author: KHOUZAM, Judge. ALTENBERND, Judge,

text:
    Ernest Jerome NASH, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3825.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2011.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Ernest Jerome Nash appeals his judgments and sentences for trafficking in heroin and conspiracy to traffic in heroin. Because the trial court failed to conduct an adequate hearing pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), we reverse and remand for a new trial.

On the morning that jury selection was to begin, Nash’s court-appointed counsel informed the trial court that Nash wanted to discharge counsel and hire a private attorney. The following ensued:

THE COURT: All right. So Miss Fletcher indicates that you want to hire private counsel?
THE DEFENDANT: Yes, sir.
THE COURT: All right. I don’t understand. Tell me what it is that you want to do.
THE DEFENDANT: I need an attorney that’s gonna represent me that I think I can trust. I mean, everything is coming on. I didn’t know my court date. I got depositions that were done several months ago, I’m just getting them. I get all of the depositions of everybody testifying against me. I haven’t got everything that I need to prepare myself. You know, what’s going on?
Once I understand — I got everything I need for trial. They’re trying to give me 25 years. That’s the rest of my life. I need to know what’s going on.
My lawyer done told me different stories. Once they got video/they don’t got video. You know, it was a lot of confusion. I didn’t have enough time to even talk to my lawyer to know what’s going on.
Right now I’m dumbfounded because I didn’t know I’m going to trial. I get one trial date and I don’t get that trial date, and I don’t see my lawyer. I ain’t getting all the deposition[s] I need to know what’s going on in my case.
Then at the very last moment I hear stories that I beat somebody and force[d] them to go places, and that never happened — I don’t get no depositions of that. I’m getting stories [of] people coming to testify against me — I don’t get no depositions] of that.
Now I’m going to trial with an attorney and I’m facing 25 years, the rest of my life. It’s hard to even try to get stuff together, I ain’t got everything I need. I need somebody to represent me.
THE COURT: Miss Fletcher, are you prepared to go to trial today?
MS. FLETCHER: Yes, sir.
THE COURT: Anything else?
THE DEFENDANT: That’s it, sir.
THE COURT: Here are your rights, sir: You don’t have to go to trial with Miss Fletcher. You have the right to fire her. But I am finding that — she says she’s ready for trial, I believe she’s ready for trial.
What you said to me doesn’t indicate anything to rise to the level of incompetence or ineffective assistance of counsel, so I’m not going to appoint another lawyer to represent you and I’m not gonna continue the trial for you to go out and find somebody else to represent you.
Do you want to proceed with Miss Fletcher today or do you want to fire her?
THE DEFENDANT: I want to fire her.
THE COURT: So you’re gonna go to trial yourself?
THE DEFENDANT: No, sir.
THE COURT: You are gonna go to trial. You’re going to trial today, sir. You’re up for trial. You’re going to trial. So do you still want to fire Miss Fletcher?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. You understand that by representing yourself you would not have an attorney representing you in this trial, do you understand that?
THE DEFENDANT: No, sir.
THE COURT: I just told you that.
THE DEFENDANT: I mean, if I can get another attorney, sir.
THE COURT: If you can get an attorney in the next five minutes, go for it. You’re set for trial. I’m not granting a continuance for you to go out and try to find another counsel.
This case was set for trial, the State said they were ready for trial, Miss Fletcher said she was ready for trial. You’re going to trial.
THE DEFENDANT: So you won’t give me time to get an attorney?
THE COURT: No, sir. Today is your trial date.
THE DEFENDANT: I wasn’t given a date. I didn’t know I was going to trial today. My lawyer didn’t tell me that I was going to trial today.
THE COURT: I don’t believe that, sir. THE DEFENDANT: Sir?
THE COURT: I don’t believe you. So my question is to you, Mr. Nash: Do you want to fire Miss Fletcher and go to trial representing yourself, pro se?
THE DEFENDANT: No, sir.

Prior to voir dire, Nash’s lawyer informed the trial court that Nash told her she was fired, and that Nash was disagreeing with her unwillingness to call any other witnesses. The court told Nash that he had to proceed with counsel or represent himself. During the trial Nash’s lawyer noted several times that she was unable to get any input from Nash.

Under Nelson, when a defendant seeks to discharge his court-appointed counsel before trial, the trial court must ascertain whether the defendant is unequivocally requesting counsel’s discharge and, if so, the reason for the request. Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004).

If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.

Nelson, 274 So.2d at 258-59 (emphasis added).

Here, Nash unequivocally requested his counsel’s discharge and complained that he was unaware of his trial date. The trial court made no inquiry of Nash’s counsel other than asking whether she was ready for trial. “Without such an inquiry, the court could not, and did not, make the findings on the record which Nelson mandates.” Burgos v. State, 667 So.2d 1030, 1032 (Fla. 2d DCA 1996); see Ewing v. State, 996 So.2d 871, 872 (Fla. 1st DCA 2008) (“When Appellant raised specific complaints regarding his counsel’s performance, the court was obligated to inquire of counsel regarding the complaints.”).

Moreover, given that Nash and his counsel continued to have irreconcilable differences during the trial, we do not find that the error was harmless. See Moultrie v. State, 679 So.2d 25, 26 (Fla. 4th DCA 1996) (finding any error in failing to conduct a proper Nelson inquiry to be harmless given defendant’s overwhelming evidence of guilt and lack of evidence of irreconcilable differences). Accordingly, we reverse and remand for a new trial. Our disposition on this issue renders Nash’s remaining two issues moot.

Reversed and remanded.

CRENSHAW, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

Recently, this court has had a resurgence of criminal appeals in which defendants challenge the adequacy of the trial court’s Nelson hearing. This procedural error is treated as a structural or per se error that requires a new trial even when the trial court has made a good faith effort to accommodate the defendant but has failed to address all of the requirements of Nelson. This regrettably is such a case.

In the mid-1990s, this court encouraged the circuit court conference to create a section in the criminal bench book addressing Nelson and Faretta hearings. See Gillyard v. State, 704 So.2d 165, 167-69 (Fla. 2d DCA 1997) (Blue, Acting C.J., concurring) (suggesting questions for trial courts to ask defendants during a Faretta hearing); Jones v. State, 658 So.2d 122, 126-29 (Fla. 2d DCA 1995) (Altenbernd, J., concurring) (containing a plausible outline to assist trial courts with complying with Nelson and Faretta). The 2008 Criminal Bench Book contained a section on Faretta hearings, but I am unaware of any current outline to assist judges with Nelson hearings. Given that the circumstances of the typical Nelson hearing are often frustrating even for the most patient and experienced trial judge, I continue to believe that a bench book colloquy would help prevent new trials.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Todd MAYES, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2078.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2011.
    Todd Mayes, pro se.
   SILBERMAN, Judge.

Todd Mayes appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mayes raised twelve grounds and two supplemental grounds regarding his convictions and sentences for burglary of a dwelling with assault or battery, three counts of sexual battery (slight force), attempted felony murder, and false imprisonment. We affirm without comment the summary denial on all but one claim. As to claim twelve, we reverse and remand for the postconviction court to strike the claim with leave to amend within a reasonable time in accordance with Spera v. State, 971 So.2d 754 (Fla.2007).

Mayes contends that the postconviction court erred in summarily denying ground twelve without giving him an opportunity to amend. He alleged in ground twelve that counsel was ineffective in failing to impeach the victim with her deposition and statements to the police. Mayes alleged that counsel could have impeached the alleged victim “in over twenty-five different key statements given during the course of her testimony.” He further alleged that counsel could have shown on all the key issues that the victim changed her story more than once. The postconviction court determined that Mayes did not specifically allege “which statements counsel should have used for the purposes of impeachment.” The postconviction court denied the claim as conclusory, but the court did not have the benefit of Spera when it made this ruling.

Since Spera, this court has considered a claim of ineffective assistance based on counsel’s alleged failure to impeach a witness with her prior inconsistent statements in Mohr v. State, 17 So.3d 1249 (Fla. 2d DCA 2009). The postconviction court summarily denied the claim, and this court noted that “Mohr ‘did not allege on what portions of the testimony the witness[] could have been impeached or how the failure to do so affected his trial.’ ” Id. at 1249 (alteration in original) (quoting Keevis v. State, 908 So.2d 552, 554 (Fla. 2d DCA 2005)). This court agreed with the posteonviction court that the claim was facially insufficient but reversed and remanded for the postconviction court to strike the claim and give Mohr “leave to amend within a reasonable amount of time in accordance with Spera.” Id.; see also Delarosa v. State, 24 So.3d 741, 742 n. 1 (Fla. 2d DCA 2009) (noting “that even if this court had determined that ground (2)(a) was conclusory, we would be constrained to reverse and remand for the postconviction court to strike the claim with leave for Delarosa to amend within a reasonable period of time” under Spera); Monroe v. State, 13 So.3d 1083, 1084 (Fla. 2d DCA 2009) (reversing summary denial of “conclusory and facially insufficient” claim and remanding in accord with Spera); Baldwin v. State, 978 So.2d 257, 258 (Fla. 2d DCA 2008) (reversing summary denial of claim that counsel was ineffective in not objecting to the prosecutor’s closing argument in which the prosecutor allegedly vouched for the credibility of witnesses and remanding the “conclusory and facially insufficient” claim pursuant to Spera).

Here, the postconviction court denied the claim as “conclusory,” but the claim appears to be similar to the facially insufficient claim in Mohr. Potentially, a claim could be so conclusory and vague as to not warrant amendment, such as a bare assertion that “my counsel was ineffective for not objecting at trial.” However, Mayes’ claim specifically alleged that counsel was ineffective for failing to impeach the credibility of the victim with her deposition and prior statement to the police. Based on Mohr, we reverse the summary denial of ground twelve and remand for the postcon-viction court to strike the claim with leave to amend within a reasonable time in accordance with Spera.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and WALLACE, JJ., Concur.


author: BENTON, C.J.

text:
    Candelario CARRILLO, Appellant, v. CASE ENGINEERING, INC. and The Claims Center, Appellees.
    No. 1D09-6401.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.
    Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, and Susan W. Fox of Fox & Lo-quasto, P.A., Tampa, for Appellant.
    Tina R. Balentine of Ross Vecchio, P.A., Lakeland, for Appellees.
   BENTON, C.J.

Below the judge of compensation claims denied Candelario Carrillo’s claims for permanent, total disability benefits, attorney’s fees, interest, and costs; and ordered him to pay taxable costs to his former employer, Case Engineering, Inc., and to The Claims Center. We reverse the costs award as statutorily unauthorized; and reverse the order denying all of claimant’s attorney’s fees because, in defeating the affirmative defense contemplated by sections 440.09 and 440.105, the claimant prevailed on an issue of compensability.

Mr. Carrillo’s injury on a construction site on August 27, 1996, caused temporary, partial disability, and required medical care and treatment. The industrial accident resulted in temporary partial disability benefits, now long since paid in full, as well as in medical benefits that were still being provided when he filed the petition for additional benefits that began the present proceeding. The medical benefits are still payable because he prevailed in resisting the affirmative defense based on sections 440.09 and 440.105, “frequently referred to as the ‘fraud defense.’ ” Arreola v. Administrative Concepts, 17 So.3d 792, 793 (Fla. 1st DCA 2009).

After the final hearing, the judge of compensation claims denied permanent total disability benefits and all other affirmative relief, but also expressly rejected the fraud defense, ruling that “the testimony of the Claimant is evasive, unreliable and inconsistent but does not rise to the level of fraud.” In the same order, the judge of compensation claims required the claimant to reimburse the other parties’ costs. The present appeal follows subsequent denial of the claimant’s motion for rehearing, to vacate, and for attorney’s fees.

In his motion for rehearing, Mr. Carrillo argued that no statute authorized an award of costs against a claimant for mere failure to prevail on a petition for benefits. In their response, Case Engineering, Inc., and The Claims Center conceded the costs award in their favor was error. Even so, the judge of compensation claims denied the motion for rehearing in toto, thus letting the costs award stand. We now reverse the costs award, because the Workers’ Compensation Act in effect on the date of the accident did not authorize such an award. See Trent v. Charlotte Sanitation, 31 So.3d 938 (Fla. 1st DCA 2010) (reversing award of costs to prevailing employer and carrier in case involving an accident that took place before October 1, 2003); Kaloustian v. Tampa Armature Works, Inc., 5 So.3d 753, 754 (Fla. 1st DCA 2009) (concluding judge of compensation claims erred in applying after-enacted version of section 440.34(3) to pre-2003 accident as basis for awarding costs against claimant).

The judge of compensation claims also refused to award attorney’s fees to the claimant, even though (without identifying any subsection of 440.34) the petition for benefits had included a claim for attorney’s fees based on the statute. The parties’ prehearing stipulation specified section “440.34(3)(b)(c),” as the basis for the attorney’s fees claim, a stated basis that did not change when Case Engineering, Inc., and The Claims Center were granted leave to amend the prehearing stipulation to raise the defense under sections 440.09 and 440.105 that the claimant eventually defeated. The rehearing motion again urged entitlement on the basis of section 440.34(3)(c).

Asserting entitlement to attorney’s fees on the basis of section 440.34(3)(e) adequately preserved for appeal denial of the attorney’s fees claimant sought for successfully defending against the fraud defense predicated on sections 440.09 and 440.105. Case Engineering, Inc., and The Claims Center argue unpersuasively otherwise, citing discussion of section 440.34(2) and (3) in the concurring opinion in Chandler v. Centex Rooney Construction Co., 15 So.3d 837, 839 (Fla. 1st DCA 2009). But the petition described in the Chandler concurring opinion — which does not, after all, constitute binding authority, see Lendsay v. Cotton, 123 So.2d 745, 746 (Fla. 3d DCA 1960) (“A concurring opinion has no binding effect as precedent; such an opinion represents only the personal view of the concurring judge and does not constitute the law of the case.”) — differs from the petition for benefits in the present case, in that the petition here relied on section 440.34 without limitation, although the parties’ later stipulation concededly narrowed the statutory basis originally set forth.

Section 440.34(3)(c), Florida Statutes (1995), provides that “a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier or employer ... [i]n a proceeding in which a carrier or employer denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensa-bility.” Section 440.09(4)(a), Florida Statutes (2009), located within the “coverage” provisions of chapter 440, provides that “[a]n employee shall not be entitled to compensation or benefits under this chapter if any judge of compensation claims ... determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 or any criminal act for the purpose of securing workers’ compensation benefits.”

By order entered September 2, 2009, the judge of compensation claims granted a motion for leave to amend the pretrial stipulation to include the affirmative “defense of fraud per § 440.09(4), Fla. Stat.; § 440.105, Fla. Stat.; and § 440.09(a), Fla. Stat.” based on “discovery received after the filing of the pretrial stipulation.” When Case Engineering, Inc., and The Claims Center raised the defense based on sections 440.09 and 440.105, they placed coverage of the accident and resulting injuries — and thus compensability — at issue. If the opposing parties had succeeded in convincing the judge of compensation claims that Mr. Carrillo’s testimony did rise “to the level of fraud,” his entitlement to continued palliative medical treatment at the employer’s expense would have been extinguished in the present proceeding. The medical benefits were not being paid in “a different workers’ compensation case.” Paulson v. Dixie County Emergency Med. Servs., 936 So.2d 1109, 1111 (Fla. 1st DCA 2006).

The fact that the judge of compensation claims even addressed the fraud defense, after finding proof of the claim inadequate, attests to the independent significance a finding of fraud or misrepresentation would have had; and to the fact that the claimant’s successfully resisting the defense protected his right to ongoing medical benefits. Defeating an affirmative defense alleging that an employee has knowingly or intentionally committed a disentitling act may, as here, preserve the right to receive workers’ compensation benefits. See Chandler, 15 So.3d at 839 (Thomas, J., concurring) (“In my view, where a claimant properly preserves the issue and successfully defends against a misrepresentation allegation, and all other requisite factors are present, the claimant would be entitled to payment of an appropriate fee.”). Setting up the fraud defense under sections 440.09 and 440.105 put com-pensability at issue — and did so at a time that the claimant was actually receiving palliative medical treatment not otherwise at issue.

Accordingly, the award of costs to Case Engineering, Inc., and The Claims Center, along with the denial of attorney’s fees for preserving entitlement to ongoing medical benefits are reversed, and the case is remanded for further proceedings consistent with this opinion.

PADOVANO and CLARK, JJ., concur.


author: PER CURIAM.

text:
    Angela M. ROBERSON, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Arthur J. Gallagher Service, Co., Appellee.
    No. 1D10-2264.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.
    Angela M. Roberson, pro se, Appellant.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

Angela Roberson appeals a final order of the Unemployment Appeals Commission (“Commission”) deeming her ineligible for unemployment compensation. The order affirms an appeals referee’s determination that Ms. Roberson’s employer discharged her for misconduct connected with work, specifically, excessive unauthorized tardiness.

The record on appeal contains competent, substantial evidence to support the referee’s finding. See Grell v. Florida Unemployment Appeals Comm’n, 44 So.3d 201, 204 (Fla. 1st DCA 2010) (appeals referee’s factual findings must be supported by competent, substantial evidence). Ms. Roberson argues that the referee erred in finding her tardiness unauthorized because the employer permitted her to make up the time. We have reviewed all the hearing testimony and all documents entered into evidence, and we find nothing in the record sustaining Ms. Roberson’s argument. She testified she interpreted being allowed to make up the time to mean the tardiness was excused. But she also testified neither her supervisor nor her branch manager ever told her she was excused, and she presented no written communication from the employer to that effect or any company policy stating tardiness could be excused by making up the lost time.

Section 443.036(29), Florida Statutes (2009), defines misconduct sufficient to disqualify someone unemployment benefits.

(29) “Misconduct” includes, but is not limited to, the following, which may not be construed in pari materia with each other:
(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties or obligations to his or her employer.

Because the record supports the referee’s findings, and because excessive unauthorized tardiness falls within the definition of misconduct connected with work, see e.g., Velazquez v. Unemployment Appeals Commission, 916 So.2d 1004, 1005 (Fla. 4th DCA 2006), Sumlar v. Intermodal Services, Inc., 429 So.2d 364 (Fla. 1st DCA 1983), we affirm the Commission’s final order.

AFFIRMED.

WEBSTER, ROWE, and MARSTILLER, JJ., concur.


text:
    Kyle Ray HIMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3769.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.
    Frank J. Tassone, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant has appealed an order denying his first Florida Rule of Criminal Procedure 3.850 motion without consideration of his timely-filed amended motion. The appellant argued in his motion for rehearing that the amended motion had been timely filed and therefore the trial court should have considered and ruled on it in its final order. However, the trial court denied the motion for rehearing and did not rule on the amended motion. A defendant may amend a timely filed rule 3.850 motion as long as the amended motion is also within the two-year rule 3.850 filing window. See Harris v. State, 826 So.2d 340 (Fla. 2d DCA 2002); Beard v. State, 827 So.2d 1021 (Fla. 2d DCA 2002); Bradford v. State, 701 So.2d 899, 900 (Fla. 4th DCA 1997). The amended motion was filed within the two-year rule 3.850 filing window. The state has conceded that the trial court should have considered and ruled on the appellant’s amended motion in its order denying relief of the original postconviction motion. We therefore reverse and remand for the lower court to consider and rule on the appellant’s second, amended motion.

REVERSED AND REMANDED.

BENTON, C.J., DAVIS, and THOMAS, JJ., concur.


text:
    KGW SERVICES, INC., and Norguard Insurance Company, Appellants, v. Kenneth WILDER, Appellee.
    No. 1D10-4266.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.
    Robert L. Dietz of Zimmerman Kiser Sutcliffe, Orlando, for Appellants.
    Bill McCabe, Longwood, and Thomas A. Vaughan, II, and Carrie L. Hixson, Orlando, for Appellee.
   PER CURIAM.

Upon review of Appellants’ response to this court’s December 1, 2010, order to show cause, we conclude the order on appeal is a non-appealable, nonfinal order because it specifically reserves jurisdiction on ripe claims for adjustment of the average weekly wage and temporary disability benefits. See Fla. R.App. P. 9.180(b)(1); Lama v. Miami-Dade County, 36 So.3d 920 (Fla. 1st DCA 2010) (dismissing appeal from order reserving jurisdiction on ripe issue of medical benefits); Betancourt v. Sears Roebuck Co., 693 So.2d 680, 682 (Fla. 1st DCA 1997) (stating where the JCC reserves ruling on claim that is ripe for adjudication, order is not yet final or appealable). Accordingly, the appeal is DISMISSED for lack of jurisdiction.

BENTON, C.J., DAVIS, and THOMAS, JJ., concur.


text:
    Steven VICKERY, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, o/b/o Kevin VICKERY, Appellee.
    No. 1D10-4403.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.
    Losmin Jimenez of Three Rivers Legal Services, Inc., Lake City, for Appellant.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In accordance with appellee’s concession of error, the order denying appellant’s motion to vacate order determining arrears and arrears payment is reversed, and the matter is remanded for further proceedings.

KAHN, PADOVANO, and CLARK, JJ., concur.


text:
    Lee Allen DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5786.
    District Court of Appeal of Florida, First District.
    Feb. 15, 2011.
    Kelly H. Papa, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See § 38.10, Fla. Stat. (2010); Fla. R. Jud. Admin. 2.330(g).

WOLF, HAWKES, and WETHERELL, JJ., concur.


text:
    SOUTHWEST FLORIDA REGIONAL MEDICAL CENTER, INC., Appellant, v. STATE of Florida, DEPARTMENT OF FINANCIAL SERVICES and Amerisure Mutual Insurance Company, Appellees.
    No. 1D10-4966.
    District Court of Appeal of Florida, First District.
    Feb. 15, 2011.
    Stephen A. Ecenia and Richard M. Ellis of Rutledge, Ecenia & Purnell, P.A., Tallahassee, for Appellant.
    Mari H. McCully of FLDFS Legal Services/Division of Workers’ Compensation, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. See Friends of Perdido Bay, Inc. v. Florida Dep’t of Env’t Prot., 44 So.3d 650 (Fla. 1st DCA 2010).

WOLF, HAWKES and WETHERELL, JJ., concur.


author: MORRIS, Judge.

text:
    ESSEX INSURANCE COMPANY, a foreign corporation, Appellant, v. BIG TOP OF TAMPA, INC., Hillsborough County Sheriffs Office, and Patrick C. O’Fell, Appellees.
    No. 2D10-116.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 2011.

      Clinton D. Flagg and Susana C. Núñez of Law Office of Clinton D. Flagg, P.A., Miami, for Appellant.
    Gary L. Sanders and David A. Glenny of Bice Cole Law Firm, P.A., Ocala, for Ap-pellee Big Top of Tampa, Inc.
    No appearance for appellees Hillsbor-ough County Sheriffs Office and Patrick C. O’Fell.
   MORRIS, Judge.

Essex Insurance Company appeals a final judgment in a declaratory action filed by Essex against Patrick O’Fell, the Hills-borough County Sheriffs Office, and Big Top of Tampa, Inc. In the final declaratory judgment, the trial court ruled that Essex, as Big Top’s insurer, has a duty to defend and indemnify Big Top for O’Fell’s claims against Big Top. We reverse because the insurance policy at issue clearly excludes coverage for the claims in O’Fell’s complaint against Big Top.

I. Facts

Patrick O’Fell filed a complaint against Big Top and the Hillsborough County Sheriffs Office for negligence, negligent hiring, and negligent supervision and retention. The complaint alleged that O’Fell was a patron in a flea market operated by Big Top. He had an unlit tobacco product in his mouth when Reginald Davis — an off-duty sheriffs officer employed as a security guard by Big Top — ordered O’Fell to remove the item from his mouth. O’Fell refused, and Davis then “used excessive force in the unlawful detention and arrest of O’Fell in his position as a law enforcement officer.” O’Fell alleged that he suffered bodily injury as well as other injuries and losses.

Big Top has a commercial general liability insurance policy with Essex. After O’Fell filed his complaint against Big Top, Essex filed a complaint for declaratory judgment, seeking a judicial determination that Essex is not obligated to defend Big Top against the allegations in O’Fell’s complaint. Essex claimed that the actions alleged by O’Fell fall within the assault and battery exclusion of its policy, which provides as follows:

The coverage under this policy does not apply to any claim, suit, cost[,] or expense arising out of assault and/or battery, or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of any Insured, Insured’s employees, patrons[,] or any other person. Nor does this insurance apply with respect to any charges or allegations of negligent hiring, training, placement[,] or supervision. Furthermore, assault and/or battery includes “bodily injury” resulting from the use of reasonable force to protect persons or property. The sentence “This exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property” is deleted from the Commercial General Liability Coverage Form, Section I, Item 2., Exclusions, a.

Essex averred that because coverage does not exist for the allegations in O’Fell’s complaint, Essex has no duty to defend or indemnify Big Top.

Essex filed a motion for summary judgment, which the trial court denied. Essex’s complaint then proceeded to a nonju-ry trial. At the beginning of trial, Essex renewed its motion for summary judgment, asking the trial court to determine that it has no duty to defend Big Top based on the allegations in O’Fell’s complaint. Essex argued that there is no issue of fact to be determined at trial. Big Top contended that no assault or battery occurred because Davis was performing his duties and that the exclusion is ambiguous in that it is not clear whether it applies to the circumstances in this case. The trial court denied the renewed motion, stating that “there appears to be the slightest genuine issue of material fact.”

After the nonjury trial, the trial court entered the final judgment. In the judgment, the trial court stated that “the sole disputed issue tried before the [cjourt was the applicability and enforceability of an ‘Assault and/or Battery Exclusion’ contained in the policy.” The trial court ruled that “[t]he exclusion does not apply to the circumstances of the incident described by” O’Fell’s complaint because the arrest of “O’Fell was lawful and did not constitute an assault and battery within the meaning of the policy exclusion.” The trial court also ruled that the exclusion is ambiguous because the “clause in the exclusion providing that assault and battery includes ‘bodily injury’ resulting from the use of reasonable force to protect persons or property is ... susceptible to more than one possible interpretation”; the court therefore construed the exclusion against Essex as drafter of the policy. Based on these rulings, the trial court concluded that Essex has a duty to defend Big Top and that Essex must indemnify Big Top up to the limit stated in the policy.

II. Analysis

On appeal, Essex first argues that the question of whether Essex has the duty to defend Big Top under its policy depends on whether the factual allegations of the complaint bring the case within the coverage of the policy. “[A]n insurer’s obligation to defend is determined solely by the claimant’s complaint if suit has been filed.” Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5, 10 (Fla.2004). A liability insurer has no duty to defend a suit where the complaint on its face alleges facts which fail to bring the case within the coverage of the policy. Auto-Owners Ins. Co. v. Marvin Dev. Corp., 805 So.2d 888, 891 (Fla. 2d DCA 2001). The proper focus is on the factual allegations in the complaint. See Nat’l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533, 536 (Fla.1977) (“The allegations of the complaint govern the duty of the insurer to defend.”); State Farm Fire & Cas. Co. v. Edgecumbe, 471 So.2d 209, 210 (Fla. 1st DCA 1985) (holding that trial court erred in considering evidence on the issue because the allegations of complaint are controlling). We review de novo the trial court’s legal determination concerning Essex’s duty to defend and indemnify under the terms of the policy. See Transom. Ins. Co. v. Jim Black & Assocs., Inc., 888 So.2d 671, 674 (Fla. 2d DCA 2004).

Although couched in terms of negligence, O’Fell’s complaint alleges that Davis used excessive force while arresting him and that such force caused bodily injury to O’Fell. “If excessive force is used in an arrest, the ordinarily protected use of force by a police officer is transformed into a battery.” City of Miami v. Sanders, 672 So.2d 46, 47 (Fla. 3d DCA 1996). “[I]t is not possible to have a cause of action for ‘negligent’ use of excessive force because there is no such thing as the ‘negligent’ commission of [an] ‘intentional’ tort,” such as battery. Id. at 48. Therefore, O’Fell’s complaint alleges a battery, which brings the facts of the case within the assault and battery exclusion.

Policy provisions that exclude coverage for claims based on an assault or battery have been extended to exclude coverage for claims of negligence which arise out of the alleged assault or battery. See Perrine Food Retailers, Inc. v. Odyssey Re (London) Ltd., 721 So.2d 402, 404 (Fla. 3d DCA 1998); Miami Beach Entm’t, Inc. v. First Oak Brook Corp. Syndicate, 682 So.2d 161, 162 (Fla. 3d DCA 1996); Britamco Underwriter’s, Inc. v. Zuma Corp., 576 So.2d 965, 965 (Fla. 5th DCA 1991). Here, all three of the claims of negligence against Big Top arise out of the alleged battery committed by Davis. More specifically, the policy provision at issue here expressly excludes claims “arising out of ... any act or omission in connection with the prevention or suppression of such [assault or battery], whether caused by ... any Insured, Insured’s employees, patrons[,] or any other person” as well as “any charges or allegations of negligent hiring, training, placement^] or supervision.” This language unambiguously encompasses O’Fell’s claims against Big Top; therefore, the exclusion applies, and coverage does not lie for O’Fell’s claims against Big Top. The trial court erred in concluding otherwise by going beyond the allegations in the complaint.

We recognize that the supreme court has held that factual determinations may be made in a declaratory judgment action where it is necessary to resolve issues of fact in order to determine whether coverage exists under an insurance policy. See Higgins, 894 So.2d at 9, 15. But here, there were no factual issues to determine because O’Fell’s complaint clearly alleged that a battery occurred. And the court’s decision in Higgins “should in no way be read as a rejection of the principle” that “an insurer’s obligation to defend is determined solely by the claimant’s complaint if suit has been filed.” Id. at 10.

We also point out that even if an evidentiary hearing was warranted, the trial court erred in its legal determination that coverage lies on the basis that Davis’s arrest of O’Fell was lawful. The conclusion that Davis’s arrest of O’Fell was lawful is not dispositive of the coverage issue. A police officer may be liable for the use of excessive force (i.e., battery) while effectuating a lawful arrest. See Sanders, 672 So.2d at 47.

Essex further argues on appeal that the trial court erred in ruling that the sentence in the exclusion regarding reasonable force was ambiguous. Because the trial court should have considered only the allegations in O’Fell’s complaint and because the complaint alleged excessive force, this sentence regarding reasonable force is not invoked. Nonetheless, we disagree with the trial court’s conclusion that this specific part of the provision is ambiguous. By its plain language, the sentence excludes coverage for bodily injury caused by an assault or battery that is defensible because it was necessary to protect persons or property. See Swire Pac. Holds., Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003) (“[Ijnsurance contracts must be construed in accordance with the plain language of the policy.”). At the conclusion of the trial, the trial court found that Davis’s actions did not constitute an assault or battery because his actions were “exactly within his job description.” We assume that in so finding, the trial court found that Davis’s actions were reasonable. But as we concluded, the policy plainly and clearly excludes coverage even where reasonable force has been used to protect persons or property.

Because Essex has no duty to defend Big Top in O’Fell’s action against Big Top, Essex has no corresponding duty to indemnify. See WellCare of Fla., Inc. v. Am. Int’l Specialty Lines Ins. Co., 16 So.3d 904, 906 (Fla. 2d DCA 2009) (“[T]he duty to indemnify is narrower than the duty to defend and thus cannot exist if there is no duty to defend.”). We also point out that the trial court’s ruling that Essex must indemnify Big Top for O’Fell’s claims against Big Top is inconsistent with its ruling that no battery occurred. Essex would be obligated to indemnify Big Top only if O’Fell prevails, and in order to prevail, O’Fell has to prove that a battery occurred. And, as stated above, the occurrence of a battery takes the facts out of the coverage of the policy.

III. Conclusion

For the reasons explained above, O’Fell’s complaint alleges facts that fail to bring the case within the coverage of the policy. The trial court therefore erred in ruling that Essex is obligated to defend and indemnify Big Top. Accordingly, we reverse the final declaratory judgment and remand for entry of a judgment that is consistent with this opinion.

Reversed and remanded.

WALLACE and LaROSE, JJ., Concur.

      . The nonjury trial was held before Judge Frank Gomez, but the final judgment was entered by Judge Martha J. Cook.


author: LEWIS, J.

text:
    Cindy L. SOREL, n/k/a Cindy L. Ebner, Appellant, v. Troy Charles KOONCE and Comcast of Greater Florida/Georgia, Inc., Appellees.
    No. 1D09-2525.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2011.

      J. Nickolas Alexander, Jr., Orange Park, for Appellant.
    Robert B. George and Christian P. George of Liles, Gavin, Costantino, George & Dearing, P. A., Jacksonville, for Appel-lees.
   LEWIS, J.

ON MOTION FOR REHEARING AND CLARIFICATION.

We deny Appellees’ motion for rehearing, grant Appellees’ motion for clarification in part, and deny Appellees’ motion for clarification in part. For this reason, we withdraw our prior opinion and substitute the following in its place.

Cindy L. Sorel, n/k/a Cindy L. Ebner, (Appellant) appeals from a final judgment entered in accordance with a jury verdict in a negligence action that arose out of a rear-end collision. Appellant sued Troy Koonce and 'Comcast of Greater Florida/Georgia, Inc. (Appellees) based on the alleged negligence of Koonce in driving a van owned by Comcast. The evidence showed that Koonce was the rear driver in a rear-end collision between Comcast’s van and Appellant’s car. Appellant argues that the trial court erred in failing to direct a verdict against Appellees based on the legal presumption that Koonce, as the rear driver, was the sole proximate cause of the collision. We agree. Accordingly, we reverse and remand for entry of a directed verdict in favor of Appellant in accordance with the presumption of negligence and for a new trial on the remaining issues. This disposition renders the remaining issue on appeal moot.

In reviewing the propriety of the trial court’s ruling on Appellant’s motion for directed, verdict, we view the evidence in the light most favorable to Appellees as the nonmoving parties. See Hunter v. Ward, 812 So.2d 601, 602 (Fla. 1st DCA 2002). When the accident occurred, Appellant was riding in the passenger’s seat of her car, and her husband was driving. They were second in line at a traffic light, waiting for a green arrow. The Comcast van was directly behind them. When the green arrow appeared, all three vehicles began to move forward, preparing to turn left. As the vehicles were beginning to move forward, Koonce, the driver of the Comcast van, glanced down at the clock on his radio. When he looked back up, he saw that Appellant’s car had either stopped or was in the process of stopping. In response, he slammed on his brakes, but he was unable to avoid colliding with Appellant’s car. Shortly after the collision, after the cars had moved through the intersection, Koonce looked to his left and saw a vehicle traveling north.

Appellant, her husband, and her son testified that this vehicle had run the red light, causing Appellant’s husband to try to stop the car. A document from Koonce’s employee file at Comcast confirmed that another vehicle had run the red light and that this event contributed to causing the collision. Some of the testimony indicated that Appellant’s car had stopped when it was struck from behind, while other testimony suggested that it had not completed the stop before being hit.

After all of the testimony from the witnesses who were involved in the collision was entered into evidence, Appellant moved for a directed verdict on the issue of negligence, arguing that Appellees could not overcome the presumption of negligence that attaches to the rear driver in a rear-end collision. The trial court denied this motion, and the jury ultimately returned a complete defense verdict. Thereafter, Appellant filed a motion for a new trial, arguing, among other things, that the trial court erred in failing to direct a verdict against Appellees on the issue of negligence.

We review the denial of a motion for directed verdict de novo. Harris v. Soha, 15 So.3d 767, 769 (Fla. 1st DCA 2009). Traditionally, a cause of action for negligence has been divided into four elements: (1) a legal duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; (3) an injury to the plaintiff that was legally caused by the defendant’s breach; and (4) damages as a result of the injury. Meyers v. City of Jacksonville, 754 So.2d 198, 202 (Fla. 1st DCA 2000) (quoting Paterson v. Deeb, 472 So.2d 1210, 1214 (Fla. 1st DCA 1985)). Although none of these elements alone is called “negligence,” case law has identified a rebuttable “presumption of negligence” in favor of the front driver in a rear-end collision. See Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 574-76 (Fla.2001). This presumption “bears only upon the causal negligence of the rear driver,” and requires a directed verdict reflecting that the rear driver’s actions are the sole proximate cause of the collision and any injuries that result from the collision. See id. at 573-75.

To rebut the presumption of negligence, the rear driver must “come forward with evidence that ‘fairly and reasonably tends to show’ that the presumption of negligence is misplaced.” Id. (quoting Guile v. Boggs, 174 So.2d 26, 28-29 (Fla. 1965)). If the rear driver fails to do so, then a directed verdict should be entered in favor of the lead driver in accordance with the presumption. See Hunter v. Ward, 812 So.2d 601, 603-04 (Fla. 1st DCA 2002). Evidence that the lead driver made a sudden stop is not sufficient in itself to rebut the presumption. Clampitt, 786 So.2d at 575. However, evidence that the lead driver suddenly stopped “at a time and place where it could not reasonably be expected by the following driver,” is sufficient to rebut the presumption. Id. at 574 (quoting Pierce v. Progressive Am. Ins. Co., 582 So.2d 712, 714 (Fla. 5th DCA 1991)). Thus, the specific issue in this case is whether the evidence, viewed in the light most favorable to Appellees, shows that there was a question of fact as to whether Koonce should have reasonably expected Appellant’s stop.

Tocher v. Asmus, 743 So.2d 157, 158 (Fla. 3d DCA 1999), is quite similar to the instant case on this issue. In Tacher, the court affirmed the directed verdict in favor of the lead and middle drivers in a three-car collision at a busy intersection where the evidence showed that all three drivers began to move forward at a green light, the lead driver abruptly stopped, and the rear driver collided with the middle driver, causing the middle driver to hit the lead driver. 743 So.2d at 158. The Tacher court “concludefd] that a sudden stop by a preceding driver or drivers approaching or going through a busy intersection should be reasonably expected so as to impose a duty on the drivers which follow them to operate them vehicles at a safe distance.” 743 So.2d at 158. The Tacher court further explained its reasoning by noting that “[i]t is not at all unusual for vehicles preceding through busy intersections, for example, to have to suddenly brake for pedestrians, emergency vehicles or other drivers running a red traffic light from a cross-street.” Id.

The Florida Supreme Court distinguished Tacher in Eppler v. Tarmac America, Inc., 752 So.2d 592 (Fla.2000). In Eppler, the middle driver in a three-car collision sued the owner of the truck driven by the rear driver. Id. The middle driver testified that she was struck by the truck before she started moving forward at the traffic light. Id. In contrast, the rear driver testified that all the vehicles had begun to move and that the middle driver “suddenly — without warning and for no reason — slammed on her brakes.” Id. Based on these facts, the Florida Supreme Court held that the presumption of negligence on the part of the rear driver had been rebutted, as “an abrupt and arbitrary stop in such a situation is not reasonably expected” and is, “[i]n fact, ... a classic surprise.” Id. The Eppler court concluded that Tacher was distinguishable based on the testimony in Eppler that the stop was “for no reason.” 752 So.2d at 595. The Eppler court emphasized that “[a]brupt and arbitrary braking in bumper-to-bumper, accelerating traffic is an irresponsible and dangerous act that invites a collision” and that “[c]ases involving allegations of such an act are properly submitted to the jury.” Id. at 595-96.

Here, all of the testimony concerning the accident consistently showed that as Appellant’s car began to turn on a green arrow, another car ran the red light, causing the driver of Appellant’s car to either stop or slow down substantially. Thus, the stop or deceleration was not arbitrary or irresponsible as in Eppler; rather, it was an appropriate response to activity on the road, which Koonce should have reasonably expected. As noted in Tacher, it is not unusual for cars to stop abruptly at an intersection for a variety of reasons, including the fact that another vehicle has run a red light. 743 So.2d at 158. Although there was no evidence in the instant case that the intersection was particularly busy as in Tacher, there was specific evidence that another vehicle ran the red light. Based on these facts, we conclude the trial court should have directed a verdict for Appellant on the issue of negligence in accordance with Tacher and Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 574-76 (Fla.2001), where the Florida Supreme Court recognized that the law requires all drivers to remain alert and to maintain a safe following distance when driving behind another vehicle.

Appellees argue that the testimony indicating that Appellant’s car merely slowed down as opposed to stopping created an issue of fact as to whether the driver properly activated the brake lights to give Koonce adequate notice of the stop. When Koonce testified about what he saw as the rear driver, he stated that after he glanced down at the radio, he looked up and saw that Appellant’s car was stopping, prompting him to slam on his brakes. Nothing in Koonce’s testimony or anyone else’s gives rise to a reasonable inference that the driver of Appellant’s car acted negligently with respect to the brake lights so as to relieve Appellees of the presumption. Based on the evidence, the driver of Appellant’s car either slowed down by releasing the accelerator or stopped by hitting the brakes. If the driver simply slowed down without activating his brake lights, then there was no sudden stop; if he applied his brakes, then there is nothing in the record to suggest that the lights did not activate. More importantly, under either scenario, Koonce’s testimony shows that he knew the driver of Appellant’s car was stopping as soon as he looked ahead after taking his eyes off the road to look at his radio. Therefore, Appellees have failed to point to any evidence that fairly and reasonably shows that the presumption of negligence is misplaced in this case. As a result, we reverse and remand for entry of a directed verdict in favor of Appellant in accordance with the presumption and for a new trial to determine whether and to what extent the collision was the proximate cause of Appellant’s injuries and what amount of damages, if any, should be awarded to Appellant.

REVERSED and REMANDED with instructions.

No additional motions for rehearing will be entertained. The Clerk is directed to issue the mandate forthwith.

KAHN and CLARK, JJ., concur.

      . The jury answered "No” when asked on the verdict form whether there was "negligence on the part of Defendants, Comcast of Greater Florida/Georgia, Inc. and Troy C. Koonce, which was a legal cause of injury to Plaintiff, Cindy Sorel Ebner.”

      . In some cases, the first two elements have been grouped together as "the issue of liability.” See, e.g., Westchester Exxon v. Valdes, 524 So.2d 452, 454 (Fla. 3d DCA 1988) (holding that "[t]he record here fails to establish the first two elements,” which the court identified as the duty of care and a breach of that duty, and, as a result, "a directed verdict ... on the issue of liability” was warranted). Similarly, the last two elements are sometimes stated as one. See, e.g., Beltran v. Rodriguez, 36 So.3d 725, 727 (Fla. 3d DCA 2010) (identifying three elements of negligence and identifying the third as requiring proof that “the plaintiff sustained damage that was proximately caused by the defendant's breach”); Valdes, 524 So.2d at 454.


text:
    Herman COURAGE, Appellant, v. STATE of Florida DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT, on behalf of Yolette BONANE, Appellee.
    No. 4D09-1356.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.
    Herman Courage, Lake Worth, pro se.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Miley v. Dep’t of Revenue ex rel Barker, 23 So.3d 1284 (Fla. 4th DCA 2010).

GROSS, C.J., STEVENSON and GERBER, JJ., concur.


text:
    LIGGETT GROUP LLC, Appellant, v. Carmela A. FERLANTI, as Personal Representative of the Estate and Survivors of Joseph Ferlanti, Appellee.
    No. 4D09-1392.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.

      Karen H. Curtis of Clarke Silverglate & Campbell, P.A., Miami, and Leonard A. Feiwus and Kelly A. Luther of Kasonwitz, Benson, Torres & Friedman LLP, Miami, for appellant.
    Angel M. Reyes and Daniel F. O’Shea of Reyes, O’Shea & Coloca, P.A., Coral Gables, and John Venable of Venable & Venable, P.A., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Carter v. Bromi & Williamson Tobacco Corp., 778 So.2d 932 (Fla. 2000).

GROSS, C.J., TAYLOR and HAZOURI, JJ., concur.


text:
    Tanya DHAR, Appellant, v. SAXON MORTGAGE SERVICES INC., Appellee.
    No. 4D09-3794.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.
    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellant.
    Jeffrey S. Lapin and N. Alejandra Ar-royave of Lapin & Leichtling, LLP, Coral Gables, for appellee.
   PER CURIAM.

Affirmed. See Tacher v. Helm Bank, 50 So.3d 1239 (Fla. 4th DCA 2011).

MAY, DAMOORGIAN and LEVINE, JJ., concur.


text:
    Javon BRUCE, Appellant, v. SENTINEL PROPERTY MANAGEMENT, LLC, Grubb & Ellis Co.; and, Prospect Park Realty, LLC, Appellees.
    No. 4D09-3047.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.
    Marlene S. Reiss of the Law Offices of Marlene S. Reiss, Esq., P.A., Miami, for appellant.
    Nancy C. Ciampa of Carlton Fields, P.A., Miami, and Andrew D. Manko of Carlton Fields, P.A., Tallahassee, for ap-pellee, Prospect Park Realty, LLC.
    Michael H. Galex of Walton Lantaff Schroder & Carson, LLP, Miami, for ap-pellee, Grubb & Ellis Co.
   PER CURIAM.

Affirmed. See Morales v. Weil, 44 So.Sd 173 (Fla. 4th DCA 2010).

MAY, DAMOORGIAN and LEVINE, JJ., concur.


author: VAN NORTWICK, J.

text:
    Thomas BONGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4789.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2011.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Thomas Bonge seeks reversal of his judgment of conviction and sentence for battery, arguing that the trial court reversibly erred in denying his motion to dismiss. We agree. Given the facts admitted by the State in its traverse, there are no material facts in dispute and under the undisputed facts the State could not establish a prima facie case against Bonge for the offense of battery. Accordingly, the trial court erred in denying Bonge’s motion to dismiss and we reverse.

Bonge was charged by information with battery on a person 65 years of age or older, contrary to section 784.08(2)(c), Florida Statutes. This offense incorporates the elements of the offense of battery as contained in section 784.03. The stated victim of the alleged battery was Bonge’s 94 year-old mother, who was residing in a nursing home at the time of the alleged offense. The charge was occasioned by Bonge’s removal of his mother from the nursing home to take her to a hospital emergency room. Bonge filed a sworn motion to dismiss the information pursuant to rule 3.190(c)(4), Florida Rules of Criminal Procedure. In his motion to dismiss, he made the following factual assertions:

1. Mr. Bonge is charged with battery on Marie Andree, a person 65 years of age or older, on February 16, 2009, in violation of section 784.08(2)(c), Fla. Stat.
2. Marie Andree is Defendant’s mother.
4. At the time of the alleged crime, Marie Andree was 94 years old.
7. Since several years prior to the alleged crime, Defendant has been Ms. Andree’s primary caretaker, and when she has not been hospitalized, she has lived with him.
8. At the time of the alleged crime, Marie Andree was a patient at Heritage Health Care, a rehabilitation hospital and nursing home, ...
10.At the time of the alleged crime, Defendant took his mother in her wheel chair to a Heritage exit door where his car was parked.
11. At trial, Lovey Harris, a Heritage employee, would testify that at the time of the crime, Defendant parked Ms. An-dree’s wheelchair at the exit and told her “let’s go.” (Harris Tr. 6). Ms. An-dree said “it’s cold outside, I don’t want to go, it’s cold outside.” (Harris Tr. 6). Ms. Andree said this when Defendant first parked the wheelchair and this was the only time she spoke. (Harris Tr. 11). Defendant “grabbed her by her left arm and yanked her up out of the chair, and she was — she wasn’t saying anything at this time, and from looking at her, she was getting — I guess her legs were weak or whatever, and he was still trying to pull her out of the door. So he got her under the arms and he pulled her on out of the door, and her legs were — she didn’t have on any shoes. She had on socks. And her legs — her feet were dragging on the ground.” (Harris Tr. 6-7). A Heritage staff person held the door for Defendant while he took his mother out. (Harris Tr. 9-10). Ms. Harris checked to make sure Defendant had signed his mother out, and he had. (Harris Tr. 7). (Citations are to the transcript of the taped statement Ms. Harris gave to law enforcement).
12. Defendant’s purpose in touching his mother while moving her from her wheel chair to the car, was to help her get to the car without falling, in order to take her to the hospital.
13. Once he got his mother to the car, Defendant took her to the Tallahassee Memorial Regional Medical Center emergency room.
15. At the February 27, 2009, hearing, the State took the position, upheld by the Court, that Ms. Andree is not competent to testify. The State’s position was based in part on Ms. Andree’s memory gaps demonstrated in her response to questions at the hearing.

In its traverse to the motion to dismiss, the State admitted to all of the facts set forth in the paragraphs quoted above. With respect to paragraph 12, the State admitted the facts claimed therein and further added that the “victim protested being removed from the facility.” Further, in its traverse the State asserted that Bonge’s mother was incompetent at the time of the offense. After the trial court denied the motion to dismiss, Bonge pled guilty to the lesser offense of battery while reserving the right to appeal the denial of his motion to dismiss.

The purpose of a motion to dismiss an information pursuant to rule 3.190(c)(4) is to “ascertain whether the undisputed facts which the State will rely on to prove its case, establish a prima facie case, as a matter of law, so as to permit a jury to determine the defendant guilty of the crime charged.” Lowe v. State, 40 So.3d 789, 791 (Fla. 5th DCA 2010), quoting State v. Walthowr, 876 So.2d 594, 595 (Fla. 5th DCA 2004). Because this appeal raises a question of law, the standard of review is de novo. State v. ShoU, 18 So.3d 1158, 1160 (Fla. 1st DCA 2009). Based upon the facts admitted in the traverse, the State could not establish a prima facie case for the offense of battery. Section 784.08, which proscribes battery on a person 65 years of age or older, incorporates the definition of battery contained in section 784.03. Section 784.03(1)(a) defines battery as occurring when a person actually and intentionally touches or strikes another person against the will of the other or intentionally causes bodily harm to another person. Intent is an element of battery. Beard v. State, 842 So.2d 174, 176 (Fla. 2d DCA 2003). The intent to commit a battery is determined by the circumstances surrounding the touching or the striking of the victim. Id.; S.D. v. State, 882 So.2d 447, 448 (Fla. 4th DCA 2004). Given the specific facts of this case, which were admitted by the State below, the State could not establish that Bonge intended to touch his infirm and elderly mother against her will when he lifted her from her wheelchair and placed her in his car for transport to a local emergency room.

The order denying dismissal of the information is REVERSED, appellant’s conviction is REVERSED, and his sentence is VACATED.

LEWIS and CLARK, JJ., concur.


text:
    William J. PETERS, husband, Appellant, v. Gerovani BLACKSHEAR, f/k/a Gerovani Peters, Wife, Appellee.
    No. 1D09-5413.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2011.

      Corrine A. Bylund, Jacksonville, for Appellant.
    No appearance of counsel for Appellee.
   PER CURIAM.

William J. Peters, the former husband, appeals those portions of the final judgment dissolving the parties’ 16-year marriage in which the trial court imputed income to him; awarded permanent, periodic alimony and attorney’s fees and costs to Gerovani Blackshear, the former wife; and ordered the husband to maintain a life insurance policy in the amount of $400,000.00 to secure the alimony and child support awards. Finding record support and no abuse of discretion in the imputation of income and alimony award, we affirm these rulings. Schmachtenberg v. Schmachtenberg, 34 So.3d 28, 36-37 (Fla. 3d DCA 2010) (stating the appellate court reviews the imputation of income for competent, substantial evidence); Schlagel v. Schlagel, 973 So.2d 672, 676 (Fla. 2d DCA 2008) (noting the decision to award permanent, periodic alimony is reviewed for an abuse of discretion).

Sections 61.08(3) & 61.13(l)(c), Florida Statutes (2009), allow the trial court to order the obligor to buy or maintain life insurance or otherwise protect the alimony and child support awards, respectively. Nevertheless, we vacate the requirement to maintain $360,000.00 in life insurance to secure alimony because the record reveals none of the “special circumstances” required by the case law. Mackoul v. Mackoul, 32 So.3d 741, 742 (Fla. 1st DCA 2010); Davidson v. Davidson, 882 So.2d 418, 421 (Fla. 4th DCA 2004). We reverse the requirement to maintain $40,000.00 to secure the husband’s $739.69 monthly child support obligation and remand because the amount bears no reasonable relationship to the amount to be paid to support the parties’ child, who will turn 18 in August 2011. Mackoul, 32 So.3d at 742 (“[T]he trial court may not require excessive security.”); Burnham v. Burnham, 884 So.2d 390, 392 (Fla. 2d DCA 2004) (“The amount of insurance must be related to the extent of the obligation being secured.”).

The final judgment is AFFIRMED in part, STRICKEN in part, and REVERSED in part and REMANDED for the trial court to designate an amount of life insurance appropriate to secure and protect the husband’s child support obligation.

WOLF, KAHN, and WEBSTER, JJ., concur.


text:
    D.W.G., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4547.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2011.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, D.W.G., appeals an order from the trial court, which departed from the Department of Juvenile Justice’s (DJJ) recommendation that D.W.G. be placed on probation, and instead committed D.W.G. to a moderate-risk commitment program. Because the trial court failed to engage in the analysis required by E.A.R. v. State, 4 So.3d 614 (Fla.2009), we reverse.

“In E.A.R. v. State, 4 So.3d 614, 638 (Fla.2009), the supreme court ‘announced a new, more rigorous analysis in which a trial court must engage before departing from DJJ’s recommendation.’ ”

T.M. v. State, 48 So.3d 1007, 1008 (Fla. 1st DCA 2010) (quoting M.J.S. v. State, 6 So.3d 1268, 1269 (Fla. 1st DCA 2009)). In order to depart, the trial court must explain why one restrictiveness level is more appropriate than another. E.A.R., 4 So.3d at 638. The trial court may do so by first “[a]rticulat[ing] an understanding of the respective characteristics of the opposing restrictiveness levels,” and “[t]hen logically and persuasively explain[ing] why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.” Id.

Here, the trial court failed to engage in the appropriate analysis set forth in E.A.R. to comply with the “highly specific statutory requirements.” T.M., 48 So.3d at 1009. As required by E.A.R., the court should have compared the relevant features of the various restrictiveness levels, “with a focus on the appropriateness of each setting as a tool for achieving the rehabilitative goal.” T.M., 48 So.3d at 1009. Accordingly, we reverse and remand to provide the trial court with an opportunity to enter an order fulfilling the requirements set forth in E.A.R., or, if it cannot do so, to impose DJJ’s recommendation. C.B. v. State, 16 So.3d 1049, 1051 (Fla. 1st DCA 2009).

LEWIS, CLARK, and ROWE, JJ., concur.


text:
    K.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-213.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.
    Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

K.M., a juvenile, appeals the trial court’s order withholding adjudication. We affirm but instruct the trial court to strike the $3 fee from the order.

Affirmed with instructions.


text:
    Sandy T. FOX, Appellant, v. In re Matter of Kevin MINCEY & Katina Royal, Appellee.
    No. 3D10-528.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.

      Sandy T. Fox, Aventura, for appellant.
    Sara Lawrence, for appellee/Father; Katina Royal, in proper person.
    Before GERSTEN, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

We affirm under an abuse of discretion standard of review. However, we, like the trial court, would be remiss if we did not commend Sandy T. Fox for his outstanding work as a guardian ad litem in this case.

Affirmed.


text:
    CITY OF SUNNY ISLES BEACH, Petitioner, v. PUBLIX SUPERMARKETS, INC., Respondent.
    No. 3D10-857.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.
    Hans Ottinot, City Attorney, and Fernando Amuehastegui, Assistant City Attorney; and Coffey Burlington, Kendall B. Coffey, Jeffrey B. Crockett, and David J. Zack, Miami, for petitioner.
    Greenberg Traurig and Elliot H. Scherker, Paul R. Lipton, Miami, Bridgid F. Cech Samóle, and Elaine D. Walter, for respondent.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   PER CURIAM.

The City of Sunny Isles Beach petitions this Court for a writ of certiorari quashing a per curiam reversal of the Eleventh Judicial Circuit Court, Appellate Division (“Circuit Court”). We grant the petition as an appellate court cannot grant certio-rari, thus quashing, an administrative decision, without providing reasons for so doing. Miami-Dade County v. Torbert, 39 So.3d 482 (Fla. 3d DCA 2010); State Dep’t of Highway Safety & Motor Vehicles v. Trauth, 937 So.2d 758 (Fla. 3d DCA 2006).

Accordingly, we grant the petition, quash the per curiam reversal issued below, and remand for the Circuit Court to issue a written opinion stating its reasons for granting certiorari.

Petition granted.


text:
    Alejandro VELAZQUEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D10-2921.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.

      Alejandro Velazquez, in proper person.
    Louis A. Gutierrez, Senior Attorney, for appellee, Florida Unemployment Appeals Commission.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

We dismiss this appeal as untimely. As in Etienne v. Simco Recycling Corp., 721 So.2d 399 (Fla. 3d DCA 1998), our dismissal is without prejudice. Alejandro Velazquez is free to ask the Unemployment Appeals Commission to vacate and re-enter the operative order. If the Commission cooperates, then Velazquez may timely appeal the re-entered order. If not, then he may appeal the Commission’s refusal to re-enter the order.

Appeal dismissed.


text:
    Jon A. COLLEDGE, Appellant, v. Tracey Lynn COLLEDGE, Appellee.
    No. 3D10-19.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.
    Adorno, Damas & Associates, and Kenneth M. Damas, Miami, for appellant.
    Edward M. Brennan, Tampa, for appel-lee.
    Before SUAREZ, CORTINAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, Inc., 377 So.2d 1150 (Fla. 1979).


text:
    Adalia PEREIRA, Appellant, v. MIAMI-DADE COUNTY, Appellee.
    No. 3D10-128.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.
    Teri Guttman Valdes, Coral Gables, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Lee Kraftchick, Assistant County Attorney, for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See § 112.534(1), Fla. Stat. (2009).


author: ALTENBERND, Judge.

text:
    SOUTH BAY LAKES HOMEOWNERS ASSOCIATION, INC., Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 2D10-148.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2011.
    Leslie M. Conklin, Clearwater, for Appellant.
    Forrest G. McSurdy of Law Office of David J. Stern, P.A., Plantation, for Appel-lee.
   ALTENBERND, Judge.

South Bay Lakes Homeowners Association, Inc., appeals an order denying its motion for attorney’s fees pursuant to section 57.105(1), Florida Statutes (2008). We conclude that the trial court abused its discretion in denying fees under the unusual circumstances of this case. Accordingly, we reverse and remand for an award of fees to be paid in equal amounts by Wells Fargo Bank, N.A., and its attorneys.

Kosta and Ljubica Jankovski obtained a loan, secured by a mortgage, to purchase a home in Hillsborough County in 2005. The documents in our record show the lender as Beazer Mortgage Corporation. Allegedly, the Jankovskis defaulted on the loan.

In March 2009, the Law Offices of David J. Stern, P.A., filed a mortgage foreclosure action on behalf of Wells Fargo, naming the Jankovskis and South Bay Lakes Homeowners Association as parties. The complaint alleged that Wells Fargo filed the action “by virtue of an assignment to be recorded.” As is common in recent foreclosure actions, the complaint contained a second count to enforce a lost, destroyed, or stolen promissory note.

The complaint itself does not contain a legal description of the property on which Wells Fargo sought to foreclose. It alleges a recorded mortgage on January 18, 2006, and a modification on July 13, 2006. The mortgage identified the relevant property as Lot 6, Block 7, Valhalla Phase 3-4. The modification changed the description to Lot 60, Block 2, South Bay Lakes, Unit # 2. The notice of lis pendens that Wells Fargo recorded when it commenced this action identified the property it sought to foreclose as the original description and not the modified description. The property described in the modification is within South Bay Lakes Homeowners Association. However, the property described in the lis pendens and the original mortgage is not within the association.

The Jankovskis did not file a formal answer. Instead, they submitted a letter claiming that they disputed the amount owed and were trying to resolve the matter with America’s Servicing Company.

South Bay Lakes Homeowners Association filed an answer disputing that Wells Fargo had standing to bring the action, raising other defenses, and pointing out the confusion associated with the legal description. It also served the attorneys for Wells Fargo with requests for admission, asking the bank to admit that it did not have an assignment of the mortgage in its possession or recorded in Hillsborough County. One of the requests for an admission asked Wells Fargo to admit that it had no documentary evidence to show that it was an equitable owner of the note and mortgage. Wells Fargo did not respond to the requests for admission.

In May 2009, South Bay Lakes Homeowners Association filed a motion for summary judgment based on the admissions. At the same time, the attorney for the association filed an affidavit explaining that he had searched the public records and had not found an assignment of the mortgage. He also explained that the description on the lis pendens was not the encumbered property. Finally, the association served, but did not file, a motion for attorney’s fees pursuant to section 57.105 in order to give the bank an opportunity to resolve the matter within the statutory twenty-one-day period. The bank took no action.

On July 29, 2009, the attorney for the association attended the hearing on its motion for summary judgment. Wells Fargo made no appearance. Based on the admissions and the affidavit, the trial court entered a final judgment dismissing the entire action without leave to amend.

Thereafter, the association filed its motion for attorney’s fees and scheduled a hearing for November 2009. Wells Fargo sent a local attorney, who had not reviewed the file, to the hearing. He had “no idea” whether the legal description in the complaint had been inaccurate. The trial court denied the motion for fees, reasoning that some lender was entitled to file an action to foreclose on the parcel described in the modification and owned by the Jankovskis and that the action was, therefore, not one entitling the association to attorney’s fees. The association has appealed that order.

The issue in this case is not whether the owners would have been entitled to attorney’s fees. Instead, the issue is the association’s entitlement to fees. It is noteworthy, however, that the owners were the prevailing party in this action by virtue of the efforts of the association’s attorney. By contract, the owners would have been entitled to recover fees in this case if the prevailing attorney had been their attorney.

In this case, it is undisputed that Wells Fargo filed a foreclosure action without an assignment or other legal basis to file the action. Nothing in the record suggests that it or its attorneys took any steps to confirm that Wells Fargo had the legal right to file this action. It has relied on the association’s attorney to perform the legal research and public records examination that its own attorney should have performed before it filed the action.

We emphasize that a failure to respond to a request for admissions is not automatically grounds for attorney’s fees. In this case, however, the bank never attempted to explain why it admitted that it lacked standing, and there is no reason to believe that it had standing to bring the lawsuit. The bank also never sought to be relieved from its admissions and did not seek rehearing of the judgment that the trial court entered at a hearing it declined to attend.

At oral argument, the bank’s attorney tried to justify this improper filing due to the vast volume of foreclosure cases in the judicial system. While this court is well aware of the volume of these cases, that circumstance is not a matter that relieves the bank and its attorneys of their obligation to file pleadings that are adequately supported by a reasonable investigation prior to suit. If anything, the volume of these cases and the obvious detrimental effect that such volume has upon the legal system should be a factor requiring attorneys who file the actions to engage in a higher degree of professionalism.

Section 57.105 entitles a party to attorney’s fees if the losing party, or the losing party’s attorney, knew or should have known that a claim was not supported by the material facts necessary to establish the claim when the party initially presented the claim to the court or at any time before trial. At a minimum, the association established a prima facie case that the bank or its attorneys knew or should have known that the bank had no standing to bring this lawsuit before the association served its motion for attorney’s fees. See, e.g., Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010) (“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.”); Bank of New York v. Williams, 979 So.2d 347, 348 (Fla. 1st DCA 2008) (awarding the defendant attorney’s fees after dismissing a residential foreclosure complaint because the mortgagor failed to prove it owned the note and mortgage). If the bank or its attorneys had any evidence to refute this claim, they did not present that evidence at the hearing on the motion for attorney’s fees. The undisputed facts at the hearing established that Wells Fargo was required to take a voluntary dismissal of this action or some other appropriate action during the allotted twenty-one days and that it had no right to compel the association to proceed to judgment on the motion for summary judgment.

Although the trial court has discretion in awarding fees under section 57.105, we conclude that the trial court abused its discretion when it declined to award fees in these circumstances.

Reversed and remanded.

DAVIS and VTLLANTI, JJ., Concur.

      . At oral argument, the bank’s attorney claimed for the first time that the association's attorney had not served the requests for admissions on the bank’s law firm and that the trial court had not properly served the judgment on the law firm. These unsworn allegations more than a year after the entry of the final judgment are outside the record and otherwise entirely improper.


text:
    Lenzy DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3283.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2011.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Lenzy Dixon, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonya Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Lenzy Dixon appeals his judgments and sentences for felon in possession of a firearm and sexual battery without violence. We affirm with some hesitation because it is clear that the statute of limitations had expired for the offense of sexual battery before this prosecution was commenced. Mr. Dixon entered into a negotiated plea while he had a pending motion to discharge his lawyer for failure to raise a statute of limitation defense. We cannot tell from this record whether there was a tactical reason not to raise this defense and accordingly affirm without prejudice to a motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.850.

Mr. Dixon was arrested on March 29, 2006, on the charge of felon in possession of a firearm. He had pawned a handgun and from his fingerprints on the pawn records, it was established that he had a prior felony.

While he was in jail on these charges, law enforcement somehow developed Mr. Dixon as a suspect for a rape that had occurred in Pinellas County in October 1995. His DNA matched evidence preserved from that sexual battery, and the victim positively identified Mr. Dixon as the rapist.

Mr. Dixon was charged with the firearms offense in early 2006 in CRC06-06722 and with sexual battery with force or violence in August 2006 in CRC06-16618. Questions arose concerning Mr. Dixon’s competence. He was declared incompetent to proceed. His competence was not restored until December 2008.

In March 2009, Mr. Dixon wrote a letter to the trial court complaining that his lawyer would not raise statute of limitations as a defense to the charge of sexual battery. Thereafter, on May 14, 2009, he filed a motion to discharge counsel for the same reason.

About two weeks later, while the motion to discharge was apparently pending, Mr. Dixon appeared before the trial court for an “off-calendar” hearing. The State and defense counsel had arranged an agreed disposition for both cases. Using a written negotiated plea form, they agreed that the sexual battery charge would be reduced to sexual battery without violence, a second-degree felony, and that Mr. Dixon would receive a sentence of 121.65 months’ incarceration, which was the minimum sentence under the 1995 guidelines. For the firearms offense, Mr. Dixon agreed to plead to the charged offense for a sentence of time served. Because of the competency issue, time served was 1057 days.

At the plea and sentencing hearing, the trial court conducted a normal plea colloquy. Mr. Dixon’s motion to discharge counsel and his concern about the statute of limitations were not mentioned by anyone. It is likely that the presiding judge was unaware of the motion to discharge that was pending in the court file.

Following the hearing, Mr. Dixon filed a pro se request to appeal his judgments and convictions, which has been treated as an appeal in both cases. Initially, influenced by the negotiated plea, his attorney filed an Anders brief, and the State concurred that no issue was arguable in the case. This court, however, was concerned with Mr. Dixon’s position on the statute of limitations and, thus, ordered supplemental briefing.

It now appears that, in charging Mr. Dixon, the prosecutors believed section 775.15(15)(a), Florida Statutes (2006) — which permits a prosecution for certain offenses within one year after the date on which the identity of the accused is established, or should have been established by the exercise of due diligence, through the analysis of DNA — authorized the prosecution of Mr. Dixon more than ten years after the charged offense. The problem, however, is that this statute had not been enacted when the statute of limitations for this sexual battery offense otherwise expired. The State now concedes that this action could have been dismissed and Mr. Dixon discharged of this crime if the statute of limitations had been raised by his attorney as Mr. Dixon requested. See generally Lawson v. State, 51 So.3d 1287 (Fla. 2d DCA 2011) (holding that subsections 775.15(15) & (16) did not apply where three-year statute of limitations expired on January 25, 2006, and thus prosecution was barred by the statute of limitations).

The State does not concede error in this case or agree that Mr. Dixon should be discharged of this offense. On the other hand, it has offered no ready explanation as to why he would knowingly plead to an offense that was barred by the statute of limitations. The State recognizes that nothing in the record establishes a knowing and intelligent waiver of Mr. Dixon’s right to raise this defense. See generally Tucker v. State, 459 So.2d 306, 309 (Fla. 1984) (holding defendant was not entitled to jury instructions on lesser-included offenses because his request did not constitute a waiver of the statute of limitations on those offenses; such a waiver must be “knowingly, intelligently and voluntarily made”).

Despite our concerns, we recognize that Mr. Dixon pleaded to this offense in exchange for a sentence of approximately ten years’ imprisonment. At the same time, he pleaded to being a felon in possession of a firearm and received time served. The firearms offense was governed by the Criminal Punishment Code and could have resulted in at least a fifteen-year-term of incarceration. From our record, we cannot rule out the possibility that Mr. Dixon could have been treated as a habitual offender for purposes of sentencing on the firearms offense. Accordingly, despite the seriousness of pleading to a sexual battery, we cannot eliminate the possibility that Mr. Dixon’s attorney was concerned that his client could receive an even longer sentence for the firearms offense if he successfully obtained a discharge of the sexual battery offense. See Moms v. State, 909 So.2d 428, 431-33 (Fla. 5th DCA 2005) (affirming denial of defendant’s motion to withdraw plea where court could not rule out strategic reasons why defense counsel may have chosen to waive statute of limitations defense in order to avoid a harsher sentence).

With this explanation, we affirm the judgments and sentences on appeal without prejudice to Mr. Dixon’s right to file a timely postconviction motion.

Affirmed.

WHATLEY and WALLACE, JJ., Concur.

      . He had actually served two separate terms of imprisonment, first for trafficking in stolen property in 1992 and then for a burglary and theft in 1996.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: KELLY, Judge.

text:
    Elijah HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2112.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2011.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

We affirm the order revoking Hayes’ probation and his sentence for failure to return hired or leased personal property or equipment. However, we remand for the entry of an amended cost order.

The trial court granted Hayes’ motion to correct sentencing error filed under Florida Rule of Criminal Procedure 3.800(b) and ordered that the public defender fee be reduced from $200 to $100. See § 938.29(l)(a), (5), Fla. Stat. (2008). However, the trial court failed to enter an amended cost order reflecting the reduced cost. See Owens v. State, 1 So.3d 405 (Fla. 2d DCA 2009) (remanding for the limited purpose of the entry of an amended cost order that reflected the correct cost amounts).

Affirmed; remanded with directions.

SILBERMAN and BLACK, JJ„ Concur.


author: CRENSHAW, Judge.

text:
    J.M., a child, Petitioner, v. Frank GARGETT, in his official capacity as Superintendent of the Manatee County Regional Juvenile Detention Center, Respondent.
    No. 2D10-5420.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 2011.
    Larry L. Eger, Public Defender, and Gino Lombardi, Assistant Public Defender, Bradenton, for Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Respondent.
   CRENSHAW, Judge.

J.M. filed a petition for writ of habeas corpus contending that his consecutive placements in secure detention for two separate violations of a juvenile probation order that were adjudicated in a single hearing are not authorized pursuant to section 985.037(2), Florida Statutes (2010). This claim is cognizable in a habeas proceeding. See S.P. v. State, 985 So.2d 651 (Fla. 5th DCA 2008). We denied the petition by order, and this opinion follows. In denying the petition, we certify conflict with M.P. v. State, 988 So.2d 1266 (Fla. 5th DCA 2008).

J.M. was placed on juvenile probation on October 13, 2010. On October 25, 2010, the circuit court filed the first, second, and third orders to show cause. In the first, J.M. was ordered to show cause why he should not be held in indirect criminal contempt for failing to follow the order of probation by violating curfew on October 15, 2010. The second order was directed to an October 16, 2010, violation of curfew, and the third was directed to an October 16, 2010, failure to obey household rules. At a November 8, 2010, hearing, J.M. pleaded guilty to all three charges. On that same date, the circuit court placed J.M. in secure detention for five days for the first offense of indirect criminal contempt. However, on November 10 the circuit court placed J.M. in fifteen days’ secure detention for the second offense. The second period of secure detention was not to commence until the first period had expired.

Section 985.037, governs direct and indirect contempt of court in juvenile justice cases. Subsections (1) and (2) read as follows:

(1) CONTEMPT OF COURT; LEGISLATIVE INTENT. — The court may punish any child for contempt for interfering with the court or with court administration, or for violating any provision of this chapter or order of the court relative thereto. It is the intent of the Legislature that the court restrict and limit the use of contempt powers with respect to commitment of a child to a secure facility. A child who commits direct contempt of court or indirect contempt of a valid court order may be taken into custody and ordered to serve an alternative sanction or placed in a secure facility, as authorized in this section, by order of the court.
(2) PLACEMENT IN A SECURE FACILITY. — A child may be placed in a secure facility for purposes of punishment for contempt of court if alternative sanctions are unavailable or inappropriate, or if the child has already been ordered to serve an alternative sanction but failed to comply with the sanction. A delinquent child who has been held in direct or indirect contempt may be placed in a secure detention facility not to exceed 5 days for a first offense and not to exceed 15 days for a second or subsequent offense.

J.M. contends, pursuant to the Fifth District’s decisions in M.P. and J.D. v. State, 954 So.2d 93 (Fla. 5th DCA 2007), that section 985.037(2) allows the circuit court only to impose a single placement in secure detention when a juvenile simultaneously pleads guilty to more than one count of indirect criminal contempt based on serial violations of a probation order. The Fifth District in M.P. relied on its holding in J.D. The facts of M.P. are almost identical to the facts in the present case. M.P. was charged with two counts of indirect criminal contempt which were based on violations of a probation order. 988 So.2d at 1266. M.P. did not dispute the violations, but contended that section 985.037(2) only authorized the imposition of a single five-day placement in secure detention. Id. at 1266-67. The circuit court, however, imposed five days’ secure detention with three days suspended followed by a consecutive term of fifteen days’ secure detention, all of which was suspended. Id. at 1266. The Fifth District reversed and remanded for correction of sentence holding that, pursuant to the statute, the circuit court could impose only a single term of five days’ secure detention. Id. at 1266-67. The court concluded that “[i]n the event that M.P. was restored to probation after her release from secure detention, any future violation would be considered a ‘second or subsequent offense’ and could subject her to a fifteen-day placement in secure detention.” Id. at 1267.

In reaching its decision, the M.P. court stated:

In J.D., we held that consecutive placements in secure detention for multiple violations of a single behavior order violated the statutory limitations set forth in section 985.037(2). J.D. made clear that multiple violations of a single order are treated differently than “multiple probation violations” as that term was defined in Williams v. State, 594 So.2d 273, 274 n. 3 (Fla.1992). In Williams, the supreme court defined “multiple probation violations” as “successive violations which follow the reinstatement or modification of probation rather than the violation of several conditions of a single probation order.” Id. That is not the situation here. In this case, we deal with several violations of a single probation order and not “multiple probation violations.” In the former situation, consecutive placements are not permitted for a first offense, while in the latter, such placements are authorized.

Id.

We disagree with the reasoning of the Fifth District in M.P. We agree with the reasoning of the First District in K.Q.S. v. State, 975 So.2d 536 (Fla. 1st DCA 2008), wherein the court stated:

Although section 985.037 limits a sentence for a second or subsequent offense to fifteen days, nothing in the statute states that multiple instances of direct contempt cannot be separately punished with consecutive sentences of fifteen days of confinement for each offense. In fact, the statute specifically states that a sentence of fifteen days may be imposed for a “second or subsequent” offense. We find that the plain meaning of the statute allows a trial court to impose a sentence of 15 days for each instance of contempt, consecutively if it so wishes.

Id. at 538. K.Q.S. was convicted of six counts of direct criminal contempt that were committed in the course of a profane tirade directed at the circuit court. However, section 985.037 does not distinguish between direct and indirect criminal contempt in regard to the punishment that the circuit court may impose, and we conclude that the First District’s analysis applies in the present case.

The Fifth District in M.P. analogized the violations of juvenile probation in that case to a revocation of probation proceeding in a criminal case. However, the proceeding in an alleged violation of criminal probation is generally initiated by the filing of an affidavit of violation of probation. See § 948.06(l)(d), Fla. Stat. (2010). It is not initiated by the filing of an order to show cause why the defendant should not be held in indirect criminal contempt. We do not agree with the Fifth District that the law regarding violations of criminal probation governs in this instance. Instead, we look to the law on indirect criminal contempt. We note that a trial court may, in a single proceeding, adjudicate a defendant guilty of multiple instances of indirect criminal contempt and may thereafter impose consecutive sentences for each conviction. See, e.g., Attwood v. State, 687 So.2d 271, 272 (Fla. 4th DCA 1997). We see nothing in section 985.037(2) that prohibits the circuit court from doing so in the present case. Accordingly, we deny the petition and certify conflict with the Fifth District’s opinion in M.P.

Petition denied.

KELLY and VILLANTI, JJ., Concur.


text:
    Tyrone Lee CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2479.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 2011.
    James Marion Moorman, Public Defender, and Bruce G. Howie, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appel-lee.
   CRENSHAW, Judge.

Tyrone Lee Carter appeals his judgments and sentences for second-degree murder with a firearm and two counts of attempted first-degree murder. Because we find the jury instruction for manslaughter by act, as a lesser included offense of second-degree murder, constituted fundamental error, we reverse Carter’s conviction for second-degree murder and remand for a new trial as to that count. We affirm the remaining judgments and sentences without comment.

Carter was charged with the second-degree murder of Carlis Callahan. The State alleged that on June 5, 2005, Carter entered Callahan’s residence and opened fire with an AK-47 rifle. The trial court gave the following standard jury instruction on manslaughter by act, as a lesser included offense of second-degree murder:

To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. Carlis Callahan is dead,
2. Tyrone Carter intentionally caused the death of Carlis Callahan.

(Emphasis added.)

Carter argues that the trial court fundamentally erred by instructing the jury that intent to kill is an element of manslaughter. We agree and conclude based on the facts of this case and the holding in State v. Montgomery, 39 So.3d 252 (Fla.2010), that Carter was “entitled to an accurate instruction on the lesser included offense of manslaughter.” Id. at 258.

Accordingly, we reverse Carter’s second-degree murder conviction and remand for a new trial as to that count. We affirm Carter’s remaining judgments and sentences.

Affirmed in part, reversed in part, and remanded.

WALLACE and KHOUZAM, JJ„ Concur.

      . We note that the instruction given in Carter’s case is no longer the standard jury instruction for manslaughter by act. The instruction was modified by the supreme court in December 2008 and eliminates the element of “intent to cause death,” replacing it with "an intent to commit an act which caused death.” See In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403, 403 (Fla.2008).

      . Here the jury was not given the option of finding manslaughter by culpable negligence. See Barros-Dias v. State, 41 So.3d 370 (Fla. 2d DCA 2010) (concluding when the jury was given the option of finding manslaughter by culpable negligence the instruction on manslaughter did not constitute fundamental error even though it erroneously treated intent to kill as an element of the offense).