author: PER CURIAM. ALTENBERND, Judge,

text:
    Jeremy HAYGOOD, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4769.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 2011.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Jeremy Haygood appeals his judgment of conviction for second-degree murder and his resulting sentence of life imprisonment. Relying in part on State v. Montgomery, 39 So.3d 252 (Fla.2010), he submits that the trial court committed fundamental error by delivering the then-standard jury instruction on manslaughter by act. Although Mr. Haygood’s argument is arguably supported by supreme court precedent, we adhere to the precedent of this district as established in Barros-Dias v. State, 41 So.3d 370 (Fla. 2d DCA 2010), and Nieves v. State, 22 So.3d 691 (Fla. 2d DCA 2009), and we accordingly affirm Mr. Haygood’s judgment of conviction. We certify the issue presented in this case as one of great public importance.

The evidence at trial showed that Mr. Haygood became angry at his girlfriend and head-butted, choked, and elbowed her. The impact to this woman’s head caused subdural bleeding, which in turn placed life-threatening pressure on her brain. She soon lost nearly all brain functioning and was removed from life support several hours later. In post-Miranda interviews with police officers, Mr. Haygood admitted his actions but said his girlfriend’s death was accidental.

At the conclusion of Mr. Haygood’s trial for second-degree murder, the trial court delivered the standard instructions on murder in the second degree and manslaughter. The written manslaughter instruction provided, in pertinent part, as follows:

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. [The victim] is dead.
2. Jeremy Haygood intentionally caused the death of [the victim]
OR
The death of [the victim] was caused by the culpable negligence of Jeremy Haygood.

The instruction went on to define culpable negligence.

In Montgomery, the Florida Supreme Court held that manslaughter by act does not require proof of an intent to kill. 39 So.3d at 255-56. Rather, it is the intent to commit the act that results in death which supports the offense of manslaughter by act. Id. at 256. The court further held that it was fundamental error to give the then-standard instruction on manslaughter by act where the defendant was convicted of second-degree murder, which is only one step removed from the necessary lesser-included offense of manslaughter. Id. at 259. The court reasoned that, by “im-posfing] upon the jury a requirement to find that Montgomery intended to kill [the victim,]” the erroneous instruction interfered with the jury’s pardon power. Id.

This district referred to this issue in a brief opinion in Nieves. 22 So.3d at 692. There, this court certified conflict with the first district’s holding in Montgomery v. State, - So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), that giving the manslaughter by act instruction constituted fundamental error. Id. The court went on to state that, “unlike Montgomery and Zeigler [v. State, 18 So.3d 1239, 1242 (Fla. 2d DCA 2009) ], the jury in Nieves’ case was also instructed on the lesser-included offense of manslaughter by culpable negligence.” Id.

This district and others have now followed the language from Nieves to conclude that giving the erroneous manslaughter by act instruction is not fundamental error where the jury is also instructed on manslaughter by culpable negligence. See, e.g., Barros-Dias, 41 So.3d at 372; Singh v. State, 36 So.3d 848, 851 (Fla. 4th DCA 2010); Salonko v. State, 42 So.3d 801, 802 (Fla. 1st DCA 2010). In reaching this conclusion, the district courts appear to have adopted reasoning that is inconsistent with the “pardon power” rationale on which Montgomery is partially founded. Specifically, Barros-Dias and Salonko are based on the conclusion that because the manslaughter by culpable negligence instruction — -but not the erroneous manslaughter by act instruction- — was given to the jury, the jury was not “directed” by any erroneous instruction to find the defendant guilty of a greater offense. See Salonko, 42 So.3d at 803 (“[T]he jury in the instant case was not directed to choose the greater offense simply because the lesser-included offense would have improperly required a more depraved level of intent.”).

As the supreme court has observed, however, the jury’s “pardon power” is its ability to convict a defendant of a lesser offense even though there is evidence supporting the greater one. Sanders v. State, 946 So.2d 953, 957-58 (Fla.2006). The supreme court explained this concept in Pena v. State, 901 So.2d 781, 787 (Fla.2005):

A jury must be given a fair opportunity to exercise its inherent “pardon” power by returning a verdict of guilty as to the next lower crime. If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.

In this case, Mr. Haygood was charged with and convicted of fatally beating his girlfriend. Arguably, the evidence presented at trial is inconsistent with a theory of manslaughter by culpable negligence. Additionally, as for manslaughter by act, the instruction as given was flawed. Thus, if the jury believed Mr. Haygood’s act was an intentional one but not that he possessed the intent to kill, then neither form of manslaughter provided a viable lesser offense of which the jury could find Mr. Haygood guilty. Although the evidence unquestionably supports the jury’s verdict finding Mr. Haygood committed second-degree murder, it is impossible to speculate what the jury would have found had it been properly instructed that manslaughter by act does not require the intent to kill. In this regard, giving the flawed manslaughter by act instruction appears to run afoul of principles which the supreme court has articulated in Pena, 901 So.2d at 787, and Montgomery, 39 So.3d at 257-59.

In sum, adhering to the decisional law of this district, we affirm Mr. Haygood’s judgment of conviction. However, we certify the following question to the Florida Supreme Court as one of great public importance:

IF A JURY RETURNS A VERDICT FINDING A DEFENDANT GUILTY OF SECOND-DEGREE MURDER IN A CASE WHERE THE EVIDENCE DOES NOT SUPPORT A THEORY OF CULPABLE NEGLIGENCE, DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY GIVING A FLAWED MANSLAUGHTER BY ACT INSTRUCTION WHEN IT ALSO GIVES AN INSTRUCTION ON MANSLAUGHTER BY CULPABLE NEGLIGENCE?

KELLY and BLACK, JJ., Concur.

ALTENBERND, J., Concurs specially in part and dissents in part with opinion.

ALTENBERND, Judge,

Specially concurring in part and dissenting in part.

I fully concur in the certified question and recognize that the court’s opinion is entirely consistent 'with the cited precedent. This is a case in which the evidence unquestionably supports the jury’s verdict finding that Mr. Haygood committed second-degree murder. At the same time, the evidence would also have permitted the jury to return a verdict of manslaughter by act if the jury had received the correct instruction. I am hard pressed to believe that any reasonable jury would have found that the evidence in this case supported a theory of manslaughter by culpable negligence.

In this context, I do not believe that the fundamental error identified in Montgomery is rendered harmless by the instruction on manslaughter by culpable negligence. It is useful to consider that a fundamental error must be harmful before it can be classified as fundamental. See Reed v. State, 887 So.2d 366, 870 (Fla.2002) (“By its very nature, fundamental error has to be considered harmful. If the error was not harmful, it would not meet our requirement for being fundamental.”). I simply fail to see the logic by which a fundamental error of this kind becomes harmless merely because a jury receives an alternative instruction that has little or no application to the evidence presented at trial. I am also not convinced that “pardon power” analysis is the best approach to this particular problem. I recognize that this panel lacks the power to reverse and remand for a new trial under existing precedent, but I believe the case law needs a tweaking to permit a new trial in this type of case in order to fully comply with the supreme court’s holding in Montgomery.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Steven RAMOS and Julie Andersen, on behalf of Gia Ramos, a minor, Appellants, v. Melanie COOMBS, M.D.; South Florida Pediatric Partners, L.L.C., a Florida Limited Liability Corporation; Nicole Mark, M.D., and Alan Furia, M.D., Appellees.
    No. 4D09-3123.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Lauri Waldman Ross and Theresa L. Girten of Ross & Girten, Miami, and Gary Alan Friedman of Friedman & Friedman, P.A., Coral Gables, for appellant Julie Andersen, on behalf of Gia Ramos.
    Jeffrey S. Badgley of the Badgley Law Group, Orlando, for appellees Melanie Coombs, M.D., and South Florida Pediatric Partners, L.L.C.
   PER CURIAM.

The appellants, the plaintiffs below, appeal an order granting a new trial as to the issues of causation and damages in a medical malpractice case.

With respect to that portion of the trial court’s order pertaining to damages, we relinquish jurisdiction and remand to the trial court for the purpose of compliance with Florida Rule of Civil Procedure 1.580(f), which provides as follows:

(f) Order Granting to Specify Grounds. All orders granting a new trial shall specify the specific grounds therefor. If such an order is appealed and does not state the specific grounds, the appellate court shall relinquish its jurisdiction to the trial court for entry of an order specifying the grounds for granting the new trial.

We conclude that the reasons offered by the trial court justifying its decision to grant a new trial as to all damage issues are insufficient in light of the rule’s requirement that the order “specify the specific grounds therefor.” See Prime Motor Inns, Inc. v. Wattman, 480 So.2d 88, 89 (Fla.1985). Additionally, the trial court shall determine whether the appellees, the defendants below, are entitled to a new trial in which all damage issues will be considered, or in which only the issue of future medical damages will be addressed. See ITT Hartford Ins. Co. v. Owens, 816 So.2d 572, 577-79 (Fla.2002).

The matter is thus remanded to the trial court for further proceedings in accordance with the above cited authorities. Upon completion of these further proceedings, either party may give notice to this court as to the necessity for a resumption of jurisdiction.

Remanded to the trial court for further proceedings consistent with this opinion.

POLEN, CIKLIN and LEVINE, JJ., concur.


text:
    Nicholas CIARLETTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-667.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Rehearing Denied March 25, 2011.
    Nicholas Ciarletta, Dania Beach, Pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We affirm the denial of appellant’s Rule 3.850 motion. The State, however, concedes that the judgment contains a scrivener’s error. We remand for entry of a corrected judgment which properly identifies the offense to which appellant pleaded.

STEVENSON, CIKLIN and LEVINE, JJ., concur.


author: WELLS, Judge.

text:
    Jorge Luis FERNANDEZ and Dina Isabel Pezo, Appellants, v. David COHN, Appellee.
    No. 3D09-3144.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.

      Coleman & Associates, Roderick F. Coleman and Cory S. Carano, Boca Raton, for appellants.
    Seipp & Flick and Douglas H. Stein, Miami, for appellee.
    Before WELLS, LAGOA and EMAS, JJ.
   WELLS, Judge.

Jorge Luis Fernandez, the plaintiff below, appeals from an order granting the defendant, David Cohn’s, motion to quash service of process and dismiss with prejudice. We reverse, finding that the trial court abused its discretion by failing to extend the time for service of process.

On March 10, 2005, Fernandez was involved in an automobile accident with a vehicle allegedly driven by Cohn. On February 25, 2009, two weeks before the statute of limitations was to run, Fernandez filed suit against Cohn and attempted to effectuate service of process on him.

After an initial unsuccessful attempt at serving Cohn at the address listed on the accident report (Cohn purportedly no longer lived there), Fernandez’ attorney hired a licensed private investigator to ascertain Cohn’s whereabouts. The investigator was not, however, able to locate Cohn although having (1) searched “all available public records Databases including the following: Drivers License, Liens & Judgments, Professional Licenses, Motor Vehicles, Voter Registration, Phone, Deed Transfers, Tax Assessor, Corporation & Federal Criminal, Civil & Bankruptcy indi-ces,” and (2) attempted to contact Cohn’s “last known possible associates and relatives,” and the post office. Consequently, Fernandez sought leave to amend his complaint so that he could effectuate service on the Secretary of State pursuant to section 48.171 of the Florida Statutes. The motion was granted and Fernandez served the Secretary of State.

Within two weeks of service on Secretary of State, Cohn made a limited appearance moving to quash service of process and to dismiss the complaint for failure to serve the complaint within 120 days of filing. Claiming that he had not concealed his whereabouts and easily could have been located via his drivers’ license, which listed his current address, Cohn demanded dismissal because Fernandez had failed to demonstrate good cause or excusable neglect that would justify extending the 120-day time limit on service imposed by Florida Rule of Civil Procedure 1.070(j). The trial court agreed, and because the statute of limitation had by then run, granted the motion with prejudice. We reverse.

Rule 1.070(j), as last amended in 1999, provides:

Summons; Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop the defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period.... A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).

As our sister court, relying in significant part on an earlier decision from this Court, has confirmed, this rule provides a trial court with three options when service has not been perfected within 120 days of the filing of the complaint. The options are: “(1) direct that service be effected within a specified time; (2) dismiss the action without prejudice; or (3) drop [the unserved] defendant as a party.” Chaffin v. Jacobson, 793 So.2d 102, 103-104 (Fla. 2d DCA 2001). Where good cause or excusable neglect for failure to make timely service has been demonstrated, a trial court must extend the time for service “and has no discretion to do otherwise.” Id. at 104. Where no good cause or excusable neglect exists, the trial court is left to exercise its discretion as to which of the three options to select, except where the statute of limitations has run. Where the statute of limitations has run, discretion should normally be exercised in favor of extending the time for service of process:

If a plaintiff shows good cause or excusable neglect for failure to make timely service, the court must extend the time for service and has no discretion to do otherwise. However, if neither good cause nor excusable neglect is shown, the trial court is no longer required to dismiss without prejudice or drop the defendant as a party, but is left to exercise its discretion. Yet, in a case such as this, where the statute of limitations has run, we agree with Judge Cope that:
Discretion in these circumstances must be exercised with the understanding that Florida has a longstanding policy in favor of resolving civil disputes on the merits. Furthermore, the purpose of Rule 1.070(j) is to speed the progress of cases on the civil docket, but not to give defendants a “free” dismissal with prejudice. Thus, where there has been no showing of good cause or excusable neglect, but the statute of limitations has run, discretion should normally be exercised in favor of giving the plaintiff an extension of time to accomplish service.

Id. (quoting Skrbic v. QCRC Assocs. Corp., 761 So.2d 349, 354 (Fla. 3d DCA 2000) (Cope, J., concurring in part and dissenting in part)); see also Sly v. McKeithen, 27 So.3d 86, 87 (Fla. 1st DCA 2009) (citing Skrbic as holding that “[i]n situations where the statute of limitations has run, the trial court should normally exercise discretion in favor of giving the plaintiff additional time to perfect service”); Miranda, 19 So.3d at 1103 (“Although we understand the circuit court’s need to manage its docket, rule 1.070(j) was not intended to operate as a sanction or to result in the dismissal of a claim with prejudice on technical grounds.”).

In this case, the record demonstrates diligence and good cause for failure to serve Cohn within 120 days of filing the complaint. The time for serving Cohn should, therefore, have been extended. Even if Fernandez had not acted diligently and had failed to demonstrate either good cause or excusable neglect, he still should have been afforded an opportunity to serve Cohn because the statute of limitations on Fernandez’ negligence claim has now run. This is so, as has already been explained, because Rule 1.070(j) is a rule of administrative convenience which should not trump the preference for trials on the merits:

In situations where the statute of limitations has run, the trial court should normally exercise discretion in favor of giving the plaintiff additional time to perfect service. Chaffin v. Jacobson, 793 So.2d 102, 104 (Fla. 2d DCA 2001) (“[T]he purpose of Rule 1.070(j) is to speed the progress of cases on the civil docket, but not to give defendants a ‘free’ dismissal with prejudice.”) (quoting Skrbic v. QCRC Assocs. Corp., 761 So.2d 349, 354 (Fla. 3d DCA 2000) (Cope, J., concurring in part and dissenting in part)). Where the statute of limitations has run, “[discretion in these circumstances must be exercised with the understanding that Florida has a longstanding policy in favor of resolving civil disputes on the merits.” Id. Brown v. Ameri Star, Inc., 884 So.2d 1065, 1067 (Fla. 2d DCA 2004) (recognizing that the intent that of Rule 1.070(j) is to “serve as ‘a case management tool’ and not as ‘a severe sanction.’ ”) (citing Chaffin v. Jacobson, 793 So.2d 102, 103-04 (Fla. 2d DCA 2001)).

Sly, 27 So.3d at 87-88.

The order dismissing the instant action with prejudice is, therefore, reversed with this matter remanded for reinstatement of Fernandez’ complaint and for entry of an order extending the time in which to effectuate service of process on Cohn.

Reversed and remanded.

      . The statute provides, in relevant part, that:
      [A]ny resident of this state, being the licensed operator or owner of or the lessee, or otherwise entitled to control any motor vehicle under the laws of this state, who ... conceals his or her whereabouts, by the acceptance or licensure and by the operation of the motor vehicle, either in person, or by or through his or her servants, agents, or employees, or by persons with his or her knowledge, acquiescence, and consent within the state constitutes the Secretary of State his or her agent for the service of process in any civil action begun in the courts of the state against such operator or owner, lessee, or other person entitled to control of the motor vehicle, arising out of or by reason of any accident or collision occurring within the state in which the motor vehicle is involved.
      § 48.171, Fla. Stat. (2010).

      . Although the order provides no explanation as to why dismissal was with prejudice, see Miranda v. Young, 19 So.3d 1100, 1102 (Fla. 2d DCA 2009) (noting that "dismissal with prejudice was not one of the options available to the court under rule 1.070(j)’’), the reason is undoubtedly because the statute of limitations on the underlying negligence claim had expired.


author: EMAS, J.

text:
    Jay LIEBMAN, Appellant, v. MIAMI-DADE COUNTY CODE COMPLIANCE OFFICE, et. al., Appellees.
    No. 3D10-43.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.

      Jay Liebman, in proper person.
    Pamela Jo Bondi, Attorney General, and Charles M. Fahlbusch, Senior Assistant Attorney General, for appellees.
    Before RAMIREZ, C.J., and CORTIÑAS and EMAS, JJ.
   EMAS, J.

Appellant Jay Liebman seeks review by appeal of three separate orders: (1) two orders granting two different defendants’ motions to dismiss the complaint without prejudice to amend, and one order granting a third defendant’s motion to quash service of process. The complaint alleged that twenty-eight defendants engaged in a conspiracy to violate Appellant’s constitutional rights. Liebman’s complaint named sixteen individuals and entities as defendants, and twelve “unknown John Does” as additional defendants.

We affirm the order granting the motion to quash service of process as to defendant Krieger-Martin (one of the “unknown John Does”). Krieger-Martin was not named in the style of the complaint, nor was she referenced in any allegation contained in the body of the complaint.

In the absence of a statute authorizing such a procedure, the filing of a “John Doe” complaint is not sufficient to commence an action against a real party in interest. Grantham v. Blount, Inc., 683 So.2d 538 (Fla. 2d DCA 1996). The complaint failed to give this ostensible defendant actual notice that a lawsuit was being commenced against her. Liebman’s attempted service of process upon this individual (in which the summons described the person to be served as “unknown John Doe # 5”) cannot serve to satisfy this notice requirement. Gilliam v. Smart, 809 So.2d 905, 909 (Fla. 1st DCA 2002) (“The service of process on an individual cannot be used to broaden the scope of the pleadings to add a defendant who is not named as a party in the complaint.”).

We lack jurisdiction to review the two orders granting motions to dismiss the complaint without prejudice to amend. These orders are non-fínal and non-appeal-able. See Rule 9.130(a)(3), Fla. R.App. P.; Bank of America v. Cartus, 920 So.2d 774 (Fla. 3d DCA 2006); Welch v. Resolution Trust Corp., 590 So.2d 1098 (Fla. 5th DCA 1991).

Affirmed in part and dismissed in part.


text:
    Michael CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 3D10-3409.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 2011.
    Michael Cunningham, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, SALTER, and EMAS, JJ.
   EMAS, J.

The defendant, Michael Cunningham, appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Cunningham had previously appealed the denial of his Rule 3.800 motion to correct sentence upon the same grounds: that he was a juvenile at the time of the commission of the crimes (four nonhomicide life felonies) and was sentenced to four concurrent life sentences. Cunningham contends that this sentence violates Graham v. Florida, — U.S. -, -, 130 S.Ct. 2011, 2030, 176 L.Ed.2d 825 (2010), which held:

This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole. This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment. Because “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,” those who were below that age when the offense was committed may not be sentenced to life without parole for a nonho-micide crime.

(Emphasis supplied.)

Unlike the defendant in Graham, Cunningham is statutorily entitled to parole consideration because he committed the offenses prior to the effective date of the statute creating sentencing guidelines and eliminating parole. See Ch. 1983-87, § 2, Laws of Fla. Cunningham acknowledged as much in his motion, where he alleged that his Presumptive Parole Release Date is in 2026 and his next parole reinterview is in 2013.

Affirmed.


author: KELLY, Judge.

text:
    STATE of Florida, Appellant, v. Joseph GARNER, Appellee.
    No. 2D10-582.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   KELLY, Judge.

Joseph Garner was charged with resisting arrest with violence, but the jury found him guilty of the lesser-included offense of resisting arrest without violence. The trial court granted Garner’s motion for judgment of acquittal after the verdict based on the insufficiency of the evidence to support the lesser-included offense. The State appeals from that order, arguing that Garner waived any postverdict sufficiency of the evidence argument by requesting the permissive lesser-included offense instruction. We agree and reverse.

When, as here, a defendant seeks an instruction on a lesser-included offense and is found guilty of the lesser offense, the court must review the evidence to determine if it is sufficient to support the greater offense, not the lesser. State v. Espinosa, 686 So.2d 1345, 1348-49 (Fla.1996); Messer v. State, 757 So.2d 526, 528 (Fla. 4th DCA 2000). By requesting the instruction on the lesser-included offense, the defendant waives any argument as to the sufficiency of the evidence as to the lesser offense. Espinosa, 686 So.2d at 1349 (holding that the act of requesting an instruction on the lesser-included offense or affirmatively relying on the instruction waives the right to challenge the State’s proof on the elements of the lesser offense “in exchange for the possibility of allowing the jury to exercise its pardon power”).

Because the trial court erred in granting the postverdict judgment of acquittal based on the sufficiency of the evidence for the lesser-included offense rather than the charged offense, we reverse and remand for the trial court to reinstate the conviction for resisting arrest without violence.

Reversed and remanded.

WALLACE and CRENSHAW, JJ., Concur.


text:
    Giovanni Simon Cohen PIRELLI, Appellant, v. Patricia C. BOLANOS, Appellee.
    No. 4D09-3008.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.
    Robin Bresky, Boca Raton, for appellant.
    Lewis Kapner of Kapner, Calebrese & Kapner, P.A., West Palm Beach, for appel-lee.
   PER CURIAM.

We affirm as to all issues raised by the former husband including the trial court’s finding that the former husband was in contempt. However, the trial court’s order of incarceration is erroneous in light of its failure to specify the basis for its finding that the former husband had the financial ability to pay the purge amount. See Martyak v. Martyak, 873 So.2d 405, 407 (Fla. 4th DCA 2004) (holding that to incarcerate an alleged contemnor for failing to pay court ordered support, the trial court must “make separate affirmative findings that [the alleged contemnor] has the ability to pay the purge amount, and the basis for such ability ”) (emphasis added). We therefore reverse the order of the trial court to that extent and remand for further proceedings consistent with this opinion.

Reversed and remanded for farther proceedings consistent with this opinion.

POLEN, CIKLIN and LEVINE, JJ., concur.


text:
    Norman LOCKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-65.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.
    Norman Lockley, Belle Glade, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.815(a).

POLEN, HAZOURI and GERBER, JJ., concur.


text:
    Pablo BARRIENTOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1561.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.
    Jeffrey A. Devore of Devore & Devore, P.A., Palm Beach Gardens, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Pablo Barrientos seeks review of the order which denied his motion to vacate and set aside his plea agreement pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s summary denial of his claim. State v. Green, 944 So.2d 208 (Fla.2006).

Affirmed.

WARNER, POLEN and CIKLIN, JJ., concur.


text:
    Cordell FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2345.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.
    Cordell Flowers, Live Oak, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s sixth motion for postconviction relief which argued that the decision in Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), applies retroactively to his 1997 conviction. See Fla. R.Crim. P. 3.850(b)(2). This conviction became final when this court affirmed the judgment and sentence in 1998. Flowers v. State, 717 So.2d 1031 (Fla. 4th DCA 1998) (Table).

Applying the retroactivity analysis of Witt v. State, 387 So.2d 922 (Fla.1980), we hold that the decision in Gant is an evolutionary refinement in Fourth Amendment law and not a development of fundamental significance, a major constitutional change, or jurisprudential upheaval that requires retroactive application to cases on collateral review. See, e.g., Hughes v. State, 901 So.2d 837 (Fla.2005); Johnson v. State, 904 So.2d 400 (Fla.2005); Chandler v. Crosby, 916 So.2d 728 (Fla.2005); State v. Barnum, 921 So.2d 513 (Fla.2005).

Additionally, we note that, under the facts of this case, Gant would not have compelled a different result on appellant’s 1997 motion to suppress.

Affirmed.

STEVENSON, HAZOURI and CIKLIN, JJ., concur.


text:
    A.N.B., Mother of J.T.N., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D10-2356.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2011.

      Heather Morcroft, Orlando, for Appellant.
    Nickole E. Frederick, Orlando, for Ap-pellees, D.A. and N.A., Grandparents.
    Rosemarie Farrell, Orlando, for Appel-lees, Department of Children and Families.
   PER CURIAM.

In this private dependency action filed by the maternal grandparents, A.N.B., (“the mother”), appeals an order adjudicating her son, J.N., dependent. J.N. was nineteen days short of his seventeenth birthday when the order was entered on June 7, 2010. A.N.B. claims: (1) that there was insufficient evidence to support the trial court’s finding of dependency; (2) that the trial court improperly based its ruling on the child’s preference; and (3) that the trial court improperly excluded her boyfriend as a witness. We affirm.

With respect to the first issue, while we agree that the trial court’s findings regarding abuse and abandonment fall short, its finding of neglect is fully supported by the record. In addition, A.N.B. fails to challenge a fourth ground for dependency — that there was no parent capable of supervision and care — and the evidence supports a dependency finding on this issue as well. See C.D. v. Dep’t of Children and Families, 816 So.2d 1229 (Fla. 5th DCA 2002) (affirming in part on ground that “a child can also be dependent if the child is found ‘to have no parent or legal custodians capable of providing supervision and care’ ” after trial court found that dependent teenage mother was unable to care for her child). Because competent, substantial evidence supports two of the four dependency grounds alleged in the petition, we affirm as to this issue.

With respect to the second issue, we agree that the child’s preference is not a valid basis for a finding of dependency, but this was not the sole basis for the court’s dependency finding. Rather, as discussed above, the dependency finding was based upon competent, substantial evidence of neglect, along with a finding that no parent was capable of supervising and caring for the child in the future.

Finally, A.N.B. argues that the trial court erred in excluding her boyfriend as a witness at the dependency hearing. Although appellees concede that this evi-dentiary ruling was in error, the mother failed to proffer the proposed witness’ testimony below or explain its potential significance on appeal. Thus, she has failed to establish reversible error as to this point on appeal.

AFFIRMED.

LAWSON, EVANDER and COHEN, JJ., concur.

      . Although the trial court did not separately list this ground in the order on appeal, it did find that all allegations in the dependency petition were proven, and this was one of the grounds alleged.


author: GRIFFIN, J.

text:
    ST. JOHNS RIVERKEEPER, INC., et al., Appellant, v. ST. JOHNS RIVER WATER MANAGEMENT, et al., Appellee.
    Nos. 5D09-1644, 5D09-1646.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    Kenneth B. Wright, of Bledsoe, Jacobson, Schmidt, Wright, Lang & Wilkinson, Jacksonville, and Michael L. Howie, of Howie Law Firm, P.A., Jacksonville, for Appellant.
    Timothy A. Smith and Karen C. Coff-man, for Appellee, St. Johns River Water Management District, Palatka.
    Richard A. Mullaney and Jason R. Teal, Jacksonville, for Appellee, City of Jacksonville.
    Edward P. de la Parte, Jr. David M. Caldevilla and Nicolas Q. Porter, of de la Parte & Gilbert, P.A., Tampa, for Appel-lee, Seminole County.
   GRIFFIN, J.

St. Johns Riverkeeper, Inc. [“Riverkeeper”] appeals the final order of the St. Johns River Water Management District [“the District” or the “Governing Board”] approving Seminole County’s application for a consumptive use permit [“CUP”]. Under the CUP, Seminole County [“Seminole”] is able to withdraw surface water from the St. Johns River in an amount of 5.5 million gallons per day to be used for potable water and reclaimed water augmentation. We affirm as to all issues, except on the issue of Riverkeeper’s standing to challenge the District’s application.

Riverkeeper contends on appeal that the Governing Board incorrectly determined that it did not have standing under sections 120.569 and 120.57, Florida Statutes (2008), to challenge the issuance of the CUP. The District’s position is that Riv-erkeeper alleged “substantial interests” standing in its petition, but failed to prove at the hearing that it had such standing.

During the administrative hearing, the Administrative Law Judge [“ALJ”] heard testimony concerning Riverkeeper’s membership, mission, and activities. Neil Ar-mingeon [“Armingeon”], who is employed by Riverkeeper and whose title is “St. Johns Riverkeeper,” explained:

I believe currently we have 1,500 memberships. That is how we manage our database. And that equates to — some of the memberships are individuals. Some are businesses. Some are families. Individual groups. So I think the actual number of members would exceed that....

He also explained that Riverkeeper is based in Jacksonville and that it “work[s] with citizens up and down the St. Johns River.” When asked about the number of members in Seminole County, Armingeon said: “Currently we have 50. And one of the members is a group organization. But as I — so that organization has 280-plus members.” Also, when asked how many Seminole County members Riverkeeper had as of the time of the filing of the petition, Armingeon stated that his “recollection is maybe eight to ten.” Armingeon described Riverkeeper’s mission as follows:

Well, we have a long mission statement. But I — I always tell people that we can sum up what we do in two sentences. We believe that the St. Johns River is our community’s greatest natural resource. When I — the term — when I say “community,” I mean, all the communities that are blessed enough to be in this watershed. And the second thing I tell people is we believe what is best for the St. Johns River is best for the community-

With respect to activities of Riverkeeper’s members, Armingeon testified that members participate in a three-day ecological boat tour that runs from Jacksonville to Sanford, as well as a return tour that runs from Sanford to Jacksonville. There had been twenty of these trips involving more than 1,100 member participants. The route passes the proposed Yankee Lake withdrawal site. When asked about what takes place on the tours, Armingeon explained in detail about the numerous ways that the member participants study the river.

With reference to the testimony that the 5.5 million gallons per day [“mgd”] withdrawal of water from the St. Johns River would result in an increased nutrient load, causing an increase in the duration of algal blooms, Armingeon testified: “In 2005 there was a toxic blue-green algae blooming in the St. Johns River that extended from Lake George all the way north over 100 miles and actually through downtown Jacksonville out into the mouth of the river.” He described the effect:

And that summer the algae was so toxic you — basically the river was posted you couldn’t boat. If you did, it was very unpleasant. We have members who blue crab fish. You just — you couldn’t use the river. And I think that is an example of what — you know, when people’s use and enjoyment of the river is impacted by impairment of the river— the river is impaired....

When asked whether he considered the algal bloom “a manifestation of degradation of the system,” Armingeon answered: “Right. The river has exceed [sic] its assimilative capacity. We’re not — we’re assimilating or treating nitrogen phosphorus. You heard one of the ways that is visible to us as humans is algal blooms.”

In its recommended order, the ALJ found that “[t]he most prominent manifestation of nutrient imbalance in the St. Johns River is the increase in algal biomass, which can result in algal blooms” that “[w]ithdrawals of water from the River can increase residence time, which in turn has the potential to increase biomass in the water body.” He also found that “[a] substantial number of Riverkeeper’s members use and enjoy the River for recreation, boating, fishing, watching wildlife, and similar activities.” Nevertheless, in his final order, the ALJ concluded:

137. Riverkeeper alleges that Seminole’s proposed use will impact the use and enjoyment of the St. Johns River by a substantial number of Riverkeeper’s members. However, it was not proven that Seminole’s CUP will affect their use or enjoyment of air, water, or natural resources of the River.

The Governing Board adopted the ALJ’s recommended order in its final order, although it modified paragraph 137 by removing the language “air, water, or natural resources of.”

Section 120.569(1), Florida Statutes, provides in part that: “The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency....” Additionally, section 120.52(13)(b) defines “party” as “[a]ny other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.” Finally, section 403.412(5) speaks to the issue of standing under sections 120.569 and 120.57, Florida Statutes, providing:

(5) In any administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, the Department of Legal Affairs, a political subdivision or municipality of the state, or a citizen of the state shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state. As used in this section and as it relates to citizens, the term “intervene” means to join an ongoing s. 120.569 or s. 120.57 proceeding; this section does not authorize a citizen to institute, initiate, petition for, or request a proceeding under s. 120.569 or s. 120.57. Nothing herein limits or prohibits a citizen whose substantial interests will be determined or affected bg a proposed agency action from initiating a formal administrative proceeding under s. 120.569 or s. 120.57. A citizen’s substantial interests will be considered to be determined or affected if the party demonstrates it may suffer an injury in fact which is of sufficient immediacy and is of the type and nature intended to be protected by this chapter. No demonstration of special injury different in kind from the general public at large is required. A sufficient demonstration of a substantial interest may be made by a petitioner who es tablishes that the proposed activity, conduct, or product to be licensed or permitted affects the petitioner’s use or enjoyment of air, water, or natural resources protected by this chapter.

(Emphasis added).

In Agrico Chemical Co. v. Dep’t of Environmental Regulation, 406 So.2d 478, 482 (Fla. 2d DCA 1981), the Second District Court of Appeal addressed the issue of “substantial interest” standing, explaining:

We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.

The Second District explained that the third-party challenger “must frame their petition for a section 120.57 formal hearing in terms which clearly show injury in fact to [protected] interests” and “ [i]f their standing is challenged in that hearing by the permit applicant and the protestants are then unable to produce evidence to show that their substantial environmental interests will be affected by the permit grant, the agency must deny standing and proceed on the permit directly with the applicant.” Id.

In Farmworker Rights Organization, Inc. v. Dep’t of Health and Rehabilitative Servs., 417 So.2d 753, 754-55 (Fla. 1st DCA 1982), the First District Court of Appeal found that for an association to establish standing under section 120.57(1) when acting solely as a representative of its members, it must demonstrate that “a substantial number of its members, although not necessarily a majority, are substantially affected by the challenged rule,” that “the subject matter of the challenged rule is within the association’s general scope of interest and activity,” and that “the relief requested is of a type appropriate for a trade association to receive on behalf of its members.”

Riverkeeper asserts that the Governing Board improperly mixed the issue of its standing to challenge the District’s issuance of the CUP with the merits of its challenge, as occurred in Peace River,/Manasota Reg’l Water Supply Auth. v. IMC Phosphates Co., 18 So.3d 1079, 1082 (Fla. 2d DCA 2009) and Reily Enters., LLC v. Florida Dep’t of Envt’l Prot., 990 So.2d 1248 (Fla. 4th DCA 2008). The Peace River and Reily courts each warned against mixing the issue of a party’s standing to challenge an agency’s action with the merits of the challenge. Peace River, 18 So.3d at 1084; Reily, 990 So.2d at 1251. Additionally, the Peace River court said that “if standing is challenged during an administrative hearing, the petitioner must offer evidence to prove that its substantial rights could be affected by the agency’s action.” Peace River, 18 So.3d at 1084 (emphasis added).

Riverkeeper established substantial interest standing. Among other things, the record contains evidence establishing that (1) Riverkeeper’s purpose and mission is the protection of the St. Johns River as a natural resource, and its principal activities are use and enjoyment of the River, (2) the 5.5 mgd withdrawal of water from the St. Johns will result in an increase in nutrient load, which will cause an increase in the duration of algal blooms, and (3) algal blooms can inhibit boating on the St. Johns River. Chapter 373 of the Florida Statutes addresses water resource protection and conservation, and the administrative proceeding was for the purpose of ensuring that Seminole’s CUP would not harm the St. Johns River or that any harm would be offset. Ultimately, the ALJ’s conclusion adopted by the Governing Board that there was no proof of harm or that the harm would be offset went to the merits of the challenge, not to standing. Palm Beach County Envt’l Coalition v. Fla. Dep’t of Envt’l Protection, 14 So.3d 1076 (Fla. 4th DCA 2009).

AFFIRMED in part; REVERSED in part.

ORFINGER, J., and ROBERTS, C., Associate Judge, concur.

      . Seminole asserts that "Riverkeeper’s argument is at best a moot point” because ‘‘River-keeper was determined to have standing in this proceeding pursuant to Section 403.412(6), Florida Statutes, and fully participated in the proceeding below.”


author: COHEN, J.

text:
    Christopher RUDDY, Appellant, v. Steven CARELLI and Metropolitan Casualty Insurance Company, Appellees.
    No. 5D09-474.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    Shannon McLin Carlyle and Christopher V. Carlyle of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Michael M. Bell and Mary J. Walter of Bell, Roper & Kohlmyer, P.A., Orlando, for Appellee, Metropolitan Casualty Insurance Company.
    No Appearance for Appellee, Steven Carelli.
   COHEN, J.

After Christopher Ruddy was involved in an automobile accident with Steven Carelli, he filed suit against Metropolitan Insurance Company (hereafter “Metropolitan”) seeking damages for Carelli’s negligence and asserting a claim for uninsured/underinsured motorist coverage under his policy. Following an effort at mediation, Metropolitan informed Ruddy that his policy required the tortfeasor to be joined as a party and subsequently filed a motion for summary judgment alleging the failure to join Carelli precluded suit under the policy. Ruddy then amended his complaint, seeking a declaratory judgment that he was entitled to uninsured/underinsured motorist coverage independent of whether Carelli was joined. The trial court granted Metropolitan’s motion for final summary judgment. We reverse.

Metropolitan argues that Ruddy did not preserve his argument that the policy condition requiring him to join the tortfeasor was void as against public policy. We believe this argument is unpersuasive because Ruddy argued below the general proposition that an insured is not required to file suit against the tortfeasor as a precondition to obtaining uninsured motorist benefits. Based on this determination, we acknowledge, but do not address Saris v. State Farm Mutual Automobile Insurance Co., 49 So.3d 815 (Fla. 4th DCA 2010), which concluded that a policy condition requiring suit against the uninsured driver as a precondition to obtaining uninsured motorist benefits was fundamental error, and could be argued for the first time on appeal.

The pertinent language in the instant insurance policy states that Metropolitan “may” require an insured filing a claim for uninsured or underinsured motorist coverage to “take appropriate action to preserve your right to recover damages from any other person responsible for the bodily injury. Also, in any lawsuit against us, we may require you to join the responsible person as a defendant.” Despite being phrased as a permissive condition, raising an issue as to whether it constituted a condition precedent or condition subsequent, we do not find this language to be sufficiently distinguishable from the mandatory language in Diaz-Hernandez v. State Farm Fire and Casualty Co., 19 So.3d 996 (Fla. 3d DCA 2009). Accordingly, we agree and adopt the reasoning in Diaz-Hemandez that a policy provision requiring an insured to join the tortfeasor as a condition to bringing or maintaining a suit for uninsured/underinsured benefits is against public policy and void. See also Saris, 49 So.3d at 815. In fairness to the trial court, it should be noted that it did not have the benefit of either opinion at the time of its ruling.

Accordingly, the final summary judgment is reversed.

REVERSED.

TORPY and EVANDER, JJ., concur.


author: CRENSHAW, Judge.

text:
    Donna LaVERE-ALVARO, Appellant, v. SYPRETT, MESHAD, RESNICK, LIEB, DUMBAUGH, JONES, KROTEC & WESTHEIMER, P.A., Appellee.
    No. 2D10-1379.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2011.

      Andrew J. Britton, Venice, for Appellant.
    Peter J. Krotec of Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., Sarasota, for Appel-lee.
   CRENSHAW, Judge.

Donna LaVere-Alvaro appeals a judgment imposing a charging lien in favor of her former counsel, Syprett, Meshad, Res-nick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A. (Syprett), for attorney’s fees and costs incurred during its representation of LaVere-Alvaro in a dissolution of marriage action. The judgment also awarded Syprett a retaining lien on all of LaVere-Alvaro’s property in its possession. We find the trial court erred by entering the charging lien because it failed to determine whether Syprett provided services that produced a positive judgment or settlement for LaVere-Alvaro. Likewise, the entry of the retaining lien was premature because LaVere-Alvaro’s ownership interest in the property that Sy-prett sought to retain had not yet been established. Accordingly, we reverse the judgment and remand for further proceedings. We affirm the remainder of LaV-ere-Alvaro’s issues without discussion.

“The charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit.” Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla.1983). In this instance, the trial court summarily determined that LaVere-Alvaro was obligated to pay for all services rendered by Syprett pursuant to a retainer agreement previously entered into by the parties. Yet, “ ‘[i]t is not enough to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services.’ ” Mitchell v. Coleman, 868 So.2d 639, 641 (Fla. 2d DCA 2004) (quoting Correa v. Christensen, 780 So.2d 220, 220 (Fla. 5th DCA 2001)). Because the trial court failed to find that Syprett’s services benefitted LaVere-Alvaro, we find the trial court erred by imposing the charging lien.

The trial court also erred by entering a retaining lien in favor of Syprett. Because LaVere-Alvaro’s ownership interest in the property that Syprett sought to retain had yet to be determined, a retaining lien attaching the property was premature. Therefore, we reverse the judgment and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and LaROSE, JJ., Concur.

      . A retaining lien is an attorney’s possessory interest in a client's papers, money, securities, and files that attaches to secure the client's payment of the fees and costs earned by the attorney to that point. See Foreman v. Behr, 866 So.2d 705, 706 (Fla. 2d DCA 2003); Boroff v. Bic Corp., 718 So.2d 348, 349 (Fla. 2d DCA 1998); Brickell Place Condo Ass'n v. Joseph H. Ganguzza & Assocs., P.A., 31 So.3d 287, 289 (Fla. 3d DCA 2010).


author: CASANUEVA, Chief Judge.

text:
    Lori GIBSON; Leslie Betts; Marc Betts; and Lydia Sierra, Petitioners, v. PROGRESS BANK OF FLORIDA, a chartered commercial bank; Axiom Worldwide, L.L.C., a limited liability company; Nicholas J. Exarhos, individually; and James J. Gibson, Jr., individually, Respondents.
    No. 2D10-4137.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 2011.

      Scott A. Frick of Kass, Shuler, Solomon, Spector, Foyle & Singer, P.A., Tampa; and Shannon McLin Carlyle and Christopher V. Carlyle of The Carlyle Appellate Law Firm, The Villages, for Petitioners.
    Stanford R. Solomon and Jason C. Sampson of The Solomon Law Group, P.A., Tampa, for Respondent Progress Bank of Florida.
    No appearance for Respondents Axiom Worldwide, L.L.C.; Nicholas J. Exarhos; and James J. Gibson, Jr.
   CASANUEVA, Chief Judge.

The Petitioners, Lori Gibson, Leslie Betts, Marc Betts, and Lydia Sierra, challenge the trial court’s postjudgment discovery order which permits the Respondent, Progress Bank of Florida, access to the Petitioners’ financial records and information. We grant the petition for writ of certiorari and quash the trial court’s order.

Background

The Petitioners are not parties to the original action which set the course for this proceeding. Initially, Progress Bank sued Axiom Worldwide, L.L.C.; Nicholas J. Ex-arhos; and James J. Gibson, Jr. (collectively, Defendants). Axiom had borrowed $4 million from Progress Bank, and Mr. Exarhos and Mr. Gibson had each unconditionally guaranteed the payment of the loan. On January 15, 2010, Progress Bank filed a motion for summary judgment. Progress Bank then filed a motion for prejudgment writs of attachment and garnishment. On February 10, 2010, the trial court granted Progress Bank’s motions for prejudgment writs of attachment and garnishment. The Defendants appealed that order by notice filed on March 10, 2010. That appeal was assigned case number 2D10-1316.

On March 24, 2010, while the nonfinal appeal in 2D10-1316 was still pending, the trial court entered summary judgment against Axiom and the guarantors. To aid in execution of that summary judgment, Progress Bank sought postjudgment discovery depositions from the nonparty Petitioners, who are members of Mr. Gibson’s family. Progress Bank also requested numerous documents from one petitioner, Lori Gibson — Mr. Gibson’s wife. Through various motions, the Petitioners attempted to quash the subpoenas and sought a protective order. They argued the summary judgment was void because at the time it was entered, the trial court was without jurisdiction to enter a final order. The trial court denied the Petitioners’ requests for relief, eventually rendering its order “denying non-parties[’] emergency motion for protective order.” It is from this order that the Petitioners seek relief in this court.

“A petition for certiorari is appropriate to review a discovery order when the ‘order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.’ ” Rappaport v. Mercantile Bank, 17 So.3d 902, 905 (Fla. 2d DCA 2009) (citing Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)). Here, Petitioners allege that the trial court departed from the essential requirements of law by permitting Progress Bank to conduct discovery in aid of execution of a void judgment. The Petitioners assert that the trial court’s error would cause them irreparable harm because, without relief, they would be forced to disclose personal financial information in contravention of their fundamental right to privacy.

We must first determine the validity of the summary judgment to determine whether the Petitioners’ argument has merit. Florida Rule of Appellate Procedure 9.130(f) provides clear limits on a trial court’s continuing jurisdiction while an appeal of a nonfinal order is pending:

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

(Emphasis supplied.)

Neither party disputes that the order granting summary judgment, entered on March 23, 2010, was a final order entirely disposing of the proceedings between Progress Bank and the loan debtors. The order established the amount owed — including principal, interest, costs, and attorneys’ fees- — totaling in excess of $4.5 million. It further provided that the amount due would accrue interest and set the date for the public sale of assets pledged to secure the loan. No further judicial labor was required, so we conclude that the summary judgment was a final order disposing of the initial loan default action.

Because an appeal of a nonfinal order was pending at the time, the trial court violated the express language of rule 9.130(f) by entering final judgment without having jurisdiction to do so. The summary judgment is thus null and void. See Bemben v. Chock, 938 So.2d 565, 566 (Fla. 2d DCA 2006) (“The final summary judgment is a nullity because the trial court entered it during the pendency of the Sellers’ interlocutory appeal of an order denying their motion to dissolve the Buyers’ lis pendens. See Fla. R.P. 9.130(f)”); McKenna v. Camino Real Vill. Ass’n, 8 So.3d 1172, 1174 (Fla. 4th DCA 2009) (holding that the final judgment was entered without jurisdiction while a nonfinal appeal was still pending). A void judgment is “[a] judgment that has no legal force or effect, the invalidity of which may be asserted by any party whose rights are affected at any time and any place, whether directly or collaterally.... It is incapable of being confirmed, ratified, or enforced in any manner or to any degree.” Black’s Law Dictionary, 848 (7th ed. 1999). Consequently, there can be no discovery in aid of execution of a void judgment. See Fla. R. Civ. P. 1.560(a) (providing for discovery “[i]n aid of a judgment, decree, or execution”).

Similarly, if the summary judgment is void, the original action between Progress Bank and the Defendants is still “pending” for the purposes of this petition. Thus, the general discovery rules would apply. See Fla. R. Civ. P. 1.280(b)(1). Progress Bank would not be able to conduct discovery from these nonparty Petitioners under this rule because any information from these four people is irrelevant to “the pending action” involving the default in payment by Axiom and its guarantors against Progress Bank. See id. (“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action”).

A protective order should be granted when the pleadings, at the time a trial court rules upon a motion for protective order, indicate that the financial records of a nonparty are not related to any pending claim or defense, and do not indicate that the information is shown to be reasonably calculated to lead to the discovery of admissible evidence.

Rappaport, 17 So.3d at 906 (quoting Walter v. Page, 638 So.2d 1030, 1031 (Fla. 2d DCA 1994)). Consequently, the trial court departed from the essential requirements of law by denying the Petitioners’ requests for a protective order. With regard to irreparable harm, “personal finances are among those private matters kept secret by most people.” Woodward v. Berkery, 714 So.2d 1027, 1035 (Fla. 4th DCA 1998). Again, because the final judgment is void, the Petitioners would suffer irreparable harm if forced to disclose their personal financial information.

Because the Petitioners have satisfied all the requirements for a writ of certiorari, see Rappaport, 17 So.3d at 905, we grant the petition and quash the order on review. We also recognize that the notice of deposition to Lori Gibson sought to require her to produce documents regarding aspects of her finances for a time period beginning on January 1, 2007. The loan upon which the suit was premised issued on September 22, 2008. Should discovery issues involving Ms. Gibson’s personal finances arise again, the trial court should reexamine the scope of Progress Bank’s request.

Petition granted; order quashed.

WALLACE and LaROSE, JJ„ Concur.

      . That appeal was dismissed by order of this court on September 30, 2010.


author: CORTINAS, J.

text:
    Andre BANTON, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign profit corporation, Appellee.
    No. 3D09-3354.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 2011.
    Lopez & Best and Virginia M. Best, for appellant.
    Bernstein, Chackman, Liss & Rose and Neil Rose, Hollywood, for appellee.
    Before GERSTEN, CORTIÑAS, and LAGOA, JJ.
   CORTINAS, J.

Andre Banton (“Banton”) appeals from a final summary judgment in favor of State Farm Automobile Insurance Company (“State Farm”) on a claim for comprehensive loss benefits. We reverse.

Banton filed a complaint against State Farm for benefits under an insurance policy (the “Policy”) for losses sustained when his automobile was stolen. State Farm had denied coverage asserting non-payment of premium prior to the loss, and sought summary judgment predicated upon Banton’s notice of cancellation. Specifically, State Farm alleged Banton was properly mailed a notice of cancellation to his last known address for the Policy as required under section 627.728(3)(a), Florida Statutes (2008). By sworn affidavit as well as deposition testimony, Banton claimed that several weeks prior to the date of loss, he went to a State Farm office, verbally informed an agent that he moved to a different residence, and was told that the new address would be entered into State Farm’s records. However, Banton admitted that he received, approximately one day before the date of loss, a letter from the Florida Department of Motor Vehicles stating the Policy had been cancelled (the “DMV Letter”). State Farm argued, in the alternative, that the deposition testimony demonstrated Ban-ton’s actual notice of the Policy’s cancellation.

Ultimately, the trial court determined there was a genuine issue of material fact as to whether the notice of cancellation was properly issued by State Farm under section 627.728(3)(a), Florida Statutes (2008). Nevertheless, the trial court granted summary judgment in favor of State Farm, concluding that, because Ban-ton had actual notice of the cancellation via the DMV Letter, State Farm effectively cancelled the Policy. We disagree and reverse.

Florida’s statutory language is central to our determination that the trial court erred in granting summary judgment under the facts of this case. “For automobile insurance policies, the proof of notice [of cancellation] is ... regulated by statute.” Best Meridian Ins. Co. v. Tuaty, 752 So.2d 733, 735 n. 3 (Fla. 3d DCA 2000). Section 627.728(3)(a), Florida Statutes, provides in part:

No notice of cancellation of a policy to which this section applies shall be effective unless mailed or delivered by the insurer to the named insured and to the named insured’s insurance agent at least 45 days prior to the effective date of cancellation, except that, when cancellation is for nonpayment of premium, at least 10 days’ notice of cancellation accompanied by the reason therefore shall be given.

§ 627.728(3)(a), Fla. Stat. (2008) (emphasis added). “As we on more than one occasion have explained, a statute that is clear and unambiguous on its face requires no construction and should be applied in a manner consistent with its plain meaning[.]” Turnberry Invs., Inc. v. Streatfield, 48 So.3d 180, 182 (Fla. 3d DCA 2010). The plain text of the controlling statute mandates that the Policy’s cancellation was effective only if State Farm mailed or delivered notice to Banton at least 10 days prior to the effective date of cancellation. See § 627.728(3)(a), Fla. Stat. (2008).

State Farm cites Frazier v. Standard Guaranty Insurance Company in support of its claim that because “actual notice is sufficient notice,” Banton’s acknowledged receipt of the DMV Letter constituted actual notice of the Policy’s cancellation, and thus, the trial court did not err in granting summary judgment. See Frazier v. Standard Guar. Ins. Co., 382 So.2d 392, 394 (Fla. 4th DCA 1980). However, Frazier is distinguishable because there, the issue was whether actual notice was sufficient when the insurer, in sending the notice of cancellation, failed to comply with the proof of mailing statute even though the insured received the notice from the insurer. Id. In Frazier, the Fourth District held that, although the insurer did not comply with the strict statutory requirements of mailing the notice of cancellation, in so far as it omitted the insured’s apartment number, there was “substantial competent evidence that [the insured] actually received the notice [of cancellation]” sent by the insurer. Id. Because the insured actually received the notice of cancellation from the insurer, as required under section 627.728(3)(a), Florida Statutes, the Fourth District held the trial court did not err in finding the insured received actual notice of the cancellation from the insurer. Id. at 394-95.

Frazier is inapplicable because it did not address the issue of whether the DMV Letter constituted proper notice under section 627,728(3)(a), Florida Statutes (2008). The Fourth District’s holding in Frazier dealt squarely with notice of cancellation from the insurer as opposed to notice from a third party. As such, Frazier is entirely distinguishable and does not, in any way, conflict with our holding that the DMV Letter did not satisfy the statutory notice requirements under section 627.738(3)(a), Florida Statutes (2008).

Here, unlike Frazier, Banton’s receipt of the notice of cancellation from State Farm is entirely in dispute, as the trial court correctly found. See Boman v. State Farm Mut. Auto. Ins. Co., 505 So.2d 445, 449 (Fla. 1st DCA 1987) (“[S]ince the record does not support the conclusion, as a matter of law, that State Farm did so, the cited cases are distinguishable ... and the summary judgment for State Farm cannot be affirmed on this ground.”).

Furthermore, “[i]t is well settled that ‘summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.’” Magee v. Am. S. Home Ins. Co., 982 So.2d 1255, 1256 (Fla. 1st DCA 2008) (quoting Moore v. Morris, 475 So.2d 666, 668 (Fla.1985)). In addition, the moving party “must show, by competent evidence, the nonexistence of any question of material fact.” Id. (citation omitted). Because Banton and State Farm have presented conflicting evidence on whether the notice of cancellation was properly mailed as required under section 627.728(3)(a), Florida Statutes (2008), “[t]he issue must be resolved at trial.” See Tuaty, 752 So.2d at 735; see also Aries Ins. Co. v. Cayre, 785 So.2d 656, 660 (Fla. 3d DCA 2001).

There is no legal authority to support State Farm’s argument that actual notice of an automobile insurance policy cancellation can be imputed to an insured by any means other than that which is provided by the plain text of section 627.738(3)(a). Accordingly, we reverse the trial court’s entry of summary judgment and remand for proceedings consistent with this opinion.

Reversed and remanded.

      . An earlier version of section 627.728(5), Florida Statutes, stated: "Proof of mailing of notice of cancellation ... to the named insured at the home address shown in the policy shall be sufficient proof of notice.” § 627.728(5), Fla. Stat. (1975). The applicable version of the statute states: "United States postal proof of mailing or certified or registered mailing of notice of cancellation ... by an insurer under the same ownership or management, to the named insured at the address shown in the policy shall be sufficient proof of notice." § 627.728(5), Fla. Stat. (2008).

      . Section 627.728(3)(a), Florida Statutes (1975), contains the same substantive language as the applicable version of the statute.


text:
    Michael CUDAHY, Appellant, v. Ronald L. FICK and Dunwody, White & Landon, P.A., Appellees.
    No. 4D09-440.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Alan C. Espy of Alan C. Espy, P.A., Palm Beach Gardens, for appellant.
    Debra A. Jenks and Jay W. Eng of Schwed McGinley & Kahle, LLC, Palm Beach Gardens, for appellees.
   PER CURIAM.

Appellant Michael Cudahy appeals an order dismissing with prejudice his claims against Ronald Fick and Dunwody, White & Landon, P.A. Cudahy was the remainder beneficiary of a qualified personal residence trust established to hold Cudahy’s mother’s house. Fick was Cudahy’s mother’s attorney. Cudahy raised several issues in this appeal: (1) whether the trial court erred in denying Cudahy’s motion to amend the complaint; (2) whether the statute of limitations warrants dismissal of Cudahy’s complaint with prejudice; and (3) whether the defendants owed the plaintiff a duty.

We agree with Cudahy that pursuant to Florida Rule of Civil Procedure 1.190(a) he had the right to amend the complaint once because Fick had not filed a responsive pleading and he had not previously amended his complaint. The supreme court’s decision in Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla.2005), supports Cu-dahy’s position that his right to amend once did not expire since Fick had not yet filed a responsive pleading. We reverse on this one issue alone and remand to allow Cudahy leave to amend the complaint. Because the other issues raised by Cudahy may recur after the trial court considers his amended complaint, we do not address them at this time.

Reversed.

POLEN, LEVINE, JJ., and GREENHAWT, SUSAN, Associate Judge, concur.


author: POLEN, J.

text:
    Corey WAPNICK, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 4D09-3432.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.

      Richard L. Brown of Brown & Associates, P.A., Vero Beach, for appellant.
    Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier, P.A., St. Peters-burg, for appellee.

      . Judge Farmer could not participate in the rehearing due to his retirement; the chief judge approved the issuance of this opinion with the concurrence of two judges.

   On Motion for Rehearing or Clarification

POLEN, J.

On motion for rehearing, we withdraw our opinion of December 15, 2010 and substitute the following in its place.

Appellant, Corey Wapnick, appeals the trial court’s order entering summary judgment in favor of Appellee, State Farm Mutual Automobile Insurance Company, and determining that Wapnick’s automobile insurance policy did not provide coverage for injuries allegedly sustained as the result of a vehicle accident. Having determined that the entry of summary judgment was premature, we reverse and remand for further proceedings.

On February 14, 2006, while driving his 1994 Porsche which was insured by State Farm, Wapnick was hit by an uninsured motorist from behind. Two days later, Wapnick filed a claim for uninsured motorist coverage for injuries arising out of the accident and also informed State Farm that he had a pre-existing condition where all of the disks in his back were herniated. After reviewing Wapnick’s medical records, State Farm questioned whether and to what extent the accident aggravated Wapnick’s condition. Per the policy language, a person making an uninsured motorist claim must “be examined by physicians chosen and paid by [State Farm] as often as [State Farm] reasonably may require.” Accordingly, State Farm requested that Wapnick undergo an Independent Medical Examination (IME) per the terms of his insurance policy.

Wapnick resided in Vero Beach. State Farm made an appointment for Wapnick to be examined by a neurosurgeon in West Palm Beach. Over the course of several months, Wapnick failed to attend the appointments made for him by State Farm. Wapnick’s counsel requested that State Farm find a medical doctor in Vero Beach to perform the examination. State Farm declined and explained that the nearest authorized neurosurgeon to perform the exam was in West Palm Beach and also pointed out that Wapnick’s medical records revealed that he was travelling to see doctors in Boynton Beach and Miami. State Farm offered to compensate Wap-nick for reasonable transportation costs to and from the IME and reiterated that attendance of the IME was a condition precedent to coverage under the uninsured motorist policy. Wapnick continued to refuse to attend the appointments in West Palm Beach.

Without ever attending an IME with State Farm’s chosen neurosurgeon, Wap-nick underwent surgery. State Farm subsequently informed Wapnick that his surgery had severely and irreparably prejudiced its contractual right to obtain an IME to determine the nature and extent of Wapnick’s pre-existing condition and any aggravations resulting from the accident.

In August 2007, Wapnick demanded settlement in the amount of $250,000 and State Farm replied that it was denying coverage due to Wapnick’s failure to comply with policy provisions. In September 2007, Wapnick filed an action for declaratory judgment requesting that the court determine whether he was required by the terms of his policy to attend the IME as requested by State Farm. State Farm moved for summary judgment arguing that there was no genuine issue of material fact and that Wapnick’s failure to attend the IME was a violation of policy terms and also that State Farm’s scheduling of the exam was “reasonable in terms of location, frequency, and type of examination” as required by law.

Following a hearing, the trial court granted State Farm’s motion for summary judgment and denied Wapnick’s action for declaratory judgment. The court determined that the only issue in the case was the reasonableness of the location, and that West Palm Beach was within a reasonable distance for Wapnick to travel.

In Wapnick’s action for declaratory judgment, he simply explained that there was a disagreement as to whether Wap-nick could satisfy policy requirements by submitting to an IME in the Nineteenth Judicial Circuit. The court was asked to determine only where the IME should take place, but instead the court determined that there was no coverage. This was error. The trial court should have simply declared that Wapnick was required to attend the IME as requested by State Farm. Instead the court prematurely declared there was no coverage.

We affirm the court’s declaration that Wapnick had to attend the IME with the doctor selected by State Farm in Palm Beach County, but reverse to allow Wap-nick to attend an IME per the court’s order before any issues of coverage may be considered.

Affirmed, in part, Reversed in part, and Remanded.

WARNER, J., concurs.


text:
    Julio CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3595.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.

      Michael Minardi of Michael Minardi, P.A., Stuart, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In September 2009, Julio Cruz (Defendant) filed an emergency petition for writ of prohibition with this court, seeking to prohibit the Broward County circuit court from proceeding to trial until the Florida Supreme Court determines the proper procedure for deciding immunity from prosecution pursuant to section 776.032, Florida Statutes (2009) (the “Stand Your Ground” law, enacted by chapter 2005-27, section 5, at 202, Laws of Florida). We grant the petition.

Defendant, who was charged with aggravated assault with a deadly weapon, filed a motion to dismiss based on a claim of immunity under the statute. The state’s traverse denied defendant’s allegations, and, without holding an evidentiary hearing, the trial court denied the motion, relying on our decision in Velasquez v. State, 9 So.3d 22 (Fla. 4th DCA 2009) (explaining that trial court had properly denied a similar motion because, under Rule 3.190(c)(4), a motion to dismiss has to be denied when the facts are in dispute).

In Velasquez, we certified conflict with Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), which set forth the following procedure for such motions:

We now hold that when immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist. Here, the trial court did what was required. Petitioner is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.
In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo.1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.
Likewise, we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches. As noted by the trial court, courts have imposed a similar burden for motions challenging the voluntariness of a confession. See, e.g., McDole v. State, 283 So.2d 553, 554 (Fla.1973). We reject any suggestion that the procedure established by rule 3.190(c) should control so as to require denial of a motion whenever a material issue of fact appears.

Peterson, 983 So.2d at 29-30.

We held defendant’s petition in abeyance pending the supreme court’s resolution of the issue, which was presented on review of Dennis v. State, 17 So.3d 305 (Fla. 4th DCA 2009) (affirming conviction on direct appeal), reh’g denied, 17 So.3d 310 (Fla. 4th DCA 2009) (certifying conflict). In Dennis, we stated, “We find no error in the trial court’s decision to deny the motion to dismiss. As we recognized in Velasquez v. State, 9 So.3d 22 (Fla. 4th DCA 2009), a motion to dismiss based on statutory immunity is properly denied when there are disputed issues of material fact.” 17 So.3d at 306.

The supreme court recently resolved the conflict, rejecting our position in Dennis and approving that of the first district in Peterson. Dennis v. State, 51 So.3d 456 (Fla.2010). Accordingly, we grant the petition and direct the trial court to follow the procedure set forth in Peterson and approved in Dennis.

Petition Granted.

POLEN, TAYLOR and LEVINE, JJ„ concur.


text:
    David J. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3756.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.

      David J. Brooks, Mayo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

The pro se appellant challenges the assessment of victim injury points for sexual contact. We affirm.

In February of 2005, appellant pleaded no contest to attempted sexual battery on a child under age twelve by a perpetrator eighteen years of age or older, and to lewd or lascivious molestation (offender over eighteen, victim under twelve). Appellant agreed to the State’s factual basis for the plea, which follows:

[Bjetween the dates of September 1, 1998, and September 30, 1999, in St. Lucie County, Florida, the defendant did actually commit oral sex upon the victim in this case, his biological daughter, who was under the age of 12 and that she performed oral sex upon him during that timeframe. For the purpose of the plea, it — it is to an attempted even though it was a completion, a complete act. As to Count II, between the same dates, ... the State would present evidence that during that timeframe the defendant did intentionally have the victim, his biological daughter under the age of 12 years old, [A.B.], perform masturbation upon him.

(Emphasis added.) The trial court concluded that a factual basis existed, that appellant’s plea was freely and voluntarily entered and that appellant had made a knowing and voluntary waiver of his rights. The trial court adjudicated appellant guilty and sentenced him to twenty-one years in prison, to be followed by fifteen years of sex offender probation. Appellant did not file a direct appeal.

On December 28, 2007, appellant filed a petition for writ of habeas corpus, alleging he was improperly sentenced pursuant to the Criminal Punishment Code because the CPC became effective one month after the beginning date of appellant’s alleged conduct. The State agreed that appellant should be resentenced on both counts pursuant to the sentencing guidelines.

At the resentencing, appellant’s counsel objected to the inclusion of forty points for sexual contact with regard to appellant’s conviction on Count I, the attempted sexual battery. However, defense counsel stated there was no objection to the inclusion of forty points for the sexual contact alleged for Count II. The trial court overruled appellant’s objection and sentenced him to 17.9 years in prison, followed by fifteen years of sex offender probation.

Thereafter, appellant filed a pro se motion to correct sentencing error pursuant to rule 8.800(b)(2), which the trial court denied.

Presently, appellant argues that the assessment of victim injury points for sexual contact on both counts was improper. As noted by the State, however, appellant failed to preserve his claim with respect to Count II, where he conceded at resentencing that the points were properly added on this count.

Even if appellant’s claim with regard to Count II were properly preserved, his claim that the inclusion of any victim injury points on his scoresheet was improper is without merit. The State’s factual basis, which defense counsel stipulated to, clearly alleges that appellant had sexual contact with the victim — specifically, that appellant, during the dates in question, “did actually commit oral sex upon the victim in this case, ... and that she performed oral sex upon him during that timeframe,” and that “the defendant did intentionally have the victim ... perform masturbation upon him.” Thus, the trial court did not err in imposing forty victim injury points for sexual contact for each count. Our supreme court has held that victim injury points for sexual contact are not limited “to instances where there was a union of the sexual organ of one person with the oral, anal, or vaginal opening of another.” Seagrave v. State, 802 So.2d 281, 291 (Fla.2001); see also, e.g., Beasley v. State, 503 So.2d 1347, 1349 (Fla. 5th DCA 1987) (trial court properly scored victim injury for lewd and lascivious assault count upon a child where defendant opened victim’s legs and started to pull down her bathing suit and shorts); Mackey v. State, 516 So.2d 330, 330 (Fla. 1st DCA 1987) (points properly assessed for sexual contact where defendant “touchfed] the victim about the crotch”).

Affirmed.

WARNER and STEVENSON, JJ., concur.


text:
    Emanuel L. O’NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-167.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.

      Emanuel L. O’Neal, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Emanuel L. O’Neal (Defendant) appeals an order summarily denying his rule 8.850 motion for post-conviction relief. We reverse in part.

Following a jury trial, Defendant was found guilty as charged of burglary of a dwelling and grand theft. The point of entry into the burglarized house, which the police officer, who was dispatched to respond to the victim’s burglar alarm, viewed from a neighbor’s backyard, was a broken window on the southwest side of the victim’s house. At trial, defense counsel did not present evidence but argued that the alleged victim, Defendant’s first cousin, had a grudge against him.

Of the ten claims of ineffective assistance which Defendant raised in the instant motion, this court issued an order to show cause limited to the eighth one, in which he claimed that his defense counsel was ineffective for failing to investigate and take photographs of the point of entry to show that Defendant was physically too large to come through the window. He noted that at the time of his arrest, he was 6' 2" in height, weighed 265 pounds, and had a 50-inch waist; he had told counsel many times that there was no way he could have squeezed through the 10" window. He attached as exhibit A to his motion two photographs of the three-part window, with notations indicating the entire window was 87 1/2 by 33 3/4 inches and each pane was 10 by 34 inches. Had counsel presented such photographs to the jury, he maintained, they would have agreed that only a skinny person could have entered the victim’s home through that little window.

The State pointed out in its response below, and in its response filed in this court, that counsel elicited testimony from the victim about the physical characteristics of the window and argued at closing that whoever entered that way would have left blood or hair samples behind, but none were in evidence. It attached a trial transcript which reflects that the victim testified he was sure Defendant got in through a window, the kind with a crank that rolls in and out, with three panels that roll in and out together. One of those three was broken; the glass was shattered and the framework “bent all up.” Defense counsel argued that it was not reasonable for someone, within three to five minutes, to break a window, climb through, and not to leave any blood, hair, clothing, or DNA.

This kind of argument was not the same as arguing, with evidence, that the Defendant could not fit through the space in question. As overwhelming as the State’s evidence appears to be, if the jury had accepted Defendant’s position that the victim had a grudge against him, the evidence also could have been explained as a set-up by the alleged victim. Even the tape-recorded voice messages coming from Defendant’s phone were incriminating only when the victim explained what he heard Defendant saying in them; on the trial transcript, the messages were entirely inaudible.

The State acknowledges that ordinarily an evidentiary hearing is necessary to resolve the question of whether an act or omission claimed to be deficient was a reasonable tactical strategy. E.g., Button v. State, 941 So.2d 531, 533 (Fla. 4th DCA 2006) (“A trial court cannot deny a motion for post-conviction relief by finding that defense counsel’s decision was tactical or trial strategy without first holding an evidentiary hearing.”). Nevertheless, the State argues that failure to present evidence of the size of the window was part of defense counsel’s strategy, because he used it to attack the State’s lack of evidence, and asserts that the fact that it was defense counsel trial strategy is evident from the face of the record. We disagree.

Accordingly, the summary denial is reversed in part and remanded for an evi-dentiary hearing, as to the eighth ground for relief. With regard to the remaining claims, we affirm without discussion.

Affirmed in part, Reversed in part, and Remanded.

GROSS, C.J., WARNER and POLEN, JJ., concur.


text:
    Abraham Ben YISRAEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-804.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.
    Abraham Ben Yisrael, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s order that denied appellant’s Motion for Dismissal/New Trial. However, this court’s affir-mance is without prejudice to appellant raising the Brady issue within a properly sworn Florida Rule of Criminal Procedure 3.850 motion to be filed within thirty days of this decision. See Fla. R.Crim. Pro. 3.987.

HAZOURI, CIKLIN and GERBER, JJ., concur.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


text:
    Octavius D. WARE, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3015.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.
    Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this probation revocation ease, the state properly concedes that the trial court’s written order does not conform to the court’s oral pronouncement concerning the conditions of probation Appellant violated. Additionally, we agree with Appellant that the trial court abused its discretion in determining that Appellant violated his probation by committing the offense of possession of a firearm by a convicted felon because the record does not contain sufficient non-hearsay evidence to support this finding. However, we need not remand for reconsideration based on this error because it is clear from the record that the trial court would have revoked Appellant’s probation and imposed the same sentence based solely on the domestic battery offense, which was supported by sufficient evidence. Cf. Thomas v. State, 453 So.2d 156, 157 (Fla. 1st DCA 1984) (explaining that when a portion of a probation order is reversed, the court will remand for reconsideration if it cannot be determined from the record that the trial court would have revoked probation and imposed the same sentence on the remaining grounds). Accordingly, we remand to the trial court only to correct the revocation order to reflect that Appellant violated his probation by committing the offense of domestic battery. We affirm the other issues raised by Appellant without further comment.

AFFIRMED in part; REMANDED for correction of revocation order.

ROBERTS, CLARK and WETHERELL, JJ., concur.

         At the end of the revocation hearing, the trial court stated that it "f[ou]nd the evidence extremely convincing in this case that there was a violation of probation”; that the violation was willful and substantial; and that the evidence "certainly convinces [the court] that there was domestic battery....” At the sentencing hearing, the trial court rejected Appellant’s request for leniency, noting that Appellant had already been given several "second chances” by having been placed on and returned to probation. The court stated that the circumstances of the case were "particularly aggravating” and that "the circumstances suggest a long period of incarceration is appropriate.” The trial court’s comments at the sentencing hearing focused on the domestic battery, as did the new conditions of probation imposed by the court, i.e., batterer’s intervention program and no-contact order with the victim. The possession of firearm offense was not even mentioned at the sentencing hearing.