author: WHATLEY, Judge.

text:
    John Yancey NUNEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5252.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2011.

      John Y. Nunez, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

John Y. Nunez appeals the order summarily denying ground one of his motion for postconviction relief from his convictions of trafficking in amphetamine, trafficking in illegal drugs, and possession of a controlled substance. The order was entered after remand from this court with directions to hold an evidentiary hearing or attach portions of the record conclusively refuting the claim. See Nunez v. State, 988 So.2d 695 (Fla. 2d DCA 2008). Because the portions of the record the post-conviction court attached to the order do not conclusively refute ground one, we reverse and remand for an evidentiary hearing.

In ground one, Nunez alleged that his trial counsel was ineffective for failing to file a motion to suppress the evidence discovered during an illegal search of his car. This court reversed the postconviction court’s first order denying this claim because the record did not contain evidence that Officer Miller’s inventory search was conducted pursuant to standard criteria or routine. Id. at 697 (citing Pugh v. State, 804 So.2d 1278, 1280 (Fla. 2d DCA 2002)). Upon remand, the post-conviction court again denied ground one based on Officer Miller’s inventory search of Nunez’s vehicle. This time, it attached portions of the transcript of Officer Miller’s testimony in which he stated that he conducted the inventory search of Nunez’s vehicle after his arrest of Nunez pursuant to standard operating procedure. However, Officer Miller did not say what the standard operating procedure required of him, and the procedure was not introduced into evidence. Case law requires that evidence of the procedure be introduced in order for the court to determine whether the inventory search was conducted in accordance with the procedure. See Pugh, 804 So.2d at 1280 (noting in dicta that “a search of the trunk could have been legally conducted based on an impoundment of the vehicle; however, before the search could be declared valid, the State would be required to present evidence that the police conducted their inventory search according to standardized criteria”) (footnote omitted); Patty v. State, 768 So.2d 1126, 1127-28 (Fla. 2d DCA 2000) (reversing denial of motion to suppress evidence found during inventory search of car because state did not present evidence of standardized criteria, and trial court made no finding search was conducted pursuant to said criteria); Williams v. State, 903 So.2d 974 (Fla. 4th DCA 2005) (holding that state could not rely on inventory search exception to warrant requirement because record did not contain standardized policy); Leary v. State, 880 So.2d 776 (Fla. 5th DCA 2004) (holding that inventory search was unlawful because record lacked sufficient evidence of standardized procedure used by police).

Thus, the conclusion of the postconviction court that the inventory search was performed according to standardized procedure is not supported by the record. Accordingly, we reverse and remand for an evidentiary hearing on whether trial counsel was ineffective for failing to file a motion to suppress.

Reversed and remanded with directions.

MORRIS and KHOUZAM, JJ., Concur.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Andrea D. SWOR, Appellant, v. G. Michael SWOR, M.D., Appellee.
    No. 2D09-5418.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2011.
    Jan Schneider, Sarasota, for Appellant.
    Michael Moran of Law Offices of Michael Moran, Sarasota, for Appellee.
   DAVIS, Judge.

Andrea Swor, the Former Wife, and G. Michael Swor, the Former Husband, were divorced in 2000. At that time, they had six minor children who originally resided with the Former Wife. Since the entry of the final judgment of dissolution of marriage, the parties have engaged in continuous litigation. As a result of several modifications of the final judgment, the Former Husband was designated the primary residential parent of the parties’ three remaining minor children. The Former Husband then filed a motion for child support from the Former Wife. The proceedings on the Former Husband’s motion were fraught with complications, including the involvement of two different magistrates in addition to the trial court judge. The Former Wife now challenges the final order imposing child support and, in doing so, raises seven different procedural and evidentiary challenges. We affirm the ruling of the trial court on six of these issues without comment; however, we reverse on the amount awarded for retroactive child support and remand for further consideration.

The final judgment of dissolution required the Former Husband to pay to the Former Wife the sum of $4500 a month in alimony. The record reveals that the Former Husband did not pay his alimony obligations from November 16, 2006, through October 16, 2007, and that the trial court entered a final judgment against the Former Husband for the unpaid $54,000 plus interest in March 2008. The record further indicates that as of the time of the magistrate’s calculation of the Former Wife’s retroactive child support obligation, the final judgment against the Former Husband for the alimony arrearage remained unpaid.

On June 24, 2009, the magistrate entered her decision and recommendations regarding child support. Included in the recommendations was the imposition of a retroactive child support obligation against the Former Wife for the period of August 31, 2007, through May 31, 2009, at the rate of $2626 per month. This calculation was based on the Former Wife’s receipt of the $4500 a month alimony and the imputation of income to the Former Wife that also was recommended by the magistrate. The total of the retroactive child support award against the Former Wife was $55,146. These recommendations were adopted by the trial judge and formed the basis of the child support order entered October 12, 2009.

We agree with the Former Wife that the amount of retroactive child support awarded was erroneously calculated. Although the magistrate recommended that the Former Wife’s child support obligation should be retroactive to August 31, 2007, the record demonstrates that the Former Wife did not receive alimony payments from the Former Husband for the period spanning August 31 to October 16, 2007. As such, it was error to include the sums due for this time period in the calculation that was the basis for the amount of retroactive child support awarded in the final judgment. See § 61.30(17)(a), Fla. Stat. (2009) (requiring the court to consider “the obligor’s demonstration of his or her actual income ... during the retroactive period” when determining the amount of a retroactive child support award). Accordingly, we must reverse the award of retroactive child support and remand to the trial court to recalculate the amount to be awarded. In all other respects, the final order is affirmed.

Affirmed in part, reversed in part, and remanded with instructions.

SILBERMAN and CRENSHAW, JJ., Concur.

      . The trial court subsequently entered a contempt order for the failure to pay the alimony due November 16, 2007, through March 16, 2008. This amount was paid in full by the Former Husband in April 2008 after the trial court issued a writ of bodily attachment.


author: WOLF, J.

text:
    J. Frank DAMA, Appellant, v. BAY BANK & TRUST CO., Appellee.
    No. 1D10-2244.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Rehearing Denied March 18, 2011.
    Theodore R. Howell of Barron, Redding, Hughes, Fite, Sanborn, Kiehn, Leebrick & Dickey, P.A., Panama City, for Appellant.
    Jeffrey P. Whitton, Panama City, for Appellee.
   WOLF, J.

Appellant, J. Frank Dama, challenges a judgment granting a mandatory permanent injunction requiring the removal of a sign he erected. Appellant raises a number of issues, and we find one has merit: the trial court erred in granting a mandatory permanent injunction based on its finding that the placement of the sign is inconsistent with appellee’s purported easement. We, therefore, reverse and direct entry of a final judgment in favor of appellant.

On September 3, 2009, appellee, Bay Bank & Trust (Bank), filed an amended complaint against appellant, owner of the main parcel of the shopping center where the Bank is located. The Bank asserted appellant was constructing a sign on a portion of his land over which the Bank had an easement “by virtue of that certain Concurrent Declaration and Agreement recorded in the Official Records Book....” The sign was being constructed on a strip of land owned by appellant, on which there was also a driveway. The Bank sought temporary and permanent injunctions requiring appellant remove the sign.

Appellant defended based on his assertion that the documents in question were insufficiently clear to create an easement, and even if an easement was created, the erection of the sign was not inconsistent with the easement. The trial court granted the injunction requiring removal of the sign.

We determine the placement of the sign did not interfere with any access rights owned by the Bank and, therefore, reverse.

The Bank relies on a number of cases in support of its assertion that the sign interfered with its rights under the easement; these cases are distinguishable. In Sand Lake Shoppes Family Ltd. Partnership v. Sand Lake Courtyards, L.C., 816 So.2d 143, 144 (Fla. 5th DCA 2002), the plaintiff filed a complaint alleging it had an easement for “ingress and egress ... across and upon all of that certain parcel of land” owned by the defendant. Id. The recorded easement further stated “the easement granted in this paragraph is strictly limited to ingress and egress to and from Sand Lake Road,” and not “to and from Orange Blossom Trail.” Id. at 144. Subsequently, the defendant erected a billboard the plaintiff alleged stood “squarely on” its “ingress and egress easement” which “substantially interfered with its use and enjoyment of road use ... [and] substantially diminished” ingress and egress. Id,. The trial court dismissed the complaint with prejudice because the plaintiff did not allege that its ingress and egress was completely blocked. Id.

The Fifth District reversed the dismissal of the complaint and remanded, finding “[t]he question is not whether Shoppes has been entirely deprived of ingress and egress, but, rather, whether or not there has been any interference of its right to free passage over the easement to the degree and amount originally contemplated by the parties.” Id. at 145 (emphasis added). The court found the language of the easement, which provided the plaintiff “ingress and egress ... across and upon all of that certain parcel of land,” was not ambiguous and “clearly indicates that [Shoppes’] easement is dominant over the entire parcel and, as such, cannot be reduced and infringed by the erection of this billboard.” Id. at 146 (emphasis added).

The Sand Lake court relied in part on Hoffv. Scott, in which the court found “the owners of a 20 foot express easement for ingress and egress were granted the easement by language of a deed that was not ambiguous and that had made it clear that the whole strip was set aside for ingress and egress.” Sand Lake, 816 So.2d at 145 (citing Hoff v. Scott, 453 So.2d 224 (Fla. 5th DCA 1984)) (emphasis added). The Hoff court concluded,

[t]hus, the servient owner had no right to place permanent obstructions in the described easement area that would prevent the dominant tenement owner from freely passing over any part of the easement. Considerations about what might have been reasonably necessary for the dominant tenement owners’ use or needs were simply not appropriate or relevant.

Id.

The Sand Lake court noted similarly in Diefenderfer v. Forest Park Springs, 599 So.2d 1309 (Fla. 5th DCA 1992), the Fifth District found where an easement granted a “50 foot right-of-way easement for ingress and egress,” the easement covered the full 50 foot area. Sand Lake, 816 So.2d at 145. Therefore, the Diefenderfer court concluded, a servient tenement owner could not erect permanent obstructions of any sort, regardless of the fact the obstructions still left the dominant tenement holder a 30- to 35-foot right-of-way and the dominant tenement holder had never used more than a 12-foot wide strip of that land for ingress and egress. Sand Lake, 816 So.2d at 145. The Diefenderfer court concluded the pi'oper analysis was “what the original parties intended,” and not the current use of the land. Sand Lake, 816 So.2d at 145 (citing Diefenderfer, 599 So.2d 1309).

Sand Lake, Hoff, and Diefenderfer all hinged on the intent of the parties as evidenced by the written easements, finding where the documents provided an easement for the entirety of a specific piece of land, the servient tenement holder could not reduce or infringe the ability to ingress or egress across even a portion of that land.

Here, the clear intent of the parties was not to create an easement for ingress and egress over the entirety of a specific piece of land. Instead, the parties specifically stated in the Agreement, relied on by the Bank, that the easement identified in the Agreement was to apply only to “common areas” that were actually “devoted to the use by the general public” for ingress and egress, and that structures could not be built in these areas that would “prevent or substantially impair such mutual access.”

In addition, paragraph 5 of the Agreement notes a “portion of the Shopping Center Parcel being acquired by [appellant’s predecessor in interest] serves as an access corridor.” However, the Agreement does not specify this corridor shall encompass the entirety of the strip of land owned by appellant at issue here. Moreover, stating that the land “serves” as an access corridor clearly indicates it was already serving as such when the Agreement was recorded in 1979. The Bank concedes the driveway has been there since before it was deeded the property in 1982, and the Bank’s president and appellant both testified as far as they knew, the driveway has always been in the same spot and the land where the sign is located has never been used for ingress or egress.

Courts have found where, as here, an instrument creates generally “an easement for ingress and egress,” the “instrument should be construed as having created a nonexclusive easement allowing [the ser-vient tenement owner] any use of the land which does not interfere with [the dominant tenement owner’s] rights under the easement.” Stephens v. Dobbins, 511 So.2d 652 (Fla. 2d DCA 1987) (emphasis added) (reversing trial court’s finding that easement for ingress and egress prevented servient tenement owner from any use of the property). See also Tortoise Island Cmtys., Inc. v. Roberts, 394 So.2d 568, 569 (Fla. 5th DCA 1981) (finding where plaintiffs had an easement over a canal that crossed the defendant’s island, the defendant was not prohibited from building a bridge over that canal as long as it did not “materially interfere” with the plaintiffs’ easement rights); Sandlake Residences, LLC v. Ogilvie, 951 So.2d 117, 122-123 (Fla. 5th DCA 2007) (reversing trial court’s grant of temporary injunction where a dominant tenement holder sought to have an electric gate removed from property over which it had an easement, finding the dominant tenement holder failed to demonstrate a likelihood of successfully proving the gate “unreasonably interfered” with its right of ingress and egress); Roberson v. Kitchen, 12 So.3d 813, 813-814 (Fla. 5th DCA 2009) (finding although an easement for ingress and egress clearly “encompasses the entirety of the described track,” the servient tenement holder was not required to remove an “iron gate or large trees lining the roadway,” and was prevented only from erecting “permanent obstructions” that would “encroach upon the [dominant tenement holder’s] ingress and egress”).

Thus, even if the Bank were correct in arguing the sign is within the area encompassed by the easement, the Bank has failed to demonstrate the sign would “substantially impair” its right to ingress or egress as provided in the Agreement. The judgment is REVERSED.

DAVIS, J., concurs, and WETHERELL, J., concurs in result.


author: MORRIS, Judge.

text:
    A. Eric ANDERSON, Petitioner, v. Eleanor D. VANDER MEIDEN, by her next friend, Nancy M. DUGGAN, Respondent.
    No. 2D10-3475.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2011.

      Jonathan J. Davis of Walton Lantaff Schroder & Carson LLP, Ft. Lauderdale, for Petitioner.
    Carl J. Robie, III, Sarasota, for Respondent.
   MORRIS, Judge.

A. Eric Anderson petitions for a writ of certiorari to quash the order denying his discovery request for settlement documents between nonparties to this appeal and Eleanor D. Vander Meiden, by her next friend, Nancy M. Duggan. Because the denial of the discovery request essentially eviscerates Anderson’s affirmative defense which he would be required to prove at a trial on damages, we grant the petition and quash the order below.

I. Facts

This case involves two trusts which Van-der Meiden established during her lifetime, Trust A and Trust B. In 2005, Van-der Meiden brought separate complaints against Anderson and the other nonparties for their alleged conduct in handling the Trusts, making distributions to her, and making various alleged misrepresentations. In November 2009, partial summary judgment on the issue of liability was granted against Anderson.

Thereafter, Anderson sought discovery of the settlement documents between Van-der Meiden and the nonparties, alleging that they were relevant because the claims against the nonparties and Anderson arose out of the same conduct, to wit: the failure to fund Trust A. Thus, according to Anderson, any settlement amount between the nonparties and Vander Meiden would act as a setoff against damages which Anderson might be ordered to pay. After Vander Meiden filed her objections to the discovery, the trial court entered its order denying the discovery request.

In the order, the trial court determined that the claims against the nonparties were different in nature than the claims against Anderson. The trial court also determined that there was no setoff in this ease for any settlement of Vander Meiden’s claims against the nonparties. It is this order which Anderson seeks to quash by writ of certiorari.

II. Analysis

Certiorari is the appropriate remedy when a discovery order departs from the essential requirements of law, causing material injury to the petitioner throughout the remainder of the proceeding in the trial court, effectively leaving no adequate remedy on appeal. See Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999).

Universal Prop. & Cas. Ins. Co. v. Stark, 8 So.3d 506, 507 (Fla. 2d DCA 2009). “Cer-tiorari is rarely available to review orders denying discovery because in most cases the harm can be corrected on appeal.” Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So.3d 1232, 1234 (Fla. 2d DCA 2009); see also Am. S. Co. v. Tinter, Inc., 565 So.2d 891, 892-93 (Fla. 3d DCA 1990); Indus. Tractor Co. v. Bartlett, 454 So.2d 1067, 1067 (Fla. 5th DCA 1984).

However, when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party’s claim, defense, or counterclaim, relief by writ of certiorari is appropriate. The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings. See Bush v. Schiavo, 866 So.2d 136, 140 (Fla. 2d DCA 2004); Beekie v. Morgan, 751 So.2d 694, 698 (Fla. 5th DCA 2000); Criswell v. Best W. Int’l, Inc., 636 So.2d 562, 563 (Fla. 3d DCA 1994).

Giacalone, 8 So.3d at 1234-35 (footnote omitted).

Based on the specific facts of this case, we believe that Anderson has established irreparable harm. Sections 46.015(2) and 768.041(2), Florida Statutes (2008), provide that a party seeking a set-off must demonstrate at trial that he is entitled to a setoff based on the plaintiffs settlement or release with another individual or corporation. And here, that is exactly why Anderson requested the settlement documents. If Anderson is precluded from obtaining the settlement documents, he will be unable to prove that the claims Vander Meiden asserted against the nonparties arose out of the same injury as the claims made against Anderson. As a result, his affirmative defense of setoff will be eviscerated and he will be unable to meet the burden of proof required by sections 46.015(2) and 768.041(2).

We stress however that our determination of irreparable harm should be confined to the facts of this case. In no way do we intend to expand certiorari review to all orders denying discovery. We make an exception here because this is one of those rare instances in which a party’s defense will be eviscerated and there would be “no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings.” Giacalone, 8 So.3d at 1234-35. On direct appeal, Anderson would have the nearly impossible task of proving that the trial court committed reversible, harmful error in denying a setoff because Anderson would have no proof that a setoff was required. Indeed, Anderson would not be able to make a good faith proffer of what the evidence would have shown because Vander Meiden asserted numerous claims in her complaint against the nonparties and any setoff argument would be based on mere speculation that the settlement was related to claims arising out of the same injury as the claims made against Anderson. We therefore hold that based on these facts, Anderson established irreparable harm for purposes of certiorari review.

We also hold that Anderson has proven that the trial court departed from the essential requirements of the law. “[T]he purpose of a setoff is to prevent a party from recovering twice for the same damages.” Blasland, Bouck & Lee, Inc. v. City of N. Miami, 283 F.3d 1286, 1295 (11th Cir.2002). “[Wjhen a party seeks recovery for the same injury in two separate lawsuits, a defendant in the second lawsuit is ‘entitled to a credit for any amount paid to the claimant in settlement for the injury.’ ” Id. (quoting Baudo v. Bon Secours Hosp./Villa Maria Nursing Ctr., 684 So.2d 211, 214 (Fla. 3d DCA 1996)). “This is true even when co-defendants are held liable for the same injury under different theories of liability.” Id. “[I]n cases in which a set off [sic] of the recovery in prior litigation is in order, the entire amount of the prior recovery must be [set off] against the current award, unless the release from the prior litigation specifically allocates sums among the various claims being settled.” Id.

In denying Anderson’s discovery request, the trial court determined that the claims between Vander Meiden and the nonparties were different than the claims against Anderson and, therefore, that no setoff was required. This was error. Although the claims may have been predicated on different theories of liability, at least some of the claims appear to be based on the same injury, the failure to properly fund Trust A.

The claims against Anderson relating to the failure to fund Trust A alleged that he breached his fiduciary duty by: (1) failing to explain that monies in Trust A would be reduced, (2) by funding Trust B, (3) by misrepresenting that Trust A was funded, and (4) by preventing distributions to both Trust A and Trust B. Vander Meiden also alleged that Anderson participated in a breach of trust with a codefendant by failing to recommend that Vander Meiden be given an accounting and by failing to respond to Vander Meiden’s questions. Finally, Vander Meiden alleged that Anderson interfered with her expected inheritance by failing to use the proper formula for a marital deduction under Trust A, by misrepresenting conflicting amounts in Trust A, and by failing to advise Vander Meiden that she had the right to divide assets into Trust A and Trust B.

The claims against the nonparties which appear to this court to relate to the failure to fund Trust A included allegations that: (1) the nonparties failed to properly investigate the distribution of assets into Trust B, (2) the nonparties willfully assisted in the diversion of trust assets into Trust B, (3) and the nonparties concealed the non-funding of Trust A.

After Anderson receives the settlement documents, he might discover that the settled claims were based on different injuries than the claims made against him. In that case, no setoff would be required. See Blasland, Bouck & Lee, Inc., 283 F.3d at 1295. But if the settled claims did, in fact, arise from the failure to fund Trust A, Anderson would be entitled to a setoff against the damages he is obligated to pay. Consequently, we hold that the trial court’s order departed from the essential requirements of the law and caused Anderson material injury for which there is no remedy on appeal.

Petition for writ of certiorari granted; order quashed.

WHATLEY and SILBERMAN, JJ., Concur.

      . Vander Meiden died in April 2010, and her daughter, Ms. Duggan, was substituted as the plaintiff.

      . The order also denied Anderson’s motion for summary judgment and granted the substitution of Ms. Duggan as the plaintiff. However, die only issue raised in this proceeding is the denial of the discovery request.


author: ROBERTS, J.

text:
    Huy N. HA, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6597.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Rehearing Denied March 11, 2011.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   ROBERTS, J.

This appeal arises from an order denying the appellant’s motion to withdraw his plea after sentencing. The appellant argues that his plea was not voluntary. We agree and reverse.

FACTS

The appellant was charged by information with attempted first-degree premeditated murder with a firearm. On September 18, 2009, during a pre-trial hearing, the trial judge initiated the following discussion:

THE COURT: If you go to trial and you’re convicted, it’s possible that you will spend the rest of your natural life in Department of Corrections state prison. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: It’s possible that you will not ever be paroled or pardoned, and it’s possible you will stay in prison for the rest of your life. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: So if you’re sentenced to life, life means life. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: Now, you have the option today of entering a plea of no contest or guilty, or announcing ready for trial; because your attorneys have indicated that they are fully prepared and ready to proceed. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: Are you at this time electing not to enter a plea of no contest or guilty but to go to trial?
THE DEFENDANT: Yes. I go to trial.
THE COURT: And you understand you may be sentenced to life?
THE DEFENDANT: Yes, sir.

Later in the same hearing, the trial judge initiated the following discussion:

THE COURT: You’re satisfied that you’ve had a full, fair, and free opportunity to discuss these issues with your client, that his decision to go to trial is knowing, intelligent, and a conscious decision on his part to exercise his right to a trial by jury?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: And I’ve reviewed the Court file.
[DEFENSE COUNSEL]: Uh-huh.
THE COURT: And it’s clear to the Court that there is — I’m not going to make a decision about whether it’s beyond exclusion of every reasonable doubt, but there is compelling evidence that the State is going to present.
And again, juries do what juries do. And I don’t know what they’re going to do clearly, and I’m sure you have some theory of defense; but based upon the compelling evidence before the Court the Court could foresee a strong likelihood that this jury could come back with a conviction. You’ve had the opportunity to explain that to him?
[DEFENSE COUNSEL]: We have, Your Honor. And if you’d like to take the opportunity to have that translated to him, we’ve only — have spoken to him in English, and he seems to understand; but if you want to take the opportunity to have that explained to him in Vietnamese?
THE COURT: With the interpreter — I’ve reviewed this court file — tell him, interpret.
(Interpreter spoke in a language other than English)
THE DEFENDANT: Yes.
THE COURT: I don’t know what a jury will do.
(Interpreter spoke in a language other than English)
THE DEFENDANT: (Nods head.)
THE COURT: But based upon what has been available to me—
(Interpreter spoke in a language other than English)
THE DEFENDANT: (Nods head.)
THE COURT: The State’s evidence is compelling.
(Interpreter spoke in a language other than English)
THE COURT: And I would think that there is a—
(Interpreter spoke in a language other than English)
THE COURT: — strong potential for a finding of guilt by a jury.
(Interpreter spoke in a language other than English)
THE COURT: And if he elects to go to trial and is convicted by a jury— (Interpreter spoke in a language other than English)
THE DEFENDANT: (Nods head.)
THE COURT: I want to ensure that he understands—
(Interpreter spoke in a language other than English)
THE DEFENDANT: (Nods head[.]) [Y]es.
THE COURT: — that he may well be sentenced to life in prison.
(Interpreter spoke in a language other than English)
THE DEFENDANT: (Nods head[.]) [Y]es.
THE COURT: He understands?
THE DEFENDANT: (Nods head.)
INTERPRETER: Yes. He understands.
THE DEFENDANT: Yes.
THE COURT: And he’s not willing or desirous of making a no contest or guilty plea?
(Interpreter spoke in a language other than English)
INTERPRETER: I tell him that. He want to say something to you. He can say right now.
THE DEFENDANT: No, sir, got no questions.
THE COURT: Okay. I find that the defendant understands the ramifications of a trial, that he has elected to exercise his right to a fair trial in front of a jury of his peers, and he understands that the potential for conviction is strong, and that if convicted by a jury, that there is likelihood that he could be sentenced to life in prison.
[DEFENSE COUNSEL]: We’ve talked — we’ve advised him though that [the prosecutor] was going to consider the 25-year offer. A 25-year offer never has been officially made. So I guess my question is, is it being made right now, that if he entered a plea, he could get 25 years?
THE COURT: Well, he can plea straight up to the Court. I don’t know whether [the prosecutor] has made that offer or not.
THE PROSECUTOR:.... For the record I have not.
THE COURT: He understands any plea straight up to the Court—
[THE PROSECUTOR]: No, sir.
THE COURT: — I’m not making any assurances of what I would do. I would order a P.S.I.
[THE PROSECUTOR]: No such offer has been conveyed by the Defense to the State....
THE COURT: — but my understanding is he has elected not to enter a plea for a possibility of 25 years?
[DEFENSE COUNSEL]: I’m sorry, sir?
THE COURT: He has elected not—
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: — to enter a plea for a possibility 25 years.
[DEFENSE COUNSEL]: Do you understand?
THE DEFENDANT: Yes.
THE COURT: Is that correct?
[DEFENSE COUNSEL]: That’s correct, Your Honor.

On September 21, 2009, just before jury selection, the trial judge initiated the following discussion:

THE COURT: All right. [The defendant], you’ve rejected all plea offers; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: You’ve rejected the opportunity to plea. You want a trial?
THE DEFENDANT: Yes, sir.
THE COURT: Okay.
[THE PROSECUTOR]: Judge, so the record is clear there is no plea offer.
THE COURT: Well, there is no plea offer. You rejected all opportunities to plea, and you understand if you’re convicted at trial, it’s a possibility of a life sentence. It’s a [life] felony.
THE DEFENDANT: Yes, sir.
THE COURT: .... [The defendant], there was an opportunity for you to plea straight up to the Court and the Court would consider the possibility of a 25-year mandatory minimum, and you’re rejecting that opportunity. Is that correct?
THE DEFENDANT: Yes, sir.

On September 23, 2009, just before trial was to begin, defense counsel initiated the following discussion:

[DEFENSE COUNSEL]: Your Hon- or, in speaking [with the defendant] this morning he indicated that it may be possible to resolve the case. We would be willing to take a twenty-five year minimum sentence.
THE COURT: I picked a jury. There are no — I would order a PSI.
[DEFENSE COUNSEL]: And set it for sentencing?
THE COURT: Set it for sentencing. Once I pick the jury, there’s no — .
[DEFENSE COUNSEL]: I understand, Your Honor. If we can have a moment to relay that to him and see if he wishes to proceed.
THE COURT: Okay.
[DEFENSE COUNSEL]: We’re going to move forward, Your Honor.
THE COURT: What?
[DEFENSE COUNSEL]: We’re going to move forward.
THE COURT: Do you want me to talk to your client?
[DEFENSE COUNSEL]: You can, Your Honor.
THE COURT: All right. Mr. Ha.
THE DEFENDANT: Yes, sir.
THE COURT: My understanding is that this morning you had asked your attorney if you could enter a no contest or guilty plea in exchange for a commitment from the court that it would impose a twenty-five years sentence; is that correct?
THE DEFENDANT: Yes.
THE COURT: And I explained to them that once we picked this jury, as I explained to you before, that there will be no commitment from the court on a sentence once the jury was picked. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: Now, if you chose to enter a no contest or guilty plea, I would order a presentence investigation, and the range of punishment that could potentially be imposed would be within the discretion of the court, not less than twenty-five years, potentially up to a life sentence. Do you understand?
THE DEFENDANT: Yes.
THE COURT: Now, I did not say I would not impose a twenty-five year sentence. I just said I would not commit to it. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: Nonetheless, after your discussion with your attorney you’re electing to proceed to trial; is that correct?
THE DEFENDANT: Yes.
THE COURT: You do not want to plead no contest, and you do not want to plead guilty; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand if you’re convicted, it may be a life sentence?
THE DEFENDANT: Yes.
THE DEFENDANT: Right now it’s no plea offer on the table?
THE COURT: I told you before, once we pick that jury there will be no plea offer. It’s possible I could impose a twenty-five year sentence. If you pled no contest or guilty, it’s possible I could do something greater than that.
I am not making any assurances to you. I would order a presentence investigation and I would evaluate all the circumstances surrounding everything, and I would impose an appropriate sentence.
I would, of course, consider the fact that you did enter a plea. That would be a consideration, but I would also consider all other factors, and I’m not making any commitments.
THE DEFENDANT: I would like to plea out to you today.

The defendant indicated that he wished to plead no contest to the charge of attempted first-degree premeditated murder with a firearm. A plea colloquy followed. Af-terwards, the trial judge accepted the plea, finding that it was freely and voluntarily entered.

On December 3, 2009, a sentencing hearing was held. The trial judge adjudicated the defendant guilty and sentenced him to life in prison with a mandatory minimum of 25 years. The trial judge did not provide any explanation for the increased sentence.

On December 23, 2009, the appellant filed a motion to withdraw his plea. On January 14, 2009, during a hearing on the motion, defense counsel made the following statements:

.... There was one other matter that, you know, we could address now, too, because it may be a year or two before it ever gets looked at again, I don’t know, but there was also a colloquy that was held.
It wasn’t a colloquy. I believe it was held just between court and counsel.
⅜ ⅜ *
It was also colloquy — I don’t think there’s a record of it. It was on the 14th. It was just between the attorneys and the Court where we — the court inquired if [the State] would offer him 25 years, and then we went out to the jail to see if he would take the 25 years— Mr. Ha would take the 25 years and he rejected the 25 years, and so that would — that was not on the record.
I am trying to make sure we got all the — everything we need to do to get on the record today so the court can make its ruling one way or the other.

After arguments, the trial judge denied the defendant’s motion to withdraw his plea.

ANALYSIS

Although judicial participation in the plea bargaining process is not prohibited, it must be limited “to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.” State v. Warner, 762 So.2d 507, 513 (Fla.2000). Some limitations placed on judicial participation in the plea bargaining process include, but are not limited to, the following. First, the trial judge may participate in plea discussions upon the request of a party but must not initiate such discussions. Id, at 514. Second, based on a preliminary evaluation of the information available at the time, the trial judge may state on the record the sentence which appears to be appropriate for the charged offense(s). However, if the trial judge later determines that the sentence to be imposed must exceed the preliminary evaluation, then the defendant who has pleaded guilty or no contest has an absolute right to withdraw the plea. Third, to avoid the potential for coercion, the trial judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the defendant exercising his right to trial. Fourth, all plea discussions involving the trial judge must be made on the record. Id,

In the instant case, the record clearly demonstrates that those limitations were exceeded by the trial judge, leading to the defendant’s involuntary plea. First, the trial judge improperly initiated the plea discussions with the defendant. Second, despite the fact that the trial judge later determined that a life sentence, rather than a 25-year sentence, had to be imposed, the trial judge did not allow the defendant to withdraw his plea. Third, the trial judge both stated and implied that the defendant would have been sentenced to 25 years in prison, rather than life, if he had pled before jury selection. Fourth, based on defense counsel’s statements at the motion hearing, it appears that not all plea discussions involving the trial judge were made on the record.

Accordingly, we vacate the order denying the defendant’s motion to withdraw his plea and remand with instructions to allow the withdrawal.

REVERSED and REMANDED.

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


author: WALLACE, Judge. BLACK, Judge,

text:
    Lorie PETERSON and Clayton Peterson, Appellants, v. SUN STATE INTERNATIONAL TRUCKS, LLC, Appellee.
    No. 2D08-5529.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 2011.
    Rehearing Denied March 25, 2011.

      George A. Vaka and Nancy A. Lauten of Vaka Law Group, P.L., Tampa, for Appellants.
    William J. McFarlane, III, and Mark T. Babcock of McFarlane & Dolan, Coral Springs, for Appellee.
   WALLACE, Judge.

Lorie Peterson and Clayton Peterson appeal the circuit court’s order denying their motion for a new trial on Mr. Peterson’s claim for loss of consortium. A jury found that Mrs. Peterson had sustained a permanent injury as a result of an automobile accident caused by an employee of Sun State International Trucks, LLC. The jury awarded Mrs. Peterson damages for her injuries but awarded nothing to Mr. Peterson on his claim for loss of consortium. Because the Petersons presented substantial unrebutted testimony concerning the adverse effect that Mrs. Peterson’s injuries had on their marital life, Mr. Peterson was entitled to an award of at least nominal damages on his claim. Accordingly, we reverse the circuit court’s order in part and remand for a new trial limited to the issue of the amount of Mr. Peterson’s damages for loss of consortium.

I. THE FACTS AND PROCEDURAL BACKGROUND

In November 2006, Mrs. Peterson was injured when the vehicle she was driving was struck from behind by a truck driven by an employee of Sun State. The impact of the collision was severe enough that it broke the front seat in Mrs. Peterson’s vehicle. Later, the Petersons’ insurance company declared the vehicle to be a total loss. Mrs. Peterson claimed that she sustained painful injuries to her neck and back as a result of the rear-end collision.

The Petersons filed an action against Sun State for damages, including a claim by Mr. Peterson for loss of consortium. Sun State admitted liability for the accident. But Sun State contended at trial that Mrs. Peterson’s injuries resulting from the accident were not permanent in nature and that her physical problems stemmed from preexisting conditions and a later automobile accident involving a collision with a deer.

The case went to trial in June 2008, approximately nineteen months after the accident. A jury found that Mrs. Peterson had sustained a permanent injury as a result of the accident caused by Sun State’s employee. The jury awarded Mrs. Peterson damages for past and future medical expenses. The jury also awarded Mrs. Peterson relatively modest sums for past and future noneconomic damages. But the jury did not award Mr. Peterson anything on his derivative claim for past and future loss of consortium.

The Petersons moved for a new trial on several grounds, including the failure of the jury to award Mr. Peterson anything on his claim for loss of consortium. In a written order, the trial court addressed the issue of the loss of consortium claim as follows:

[T]he refusal of the jury to award Plaintiff Clayton Peterson damages for loss of consortium after determining that Plaintiff Lori[e] Peterson suffered a permanent injury is not a basis for ordering a new trial under the facts of this case. The jury considered evidence that indicated that the injury suffered by Plaintiff Peterson did not affect the marital relationship. Since the evidence on the issue of consortium was disputed, Plaintiff Clayton Peterson is not entitled to a new trial. See [ ] Hagens v. Hilston, 388 So.2d 1379 (Fla. 2d DCA 1980).

On this basis, the trial court denied the motion for a new trial on Mr. Peterson’s claim for loss of consortium.

II.THE PARTIES’ ARGUMENTS

On appeal, the Petersons contend that the trial court abused its discretion in denying their motion for a new trial on Mr. Peterson’s claim for loss of consortium. They argue that the unrebutted evidence concerning the adverse effect that the accident had on various aspects of their marital life required an award of at least nominal damages on Mr. Peterson’s claim. Sun State responds that the trial court properly denied the motion for a new trial. In Sun State’s view, the evidence at trial was disputed concerning whether Mr. Peterson had actually sustained any damages for loss of consortium.

III.THE STANDARD OF REVIEW

We review the order denying the motion for a new trial in this case for abuse of discretion. See Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla.1998); Big Lots Stores, Inc. v. Diaz, 18 So.3d 1065, 1067 (Fla. 3d DCA 2009); Tavakoly v. Fiddlers Green Ranch of Fla., Inc., 998 So.2d 1183, 1185 (Fla. 5th DCA 2009).

IV.DISCUSSION

A claim for loss of consortium is for the loss by the claiming spouse of

the companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation. Consortium means much more than mere sexual relation and consists, also, of that affection, solace, comfort, companionship, conjugal life, fellowship, society and assistance so necessary to a successful marriage.

Gates v. Foley, 247 So.2d 40, 43 (Fla.1971) (citing Lithgow v. Hamilton, 69 So.2d 776 (Fla.1954)). When a jury finds that one spouse has sustained injuries as a result of the negligence of a third party, an award of damages to the other spouse for loss of consortium is not automatic. Instead, in order to prevail on a claim for loss of consortium, the claiming spouse must present competent testimony concerning the impact that the incident has had on the marital relationship. See Albritton v. State Farm Mut. Auto. Ins. Co., 382 So.2d 1267, 1268 (Fla. 2d DCA 1980). “[T]he test for granting a new trial to the spouse that was awarded ‘zero’ damages [on a claim for loss of consortium] is whether testimony establishing the substantial impact the accident had on the marital life of the couple is ‘substantial,’ ‘undisputed,’ and ‘unrebutted.’ ” Lofley v. Insultech, Inc., 527 So.2d 902, 903 (Fla. 2d DCA 1988); accord Tavakoly, 998 So.2d at 1185; Jones v. Double D Props., Inc., 901 So.2d 929, 931 (Fla. 4th DCA 2005); Frye v. Suttles, 568 So.2d 983, 986 (Fla. 1st DCA 1990).

When this case went to trial, Mrs. Peterson was forty-six years old; Mr. Peterson was sixty-five. The couple had been married for approximately twenty-five years. They had two adult sons. Mrs. Peterson had previously worked part-time cleaning new homes for initial occupancy. Mr. Peterson had retired from a utility company, but he kept busy as an ordained elder and pastor serving small churches in various locations.

Mr. Peterson testified that he and his wife shared an active lifestyle before the accident. Mr. Peterson described Mrs. Peterson as a “workaholic” who did housework and worked in their yard. The Pe-tersons enjoyed time spent together fishing, attending a variety of church events, and travelling to visit their two sons. After the accident, Mrs. Peterson became unable to perform many of the tasks she had previously performed around the house. The pain of her injuries limited her willingness to travel to the events she had previously enjoyed with her husband. In Mr. Peterson’s words, his wife was “not as happy as she used to be. She gets short-tempered sometimes and she gets depressed.” Finally, Mr. Peterson testified that the accident had resulted in a substantial decrease in the frequency with which he and Mrs. Peterson had sexual relations.

In turn, Mrs. Peterson testified that the accident had limited her ability to do housework. After the accident, Mr. Peterson assisted her with many tasks that she had previously performed on her own. Mrs. Peterson confirmed Mr. Peterson’s testimony that the effects of the accident had limited her ability to travel to the kind of events and activities that she had previously enjoyed with her husband. Mrs. Peterson also testified that although Mr. Peterson had been patient and helpful, the pain associated with her injuries had caused her to become “short with him.” As Mrs. Peterson put it, “It’s affected me to the point where I’ve pulled away from him.”

As her husband did, Mrs. Peterson testified at trial that her injuries sustained in the accident had caused a decrease in the frequency with which the couple engaged in sexual relations. Sun State’s counsel successfully impeached Mrs. Peterson on this point. In her deposition, when asked “[a]nd do you attribute the decreased level to the injuries from the accident,” Mrs. Peterson had answered, “no.” The only explanation Mrs. Peterson offered for the discrepancy between her trial testimony and her deposition on this point was that she did not remember making the statement in the deposition.

In a detailed review of the evidence during his closing argument, the only reference made by Sun State’s counsel to Mr. Peterson’s claim for loss of consortium was to the discrepancy between Mrs. Peterson’s trial testimony and her deposition on the cause of the decrease in the level of the couple’s sexual activity after the accident. This was a fair observation. But the interests involved in a claim for loss of consortium involve far more than sexual relations. See Albritton, 382 So.2d at 1268 n. 2. In this case, the Petersons presented evidence of the following facts: (1) Mrs. Peterson’s level of activity had decreased after the accident; (2) Mr. Peterson was now doing the household chores that Mrs. Peterson used to do; (3) after the accident, Mr. Peterson began to help Mrs. Peterson in her part-time job cleaning newly constructed residences; (4) Mrs. Peterson ultimately had to quit her job because she was no longer able to do the work; (5) Mrs. Peterson had become more short-tempered with her husband and had begun to pull away from him emotionally; (6) it had become difficult for Mrs. Peterson to travel on family vacations or participate in family events, such as attending her sons’ football games; and (7) it had become impossible to do some things, such as going out in the family’s canoe or going fishing.

We acknowledge that there were one or two points of conflict in the evidence. For example, about seven or eight months after Mrs. Peterson was rear-ended by the Sun State truck, she drove herself to New York to visit her son and her daughter-in-law. But this fact, taken out of context, paints a distorted picture. Immediately before the trip to New York, Mrs. Peterson had learned that her daughter-in-law had gone into labor. Mrs. Peterson insisted on going to New York immediately to be present for the arrival of the new baby and decided to drive, despite her husband’s protestations. Mrs. Peterson testified that she was in considerable discomfort during the trip and had to take medication for her pain. There was no evidence to the contrary. Throughout the trip, Mrs. Peterson had regular telephone contacts with Mr. Peterson. When Mrs. Peterson arrived in Washington, D.C., she called her husband because she was in pain and panic-stricken. Mr. Peterson followed his wife to New York by plane, and he drove back to Florida with her. In short, Mrs. Peterson’s unplanned trip to New York was clearly imprudent. But Mrs. Peterson’s road trip to New York does not support the conclusion that she was not seriously injured in the collision with the truck driven by Sun State’s employee, nor does it disprove Mr. Peterson’s consortium claim.

There was also evidence that Mrs. Peterson was involved in an accident involving a deer on the return trip from New York. But the evidence demonstrated that the collision with the deer was a relatively minor event for Mr. and Mrs. Peterson. The deer was small, the damage to their car was minimal, and the Petersons were not seriously hurt. There was no evidence to the contrary. By contrast, in the rear-end collision with the Sun State truck, Mrs. Peterson’s seat back reclining mechanism was broken, the frame of her vehicle was damaged, and the insurance company declared the vehicle a total loss. In addition, the tires of the truck driven by the Sun State employee were blown out, the air bag deployed, steam or smoke was observed coming from the engine compartment, and it too was declared a total loss. In short, this was no mere fender-bender. And, although Mrs. Peterson did not seek medical attention immediately, she did so a few days later. A delay of several days in seeking medical attention following a rear-end collision — such as the one in this case — is not uncommon. And the evidence showed that on the night of the accident, Mrs. Peterson began to complain of pain, and she “couldn’t hardly get out of bed” the next day.

Before the accident, Mrs. Peterson was employed by a building contractor to clean new homes. In fact, she continued to work at this job for several months after the accident. But here again two additional facts concerning Mrs. Peterson’s continued employment provide a more complete picture of the situation. First, Mrs. Peterson’s employer testified that Mrs. Peterson’s ability to do her job changed drastically after the accident. In the employer’s words: “It was difficult for her. Her back bothered her. I mean, you could tell she just ... moved slower[. S]he was not able to work like she did before.... [S]he was in pain.” Mrs. Peterson’s employer also testified that after a few months Mrs. Peterson was unable to do the work and that she had to resign. The employer’s testimony on these points was uncontradicted. Notably, about a month before her ill-advised trip to New York, Mrs. Peterson had resigned from her employment because of her continuing inability to do the work. Second, after the collision with the Sun State truck, Mr. Peterson came to the job sites with his wife and helped her do the work. Mrs. Peterson had not previously required help from Mr. Peterson to do her job.

In summary, the undisputed facts showed that following the accident, Mrs. Peterson’s relationship with her husband deteriorated, her ability to contribute to the couple’s income by working outside the home stopped, she became unable to accomplish common household chores without the assistance of Mr. Peterson, and her injuries were significant enough that she underwent a series of injections and ultimately decided to seek surgical treatment. After a thorough review of the record, we conclude that Mr. Peterson presented substantial, undisputed evidence sufficient to require an award of at least nominal damages for his loss of consortium claim. See Waldron v. Dorsey, 585 So.2d 403, 404 (Fla. 1st DCA 1991) (reversing for a new trial on loss of consortium claims even though some of the evidence was conflicting where there was also substantial, undisputed evidence showing that at least nominal damages should have been awarded); see also Noah v. Threlkeld, 543 So.2d 431, 432 (Fla. 2d DCA 1989) (holding that the plaintiffs “were at least entitled to nominal damages in view of their unrebut-ted testimony on [their] claims” for loss of services and consortium); Big Lots Stores, Inc., 18 So.3d at 1068 (holding that the evidence presented on the plaintiff’s claim for loss of consortium was sufficient to “require an award of at least nominal damages”); Tavakoly, 998 So.2d at 1185 (“[I]t is ... well settled that where sufficient undisputed evidence is presented on a consortium claim that would require an award of at least nominal damages, a zero verdict is inadequate as a matter of law.”); Kirkland v. Allstate Ins. Co., 655 So.2d 106, 108 (Fla. 1st DCA 1995) (holding that evidence of a husband’s hospitalization for three days and the difficulty that he had experienced in sleeping and participating in family activities required reversal of the trial court’s denial of a motion for new trial on a loss of consortium claim); Frye, 568 So.2d at 986 (holding that uncontradicted evidence of a husband’s inability to participate in the leisure activities he and his wife had both enjoyed before the accident and of the necessity for the wife to assume greater responsibility in raising their children and to help the husband in his own care and in doing household chores required reversal for a new trial for damages for loss of consortium).

The trial court could have properly denied the motion for a new trial on Mr. Peterson’s claim for loss of consortium if there had been evidence in the record from which the jury could have concluded that the adverse effects on the Petersons’ marital life were attributable to causes other than the accident. See Ballagas v. Scott, 589 So.2d 334, 335 (Fla. 1st DCA 1991); see also Tieche v. Panlener, 504 So.2d 49, 50 (Fla. 2d DCA 1987) (affirming the trial court’s denial of a new trial on the wife’s claim for loss of consortium when there was evidence from which the jury could have concluded that the deterioration in the parties’ lifestyle was caused by the husband’s disease rather than by the accident for which the claim was made); Hagens v. Hilston, 388 So.2d 1379, 1381 (Fla. 2d DCA 1980) (reversing an order granting a new trial on the wife’s claim for loss of consortium when there was evidence from which the jury could have concluded that the difficulties in the parties’ relationship were caused by their immature attitudes rather than by the accident for which the claim was made). But this case is unlike Tieche and Hagens. Here, despite the conflicts in the evidence asserted by Sun State concerning the true extent of Mrs. Peterson’s injuries, there was no evidence that would link the deterioration in the Petersons’ marital relationship to anything other than the accident. See Jones, 901 So.2d at 931 (“When the claiming spouse presents evidence that is substantial, undisputed, and unrebutted concerning the impact the injury had on the marital relationship, such spouse is entitled to receive at least nominal damages for loss of consortium.”).

V. CONCLUSION

For these reasons, the trial court erred in denying the Petersons’ motion for a new trial on Mr. Peterson’s claim for loss of consortium. See Lofley, 527 So.2d at 903; Albritton, 382 So.2d at 1268-69; Big Lots Stores, Inc., 18 So.3d at 1068; Tavakoly, 998 So.2d at 1185-86; Jones, 901 So.2d at 931-32; Frye, 568 So.2d at 986. Accordingly, we reverse the order denying the motion for a new trial in part and remand for a new trial limited to the issue of the amount of damages on Mr. Peterson’s claim for loss of consortium.

Reversed and remanded.

LaROSE, J., Concurs.

BLACK, J., Dissents with opinion.

BLACK, Judge,

Dissenting.

When a spouse is awarded zero damages on a loss of consortium claim, the test for granting a new trial is whether the record contained substantial, undisputed evidence of loss of consortium. Hagens v. Hilston, 388 So.2d 1379, 1381 (Fla. 2d DCA 1980). The category of damages for loss of consortium “is necessarily a vague and subjective one left largely to the discretion of the jury.” Orlando Reg’l Med. Ctr., Inc. v. Chmielewski, 573 So.2d 876, 881 (Fla. 5th DCA 1990). In my opinion, because there was disputed evidence of Mr. Peterson’s loss of consortium claim, the trial court did not abuse its discretion in denying the motion for a new trial and the order should be affirmed.

The subject accident resulted in what is commonly referred to as soft tissue or “whiplash” injuries to Mrs. Peterson. As a result of the impact, Mrs. Peterson did not strike anything on the inside of her vehicle, was not knocked unconscious, was not bleeding, had no broken bones, and was able to get out of the vehicle under her own power. She did not go to the emergency room or otherwise seek medical care for several days. She took aspirin and personally drove the accident vehicle home.

As noted by the majority, loss of consortium means more than impairment of the sexual relationship. Here, the jury instructions and verdict form indicate that the jury was asked to consider each aspect of Mr. Peterson’s consortium claim, including services, comfort, society, and attentions. By reviewing these claims individually and analyzing the trial record, it becomes clear that there were either disputed issues of fact or insubstantial claims that justify the jury verdict, as well as the judge’s denial of the new trial motion.

At trial, the defense presented testimony from a board certified orthopedic surgeon, Dr. Steven Knezevich, who opined that because Mrs. Peterson sustained only soft tissue injuries, she would have reached maximum medical improvement within ninety days, should have required no further treatment, and did not sustain a permanent injury. Dr. Knezevich placed no physical restrictions or limitations on Mrs. Peterson’s activities, and he found that she was perfectly capable of working as a housekeeper, which she had been doing both before and after the subject accident. Dr. Knezevich’s testimony contradicted the parties’ testimony and created disputed issues of fact for the jury to determine.

Regarding the claim for diminished sexual relations, Mrs. Peterson’s veracity sustained a material blow on this point when she was impeached based upon a direct conflict between her trial testimony and her deposition testimony. At trial, she testified that the subject accident greatly reduced the frequency of the parties’ relations. In her deposition, however, Mrs. Peterson denied that the subject accident had anything to do with the couple’s decreased relations. She had no reasonable explanation for her changed testimony. Therefore, Mrs. Peterson’s inconsistent testimony created a conflict in the evidence that the jury was apparently unable to reconcile.

Regarding the claim for loss of society and attentions, Mr. Peterson testified that one of the activities that he enjoyed with his wife prior to the accident was travel, both within Florida and to North Carolina. He testified that he was no longer able to enjoy these trips with Mrs. Peterson due to her injuries. However, Mr. Peterson conceded that several months after the accident, Mrs. Peterson was alone when she drove from Florida to New York. Mr. Peterson estimated the trip to require twenty-six or twenty-seven hours of driving. He testified that she made this drive straight through the night without stopping. These inconsistencies were placed before the jury, and a fair interpretation of its verdict is that the jurors resolved the claim against Mr. Peterson.

Regarding the claim for loss of comfort and services, while Mr. Peterson testified that because of his wife’s injuries he was called upon to clean windows and counter-tops and to vacuum floors, the unrebutted evidence was that Mrs. Peterson continued to perform these sorts of house-cleaning duties at work for several months after the accident. This begs the question as to why Mrs. Peterson was not able to do these things at home. Again, this conflict was within the province of the jury to resolve, and a reasonable conclusion from its verdict is that the jurors were not persuaded.

It is important to note that the subject trial took place over a period of four days. The jury was in the best position to observe Mrs. Peterson’s demeanor and mobility, both on and off the witness stand. It is also important to note that the jury awarded Mrs. Peterson zero damages for past or future wage loss, although Mrs. Peterson’s occupation was a physically demanding one, that of a housekeeper. A reasonable interpretation of the jury verdict is that while the jury was satisfied that Mrs. Peterson sustained an injury, the injury that she sustained was minimal and insufficient to support Mr. Peterson’s derivative claim.

The aforementioned New York trip was an important topic in the trial. Mr. Peterson testified that on his wife’s return trip to Florida, her vehicle struck a deer in Pennsylvania, causing property damage. Although Mrs. Peterson denied sustaining injuries as a result of this incident, there was record evidence that a significant portion of her medical treatment was undertaken after this accident. In addition, Mrs. Peterson had been working after the subject accident but did not work after the Pennsylvania accident involving the deer.

Also important is the fact that the jury was instructed pursuant to Florida Standard Jury Instruction (Civil) 601.2(a), formerly 2.2(a), which allowed them to assess the believability of the witnesses. Instruction 601.2(a) provides:

[The jury] may properly consider the demeanor of the witness while testifying; the frankness or lack of frankness of the witness; the intelligence of the witness; any interest the witness may have in the outcome of the case; the means and opportunity the witness had to know the facts about which the witness testified; the ability of the witness to remember the matters about which the witness testified; and the reasonableness of the testimony of the witness, considered in the light of all of the evidence in the case and in the light of your own experience and common sense.

Based upon the jury verdict, a reasonable conclusion is that the jury believed much of Dr. Knezevich’s testimony and did not believe some of the claimants’ testimony. Where, as here, “there is some evidence, whether by direct testimony or cross-examination, that rebuts the claim of loss of consortium” the jury’s award of zero damages is justified. Christopher v. Bonifay, 577 So.2d 617, 617 (Fla. 1st DCA 1991).

As the majority opinion notes, the standard of review applicable to the trial court’s ruling is abuse of discretion. Because there were significant disputes in the evidence regarding Mr. Peterson’s consortium claim, I would affirm the trial court’s ruling.

      . Counsel for Sun State argued that because Mrs. Peterson sought medical attention after the accident involving the deer, her medical problems must have stemmed from that accident. However, this argument was based on speculation, not on any evidence presented at trial.


author: LaROSE, Judge.

text:
    STATE of Florida, Appellant, v. Abel DELRIO and Yenier Rodriguez Delguy, Appellees.
    No. 2D10-182.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 2011.
    Rehearing Denied March 25, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Daniel P. Fischetti of Weed & Associates, P.A., Tampa, for Appellee Abel Del-rio.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellee Ye-nier Rodriguez Delguy.
   LaROSE, Judge.

The State appeals an order granting a motion to suppress evidence. Abel Delrio and Yenier Rodriguez Delguy were charged with trafficking in cannabis and possession of drug paraphernalia. See §§ 893.135(1)(a)(1), 893.147(1), Fla. Stat. (2008). Mr. Delrio was charged also with electrical utility theft. See § 812.14(2)(b), Fla. Stat. (2008). The trial court concluded that a law enforcement officer’s affidavit supporting the issuance of a search warrant was inadequate to establish probable cause. The trial court also noted that the affidavit improperly presented the officer’s observations after a nonconsensual entry into Mr. Delrio’s back yard. Thus, according to the trial court, the defendants’ warrantless arrests were unlawful and unsupported by exigent circumstances. See Gnann v. State, 662 So.2d 406, 407 (Fla. 2d DCA 1995) (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)).

The State argues that the affidavit set forth sufficient information to establish probable cause that a “growhouse” was being operated on the property, even if the trial court disregarded the officer’s observations after entry into the back yard. We agree and reverse.

We review the trial court’s factual findings for competent, substantial evidence; our review of the trial court’s application of the law to the facts is de novo. State v. Kennon, 901 So.2d 375, 376 (Fla. 2d DCA 2005) (reversing order granting motion to suppress) (citing Caso v. State, 524 So.2d 422 (Fla.1988); Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). We review the trial court’s probable cause determination de novo. See Pagan v. State, 830 So.2d 792, 806 (Fla.2002) (citing Ornelas, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911; Connor v. State, 803 So.2d 598 (Fla.2001)).

Probable cause for arrest exists where an officer “has reasonable grounds to believe that the suspect has committed a felony. The standard of conclusiveness and probability is less than that required to support a conviction.” Blanco v. State, 452 So.2d 520, 523 (Fla.1984). The question of probable cause is viewed from the perspective of a police officer with specialized training and takes into account the “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Schmitt v. State, 563 So.2d 1095, 1098 (Fla. 4th DCA 1990).

Walker v. State, 707 So.2d 300, 312 (Fla. 1997); see also Nickell v. State, 722 So.2d 924, 925 (Fla. 2d DCA 1998); State v. Garreno, 35 So.3d 125, 128 (Fla. 3d DCA 2010) (explaining that reasonable ground of suspicion supported by sufficient circumstances may satisfy probable cause requirement).

An affidavit supporting a warrant application must satisfy two elements: (1) that a particular person has committed a crime, and (2) that evidence relevant to the probable criminal act is likely located at the place to be searched. Burnett v. State, 848 So.2d 1170, 1173 (Fla. 2d DCA 2003). The judge issuing the search warrant examines the affidavit for “facts and fact-based conclusions” to determine whether probable cause exists for its issuance. Id. at 1174.

Mr. Delrio and Mr. Delguy captured law enforcement attention in early 2009. In late January, a Pinellas County sheriffs detective observed a Ford F-150 truck at a hydroponic retail store. He photographed the truck, noted its license plate number, and relayed the information to the Hillsborough County Sheriffs Office. Four months later, a Hillsborough County detective, Detective Rule, determined that the license plate number actually belonged to an Oldsmobile registered to Mr. Delguy, not to the Ford F-150 that was also registered to Mr. Delguy. Upon finding Mr. Delguy’s house, Detective Rule saw the Ford truck parked outside. The truck had a different license plate number than the one observed by the Pinellas County detective. Detective Rule determined that Mr. Delrio owned the house.

Detective Rule was a member of a regional task force investigating marijuana grow houses. He contacted Tampa Electric Company (TECO) and determined that electrical consumption at the house was in the normal range. Yet, he suspected indoor marijuana cultivation. He arranged for a TECO investigator to inspect the property for signs of electricity theft. Subsequently, Detective Rule and other task force members met the TECO investigator at the house. A tall fence separated the front and back yard; a side-yard gate was chained and padlocked. The TECO investigator broke the chain and entered the back yard. He found no signs of meter tampering, but he saw a suspicious alteration of the roof eave. He discovered a tap that allowed unmetered electricity to enter the home. The investigator relayed his findings to the task force members who were on the street.

Detective Rule knocked on the front door of the house; no one responded. Then, task force members entered the back yard and saw other evidence of a grow house operation. When Mr. Delrio and Mr. Delguy arrived, Mr. Delrio would not consent to a search of the home. Task force members detained the two men until a warrant was obtained. Detective Rule’s affidavit supporting the search warrant set forth detailed information, including the TECO investigator’s observations. The affidavit also recited the observations of the task force members who had entered the back yard.

The trial court correctly found that the TECO investigator had authority to enter the back yard and was not acting as a law enforcement agent. See United States v. Cleaveland, 38 F.3d 1092, 1093-94 (9th Cir.1994) (concluding that a search by a private party not acting as an agent for law enforcement does not implicate the Fourth Amendment; where electric company intended to further its own ends by private search, that motivation is not negated by dual motive to detect or prevent crime or assist police, or by presence of police nearby during the search). However, the trial court concluded that the historic facts, the information that the Ford F-150 truck was seen at the residence, and the TECO investigator’s suspicions of electricity theft did not, without more, establish probable cause for issuance of a search warrant.

The trial court also found that the officers’ entry into Mr. Delrio’s back yard and inclusion of the officers’ observations in the affidavit rendered it defective. The trial court noted that “probable cause could have been established by the officer in this case simply by including [the TECO investigator’s] objective factual observations in the affidavit, and then stating that based on his training and experience an illegal ‘growhouse’ operation was being conducted on the property.” A review of the affidavit demonstrates that Detective Rule included the TECO investigator’s observations in full. The affidavit stated that the TECO investigator saw that non-TECO connectors were “connected to TECO’s main service line ... inspection of] the riser pipe [showed] an illegal connection entering the residence which was allowing unmetered electricity to enter the residence.” The affidavit concluded that based on Detective Rule’s experience, knowledge, training, and on the totality of the circumstances listed, the house was being used to grow an illegal substance.

Further, if we ignore everything in the affidavit concerning the observations made by officers after entering the back yard, we are still left with sufficient factual observations, including those of the TECO investigator, to establish probable cause for issuance of the warrant.

Even where a court finds the police acted deceptively, it must excise the erroneous material and determine whether the remaining allegations in the affidavit support probable cause. If the remaining statements are sufficient to establish probable cause, the false statement will not invalidate the resulting search warrant. See Terry v. State, 668 So.2d 954 (Fla.1996). If, however, the false statement is necessary to establish probable cause, the search warrant must be voided, and the evidence seized as a result of the search must be excluded. See id. (citing Franks [v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ]); see also Thorp v. State, 777 So.2d 385 (Fla.2000)).

Pagan, 830 So.2d at 807; see also Garcia v. State, 872 So.2d 326, 329-30 (Fla. 2d DCA 2004); Finfrock v. State, 507 So.2d 1230, 1231 (Fla. 5th DCA 1987) (citing Neary v. State, 384 So.2d 881 (Fla.1980)).

We conclude that there was probable cause to issue the search warrant. Accordingly, we reverse.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.


author: GRIFFIN, J.

text:
    D. Douglas REHMAN, Appellant, v. LAKE COUNTY, Florida, et al., Appellee.
    No. 5D10-230.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.
    Rehearing Denied March 22, 2011.
    D. Douglas Rehman, Mount Dora, pro se.

      Erin E. Hartigan, Assistant County Attorney, Tavares, for Appellee Lake County.
    Leslie Campione, of Leslie Campione, P.A., Mount Dora, for Appellees, Mid-Lake Holdings, LLC, and Ashish Karve and Chaitrali Karve.
    Gary J. Cooney, Mount Dora, for Appel-lee, Albert E. Harthman.
   GRIFFIN, J.

D. Douglas Rehman [“Rehman”], pro se, appeals the trial court’s entry of summary final judgment in favor of Lake County, Florida, [“Lake County”], Mid-Lake Holdings, LLC, Ashish Karve, Chaitrali Karve, and Albert E. Harthman [“collectively Harthman”].

The proceeding below was an action for declaratory and injunctive relief brought pursuant to section 163.3215, Florida Statutes. Rehman challenged Lake County’s approval through a development order of an application for rezoning of a piece of property that is located on State Road 44, and which is adjacent to his property. Rehman claims that the rezoning is inconsistent with Lake County’s Comprehensive Growth Management Plan [“the Comprehensive Plan”].

Prior to the application in April 2009 for rezoning, the parcel’s only allowable use was for a real estate office. Rezoning was sought to allow for an automotive repair and service shop. The Lake County Zoning Board held a public hearing and recommended that the rezoning ordinance be approved with some modifications. The Lake County Board of County Commissioners then conducted a public hearing and approved the rezoning ordinance with the changes recommended by the Zoning Board; thus allowing the construction and operation of an automotive service and repair facility or any other use fitting Lake County’s C-l zoning.

Rehman contends that the rezoning is contrary to the goals, policies, and objectives found in the Comprehensive Plan because: an automotive repair facility would be a source of noise and air pollution, would likely result in ground and groundwater pollution, would be a visual blight, would disturb the tranquility of the neighborhood, would result in significant traffic congestion that would increase the likelihood of traffic crashes, would not be located in a planned center, would be located at an intersection that already has an established automotive repair and service shop, would cause owners of neighboring parcels to convert those parcels from residential/agricultural to commercial use, and would promote the neighborhood changing to commercial urban sprawl.

Harthman filed a motion for summary judgment, asserting that, within the Comprehensive Plan, the subject property has a future land use designation of Urban Expansion with an overlay land use of Neighborhood Activity Center, that the Planned Commercial zoning district is a land use allowed in Lake County within the Urban Expansion land use designation, and that automotive repair use is allowed as a permitted use within the zoning category of Planned Commercial. The affidavit of Brian T. Sheahan, the Division of Planning & Community Design Director of the Department of Growth Management of Lake County, Florida, attesting to these facts, was filed in support of the motion for summary judgment.

Rehman’s response to the summary judgment motion did not dispute that the proposed use of the subject parcel is allowed within that parcel’s future land use category; rather, he reiterated his claim that the rezoning violates the “goals, policies, and objectives” of the Comprehensive Plan. The trial court accordingly entered an order granting Harthman’s motion for summary judgment. Because the use approved by Lake County is not inconsistent with the land uses contained in the Comprehensive Plan, the trial court properly entered summary judgment on Rehman’s claim brought under section 163.3215, Florida Statutes. We find the remaining claim on appeal to be without merit and affirm without comment.

AFFIRMED.

TORPY and COHEN, JJ., concur.


author: PER CURIAM.

text:
    William CLAIRVIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-725.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.
    Rehearing Denied March 18, 2011.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Morton v. State, 689 So.2d 259, 264 (Fla.1997), receded from in part on other grounds, Rodriguez v. State, 753 So.2d 29, 47 (Fla.2000) (where witness gives both favorable and unfavorable testimony, party calling witness should usually be permitted to impeach witness with prior inconsistent statement; statement should be truly inconsistent and caution should be exercised in permitting impeachment of witness who has given favorable testimony but simply fails to recall every detail unless witness appears to be fabricating).

MONACO, C.J., EVANDER and JACOBUS, JJ., concur.


text:
    Cleveland LONG, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5549.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.
    Cleveland Long, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. All associated pending motions before the Court are hereby denied. However, the Court notes that the appellant’s appeal of the posteonviction court’s final order dated July 27, 2010, “granting in part and denying in part motion to correct illegal sentence and order modifying judgment and sentence,” remains before the Court for review in case 1D10-5411.

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


text:
    Theo GORDON, Appellant, v. Berris GORDON, et al., Appellee.
    No. 5D09-4327.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    Rehearing Denied March 22, 2011.
    Michael P. Nordman of Richard W. Taylor, P.A., Deland, for Appellant.
    Evelyn W. Cloninger and Paul Bryan Sladek of Cloninger & Files, Oviedo, for Appellee.
   PER CURIAM.

Theo Gordon, the son of Llewelyn Gordon (deceased), appeals the order entered by the trial court denying his objection to inventory, approving the amended inventory filed by the personal representative of the deceased’s estate, and authorizing the personal representative to liquidate assets of the estate to protect the deceased’s homestead property. We affirm in part and reverse in part.

First, the trial court’s order denying Theo’s objection to inventory and approving the inventory filed by the personal representative is affirmed because there was competent, substantial evidence in the record supporting the trial court’s finding that the deceased intended to make an inter vivos gift of two brokerage accounts to his brother, Berris.

Second, Berris concedes error on the issue of whether the personal representative was entitled to liquidate assets of the estate to protect the deceased’s homestead property, acknowledging that the issue was not properly before the trial court for consideration. As such, the portion of the trial court’s order authorizing the personal representative to liquidate assets is reversed.

AFFIRMED in part, REVERSED in part, and REMANDED.

PALMER, TORPY and COHEN, JJ., concur.


text:
    Joshua Montgomery TOLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0501.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.

      Matt Shirk, Public Defender, and Richard Gordon, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on November 5, 2010, in Duval County Circuit Court case number 16-2009-CF-009876-AXXX-MA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D). The court notes that the Public Defender has been appointed to represent petitioner in the appeal authorized by this opinion.

KAHN, DAVIS, and HAWKES, JJ., concur.


text:
    DIVERSIFIED MAINTENANCE SYSTEMS, INC., and Travelers Insurance Company, Appellants, v. Francisco Soto FUERTE, Appellee.
    No. 1D10-5499.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.
    Rehearing Denied March 18, 2011.
    R.G. McCormick, Jr., of the Bleakley Law Firm, Tampa, for Appellants.
    Jane-Robin Wender of Jane-Robin Wender, P.A., Delray Beach, for Appellee.
   PER CURIAM.

In this workers’ compensation case, Claimant requested an alternate primary care provider (PCP) under the parties’ managed care arrangement (MCA), but was dissatisfied when the Employer/Carrier (E/C) agreed to authorize one of only three PCPs whose names it provided Claimant. Claimant then filed a petition for benefits seeking to choose a PCP from any of the multiple PCPs participating in the provider network. The E/C now appeals from the order of the Judge of Compensation Claims (JCC) awarding authorization of a PCP “from among the provider network” and entitlement to attorney’s fees and costs for the prosecution of that benefit. Because the question presented has been resolved by Mack v. Westminster Suncoast Manor, 929 So.2d 610 (Fla. 1st DCA 2006), we reverse the order. Specifically, in both cases, although the JCC had jurisdiction over the petition for benefits because the claimant exhausted the grievance procedure, the terms of the MCA govern resolution of the petition. Here, as in Mack, because the E/C did not deny treatment but only limited the claimant’s choice of provider in the manner prescribed by the applicable MCA, Claimant’s petition should have been dismissed.

REVERSED.

ROBERTS, CLARK, and WETHERELL, JJ., concur.


author: CLARK, J.

text:
    Jason A. QUARLES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1277.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Jason A. Quarles, pro se.

      Pamela Jo Bondi, Attorney General and Beverly Brewster, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Appellant challenges the trial court’s summary dismissal of his complaint for writ of habeas corpus. Because the complaint was facially sufficient to state a pri-ma facie case for relief, the order of dismissal is reversed and remanded for the issuance of an order requiring a response from the Department of Corrections and further action as warranted by the record.

As explained in Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996), the rules of procedure applicable to petitions for the extraordinary writ of habeas corpus are set out in chapter 79, Florida Statutes, and rule 1.630, Florida Rules of Civil Procedure. If the complaint states prima facie grounds for relief, the trial court must issue the writ, requiring a response from the detaining authority. § 79.01, Fla. Stat.; Fla. R. Civ. P. 1.630(d)(5).

In order to state a prima facie case for a writ of habeas corpus, the complaint must allege: 1) that the petitioner is currently detained in custody; and show 2) “by affidavit or evidence probable cause to believe that he or she is detained without lawful authority.” § 79.01, Fla. Stat. See also Smith v. Kearney, 802 So.2d 387, 389 (Fla. 4th DCA 2001) (“To show a prima facie entitlement to habeas relief, the petitioner must show that he is ‘unlawfully deprived of his liberty and is illegally detained against his will.’ ”).

The determination of whether a complaint for the writ of habeas corpus states a prima facie case for relief takes place at the earliest stage of the proceedings when the record consists of only the complaint itself. The writ of habeas corpus “is a writ of inquiry and is issued to test the reasons or grounds of restraint and detention.” Santana v. Henry, 12 So.3d 843, 846 (Fla. 1st DCA 2009). While the advent of alternative remedies, such as rule 3.850, Florida Rules of Criminal Procedure, has curtailed the common law pri-ma facie case for the extraordinary writ to allegations of a situation where “the law does not otherwise provide an adequate mechanism to obtain relief from illegal detention, ... the writ remains available for the rare case in which a prisoner has been provided no adequate or effective way to test the legality of his or her ‘detention’ despite the procedures in rule 3.850.” Valdez-Garcia v. State, 965 So.2d 318, 321 (Fla. 2d DCA 2007). Thus, the propriety of the trial court’s dismissal of a habeas corpus complaint depends upon the particular allegations of the complaint and any attachments.

In this case, the complaint alleged facts to establish that appellant is currently detained by the Department of Corrections.

The second element of a prima fa-cie case — sworn allegations that the prisoner is detained without lawful authority— is satisfied in the complaint as well. The complaint was under oath pursuant to section 92.525, Florida Statutes. Contrary to the trial court’s findings in its order dismissing the complaint, appellant did not collaterally attack the original judgment and sentence as contemplated under rule 3.850, Florida Rules of Criminal Procedure. Instead, the appellant acknowledged that he was incarcerated in 1993 under a 20-year sentence. He does not allege that the sentence was invalid or illegal, but states that he was released in 2008 because “the fact of the matter is that he COMPLETED his court imposed sentence.”

Expiration of a 20-year sentence after only 15 years is not impossible, due to gain time awards and other credits a prisoner might be awarded during the service of the sentence. It is also possible that the Department has lawful authority to detain the appellant due to his violation of conditions imposed upon his release in 2008 and the effect such violation might have had upon the calculation of the expiration of his sentence. However, the determination of whether the complaint states a prima facie case for habeas corpus relief is limited to the allegations of the complaint because the complaint constitutes the only record material before the trial court. While the Department’s answer brief contains additional facts, these facts were not presented to the trial court, not contained in the record, and thus not properly considered by this court in reviewing the trial court’s order. Fla. R. App. P. 9.200 (record consists of materials filed in lower tribunal); See also Locker v. United Pharm. Group, Inc., 46 So.3d 1126 (Fla. 1st DCA 2010) (for determination of motion to dismiss, trial court limited to 4 corners of complaint); McKinney-Green, Inc. v. Davis, 606 So.2d 393 (Fla. 1st DCA 1992) (appellate court reviews dismissal of complaint with same standard as trial court-i.e., appellate court accepts factual allegations of complaint as true).

The plausible allegation that the appellant’s sentence has expired is sufficient to state a prima facie case for habeas corpus. See, Diggs v. Dep’t of Corrections, 503 So.2d 412 (Fla. 1st DCA 1987) (writ granted where maximum sentence expired). The order dismissing the complaint is REVERSED and the cause REMANDED for the entry of an order requiring the Department to “certify to the cause of the detention,” as described by section 79.04, Florida Statutes, and for further proceedings by the trial court.

VAN NORTWICK and LEWIS, JJ„ concur.


text:
    Gary Lamar HOLT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0683.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Gary Lamar Holt, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, THOMAS, and MARSTILLER, JJ., concur.


text:
    Caleb Daniel CLIFTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6268.
    District Court of Appeal of Florida, First District.
    March 2, 2011.

      Caleb Daniel Clifton, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s Florida Rule of Criminal Procedure 3.850 motion. As to Ground Ten of that motion, we note that jurisdiction to entertain a request for a belated appeal lies with the District Court of Appeal and not the circuit court. See Fla. R.App. P. 9.141(c)(2); Bowers v. State, 939 So.2d 337 (Fla. 2d DCA 2006).

AFFIRMED.

KAHN, DAVIS, and HAWKES, JJ., concur.


text:
    Anthony L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0090.
    District Court of Appeal of Florida, First District.
    March 3, 2011.
    Anthony L. Johnson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant has sought review of a final order rendered in the lower tribunal on November 17, 2010. Because the notice of appeal was not filed within 30 days of rendition, the appeal is untimely. Accordingly, the appeal is dismissed.

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


text:
    Rochelle Catherine DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4957.
    District Court of Appeal of Florida, First District.
    March 3, 2011.
    ■ Rochelle Catherine Davis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, for Appellee.
   PER CURIAM.

Appellant has appealed an order denying her rule 3.850 motion as untimely filed in the trial court. Appellant’s underlying judgment and sentence became final on April 30, 2008, when this court issued an order dismissing her direct appeal. Pursuant to rule 3.850, Appellant had until April 30, 2010, to timely file a rule 3.850 motion. The record appears to indicate that Appellant did not place the motion into the hands of the correctional institution for mailing but, instead, she retained counsel who filed a notice of appearance on May 4, 2010. On May 5, 2010, counsel filed the instant motion on Appellant’s behalf. The trial court dismissed the motion because it was untimely filed. As Appellant was represented by counsel, she is not entitled to the benefit of the Mailbox Rule. See Haag v. State, 591 So.2d 614 (Fla.1992) (discussing that pro se prisoner filings are to be considered filed when placed into the hands of prison officials for mailing). Thus, the date of filing is the date that counsel filed the motion. See generally Fla. R. Civ. P. 1.080(e).

While we affirm the trial court’s ruling that the motion was untimely filed, Florida Rule of Criminal Procedure 3.850(b)(3) allows for a waiver of the two-year filing bar when counsel, “through neglect, failed to file the motion.” If such a situation applies to the instant case, Appellant may seek a waiver of the two-year time limitation before the lower court so that the court may consider the merits of Appellant’s claims. See Tinsley v. State, 41 So.3d 334 (Fla. 1st DCA 2010); Johnson v. State, 7 So.3d 643 (Fla. 3d DCA 2009).

AFFIRMED.

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


text:
    Sam EVANS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0467.
    District Court of Appeal of Florida, First District.
    March 4, 2011.
    Sam Evans, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Tony McGEEHEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0621.
    District Court of Appeal of Florida, First District.
    March 4, 2011.
    Tony McGeehee, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(4)(B).

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


text:
    Terry L. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0629.
    District Court of Appeal of Florida, First District.
    March 4, 2011.
    Terry L. Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Michael I. CHARLES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0798.
    District Court of Appeal of Florida, First District.
    March 4, 2011.
    Michael I. Charles, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. RApp. P. 9.141(c)(4)(B).

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


text:
    Scott HASEMEIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0808.
    District Court of Appeal of Florida, First District.
    March 4, 2011.
    Scott Hasemeier, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(4)(A).

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