author: SHEPHERD, J.

text:
    Zackary EDGE, Appellant, v. Geraldine EDGE, Appellee.
    Nos. 3D09-865, 3D10-3348.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2011.
    Robert A. Ader and Elizabeth B. Hitt, for appellant.
    Orshan & Fajardo and Eliot R. Weitz-man; Elser & Foster-Morales and Marsha B. Elser, Miami; Myron M. Gold; Greene Smith and Cynthia L. Greene, Miami, for appellee.
    Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
   SHEPHERD, J.

This is an appeal from a post-de-cretal final money judgment, awarding the former wife reimbursement for federal income taxes paid by her on seven years of post-dissolution alimony payments, and a separate order granting Roberta Fox’s (one of former wife’s counsels) objection to the referral to a magistrate of the former husband’s request for an award of attorney fees and costs pursuant to section 57.105 of the Florida Statutes (2006), against both her and her client for the filing and prosecution of the petition, which has brought us here.

Although we recognize the trial court granted the former wife’s counsel’s objection to the referral of the former husband’s request for section 57.105 sanctions nearly two years after a predecessor judge referred the request to the general magistrate, with the consent of all parties, including the former wife’s then counsel of record, Roberta Fox, we, nevertheless, are compelled to dismiss the appeal sought to be taken from this order for lack of jurisdiction. See Grafman v. Grafman, 488 So.2d 115, 118 (Fla.1986); Peebles v. Sheridan Healthcare, Inc., 817 So.2d 1002, 1002 (Fla. 4th DCA 2002); see also Little Arch Creek Props., Inc. v. Med. Facilities, 698 So.2d 926, 927 (Fla. 3d DCA 1997). Nei ther the possibility (or even likelihood) that a party will incur additional attorney fees and costs as a consequence of an erroneous non-final order, nor that the court will waste limited resources by proceeding, is a sufficient ground to confer jurisdiction on an appellate court to review an otherwise non-appealable, non-final order.

At the same time, we reverse the final judgment awarding the former wife reimbursement for federal income taxes paid by her on seven years of post-dissolution alimony payments. The final judgment followed an order in which the trial court granted the former wife’s exceptions to the report and recommendation of a general magistrate, which recommended denial of reimbursement based on the doctrine of laches and the doctrine of unclean hands. As the former husband expressly made clear both in the response filed to the former wife’s exceptions and at the hearing on the exceptions, the former wife, in either instance, did not except to the magistrate’s recommended denial on the basis of the doctrine of unclean hands. The doctrine of unclean hands is a separate and distinct ground for denying relief from the doctrine of laches. Compare Epstein v. Epstein, 915 So.2d 1272,1275 (Fla. 4th DCA 2005) (“He who has acted in bad faith, resorted to trickery and deception, or been guilty of fraud, injustice, or unfairness will appeal in vain to a court of conscience.” (quoting Weegham v. Killefer, 215 F. 168, 172 (D.Ct.Mich.1914))) with Garcia v. Guerra, 738 So.2d 459, 461 (Fla. 3d DCA 1999) (“Laches is effective to bar enforcement when there has been a substantial and inexcusable delay in enforcing the claim to arrears of support and the delay has prejudiced the defendant or led him to change his position to such an extent that enforcement of the decree would be inequitable or unjust.” (quoting Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 18.3, at 394 (2d ed. 1987))). Florida Family Law Rule of Procedure 12.490(f) requires a party to file all exceptions to a report and recommendation of a magistrate within ten days from the time it is served. Findings for which a timely exception has not been lodged are deemed waived. See Keech v. Yousef, 815 So.2d 718, 719 (Fla. 5th DCA 2002) (“A legal argument must be raised initially in the trial court by the presentation of a specific motion or objection at an appropriate state of the proceedings.”). Although we are inclined to find that the magistrate in this case correctly recommended denial of relief to the former wife on the ground of unclean hands, we reverse the final money judgment in favor of the former wife — which reimbursed her for federal income taxes paid — on the procedural ground that the trial court erred by failing to adopt the report and recommendation of the general magistrate, because the former wife failed to except to the alternate unclean hands ground on which the general magistrate also had recommended denial of relief.

Accordingly, we reverse the final judgment awarding the former wife reimbursement for federal income taxes and remand with directions to enter final judgment for the former husband on the former wife’s petition. We dismiss the appeal taken from the order granting the former wife’s counsel’s objection to the referral of the former husband’s request for relief pursuant to section 57.105 of the Florida Statutes to a general magistrate.

Reversed in part; dismissed in part.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Darryl L. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1337.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2011.
    Darryl L. Jones, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Darryl Jones appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, and argues that the trial court erred by not appointing counsel to represent him at the evidentiary hearing. We agree, reverse the order, and remand with directions to appoint counsel. See Williams v. State, 472 So.2d 738, 740 (Fla.1985) (holding, based on lack of 3.850 movant’s sophistication which made “clear that he was unable to meet the technical requirements of going forward with the burden of proving his initial allegations, irrespective of the merits of those allegations,” that any doubt regarding the need for the assistance of counsel should have been resolved in his favor); Woodward v. State, 992 So.2d 391, 393 (Fla. 1st DCA 2008) (noting that “[wjithout medical records or expert testimony to support his claim that trial counsel should have pursued a defense based on appellant’s intoxicant-induced insanity at the time of his alleged offenses, appellant could not demonstrate any entitlement to relief on this issue during the evidentiary hearing” and holding that because the record suggested “appellant’s inability to produce any of these witnesses without the assistance of counsel, the trial court abused its discretion in denying appellant appointed counsel” (footnote omitted)); Henderson v. State, 919 So.2d 652, 655 (Fla. 1st DCA 2006) (noting that a “lack of understanding on how to go forward with the burden of proving” a claim raised in the 8.850 motion demonstrated “the complexity of the rules of evidence involved and the need for legal research”); Rogers v. State, 702 So.2d 607, 608-09 (Fla. 1st DCA 1997) (reversing the trial court’s denial of the appellant’s motion for the appointment of counsel where a prison law clerk prepared the motion seeking postconviction relief, the appellant had only a ninth-grade education, and the trial court repeatedly had to explain the rules for examination of witnesses and admonish the appellant not to offer his own testimony while he was questioning witnesses); Witherspoon v. State, 634 So.2d 208, 209 (Fla. 4th DGA 1994) (reversing the trial court’s denial of a motion for postconviction relief and remanding with instructions to appoint counsel to assist the appellant at a new evidentiary hearing where there was no information as to the appellant’s education or ability to represent himself in an adversarial proceeding, and the appellant failed to present any expert testimony).

We reverse and remand this cause to the trial court for a new evidentiary hearing after counsel has been appointed.

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


author: SILBERMAN, Chief Judge.

text:
    Sean Thomas GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-995.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2011.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Sean Thomas Green seeks review of his convictions for various charges in five cases for dealing in stolen property, providing false information on a pawnbroker form, burglary of an unoccupied conveyance, burglary of an unoccupied dwelling, burglary of an unoccupied structure, and grand theft third degree. Green entered guilty pleas and reserved the right to appeal the denial of his motion to suppress his confession in four out of five of those cases. We reverse in those four cases because the police violated Green’s Miranda rights by attempting to persuade him to speak with them after Green unequivocally requested counsel.

After Green was developed as a suspect in the crimes, he was brought to the police station to be interviewed by Detectives Freeman, Williford, and Ashley. Detective Freeman began the interview by identifying himself and telling Green why he was there. He established Green’s education level, his general mental status, and that he was not under the influence of any substance. The detective then produced a consent form and told Green, “[W]e like to go through this first and then if you agree, just initial in this box and sign by this one right here.” Green read the form and asked, “What do you want me to do, sign it?” The following exchange then occurred:

Detective Freeman: If you agree to be the interviewee, just initial right here and sign right here.
Green: I agree to be an interviewee but it says if I want to invoke a right to an attorney—
Detective Freeman: At any time—
Green: —and like—
Detective Freeman: —during questioning you can do so.
Green: I’d like to have my attorney questioning — my attorney present during questioning. I’d like to have an attorney present during questioning.
Detective Freeman: Okay, so you don’t wanna talk to us right now? ‘Cause we—we can’t produce an attorney right this minute.
Green: Uh, why can’t—
Detective Freeman: Okay and we have—well, it just—it doesn’t work that way.
Green: Okay.
Detective Freeman: You know. We’ll have to do this at a later date if that’s your choice. The thing is, we, we have a lotta things we’d like to talk with you about.
Green: Okay.
[Detective] Williford: Sean, it’s up to you. What do you wanna do?
Green: Uh, we can talk.

Green then confessed to the charged crimes without the benefit of an attorney.

Green argues that his confession was obtained in violation of his Miranda rights because he did not freely and voluntarily waive those rights. Green claims that the detectives were required to honor his unequivocal request for counsel by ending the interrogation without further comment. The State argues that Green’s request for counsel was equivocal and, even if it was unequivocal, the detectives were permitted to clarify his request for counsel.

Under Miranda, when a suspect who is subject to a custodial interrogation makes an unequivocal request indicating that he wishes to exercise his right to counsel, the interrogation must cease. 384 U.S. at 474, 86 S.Ct. 1602; see also Youngblood v. State, 9 So.Sd 717, 719 (Fla. 2d DCA 2009). However, if ‘“a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel,’ ” the officer may continue questioning and has no obligation to clarify the equivocal statement. Collins v. State, 4 So.3d 1249, 1250-51 (Fla. 4th DCA 2009) (quoting Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)).

Here, it is undisputed that Green was subjected to a custodial interrogation. Moreover, Green’s statement that he would “like to have an attorney present during questioning” is an unequivocal invocation of the right to counsel. See Moss v. State, 60 So.3d 540, 543 (Fla. 4th DCA 2011) (holding that the defendant unequivocally invoked his right to counsel when he stated, “I want to talk to a lawyer.”).

After Green made this unequivocal request for counsel, the detectives should have ceased interrogation until counsel was provided unless Green himself initiated further communication with the detectives. See Stein v. State, 632 So.2d 1361, 1364 (Fla.1994). The term “interrogation” is not limited to direct questioning but also includes any words or actions by law enforcement officers “that the police should know are reasonábly likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (footnotes omitted); see also Cuervo v. State, 967 So.2d 155, 164 (Fla.2007).

The record reflects that, instead of ceasing interrogation until counsel was provided, Detective Freeman continued with the interrogation and undermined Green’s request for counsel by stating that there was a lot to talk about, that counsel could not be provided “right this minute,” and that “it doesn’t work that way.” See Moss, 60 So.3d at 544 (“The detective subtly undermined Moss’s request for a lawyer by referring to the lack of readily available attorneys and hinting that Moss had the choice of speaking with him or going to jail.”). Green did not pursue communication with the detectives after invoking his right to counsel. Rather, the detectives simply continued their efforts to get Green to answer their questions.

The State argues that the detectives’ actions were proper under Serrano v. State, 15 So.3d 629, 635 (Fla. 1st DCA 2009), review denied, 26 So.3d 582 (Fla. 2010), cert. denied, — U.S. -, 130 S.Ct. 3391, 177 L.Ed.2d 310 (2010), in which the First District stated that law enforcement officers may ask “harmless questions to clarify a suspect’s assertion of the right to counsel.” We note that at least one court has suggested that Serrano contravenes Miranda’s holding that the police must cease questioning altogether when a defendant makes an unequivocal request for counsel during a custodial interrogation. See Black v. State, 59 So.3d 340, 346 n. 6 (Fla. 4th DCA 2011). Regardless, Serrano is distinguishable because the detectives’ comments to Green were not harmless questions made for the purpose of clarifying his request for counsel but were designed to get him to change his mind about obtaining counsel.

Based on the detectives’ failure to cease questioning when Green unequivocally requested counsel, Green’s confession was illegally obtained. Thus, the trial court erred in denying Green’s motion to suppress. We therefore reverse Green’s judgments and sentences in case nos. 09-CF-15453, 09-CF-15586, 09-CF-15588, and 09-CF-15589. We affirm Green’s judgment and sentence in case no. 09-CF-15587 without prejudice to any right he might have to challenge the voluntariness of his plea by filing a motion to withdraw plea.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . At the change-of-plea hearing, Green attempted to reserve his right to appeal the denial of his motion to suppress in all five of his cases. However, the trial court did not make a finding regarding whether the motion was dispositive. After he filed his notice of appeal, Green recognized this omission and asked this court to relinquish jurisdiction for the trial court to make such a finding. This court granted the request. The parties then stipulated that the motion to suppress was dispositive in all cases except case no. 09-CF-15587, and the trial court issued an order in conformance with this stipulation. Green filed his initial brief challenging the propriety of the denial of the motion to suppress as to case nos. 09-CF-15453, 09-CF-15586, 09-CF-15588, and 09-CF-15589. He also requests that he be allowed to withdraw his plea in case no. 09-CF-15587 on remand.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Michael Dwayne ENIX, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4659.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2011.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Michael Dwayne Enix appeals his convictions and sentences for attempted kidnapping, possession of cocaine, and possession of paraphernalia. Because he correctly contends that the trial court should have granted his motion for judgment of acquittal on the attempted kidnapping charge, we reverse his conviction and sentence as to that crime.

Based on events occurring on or between July 4 and July 11, 2005, the State charged Enix with attempted kidnapping, solicitation to commit kidnapping, possession of cocaine, and possession of drug paraphernalia. Enix was acquitted of solicitation to commit kidnapping, and the only conviction at issue is the attempted kidnapping.

At trial, the State presented evidence that George McCann, a confidential informant who had been involved in a drug trafficking organization, contacted law enforcement about Enix. McCann testified that he encountered Enix on July 4, 2005, and that he had known Enix since childhood. McCann claimed that Enix asked McCann to get involved in a plan to get “money from Publix.” Enix told McCann that there was a lot of money in the safe at Publix. Enix’s plan was to kidnap the manager’s wife and hold her for ransom. He believed that he could get a couple hundred thousand dollars from this plan. Initially, McCann did not think Enix was serious, but McCann spoke to Enix on the phone the next day, and Enix said he wanted to go through with the plan and wanted to meet with McCann.

McCann contacted a law enforcement officer who put McCann in touch with Detective Harrison of the sheriffs office in Pasco County. McCann consented to having his conversations with Enix recorded. Detective Harrison provided McCann with a recording device, and McCann then went to see Enix.

Driving his van that contained the recording device, McCann picked up Enix and they went to the Publix in question. Enix wanted to get the manager’s name, so he went inside, made a purchase, and found the manager’s picture and name on the wall. Enix returned to the van and told McCann that the manager’s name was Mr. Pizzo. Enix then wanted to be taken home so that he could find Pizzo’s address in the phone book or on the computer.

In a later phone call, Enix said he had obtained Pizzo’s address and wanted to “scope out” the address. McCann informed Detective Harrison that Enix had an address, and Detective Harrison provided McCann with a different address to give Enix. Detective Harrison did not want the two men at the Pizzos’ actual home. McCann met with Enix again on July 11, 2005. McCann provided the bogus address, and they drove there. They did not plan on kidnapping Ms. Pizzo that day, but they did discuss further details of the plan. McCann then drove Enix to a convenience store, as Detective Harrison had directed, and Enix was arrested. An officer found a crack pipe with residue in it in Enix’s pocket when he was searched incident to arrest.

McCann acknowledged at trial that he was in some legal trouble and had been sentenced to five years in prison. He was to begin serving his sentence on July 15, 2005. Enix was aware that McCann was going into custody. McCann was cross-examined extensively regarding his motives for assisting law enforcement, such as whether he hoped to further reduce his prison sentence and whether he desired to get back at Enix for stealing money. McCann denied manipulating Enix and denied calling him ten to fifteen times a day to meet with him.

McCann never saw Enix with any of the things that might be needed to execute the kidnapping plan, such as a hood, a mask, tape, a cell phone, or a gun. McCann was asked why Enix agreed to go to the bogus address that the police had provided to McCann. McCann replied that Enix was not exactly sure the address he had found for Pizzo was correct.

Tapes of two conversations between Enix and McCann were played for the jury. In the first conversation Enix said McCann had to figure out a place “we” can take her where there would be “nobody around.” Enix also said that because the bank bag comes in to Publix on Wednesdays, “we want to do it on Tuesday.” Enix mentioned he was thinking of taking her somewhere on Dixie Highway. In the second conversation the two men discussed possibly going into the back of Publix, before a Brinks truck would arrive, to get money. The conversation suggests that they were perhaps considering a heist from the Publix rather than a kidnapping.

Grace Pizzo testified that in July 2005 she was married to the store manager of the Publix in question. She had never seen Enix and knew nothing about the case until law enforcement approached her after the fact.

Enix testified that McCann was the one who approached him about committing a kidnapping. Enix explained that McCann had bulked and threatened him in the past. Enix was afraid of McCann and owed him a large sum of money. Because McCann would be going to prison in a few days, Enix planned to placate McCann until then. Enix stated that he just tried to appear to be cooperating. He testified that he never intended to go through with the plan. He never purchased a gun, hood, mask, rope, or tape. He claimed that it was McCann who supplied both addresses and that they drove past one address. Enix then asked McCann to take him to the store because he needed a beer.

The jury acquitted Enix of count two for solicitation to commit kidnapping and found him guilty of the remaining counts. Enix contends on appeal that the trial court erred in denying his motion for judgment of acquittal on count one for attempted kidnapping because there was insufficient evidence that Enix committed an overt act toward the completion of the kidnapping.

Enix was charged with attempted kidnapping under sections 777.04(1) and 787.01(l)(a)(l), Florida Statutes (2005). This required the State to prove that Enix attempted to “forcibly, secretly, or by threat” confine, abduct, or imprison Grace Pizzo against her will and without lawful authority with the intent to hold her “for ransom or reward or as a shield or hostage.” § 787.01(l)(a)(l). The attempt statute provides that a person commits a criminal attempt if the person attempts to commit an offense “and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented” from executing the offense. § 777.04(1).

In Florida, the two elements comprising an attempt to commit a crime are (1) a specific intent to commit the crime and (2) an overt act done toward its commission that is beyond mere preparation. State v. Coker, 452 So.2d 1135, 1136 (Fla. 2d DCA 1984); Webber v. State, 718 So.2d 258, 259 (Fla. 5th DCA 1998). In Coker this court explained the difference between preparation and an overt act as follows:

Preparation generally consists of devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement toward the commission after preparations are completed. The act must reach far enough toward accomplishing the desired result to amount to commencement of the consummation of the crime. Some appreciable fragment of the crime must be committed and it must proceed to the point that the crime would be consummated unless interrupted by a circumstance independent of the attemptor’s will.

452 So.2d at 1136 (citations omitted); see also Hudson v. State, 745 So.2d 997, 1000 (Fla. 2d DCA 1999) (recognizing that in Florida the focus is generally on whether a defendant’s actions are preparatory or overt and that the determination is usually case specific).

Here, the preparations for kidnapping the Publix manager’s wife were not complete. Enix did not know her name or what she looked like. At most, it could be said that Enix and McCann briefly “cased” a home, albeit the wrong one. McCann then drove Enix to a convenience store, where he was promptly arrested. No one suggested that the purpose of the trip to the convenience store was to further the plan and perhaps obtain supplies for the kidnapping. In fact, Enix was under the impression that they were going to the convenience store to get a beer. As Enix argues on appeal, they still had a sizable “to do” list which included obtaining masks, rope, tape, a hood, and a weapon. One of the taped conversations indicated that they had not decided where to take the victim, and in the other it appears that they were considering a heist from the Publix rather than a kidnapping.

The evidence indicates that Enix had a half-baked scheme when he was arrested. Obtaining the manager’s name from the wall of the Publix and driving by what Enix believed to be the potential victim’s home were not overt acts that constituted some appreciable fragment of the crime being committed. Enix was in the preparatory stage and had not committed an overt act toward the completion of the kidnapping.

Because the State failed to meet its burden to prove that Enix committed an attempted kidnapping, the trial court should have granted Enix’s motion for judgment of acquittal on that charge. Accordingly, we reverse Enix’s judgment and sentence for attempted kidnapping. We affirm the remaining convictions and sentences.

Affirmed in part and reversed in part.

NORTHCUTT and WALLACE, JJ., Concur.


author: BLACK, Judge.

text:
    Michael Allen CRANE, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D10-1358, 2D10-1359.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2011.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   BLACK, Judge.

Michael Allen Crane pleaded no contest to various charges in three separate cases. Before he was sentenced, Crane filed a motion to withdraw his pleas. The motion was summarily denied, and Crane now appeals that denial. Because the trial court erred in denying the motion without first holding an evidentiary hearing, we reverse.

Crane was charged in case number 09-CF-1215 with obtaining money from a pawn shop by fraud and dealing in stolen property. He was charged in case number 09-CF-2240 with possession of a controlled substance, petit theft, and resisting arrest in retail theft. In case number 09-CF-3326, Crane was charged with dealing in stolen property, obtaining money from a pawn shop by fraud, burglary, and grand theft. Crane pleaded no contest to all of the charges except burglary and grand theft. The trial court scheduled the remaining charges for trial and set a sentencing date for the charges to which Crane pleaded. Sentencing was to occur before Crane’s trial. Prior to sentencing, Crane filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(f).

The motion alleged that Crane’s plea was involuntary and that he entered his pleas with the understanding that sentencing would be reserved until after the trial on the burglary and grand theft charges. At a nonevidentiary hearing on the motion, Crane’s attorney argued that she failed to advise Crane of an available defense. Counsel repeatedly stated that she failed to recognize and advise Crane that his lack of knowledge that the items pawned were stolen was a defense to the dealing in stolen property charges. The trial court ultimately denied Crane’s motion but rescheduled Crane’s sentencing to occur after his trial.

Rule 3.170(f) provides that “[t]he court may in its discretion, and shall on good cause,” permit a no contest or guilty plea to be withdrawn at any time prior to sentencing. Good cause “has been found to exist when the defendant’s plea was ‘infected by misapprehension, undue persuasion, ignorance, or was entered by one not competent to know its consequence or that it was otherwise involuntary, or that the ends of justice would be served by withdrawal of such plea.’ ” Lehmkuhle v. State, 20 So.3d 971, 973 (Fla. 2d DCA 2009) (quoting Onnestad v. State, 404 So.2d 403, 405 (Fla. 5th DCA 1981)),

By arguing that she had failed to advise her client, counsel “was attempting to demonstrate good cause to withdraw the plea.” Id. (citing Trenary v. State, 453 So.2d 1132, 1133-34 (Fla. 2d DCA 1984)). “[A] defendant’s entry of a plea based upon his attorney’s mistaken advice can be a valid basis for finding good cause.” Johnson v. State, 971 So.2d 212, 215 (Fla. 4th DCA 2008). Moreover, where a motion presents a sufficient basis for withdrawal of a plea, a trial court commits reversible error if it fails to “conduct an evidentiary hearing in order to develop the facts surrounding the entry of the plea.” Caddo v. State, 806 So.2d 520, 521 (Fla. 2d DCA 2001) (citing Sanders v. State, 662 So.2d 1372, 1374 (Fla. 1st DCA 1995)).

Accordingly, we vacate Crane’s sentences on the charges to which he pleaded, see Whitaker v. State, 881 So.2d 80, 82 (Fla. 5th DCA 2004), and remand this case for the trial court to hold an evidentiary hearing on the motion to withdraw pleas.

KHOUZAM and MORRIS, JJ., Concur.


text:
    Jack TWARDOKUS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4118.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2011.
    David J. Joffe, Fort Lauderdale, for Appellant.
   BLACK, Judge.

Jack Twardokus appeals the summary denial of his motion for.postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand because the postconviction court erred when it dismissed the motion as untimely.

On July 28, 2004, Twardokus pleaded no contest to all charges in case numbers 02-2499CFA, 02-2744CFA, 03-1483CFA, 03-1542CFA, 04-1132CFA, and to counts one and three in case number 02-2729CFA. Subsequently, Twardokus proceeded to trial on the remaining counts in case number 02-2729CFA and was found guilty. Twar-dokus appealed his judgment and sentence in case number 02-2729CFA, which this court affirmed. The mandate issued December 14, 2005. Twardokus then filed a petition for belated appeal on July 28, 2006, which this court granted in case numbers 02-2499CFA, 02-2744CFA, 03-1483CFA, 03-1542CFA, and 04-1132CFA. Case number 02-2729CFA, limited to those counts to which Twardokus pleaded no contest, was later erroneously included in the belated appeal, and this court affirmed the judgment and sentences. Twardokus v. State, 973 So.2d 1138 (Fla. 2d DCA 2008). The mandate issued on February 22, 2008.

In his motion filed on February 5, 2009, which was directed to his pleas of no contest in the cases affirmed in 2008, Twardo-kus presented six claims of ineffective assistance of counsel. The postconviction court dismissed the motion as untimely, finding that it was filed more than two years after this court’s initial mandate was issued on December 14, 2005. However, the postconviction court overlooked Twar-dokus’s belated appeal, which encompassed all of the cases currently at issue. As noted above, mandate issued in this appeal on February 22, 2008. Therefore, Twardokus’s motion of February 5, 2009, was timely filed. See Beaty v. State, 684 So.2d 206, 207 (Fla. 2d DCA 1996) (holding that the two-year period for filing a motion for postconviction relief begins to run upon the issuance of mandate).

Accordingly, we reverse the summary denial of Twardokus’s motion. On remand, the postconviction court is instructed to address the motion on the merits.

Reversed and remanded.

KELLY and WALLACE, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Alejandro FERRER, Petitioner, v. STATE of Florida, Respondent.
    No. 2D10-5981.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2011.

      Alejandro Ferrer, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

Alejandro Ferrer was charged with first-degree premeditated murder and was convicted after a jury trial of the lesser-included offense of second-degree murder with a weapon. This court affirmed the judgment and sentence. Ferrer v. State, 44 So.3d 586 (Fla. 2d DCA 2010). In the sole ground in the petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), Ferrer contends that appellate counsel was ineffective in failing to argue that the then-standard manslaughter by act instruction that was read to the jury was fundamentally erroneous because it imposed an additional element of an intent to kill. We agree and reverse Ferrer’s second-degree murder conviction, vacate the sentence, and remand for a new trial.

Both second-degree murder and manslaughter are category one lesser-included offenses of first-degree murder. State v. Montgomery, 39 So.3d 252, 259 n. 4 (Fla. 2010). As such, the trial court was required to instruct the jury on both second-degree murder and manslaughter. See id. at 259. Manslaughter may be committed in one of three ways: by act, by procurement, or by culpable negligence. Id. at 256. In the present case, the evidence presented at trial indicated that the victim had been stabbed multiple times. The trial court instructed the jury on the lesser-included offense of manslaughter by act and did not instruct on manslaughter by procurement or culpable negligence. The jury was instructed as follows:

Manslaughter. To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt:
One, Colin Zieler is dead. Two, Alejandro Ferrer intentionally caused the death of Colin Zieler.

This was the standard instruction at the time of trial, and there was no objection to the instruction.

Because Ferrer’s conviction for second-degree murder was only one step removed from the lesser-included offense of manslaughter, the manslaughter by act instruction given to the jury is fundamentally erroneous under the holding of Montgomery because it improperly imposed an additional element of an intent to kill. See id. In Montgomery, the supreme court approved of the decision of the first district in Montgomery v. State, 70 So.3d 603, 2009 WL 350624 (Fla. 1st DCA 2009), which was the first case to hold that the then-standard manslaughter by act instruction was fundamentally erroneous because it imposed an additional element of an intent to kill. The Florida Supreme Court accepted jurisdiction of the First District’s decision in May of 2009. State v. Montgomery, 11 So.3d 943 (Fla.2009). In October of 2009, this court in Zeigler v. State, 18 So.3d 1239, 1243-45 (Fla. 2d DCA 2009), held that the then-standard manslaughter by act instruction, when considered as a whole, was not fundamentally erroneous. The initial brief in the direct appeal in the present case was filed in April of 2010, which was after the supreme court accepted review of Montgomery but also after the issuance of Zeigler. Three days after the filing of the initial brief, the Florida Supreme Court issued its Montgomery opinion approving of the First District’s decision and effectively disapproving of Zeigler.

Our decision in this case is governed by our holding in Del Valle v. State, 52 So.3d 16 (Fla. 2d DCA 2010). Following a jury trial, Del Valle was convicted of second-degree murder. Id. at 17. He too filed a petition alleging that appellate counsel was ineffective in failing to argue that the then-standard jury instruction for manslaughter by act that was given at trial was fundamentally erroneous. Three months prior to the filing of the initial brief in Del Valle’s direct appeal, the First District issued its Montgomery decision. Id. at 17-18. At the time the initial brief was filed, this court had stated in dicta in Hall v. State, 951 So.2d 91, 96 (Fla. 2d DCA 2007) (en banc), that the manslaughter by act instruction was not erroneous. 52 So.3d at 18. The Zeigler court relied on the reasoning of Hall. Zeigler 18 So.3d at 1243-44. This court held that Del Valle’s counsel was ineffective in failing to argue that the manslaughter by act instruction was fundamentally erroneous based on the First District’s Montgomery decision. Del Valle, 52 So.3d at 18. We concluded that had counsel so argued, we would have affirmed Del Valle’s second-degree murder conviction and certified conflict with Montgomery and Del Valle would have ultimately been afforded relief as part of the direct appeal process. Id. at 18-19. We reach the same conclusion in the present case, particularly since, in this instance, appellate counsel should have been aware prior to the filing of the initial brief that the supreme court had accepted jurisdiction of Montgomery and that a decision was pending.

We therefore hold that appellate counsel was ineffective in failing to argue that the then-standard manslaughter by act instruction was fundamentally erroneous because it included an additional element of intent to kill. Because a new appeal would be redundant in this case, we reverse Ferrer’s conviction for second-degree murder with a weapon, vacate the sentence, and remand for a new trial. See Del Valle, 52 So.3d at 19.

Petition granted.

ALTENBERND and KHOUZAM, JJ., Concur.


text:
    C.H., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2756.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2011.
    Robert Wesley, Public Defender and Wayne Atkinson, Assistant Public Defender, Kissimmee, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2011-CJ-662, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and MONACO, JJ., concur.


author: MONACO, J.

text:
    Donald L. LINDSEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3191.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2011.

      James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Donald L. Lindsey, asks that we reverse his conviction of robbery with a weapon, as well as the sentence imposed for that offense, because the trial judge erroneously denied his pro se motion to dismiss his appointed attorney and to allow him to represent himself. Mr. Lindsey argues that his motion was unequivocal, and that the trial court denied his motion solely because the appellant lacked legal experience. The State argues in opposition that while the trial judge may have incorrectly based his decision on Mr. Lindsey’s lack of capacity to represent himself effectively, rather than on whether he had the capacity to waive counsel, we should nevertheless affirm because the appellant did not unequivocally request to represent himself, and thereafter impliedly waived his right to assert this issue. We reverse.

The issue arose after Mr. Lindsey complained about his court-appointed counsel and asked that he be dismissed. His exact words were: “I wish to represent myself because I think [defense counsel] is — he has discriminated against me.” The court properly held a Nelson inquiry and concluded that counsel was not providing ineffective assistance. The court then told Mr. Lindsey that he had a choice either to hire a private attorney or to represent himself. Because Mr. Lindsey insisted that he still wanted to discharge counsel, the court conducted a somewhat abbreviated Faretta hearing. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

We note that the trial court would not have conducted a Faretta hearing unless he viewed the request as unequivocal. The purpose of a Faretta hearing is to protect the well-established principle that an accused has the right to represent himself. Id. In most cases an accused is better defended with counsel’s guidance; however, if a defendant does not voluntarily accept representation by counsel, counsel may not be forced on him or her. Id. at 884, 95 S.Ct. 2525. Furthermore, the trial court should not deny a defendant’s unequivocal request to represent himself regardless of his legal skills or the complexity of the case if the trial court determines on the record that the defendant made a knowing and intelligent waiver of the right to counsel and is not incompetent due to a severe mental illness or other impairments that would prohibit him or her from conducting trial proceedings alone. See Fla. R.Crim. P. 3.111(d)(8). Indeed, once the trial court determines that a competent defendant has “knowingly and intelligently” waived the right to counsel, the inquiry is over, and the trial court may not inquire further into whether the defendant “could provide himself with a substantively qualitative defense ... for it is within the defendant’s rights, if he or she so chooses, to sit mute and mount no defense at all.” State v. Bowen, 698 So.2d 248, 251, 252 (Fla.1997), cert, denied, 522 U.S. 1081, 118 S.Ct. 865, 139 L.Ed.2d 763 (1998). Nonetheless, while the defendant need not have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he or she must still be made aware of the dangers and disadvantages of self-representation so that the record will establish the defendant made the choice with open eyes. Faretta, 422 U.S. at 835, 95 S.Ct. 2525; McGee v. State, 983 So.2d 1212, 1214 (Fla. 5th DCA 2008).

In the present case after the Nelson inquiry the trial court attempted in a very meaningful way to inform Mr. Lindsey that it would be a mistake for him to represent himself. After exploring Mr. Lindsey’s courtroom inexperience and his lack of legal sophistication, the trial court then said:

All right. Well, I’m going to deny your motion. I’m not going to let him off the case. I don’t think you’re capable of representing yourself and I’m not going to let you do it on a first degree felony where you could be sent to prison for life.

Accordingly, we conclude that Mr. Lindsey’s request for self-representation was indeed unequivocal.

As noted previously, the State concedes that the trial court applied the wrong standard but argues waiver. Even though a defendant may unequivocally request to represent himself, the right may be waived through the defendant’s subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether. See Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (finding that right to self-representation was waived where the defendant conceded that at some point after his request to represent himself he asked counsel to continue his representation and counsel’s statement that he and the defendant had worked out their differences). A waiver occurs if it is reasonably shown that the defendant has abandoned an initial request for self-representation. Kearse v. State, 605 So.2d 534, 537 (Fla. 1st DCA 1992), review denied, 613 So.2d 5 (Fla.1993). In the present case, however, Mr. Lindsey never agreed to have his appointed counsel continue to represent him, nor was there any indication that Mr. Lindsey and his counsel had resolved their differences. Cf. Moore v. State, 820 So.2d 442, 443 (Fla. 5th DCA 2002). Moreover, the trial judge never revisited the issue to determine whether Mr. Lindsey continued in his desire to proceed alone. Under the circumstances of this case the passage of a few months and a subsequent trial do not amount to a waiver.

Because Mr. Lindsey made an unequivocal request to represent himself and it appears that his request was not waived simply by the fact that he proceeded to trial with court-appointed counsel, we reverse, and remand for a new trial for the crime of which he was convicted.

REVERSED and REMANDED.

ROBY, W. L., Associate Judge, concurs.

SAWAYA, J., dissenting without opinion.

      . Nelson v. State, 21A So.2d 256 (Fla. 4th DCA 1973).


text:
    Nathaniel BEARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-575.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2011.
    Nathaniel Beard, Graceville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Nathaniel Beard timely appeals the summary denial of his 3.850 motion, which raised three ineffective assistance of counsel claims and one claim that his sentence is illegal. Beard’s motion was summarily denied by the trial court. This court affirms the denial of all claims except Beard’s claim that the two conspiracy convictions violate double jeopardy. The attached record does not refute this claim, and it is necessary' to reverse and remand the matter for the trial court to attach those portions of the record that refute the claim or to vacate the conviction of the lesser conspiracy offense.

Beard was convicted, after a jury trial, of conspiracy to commit burglary of a dwelling, conspiracy to commit robbery, armed burglary of a dwelling, and attempted robbery with a deadly weapon. In Beard’s appeal of his postconviction motion, he takes issue with the convictions and sentences for the two conspiracy counts. Beard was sentenced to five years at the Department of Corrections on one of the counts and to three years on the second count, both to run consecutively. Beard argues that to be convicted and sentenced on the two conspiracy counts is a violation of double jeopardy.

In denying Beard’s 3.850 motion, the trial court did a Blockburger analysis as codified in section 775.021(4)(a), Florida Statutes. The trial court determined that the conspiracy was a conspiracy to commit two separate crimes and, therefore, the elements of the crimes were not the same. However, the court was incorrect in using the Blockburger analysis for the crime of conspiracy. As it relates to a conspiracy, it must be determined if there is a single “agreement to commit a criminal act or acts, and if a single agreement exists, only one conspiracy exists even if the conspiracy has as its objectives the commission of multiple offenses.” Durden v. State, 901 So.2d 967, 968 (Fla. 2d DCA 2005); see also Negron Gil De Rubio v. State, 987 So.2d 217 (Fla. 2d DCA 2008).

In reviewing the record in this case, it is impossible to determine whether or not there was a single agreement to commit more than one crime or two separate agreements to commit different crimes. The lower court did not attach any documents refuting Beard’s claim of double jeopardy. It would appear in reviewing the record that it was one agreement to commit more than one criminal act.

The matter is reversed and remanded to the trial court to provide attachments from the record that conclusively refute Beard’s claim that the convictions for two counts of conspiracy violate the principles of double jeopardy or to vacate the conviction for the lesser conspiracy offense.

REVERSED and REMANDED WITH INSTRUCTIONS.

GRIFFIN, COHEN and JACOBUS, JJ., concur.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


author: ALTENBERND, Judge.

text:
    David L. BOARDMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1503.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2011.
   ALTENBERND, Judge.

David L. Boardman appeals an order summarily denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 8.800(a). In his motion, he alleged that the trial court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), when it resentenced him after this court determined that his original sentence was illegal under Heggs v. State, 759 So.2d 620 (Fla.2000). The trial court denied the motion, concluding that these cases did not apply to Mr. Boardman. We stayed this case, pending a decision by the Florida Supreme Court in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), review dismissed, State v. Isaac, 66 So.3d 912 (Fla.2011), in light of the conflict among the districts courts over the retroactive application of Apprendi and Blakely. The supreme court subsequently dismissed its review proceedings in Isaac, concluding that its decision in State v. Fleming, 61 So.3d 399 (Fla.2011), resolved the conflict among the districts. After a review of the supreme court’s decision in Fleming, we conclude that Mr. Boardman is not entitled to relief under Apprendi or Fleming. Accordingly, we affirm the trial court’s order.

In 1998, Mr. Boardman pleaded nolo contendere to several counts of sexual activity with a child in custodial authority. These offenses took place in September 1996. His negotiated sentence for each offense was thirty-nine years’ imprisonment. This court affirmed these judgments and sentences on direct appeal. Boardman v. State, 754 So.2d 33 (Fla. 2d DCA 2000) (table decision). Thereafter, Mr. Boardman successfully moved for collateral relief under Heggs. The trial court conducted a resentencing hearing on March 19, 2001.

At the hearing, Mr. Boardman did not seek to withdraw his plea. Without objection, the trial court considered grounds for an upward departure. In light of earlier offenses, including a sexual offense in Illinois, the trial court determined that there was an escalating pattern of offenses and imposed an upward departure sentence. On count one, the court imposed a thirty-year sentence, and on court two, the court imposed a consecutive nine-year sentence. Thus, the length of imprisonment remained the same. Mr. Boardman received terms of community control and probation on counts three and four. He appealed these new sentences. This court affirmed the sentences and issued mandate in May 2002. See Boardman v. State, 818 So.2d 507 (Fla. 2d DCA 2002) (table decision). We affirmed the denial of an earlier post-conviction motion in 2008. See Boardman v. State, 845 So.2d 198 (Fla. 2d DCA 2003) (table decision).

Mr. Boardman now claims that these sentences are illegal under Apprendi because the trial court enhanced his guidelines sentences based upon factual findings by a judge instead of a jury. We conclude that Mr. Boardman is not entitled to relief under Apprendi because his sentences did not exceed the statutory maximum for these offenses. See, e.g., Caraballo v. State, 805 So.2d 882, 882 (Fla. 2d DCA 2001) (finding no error in imposing victim injury points that increased the defendant’s sentence because the sentence did not exceed the statutory maximum under section 775.082, Florida Statutes (1997)); McCloud v. State, 803 So.2d 821, 827 (Fla. 5th DCA 2001) (holding that the relevant inquiry in determining whether a sentence violates Apprendi is “the statutory maximum applicable to the crime” and “not the guidelines range applicable to the circumstances of a particular offense”).

If Blakely applied retroactively to this case, the fact that the sentences did not exceed the statutory maximum might not dispose of his claim. As the Court clarified in Blakely, the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis in original). Under Blakely, there would be a possibility that Mr. Boardman would be entitled to relief. However, in Fleming, the supreme court held:

[W]hen a sentence is vacated, the defendant is resentenced at a new proceeding subject to the full panoply of due process rights, and (2) the decisional law in effect at the time of a de novo resentenc-ing or before that resentencing is final applies to those proceedings and the issues raised on appeal. Consonant with these two principles, we hold that Ap-prendi and Blakely apply to all de novo resentencings that were not final when Apprendi and Blakely issued regardless of when the conviction or original sentence was final.

Fleming, 61 So.3d at 408 (Fla.2011).

Mr. Boardman was resentenced at a hearing in March 2001. His ease was in the appellate pipeline until May 2002. Blakely was not decided until June 2004. No matter how one measures the finality of his sentences, they were final before Blakely issued. Accordingly, he is not entitled to relief under Blakely.

As such, we affirm the trial court’s order denying his motion to correct an illegal sentence.

Affirmed.

KELLY and VILLANTI, JJ., Concur.


author: PER CURIUM.

text:
    Clarence WHEELER, III, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2009.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2011.

      Christian Conrad, Orlando, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIUM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2008-CF-8312, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D). '

PETITION GRANTED.

LAWSON, SAWAYA and JACOBUS, JJ., concur.


text:
    Wilbert WHYMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3801.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2011.
    Wilbert Whyms, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

WOLF, LEWIS, and RAY, JJ., concur.


text:
    James P. LANIER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1012.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 2011.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Carmona v. State, 873 So.2d 348 (Fla. 5th DCA 2004).

TORPY, EVANDER and JACOBUS, JJ., concur.


text:
    James Patrick WONDER, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-2547.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Michael J. Entin and Frank A. Maister, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for respondent.
   ON RECONSIDERATION ON MANDATE FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

James Patrick Wonder, the defendant in a criminal prosecution pending in the Bro-ward County Circuit Court, sought certio-rari review of an order denying his request for an evidentiary hearing on the issue of immunity from prosecution pursuant to section 776.032, Florida Statutes (2009) (the “Stand Your Ground” law, enacted by chapter 2005-27, section 5, at 202, Laws of Florida).

We denied the petition, holding that the trial court did not depart from the essential requirements of law by following Velasquez v. State, 9 So.3d 22 (Fla. 4th DCA 2009), in which we had certified conflict with Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), and other cases following Peterson. See Wonder v. State, 52 So.3d 696 (Fla. 4th DCA 2010), quashed, 64 So.3d 1208 (Fla.2011).

In Wonder v. State, 64 So.3d at 1209, the Florida Supreme Court quashed our opinion and remanded for reconsideration in light of its decision in Dennis v. State, 51 So.3d 456 (Fla.2010). In Dennis, the supreme court disapproved our reasoning in Dennis, approved the reasoning of Peterson, and concluded that “where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity.” Id. at 457. The court stated that the procedure set forth in Peterson effectuates legislative intent. Id. at 463. In Peterson, the First District concluded that, if a defendant raises the issue of statutory immunity pretrial, the defendant has the burden of establishing the factual prerequisites of the immunity claim by a preponderance of the evidence, and the trial court must weigh the factual matters pretrial and determine pretrial whether immunity exists. 983 So.2d at 29 (Fla. 1st DCA 2008) (citing People v. Guenther, 740 P.2d 971 (Colo.1987)).

Accordingly, we now grant the petition, quash the order denying Defendant’s request for an evidentiary hearing on the issue of immunity from prosecution, and remand for further proceedings pursuant to Dennis v. State, 51 So.3d 456 (Fla.2010).

Petition Granted.

TAYLOR, GERBER and LEVINE, JJ„ concur.

      . 17 So.3d 305 (Fla. 4th DCA 2009) (holding it is proper to deny a motion to dismiss based on statutory immunity when there are disputed issues of material fact) (citing Velasquez).


author: SAWAYA, J.

text:
    Daniel P. MEDELLIN and Susan Medellin, Appellants, v. MLA CONSULTING, INC. d/b/a Ubuildit, et al., Appellees.
    No. 5D10-1325.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2011.

      H. Clay Parker, IV, of Parker & Associates, P.A., Orlando, for Appellants.
    Daniel M. Copeland, of Daniel M. Copeland, Attorney at Law, P.A., Jacksonville, for Appellees.
   SAWAYA, J.

Daniel Medellin and Susan Medellin (“Appellants”) appeal a Final Judgment finding that MLA Consulting, Inc. d/b/a UBuildlt (“UBuildlt”) was not liable for filing a fraudulent lien against Appellants’ real property or for Appellants’ attorney’s fees for defending against UBuildlt’s unsuccessful claims for breach of contract and foreclosure of lien. Appellants also appeal the finding in the Final Judgment that Monty L. Anderson, UBuildlt’s owner and president, did not commit slander of title. The issues we must resolve are whether: 1) the trial court erred in concluding that because UBuildlt had a good faith belief that it was owed a certain amount under its contract with Appellants, a finding that the lien filed by UBuildlt was fraudulent under section 713.31, Florida Statutes (2008), was necessarily precluded; 2) the trial court erred in concluding that Anderson did not commit slander of title; and 3) Appellants are a prevailing party for purposes of awarding attorney’s fees and costs.

Appellants and UBuildlt entered into a written contract whereby UBuildlt was to provide consulting services to guide Appellants through the process of building their home. Unlike the traditional arrangement between an owner and a general contractor, UBuildlt was to “provide the owner with information so that the owner can act as [his/her] own general contractor.” UBuildlt is not a licensed general contractor or architect. The contract states that the services would be provided in two phases and further requires a separate fee to be paid for each phase. The contract also permits either party to terminate the contract upon providing the other party five days’ notice.

The first phase is the “Planning Phase,” which includes services for site review, budget meeting, plans review, specifications meeting, and an estimation of the project costs. The contract required a fee of $5,000 upon completion of this phase. The second phase is the “Construction Phase,” which includes (a) the UBuildlt Construction Manual and Project Management System; (b) assistance by explaining the UBuildlt System during construction; (c) a consultant’s review of subcontractors’ bids; (d) 22 site visits; and (e) additional site visits with attendant extra charges. The fee for the Construction Phase is $28,000.

After UBuildlt performed all of the Planning Phase services, Appellants paid the required $5,000 fee but, prior to commencement of the Construction Phase, terminated the contract under the five-day notice provision. UBuildlt then sent Appellants an invoice for 35% of the Construction Phase fee, $9,761.54, which the contract specified was “due upon date of execution of Construction Phase services.” UBuildlt also filed a Claim of Lien on Appellants’ property in the amount of $28,352.60, which is the entire fee for the Construction Phase of the contract. Anderson signed an affidavit in support of the lien. Appellants filed a contest of that lien, triggering UBuildlt to bring suit against Appellants claiming breach of contract and seeking to foreclose its mechanic’s lien pursuant to chapter 713, Florida Statutes. Appellants filed a counterclaim against UBuildlt for filing a fraudulent lien and against Anderson for slander of title.

At the conclusion of the non-jury trial, the trial court ruled that Appellants did not breach the contract and did not owe UBuildlt any additional fees under the contract because the Construction Phase had not yet begun when Appellants terminated the contract. The trial court found that the contract was ambiguous as to when the Construction Phase began and, because UBuildlt was the drafter of the contract, ruled in favor of Appellants. The trial court also found that UBuildlt had not filed a fraudulent lien because UBuil-dlt had reason to believe that it was entitled to the $28,352.60.

Appellants filed a motion to alter or amend the judgment on the ground that the trial court had not addressed Appellants’ argument that the lien was fraudulent because UBuildlt was not entitled to assert a lien under chapter 713, Florida Statutes (2008). In denying the motion, the trial court ruled that it was precluded from addressing Appellants’ arguments because UBuildlt had a good faith belief that it was owed $28,352.60 under the contract.

We agree with Appellants that a trial court is permitted to conclude that a lien was fraudulently filed where the lien is based on services that cannot support a lien under chapter 713, even if the lienor had a good faith belief that it was owed money by the property owner. Section 713.31(2) provides, in relevant part:

(a) Any lien asserted under this part in which the lienor has willfully exaggerated the amount for which such lien is claimed or in which the lienor has willfully included a claim for work not performed upon or materials not furnished for the property upon which he or she seeks to impress such lien or in which the lienor has compiled, his or her claim with such willful and gross negligence as to amount to a willful exaggeration shall be deemed a fraudulent lien.
(b) [A] minor mistake or error in a claim of lien, or a good faith dispute as to the amount due does not constitute a willful exaggeration that operates to defeat an otherwise valid lien.

(Emphasis added).

The trial court’s error in interpreting this provision can be gleaned from the following sentence in the Final Judgment: “If there is a minor mistake or a good faith dispute as to the amount owed ... the statute [section 713.31] precludes the finding of a fraudulent lien.” (Emphasis added). Section 713.31(2)(b) provides, instead, that neither a good faith dispute as to the amount owed nor a minor mistake is sufficient to support a finding that a lien is fraudulent. This is quite different from the trial court’s ruling that a good faith dispute as to the amount owed, or a minor mistake, necessarily requires a finding that the lien is not fraudulent.

This court has held that a trial court can determine that a lien is fraudulent notwithstanding a good faith dispute as to the amount owed under a contract. In particular, a trial court can conclude that a lien is fraudulent where the underlying claim does not support a lien under chapter 713. In Onionskin, Inc. v. DeCiccio, 720 So.2d 257, 257 (Fla. 5th DCA 1998), this court affirmed a trial court’s finding that a lien was willfully exaggerated and, therefore, fraudulent, where the lienor filed a lien based on claims of damages for breach of contract and lost profits because, as the trial court put it, these items are “clearly not lienable by any stretch of the imagination.” The Onionskin court makes clear, however, that including such items does not constitute a willful exaggeration as a matter of law. “[A]n amount claimed as a mechanics’ lien and the amount finally allowed by the trial judge does not alone determine the lien to be fraudulent as a matter of law because the trial judge still has discretion to determine the intent and good or bad faith of the lienor.” Id. at 258. This court further explained:

We also note that section 713.05 states that a contractor is permitted to have a lien on real property for money that is owed “for labor, services, materials, or other items required by, or furnished in accordance with the direct contract.” The statute does not make any provision for increasing the amount of the lien based on an alleged breach of the contract by the property owner. The language, rather, indicates the basis of the lien is essentially for the value added to the property. While we recognize a claim of lien is not necessarily fraudulent because it includes amounts in dispute and that a lien is not even to be deemed fraudulent because it is claimed in ignorant good faith, we find the trial court did not abuse its discretion in determining that the lien filed in this case was willfully exaggerated and did evince bad faith in that it included many claims that were clearly not lienable.

Id. at 258 (footnotes omitted); see also Ponce Inv. Inc. v. Fin. Capital of Am., 718 So.2d 280, 282 (Fla. 3d DCA 1998) (reversing the trial court’s finding that the lien was filed in good faith because the lien “included ... amounts for items which, under any view of the case, were not properly part thereof. As previously noted, amounts included attorney’s fees, overhead, and items previously paid for.”).

The court in Onionskin cited Stevens v. Site Developers, Inc., 584 So.2d 1064, 1065 (Fla. 5th DCA 1991), where this court affirmed a finding that a lien was not -willfully exaggerated even though it included claims for breach of contract damages and lost profits. The Onionskin court explained that

the pivotal difference between this case and Stevens, is that in Stevens, the trial court found the lien imposed, while including improper items, was, nonetheless, filed in good faith. The trial court in the instant case, in what we find to have been a reasonable exercise of its discretion, determined no such good faith existed here....

720 So.2d at 258 (citation omitted).

The decisions in Onionskin and Stevens clearly hold that a trial court may or may not find that a lienor willfully exaggerated a lien where the underlying claim does not support a lien under chapter 713. These decisions also make it clear that a good faith dispute as to the amount owed does not necessarily mean as a matter of law that a lien is not fraudulent. Here, UBuil-dlt did not perform labor or services constituting an improvement on Appellants’ property that would give UBuildlt a right to file a lien on the property. See §§ 713.02(3), 713.05, Fla. Stat. (2008). Rather, its lien was based on breach of contract and lost profits, which are not . a proper basis for a lien. Onionskin. Appellants correctly assert that a trial court can conclude that a lien was willfully exaggerated where the lienor included claims that were not lienable, notwithstanding the lienor’s good faith belief that he or she is entitled to payment. Accordingly, the trial court misinterpreted section 713.31 when it determined that it could not address Appellants’ arguments that UBuildlt’s lien was willfully exaggerated given that UBuildlt included claims that were not lienable. We must, therefore, reverse that part of the final judgment denying Appellants’ claim for fraudulent lien and remand this case to the trial court to address that issue in a manner consistent with this opinion.

The trial court ruled that Appellants could not succeed in their claim for slander of title against Anderson because UBuildlt filed its lien to protect its interest under the contract it had with Appellants. However, on remand, the trial court should reevaluate its ruling on the slander of title claim in light of the fact that the lien was not based on lienable services. See McAllister v. Breakers Seville Ass’n, Inc., 981 So.2d 566, 573 (Fla. 4th DCA 2008) (“ Tn a disparagement action the plaintiff must allege and prove the following elements: (1) A falsehood (2) has been published, or communicated to a third person (3) when the defendant-publisher knows or reasonably should know that it will likely result in inducing others not to deal with the plaintiff and (4) in fact, the falsehood does play a material and substantial part in inducing others not to deal with the plaintiff; and (5) special damages are proximately caused as a result of the published falsehood.’ ” (quoting Bothmann v. Harrington, 458 So.2d 1163, 1168 (Fla. 3d DCA 1984))).

Finally, Appellants contend that the trial court erred in failing to award them attorney’s fees as the prevailing parties in the instant case since Appellants successfully resisted UBuildlt’s claim for a mechanic’s lien. We agree. See Heidle v. S & S Drywall & Tile, Inc., 639 So.2d 1105, 1106 (Fla. 5th DCA 1994) (“[A] landowner who successfully resists a mechanic’s lien claim is entitled to an attorney’s fee under this section, even if the landowner fails to prevail on a competing claim such as one for slander of title, see O’Kon & Co., Inc. v. Riedel, 588 So.2d 1025 (Fla. 1st DCA 1991), or for breach of contract. See Java v. Atlas, Inc., Gen. Contractors, 500 So.2d 606 (Fla. 1st DCA 1986).”). On remand, the trial court should determine the amount of fees to award Appellants.

We reverse that part of the final judgment denying Appellants’ claims for fraudulent lien, slander of title, and attorney’s fees. We remand this case for further proceedings on those issues consistent with this opinion.

REVERSED and REMANDED for further proceedings.

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

      . The trial court’s order refers to the 2007 statutes, but the contract was not signed until 2008. We will refer to the 2008 statutes.

      . See also Levin v. Palm Coast Builders & Const., Inc., 840 So.2d 316, 317 (Fla. 4th DCA 2003) (“We find no error in the trial court’s conclusion that the above items were not lien-able, or the finding that the lien was fraudulent. Whether this was willful exaggeration under section 713.3 l(2)(a) was an issue of fact. As the trial court noted, these items were not lienable ‘by any stretch of the imagination.’ ”).


text:
    ARBOR TREE MANAGEMENT, INC., d/b/a Coast Cadillac Co., Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Steve Sutton, Appellees.
    No. 1D10-6374.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.

      Andrew Froman of Fisher & Phillips LLP, Tampa, for Appellant.
    A. Robert Whaley, General Counsel, and M. Elaine Howard, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Arbor Tree Management, Inc., Appellant, appeals from a final order of the Unemployment Appeals Commission (“UAC”) reversing the unemployment appeals referee’s determination that the claimant, Steve Sutton, was discharged for misconduct connected with work. Appellant raises two issues on appeal, only one of which merits discussion. Appellant argues that the UAC improperly found that there was no competent, substantial evidence to support the appeals referee’s findings of fact and conclusion that the claimant’s actions constituted misconduct that would disqualify him from receiving benefits. Because we find the record contains competent, substantial evidence to support the appeals referee’s decision, we reverse and remand.

I. Facts

The Agency for Workforce Innovation had determined that the claimant was eligible for unemployment compensation because there was no substantial evidence to show misconduct connected with work. Appellant, the claimant’s employer, appealed the determination, and the case proceeded to a telephonic hearing, where the claimant declined to participate.

At the hearing, the employer had only one witness testify, the employer’s service manager. The service manager testified as follows. The company was an auto repair and sales company. As service manager, he was the claimant’s immediate supervisor. The claimant was a service adviser for the company who received a 100% commission on any repairs he sold to customers. The employer had reprimanded the claimant twice before the incident that led to the claimant being fired. The first written reprimand occurred in 2004, when a co-worker complained that the claimant called her names and used profanity because he felt the co-worker had taken a sale from him that cost him a commission. The service manager did not witness this incident, and the claimant disputed the allegation but signed an agreement that there would be no more future incidents like this one. The second reprimand occurred in 2008, when the service manager wrote up the claimant for adding three days to the time that a customer’s car was in the shop for a warranty repair and adding repairs about which the customer did not complain in order to earn more money from commissions.

The service manager testified as follows about the final incident that led to the claimant’s discharge. Like the 2008 incident, the final incident involved selling unneeded repairs to a customer. A technician complained to the service manager that two other technicians had told him that the claimant sold a motor mount replacement to a customer, even though the two technicians had looked at the part and told the claimant that no replacement was needed. After the service manager had a meeting with the claimant and the three technicians to discover what actually occurred, the claimant informed the service manager that one of the technicians told him that the part needed to be replaced and also told him he had another technician look at the defective part. During the next day, the service manager attempted to corroborate the claimant’s story by asking the technician whether he told the claimant that the part needed to be replaced, and whether he told claimant he had another technician look at it, but the technician denied telling the claimant either of those statements. Because of these conflicting accounts, the service manager questioned the claimant, who “denied that he told [the service manager] that.” The claimant asked the service manager to call the customer to confirm that his story was the correct version. The service manager called the customer, who stated that he accepted all repairs the claimant suggested because the customer was loyal to the company and trusted the claimant. After the service manager’s investigation, the' service manager notified the claimant that he was being discharged because he lied twiee: once to the customer and once to the service manager himself. Lastly, the service manager testified that he examined the part that the claimant instructed to be replaced, and the service manager determined that the part was not damaged and could be reinstalled in another vehicle.

In addition to the service manager’s testimony, the employer introduced two ex-Mbits. The first was the claimant’s signed acknowledgement form that he received the employee handbook. The second was the portion of the employer’s handbook regarding “Unacceptable Behavior,” which stated that an employee could not be dishonest and, more specifically, an employee was not allowed to fraudulently report repairs for personal gain.

After the hearing, the appeals referee reversed the decision to award the claimant benefits. The appeals referee concluded that the claimant was discharged for misconduct connected with work. The appeals referee reasoned that the claimant had been reprimanded in 2008 for selling unneeded repairs, and the claimant knew or should have known that future dishonest acts would lead to his discharge. Since the claimant knew or should have known that he would be discharged for future dishonest acts, the appeals referee found that the claimant showed a “willful and wanton disregard for the employer’s interest,” which qualifies as “misconduct” under the statute and disqualified the claimant from receiving benefits.

The appeals referee’s decision was appealed to the UAC. The UAC concluded that the appeals referee’s decision was not supported by competent, substantial evidence and reversed the referee’s determination that the claimant was discharged for misconduct connected with work. The UAC noted that the service manager was the employer’s only witness and that most of the service manager’s testimony was hearsay evidence. Specifically, it noted that (a) the customer’s and two technicians’ statements to the service manager were hearsay because none of them provided testimony at the hearing, and (b) the 2004 written reprimand and warning that claimant could lose his job were hearsay because they were not personally issued by the service manager. The UAC stressed that hearsay is not sufficient by itself to support a finding unless it would be admissible over objection in civil actions. While the UAC noted that the service manager testified that the allegedly defective part did not need to be repaired, the UAC concluded that this was not sufficient, competent evidence, in concert with the hearsay evidence, that the claimant committed misconduct. The UAC reasoned that in order to have competent, substantial evidence that the claimant committed misconduct, there would need to be additional evidence that the technicians told the claimant that no repair was necessary and the claimant sold the customer an unneeded repair. As a result, the UAC concluded that the employer failed to meet its burden of proving misconduct and it reversed the appeals referee’s decision.

II. Analysis

When the UAC reviews a referee’s findings, the referee’s findings must be “accorded a presumption of correctness.” Szniatkiewicz v. Unemp’t Appeals Commn., 864 So.2d 498, 501 (Fla. 4th DCA 2004). Accordingly, “[t]he UAC’s standard of review of the appeals referee’s decision is whether the referee’s findings of fact were based on competent, substantial evidence in the record and whether the proceedings on which the findings were based complied with the essential requirements of the law.” Id. at 501-02. The Florida Supreme Court has defined competent, substantial evidence as evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957). While hearsay evidence alone cannot be competent, substantial evidence to support a denial of benefits “unless it would be admissible over objection in a civil proceeding,” it is admissible “for the purpose of explaining or supplementing other evidence ... to prove a material fact.” Tassone v. Unemp’t Appeals Commn., 662 So.2d 1003, 1004-05 (Fla. 1st DCA 1995). The UAC’s decision is entitled to a presumption of correctness. Tallahassee Primary Care Assoc. v. Fla. Unemp’t Appeals Comm’n, 930 So.2d 824, 825 (Fla. 1st DCA 2006). However, “[t]he UAC cannot reweigh the evidence and substitute its findings for those of the referee.” Szniatkiewicz, 864 So.2d at 502. We review de novo whether the referee and the UAC correctly applied the law. See Chapman v. Unemp’t Appeals Comm’n, 15 So.3d 716, 721 (Fla. 1st DCA 2009).

We find there is competent, substantial evidence to support the referee’s findings that (a) the claimant lied to the service manager and (b) the claimant lied to the customer by selling him an unneeded repair. We agree with the UAC that most of the evidence introduced by the employer at the hearing is hearsay, and the UAC correctly stated the law that hearsay cannot be used by itself to prove the material facts unless it is admissible over objection in a civil proceeding. See Tassone, 662 So.2d at 1004-1005. However, in this case, there is competent, substantial evidence in the record, without the service manager’s hearsay testimony, in the form of the claimant’s admissions to the service manager. The service manager testified directly concerning the claimant’s admissions. The claimant’s statements to the service manager were admissible as an exception to the hearsay exclusion rule under section 90.803(18), Florida Statutes (2010), which provides that a statement offered against a party is admissible when it is “[t]he party’s own statement in either an individual or a representative capacity.” See also Addison v. State, 653 So.2d 482, 484 (Fla. 5th DCA 1995) (“[A] statement, made by a party, and proffered by the opposing party, is admissible whether or not the statement was against his or her interest at the time the statement was made.”). Because the claimant’s admissions are admissible in a civil proceeding, they can be, standing alone, competent, substantial evidence for the two material factual findings that are discussed above.

The service manager testified as follows regarding the claimant’s admissions:

Mr. Sutton made the comment to me that he came in to me after we — after the meeting that we had had and he told me — that was on that same day, late in the evening, on 4/2 of '10 and told me— that Rudy said the motor mount was stretched and cracked and he had Mike look at it. That was [sic] the two technicians. When I questioned [him], the following day, he denied that he told me that, because I had the technician in here and the technician said he never told him any such thing. And then Mr. Sutton denied that he told me that.

(emphases added). The UAC argues that the claimant may have been merely disagreeing with the service manager’s characterization of what he told the service manager the previous day. However, the proper issue is whether there is competent, substantial evidence to support the referee’s finding, i.e. whether the referee relied upon evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” See De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957).

Although the service manager’s testimony may be subject to differing interpretations, we find the referee’s interpretation is reasonable, particularly in light of the fact that he heard the testimony live as the trier of fact. While one could argue that the use of the word “that” in the testimony is ambiguous, a reasonable interpretation, as the referee concluded by implication, is that the service manager implied in his statement that the claimant denied stating to him the statements that the claimant told the service manager during the previous day. Moreover, when the appeals referee re-examined the service manager, the service manager testified again that the claimant denied the statements that he told the service manager during the previous day. As a result, we find that this testimony is competent, substantial evidence that the claimant lied to his service manager.

We also find that other record evidence, in concert with the evidence above, was competent, substantial evidence to justify the referee’s finding that the claimant lied to the customer by selling him an unneeded repair. In 2008, the service manager gave the claimant a written reprimand for selling unneeded repairs to a customer and adding three days to the warranty for personal gain. Then, in the most recent incident, the service manager testified that the technicians told him that they told the claimant that no repair was needed. The service manager also testified that when he called the customer after the claimant asked him to do so, the customer stated to him that the claimant told him that the repair was needed. Lastly, the service manager examined the part that the claimant instructed to be replaced, and the service manager determined that the part was not damaged and could be reinstalled in another vehicle. This evidence further corroborates the service manager’s testimony that the claimant lied twice: once to the service manager and once to the customer. Accordingly, we find there was competent, substantial evidence to support the referee’s findings.

We finally address whether the claimant’s actions — selling unneeded repairs to the customer and lying to his service manager — constituted misconduct under the statute. Section 443.036(29), Florida Statutes (2010), provides that “misconduct” includes, but is not limited to, the following:

(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

It is a question of law whether a claimant committed misconduct connected with work. Saunders v. Unemp’t Appeals Comm’n, 888 So.2d 69, 71-72 (Fla. 4th DCA 2004). The employer has the burden of showing misconduct, and “the employer must show more than an employee’s inefficiency, unsatisfactory conduct, or failure to perform in the workplace.” Doyle v. Unemp’t Appeals Comm’n, 635 So.2d 1028, 1031 (Fla. 2d DCA 1994). While “an isolated instance of poor judgment is insufficient to constitute disqualifying misconduct[,]” even one act of dishonesty can constitute disqualifying misconduct. See Meyerowitz, 9 So.3d at 740 (noting that “a single act of dishonesty could constitute sufficient disqualifying misconduct to warrant denial of benefits”); Johnson v. Unemp’t Appeals Comm’n, 680 So.2d 1073, 1073 (Fla. 5th DCA 1996) (stating that “dishonesty is and should be grounds for dismissal and denial of benefits”).

In this ease, we find that the claimant committed misconduct connected with work as defined in the statute. There were two separate incidents where the claimant lied to the company and a customer about unneeded repairs. The claimant’s lies in these two separate incidents would have injured the company financially if the company had not discovered that the claimant was selling the unneeded repairs. In the most recent incident, the customer would have had to pay for the unneeded repair. The claimant’s actions in lying to his employer and customers about unneeded repairs were clearly dishonest and in disregard of the employer’s interests. Moreover, the handbook placed the claimant on notice that dishonesty, particularly selling unneeded repairs to customers, was taken seriously by the company. Thus, the record evidence demonstrates “[cjonduct demonstrating willful or wanton disregard of an employer’s interests [that is] a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee[,]” which is disqualifying misconduct connected with work under the statute. § 443.036(29)(a), Fla. Stat. (2010).

Based on our reasoning set forth above, we reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

LEWIS, PADOVANO, and THOMAS, JJ., concur.

      . See Yost v. Unemp't Appeals Commn., 848 So.2d 1235, 1237 (Fla. 2d DCA 2003).

      . However, as discussed below, there is additional evidence that supports the referee's findings.

      . Meyerowitz v. Unemp't Appeals Comm’n, 9 So.3d 738, 740 (Fla. 4th DCA 2009).


author: HAWKES, J.

text:
    Daniel PRESMY, Appellant, v. Dr. Eric SMITH, Commission of Education, Appellee.
    No. 1D10-5291.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.

      Thomas L. Johnson and Jeffrey Scott Sirmons of Johnson & Haynes, P.A., Brandon, for Appellant.
    Charles T. Whitelock of Whitelock & Associates, P.A., Fort Lauderdale, for Ap-pellee.
   HAWKES, J.

This is an appeal from an Education Practices Commission decision that upheld the retroactive application of section 1012.795(l)(n), Florida Statutes (2008). We reverse the Commission’s decision, finding: (1) the Legislature did not intend that the statute apply retroactively; and (2) a retroactive application of the statute violates constitutional principles.

Facts

Daniel Presmy, a certified teacher, began teaching elementary education in the West Palm Beach County School District (the School District) in 2002. In 2006, Mr. Presmy was involved in an incident in which he ended a disruption by using his finger tips to push a third-grade student out of his classroom doorway. In a resulting criminal proceeding, Mr. Presmy pled guilty to misdemeanor battery on a minor. Shortly thereafter, the West Palm Beach County School Board (the School Board) voted to suspend Mr. Presmy and initiated dismissal proceedings. Mr. Presmy challenged the School Board’s decision before the Commission. In its Final Order, the Commission adopted a Recommended Order issued by an Administrative Law Judge (ALJ) with the Division of Administrative Healings (DOAH) and found as follows:

The evidence is insufficient to persuade the undersigned that Presmy’s conduct, pushing the disruptive student victim’s head out of the classroom with his fingertips, was intended, or reasonably would be expected to cause harm.... There is no evidence that Presmy’s physical contact with the student in any way impaired his effectiveness in the school system. Further, no evidence was provided that Presmy embarrassed or disparaged the student. Therefore, the greater weight of the evidence fails to establish Presmy violated either the Code of Ethics or Principle of Professional Conduct.

School Board of Palm Beach County, Florida v. Daniel Presmy, DOAH Case No. 07-5125 (August 11, 2008) (hereinafter “the 2008 Decision”).

In accord with the 2008 decision, the School Board reinstated Mr. Presmy to his position with the School District.

In 2008, the Legislature amended section 1012.795(l)(n), Florida Statutes, mandating that the Commission permanently revoke the educator certificate of any teacher convicted of misdemeanor battery on a minor. Pursuant to the amended statute, the Commission initiated proceedings to permanently revoke Mr. Presmy’s educator certificate, based on his aforementioned battery conviction. After a second hearing regarding the same factual circumstances relied on in the 2008 Decision, the Commission entered a Final Order adopting an ALJ’s recommendation that Mr. Presmy’s prior conviction warranted permanent revocation of his educator certificate. Mr. Presmy now appeals the Commission’s decision. We write only to address the constitutionality of the statute as applied to educators who have had their certificates revoked based on conduct that occurred prior to the 2008 amendments to section 1012.795(l)(n).

Analysis

Whether a statute applies retroactively or prospectively is a pure question of law to be reviewed de novo. See D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003).

Section 1012.795(l)(n) (2008) provides:

(1) The Education Practices Commission ... may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students ... provided it can be shown that the person:
(n) Has been disqualified from educator certification under § 1012.315 [Fla. Stat. (2008) ]. (emphasis added).

Section 1012.315(2)(a) (2008) provides:

A person is ineligible for educator certification, and instructional personnel and school administrators, as defined in § 1012.01, are ineligible for employment in any position that requires direct contact with students in a district school system, charter school, or private school that accepts scholarship students under § 1012.01, § 1002.39 or § 1002.395, if the person, instructional personnel, or school administrator has been convicted of:
(2) Any misdemeanor offense prohibited under any of the following statutes:
(a) § 784.03, relating to battery, if the victim of the offense was a minor.

According to the Commission, section 1012.795(l)(n), mandates it permanently revoke the educator certificate of any teacher convicted of a criminal offense listed in section 1012.315. The Commission has ruled the Legislature intended for 1012.795(l)(n) to apply retroactively, disqualifying certificate holders who were convicted of a section 1012.315 offense pri- or to the statute’s enactment from teaching in Florida Schools. We disagree, finding: (1) the Legislature did not intend that the statute apply retroactively; and (2) a retroactive application of the statute violates constitutional principles.

It is undisputed that the Legislature amended section 1012'.795(l)(n) after the Commission issued Mr. Presmy an educator certificate and after he plead guilty to misdemeanor battery. Thus, the operative inquiry is whether section 1012.795(l)(n) should apply retroactively. The Florida Supreme Court has adopted a two-pronged test for determining whether a statute may apply retroactively: a reviewing court must ascertain (1) whether the Legislature clearly expressed its intent that the statute have retroactive application; and if so, (2) whether retroactive application would violate any constitutional principles. See Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass’n One, 986 So.2d 1279, 1284 (Fla.2008) (quoting Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999)); see also Menendez v. Progressive Express Insurance Co., 35 So.3d 873, 877 (Fla.2010).

With respect to the first prong, the Legislature did not clearly express an intent that section 1012.795(l)(n) apply retroactively. Substantive statutes are presumed to apply prospectively, absent a demonstrated legislative intent to the contrary. See Metro. Dade County, 737 So.2d at 499 (holding “[t]he general rule is that in the absence of clear legislative intent to the contrary, a law affecting substantive rights, liabilities and duties is presumed to apply prospectively.”); see also Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996). In determining whether the Legislature intended that a statutory provision be applied retroactively, courts examine both the statute’s plain language and the Legislature’s purpose for enacting it. See Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 488 (Fla.2008) (quoting Metro. Dade County, 737 So.2d at 500).

In the instant case, there is nothing indicating the Legislature intended the 2008 amendment to section 1012.795(l)(n) be applied retroactively. Indeed, the statute’s express language (and the provision of section 1012.315 it references) does not directly or indirectly address retroactivity. To the contrary, the disputed statutory provisions enumerate a list of specific offenses that make a person “ineligible for educator certification.” It is axiomatic that a statute that expressly operates only to set forth the offenses that bar an individual from gaining educator certification cannot be relied on as the means by which the Commission retroactively strips educators who have already achieved certification of their certificates.

Additionally, there is no language in the staff analysis and enacting reports for sections 1012.795 and 1012.315 that can be construed as indicating the Legislature intended either statute apply retroactively. See House of Representative Staff Analysis, Bill # CS/CS/CS/SB 1712, p. 7. Although the Legislature made clear its intent to take away the Commission’s discretion in offering certification to individuals who had previously violated section 1012.315, there is nothing demonstrating an intent to retroactively strip teachers of their certification for having previously committed and disclosed violations of section 1012.315. Id.

With respect to the second prong, the Commission’s retroactive application of section 1012.795(l)(n) is unconstitutional. Even where the Legislature has expressly stated that a statute will apply retroactively, reviewing courts must reject such an application if the statute impairs a vested right, creates a new obligation, or imposes a new penalty. See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995); see also Metro. Dade County, 737 So.2d at 499 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)) (holding the central focus of an inquiry into the retroactive application of the statute is whether doing so “attaches new legal consequences to events completed before its enactment.”).

Here, it is undisputed that, at the time Mr. Presmy pled guilty to misdemeanor battery, section 1012.795(l)(n) had not yet been amended. Thus, although Mr. Presmy’s conduct may have placed his certificate in jeopardy under other statutory and Code of Ethics or Principle of Professional Conduct provisions, there was no law enacted that specifically mandated that the Commission revoke his certificate for committing misdemeanor battery. In short, Mr. Presmy had a vested property interest in his educator certification , and the Commission’s retroactive application of section 1012.795(l)(n) impaired that interest by attaching new legal consequences to events that occurred before its enactment.

Accordingly, because: (1) the Legislature did not intend for section 1012.795 to apply retroactively; and (2) the Commission’s interpretation and application of sections 1012.795(l)(n) and 1012.315 violates constitutional provisions, we reverse the Commission’s ruling.

REVERSED.

VAN NORTWICK and PADOVANO, JJ., concur.

      . A professional has a property interest in his license to practice his profession protected by the due process clauses of the state and federal constitutions. See Robinson v. Fla. Board of Dentistry, 447 So.2d 930 (Fla. 3d DCA 1984). Due process includes a prohibition against ex post facto laws which deprive a citizen of life, liberty or property based on conduct occurring before the effective date of the prohibition. Art. I, § 9, Fla. Const.; see also Rose v. State, 507 So.2d 630 (Fla. 5th DCA 1987);