author: SILBERMAN, Chief Judge.

text:
    Joseph G. PROCACCI, Appellant, v. John P. HARLLEE IV and Scott A. Harllee, as Trustee of the Scott A. Harllee Revocable Trust, Appellees.
    No. 2D11-6525.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2012.
    Jeffrey D. Fridkin of Grant, Fridkin, Pearson, Athan & Crown, P.A., Naples, for Appellant.
    William E. Partridge of Grossman Roth and Partridge, Sarasota, for Appellees.
   SILBERMAN, Chief Judge.

In this action by John P. Harllee IV and Scott A. Harllee, as Trustee of the Scott A. Harllee Revocable Trust (the Harllees), against Joseph G. Procacci for unjust enrichment, Procacci appeals a nonfinal order that denies his motion to transfer venue from Manatee County to Collier County. Because venue lies only in Collier County, Florida, where Procacci resides, we reverse the order denying Procacci’s motion to transfer venue and remand for the trial court to transfer the action to Collier County. We also vacate the portion of the order that denies Pro-cacci’s motion to dismiss.

Procacci and the Harllees were shareholders in Harllee Packing, Inc. The shareholders’ agreement provided that if a shareholder receives a bona fide third-party offer to purchase his shares, he must promptly advise the other shareholders of the offer and they may then exercise a right of first refusal. Procacci advised the other shareholders that he had received an offer to purchase 760 of his shares. The Harllees attempted to exercise their right to purchase Procacci’s 760 shares, but he refused. As a result, the Harllees sued Procacci for specific performance and declaratory relief to enforce the shareholders’ agreement, and they ultimately prevailed.

During the pendency of that litigation, all of the shareholders except Procacci voted in favor of declaring a dividend distribution. At the meeting at which the distribution was agreed to, the Harllees stated that they were claiming an equitable interest in the shares Procacci was going to sell to a third party. They also stated that in order to preserve their legal rights, they were not waiving their rights to an equitable interest in the subject shares and they were objecting to the distribution as it related to those shares.

After the Harllees prevailed in their action for specific performance of the shareholders’ agreement, they filed the current action against Procacci for unjust enrichment based on the dividend distribution of $396,000 he received for his 760 shares. They did not sue for the $396,000 as a breach of the shareholders’ agreement. Pertinent to the trial court’s findings regarding venue, the Harllees alleged that Procacci “breached a contract implied by law by receiving money that in equity and good conscience should have been held in escrow pending the outcome” of the action for specific performance. They further alleged as follows:

24. The Plaintiffs conferred a benefit to the Defendant and all other shareholders by agreeing to and voting in favor of the Distribution. Prior to the voting, Plaintiffs provided notice to Defendant and the Corporation at the Corporate Meeting that they were asserting their equitable interest in the 760 shares and their rights to the distribution related to such interest and objected to the Distribution of funds as to those specific shares.
25. Defendant had knowledge of the benefit conferred by receiving the Dividend/Distribution but knew his right to the proceeds of the Distribution was in dispute and doubtful. It was inequitable for Defendant to accept the monetary benefits of the Distribution. The proceeds of the Distribution should have been escrowed pending the determination of the equitable interest claimed by Plaintiffs.
28. For the Defendant not to have conserved and/or placed the proceeds of the Distribution in escrow knowing that the Courts had not made an ownership rights determination represented unjust enrichment as he knew or should have known that he had received a distribution that was based on stock that per the Shareholders’ Agreement equitably and legally belonged to the Plaintiffs who had complied with the clear language of the Shareholder Agreement.

Procacci filed a motion to dismiss based on res judicata. He later amended the motion to seek the alternative relief of a transfer of venue to his county of residence, Collier County. He filed an affidavit stating, among other things, that he was a resident of Collier County and that the dividend check was sent to him in Philadelphia, Pennsylvania. Those facts are undisputed.

At the hearing on Procacci’s motion, the trial court found that venue was proper in Manatee County based on theories of unjust enrichment and breach of an implied contract involving a debtor and creditor. The trial court also denied Procacei’s motion to dismiss and made both rulings in the same order. Procacci appeals the denial of the motion to transfer venue. See Fla. R.App. P. 9.130(a)(3)(A).

Denial of Motion to Transfer Venue.

An action against a Florida resident “shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” § 47.011, Fla. Stat. (2010). The plaintiff selects venue, but the plaintiffs complaint must sufficiently allege one of the statutory bases for the venue option selected. Nicholas v. Ross, 721 So.2d 1241, 1242 (Fla. 4th DCA 1998). The burden is then on the defendant to plead and prove improper venue. Interactive Retail Mgmt., Inc. v. Microsoft Online, L.P., 988 So.2d 717, 720 (Fla. 2d DCA 2008). If the complaint shows on its face that venue is improper, an evidentiary hearing to resolve factual issues is unnecessary. See id. The Harllees’ complaint shows on its face that venue in Manatee County is improper.

The parties correctly agree that there is no property in litigation. It is also undisputed that Procacci is a legal resident of Collier County, Florida, which is thus an appropriate venue selection pursuant to section 47.011. The parties dispute where the cause of action accrued.

The Harllees alleged in their complaint that they conferred a benefit on Procacci by agreeing to the dividend distribution and that Procacci knew of the benefit. They further alleged that it was inequitable for him to accept the benefit and not place the dividend proceeds in escrow pending resolution of the Harllees’ action against him for the shares on which the dividends were paid. These allegations describe a contract implied in law, also known as a quasi contract, which is not based upon an agreement between the parties. See Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So.2d 383, 386 (Fla. 4th DCA 1997) (en banc).

A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation.

Id. (citation omitted). A contract implied in law “is a noncontractual obligation that is treated procedurally as if it were a contract and is also referred to by some courts as unjust enrichment or restitution.” 4th & Heinberg, LLC v. Terhaar & Cronley Gen. Contractors, Inc., 43 So.3d 877, 881 (Fla. 1st DCA 2010) (quoting Williston on Contracts § 1:6).

The Harllees alleged that Procacci “breached a contract implied by law by receiving money that in equity and good conscience should have been held in escrow pending the outcome” of the action for specific performance. The allegations focus on Procacci having unjustly received a benefit. There was no allegation of any action that could be interpreted as an implied promise or agreement.

The Harllees’ argument and the trial court’s finding that the cause of action accrued in Manatee County because that is where the shareholders voted for the dividend distribution focuses on the wrong action. Procacci would not have been unjustly enriched by the decision to distribute the dividend; he would have been unjustly enriched when he received it, as the Harllees themselves alleged. In addition, the Harllees’ argument that Procacci is a debtor and should therefore pay them, the creditors, in the county in which their business is located is inconsistent with the allegations of their complaint. Because Procacci received the dividend distribution benefit in Philadelphia, venue in Manatee County is improper. The only proper venue in Florida is Procacci’s county of residence, Collier County.

Nicholas v. Ross, 721 So.2d 1241 (Fla. 4th DCA 1998), provides support for this conclusion. Ross was an assignee of a foreign corporation, and he sued Nicole Nicholas and others in Palm Beach County for damages resulting from wire transfers from the corporation’s accounts to Nicholas’s account in Hillsborough County. Id. at 1242. Ross alleged claims including unjust enrichment against Nicholas. The Fourth District determined that the allegations of Ross’s complaint failed to show the cause of action accrued in Palm Beach County. The court concluded that “the cause of action accrued when [Nicholas] obtained possession of the funds by deposit to her account, which took place in Hills-borough County.” Id. at 1243.

Likewise, the cause of action for unjust enrichment against Procacci accrued when he obtained possession of the funds in Philadelphia and did not place them in escrow. Because the cause of action did not accrue in Manatee County, venue is improper there. Rather, venue lies in Collier County where Procacci resides. Therefore, we reverse the order to the extent that it denies the motion to transfer venue and remand for the trial court to transfer venue to Collier County.

Denial of Motion to Dismiss.

The order denying the motion to transfer venue also denied Procacci’s motion to dismiss. To the extent that the order denies the motion to dismiss, it is a nonfi-nal, nonappealable order. See Fla. R.App. P. 9.130(a)(3). Although we do not reach the merits of the denial of the motion to dismiss, we vacate the order to the extent it denies the motion to dismiss because the motion “should be considered after the change of venue has been accomplished.” Straughn v. Grootemaat, 291 So.2d 669, 669 (Fla. 2d DCA 1974); see also Davis v. Fla. Power Corp., 486 So.2d 34, 35 (Fla. 2d DCA 1986) (“Upon a change of venue the transferor court generally loses the power to rule upon other matters pending in the case.”).

Reversed in part and vacated in part.

CRENSHAW and MORRIS, JJ., Concur.


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    Roger LOUIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5902.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2012.
    Jason A. Pollack, Miami Lakes, for Appellant.
   WHATLEY, Judge.

Roger Louis appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in post-conviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

WALLACE and MORRIS, JJ., Concur.


author: BLACK, Judge.

text:
    Vivakanand KISSOON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-83.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2012.
   BLACK, Judge.

Vivakanand Kissoon appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

WHATLEY and MORRIS, JJ., Concur.


author: FERNANDEZ, J.

text:
    Edelberto GONZALES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1807.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before SHEPHERD, LAGOA, and FERNANDEZ, JJ.

      . Judge Shepherd did not participate in oral argument.

   FERNANDEZ, J.

Edelberto Gonzales appeals his judgment of conviction and sentence, arguing that the testimony of two police officers amounted to improper bolstering. We disagree and affirm the judgment of conviction and sentence.

The State charged Gonzales with aggravated battery causing great bodily harm, aggravated assault with a firearm, possession of a firearm by a convicted felon, and resisting an officer without violence. The State subsequently nolle prossed the aggravated battery charge. The court severed the possession of a firearm by a convicted felon charge, and the case proceeded to trial on the remaining two counts — aggravated assault with a firearm and resisting an officer without violence.

The jury returned a verdict of guilty on the charge of aggravated assault, specifically finding that Gonzales did not discharge a firearm. It also returned a guilty verdict on the charge of resisting an officer without violence. The court adjudicated Gonzales guilty and sentenced him to eight years in state prison.

The testimony at trial established that a heated exchange occurred between Gonzales, Rafael Montano, Jorge Riera, and one other unidentified individual. Monta-no and Riera testified that Gonzales reached for the gun of the unidentified individual and fired the gun at Montano.

Two police officers who responded to the scene testified at trial. Officer Ernesto Gutierrez testified that he did not see Gonzales with a gun, and that a gun was not recovered from the scene. Officer Daniel Arocha testified that he spoke to Gonzales, Riera and Montano. During his testimony, the prosecutor asked him: “[t]he accounting that you got from the .shooting victim, was it consistent with the account that you got from Jorge [Riera], the one who ran up to you at the corner?” Defense counsel objected on hearsay grounds. The trial court sustained the objection.

The prosecutor then asked Officer Aro-cha “[w]ithout telling me what anybody said, was there anything that lead [sic] you to believe that this couldn’t have happened because the story was just too inconsistent?” Defense counsel objected on 'opinion grounds. The trial court overruled the objection. Officer Arocha responded, “[n]o, both stories to me coincided. No.” Defense counsel objected based on hearsay grounds. The trial court sustained the objection “as to story.”

Officer Arocha also testified that a semiautomatic weapon ejects a casing when fired and that he did not find a casing at the scene. The prosecutor then asked, “[a]re there situations where you just don’t find [sic] casing even though you know a shooting occurred?” The defense objected. Over defense objection, Officer Aro-cha agreed.

During closing, defense counsel argued that Montano and Riera had fabricated their allegations. He also noted that the jury should reject their version of events because physical evidence did not corroborate it. The prosecutor argued that the jury should not be concerned that there was no apparent reason for the shooting. He noted that “[everything [Montano and Riera] told to the officer matched perfectly, but they didn’t have time to compare stories.” He urged the jury to accept their testimony, asking, “[w]hat are the odds that two people would come up with a random story like that complete with all those details that you would never expect and they never had time to get their story straight.” Shortly thereafter, he remarked again that, when the officer spoke to Montano and Riera, he got “the same story” from both witnesses.

When the prosecutor countered defense counsel’s argument that no gun was used during the incident, the prosecutor referenced other cases, arguing, “[i]f that was the case whenever there was a crime involving a gun if you toss it in the river before you got arrested or past [sic] it off to somebody before you were arrested then automatic I’m off, there’s no gun I’m off.”

The abuse of discretion standard governs review of a trial court’s decision to admit evidence. See Hudson v. State, 992 So.2d 96, 107 (Fla.2008). Gonzales argues that the trial court abused its discretion when it allowed Officer Arocha to testify that Montano and Riera provided him with a consistent and believable account of the incident. Gonzales argues that this constituted improper opinion testimony. Gonzalez further argues that the trial court abused its discretion when it permitted Officer Arocha to testify that it is normal not to recover a casing from a crime scene, even though a shooting occurred. This testimony was irrelevant and it served to improperly bolster the State’s case.

We do not believe that any error occurred in the admission of Officer Aro-cha’s testimony. Section 90.701, Florida Statutes (2012), governs the opinion testimony of lay witnesses. The testimony may be in the form of an inference and opinion when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

See § 90.701, Fla. Stat. (2012). The opinion must be based on personal knowledge of the facts underlying the opinion. See Somerville v. State, 626 So.2d 1070 (Fla. 1st DCA 1993). The lay witness may not rely on hearsay in forming an opinion, but the witness may base the opinion on what the witness has perceived. Id.

We first address Gonzales’ claim of improper opinion testimony. It is clearly error for one witness to testify as to the credibility of another witness.” Acosta v. State, 798 So.2d 809, 810 (Fla. 4th DCA 2001). “Allowing one witness to offer a personal view on the credibility of a fellow witness is an invasion of the province of the jury to determine a witness’ credibility. See Seibert v. State, 923 So.2d 460, 472 (Fla.2006).

We are cognizant of the harmful effect that results when a police witness offers an opinion on the credibility of a witness because of the great weight that is afforded to an officer’s testimony. See Page v. State, 733 So.2d 1079, 1081 (Fla. 4th DCA 1999); see also Seibert v. State, 923 So.2d 460, 472 (Fla.2006).

Here, however, the police witness did not offer his opinion on the credibility of a witness. Officer Arocha merely testified that the two statements Montano and Ri-era gave were consistent. Specifically, Officer Arocha was asked to evaluate whether the witnesses’ statements that he had personally perceived were similar. He did not opine on whether the witnesses or their statements were reliable. This kind of testimony by a police officer fails to constitute improper bolstering. See Bohm v. State, 826 So.2d 1041, 1042 (Fla. 5th DCA 2002) (finding that a police officer’s testimony that one of the participants in a robbery interview statement was consistent with the statements of two other participants did not amount to improper bolstering). Had Officer Arocha testified to the truthfulness of Montano or Riera’s statements, we would agree that his testimony constituted impermissible opinion testimony regarding a witness’ credibility. Officer Arocha’s testimony was thus proper lay opinion testimony.

We decline to address Gonzales’ second claim, concluding it is without merit.

Affirmed.


author: KELLY, Judge.

text:
    Bruce PITZER, Petitioner, v. Vicki BRETEY, Respondent.
    No. 2D12-3040.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2012.
    Bruce Pitzer, pro se.
    No appearance for Respondent.
   KELLY, Judge.

Bruce Pitzer filed his notice of appeal of an appellate decision of the circuit court within thirty days of the circuit court’s mandate but not within thirty days of the opinion for which he sought review. The circuit court’s opinion was filed on April 9, 2012. Mr. Pitzer did not file a motion for rehearing, and the mandate issued on May 9, 2012. Although Mr. Pitzer should have filed his notice of appeal by May 9, 2012, he did not do so until May 25, 2012. Upon receipt of the notice of appeal in this court, the clerk initiated a second-tier certiorari proceeding and directed Mr. Pitzer to show cause why it should not be dismissed as untimely, citing Miller v. State, 781 So.2d 1146 (Fla. 1st DCA 2001).

In his response Mr. Pitzer advances an argument with superficial appeal. He refers to Florida Rule of Appellate Procedure 9.030(b)(2), which reads in relevant part: “Certiorari Jurisdiction. The cer-tiorari jurisdiction of district courts of appeal may be sought to review ... (B) final orders of circuit courts acting in their review capacity.” He provides as well a copy of the circuit court appellate opinion that he challenges and points out that across the top it carries a banner that reads, “NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.”

Because he reads rule 9.030(b)(2) to confer jurisdiction on district courts only when a circuit court’s appellate decision becomes final, Mr. Pitzer argues that attempts to invoke the district court’s jurisdiction before the finality of the circuit court’s decision are premature and are properly instituted only after finality1 is announced by the issuance of the circuit court’s mandate. However, Mr. Pitzer’s argument does not adequately explain why this issue is not controlled by Florida Rule of Appellate Procedure 9.100(c)(1), which requires certiorari petitions to be commenced within thirty days of “rendition of the order to be reviewed.”

Mr. Pitzer’s confusion, we believe, stems from the use of the word “final,” which means quite different things when describing a circuit court order and an appellate proceeding. Rule 9.030(b)(1)(A) provides jurisdiction for district court review of “final orders of trial courts.” There is no question, especially when read in pari materia with rule 9.030(b)(1)(B), that this use of the word “final” is meant to distinguish final orders from those that are interlocutory or nonfinal in nature. Likewise, the word “final” in rule 9.030(b)(2)(B) describes orders entered by circuit courts in their review capacity that are not interlocutory.

As used to describe appellate proceedings, the word “final” refers to the status of the matter upon disposition of an appeal or original proceeding. For example, the time limitations for commencing postcon-viction proceedings pursuant to Florida Rule of Criminal Procedure 3.850 begin to run with the finality of the judgment and sentence, which is triggered when there has been a direct appeal by the issuance of the appellate court’s mandate. Beaty v. State, 701 So.2d 856, 857 (Fla.1997).

When the disposition of an appellate proceeding is issued, the disposition is “final” in that it signals the end of judicial labor, subject to the available postopinion motions permitted by Florida Rules of Appellate Procedure 9.330 and 9.331. The appellate opinion from the circuit court for Sarasota County was final the day it was issued, at least insofar as the word “final” is used in rule 9.030(b)(2)(B). The banner announcing that it was “not final” addressed a different issue, communicating that adjustments in the opinion might still be undertaken and admonishing litigants and attorneys that reliance on the opinion before it achieved finality might be ill-advised.

Mr. Pitzer’s notice of appeal was not submitted to the circuit court clerk within thirty days of the court’s appellate opinion, and because he filed no timely and authorized post-opinion motion, rendition was not tolled; nor did Mr. Pitzer timely invoke this court’s jurisdiction by submitting a certiorari petition to it within thirty days of the opinion. As such, his attempt to seek review was untimely.

This proceeding in certiorari is accordingly dismissed.

DAVIS and WALLACE, JJ., Concur.


author: RAIDEN, MICHAEL E., Associate Judge.

text:
    Camilla BERNHARDT and Brian Bernhardt, Appellants, v. Michael and Edith HALIKOYTAKIS d/b/a Hali Plaza; Point Builders, Inc., a Florida corporation; Hanna Wassef Fouad; Madelin Mishriki; Craig Belfatto and Eileen Belfatto, Appellees.
    No. 2D11-779.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2012.

      Celene H. Humphries of Brannock & Humphries, Tampa, and Todd R. Falzone of Kelley Uustal, PLC, Fort Lauderdale, for Appellants.
    Anthony J. Russo and Shannon Tan of Butler Pappas Weihmuller Katz Craig, LLP, Tampa (withdrew after briefing); William D. Horgan of Banker, Lopez, Gassier, P.A., Tallahassee (substituted as counsel of record), for Appellees Michael and Edith Halikoytakis d/b/a Hali Plaza.
    Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for Appellee Point Builders, Inc.
    No appearance for Appellees Hanna Wassef Fouad; Madelin Mishriki; Craig Belfatto and Eileen Belfatto.
   RAIDEN, MICHAEL E., Associate Judge.

Appellants Camilla and Brian Bernhardt, the plaintiffs below, appeal a final summary judgment entered on behalf of Appellees Michael and Edith Halikoytakis and Point Builders, Inc. Because we have determined that certain genuine issues of material fact remained at the time summary judgment was entered, we reverse.

The Bernhardts’ lawsuit followed a June 2008 accident in which Ms. Bernhardt fell while jogging. She attributed the fall to a broken sidewalk and was able to identify the site of the accident with some certainty. It was located at or near the boundary line between properties owned by two additional sets of defendants who are not involved in the claim at issue during the summary judgment proceedings. The Bernhardts alleged that the sidewalk was damaged during construction by Point Builders on behalf of Mr. and Ms. Halikoy-takis, who operate a small shopping center called Hali Plaza located across the street from where Ms. Bernhardt fell. In them motions for summary judgment, Point Builders and the Halikoytakises contended that there was no reasonable interpretation of the existing evidence that could impute any negligence to either of them.

In considering the entry of summary judgment, the trial court reviewed deposition testimony and other evidence that need not be described in exhaustive detail here. Craig Belfatto, who resides across the street from Hali Plaza, testified that while he did not actually see the sidewalk damage as it occurred, the sidewalk was not in the same condition prior to the construction activity, which had concluded shortly before the accident. Further, Mr. Belfatto stated that heavy construction equipment had been parked in the vacant lot next to his house and that the equipment would have had to travel over the sidewalk to access Hali Plaza. Defense witnesses, including Mr. Halikoytakis, denied that the damage had been done during the construction and testified that the sidewalk had been in the same condition in 2007. Appellees also disputed how many times equipment had been placed in the vacant lot, as well as the type of equipment that was present.

The trial court acknowledged that summary judgment would be improper if this were all the evidence presented. However, the court also viewed a Google Earth photograph that was alleged to have been taken in 2007. The court interpreted the photograph as showing the same amount of damage as depicted in photographs taken immediately after Ms. Bernhardt’s fall. The court described this photograph as “pretty compelling.” In response, the Bernhardts proffered the affidavit of their expert witness, who had opined that the Google photograph was not adequate to permit the trier of fact to determine whether conditions were the same at the time of the fall. The expert also stated that “multiple applications of force to the broken sidewalk sections over time” could have exacerbated any damage existing in 2007. However, the trial court ruled that expert testimony was not needed to interpret the photograph and that the expert’s theory about continuing damage was “sheer speculation.”

This court reviews de novo a trial court’s decision on a motion for summary judgment. Redland Ins. Co. v. Cem Site Constructors, Inc., 86 So.3d 1259, 1261 (Fla. 2d DCA 2012). The movant’s burden is to come forward with competent evidence to demonstrate the nonexistence of a material issue of fact. Fitzherbert v. Inland U.S. Mgmt., 90 So.3d 338 (Fla. 2d DCA 2012). It has been stated that the movant’s burden essentially amounts to “proving] a negative.” Candler Holdings Ltd. I v. Watch Omega Holdings, L.P., 947 So.2d 1231, 1235 (Fla. 1st DCA 2007) (internal quotation marks omitted). All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available. Cole Taylor Bank v. Shannon, 772 So.2d 546, 550 (Fla. 1st DCA 2000); see also Bratt ex rel. Bratt v. Laskas, 845 So.2d 964, 966 (Fla. 4th DCA 2003). It is improper to consider either the weight of the conflicting evidence or the credibility of witnesses in determining whether a genuine issue of material fact exists. Juno Indus., Inc. v. Heery Int’l, 646 So.2d 818, 822 (Fla. 5th DCA 1994). Further, “when a defendant moves for summary judgment, neither the trial court nor this court determines whether the plaintiff can prove the cause of action alleged.” Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995).

In the context of a negligence case such as this, trial courts are advised to proceed with particular caution when a motion for summary judgment involves a question of causation because the issue is so fact-specific. See id.; see also Petrusha v. Smartparks-Silver Springs, Inc., 914 So.2d 502, 505 (Fla. 5th DCA 2005). A successful defense motion for summary judgment must “establish unequivocally the absence of negligence! ] or that the plaintiffs negligence was the sole proximate cause of the injury.” Hervey, 650 So.2d at 646.

With this template in mind, we conclude that genuine issues of material fact exist notwithstanding the Google Earth photograph. While the photograph does corroborate the testimony of defense witnesses regarding the extent of the sidewalk’s damage prior to the Hali Plaza construction project, the trial court erred in giving the picture such conclusive effect. Accordingly, we reverse the summary judgment entered in favor of Appellees and remand this case to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.

      . These parties are listed as appellees pursuant to Florida Rule of Appellate Procedure 9.020(g)(2).


author: LaROSE, Judge.

text:
    EMERITUS CORPORATION; Emeritus Management, LLC; and Mary Beth Skoyec (as to Emeritus at College Park a/k/a College Park Club), Appellants, v. Kathleen M. PASQUARIELLO, as Personal Representative of the Estate of John J. Pasquariello, Deceased, Appellee.
    No. 2D11-6014.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2012.

      James D. Moriarty and Melissa M. Bur-ghardt of Lewis Brisbois Bisgaard & Smith, LLP, Tampa, for Appellants.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellee.
   LaROSE, Judge.

Emeritus Corporation appeals a nonfinal order denying its motion to compel arbitration in a nursing home negligence suit filed by the Estate of John J. Pasquariello. The trial court ruled that Mr. Pasquariel-lo’s durable power of attorney did not authorize his attorney-in-fact, Mrs. Pasquar-iello, to sign an arbitration agreement in the nursing home admission contract. We have jurisdiction. See Fla. R.App. P. 9.030(b)(1)(B), 9.130(a)(3)(C)(iv); Estate of Irons ex rel. Springer v. Arcadia Healthcare, L.C., 66 So.3d 396 (Fla. 2d DCA 2011). Mr. Pasquariello’s durable power of attorney specifically authorized Mrs. Pasquariello to consent to arbitration. Accordingly, we reverse.

Mr. Pasquariello was admitted to Emeritus at College Park, an assisted living facility, in September 2009. His wife, Mrs. Pasquariello, executed the admission documents, including an arbitration agreement, pursuant to a durable power of attorney. The power of attorney was effective upon Mr. Pasquariello’s disability, incompetence, incapacity, or partial incapacity. The arbitration agreement provided as follows:

[A]ny action, dispute, claim or controversy of any kind, whether in contract or in tort, statutory or common law, personal injury, property damage, legal or equitable or otherwise, arising out of the provision of assisted living services, healthcare services, or any other goods or services provided under the terms of any agreement between the Parties, including disputes involving the scope of this Arbitration Agreement, or any other dispute involving acts or omissions that cause damage or injury to either Party, except for matters involving evictions, shall be resolved exclusively by binding arbitration and not by lawsuit or resort to the judicial process, except to the extent that applicable law provides for judicial review of arbitration proceedings.

Mr. Pasquariello left Emeritus in February 2010 and died a month later. The Estate, through Mrs. Pasquariello as personal representative, sued Emeritus, alleging that Emeritus abused and neglected her husband while he was in its care. Emeritus moved to compel arbitration. At the motion hearing, the trial judge expressed concern that the durable power of attorney did not confer broad enough authority to allow Mrs. Pasquariello to consent to arbitration. He directed the parties to submit memoranda addressing the scope of the power of attorney. The trial court subsequently denied the motion.

We review the trial court’s determination of the scope and interpretation of a power of attorney de novo. Candansk, LLC v. Estate of Hicks ex rel. Brownridge, 25 So.3d 580, 582 (Fla. 2d DCA 2009). Mr. Pasquariello’s power of attorney stated its purposes as follows:

ARTICLE Y
Purposes
My Agent shall have all powers as are necessary or desirable to provide for my support, maintenance, health, emergencies, and urgent necessities.

The power of attorney described the attorney-in-fact’s powers, in pertinent part, as follows:

ARTICLE IV
Powers
My Agent shall have all powers of an absolute owner over my assets and liabilities, whether located within or without the State of Florida, including, without limitation, the following power and authority:
I.Power relating to claims and litigation. I empower my attorney-in-fact to:
1. assert and prosecute before a court or administrative agency a claim, counterclaim, or offset, and defend against an individual, a legal entity, or government, including suits to recover property or other thing of value, to recover damages sustained by the principal, to eliminate or modify tax liability, or to seek an injunction, specific performance, or other relief;
2. bring an action to determine adverse claims, intervene in litigation, and act as amicus curiae;
3. in connection with litigation, procure an attachment, garnishment, libel, order of arrest, or other preliminary, provisional, or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or decree;
4. in connection with litigation, perform any lawful act, including acceptance of tender, offer of judgment, admission of facts, submission of a controversy on an agreed statement of facts, consent to examination before trial, and binding the principal in litigation;
5. submit to arbitration, settle, and propose or accept a compromise with respect to a claim or litigation;
6. waive the issuance and service of process upon the principal; accept service of process; appear for the principal; designate persons upon whom process directed to the principal may be served; execute and file or deliver stipulations on the principal’s behalf; verify pleadings; seek appellate review; procure and give surety and indemnity bonds; contract and pay for the preparation and printing of records and briefs; and receive, execute, and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument in connection with the prosecution, settlement, or defense of a claim or litigation.

(Emphasis added.) The other subsections of article IV, A-H and J-O, listed powers relating to (A) real property transactions, (B) tangible personal property transactions, (C) stock and bond transactions, (D) commodity and option transactions, (E) banking and other financial institution transactions, (F) business operating transactions, (G) insurance transactions, (H) estate, trust, and other beneficiary transactions, (J) personal and family maintenance, (K) benefits from Social Security, Medicare, Medicaid, other governmental programs, or military service, (L) retirement plan transactions, (M) tax matters, (N) medical care assistance transfers, and (0) gift transfers.

To determine the scope of the power of attorney, we must examine the language of any catch-all provisions and the relationship of that language to the types of interests over which the power of attorney specifically grants authority. Sovereign Healthcare of Tampa, LLC v. Estate of Huerta ex rel. Huerta, 14 So.3d 1033, 1034 (Fla. 2d DCA 2009). Mr. Pas-quariello’s power of attorney includes two catch-all provisions. Article V gives the attorney-in-fact “all powers as are necessary or desirable to provide for my support, maintenance, health, emergencies, and urgent necessities.” Article IV gives the attorney-in-fact “all powers of an absolute owner over my assets and liabilities, ... including, without limitation,” the listed powers and authorities. One of the listed powers and authorities is “[pjower relating to claims and litigation,” including power to assert a claim to recover property or other things of value or to recover damages sustained by the principal, and power to “submit to arbitration, settle, and propose or accept a compromise.... ”

The Estate contends that the authority to submit to arbitration applies only with respect to “finance” because the document’s title is “Durable Power of Attorney for Finance” and the types of interests over which the power of attorney specifically grants authority relate to financial transactions. The Estate argues that arbitration is not finance. We disagree because the Estate’s claim against the nursing home seeks financial compensation. Cf. Candansk, 25 So.3d at 583 (holding power of attorney to act regarding property authorized attorney-in-fact to agree to arbitrate because estate’s claim against nursing home was property).

Accordingly, we reverse the trial court’s decision that the scope of the power of attorney did not include consent to arbitration. We remand for the trial court to determine whether Mr. Pasquariello met the disability condition necessary for the power of attorney to become effective and the ramifications if he did not.

Reversed and remanded.

VILLANTI and CRENSHAW, JJ., Concur.

      . Article II of Mr. Pasquariello’s power of attorney defines this requirement as follows:
      Disability, incompetence, incapacity or partial incapacity shall include, without limitation, my inability to manage my property and affairs or caring for myself effectively, for reasons such as mental illness, mental deficiency or other mental incapacity, physical illness or disability, advanced age, senility, chronic use of drugs, chronic intoxication, which may be evidenced by a written statement of my regularly attending physician or two other qualified physicians or by court order.


author: DAVIS, Judge. ALTENBERND, Judge,

text:
    Luis A. GAUTREAUX, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2207.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2012.
   DAVIS, Judge.

Luis Gautreaux challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Gautreaux pleaded open to six counts of an information. In the motion, which was filed by counsel, he alleged that three of the six counts were scored incorrectly on a Criminal Punishment Code (CPC) scoresheet when they should have been scored on a 1995 sentencing guidelines scoresheet and that thus he is entitled to be resentenced on those three counts using corrected scoresheets. This claim is cognizable in a rule 3.800(a) motion. See Bradley v. State, 998 So.2d 1213, 1214 (Fla. 4th DCA 2009). We conclude that Gautreaux is entitled to be resentenced on two of the counts.

In count two of the information, Gau-treaux was charged with racketeering pursuant to section 895.03(3), Florida Statutes (1997). In count three, he was charged with conspiracy to commit racketeering pursuant to section 895.03(4), and in count four, he was charged with conspiracy to traffic in more than twenty-eight grams but less than thirty kilograms of heroin pursuant to section 893.135(l)(c)(l)(c), Florida Statutes (1997).

Following Gautreaux’s open plea, the trial court relied on a single CPC scoresheet prepared by the State that reflected a lowest permissible sentence of 260.25 months’ prison. The trial court sentenced Gautreaux to concurrent twenty-five-year prison sentences on all three of these counts and imposed a twenty-five-year minimum mandatory sentence on only count four.

The beginning date of the offenses in counts two, three, and four was September 1, 1998 — prior to October 1, 1998, the effective date of the CPC. See § 921.002, Fla. Stat. (2001); Bradley, 998 So.2d at 1214. Because felonies with continuing dates of enterprise must be sentenced under the sentencing guidelines in effect on the beginning date of the criminal activity, § 921.001(4)(b)(3); Bigbee v. State, 848 So.2d 1286, 1287 n. 1 (Fla. 2d DCA 2003), 1995 guidelines scoresheets should have been used for these offenses, see § 921.002(2); see also Bradley, 998 So.2d at 1214.

In considering Gautreaux’s rule 3.800(a) motion, the postconviction court recognized that the wrong scoresheet was prepared for these counts and found that the maximum overall sentence for counts two through four under the 1995 sentencing guidelines is 13.44 years’ prison. But the court nevertheless denied Gautreaux’s motion, concluding that he was not entitled to relief because the twenty-five-year prison sentences imposed on all six counts were within the statutory máximums for the offenses in question.

The test for determining whether a defendant is entitled to relief based on a scoresheet error that is raised in a rule 3.800(a) motion is whether the same sentence could have been imposed using a corrected scoresheet. Brooks v. State, 969 So.2d 238, 243 (Fla.2007). In Hoag v. State, 12 So.3d 907 (Fla. 2d DCA 2009), this court reviewed the denial of Hoag’s rule 3.800(a) motion wherein he claimed error in his 1994 sentencing guidelines scoresheet. This court, citing Brooks, reversed and remanded for resentencing under a corrected scoresheet because Hoag’s sentence could not have been imposed absent a departure. Hoag, 12 So.3d at 908; see also Mitchell v. State, 880 So.2d 1261, 1262 (Fla. 2d DCA 2004); Perez v. State, 20 So.3d 440, 442-43 (Fla. 4th DCA 2009); Goings v. State, 990 So.2d 1228, 1228 (Fla. 1st DCA 2008).

In the instant case, the twenty-five-year prison sentences on counts two and three could not have been imposed absent a departure utilizing a 1995 sentencing guidelines scoresheet and Gautreaux therefore is entitled to be resentenced. See Bradley, 998 So.2d at 1214 (reversing the denial of Bradley’s rule 3.800(a) motion and remanding for resentencing under separate scoresheets where an offense that was committed prior to the effective date of the CPC was listed as the primary offense on the CPC scoresheet). Gau-treaux is not entitled to be resentenced on count four because of the twenty-five-year minimum mandatory term imposed on that count. Accordingly, we reverse the post-conviction court’s denial only as it relates to counts two and three and remand for resentencing on those counts. As previously noted, Gautreaux’s remaining offenses were properly sentenced using a CPC scoresheet. The sentences received on those offenses do not exceed the statutory máximums and are not impacted by this opinion.

Reversed and remanded.

LaROSE, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in this opinion, which gives Mr. Gautreaux a Pyrrhic victory. The trial court sentenced him in 2001 to six concurrent terms of twenty-five years’ imprisonment. This court affirmed his judgments and sentences on direct appeal in 2003. Gautreaux v. State, 860 So.2d 418 (Fla. 2d DCA 2003) (table decision). We denied his petition alleging ineffective assistance of appellate counsel in 2004. Gautreaux v. State, 875 So.2d 606 (Fla. 2d DCA 2004) (table decision). His time to file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 expired years ago.

In 2009, with the assistance of counsel, Mr. Gautreaux filed this motion to correct several of his sentences based on a facially incorrect scoresheet. The scoresheet error affected only the sentences for the earlier offenses and did not affect the concurrent sentences imposed for the offenses committed after October 1, 1998. His attorney and all other persons trained in the law that have worked on the motion would have known from the outset that the correction of any sentencing error relating to the offenses committed prior to October 1998 will not allow Mr. Gautreaux to be released from prison even five minutes early.

I cannot estimate the amount of time and money spent to correct this noninjurious error. There will be more time and money spent on remand. Because he received a legal twenty-five-year minimum mandatory sentence, Mr. Gautreaux will not be released from prison until September 2021 at the earliest, regardless of the sentences he receives on remand. There is a good chance that some prisoner who is actually entitled to meaningful relief has been waiting in line for the trial court to reach that meritorious motion while it processed this meaningless motion.

I continue to believe that a movant under rule 3.800(a) should be required to allege and demonstrate that the claimed error is harmful and will affect either the length of the sentence or the conditions of confinement.

      . The remaining three counts were properly scored on a CPC scoresheet based on the dates of offense.


text:
    BREA SARASOTA, LLC; Emeritus Corporation; and Jill L. Chapman (as to Emeritus at Sarasota, f/k/a Gardens at Sarasota), Appellants, v. Isabella E. BICKEL, by and through Beth Ann Wasdin, Attorney-in-Fact, Appellee.
    No. 2D11-3407.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2012.

      James D. Moriarty and Nicholas P. Dar-eneau of Lewis Brisbois Bisgaard & Smith, LLP, for Appellants.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellee.
   KELLY, Judge.

The appellants, Brea Sarasota, LLC, and Emeritus Corporation (collectively Emeritus), operate an assisted living facility in Sarasota. In this appeal, Emeritus challenges the order denying its motion to compel arbitration. Because appellee Beth Ann Wasdin, as attorney-in-fact for Isabelle Bickel, entered into a valid arbitration agreement with Emeritus, the trial court erred in denying the motion. Accordingly, we reverse.

When Ms. Bickel was admitted to the Emeritus at Sarasota assisted living facility, her daughter, Ms. Wasdin, signed the admission documents as Ms. Bickel’s attorney-in-fact. Included in the admission paperwork was an arbitration agreement. Despite having agreed to resolve disputes by arbitration, Ms. Wasdin, on behalf of her mother, sued Emeritus in circuit court. In response, Emeritus moved to compel arbitration on the basis that Ms. Wasdin had voluntarily signed a valid arbitration agreement.

At the hearing on the motion, Ms. Was-din testified that her mother had unexpectedly been discharged from another assisted living facility and that she needed to move her to a new facility quickly. She was told that Emeritus had one room left for a Medicaid patient. She took her mother to visit Emeritus, and during the visit, her mother had some physical issues which caused a stressful situation. In her haste to deal with her mother’s problem and to obtain the only available Medicaid room, she signed the admissions documents without reading them. She argued that she should not be bound by the arbitration agreement because at the time she felt that she had no choice but to sign the agreement to have her mother admitted and that the document was not explained to her. She also argued that the agreement was unconscionable because it required her mother to pay half the arbitrator’s fee, and that her mother had no funds to do so.

The court denied Emeritus’s motion to compel arbitration, finding that because of the rushed situation Ms. Wasdin did not have a meaningful choice but to sign the agreement. The court also found that the provision in the arbitration agreement requiring Ms. Bickel, a Medicaid patient, to pay one-half of the arbitrator’s fee was substantively unconscionable.

On appeal, Emeritus challenges the trial court’s rulings as being unsupported by the evidence and the law. Emeritus first points out that the arbitration agreement contained numerous protections available to Ms. Wasdin had she elected to avail herself of them. Specifically, the agreement contained the following provisions:

4. Right to Legal Counsel. The Resident has the right to be represented by legal counsel in any arbitration proceedings, and the Resident has the right to have this Arbitration Agreement reviewed by legal counsel prior to signature.
7. Opt Out Provision. This provision for arbitration may be revoked by written notice delivered to the Community by certified mail within 15 days of signature.

And, in the sentence immediately prior to the signature block:

Admission to the Community is not contingent upon signing this Agreement.

The issue of whether an arbitration agreement is valid is controlled by general contract principles. Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 464 (Fla.2011). Here, Ms. Wasdin relies on the contract defense of uneonscionability. She alleges that the agreement was procedurally unconscionable because of the circumstances under which she signed the agreement. To determine whether a contract is procedurally unconscionable, a court must decide whether the complaining party had a meaningful choice at the time the contract was signed. Tampa HCP, LLC v. Bachor, 72 So.3d 323, 327 (Fla. 2d DCA 2011). The court should consider factors such as “whether the complaining party had a realistic opportunity to bargain regarding the terms of the contract, or whether the terms were merely presented on a ‘take-it-or-leave-it’ basis; and whether he or she had a reasonable opportunity to understand the terms of the contract.” Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 284 (Fla. 1st DCA 2003). A party to a contract is not “permitted to avoid the consequences of a contract freely entered into simply because he or she elected not to read and understand its terms before executing it, or because, in retrospect, the bargain turns out to be disadvantageous.” Id. at 288.

We agree with Emeritus’s argument that even if Ms. Wasdin was under the stress of the moment and could not read the documents at the time she signed them she still had fifteen days to “opt-out” of arbitration under the terms of the agreement. Ms. Wasdin’s failure to read the arbitration agreement in the days following Ms. Bickel’s admission does not excuse her performance of the contract in the absence of some evidence that she was prevented from knowing its contents. See Rocky Creek Ret. Props., Inc. v. Estate of Fox ex rel. Bank of Am., N.A., 19 So.3d 1105, 1108 (Fla. 2d DCA 2009) (noting that generally a party is bound by a contract that the party signs unless it can be shown that the party was prevented or discouraged from reading it). Because the agreement notified Ms. Wasdin that she could avoid arbitration and still take advantage of the facility’s services, the agreement was not procedurally unconscionable.

In addition to finding the arbitration provision to be procedurally unconscionable, the trial court found the provision requiring Ms. Bickel to pay one-half of the arbitrator’s fee to be substantively unconscionable. “To succeed in an uncon-scionability argument, both procedural and substantive unconscionability must be shown. If the arbitration agreement is not procedurally unconscionable, the court does not reach substantive unconscionability.” Bachor, 72 So.3d at 326 (citations omitted). Thus, because of our holding that the arbitration agreement was not procedurally unconscionable, we need not address substantive unconscionability.

Accordingly, we reverse the order denying Emeritus’s motion to compel arbitration.

Reversed.

WHATLEY and KHOUZAM, JJ., Concur.

      . The offending provision in the arbitration agreement states: "The arbitrator’s fee shall be shared equally by the Parties."


author: ORFINGER, C.J.

text:
    STATE of Florida, Appellant, v. James Robert OWENS, Appellee.
    No. 5D11-4257.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.

      . Judge Griffin did not participate in this opinion.

   ORFINGER, C.J.

The State of Florida appeals the downward departure sentence imposed on James R. Owens following his nolo conten-dere plea to several felonies and misdemeanors. We affirm, but elect to consider this case en banc to recede from a line of earlier cases that impose a requirement on a sentencing statute that goes beyond the statute’s plain language.

Florida law provides that a trial court must, at a minimum, impose the lowest permissible sentence on a criminal defendant calculated according to the Criminal Punishment Code, unless the court finds that the evidence supports a valid reason for a downward departure. § 921.00265(1), Fla. Stat. (2010). A trial court is permitted to impose a downward departure sentence when a defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, or for a physical disability, provided the defendant is amenable to treatment. § 921.0026(2)(d), Fla. Stat. (2010). That was the trial court’s finding here. However, this Court and others have added an additional requirement, not found in the statute, that the defendant must also establish that the needed treatment is unavailable in the Department of Corrections. See, e.g., State v. Betancourt, 40 So.3d 53 (Fla. 5th DCA 2010); State v. Knox, 990 So.2d 665 (Fla. 5th DCA 2008); State v. Gatto, 979 So.2d 1232, 1233 (Fla. 4th DCA 2008); State v. Green, 971 So.2d 146, 148 (Fla. 4th DCA 2007); State v. Scherber, 918 So.2d 423, 424-25 (Fla. 2d DCA 2006); State v. Wheeler, 891 So.2d 614, 616 (Fla. 2d DCA 2005); State v. Green, 890 So.2d 1283, 1286 (Fla. 2d DCA 2005); State v. Mann, 866 So.2d 179, 182 (Fla. 5th DCA 2004); State v. Tyrrell, 807 So.2d 122, 127-28 (Fla. 5th DCA 2002); State v. White, 755 So.2d 830, 832-33 (Fla. 5th DCA 2000); State v. Thompson, 754 So.2d 126, 127 (Fla. 5th DCA 2000); State v. Abrams, 706 So.2d 903, 904 (Fla. 2d DCA 1998).

We are now persuaded by Judge Warner’s concurring opinion in State v. Hunter, 65 So.3d 1123, 1125-26 (Fla. 4th DCA 2011), adopted en banc by the Fourth District Court in State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012), that our earlier view is erroneous, and recede from those cases that add the additional requirement to the statute. See Curry v. Lehman, 55 Fla. 847, 47 So. 18, 20 (Fla.1908) (“[I]t is the duty of the court to interpret laws and not to make them, and we are to make no subtraction or addition to the meaning of a statute.”). We adopt the reasoning in Judge Warner’s concurring opinion in Hunter as the opinion of the Court:

I agree that this case should be affirmed, but I write separately to question whether the statutory factor of need of specialized treatment requires the defendant to prove that the treatment he needs is not available in the prison system. Because the statute does not make this a requirement, I would conclude that it is not part of the defendant’s burden to prove this element in order for the trial court to determine that it can depart from the lowest permissible sentence under the Criminal Punishment Code.
Section 921.0026 provides mitigating circumstances “under which a departure from the lowest permissible sentence is reasonably justified.... ” These include: “(d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” Although not stated in the statute, there is a significant body of case law holding that to receive a sentence pursuant to section 921.0026(2)(d), there must be evidence that the Department of Corrections (DOC) cannot provide the specialized treatment required. See State v. Gatto, 979 So.2d 1232, 1233 (Fla. 4th DCA 2008); State v. Green, 971 So.2d 146, 148 (Fla. 4th DCA 2007); State v. Scherber, 918 So.2d 423, 424-25 (Fla. 2d DCA 2006); State v. Wheeler, 891 So.2d 614, 616 (Fla. 2d DCA 2005); State v. Green, 890 So.2d 1283, 1286 (Fla. 2d DCA 2005); State v. Mann, 866 So.2d 179, 182 (Fla. 5th DCA 2004); State v. Tyrrell, 807 So.2d 122, 128 (Fla. 5th DCA 2002); State v. Thompson, 754 So.2d 126, 127 (Fla. 5th DCA 2000); State v. Abrams, 706 So.2d 903, 904 (Fla. 2d DCA 1998).
This requirement appears to have had its origins in Abrams, the first time we find it mentioned in case law. Abrams involved a downward departure sentence from a guidelines sentence, because the crime for which he was being sentenced occurred in 1997, prior to the enactment of the Criminal Punishment Code. However, the statute at the time included the same mitigating factor but no reference to the unavailability of treatment in prison. See § 921.0026(2)(d), Fla. Stat. (1997). In Abrams, the court said, without citation to any authority: “There is no evidence in the record, however, that Mr. Abrams requires specialized treatment for HIV that cannot be provided through the Department of Corrections.” 706 So.2d at 904. On the other hand, in State v. Spioeh, 706 So.2d 32 (Fla. 5th DCA 1998), Judge Griffin accurately noted in discussing the same statute involved in Abrams, that
[A] lack of available treatment in prison is not required under the statute. Although illness is not a “get out of jail free card,” a treatable physical disability is one of the circumstances where the legislature has chosen to re-invest trial judges with discretion to vary from sentencing guidelines.
Id. at 36. Despite this conflict of opinion between the districts, the courts appear to have turned the one sentence in Abrams into an additional element for the defendant to prove in order to obtain a downward departure sentence under section 921.0026(2)(d), Florida Statutes. Our court likewise adopted this element as part of the defendant’s burden of proof, without any authority other than the citation of cases, which lead back to Abrams. See, e.g., Gatto, 979 So.2d at 1233; Green, 971 So.2d at 148.
Sentencing statutes must be strictly construed according to their letter. See Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991); Atterbury v. State, 991 So.2d 980, 981 (Fla. 4th DCA 2008). In sentencing, the trial judge should strictly follow the dictates of statutes. See Troutman v. State, 630 So.2d 528, 533 n. 6 (Fla.1993), superseded by statute on other grounds as stated in Ritchie v. State, 670 So.2d 924 (Fla.1996). In addition, the rule of lenity requires that when language of a statute is susceptible of differing constructions, it must be construed most favorably to the accused. See § 775.021(1), Fla. Stat. (2008).
By requiring the defendant seeking downward departure from a criminal punishment code sentence to prove that services to treat his or her medical condition are unavailable in prison, the courts have placed an additional burden on the defendant which is not required by the Legislature. In fact, nothing in the legislative history even hints that in order to justify a downward departure on this ground, services must be unavailable in prison to treat the condition. While that might be what the Legislature intended, I think it should state its intentions clearly so that no one has to guess as to the requirements in punishment statutes.
The burden of proving a negative, i.e. that no treatment options exist in the prison system, is problematic for the defendant and defense attorneys. For instance, in this case the expert testified that she had been unable to reach Department of Corrections officials to have them explain their treatment procedures in the prison system. Instead she relied on other information, including her work with former inmates and the general protocols for treating mental illness, as well as other information which might be considered hearsay.
The prison system is a very large institution with very large medical facilities. To track down all of the available treatment in the system may be a daunting and very expensive task, adding to an already overburdened public defender system. On the other hand, the information on availability of treatment is readily available to the state. I think the state is in the better position to offer such proof in opposition to a downward departure.

Hunter, 65 So.3d at 1125-26 (Warner, J., specially concurring) (footnote omitted).

Here, based on the evidence presented, the trial judge believed that Owens had a mental disorder unconnected to substance abuse. Neither the State nor Owens offered any evidence as to the treatment options available to him in the Department of Corrections. We conclude, however, that the trial judge properly considered Owens’s mental condition as a mitigating factor that justified a downward departure. This finding was consistent with the plain language of section 921.0026(2)(d).

For this reason, we recede from Betancourt, Knox, Mann, Tyrrell, White, and Thompson and certify direct and express conflict with State v. Ford, 48 So.3d 948, 950 (Fla. 3d DCA 2010); State v. Scherber, 918 So.2d 423, 424-25 (Fla. 2d DCA 2006); State v. Holmes, 909 So.2d 526, 528 (Fla. 1st DCA 2005); State v. Wheeler, 891 So.2d 614, 616 (Fla. 2d DCA 2005); State v. Green, 890 So.2d 1283, 1286 (Fla. 2d DCA 2005); and State v. Abrams, 706 So.2d 903, 904 (Fla. 2d DCA 1998).

AFFIRMED; CONFLICT CERTIFIED.

SAWAYA, PALMER, TORPY, LAWSON, EVANDER, COHEN and JACOBUS, JJ., concur.

      . See Fla. R.App. P. 9.030(a)(2)(A)(vi).


text:
    Raymond E. DAGE, Jacqueline G. Dage, Mortgage Electronic Registration Systems, Inc., as Nominee for Master Financial, Inc., Min No. 100230900003360147; FV-1, Inc.; Unknown Tenant No. 1; Unknown Tenant No. 2; and All Unknown Parties Claiming Interests by, through, Under or Against a Named Defendant to this Action, or Having or Claiming to have Any Right, Title or Interest in the Property Herein Described, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee for The MLMI Trust Series 2007-MLN1, Appellee.
    No. 2D11-4084.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2012.

      Ha Thu Dao of Grand Central Law, PLLC, St. Petersburg, for Appellants.
    Jeffrey S. York, Sara F. Holladay-Tobi-as, and Emily Y. Rottmann of McGuire Woods LLP, Jacksonville, for Appellee.
   LaROSE, Judge.

Raymond and Jacqueline Dage appeal a nonfinal order denying, for purposes relevant here, their motion to vacate a final judgment of foreclosure. We have jurisdiction. See Fla. R.App. P. 9.130(a)(4). The Dages argue that Deutsche Bank lacked standing when it filed suit. This fact, however, does not render the judgment void under Florida Rule of Civil Procedure 1.540(b)(4). Therefore, we affirm.

Deutsche Bank filed a two-count mortgage foreclosure complaint against the Dages in December 2008. Count I sought to reestablish a lost promissory note. Specifically, Deutsche Bank alleged that it “is the owner and holder of said note,” and that its assignor(s) were in possession of the note until the loss. Count II sought to foreclose the mortgage on the Dages’ home. Deutsche Bank attached a copy of the mortgage to the complaint. The copy showed Mortgage Lenders Network USA, Inc., as the lender, and Mortgage Electronic Registration Systems, Inc. (MERS), as the mortgagee. The Dages did not respond to the complaint. The clerk entered a default against them in January 2009.

Deutsche Bank moved for summary judgment. It filed the original note endorsed in blank, a copy of the recorded mortgage, and a Corporate Assignment of Mortgage/Deed of Trust showing that MERS assigned the mortgage to Deutsche Bank a week after Deutsche Bank filed the complaint. The trial court entered a final judgment of foreclosure on July 10, 2009, and scheduled a July 18, 2010, sale date for the property.

In early July 2010, the Dages filed a notice of appearance and an emergency motion to cancel the sale. The trial court granted the motion. In February 2011, the Dages filed a motion to set aside the clerk’s default and final judgment. They presented through affidavit their own excusable neglect in failing to respond to the complaint; they claimed that they were making payments and applying for a loan modification through the loan servicers. They also argued that Deutsche Bank misrepresented its ownership and possession of the note and mortgage. More specifically, the Dages argued that Deutsche Bank did not hold or own the note when it filed suit. Our precedent is clear; the plaintiff must own or hold the note at the time of filing suit. See Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010).

The cases relied on by the Dages to support their argument that the trial court can set aside a foreclosure decree at any time before the sale are inapposite, either because they did not involve a clerk’s default, see Verizzo v. Bank of N.Y., 28 So.3d 976 (Fla. 2d DCA 2010); BAC Funding Consortium, Inc., ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936 (Fla. 2d DCA 2010); Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658 (Fla. 2d DCA 2007), or because the defaulted parties filed a timely motion to set the default aside, see Paul v. Wells Fargo Bank, N.A., 68 So.3d 979 (Fla. 2d DCA 2011); Palacio v. Alaska Seaboard Partners Ltd. P’ship, 50 So.3d 54 (Fla. 1st DCA 2010).

The Dages waited more than two years after the entry of the final judgment before moving to vacate the default and judgment. This was untimely. See Fla. R. Civ. P. 1.540(b) (providing that rule 1.540(b) motion for relief from judgment for reasons (1), (2), and (3) — which include excusable neglect and fraud — shall be filed “not more than 1 year after the judgment, decree, order, or proceeding was entered or taken”). Even if the motion had been timely, it was insufficient to entitle the Dages to the relief they requested. See Paul, 68 So.3d at 981. The movant must “demonstrate a legal excuse — such as excusable neglect — for not responding to the complaint, a meritorious defense, and due diligence in seeking relief after learning of the default.” Id. (citing Szucs v. Qualico Dev., Inc., 893 So.2d 708, 710 (Fla. 2d DCA 2005)). The Dages’ motion and affidavits stated no reason why the Dages failed to respond to the complaint. Instead, they discuss the Dages’ efforts to secure a loan modification.

The Dages argue that we should vacate the final judgment under Florida Rule of Civil Procedure 1.540(b)(4), which requires the filing of a motion to vacate within a reasonable time. Subsection (4) allows relief on the ground “that the judgment or decree is void.” The Dages argue that the foreclosure judgment is void because Deutsche Bank lacked standing when it filed suit. “[L]ack of standing is an affirmative defense that must be raised by the defendant and the failure to raise it generally results in waiver.” Phadael v. Deutsche Bank Trust Co. Americas, 83 So.3d 893, 895 (Fla. 4th DCA 2012) (citing Glynn v. First Union Nat’l Bank, 912 So.2d 357, 358 (Fla. 4th DCA 2005)). “[A] default terminates the defending party’s right to further defend, except to contest the amount of unliquidated damages.” Id. (citing Donohue v. Brightman, 939 So.2d 1162, 1164 (Fla. 4th DCA 2006)). Even if Deutsche Bank lacked standing when it filed suit, the final judgment is merely voidable, not void. Id. (citing Jones-Bishop v. Estate of Sweeney, 27 So.3d 176, 177 (Fla. 5th DCA 2010)). A voidable judgment may not be set aside under rule 1.540(b)(4). Sterling Factors Corp., 968 So.2d at 665; Phadael, 83 So.3d at 895 (citing Miller v. Preefer, 1 So.3d 1278, 1282 (Fla. 4th DCA 2009)); Beaulieu v. JPMorgan Chase Bank Nat’l Ass’n, 80 So.3d 365, 365 (Fla. 4th DCA 2012) (“Because appellant defaulted, she cannot contest, as she tries to do in her post-judgment motion, the allegations of the complaint that the appellee was the owner and holder of the note and mortgage.”) (citing State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So.2d 1069, 1072 (Fla. 4th DCA 2001)). Accordingly, the trial court did not err in denying the Dages’ motion to vacate the default and final judgment of foreclosure.

Affirmed.

VILLANTI and CRENSHAW, JJ„ Concur.

      . Rule 1.540(b) also states: "This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.”


author: PER CURIAM.

text:
    Christopher Thomas HAYS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-2733.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2012.

      Christopher Thomas Hays, Daytona Beach, 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 Petitioner’s resen-tencing on August 22, 2011, in Case No. 2009-CF-1147, in the Circuit Court in and for Citrus County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, C.J., COHEN and JACOBUS, JJ., concur.


author: PALMER, J.

text:
    Jesus A. GUADARRAMA, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1716.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2012.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Jesus A. Guadarrama (defendant) appeals his convictions and sentences for aggravated battery with a deadly weapon, possession of burglary tools, and loitering or prowling. He argues that the trial court erred in denying his motion for judgment of acquittal as to the possession and loitering charges, and he also raises a scrivener’s error in the judgment as to the aggravated battery charge. We affirm the convictions and sentences, but remand for correction of the scrivener’s error.

The State correctly concedes that the judgment incorrectly lists the defendant’s aggravated battery with a deadly weapon conviction as a first-degree felony, when it was actually a second-degree felony that could not be reclassified to first-degree in this case. See Brady v. State, 65 So.3d 599, 601-02 (Fla. 5th DCA 2011). The defendant does not argue that the error affected his sentence. Accordingly, we remand for correction of this scrivener’s error.

AFFIRMED and REMANDED.

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

      . § 784.045(l)(a)2, Fla. Stat. (2010).


text:
    Keith Joseph McKNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-822.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2012.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Keith Joseph McKnight (defendant) appeals his sentence, arguing that the trial court erred in not awarding him credit for the time he successfully served on probation. We agree and, therefore, reverse.

The defendant was charged with one count of driving with a license canceled, suspended, or revoked as a habitual traffic offender (a third-degree felony), and one count of DUI (a misdemeanor). The trial court sua sponte offered the defendant a withhold of adjudication on count one with a term of two years of probation, and an adjudication of guilt on count two with a concurrent term of one year of probation. Over the State’s objection that the sentence was an illegal downward departure, the defendant accepted the court’s offer and he was sentenced accordingly. Neither the defendant nor defense counsel sought the downward departure sentence. The State appealed the sentence, and we reversed because the trial court departed downward without a valid reason. State v. McKnight, 35 So.3d 995 (Fla. 5th DCA 2010). While the appeal was pending, the defendant successfully completed one year of probation.

On remand, the defendant withdrew his plea and entered a second plea on each charge. He was sentenced to a term of 55.8 months in the Department of Corrections on count one and to time served on count two. The defendant appeals, arguing that, as in Fraser v. State, 602 So.2d 1299 (Fla.1992), it was unfair and inequitable for the trial court to deny him credit for the time he served on probation. We agree.

In Fraser, the defendant was placed on community control in a downward departure sentence. The State appealed, and the Second District reversed because the trial court failed to provide written reasons to support departure. Id. at 1299-1300. The trial court resentenced the defendant to prison. On appeal, our supreme court held that the defendant was entitled to receive credit for the time he served on community control, explaining:

In this case, Fraser was successfully completing a sentence of community control when he was informed that, through no fault of his own, the sentence was illegally imposed. We are not confronted here with a situation in which a defendant has transgressed and is therefore rightly facing an increased punishment. Nor are we faced with a defendant who has reaped an undeserved windfall, as in Cheshire v. State, 568 So.2d 908 (Fla.1990), where the lower guideline sentence was the result of an erroneous miscalculation of the score-sheet. Here Fraser has not breached the trust placed in him by the trial court. He faces a four and a half year prison sentence now simply because of the trial court’s initial failure to provide contemporaneous written reasons for departure. We agree with Fraser that it would be unfair and inequitable to penalize him for a clerical mistake for which he was not responsible.

Id. at 1300.

There is no reasonable basis not to extend Fraser to the facts here. As in Fraser, the defendant was successfully completing his probation when he was informed that, through no fault of his own, his downward departure sentence had been illegally imposed. Also, as in Fraser, the defendant neither violated his probation nor breached the trust placed in him by the trial court. Therefore, the defendant is entitled to be awarded credit for the time he served on probation. Cf. State v. Mendiola, 919 So.2d 471 (Fla. 3d DCA 2005) (holding that defendant who was prematurely released from prison through no fault of his own was entitled to have time spent at liberty credited to his sentence).

REVERSED and REMANDED.

LAWSON and EVANDER, JJ„ concur.

      . §§ 322.34(5), 322.264, Fla. Stat. (2008).

      . § 316.193(1), Fla. Stat. (2008).


text:
    Terry CHRYSTIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2693.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2012.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm Appellant’s convictions and sentences on all counts. We remand, however, with instructions that the court conform the written sentencing documents to the oral pronouncement.

At the sentencing hearing, with respect to counts three through nine, the court orally reduced Appellant’s cost of supervision to $25 per month, “at least for the, um, the first two years of restitution, uh, if restitution is being made at an appropriate pace, then the defendant can come back and seek, uh, further reduction on the cost of supervision at that point.” However, the written sentencing orders and conditions in the probation orders for counts two and sixteen require Appellant to pay $50 per month in supervision costs, as well as complete restitution to the victims within the first two years of supervision.

Where a conflict exists between the oral pronouncement of sentence and written sentencing documents, the oral pronouncement controls. Williams v. State, 957 So.2d 600, 603 (Fla.2007); Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003). Appellant contends that special condition sixteen and general condition two, as written, should be stricken and amended to reflect the court’s oral pronouncement. The State appropriately concedes error.

Appellant also argues that the court erred in imposing the $50 monthly supervision cost in each of counts three through nine. He cites Stickles v. State, 44 So.3d 653, 654 (Fla. 1st DCA 2010), for the proposition that costs may be imposed “per case” and not “per count.” Thus, he argues that in addition to reducing the supervision cost to $25 per month for the first two years as orally pronounced, the sentencing and probation documents must reflect that only one monthly cost amount is required for the case. Although the State contends that Stickles does not apply, it agrees that only one monthly supervision cost amount should be imposed in this case because the trial court clearly intended that Appellant pay a reduced cost of supervision.

AFFIRMED AND REMANDED.

SAWAYA, TORPY and JACOBUS, JJ., concur.


author: WALLACE, Judge.

text:
    Scott Christopher WEAVER, Appellant, v. Bethany Ann WEAVER, Appellee.
    No. 2D11-1199.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2012.
    Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellant.
    Virginia R. Vetter, Tampa, for Appellee.
   WALLACE, Judge.

Scott Christopher Weaver (the Former Husband) appeals the final judgment that dissolved his marriage to Bethany Ann Weaver (the Former Wife). There is no cross-appeal. On appeal, the Former Husband raises three issues. First, the Former Husband argues that the trial court erred in allocating uncovered medical, vision, or dental expenses for the parties’ three minor children equally between the parties instead of in accordance with the parties’ respective shares of the child support obligation. The remaining two issues raised by the Former Husband concern the time-sharing (visitation) schedule established by the trial court. We agree with the Former Husband that the trial court erred in allocating financial responsibility for the uncovered medical expenses for the parties’ three minor children, and we reverse that portion of the final judgment. The two issues raised by the Former Husband concerning the time-sharing schedule are without merit and do not warrant further discussion.

The Former Wife properly concedes that the allocation of the uncovered medical expenses is in error and that the final judgment should be corrected to allocate the uncovered medical expenses in accordance with the child support guidelines. Section 61.30(8), Florida Statutes (2010), provides, in pertinent part, that “any noncovered medical, dental, and prescription medication expenses of the child, shall be added to the basic obligation unless these expenses have been ordered to be separately paid on a percentage basis.” If, as in this case, such expenses have been ordered to be separately paid, “absent some logically established rationale in the final judgment to the contrary, [they] must be allocated in the same percentage as the child support allocation.” Zinovoy v. Zinovoy, 50 So.3d 763, 764-65 (Fla. 2d DCA 2010); see also Wilcox v. Munoz, 35 So.3d 136, 141 (Fla. 2d DCA 2010) (“It is error for the court to equally divide the noncov-ered medical, dental, and prescription medication expenses when the court arrives at an unequal percentage share of child support.”); O’Byrne v. Miller, 965 So.2d 316, 317-18 (Fla. 2d DCA 2007) (noting same).

Here, the trial court did not add the uncovered medical expenses to the basic child support obligation when calculating each parties’ share of the child support obligation. Instead, the trial court ordered that each party “be equally responsible (50% each) for any and all uncovered medical, vision, or dental expenses related to the minor children, including psychiatric care and medicines that are uncovered by their insurance provider.” This was error because any uncovered medical expenses should have been “allocated in the same percentage as the child support allocation.” Zinovoy, 50 So.3d at 764-65. In this case, the uncovered expenses should have been allocated 19.45% to the Former Husband and 80.55% to the Former Wife.

In his issue statement concerning the allocation of the uncovered medical expenses, the Former Husband also made a perfunctory reference to the allocation of the parenting coordinator fees. However, the Former Husband did not address this issue in the body of his argument. For this reason, we deem any issue concerning the trial court’s allocation of responsibility for payment of the parenting coordinator fees to be abandoned. See Fla. R.App. P. 9.210(b)(5) (providing that an initial brief shall include “[a]rgument with regard to each issue including the applicable appellate standard of review”); Mendoza v. State, 87 So.3d 644, 663 n. 16 (Fla.2011).

For the foregoing reasons, we reverse the final judgment of dissolution of marriage to the extent that it allocates equally between the parties responsibility for payment of uncovered medical, vision, or dental expenses for the parties’ minor children. On remand, the trial court shall amend the final judgment to allocate these expenses in accordance with the parties’ respective shares of the child support obligation. In all other respects, we affirm the final judgment of dissolution of marriage.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CRENSHAW, JJ., Concur.


text:
    Spencer SENTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5322.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2012.

      Spencer Senter, pro se.
   PER CURIAM.

Spencer Senter appeals the summary denial of his motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). Senter claims that he is entitled to additional credit on his Collier County sentence for the time he spent incarcerated in Lee County in 2009 and 2010. He alleges that he was held in Lee County on no bond pursuant to a Collier County warrant for the charges underlying his current conviction. The postconviction court denied this claim because “[t]here is no record evidence that Defendant was in jail on a Collier County warrant for the instant case on the dates for which he claims credit.”

Though Senter attached his Lee County booking sheet and first appearance order to his initial motion, it does not appear that these documents are part of the record in his Collier County case. Because Senter relies on extra-record documents to support his claim, it is not cognizable under rule 3.800(a). However, Senter’s motion was properly sworn and was filed within the two-year filing window. Thus, the postconviction court should have considered it under Florida Rule of Criminal Procedure 3.850. See Young v. State, 86 So.3d 541, 543 (Fla. 2d DCA 2012) (explaining that jail credit claims are cognizable in rule 3.850 motions “if the defendant is requesting additional jail credit due to factual matters not ascertainable from the trial court’s records” (quoting Blake v. State, 807 So.2d 772, 773 (Fla. 2d DCA 2002))). Therefore, we reverse and remand for the postconviction court to consider this claim on the merits as if filed under rule 3.850.

Reversed and remanded.

NORTHCUTT, KHOUZAM, and CRENSHAW, JJ., Concur.


author: ALTENBERND, Judge.

text:
    David L. ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-515.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2012.

      David L. Ross, pro se.
   ALTENBERND, Judge.

David L. Ross appeals an unusual “final order granting defendant’s motion to correct illegal sentence and setting the amount of restitution.” We reverse the order to the extent that it sets the amount of restitution and remand for further proceedings.

For events in 1999, Mr. Ross pleaded guilty to sixty-one counts of uttering a forged check and one count of scheme to defraud. The trial court sentenced Mr. Ross to a total of fifteen years’ imprisonment followed by fifteen years’ probation. Mr. Ross appealed. While the appeal was pending, the trial court held a restitution hearing, apparently without providing notice to Mr. Ross, and entered an order of restitution in favor of several banks, totaling approximately $46,000.

Mr. Ross filed a motion challenging this order as an illegal sentence, claiming that the trial court had been without jurisdiction to enter the order during the appeal and had violated his due process rights by entering the order without notice to him. The trial court granted this motion. The State has not contested that ruling.

Oddly, after deciding that the first order did not satisfy due process, the trial court proceeded immediately to enter the same restitution order as a condition of probation without setting a hearing on the issue, requiring the State to present any evidence, or providing Mr. Ross an opportunity to be heard. Accordingly, we reverse the order to the extent that it sets restitution without notice and remand for an appropriate restitution hearing.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and CASANUEVA, JJ„ Concur.


text:
    Dennis HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-6281.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2012.
    Dennis Howard, pro se.
   PER CURIAM.

Affirmed without prejudice to any right Mr. Howard may have to file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

NORTHCUTT, LaROSE, and KHOUZAM, JJ., Concur.