author: DAMOORGIAN, J.

text:
    Courtney DEMPSEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3555.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.

      Philip J. Massa, Regional Counsel, and Randall Berman, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, J.

Appellant, Courtney Dempsey, appeals his judgment and sentence for attempted first-degree murder with a firearm, three counts of robbery with a firearm, and one count of attempted robbery with a firearm. Dempsey raises three issues for our review. Finding no merit to Dempsey’s arguments, we affirm his judgment and sentence.

Upon remand from this court in Dempsey v. State, 939 So.2d 1165 (Fla. 4th DCA 2006) (hereinafter “Dempsey I”), Dempsey was retried on attempted first-degree murder with a firearm, four counts of robbery with a firearm, and one count of attempted robbery with a firearm. The victims testified that they were robbed in a parking lot by two men wearing ski masks and carrying revolvers. After the robbery, the two men ran to a car and drove away. At about the same time, another vehicle entered the parking lot. The occupants in this vehicle identified the getaway car to the victims as a white Altima. This information was relayed to the police, who then issued a BOLO.

Shortly after the robbery, an officer who had received the BOLO on his radio saw a white Altima pass him at a high rate of speed. The officer began following the vehicle, at which point one of the suspects began firing a gun from the passenger window at the officer. The suspects pulled off the road and ran from the vehicle. Dempsey was ultimately apprehended and identified by the officer as the man running from the passenger side of the Alti-ma.

On appeal, Dempsey argues that the trial court erred by: 1) instructing the jury on attempted felony murder on retrial when that charge was not instructed at the first trial; 2) instructing the jury on the robbery charges by using “and/or” when referring to the victims; and 3) imposing mandatory life sentences because it amounted to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and Article I, section 12 of the Florida Constitution.

In the first trial, Dempsey was convicted of attempted first-degree murder with a firearm. In that trial, the jury was not instructed on attempted felony murder. At the second trial, over Dempsey’s objection, the court instructed the jury on attempted felony murder. Dempsey reasons that in doing so, the trial court infringed “on the right to retrial without [expanding] jeopardy for the same offense.” The State counters, and we agree, that “double jeopardy does not bar the inclusion of the jury instruction on attempted felony murder” because the instruction was “not based on a vacated charge, and evidence adduced at the second trial supported a jury finding of either attempted first-degree murder or attempted felony murder.” In Dempsey I, we reversed for a new trial based on an error with the “and/or” conjunction in the jury instructions when referring to the defendants, not for a lack of proof on the charges against him. See Murray v. State, 3 So.3d 1108, 1124 (Fla.2009) (citing Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988)); see also Hankerson v. State, 929 So.2d 691, 691 (Fla. 1st DCA 2006) (principles of double jeopardy do not apply when defendant’s earlier conviction is reversed on grounds other than the sufficiency of the evidence).

Dempsey also contends that he was forced to defend an additional, alternative criminal charge, ie. attempted felony murder, which was not a part of the first trial. He argues that because the verdict form did not indicate on which alternative legal basis the jury found him guilty, it was not possible to determine which theory of attempted first-degree murder the jury may have relied upon. This determination is not necessary because attempted first-degree murder subsumes both attempted felony murder and attempted premeditated murder.

In O’Callaghan v. State, 429 So.2d 691 (Fla.1983), the Florida Supreme Court held, “ ‘[T]he state does not have to charge felony murder in the indictment but may prosecute the charge of first-degree murder under a theory of felony murder when the indictment charges premeditated murder.’ ” Id. at 695 (quoting State v. Pinder, 375 So.2d 836, 839 (Fla.1979)). The court concluded that a criminal defendant, “because of our reciprocal discovery rules, [has] full knowledge of both the charges and the evidence that the state would submit at trial.” O’Callaghan, 429 So.2d at 695; see also Stanley v. State, 57 So.3d 944, 948 (Fla. 4th DCA 2011) (reiterating the rule from O’Callaghan and holding that because a conviction “under a felony murder theory is legal where the indictment charged premeditated murder, ... a conviction under a premeditated murder theory is legal where the indictment charged felony murder.”).

Applying the holdings of O’Callaghan and Stanley, we conclude that Dempsey could have been charged with attempted first-degree murder, and the State could have prosecuted Dempsey under either attempted premeditated murder or attempted felony murder, without violating his right against double jeopardy. Therefore, we hold there was no error with the trial court’s instruction on attempted felony murder.

Dempsey next argues that the trial court erred by using “and/or” when referring to the victims in the robbery jury instructions. He relies on our previous decision in Dempsey I and contends that the instructions permitted his conviction without a separate determination of his conduct or intent. In the first trial, the “and/or” conjunction was utilized to instruct the jury that it could convict Dempsey based on the conduct of his co-defendant. Dempsey I, 939 So.2d at 1167. We held that use of the “ ‘and/or’ [conjunction in the] written instructions ... [was] incorrect as to the elements which had to be proven by the state for each defendant. ...” Id.

We first note that Dempsey did not object to the jury instructions below. “The claimed error thus was not preserved for appeal and, therefore, does not constitute reversible error unless we conclude that the error was fundamental.” Wilson v. State, 933 So.2d 598, 599 (Fla. 3d DCA 2006) (citation omitted). Courts must analyze the totality of the record to determine if an errant instruction is fundamental error. Garzon v. State, 980 So.2d 1038, 1043 (Fla.2008); Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010).

Although the use of the “and/or” conjunction in the jury instructions constitutes a valid basis upon which a conviction may be vacated, these eases usually involve the use of the “and/or” conjunction between the name of the defendant and a co-defendant. See Dempsey I, 939 So.2d at 1167; Dorsett v. McRay, 901 So.2d 225, 226 (Fla. 3d DCA 2005); Concepcion v. State, 857 So.2d 299, 301 (Fla. 5th DCA 2003). However, in Garzón, the Florida Supreme Court concluded that no fundamental error occurred, in part because other instructions “properly framed the use of the ‘and/ or’ instruction” regarding the defendants. Garzon, 980 So.2d at 1044. In reaching its holding, the court noted that the “verdict forms focused on one defendant and one crime each. The jury therefore had before it individualized jury forms that further reinforced the individualized consideration each defendant was to receive.” Id.

A number of courts have ruled that it is not fundamental error to include the “and/ or” conjunction between the names of victims in a jury instruction. See Croom, 36 So.3d at 711 (holding that the “totality of the circumstances indicates the trial court’s use of the ‘and/or’ language [for the victims] did not reach into the validity of the trial to the extent that a guilty verdict could not have been obtained without it”); Provow v. State, 14 So.3d 1134, 1135 (Fla. 4th DCA 2009) (concluding that “and/or correctly expressed the meaning of the statute that defendant could be found guilty of resisting with violence if he resisted either officer or both at the same time, the same conjunctive/disjunctive may properly be used in the jury instructions to convey the applicable legal rule to the jury”) (emphasis in original); Wilson, 933 So.2d at 599 (holding that the placement of the “and/or” conjunction between the names of victims rather than co-defendants did not prejudice the defendant and was not fundamental error).

Here, as in the cases cited above, the “and/or” conjunction was used to separate the names of the robbery victims, not to instruct the jury that it could convict Dempsey based on the conduct of his co-defendants. Moreover, the jury was provided with separate verdict forms containing the name of each specific victim for each count of robbery. See Garzon, 980 So.2d at 1044.

The instruction still preserved the right of Dempsey to be charged separate from the acts of his co-defendants, while not repeating the elements of each offense for every victim. Any confusion that may have resulted from the jury instructions was cured by the use of separate verdict forms containing the name of the individual victim for each count of robbery. Therefore, we conclude there was no fundamental error in the court’s use of the “and/or” conjunction when referring to the victims.

Dempsey also contends that it was error for the court to allow the prosecutor during closing argument to state that the jury could substitute the co-defendants’ names with Dempsey. Again, Dempsey did not object to the prosecutor’s comments at trial. Failure to raise a contemporaneous objection when improper closing arguments are made waives any claim to the argument on review, except when the comments rise to the level of fundamental error. Poole v. State, 997 So.2d 382, 390 (Fla.2008). The prosecutor’s comments did not amount to fundamental error because the prosecutor was arguing that Dempsey was guilty under a principal theory, which was later provided by the court in its written instructions to the jury. “ ‘Closing argument is an opportunity for counsel to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.’ ” Hildwin v. State, — So.3d -, -, 2011 WL 2149987 (Fla. 4th DCA 2011) (Fla.2011) (quoting Merck v. State, 975 So.2d 1054, 1061 (Fla.2007)). The evidence at trial established that Dempsey helped his co-defendants commit the crimes, he had a conscious intent that the crimes be committed, and he caused, encouraged, or assisted his co-defendants commit the crimes.

Lastly, Dempsey argues that the imposition of mandatory life sentences amounted to cruel and unusual punishment in violation of the United States Constitution and the Florida Constitution. Dempsey claims that a life sentence was cruel and unusual punishment because it was disproportionate to the crime he committed as a twenty-one year old. A review of a sentence in the context of a constitutional violation is subject to de novo review. Guzman v. State, 68 So.3d 295, 296 (Fla. 4th DCA 2011).

The trial court found that Dempsey was a “prison releasee reoffender.” Under section 775.082(9), Florida Statutes, a defendant who qualifies as a “prison releasee reoffender” must be sentenced in accordance with the Prison Releasee Reoffender Act (“Act”). Under the Act, for a felony “punishable by life,” a defendant is subject to a mandatory sentence of life imprisonment. § 775.082(9)(a)3.a., Fla. Stat. (2002)

Furthermore, Dempsey was convicted of attempted first-degree murder, which is subject to life imprisonment. See §§ 782.04(l)(a), 777.04(4)(b), 775.087(l)(a), 775.082(3)(a)3., Fla. Stat. (2002). The State points out that Dempsey was not a juvenile at the time of the crimes, and Dempsey cites to no case law to support his proposition that his life sentence is cruel and unusual punishment in violation of the United States Constitution and the Florida Constitution. We agree and will not disturb an otherwise lawful sentence imposed by the trial court. Based upon the foregoing, we affirm Dempsey’s judgment and sentence.

Affirmed.

CIKLIN and LEVINE, JJ., concur.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Mark GILSON, Appellee.
    No. 2D08-4524.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee.
   DAVIS, Judge.

The State challenges the final order of the trial court granting Mark Gilson’s motion to dismiss the charge of attempted first-degree murder of a law enforcement officer due to the State’s destruction of certain evidence. Because the trial court’s ruling is based on facts presented in the motion to dismiss that are not supported by the record, we reverse.

In 1997, Gilson was convicted after jury trial of attempted first-degree murder of a law enforcement officer. The trial court sentenced Gilson to forty years’ imprisonment with a twenty-five-year minimum mandatory. This court affirmed Gilson’s conviction and sentence. See Gilson v. State, 725 So.2d 1119 (Fla. 2d DCA 1998) (table decision).

On November 13, 2000, however, Gilson sought and was granted postconviction relief in the form of a new trial. As the State prepared to retry Gilson, both parties learned that certain evidence from the first trial had been destroyed despite the fact that it had been the subject of a protective order entered on April 4, 1997. Gilson moved to dismiss the charge on the basis that the destroyed evidence, which included Gilson’s car and the clothing Gil-son had been wearing on the night of the incident, was exculpatory and had been destroyed by the State in bad faith.

The charges against Gilson arose from a traffic stop that resulted in gunfire being exchanged between an occupant of Gilson’s vehicle and Lee County Sheriffs Deputy Mark Cohen. At Gilson’s first trial, Deputy Cohen testified that before stopping Gilson, he had pulled his patrol car alongside of Gilson’s vehicle. Deputy Cohen further testified that he observed that the driver was the only occupant of the vehicle. After he effectuated the traffic stop, Deputy Cohen exited his vehicle, but before he could approach the other car, a man exited the driver’s side of that two-door vehicle and shot at the deputy, striking him in the leg. Deputy Cohen returned fire, and as the car sped off, he fired several shots into the vehicle. Gilson was later apprehended, wounded and hiding under a house in the general area.

Gilson, on the other hand, presented a misidentification defense at the first trial. Although he admitted that he was driving the car, he testified that a man named Rick Roberts was riding in his backseat on the driver’s side. Gilson maintained that when Deputy Cohen stopped him that night, Roberts pushed his way out of the backseat and out the driver’s side door and began firing at Deputy Cohen. Gilson asserted that he then drove off as the officer fired at his vehicle. According to Gilson, he was shot in the back by Deputy Cohen, who was firing into his car from the rear.

Although all thirty-three items of evidence that were subject to the protective order put in place after the first trial were subsequently destroyed, Gilson’s motion to dismiss addressed only the evidentiary value of the clothing he was wearing on the night of the incident and the car he drove that night. In his motion to dismiss, Gil-son maintained that further forensic examination of his shirt and car would have impeached the State’s evidence and that he was now unable to obtain a fair trial due to the destruction of these items. Gilson therefore asserted that, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the attempted first-degree murder charge must be dismissed.

Following a hearing, the trial court granted Gilson’s motion to dismiss, concluding that the evidence “was, at the very least, favorable to the defense as impeachment evidence” and that “the destruction of this evidence has prejudiced the defense because it deprives [Gilson] of the ability to receive a fair trial.” It is the trial court’s order dismissing the charge based on the destruction of evidence that the State now appeals.

On appeal, the State argues that the trial court erred in granting Gilson’s motion to dismiss because Gilson failed to show that he could not obtain comparable evidence by other reasonably available means. See California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 81 L.Ed.2d 418 (1984) (noting that the State’s duty “to preserve evidence ... must be limited to evidence that might be expected to play a significant role in the suspect’s defense,” which the Court defined in part as being “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means”).

Asserting that he would pursue the same line of defense at his second trial as he did at the first, Gilson argued below that the shirt is necessary to impeach the officer’s testimony indicating that Gilson was the shooter. He maintained that immediately after the incident, Deputy Cohen three times described the shooter as wearing a white, off-white, or “lighter colored” short-sleeved shirt, possibly a button-down. The shirt that Gilson was wearing at the time he was apprehended on the night of the shooting — the same shirt that was destroyed by the State — was a dark blue, long-sleeved shirt.

We conclude that for impeachment purposes, a photograph of the shirt is comparable evidence. In fact, Gilson introduced a photo of the shirt into evidence for this purpose at his first trial during the cross-examination of the officer who first interviewed Gilson on the night of the shooting. That officer confirmed that the photograph accurately depicted what Gilson was wearing when he was apprehended. And after the hearing on the motion to dismiss, but prior to the trial court’s issuing its dismissal order, the State informed the court that photos of Gilson’s clothing were still available to Gilson.

Gilson also claimed below that the shirt is necessary to refute the victim’s testimony that Gilson was the only occupant of the car that night. In support of his motion to dismiss, Gilson presented the sworn statement of a bouncer at a nearby club who made a statement to police that on the night of the shooting, two men attempted to enter the club about an hour prior to the shooting. According to the bouncer’s statement, one man had on a black jersey-type shirt and the other “had on a white shirt on [sic] button-down ... it was opened and it was sloppy looking.” The man in the white shirt was acting “jittery, you know in the mood he wanted to leave,” and he said to the other man in the black shirt, “Come on, let’s get the f— out of here.” Gilson argues that the shirt, the bouncer’s statement, and Deputy Cohen’s description of the shooter establish that he was with another man on the night in question and that because Gilson was the one wearing a dark colored shirt, the other man was wearing the white or light-colored shirt and was the individual who Deputy Cohen saw shooting at him.

We conclude, however, that Gilson can make the same argument with a photograph of the shirt coupled with the officer’s testimony confirming that the photograph accurately depicts what Gilson was wearing on the night of the shooting. We can see no reason why the actual shirt would have to be introduced to assert this argument.

Finally, with regard to the shirt, Gilson argued that it is necessary to impeach Deputy Cohen’s testimony that he shot his assailant in the abdomen. Gilson argued at the dismissal hearing below that the deputy testified he shot the person who exited the car in the stomach. Gilson therefore reasoned that the lack of a bullet hole in the front of the shirt that he was wearing when he was arrested would prove his claim that although he may have been the driver of the stopped vehicle, he was not the person who exited the vehicle, started shooting at the deputy, and was shot in the stomach by the deputy. Furthermore, Gilson alleged that the “medical” testimony presented at the first trial was inconsistent as to whether Gilson was shot in the abdomen or the back and that he was shot only in the back as he drove away.

At the hearing on Gilson’s motion, the State offered no argument to rebut the need for the shirt to show the placement of the bullet holes. Gilson now argues on appeal that this court therefore is precluded from considering this issue. We note that it is true that in most cases, the State’s failure to present to the trial court a specific argument against dismissal would deny it the opportunity to raise that argument for the first time on appeal. See State v. Pruitt, 977 So.2d 604, 605 (Fla. 2d DCA 2007) (“The prosecutor made no argument [below] asserting the existence of a prima facie case or contending that the knowledge element could not properly be considered on a motion to dismiss. The State is therefore barred from arguing these points for the first time on appeal.”). However, this case is different because here the trial court based its ruling on Gilson’s misrepresentation of the facts.

In his motion to dismiss, Gilson alleged that Deputy Cohen testified at the first trial that he shot the shooter in the abdomen. To support this allegation, the motion quoted the State’s redirect examination of Deputy Cohen, and Gilson attached to the motion page 151 of the transcript, which includes the quoted testimony. That exchange is as follows:

Q. Did you shoot the defendant?
A. Yes, I did.
Q. Where?
A. In the stomach area.

However, on recross-examination of Deputy Cohen, Gilson’s trial counsel elicited the following responses:

Q. [Deputy] Cohen, was Mr. Gilson shot in the front or the back, do you know?
A. The front portion.
Q. Are you sure about that?
A. That’s what I am told.
Q. But you don’t have personal knowledge of that?
A. No.
Q. Okay.
A. As I was returning fire, he was always facing toward me.
Q. I am going to ask this in a different way. You don’t have any personal knowledge as to whether you shot Mr. Gilson in the stomach from the front?
A. No.

This exchange appears on page 152 of the transcript, which was not attached to the motion nor brought to the trial court’s attention.

In his motion to dismiss, Gilson specifically asked the trial court to decide whether the missing shirt would impeach the deputy’s testimony that he shot Gilson in the stomach, thereby lending support to Gilson’s position that he could not have been the shooter because he was shot in the back.

However, as the full record reflects, Deputy Cohen never testified that he shot his attacker in the stomach. Rather, he testified that he had no personal knowledge of that fact. Thus, Gilson’s motion to dismiss raised — and the trial court ruled on — an issue that does not exist under the facts of this case. And the trial court’s finding that the shirt amounted to impeachment evidence indicates that this nonexistent factual scenario impacted the trial court’s ruling. Thus the State’s failure to make sufficient legal argument in response to a nonissue does not deny this court the opportunity to remand the case to the trial court to reconsider Gilson’s motion in light of the full record. See State v. Burton, 314 So.2d 136, 138 (Fla.1975) (“[S]uch orders, judgments or decrees which are the product of fraud, collusion, deceit, mistake, etc .... may be vacated, modified, opened or otherwise acted upon [ajt any time. This is an inherent power of courts of record [] and one essential to insure the true administration of justice and the orderly function of the judicial process.” (emphasis added)). Gil-son’s counsel’s failure to provide the trial court with Deputy Cohen’s complete testimony led to the trial court’s erroneous conclusion, and Gilson should not now be able to preclude appellate review of that error.

With regard to the destruction of Gilson’s automobile, Gilson argued in his motion to dismiss as follows:

The materiality of this evidence is that [Gilson] has hired a reconstructionist in order to recreate the shooting incident to show that [he] was shot in the back, and not in the front as Deputy Cohen testified. The expert would need to examine the automobile to measure angles for trajectory purposes. This avenue of defense has been forever foreclosed due to the actions of the police.

(Emphasis added.)

Because Gilson again seeks to impeach the nonexistent testimony of Deputy Cohen that he shot his assailant in the abdomen, Gilson’s claim that the automobile is necessary for him to receive a fair trial must fail. Furthermore at the first trial, only photographs of the car were introduced by either party, and Gilson made no attempt to have the car inspected by an expert at that time. And even if Gilson’s expert was able to examine the car and came to the conclusion that a bullet that struck Gilson was fired from behind the car through the driver’s seat, such evidence would only confirm Deputy Cohen’s testimony that he continued to shoot toward the car as the car drove away. Photographs of the car show blood on the upright backrest of the driver’s seat, as well as a hole in the driver’s seat. Because these photographs support Gilson’s claim that he was shot in the back as he drove away, the actual car is not necessary to make this point.

Based on our review, the record before us does not support the trial court’s finding that the destroyed evidence was favorable to the defense as impeachment evidence. We therefore reverse the trial court’s order dismissing the charge and remand for the trial court to reconsider Gilson’s motion in light of a full reading of the testimony from the first trial.

Reversed and remanded for further proceedings.

CRENSHAW and MORRIS, JJ., Concur.

      . We acknowledge that at the hearing on Gil-son's motion to dismiss, the State failed to advise the trial court of the availability of the photograph and that the State failed to argue below that the photograph would provide the alternative evidence to impeach Deputy Cohen's description of the assailant. However, at his first trial, Gilson used this photograph rather than introducing the actual shirt.

      . The State’s only argument below in response to the motion to dismiss was that the Brady violation cases cited by Gilson all referenced the destruction of evidence prior to the original trial and that because Gilson already had been tried once, these cases did not apply to the instant case.

      . We have not concluded that there has been any fraud or intentional misrepresentation presented to the trial court. However, a mistaken statement of facts cannot serve as a basis for a legal conclusion that is without redress on appeal.


author: PER CURIAM.

text:
    Napoleon HUNTER, Jr., Appellant, v. Latrailya HUNTER, Appellee.
    No. 2D10-5257.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 2011.
    Alyssa R. Ruge, Trinity, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Napoleon Hunter, Jr., the Father, appeals a postdissolution of marriage order which changed the primary residential parent of the parties’ children from him to the Mother, Latrailya Hunter. This is Mr. Hunter’s second attempt to reverse this change and follows closely his first. In his first attempt, an appeal of the trial court’s nonfinal order, we reversed. See Hunter v. Hunter, 65 So.3d 1213 (Fla. 2d DCA 2011) (Hunter I). Hunter I provided Mr. Hunter the necessary relief. During the pendency of the appeal in Hunter I, the trial court issued a final order that was substantially the same as the previous non-final order except that the trial court added a finding of contempt against Mr. Hunter. We must again reverse.

Because the order on appeal is substantially the same as the order in Hunter I, we will not repeat here the reasons why the trial court erred in entering this second order. Furthermore, Mr. Hunter’s appellate counsel has not briefed as an issue in this appeal the only substantive difference in the two orders — a finding of contempt — and thus has waived any potential error on appeal. See David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins. Co., 972 So.2d 275, 281 (Fla. 2d DCA 2008) (holding that where appellant omits to address in the initial brief a trial court error raised in the appeal, the appellate court will deem such potential issue waived or abandoned); accord Kenyon v. Kenyon, 496 So.2d 839, 840 (Fla. 2d DCA 1986); Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958 (Fla. 4th DCA 1983).

However, the primary reason we must reverse is because Florida Rule of Appellate Procedure 9.130(f) divested the trial court of jurisdiction to enter the second order:

(f) Stay of Proceedings. In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.

And there has been no stay entered in this cause.

Reversed and remanded for further proceedings.

CASANUEVA, CRENSHAW, and MORRIS, JJ., Concur.


text:
    Lauren L. CORTESE, Appellant/Cross-Appellee, v. Charles J. CORTESE, Appellee/Cross-Appellant.
    Nos. 5D10-303, 5D10-324, 5D10-1193.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 2011.
    Kevin E. Farris, Clermont, for Appellant/Cross-Appellee.
    Thomas N. Wells, The Villages, for Ap-pellee/Cross-Appellant.
   PER CURIAM.

Lauren L. Córtese (“Wife”) appeals the final judgment of dissolution of marriage dissolving her marriage to Charles J. Córtese (“Husband”). Of the numerous issues raised in the direct appeal and in the cross appeal, only one issue merits discussion and reversal — the trial court’s grant of a credit to Husband for one-half of the marital home mortgage payments and other house-related expenses that Husband paid during the parties’ period of separation.

We believe this award was error for several reasons. First, Husband did not request this credit in his pleadings. See Udell v. Udell, 950 So.2d 528, 529-30 (Fla. 4th DCA 2007) (holding that it was improper for the trial court award a rental value set-off to the husband in return for the wife’s exclusive use of the marital home during the separation because it was not requested in the husband’s pleadings).

Second, given that during the marriage Husband was generally responsible for paying the mortgage and other household expenses by virtue of being the primary breadwinner, it was inappropriate for the trial court to award a credit to Husband for paying the expenses on the marital home during the separation. See Kranz v. Kranz, 737 So.2d 1198, 1202-03 (Fla. 5th DCA 1999) (holding it error to award the husband credit for making mortgage payments on the marital home during the separation period where the husband paid the mortgage during the marriage).

Third, as Wife points out, the trial court specifically ruled that the expenses Husband paid toward the marital home were temporary alimony, and the trial court used that finding to conclude that there was no alimony arrearage at the time of the Final Judgment. The trial court’s determination that the marital home expenses paid by Husband constituted alimony precluded the trial court from awarding Husband a credit for making those payments. See Roth v. Roth, 611 So.2d 1268, 1268 (Fla. 3d DCA 1992) (“The husband is not entitled to a credit for the mortgage payments, when ... the payments constituted his support obligation.” (citing Pastore v. Pastore, 497 So.2d 635, 637 (Fla.1986); Fitzgerald v. Fitzgerald, 558 So.2d 122 (Fla. 1st DCA 1990))). Thus, the trial court’s order is erroneous because it simultaneously credits Husband’s payments on the marital home toward alimony and requires Wife to repay Husband for one-half of those expenses.

Accordingly, that part of the Final Judgment awarding Husband credit for one-half of the expenses and mortgage payments is reversed and this case is remanded for the trial court to render an amended final judgment in accordance herewith. As to the other issues raised by the parties, we affirm without further discussion.

AFFIRMED in part; REVERSED in part; REMANDED.

GRIFFIN, SAWAYA and COHEN, JJ., concur.

      . The trial court found that “[t]he parties have primarily lived off the husband’s income. The wife’s earnings were substantially less than the husband’s during the marriage.” Moreover, the parties entered into a partial equitable distribution agreement that provides, "Husband agrees to continue to be responsible for the following payments toward the marital residence....” (Emphasis added). This provision suggests that Husband was responsible for paying the referenced expenses on the marital home during the marriage.


author: THOMAS, J.

text:
    Jerette LUCAS, Appellant, v. ADT SECURITY INC./SEDGWICK CMS, Appellees.
    No. 1D10-2094.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.

      Jonathan B. Israel of Harris, Guidi, Ros-ner, Dunlap & Rudolph, P.A., Jacksonville, for Appellant.
    Grant D. Petersen of Ogletree, Deakins, Nash, Smoak & Stewart, Tampa, for Ap-pellees.
   ON MOTION FOR REHEARING

THOMAS, J.

This cause is before us on Appellees’ motion for rehearing. We GRANT the motion and, accordingly, withdraw our former opinion of July 22, 2011, and substitute the following opinion in its place.

In this workers’ compensation case, Claimant challenges an order of the Judge of Compensation Claims (JCC) denying benefits on the ground she violated section 440.105, Florida Statutes (2006), by making false or misleading statements for the purpose of obtaining workers’ compensation benefits. For the reasons expressed below, we affirm the JCC’s finding that Appellant provided false statements, in violation of the statute.

“It shall be unlawful for any person ... [t]o knowingly make ... any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter.” § 440.105(4)(b), Fla. Stat. (2006). An employee found to have knowingly or intentionally done so is not entitled to benefits. § 440.09(4)(a), Fla. Stat. (2006). Here, the JCC found “Claimant intentionally or knowingly has made numerous false and misleading statements with regards to the extent of her current injuries and which were made for the purpose of obtaining workers’ compensation benefits in violation of section 440.105(4)(b), Fla. Stat. These statements include reporting pain complaints grossly out of proportion to the physical findings on examination and diagnostic studies.” The record supports the JCC’s findings.

Claimant verbally rated her pain as four to eight on a scale of one to ten, and in writing rated her pain as “5 out of 10.” Claimant’s reports of pain were statements, and they were proven to be false or misleading by Dr. Rogozinski’s testimony that Claimant’s behavior was inconsistent with these statements, testimony which the JCC accepted. Dr. Rogozinski was the Employer/Carrier’s (E/C) independent medical examiner. Specifically, Dr. Rogo-zinski testified:

The patient was observed walking into the exam room with absolutely no difficulty whatsoever; however, when she was sent to x-ray room, she was in such severe pain that it necessitated the help of her attorney to ambulate there. But, once again, after her attorney had left and she left the exam room at the end of the evaluation she performed this with no problem whatsoever.

He also testified: “At the time of the physical exam, the patient had been sitting on the edge of the table with her legs dangling for 22 minutes. Throughout the entire interview she had absolutely no pain, no signs of discomfort, no posturing or change in positions.” When asked about Claimant sitting on the table with her legs dangling, he explained, “People with back pain hate that. It puts a stretch on the sciatic nerve.”

Dr. Rogozinski also testified:

She was theatrical in the exam. Within the first few minutes of the exam, in spite of the fact that I only asked her to walk and did a visual exam of her back, she began crying. She mobilized with severe difficulty and ambulated with a normal gait. She used no assisted [sic] devices. She was not standing in a crouched posture.

He explained:

She mobilized with severe difficulty, which means she goes from one position to the other one with great difficulty, but has a normal gait pattern. You would expect somebody in that severe pain to be crouched. The reason we c[r]ouch is that we shorten our muscles and decrease the strain on the long muscles of the back, the pelvis and the hamstring. So she wasn’t doing that.

Dr. Rogozinski further testified: “Pelvic torso rotation was bilaterally positive at 25 degrees to either side. Quite strangely, at the end of the exam, she mobilized from a supine to a standing position while performing a sit-up maneuver without any arm assist.”

In explaining the significance of this, Dr. Rogozinski said:

Pelvic torso rotation is a sign that with the patient standing and arms folded across the chest, the examiner actually rotates the pelvis and the spine moves with the pelvis completely. Even in people with severe back pain, that particular maneuver is used to discriminate people who are malingering and nonmal-ingering. Pelvic torso rotation should cause absolutely no pain.... With her, even the 25 degrees [purportedly caused pain]. As I said at the end of the exam she mobilized from lying down to a standing position by performing a sit-up maneuver. People with back pain never do that. They roll onto their side and then they stand up, because of the discomfort that a sit-up maneuver causes.

Dr. Rogozinski also testified: “Her knees had full painless range of motion. During the knee exam, the patient was able to hold both feet extended, sitting in a 90/90 position with absolutely no signs of any back pain or discomfort, or extension of the lumbar spine.” Explaining, Dr. Ro-gozinski testified:

When you said [sic] 90/90, it means you’re sitting on the end of the exam table, with your legs dangling, okay, and that shortens the sciatic nerve. As you see, she was able to extend both feet, meaning she straighte[ne]d out both her knees simultaneously. People who have any significant back pain, back spasm or sciatic will not let you straighten their leg out, not even one, let alone two in that position. And she volitionally was able to extend both her legs simultaneously without hyperextending her back, which doesn’t correlate with people with back problem [s].

He further explained that he did not notice any muscle spasm, even though, “in a person with a presentation that Jerette Lucas claimed,” he “would expect to either be able to palpate someone physical exam [sic] and be able to see that there’s loss of lordosis on the x-ray, which neither of those was present.”

Dr. Rogozinski additionally testified that physical tests indicated Claimant’s condition did not demonstrate a spine condition: “[M]uscle testing being five out of five, that’s normal. Neurologically has no atrophy. Pinwheel is intact. Reflexes are normal. And has root tension signs. So she has no protocolizing signs, as we say, as far as her neurologic and musculoskele-tal exam.” When specifically asked whether Claimant’s statements of pain correlated to his findings on physical exam, Dr. Rogozinski stated, “No.” He further opined that Claimant was malingering, defining “malingering” as “somebody’s faking it, in simple terms.” When asked, “Is it your medical opinion that Jerette Lucas is faking?” Dr. Rogozinski answered, ‘Yes.” On cross-examination, he was asked whether there exist “people who can have a mental feeling or a psychological feeling that they’re in pain even though there is no physical correlation to that”; he responded, “I think within the scope of orthopedic surgery I’d say no.” Again, he was asked, “there aren’t people who feel like something causes them pain even though there cannot be a pain generator found?” and he responded, “No.”

This court explained in Dieujuste v. J. Dodd Plumbing, Inc., 3 So.3d 1275 (Fla. 1st DCA 2009), that, although the basis of a misrepresentation defense must be a claimant’s oral or written statement, an employer/carrier can prove that statement constitutes misrepresentation by presenting evidence of the claimant’s nonverbal conduct inconsistent with that statement, and convincing a JCC of its veracity. In Dieujuste, this court reversed the finding of misrepresentation because a video surveillance constituted the only evidence in the record of Claimant’s condition and “there was nothing on the [surveillance] video which was inconsistent with Claimant’s statements or presentation to them, and Claimant’s activities in the video were consistent with his objective, painful knee condition.” Id. at 1277. Here, in contrast, Dr. Rogozinski’s extensive testimony, set forth above and accepted by the JCC, was evidence of Claimant’s nonverbal conduct, inconsistent with her reports of pain, which was sufficient to support the JCC’s finding of misrepresentation. Therefore, the JCC’s order is AFFIRMED.

PADOVANO and LEWIS, JJ., concur.


author: CLARK, J.

text:
    Michael S. HOOD, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Bay County School Board, Appellees.
    No. 1D11-0686.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.

      Michael S. Hood, pro se, Appellant.
    A. Robert Whaley, General Counsel and M. Elaine Howard, Deputy General Counsel, Florida Unemployment Appeals Commission, Tallahassee, for Appellees.
   CLARK, J.

Michael Hood appeals the Commission’s final agency action affirming the appeals referee’s dismissal of his untimely administrative appeals. Because the appellant has failed to establish any of the statutory grounds upon which the agency’s final order could be set aside, under section 120.68(7), Florida Statutes, the final order is affirmed.

The appeals in this case stemmed from three determinations by the agency that Appellant was ineligible for Unemployment Compensation for three particular time periods. The Notices of Determination were each mailed to the appellant on May 19, 2010, and the appellant admitted at the administrative hearing that he received the Notices shortly thereafter. There was no dispute about the content of the Notices, including the detailed description of the appellant’s appeal rights and the instructions for where and how to appeal the Determinations via electronic means, regular mail, or facsimile (“fax”). The Notices did not contain any indication that an appeal might be sought orally via a telephone call.

The 20-day time limit to submit an appeal was repeatedly stated on each Notice. There was also no dispute of fact that the appellant filed his appeals of the Determinations on September 1, 2010, 105 days after the Determinations were mailed to him.

An administrative hearing was held on the appeals of the Determinations, and, after taking testimony from Mr. Hood, the Appeals Referee dismissed the appeals as untimely. In its final order, the Unemployment Commission affirmed the dismissals as reasonable applications of the law as applied to the facts in the case.

During the administrative hearing, the appellant testified as follows:

REFEREE: Okay, into the record as exhibit C, page three....
All right. Mr. Hood please tell me as to why did you wait outside — first off let me go back and ask did you read section four of your appeal rights?
HOOD: At the time probably not.
I think your question was going to be why did I wait so long to appeal. After I received each determination I contacted Mr. A.C. Miller, the adjuster, in these eases. I clarified my position on the determinations. I explained to him what happened and I thought or I understood or misunderstood that it — that everything had been done to his satisfaction and that no further action was warranted.
As I did not receive any paperwork concerning a return of the money I thought everything was all right. When I did receive paperwork stating I owed the 550 on the one claim and $50 on the one determination and 50 on the other I immediately called Mr. Miller again and he stated that I needed to — if any action was to be done I needed to appeal.
I immediately did so.
REFEREE: So on the first call, when did you call him?
HOOD: I do not have the dates.
REFEREE: Okay, this is the—
HOOD: It was when I received each determination I would contact him.
REFEREE: Okay now, who did this adjuster work for?
HOOD: He works for Unemployment. He is out of the Jacksonville office. On each determination if you look up in the right hand corner
it will say A.C. Miller as the adjuster.
REFEREE: Okay. And on the first call what did he tell you?
HOOD: On the first call I clarified what had happened and I am sure we will get into that in a minute. I thought to his satisfaction and that no further action would be necessary.
REFEREE: Okay. So you just called to clarify the situation that had taken place?
HOOD: Yes.
REFEREE: Okay.
HOOD: To clarify each of the situations that he sent me the determination for.
REFEREE: Okay when you mean clarify, you just wanted to explain to him as to what the situations—
HOOD: As to what had happened, yes sir.
REFEREE: Okay. All right. Do you have anything else that you want to say at this time?
HOOD: No sir.

On appeal, Mr. Hood argues that the Commission’s final order must be set aside based upon fairness and due process, because the untimeliness of his administrative appeal was excused by his telephone conversations with the Commission’s adjuster.

Section 443.151(3)(c), Florida Statutes, provides for the 20-day deadline to appeal, and the Legislature did not provide for any “good cause” to excuse late filing in subsection (3)(c). See Espinosa v. Cableoptics, Inc., 807 So.2d 195 (Fla. 3d DCA 2002) (and cases cited therein). Rule 60BB-5.007, Florida Administrative Code, upon which the Appeals Referee relied, requires dismissal of late-filed appeals with no exceptions. However, in 2005, section 443.151(4)(b)3. was created to allow the Office of Appeals to order a claimant to show cause why a late-filed appeal should not be dismissed and to give the claimant an opportunity to provide written evidence of timely filing or “good cause for failure to appeal timely.” Ch. 2005-209, § 7, Laws of Fla. (emphasis added). Because the subsection provides that the Office of Appeals “may” issue an order to show cause, such order is not statutorily required before an untimely appeal can be dismissed.

This “good cause” amendment to section 443.151(4)(b)3. codifies previous case precedent requiring the agency, on a case-by-case basis, to consider the facts surrounding late-filed appeals when appellants challenge their timely receipt of notice from the Commission or other situations where the Commission might have contributed to the delay in the claimant’s filing of the appeal. See Ortolano v. Unemployment Appeals Comm’n., 33 So.3d 823 (Fla. 5th DCA 2010); Pollett v. Fla. Unemployment Appeals Comm’n., 928 So.2d 469 (Fla. 1st DCA 2006); Applegate v. Nat’l Health Care Affiliates, 667 So.2d 332 (Fla. 1st DCA 1995). Thus, the statute now contains an avenue for a claimant to assert good cause for a late-filed appeal during the administrative proceedings.

While the record in this case does not contain an order requiring the appellant to show cause why his untimely appeals should not be dismissed, the notices of hearing on his appeals did inform him that the timeliness of his appeals would be at issue. In addition, during the hearing, the appeals referee questioned him directly about his reasons for filing late, and the appellant testified about his actions. However, unlike the cases where courts have found that appellants sufficiently raised a fact question about the Commission’s possible contribution to the untimeliness of the appeal, the appellant’s testimony was insufficient to support any such contribution. He admitted that he made no attempt to avail himself of any of the clearly described methods of appeal, but chose instead to call a Commission employee to “clarify” his “position” on the determinations of ineligibility. His testimony does not establish that his assumption that “no further action was warranted” was based on any advice or instruction by the agency employee, or that they even discussed the appeal process.

The appellant has shown no deviation from procedure by the Commission in this case. He received the procedural process he was due. The fairness of the proceedings was not impaired by a material error in procedure by the Commission, or by the appeals referee. See § 120.68(7)(c), Fla. Stat. The appellant is understandably disappointed in the outcome of his administrative action, but the right to due process is not offended by every negative outcome. As stated in Steele v. Florida Unemployment Appeals Comm’n., 596 So.2d 1190, 1191 (Fla. 1st DCA 1992):

For the most part, the appellate court is concerned with questions pertaining to whether or not the proceedings below were carried out in accordance with the law. It is generally not a question of whether the appellate court agrees or disagrees with the result reached in a particular case, but whether that result was reached in a fair manner and was within the jurisdiction and authority of the court or agency whose decision is being appealed.

Because the Commission acted within its jurisdiction and authority, complied with the statutes applicable to Unemployment Compensation and administrative procedures, and because the appellant has not established on appeal any of the grounds, under section 120.68(7), Florida Statutes, upon which the Commission’s final order might be set aside, the Commission’s final order is AFFIRMED.

WOLF and THOMAS, JJ., concur.


author: RAY, J.

text:
    PRO TECH MONITORING, INC., Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D11-1133.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.

      John A. Tucker, IV, and C. Ryan Malo-ney of Foley & Lardner LLP, Jacksonville, and Robert H. Hosay and James McKee, Tallahassee, for Appellant.
    Susan P. Stephens, Assistant General Counsel, of Florida Department of Corrections, Tallahassee, for Appellee.
   RAY, J.

Pro Tech Monitoring, Inc., Appellant, seeks review of a final order issued by the Department of Corrections dismissing its formal bid protest petition as untimely. The dismissal of the petition was based on an erroneous application of the law to a set of disputed facts. As a result, we reverse and remand for further proceedings consistent with this opinion.

Appellant’s formal bid protest petition was due on January 3, 2011, pursuant to the procedures outlined in section 120.57(3), Florida Statutes (2010). Although Appellant contends the petition was filed during business hours on January 3, 2011, the agency clerk’s office did not stamp the petition as received until 10:15 a.m. the following day. After a delay of nearly one month, the Department ordered Appellant to show cause why its petition should not be dismissed as untimely. In response, Appellant alleged that the petition was timely filed or, in the alternative, that it should be accepted as such based on the doctrines of equitable tolling and estoppel. To establish the factual basis for its claims, Appellant attached the affidavit of Justin Splitt, an office services assistant for the law firm representing Appellant.

According to Splitt’s affidavit, he hand-delivered the petition to the Department during business hours on the afternoon of January 3, 2011. When he arrived at the Department’s front intake desk, a security guard was stationed there. Splitt told the security guard he was there to file a document with the agency clerk, whose office is located within the same building. The security guard would not allow Splitt to deliver the documents personally because access to the building is restricted to the public. Instead, the security guard accepted the petition, along with copies to be delivered to various officials within the Department’s restricted-access area. The security guard also stamped Splitt’s copy of the petition with a Department-issued stamp located at the intake desk. The stamp indicates that the Department received the document at 4:46 p.m. on January 3, 2011. Splitt attested that he had previously filed the notice of intent to protest in the same manner on its due date and that this notice had been accepted as timely filed. Thus, he claimed he was following established Department procedures when he delivered the formal bid protest petition to the front intake desk for filing.

The Department accepted Appellant’s allegations as true for the purpose of determining whether to dismiss the petition yet ruled that Splitt had “failed to take adequate measures available to insure that the [pjetition was received in fact by the Clerk of the Agency on or before the date it was due.” For this reason, the Department dismissed the petition as untimely. This decision was based on an erroneous application of the law. There are facts in the affidavit that support a conclusion that the petition was timely filed. Furthermore, additional facts in the affidavit support an alternative conclusion that the petition should be accepted as such based on the doctrine of equitable tolling.

Timely Filing

Section 120.57(3) sets forth the deadlines for filing a notice of protest and a formal written protest for disputes arising out of the public contract solicitation and award process. Upon receipt of a timely-filed formal written protest, an agency is required to stop the solicitation or contract award process pending resolution of the dispute by final agency action. § 120.57(3)(e). Pursuant to Florida Administrative Code Rule 28-106.104(1), a petition is filed when it is “received by the office of the Agency Clerk during normal business hours or by the presiding officer during the course of a hearing.” See § 120.57(3) (providing that the uniform rules of procedure apply to bid protests). As part of the uniform rules of procedure, this rule was adopted in an effort to establish procedures that comply with the requirements of the Administrative Procedure Act. See § 120.54(5)(a), Fla. Stat. (2010). Just as the purpose of the Florida Rules of Civil Procedure is “to further justice and not to frustrate it,” Strax Rejuvenation & Aesthetics Institute, Inc. v. Shield, 49 So.3d 741 (Fla.2010), the purpose of the Administrative Procedure Act is to ensure due process and fair treatment of those affected by administrative actions, see Machules v. Dep’t. of Admin., 523 So.2d 1132 (Fla.1988).

The Department’s application of the rule to the facts before it was based on an unreasonable construction of the filing rule, which is contrary to the purpose of the Administrative Procedure Act. According to Appellant, its representative hand-delivered the petition to the agency clerk’s address; went as far into the restricted-access building as he was allowed to go; told the Department’s agent stationed at the agency’s public point of contact that he was there to file a document with the agency clerk; was told by the Department’s agent that he would take receipt of the document for delivery within the Department; and requested, and in fact received, a date and time-stamped copy of the petition. Once the Department’s agent accepted the petition in this manner, there was nothing more for Appellant to do. Applying the filing rule in such as way as to require a party to personally ensure delivery to a specific room where the party is not allowed to go is patently unreasonable. Cf. Strax, 49 So.3d at 744 (“A rule that would deny a citizen who has timely sought an appeal his or her right to appeal based on a proven mistake by a clerk’s office employee is not consistent with justice or due process.”). In the situation presented to us, the security guard’s desk operated as the agency clerk’s constructive office for the purposes of filing. Thus, these facts indicate that the petition was timely filed as a matter of law.

Equitable Tolling

We are also persuaded by Appellant’s argument that, in the alternative, the doctrine of equitable tolling could apply to the facts presented in this case. Under the doctrine of equitable tolling, a late-filed petition should be accepted “when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum,” provided that the opposing party will suffer no prejudice. Machules, 523 So.2d at 1134, 1137 (Fla.1988). In Machules v. Department of Administration, the Florida Supreme Court expressly held that this doctrine applies in administrative proceedings. Id. at 1136-37. In so holding, the court noted that the Administrative Procedure Act was intended to ensure that “the public would receive due process and significantly improved fairness of treatment ... than was commonly afforded under the predecessor act.” Id. at 1134 (quoting Machules v. Department of Administration, 502 So.2d 437, 446 (Fla. 1st DCA 1986) (Zehmer, J., dissenting)).

Attempting to distinguish Machules, the Department contends that equitable doctrines may not be applied to the deadline for filing a formal bid protest petition under section 120.57(3) because this deadline is jurisdictional. In O’Donnell’s Corp. v. Ambroise, 858 So.2d 1138, 1140 (Fla. 5th DCA 2003), the Fifth District observed that Florida courts had “consistently held that late filing of a request for an administrative hearing is not jurisdictional, but is analogous to a statute of limitations which is subject to equitable exceptions.” Nevertheless, the Department contends that requests for hearing under section 120.57(3) do not fall under this holding.

Section 120.57(3) provides that “[fjailure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter.” The Department submits that this language illustrates the jurisdictional nature of the deadline. We disagree. This language simply describes the nature of a filing deadline or statute of limitations and does not suggest that equitable doctrines may not be applied to overcome the harsh effect of a filing deadline where such an effect would be contrary to due process or legislative intent. Just as the doctrine of equitable tolling may be applied to a statute of limitations, it may be applied to the filing deadlines under section 120.57(3). See Machules, 523 So.2d at 1133-34 (explaining that “[t]he doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations period”); O’Donnell’s, 858 So.2d at 1140.

Section 120.569(2)(c) confirms and informs our holding that the doctrine of equitable tolling should be applied to excuse the late filing of a bid protest petition under appropriate facts. Although section 120.569(2)(c) directs agencies to dismiss untimely petitions, it also notes, “This paragraph does not eliminate the availability of equitable tolling as a defense to the untimely filing of a petition.” The Department argues that the absence of similar language in section 120.57(3) indicates that equitable tolling may not serve as a basis for excusing the late filing of a bid protest petition. The Department’s argument rests on the assumption that section 120.569 does not apply to bid protest proceedings. This assumption, however, is not supported by the text of either section 120.569 or section 120.57(3). To the contrary, section 120.569 states that it applies to “all proceedings in which the substantial interests of a party are determined by an agency,” with some exceptions not applicable to the instant case. The title of section 120.57(3) states plainly that it provides “additional procedures applicable to protests to contract solicitation or award.” (original in all capital letters). Thus, section 120.57(3) does not replace section 120.569, but rather supplements it.

The Department emphasizes that expediency and finality are important in the public contract solicitation and award process, as indicated by the expedited administrative review process provided for in section 120.57(3). We agree with this observation. For this reason, it is important to note that although the doctrine of equitable tolling applies to section 120.57(3), the filing deadlines contained therein should be strictly enforced under ordinary circumstances. See Xerox Corp. v. Fla. Dep’t of Prof'l Regulation, 489 So.2d 1230, 1231 (Fla. 1st DCA 1986) (finding “informal and imprecise oral communications” from an agency “insufficient in form and substance to overcome the effect of [a] prior formal notice as to the necessity of a timely protest”). This concept, of course, is already embedded in the doctrine of equitable tolling. See Machules, 523 So.2d at 1134; cf. Riverwood Nursing Ctr., LLC v. Agency for Health Care Admin., 58 So.3d 907, 910 (Fla. 1st DCA 2011) (concluding that the facts did not support equitable tolling where an agency informed the petitioner after the deadline for filing a request for hearing had passed that its late-filed request would be accepted as timely).

The facts set forth in Splitt’s affidavit are not ordinary; they do not indicate that the Department was merely enforcing a filing deadline required by the applicable statute and rule. On the contrary, they indicate that the Department’s actions, willfully or not, prevented Appellant from complying with the Department’s interpretation of the rule and affirmatively led Splitt to believe that he needed to take no further action. Thus, the Department erred in failing to apply the doctrine of equitable tolling.

Conclusion

In conclusion, we hold that Appellant has made a prima facie case to show that its petition should be accepted as timely filed or, alternatively, the filing deadline should be equitably tolled to the date and time the petition was internally delivered from the agency’s public point of contact to the agency’s clerk’s office. Ae-cordingly, we reverse and remand for a determination of the facts related to the timeliness issue. If the Department elects to accept Appellant’s allegations as true, it is directed to forward the petition to the Division of Administrative Hearings (DOAH) for review on the merits. See Nicks v. Dep’t of Bus. & Prof'l Regulation, 957 So.2d 65, 68 (Fla. 5th DCA 2007). If the Department chooses to dispute the facts on remand, it must forward the petition to DOAH for an evidentiary hearing on whether the petition should be dismissed. See Keystone Peer Review Org., Inc. v. State, Agency for Health Care Admin., 26 So.3d 652, 654 (Fla. 1st DCA 2010). If the administrative law judge concludes that the petition should be accepted for substantive review based on either of the theories discussed above, he or she should proceed to resolve the protest and petition on the merits. See id.

REVERSED and REMANDED with instructions.

WOLF and LEWIS, JJ., concur.

      . While not raised by the parties, the record reflects that the notice of intent to protest was due on December 22, 2010, at 1:00 p.m. Appellant’s notice was stamped at the Department’s front intake desk on December 22, at 9:50 a.m., but not stamped at the Department’s clerk’s office until 1:39 p.m. Interestingly, the Department does not dispute that Appellant’s notice was timely filed even though it was apparently received by the clerk's office thirty-nine minutes after the stated deadline.

      . After serious and careful deliberation, we feel constrained to grant Appellant’s motion for attorney’s fees and costs under section 120.595(5), Florida Statutes (2010), and do so under separate order. Appellant's Response to the Department’s Order to Show Cause was supported by an affidavit which, at a minimum, raised disputed issues of fact regarding the timeliness of its bid protest petition and requested a formal evidentiary hearing at DOAH to resolve such factual disputes. The Department's refusal to forward this issue to DOAH was so contrary to the fundamental principles of administrative law that it constituted a gross abuse of discretion. See Ft. Myers Real Estate Holdings, LLC v. Dep't of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 53 So.3d 1158, 1162 n. 4 (Fla. 1st DCA 2011) (awarding section 120.595(5) fees where the agency dismissed a petition for formal administrative hearing for lack of standing, contrary to the basic, settled principles of administrative law); Salam v. Bd. of Prof'l Eng’rs, 946 So.2d 48, 49 (Fla. 1st DCA 2006) (awarding section 120.595(5) fees where the agency arbitrarily and capriciously failed to act on a petition for formal hearing within the required time, thus putting the petitioner’s rights "on hold”). The Department’s actions in this case gave rise to an appeal that should never have ensued and served only to further delay the final award of a contract. See Residential Plaza at Blue Lagoon v. Agency for Health Care Admin., 891 So.2d 604, 607 (Fla. 1st DCA 2005) (noting the waste of resources, both public and private, stemming from an agency’s gross abuse of discretion).


text:
    Ronald R. CARDENAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4907.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.
    Ronald R. Cardenas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Kokal v. State, 901 So.2d 766, 777 (Fla.2005) (“We have repeatedly held that claims of ineffective assistance of postconviction counsel are not cognizable.”).

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


text:
    Eric Lee CREGO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3007.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.
    Eric Lee Crego, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Case numbers 1D11-3869,1D11-3870, and 1D11-3871 are hereby reinstated. The notices of appeal filed in case numbers 1D11-3869, 1D11-3870, 1D11-3871, 1D11-3872, 1D11-3873, and 1D11-3874 are hereby deemed to be timely. Review by appeal of the judgments and sentences shall proceed in those case numbers.

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


text:
    Clarence HAWKINS, Sr., Appellant, v. PUBLIX SUPER MARKETS, INC., Publix Risk Management, Appellees.
    No. 1D11-1137.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.
    Harold E. Barker of Dicesare, Davidson & Barker, P.A., Lakeland, for Appellant.
    Thomas P. Vecchio of Vecchio, Carrier & Feldman, P.A., Lakeland, for Appellees.
   ON MOTION FOR REHEARING AND MOTION FOR REHEARING EN BANC

PER CURIAM.

We deny Appellant’s motions for rehearing and rehearing en banc, but on our own motion, we withdraw our prior opinion and substitute the following in its place.

Appellant raises two issues in his appeal from an order denying his claims for impairment benefits, temporary disability benefits, and payment of medical expenses. He argues that the Judge of Compensation Claims (“JCC”) erred by relying on the opinion of one medical expert over another and by failing to make any factual findings to support denial of his request for costs. We affirm, finding that the JCC did not err in resolving conflicts in the medical testimony, and that Appellant failed to preserve for appeal the issue he now raises about inadequate factual findings. See Hamilton v. R.L. Best Int’l, 996 So.2d 233, 234 (Fla. 1st DCA 2008) (holding if error is one that first appears in final order, aggrieved party must bring it to JCC’s attention by filing motion for rehearing).

AFFIRMED.

WOLF, DAVIS, and MARSTILLER, JJ., concur.


text:
    Aaron BERLIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3924.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.
    Clyde M. Taylor, III of Taylor <& Taylor, P.A., St. Augustine, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Aaron Berlin, appeals his judgments and sentences for two counts of sexual battery on a person less than twelve years of age and one count of lewd or lascivious molestation. He raises two issues on appeal, only one of which merits discussion. Specifically, Appellant argues that because his two convictions for sexual battery and one conviction for lewd or lascivious molestation arise from two criminal acts committed in the same criminal episode, the convictions for both counts of sexual battery and lewd or lascivious molestation violate double jeopardy. The State properly concedes error. We agree that the dual convictions constitute double jeopardy. Consequently, we reverse the conviction for lewd or lascivious molestation, while affirming his convictions for sexual battery.

All three offenses at issue occurred during the same criminal episode. The first count of sexual battery was based on Appellant’s union with or penetration of the child victim’s vagina with his penis, and the second count was based on his union with or penetration of the child victim’s anus with his penis. There was not a separate act that formed the basis for the lewd or lascivious molestation charge, as the State candidly conceded in its closing argument. The jury found Appellant guilty as charged on all counts, and he was sentenced to concurrent terms of life imprisonment on each count. Appellant filed a motion to correct illegal sentence arguing that his conviction and sentence for lewd or lascivious molestation violated the double jeopardy doctrine. The trial court denied the motion. We review this issue de novo. State v. Paul, 934 So.2d 1167, 1171 (Fla.2006) (receded from on other grounds in Valdes v. State, 3 So.3d 1067, 1077 (Fla.2009)).

This Court has already held that the criminal acts prohibited by sections 794.011(2)(a) (sexual battery) and 800.04(5) (lewd or lascivious molestation), Florida Statutes (2008), constitute the same offense under the Blockburger test when they arise from a single criminal act. Smith v. State, 41 So.3d 1041, 1043 (Fla. 1st DCA 2010). Here, the three offenses charged arise from two criminal acts of touching or penetration committed within a single criminal episode. It was not improper for the trial court to adjudicate Appellant guilty of two counts of sexual battery for the separate acts of touching the victim’s vagina with his penis and of touching the victim’s anus with his penis. State v. Meshell, 2 So.3d 132, 135 (Fla.2009). However, the trial court’s decision to enter a judgment against Appellant for both counts of sexual battery and lewd or lascivious molestation, when' only two acts of touching were alleged, constituted double jeopardy. Therefore, we affirm Appellant’s convictions and sentences for sexual battery but reverse the conviction for lewd or lascivious molestation and remand to the trial court to vacate that conviction.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

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

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


text:
    Antonio Lamar WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3315.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Ralph F. Guerra, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s judgments and sentences without comment. However, we write to direct the trial court to strike the post-sentencing orders that it entered without jurisdiction. While this appeal was pending, Appellant filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion. After more than sixty days from the filing date had passed, the trial court entered an order granting the motion and it amended Appellant’s judgments and sentences. “When a trial court enters an order on a rule 3.800(b)(2) motion outside of the time permitted for ruling on such a motion, the order is deemed a nullity and must be stricken.” Miran v. State, 46 So.3d 186, 188 (Fla. 2d DCA 2010); see also Gallegos v. State, 63 So.3d 20, 20 (Fla. 2d DCA 2011) (striking an untimely order on a rule 3.800(b)(2) motion). Therefore, we affirm the judgments and sentences and remand with directions for the trial court to strike the order granting the motion and to strike the amended judgments and sentences.

AFFIRMED and REMANDED with instructions.

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


text:
    Terry W. GUERRIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3144.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.
    Michael Ufferman of the Michael Uffer-man Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm issue I and reverse and remand the Appellant’s conviction for possession of cannabis pursuant to the State’s concession of error. The Defendant was entitled to a judgment of acquittal on that charge. See, e.g., Brown v. State, 8 So.3d 1187 (Fla. 4th DCA 2009).

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


author: MAY, C.J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Louis SILBER and Ilene Silber, Appellees.
    Nos. 4D10-1549, 4D10-4148.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.

      Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Bernstein, Chaek-man, Liss & Rose, Hollywood, for appellant.
    Allison J. Davis of Silber, Valente & Davis, West Palm Beach, for appellees.
   MAY, C.J.

An award of prejudgment interest, pursuant to section 627.70131(5)(a), Florida Statutes (2009), and a subsequent award of attorney’s fees and costs, is challenged in this appeal. The insurer argues the trial court erred in confirming the appraisal award, and in subsequently awarding prejudgment interest, attorney’s fees, and costs, because the appraisal award had been paid in full prior to the insured filing the motion to confirm. We agree and reverse.

A pipe leak occurred at the insureds’ residence. The insurer acknowledged coverage and issued payment. The insureds notified the insurer of a supplemental claim. The insurer made a supplemental payment, but did not reach an agreement with the insureds on some of the remaining amounts claimed.

The insurer invoked the appraisal provision under the policy. That provision provided:

Appraisal. If you and we fail to agree on the amount of loss, either one can demand that the amount of the loss be set by appraisal. If either makes a written demand for appraisal, each shall select a competent, disinterested appraiser. Each shall notify the other of the appraiser’s identity within 20 days of receipt of the written demand. The two appraisers shall then select a competent, impartial umpire. If the two appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge of a court of record in the state where the residence premises is located to select an umpire. The appraisers shall then set the amount of the loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable time, they shall submit their differences to the umpire. Written agreement signed by any two of these three shall set the amount of the loss. Each appraiser shall be paid by the party selecting that appraiser. Other expenses of the appraisal and the compensation of the umpire shall be paid equally by you and us.

The policy also contained a section providing:

Loss payment. We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable:
a. 20 days after we receive your proof of loss and reach an agreement with you; or
b. 60 days after we receive your proof of loss and:
(1) there is an entry of a final judgment; or
(2) there is a filing of an appraisal award with us.

The insureds and insurer selected their appraisers, who were unable to agree on an umpire. The insureds then filed a petition for selection of a neutral umpire, but the parties agreed on an umpire without court intervention. The umpire determined the amount of the loss from the pipe leak was $55,431.19, which did not account for prior payments and deductibles. Seven days after receiving the appraisal award, the insurer sent the insureds a check for the difference, $23,670.87.

The insureds then filed a “Motion to Determine Entitlement to Interest” using the same case number assigned to their petition for appointment of an umpire. The insurer responded that an award of interest was not permitted under section 627.70131(5)(a), which provides that “this subsection shall not form the sole basis for a private cause of action.” § 627.70131(5)(a), Fla. Stat. (2009).

At a subsequent hearing, the insureds admitted they should have moved to confirm the appraisal award, and made an ore tenvs motion to do so. The trial court granted the motion. The insureds then filed a “Motion to Confirm Appraisal Award,” and requested interest of $2,250.21. The insurer objected to confirmation of the appraisal award because it had been paid in full.

The final judgment provided:

1. The Court confirms the appraisal award in the amount of $55,413.19. It is agreed by the parties that State Farm paid all amounts owed pursuant to the appraisal award, except for statutory interest.
2. Pursuant to Fla. Stat. § [] 627.70131(5)(a), State Farm owes interest, because it did not make payment until after 90 days from the time it received notice of the claim.
3. Therefore, State Farm owes to the Petitioners interest in the amount of $2,250.21.

The court reserved jurisdiction to determine entitlement to, and the amount of, attorney’s fees, pursuant to section 627.428, Florida Statutes (2009). The insureds then filed a motion for attorney’s fees, pursuant to section 627.428. The court awarded $19,500 in attorney’s fees and $1,182.20 in costs. The insurer now appeals.

A trial court’s decision on entitlement to prejudgment interest is reviewed de novo. Reimbursement Recovery, Inc. v. Indian River Mem’l Hosp., Inc., 22 So.3d 679, 682 (Fla. 4th DCA 2009). Entitlement to attorney’s fees based on the interpretation of a statute or contract is also reviewed de novo. Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So.3d 348, 355 (Fla. 4th DCA 2011).

The insurer argues the insureds had two motives for filing the motion to confirm the already-paid appraisal award: (1) to create a cause of action for statutory interest under section 627.70131(5)(a); and (2) to establish a basis for attorney’s fees, pursuant to section 627.428(1). The insurer relies on Federated National Insurance Co. v. Esposito, 987 So.2d 199 (Fla. 4th DCA 2006) to support its argument that a motion to confirm a paid appraisal award cannot establish a basis for interest and fees. We find Esposito instructive.

We begin by acknowledging what we said in Esposito:

The precise issue raised is whether a court should confirm an appraisal award after it has been paid.... Because of the laudable goal of the appraisal process — to resolve disputes without litigation — and the potential to evade that goal by resort to the court system, we hold that there is no need to confirm an appraisal award in circumstances such as those presented here.

Id. at 200-01.

Just as in Esposito, the trial court erred in confirming the appraisal award. Here, the insurer never disputed coverage, but invoked the appraisal process, pursuant to its policy. While the insured filed a petition for a neutral umpire, the parties agreed on the umpire without court intervention. The insurer paid the full amount of the appraisal award within seven days of the umpire’s decision.

When the insureds attempted to secure interest, the trial court suggested they should have moved to confirm the appraisal award, which they then did. However, as Esposito explains, a trial court cannot confirm an appraisal award that has already been paid and thereby create a basis for an award attorney’s fees.

What differentiates this case from Espo-sito is section 627.70131(5)(a), which addresses interest. It specifically provides:

(5) (a) Within 90 days after an insurer receives notice of a property insurance claim from a policyholder, the insurer shall pay or deny such claim or a portion of the claim unless the failure to pay such claim or a portion of the claim is caused by factors beyond the control of the insurer which reasonably prevent such payment. Any payment of a claim or portion of a claim paid 90 days after the insurer receives notice of the claim, or paid more than 15 days after there are no longer factors beyond the control of the insurer which reasonably prevented such payment, whichever is later, shall bear interest at the rate set forth in s. 55.03. Interest begins to accrue from the date the insurer receives notice of the claim. The provisions of this subsection may not be waived, voided, or nullified by the terms of the insurance policy. If there is a right to prejudgment interest, the insured shall select whether to receive prejudgment interest or interest under this subsection. Interest is payable when the claim or portion of the claim is paid. Failure to comply with this subsection constitutes a violation of this code. However, failure to comply with this subsection shall not form the sole basis for a private cause of action.

§ 627.70131(5)(a), Fla. Stat. (2009) (emphasis added). This provision specifically disavows its use as the “sole basis for a private cause of action.” Id.

The statute is curious, however, because it portends to provide for interest when an insurer fails to pay within certain time frames after notice of the claim. It then suggests that those time frames are excused when delay is “caused by factors beyond the control of the insurer which reasonably prevent such payment.” Id. There is no hint as to what that clause means. In its next breath, the statute states that its provisions cannot “be waived, voided, or nullified by the terms of the insurance policy.” Id. Yet, we have held that “ ‘[i]t is the terms of a contract for insurance which determine the date from which the coverage payment is due, as well as when interest is due on the amounts payable.’ ” Ellie’s 50’s Diner, Inc. v. Citizens Prop. Ins. Corp., 54 So.3d 1081, 1082 (Fla. 4th DCA 2011) (quoting Citizens Prop. Ins. Corp. v. Mallett, 7 So.3d 552, 556 (Fla. 1st DCA 2009)).

We find the last sentence of the statute closes the door on any insured unless there is a viable independent cause of action. Because a trial court cannot confirm an appraisal award that has already been paid, and no independent cause of action exists to award statutory interest under section 627.70131(5)(a), the final judgment must be reversed.

Nevertheless, the insureds argue the claim for interest did not constitute the sole basis for a private cause of action because the case was initiated by filing a petition for selection of a neutral umpire. Esposito has already rejected this argument. 937 So.2d at 201.

The insureds alternatively argue the appraisal award was not paid when they filed their motion to confirm because the interest on the award was never paid by the insurer. They rely on Wilson v. Federated National Insurance Co., 969 So.2d 1133 (Fla. 2d DCA 2007). Wilson is distinguishable. There, an appraisal process resulted in an award to the insured, but the insurer failed to pay the full amount of the loss. Id. at 1134. Wilson did not involve whether the insurer failed to pay interest on the appraisal award. Furthermore, this Court has recently held that an insured is not entitled to prejudgment interest when an insurer does not deny coverage, participates in the appraisal process, and timely pays the appraisal award. Green v. Citizens Prop. Ins. Corp., 59 So.3d 1227, 1228-29 (Fla. 4th DCA 2011).

We therefore reverse the final judgment confirming the appraisal award and the subsequent award of interest and attorney’s fees in favor of the insureds.

Reversed.

CONNER, J., and TUTER, JACK B., Jr., Associate Judge concur.

      . Section 627.428(1), Florida Statutes (2009), provides:
      Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had.


author: POLEN, J. WARNER, J., GERBER, J.,

text:
    Delbert G. HALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-218.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.

      Philip J. Massa, Regional Counsel, and Andrea H. Dueñas, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Delbert Hall, appeals the trial court’s order summarily denying his pro se motion to withdraw plea after sentencing. We hold that Hall should be granted a limited evidentiary hearing to determine the nature of his attorney-client relationship — whether an adversarial relationship existed — and whether conflict-free counsel should be appointed before the court considers the issue of withdrawal of Hall’s plea.

On August 1, 2008, Hall was charged by information with four counts: 1) sexual battery on a person less than twelve years of age; 2) sexual battery on a person less than twelve years of age; 3) sexual activity with a child; and 4) sexual activity with a child. Hall was arrested pursuant to a warrant on August 5, 2008. On August 13, 2008, Hall invoked his right to counsel. An Assistant Public Defender was assigned to Hall’s case. The attorney went to see Hall two to three weeks after he was incarcerated. The attorney explained to Hall that she had a heavy case load so he needed to be patient with her on their “long road ahead.”

Hall alleged that he did not see or hear from his attorney until his first court date two months later. Hall questioned his attorney about not being able to get in touch with her and she explained to him that she was very busy. During this hearing, Hall was asked to waive his right to a speedy trial. Hall was reluctant about waiving his rights and his attorney became very agitated with him and told him she needed the proper time to work on his case. Hall asked his attorney if she would visit him at the jail to speak further and his attorney responded that she would try.

Hall continued having difficulty reaching his attorney to discuss his case, and when he did reach her, she had no new updates. His attorney deposed the alleged victim without contacting Hall or going over any of the details of his case with him, and after the deposition, his attorney gave Hall her opinion and asked what he wanted to do as far as entering a plea. Hall said he was not taking the plea and wanted his attorney to come see him at the jail to discuss this. Additionally, Hall requested a copy of the transcripts from the deposition, but his attorney refused because she did not want to spend the money on the copies. The attorney’s assistant attempted to play the deposition for Hall via telephone video conference, but something was wrong with the phone and he could not hear it at that time. At the next court date, his attorney asked Hall what he wanted to do about the case after hearing the deposition. He informed her he was unable to listen because of a problem with the phone, at which point his attorney became angry. Hall was able to listen to the deposition about a week later, but was unable to stop and start the recording to take notes. Hall also received other discovery from his attorney, but he noticed he was missing several items. He was advised that he would receive everything if they ended up going to trial.

In the summer of 2009, his attorney made a visit to the jail. They discussed going to trial versus taking the plea. Hall told his attorney he did not want to go to jail for something he did not do. The attorney asked if Hall would accept the plea if she could get it down to ten years. Hall told her she could ask, but he still did not want to accept a plea for something he did not do. The next court hearing was at the end of August 2009. Hall’s attorney did not appear and sent someone else in her place without informing Hall of her arrangements. Hall tried to contact his attorney from that point until November 2009 to no avail. At the November 2009 court date, Hall’s attorney informed him that five years were added to his plea deal and that if he did not accept the plea by the next day, it would not be offered again. The next day, Hall claimed he went into court with a clouded mind and under tremendous stress from the day before, but decided to sign the plea. In exchange for Hall’s guilty plea to his third and fourth counts, the State nolle prossed counts one and two. Hall agreed to be adjudicated guilty and to serve a twenty year sentence as to each count, to be served concurrently. Hall also signed that he understood he was to be designated a sexual predator and registered as such. Hall initialed every paragraph on the plea, indicating an understanding of his rights and those rights he waived by entering a guilty plea. He also verbally answered all of the court’s questions, but stated later that when his head cleared, he was able to think and realized he made a mistake. Once the plea was signed, Hall did not have difficulty obtaining documents from his attorney or reaching her via telephone like he had experienced while she was representing him. Hall filed a motion to vacate/take back his plea deal, expressing his displeasure with his representation and his change of mind regarding his plea. The trial court denied Hall’s motion. This appeal followed.

“ ‘The standard of review of a trial court’s denial of a motion to withdraw plea is abuse of discretion. Where a defendant files a facially sufficient motion to withdraw his plea, he is entitled to an eviden-tiary hearing on the issue unless the record conclusively refutes his allegations.’” Schriber v. State, 959 So.2d 1254, 1256 (Fla. 4th DCA 2007) (internal citation omitted).

Florida Rule of Criminal Procedure 3.170C) governs motions to withdraw pleas after sentencing. Rule 3.170(Z) states that:

A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

Fla. R.Crim. P. 3.170(Z). The rule governing this appeal is rule 9.140(b)(2)(A)(ii)(c), which provides that one may withdraw a plea if it was entered into involuntarily. Fla. RApp. P. 9.140(b)(2)(A)(ii)(c). This court has stated that when a motion to withdraw is filed after sentencing, the burden is upon the appellant to show that “ ‘a manifest injustice has occurred.’ ” Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003). The withdrawal of the plea must be necessary to correct such an injustice. Id.

Additionally, when a pro se rule 3.170(í) motion is filed alleging an adversarial relationship with an attorney which led to the plea’s entry, “the trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present.” Sheppard v. State, 17 So.3d 275, 287 (Fla.2009). If a hearing is conducted and the court finds that the record supported the existence of an adversarial relationship, counsel should either withdraw or be discharged and the defendant should be assigned a conflict-free representative. Id.

This court has provided that factual allegations must support the request for relief when a defendant files a pro se motion claiming his or her relationship with his counsel has become adverse. Davis v. State, 52 So.3d 697, 698 (Fla. 4th DCA 2010). Here, Hall stated in his motion that his attorney “did not handle [his] case properly”; that he “was lied to, pressured, frightened into taking this plea deal”; and that he wished he knew that he “had that option to dismiss [his] lawyer.” This court, in Davis, quoted the Supreme Court of Florida in Sheppard to show what constitutes specific allegations which give rise to an adversarial relationship. Id. The Supreme Court of Florida provided that allegations of misadvice, misrepresentation regarding the plea terms, or coercion to accept a plea must be specifically made. See Sheppard, 17 So.3d at 276-77; Davis, 52 So.3d at 698. In order to be granted an evidentiary hearing on the issue of a plea withdrawal, one must show that he or she had an adversarial relationship with counsel and the allegations made by the defendant must not be refuted by the record. Hall was not even afforded a hearing to show the adversarial relationship with his attorney, which should have been the first step in determining the propriety of his plea entry.

As a result, we hold that the trial court should have first questioned Hall about his relationship with his attorney, pursuant to our supreme court’s discussion in Sheppard. Accordingly, Hall should be granted an evidentiary hearing to first determine the nature of his attorney-client relationship and whether conflict-free counsel should be appointed before the issue of withdrawal of Hall’s plea entry is considered.

Reversed and Remanded.

WARNER, J., concurs specially with opinion.

GERBER, J., dissents with opinion.

WARNER, J.,

concurring specially.

I concur in reversing for an evidentiary hearing as to whether conflict-free counsel should be appointed in accord with Sheppard v. State, 17 So.3d 275 (Fla.2009). The plea colloquy does not conclusively refute the appellant’s allegations that there was an adversarial relationship between appellant and his counsel or that the attorney in essence withheld documents and information from him forcing him into a plea. These allegations require a Sheppard hearing. See Carter v. State, 22 So.3d 793 (Fla. 1st DCA 2009).

Generally, in plea colloquies the trial court asks the defendant whether he/she is satisfied with the services of his/her attorney. A “yes” response to that question would conclusively refute subsequent allegations of difficulties and coercion. The trial court in this case did not ask that question or any questions touching on the defendant’s representation. Therefore, the record does not conclusively refute the allegations of conflict or of withholding key information regarding appellant’s defense.

GERBER, J.,

dissenting.

I respectfully dissent. The plea colloquy conclusively refutes the defendant’s allegations that his plea was involuntary:

THE COURT: Did anybody force you or coerce you or threaten you to get you to enter a plea in this case today?
DEFENDANT: No.
THE COURT: Did anybody promise you anything other than what I’ve just discussed with you?
DEFENDANT: No.

Moreover, the defendant’s allegations, though very detailed, facially do not show that he had an adversarial relationship with his attorney. At best, the defendant’s allegations show a lack of communication and diligence on his attorney’s part. In my view, a lack of communication and diligence do not create an adversarial relationship akin to “misadvice, misrepresentation, or coercion.” Sheppard v. State, 17 So.3d 275, 287 (Fla.2009). Although the defendant ultimately alleges that he was “lied to, pressured, [and] frightened into taking this plea deal,” I see nothing in his very detailed allegations reasonably leading to the conclusion that any of those actions occurred.

Thus, the defendant’s allegations did not entitle him to a Sheppard hearing, and the circuit court was correct in denying his motion to withdraw his plea after sentencing. See Nelfrard v. State, 34 So.3d 221, 223 (Fla. 4th DCA 2010) (“[T]he trial court is not required to appoint conflict-free counsel unless both an adversary relationship exists and the defendant’s allegations are not conclusively refuted by the record.”); Lomelin-Flores v. State, 21 So.3d 918, 919 (Fla. 4th DCA 2009) (“[W]e affirm the summary denial [of the pro se defendant’s motion to draw plea] as the claims asserted in the motion are either conclusively refuted by the record or facially insufficient.”). I would affirm.