text:
    Joseph CIMAGLIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-557.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Joseph Cimaglia, Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Joseph Cimaglia appeals the trial court’s final order summarily denying his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Pursuant to Walker v. State, 955 So.2d 1199 (Fla. 5th DCA 2007), we reverse Cim-aglia’s ten-year prison sentence as a prison releasee reoffender (“PRR”) on Count I, burglary while armed with a firearm, and remand to the trial court to allow the State to either strike the designation or withdraw from the plea agreement with Cim-aglia. We affirm the final order in all other respects.

Cimaglia was charged with burglary while armed with a firearm (Count I), and felon in possession of a firearm or ammunition (Count II). He pled guilty pursuant to a negotiated plea and was sentenced to ten years mandatory minimum as a PRR on Count I and fifteen years with a three-year mandatory minimum without the PRR designation on Count II.

Cimaglia filed a motion for postconviction relief, raising six grounds for relief. The trial court summarily denied the motion based on its untimeliness. On appeal, this Court issued an order to show cause with respect to ground one of his motion. Ground one alleged that his negotiated plea for a ten-year prison sentence as a PRR on Count I was illegal, because the mandatory language of the PRR statute required imposition of a life sentence. See § 775.082(9)(a)3.a., Fla. Stat. (2005).

We treat the denial of Cimaglia’s Rule 3.850 motion as an appeal from the denial of a Rule 3.800(a) motion. See Hall v. State, 643 So.2d 635, 636 (Fla. 1st DCA 1994) (“[Cjourts have the authority to treat prisoner petitions as if the proper remedy were sought if it would be in the interest of justice to do so.”). A postconviction claim of an illegal sentence may be raised at any time. See Fla. R.Crim. P. 3.800(a). Moreover, “ ‘an illegal sentence cannot be imposed even as part of a negotiated plea agreement.’ ” Cassista v. State, 57 So.3d 265, 267 (Fla. 5th DCA 2011) (quoting Wheeler v. State, 864 So.2d 492, 492 (Fla. 5th DCA 2004)); Torbert v. State, 832 So.2d 203, 205 (Fla. 4th DCA 2002) (“[A] defendant’s right to challenge an illegal sentence is not waived by the fact that the sentence was the result of a negotiated plea.”).

In its response to this Court’s show cause order, the State concedes that Walker is controlling. In Walker, the defendant pled guilty to a first-degree felony and pursuant to a negotiated plea was sentenced to twenty years in prison as a PRR. 955 So.2d at 1200. In a Rule 3.800(a) proceeding, the defendant argued his sentence was illegal because section 775.082(9), Florida Statutes (2001) mandated a thirty-year sentence as a PRR for a first-degree felony. Id. The Fifth District agreed, explaining that “[t]he language in the PRR statute is mandatory and, thus, the trial court has no discretion to impose a lesser sentence.” Id. (citations omitted). The Fifth District remanded the matter to the trial court “with directions that the State be provided the option to either agree to the striking of the PRR designation ... or, alternatively, to withdraw from the plea agreement with Walker.” Id. (citation omitted).

Here, Cimaglia received a ten-year sentence as a PRR on Count I when it appears that he should have received a mandatory life sentence. Burglary with a firearm is a first-degree felony punishable by life, requiring imposition of a life sentence under the PRR statute. See §§ 810.02(l)(b), 810.02(2)(b), 775.082(9)(a)l., 775.082(9)(a)3.a., Fla. Stat. (2005); see also Knight v. State, 808 So.2d 210, 213 (Fla.2002) (holding the phrase, “felonies punishable by life,” as used in the PRR statute, provides for a mandatory life sentence for prison releasee reoffenders who commit either life felonies or first degree felonies punishable by life). Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

STEVENSON, TAYLOR and DAMOORGIAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mark MURRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1473.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Mark Murry appeals the summary denial of his Motion to Correct Illegal Sentence. See Fla. R.Crim. P. 3.800(a). The trial court, without ordering a State response and without explanation, denied his motion. The State concedes that the record does not refute Murry’s claims. We remand for the trial court either to attach portions of the record which refute his claims or to grant appropriate relief. See Kelly v. State, 36 So.3d 191 (Fla. 4th DCA 2010).

Reversed and Remanded.

TAYLOR, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    David Ferrer LESCAILLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3042.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 2012.
    Rehearing Denied Feb. 6, 2012.
    David Ferrer Lescaille, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.

      Before SHEPHERD, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 2011 WL 5554812 (Fla. 3d DCA 2011), and cases cited therein.


text:
    Clinton NEWMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3599.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Karlene L. Gray of International Law Group, P.A., North Miami Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011); Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010); Fomst v. State, 988 So.2d 38 (Fla. 4th DCA 2008); State v. Oakley, 715 So.2d 956 (Fla. 4th DCA 1998).

TAYLOR, HAZOURI and CIKLIN, JJ., concur.


text:
    Bobby SOLOMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3609.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Bobby Solomon, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Elliott v. State, 9 So.3d 660 (Fla. 5th DCA 2009).

POLEN, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Christopher McCALLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4096.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Blanca R. Sordo of Martinez & Sordo, P.A., Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Green, 944 So.2d 208 (Fla.2006); Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011).

GROSS, TAYLOR and HAZOURI, JJ., concur.


author: LaROSE, Judge.

text:
    Evins JEAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2813.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 2012.
    Jerrard B. Cutrone, Miami, for Appellant.
   LaROSE, Judge.

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

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

Affirmed.

WHATLEY and DAVIS, JJ., Concur.


author: PALMER, J.

text:
    Marcus LEVERETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3226.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2012.
    F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Marcus Leverett (defendant) appeals his judgments and sentences which were entered by the trial court after a jury found him guilty of numerous offenses, including one count of burglary of a dwelling with an assault or battery. The defendant argues the trial court erred in denying his motion for entry of a judgment of acquittal on the burglary charge because the record demonstrates the State failed to present any evidence indicating that the victims had consented to his initial entry into the premises. The State properly concedes error on this issue, acknowledging that this court’s decision in the case involving the defendant’s co-defendant controls. See Harris v. State, 48 So.3d 922 (Fla. 5th DCA 2010) (holding that the statute defining burglary to include remaining in a dwelling, structure, or conveyance “notwithstanding a licensed or invited entry” with intent to commit a forcible felony required that the initial entry into the dwelling, structure, or conveyance be with the consent of the occupants and, therefore, Harris, who had pushed his way into the victim’s apartment after knocking on the door, could not be convicted of a “remaining in” burglary). Accordingly, the defendant’s conviction and sentence on the burglary charge are reversed. On all other issues, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

LAWSON and JACOBUS, JJ., concur.


author: TORPY, J.

text:
    Vandarius ROUNDTREE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1525.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2012.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   TORPY, J.

We reverse Appellant’s conviction for attempted second-degree murder because the jury charge on the lesser-included offense of attempted voluntary manslaughter was fundamentally erroneous. Cannon v. State, 77 So.3d 684 (Fla. 5th DCA 2011); Willis v. State, 70 So.3d 739 (Fla. 5th DCA 2011); Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011). We once again express conflict with our sister court in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011).

The convictions and judgments on all other counts are affirmed.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

SAWAYA and MONACO, JJ., concur.


author: MONACO, J.

text:
    Jerome WESLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-861.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2012.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The appellant, Jerome Wesley, appeals from his convictions by jury of burglary •with an assault or battery, assault, and attempted second degree murder of a law enforcement officer. We affirm in all respects save one. As the State admirably concedes, under the facts of this case because Mr. Wesley was convicted of burglary with an assault or battery, the conviction of simple assault runs afoul of the double jeopardy provisions of the constitution. See § 775.021(4)(b)3, Fla. Stat. (2011); see also Reeves v. State, 57 So.3d 874 (Fla. 5th DCA 2011), cert. denied, — U.S. -, 132 S.Ct. 515, 181 L.Ed.2d 363 (2011); Austin v. State, 699 So.2d 314 (Fla. 1st DCA 1997).

Accordingly, we vacate the conviction for simple assault, and otherwise affirm the judgment and sentence.

AFFIRMED in part, REVERSED in part.

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


text:
    Clarence FRAZIER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3966.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2012.
    Ryan Belanger, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2011-CF-1031-A-0, in the Circuit Court in and for Orange County, Florida. See Fla. RApp. P. 9.141(c)(6)(D).

PALMER, LAWSON and COHEN, JJ„ concur.


text:
    Nathan ZIMMERMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-4037.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2012.
    Nathan Zimmerman, Raiford, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 10-32576-CFAES, in the Circuit Court in and for Volusia County, Florida. See Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

MONACO, COHEN and JACOBUS, JJ., concur.


text:
    Tavares Antonio McDUFFIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3678.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2012.
    Tavares McDuffie, pro se, Appellant; D. Renée Waters, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Green Cove Springs, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Tavares McDuffie challenges the lower court’s summary denial of his 3.850 motion for post-conviction relief in which he contended that his trial counsel provided ineffective assistance by failing to file a motion to discharge him when the state improperly filed an amended information after expiration of the time for speedy trial. See Pezzo v. State, 903 So.2d 960 (Fla. 1st DCA 2005); State v. D.A., 939 So.2d 149 (Fla. 5th DCA 2006); State v. Clifton, 905 So.2d 172 (Fla. 5th DCA 2005). We reverse and remand, finding that the appellant stated a legally sufficient basis for relief in his motion. See, e.g., Gee v. State, 13 So.3d 68 (Fla. 1st DCA 2009); Ryland v. State, 880 So.2d 816 (Fla. 1st DCA 2004).

We do not reach the appellant’s claim that the lower court erred by appointing counsel against his wishes, and thus do not decide whether there is a right to self-representation in post-conviction proceedings. See, e.g., Jones v. State, 69 So.3d 329 (Fla. 4th DCA 2011); Freeman v. State, 65 So.3d 553 (Fla. 2d DCA 2011). See also Bittick v. Missouri, 105 S.W.3d 498, 501 n. 1 (Mo.Ct.App.2003) (and cases cited therein); Commonwealth v. Brady, 741 A.2d 758 (Pa.Super.Ct.1999).

REVERSED and REMANDED for the lower court to attach portions of the record that conclusively refute the appellant’s claim, or to hold an evidentiary hearing.

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


author: VILLANTI, Judge.

text:
    Anthony CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3170.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2012.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Anthony Carter seeks review of his convictions and sentences for one count of burglary of a dwelling and one count of grand theft. We affirm the conviction and sentence for burglary of a dwelling without further comment. However, because the State failed to offer sufficient proof of the value of the item stolen, we reduce Carter’s conviction for grand theft to petit theft and remand for resentencing.

At trial, the State presented testimony that Carter was seen removing a TV from the victim’s residence, placing it in a car, and driving away. The victim testified that he had left the house about an hour earlier and that no one had permission to enter the house and take his TV. As to the value of the TV, the victim testified that it was a 29" flat-screen TV, possibly made by Sharp. The victim’s girlfriend had purchased the TV about a month before the theft. The victim did not know how much the TV cost, but he testified that his girlfriend purchased it on a payment plan and that he was giving her “60 or 80 bucks” a month toward the payment plan. He did not know how long the payment plan was, but he testified that he was still making those payments as of trial, which was ten months after the theft.

Given this testimony, there is no dispute that the State presented sufficient evidence to prove that Carter committed a theft. However, Carter correctly contends that the State did not present sufficient evidence of the value of the stolen property to sustain a conviction for grand theft.

To prove third-degree grand theft, the State must prove that the stolen property was “valued” at $300 or more but less than $5000. § 812.014(2)(c)(l), Fla. Stat. (2009).

“Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)(l). When direct testimony of fair market value of the stolen item is not available, the supreme court has set forth “four factors which the trier of fact can consider in ascertaining market value ... :(1) original market cost; (2) manner in which the item was used; (3) the general condition and quality of the item; and (4) the percentage of depreciation.” State v. Hawthorne, 573 So.2d 330, 332 (Fla.1991) (citing Negron v. State, 306 So.2d 104 (Fla.1974), receded from on other grounds by F.B. v. State, 852 So.2d 226 (Fla.2003), and Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980)). “Fair market value takes into consideration not only the purchase price, but the manner in which the item was used, its condition and depreciation.” Korica v. State, 791 So.2d 543, 544 (Fla. 2d DCA 2001).

K.W. v. State, 983 So.2d 713, 715 (Fla. 2d DCA 2008); see also D.H. v. State, 864 So.2d 588, 588 (Fla. 2d DCA 2004) (“ ‘Value may be established by direct testimony of fair market value or through evidence of the original market cost of the property, the manner in which the items were used, the condition and quality of the items, and the percentage of depreciation of the items since their purchase.’ ” (quoting Pickett v. State, 839 So.2d 860, 861-62 (Fla. 2d DCA 2003))). And because value is an element of the offense of grand theft, the State must prove the value of the stolen property beyond a reasonable doubt. Negron v. State, 306 So.2d 104, 108 (Fla.1974), receded from on other grounds by F.B. v. State, 852 So.2d 226 (Fla.2003); Evans v. State, 452 So.2d 1040, 1041 (Fla. 2d DCA 1984); Steffen v. State, 901 So.2d 950, 951 (Fla. 4th DCA 2005).

When the State offers evidence of solely the purchase price of an item without any testimony establishing the value at the time of the theft, courts have found the evidence insufficient to sustain a conviction for grand theft. For example, in D.H., the victim testified that “her home was broken into and numerous items were taken, including a DVD player, computers, a Sony PlayStation 2, video games, jewelry, matchbox cars, baseball cards, cameras, and children’s toys.” 864 So.2d at 589. The victim testified that:

[s]he had paid $199.99 for the PlayStation 2 and paid between $14.99 and $39.99 for the various games. She thought she had six or seven games. The matchbox cars ranged in price from 69 cents to 99 cents each and she had 100 cars. No other testimony was adduced concerning the value of the items taken.
Although there was some testimony of the original cost of some of the items taken, there was no testimony of fair market value, of the manner in which the items were used, of the condition or quality, nor the percentage of depreciation.

Id. This court reversed the grand theft conviction because the State’s evidence was insufficient to establish the “value” of the items. Id. In doing so, this court rejected the State’s presumptuous argument “that the description of the items stolen, by their sheer number and type, indicates a value over $300.” Id.

Similarly, in Davis v. State, 48 So.3d 176, 178 (Fla. 4th DCA 2010), the victim testified that he had purchased the computer that was stolen for about $700, the DVD player for $150, the headphones for $60, and the camera for $150 and that his class ring was worth about $50. He also testified that the bicycle that was stolen had been purchased used for $100. Id. The State offered no evidence as to when any of the items had been purchased, how they were used, or what their present value was. Id. The Fourth District found that this evidence was insufficient to prove that the value of the items stolen was more than $300. Id. at 180. And as this court did in D.H., the Fourth District in Davis refused to accept the State’s argument that the number and nature of the items stolen could support a finding of value of at least $300. Id.

Here, the State presented even less evidence than that found legally insufficient in D.H. and Davis. In this case, the State not only offered no evidence as to present value, it also offered no evidence as to the original market cost of the TV, the manner in which it was used, the condition or quality of the item, or the percentage of depreciation since its purchase. Instead, the sole evidence was that the victim’s girlfriend had purchased the TV approximately one month before the theft, that they were making payments on a payment plan, and that the payments were somewhere between $60 and $80 per month. The State offered no evidence of the make or model of the TV or even the type of TV. The State also offered no evidence to establish whether the sole item on the payment plan was the stolen TV. Given this utter lack of evidence, the State failed to prove beyond a reasonable doubt that the value of the stolen TV was more than $300, and the trial court should have granted Carter’s motion for judgment of acquittal on the grand theft count.

Hence, because the State failed to prove an essential element of the charge of grand theft, we must reverse Carter’s conviction and sentence for grand theft. However, because the State’s evidence was sufficient to establish that a theft occurred, we remand for the trial court to reduce Carter’s grand theft conviction to a conviction for petit theft and to resentenee Carter accordingly. See § 924.34, Fla. Stat. (2009) (providing that when the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser offense, “the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser ... offense”); see also § 812.014(3)(a) (providing that when the State proves the theft of property “not specified in subsection (2),” the State proves the offense of petit theft); Jones v. State, 958 So.2d 585, 586 (Fla. 2d DCA 2007) (reducing defendant’s conviction from grand theft to petit theft when the State failed to prove the value of the items stolen).

Affirmed in part, reversed in part, and remanded for further proceedings.

DAVIS and CRENSHAW, JJ., Concur.

      . While it appears that the State could have charged Carter under section 812.014(2)(d), which defines third-degree grand theft to in-elude theft from a dwelling of property valued at $100 or more, the State did not do so in this case.

      . In State v. Sigler, 967 So.2d 835, 845 (Fla.2007), the Florida Supreme Court held that section 924.34 is "unconstitutional only to the extent that it can be read to allow the appellate court to direct entry of judgment for a lesser-included offense when all of the elements of the lesser-included offense have not been found by a jury beyond a reasonable doubt.” The limitation recognized in Sigler does not apply because the jury clearly found that Carter committed a theft and it is simply the degree of that crime at issue.


author: ROTHENBERG, J.

text:
    LPI/KEY WEST ASSOCIATES, LTD., a Florida limited partnership, Appellant, v. BEACHCOMBER JEWELERS, INC., a Florida corporation, and Tim Greene, Appellees.
    No. 3D11-1137.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.

      Robert P. Frankel & Associates, P.A., and Robert P. Frankel, Miami, and Ralph Mora, for appellant.
    Samuel J. Kaufman, Key West, for ap-pellees.
    Before WELLS, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   ROTHENBERG, J.

The plaintiff, LPI/Key West Associates, Ltd. (“Landlord”), appeals from a final judgment. We reverse and remand for entry of a final judgment consistent with this opinion.

The Landlord filed an action against Beachcomber Jewelers, Inc. (“Beachcomber”), and Tim Greene (“Greene”) (collectively, “the Defendants”), alleging Beachcomber breached a lease agreement and Greene is personally liable pursuant to a guaranty agreement. Paragraph 10 of the amended complaint alleges that in July 2003, Beachcomber amended the lease (“2003-2008 Lease Amendment”), extending the existing lease term for an additional five years — July 1, 2003 to June 30, 2008, and in Paragraph 11, alleges Beachcomber defaulted by failing to pay rent due under the 2003-2008 Lease Amendment.

In their answer, the Defendants admitted Paragraph 10, denied Paragraph 11, and asserted as an affirmative defense that the “alleged leases and assignment were modified by the parties to terminate prior to the tenant moving out of the premises and prior to any outstanding rent being due to the Plaintiff.” The Landlord denied this defense. Thus, the Defendants admitted to extending the lease to June 30, 2008, denied they defaulted, and contended the 2003-2008 Lease Amendment was subsequently modified to terminate in 2007.

The trial court issued an order setting the cause for trial, and directing the parties to schedule a pretrial conference in accordance with Florida Rule of Civil Procedure 1.200, and ordering the parties to file a joint pretrial stipulation five days before the pretrial conference that contains “a concise statement of those facts that are admitted and will require no proof at trial” and a “concise statement of those issues of fact on which there is disagreement, that remain to be litigated.” The pretrial order also provided that: “FAILURE TO DISCLOSE OBJECTIONS IN THE PRE-TRIAL STIPULATION AS TO EXHIBITS WILL CONSTITUTE A WAIVER OF SUCH UNDISCLOSED OBJECTIONS AT TRIAL.’’

As directed, the parties’ counsels executed a pretrial stipulation, attaching the 2003-2008 Lease Amendment as one of the exhibits. In the pretrial stipulation, the parties admitted that “[i]n July 2003, Beachcomber and Tim Green [sic], as tenant and guarantor, extended the Lease Agreement through June 30, 2008,” and that Beachcomber vacated the leased premises in July 2007. The parties notified the trial court that the disputed issue was as follows: “Defendants contend that Beachcomber’s lease of the subject premises expired on June 30, 2007. Plaintiff disputes that contention.” The trial court accepted the pretrial stipulation, and prior to trial, there was no indication that the Defendants would raise any objection to the validity of the 2003-2008 Lease Amendment or the stipulated facts.

At the commencement of the bench trial, defense counsel informed the trial court that it was challenging the validity of the 2003-2008 Lease Amendment and the accuracy of the pretrial stipulation admitting that the lease term had been extended through June 30, 2008. Over the Landlord’s objection, the trial court reserved ruling and allowed the Defendants to present evidence in support of their contention.

The Landlord’s representative testified that Greene executed the 2003-2008 Lease Amendment, and thereafter, the parties did not enter into any sort of agreement, written or oral, modifying the lease to terminate prior to June 30, 2008. The Landlord’s representative additionally testified as to its damages, including unpaid rent through June 30, 2008, and interest, totaling over $230,000.

In contrast to his pleadings, deposition testimony, and pretrial stipulation, Greene testified that his signature on the 2003-2008 Lease Amendment was forged. Although Greene denied executing the 2003-2008 Lease Amendment, he testified that the parties executed a written agreement extending the lease termination date to June 30, 2007. Greene, however, was not able to produce a copy of this purported agreement.

As instructed by the trial court, the parties submitted written closing arguments. Thereafter, the trial court entered a final judgment setting aside the pretrial stipulation and finding that the Landlord failed to prove that the parties enter into the 2003-2008 Lease Amendment, Beachcomber failed to prove that the parties extended the lease in 2003 to June 30, 2007, and Beachcomber occupied the premises as a month-to-month tenant. The trial court awarded the Landlord $12,878, representing unpaid rent for April, May, and June of 2007, minus Beachcomber’s security deposit, plus interest. The Landlord’s appeal followed.

In appealing the final judgment, the Landlord contends that the trial court erred by setting aside the pretrial stipulation, thereby not binding the Defendants to their admissions both in their pleadings and in the pretrial stipulation that Beachcomber, as tenant, and Greene, as guarantor, extended the lease agreement to June 30, 2008. We agree.

Florida Rule of Civil Procedure 1.200(b), titled “Pretrial Conference,” provides that a trial court may “require the parties to appear for a conference to consider and determine: (1) the simplification of the issues; [and] ... (3) the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof[.]” A pretrial stipulation limiting the issues to be tried is “binding upon the parties and the court, and should be strictly enforced.” Broche v. Cohn, 987 So.2d 124, 127 (Fla. 4th DCA 2008) (quoting Lotspeich Co. v. Neogard Corp., 416 So.2d 1163, 1165 (Fla. 3d DCA 1982)); see also Spitzer v. Bartlett Bros. Roofing, 437 So.2d 758, 760 (Fla. 1st DCA 1983) (noting that “[i]t is the policy of the law to encourage and uphold stipulations in order to minimize litigation and expedite the resolution of disputes”). A party, however, may seek relief from a pretrial stipulation by making a reasonable motion to withdraw the stipulation supported by a showing of good cause. Henrion v. New Era Realty IV, Inc., 586 So.2d 1295, 1298 (Fla. 4th DCA 1991). A trial court should not grant relief “where it appears that the stipulation was voluntarily undertaken and there is no indication that the agreement was obtained by fraud, misrepresentation, or mistake of fact.” Id.

In the instant case, defense counsel did not seek relief from the key factual admission in the pretrial stipulation until trial commenced, which was more than a year after the pretrial stipulation was executed. And, in seeking relief, defense counsel merely stated that he felt pressured into executing the pretrial stipulation. Additionally, he failed to support his assertion with facts that the Landlord’s counsel had improperly pressured him into executing the pretrial stipulation, or to explain why he took no action to amend or withdraw the pretrial stipulation until trial commenced. More importantly, in answering the amended complaint, the Defendants admitted to the Landlord’s allegation that Greene, on behalf of Beachcomber, executed the 2003-2008 Lease Amendment, which was consistent with the Defendants’ key admission in the pretrial stipulation. We therefore conclude that the trial court erred by setting aside the pretrial stipulation.

There is no doubt that the trial court’s ruling prejudiced the Landlord. Based on the pleadings and the pretrial stipulation, the Landlord believed the primary issue at trial would be whether the 2003-2008 Lease Amendment subsequently was modified, changing the termination date from June 30, 2008, to June 30, 2007, not whether Greene’s signature on the 2003-2008 Lease Amendment was forged. The Defendants’ change of position clearly, and materially, affected the Landlord’s preparation and trial strategy.

Lastly, we conclude that the trial court’s finding that Beachcomber occupied the property as a month-to-month tenant after June 2003 was not supported by the evidence, and was in direct conflict with the Defendants’ answer to the amended complaint, the Defendants’ admission in the pretrial stipulation, and Greene’s trial testimony that the parties did not execute the 2003-2008 Lease Amendment but instead executed an agreement extending the lease term to June 30, 2007. Accordingly, we reverse the order under review and remand with instructions to enter a final judgment in favor of the Landlord awarding damages based on a finding that the lease terminated on June 30, 2008.

Reversed and remanded with instructions.


author: EMAS, J.

text:
    ROLLS-ROYCE, INC., et al., Appellants, v. Oscar Garardo Posadas GARCIA, et al., Appellees.
    Nos. 3D11-537, 3D11-548, 3D11-502.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.

      Thornton Davis & Fein and J. Thompson Thornton, Miami, and Beverly D. Ei-senstadt; John P. O’Flanagan and L. Robert Bourgeois, Tampa and Banker Lopez Gassier; Cozen O’Connor and Richard M. Dunn and Raquel M. Fernandez and Anay-sa Gallardo, Miami, for appellants.
    Podhurst Orseck and Stephen F. Rosen-thal, Miami, for appellees.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   EMAS, J.

In this consolidated action, Rolls Royce, Inc., Simmonds Engine Precision Products, Inc., Goodrich Pump & Engine Control Systems, Inc., and Bell Helicopter Textron, Inc. appeal the trial court’s non-final order denying their motion to dismiss based upon forum non conveniens. For the reasons which follow, we reverse.

These claims arose when a helicopter, owned by the Mexican government and piloted by Oscar Garardo Posadas Garcia (“Garcia”) crashed on April 11, 2006, in Morelia, Mexico, injuring Garcia and his two passengers, Jesus Alberto Juarez Car-bajal and Jorge Antonio Carbajal Mora. All of the plaintiffs are Mexican citizens.

The subject helicopter, a Bell Model 407, was designed and manufactured by Bell Helicopter Textron, Inc. (“Bell”). Rolls Royce, Inc. (“Rolls-Royce”), manufactured the helicopter’s engine, and various sub-component parts of the engine were manufactured by Goodrich Pump & Engine Control Systems (“Goodrich”) and Sim-monds Engine Precision Products, Inc. (“Simmonds”). The helicopter was owned and operated by the State of Michoacan, Republic of Mexico, and was used for emergency medical services.

Plaintiffs, all of whom are represented by the same law firm, filed their complaints in the Eleventh Judicial Circuit, and each alleged the crash was caused when the subject helicopter’s engine and its FADEC (Full Authority Digital Engine Control) system and associated components and wiring harness failed due to the negligent design, manufacture, sale and negligent inspection, testing, maintenance, modification and/or repair by the defendants. The complaints also included counts for strict liability against each defendant.

Rolls-Royce filed a motion to dismiss for forum non conveniens, asserting the case should be reinstated in Mexico, the site of the crash and the home of the plaintiffs. The other defendants (Bell, Goodrich and Simmonds) joined in Rolls-Royce’s motion to dismiss.

None of the defendants is incorporated in Florida, nor does any defendant maintain a principal place of business in Florida. The helicopter and all of its engine components were designed, manufactured and assembled in either Canada or in the states where the defendants operate their businesses. At no time was the helicopter (or any of its component parts) in the state of Florida. After the sale of the helicopter, maintenance and repair were performed in the State of Michoacan (Mexico). Rolls-Royce asserted that, because the litigation has no connection to Florida, and no witnesses or documents are located here, Mexico is a “far more convenient forum for this litigation”, and dismissal is mandated under Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996). The defendants neither sought to remove the case to federal court nor agreed to a transfer of the case to another United States jurisdiction (such as Texas, Indiana or Connecticut).

In response, plaintiffs argued they should not be denied their choice of forum against four United States corporations that conduct their business from the United States. Further, plaintiffs pointed out, a “significant portion” of evidence in this case is located in Florida because plaintiffs’ counsel has litigated multiple other cases involving problems with the Bell 407 helicopter and there are “boxes upon boxes” of documents and deposition transcripts from those other cases located in the Miami office of plaintiffs’ counsel. Plaintiffs also noted that because Rolls-Royce and Bell sent representatives to assist the Mexican government in the crash investigation, and the subject engine was shipped to the defendants’ United States facilities for inspection, other evidence (all written in English) and witnesses exist in the United States. Therefore, plaintiffs argued, Mexico is an inconvenient forum, and litigating in Florida will not be an injustice to the defendants, who chose to incorporate in the United States.

After a hearing, the trial court entered an order, analyzing the applicable Kinney factors, and found that neither private nor public interest factors weighed in favor of dismissal because the parties “will have greater access to important witnesses and documents and the procurement and presentation of relevant evidence will be less costly and more efficient.” The court declined to disturb the plaintiffs’ forum choice, and denied defendants’ motion to dismiss for forum non conveniens. This appeal followed.

We review the trial court’s order denying a motion to dismiss for forum non conveniens under an abuse of discretion standard. Fla. R. Civ. P. 1.061(a); Rabie Cortez v. Palace Holdings, S.A., 66 So.3d 959 (Fla. 3d DCA 2011).

The Florida Supreme Court, “out of growing concern that Florida was becoming a ‘courthouse for the world’ ... adopted the federal forum non conveniens standard” in Kinney. Hilton Int’l Co. v. Carrillo, 971 So.2d 1001, 1004 (Fla. 3d DCA 2008). Under this standard, a trial court presented with a forum non conve-niens motion must consider: 1) whether an adequate alternative forum exists which has jurisdiction over the case; 2) all relevant private interests, keeping in mind the “strong presumption against disturbing plaintiffs’ initial forum choice”; 3) if the balance of private interests is in or near equipoise, whether relevant public interests tip the scale in favor of another forum; and 4) if the balance favors an alternative forum, the court must ensure that plaintiffs can bring suit in the alternative forum. Kinney, 674 So.2d at 90.

The Kinney Factors

1. Adequate and Available Alternative Forum

The parties agree that Mexico is both an adequate and available alternative forum. Thus the first and fourth Kinney factors require no further discussion, and we consider the second Kinney prong: private interests.

2. Private Interests Factor

This term “encompasses four broad ‘practical’ concerns: adequate access to evidence and relevant sites, adequate access to witnesses, adequate enforcement of judgments, and the practicalities and expenses associated with this litigation.” Id. at 92. In considering private interests, the court must follow the general rule that there is a strong presumption against disturbing the plaintiffs choice of forum, and this “presumption can be defeated only if the relative disadvantages to the defendant’s private interests are of sufficient weight to overcome this presumption.” Id. However, the presumption normally accorded a plaintiffs choice of forum “is given less deference when, as here, the plaintiff is an out-of-state resident with very little, if any, contact with Florida.” Rabie Cortez, 66 So.3d at 963; Kerzner Int’l Resorts, Inc. v. Raines, 983 So.2d 750 (Fla. 3d DCA 2008). As we previously have observed:

The deference owed to a plaintiffs choice is at its highest level when that choice was motivated by legitimate reasons, i.e., the plaintiffs convenience and the ability to obtain jurisdiction over the defendant. Iragorri v. United Techs. Corp., 274 F.3d 65, 73 (2d Cir.2001). Of course, bona fide connections to the forum of choice further serve to strengthen the deference given to a plaintiffs choice. Id. Conversely, this deference dissipates if a plaintiffs forum choice was made in the absence of such connections. Id.; See Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64 (2d Cir.2003).

Hilton, 971 So.2d at 1007.

The instant case involves foreign plaintiffs who have no connection to Florida. The only connection to Florida is that plaintiffs’ counsel is situated here and maintains in his office documents from other cases which they intend to use to establish liability in this case.

Conversely, several private interest factors weigh in favor of a Mexican forum. First, the accident occurred in Mexico. See e.g., Kerzner, 983 So.2d at 752. The accident was investigated by the Mexican Civil Aviation Authority, who has (or will) issue its investigative report at the conclusion of the investigation. This document undoubtedly will be written in Spanish. The helicopter’s maintenance records, and the traffic control authority records, are in Spanish. The plaintiffs’ medical records are in Spanish. All of these documents will require translation into English.

Furthermore, in addition to the fact that the plaintiffs and their family members are Mexican citizens, all the damages witnesses are located in Mexico. This includes the plaintiffs’ physicians and employers, who likely speak only Spanish, and would not be subject to a Florida court’s subpoena power. See § 48.193, Fla. Stat. (1995).

Noteworthy in the trial court’s order is the failure to recognize that a Florida forum still would present significant expense to the parties. While the trial court correctly noted there are liability witnesses in the United States, the fact remains that there are no liability (or damages) witnesses located in Florida. Given the absence of any connection to Florida, pretrial discovery in this Florida forum would require extensive travel throughout the United States (Texas, Indiana, Connecticut), Canada, and Mexico.

In analyzing access to proof and litigation expense, the trial court focused on the boxes of documents plaintiffs have acquired in similar but unrelated lawsuits, and the expense of translating these documents into Spanish. In doing so, the trial court assumed, but did not determine, the admissibility of these documents at a trial of this cause. Moreover, the expense associated with translation of these documents (assuming their admissibility) is comparable to the Spanish-to-English translation expense facing defendants should the case be litigated in Florida.

We conclude that the trial court abused its discretion in its determination that the private interests weighed in favor of a Florida forum. On balance, the factors of convenience, access, proof, and expense, weigh in favor of a Mexican forum. Even if we were to conclude that the private interest factors are at or near equipoise, consideration of Kinney’s third factor (public interests) unquestionably tips the scales in favor of another forum.

3. Public Interests Factor

“In broad terms, th[is] inquiry focuses on “whether the case has a general nexus with the forum sufficient to justify the forum’s commitment of judicial time and resources to it.’ ” Kinney, 674 So.2d at 92. The trial court found that the public interest factors in this case also support a denial of the motion to dismiss. The court’s conclusion, however, was not based upon any connection the case has with Florida, but instead, its connection with other parts of the United States. The trial court found that because the defendants “refused” to transfer the case to another state with a connection to this case, “it does not seem unreasonable to aggregate all U.S. contacts as the Court would do were this a federal case.” That conclusion, however, ignores this Court’s precedent. See Pearl Cruises v. Cohon, 728 So.2d 1226, 1228 (Fla. 3d DCA 1999) (finding plaintiffs contention that a Florida court must aggregate all of a lawsuit’s U.S. contacts in deciding whether to grant a motion to dismiss for forum non conveniens “is without merit”); Kerzner, 983 So.2d at 752 (“Florida courts, unlike federal courts, are permitted to consider only the contacts that a lawsuit has with the State of Florida, not with the United States as a whole.”).

Therefore, a trial court must consider the connection a particular case has with the forum, which in this case is Florida. See Kerzner, 983 So.2d at 752 (“We look to Florida’s connection to, and its interest in, the case.”); Kawasaki, 899 So.2d at 412 (reversing denial of motion to dismiss where there was “practically no connection to Florida” and holding the public interest will be better served by transferring the case to Illinois, where plaintiffs reside or to Jamaica, where the incident occurred).

We find that the trial court erred in aggregating all United States contacts, and in its erroneous determination that the public interests favored a Florida forum. Indeed, it is clear from the record in this case that this lawsuit has no connection with the state of Florida, save for plaintiffs’ choice of counsel and counsel’s collection of documentation from similar but unrelated lawsuits.

As was recognized by our high court in Kinney: “Nothing in our Constitution compels the taxpayers to spend their money even for the rankest forum shopping by out-of-state interests.” Kinney, 674 So.2d at 93. The trial court abused its discretion in denying defendants’ motion to dismiss for forum non conveniens.

Reversed and remanded with directions to the trial court to enter an order granting the motion to dismiss.

      . Additional plaintiffs include the wives of Garcia and Carbajal, who sued for loss of consortium.

      . Each couple filed their own complaint against the same defendants, but the cases were consolidated by the trial court for pretrial purposes.

      .Rolls-Royce is incorporated in Delaware and has its principal place of business in Indianapolis, Indiana. Bell is also a Delaware corporation and has its principal place of business in Hurst, Texas. Goodrich, another Delaware corporation, has its principal place of business in West Hartford, Connecticut. Simmonds is a New York corporation.

      . The motion was decided upon the submission of affidavits rather than live testimony. While we give substantial deference to the trial court's determination, the presumption of correctness is lessened when the findings are based upon affidavits rather than live testimony. Rabie Cortez v. Palace Holdings, S.A., 66 So.3d 959 (Fla. 3d DCA 2011); Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So.2d 912, 916 (Fla. 4th DCA 2008).

      . We have recognized a limited exception where the trial court did not address (and therefore did not exercise any discretion regarding) one or more of the Kinney factors. In such a situation, and assuming a sufficient appellate record, we may review and address de novo the previously-unaddressed Kinney factors for the first time on appeal, in the interest of judicial economy and efficiency. Cortez, 66 So.3d at 961; Ryder System v. Davis, 997 So.2d 1133 (Fla. 3d DCA 2008).

      .Further, the defendants have each waived any statute of limitations bar or jurisdictional defenses to an action brought in Mexico. Thus, it has been conceded by plaintiffs (and determined by the trial court) that the first and fourth prongs of Kinney were established.

      . This "third step in the analysis comes into play only if, in weighing the opposing parties’ private interest factors, the trial court finds them to be at or near equipoise, after taking into account the presumption favoring the plaintiff's choice of forum.” Kinney, 674 So.2d at 91. Equipoise means "the competing private interests are substantially in balance in either forum.” Id.


author: FERNANDEZ, J.

text:
    Guillermo CASTANEDA, Appellant, v. The STATE of Florida, et al., Appellees.
    No. 3D10-3159.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellees.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   FERNANDEZ, J.

Guillermo Castaneda appeals his judgment of conviction and sentence for direct criminal contempt. We reverse because the trial court failed to give Castaneda the opportunity to present evidence of mitigating circumstances.

It is clear from the record that Castaneda’s behavior was contemptuous, and we do not disturb this aspect of the trial court’s determination. Castaneda, however, was entitled to an opportunity to present evidence of excusing or mitigating circumstances before the trial court imposed its sentence.

Florida Rule of Criminal Procedure 3.830 outlines the requirements for an adjudication and sentence for direct criminal contempt. The trial court must follow six steps in order to comply with rule 3.830:

1. Direct criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court.
2. The judgment of guilt shall include a recital of those facts upon which the adjudication of guilt is based.
3. Prior to the adjudication of guilt, the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the court and sentenced therefor.
4. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances.
5. The judgment shall be signed by the judge and entered of record.
6. The sentence shall be pronounced in open court.

See Al-Hakim v. State, 53 So.3d 1171, 1173 (Fla. 2d DCA 2011); J.A.H. v. State, 20 So.3d 425, 427 (Fla. 1st DCA 2009); Fisher v. State, 482 So.2d 587, 588 (Fla. 1st DCA 1986).

Here, the trial court did not comply with step four. The trial court asked Castaneda if he could think of any reason why he shouldn’t be put in jail for using the kind of language he used and for his behavior. The trial court, however, failed to give Castaneda the opportunity to present evidence to mitigate his sentence. Consequently, the trial court failed to follow the mandates of rule 3.830. This rule “define[s] the essence of due process in criminal contempt and must be scrupulously followed.” Bouie v. State, 784 So.2d 521, 523 (Fla. 4th DCA 2001). Failure to scrupulously follow the rule constituted fundamental error. Bonet v. State, 937 So.2d 209, 210 (Fla. 3d DCA 2006); Hibbert v. State, 929 So.2d 622, 623 (Fla. 3d DCA 2006); Garrett v. State, 876 So.2d 24, 25 (Fla. 1st DCA 2004).

We therefore reverse Castaneda’s sentence for direct criminal contempt and remand to the trial court for proper criminal contempt proceedings. If Castaneda has already served his sentence, the trial court shall not interpret our opinion to require that Castaneda be brought back into custody for resentencing. Should the trial court determine that it wishes to reinstate the judgment of contempt, the trial court shall conduct a hearing, upon proper notice to Castaneda, and give him an opportunity to present mitigating or excusing evidence. If Castaneda fails to appear for this hearing after proper notice, the trial court may re-enter the judgment, having determined that Castaneda waived the opportunity to present mitigating evidence.

Reversed and remanded.


text:
    Alfonso MEDRANO, Appellant, v. STATE of Florida, Appellee.
    No. 3D09-2225.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.

      Matthew J. Troccoli, for appellant.
    Pamela Jo Bondi, Attorney General and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Defendant Alfonso Medrano appeals his conviction and sentence for trafficking in 3-, 4-methylenedioxymethampetamine (“MDMA” or “ecstasy”). We reverse and remand for a new trial, holding that the trial court abused its discretion in denying Medrano a continuance to permit him to take the deposition of the co-defendant, who pled guilty immediately prior to the commencement of the trial and testified against Medrano at trial.

The relevant facts are not in dispute:

Medrano and a co-defendant were charged with one count of trafficking in 400 grams or more of MDMA. Immediately before jury selection began, the co-defendant entered a negotiated plea of guilty to the trafficking charge. As a condition of the plea, the co-defendant agreed to cooperate with the State and to testify as a State witness in Medrano’s trial, which began immediately on the heels of the co-defendant’s plea.

Defense counsel requested a two-week continuance to permit the taking of the co-defendant’s deposition and to undertake additional trial preparation, including consideration of a different defense strategy in light of the fact that the co-defendant had pled guilty and had become a State witness. The trial court denied this motion and the case proceeded to trial.

At trial, the State called the co-defendant as a witness, who testified as follows:

—The co-defendant was contacted by someone who knew both him (the co-defendant) and the informant.
—This mutual acquaintance advised the co-defendant that the informant wanted to purchase a large quantity of ecstasy pills.
—On January 15, Medrano drove the co-defendant to a parking lot in a car rented by Medrano.
—The purpose was to meet with the informant to discuss the amount of ecstasy pills the informant wanted to purchase.
—The following day, Medrano and co-defendant met again with the informant to provide sample pills to the informant.
—Medrano knew that he and the co-defendant were meeting with the informant for the purpose of selling ecstasy pills, and the pills were kept in the glove box of the car rented and driven by Me-drano.
—The co-defendant obtained the pills from a supplier he knew, and Medrano provided the money for the purchase of the pills from the supplier.
—The co-defendant and Medrano agreed they would split the profits from the sale of the pills.

The jury found Medrano guilty of trafficking in 400 grams or more of MDMA, and the trial court imposed a fifteen-year mandatory-minimum sentence.

In Smith v. State, 578 So.2d 366 (Fla. 3d DCA 1991), three defendants commenced trial on the charge of trafficking in cocaine. After the jury was selected, one of the defendants entered a negotiated plea and agreed to testify at trial against the two remaining defendants. The remaining defendants requested a continuance so they could depose this “new” State witness. The trial court denied the requested continuance, but permitted the defendants to depose the co-defendant after opening statements were given. The deposition was taken, but the defendants were unable to have the deposition transcribed in time for the cross-examination of the testifying co-defendant. The defendants were convicted, and this Court reversed, holding that the trial court abused its discretion in denying the motion for continuance:

[W]e conclude that the trial court erred in denying the defendants’ motion for a continuance when the state announced, after the jury had been selected and sworn, that a codefendant, Bobby Monroe, had entered into a plea bargain with the state and would be testifying as a state witness. Although the defendants were allowed to depose Monroe the next day after opening statements had been made and several state witnesses had testified, the deposition could not be completed and the incomplete deposition could not be transcribed before the state called Monroe as a witness. In our view, the defendants were severely prejudiced because (1) they had insufficient time to depose or investigate Monroe and did not have the benefit of a written deposition with which to cross-examine him, an absolute essential in order to impeach the witness by his prior testimony; and (2) Monroe gave devastating, non-cumulative testimony in this case concerning an agreement made among the defendants in North Carolina to come to Miami and purchase a quantity of cocaine, testimony which could not have failed to have had a decisive impact on the jury. At the very least, the trial court should have allowed the defendants a brief recess of a few days to allow them to conduct a complete deposition of Monroe and have the transcript of same prepared for their study before pressing forward with opening statements and testimony in the case.... Given these circumstances, the convictions herein must be reversed and the cause remanded for a new trial.

Id. at 366-67 (internal citations omitted).

Here, as in Smith, the co-defendant’s plea occurred on the day trial began. Here, as in Smith, the co-defendant provided significant, non-eumulative testimony and direct evidence of Medrano’s knowledge and intent. Moreover, and in contrast to Smith, the trial court in the instant case did not even permit the defense to depose the co-defendant. The defense was left to commence the trial without the opportunity to determine what the co-defendant would testify to before he took the stand, and had no genuine ability to prepare for his testimony or be in a position to impeach him effectively.

The trial court’s refusal to grant a continuance to allow Medrano to depose the co-defendant and engage in further pretrial preparation in light of this change in circumstance was an abuse of discretion, resulting in substantive and procedural prejudice to Medrano. When Medrano and his counsel appeared in court for the commencement of the trial, they prepared for a trial in which Medrano and the co-defendant would be tried together. The posture of the case was altered significantly, however, when the co-defendant entered a guilty plea and, in exchange for a five-year prison sentence, agreed to testify against Medrano. This affected trial preparation, trial strategy, and the relative strength of the case, from the perspective of both the State and the Defendant. The State now had a new witness who could provide direct evidence of Medrano’s knowledge and intent; Medrano, without any advance notice or time to investigate or prepare, had to confront and overcome the significant and damaging testimony of his co-defendant. As we previously have held:

Embodied in the notion of the right to a fair trial is the fundamental concept that defense counsel must be afforded an adequate opportunity to investigate and prepare any applicable defenses. A trial court’s restriction on defense counsel’s ability to prepare for an applicable defense constitutes an abuse of discretion requiring reversal of a defendant’s conviction.

Cook v. State, 595 So.2d 994, 995-96 (Fla. 3d DCA 1992).

In Bell v. State, 930 So.2d 779 (Fla. 4th DCA 2006), the State was permitted to call a former co-defendant to testify at Bell’s trial, to the surprise and over the objection of the defendant. Defense counsel sought first to exclude the co-defendant’s testimony and, when that motion was denied, sought a one-week continuance of the trial to permit the defense to depose the former co-defendant and to prepare a new defense strategy. The trial court denied the motion for continuance and the defendant was convicted. The Fourth District reversed:

Even if the court might properly have allowed the co-defendant to testify at trial, it was also manifest error to do so without allowing defense counsel a reasonable continuance of the trial.... As defense counsel pointed out when the issue arose, if this witness were now suddenly to testify he would need considerable time to prepare for a deposition of this witness. And he would need additional time to prepare a new strategy, for the dynamic of the trial was radically altered by her appearance and testimony. It is fundamental that defendants be allowed an adequate opportunity to investigate witnesses and prepare applicable defense strategies. When the State is allowed to produce witnesses at trial who constitute a considerable surprise to defendant, the defense should be afforded a reasonable continuance to take discovery depositions of such witnesses.

Id. at 787 (internal citations omitted).

The trial court abused its discretion in denying Medrano’s motion for continuance to permit him to take the deposition of the co-defendant and to undertake further investigation and preparation in light of this new State witness. We therefore reverse the conviction and sentence and remand this cause for a new trial.

      . Because we reverse for a new trial on this ground, we do not address the other issues raised on appeal. Appellant has urged us to reach and resolve the trial court’s denial of a mid-trial motion to dismiss based upon a claim of objective entrapment. We decline to do so, given the absence of a sufficient trial record. The court reporter was unable to provide any transcript of the trial due to a computer failure which corrupted the court reporter’s files and rendered the data unreadable and unrecoverable. The parties did submit a reconstructed record, prepared and stipulated to by the parties, and approved by the trial court. While this reconstructed record is sufficient for us to decide the merits of the trial court's denial of the motion for continuance, it is simply insufficient for us to address the issue of objective entrapment. We take this opportunity to commend counsel for their diligent efforts in reconstructing the record pursuant to Florida Rule of Criminal Procedure 9.200(b)(4).

      . The co-defendant faced a maximum sentence of thirty years in prison, including a fifteen-year mandatory minimum. See § 893.135(1 )(k)2.c, Fla. Stat. (2008). In exchange for his guilty plea and his agreement to testify against Medrano, the State waived the minimum mandatory and the co-defendant was sentenced to a term of five years in prison.

      . In Bell, the co-defendant, well prior to trial, had entered a negotiated plea that included a requirement that she testify on behalf of the State at the defendant’s trial. The defense attempted on numerous occasions to depose the co-defendant; however, on each occasion the co-defendant refused to be deposed (and announced her refusal to testify at trial), even after the trial court held her in contempt and advised the co-defendant that her refusal to be deposed or to testify at trial was a breach of her plea agreement, which could result in a more severe sentence. After the jury had been selected and opening statements were given, the co-defendant agreed to testify as a State witness and the trial court permitted her to do so without giving the defense an opportunity to depose her. Id. at 782.


author: GERBER, J.

text:
    DRD MARINE CORPORATION, an Arizona corporation, Appellant, v. BYRD TECHNOLOGIES, INC. d/b/a Marquipt, a Florida corporation, Appellee.
    No. 4D10-4773.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.

      Patricia Leigh McMillan Minoux of Hayden Milliken & Boeringer, P.A., Miami, for appellant.
    Vincent O’Brien and Julie Rannik Houston of DeOrchis, Hillenbrand & O’Brien LLP, Fort Lauderdale, for appellee.
   GERBER, J.

The plaintiff appeals: (1) the circuit court’s July 17, 2006 “Directions to the Clerk” to close the file because of the lack of record activity; and (2) the circuit court’s October 25, 2010 order granting the defendant’s motion to dismiss for failure to prosecute. The plaintiff argues that the court entered the directions and the order contrary to Florida Rule of Civil Procedure 1.420(e), as amended effective January 1, 2006. In re Amendments to the Florida Rules of Civil Procedure (Two Year Cycle), 917 So.2d 176, 176 (Fla.2005). We agree and reverse both the directions and the order.

Rule 1.420(e), as amended, states:

(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ. P. 1.420(e) (2006); In re Amendments, 917 So.2d at 181-82.

On July 17, 2006, the circuit court, without following the requirements of rule 1.420(e), directed the clerk to close the file because of the lack of record activity for more than one year. The court’s directions stated that the case was “subject to reopening upon appropriate petition.”

On July 28, 2006, the plaintiff filed a motion to reopen the case. However, the plaintiff did not set a hearing on the motion or obtain an order granting the motion. Instead, two more years passed. Then, in 2008, the plaintiff resumed record activity. Record activity continued over the next two years, albeit very infrequently-

On September 10, 2010, the defendant filed a “Motion to Deem Case Closed or, in the Alternative, Motion to Dismiss for Failure to Prosecute.” The defendant based the motion on the large gaps of non-record activity which occurred before 2008. However, the defendant filed the motion: (1) without first serving the notice which rule 1.420(e) requires; and (2) without regard to the fact that record activity occurred in the ten months immediately preceding the filing of its motion. It appears that the defendant’s oversights in filing the motion resulted from its express reliance on the pre-2006 version of rule 1.420(e), which contained neither of those requirements. The pre-2006 version provided:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ. P. 1.420(e) (2005); In re Amendments, 917 So.2d at 181-82.

Despite the defendant’s failure to comply with rule 1.420(e) as amended, the circuit court granted the defendant’s motion to dismiss by order entered October 25, 2010. This appeal followed.

We review the circuit court’s actions for an abuse of discretion. See Johnson v. Maroone Ford LLC, 944 So.2d 1059, 1060 (Fla. 4th DCA 2006) (“The standard of review of a trial court’s dismissal of a cause of action for failure to prosecute is abuse of discretion.”).

We conclude that the circuit court erred in directing the clerk to close the file without following rule 1.420(e)’s requirements. See Arzuman v. Bunin, 59 So.3d 146, 147 (Fla. 4th DCA 2011) (circuit court erred in directing the clerk to close the file where it gave no notice to the plaintiff). As we stated in Arzuman, “it appears that the trial court may have considered the case dormant and simply ordered the closing of the file, a procedure not found in the Florida Rules of Civil Procedure or case law.” Id.

We also conclude that the circuit court erred in granting the defendant’s motion to dismiss. The defendant filed the motion without first serving the notice which rule 1.420(e) plainly requires. See Metcalfe v. Lee, 952 So.2d 624, 627-28 (Fla. 4th DCA 2007) (courts interpret the Florida Rules of Civil Procedure according to their plain and ordinary meaning). To allow a defendant to file a motion to dismiss without first serving the notice would undermine the supreme court’s intent in amending rule 1.420(e). That intent was to provide “notice to a party that the action was at risk of being dismissed for lack of prosecution, and afford[] the party a reasonable time thereafter in which to engage in record activity in order to preclude dismissal.” Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786, 792 (Fla.2011).

Even if the defendant had served the notice instead of filing the motion to dismiss, the notice still would have been improper because record activity occurred in the ten months which would have immediately preceded the serving of the notice. See Fla. R. Civ. P. 1.420(e) (2006) (motion to dismiss for failure to prosecute may be served only “[i]f no ... record activity has occurred within the 10 months immediate ly preceding the service of such notice ”) (emphasis added); A-1 Presto Roofing Corp. v. Espinosa, 51 So.3d 566, 567 (Fla. 3d DCA 2010) (“[U]nder the rule, if there is any record activity within the ten (10) months immediately preceding the service of such notice, the case should not be dismissed.”).

The defendant contends that, despite these errors, we should affirm the circuit court’s dismissal of this action under the “right for the wrong reason” doctrine. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record”). Specifically, the defendant argues: (1) the plaintiff resumed record activity in 2008 without first obtaining an order granting its motion to reopen the case; and (2) the plaintiff engaged in improper actions and violated court orders during the pendency of the case.

Both arguments are without merit. On the first argument, as stated above, the circuit court was without authority to direct the clerk to close the file without following rule 1.420(e)’s requirements. Thus, the court’s directions were a nullity. See Abram v. Wolicki, 864 So.2d 18, 21 (Fla. 4th DCA 2003) (where the trial court entered an order not authorized by the Florida Rules of Civil Procedure, the order was a nullity).

On the second argument, the circuit court did not make any factual findings as to the improper actions and violations alleged in the defendant’s motion. Thus, we cannot apply the “right for the wrong reason” doctrine at this stage. See Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009) (an appellate court cannot employ the “right for the wrong reason” doctrine where the circuit court has not made necessary factual findings on an issue).

Based on the foregoing, we reverse: (1) the circuit court’s July 17, 2006 “Directions to the Clerk”; and (2) the circuit court’s October 25, 2010 order granting the defendant’s motion to dismiss for failure to prosecute. We remand this case for further proceedings.

Reversed and, remanded for further proceedings.

CIKLIN and CONNER, JJ., concur.


text:
    Niko THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2793.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    John E. Bergendahl, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 2011 WL 5554812 (Fla. 3d DCA 2011), and cases cited therein.


text:
    Jimmy GEORGES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3082.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    Jimmy Georges, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and FERNANDEZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 2011 WL 5554812 (Fla. 3d DCA 2011).


author: CIKLIN, J.

text:
    Nancy C. BLOCK and John E. Stephens, Jr., as Trustees of the Jackson Martindell Trust dated December 30, 1988, Appellants, v. Rip TOSUN, Appellee.
    No. 4D11-1594.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.

      Robert Garven, Margate, and Fredric C. Buresh, Fort Lauderdale, for appellants.
    Lance W. Shinder and Veronica Neisler of Lance W. Shinder, P.A., Boca Raton, for appellee.
   CIKLIN, J.

Nancy C. Block and John E. Stephens, Jr., as Trustees of the Jackson Martindell Trust dated December 30, 1988, (the “Trustees”) appeal the trial court’s order setting aside a 1992 default final judgment against Rip Tosun. Because the trial court granted Tosun’s motion to vacate without first conducting an evidentiary hearing, we reverse and remand for further proceedings.

The Trustees originally filed their complaint against Tosun in March 1992. On July 23, 1992, a default final judgment for $72,081.53 was entered in favor of the Trustees after Tosun failed to file any response in the case. After nearly eighteen years of no record activity, Tosun was served with a subpoena duces tecum in aid of execution in April 2010.

In January 2011, Tosun filed a motion to vacate both the default and the default final judgment. He claimed that service of process had never been made prior to the 1992 default and as a result the final judgment was void for lack of service. The motion alleged that the court file containing the original return of service had been destroyed. The office of the clerk of the circuit court, however, maintained a progress docket for the case. The progress docket contained an entry dated June 15, 1992, which read, “Summons Returned Served; Sums Retd Srvd 4/21/92 On Rip Tosun (Spb).”

Tosun attached an affidavit to his motion in which he swore that he had no recollection of having ever been served with a copy of the complaint and summons. He also averred that he did not remember having ever received a copy of the default final judgment that was entered against him on July 23, 1992. He pointed out that although the default final judgment stated that a copy was furnished to him, the judgment did not list an address to where it was purportedly sent.

Subsequent to a non-evidentiary hearing on Tosun’s motion, the trial court entered an order granting Tosun’s motion to vacate the default final judgment. The order states, “The Court file no longer exists and the Plaintiffs are unable to provide a return of service.”

The Trustees contend that the trial court erred in concluding that the default judgment had to be set aside as a matter of law because the Trustees were unable to provide a return of service. We agree.

“[A] judgment entered without service of process on the defendant is void and may be attacked at any time.... ” M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1080 (Fla. 4th DCA 2000); see also Fla. R. Civ. P. 1.540(b)(4). Furthermore, the Trustees, as the party seeking to invoke the jurisdiction of the court, had the burden of proving that a valid service of process had been made on Tosun prior to the entry of the default judgment in 1992. See BoatFloat, LLC v. Cent. Transp. Int’l, Inc., 941 So.2d 1271, 1273 (Fla. 4th DCA 2006) (“The burden of proof to sustain the validity of service of process is on the party seeking to invoke the jurisdiction of the court.” (citation and quotation marks omitted)). One way that the Trustees could have met their burden would have been by providing a return of service which was valid on its face. See, e.g., Sunseeker Int’l Ltd. v. Devers, 50 So.3d 715, 717 (Fla. 4th DCA 2010) (“To meet that burden, a plaintiff may produce evidence of a valid return of service.”). Unfortunately, any return of service which may have been filed with the trial court back in 1992 would have been lost when the trial court destroyed the case file after many years of no record activity.

Apparently, however, the trial court concluded that the only way the Trustees could meet their burden of proving that Tosun had been properly served with process prior to the 1992 default was by presenting the return of service in response to Tosun’s motion to set aside the default judgment. While a return of service is one means by which a plaintiff can prove that there had been a valid service of process on the defendant prior to the entry of a default judgment (and perhaps the best proof of such), the return of service is not the only means to do so.

The record here contained a certified printout of the clerk’s progress docket which included an entry dated June 15, 1992 stating, “Summons Returned Served; Sums Retd Srvd 4/21/92 On Rip Tosun (Spb).” The record also contained a certified copy of the 1992 “Final Judgment on Default.” Together these documents constitute evidence which affords a reasonable basis for the conclusion that it is more likely than not that service of process on Tosun was properly perfected in 1992 before the final default judgment was entered. Because the Trustees met their initial burden of proof, the trial court erred in setting aside the final judgment without first conducting an evidentiary hearing.

The Trustees also contend that for the default final judgment to be set aside, Tosun’s mere denial of service should be insufficient as a matter of law. They argue that Tosun must also present evidence to corroborate his denial of service and that such evidence must be clear and convincing. That would have been Tosun’s burden if the Trustees had proffered a return of service that appeared valid on its face. See Se. Termite & Pest v. Ones, 792 So.2d 1266, 1268 (Fla. 4th DCA 2001); Slomowitz v. Walker, 429 So.2d 797, 799 (Fla. 4th DCA 1983). The clerk’s progress docket, while constituting evidence of service of process, does not warrant the same weight as a facially valid return of service.

Instead, on remand, the trial court should treat the Trustees’ documentary evidence of service of process here as creating a rebuttable presumption affecting the burden of producing evidence only. See § 90.302(1), Fla. Stat. (2011). Thus, Tosun will have the burden of introducing credible and admissible evidence showing he was not properly served with process prior to the entry of the 1992 default judgment. If he does so, then the trial court, as the trier of fact, will weigh the evidence and resolve the question of fact at issue here. Cf. Depelisi v. Wishner, 15 So.3d 808, 811 (Fla. 4th DCA 2009) (explaining how a trial court is to deal with the rebuttable presumption of notice which arises when the party seeking to uphold a default judgment proffers a certificate of service indi-eating that pleadings and order were mailed to opposing counsel).

Accordingly, we reverse and remand for the trial court to conduct an evidentiary hearing in accordance with this opinion.

Reversed and remanded with instructions.

MAY, C.J., and STEVENSON, J., concur.

      . We note that a trial court is originally without authority to enter a default without a facially valid return of service. See Re-Emp’t Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 471 (Fla. 5th DCA 2007) ("When there is an error or omission in the return of service, personal jurisdiction is suspended and it 'lies dormant’ until proper proof of valid service is submitted.” (quoting Klosenski v. Flaherty, 116 So.2d 767, 769 (Fla.1959))); Tetley v. Lett, 462 So.2d 1126, 1127 (Fla. 4th DCA 1984) ("[T]he failure [of the return of service] to comply with the remaining statutory requirements placed the jurisdiction, like Rip Van Winkle, into a state of dormancy during which period the trial court was without authority to enter a default.”). After a default is entered, however, the destruction of the return of service by the clerk of the court does not make a previous valid judgment void.

      . While the trial court did hold a hearing on Tosun's motion, that hearing consisted entirely of argument from both parties’ counsel and the submission of affidavits. But, ”[t]his court has previously expressed its view that neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing.” Fern, Ltd. v. Road Legends, Inc., 698 So.2d 364, 365 (Fla. 4th DCA 1997).


author: WARNER, J.

text:
    Ivan SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2070.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In this appeal from his conviction for carrying a concealed weapon, appellant, Ivan Santiago, contends that the trial court erred when, in answering a jury question, it informed the jury that carrying a concealed weapon in one’s residence violated the concealed weapons law. To the contrary, the concealed weapons law does not apply to weapons in the home. We reverse.

An undercover police officer went to a residence in Palm Beach County to purchase cocaine from Santiago. During the transaction Santiago pulled a firearm from his pocket and displayed it. The undercover officer completed the transaction and left. Two weeks later the officer and other officers went to the house to execute a search warrant. Santiago was present at the residence, and the officer recognized him. A gun was recovered in a search of the residence and appeared to be the same weapon which Santiago had earlier displayed.

Santiago was subsequently charged with: 1) trafficking in cocaine in an amount of 28 grams but less than 200 grams; 2) sale of cocaine while armed; 3) carrying a concealed firearm; and 4) possession of a firearm by a minor. This appeal concerns only the concealed weapons charge which was tried before a jury.

In charging the jury the judge read the following instruction:

Count 2, carrying a concealed firearm. To prove the crime of carrying a concealed firearm, the State must prove the following two elements beyond a reasonable doubt.
One, Ivan Santiago knowingly carried on or about his person a firearm.
And two, the firearm was concealed from the ordinary site [sic] of another person.

Thereafter the jury sent out a question: “Does ‘concealed’ apply to a person in his own residence?” The state asked the judge to re-read the instructions. The judge indicated that he was inclined to say that the answer was, ‘Tes, the law precludes somebody from walking around in their home with a concealed weapon when there’s other company in the home, concealed from the ordinary sight of another.” Defense counsel maintained the same position as the state. The court effectively overruled the objection and instructed the jury:

Yes, concealed does apply. So, it is . illegal for a person to walk around in their own home with a concealed weapon or . firearm in the presence of other people, in the presence of other people.

The jury subsequently returned a guilty verdict for carrying a concealed firearm. Santiago was sentenced to ten-year terms of imprisonment and now appeals his conviction.

The sole issue Santiago raises on appeal is whether the trial court committed error in instructing the jury that carrying a concealed weapon in one’s home in the presence of other people is illegal. Whether a jury instruction was legally adequate is a question of law subject to de novo review. State v. Glatzmayer, 789 So.2d 297 (Fla.2001). Whether it is legal for a person to carry a concealed firearm in certain specific locations is a question of law subject to de novo review. See Brook v. State, 999 So.2d 1093 (Fla. 5th DCA 2009).

Section 790.01(3) prohibits a person from carrying a concealed firearm, except when licensed. However, section 790.25 permits the lawful possession of a firearm in one’s residence. Specifically, the statute states:

790.25 Lawful ownership,, possession, and use of firearms and other weapons.—
(1) DECLARATION OF POLICY.— The Legislature finds' as a matter of public policy and fact that it is necessary to promote firearms safety and to curb and prevent the use of firearms and other weapons in crime and by incompetent persons without prohibiting the lawful use in defense of life, home, and property ...
(3) LAWFUL USES. — The provisions of ss. 790.053 and 790.06 do not apply in the following instances, and, despite such sections, it is lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:
(n) A person possessing arms at his or her home or place of business[.]

Section 790.053 prohibits the open carrying of firearms, and section 790.06 provides the requirements to obtain a license for carrying a concealed weapon or firearm.

Our supreme court addressed the issue in this case in Peoples v. State, 287 So.2d 63 (Fla.1973), where a defendant was tried and convicted for carrying a concealed firearm when police encountered him sitting on a bench in front of the business where he worked and resided. The defendant had chased two people whom he had seen removing property from the premises and was awaiting the arrival of police. The supreme court specifically rejected the argument that a person was not permitted to conceal his possession of a firearm in his own home:

If we upheld the lower court’s verdict, we would be saying that a person, in defense of his home or place of business, is not permitted to conceal his possession of a firearm. This would mean that:
1). An owner of a business, or his employee, could not carry a concealed weapon on or about his person (I.e., on his person, or in a drawer next to the cash register). He would either have to risk a loss of business by offending customers, or give up his only means of self-defense.
2). A homeowner would have to either carry his weapon in his hand or outside holster, or leave said weapon where it would be useless (as in a locked drawer and/or in plain sight).
The Legislature could not have intended a result so inconsistent with its Declaration of Policy in Section 790.25(1), the Exceptions to said Section in Section 790.25(3)(n), and the Construction in Section 790.25(4). We must, therefore, reverse the verdict of the trial court and find that defendant not guilty of a violation of Florida Statute 790.01, F.S.A.

Peoples, 287 So.2d at 67. As noted in Brook, 999 So.2d at 1096, in the nearly forty years since the supreme court adopted this construction of the statute, the Legislature has not deemed it necessary to contradict this clear holding.

The trial court gave the jury an incorrect statement of law, over the objection of both the state and the defense. We reverse and remand for a new trial.

MAY, C.J., and GROSS, J., concur.

      . A violation of 790.01(2), which provides: "A person who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

      . The appellant did not request remand for entry of a judgment of acquittal and discharge because the evidence is not conclusive that the house where the transaction occurred was in fact appellant's residence. We agree that because of this factual issue, a new trial is the appropriate remedy.


text:
    Letroy D. MOSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5404.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2012.
    James Marion Moorman, Public Defender, and Ama N. Appiah, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Letroy D. Mosley appeals the revocation of his probation and the resulting sentences of ten years in prison for burglary of an occupied dwelling and five years in prison for possession of burglary tools. We affirm the revocation of Mosley’s probation without further comment. However, we reverse Mosley’s sentences and remand for the trial court to resentence him as a youthful offender. See Lee v. State, 67 So.3d 1199, 1202 (Fla. 2d DCA 2011) (“ ‘Once a circuit court has imposed a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control.’ ” (quoting Blacker v. State, 49 So.3d 785, 788 (Fla. 4th DCA 2010))); see also State v. Arnette, 604 So.2d 482, 484 (Fla.1992) (“Unless the legislature clearly states otherwise, youthful offenders maintain youthful offender status even when they violate a condition of community control.”). As we did in Lee, we note that on remand the trial court may impose the same terms of imprisonment if it chooses, but it must maintain Mosley’s youthful offender status.

Affirmed in part, reversed in part, and remanded for further proceedings.

ALTENBERND and MORRIS, JJ., Concur.

      . These underlying offenses occurred on March 2, 2008.


author: HAZOURI, J.

text:
    DEPARTMENT OF REVENUE on behalf of Carolina Surapa GARCIA, Appellant, v. Jorge IGLESIAS and Ariel Garcia, Appellees.
    No. 4D09-4790.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for appellant.
    Kenneth M. Kaplan, Miami, for appellee Jorge Iglesias.
   HAZOURI, J.

The Department of Revenue (DOR) filed a petition to establish paternity and child support, and named two respondents, Jorge Iglesias and Ariel Garcia. The petition alleged Iglesias was the biological father of the child, but that Garcia was married to the mother of the child at the time the child was conceived and born. The petition alleged that Garcia was the presumptive legal father. The petition requested the court enter an order determining that one of the respondents was the legal father of the child and requiring that person to pay child support.

Iglesias filed a motion to dismiss, claiming that because the child was born during a legal marriage, Garcia is the presumed biological father. The trial court entered a form order granting the motion to dismiss without making any factual findings.

At the hearing on the motion to dismiss, Iglesias argued that it would not be in the best interests of the child to have Iglesias declared the father, because then the child would be illegitimate. He further argued that Garcia had the burden to prove he was not the natural father.

The standard of review in a case involving an order granting a motion to dismiss based on the presumption of legitimacy is de novo. See Lander v. Smith, 906 So.2d 1130 (Fla. 4th DCA 2005) (reviewing de novo an order dismissing a paternity action brought by putative biological father, based on child’s birth to mother and non-biological father during a legal marriage).

DOR argues that the presumption of legitimacy does not need to be rebutted at the outset of a paternity action, and that the dismissal was premature. DOR’s position is that it may file a paternity action against both the legal father and biological father, and that the issues of the best interests of the child and the presumption of legitimacy should be dealt with during the proceedings. We agree.

In addressing the child’s legitimacy, we note the child was born during the mother’s marriage to Garcia, although Garcia’s name does not appear on the birth certificate. A child born to a legal marriage is legitimate. See Daniel v. Daniel, 695 So.2d 1253 (Fla.1997) (citing In Re Adoption of Doe, 572 So.2d 986 (Fla. 1st DCA 1990)). The presumption of legitimacy is in' place to protect the best interests of the child and the interests of the legal father. Cf. Dep’t of Health and Rehabilitative Servs. v. Privette, 617 So.2d 305, 307 (Fla.1993); Fla. Dep’t of Revenue v. Cummings, 930 So.2d 604, 608 (Fla.2006).

A putative father seeking to avoid a blood test may raise the presumption in the context of his privacy interest. See Privette, 617 So.2d at 309 n. 8 (Fla.1993) (“By asserting a privacy interest the putative father necessarily puts in issue the child’s best interests, which substantially implicates the presumption. If the child’s best interests require maintaining the presumption, then the presumption will prevail because the State will lack a compelling interest justifying the blood test.”).

The common denominator in these cases is the best interests of the child. To that end, the courts require a determination of the child’s best interests. Some circumstances require specific procedures be followed in evaluating a child’s best interests. For example, if paternity is contested, the child’s legitimacy is at issue, and 'the legal father has not had notice or an opportunity to be heard, the trial court is required to appoint a guardian ad litem and hear from the guardian and all the parties before proceeding. See Privette, 617 So.2d at 308; Daniel, 695 So.2d at 1255. At a minimum, the court must evaluate the best interests of the child. See Hebner v. Barry, 834 So.2d 305 (Fla. 4th DCA 2003) (reversing trial court’s order that putative father undergo blood testing where trial court failed to make findings of fact in regard to whether the paternity test was in best interests of the child); Lander, 906 So.2d at 1135 (remanding for a hearing in a case where the putative father brought the paternity action, and directing that the best interests of the child be considered).

A trial court may consider the child’s need for support. Cf. Privette, 617 So.2d at 309-10; Grant v. Jones, 635 So.2d 47, 48 (Fla. 1st DCA 1994). If the court determines that there is no compelling interest in overcoming the presumption, it must dismiss the paternity action against the putative father. Cf. M.R. v. A.B.C., 683 So.2d 629, 630 (Fla. 3d DCA 1996).

The trial court’s order contains no findings, so it’s not clear why it dismissed the action. The transcript of the hearing suggests that the trial court seemed to believe that the legal father needed to disestablish his paternity in a separate action before DOR could proceed against the putative father. This does not appear to be the case. Cf. Fla. Dep’t of Revenue v. Cummings, 930 So.2d 604 (Fla.2006) (holding that in an action to determine paternity and place support obligations on the alleged biological father, the legal father is an indispensable party unless it’s shown the legal father’s rights have been divested by a previous judgment).

The transcript of the hearing and the court’s order do not reflect that the court considered the child’s best interests before dismissing the action against Iglesi-as. We therefore reverse and remand and direct the trial court to conduct a hearing to determine whether, in light of the fact that the child’s legitimacy will remain intact, it would be in the best interests of the child to allow DOR to pursue its paternity action against Iglesias.

Reversed and Remanded.

MAY, C.J., and DAMOORGIAN, J„ concur.


text:
    Mario Garibay CRUZ, Petitioner, v. Susan Sloan CRUZ, Respondent.
    No. 5D11-4305.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2012.
    Caleb D. Rowland and Seth Schwartz, of The Schwartz Law Group, Jacksonville, for Petitioner.
    Garry W. Crews, Scott Burleigh, and Ronald E. Sholes, of Law Offices of Ronald E. Sholes, P.A., Jacksonville, for Respondent.
   PER CURIAM.

Petitioner seeks a writ of prohibition preventing the lower court judge from further presiding over the proceedings in St. Johns County case number DR08-1906. Because the lower court judge improperly denied Petitioner’s motion to disqualify as untimely, and because the motion to disqualify was otherwise legally sufficient, we grant the petition.

The genesis of the disqualification issue arose pursuant to correspondence, dated November 1, 2011, that was sent by the lower court judge to counsel for Petitioner. Suffice it to say that the substance of the letter was such that a reasonably prudent person would be placed in fear of not receiving a fair and impartial trial. See, e.g., Ennis v. Ennis, 855 So.2d 229 (Fla. 5th DCA 2003).

On Monday, November 14, 2011, Petitioner filed his verified motion to disqualify the lower court judge, citing to the statements made by the judge in the November 1, 2011, letter. Although rule 2.330(e), Florida Rules of Judicial Administration, requires a motion to disqualify to “be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion ...,” in the instant case, the tenth day fell on Friday, November 11, 2011, which was Veteran’s Day. Accordingly, Petitioner was entitled to file his motion on the “next day which is neither a Saturday, Sunday, or legal holiday.” Fla. R. Civ. P. 1.090(a). See Holter v. Dohnansky, 917 So.2d 242, 243 (Fla. 5th DCA 2005) (“[Bjecause the last day of the period fell on a Sunday, the ten-day filing period actually ran to the end of the next day that was not a Saturday, Sunday or holiday.”). Petitioner’s November 14, 2011, motion to disqualify was, therefore, timely.

We conclude that under the circumstances presented in the instant case, Petitioner may have reasonably feared that he would not receive a fair and impartial trial. The lower court judge must, therefore, be disqualified from presiding further in this ease.

PETITION GRANTED.

ORFINGER, C.J., SAWAYA, AND EVANDER, JJ., concur.

      . We decline Petitioner's invitation to craft a blanket order disqualifying the lower court judge from presiding over any futu:e cases involving Petitioner's counsel.