author: NORTHCUTT, Judge.

text:
    Joe C. MACK, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5102.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.
    Joe C. Mack, pro se.
   NORTHCUTT, Judge.

In 2001, Joe C. Mack was placed on probation after pleading guilty to one count of possession of cocaine with intent to sell within one thousand feet of a church and one count of possession of cannabis in excess of twenty grams. Ultimately, Mack violated his probation and was sentenced to twenty-five years in prison in 2007. After the dismissal of his motion to withdraw plea and a fruitless federal habeas petition, Mack filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Mack’s sole claim for relief is that the statute proscribing his offenses was declared unconstitutional by a judge of the United States District Court for the Middle District of Florida in Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011). The postconviction court denied Mack’s claim, finding that it was not bound by the federal court decision and observing also that the appellate courts of this state have declared the drug possession statute constitutional. We affirm the postconviction court’s order. However, our affirmance is based on the fact that Mack is not entitled to relief because the Shelton decision and the Florida appellate cases cited by the postconviction court address a version of the statute that was inapplicable to Mack.

Because Mack committed his offenses in May 2001, his charges are governed by section 893.13, Florida Statutes (2001). At the time that Mack committed his crimes, the case of Chicone v. State, 684 So.2d 736 (Fla.1996), was still good law. Chicone mandated the trial court, upon appropriate request, to instruct the jury on the State’s burden to prove — as an element of possession — that the defendant knew the illicit nature of the substance possessed. Id. at 745-46. The possession statute was amended by the enactment of section 893.101, Florida Statutes, on May 13, 2002, as a legislative reaction to the Chicone case. Thenceforth, “guilty knowledge” as an element of possession was eliminated; instead, lack of knowledge of the illicit nature of the substance became an affirmative defense. § 893.101(2). The Shelton decision, which describes the “express elimination of mens rea as an element of a drug offense” as “draconian and unreasonable,” 802 F.Supp.2d at 1295, declared the amended version of section 893.13 (2002-2011) facially unconstitutional.

As observed by this court in Whitehurst v. State, 852 So.2d 902, 903 (Fla. 2d DCA 2003), “[t]he superseding legislative amendment was not effective until May 13, 2002, and courts have determined that the amendments are not to be applied retroactively.” The principle that an amendment to a criminal statute cannot affect the prosecution of or punishment for a crime committed before the amendment is entrenched in the law. See State v. Battle, 661 So.2d 38, 39 (Fla. 2d DCA 1995). And in addition to Whitehurst, other cases from this court have specifically held that a defendant who commits a crime prior to the May 2002 amendment to the possession statute is entitled to the Chicone instruction on guilty knowledge. See Nedd v. State, 965 So.2d 1287, 1288 (Fla. 2d DCA 2007); Grant v. State, 815 So.2d 667, 668 (Fla. 2d DCA 2002). Had Mack gone to trial, he would have been entitled to that instruction also.

The version of the statute applicable to Mack’s crimes has not been held unconstitutional, and Mack has stated no other basis for postconviction relief. Accordingly, we affirm the denial of Mack’s rule 3.850 motion.

Affirmed.

LaROSE and BLACK, JJ., Concur.

      . This court rejected a constitutional challenge to the amendment of section 893.13, Florida Statutes (2001), by section 893.101, Florida Statutes (2002), in Burnette v. State, 901 So.2d 925, 927-28 (Fla. 2d DCA 2005). Bost-Shelton, this court has passed through the issue of the constitutionality of the statute to the Florida Supreme Court. State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), jurisdiction accepted, 71 So.3d 117 (Fla.2011). However, all of our sister courts have rejected the Shelton decision. See Adams v. State, 76 So.3d 367, 368 (Fla. 3d DCA 2011), and cases cited therein.


source: Caselaw Access Project

author: PER CURIAM. SWANSON, J.,

license: Public Domain

text:
    RISCO USA CORPORATION and Travelers Indemnity Company of Ct., Appellants, v. John ALEXANDER, Appellee.
    No. 1D11-4761.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Rehearing Denied July 20, 2012.
    Justin R. Crum, Orlando, for Appellants.
    Daniel E. Smith and Salim A. Punjani of the Coye Law Firm, Orlando, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier (E/C) argues the Judge of Compensation Claims (JCC) erred in finding Claimant had not settled his workers’ compensation claim when he entered into a separation agreement with the Employer while represented by counsel. We agree the JCC erred and reverse.

The relevant background information includes Claimant’s testimony that he had been represented by counsel starting about two to three months after the February 2006 surgery which was necessitated by the compensable accident/injury. The JCC found that Claimant had two periods of employment with the Employer. Claimant sustained his September 2, 2005, accident during his first period of employment. At the conclusion of Claimant’s second period of employment, and on June 2, 2008, he signed an “Exit Interview & Separation of Employment Agreement” (Agreement). After signing this Agreement, Claimant filed a petition for benefits on December 24, 2010. It is the effect of the Agreement that is the focus of this appeal. Because resolution of this appeal involves interpretation of the Agreement, a question of law, our review is de novo. See Dixon v. City of Jacksonville, 774 So.2d 768, 765 (Fla. 1st DCA 2000) (restating that construction of written instruments is reviewed de novo).

The E/C argued that Claimant was represented by counsel at the time he entered into the Agreement and, therefore, Claimant settled his workers’ compensation claim as section 440.20(ll)(c), Florida Statutes (2005), allows a represented claimant to enter into a settlement agreement without approval of the JCC. The JCC acknowledged that Claimant was represented when he entered into this Agreement; nonetheless, he still awarded the benefits because he found the Agreement applied only to the second period of employment.

Claimant argued that the E/C failed to establish the scope of the release. The Agreement only released claims “from the beginning of [Claimant’s] employment to the date of this agreement.” Claimant was terminated, however, after his workers’ compensation accident and later rehired as a territory manager in 2006. Thus, Claimant argued, the E/C had the burden of proving that Claimant’s employment, as referenced in the Agreement, did not begin in 2006 when he was hired as a territory manager, but rather prior to his 2005 workers’ compensation claim.

In relevant part, the Agreement provides that Claimant released the Employer

from all causes of action, suits, debts, claims and demands whatsoever in law or in equity, which you ever had, now has, or hereafter may have whether known or unknown, or which you or your heirs, executors, or administrators may have, by reason of any matter, cause or thing whatsoever, from the beginning of your employment to the date of this agreement, and particularly, but without limitation of the foregoing general terms, any claims arising from or relating in any way to your employment relationship with Company, the terms and conditions of that employment relationship, and the termination of that employment relationship,.... This agreement is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based in tort, equity, implied or express contract or discrimination of any sort.

(emphasis added). In exchange, Claimant received severance pay and continuation of his health insurance for the remainder of the month. Even though it is undisputed that Claimant had two periods of employment, he had but one “employment relationship” with the Employer. By its plain language, the release applied to Claimant’s relationship with the Employer.

Pursuant to section 440.20(1l)(c), a represented “claimant may waive all rights to any and all benefits under this chapter by entering into a settlement agreement releasing the [E/C] from liability for workers’ compensation benefits in exchange for a lump-sum payment to the claimant.” A similar situation to the one presented here was previously addressed in Patco Transport, Inc. v. Estupinan, 917 So.2d 922 (Fla. 1st DCA 2005). Mr. Estupinan, who was represented by counsel, settled a civil suit filed against his employer and others in which he alleged that another driver of a Pateo truck was negligent in rear-ending him. Id. Mr. Estupinan executed a “General Release With Indemnification” in conjunction with the settlement. Id. Subsequently, he filed a petition for benefits. Id. In reversing the JCC’s finding that Mr. Estupinan was releasing Pateo only in its capacity as owner of the vehicle, this court explained:

The language used in the general release “is the best evidence of the parties’ intent. When that language is clear and unambiguous, the courts cannot indulge in construction or interpretation of its plain meaning.” Hurt v. Leatherby Ins. Co., 380 So.2d 482, 433 (Fla.1980). The general release is broad enough to cover petitions for workers’ compensation benefits when it refers to “full settlement and discharge of all claims which are, or might have been, the subject matter of the Complaint....”

Id. at 923. The court concluded:

The parties were entitled to settle the workers’ compensation claims, and execution of the general release “in exchange for a lump-sum payment” accomplished that result. See § 440.20(ll)(c), Fla. Stat. (2001) (“[W]hen a claimant is represented by counsel, the claimant may waive all rights to any and all benefits under this chapter by entering into a settlement agreement releasing the employer and the carrier from liability for workers’ compensation benefits in exchange for a lump-sum payment to the claimant”). “There are no words of art required in a release if the intent of the parties is apparent from the language used.” Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So.2d 436, 437 (Fla. 5th DCA 1990).

Id. at 925. Likewise, here, because Claimant was represented by counsel, and the plain language of the release indicates it applied to Claimant’s employment relationship -with the Employer, it was not necessary for the agreement to be submitted to the JCC for it to be a settlement of Claimant’s workers’ compensation claim.

Accordingly, the JCC erred in finding Claimant had not settled his workers’ compensation claim when he entered into the separation agreement. This matter is REVERSED and REMANDED for entry of an order denying Claimant’s entitlement to any further workers’ compensation benefits.

ROBERTS and CLARK, JJ., concur.

SWANSON, J., dissents with opinion.

SWANSON, J.,

dissenting.

I respectfully dissent. In this case, it was the employer carrier’s burden to prove its affirmative defense that the claimant herein had released all of his claims. Competent substantial evidence supports the judge of compensation claims’ (JCC) finding that claimant had two distinct periods of employment. A reasonable interpretation of the agreement restricts the agreement’s application to only the second period of employment. Accordingly, the JCC did not err in awarding claimant benefits and this appeal should be affirmed.


author: WALLACE, Judge.

text:
    Robert B. CROCKETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3939.
    District Court of Appeal of Florida, Second District.
    May 18, 2012.
    Rehearing Denied June 26, 2012.
    Robert B. Crockett, pro se.
   WALLACE, Judge.

Robert B. Crockett appeals the order denying his postconviction motion filed in accordance with Florida Rule of Criminal Procedure 3.850, in which he raised four grounds for relief. We find no reversible error, and we affirm the postconviction court’s order without discussion.

However, Mr. Crockett’s judgment and sentence erroneously states that he was convicted and sentenced for “domestic violence] battery” on count one of the information. “Domestic violence] battery” is a nonexistent offense. Accordingly, we remand for the postconviction court to correct Mr. Crockett’s judgment and sentence to reflect that he was convicted and sentenced for battery on count one of the information, not “domestic violence] battery.”

Affirmed; remanded for correction of the judgment and sentence.

LaROSE and BLACK, JJ., Concur.


author: PER CURIAM.

text:
    Robert L. SHIPES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1702.
    District Court of Appeal of Florida, First District.
    May 22, 2012.
    Rehearing Denied July 23, 2012.
    Robert L. Shipes, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied. See Fla. R.App. P. 9.141(c)(5)(a).

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


author: KHOUZAM, Judge.

text:
    Steven Edward EISELE, Appellant/Cross-Appellee, v. Heidi Marie EISELE, Appellee/Cross-Appellant.
    No. 2D11-667.
    District Court of Appeal of Florida, Second District.
    May 25, 2012.
    Rehearing Denied July 19, 2012.

      Reuben A. Doupé of Klaus Doupé, P.A., Naples, for Appellant/Cross-Appellee.
    Heidi Marie Eisele, pro se.
   KHOUZAM, Judge.

Steven Edward Eisele (the Former Husband) appeals and Heidi Marie Eisele (the Former Wife) cross-appeals the final judgment of the dissolution of their marriage. We find merit in two of the Former Husband’s claims, and accordingly we reverse and remand. As to the remaining issues, we affirm without comment.

The parties were married on February 6, 2000. They had one child, who was born on September 30, 2006. In the fall of 2007, they separated. The Former Wife filed a petition for dissolution of marriage on November 14, 2007, and the Former Husband filed a counter-petition. A trial was held on November 15 and 16, 2010, and the court entered the final judgment of dissolution of marriage on January 18, 2011. The Former Husband filed a timely notice of appeal, and the Former Wife filed a timely notice of cross-appeal.

On appeal, the Former Husband first argues that the trial court erred by requiring both parties to obtain life insurance to secure child support. The Former Wife does not dispute that this was error. The court ordered each party to maintain life insurance without making any other findings on the issue. Neither of the parties had requested such relief or presented evidence on the issue.

It is true that section 61.13(l)(c), Florida Statutes (2010), provides that the court may order a party to maintain life insurance to protect an award of child support. But this court has held that a trial court does not have the authority to require a party to obtain life insurance in order to secure child support payments where such relief was not sought or litigated. See Williamitis v. Williamitis, 741 So.2d 1176, 1177 (Fla. 2d DCA 1999); cf. Broome v. Broome, 821 So.2d 406, 408 (Fla. 2d DCA 2002) (reversing requirement that Former Husband obtain life insurance to secure alimony because Former Wife did not request such relief).

Even if the parties had requested this relief, they would have had to show that special circumstances justified requiring them to maintain life insurance. Cf. Pinion v. Pinion, 818 So.2d 557, 557 (Fla. 2d DCA 2002) (“In the absence of special circumstances, a spouse cannot be required to maintain life insurance for the purposes of securing alimony obligations.”); but see Layeni v. Layeni, 843 So.2d 295, 300 n. 2 (Fla. 5th DCA 2003) (applying an “appropriate circumstances” standard instead of a “special circumstances” standard). The record would also have to “contain evidence of the payor’s insurability, the cost of the proposed insurance, and the payor’s ability to afford the insurance.” Lopez v. Lopez, 780 So.2d 164, 165 (Fla. 2d DCA 2001). As the parties did not present evidence on the life insurance issue, it has not been shown that a life insurance requirement would be proper under the circumstances of this case. Accordingly, the life insurance requirement must be stricken.

The Former Husband also argues that the trial court’s finding that the minor child could not be home schooled by either party was error because the child would not reach kindergarten age until approximately twenty months after the date of the final judgment. Though the court’s determination was legitimately based on concerns addressed in the social investigation report and the child’s lack of socialization with children her own age, it was error to determine the best interest of the child prospectively. See Arthur v. Arthur, 54 So.3d 454, 459 (Fla.2010). In Arthur, the trial court determined that it was in the child’s best interest to relocate with the Former Wife twenty months after the date of the final hearing. Id. The Florida Supreme Court held that “[s]uch a ‘prospective-based’ analysis is unsound. Indeed, a trial court is not equipped with a ‘crystal ball’ that enables it to prophetically determine whether future relocation is in the best interests of a child.” Id. Similarly, it was error for the trial court in this case to determine that it would be in the best interest of the child to not be home schooled by either of her parents twenty months from the date of the final order. Accordingly, the court must hold a hearing to determine whether it is currently in the best interest of the child — who is now almost six years old — to not be home schooled by either of her parents.

We also note that the parties agreed at oral argument that the trial court intended to seal the social investigation report despite the fact that no order was entered to this effect. Thus, the trial court should enter an order placing this document under seal.

Accordingly, we reverse and remand. On remand, the circuit court shall strike the requirement that the parties maintain life insurance, hold a hearing to determine whether the parties should be prevented from home schooling the minor child at this time, and place the social investigation report under seal.

Reversed and remanded with instructions.

WHATLEY and KELLY, JJ„ Concur.


text:
    Cliff O. HANSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0110.
    District Court of Appeal of Florida, First District.
    June 8, 2012.
    Rehearing Denied July 18, 2012.
    Cliff 0. Hanson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Mingle v. State, 429 So.2d 850 (Fla. 4th DCA 1983) (certiorari denied for failure to demonstrate injury which cannot be remedied on appeal from final order.)

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    Mollie BERMAN, Appellant, v. DILLARD’S and Esis, Appellees.
    No. 1D11-4653.
    District Court of Appeal of Florida, First District.
    June 14, 2012.
    Rehearing Denied July 18, 2012.

      Alex Lancaster and Amy Dickinson of Lancaster & Eure, P.A., Sarasota, for Appellant.
    Mark D. Tinker and Kate B. Munkit-trick of Banker, Lopez, Gassier, P.A., St. Petersburg, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Appellant/Claimant challenges the constitutionality of section 440.15(l)(b), Florida Statutes (2003), the authority for termination of Claimant’s permanent total disability (PTD) benefits, arguing that, because her claim is based on age discrimination and her right of access to courts, it is subject to the strict scrutiny standard of review. We disagree and affirm.

Claimant, at the age of 72, suffered a compensable injury on January 20, 2004. Claimant was administratively accepted as PTD and began receiving PTD benefits at the age of 74. In 2011, the Employer/Carrier suspended Claimant’s PTD benefits, stating her entitlement to PTD benefits had ended. The JCC found that, because Claimant was over the age of 70 when she was injured and received PTD benefits for five years after her administrative acceptance of PTD, she had exhausted her entitlement to PTD benefits pursuant to section 440.15(l)(b), Florida Statutes (2003). Claimant contends that, because the cessation of PTD benefits under section 440.15(l)(b) discriminates on the basis of age and violates her right of access to courts, her claim is therefore subject to the strict scrutiny standard of review.

Section 440.15(l)(b), Florida Statutes (2003), classifies the entitlement to PTD benefits by age of the claimant, providing:

... If the accident occurred on or after the employee reaches age 70, benefits shall be payable during the continuance of [PTD], not to exceed 5 years following the determination of PTD....

Regarding age classifications in section 440.15, the Florida Supreme Court has stated, “[t]he ‘rational basis’ test is the proper standard of review. There is no basis to conclude that an elevated standard of review is appropriate.” Sasso v. Ram Prop. Mgmt, 452 So.2d 932 (Fla.1984). Generally, “[a]ge limitations and restrictions may survive a constitutional challenge and be enforced if they pass the ‘rational basis’ test, i.e., the age classifications are reasonably related to a permissible governmental objective.” Wright v. State, 739 So.2d 1230, 1232 (Fla. 1st DCA 1999). See also Harrell v. Fla. Constr. Specialists/AARLA/Agent for FWCIGA, 834 So.2d 352, 357 (Fla. 1st DCA 2003) (noting challenge based on age discrimination is subject to rational basis review). Thus, we reject Claimant’s argument that the strict scrutiny standard applies to her age discrimination claim. See Sasso v. Ram Prop. Mgmt., 431 So.2d 204, 209 (Fla. 1st DCA 1983); approved, 452 So.2d 932 (Fla.1984) (quoting White Egret Condo., Inc. v. Franklin, 379 So.2d 346, 351 (Fla. 1979) (“The law is now clear that a restriction on individual rights on the basis of age need not pass the ‘strict scrutiny’ test....”)).

Additionally, we reject Claimant’s argument that North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So.2d 612, 685 (Fla.2003), requires application of strict scrutiny to Claimant’s access to courts claim because that case was limited to the right of privacy and does not require application of strict scrutiny to all fundamental rights. See id. (noting strict scrutiny applies to certain fundamental rights). See also Warren v. State Farm Mut. Auto. Ins. Co., 899 So.2d 1090, 1097 (Fla.2005) (applying rational basis test to access to courts challenge). Having determined the proper standard for Claimant’s access to courts claim is rational basis review, the test for analyzing access to courts claims, as set out in Kluger v. White, 281 So.2d 1 (Fla. 1973), applies:

[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Warren v. State Farm Mut. Auto. Ins. Co., 899 So.2d 1090, 1097 (Fla.2005) (quoting Kluger, 281 So.2d at 4). More precisely, the legislature may abolish such a right in two instances: (1) where it authorizes a reasonable alternative for the redress of injuries or (2) where it can demonstrate an overpowering public necessity for abolishing such a right. As an example of the first situation, the court named the Florida’s Workers’ Compensation Law because it had:

abolished the right to sue one’s employer in tort for a job-related injury, but provided adequate, sufficient, and even preferable safeguards for an employee who is injured on the job, thus satisfying one of the exceptions to the rule against abolition of the right to redress for an injury.

Sasso, 431 So.2d at 209 (quoting Kluger, 281 So.2d at 4). As Claimant conceded at oral argument, section 440.15(l)(b) passes the Kluger test and does not violate the rational basis standard.

AFFIRMED.

ROBERTS, WETHERELL, and ROWE, JJ., concur.


author: PALMER, J.

text:
    Elliot MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2029.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.

      James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Elliot Martinez (defendant) appeals the trial court’s order granting the State’s motion to tax additional costs of prosecution, entered after the defendant had begun serving his sentence. We reverse.

The defendant was convicted of battery. In connection with his sentencing, the trial court assessed $100 in costs of prosecution without expressing an intent to assess further costs at a later time. The defendant’s convictions and sentences were affirmed on direct appeal. Martinez v. State, 56 So.3d 22 (Fla. 5th DCA 2011). The State thereafter filed a motion to tax the costs of extraditing the defendant from Pennsylvania to Florida as costs of prosecution under section 938.27, Florida Statutes (2011). The trial court granted the motion and imposed the costs.

The defendant appeals the costs order, arguing that the trial court violated double jeopardy principles by increasing the amount of his prosecution costs, thereby increasing his sentence after he had begun serving it. We agree.

Under double jeopardy principles, a defendant’s sentence cannot be increased after he begins serving it. Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003). However, to be part of a sentence for double jeopardy purposes, a particular sanction must constitute criminal, rather than civil, punishment. See Hudson v. United States, 522 U.S. 93, 98-99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). “Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A court must ... ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Id. at 99, 118 S.Ct. 488 (citation and quotation marks omitted). Thus, in determining whether extradition costs constitute criminal punishment, we focus on the authorizing statutes.

Extradition costs are imposed and enforced as costs of prosecution under sections 938.27 and 938.30. See Thompson v. State, 699 So.2d 329 (Fla. 2d DCA 1997) (holding that extradition costs are costs of prosecution). Several attributes of this statutory mechanism indicate that the Legislature intended these costs of prosecution to constitute a criminal sanction. Importantly, the sanction applies “[i]n all criminal and violation-of-probation or community-control cases.” § 938.27(1). In addition, if the defendant is placed on probation, the court must include payment of these costs as a condition of probation, and failure to pay is a ground for revocation. § 938.27(3); cf. Griffin v. State, 980 So.2d 1035 (Fla.2008) (explaining that costs may be a criminal sanction for purposes of ex post facto if “the length of an inmate’s sentence can be increased by failure to pay the costs”). Also, if the defendant is unable to pay, the court can convert these costs to community service. § 938.30(2). Finally, although the statutes do not expressly state how or when these costs must be imposed, ordinarily they are imposed during the sentencing process. See, e.g., Clark v. State, 963 So.2d 911 (Fla. 2d DCA 2007); Reyes v. State, 655 So.2d 111 (Fla. 2d DCA 1995).

In light of this legislative intent, costs of prosecution are a criminal sanction and thus are part of a sentence for purposes of double jeopardy. Therefore, the trial court erred by increasing the costs after the defendant had begun serving his sentence. Accordingly, we reverse and remand for the court to strike the extradition costs order. Contrast Speer v. State, 51 So.3d 602 (Fla. 5th DCA 2011) (holding that restitution orders entered six months after sentencing did not violate double jeopardy principles where sentencing court had expressed intent to determine full amount later).

REVERSED and REMANDED.

EVANDER, J., concurs.

SAWAYA, J., dissents, without opinion.

      . An exception exists where the defendant has no legitimate expectation of finality in the sentence. See Dunbar v. State, 89 So.3d 901 (Fla. 2012). Unlike the invalid original sentence in Dunbar, here the original sentence was not rendered invalid by the trial court's failure to include costs the State had yet to request.

      . Payment of costs of prosecution may be enforced by, among other methods, reducing them to a civil judgment. See §§ 938.27(5), 938.30(6), (12); cf. Woods v. State, 879 So.2d 651, 653 & n. 1 (Fla. 5th DCA 2004). However, the fact that one method for enforcing these costs is by civil means does not alter the criminal nature of the sanction.


text:
    Devore L. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3224.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Devore Laron Thomas (defendant) appeals his conviction for aggravated battery. Determining that the trial court fundamentally erred by issuing a faulty jury instruction on attempted voluntary manslaughter, we reverse.

The defendant was charged with attempted first-degree murder. The matter proceeded to trial before a jury. During the jury charge, the trial court issued instructions on several lesser included offenses, including attempted voluntary manslaughter. The instructions and verdict form presented the offenses in the following order: attempted second-degree murder, aggravated battery, attempted voluntary manslaughter, and battery. The jury found the defendant guilty of aggravated battery.

The Florida Supreme Court has ruled that the standard jury instruction on manslaughter is defective. State v. Montgomery, 39 So.3d 252, 257 (Fla.2010). In Montgomery, the Court further stated that failing to properly instruct the jury on manslaughter, when it is one step below the crime for which the defendant is convicted, is fundamental error. Id. at 259. “If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.” Pena v. State, 901 So.2d 781, 787 (Fla. 2005). Our court has recently applied Montgomery to attempted voluntary manslaughter. Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011).

Both parties agree that the trial court issued a faulty instruction on the lesser included offense of attempted voluntary manslaughter. The State maintains, however, that the issuance of the faulty instruction was harmless because aggravated battery is actually a lesser included offense of attempted voluntary manslaughter. We disagree. The error was not harmless because, based on the order in which the charges were set forth in the instructions and verdict form, the jury could reasonably have concluded that the offenses were presented in descending order of seriousness and that attempted voluntary manslaughter was less serious than aggravated battery. As such, “it is impossible to determine whether the jury, if given the opportunity, would have ‘pardoned’ the defendant,” State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), by convicting him of attempted voluntary manslaughter under a proper instruction.

Accordingly, we reverse the defendant’s conviction and sentence for aggravated battery, and remand for a new trial As in Burton, we certify that this decision conflicts with the Fourth District’s decision in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So.3d 1262, 2011 WL 2567536 (Fla.2011).

REVERSED and REMANDED; CONFLICT CERTIFIED.

LAWSON and JACOBUS, JJ., concur.

      . See § 784.045(l)(a), Fla. Stat. (2008).


text:
    Steve B. CLARK, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-2186.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Rehearing Denied July 27, 2012.
    Steve B. Clark, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

The defendant’s petition alleges ineffective assistance of appellate counsel. The petition raises four grounds. We grant the petition as to only the first ground. The first ground argues that appellate counsel was ineffective for failing to raise the issue of whether the defendant’s convictions for first degree grand theft and making a false insurance claim greater than $100,000, both allegedly stemming from the same action, violate double jeopardy. See Kist v. State, 900 So.2d 571, 571-72 (Fla. 2d DCA 2004) (granting petition alleging appellate counsel was ineffective in failing to raise a claim that the defendant’s convictions for both grand theft and insurance fraud stemming from the same action violated double jeopardy); LaRoche v. State, 761 So.2d 335, 336-37 (Fla. 4th DCA 1998) (on' direct appeal, holding convictions violated double jeopardy because the same action constituted the basis for the defendant’s grand theft and insurance fraud convictions; vacating insurance fraud conviction).

Accordingly, the circuit court, within thirty days from the issuance of our mandate in this case, shall appoint appellate counsel to represent the defendant on the above issue on appeal. Appellate counsel, within thirty days of the appointment, shall file a new notice of appeal and reference this opinion in the notice of appeal.

We deny the petition as to the second and third grounds, both of which we conclude lack merit. We previously dismissed the fourth ground of the petition as untimely.

Petition granted in ‘part, denied in part.

HAZOURI, GERBER and LEVINE, JJ., concur.


author: POLEN, J.

text:
    Summer S. JASSER, Lena S. Mamone and Randall Lycke, Appellants, v. Karim SAADEH, Appellee.
    No. 4D11-2550.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Rehearing Denied July 27, 2012.
    Charles R.L. White of Joseph C. Kempe, P.A., Jupiter, for appellants.
    Irwin R. Gilbert and Bryan J. Yarnell of Gilbert Yarnell, Palm Beach Gardens, for appellee.
   POLEN, J.

Appellants, Summer S. Jasser, Lena S. Mamone, and Randall Lycke (collectively referred to as “appellants”), appeal the trial court’s final judgment in favor of ap-pellee, Karim Saadeh, ordering payment on a note to be made to Saadeh in the amount of $220,000 plus seven percent interest, equaling $276,661, and denying rehearing on the issue. We affirm the trial court’s order requiring the full payment to be made on demand, pursuant to a joint pretrial stipulation between the parties.

Saadeh’s complaint alleged that appellants executed and delivered a promissory note to Saadeh in the amount of $220,000 on July 26, 2007. The note was for the purchase of an investment property in Palm Beach Gardens. The note provided that the full amount was due upon the sale of the house, but did not contain a date of maturity otherwise. The complaint alleged that the note was silent as to the date of maturity, so the note was due on demand. In a joint pretrial stipulation filed by all parties, it was agreed that

The Note is silent as to a date of maturity. By operation of law, the Note was therefore due on demand. The Note also recites that it is due when certain property was sold. Defendants were impliedly obliged to sell that property but have failed to do so in a reasonable time.

Written demand was mailed to appellants, but they did not repay their debt on the note.

After a non-jury trial the court ruled that section 673.1081, Florida Statutes, governed the payment, making it due upon demand. The final judgment provided that appellants were liable to Saadeh in the amount of $276,661.00. After appellants moved for rehearing and the motion was granted, a hearing was held and the trial court reaffirmed its final judgment. This timely appeal followed.

When a decision in a non-jury trial is based on findings of fact from disputed evidence, it is reviewed on appeal for competent, substantial evidence.... However, where a trial court’s conclusions following a non-jury trial are based upon legal error, the standard of review is de novo.

Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1189, 1143 (Fla. 4th DCA 2008). The determination that the failure to include a “definitive specific date of payment” made the note payable on demand was a legal conclusion reached by the trial court. Therefore, the standard of review on this particular issue is de novo. See Schafer, 976 So.2d at 1143.

Appellants argue that the trial court erroneously ruled that the note was payable on demand and claim the trial court misapprehended the language of the note. Saadeh contends that appellants already stipulated to the fact that the note was a demand note and that its silence as to the payment date supports the notion that the entire amount of the note was payable on demand. Section 673.1081, Florida Statutes, provides that a note is “payable on demand” if it “[d]oes not state any time of payment.” § 673.1081(l)(b), Fla. Stat. (2011). A note

is “payable at a definite time” if it is payable on elapse of a definite period of time after sight or acceptance or at a fixed date or dates or at a time or times readily ascertainable at the time the promise or order is issued, subject to rights of prepayment, acceleration, extension at the option of the holder, or extension to a further definite time at the option of the maker or acceptor or automatically upon or after a specified act or event.

§ 673.1081(2), Fla. Stat. (2011).

The joint pretrial stipulation demonstrated an agreement between the parties to make the full amount payable on demand because the note was otherwise silent as to the date of maturity. As such, we affirm the trial court’s final judgment and hold that entry into the pretrial stipulation binds the parties to the terms set forth in the stipulation.

Affirmed.

GROSS and LEVINE, JJ., concur.


text:
    Marla Diane SWEARINGEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4240.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.
    Ronald E. Fox, of Ronald E. Fox, P.A., Umatilla, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Marla Diane Swearingen appeals her conviction for aggravated assault with a firearm and the mandatory minimum sentence of twenty years in prison imposed for that offense. We reverse.

A detailed recital of the underlying facts is unnecessary to the resolution of this case. Suffice it to say that the panoply of trial errors is clearly discernable from the record and the ineffectiveness of Ms. Swearingen’s representation, for which a tactical explanation is inconceivable, is abundantly apparent on the face of the record and caused prejudice that is indisputable. As a result, Ms. Swearin-gen did not receive a fair trial. Accordingly, we reverse her conviction and remand this case for a new trial.

On remand, we remind the parties that, pursuant to the rule of completeness set forth in section 90.108(1), Florida Statutes (2011), all portions of Ms. Swearin-gen’s statements should be provided, contemporaneously, to the jury and not just those that benefit the State. See Ramirez v. State, 739 So.2d 568, 580 (Fla.1999); Metz v. State, 59 So.3d 1225 (Fla. 4th DCA 2011); Whitfield v. State, 933 So.2d 1245 (Fla. 1st DCA 2006). As the court explained in Whitfield:

[T]he purpose of the rule is to “avoid the potential for creating misleading impressions by taking statements out of context.” The proper standard for determining the admissibility of testimony under the rule is “whether, in the interest of fairness, the remaining portions of the statements should have been contemporaneously provided to the jury.”

Id. at 1248 (quoting Larzelere v. State, 676 So.2d 394, 401, 402 (Fla.1996)); see also Metz, 59 So.3d at 1226-27 (“A defendant’s exculpatory out-of-court statement is admissible into evidence when a state witness has testified to incriminating statements contemporaneously made by the defendant and ‘the jury should hear the remaining portions at the same time so as to avoid the potential for creating misleading impressions by taking statements out of context.’ ” (quoting Mason v. State, 719 So.2d 304, 305 (Fla. 4th DCA 1998))). Although section 90.108(1), Florida Statutes (2011), speaks in terms of written or recorded statements, “[t]his rule has been applied to verbal statements as well.” Ramirez, 739 So.2d at 580 (citing Reese v. State, 694 So.2d 678, 683 (Fla.1997); Christopher v. State, 583 So.2d 642, 646 (Fla.1991)); see also Metz, 59 So.3d at 1226. The violation of this rule alone requires reversal under the facts and circumstances of this case. We further caution the State that this court will not condone mischaracterization of the evidence to the jury, its vouching for credibility of witnesses, personal opinions regarding Ms. Swearingen’s guilt, or the disparagement of defense witnesses. Nothing less than adherence to the rules of evidence is acceptable.

Ms. Swearingen was entitled to a fair trial and effective assistance of trial eoun-sel. She received neither. Accordingly, we reverse the conviction and sentence and remand for a new trial.

REVERSED and REMANDED.

SAWAYA, PALMER and MONACO, JJ., concur.

      . See Hills v. State, 78 So.3d 648, 653-54 (Fla. 4th DCA 2012) (reversing on direct appeal two counts of sexual battery on a child under the age of twelve based on ineffective assistance of counsel; concluding that the ineffectiveness was obvious on the face of the appellate record, the prejudice caused by the conduct was indisputable, and a tactical explanation for the conduct was inconceivable); Larry v. State, 61 So.3d 1205, 1207 (Fla. 5th DCA 2011) (reducing conviction for selling a controlled substance within a thousand feet of a convenience store to the necessarily lesser-included offense of delivery of a controlled substance; concluding on direct appeal that the ineffectiveness of defense counsel's representation was obvious from the record, the prejudice caused thereby was indisputable, and a tactical explanation was inconceivable); Spicer v. State, 22 So.3d 706, 707-08 (Fla. 5th DCA 2009) (reversing conviction for aggravated battery on direct appeal; finding that ineffectiveness was apparent on the face of the record, that prejudice was indisputable, and that there was no tactical explanation for erroneously telling the jury in closing argument that the defendant rather than the State had the burden of proving all of the elements of the defendant’s only affirmative defense). We note that Ms. Swearingen’s appellate counsel was not her trial counsel.

      . For example, the prosecutor misstated tire evidence when the prosecutor informed the jury that the victim told the 911 operator that a bullet “whizzed” past his head. Review of the transcript of the recording of the 911 call by the victim reveals that no such statement was made. Not only did the victim never say during the 911 call that a bullet went past his head, he never testified to that at trial. The prosecutor also made the outlandish claim, not supported by any evidence, that if Ms. Swearingen had fired the gun straight up in the air as she testified, the bullet would have landed right in front of her. In addition, the prosecutor, who was not a witness in the case, impeached Ms. Swearingen’s testimony that there was another witness to the assault by telling the jury that the State had spoken to the alleged witness and that she denied that she saw anything. After disparaging the testimony of a defense witness and hearing the defense objection sustained, the prosecutor continued, “Well, I’m sorry. I’m just — -I’m incredulous.” These are but a few examples of the egregious conduct that, even in the absence of the violation of the rule of completeness, would have precipitated a reversal. We set them forth here, trusting that there will not be a reoccurrence of such conduct on remand.


text:
    Van Lawson WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4513.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, GROSS and LEVINE, JJ., concur.


author: COHEN, J.

text:
    Darrel BILBREY, Appellant, v. David MYERS and First Pentecostal, etc., Appellee.
    No. 5D11-1036.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.

      David J. Volk, T. Ryan Williams and Michael J. Lazinsk, Volk Law Offices, P.A., Melbourne, for Appellant.
    Scot E. Samis of Traub Lieberman Straus & Shrewsberry, LLP, St. Peters-burg, for Appellee.
   COHEN, J.

Appellant, Darrel Bilbrey (“Bilbrey”), appeals from an order dismissing with prejudice his complaint against David Myers (“Myers”) and First Pentecostal Church of South Brevard, Inc. (“FPC”), on the grounds that the trial court lacked subject-matter jurisdiction and the complaint failed to state a cause of action. We affirm in part and reverse in part.

Bilbrey, a former member of the church at which Myers serves as pastor, filed an amended eomplaint asserting against Myers and FPC defamation, breach of fiduciary duty, intentional infliction of emotional distress, and invasion of privacy. The amended complaint alleged the following operative facts. Bilbrey became a member of FPC in May 2007 after moving to Florida. He and Myers developed both a business and personal relationship outside the church, where Myers served as Bilbrey’s mentor. Later, Myers sponsored Bilbrey to obtain a license to minister to some degree in the greater Pentecostal church. As their relationship developed, Bilbrey confided in Myers that he had been called a “faggot” as a teenager by an authority figure. This ultimately led to Bilbrey’s installation of a religious internet filtration and accountability system on his personal computer that reports suspect internet usage, or attempted usage, to third parties. Myers served as Bilbrey’s “accountability partner” under the system, and one report prompted Myers to ask Bil-brey if he was “gay.” Bilbrey denied that he was a homosexual. At some point thereafter, the relationship between the two men deteriorated.

According to the complaint, on several occasions Myers falsely accused Bilbrey of being a homosexual and asserted that Bil-brey’s upcoming marriage was a sham designed to conceal his homosexuality. These allegations were published to members of Bilbrey’s church, including his fian-cée’s father. Later, Myers urged Bilbrey to call off his upcoming marriage and move out of state, which Bilbrey did. After the move, when Bilbrey attempted to transfer his pastor’s license from Florida to Michigan, Myers falsely reported to church officials that Bilbrey was a homosexual. Myers also called Bilbrey’s new pastor to repeat the same accusation.

In response to Bilbrey’s amended complaint, Myers and FPC filed a motion to dismiss all claims, arguing that the trial court lacked subject-matter jurisdiction over Bilbrey’s claims due to the church autonomy doctrine. The trial court agreed and granted the motion with prejudice on the basis of the doctrine. It further found the complaint failed to state a claim for intentional infliction of emotional distress.

Bilbrey appealed the dismissal of his claims. The order of dismissal is reviewable de novo, based on the allegations contained in the four corners of the complaint. Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 494 (Fla. 4th DCA 2001). For purposes of reviewing a motion to dismiss, the “allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff.” Ralph v. City of Daytona Beach, 471 So.2d 1, 2 (Fla.1983). The purpose of a motion to dismiss is to test the legal sufficiency of a complaint, not determine factual issues. Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006). “Unlike a motion for summary judgment, the trial court may not rely on facts adduced in depositions, affidavits, or other proofs.” Chodorow v. Porto Vita, Ltd., 954 So.2d 1240, 1242 (Fla. 3d DCA 2007); but see Mancher v. Seminole Tribe of Fla., Inc., 708 So.2d 327, 328 (Fla. 4th DCA 1998) (discussing limited circumstances where court may consider attached affidavit to motion to dismiss, including determination of subject-matter jurisdiction).

Our review of the complaint requires us to reverse the dismissal of Bil-brey’s claims for defamation and breach of fiduciary duty, which the lower court dismissed on the basis of the church autonomy doctrine. The church autonomy doctrine stems from the First Amendment to the United States Constitution which provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” U.S. Const, amend. I; Malicki v. Doe, 814 So.2d 347, 353 (Fla.2002). The doctrine, known also as the “religious autonomy principle,” Malicki, 814 So.2d at 355 n. 6, and the “ecclesiastical abstention doctrine,” Archdiocese of Miami, Inc. v. Minagorri, 954 So.2d 640, 641 (Fla. 3d DCA 2007), is a product of both the Free Exercise Clause and the Establishment Clause, which gives a special, protected status to religious disputes by shielding them from intervention by the courts. The doctrine prevents courts from “resolving internal church disputes that would require adjudication of questions of religious doctrine.” Malicki, 814 So.2d at 355 (citing Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-09, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976)). Intrachurch disputes typically concern “ ‘discipline, faith, internal organization, or ecclesiastical rule, custom or law.’ ” Malicki 814 So.2d at 357 (quoting Bell v. Presbyterian Church, 126 F.3d 328, 331 (4th Cir.1997)).

Courts nationwide typically agree that once the church autonomy doctrine is triggered, a civil court is precluded from further adjudicating the issue in question. See Scott C. Idleman, Tort Liability, Religious Entities, and the Decline of Constitutional Protection, 75 Ind. L.J. 219, 225 (2000). Courts disagree, however, as to the prohibition’s precise legal operation. See C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389, 394 n. 3 (Tex.2007) (“A few courts conceptualize the general prohibition as a question of justiciability. Some treat the matter as an affirmative defense to liability. But the majority of courts broadly conceptualize the prohibition as a subject-matter bar to jurisdiction.”) (citations omitted). To date, Florida courts have treated the prohibition as a bar to subject-matter jurisdiction. See, e.g., Mi-nagorri, 954 So.2d at 641. We agree that the issue is best treated as a matter of subject-matter jurisdiction, which is also reviewed de novo. Jacobsen v. Ross Stores, 882 So.2d 431, 432 (Fla. 1st DCA 2004).

The United States Supreme Court has not yet resolved the effect of the church autonomy doctrine on tort claims. Two distinct viewpoints have evolved with respect to the doctrine in the context of such claims. See Malicki, 814 So.2d at 357-59 (discussing split of authority among states on issue of whether church autonomy doctrine bars tort claim against a religious institution). Some state and federal courts have taken an expansive view of the protections afforded by the .doctrine and refuse to adjudicate most tort claims against religious institutions, finding such claims barred because the conduct giving rise to the claim is inextricably entangled with church polity and administration. See, e.g., Ind. Area Found, of United Methodist Church, Inc. v. Snyder, 953 N.E.2d 1174 (Ind.Ct.App.2011). Most courts, however, have adopted a narrower view of the doctrine and hold that the rights guaranteed by the First Amendment are not violated if the tort claims can be resolved through the application of “neutral principles” of tort law, particularly where there is no allegation that the conduct in question was part of a sincerely held religious belief or practice. Malicki, 814 So.2d at 358; see, e.g., Gibson v. Brewer, 952 S.W.2d 239, 246 (Mo.1997).

Florida has adopted the “neutral principles” approach. In Malicki, the supreme court considered a dispute involving two parishioners (identified as “third parties”) who alleged they had been sexually assaulted and battered by a member of the clergy. 814 So.2d at 352-53. The Malicki court held that the right to religious freedom and autonomy protected by the First Amendment was not violated by a tort claim of negligent hiring and supervision brought against the church, which could be resolved by the neutral application of principles of tort law. Id. at 361. The court found that the Free Exercise Clause was not implicated because there was no claim that the conduct in question had been “undertaken in furtherance of a sincerely held religious belief,” and no claim that the church had failed to exercise control over its clergyman because of sincerely held religious beliefs or practices. Id. at 360-61. It further found that the claim was not barred by the Establishment Clause because the imposition of tort liability in these circumstances had a secular purpose and neither advanced nor inhibited religion. Id. at 364.

The principles established in Mal-icki require reversal of the dismissal of Bilbrey’s claims for defamation and breach of fiduciary duty. Bilbrey’s defamation claims were based on a series of statements made by Myers, who expressly or implicitly inferred that Bilbrey was a homosexual and asserted that Bilbrey’s upcoming marriage was a sham to hide his homosexuality. These statements were made during a meeting in Myers’ office, to which Myers called Bilbrey and three others; in a sermon two weeks after the meeting; when Bilbrey sought to have his ministerial license under the greater Pentecostal church transferred from Florida to Michigan; and when Myers called Bilbrey’s pastor in Michigan. The First Amendment does not grant Myers, as pastor of FPC, carte blanche to defame church members and ex-members. If untrue, the statement that a person is a homosexual has long been recognized as potentially defamatory outside the context of any religious doctrine or practice. This claim can be adjudicated without implicating the First Amendment and was improperly dismissed on the basis of the church autonomy doctrine. Cf. House of God Which is the Church of the Living God, the Pillar & Ground of the Truth Without Controversy, Inc. v. White, 792 So.2d 491, 495 (Fla. 4th DCA 2001) (recognizing claim for defamation against pastor who allegedly called plaintiff a “slut” while standing at church altar in front of other clergy and parishioners).

As to Bilbrey’s claim for breach of fiduciary duty—based on allegations that Myers had a fiduciary duty to Bilbrey because of the pastor/church member relationship and the internet filtration and accountability program—the First Amendment does not necessarily bar such claims. See Doe v. Evans, 814 So.2d 370, 377 (Fla. 2002) (determining First Amendment did not bar examination of fiduciary duty claim against reverend and church, arising from counselor-counselee relationship). In fact, many courts have recognized the existence of a fiduciary duty between a pastor and a parishioner. See, e.g., Destefano v. Grabnan, 763 P.2d 275, 289 (Colo.1988); F.G. v. MacDonell, 150 N. J. 550, 696 A.2d 697, 701 (N.J.1997); but see Redwing v. Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436, 2012 WL 604481, *14 (Tenn. Feb.27, 2012) (cautioning that, because breach of fiduciary duty claims against religious institution cannot be predicated on religious duty or arise solely from relationship between institution and member, such claims are “quite rare”). It cannot be determined from the pleading, however, whether Bilbrey asserted an actionable fiduciary duty claim. Accordingly, he should have the opportunity to amend the complaint.

We affirm the dismissal of Bil-brey’s claim for intentional infliction of emotional distress based on allegations that over an almost-two-year-period, Myers repeatedly and falsely told various people that Bilbrey was a homosexual with an immoral character, and tried to break up his relationship with his fiancée. The conduct alleged in the complaint, while deplorable, does not rise to the level of outrageousness required by law. Cf. Le-Grande v. Emmanuel, 889 So.2d 991, 995 (Fla. 3d DCA 2004) (holding conduct by church members in front of congregation, including accusation that pastor stole cash and reference to him as “Satan,” was not outrageous).

We also affirm the dismissal of Bilbrey’s claim for invasion of privacy based on the public disclosure of private facts. The complaint’s allegations did not establish enough publicity to make Myers’ conduct actionable for public disclosure of private facts. See Williams v. City of Minneola, 575 So.2d 683, 689 (Fla. 5th DCA 1991) (“[T]he publicity given to private facts must be to the public at large or to so many persons that the matter must be regarded as substantially certain to become public knowledge.”) (citing Restatement (Second) of Torts § 652D, cmt. a (1977)).

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

MONACO and JACOBUS, JJ, concur.

      . The First Amendment, applicable to the states through the Fourteenth Amendment, contains two clauses concerning religion: the Free Exercise Clause and the Establishment Clause. Malicki, 814 So.2d at 353. The Free Exercise Clause guarantees "the right to believe and profess whatever religious doctrine one desires.” Id. at 354 (quoting Emp't Div. v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)). The freedom to believe is absolute, but the freedom to act is not. Malicki, 814 So.2d at 354 (citing Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)). The Establishment Clause involves the separation of church and state and prevents the government from passing laws that "aid one religion, aid all religions, or prefer one religion over the other.” Malicki, 814 So.2d at 354-55 (quoting School Dist. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)). These interests are also expressed in article I, section 3 of the Florida Constitution.


author: TORPY, J.

text:
    Frank R. FABBIANO, Appellant, v. Jerry L. DEMINGS, in his official capacity, etc., Appellee.
    No. 5D11-3094.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    John W. Dill of Morgan & Morgan, P.A., Orlando, for Appellant.
    Bobby G. Palmer, Jr., and Deborah I. Mitchell of Hilyard, Bogan & Palmer, P.A., Orlando, for Appellee.
   TORPY, J.

The issue in this personal injury case is whether the trial court erred in denying Appellant’s motion to amend his complaint to change his legal theory of recovery from negligence to battery after the statute of limitations had expired on the battery claim. Although the battery claim was based upon the identical operative facts as the negligence claim, the lower court denied the amendment because the amended complaint was premised on a different “cause of action.” We conclude that the proposed amendment should have been permitted because the amended complaint was based upon the same conduct, transaction, or occurrence, as alleged in the original complaint, and, therefore, related back to the original complaint. Accordingly, we reverse and remand for further proceedings.

The original complaint alleged that Appellant was patronizing Pleasure Island when the staff called security because they believed that Appellant and his companions were using fake identification cards. Off-duty Orange County Deputy Gregory Krantz was working as security for Pleasure Island. Deputy Krantz arrived at the scene and began escorting Appellant and his companions to the security booth. Appellant alleged that during this encounter, Deputy Krantz, without provocation or justification, threw him to the ground and twisted his arm, despite being told that his arm had been recently fractured. As a result, Appellant alleged that his arm was “re-fractured.” In his one-count complaint, Appellant sued Appellee, the Orange County Sheriff, for “negligence.” After the applicable statute of limitations had expired, Appellant sought to amend his complaint to change his theory of liability from negligence to battery, asserting that the battery occurred within the scope of Deputy Krantz’s employment by Appel-lee. The trial court denied the proposed amendment and granted judgment for Ap-pellee on the original complaint. The sole issue on appeal is the propriety of the lower court’s order denying the motion to amend.

The pertinent rule, Florida Rule of Civil Procedure 1.190(c), provides that an amended pleading relates back to the date of the original pleading when it arises “out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading....” As with all pleading rules, this rule is to be liberally interpreted. C.H. v. Whitney, 987 So.2d 96, 99 (Fla. 5th DCA 2008). Here, there is no doubt that the amended pleading alleges a claim that arose out of the same occurrence as the original pleading because it is based upon the identical act, resulting in the identical injury. Appellee concedes this point, but nevertheless argues that the rule does not apply where, as here, the claim in the amended complaint is based on a different “cause of action” than that stated in the original pleading. Appellee cites several cases in support of this construction, principally relying on language from our decision in West Volusia Hospital Authority v. Jones, 668 So.2d 635 (Fla. 5th DCA 1996).

In West Volusia Hospital Authority, we affirmed the denial of a proposed amendment to add the victim’s father as a new party, asserting for the first time his claim for loss of filial consortium. Our decision there was based on the fact that the amendment asserted a “new and distinct” cause of action. Id. at 636 (emphasis added). The cause of action was “distinct” because it sought recovery for distinct injuries and damages involving a different plaintiff. Our decision there relied on School Board of Broward County v. Surette, 394 So.2d 147 (Fla. 4th DCA 1981), where the court held that an amended complaint filed by the decedent’s parents to recover different damages than claimed in the original complaint did not “relate back” as contemplated by rule 1.190. These cases do not stand for the proposition espoused by Appellee — that an amendment involving a new cause of action never relates back under the rule. Rather, they pertain to a narrow set of circumstances wherein the proposed amendment, although emanating from the same set of operative facts, involved a factually distinct claim.

Appellee’s reliance on Livingston v. Malever, 103 Fla. 200, 137 So. 113 (1931), for the proposition that any new “cause of action” does not relate back to the original filing, is likewise misplaced. Livingston was decided before the modern rule was adopted. As the commentary to rule 1.190 makes clear, the rule’s intent was to alter the “cause of action” test, embodied in the prior law, in favor of a more liberal rule based upon “conduct, transaction, or occurrence.” Specifically, the commentary states:

The principle of relation back of amended pleadings existed in prior law, but it was limited to an amendment which did not state a new cause of action. The harshness of the rule was modified by a liberal construction of a “cause of action.” In accord with this liberal application of the principle, the rule requires only that the amendment arise out of the “conduct, transaction, or occurrence” set forth in the original pleading.

Fla. R. Civ. P. 1.190 cmt. Relation Back (1967).

We think the proper interpretation of rule 1.190 is set forth in Associated Television & Communications, Inc. v. Dutch Village Mobile Homes of Melbourne, Ltd., 347 So.2d 746 (Fla. 4th DCA 1977). There, the court adopted this explanation of the rule:

Thus, as we view it, the proper test of relation back of amendments is not whether the cause of action stated in the amended pleading is identical to that stated in the original (for in the strict sense almost any amendment may be said to be a change of the original cause of action), but whether the pleading as amended is based upon the same specific conduct, transaction, or occurrence between the parties upon which the plaintiff tried to enforce his original claim. If the amendment shows the same general factual situation as that alleged in the original pleading, then the amendment relates back even though there is a change in the precise legal description of the rights sought to be enforced, or a change in the legal theory upon which the action is brought.

Id. at 748 (quoting Keel v. Brown, 162 So.2d 321, 323 (Fla. 2d DCA 1964)). The rationale for this rule is grounded in the notion of fair notice. When the original complaint gives fair notice of the factual underpinning for the claim, an amendment to state a new legal theory should relate back. See Flores v. Riscomp Indus., Inc., 35 So.3d 146, 147-48 (Fla. 3d DCA 2010) (providing that test for whether amendment relates back is whether original pleading gave defendant fair notice of “general fact situation” basis of new claim); Brown v. Wood, 202 So.2d 125, 128 (Fla. 2d DCA 1967) (same); see also 6A Charles Alan Wright, et al., Federal Practice and Procedure § 1497 (3d ed.2011) (explaining one theory for relation-back rule is “ ‘[w]hen a suit is filed ... the defendant knows that the whole transaction described in it will be fully sifted, by amendment if need be, and that the form of the action or the relief prayed or the law relied on will not be confined to their first statement.’ ” (quoting Barthel v. Stamm, 145 F.2d 487, 491 (5th Cir.1944))).

This construction of rule 1.190(c) is entirely consistent with the construction of Federal Rule of Civil Procedure 15(c)(1)(B), after which the Florida rule was purposefully copied. See Brown, 202 So.2d at 128-29 (Florida rule patterned after federal rule and its construction should be considered when interpreting Florida rule). Because we adopted the federal rule almost verbatim, we may rely on the federal cases construing the federal counterpart to our rule. Carter v. Lake Cnty., 840 So.2d 1158, 1157 (Fla. 5th DCA 2003). Unquestionably, these authorities permit an amendment setting forth a new legal theory to relate back after a statute of limitations has expired, provided that the amended complaint arises from “a common core of operative facts.” Mayle v. Felix, 545 U.S. 644, 659-60, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005); see, e.g., Tiller v. Atl. Coast Line R.R., 328 U.S. 574, 580-81, 65 S.Ct. 421, 89 L.Ed. 465 (1945) (amended complaint related back and avoided intervening statute of limitations where original complaint sounded in negligence and amendment introduced statutory cause of action arising from same accident causing death of victim; both claims based on same “occurrence”); Hall v. Spencer Cnty., Ky,. 583 F.3d 930 (6th Cir.2009) (amendment to state new legal theory based on same “nexus of facts” related back); Maegdlin v. Int’l Ass’n of Machinists & Aerospace Workers, Dist. 94-9, 309 F.3d 1051 (8th Cir.2002) (amendment that changed theory of claim related back); Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114 (2d Cir.1994) (amended complaint with new legal theory related back to original complaint where based on same series of transactions and occurrences alleged in original complaint). As one authoritative commentary observed, the rule applies even when the new theory of action is of a different ilk altogether:

Applying this standard, courts have ruled that an amendment may set forth a different statute as the basis - of the claim, or change a common-law claim to a statutory claim or vice-versa, or it may shift from a contract theory to a tort theory, or delete a negligence count and add or substitute a claim based on warranty, or change an allegation of negligence in manufacture to continuing negligence in advertising. Indeed, an amendment that states an entirely new claim for relief will relate back as long as it satisfies the test embodied in Rule 15(c)(1)(B).

Wright, supra, § 1497.

Here, the original claim and amended claim, although predicated on different legal theories, arose from the same occurrence. They involved the same plaintiff, the same injuries, and the same damages. Therefore, the proposed amended complaint relates back to the original filing. See Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 870 (Fla. 2d DCA 2010) (amendment based on new legal theory relates back if arises from same occurrence).

REVERSED AND REMANDED.

ORFINGER, C.J., and COHEN, J., concur.

      . Federal Rule 15(c)(1)(B) provides that an amendment to a pleading relates back when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading.”

      . Rule 1.190 is the same as former Rule 1.15, 1954 Rules of Civil Procedure, as per amendment effective January 1, 1966. It is patterned closely after Federal Rule 15, and as such, 1A Barron and Holtzoff, Federal Practice and Procedure, Rules Edition (West 1960) should be carefully studied for a constructive analysis of the similar federal counterpart.
      Fla. R. Civ. P. 1.190 author's cmt. (1967).


text:
    Kenneth WILKINSON, as Property Appraiser, and Lisa Echeverri, n/k/a Lisa Vickers, as Executive Director of the Department of Revenue, Appellants, v. Susanne L. CLARKE, as Trustee of the Francis Hine Low Family Trust dated May 23, 1995, and Cathy Curtis, as Tax Collector, Appellees.
    No. 2D11-3231.
    District Court of Appeal of Florida, Second District.
    June 29, 2012.
    John J. Renner, General Counsel, Lee County Property Appraiser, Fort Myers, for Appellant Kenneth Wilkinson, as Property Appraiser.
    Pamela Jo Bondi, Attorney General, and Joseph C. Mellichamp, III, Chief Assistant Attorney General, Revenue Litigation Bureau, and Courtney Brewer, Deputy Solicitor General, Office of the Attorney General, Tallahassee, for Appellant Lisa Echeverri n/k/a Lisa Vickers, as Executive Director of the Department of Revenue.
    J. Travis Godwin and Jessica D. Dare-neau of Weekley Schulte Valdes, LLC, Tampa, for Appellee Susanne L. Clarke, as Trustee of the Francis Hine Low Family Trust dated May 23,1995.
    No appearance for Appellee Cathy Curtis, as Tax Collector.
   KHOUZAM, Judge.

The Lee County Property Appraiser and Florida Department of Revenue appeal an order granting final summary judgment in favor of the Francis Hine Low Family Trust. Because the trial court lacked jurisdiction to enter the order, we reverse.

In May 2010 the Trustee of the Francis Hine Low Family Trust sued the Lee County Property Appraiser, the Lee County Tax Collector, and the Florida Department of Revenue, alleging that the 2009 ad valorem assessment of a piece of real property belonging to the Trust was invalid. The Trustee filed a motion for summary judgment which was argued at a hearing on March 21, 2011. At the conclusion of the hearing, the trial court reserved ruling.

The trial court communicated its decision to the parties in a letter filed April 4, 2011. The letter indicated that the trial court agreed with the Trustee’s analysis and purported to grant its motion for summary judgment. On April 7, 2011, the Property Appraiser filed a motion to dismiss for lack of subject matter jurisdiction. The motion alleged that the Trustee failed to pay its 2010 real property taxes by the April 1, 2011, deadline and, consequently, the trial court lost jurisdiction over the case pursuant to section 194.171, Florida Statutes (2010).

At the hearing on the motion to dismiss on June 6, 2011, the Trustee did not dispute that it failed to pay its taxes by the deadline. Instead, the Trustee asserted that because it submitted and argued its motion for summary judgment prior to the tax deadline, the trial court’s election to reserve ruling until after the deadline should not prejudice the Trustee. Thus, the Trustee argued, the appropriate resolution was to enter an order nunc pro tunc, effective as of a date prior to the tax deadline.

On June 20, 2011, the trial court issued an order granting the Trustee’s motion for summary judgment “entered Nunc Pro Tunc effective as of March 21, 2011[,] prior to the alleged delinquency of April 1.” On the same day, the trial court also issued an order denying the Appraiser’s motion to dismiss as moot in light of the court’s ruling on the motion for summary judgment. The Property Appraiser and Department of -Revenue timely filed this appeal.

Section 194.171(5) provides in full: “No action to contest a tax assessment may be maintained, and any such action shall be dismissed, unless all taxes on the property assessed in years after the action is brought, which the taxpayer in good faith admits to be owing, are paid before they become delinquent.” Subsection (6) explains that this requirement is jurisdictional and specifies that “A court shall lose jurisdiction of a case when the taxpayer has failed to comply with the requirements of subsection (5).” Florida law is thus “clear that jurisdiction to entertain an assessment contest is conditioned on the taxpayer’s obligation to keep taxes current for all years subsequent to the year in question.” Higgs v. Armada Key West Ltd. P’ship, 903 So.2d 303, 305 (Fla. 3d DCA 2005). Therefore, once taxes become delinquent, dismissal is required pursuant to section 194.171. Washington Square Corp. v. Wright, 687 So.2d 1374, 1375 (Fla. 1st DCA 1997).

Here, it is undisputed that the Trustee failed to timely pay its 2010 taxes on the real property at issue in this suit. Once the Trustee’s taxes became delinquent on April 1, 2011, section 194.171 divested the trial court of jurisdiction to hear the case. Therefore, the trial court’s June 20, 2011, order granting final summary judgment in favor of the Trustee was entered without jurisdiction and is a nullity. See Napoleonic Soc. of Am., Inc. v. Snibbe, 696 So.2d 1243, 1243 (Fla. 2d DCA 1997) (“Because the final summary judgment was entered without jurisdiction, it is a nullity.”). This jurisdictional defect could not be cured by the entry of the order nunc pro tunc. See D.M. v. State, 580 So.2d 634, 635-36 (Fla. 1st DCA 1991) (reversing a nunc pro tunc order entered after the court’s jurisdiction lapsed because such an order “exceeds the scope of the proper purposes for which a nunc pro tunc order can be issued”).

Although this result is “somewhat harsh,” Bystrom v. Diaz, 514 So.2d 1072, 1074 (Fla.1987), we must reverse the order granting summary judgment in favor of the Trustee and remand the case for dismissal.

Reversed.

WHATLEY and KELLY, JJ„ Concur.


author: HAZOURI, J.

text:
    CFC OF DELAWARE LLC, Appellant, v. Teresa SANTALUCIA, individually and as Settlor of the 2007 Teresa Santalucia Irrevocable Trust, Aida Santalucia, individually and as Beneficiary of the 2007 Teresa Santalucia Irrevocable Trust, Banyan Life Financial, LLC, a Florida limited liability company, Jon Kidd, individually, BNC National Bank, and Lincoln National Life Insurance Company, an Indiana corporation, Appellees.
    No. 4D11-3526.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Hala Sandridge of Fowler White Boggs P.A., Tampa, Terrence Russell and S. Carey Villeneuve of Fowler White Boggs P.A., Fort Lauderdale, for appellant.
    Jack Scarola of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, for appellees Teresa Santalucia and Aida Santalucia.
   ON MOTION TO CORRECT SCRIVENER’S ERROR

HAZOURI, J.

We grant appellee’s motion to correct scrivener’s error, withdraw the opinion issued on June 13, 2012, and reissue the opinion as follows:

CFC of Delaware LLC (“CFC”) appeals an order denying its motion to compel Teresa Santalucia (“Santalucia”) and her daughter to submit their claims to arbitration. The agreement to arbitrate is contained within a loan agreement between CFC and Santalucia to finance payments of premiums on two $10 million life insurance policies that were intended to pay her estate taxes upon her death.

In its order denying CFC’s motion to compel arbitration the trial court found:

1. In regards to Plaintiffs’ argument that the arbitration provision upon which CFC’s Motion to Compel Arbitration is predicated is unenforceable due to fraud, the Court finds sufficient evidence of fraud to not compel arbitration under the instant circumstances. In order to strike down an arbitration provision or to hold that the arbitration is not appropriately compelled, the fraud does not necessarily have to be completely and entirely within the provision itself.
2. The Court holds that the factual findings made and relied upon by the Court in issuing the instant order are only for the purposes of evaluating the enforceability of the arbitration provision. No such findings or holdings shall be applicable to any subsequent aspects of the instant case or any related litigation or forms of dispute resolution.
3. In regards to Plaintiffs’ argument that the arbitration provision upon which CFC’s Motion to Compel Arbitration is predicated is unenforceable due to unconscionability, the Court finds that there is substantial evidence to reflect procedural unconscionability; however, the Court finds that such arbitration provision is not substantively unconscionable, and is accordingly not unenforceable due to unconscionability.
4.In regards to Plaintiffs’ remaining arguments regarding a) the scope of the arbitration provision, b) the applicability of the Federal Arbitration Act, and c) the enforceability of the arbitration provision as against co-Plaintiff Aida Santa-lucia, the Court finds such arguments moot given its ruling that the arbitration provision is unenforceable due to fraud.
Accordingly, it is hereby ORDERED AND ADJUDGED:
CFC of Delaware LLC’s Motion to Compel Arbitration is DENIED.

We affirm the trial court’s finding that the arbitration clause is not substantively unconscionable. We, however, find the trial court erred in finding that the arbitration clause was unenforceable due to fraud and reverse that holding and remand to the trial court for consideration of those matters that the trial court found moot, i.e., the scope of the arbitration provision, the applicability of the Federal Arbitration Act, and the enforceability of the arbitration provision against Santalucia’s daughter, a co-plaintiff in the action.

In September of 2007, Santalucia purchased two $10 million life insurance policies so that her estate taxes would be paid upon her death. To finance payment of the premiums, she entered into a loan agreement with CFC. That same day, she also executed a trust agreement, naming BNC National Bank (“BNC”) as trustee, and giving BNC the right to change the beneficiary of the policies in the event of a default on the loan. The trust was named the beneficiary of the policies, and Santalu-cia’s daughter was named beneficiary of the trust.

Under the loan agreement, the trust was the borrower and CFC was the lender. Pursuant to the loan agreement, CFC lent the trust the funds necessary to cover the premiums on the policies for the life of the loan agreement, which was two years. The loan agreement provided that, in the event the trust was unable to repay the loan, CFC could foreclose on the assets of the trust, including the policy. Santalucia did not pay the principal on the loan agreement when it came due and was unable to arrange for alternate financing. Thereafter, CFC foreclosed on the loans at which time the policies were sold to CFC.

Santalucia brought an action for damages against CFC; the life, insurance company; and BNC and its CEO, Jon Kidd (“Kidd”), who sold the policies to Santalu-cia. The complaint included claims for breach of fiduciary duty, negligence, fraud, negligent misrepresentation, fraudulent inducement, breach of oral contract, reformation, exploitation of the elderly, and declaratory relief. The complaint alleged that BNC, Kidd, and CFC participated in a scheme to seize the insurance policies, that Kidd is a close friend of CFC’s president, and that Kidd and CFC’s president have engaged in similar activity in the past. The complaint also alleged that when the loan period expired, BNC transferred the policies to CFC. One count alleged fraudulent inducement against CFC, and specifically alleged that CFC representatives told Santalucia that the loan would automatically renew to cover the premiums, when in actuality the agreement provided that the loan matured in two years and that CFC could sell the insurance policies or have itself designated as beneficiary if Santalucia defaulted.

CFC moved to compel arbitration in Minnesota based on an arbitration clause in the loan agreement. The arbitration provision states, in relevant part:

Section 10.10 Arbitration
(a) Any dispute, controversy or claim arising out of, relating to, in connection with or in respect of this Agreement, including any question regarding its existence, validity, interpretation, breach or termination (a “Dispute”), shall be finally resolved by arbitration under the Commercial Arbitration Rules of the American Arbitration Association, which Rules are deemed to be incorporated by reference into this Section 10.10.
(c) The seat of the arbitration shall be Minneapolis, Minnesota.

“A trial court’s decision on the validity of an arbitration agreement is a matter of contract interpretation subject to de novo review.” Chapman v. King Motor Co. of S. Fla., 833 So.2d 820, 821 (Fla. 4th DCA 2002). However, the trial court’s factual findings will be upheld if based on competent, substantial evidence. McKenzie v. Betts, 55 So.3d 615, 621 (Fla. 4th DCA 2011). “[T]here are three elements for courts to consider in ruling on a motion to compel the arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). This is so whether the FAA or the Florida Code applies. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005).

The trial court denied the motion to compel arbitration based on one ground: fraud. It specifically found the arbitration clause was not substantively unconscionable. Santalucia argues that the claims against CFC are not subject to arbitration because the fraud is related to inclusion of the arbitration provision in the loan agreement. “It is well established that a dispute must be arbitrated where a complaint alleges fraud seeking to avoid or invalidate an entire agreement, rather than just the arbitration clause contained within the agreement. It is only where the complaint specifically challenges the arbitration clause that a trial court is permitted to determine the validity of the arbitration clause before submitting the remainder of the dispute to arbitration.” Simpson, 812 So.2d 588, 590 (Fla. 4th DCA 2002) (citations omitted) (holding that allegation that the contract was fraudulently induced by defendants’ misrepresentation about being licensed went to the contract rather than the arbitration provision, and thus arbitration could be compelled). See also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967) (holding that under the FAA, unless the parties agree otherwise, arbitration clauses are separable from the contracts in which they are contained, and a federal court may decide the issue of fraud in the making of the arbitration clause itself, but not a claim of fraud in the inducement of the contract generally; thus, a claim that the appellee had fraudulently misrepresented that it was solvent was a claim for the arbitrator); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (reaffirming that whether a challenge to a contract is brought in federal or state court, “a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator.”); Beazer Homes Corp. v. Bailey, 940 So.2d 453, 457 (Fla. 5th DCA 2006) (recognizing the general rule established in Pnma Paint Corp., and noting that “the courts in this state have followed that ruling in fraud in the inducement cases, almost without exception, whether applying federal or state law.”)

The complaint here does not make any allegations about the arbitration provision. The crux of the claims against CFC is that its representative told Santalucia the loan agreement would be automatically renewed, but the agreement states otherwise. Because the claim of fraud went to the contract as a whole rather than the arbitration provision, the issue is one for the arbitrator.

Santalucia cites two cases for the proposition that if the arbitration provision was included as part of the fraud scheme, then arbitration may not be compelled. See Bombardier Capital Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131, 135 (Fla. 4th DCA 2001) (noting that in order to void a forum selection clause for fraud, one must show that the clause itself is the product of fraud or that alternatively, “[t]he fraud complained of must relate to the inclusion of the clause in the contract.’ ”) (citation omitted); Golden Palm Hospitality, Inc. v. Steams Bank Nat’l Ass’n, 874 So.2d 1231, 1235 (Fla. 5th DCA 2004) (same). These cases do not involve arbitration.

Santalucia failed to present any testimony to demonstrate any fraud related to the making of the arbitration agreement. We therefore reverse the trial court’s denial of the motion to compel arbitration based on its determination of fraud, we affirm the trial court’s finding that the arbitration was not substantively unconscionable and we remand for consideration of those points the court deemed moot.

MAY, C.J., and GERBER, J., concur.

      . BNC and Jon Kidd are not parties to this appeal.


text:
    Jose CORTINAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2021.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Jose Cortinas, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jose Cortinas (Defendant) appeals an order summarily denying his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm in part and reverse in part.

In May 2003, Cortinas entered a substantial assistance agreement (SAA) with the state, which required him to enter a plea to a pending charge of trafficking in cocaine. (The state’s response below attached an audiotape purporting to memorialize the oral SAA, which required Corti-nas to enter an open guilty plea; however, the disposition sheet, which the state also attached, showed that “Guilty” was checked, but that was scratched out, initialed, and his plea was changed to “No Contest.”)

In April 2005, Cortinas was sentenced for this charge by the Honorable Ilona M. Holmes to twenty years in prison with a three-year mandatory minimum, and a fine of $50,000 was imposed.

In the instant rule 3.850 motion, Corti-nas alleged that when he entered the plea, the Honorable Sheldon M. Schapiro orally pronounced that he would receive a three-year sentence if he fulfilled the requirement of rendering substantial assistance, but he would receive up to a maximum sentence of fifteen years if he did not comply with the terms of the agreement. It is undisputed that he violated the SAA by being arrested in Miami-Dade County on new charges during the period while the SAA was in effect; prior to sentencing in the instant case, he was charged, convicted and sentenced in connection with several new unrelated Miami-Dade charges.

This court issued an order to show cause limited to Cortinas’s third ground for relief, in which he claimed his defense counsel, who represented him at both the plea hearing and the sentencing hearing, was ineffective for failing to object to his being sentenced to a term in excess of the maximum exposure of the plea agreement that was accepted by Judge Schapiro, in light of which Defendant should have been able to withdraw his plea and proceed to trial.

As noted, the state attached to its response below a copy of what purports to be the audiotaped SAA; however, it did not attach any records regarding what transpired when the plea was entered, such as a transcript of a plea hearing or a written plea form. Thus, the record does not establish whether the terms discussed on tape actually were incorporated into the plea that the trial court accepted from Cortinas.

As well, the tape offered to refute Corti-nas’s motion was not authenticated. The state has not indicated that the tape ever was admitted into evidence in any prior proceedings in this case. The tape alone cannot refute Cortinas’s claims regarding what transpired when he entered his plea, namely, that the trial court announced that his maximum term of incarceration in the event he violated the SAA would be fifteen years. See Oquendo v. State, 2 So.3d 1001, 1004 (Fla. 4th DCA 2008) (reversing summary denial of 8.850 motion where record attachments did not refute allegations as to what did and did not take place at plea hearing, so this court was unable to determine if terms discussed in taped SAA were incorporated into the plea entered before the court). As this court pointed out in Oquendo, absent a stipulation, the tape would have to be authenticated as a true representation of the SAA. § 90.901, Fla. Stat. (2006).

On remand, if the state is unable to conclusively refute the claim with records of the plea hearing, an evidentiary hearing may be required to establish what then transpired and to permit Cortinas an opportunity to prove this facially sufficient claim.

We affirm the summary denial of the remaining grounds for relief without discussion.

Affirmed in Part, Reversed in Part, and Remanded.

MAY, C.J., WARNER and HAZOURI, JJ., concur.


author:
PER CURIAM.
      LAWSON, J.,

text:
    Aneatra POGAR, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3991.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.
    Aneatra Pogar, Ocala, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt and Lori N. Hagan, Assistant Attorney Generals, for Appellee.
   PER CURIAM.

AFFIRMED.

GRIFFIN and COHEN, JJ., concur.

LAWSON, J., dissents, with opinion.

LAWSON, J.,

dissenting.

Aneatra Pogar was convicted following a jury trial of conspiracy to traffic in 28 grams or more of a controlled substance and sentenced to a mandatory 25-year term of incarceration. Her conviction was affirmed on appeal. Pogar v. State, 11 So.3d 965 (Fla. 5th DCA 2009). She now appeals the summary denial of her 16-issue amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. While most of Pogar’s claims are conclusively refuted by the record, as found by the trial court, I would reverse the trial court’s order and remand for additional proceedings with respect to Pogar’s claims 4, 6 and 11.

In claim 4, Pogar alleged that her counsel was ineffective for failing to object to the State’s questioning of co-conspirators about their guilty pleas and convictions. Pogar alleged that these questions were prejudicial because they implied that Po-gar was failing to accept her responsibility and influenced the jury to find Pogar guilty. Pogar also noted that each of the co-conspirators testified to accepting prison sentences, but were all later sentenced to probation. The trial court denied the claim, reasoning that no objection was warranted because the State was authorized to elicit this information from it’s co-conspirator witnesses. The legal basis given in support of the summary denial of this claim is incorrect. See Travieso v. State, 480 So.2d 100, 103 (Fla. 4th DCA 1985) (“It is well settled under Florida law that the state may not show that a co-defendant or an accomplice pleaded guilty or was convicted because it is not relevant and it may have a very prejudicial effect upon the determination of the guilt or innocence of the defendant.”) (citations omitted).

In claim 6, Pogar alleged prosecutor misconduct based in part on the testimony of co-conspirator witnesses that they had agreed to pleas which would result in prison sentences. Pogar alleged that the prosecutor elicited this false testimony while knowing that the witnesses would be given more lenient sentences based upon their testimony in her case. This part of the claim is not refuted by the record. In addition, and perhaps unrelated to claim 6, Pogar attached a verified letter from Dionne Lylo, who the State portrayed as the leader of the conspiracy at trial, in which Lylo states that Pogar was not part of the conspiracy. Although Pogar did not sufficiently plead an ineffective assistance of counsel claim, newly discovered evidence claim or Giglio claim based upon the information in Lylo’s letter, I believe that she should have been granted an opportunity to attempt to state a viable post-conviction claim based upon this information. Spera v. State, 971 So.2d 754, 761 (Fla.2007).

Finally, in claim 11, Pogar alleged that her trial counsel was ineffective for not moving to strike testimony from a Detective Johnson that a cellular telephone used extensively as part of the conspiracy was hers. At trial, after the detective testified that the phone belonged to Pogar, her trial counsel objected and the jury was removed while the court and the parties addressed the objection. The trial court agreed that the detective’s testimony linking the phone to Pogar was inadmissible hearsay. However, the judge allowed the phone to be admitted into evidence based upon testimony that the phone was used extensively in furtherance of the conspiracy. Pogar appears to be correct that her counsel never requested a curative instruction or otherwise made any attempt to further address the detective’s testimony, heard by the jury, that the phone belonged to her. In summarily denying the claim, the trial court ruled that because counsel did lodge an objection, the matter was one that could or should have been raised on direct appeal. However, because the trial court essentially sustained the objection, there would have been no other issue preserved for appellate review unless Pogar’s counsel either requested a curative instruction or moved for a mistrial based upon admission of the inadmissible testimony. See, e.g., Harris v. State, 34 So.3d 187, 190 (Fla. 1st DCA 2010) (“Where the trial court sustains an objection to improper testimony, ordinarily the objecting party must request and avail itself of an instruction from the court that the jury disregard the objectionable evidence.”); Pedroza v. State, 773 So.2d 639, 641 (Fla. 5th DCA 2000) (“If a party makes a contemporaneous objection to an improper comment which is sustained by a trial judge, the party must move for a mistrial if he or she wishes to preserve the objection for appellate review.”). Because her counsel did not make either motion, the jury was allowed to hear the inadmissible testimony, and Pogar was left with no recourse on appeal.

In summary, while I agree with the majority’s decision to affirm the trial court’s order as it relates to most of Po-gar’s claims, I respectfully disagree with the majority’s decision to affirm the trial court’s summary denial of claims 4, 6 and 11.

      . It is not completely clear from Pogar’s motion which of her claims she intended to base upon the Lylo letter.

      . Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).


text:
    Willie HOLLIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2758.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

GRIFFIN and SAWAYA, JJ., and MONACO, D.A., Senior Judge, concur.


text:
    Vincent Price COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2844.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

ORFINGER, C.J., LAWSON and JACOBUS, JJ., concur.