author:
CANADY, C.J.
      PARIENTE, J.,

text:
    Andrea JOHNSON, Petitioner, v. STATE of Florida, Respondent. Bernard Joyner, Petitioner, v. State of Florida, Respondent.
    Nos. SC08-418, SC08-1489.
    Supreme Court of Florida.
    April 21, 2011.

      Carlos J. Martinez, Public Defender, and Shannon Patricia McKenna, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioners.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Ha Thu Dao, Assistant Attorney General, Tampa, FL, Heidi Milan Caballero and Nikole Hiciano, Assistant Attorneys General, Miami, FL, for Respondents.
   CANADY, C.J.

In these consolidated cases we consider whether challenges to plea agreement provisions concerning credit for time served are cognizable under Florida Rule of Criminal Procedure 3.800(a). Andrea Johnson seeks review of Johnson v. State, 974 So.2d 1152 (Fla. 3d DCA 2008), and Bernard Joyner seeks review of Joyner v. State, 988 So.2d 670 (Fla. 3d DCA 2008). In each case, the Third District Court of Appeal determined that the trial court did not err in denying a rule 3.800(a) motion. The Third District reasoned that relief was not available under rule 3.800(a) because the defendants’ assent to written plea agreements that provided the defendants would receive credit for time served for a specific period constituted waivers of any additional credit for time served. Johnson and Joyner correctly contend that the Third District’s decisions expressly and directly conflict with the decision of the Fifth District Court of Appeal in Davis v. State, 968 So.2d 1051 (Fla. 5th DCA 2007), which held that a plea agreement provision regarding credit for time served could be challenged under rule 3.800(a). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

For the reasons we explain, we approve the decisions in Johnson and Joyner.. We conclude that the challenges made by Johnson and Joyner to the credit-for-time-served provisions of their plea agreements were not cognizable under rule 3.800(a). We disapprove the Fifth District’s decision in Davis.

I. BACKGROUND

On November 5, 2002, Johnson pleaded guilty to armed robbery and possession of a firearm by a felon. Johnson was placed on probation for a period of four years, with the special condition that he would participate in the Miami-Dade County Corrections and Rehabilitation Department Boot Camp Program. During the probationary term, an affidavit of violation of probation was filed, alleging that Johnson violated his probation by committing new offenses, failing to report to his probation office as directed, and failing to pay his supervision costs.

The trial court subsequently conducted a hearing on the alleged violations of probation. At the hearing, the State withdrew the allegation, that Johnson had committed new substantive offenses, and Johnson admitted that he violated his probation by failing to report to his probation office and by failing to pay his supervision costs. Additionally, ' the State and Johnson reached an agreement on sentencing. The agreement specified that Johnson would receive a sentence of four years of incarceration, with credit for time served from November 14, 2005. The trial court sentenced Johnson in accordance with the plea agreement, repeatedly stating on the record that Johnson would receive credit for time served from November 14, 2005. That same day, at the clerk of court’s suggestion, the parties and the trial court executed a document titled “Agreement on Credit for Time Served.” The document expressly provided that as part of his plea agreement, Johnson would receive “all credit for time served from 11/14/05.”

On April 16, 2007, Johnson filed a pro se rule 3.800(a) motion. Johnson asserted that he should have received credit for the time he spent in the boot camp program— which predated November 14, 2005 — toward the four-year sentence he received upon his violation of probation. The trial court denied Johnson’s request for additional credit, finding that Johnson “made a knowing, voluntary and intelligent plea” and was “only entitled to ... jail credit from the agreed upon date of November 14, 2005.”

On appeal, the Third District affirmed the trial court’s denial of relief. While acknowledging that the Fifth District had reached a contrary conclusion in Davis, 968 So.2d at 1052 (holding that a plea agreement stating that defendant would receive 1531 days of credit was not “conclusive evidence” that defendant validly waived any additional' credit), the Third District determined that “a provision in a plea agreement that the defendant is to be awarded credit for time served from a specific date .effectively waives any claim to credit for time served before that date.” Johnson, 974 So.2d at 1152 (citing Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005)). The Third District then held that in Johnson’s case, “the defendant’s agreement in writing and in the plea colloquy to having violated probation specifically in return for a four-year state prison sentence with ‘all credit for time served from 11/14/05,’ precludes his present claim for credit for time spent in boot camp in 2002.” Id. at 1158.

Joyner’s case is procedurally similar. According to his rule 8.800(a) motion, on May 17, 2004, Joyner pleaded guilty to false imprisonment and was sentenced to five years of probation. On November 28, 2006, he was arrested for allegedly violating his probation. On February 15, 2007, Joyner admitted the violation, and pursuant to a plea agreement, he was sentenced to two years of incarceration. The parties and the trial court executed a document titled “Agreement on Credit for Time Served.” The document expressly provided that as part of his plea agreement, Joyner would receive credit for time served “from 11-29, 2006 to 2-15, 2007.”

On October 9, 2007, Joyner filed a pro se rule 3.800(a) motion. Joyner asserted that in addition to the seventy-eight days of credit he received for the period of November 29, 2006, to February 15, 2007, he should have received 122 days of credit for time served while he was awaiting sentencing on the false imprisonment count in 2004. The trial court summarily denied Joyner’s motion, and Joyner appealed in the Third District.

Citing its decision in Johnson, the Third District affirmed the trial court’s denial of Joyner’s motion. The Third District concluded that the provision in the plea agreement — which awarded Joyner credit for time served for a specific period — operated as a waiver of Joyner’s claim for credit for the 122 days he served in 2004.

Johnson and Joyner petitioned this Court to resolve the conflict between the district courts of appeal regarding whether a rule 3.800(a) motion may be denied on the basis that assent to a term in a plea agreement about credit for time served waives any claim to credit not provided for in the plea agreement. We accepted jurisdiction and consolidated the cases. The State has moved this Court to dismiss review in Johnson because Johnson completed his term of incarceration. We hereby deny the motion to dismiss. The doctrine of mootness does not destroy this Court’s jurisdiction in a case such as Johnson’s where the controversy presented “is capable of repetition yet evading review.” State v. Matthews, 891 So.2d 479, 484 (Fla.2004).

II. ANALYSIS

We agree with the Third District that Johnson and Joyner are not entitled to relief. We conclude that challenges to plea agreement provisions regarding credit for time served are not cognizable under rule 3.800(a) because those challenges present factual questions that cannot be resolved on the basis of the court records.

Florida Rule of Criminal Procedure 3.800(a) provides a mechanism for correcting the improper denial of credit for time served. The rule states in pertinent part:

(a) Correction. A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief, provided that a party may not file a motion to correct an illegal sentence under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal.

Fla. R.Crim. P. 3.800(a) (emphasis added). This rule allows defendants to petition “the courts to correct sentencing errors that may be identified on the face of the record.” Williams v. State, 957 So.2d 600, 602 (Fla.2007). “[B]ecause such errors may be resolved as a matter of law, [they] do not require contested evidentiary hearings.” Id. Under rule 3.800(a), “the burden [is on] the petitioner to demonstrate an entitlement to relief on the face of the record.” Id. at 604. The State accordingly has no burden to establish that the petitioner is not entitled to relief. Since “no evidentiary hearing is allowed” under rule 3.800(a), a claim of .error that the petitioner can establish only by relying on facts that are not evident on the face of the record is a claim that cannot be adjudicated under that rule provision. Brooks v. State, 969 So.2d 238, 242 (Fla.2007).

In the instant cases, the written plea agreements informed Johnson and Joyner that by accepting the agreements, they contracted to accept a specific amount of credit for time served. In their motions filed under rule 3.800(a), Johnson and Joyner claimed — notwithstanding the terms of their plea agreements — that they were entitled to relief because section 921.161(1), Florida Statutes (2006), created a statutory right to credit for time served while awaiting sentencing and they did not receive “all of the credit to which they were entitled. Johnson and Joyner did not assert in their rule 3.800(a) motions that their plea agreements should be set aside because they were unaware of the credit-for-time-served provisions or because their pleas were otherwise involuntary. They simply claimed entitlement to the full amount of credit for time served authorized by section 921.161(1).

In their appeals to the Third District from the denial of their motions, Johnson and Joyner conceded that a defendant may waive the statutory right to credit for time served but asserted that the trial courts should have granted their motions because the records in their cases did not demonstrate knowing, intentional, and voluntary waivers of their statutory right to credit. They contended that because their written plea agreements did not inform them of how much time they served while awaiting sentencing or of their statutory right to credit for that time, the plea agreements could not function as valid waivers of credit for time served. Johnson and Joyner now present the same argument as a basis for reversing the Third District.

The Third District did not-err in affirming the denial of the rule 3.800(a) motions. Johnson and Joyner failed to state a legally cognizable claim under rule 3.800(a), which affords relief only when “the court records demonstrate on their face an entitlement to that relief.” The argument presented by Johnson and Joyner is both procedurally barred and substantively meritless.

The argument presented by Johnson and Joyner is procedurally barred because it is based on an issue that was not raised in their rule 3.800(a) motions. Those motions make no assertion concerning the voluntariness of the plea agreements.

Even if the 3.800(a) motions filed by Johnson and Joyner had specifically challenged the knowing and voluntary nature of their plea agreements, such a claim cannot be adjudicated as a matter of law based on the court record alone, as required by rule 3.800(a). See Tatum v. State, 27 So.3d 700, 704 (Fla. 3d DCA 2010) (determining that claim that plea was involuntary due to misadvice of counsel could not “be discerned from the face of the record and [did] not, therefore, fall within .the purview of a Rule 3.800 motion”).

The record of trial proceedings can demonstrate that a defendant was fully informed and acting voluntarily when entering a plea. See Stano v. State, 520 So.2d 278, 280 (Fla.1988) (affirming summary denial of postconviction motion where “numerous quotations from the original record” conclusively refuted the defendant’s postconviction claim that his plea was involuntary). But a defendant challenging a plea provision cannot obtain postconviction relief simply by showing that the record does not demonstrate that he was expressly informed of critical consequences of the plea. The defendant instead must establish that in fact he did not understand his legal rights or otherwise entered the plea involuntarily.

Extra-record sources — such as testimony given by counsel concerning discussions between counsel and the petitioner — are relevant to establishing the circumstances of the plea and whether it was voluntary. See State v. Leroux, 689 So.2d 285, 237 (Fla.1996) (stating that where a defendant seeks to withdraw a plea due to the affirmative misadvice of counsel, the “issue would be best determined by the trial court after testimony from, but not limited to, defendant and his trial attorney”) (quoting Trenary v. State, 453 So.2d 1132, 1134 (Fla. 2d DCA 1984)); see also Lawrence v. State, 969 So.2d 294, 305-06 (Fla.2007) (affirming trial court’s denial of defendant’s claim that his guilty plea was involuntary because he was incompetent at the time of the plea where trial court relied heavily “upon counsel’s statements during the plea and during the posteonviction evidentiary hearing”); Zakrzewski v. State, 866 So.2d 688, 695-96 (Fla.2003) (affirming trial court’s denial of defendant’s claim that his guilty pleas were involuntary due to his counsel’s unfulfilled promise about the admission of evidence where trial court based its decision in part on trial counsel’s testimony about trial-strategy discussions with the defendant). The adjudication of a claim that a plea was involuntary therefore requires an eviden-tiary hearing during which the trial court can consider evidence beyond the trial record that is relevant to whether the defendant adequately understood his legal rights and voluntarily entered the plea. Such a claim is not properly raised via rule 3.800(a), under which “no evidentiary hearing is allowed.” Brooks, 969 So.2d at 242.

Johnson and Joyner’s argument on appeal also confuses the distinct requirements of rule 3.800(a) and rule 3.850. Johnson and Joyner contend that they were entitled under rule 3.800(a) to the award of additional time-served credit because the records in their cases did not conclusively prove that they validly waived their entitlement to full credit for time served. This argument inverts the burden established by rule 3.800(a). The State has no obligation to refute a defendant’s claim raised under rule 3.800(a). On the contrary, “the burden [is on] the petitioner to demonstrate an entitlement to relief on the face of the record.” Williams, 957 So.2d at 604. The defendants’ argument attempts to improperly import into rule 3.800 a requirement from rule 3.850 which specifies in subdivision (d) that an order summarily denying a facially sufficient motion must have attached “a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief.”

Although a rule 3.800(a) motion is not an appropriate procedural vehicle for challenging a term of a plea agreement, a defendant who was sentenced pursuant to a plea agreement with a provision regarding credit for time served has procedural vehicles available for seeking relief from that plea on the basis of misunderstanding the availability of credit for time served. Such a defendant has two options. First, within thirty days after rendition of the sentence, the defendant may raise a claim that the plea was involuntary via a motion to withdraw a plea after sentencing under rule 3.170(0, Florida Rules of Criminal Procedure. Second, within two years from the date the conviction and sentence become final, the defendant may raise a claim under rule 3.850(a)(5), Florida Rules of Criminal Procedure, that the plea was involuntary. See Mikenas v. State, 460 So.2d 359, 361 (Fla.1984) (“This Court has held that the voluntariness of a plea is a recognized ground for relief in a 3.850 proceeding. The appellant has the burden of showing his plea was not knowingly and voluntarily entered.” (citation omitted)); Robinson v. State, 373 So.2d 898, 903 (Fla.1979) (“[T]he failure of a defendant to raise the issue of the validity of the plea by an appeal does not prohibit him from subsequently seeking collateral relief if the issues have not been previously addressed and ruled upon.”). Unlike rule 3.800(a), rules 3.170(1) and 3.850(a)(5) do not require the defendant to allege that entitlement to relief is apparent on the face of the record.

Neither rule 3.170(1) nor rule 3.850(a)(5), however, would afford relief of the type sought by Johnson and Joyner— that is, the unilateral alteration of the terms of a plea agreement. Johnson and Joyner seek to maintain the benefits which flowed to them from the plea agreements while depriving the State of at least a portion of the benefits for which the State bargained. The terms of a plea agreement cannot be rewritten in such a fashion. “When a criminal defendant seeks to withdraw a negotiated plea, or to attack it collaterally, if he is successful he loses the benefit of the bargain he has elected to attack.” Moreland v. Smith, 664 So.2d 1039, 1040 (Fla. 2d DCA 1995). Accordingly, a defendant who establishes that his plea was entered involuntarily is entitled to withdraw the plea but not to unilaterally rewrite the plea agreement to his advantage.

This Court has previously directed that a motion filed under rule 3.800(a) may be treated as a motion filed under rule 3.850 where it is in the “interest of justice to do so” and the motion would be timely under rule 3.850. Brooks, 969 So.2d at 243 n. 8 (quoting Hall v. State, 643 So.2d 635, 636 (Fla. 1st DCA 1994)). In the instant cases, however, the motions filed by Johnson and Joyner also do not state a prima facie claim under rule 3.850. Again, neither defendant alleged in his motion that his plea was involuntary. Nor did they allege trial counsel’s ineffectiveness as a basis for setting aside their pleas. Accordingly, the trial courts and the Third District did not err by not considering the motions filed by Johnson and Joyner as motions filed pursuant to rule 3.850.

III. CONCLUSION

Based on the foregoing, we approve the denial of relief in Johnson and Joyner. We also disapprove Davis.

It is so ordered.

PARIENTE, POLSTON, LABARGA, and PERRY, JJ., concur.

PARIENTE, J., concurs with an opinion, in which QUINCE, J., concurs.

LEWIS, J., concurs in result.

PARIENTE, J.,

concurring.

A defendant is entitled to credit “for all time served” in Florida jails before sentencing. § 921.161(1), Fla. Stat. (2010). Jail credit may be waived, but the waiver must be specific, voluntary, and clear from the face of the record. Therefore, if the defendant did not waive additional credit to time served as a result of a negotiated plea, the claim can be a basis to set aside a plea agreement. However, I agree with the majority that the claim made by the defendant in this case cannot be raised through rule 3.800(a), because the “proper credit for time served” is not demonstrated on the face of the court records.

The question in this case remains whether these defendants affirmatively waived their entitlement to any additional credit for time served when they entered the written plea agreement. There is no evidence of an affirmative waiver in the record. Because the issue of credit for time served is one of the essential aspects of a sentence, I would require in the future that the defendant be explicitly advised of his entitlement to credit for time served and that waiver of any additional credit for time served be explicitly set forth in the plea agreement and the plea colloquy. For example, in White v. State, 995 So.2d 1172, 1174 (Fla. 4th DCA 2008), the Fourth District held that the defendant waived any claim for additional time served because he had entered a negotiated agreement that called for a specific sentence, which contemplated a specific amount of credit for time served. The provision in the plea form in White also contained the following in bold and capital letters: “I AM WAIVING ALL OTHER CREDIT FOR TIME ALREADY SERVED.” Mat 1173.

While not granting relief in this case, the Court has determined that in the future all plea agreements and colloquies specifically address the issue of credit for time served and contain an explicit waiver. The exact form of the colloquy and waiver will be referred to the appropriate rules committee.

QUINCE, J., concurs.

      . While not the basis of this Court's jurisdiction, certain other decisions have — like Davis — treated challenges to credit-for-time-served provisions of plea agreements as cognizable under rule 3.800(a). See, e.g., Howard v. State, 40 So.3d 46 (Fla. 4th DCA 2010); Rudicil v. State, 31 So.3d 328 (Fla. 4th DCA 2010); Reddix v. State, 15 So.3d 614 (Fla. 3d DCA 2009); Velasquez v. State, 11 So.3d 979 (Fla. 1st DCA 2009); Giggetts v. State, 5 So.3d 756 (Fla. 1st DCA 2009); Silverstein v. State, 654 So.2d 1040 (Fla. 4th DCA 1995).

      . Florida Rule of Appellate Procedure 9.141(b)(2)(D), which establishes appellate procedures for reviewing summary denials of motions for postconviction relief filed under criminal rules 3.800(a), 3.850, or 3.853, does not alter the burden of proof placed on the petitioner by rule 3.800(a). In an appeal from the denial of a rule 3.800(a) motion, if the "court records” do not "demonstrate on their face an entitlement to ... relief,” Florida Rule of Criminal Procedure 3.800(a), then “the record shows conclusively that the appellant is entitled to no relief,” Florida Rule of Appellate Procedure 9.141(b)(2)(D). An appellate court should affirm the summary denial of a rule 3.800(a) motion whenever the appellate court’s review of the record establishes that the defendant did not satisfy the burden of showing entitlement to relief on the face of the record.

      . Unfortunately, the reality is that in the year 2011, to my knowledge, there is no reliable integrated computer system that would ensure that the precise amount of credit for time served would be easily ascertainable to the judge and the parties at the time of the sentencing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Edward SILVA, Appellant, v. MONARCH SECURITY SERVICES, INC. and Aequicap Insurance Company, Appellees.
    No. 1D10-2562.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2010.
    Rehearing Denied March 30, 2011.
    Jeffrey I. Jacobs of Malea and Jacobs, P.A., South Miami; Jay M. Levy of Jay M. Levy, P.A., Miami, for Appellant.
    Simon Abramovici and H. Michael Mun-iz of the Law Office of Jason Gelinas, P.A., Fort Lauderdale, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this court’s order to show cause why the appeal should not be dismissed because the order does not appear to be a final order or a non-final order appealable pursuant to Florida Rule of Appellate Procedure 9.180, we DISMISS this appeal. See Life Care Ctr. of Winter Haven v. Benjamin, 22 So.3d 152, 153 (Fla. 1st DCA 2009) (dismissing appeal where the JCC reserved jurisdiction on issue central to trial proceedings); Betancourt v. Sears Roebuck Co., 693 So.2d 680, 682 (Fla. 1st DCA 1997) (stating where the JCC reserves ruling on claim that is ripe for adjudication, order is not yet final or appealable).

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


text:
    John O. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6676.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2011.
    Rehearing Denied May 5, 2011.
    John O. Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


author: CLARK, J.

text:
    CITY OF QUINCY, Appellant, v. Miles K. WOMACK, Appellee.
    No. 1D10-120.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Rehearing Denied April 26, 2011.

      Karen D. Walker and Gigi Rollini, of Holland & Knight LLP, Tallahassee, for Appellant.
    Fred F. Harris Jr., of Greenberg Trau-rig P.A., Tallahassee, for Appellee.
   CLARK, J.

The City of Quincy appeals from an order by which the trial court awarded damages to the appellee, upon the City’s breach of contract. In challenging that award the City contends that the appel-lee’s lawsuit was not filed within the limitations time allowed under section 95.11(2)(b), Florida Statutes. But the City is calculating that time from its initial breach of a continuing obligation under the contract, and the City’s continuing subsequent breaches provided subsequent dates from which the limitations time may be calculated, with the appellee’s lawsuit having been filed within the limitations period under section 95.11(2)(b) for the continuing breach of the parties’ contract.

The City and the appellee entered into a contract which gave the City water rights in connection with a lake on property owned by the appellee, with the City agreeing to ongoing obligations including continuing maintenance and repairs to an existing dam and spillway. The City later decided that it no longer needed to use the water from the lake on the appellee’s property, and the City further decided that it would cease maintaining and repairing the dam and spillway. That decision was apparently made in February 2003, but the City did not communicate this to the ap-pellee until May 2008, after the appellee contacted the City and complained about the City’s failure to perform the required maintenance and repairs.

The appellee filed his lawsuit against the City in June 2008, and indicated that he had not realized that the City was no longer maintaining the dam until problems arose after heavy rains earlier in 2008. The City interposed a statute of limitations defense, asserting that the five-year limitations period in section 95.11(2)(b) commenced in February 2003 when the City ceased performing its obligations under the contract, and that the appellee’s lawsuit was thus barred as it was not filed within that limitations time. The trial court rejected that assertion, and the City now challenges the trial court’s ruling and the award of damages for the City’s breach of the contract.

In asserting that the limitations period had expired, the City ignores the continuing nature of its obligations under the contract, and that its ongoing nonperformance constituted a continuing breach while the contract remained in effect. The ap-pellee’s cause of action was not limited to the City’s initial breach, and the section 95.11(2)(b) statute of limitations had not expired when the appellee filed his lawsuit which encompassed the City’s continuing breach. See Bishop v. State, Div. of Retirement, 413 So.2d 776 (Fla. 1st DCA 1982). The trial court properly rejected the City’s statute of limitations defense, and the appealed order is affirmed.

KAHN and LEWIS, JJ., concur,


text:
    LIGGETT GROUP LLC, Appellant, v. Franklin D. CAMPBELL, as personal representative of the Estate of Betty Jean Campbell, Appellee. Philip Morris USA Inc. and R.J. Reynolds Tobacco Company, Appellants, v. Franklin D. Campbell, as personal representative of the Estate of Betty Jean Campbell, deceased, Appellee.
    Nos. 1D10-0207, 1D10-0210.
    District Court of Appeal of Florida, First District.
    March 14, 2011.
    Rehearing Denied May 13, 2011.
    Kelly Anne Luther and Leonard A. Fei-wus of Kasowitz, Benson, Torres & Friedman, LLP, Miami and Karen H. Curtis of Clarke, Silverglate & Campbell, P.A., Miami, for Appellant Liggett Group, LLC.
    Larry Hill and Charles F. Beall, Jr. of Moore, Hill & Westermoreland, P.A., Pensacola, Mark A. Belasic of Jones Day, Cleveland, OH, pro hac vice, Jason F. Keehfus, Stephanie E. Parker, and John F. Yarber of Jones Day, Atlanta, GA, pro hac vice, and Gregory G. Katsas of Jones Day, Washington, D.C., pro hac vice, for Appellant R.J. Reynolds Tobacco Company.
    P. Michael Patterson of Emmanuel, Sheppard, Condon, Pensacola, Kenneth J. Reilly and Rafael Cruz-Alvarez of Shook, Hardy & Bacon, LLP, Miami, for Appellant Philip Morris USA, Inc.
    David J. Sales of Searcy, Denney, Scaro-la, Barnhart & Shipley, P.A., West Palm Beach and Philip M. Burlington and Bard D. Rockenbach of Burlington & Rocken-bach, P.A., West Palm Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010).

BENTON, C.J., WEBSTER, and LEWIS, JJ., concur.


text:
    Corey Jermaine TOWNSEND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0802.
    District Court of Appeal of Florida, First District.
    March 16, 2011.
    Rehearing Denied May 10, 2011.
    Corey Jermaine Townsend, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is hereby denied as successive. See Jenkins v. Wainwright, 322 So.2d 477, 478 (Fla.1975) (stating that once a petitioner seeks relief in a particular court by means of a petition for extraordinary writ, he has picked his forum and is not entitled to a second or third opportunity for the same relief by the same writ).

BENTON, C.J., PADOVANO and WETHERELL, JJ., concur.


author: COHEN, J.

text:
    Wendy BETTS, Appellant, v. FASTFUNDING THE COMPANY, INC., Thomas Assenzio, J. Armstrong, Cheyenne Financial Services Corp., and Charles Hallinan, Appellees.
    No. 5D09-1841.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2011.
    Rehearing Denied May 16, 2011.

      Theodore J. Leopold and Diana L. Martin of Leopold-Kuvin, P.A., Palm Beach Gardens; E. Clayton Yates of Yates & Mancini, LLC, Fort Pierce; Christopher Casper of James, Hoyer, Newcomer & Smiljanieh, P.A., Tampa; and Richard A. Fisher of Richard Fisher Law Office, Cleveland, TN, for Appellant.
    John A. Boudet of Roetzel & Andress, Orlando and Susan Verbonitz of Weir & Partners LLP, Philadelphia, PA, for Ap-pellees FastFunding The Company, Inc., Thomas Assenzio and J. Armstrong.
    Neil A. Sivyer of Sivyer Barlow & Watson, P.A., Tampa, for Appellees Cheyenne Financial Services Corp. and Charles Hal-lman.
   COHEN, J.

Wendy Betts appeals the trial court’s order denying her renewed motion for the appointment of an arbitrator capable of fulfilling this court’s mandate as part of her plenary appeal of the lawsuit’s voluntary dismissal with prejudice. We reverse and remand for further proceedings in order to enforce this court’s mandate.

Appellees preliminarily dispute this court’s jurisdiction and alternatively contend that the law of the case bars consideration of the appointment of a substitute arbitrator. This court has jurisdiction over the trial court’s nonfinal order denying the appointment of a substitute arbitrator on plenary appeal following entry of the final judgment. See Dreggors v. Employers Ins. of Wausau, 16 So.3d 309, 310 (Fla. 5th DCA 2009) (Griffin, J., concurring). The law of the case doctrine is inapplicable because the issue Appellant raises has never been considered and decided in a prior appeal involving this case. See Bloco, Inc. v. Porterfield Oil Co., 990 So.2d 578, 581 (Fla. 2d DCA 2008). Earlier appeals have considered various aspects of the arbitrability of the parties’ dispute, but not this issue.

This is the parties’ fourth appearance before this court since Appellant filed suit in 1999 challenging the legality of payday cash advance loans. Eight years were spent litigating whether Appellant was bound by the arbitration agreement she signed. Once that question was answered affirmatively and, on remand from the Florida Supreme Court, this court in FastFunding The Company, Inc. v. Betts, 951 So.2d 116, 116 (Fla. 5th DCA 2007), ordered:

Under [Buckeye Check Cashing, Inc. v.] Cardegna, [546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006)], the arbitrator must determine whether the contract at issue is illegal (as usurious) under Florida law. Additionally, the arbitrator must determine whether, under Florida law, the arbitration may proceed as a class action. See Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 123 S.Ct. 2402, 156 L.Ed.2d 414[] (2003).

Pursuant to the mandate, Appellant filed her class action complaint with the National Arbitration Forum (“NAF”), the arbitral forum designated under the agreement for loans from FastFunding The Company, Inc. (“FastFunding”). The agreement also provided that any claim or dispute would be resolved under NAF’s Code of Procedure (“Code”). The Code contains class arbitration rules and states it shall be interpreted in conformity with the Federal Arbitration Act (“FAA”).

After NAF reviewed Appellant’s class action complaint, it acknowledged Appellant’s request to certify a class under Code Rule 18, but requested she comply with Code Rule 19’s requirements: submitting all parties’ agreement to the class members’ joinder, all putative class members’ names, as well as copies of their arbitration agreements. NAF demanded compliance in twenty days in order to proceed with arbitration.

As part of Appellant’s claim supplement, she pointed out the quandary created by NAF’s rules that required her to name putative class members and supply copies of their arbitration agreements when all such pertinent data was within FastFund-ing’s exclusive possession. Ultimately, NAF accepted only Appellant’s claim, effectively denying any putative class claims of other consumers harmed by Appellees’ conduct. In response, Appellant withdrew her demand for arbitration with NAF and requested dismissal of her claim in arbitration against Appellees.

Contending that NAF was unwilling and unable to follow this court’s mandate and citing the lack of any contractual provision for an alternative arbitral forum, Appellant sought to lift the trial court’s stay and renewed her motion for the appointment of an alternative arbitrator capable of fulfilling this court’s mandate. Taking the stand that NAF’s opt-in procedure for class actions was unconscionable under Florida law, Appellant asserted that NAF was incapable of complying with this court’s mandate. In support, two of Appellant’s attorneys filed affidavits describing the abusive system they faced in attempting to arbitrate claims with NAF in this, and other lawsuits. Despite Appellant’s protestations regarding the Code’s class rules and difficulties encountered in pursuing class arbitration with NAF, she elected to voluntarily dismiss her claim before an arbitrator was appointed and before discovery of putative class members. At the hearing, the trial court denied relief and, pursuant to Appellant’s request, dismissed the lawsuit with prejudice.

The crux of this appeal concerns whether and how the class arbitration will proceed. To complicate matters, both parties acknowledge that less than two months after the appeal was filed, NAF ceased arbitrating consumer complaints.

This court’s mandate directing arbitration was not followed. “When an appellate court issues a mandate, compliance with the mandate is purely a ministerial act.” Formor v. State, 923 So.2d 563, 564 (Fla. 5th DCA 2006). “The circuit court does not have the authority to modify, nullify, or evade that mandate.” Id. Affirming the dismissal with prejudice of Appellant’s lawsuit would preclude any determination on the merits even though Code Rule 40F allows the first voluntary dismissal of a claim to be without prejudice and permits the claim to be refiled.

The FAA and NAF’s Code of Procedure permit arbitrators to decide whether class actions may be arbitrated under a particular contractual provision. See Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 451-52, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003). Interpretation of arbitration rules are for the arbitrator to decide. Della Penna v. Zabawa, 931 So.2d 155, 162 (Fla. 5th DCA 2006). “Both federal and Florida public policy favor resolving disputes through arbitration when the parties have agreed to do so.” Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 262 (Fla. 2d DCA 2004) (citations omitted). Thus, we must construe the contract in a way that gives a reasonable meaning to all terms, rather than in a way that will render part of the contract of no effect. Id. The presence of a severability clause in NAF’s procedural rules permits the arbitrator to sever any offending provision without affecting the parties’ agreement to arbitrate. See Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1024 (Fla. 4th DCA 2005).

It is premature for this court to weigh in on the legality of the Code’s class rules and other issues raised by the parties. We agree with Appellees that there is nothing for this court to review until an arbitrator reaches a decision on the mandate. Accordingly, we outline steps the trial court and arbitrator should follow in going forward with this lawsuit.

The trial court must first evaluate the consequences of NAF’s unavailability. The Eleventh Circuit addressed the question in Brown v. ITT Consumer Financial Corp., 211 F.3d 1217, 1222 (11th Cir.2000) (citations omitted):

The unavailability of the NAF does not destroy the arbitration clause.... Where the chosen forum is unavailable, ... § 5 [of the FAA] applies and a substitute arbitrator may be named. Only if the choice of forum is an integral part of the agreement to arbitrate, rather than an “ancillary logistical concern” will the failure of the chosen forum preclude arbitration.

Absent any evidence that the choice of NAF as the arbitral forum was an integral part of the agreement to arbitrate, this matter will proceed in arbitration with an arbitrator the trial court selects pursuant to 9 U.S.C. § 5. See New Port Richey Med. Investors, LLC v. Stern, 14 So.3d 1084, 1087 (Fla. 2d DCA 2009). The FAA provides that when there is a lapse in naming an arbitrator, “upon application of either party to the controversy the court shall designate and appoint an arbitrator ... who shall act under the said agreement with the same force and effect as if he ... had been specifically named therein....” 9 U.S.C. § 5.

If the trial court determines NAF’s availability was not integral to the agreement to arbitrate, then it must appoint a substitute arbitrator to make the determinations this court mandated: whether, under Florida law, the contract at issue is illegal (as usurious) and whether the arbitration may proceed as a class action. Appellant argues that the Code’s opt-in class rule is unconscionable under Florida law which utilizes an opt-out procedure under rule 1.220. Courts have held that “[u]nder Florida law, a consumer contract that prohibits class arbitration is unconscionable because it ‘precluded] the possibility that a group of its customers might join together to seek relief that would be impractical for any of them to obtain alone.’ ” Rollins, Inc. v. Garrett, 176 Fed.Appx. 968, 968-69 (11th Cir.2006), citing Powertel, Inc. v. Bexley, 743 So.2d 570, 576 (Fla. 1st DCA 1999).

More recently, the Fourth District in McKenzie v. Betts, 55 So.3d 615 (Fla. 4th DCA 2011), affirmed the denial of a payday lender’s motion to compel arbitration because the arbitration agreement’s class action waiver violated Florida public policy. In analyzing the issue, the Fourth District recognized the tension between the public policies generally favoring the enforcement of arbitration agreements and those underlying remedial statutes like the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) and the Florida Civil Remedies for Criminal Practices Act, under which Appellant also brought claims in the present case. See id. at 623-628. The Fourth District concluded that the inability to bring a class action suit against the lender would eviscerate the remedial purposes of the relied-upon statutes and that it was “[o]nly with the availability of class representation would consumers’ rights in these payday loan transactions be vindicated.” Id. at 623. Further, the court concluded that the class action waiver purported to prevent a borrower from joining the government initiated enforcement action permitted under FDUTPA.

This case is, in part, distinguishable because arbitration has already been ordered and the Code includes class action rules. The question remains, as mandated, whether, under Florida law, the arbitration may proceed as a class action. How McKenzie’s reasoning, applies to the instant case and whether the Code’s class action rules are consistent with Florida’s public policy are issues for the arbitrator. We simply note that in the absence of contrary precedent from either the supreme court or this court, the arbitrator, like the trial court, is bound to follow decisions of other district courts of appeal that are on point. See id.; Dawkins, Inc. v. Huff, 836 So.2d 1062, 1064 (Fla. 5th DCA 2003).

In sum, we reverse the trial court’s dismissal with prejudice of Appellant’s lawsuit and remand for the trial court to evaluate the appointment of an arbitral forum pursuant to 9 U.S.C. § 5. Any arbitrator so appointed shall consider the mandate from Betts, 951 So.2d 116.

REVERSED and REMANDED for further proceedings.

SAWAYA and LAWSON, JJ., concur.

      . Betts v. FastFunding The Company, Inc., 950 So.2d 379 (Fla.2006).


text:
    John Allan TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1283.
    District Court of Appeal of Florida, First District.
    March 30, 2011.
    Rehearing Denied May 5, 2011.
    John Allan Turner, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits. See Squires v. State, 450 So.2d 208, 211 (Fla.1984) (“Where a defendant is convicted of first-degree murder, an error or omission in an instruction on the lesser included offense of manslaughter is not fundamental error”).

WOLF, DAVIS, and PADOVANO, JJ., concur.


author: WETHERELL, J.

text:
    Carmen HERNANDEZ, Appellant, v. PALMETTO GENERAL HOSPITAL, Appellee.
    No. 1D10-2730.
    District Court of Appeal of Florida, First District.
    March 31, 2011.
    Rehearing Denied May 11, 2011.

      Thomas C. Horner of Burke & Horner, Miami, for Appellant.
    Douglas W. Barnes of Douglas W. Barnes, P.A., Miami Lakes, for Appellee.
   WETHERELL, J.

In this workers’ compensation appeal, Claimant seeks reversal of an order of the Judge of Compensation Claims (JCC) dismissing all of her pending petitions for benefits (PFBs) with prejudice. The JCC dismissed the PFBs based on Claimant’s failure to pay, and her failure to attend a hearing to explain her failure to pay, the costs entered against her after the dismissal of several prior PFBs. Because the record does not establish that Claimant’s failure to attend the hearing was a willful or flagrant disregard of the JCC’s authority, the JCC abused his discretion in dismissing the PFBs on that basis. This error was not harmless and, therefore, we reverse the dismissal order and remand for further proceedings consistent with this opinion. ■

Background

Claimant filed several PFBs while she was represented by her former attorney, Richard Zaldivar. The PFBs were voluntarily dismissed, but then re-filed shortly thereafter. In June 2009, the JCC ordered Claimant to pay $3,647.86 in costs to the employer/carrier (E/C) pursuant to section 440.34(3), Florida Statutes, related to the voluntarily dismissed PFBs. The cost order was per curiam affirmed by this court. Hernandez v. Palmetto Gen. Hosp., 25 So.3d 563 (Fla. 1st DCA 2009) (table).

After the mandate issued, the E/C moved to dismiss the new PFBs pursuant to section 440.24(4) because Claimant had not complied with the cost order. The JCC entered an order directing Claimant to show cause, through a “written pleading,” why the PFBs should not be dismissed. Claimant, with the assistance of Zaldivar, filed a written response and a detailed financial affidavit, asserting that Claimant was not willfully avoiding payment but rather was financially unable to pay. The response also requested an evi-dentiary hearing so that Claimant could testify as to her financial status. The JCC set a hearing, requiring Claimant’s live attendance; however, before the hearing occurred, Zaldivar withdrew from representation.

Claimant was aware of the hearing and her need to attend; an attorney in Zaldi-var’s office “made it clear to her that she had an obligation to attend the ... hearing either alone or accompanied by new counsel.” Shortly before the hearing, Claimant made contact with another law firm and spoke with Edward Rodriguez-Vado, a certified paralegal, who undertook the task of assisting Claimant. Rodriguez-Vado called Zaldivar’s office and was informed by Angela, a secretary assigned to Claimant’s case, that the hearing had been can-celled. Rodriguez-Vado gave this information to Claimant and also advised her to contact Angela to confirm this information. Claimant called Zaldivar’s office and Angela informed her that the hearing was can-celled and that she did not need to attend. At no point did Rodriguez-Vado or Claimant contact the JCC’s office to confirm whether the hearing had indeed been can-celled.

The hearing had not been cancelled, and it was held as scheduled. The Claimant did not attend the hearing. The JCC, unaware of Claimant’s reasons for not attending, entered an order dismissing all pending PFBs with prejudice based on Claimant’s failure to pay the costs as required by the cost order (and her failure to show good cause for this failure) and her failure to appear at the hearing. The JCC found that Claimant “willfully and wantonly failed to appear in violation of this tribunal’s ... Notice of Hearing requiring her to appear live.” The JCC also found that, although Claimant might not have been able to pay the costs, her financial affidavit was “self-serving” and, thus, insufficient evidence to justify her failure to comply with the cost order.

After the entry of the dismissal order, Claimant, through a new attorney, filed an emergency motion to set aside the order with accompanying affidavits from Claimant and Rodriguez-Vado. The motion alleged that, although Claimant was initially aware of the hearing and her need to attend, she subsequently came to believe (based on the information imparted by Rodriguez-Vado and Angela) that the hearing had been cancelled and, as a result, she did not attend.

The JCC held a hearing on Claimant’s motion to vacate the dismissal order, at which time Claimant and Rodriguez-Vado testified as to the events leading up to Claimant’s non-attendance at the prior hearing. Rodriguez-Vado testified that, based on the information he obtained from Angela in Zaldivar’s office, he told Claimant that the hearing had been cancelled. Rodriguez-Vado’s testimony was not impeached in any significant manner, except to the extent that it demonstrated his lack of familiarity with the workers’ compensation system. Claimant’s testimony was consistent with that of Rodriguez-Vado, and there was no evidence that the facts relating to Claimant’s non-attendance at the prior hearing were other than as testified to by Claimant and Rodriguez-Vado. Claimant also testified as to her limited income and assets and her inability to pay the cost order. Her testimony was consistent with the affidavit she filed in response to the initial show cause order, and was not rebutted.

After the hearing, the JCC entered an order denying Claimant’s motion to vacate the dismissal order. The JCC found that Claimant’s reliance on the statements made by Angela and Rodriguez-Vado was “unreasonable” because Claimant had been specifically told by an attorney in Zaldi-var’s office that she was required to attend the hearing, and neither Claimant nor Rodriguez-Vado contacted the JCC’s office to confirm the status of the hearing after receiving conflicting information from a secretary in Zaldivar’s office. This timely appeal followed.

Analysis

We review the dismissal order in this case for an abuse of discretion. Hill v. Greyhound Lines, Inc., 988 So.2d 1250, 1251 (Fla. 1st DCA 2008) (“The standard of review for orders dismissing a party’s case with prejudice is whether the JCC abused his or her discretion.”).

Section 440.33(1) authorizes the JCC to “do all things conformable to law which may be necessary to enable the judge effectively to discharge the duties of her or his office.” This statute and its implementing rule, Florida Administrative Code Rule 60Q-6.125, authorize the JCC to impose appropriate sanctions when a party or attorney fails to comply with an order issued by the JCC. See Hill, 988 So.2d at 1252. The sanctions imposed must be commensurate to the offense committed and must be “limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.” Fla. Admin. Code R. 60Q-6.125(5)(a). Dismissal with prejudice is the “most severe of all sanctions, and should be employed only in extreme circumstances,” such as where the party’s conduct was willful, flagrant, or deliberate, and only when the moving party demonstrates meaningful prejudice. Hill, 988 So.2d at 1251 (internal citations omitted); see also Martinez v. Collier County Pub. Schs., 804 So.2d 559 (Fla. 1st DCA 2002) (reversing order dismissing PFB based upon the failure of the claimant’s attorney to personally appear at a pretrial conference because there was good cause for counsel’s failure to appear and dismissal was too severe of a sanction in any event).

Here, the record supports the JCC’s finding that Claimant’s failure to appear at the hearing on the order to show cause was “unreasonable” under the circumstances. But no reading of the record supports a finding of the level of willful or flagrant conduct necessary to justify dismissal of the PFBs with prejudice. Accordingly, although sanctions may be appropriate for Claimant’s “unreasonable” failure to attend the hearing on the order to show cause, the JCC abused his discretion by imposing the ultimate sanction— dismissal of Claimant’s PFBs with prejudice — for that conduct.

The dismissal order was also based on section 440.24(4) and Claimant’s failure to pay the cost order. Thus, in determining whether the error discussed above was harmful (and, thus, requires reversal), it is necessary to consider whether the JCC properly dismissed the PFBs with prejudice under section 440.24(4), even though that issue was not argued by Claimant as a separate ground for reversal. If the dismissal order can been affirmed on this alternate basis, any error in dismissing the PFBs with prejudice based on Claimant’s failure to attend the hearing to explain her failure to pay the cost order would be harmless. But if that alternate basis would not support dismissal of the PFBs with prejudice, then the dismissal order must be reversed. See Witham v. Sheehan Pipeline Const. Co., 45 So.3d 105, 109 (Fla. 1st DCA 2010) (stating that the test for harmfulness of error in workers’ compensation case is “whether but for such error, a different result may have been reached”).

Assuming (without deciding) that section 440.24(4) authorizes the dismissal of a subsequent proceeding based on the employee’s failure to comply with an order entered in a prior proceeding, the statute clearly does not authorize dismissal with prejudice. By its terms, section 440.24(4) only authorizes claims to be dismissed “until the employee complies with such order,” and, thus, the statute could not support the dismissal of Claimant’s new PFBs with prejudice. Accordingly, the dismissal order cannot be affirmed on the basis of harmless error or the “tipsy coachman” doctrine.

For these reasons, we reverse the dismissal order and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

WOLF and HAWKES, JJ., concur.

      . Claimant correctly argues on appeal that Rodriguez-Vado’s testimony as to what he was told by Angela was not hearsay because it was not being offered for the truth of the matter asserted {i.e., that the hearing was cancelled). Thus, the JCC erred in excluding this testimony.

      . The E/C did not argue in its brief that the order should be affirmed on this alternate basis, but that would not preclude us from doing so because, under the “tipsy coachman” doctrine, the appellate court is required to affirm the lower tribunal if there is any basis in the record to support the judgment on appeal. Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999); see also Staffmarkv. Merrell, 43 So.3d 792, 795 (Fla. 1st DCA 2010) (applying the “tipsy coachman” doctrine in a workers' compensation case).

      . In order to resolve this appeal, we need not determine whether section 440.24(4) is an appropriate mechanism for a party to seek collection or enforcement of a cost order against a non-prevailing adversary. We leave the consideration of that issue to another day when the issue is both squarely presented and fully briefed by the parties.


author: WEBSTER, J.

text:
    Robert PUNSKY, Appellant, v. CLAY COUNTY BOARD OF COUNTY COMMISSIONERS and Scibal Associates, Appellees.
    No. 1D10-3269.
    District Court of Appeal of Florida, First District.
    March 31, 2011.
    Rehearing Denied May 13, 2011.

      Kelli Biferie Hastings and Geoff Bichler of Bichler & Kelley, P.A., Maitland, for Appellant.
    Richard M. Stoudemire of Saalfield, Shad, Jay, Stokes, & Inclan, P.A., Jacksonville, for Appellees.
   WEBSTER, J.

In this workers’ compensation appeal, claimant seeks review of an award of prevailing-party costs to the employer and carrier, contending that: (1) the judge of compensation claims erred in awarding costs totaling $8,992.93 because, to the extent the employer and carrier are entitled to costs at all, the award may not exceed $250 in cases where they prevail on the issue of compensability; and (2) if prevailing-party costs may be awarded to the employer and carrier, they are entitled to only $1,116.70 because chapter 440 precludes recovery of costs incurred for depositions, experts and independent medical examinations. We affirm.

I.

Following an unsuccessful merits hearing, claimant appealed the denial of his claim to this court. Sitting en banc, we affirmed the order of the judge of compensation claims. See Punsky v. Clay County Sheriff’s Office, 18 So.3d 577 (Fla. 1st DCA) (en banc) (affirming the finding that the employer and carrier had rebutted the presumption of compensability found in section 112.18(1), Florida Statutes (2004), and certifying a question of great public importance to the Florida Supreme Court), review denied, 22 So.3d 539 (Fla.2009).

Thereafter, the employer and carrier, as the prevailing parties, filed a motion pursuant to section 440.34(3), Florida Statutes (2004), seeking to tax costs, representing that they had incurred $10,622.87 in defending against claimant’s petition for benefits. The judge of compensation claims concluded that the employer and carrier were entitled to recover $8,992.93, rejecting claimant’s arguments that sections 440.19(6) and 440.24(4), Florida Statutes (2004), controlled. In response to a motion for rehearing filed by claimant, the judge entered an amended final order, rejecting arguments that sections 440.13(5) and 440.30, Florida Statutes (2004), applied, and reaffirming the rejection of claimant’s previously advanced statutory arguments. This appeal follows.

II.

A.

In his first point on appeal, claimant contends that section 440.19(6) permits an award of either zero costs or, at most, $250 in costs against a claimant in a case where compensability is denied because there is no fund of money from which to deduct the $250. Section 440.19(6) reads:

When recovery .is denied to any person in a suit brought at-law or in admiralty to recover damages for injury or death on the ground that such person was an employee, that the defendant was an employer within the meaning of this chapter, and that, such employer had secured compensation of such employee under this chapter, the limitations period set forth in this section shall begin to run from the date of termination of such suit; however, in' such an event, the employer is allowed a credit of his or her actual cost of defending such suit in an amount not to exceed $250, which amount must be deducted from any compensation allowed or awarded to the employee under this chapter.

To the extent the issues raised by claimant concern statutory construction, our review is de novo. See Palm Beach County Sch. Dist. v. Ferrer, 990 So.2d 13, 14 (Fla. 1st DCA 2008). Contrary to claimant’s contention, section 440.19(6) applies only when a claimant first proceeds against an employer at law or in admiralty, and such relief is denied on the basis of workers’ compensation exclusivity/immunity. See § 440.11(1), Fla. Stat. (2004) (“[t]he liability of an employer prescribed-in s. 440.10 shall be exclusive and in place of all other liability, including' vicarious liability, of such employer to any third-party tortfea-sor and to the employee, the legal representative thereof .and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death ... ”). Pursuant to the plain language of this statute, after termination in favor of the employer of a “suit brought at law or in admiralty,” the costs incurred by the employer in the suit, not to exceed $250, are to be offset against compensation benefits. Id. Here, however, the employer and carrier were not seeking to recover costs incurred in defense of an action brought (as an alternative to the workers’ compensation claim) either at law or in admiralty. Accordingly, section 440.19(6) does not apply-

B.

Claimant also argues that section 440.24(4) supports his assertion that costs may not be awarded against a claimant in a case where compensability is denied. Section 440.24(4), which bears the title “Enforcement of Compensation Orders; Penalties,” states .that, “[i]n any case wherein the employee fails to comply with any order of a judge of compensation claims within 10 days after such order becomes final, the judge of compensation claims may dismiss the claim or suspend payments due under said claim until the employee complies with such order.” In looking to section 440.24(4), claimant misapprehends the issue here, which concerns a claimant’s responsibility for, and the employer’s and carrier’s entitlement to, an award of costs pursuant to section 440.34(3). In contrast, section 440.24(4) addresses enforcement and sanctions, and, contrary to claimant’s argument, there are other mechanisms available to the employer and carrier for the enforcement of an order awarding costs. See Lakeland Reg’l Med. Ctr. v. Weech, 54 So.3d 1005 (Fla. 1st DCA 2010) (noting that the employer and carrier may seek enforcement of a cost award in circuit court). Section 440.24(4) simply has no bearing on this case.

C.

Claimant’s final argument on this issue, that the right to access courts is denied if costs are awarded to an employer or carrier for successfully defending against compensability of a claim, requires de novo review. See Medina v. Gulf Coast Linen Servs., 825 So.2d 1018, 1020 (Fla. 1st DCA 2002). Article I, section 21, of the Florida Constitution requires that “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” To establish standing, a party must demonstrate “an injury which is both real and immediate, not conjectural or hypothetical.” Montgomery v. Dep’t of Health & Rehab. Servs., 468 So.2d 1014, 1016 (Fla. 1st DCA 1985). Claimant contends that, because only “a rare injured worker” can afford to pay the costs of litigation when his claim fails, an award of costs to an employer or carrier for successfully defending against compensability of a claim denies claimants access to courts. However, the record contains no evidence or argument in support of this alleged “injury.” A judge of compensation claims lacks jurisdiction to address constitutional issues and, therefore, it was proper for claimant to raise this issue for the first time on appeal. See B & B Steel Erectors v. Bwmsed, 591 So.2d 644, 647 (Fla. 1st DCA 1991) (stating that “workers’ compensation judges do not have the power to determine the constitutionality of a portion of the Workers’ Compensation Act, and that such issues may be raised for the first time on appeal, without having been preserved below”). That does not mean, however, that claimant was prohibited from creating a record in support of his constitutional challenge. See Anderson Columbia v. Brown, 902 So.2d 838, 841 (Fla. 1st DCA 2005) (holding that the inability of the judge of compensation claims to rule on constitutional issues does not preclude a claimant from building a record so that the constitutional challenge might be made on appeal). Claimant’s constitutional argument fails because there is no support in the record for his argument that the award of costs is “an injury which is both real and immediate, not conjectural or hypothetical.” Montgomery, 468 So.2d at 1016.

III.

Claimant’s second point on appeal relates to the award of specific costs, which is generally reviewed for abuse of discretion. See Morris v. Dollar Tree Store, 869 So.2d 704, 707 (Fla. 1st DCA 2004). However, to the extent that an award of costs is based on statutory construction, review is de novo. See Delgado v. A. Garcia Harvesting, Inc., 913 So.2d 78, 79 (Fla. 1st DCA 2005).

The legislature’s significant amendment in 2003 to the established law of seventy years, which previously immunized unsuccessful claimants from the payment of an employer’s or carrier’s costs in non-frivolous cases, leads us to conclude that the legislature intended its amendment of section 440.34(3) to include the taxation of all reasonable costs, with the express exclusion of attorney’s fees, equally to both parties. See ch. 2003-412, § 26, at 3944-45, Laws of Fla. “When the Legislature makes a substantial and material change in the language of a statute, it is presumed to have intended some specific objective or alteration of law, unless a contrary indication is clear.” Mangold v. Rainforest Golf Sports Ctr., 675 So.2d 639, 642 (Fla. 1st DCA 1996).

Claimant contends that sections 440.13(5) and 440.30, Florida Statutes (2004), control the disposition of this dispute, and that they override section 440.34(3). However, section 440.13(5)(a) addresses only independent medical examinations and sets out the circumstances under which a claimant may obtain reimbursement should the opinion of the claimant’s independent medical examiner be relied on in determining the claimant’s course of treatment. Section 440.34(3), on the other hand, directs the judge of compensation claims to award “reasonable costs” to the prevailing party. When read in conjunction with section 440.34(3), section 440.13(5) may broaden the circumstances under which a claimant may obtain reimbursement for the costs of an independent medical examination, but it in no way impacts an employer’s or carrier’s entitlement to reimbursement of reasonable costs when the employer or carrier is the prevailing party.

Section 440.30 permits fees charged by court reporters and witnesses to “be taxed as costs and recovered by the claimant, if successful in ... workers’ compensation proceedings.” Claimant’s argument that the language of section 440.30 “expressly limits” the award of costs for depositions to claimants only is not borne out by a plain reading of the section. It is permissive (“may be taxed”), and relates only to depositions. On the other hand, section 440.34(3) is mandatory (“shall be taxed”), and includes all “reasonable costs,” not just deposition costs.

We conclude that, in enacting section 440.34(3), the legislature opted to make the award of costs mandatory and to expand it to allow the prevailing party, not just the claimant, to recover reasonable costs. Such an interpretation “harmonizes and reconciles” the sections, see Woodgate Dev. Corp. v. Hamilton Inv. Trust, 351 So.2d 14, 16 (Fla.1977) (“[w]here possible, it is the duty of the court to adopt that construction of a statutory provision which harmonizes and reconciles it with other provisions of the same act”), and furthers a reasonable public policy to reimburse the costs of litigation, regardless of who the prevailing party might be.

IV.

Based on the foregoing, we reject claimant’s first point on appeal, that sections 440.19(6) and 440.24(4), Florida Statutes (2004), prevail over section 440.34(3), Florida Statutes (2004), the statutory basis for the award of costs to a prevailing party in workers’ compensation matters. Neither section 440.19(6) nor section 440.24(4) restricts an employer’s or carrier’s entitlement to prevailing party costs when it successfully defends against compensability of a claim. We also reject claimant’s second point, because we conclude that, by enacting section 440.34(3), the legislature intended to allow the prevailing party to be reimbursed all reasonable costs of litigation. Accordingly, we affirm the award of costs in the amount of $8,992.93.

AFFIRMED.

WOLF and ROBERTS, JJ., concur.


text:
    BANK OF AMERICA, N.A., Petitioner, v. Keith D. DIAMOND, individually, and Steven R. Simon, individually, Respondents.
    No. 4D10-2178.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.

      Stephen T. Maher, Lee D. Mackson and Michelle L. Gerber of Shutts & Bowen LLP, Miami, for petitioner.
    John P. Seiler of Seiler, Sautter, Zaden, Rimes & Weihe, Wilton Manors, for respondent Keith R. Diamond.
    Steven R. Simon of Steven R. Simon, P.A., Miami, for respondent Steven R. Simon.
   PER CURIAM.

The petition for writ of prohibition is denied. The court has jurisdiction to consider the answers and counterclaim filed after the final judgment of foreclosure, as they relate to the motion for deficiency judgment. The answers and counterclaim also contest liability on the guarantees executed by the individual defendants. The issue of liability on the guarantees was raised in count II of the amended complaint, but those issues were not disposed of in the final judgment of foreclosure. To the extent that the answers and counterclaim are directed solely to the final judgment of foreclosure, the court lacks jurisdiction to disturb that judgment. See Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1886 (Fla. 3d DCA 1986) (after time for rehearing ends, trial court loses jurisdiction except to enforce the judgment and as provided in Florida Rule of Civil Procedure 1.540(b)).

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


author: CIKLIN, J.

text:
    Terrance L. McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2352.
    District Court of Appeal of Florida, Fourth District.
    April 13, 2011.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Terrance McCloud appeals his conviction for burglary of a dwelling, arguing that the trial court erred when it did not instruct the jury on the lesser-included crime of trespass. Because all of the elements of trespass were included in the charging document, and evidence was presented to support those elements, the trial court was obligated to instruct the jury on trespass, as McCloud’s attorney had requested. Because the failure to instruct on a necessarily lesser included offense one step removed from the crime for which a defendant was convicted constitutes per se reversible error, we reverse McCloud’s conviction for burglary and remand for a new trial.

Responding to a call about a residential burglary in progress, officers with the Coral Springs Police Department discovered McCloud inside an otherwise empty residence with a front window crudely propped open. After a brief impasse during which McCloud would not exit the residence, he eventually exited the window and surrendered to the police. Upon entering the residence, the police noticed that the master bedroom appeared to have been disturbed, with dresser drawers left open and a jewelry box placed on the bed.

McCloud waived his Miranda rights and admitted to the police that he broke into the residence because he needed money. McCloud also stated that he touched a computer and a jewelry box and was wearing gloves.

During the charge conference, defense counsel asked the trial court to instruct the jury on the crime of trespass as a lesser-included offense of burglary. The trial court denied the request.

The jury subsequently found McCloud guilty of both burglary and grand theft. The trial court sentenced McCloud to fifteen years in prison for the burglary and a consecutive five years for the grand theft. McCloud appeals the burglary conviction because the trial court declined to instruct the jury on the lesser-included offense of trespass.

Trespass is a category two permissive lesser-included offense of burglary of a dwelling. See Bordes v. State, 34 So.3d 215, 217 (Fla. 4th DCA 2010); Piccioni v. State, 833 So.2d 247, 248 (Fla. 4th DCA 2002). Upon request, “[a] trial court must give a jury instruction on a permissive lesser-included offense if: (1) the indictment or information alleges all the statutory elements of the permissive lesser-included offense, and (2) there is some evidence adduced at trial establishing all of those elements.” Bordes, 34 So.3d at 216.

The information in the instant case alleged that McCloud “did unlawfully, enter or remain in a structure, to-wit: a dwelling ... property of Howard Schumacher, with intent to commit the offense of theft therein, contrary to F.S. 810.02(1) and F.S. 810.02(3).” We have repeatedly held that charging documents worded identically to the one in the instant case, save for the name of the victim, included all of the statutory elements of trespass. See Bordes, 34 So.3d at 217; Piceioni, 833 So.2d at 248; Henig v. State, 820 So.2d 1037, 1038-39 (Fla. 4th DCA 2002). Additionally, evidence was presented at trial to establish a trespass: McCloud admitted that he willfully entered Schumacher’s residence without his permission, and the police found McCloud inside Schumacher’s residence. Therefore, both of the predicate requirements were established, and McCloud was entitled to have the jury instructed on trespass.

Because the lesser-included offense of trespass is only one step removed from the charged offense of burglary of a dwelling, the trial court’s failure to give the requested instruction is per se reversible error. See Piceioni, 833 So.2d at 248-49. As such, we reverse McCloud’s conviction for burglary of a dwelling and remand for a new trial.

Reversed and remanded for a new triad.

POLEN and HAZOURI, JJ., concur.

      . McCloud has not appealed the grand theft conviction and therefore we do not disturb it.


text:
    Daniel M. BEAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-899.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2011.
    Rehearing Denied May 18, 2011.
    Daniel M. Beam, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Daniel Beam appeals the dismissal of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. While the trial court erroneously believed it did not have jurisdiction to consider Beam’s motion, see Gawronski v. State, 801 So.2d 211 (Fla. 2nd DCA 2001), we nonetheless affirm, concluding Beam’s second rule 3.850 motion to be procedurally barred as an abusive, successive motion. See Owen v. Crosby, 854 So.2d 182 (Fla.2003); Christopher v. State, 489 So.2d 22 (Fla.1986).

AFFIRMED.

MONACO, C.J., GRIFFIN and COHEN, JJ., concur.


author: DAMOORGIAN, J.

text:
    Jose Rafael GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2071.
    District Court of Appeal of Florida, Fourth District.
    April 20, 2011.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Defendant, Jose Rafael Garcia, appeals his judgment and sentence for two counts of sexual battery on a person less than twelve years of age and one count of tampering with a witness, raising several issues for our consideration. We affirm Garcia’s judgment and sentence and write only to address his argument that the trial court erred in denying his motion to suppress his confession.

In 1996, the victim, seven years old at the time, complained to her mother that she was experiencing pain in her private area. As a result, the victim’s mother took her to seek medical treatment. During her examination, the doctor observed that the victim had contracted a sexually transmitted disease and had suffered physical trauma to the affected area. The victim told the doctor that it was the defendant who caused her injuries. After discovering the abuse, the doctor contacted the police and child protective services.

Garcia’s initial contact with the police took place outside the doctor’s office. At that point, a detective identified himself and asked to speak to Garcia. Garcia was read his Miranda rights and was advised that the conversation was recorded. After Garcia denied molesting the victim, the detective handcuffed Garcia. A discussion ensued between the detective and Garcia during which the detective made the following statements:

[Detective]: Now, I think that you might have been lying to me because you want to avoid going to jail but now that you see that you are under arrest, maybe it’s time for you to admit that you have a problem or show some remorse because right now, you are showing no remorse, okay? You know what it means? You know.
[Detective]: ... I don’t want you to confess because we have handcuffs on you. All I’m trying to tell you is right now it’s your chance to say you made a mistake. If you admit to things, you make mistakes, you made a bad choice; but if you deny this, in my book, you are a criminal.
[Detective]: Oh, no, no, okay. (Inaudible) not accidental. No, I am going to turn off this tape unless you want to say something else.
You want to say something before I turn off this tape because a Judge might be listening to us, a jury, this is your chance to explain to the jury maybe that you are sorry, you made a mistake, that you are not a criminal, all you need is help (inaudible) so you don’t want to touch [the victim] any more. You want to say that (inaudible).

During this initial conversation Garcia admitted to molesting the victim. Garcia was then transported to the police station. While being transported, Garcia stated that he was ashamed of what he did and that the victim was telling the truth. While at the police station, Garcia was read his Miranda rights a second time and again admitted to molesting the victim. Garcia sought to suppress his confession which the trial court denied after concluding that Garcia’s statements were voluntary.

On appeal, Garcia argues that the following statement made by the detective was an implied promise of leniency that rendered all of his subsequent confessions involuntary: “[a]ll I’m trying to tell you is right now it’s your chance to say you made a mistake. If you admit to things, you make mistakes, you made a bad choice; but if you deny this, in my book, you are a criminal.”

“[A] trial court’s ruling on the vol-untariness of a waiver of Miranda rights will not be reversed on appeal unless the ruling is clearly erroneous.” Brookins v. State, 704 So.2d 576, 577-78 (Fla. 1st DCA 1997) (citing Thompson v. State, 548 So.2d 198 (Fla.1989)).

In order for a confession to be admissible into evidence, it must be voluntary. Edwards v. State, 793 So.2d 1044, 1047 (Fla. 4th DCA 2001). The government must prove voluntariness by a preponderance of the evidence. U.S. v. Leon Guerrero, 847 F.2d 1363, 1365 (9th Cir.1988). “The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect’s will was overborne.” Id. at 1366. “The constitution does not bar the use ... of any statements that could be construed as a threat or promise, but only those which constitute outrageous behavior and which in fact induce a confession.” Nelson v. State, 688 So.2d 971, 974 (Fla. 4th DCA 1997). There must also be a causal nexus between the improper conduct or questioning and the confession. Id. A confession is not involuntary if officers do nothing more than “encourage or request that person to tell the truth.” Chambers v. State, 965 So.2d 376, 378 (Fla. 4th DCA 2007).

We do not reach the question of whether the detective’s promise was “outrageous,” because the detective’s statements do not constitute or suggest a promise of leniency. The detective’s statement that “[i]f you admit to things, you make mistakes, you made a bad choice; but if you deny this, in my book, you are a criminal,” was merely moral urging. “Encouraging] or request[ing][a] person to tell the truth” does not result in an involuntary confession. Id. at 378.

In McNamee v. State, 906 So.2d 1171 (Fla. 4th DCA 2005), a detective questioning a juvenile elicited a confession from the defendant after reading a Bible passage and telling the defendant “the truth shall set you free.” Id. at 1175. This Court held that there was “no improper conduct on the part of law enforcement” and that the record did not support the claim that “law enforcement’s religious references improperly coerced the defendant’s confession.” Likewise, here, the detective did not engage in improper conduct because he merely encouraged Garcia to confess.

Affirmed.

MAY and LEVINE, JJ., concur.

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


text:
    Raymond T. LAMB, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1697.
    District Court of Appeal of Florida, First District.
    April 27, 2011.
    Raymond T. Lamb, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

DAVIS, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Amos WORKS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0584.
    District Court of Appeal of Florida, First District.
    April 27, 2011.
    Amos Works, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

DAVIS, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Ricky L. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1683.
    District Court of Appeal of Florida, First District.
    April 28, 2011.
    Ricky L. Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

WOLF, THOMAS, and MARSTILLER, JJ., concur.


text:
    Otis BLAXTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1377.
    District Court of Appeal of Florida, First District.
    April 28, 2011.

      Otis Blaxton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, THOMAS, and MARSTILLER, JJ., concur.


text:
    Keith SHARPE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1215.
    District Court of Appeal of Florida, First District.
    April 28, 2011.
    Keith Sharpe, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, THOMAS, and MARSTILLER, JJ., concur.


author: ORFINGER, J.

text:
    Latarsa WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3371.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2011.

      James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Latarsa White seeks review of the trial court’s order denying her motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm, although for reasons other than those relied on by the trial court.

Ms. White entered a negotiated no contest plea to strong-arm robbery and grand theft and was sentenced as an habitual felony offender (“HFO”) to concurrent terms of forty-eight months in prison on each count. The trial court also orally imposed a one-year term of probation to follow, but did not make clear whether the probationary term applied to both counts or only to the grand theft count. After Ms. White was released from prison, her probation was revoked. Because she had previously been designated as an HFO, Ms. White was sentenced to thirty years in prison for the strong-arm robbery conviction and ten years on the grand theft conviction. Once again, the sentences were ordered to be served concurrently. The revocation of probation and sentences were affirmed on appeal. See White v. State, 970 So.2d 847 (Fla. 5th DCA 2007). Ms. White next filed a rule 3.850 motion, raising nine claims directed at her trial counsel’s performance in the violation of probation (“VOP”) proceeding. The trial court summarily denied her motion and this Court affirmed on appeal. See White v. State, 38 So.3d 154 (Fla. 5th DCA 2010).

In the instant rule 3.800(a) motion, Ms. White first alleged that her HFO designation was illegal because her “prior convictions were for possession of cocaine, F.S. 893.13, which are not qualifying offenses for Habitual Offender Status under Florida Statutes 775.084.” The trial court denied this claim, holding that Ms. White was designated as an HFO based upon the necessity of public protection in accordance with section 775.084(3)(a)(6), Florida Statutes. This conclusion, however, has no bearing on the question of whether her habitual offender sentence was supported by the proper predicate convictions.

As a general rule, a defendant’s contention that she did not have the predicate felonies required to support an HFO designation is cognizable under a rule 3.800(a) claim if her entitlement to relief is clear from the face of the record. See Bover v. State, 797 So.2d 1246, 1247 (Fla. 2001) (“[WJhere the requisite predicate felonies essential to qualify a defendant for habitualization do not exist as a matter of law and that error is apparent from the face of the record, rule 3.800(a) can be used to correct the resulting habitual offender sentence.”). Ms. White’s claim fails because it cannot be demonstrated from the face of the record that she is entitled to relief. Rather, an evidentiary hearing would be necessary to resolve the issue because she stipulated that she qualified as an HFO at the original plea and sentencing hearing in 2003. As a result of that stipulation, the State was not required to introduce the prior predicate felony convictions. Because no prior predicate convictions were introduced at the plea and sentencing hearing, the record is silent, at least in a documentary sense, about her previous convictions. As an evidentiary hearing is required to address this claim, it may not be raised in a rule 3.800(a) proceeding. See id. at 1251 n. 5. (recognizing limitations of rule 3.800(a) proceeding, including its general prohibition against evi-dentiary hearings); Gray v. State, 837 So.2d 612 (Fla. 5th DCA 2003).

Ms. White also alleged that her sentence does not accurately reflect the jail and prison credit that she has earned. The trial court’s order did not address this claim. Notwithstanding, Ms. White does not present a facially sufficient claim. With respect to her pre-sentencing jail time credit, she provides no factual detail regarding the specific dates that she was in jail prior to the imposition of her original sentence. See State v. Mancino, 714 So.2d 429, 433 (Fla.1998). Ms. White must refile her claim for jail credit in a facially sufficient manner. Regarding the prison credit, the Department of Corrections (“DOC”) is responsible for awarding this type of credit. Ms. White must first exhaust her administrative remedies with DOC in order to pursue an award of prison credit. See Phillips v. State, 998 So.2d 675 (Fla. 4th DCA 2009).

Finally, Ms. White raises an issue that was not contained in her rule 3.800(a) motion. Specifically, she argues that her thirty-year VOP sentence for strong-arm robbery is illegal because she was never sentenced to probation with respect to that charge. At the original 2003 plea hearing, the trial court stated:

THE COURT: I’m going to sentence her in accord with this agreement, waive any entitlement to P.S.I. She’s adjudged guilty of both counts. She’s sentenced on Count I to 48 months’ Department of Corrections, and she’s designated as a habitual felony offender. This 48 months will be concurrent with any sentence she’s presently serving within the Department of Corrections.
And also in Count II, 48 months’ DOC concurrent with Count I and concurrent with any sentence she’s previously serving to be followed by one year drug-offender probation with all the standard conditions....

Ms. White contends that it is clear from the court’s statement that she was never placed on probation with respect to count I and, as a consequence, there was no probation to revoke. Although an interesting issue, we believe that she must first raise the issue in the trial court and allow the trial court to attach records, which conclusively refute the claim, or grant the motion.

For these reasons, we affirm the order denying relief as to Ms. White’s HFO status. We dismiss the appeal regarding the remaining issues without prejudice to allow the issues to be raised in the trial court or with the DOC.

AFFIRMED.

COHEN and JACOBUS, JJ., concur.

      . See Sullivan v. State, 913 So.2d 762, 763 (Fla. 5th DCA 2005) ("Even though the lower court erred in its finding of exceptional circumstances, we conclude that we should affirm under the 'tipsy coachman' rule because the trial court reached the right conclusion.").

      . During the 2003 plea and sentencing hearing, the trial court did say that Ms. White's scoresheet reflected prior convictions for “a robbery, a burglary of a structure, possession of cocaine, two counts; grand theft.”

      . While this claim is cognizable in a rule 3.850 motion, such a claim would most likely be barred as untimely and successive.


text:
    Paul WOODALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0668.
    District Court of Appeal of Florida, First District.
    April 29, 2011.
    Paul Woodall, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner filed a motion to modify his sentence in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely. We treat the petitioner’s notice of appeal as a petition for certiorari and deny the petition. See Platt v. State, 890 So.2d 502 (Fla. 1st DCA 2004); Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).

DENIED.

DAVIS, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Suzanne DENKER a/k/a Suzanne Debroski a/k/a Suzanne Peterson, Appellant, v. Mark DENKER, Appellee.
    No. 4D09-3011.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.

      Robin Bresky, Boca Raton, for appellant.
    Philip L. Schwartz and Vanessa L. Prie-to of the Law Offices of Philip L. Schwartz, P.A., Boca Raton, for appellee.
   PER CURIAM.

In this appeal the former wife seeks review of a final order modifying the child custody provisions of the final judgment of dissolution of marriage. The former wife failed to attend the final hearing on the former husband’s petition for modification, despite having notice of the hearing, and now complains that the trial court erred in making a child custody determination without hearing evidence from her. She also argues that the evidence presented at the final hearing was insufficient to support the trial court’s judgment of modification.

The parties’ marriage was dissolved on September 22, 2005. Their marital settlement agreement, dated August 15, 2005, was incorporated into the final judgment of dissolution. The parties agreed to shared parental responsibility, with neither party as the primary residential parent, and to joint rotating custody. To facilitate equal timesharing, the parties agreed that they would not relocate more than fifteen miles from the former husband’s current residence without written agreement or court order. The agreement did not set forth a schedule, but provided that if the parties could not agree on any issue, such as timesharing, visitation, or access to the children, they would have the court determine those issues.

On September 28, 2006, the parties entered into a mediated modification agreement following post-dissolution proceedings. Pursuant to that agreement, and in contemplation of the former wife’s relocation more than fifteen miles from the former husband’s residence in Boca Raton, Florida, the parties agreed that the former wife’s timesharing with the minor children would be in accordance with the standard Model Out-of-State Timesharing Schedule. On October 6, 2006, the former wife filed a motion to enforce the mediation agreement.

On November 28, 2006, the former husband filed an Amended Petition for Modification of Final Judgment of Dissolution of Marriage and Order Enforcing Modification Agreement. In the petition, he alleged a substantial change in circumstances in that the wife had relocated to San Jose, California and now exercised only “sporadic and infrequent timeshar-ing.” He further alleged that the former wife’s contact was disruptive and unpredictable; thus, rotating custody was' no longer in the children’s best interests.

On January 31, 2007, the trial court ratified and approved the mediated modification agreement, ordering the parties to comply with the agreement, including the Model Out-of-State Timesharing Schedule.

Litigation regarding modification continued; ultimately, the final hearing was set for June 3, 2009. On May 7, 2009, the former wife’s counsel moved to withdraw. The motion was granted on May 12, 2009. The order granting the motion to withdraw was furnished to the former wife and specifically stated, “Friday May 15 hearing and June 3, 2009 final hearing remain set.”

The former wife appeared telephonically at the May 15, 2009 hearing, but she failed to appear for the final hearing held on June 3, 2009. She also did not have counsel present. After determining that the former wife had notice of the trial, the trial court went forward with the trial. In addition to the former husband, two witnesses testified on his behalf: Dr. Richard Sauber, who performed an independent psychological evaluation of the minor children, and Barbara Alves, the children’s former nanny.

The trial court found that since the former wife’s relocation to California over two-and-a-half years ago, the minor children have resided continuously with the former husband in Florida, and the former wife has not sufficiently and consistently exercised her timesharing/visitation with the minor children. The court also considered testimony that the former wife refused to return the children to Florida during their 2009 spring break visitation with the former wife in California and that the former husband had to enlist the aid of the San Jose Police Department for their return. Additionally, the court noted the former wife’s positive drug test results and failure to provide any financial support for the children. Based upon the court’s findings concerning a substantial change in circumstances and the safety and welfare of the minor children, the trial court awarded sole custody to the former husband and terminated his child support obligation. The court ordered the former wife to pay child support to the former husband, imputing the minimum wage as her income, and further ordered the former wife to pay the former husband’s attorney’s fees and costs, pursuant to Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

On appeal, the former wife contends that the court reversibly erred by entering its final judgment without hearing or considering any evidence from her. We disagree. Custody determinations made by a court based on the default of one parent or on a parent’s failure to appear at a final hearing are often reversed on appeal. This is because the general rules regarding defaults are insufficient for decisions affecting the custody of children. See Causin v. Leal, 881 So.2d 20, 22 (Fla. 4th DCA 2004) (stating that “[t]he court must have information from all sides in order to render a decision in the best interest of a child. This cannot be accomplished if matters are conducted on a default basis with only one side presenting testimony”); Childers v. Riley, 823 So.2d 246, 246 (Fla. 4th DCA 2002) (holding that “the issue of custody should not ordinarily be determined by entering a default against one of the parents”).

This case, however, was not decided upon a default but upon a full hearing with witnesses and substantial evidence. The mother simply failed to show up at the hearing. She did not move to vacate the proceedings pursuant to Florida Rule of Civil Procedure 1.540(b) and has offered no reason, either in the trial court or in this court, as to why she absented herself from the hearing after receiving notice.

In Armstrong v. Panzarino, 812 So.2d 512, 513 (Fla. 4th DCA 2002), the mother failed to appear at the final hearing on the father’s petition to establish paternity, fix support, and establish shared responsibility and visitation. The trial court entered final judgment, establishing paternity in the father and appointing him the primary residential parent of the parties’ minor child. Id. Thereafter, the mother requested an emergency hearing for reconsideration. Id. After her request was denied, she moved for relief from judgment under Rule 1.540(b). Id. At the evidentiary hearing on her Rule 1.540(b) motion, the mother presented testimony concerning her hospitalization and miscommunications in her attempts to apprise the court of her condition and inability to attend the hearing. Id. Finding that the mother’s absence at the hearing was not a mistake, but “a willful attempt to manipulate the court,” the trial judge denied her motion for relief from the default judgment. Id. at 514. We reversed, holding that it was an abuse of discretion for the court to make its ruling without considering the best interest of the child. Id. We concluded that “the court’s decision that [the mother] willfully failed to attend is not sufficient justification to deny [the mother] this opportunity to be heard before permanently removing the child from her primary care.” Id.

Our holding in Armstrong, however, should not be interpreted as compelling an automatic reversal of a final judgment where one party to a custody battle willfully fails to appear at a hearing. To hold that a final judgment is defective simply because a parent failed to appear at a final hearing would lead to all kinds of strategic game-playing and cause delay in the resolution of custody cases. This would be contrary to the best interest of the child. A parent should have the right to move to vacate a final custody judgment on the grounds allowed by Rule 1.540(b). At the hearing on the Rule 1.540(b) motion, the court may consider the absent party’s grounds for failing to appear and hear any evidence that the party may have that would involve the party’s “meritorious defense” to the proceedings. See Webber v. Novelli, 756 So.2d 164, 165-66 (Fla. 4th DCA 2000) (noting that the trial court held an evidentiary hearing on the mother’s failure to attend). See also Elliott v. Aurora Loan Servs., LLC, 31 So.3d 304, 307 (Fla. 4th DCA 2010) (stating that to set aside judgment, the trial court must find that the movant has demonstrated excusable neglect, a meritorious defense, and due diligence in seeking relief). The issue before the court is whether to vacate the final judgment based upon evidence presented at the hearing.

Unless the mother takes the step of seeking to vacate the final judgment, the final judgment is not reversible. On appeal, the final judgment is not voidable simply because the mother did not appear, so long as she received notice of the hearing and an opportunity to participate. Here, the record shows that the mother received both.

We further find that the trial court’s judgment was supported by competent substantial evidence; the court did not abuse its discretion in modifying the custody arrangements. We therefore affirm the final judgment.

Affirmed.

WARNER, STEVENSON and TAYLOR, JJ., concur.

      . In its final order the trial court noted that the former wife also failed to appear for two previously scheduled mediations, respectively on June 10, 2008 and October 14, 2008, and that she failed to comply with the court’s order to provide the court with any supporting documentation for her nonappearances. She also failed to appear for her mutually scheduled deposition of May 8, 2009.