON, HAZOURI and LEVINE, JJ., concur.


text:
    Billy COTTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2102.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.
    Billy Cotton, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Brooks v. State, 969 So.2d 238, 243 (Fla.2007) (“[F]or motions filed under rule 3.800(a), we hold that if the trial court could have imposed the same sentence using a correct scoresheet, any error was harmless.”).


text:
    Timothy M. STEVENS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4402.
    District Court of Appeal of Florida, First District.
    Nov. 28, 2011.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 45 So.3d 14 (Fla. 1st DCA 2010); Johnson v. State, 37 So.3d 975 (Fla. 1st DCA 2010); Harris v. State, 932 So.2d 551 (Fla. 1st DCA 2006); see also Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., DAVIS and MARSTILLER, JJ., concur.


text:
    Eric Oneal SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2360.
    District Court of Appeal of Florida, First District.
    Nov. 29, 2011.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

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