author: ROTHENBERG, Judge.

text:
    Lazaro SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2413.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.

      Tucker & Kotler, P.A., and David K. Tucker, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

The defendant, Lazaro Sanchez, appeals his convictions and sentences for attempted burglary of an unoccupied structure, a CVS store, and criminal mischief of $200 or less — damage to CVS’s property. For the reasons that follow, we find no reversible error and, therefore, affirm.

The defendant raises several issues pertaining to his confession at the police station to the crimes charged, after Detective Rosario read the defendant his Miranda rights, the defendant acknowledged that he understood his rights, and he agreed to speak to Detective Rosario. In his statement, the defendant admitted he pried open the back door of the CVS store with a crowbar, he entered the store, began to swing at the alarm panel, and fled when the alarm rang.

The defendant filed a motion to suppress his statements, which provides in pertinent part: “Coercive measures and impropriety were used, compelling the defendant to involuntarily confess to the crime charged in violation of the defendant’s privilege against self-incrimination as guaranteed by the Fifth Amendment to the United States Constitution and Article I, § 12, of the Florida Constitution.” The trial court struck the motion, finding that it was legally insufficient for failing to comply with Florida Rule of Criminal Procedure 3.190(h)(2).

The defendant contends that the trial court abused its discretion by striking his motion, and argues that the trial court should have entertained the motion as the trial court had already heard the arresting officer’s testimony regarding the defendant’s confession at a previously held evi-dentiary hearing on the defendant’s motion to suppress the physical evidence. We disagree.

Rule 3.190(h)(2) provides that “[e]very motion made by a defendant to suppress a confession or admission shall identify with particularity any statement sought to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion is based.” (emphasis added). A review of the defendant’s motion to suppress his statements confirms the trial court’s finding that the motion failed to comply with rule 3.190(h)(2). As the motion was legally insufficient, we conclude the trial court acted within its discretion by striking the motion and not conducting a hearing. We also note that after the trial court struck the defendant’s motion to suppress his statements, the defendant did not attempt to file a legally sufficient motion.

Next, the defendant contends his confession was inadmissible because he previously had invoked his Miranda rights while being taken into custody. However, a review of the record before this Court demonstrates that, although Detective Rosario advised the defendant of his Miranda rights while taking the defendant into custody, the defendant did not invoke his right to remain silent under Miranda. Rather, the defendant did not respond to Detective Rosario’s questions as to whether he understood his Miranda rights. More importantly, the defendant did not state that he wanted to remain silent, did not want to talk to the police, or wanted an attorney. In Berghuis v. Thompkins, — U.S. - , -, 130 S.Ct. 2250, 2259, 176 L.Ed.2d 1098 (2010), the United States Supreme Court rejected Thompkins’ argument that he invoked his right to remain silent “by not saying anything for a sufficient period of time” after being advised of his Miranda rights. In doing so the Court stated:

Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his right to cut off questioning. Here he did neither, so he did not invoke his right to remain silent.

Berghuis, 130 S.Ct. at 2260 (citations omitted; internal quotations omitted). Accordingly, we conclude that the defendant did not invoke his right to remain silent, or any other right under Miranda, by initially failing to respond to Detective Rosario’s questions when he took the defendant into custody and advised him of his Miranda rights.

The defendant also contends the trial court reversibly erred by admitting evidence of his involvement in other crimes, wrongs, or acts, in violation of the trial court’s pretrial ruling on the defendant’s motion in limine. Specifically, he claims that several statements made during Detective Rosario’s testimony violated the trial court’s ruling on his motion in limine. We address only two of the objectionable statements, concluding the remaining claims do not merit discussion.

The first eomplained-of statement occurred while defense counsel was cross-examining Detective Rosario as to his interrogation of the defendant prior to his confession.

[Defense Counsel]: You got up in his face and you kept asking him, Tell me, give me something, come on, just give me something. You presented him with the CVS address, and you said, Just tell me you were having a bad day.
[Detective Rosario]: That’s incorrect.
[Defense Counsel]: You promised him that you’d talk to the State about taking it easy on him, didn’t you?
[Detective Rosario]: It was not a promise, no.
[Defense Counsel]: Okay. Well, tell us what it was?
[Detective Rosario]: This is part of a big investigation that includes other burglaries.
[Defense Counsel]: Objection, Your Honor.
[Trial Court]: Overruled.
[Detective Rosario]: That’s what you asked.
[Trial Court]: You asked for an explanation.
[Defense Counsel]: Your Honor.
[Trial Court]: Let’s go. You may explain.
[Defense Counsel]: Your Honor, I move to strike the question.
[Trial Court]: Denied.
[Detective Rosario]: This is part of a big investigation where it involved other burglaries, and we — if he cooperates, we can go ahead and, you know, work with him. That’s what I talked to him about if he’d, you know.
[Defense Counsel]: And, in fact, you told him that you were gonna arrest his brother, didn’t you?
[Detective Rosario]: That’s part of an ongoing investigation which—
[Defense Counsel]: An ongoing investigation?
[Trial Court]: Let him finish his answer please.
[Detective Rosario]: Which that could very well happen.
[Defense Counsel]: You suspect Ger-aldo Sanchez? []
[Defense Counsel]: Objection — move to strike that, Your Honor. Let me rephrase.
[Defense Counsel]: You had set up surveillance and had been investigating Geraldo Sanchez, and you knew that he had worked at Carmax. Isn’t that true.
[Detective Rosario]: Yes.
[Defense Counsel]: And you had set up surveillance at his house like you testified earlier before?
[Detective Rosario]: That’s correct.
[Defense Counsel]: And you knew that the car that Geraldo Sanchez was [sic] and that Lazaro Sanchez was found in was actually rented to Geraldo Sanchez?
[Detective Rosario]: We did not know at that time.
[Defense Counsel]: Well, it’s in your report, isn’t it?
[Detective Rosario]: We did not know at that time.
[Defense Counsel]: But it is in your report that Geraldo Sanchez rented that vehicle.?
[Detective Rosario]: We found that after he was arrested.
[Defense Counsel]: So you concluded that it was Geraldo Sanchez’s vehicle. You saw Geraldo Sanchez with these tools and this bag ahead of time?
[Detective Rosario]: That’s incorrect, I did not observe him with the bag. [FBI] Agent Schere—
[Defense Counsel]: I’m sorry, I’ll rephrase. Tony Schere had told you he that [sic] had seen Geraldo Sanchez with these tools ahead of time?
[Detective Rosario]: Correct.
[Defense Counsel]: And in your interrogation Geraldo Sanchez won’t say anything?
[Detective Rosario]: Yes.
[Defense Counsel]: And you tell Lazaro Sanchez, Come on, just give me tell me something, just tell me something or else I’m going to have to arrest your brother?
[Detective Rosario]: It wasn’t necessarily worded that way.

This colloquy reflects that Detective Rosario did not testify or insinuate that the defendant was being investigated for the other burglaries. In fact, Detective Rosario emphasized that it was the defendant’s brother, Geraldo Sanchez, who was the target of the surveillance and the individual being investigated for the other burglaries. Thus, we conclude the comment did not violate the motion in limine. However, even if we had concluded that Detective Rosario’s statements violated the motion in limine, we nonetheless would affirm based on the invited-error doctrine because Detective Rosario’s statements were in response to defense counsel’s specific questions. See Norton v. State, 709 So.2d 87, 94 (Fla.1997) (“[A] party may not invite error during the trial and then attempt to raise that error on appeal.”); Czubak v. State, 570 So.2d 925, 928 (Fla.1990) (“Under the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.”); Buggs v. State, 640 So.2d 90 (Fla. 1st DCA 1994) (holding that arresting officer’s objectionable comment during cross-examination was invited error because the objectionable comment was in response to defense counsel’s question).

The second complained-of statement occurred when Detective Rosario responded to a juror’s question which was read to the jury by the trial court. Following re-cross examination, the trial court informed the jurors that they would be permitted to write down questions they wanted to ask Detective Rosario. After receiving the questions, the trial court reviewed the questions with the prosecutor and defense counsel and they determined which questions should be asked of the witness. The trial court, without objection by defense counsel, read the following question to Detective Rosario: “Why was the vehicle[] stopped just for driving erratically by a burglary detective or an FBI agent — and an FBI agent? Why was the vehicle stopped just for, comma [sic] — just for driving erratically by a burglary detective and FBI agent?” In response, Detective Rosario responded, “It was — probable cause existed to arrest the defendant on another crime.” Defense counsel timely objected, the trial court sustained the objection, and stated that it would address the matter later. Shortly thereafter, during a jury break, the trial court addressed Detective Rosario’s response with the attorneys.

[Trial Court]: I’d like to address an objection that was raised by the defense ....
[Trial Court]: When I asked one of the juror’s questions about why the vehicle was stopped just for driving erratically by a burglary detective and FBI agent, there was a discussion sidebar regarding what the fears that some people may have had regarding what the incident might have been — and I’m not sure exactly what was discussed sidebar — but I was allowed to ask the question. But I remember thinking that the officer was going to say because he was a person of interest.
[Defense Counsel]: Pursuant to an ongoing investigation.
[Trial Court]: Pursuant to an ongoing investigation, yes. But instead he said because he had probable cause as to another case, and that does concern me. I’m wondering if the defense is likewise concerned and what the issue might be.
[Defense Counsel]: At this point, you know, I would ask that the jury be — we move to strike that statement and it be disregarded by jury.
[Trial Court]: Tell them that there is no other case. For them this is the only case they’re to be thinking about?
[Defense Counsel]: Yes, yes.
[State]: The State’s only—
[Trial Court]: You heard evidence of an ongoing investigation; however, the evidence that you’re to consider should be limited strictly to the events regarding this case. Something like that?
[Defense counsel]: I think that’s outstanding.
[Trial Court]: You heard evidence of an ongoing investigation, but your job is to determine whether the State has proved this case beyond a reasonable doubt. This is the only matter at issue. Anything else to make it very clear? You heard evidence of an ongoing investigation, but your job is to determine whether the State has proven this case beyond a reasonable doubt. There are no other issues for you to consider.
[State]: Yes.
[Trial Court]: —regarding any potential other investigation, investigation matters, okay.
[State]: Your Honor.
[Trial Court]: Does that sound decent enough for the defense or correct it.
[Defense Counsel] It’s out there, I mean, I guess, you know.
[Trial Court]: No, it’s the defendant’s liberty on the line. So let the defendant and his lawyers decide which way they want to do this with the corrective instruction. ...

(emphasis added). Thereafter, the trial court gave the jury the following curative instruction, which the jurors acknowledged they understood:

Before the closing arguments, I will instruct you on something that we’ve agreed to tell you and that is that you heard evidence of an ongoing investigation but your job is to determine whether the State has proven this case beyond a reasonable doubt or not. There are no other issues for you to consider regarding any other possible investigations. Do you all understand?

This colloquy demonstrates that the attorneys and the trial court agreed that Detective Rosario’s answer to the question was objectionable, and we also agree. We also conclude that, although defense counsel did not object to the detective answering the jury’s question, defense counsel did no.t invite the objectionable answer because it is clear the lawyers and the trial court did not.expect the answer they received.

Although we agree that the detective’s response was improper, see § 90.404(2)(a), Fla. Stat. (2010); Williams v. State, 110 So.2d 654 (Fla.1959); we find that the error was not properly preserved for appellate review because defense counsel failed to move for a mistrial after the objection was sustained, and agreed to the course of action taken by the trial court. The record reflects that when the objectionable comment was made, defense counsel objected and moved to strike the answer. The trial court sustained the objection, and on its own, offered to give the jury a curative instruction. The wording of the proposed instruction was discussed with the prosecutor and defense counsel, and defense counsel specifically approved the curative instruction, stating, “I think that’s outstanding.” At no time did defense counsel move for a mistrial or argue that the error was not cured by the curative instruction given. Because the error was not preserved and it was not fundamental error, we affirm the judgment and sentence. See Salazar v. State, 991 So.2d 364, 381 (Fla.2008) (holding that an improper statement during closing argument was preserved for appellate review where “trial court sustained the objection and defense counsel responded by moving for a mistrial, which was denied by the trial court”); James v. State, 695 So.2d 1229, 1234 (Fla.1997) (holding that claim of error was properly preserved for appellate review where defense counsel “makes a timely specific objection and moves for a mistrial”) (quoting Spencer v. State, 645 So.2d 377, 383 (Fla.1994)); Malcolm v. State, 415 So.2d 891, 892 (Fla. 3d DCA 1982) (holding that defendant preserved for appellate review Williams-m\e violation where “prior to taking of testimony, defense counsel timely moved to ‘strike’ or exclude evidence of any criminal activity other than that charged in the information and that, at the end of the trial, he unsuccessfully moved for a mistrial”).

Affirmed.

      . The defendant’s appellate counsel acknowledges that the motion "appears to be a boilerplate motion."

      . The defendant urges this Court to review his claim that trial counsel rendered ineffective assistance of counsel by failing to file a legally sufficient motion to suppress his statements. Appellate counsel acknowledges that such claims are generally not reviewable on direct appeal, but argues this case falls under the exception to the general rule — trial counsel's deficient performance and the resulting prejudice to the defendant are apparent on the face of the record. See Rios v. State, 730 So.2d 831, 832 (Fla. 3d DCA 1999). Based on the record before this Court, although the motion was clearly legally insufficient, we cannot determine from the face of the record whether the defendant was prejudiced.

      . Geraldo Sanchez is the defendant’s brother, who was also arrested along with a third individual.

      . It was undisputed the vehicle was being driven by Geraldo Sanchez and that the defendant was a passenger.


source: Caselaw Access Project

author: CORTINAS, J.

license: Public Domain

text:
    Ruth N. SACK, Appellant, v. Andrea BAMBERG, trustee of the Cyril M. Sack Irrevocable Trust dated May 22, 2006 Andrea Bamberg, individually, Louis Bamberg, individually, Ap-pellees.
    No. 3D11-734.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.

      Richard J. Burton, Miami, and Peter J. Solnick, Aventura, for appellant.
    Paul A. Krasker and Marshall J. Osof-sky, West Palm Beach, for appellees.
    Before CORTIÑAS, EMAS, and FERNANDEZ, JJ.
   CORTINAS, J.

We affirm the trial court’s denial of prejudgment interest in this case as no damages were awarded in Plaintiffs favor. See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985). While an action in contract or tort may give rise to an award of damages and a concomitant prejudgment interest award, a suit for declaratory relief may award only rights, for which no prejudgment interest is available.

Affirmed.


author: SALTER, J.

text:
    CARLTON FIELDS, P.A. and Gary W. Pollack, Petitioners/Appellants, v. Edward J. LOCASCIO and In re Estate of Silvia M. Locascio, Respondents/Appellees.
    Nos. 3D12-20, 3D11-3342.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    See also 23 So.3d 1209.
    Carlton Fields, and Jack Reiter and Sylvia H. Walbolt, Tampa, and Niall T. Mc-Lachlan; Gary W. Pollack and Bretton I. Pollack, Miami, for petitioners/appellants.
    Austin Carr, Coral Gables; Golden & Cowan, and William H. Glasko, Miami, for respondents/appellees.
    Before RAMIREZ, SALTER, and EMAS, JJ.
   SALTER, J.

The petitioners and appellants in these consolidated cases, Carlton Fields, P.A., and Gary W. Pollack, are creditors holding priority liens on Edward S. Locascio’s property. They petition for a writ of prohibition to preclude a probate court judge from continuing to exercise jurisdiction over Edward S. Locascio’s property. We grant the petition.

This Court has already considered the ownership interests of Edward S. Locascio and the Estate following Edward S. Locas-cio’s conviction for the murder of the decedent. We held that Edward S. Locascio maintained a 50% interest in the house as non-homestead property. The decedent’s 50% homestead interest in the house passed to her son, Edward J. Locascio, outside of probate. LoCascio v. Sharpe, 28 So.3d 1209 (Fla. 3d DCA 2009). That is law of the case. The probate court recognized this in an order determining the status of property, but it has directed that the net proceeds of the approved sale of the property allocable to Edward S. Locas-cio be deposited into the registry of court. The petitioning creditors have refused to release their recorded liens unless the closing agent disburses Edward S. Locascio’s net proceeds to the creditors in order of priority (to the extent of such proceeds, which will be insufficient to satisfy all of the judgment hens).

Prohibition is an appropriate, if extraordinary, remedy to prevent a court from acting in excess of its jurisdiction. English v. McCrary, 348 So.2d 293 (Fla. 1977). In the case at hand, the probate court is without jurisdiction to continue controlling Edward S. Locascio’s interest in the residence or in his share of the net proceeds of sale, because they are not a part of the Estate of Sylvia Locascio or otherwise under the jurisdiction of the probate court. We therefore grant the petition for prohibition. The lienholders’ undisputed, recorded liens against Edward S. Locascio’s property and proceeds shall be recognized as required by law and outside the administration of the Estate. See Carlton Fields v. LoCascio, 59 So.3d 246 (Fla. 3d DCA 2011). We trust that it will not be necessary to issue the writ.

Petition granted.


author: PER CURIAM.

text:
    Marc KLEINER and Stephanie Kleiner, Appellants, v. ALLIED PEST MANAGEMENT, “ INC., Appellee.
    No. 3D11-2251.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    Higer Lichter & Givner, and J. Joseph Givner, Aventura, and Colleen Del Casino, for appellants.
    Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, and Jeffrey L. Hoch-man and Tamara M. Scrudders and J. Marcos Martinez, Fort Lauderdale, for ap-pellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See § 682.04, Fla. Stat. (2007).


author: PER CURIAM. SCHWARTZ, Senior Judge

text:
    Juan FEBRES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-372.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and, Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS, C.J., and FERNANDEZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

WELLS, C.J., and FERNANDEZ, J., concur.

SCHWARTZ, Senior Judge

(dissenting).

In my view, the confession which was the most significant aspect of the prosecution’s case, should have been suppressed as the product of an unlawful, non-consensual confinement, that is, an arrest, which was not supported by probable cause. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), affirming Royer v. State, 389 So.2d 1007 (Fla. 3d DCA 1979); Ladson v. State, 63 So.3d 807 (Fla. 3d DCA 2011) (Schwartz, Senior J. dissenting); B.S. v. State, 548 So.2d 838 (Fla. 3d DCA 1989); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978).


text:
    Daniel WATERMAN, Appellant, v. DARNELL, INC., Appellee.
    No. 3D10-3007.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    Robert N. Pelier and Richard Lorenzo, Coral Gables, for appellant.
    Isriel, Ponzoli, Keller & Simpson, and Brian Yosef, Miami, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Onderko v. Advanced Auto Ins., Inc., 477 So.2d 1026 (Fla. 2d DCA 1985); Sabin v. Lowe’s, Inc., 404 So.2d 772 (Fla. 5th DCA 1981); see also Central Nat’l Bank v. Muskat Corp., 430 So.2d 957 (Fla. 3d DCA 1983).


text:
    Solangel BELLO-ALFONSO, Appellant, v. Lazaro M. ALFONSO, Appellee.
    No. 3D11-3214.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    Stok Folk + Kon and Robert A. Stok, Aventura, for appellant.
    Martinez & Sordo and Blanca R. Sordo, Miami, for appellee.
    Before CORTIÑAS, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Civ. P. 1.190(b) (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”); C.J. v. Dep’t of Children & Family Sens., 9 So.3d 750 (Fla. 2d DCA 2009) (holding when an issue is tried by implied consent, due process concerns are alleviated); Robinson v. Robinson, 340 So.2d 935 (Fla. 4th DCA 1976) (holding an issue not raised in the pleadings is tried by implied consent where the issue is presented, considered, and ruled upon by the trial court without objection).


text:
    NEMA PROPERTY INVESTMENTS, INC., and Patricia Dillard, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Long Beach Mortgage Trust 2006-4, Appel-lee.
    No. 3D11-194.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    Garry W. Johnson and Bruce K. Herman, Fort Lauderdale, for appellants.
    Greenberg Traurig and Michele L. Stocker, Fort Lauderdale and Kimberly S. Mello and Thomas A. Burns, Tampa, for appellee.
    Before ROTHENBERG, SALTER, and EMAS, JJ.
   PER CURIAM.

Affirmed. Beaulieu v. JPMorgan Chase Bank, Nat’l Ass’n, 80 So.3d 365 (Fla. 4th DCA 2012); Curbelo v. Ullman, 571 So.2d 443, 444 (Fla.1990).


text:
    Anthony R. GRIEGO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0905.
    District Court of Appeal of Florida, First District.
    March 8, 2012.
    Anthony R. Griego, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    Terrance L. COLEMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0903.
    District Court of Appeal of Florida, First District.
    March 8, 2012.
    Terrance L. Coleman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    Billy COMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6713.
    District Court of Appeal of Florida, First District.
    March 8, 2012.
    Billy Comer, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, CLARK, and ROWE, JJ., concur.


author: PALMER, J.

text:
    David Wayne BRIDGES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3538.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    David W. Bridges, Jr., Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

David Wayne Bridges, Jr. (defendant) appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Determining that the trial court erred in denying ground one of the motion, we reverse as to that ground.

In order to demonstrate ineffective assistance of trial counsel under rule 3.850, Florida Rules of Criminal Procedure, a criminal defendant must show specific acts or omissions of counsel that were so serious that the attorney was not functioning as counsel guaranteed to the defendant by the Sixth Amendment of the Constitution of the United States. In order to be entitled to relief, however, the defendant must further establish prejudice by showing that there is a reasonable possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Connor v. State, 979 So.2d 852 (Fla.2007) (quoting Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

State v. Grayson, 74 So.3d 562 (Fla. 5th DCA 2011).

In ground one, the defendant alleged two issues of ineffective assistance of counsel. First, he alleged that when the State filed a notice of Williams rule evidence the day before trial, defense counsel unreasonably failed to move to exclude the evidence or for a continuance to investigate it. Second, the defendant alleged that his counsel unreasonably advised him that he could not win at trial because of jury bias, and that the trial judge would harshly sentence him if he went to trial and was convicted. The defendant alleged that absent counsel’s ineffectiveness, he would not have pled nolo contendere to the charges of lewd or lascivious molestation, but would have instead gone to trial.

As to the first issue, the defendant alleged that the State’s Williams rule evidence would have been excluded because it was not similar enough to the charged offenses. In support, he alleged the following facts. In the instant case, he was accused of molesting three children while watching a movie with two other adults present. The children were his stepdaughters and were under his custodial authority. He was 29 years old, at least 18 years older than any of the children. In contrast, the Williams rule witness was allegedly molested by the defendant multiple times. She was about 6 years younger than him; at the time of the alleged incidents, he was 10 to 19 years old while she was 5 to 14 years old. She was not under his custodial authority at the time. Finally, these alleged incidents were substantially remote in time from the charged offenses.

For purposes of summary denial, the trial court was required to accept these facts as true to the extent they were not refuted by the record. See Kimbrough v. State, 886 So.2d 965, 981 (Fla.2004).

In denying relief on this issue, the trial court wrote:

Defendant must allege facts sufficient to show that counsel had a valid basis for filing a motion to suppress and there is a reasonable probability the motion would have been granted. In this case, the Defendant merely assumes the state’s evidence of Defendant’s prior history of lewd and lascivious molestation would be suppressed based upon the age difference between the Defendant’s previous victim and the victims of this case. Defendant was charged in both cases with violation of the same statute.... Defendant has failed to show that counsel was ineffective in advising the Defendant to plea in this case or that the outcome would be different had counsel filed a motion to suppress.

This reasoning is faulty. The mere fact that both situations involved charges of violating the same statute is not sufficient to support the conclusion that a motion to exclude the Williams rule evidence would have been denied. Accordingly, we reverse on this issue and remand for the trial court to attach record documents conclusively refuting it or to hold an evidentiary hearing. See Fla. R.Crim. P. 3.850(d) (2011).

As to the second issue, the defendant alleged the following facts. Despite strong evidence of his innocence, after receiving the State’s Williams rule notice, defense counsel told him he had no hope of winning at trial. His counsel told him Floridians are so biased against child sexual abuse cases that when the jury heard from a past victim of his, he would be convicted no matter how exculpatory the other evidence. His counsel also said the trial judge was hard on child sexual abuse defendants and would “hang” the defendant if he went to trial.

The trial court failed to address this issue in its summary denial. Florida case law indicates that when a trial court summarily denies one or more grounds of a rule 8.850 motion, the court’s order must state its rationale for summarily denying as to each issue raised. See Valentine v. State, 873 So.2d 608 (Fla. 5th DCA 2004) (“The [trial] court failed to consider and address the claims.... This does not permit meaningful appellate review by this court. On remand, the court should make a finding for each claim that it is either facially invalid and state a brief reason therefor[ ], or that it is conclusively refuted by the record, attaching relevant portions of the record, or ... making a specific reference to the attached whole.”); Loomis v. State, 691 So.2d 34, 35 (Fla. 2d DCA 1997) (“[The trial court] must attach to its order those portions of the record which conclusively establish that the appellant is entitled to no relief as to the claims advanced along with its reasons for so concluding. Alternatively, it must explain why those claims are facially insufficient or cannot be appropriately considered under rule 3.850.” (emphasis omitted)). Accordingly, we reverse on this issue and remand for the trial court to attach record documents conclusively refuting it or to hold an evidentiary hearing.

We affirm the trial court’s denial of the other two grounds in the defendant’s motion.

AFFIRMED in part, REVERSED in part, and REMANDED.

COHEN and JACOBUS, JJ., concur.

      . See Williams v. State, 110 So.2d 654 (Fla. 1959) (authorizing admission of similar fact evidence); see also § 90.404(2), Fla. Stat. (2009).


author: MARSTILLER, J.

text:
    S.S., Mother of C.M. and I.M., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D1I-5977.
    District Court of Appeal of Florida, First District.
    March 9, 2012.

      Susan Barber, Assistant Regional Conflict Counsel, Tallahassee, and Gertrude I. Kehne, Assistant Regional Conflict Counsel, Green Cove Springs, for Appellant.
    Kelley Schaeffer, Guardian ad Litem, Tavares, and Ward L. Metzger, Jacksonville, for Appellee.
   MARSTILLER, J.

S.S. (the “Mother”) appeals an order adjudicating her children C.M. and I.M. dependent and placing them in the custody of the Department of Children and Families (“Department”). Finding that the dependency adjudication is not supported by competent, substantial evidence, we reverse.

On June 6, 2011, the circuit court entered a Dependency Shelter Order for C.M. and I.M., aged seven years old and ten years old, respectively, removing them from their mother’s custody and placing them in a foster home. Subsequently, the Department filed a Petition for Dependency alleging the children had been abused, abandoned, or neglected and/or were at substantial risk of imminent threat of harm, abuse, or neglect. The Department specifically alleged that S.S. was a victim of domestic violence by her paramour, that S.S. was abusing alcohol and drugs, and that the children were excessively absent from school. As a result of “the mother’s alcohol and/or drug abuse and domestic violence,” the petition stated, “the children have been educationally neglected, exposed to domestic violence, exposed to drug abuse and are at risk of abuse and neglect.” The court held a hearing on the petition, and thereafter entered an Order of Adjudication of Dependency stating as grounds:

[T]he Department has proven by a preponderance of the evidence that the children are at substantial risk of imminent abuse and neglect. The Department has proven that the mother abuses alcohol and illegal substances to the extent that it has impaired her ability to care for the children and to maintain employment. The Department has further proven significant and ongoing domestic violence in the home. The Department has proven that the circumstances in the home have affected the children’s demeanor and school performance. The mother has also neglected the children’s dental health. Finally, the Department has proven psychological instability on the part of the mother as evidenced by self-mutilation. For the foregoing reasons, there exists a substantial and imminent risk of abuse, abandonment or neglect to the minor children [C.M.] and [I.M.],

A child is deemed dependent if the court finds him or her, inter alia, “[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” § 39.01(15)(f), Fla. Stat. (2011). “Abuse,” as defined in the statute, is any willful act or threatened act resulting in “physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions.” § 39.01(2), Fla. Stat. (2011) (emphasis added). A child suffers “abandonment” when his or her parent, “while being able, makes no provision for the child’s support and has failed to establish or maintain a substantial and positive relationship with the child.” § 39.01(1), Fla. Stat. (2011). “Neglect” means depriving a child of “necessary food, clothing, shelter, or medical treatment ... causing] the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.” § 39.01(44), Fla. Stat. (2011).

“[T]o support a finding of dependency, the parent’s harmful behavior must pose a present threat to the child based on current circumstances.” C.W. v. Dep’t of Children & Fams., 10 So.3d 136, 138 (Fla. 1st DCA 2009). “[I]n the absence of actual abuse, abandonment, or neglect, a finding of dependency can be made if prospective abuse, abandonment, or neglect is shown to be imminent.” J.B.M. v. Dep’t of Children & Fams., 870 So.2d 946, 951 (Fla. 1st DCA 2004) (citations omitted). “The terms ‘prospective’ and ‘imminent’ are not defined in the statute. ‘Prospective’ simply means likely to ‘happen,’ or ‘expected.’ ‘Imminent’ encompasses a narrower time frame and means ‘impending’ and ‘about to occur’.” E.M.A. v. Dep’t of Children & Fams., 795 So.2d 183 n. 3 (Fla. 1st DCA 2001) (internal citations omitted).

“A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record.” T.G. v. Dep’t of Children & Fams., 927 So.2d 104, 105 (Fla. 1st DCA 2006) (citation omitted). Here, the circuit court concluded C.M. and I.M. are at substantial risk of imminent abuse and neglect because of the Mother’s abuse of alcohol and illegal substances, significant and ongoing domestic violence by her paramour, her neglect of the children’s dental health, and her psychological instability. We consider each finding in turn.

Abuse of Alcohol and Illegal Substances

For purposes of finding dependency, harm to a child includes “extensive, abusive, and chronic use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage.” § 39.01(32)(g)2, Fla. Stat. (2011). The court found that “the mother abuses alcohol and illegal substances to the extent that it has impaired her ability to care for the children and to maintain employment.” A former supervisor of the Mother’s testified that she never saw the Mother drunk or drinking alcohol at work, though the Mother often would have others buy alcohol for her, which she would store until her shift ended. On one occasion, an overnight shift manager informed the supervisor that the Mother had reported for work apparently intoxicated. When confronted, the Mother claimed she had not been drinking before her shift, but had gotten drunk the night before and was experiencing the lingering effects. A second witness, I.M.’s former teacher, testified the Mother “reeked of alcohol” when she came to pick up the children after school one day. The teacher did nothing, however, because “they were walking instead of driving, and [the Mother] was ... speaking kind of sort of okay....” While this evidence shows that the Mother drinks, it is not sufficient to show “extensive, abusive, and chronic use” of alcohol.

The only evidence of the Mother’s alleged illegal substance abuse was the result of a single urine screen as testified to by a child protective investigator who neither administered the test, performed the chemical analysis, or interpreted the results; nor was she the custodian of the record. This testimony was hearsay and insufficient to lay the necessary predicate to introduce the lab report containing the drug test results. See § 90.803(6)(a), Fla. Stat. (2011); J.B.M., 870 So.2d at 949 (finding nurse’s testimony insufficient to lay proper predicate for admission of blood alcohol test where she did not draw the blood and was not custodian of records). Consequently, there was no competent evidence of the Mother’s drug use, let alone drug abuse. See In re S.J.T., 475 So.2d 951, 953 (Fla. 1st DCA 1985) (stating that court could not make a finding based on hearsay testimony of caseworker as to test results).

The Department presented insufficient evidence to prove that the Mother’s ability to care for her children and maintain employment is impaired by alcohol and drug use, as the court found. Although there was testimony that the children were often tardy to and absent from school, some instances were excused. The children’s teachers described them as clean, well kempt, well mannered, and earning average to above average grades. The child protective investigator testified that when she went to the Mother’s home, the children were clean and well behaved, the home was slightly cluttered, but presented no hazards, and there was adequate food. No one testified that C.M. and I.M. were poorly cared for, or that either child suffered physical, mental, or emotional harm because of the Mother’s alcohol and drug use. See B.C. v. Dep’t of Children & Fams., 846 So.2d 1273, 1275 (Fla. 4th DCA 2003) (dependency finding not supported by evidence where, although father had problem with marijuana and alcohol, there was no testimony that father failed to meet child’s needs, that child was physically harmed while in father’s care, or that that child was emotionally or mentally harmed by father’s alcohol and drug use).. There was no evidence showing that the Mother drank or took drugs in the children’s presence. And the Department presented no evidence that the Mother lost her job, or cannot stay employed, because of alcohol or drug use. In sum, there was insufficient evidence that the Mother abuses alcohol and drugs or that the children risk impending abuse and neglect from the Mother’s use of those substances. See In re L.C., 947 So.2d 1240, 1245-46 (Fla. 2d DCA 2007); J.B.M. 870 So.2d at 951.

Domestic Violence

Domestic violence may constitute abuse if it occurs in the child’s presence, the child saw or was aware of the violence occurring, and the violence resulted in physical or mental injury to the child. See C.W., 10 So.3d at 138; M.B. v. Dep’t of Children & Fam. Servs., 937 So.2d 709, 710-11 (Fla. 2d DCA 2006); D.R. v. Dep’t of Children & Fam. Servs., 898 So.2d 254, 255 (Fla. 3d DCA 2005); D.H. v. Dep’t of Children & Fams., 769 So.2d 424, 427 (Fla. 4th DCA 2000); D.D. v. Dep’t of Children & Fams., 773 So.2d 615, 617-18 (Fla. 5th DCA 2000). The trial court in the instant case found that there is “significant and ongoing domestic violence in the home.” Indeed, the Mother’s former supervisor testified that the Mother came to work once with a black eye that, according to the Mother, her live-in boyfriend inflicted. On another occasion, the supervisor observed red marks around the Mother’s neck. The child protective investigator saw bruising on the Mother’s legs and feet. And the children’s father testified that several years ago the Mother told him the boyfriend “had put his hands on her in a violent manner.” While this evidence supports a finding that incidents of violence have occurred between the Mother and her paramour, it is insufficient to support the court’s finding of “significant and ongoing domestic violence in the home.”

Furthermore, there was no evidence the children have witnessed or been affected by any incidents of domestic violence. The children's father testified they were living with him at the time the Mother related that the boyfriend had been violent toward her. And according to the child protective investigator, the children said they had heard the Mother and their “stepfather” yelling at each other, but they had not seen, and were not aware of, the adults hitting or throwing objects at each other. Nor had they seen their mother with a bruised face. Without evidence showing that domestic violence has occurred when the children were home, or that they otherwise were aware of the violence, the finding of impending harm to the children is unsubstantiated. See In re L.C., 947 So.2d at 1246 (concluding that finding of risk of impending abuse or neglect from domestic violence could not be sustained where there was no evidence that parents committed violent acts in front of the children).

Neglect of Children’s Dental Health

Neglect occurs when a parent deprives a child of, inter alia, necessary medical treatment. § 39.01(44), Fla. Stat. (2011). The term “necessary medical treatment” is defined as care necessary “to prevent the deterioration of a child’s condition or to alleviate immediate pain of a child.” § 39.01(43), Fla. Stat. (2011). The family services counselor testified that the children had not had dental care before the court placed them in the Department’s custody, and both required and received cleanings, sealants, and restorative fillings. But there had been no dental emergencies, and the children were not in pain. Assuming, without deciding, that routine dental care constitutes “necessary medical treatment” as defined in section 39.01(43), the counselor’s testimony does not show that lack of such care significantly impaired the children’s physical health. Moreover, the evidence shows that the Mother has been providing her children necessary health care. We therefore conclude the counsel- or’s testimony was not sufficient to establish imminent neglect under section 39.01(44) as a basis for finding the children dependent.

Psychological Instability

The Department presented evidence that the Mother engages in cutting, a method of self-harm. But there was no expert testimony describing the disorder or establishing how it could result in harm to the children. And the Mother testified that she is undergoing therapy for the problem and does not cut herself in front of the children. “Absent a sufficient nexus between a psychiatric disorder and the likelihood that a parent will substantially impair the [children’s] physical, mental, or emotional health, ... an adjudication of dependency cannot stand.” B.D. v. Dep’t of Children & Fams., 797 So.2d 1261, 1264 (Fla. 1st DCA 2001); see also I.T. v. State, Dep’t of Health & Rehab. Servs., 532 So.2d 1085, 1088 (Fla. 3d DCA 1988) (requiring “an explicit connection” between a parent’s psychiatric history and “a potential significant impairment of a child’s physical, mental, or emotional health”).

CONCLUSION

The trial court adjudicated C.M. and I.M. dependent finding them at risk of imminent abuse and neglect because of the Mother’s abuse of alcohol and illegal substances, significant and ongoing domestic violence by her paramour, her neglect of the children’s dental health, and her psychological instability. Because none of these findings is supported by competent, substantial evidence, we REVERSE the Order of Adjudication of Dependency.

THOMAS, and SWANSON, JJ., concur.

      . The Mother previously worked part-time at a fast food restaurant.

      . The Mother asserts that the trial court relied on the school absences as an independent basis for adjudicating the children dependent. We do not see such a ruling in the Order Adjudicating Dependency. Rather, it is apparent the court considered the tardiness and absences evidence of the Mother's inability to care for the children.

      . I.M. suffers from migraine headaches and is often absent from school or visiting the doctor as a result. The Mother testified that she sometimes has to take C.M. along on the doctor visits because she does not have her own transportation and has to rely on friends for rides.


text:
    Robert Lee JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 5D11-2335, 5D11-2345.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Robert L. Jackson, Jr., Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the trial court’s order denying Robert Jackson, Jr.’s motion to disqualify the successor trial judge. We dismiss the appeal of Mr. Jackson’s emergency motion for writ of habeas corpus, which alleged that he was wrongfully extradited from Georgia, without prejudice to raising those issues in Mr. Jackson’s appeal now pending before this Court in Case No. 5D07-1769.

AFFIRMED in part; DISMISSED in part.

ORFINGER, C.J., PALMER and EVANDER, JJ., concur.


text:
    SPRINGHILL HEALTH CARE ASSOCIATES, LLC, et al., Petitioners, v. Linda BENLEIN, Personal Representative of, etc., Respondent.
    No. 5D11-2780.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Thomas A. Valdez and Deborah L. Mos-kowitz of Quintamos, Prieto Wood & Boyer, P.A., Tampa, for Petitioners.
    Gregory J. Perenich and Jowita L. Wy-socka of Perenich Law, P.L., Clearwater, for Respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari because the trial court departed from the essential requirements of the law by ordering the production of documents and an answer to interrogatories without first conducting an in camera inspection to determine the precise nature of the ostensibly privileged documents and to further determine the applicability of the work product and statutory privileges.

Specifically, with respect to the document dated December 8, 2007, the trial court should determine if it is discoverable pursuant to section 400.147(4), Florida Statutes (2011). See Manner Health Care of Metrowest, Inc. v. Best, 879 So.2d 65, 67 (Fla. 5th DCA 2004) (if record discoverable pursuant to section 400.147(4), need and inability to obtain substantial equivalent from other sources without undue hardship must be shown). As to the document dated December 10, 2007 (and all documents identified by Bates numbers 00032-55), the trial court must determine whether these documents fall within the privilege identified in section 400.147(8)(d), or any other applicable privilege asserted by Springhill Health Care Associates, LLC, in its response. Concerning the last document, although we view the assertion of privilege with some skepticism given the nature of the document, the trial court should consider the applicability of section 415.107(1), before compelling the production of the document. Additionally, the trial court should also address the claimed privileges to the interrogatory.

PETITION GRANTED; ORDER QUASHED.

GRIFFIN, SAWAYA and TORPY, JJ„ concur.


text:
    Nicholas J. FREDERICK, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3629.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Nicholas J. Frederick, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, 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 2009-CF-009120-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, TORPY and LAWSON, JJ., concur.


author: PER CURIAM. GRIFFIN, J.,

text:
    John R. GODSHALK, Appellant, v. COUNTRYWIDE HOME LOANS SERVICING, L.P., et al., Appellees.
    No. 5D10-2376.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Michael E. Rodriguez of Foreclosure Defense Law Firm, PL, Tampa, for Appellant.
    Thomasina F. Moore and Dennis W. Moore of Butler & Hosch, P.A., Orlando, for Appellee.
   PER CURIAM.

We conclude that Appellant failed to sufficiently plead the denial of a condition precedent in this foreclosure action. For that reason, we affirm the summary judgment. Appellee, Countrywide Home Loans Servicing, L.P., pleaded generally in its complaint that it had complied with all conditions precedent. Its affidavit in support of summary judgment asserted, among other things, that all of the allegations in the complaint were true. Appellant’s shotgun denial failed to specify which of the thirteen types of notices required by the ten-page mortgage document had not been sent. Instead, he merely denied that “any of the notices required by the document” had been sent. During the ensuing two years, Appellant never attempted to amend his pleading. At the hearing, Appellant revealed for the first time that his defense was based on the failure to send the notice of acceleration. The purpose of Florida Rule of Civil Procedure 1.120(c) is to put the burden on the defendant to identify the specific condition that the plaintiff failed to perform-so that the plaintiff may be prepared to produce proof or cure the omission, if it can be cured. The rule is intended to force a defendant to show his hand in advance to avoid surprise. As in all pleading, good faith is imperative. Here, Appellant chose to hold his cards close to his vest by use of an overbroad pleading. An overbroad pleading is not a particular and specific one. If the notice of acceleration was the focus of Appellant’s defense, he could have, and should have, framed his pleading to focus on that particular notice. Had he done so, Appellee could have focused its application for summary judgment on the acceleration notice.

AFFIRMED.

TORPY and LAWSON, JJ., concur.

GRIFFIN, J., dissents with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent from the majority’s decision to uphold the appealed judgment based on the appellant’s failure to deny with sufficient specificity and particularity the appellee’s general allegation that all conditions precedent to the filing of suit had been met. The majority has construed the rule requirement too narrowly and has turned the rules of procedure on their head by excusing Countrywide’s lack of compliance with the summary judgment rule on this basis.

Godshalk appealed a summary final judgment in favor of Countrywide in a mortgage foreclosure case. Godshalk contends that Countrywide failed to establish that it was entitled to summary judgment because it failed to refute the defenses in his answer and affirmative defenses.

In 2007, Godshalk had executed the note and mortgage in favor of Countrywide Bank, FSB, who assigned the mortgage to Countrywide. On September 4, 2008, Countrywide filed suit to foreclose the mortgage, alleging that Godshalk was in default on the note and mortgage because he failed to make any payments since February 2008. In paragraph 5 of the complaint, entitled “Default on Note and Mortgage,” Countrywide alleged that: “notice of default and demand for payment was sent to the present owners of the property and mortgagors, and they have still failed to pay as required.” Also, consistent with Florida Rule of Civil Procedure 1.120(c), Countrywide generally alleged:

8. CONDITIONS PRECEDENT:
Plaintiff has complied with all conditions precedent to its right to foreclose.

Godshalk filed an answer and affirmative defenses on March 9, 2009. He denied the allegations of paragraph 5 of the complaint. With respect to paragraph 8 of the complaint, Godshalk answered:

8. Denied. Neither the Plaintiff nor any other person has provided any of the notices required by the document that the Plaintiff purports to be the applicable mortgage in this matter.

Countrywide filed its motion for summary judgment on February 11, 2009, and a hearing was held on its motion on June 9, 2010. In it, there was no mention of any legal deficiency in Godshalk’s response to Countrywide’s general claim that all conditions precedent had been met. At the hearing, Godshalk argued that Countrywide had not refuted his lack of notice defense. Countrywide then displayed to the court a document purporting to be a copy of a notice of default sent to Godshalk in April 2008. This document had not been filed twenty days prior to the hearing in accordance with Florida Rule of Civil Procedure 1.510, nor was it filed at any time prior to the summary judgment hearing. For that matter, it does not appear anywhere of record in this appeal. At the hearing, Godshalk objected: “Just for the record, I will object to the use of the letter which Plaintiff is trying to attempt to use as evidence today as a response.... ” Nevertheless, after the hearing, the court entered summary final judgment of foreclosure in favor of Countrywide and scheduled the foreclosure sale.

Godshalk argues that the trial court erred in entering summary judgment in favor of Countrywide because Countrywide did not meet its initial burden of conclusively showing that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Specifically, he contends that Countrywide failed to establish by evidence on the record that there was no issue as to God-shalk’s denial that Countrywide had given him the required notices under the mortgage. If Countrywide had simply followed rule 1.510 by filing the notice of default in the record in a timely manner, this would be an easy affirmance. However, in apparent recognition that its failure to timely file the bank’s notice of default, or even to include the notice in the record of the proceedings below, might present an obstacle to their effort to uphold the summary judgment, Countrywide has found a new argument on appeal. Countrywide argues that Godshalk’s response to their general allegation that it had met all conditions precedent to filing suit was legally insufficient, so no duty to meet it with evidence ever arose. Countrywide contends that paragraph 8 of the answer lacks sufficient specificity and particularity. The majority accepts its argument; I do not.

Florida Rule of Civil Procedure 1.120(c) does require that a “denial of performance or occurrence [of a condition precedent] shall be made specifically and with particularity.” Since the denial seems pretty particular (none of the notices required under the mortgage was given), the problem must be a lack of specificity, i.e. that God-shalk did not identify which of the notices contained in the mortgage were not given. Evidently, it is not enough to allege that none was complied with, each one must be separately identified.

Godshalk’s position is that his denial of the conditions precedent was plenty specific and particular enough. He relies on Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009). There, the bank also had asserted that, by failing to identify the specific notice provisions of the mortgage allegedly not complied with, the lack-of-notice defense was legally insufficient, but the Fourth District rejected that contention. The only distinction between this case and Frost is that there the defendant alleged that there was no notice of default; whereas, in this case, the allegation was that none of the notices required had been given. This is not a difference you could drive a truck through, and it strikes me as absurd that the difference between success or failure of pleading in this case is the failure to identify by paragraph or title every notice that was not given. This is especially true given that the suit was for foreclosure of a mortgage based on a default in payment. The bank clearly knew which notices were at issue, as they came to the summary judgment hearing armed ■with a copy of the notice of default for lack of payment and legal argument on the notice of acceleration.

The lesson of this case for defendants is that the Fifth District Court of Appeal demands strict compliance with rule 1.210(c) and considers any violation to be fundamental. Extremely close attention should be given to the “specificity” and “particularity” requirements. As this case illustrates, non-compliance with the rule need not be raised below in order to succeed on appeal, so there will be no second chance to get this critical point of pleading right. Apparently, if Godshalk had simply added three words:

8. Denied. Neither the Plaintiff nor any other person has provided any of the notices [including paragraph-] required by the document that the Plaintiff purports to be the applicable mortgage in this matter,

he would not have lost this appeal.

The good news for plaintiffs, especially mortgage foreclosure plaintiffs, is that the seemingly insurmountable difficulties of actual compliance with the summary judgment rule can now be avoided by the simple expedient of attacking the “specificity” and “particularity5’ of the defendant’s response to their assertion that all conditions precedent were met.

Countrywide does offer us a back-up argument for affirmance. In April 2009, Countrywide filed an affidavit of a Mr. Donald Clark, who executed the document as “Assistant Vice President,” although he never says what he is assistant vice president of, nor does he ever assert he is employed by Countrywide. He says that: “By nature of his/her position with the Plaintiff or as its agent knows that the ... information hereafter given is contained in the original books and records maintained in the office of [Countrywide].” He never avers that notice of default was given, he merely avers that: “Each and every alie-gation contained in the Complaint to Foreclose Mortgage are true.” It is clear under Florida law that an affidavit merely-attesting that a pleading is “true” cannot defeat a summary judgment motion. Lazuran v. Citimortgage, Inc., 35 So.3d 189 (Fla. 4th DCA 2010). Rule 1.510(e) requires:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

This further illustrates the thermo-nu-clear potency of an attack on the specificity and particularity of a defendant’s denial of performance of conditions precedent. Here, the filing requirements of rule 1.510 were ignored and the affidavit supporting the motion for summary judgment was plainly not compliant with the rule. No motion for judgment on the pleadings was filed and no mention of the pleading deficiency was mentioned as a basis for summary judgment. No competent evidence was offered to refute Godshalk’s denial of Countrywide’s general allegation that no notice of default had been given. Nevertheless, these defects on the part of the summary judgment movant melted away in the face of the mortgagor’s failure to allege the number of the paragraph requiring notice of default in the mortgage attached to the complaint. There is no principled reason that I can think of why a lack of adequacy of sufficient particularity or specificity in the reply to any answer generally alleging compliance with conditions precedent should not work in any civil case just as it has in this one.

      . Countrywide also argued that the filing of the complaint in September 2008 was adequate notice of acceleration of the debt.

      . The format of this affidavit looks much like “robo-signed” affidavits that have recently come to light in other foreclosure cases. Robo-signed affidavits refer to documents prepared and executed through procedures used by banks to set up departments to execute foreclosure documents with no training, expertise or file review. See generally Peterson v. Carrington Mortg. Serv., LLC., 2011 WL 6934551 (Dec. 28, 2011).


author: ORFINGER, C.J.

text:
    Robert ROBERTSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4565.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Robert Robertson, Mayo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, C.J.

Robert Robertson alleges that the trial court erred in summarily denying his Florida Rule of Criminal Procedure 3.800(a) motion seeking additional jail-time credit, which would have entitled him to habeas relief of immediate release. We disagree, and affirm.

Mr. Robertson contends that he is entitled to additional jail credit in his Orange County violation of probation (“VOP”) case for the time he spent in the Hillsborough County jail from June 25, 2011, to September 21, 2011. Mr. Robertson is not entitled to credit for time served in Hillsborough County because the warrant for the Orange County VOP was not executed until September 27, 2011. Gethers v. State, 838 So.2d 504, 508 (Fla.2003) (holding that defendant is entitled to credit only after warrant is actually served, and is not entitled to credit merely due to placement of detainer). While a Hillsborough county judge informed Mr. Robertson on June 25, 2011, of the existence of an Orange County arrest warrant for the affidavit of violation of probation, a judge lacks authority to execute a warrant. See § 901.04, Fla. Stat. (2011) (directing warrant is executed only by sheriff of county in which arrest is to be made unless arrest is made in fresh pursuit). In fact, Orange County merely placed a detainer with Hillsborough County and the warrant was not executed until Mr. Robertson arrived in Orange County.

Accordingly, the trial court properly denied Mr. Robertson’s claim for additional jail-time credit toward his Orange County sentence. Since Mr. Robertson is not entitled to any additional jail-time credit, he is also not entitled to habeas corpus relief.

AFFIRMED.

TORPY and EVANDER, JJ., concur.


text:
    Phillip R. PERRY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-56.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Phillip R. Perry, Madison, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, 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 order denying the motion for postconviction relief in case no. 2005-2890-CF, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, PALMER, and COHEN, JJ., concur.


text:
    Christopher G. MANGIAFICO, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-64.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.

      Christopher G. Mangiafico, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Although it appears that the trial court carefully considered this petition for jail credit, as the State properly concedes, the trial court failed to attach the records to the order to refute the facially sufficient petition.

REVERSED AND REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.


text:
    Robbie REESE, Appellant, v. LORILLARD TOBACCO COMPANY, et al., Appellee.
    No. 5D10-18S1.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Steven L. Brannock, Celene H. Hum-phries, and Tyler K. Pitchford, of Bran-
    nock & Humphries, and James D. Clark, Don Greiwe, of Alley,: Clark & Greiwe, Tampa, for Appellant.
    David L. Ross, Elliot H. Scherker, Brigid F. Cech Samóle, of Greenberg Traurig, P.A., Miami, for Appellee, Lorillard Tobacco Company.
    David B. Thorne and Jennifer M. Voss, of Shook, Hardy & Bacon, L.L.P., Tampa, and William P. Geraghty, Frank Cruz-Alvarez, of Shook, Hardy & Bacon, LLP, Miami, and Jeffrey E. Bigman, of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, for Appellee, Philip Morris USA, Inc.
    Kelly Anne Luther, Maria H. Ruiz and Giselle Gonzalez Manseur, of Kasowitz, Benson, Torres & Friedman, LLP, Miami, for Appellees, Liggett Group LLC and Vector Group Ltd.
   PER CURIAM.

Appellant challenges the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively “Appellees”) in this Engle-progeny case. Appellant argues that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


text:
    Shirley STAMPER and William Stamper, Appellants, v. LORILLARD TOBACCO COMPANY, Appellee.
    No. 5B10-1834.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Steven L. Brannock, Celene H. Hum-phries, and Tyler K. Pitchford, of Bran-nock & Humphries, and James D. Clark, Don Greiwe, of Alley, Clark & Greiwe, Tampa, for Appellants.
    David L. Ross, Elliot H. Scherker, Brigid F. Cech Samóle, of Greenberg Traurig, P.A., Miami, for Appellee, Lorillard Tobacco Company.
    David B. Thorne and Jennifer M. Voss, of Shook, Hardy & Bacon, L.L.P., Tampa, William P. Geraghty and Frank Cruz-Alvarez, of Shook, Hardy & Bacon, L.L.P., Miami, and Jeffrey E. Bigman, of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, for Appellee, Philip Morris USA, Inc.
    Kelly Anne Luther, Maria H. Ruiz and Giselle Gonzalez Manseur, of Kasowitz, Benson, Torres & Friedman, LLP, Miami, for Appellees, Liggett Group LLC and Vector Group Ltd.
   PER CURIAM.

Appellants challenge the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively “Appellees”) in this Engle-progeny case. Appellants argue that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


text:
    John S. WHITE and Anna I. White, Appellants, v. LORILLARD TOBACCO COMPANY, Appellee.
    No. 5D10-1835.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Steven L. Brannock, Celene H. Hum-phries, and Tyler K. Pitchford, of Bran-nock & Humphries, and Hendrik Uiterwyk and Brent R. Bigger, of Abrahamson & Uiterwyk, Tampa, for Appellants, John S. White and Anna I. White.
    David L. Ross, Elliot H. Scherker, Brigid F. Cech Samóle, of Greenberg Traurig, P.A., Miami, for Appellee, Lorillard Tobacco Company.
    David B. Thorne and Jennifer M. Voss, of Shook, Hardy & Bacon, L.L.P., Tampa, and William P. Geraghty and Frank Cruz-Alvarez, of Shook, Hardy & Bacon, L.L.P., Miami, and Jeffrey E. Bigman, of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, for Appellee, Philip Morris USA, Inc.
    Kelly Anne Luther, Maria H. Ruiz and Giselle Gonzalez Manseur, of Kasowitz, Benson, Torres & Friedman, LLP, Miami, for Appellees, Liggett Group LLC and Vector Group Ltd.
   PER CURIAM.

Appellants challenge the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively “Appellees”) in this Engle-progeny case. Appellants argue that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


text:
    Sharon KIST, as Personal Representative, etc., Appellant, v. LORILLARD TOBACCO COMPANY, et al., Appellee.
    No. 5D10-1836.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.

      Steven L. Brannock, Celene H. Hum-phries, and Tyler K. Pitchford, of Bran-nock & Humphries, and James D. Clark, Don Greiwe, of Alley, Clark & Greiwe, Tampa, and Gregory D. Prysock, of Morgan & Morgan, P.A., Jacksonville, and Keith R. Mitnik, of Morgan & Morgan, P.A., Orlando, for Appellant.
    David L. Ross, Elliot H. Scherker, Brigid F. Cech Samóle, of Greenberg Traurig, P.A., Miami, for Appellee, Lorillard Tobacco Company.
    Jeffrey E. Bigman, of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, David B. Thorne and Jennifer M. Voss, of Shook, Hardy & Bacon L.L.P., Tampa, and William P. Geraghty and Frank Cruz-Alvarez, of Shook, Hardy & Bacon, L.L.P., Miami, for Appellee, Philip Morris USA, Inc.
    Kelly Anne Luther, Maria H. Ruiz and Giselle Gonzalez Manseur, of Kasowitz, Benson, Torres & Friedman, LLP, Miami, for Appellees, Liggett Group LLC and Vector Group Ltd.
   PER CURIAM.

Appellant challenges the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively “Appellees”) in this Engle-progeny case. Appellant argues that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


text:
    Dana D. GARNER, As Personal, etc., et al., Appellants, v. LORILLARD TOBACCO COMPANY, et al., Appellees.
    No. 5D10-1838.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Steven L. Brannock, Celene H. Hum-phries, and Tyler K. Pitchford of Brannock & Humphries, Tampa, and Gregory D. Prysock, of Morgan & Morgan, Jacksonville, and Keith R. Mitnik, of Morgan & Morgan, Orlando, for Appellant.
    David L. Ross, Elliot H. Scherker and Brigid F. Cech Samóle, of Greenberg Traurig, P.A., Miami, and Dawn Giebler Milner, of Greenberg Traurig, L.L.P., Orlando, for Appellees Lorillard Tobacco Company.

      Kelly Luther, Maria H. Ruiz and Giselle Gonzalez Manseur, of Kasowitz, Benson, Torres & Friedman, L.L.P., Miami, for Appellees Liggett Group L.L.C. & Vector Group Ltd.
    Jeffrey E. Bigman, of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, and David B. Thorne and Jennifer M. Voss, of Shook, Hardy & Bacon, L.L.P., Tampa, and William P. Ger-aghty and Frank Cruz-Alvarez, of Shook, Hardy & Bacon, L.L.P., Miami, for Appel-lees Phillip Morris USA, Inc.
   PER CURIAM.

Appellants challenge the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively “Appellees”) in this Engle-progeny case. Appellants argue that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ„ concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


text:
    Margaret BROWN, as Personal, etc., Appellant, v. LORILLARD TOBACCO COMPANY, et al., Appellees.
    No. 5D10-1840.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Steven L. Brannock, Celene H. Hum-phries, and Tyler K. Pitchford of Brannock & Humphries, Tampa, and Gregory D. Prysock, of Morgan & Morgan, Jacksonville, and Keith R. Mitnik, of Morgan & Morgan, Orlando, for Appellant.
    David L. Ross, Elliot H. Scherker and Brigid F. Cech Samóle, of Greenberg Traurig, P.A., Miami, and Dawn Giebler Milner, of Greenberg Traurig, L.L.P., Orlando, for Appellees Lorillard Tobacco Company.
    Kelly Luther, Maria H. Ruiz and Giselle Gonzalez Manseur, of Kasowitz, Benson, Torres & Friedman, L.L.P., Miami, for Appellees Liggett Group L.L.C. & Vector Group Ltd.
    Jeffrey E. Bigman, of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, and David B. Thorne and Jennifer M. Voss, of Shook, Hardy & Bacon, L.L.P., Tampa, and William P. Ger-aghty and Frank Cruz-Alvarez, of Shook, Hardy & Bacon, L.L.P., Miami, for Appel-lees Phillip Morris USA, Inc.
   PER CURIAM.

Appellant challenges the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively “Appellees”) in this Engle-progeny case. Appellant argues that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


text:
    Delores D. BRACKETT, as Personal, etc., Appellant, v. LORILLARD TOBACCO COMPANY, Appellee.
    No. 5D10-1842.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Steven L. Brannock, Celene H. Hum-phries, and Tyler K. Pitchford of Brannock & Humphries, Tampa, and Gregory D. Prysock, of Morgan & Morgan, Jacksonville, and Keith R. Mitnik, of Morgan & Morgan, Orlando, for Appellant.
    David L. Ross, Elliot H. Scherker and Brigid F. Cech Samóle, of Greenberg Traurig, P.A., Miami, and Dawn Giebler Milner, of Greenberg Traurig, L.L.P., Orlando, for Appellees Lorillard Tobacco Company.
    Kelly Luther, Maria H. Ruiz and Giselle Gonzalez Manseur, of Kasowitz, Benson, Torres & Friedman, L.L.P., Miami, for Appellees Liggett Group L.L.C. & Vector Group Ltd.
    Jeffrey E. Bigman, of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, and David B. Thorne and Jennifer M. Voss, of Shook, Hardy & Bacon, L.L.P., Tampa, and William P. Ger-aghty and Frank Cruz-Alvarez, of Shook, Hardy & Bacon, L.L.P., Miami, for Appel-lees Phillip Morris USA, Inc.
   PER CURIAM.

Appellant challenges the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively “Appellees”) in this Engle-progeny ease. Appellant argues that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (8) summary judgment was improper as to the civil conspiracy count. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


text:
    Nedda BLAKE, as Personal Representative, etc., Appellant, v. LORILLARD TOBACCO COMPANY, et al., Appellees.
    No. 5D10-1844.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Steven L. Brannock, Celene H. Hum-phries, and Tyler K. Pitchford of Brannock & Humphries, Tampa, and Gregory D. Prysock, of Morgan & Morgan, Jacksonville, and Keith R. Mitnik, of Morgan & Morgan, Orlando, for Appellant.
    David L. Ross, Elliot H. Scherker and Brigid F. Cech Samóle, of Greenberg Traurig, P.A., Miami, and Dawn Giebler Milner, of Greenberg Traurig, L.L.P., Orlando, for Appellees Lorillard Tobacco Company.
    Kelly Luther, Maria H. Ruiz and Giselle Gonzalez Manseur, of Kasowitz, Benson, Torres & Friedman, L.L.P., Miami, for Appellees Liggett Group L.L.C. & Vector Group Ltd.
    Jeffrey E. Bigman, of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, and David B. Thorne and Jennifer M. Voss, of Shook, Hardy & Bacon, L.L.P., Tampa, and William P. Ger-aghty and Frank Cruz-Alvarez, of Shook, Hardy & Bacon, L.L.P., Miami, for Appel-lees Phillip Morris USA, Inc.
   PER CURIAM.

Appellant challenges the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively “Appellees”) in this Engle-progeny case. Appellant argues that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


text:
    Dorothe M. McGHEE, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees.
    No. 5D10-1845.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Steven L. Brannock, Celene H. Hum-phries and Tyler K. Pitchford of Brannock & Humphries, Tampa, James D. Clark and Don Greiwe of Alley, Cark & Greiwe, Tampa, for Appellant.
    Benjamin H. Hill, III, and Troy A. Fuhrman of Hill, Ward & Henderson, P.A., Tampa, Stephanie E. Parker, John F. Yarber, John M. Walker and Jones Day, Atlanta, Georgia, for Appellee R.J. Reynolds Tobacco Company.
    David L. Ross, Elliott H. Scherker and Brigid F. Cech Samóle of Greenberg Trau-rig, P.A., Miami, for Appellee Lorillard Tobacco.
    David B. Thorne and Jennifer M. Voss of Shook, Hardy & Bacon, L.L.P., Tampa, and William P. Geraghty and Frank Cruz-Alvarez of Shook, Hardy & Bacon L.L.P., Miami, and Jeffrey E. Bigman of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, for Appellee Philip Morris USA, Inc.
    Kelly Anne Luther, Maria H. Ruiz and Giselle Gonzalez Manseur of Kasowitz, Benson, Torres & Friedman, LLP, Miami, for Appellees Liggett Group, LLC and Vector Group Ltd., Inc.
   PER CURIAM.

Appellant challenges the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively “Appellees”) in this Engle-progeny case. Appellant argues that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

        . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


text:
    Michael J. CAMPOS, as personal, etc., Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees.
    No. 5D10-1846.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Steven L. Brannock, Celene H. Hum-phries and Tyler K. Pitchford of Brannock & Humphries, Tampa, James D. Clark and Don Greiwe of Alley, Clark & Greiwe, Tampa, C. Calvin Warriner, III, David J. Sales of Searcy, Denney, Scarola, Barn-hart & Shipley, P.A., West Palm Beach, Bruce R. Anderson, Angelo M. Patacca, Jr., and Evan J. Yegelwel of Terrell, Hogan, et. al., Jacksonville, for Appellant.
    Benjamin H. Hill, III, and Troy A. Fuhrman of Hill, Ward & Henderson, P.A., Tampa, Stephanie E. Parker, John F. Yarber, John M. Walker and Jones Day, Atlanta, Georgia, for Appellee R.J. Reynolds Tobacco Company.
    David L. Ross, Elliot H. Scherker and Brigid F. Cech Samóle of Greenberg Trau-rig, P.A., Miami, for Appellee Lorillard Tobacco Company.
    Kelly Anne Luther, Maria H. Ruiz and Giselle Gonzalez Manseur of Kasowtiz, Benson, Torres & Friedman, LLP, Miami, for Appellees Liggett Group, LLC and Vector Group Ltd., Inc.
    David B. Thorne and Jennifer M. Voss of Shook, Hardy & Bacon, L.L.P., Tampa, and William P. Geraghty and Frank Cruz-Alvarez of Shook, Hardy & Bacon, L.L.P., Miami, and Jeffrey E. Bigman of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, for Appellee Philip Morris USA, Inc.
   PER CURIAM.

Appellant challenges the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively “Appellees”) in this Atw/fe progeny case. Appellant argues that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Moms, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


text:
    Linda FRANKLIN, as Personal, etc., Appellant, v. LORILLARD TOBACCO COMPANY, et al., Appellees.
    No. 5D10-1848.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Steven L. Brannock, Celene H. Hum-phries and Tyler K. Pitchford of Brannock & Humphries, Tampa, James D. Clark and Don Greiwe of Alley, Cark & Greiwe, Tampa, Gregory D. Prysock of Morgan & Morgan, P.A., Jacksonville, and Keith R. Mit-nik of Morgan & Morgan, P.A., Orlando, for Appellant.
    David L. Ross, Elliott H. Scherker and Brigid F. Cech Samóle of Greenberg Trau-rig, P.A., Miami, for Appellee Lorillard Tobacco Company.
    Kelly Anne Luther, Maria H. Ruiz and Giselle Gonzalez Manseur of Kasowtiz, Benson, Torres & Friedman, LLP, Miami, for Appellees Liggett Group, LLC and Vector Group Ltd.
    David B. Thorne and Jennifer M. Voss of Shook, Hardy & Bacon, L.L.P., Tampa, and William P. Geraghty and Frank Cruz-Alvarez of Shook, Hardy & Bacon, L.L.P., Miami, and Jeffrey E. Bigman of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, for Appellee Philip Morris USA, Inc.
   PER CURIAM.

Appellant challenges the summary judgment in favor of Lorillard Tobacco Company, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Vector Group, Ltd., Inc., and Liggett Group, LLC (collectively “Appellees”) in this Engle-progeny case. Appellant argues that: (1) summary judgment was premature; (2) summary judgment was improper because Appellees did not prove the absence of fact issues; and (3) summary judgment was improper as to the civil conspiracy count. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ„ concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


text:
    Philip D. HETZNER, As Personal, etc., Appellant, v. LORILLARD TOBACCO COMPANY, et al., Appellees.
    No. 5D10-2005.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Christopher V. Carlyle, B.C.S., and Shannon McLin Carlyle, B.C.S., of The Carlyle Appellate Law Firm, The Villages, Rod Smith and Dawn M. Vallejos-Nichols of Avera & Smith, LLP, Gainesville, for Appellant.
    Frank Cruz-Alvarez, David B. Thorne and Jennifer M. Voss of Shook Hardy & Bacon, L.L.P., Tampa, Gary L. Sasso of Carlton Fields, P.A., Tampa, and Jeffrey E. Bigman of Smith, Hood, Loucks, Stout, Bigman & Brock, P.A., Daytona Beach, for Appellee Philip Morris USA, Inc.
    David L. Ross, Elliot H. Scherker and Brigid F. Cech Samóle of Greenberg Trau-rig, P.A., Miami, for Appellee Lorillard Tobacco Company.
    Karen H. Curtis of Clarke Silverglate, P.A., Miami, for Liggett Group LLC and Vector Group, Ltd., Inc.
   PER CURIAM.

Philip D. Hetzner (“Appellant”), as personal representative for his deceased wife, Carol E. Hetzner, appeals the trial court’s order granting summary judgment in favor of Philip Morris USA, Inc., Liggett Group, LLC, and Vector Group Ltd., Inc., in this Engle-progeny case. Appellant raises three issues on appeal. In issues I and III, Appellant challenges the grant of summary judgment on all counts. We affirm the trial court’s summary judgment on all counts, except the civil conspiracy count. As to that count, we adopt the well-reasoned opinion of our sister court in Rey v. Philip Morris, Inc., 75 So.3d 378 (Fla. 3d DCA 2011). It is unnecessary that we address the remaining issue regarding the affidavit of Appellant’s expert.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ„ concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006).

      . At oral argument, counsel alerted this Court that Vector Group, Ltd., had not been a defendant in Engle and might have other defenses not yet addressed below. For clarity, our decision today only addresses issues that were properly before us.


author: PER CURIAM. COHEN, J.,

text:
    Shaun Terial ISOM, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3793.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

ORFINGER, C.J., and MONACO, J., concur.

COHEN, J., concurs and concurs specially, with opinion.

COHEN, J.,

concurring specially.

I agree that the prosecutor’s closing argument, offered without objection, did not pervade the trial, thereby impairing the jury’s dispassionate consideration of the evidence. The evidence presented against Mr. Isom was convincing. It included a videotape of the robbery, both an out-of- and in-court identification of Mr. Isom by the victim, and testimony by the co-defendant. However, I feel compelled to express my disapproval of certain statements made by the prosecutor during her closing argument.

Her closing argument was replete with error. She overstepped the permissible boundaries of argument by stating:

The State has no agenda against Mr. Isom. We want the person who committed the crime to be held responsible for the crime. And we didn’t just single out Mr. Isom because one day in January up in the State’s Attorney’s Office I thought, hmmm, you know what, I think I’ll pick the man right there, and I’ll make him a target of the offense and we’ll say he did it.

A prosecutor may not argue that the State has no interest in convicting anyone other than the guilty, or make comments to that effect. Ruiz v. State, 743 So.2d 1, 5 (Fla.1999). Additionally, the prosecutor improperly bolstered the testimony of the lead detective and the co-defendant, see Servis v. State, 855 So.2d 1190, 1194-95 (Fla. 5th DCA 2003), informed the jury that Mr. Isom had been in jail for over six months before trial, see Cantero v. State, 612 So.2d 634, 635 (Fla. 2d DCA 1993), and simply made up evidence as to how exposure to sunlight affects the complexion of African Americans. See Ford v. State, 702 So.2d 279, 280 (Fla. 4th DCA 1997).

“A criminal trial is a neutral arena wherein both sides place evidence for the jury’s consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury’s view with personal opinion, emotion, and non-record evidence....” Ruiz, 743 So.2d at 4. These goals were undermined in the present case due to the prosecutor’s improper argument.


text:
    DEPARTMENT OF REVENUE obo Lashawndria E. MASH, Appellant, v. Miguel D. INGRAM, Appellee.
    No. 1D11-3223.
    District Court of Appeal of Florida, First District.
    March 12, 2012.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

In light of this Court’s decision in Department of Revenue ex rel. Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011), the final administrative support order being appealed herein is reversed, and the matter is remanded to the Division of Administrative Hearings for further proceedings.

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    DEPARTMENT OF REVENUE, o/b/o Latasha S. CRUMBLY, Appellant, v. Barrington W. HIBBERT, Jr., Appellee.
    No. 1D11-5432.
    District Court of Appeal of Florida, First District.
    March 13, 2012.
    Barrington W. Hibbert, Jr., Appellee.
   PER CURIAM.

REVERSED and REMANDED. See Dep’t of Revenue ex rel. Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011).

DAVIS, THOMAS, and RAY, JJ., concur.


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    Scott F. ATEN, Appellant, v. DELL AIR HEATING, Air Conditioning & Refrigeration, Inc./Amerisure Insurance Co., Appellees.
    No. 1D11-5919.
    District Court of Appeal of Florida, First District.
    March 14, 2012.

      Joey D. Oquist of Royal Palm Legal Services, P.A., St. Petersburg, for Appellant.
    Jamey Rodgers, Maitland, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this court’s December 2, 2011, order to show cause, we conclude the order on appeal is a non-appealable, nonfinal order because it merely denies Appellant’s motion for summary final order, without disposing of the claim. See Fla. R.App. P. 9.180(b)(1); Green Tree Servicing, LLC v. Genaux, 951 So.2d 1000 (Fla. 1st DCA 2007) (dismissing appeal as premature because order merely denies motion for summary judgment and is not an appealable final order). Accordingly, the appeal is DISMISSED for lack of jurisdiction.

WOLF, CLARK, and WETHERELL, J.J., concur.


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    J.K.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-454.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    Valerie A. Walker, Assistant Public Defender, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s responses to the Court’s orders of January 30, 2012, and February 21, 2012, the Court has determined that the appellant has failed to demonstrate the notice of appeal was timely filed. Accordingly, the appeal is dismissed as untimely. The dismissal is without prejudice to the appellant’s right to seek belated review pursuant to Florida Rule of Appellate Procedure 9.141(c).

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    Michael A. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6562.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    Michael A. White, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.100(c); see Pompi v. City of Jacksonville, 872 So.2d 931 (Fla. 1st DCA 2004); Jacobson v. Sklaire, 50 So.3d 1 (Fla. 3d DCA 2010). This dismissal is without prejudice to any right the appellant may have to seek belated review, see Brigham v. State, 769 So.2d 1100 (Fla. 1st DCA 2000); Parker v. McNeil, 9 So.3d 761 (Fla. 1st DCA 2009), or other relief, see G.W. v. Rushing, 22 So.3d 819, 821 (Fla. 2d DCA 2009); Alistan v. State, 685 So.2d 1312, 1313 (Fla. 2d DCA 1996).

DAVIS, CLARK, and ROWE, JJ„ concur.