author: WELLS, Chief Judge.

text:
    Juan Carlos PEREZ-SOVIAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-284.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.
    Rehearing Denied Aug. 23, 2012.

      Eugene Zenobi, Criminal Conflict & Giv-il Regional Counsel, Third Region of Florida and Anthony C. Musto, Special Assistant, Criminal Conflict & Civil Regional Counsel, and Philip Louis Reizenstein, Assistant Criminal Conflict & Civil Regional Counsel, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

Defendant Juan Carlos Perez-Sovias appeals from his convictions for aggravated battery and petit theft, raising a number of arguments regarding his conviction and sentence. Although we conclude that none of these arguments has merit, we nonetheless write to address concerns raised by Perez-Sovias’ argument that the court below erred when it engaged in untranslated conversations in Spanish with a number of prospective jurors, thereby depriving him of a transcript of a portion of the proceedings and ultimately a record to bring to this court.

Perez-Sovias was charged with aggravated battery, petit theft, and three counts of battery on a law enforcement officer stemming from an altercation between Perez-Sovias and his employer. Prior to jury selection, a qualified interpreter was sworn to translate all portions of the proceedings from English into Spanish for Perez-Sovias’ benefit. The interpreter was also available to translate any portion of the proceedings which might occur in Spanish into English so as to facilitate creation of a record.

Shortly after the interpreter was sworn, a panel of prospective jurors was brought into the courtroom. As voir dire commenced, the trial judge asked the panel whether any panel member had any language difficulties that would prevent jury service. The trial judge then began to question, in Spanish, five prospective jury members who had raised their hands in response to his initial question. Although a certified interpreter was present at the time, he was not called upon to translate the exchange between the judge and these five prospective jurors. The trial judge instead summarized in English what he represented he had said in Spanish to these prospective jurors and what he interpreted them to have responded to him in Spanish:

THE COURT: ... Anybody have language difficulties that would prevent them from being a juror for us here today? We have a hand in the back here and it is Mr. Perez. (Judge speaks in Spanish to Juror.)
THE JUROR: Perez.
THE COURT: I’ve been speaking to him in Spanish for the record and he says he speaks very little English. How much have you understood so far?
THE JUROR: (Juror speaks in Spanish to Judge.)
THE COURT: He responded in Spanish for the record. (Judge speaks in Spanish to Judge, [sic])
THE JUROR: Driver, truck driver.
THE COURT: (Judge speaks in Spanish to Juror.) He says he’s a truck driver; he’s been in the country 15 years. (Judge speaks in Spanish to Juror.) Says he doesn’t have to speak English for his job. Okay. We have another hand in the back. It is Lopez.
THE JUROR: Martha Lopez.
THE COURT: Martha, do you speak English?
[THE JUROR]: (Juror speaks in Spanish to Judge.)
THE COURT: She says she doesn’t understand what I’m saying but— (Judge speaks in Spanish to juror.)
THE JUROR: (Juror speaks in Spanish to Judge.)
THE COURT: She works for a dentist and — (Judge speaks in Spanish to Juror.) She says her contact with the clientele is just to say hello and so forth, not in depth conversations. I told her I would speak to her later. Anybody else with difficulties? We have a hand and it’s....
THE COURT: Alonso?
THE JUROR: Alonso, yes.
THE COURT: Do you speak English, ma’am?
THE JUROR: Little bit.
THE COURT: What do you do for a living? Where do you work?
THE JUROR: The thrift store.
THE COURT: Where?
THE JUROR: The thrift store.
THE COURT: And how much have you understood so far?
THE JUROR: (Juror speaks in Spanish to Judge.)
THE COURT: I asked her how much she understood, and she asked me in Spanish to ask her in Spanish. (Judge speaks in Spanish to Judge, [sic])
THE JUROR: (Juror speaks in Spanish to Judge.)
THE COURT: She says she speaks more English than she understands and if you speak it too fast, the English that is, she understands even less. And I have been accused of talking too fast.
THE JUROR: (Juror speaks in Spanish to Judge.)
THE COURT: All right. Anybody else with language difficulties? We have Mr. Ramos, right?
THE JUROR: Yes.
THE COURT: Mr. Ramos, how much have you understood so far? (Judge Speaks in Spanish to Judge [sic].)
THE JUROR: (Juror Speaks in Spanish to Judge.)
THE COURT: I asked him how much he’s understood; he said very little. (Judge speaks in Spanish to Juror.)
THE JUROR: (Juror speaks in Spanish to Judge.)
THE COURT: He’s a Spanish Telemarketer.
THE JUROR: Yes.
THE COURT: (Judge speaks in Spanish to Juror.)
The JUROR: (Juror speaks in Spanish to Judge.)
THE COURT: He’s been here 25 years. Any other Spanish — any other language? Mr. Quintero, all right, how much have you understood?
THE JUROR: How much.
THE COURT: How much? (Judge speaks in Spanish to Judge, [sic])
THE JUROR: (Juror speaks in Spanish to Judge.)
THE JUDGE: Where do you work? What’s your job?
THE JUROR: (Juror speaks in Spanish to Judge.)
THE JUDGE: What do you do there?
THE JUROR: [ QJuror speaks in Spanish to Judge.)
THE COURT: Chauffeur for Cadillac. (Judge speaks in Spanish to Juror.)
THE JUROR: (Juror speaks in Spanish to Judge.)
THE COURT: He’s understood — I said 50 percent; he said probably less. Anybody else Spanish difficulties? Speak now or forever hold your peace on that issue. Let’s move on-

Following these exchanges, the trial judge indicated that he was going to excuse all five of these prospective jurors, but asked the five individuals with language difficulties to remain in the courtroom while the court took a recess. But before the other prospective jurors left the courtroom, the judge spoke again in Spanish to the entire panel. On this occasion, the judge gave no indication in English as to what was said:

THE COURT: All right. Ladies and gentlemen, we’re going to take a short break, and I’m going to name a few people that I want to remain with us; Number 16, Ramos; number 18, Quinte-ro; number 23, Alonso; number 36, Lopez; and 34, Perez.
(Judge speaks in Spanish to Jurors.) Everyone else, we’re going to have a short recess....

After the panel left, the judge spoke in Spanish to the five remaining prospective jurors:

(Thereupon, the prospective jury panel departed from the courtroom, after which the proceedings continued as follows:)
THE COURT: Okay. Please be seated. (Judge speaks in Spanish to Jurors.)
THE BAILIFF: All rise for the jurors. Follow me.
THE JUROR: (Juror speaks in Spanish to Judge.)
(Juror departed the courtroom.)

Following this exchange, the court took a short recess.

When the panel returned, the judge commented that “[s]ome of [the] Spanish speakers were released.” Then as jury selection proceeded, the trial court made reference to the fact that prospective juror Ramos was “gone,” with the judge saying, “He’s [a] Spanish speaker.” With regard to another prospective juror, the judge stated, ‘We’ve already gotten rid of him. He’s a Spanish speaker.” A jury ultimately was empanelled without objection to any of this. Trial commenced the following day.

At the conclusion of the trial, the jury found Perez-Sovias guilty of aggravated battery and petit theft. Upon determining him eligible for enhanced sentencing, the court sentenced Perez-Sovias as a violent career criminal and a prison releasee reof-fender to life imprisonment on the aggravated battery count and to sixty days on the petit theft count.

Perez-Sovias does not complain here that the trial court erred in communicating with the jurors in Spanish. Rather, he claims fundamental error as a consequence of the judge’s actions because the court reporter was unable to record all portions of the proceedings and because the court reporter failed to bring her inability to do so to the attention of the court:

[T]he court reporter had an obligation to record all proceedings, including those portions conducted in Spanish. If she did not have the ability to do so, she had an obligation to bring that inability to the attention of the judge and the parties so that alternative arrangements could have been made — perhaps the substitution of a court reporter who spoke Spanish, perhaps the use of [an] interpreter, perhaps an agreement that the judge could interpret, perhaps the taping of the conversations for future transcription, perhaps some other approach.

See Fla. R. Jud. Admin. 2.535(c) (“When trial proceedings are being reported, no part of the proceedings shall be omitted unless all parties agree to do so and the court approves the agreement.”); see also Springer v. State, 429 So.2d 808, 808 (Fla. 4th DCA 1988) (confirming that it is “incumbent upon the reporter to inform the court of his inability to transcribe the tapes at the time the tapes [are] played.”).

While voir dire is a critical stage of a trial and should be transcribed, we cannot agree that the failure to transcribe the entire voir dire in this case was error that reached down into the validity of the trial itself, so as to mandate reversal without further inquiry. See Gomez v. U.S., 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (confirming that voir dire is “a critical stage of the criminal proceeding”); Tanzi v. State, 94 So.3d 482 (Fla.2012) (“A fundamental error is error that ‘reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ Rodriguez v. State, 919 So.2d 1252, 1282 (Fla.2005) (quoting Brown v. State, 124 So.2d 481 (Fla.1960)).”); Reed v. State, 837 So.2d 366, 369-70 (Fla.2002) (confirming that while not all harmful error is fundamental, because fundamental error by its nature is harmful, it is not subject to a harmless error review); see also § 924.051(3), Fla. Stat. (2012) (providing that fundamental error need not be preserved for review by a contemporaneous objection). As explained in Jones v. State, 923 So.2d 486, 487-90 (Fla.2006), the fact that some or all of a voir dire is not transcribed does not alone mandate reversal. There, as here, a claim of error was predicated on a missing voir dire transcript. But, unlike here, the defendant in Jones claimed prejudice because he was unable to assert an error in the manner in which the jury was selected (that is, a purported Neil-Slappy error). Id. at 490.

Rather than conclude that the failure to transcribe this important portion of the trial and preserve a record for review constituted fundamental error (and therefore permitting no harmless error review), the Florida Supreme Court found (in what can only be viewed as a harmless error analysis) that because the defendant’s Neil-Slappy claim was based on no more than “pure conjecture,” id., the lack of a voir dire transcript did not mandate reversal. Id.; see also Armstrong v. State, 862 So.2d 705, 721 (Fla.2003) (concluding that a new trial was not warranted where the defendant “failed to link a meritorious appellate issue to the allegedly missing record and thus cannot establish that he was prejudiced by its absence”); Darling v. State, 808 So.2d 145, 163 (Fla.2002) (finding unpersuasive Darling’s argument that because there was no record of the pretrial hearings that occurred in the case, meaningful review was precluded, requiring a new trial, and holding that because Darling did not demonstrate what specific prejudice, if any, he incurred because of the missing transcript, the missing transcript was not shown to be necessary for meaningful review); Ferguson v. Singletary, 632 So.2d 53, 58 (Fla.1993) (“As to those portions which are still not transcribed, Ferguson points to no specific error which occurred during these time periods. Under these circumstances, we reject this claim.”); Louisias v. State, 985 So.2d 1181, 1182 (Fla. 3d DCA 2008) (“The failure to obtain the trial record, even when the failure to do so is through no fault of the defendant, does not, however, require that a new trial be granted.”).

In this case, no claim of prejudice, specific or otherwise, is made or demonstrated as a consequence of the trial court’s actions. Thus, we conclude that the fact that the transcript of the voir dire in this case is incomplete because no English translation was made of portions of it does not mandate reversal. See State v. Smith, 352 N.C. 531, 532 S.E.2d 773, 784 (2000) (where the North Carolina Supreme Court found no reversible error in allowing a prosecutor to ask, and a potential juror to answer, two preliminary questions in Spanish); see also Sullivan v. State, 303 So.2d 632, 635 (Fla.1974) (“Reversible error cannot be predicated on conjecture.”); accord Ford v. Wainwright, 451 So.2d 471, 474 (Fla.1984); Phelps v. State, 353 So.2d 1221, 1222 (Fla. 3d DCA 1977) (“[Reversible error cannot be predicated upon mere conjecture.”).

That is not to say that what happened below was appropriate. It was not.

Article II, section 9 of the Florida Constitution provides that “English is the official language of the State of Florida.” Section 90.606 of the Florida Statutes acknowledges this mandate, requiring use of interpreters and translators where a witness cannot speak or understand English:

When a judge determines that a witness cannot hear or understand the English language, or cannot express himself or herself in English sufficiently to be understood, an interpreter who is duly qualified to interpret for the witness shall be sworn to do so.

§ 90.606(1)(a), Fla. Stat. (2012).

Florida Rule of Judicial Administration 2.560 further provides for the appointment of interpreters for “non-English-speaking persons” in criminal, juvenile delinquency and “all other proceedings in which a non-English-speaking person is a litigant.” Fla. R. Jud. Admin. 2.560(a)-(b). Section 90.606 also provides that “[a] person who serves in the role of interpreter or translator in any action or proceeding is subject to all the provisions of this chapter relating to witnesses.” § 90.606(2), Fla. Stat. (2012). The trial judge in this case was neither qualified to act as an interpreter in a criminal case nor competent to testify. See § 90.607(1)(a), Fla. Stat. (2012) (“Except as provided in paragraph (b), the judge presiding at the trial of an action is not competent to testify as a witness in that trial. An objection is not necessary to preserve the point.”). Thus, while the trial judge in this case certainly had the right to question potential jurors, see Fla. R.Crim. P. Rule 3.300(b), he should have done so in English, and used an interpreter to translate his questions into Spanish as provided in the rules outlined above. He also should have used the official interpreter to translate the prospective jurors’ responses in Spanish into English. See Monica & Vincent Williams v. Samari Lake E. Condo. Ass’n, No. 02-3002, 2003 WL 2009103, at *22 n. 10 (Fla.Div.Admin.Hear. Apr. 29, 2003) (“Pursuant to Article II, Section 9, of the Florida Constitution, ‘English is the official language of the State of Florida.’ Accordingly, all official proceedings before Judge Chavies must be in English (although there is no prohibition against the use of interpreter services for those unable to understand or communicate in English).”). Had he done so, Perez-Sovias would now have a transcript, making the speculation which forms the basis of Perez-Sovias’ claim superfluous. While we conclude that no harmful error has been demonstrated as a consequence of the lapses which occurred below, we caution that the procedure utilized in this case should not be repeated in the future.

Accordingly, the order under review is affirmed.

      . "A Neil-Slappy objection alleges that a prospective juror was struck by an opposing party solely because of the juror’s race.” Jones, 923 So.2d at 490; see State v. Slappy, 522 So.2d 18 (Fla.1988); State v. Neil, 457 So.2d 481 (Fla.1984).

      . But see Brown v. State, 65 So.3d 629, 632 (Fla. 4th DCA 2011) ("The absence of a voir dire transcript [in Jones ] differs from the missing record in this case because in Jones the defendant and his lawyer were present during the voir dire, so the defense had the ability to specify how the absence of a transcript harmed the appeal. Here, the defense was excluded from the in camera hearing, so it had no way of knowing what occurred.”).

      . This Rule also provides for the qualifications of interpreters and for the specific procedure to be followed when a non-qualified interpreter is used — a procedure not followed in this case:
      (e) Qualifications of Interpreter.
      (1) Appointment of Interpreters when Certified or Duly Qualified Interpreters Are Available. Whenever possible, a certified or duly qualified interpreter, as defined in the Rules for Certification and Regulation of Court Interpreters, shall be appointed.
      (2) Appointment of Interpreters when Certified or Duly Qualified Interpreters Are Unavailable. If, after diligent search, a certified or duly qualified interpreter is not available, an interpreter who is neither certified nor duly qualified may be appointed if the judge or hearing officer presiding over the proceeding finds that:
      (A) good cause exists for the appointment of an interpreter who is neither certified nor duly qualified, such as the prevention of burdensome delay, the request or consent of the non-English-speaking person, or other unusual circumstance; and
      (B) the proposed interpreter is competent to interpret in the proceedings.
      (3) On-the-Record Objections or Waivers in Criminal and Juvenile Delinquency Proceedings. In any criminal or juvenile delinquency proceeding in which the interpreter is neither certified nor duly qualified, the court shall advise the accused, on the record, that the proposed interpreter is not certified or duly qualified pursuant to the Rules for Certification and Regulation of Court Interpreters. The accused’s objection to the appointment of a proposed interpreter, or the accused’s waiver of the appointment of a certified or duly qualified interpreter, shall also be on the record.
      Fla. R. Jud. Admin. 2.560(e)(1)-(3).

      . In the past, we have concluded that even instruments attached to pleadings and motions submitted to the court must be in English. See Rodriguez v. State, 45 So.3d 938, 939 (Fla. 3d DCA 2010) (concluding that a defendant's post-conviction motion was procedurally deficient because he "submitted his motion partially written in Spanish, without an English translation”); Diaz v. Bell Micro-Products-Future Tech, Inc., 43 So.3d 138, 140 (Fla. 3d DCA 2010) (concluding that attachments to the complaint should be translated into English because pleadings are required to be in English); 40 Fla. Jur.2d Pleadings § 13 (2012) (stating that “pleadings are required to be in the English language”).


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    Douglas D. STRATTON, Stratton & Feinstein, P.A., and David Lesman, Appellants/Cross-Appellees, v. 6000 INDIAN CREEK, LLC, and The Wilson-Simons Revocable Trust, Appellees/Cross-Appellants.
    Nos. 3D11-2054, 3D11-2053.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.
    Rehearing Denied Aug. 23, 2012.
    Douglas D. Stratton, in proper person, for appellants/cross-appellees.
    Shook, Hardy & Bacon, and Daniel B. Rogers and Jennifer A. McLoone; Ryan D. Gesten (Davie), for appellees/cross-ap-pellants.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

Attorney Douglas D. Stratton (representing himself), his former law firm, and his client David Lesman, appeal a final judgment awarding attorney’s fees and costs as sanctions against each of them for frivolous and dilatory actions during the last phase of a foreclosure case. In the main appeal, we affirm the legal basis for the sanctions and the total amount awarded. In the cross-appeal, The Wilson-Si-mons Revocable Trust asks us to reallocate the attorney’s fees and costs awards under section 57.105(1), Florida Statutes (2010), so that Lesman and Stratton will each be liable for one-half of the total. The Trust’s claim is well taken, and we therefore reverse the trial court’s allocation in the final judgment. We remand the ‘case so that an amended final judgment may be entered against Lesman and Strat-ton severally, each for one-half of the total sanctions awarded.

I. Facts and Procedural History

U.S. Century Bank commenced a mortgage foreclosure action against 6000 Indian Creek, LLC, in 2009. The mortgage secured an indebtedness of $1,500,000, and it encumbered two condominium units. David Lesman was identified and served as a defendant/tenant of one of the units. The final judgment of foreclosure, entered in April 2010, terminated any rights of possession on the part of Lesman “subject to the provisions of the ‘Protecting Tenants at Foreclosure Act of 2009.’ ” In the final judgment, the court retained jurisdiction “to enter further orders that are proper, including without limitation, writs of possession and deficiency judgments.” The final judgment did not vacate or supersede another order governing the collection and remittance of rent on the unit occupied by Lesman.

U.S. Century was the prevailing bidder at the foreclosure sale. The certificate of title was issued in September 2010. Three weeks later, The Wilson-Simons Revocable Trust bought the condominiums from U.S. Century and was issued a deed conveying title and all rights in the property to the Trust. The Trust then moved to enforce the existing rent order and the rights of possession established via the final judgment, but did not file a formal motion for intervention. Lesman, through the law firm of Stratton & Feinstein, P.A., attended the hearing on the motion and sought and obtained an order denying the Trust’s motion for immediate possession. The order protected Lesman’s tenancy through the end of December 2010 so long as he deposited the stipulated rent into the registry of the court. Lesman made the first payment on time, a second payment later, and failed to make the December 2010 payment until much later. Lesman and his lawyers raised no jurisdictional or procedural impediment to the entry of the order protecting Lesman’s tenancy.

After that order was entered, the Trust discovered that Lesman had allowed four persons to occupy the unit without a written lease or condominium association approval, contrary to the requirements of the condominium rules and Lesman’s own lease, and that Lesman had not complied with the circuit court’s rent order. Les-man and the occupants refused to turn over the condominium unit to the Trust. The Trust then commenced a county court eviction action against the occupants. The occupants, though essentially squatters at that point, were also represented by Douglas Stratton and Stratton & Feinstein, P.A., which obtained a dismissal of the county court complaint because of the Trust’s difficulties in serving the occupants.

The Trust then moved the circuit court to enforce the earlier orders and to impose sanctions under section 57.105, Florida Statutes (2010), against Lesman, attorney Douglas Stratton, and Stratton & Fein-stein, P.A. (by this time, Stratton & Roman, P.A.). The circuit court conducted one hearing regarding the rent in the registry and the amounts unpaid by Lesman, and a second, separate, evidentiary hearing relating to the sanctions. Following the second hearing, the trial court entered a final judgment awarding attorney’s fees and costs to the Trust. This appeal and cross-appeal followed.

II. Analysis

A. Subject Matter Jurisdiction

The Trust became an intervenor when it sought to enforce the rents order and the provision terminating Lesman’s rights of possession. Lesman, through Stratton & Feinstein, P.A., assented to the intervention by requesting and obtaining affirmative relief — an order extending occupancy through the end of the year conditioned upon Lesman’s payment of rent. Rule 1.230 permits intervention “at any time” the action is pending, and the case below had not been closed. No appeal had been taken, the circuit court had expressly retained jurisdiction over the case, and the order pertaining to the payment of rent had not been vacated.

Although the right to intervene attenuates toward the end of a case, even post-judgment intervention has been allowed in appropriate cases. Technical Chems. & Prods., Inc. v. Porchester Holdings, Inc., 748 So.2d 1090 (Fla. 4th DCA 2000). This is such a case. The circuit court had retained personal jurisdiction over Les-man, a defendant, and had subject matter jurisdiction to interpret and enforce its order on rent — an order granting partial relief to Lesman, as affirmatively requested by him after the Trust acquired title and sought possession. Neither the circuit court nor this Court should countenance legal tactics gaming the system, violating court orders, and frivolously protracting the judicial proceedings involving foreclosed property.

Stratton and his law firm do not argue that they had any meritorious basis upon which to extend the possession of the unit by Lesman and the four persons he put in possession in violation of his lease, the circuit court order, and the condominium requirements. Instead, the appellants argue that the circuit court lost jurisdiction upon issuance of the certificate of title and U.S. Century’s sale of the property to the Trust. But such an argument is actually an objection to the Trust’s standing, not to the court’s subject matter jurisdiction. The issue of standing is an affirmative defense that can be waived, as the appellants did when they sought and obtained relief from the circuit court after judgment. They did not appeal the order granting Lesman continued occupancy subject to compliance with conditions; instead, they appealed after violating the order and thus incurring monetary sanctions.

Even if the defense had not been waived by the appellants, at least one authority has concluded that an assignee of the purchaser at a foreclosure sale also has standing to seek a writ of possession. “The purchaser of the property at a judicial sale is entitled to move for a writ of possession even though not a party to the action. An assignee of the purchaser is entitled to move for a writ.” Henry P. Trawick, Jr., Florida Practice and Procedure § 27:5 (2011 ed.) (citing Fla. R. Civ. P. 1.590 and McLane v. Piaggio, 24 Fla. 71, 3 So. 823 (1888)). The “Author’s Comment — 1967” to Rule 1.590 states: “A court may make an order in favor of one not a party. An example of this arises where a foreclosure or other judicial sale is made and the court then orders the property delivered to the purchaser or his as-signee.”

For these reasons, we reject the appellants’ argument that the circuit court lacked jurisdiction.

B. Fees and Costs Under Section 57.105

The appellants next argue that, even if jurisdiction existed, the trial court lacked a sufficient factual basis for the imposition of sanctions under section 57.105, Florida Statutes (2010). The circuit court found, however, that Lesman and his attorneys failed to comply with court orders and that Stratton protracted the proceedings in February 2011 by refusing to take actions-that would have resolved the issues (actions offered in a letter a few weeks before by Stratton’s partner). The court concluded that Stratton was responsible for the frivolous defenses asserted in Lesman’s name, and that he had a duty to advise his clients that they had no legal right to remain in the condominium unit. The appellants have not demonstrated that these findings and conclusions were erroneous in any respect, nor have they challenged the amounts of time or hourly rates admitted into evidence at the sanctions hearing.

In the cross-appeal, however, the Trust argues that the sanctions were incorrectly allocated ($1,540 as to Stratton and his law firm, $25,150 as to Lesman). Section 57.105(1) shifts attorney’s fees and costs to “a losing party and the losing party’s attorney” in equal amounts when the court finds that a claim or defense was not supported by the material facts necessary to establish it, or that it would not be supported by applying then-existing law to those material facts. Section 57.105(2) shifts attorney’s fees and costs to a losing party (with no 50% allocation to the losing party’s attorney) when actions taken by the losing party were “taken primarily for the purpose of unreasonable delay.”

In the present case, the trial court specifically found that the Trust’s attorney’s fees and costs were incurred because of the frivolous legal positions taken by the appellants and the legal advice given by Douglas Stratton. In such a case, the sanctions award is “to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney” as specified by section 57.105(1). “Said another way, an attorney has a duty to refrain from advocacy, such as filing frivolous claims, which undermines or interferes with the functioning of the judicial system.” De Vaux v. Westwood Baptist Church, 953 So.2d 677, 684-85 (Fla. 1st DCA 2007). Accordingly, we reverse the awards insofar as the amounts allocated between Lesman and Stratton, and we remand with instructions to enter the amended final judgment against Lesman and Stratton in equal amounts, i.e., $13,345 each.

III. Conclusion

The Trust did not raise issues “entirely outside” those issues and orders decided and reserved for additional consideration after the final judgment was entered in the foreclosure action, a critical point in the various subject matter jurisdiction cases cited by the appellants. See, e.g., In re Estate of Hatcher v. Dodd, 439 So.2d 977, 980 (Fla. 3d DCA 1983) (quoting Fla. Power & Light Co. v. Canal Auth., 423 So.2d 421, 424-25 (Fla. 5th DCA 1982)). The Trust sought only to enforce those legal rights and remedies previously determined by the circuit court, and to address a remedy sought and obtained by Lesman, through Stratton and his law firm, in the same court and same action.

Section 57.105(1) was enacted to deter practices and legal advice of the sort displayed here. Florida Rule of Civil Procedure 1.010 imposes on parties and attorneys a duty to construe and apply the rules “to secure the just, speedy, and inexpensive determination of every action,” as opposed to the unfair, dilatory, and legal fee-enhancing actions of the appellants in this case.

Affirmed as to all issues on appeal; reversed and remanded, in the cross-appeal, for amendment of the final judgment as set forth in this opinion.

      . Qualifying tenants are generally entitled to a written notice at least ninety days before a notice to vacate is issued. Pub. L. No. 1 ill-22, § 702, 123 Stat. 1632, 1660-61 (2009) (codified as amended at 12 U.S.C. § 5220 note (2010)).

      . The appellants have not filed a transcript of the hearing at which they obtained the relief set forth in the order.

      . Although the Trust apparently did not seek intervention pursuant to a separate motion citing Florida Rule of Civil Procedure 1.230, the appellees have not shown that the foreclosure suit was no longer "pending,” or that the Trust lacked "an interest” in the subject matter of the action.

      . Trial courts retain the power to enforce prior court orders. Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 801 (Fla.2003).

      . The standing of a non-party who has purchased a property at a foreclosure sale has long been recognized. Miller v. Stavros, 174 So.2d 48 (Fla. 3d DCA 1965).

      . The trial court also addressed the factors to be considered in an award of attorney's fees as detailed in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985).

      . Because of the changes in membership and title of Stratton’s law firm, and because Strat-ton himself is the attorney who filed the pertinent pleadings and was found to have provided the sanctionable legal advice, the one-half allocable to Lesman's counsel is to be borne by Stratton individually.

        . By separate order we are also granting the Trust’s motion for appellate attorney’s fees and costs, and remanding the case so that the amount may be set by the circuit court. Those further fees and costs should also be included in the total amounts of the amended final judgment.


author: HAZOURI, J.

text:
    Robert BOLTUCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2225.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    Rehearing Denied Sept. 11, 2012.
    Robert Boltuch, Zephyrhills, pro se.
    No appearance for appellee.
   HAZOURI, J.

Robert Boltuch appeals the denial of his “All Writs Petition” and his Fourth Motion to Correct Illegal Sentence. We affirm.

In August 2000, a jury convicted Boltuch of first-degree murder and attempted second-degree murder with a firearm. The court imposed the mandatory life sentence without possibility of parole for the murder and a consecutive term of thirty years in prison with a three-year mandatory minimum for possession of the firearm on the attempted murder count. See § 775.087, Fla. Stat. (1997).

Appellant contends that his consecutive sentences on these counts are illegal and result in a manifest injustice because he fired a single burst of seven shots at the two victims, and the offenses occurred in a single criminal episode. The consecutive sentences are legal. § 775.021(4)(a), Fla. Stat. (1997). (“Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively.”).

Appellant also contends that his sentence on the second count is illegal because the court never orally pronounced the three-year mandatory minimum that was included as part of the written sentence. Although the mandatory minimum was discussed at the sentencing hearing, and found to apply, the court did not formally announce that it was imposing the mandatory minimum.

In Dunbar v. State, 89 So.3d 901 (Fla.2012), the Florida Supreme Court held that the trial court’s failure to orally pronounce the mandatory minimum at sentencing, and its addition of the mandatory minimum to the written sentence later that day, did not violate double jeopardy. This court’s decision in Losh v. State, 51 So.3d 1188 (Fla. 4th DCA 2011), which held that the correction of a sentence in similar circumstances violated double jeopardy and resulted in an illegal sentence, is overruled.

Affirmed.

WARNER and STEVENSON, JJ., concur.


author: PER CURIAM.

text:
    ZURICH AMERICAN INSURANCE COMPANY, as a Subrogee of Tecnoguat, S.A., and Technoguat, S.A., Appellants, v. HATCH ACRES CORP., f/k/a Acres International Corp., et al., Appellees.
    No. 3D11-2844.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.
    Cozen O’Connor and Joshua Ross Goodman and Anaysa Gallardo, Miami, for appellants.
    Mark A. Marder, Miami, for appellees.
    Before CORTINAS, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Alhambra Homeowners Ass’n v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006).


author: PALMER, J.

text:
    Chad DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1068.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2012.
    Rehearing and Rehearing En Banc Denied Sept. 13, 2012.

      Frances Martinez, of Escobar & Assoes., P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan and Robin A. Compton, Assistant Attorneys General, Daytona Beach, for Appellee.
   PALMER, J.

Chad Davis (defendant) appeals his convictions for trafficking in cocaine and conspiracy to traffic in cocaine. Determining that the evidence was insufficient to support the conspiracy conviction, we reverse that conviction. As to all other issues, we affirm.

The defendant was charged with two counts of trafficking in cocaine and one count of conspiracy to traffic in cocaine. The evidence at trial demonstrated that Robert Adams asked Major Moten to find out if the defendant had cocaine for sale. After confirming that the defendant did have cocaine to sell, Moten gave Adams the defendant’s telephone number. Adams and the defendant then planned, by phone, two one-kilogram cocaine transactions on consecutive days. They completed the second transaction. Adams later sold the cocaine to a third person. The jury found the defendant guilty of one count of trafficking in cocaine and of conspiracy to traffic in cocaine. The defendant argues the evidence was insufficient to prove conspiracy. We agree.

The standard of review of the sufficiency of the evidence is de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

The offense of trafficking in cocaine occurs when a person “knowingly sells, purchases, ... delivers, ... or ... is knowingly in actual or constructive possession of, 28 grams or more of cocaine.” § 893.135(1)(b)1, Fla. Stat. (2008). Conspiracy to commit this offense occurs when a person “agrees, conspires, combines, or confederates with another person to commit any act prohibited by” the offense. § 893.135(5). In other words,

[t]he crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense. Both an agreement and an intention to commit an offense are necessary elements of the crime.... [E]vi-dence that a defendant ... had knowledge of the crime ... or even aided others in the commission of the crime is insufficient, by itself, to support a conspiracy conviction. Rather, the State’s evidence must show that the defendant entered into an agreement with another to commit the crime and intended to commit the crime.

Green v. State, 999 So.2d 1098, 1099 (Fla. 5th DCA 2009) (citations omitted).

Here, the State’s evidence was insufficient to establish conspiracy because it did not show an agreement between the defendant and any person to commit the same act of selling, purchasing, delivering, or possessing cocaine. Instead, the evidence simply established the planning and execution of a buy-sell transaction between the defendant and Adams.

The Fourth District addressed a legally similar situation in Schlicher v. State, 13 So.3d 515 (Fla. 4th DCA 2009), where the defendant was the purchaser of cocaine:

[T]he police were conducting an investigation, primarily through wiretaps, of a cocaine trafficking organization headed by Jose Tzoc-Caxaj (Jose). [The defendant] was not the target of the investigation, but came to be known to police when he purchased cocaine from Jose. [The defendant] admitted to police that he had purchased cocaine consistently from Jose for his own use, but maintained that he was not a drug dealer.

Id. at 516-17. The court held the evidence insufficient to establish conspiracy, reasoning:

Logic demands that the agreement that constitutes the conspiracy must be an agreement to commit the same criminal offense. In a buy-sell transaction, that agreement usually does not exist because the buyer and seller each intend to commit a different criminal offense. As a result, there is no criminal conspiracy to pursue a common goal. Such is the case here, where [the defendant] and Jose were on opposite sides of the drug transactions. Accordingly, there was no evidence of an express or implied agreement between [the defendant] and Jose to commit the common criminal offense of purchase of cocaine.
The State relies on Leigh [v. State, 967 So.2d 1102 (Fla. 4th DCA 2007)].... [That] case, however, is factually distinguishable .... In Leigh, two or more defendants were engaged in the sale or purchase of drugs from a third party. The defendants were convicted based on their conspiracies with co-defendants who were on the same side of the transactions. This Court reasoned that, in order to carry out either the joint purchase or the joint sale of drugs, there must have been a prior agreement among the defendants to achieve that sale, or else the sale would not have occurred. Here, there was no such agreement between [the defendant] and a co-conspirator on the same side of the transaction.
... [T]he State did not produce sufficient evidence that [the defendant] and Jose had an express or implied agreement to purchase cocaine, and that both shared the common intent to purchase cocaine. Rather, the State’s evidence established that the alleged co-conspirators had different criminal intents.

Id. at 517-19 (citations and footnote omitted; emphasis in original).

This analysis is consistent with our court’s ruling in O’Connor v. State, 590 So.2d 1018 (Fla. 5th DCA 1991). There, a confidential informant bought cocaine from the defendant. Prior to the transaction, the defendant told the informant that he would get the cocaine from someone named Nasty. The State argued that the evidence was sufficient to establish that the defendant conspired with Nasty to traffic in cocaine. We disagreed, reasoning:

[Tjhere was no evidence to show ... that [the defendant] conspired with [Nasty], and there is no evidence of intent or agreement on that person’s part [that the defendant would resell the cocaine].
The state’s argument boils down to the theory that because [the defendant] had cocaine and sold it to [the informant], ... this necessarily shows the agreement of another party [that the defendant would resell it]. However, [the defendant] could have obtained the cocaine without such an agreement. If that type of analysis were sufficient, every person who sold drugs would also be guilty of conspiracy on the rationale that he must have gotten it from someone else.

Id. at 1020.

As in Schlicher, the evidence here failed to demonstrate any agreement or concurrent intent between the defendant and Adams to join in the same act of selling, purchasing, delivering, or possessing a particular item of cocaine. Rather, the evidence demonstrated that the defendant intended to possess and then to sell and deliver the cocaine, and Adams intended to purchase and then possess the cocaine. And, as in O’Connor, neither Adams’s purchase of the cocaine from the defendant nor his resale of it to a third party created an inference that the defendant agreed with Adams that Adams would resell it.

The State relies on Pallin v. State, 965 So.2d 1226 (Fla. 1st DCA 2007), to support the defendant’s conspiracy conviction. There, the First District ruled that multiple buy-sell transactions, standing alone, supported a conviction for conspiracy, reasoning that the buyer and sellers shared a common objective to purchase or possess cocaine because the sellers had to purchase and possess the cocaine before the buyer could purchase or possess a smaller portion of it. Id. at 1227-28. We reject this reasoning because conspiracy requires an agreement to commit the same criminal act, and a seller’s purchase/possession of cocaine is not the same criminal act as a buyer’s subsequent purchase/possession of a portion of that cocaine. Accordingly, we certify conflict with Pallin.

The State raises two other factual bases to support the defendant’s conspiracy conviction: (1) evidence that the defendant gave his phone number to Moten to give to Adams, and (2) evidence that, during one of the defendant’s phone calls with Adams, the defendant alluded to anonymous third persons being involved in setting his selling price.

Regarding the first basis, the fact that the defendant gave Moten his phone number and that Moten agreed to give it to Adams does not support a conviction for conspiracy because, although Moten knew that the phone number was for the purpose of connecting Adams with the defendant so that Adams could purchase cocaine, there was no evidence that Moten knew or agreed to the quantity or other details of any prospective drug transaction. See Rodriguez v. State, 719 So.2d 1215, 1217 (Fla. 2d DCA 1998) (holding no conspiracy to traffic where defendant, who helped set up communications between buyer and seller, had no agreement with seller regarding sale of any specific quantity of cocaine); Williams v. State, 592 So.2d 737 (Fla. 1st DCA 1992) (holding similarly where defendant merely agreed to participate in a “big deal”). While Mo-ten may have aided and abetted the transaction between the defendant and Adams, aiding and abetting is not sufficient for conspiracy. Young v. State, 940 So.2d 543, 544 (Fla. 5th DCA 2006).

Regarding the defendant’s allusion to anonymous third persons, “a defendant charged with conspiracy may be convicted of conspiring with persons whose names are unknown; however, the evidence must show that an unnamed cocon-spirator did exist and that the defendant conspired with him.” O’Connor v. State, 590 So.2d 1018, 1020 (Fla. 5th DCA 1991). Here, the evidence demonstrated that the defendant set the price at $26,500 for the sale of the first day’s kilogram, but he suggested that he would take $500 off the price for the second kilogram. However, when Adams called the next day, the following conversation occurred:

DEFENDANT: Um, you want to come see me or you need — hey, they all want to change on that — you remember I told you that half, man, they still want that half, man.
DEFENDANT: I mean, they want that half, man. I try. I try. You know what I mean? Hey, I try for you. You know?
ADAMS: Yeah. That’s all you can do.

These statements could raise an inference that “they” were one or more anonymous persons with whom the defendant conspired to sell the cocaine. However, no other evidence showed that “they” actually existed and that the defendant actually conspired with “them.” Therefore, the defendant’s reference to supposed anonymous third persons was not sufficient to support a conspiracy conviction. See Sheriff v. State, 780 So.2d 920 (Fla. 4th DCA 2001) (holding evidence insufficient to show conspiracy between defendant and his claimed supplier “Solon” because “no evidence at trial was presented that [the defendant] actually contacted or conspired with ‘Solon’ or that such a person even existed.”); O’Connor, 590 So.2d at 1020 (holding defendant’s reference to unidentified supplier insufficient to show that that person existed or that defendant conspired with him).

Accordingly, we affirm the defendant’s conviction and sentence for trafficking in cocaine, but reverse his conviction and sentence for conspiracy to traffic in cocaine.

AFFIRMED in part; REVERSED in part; CONFLICT CERTIFIED.

EVANDER, J., concurs.

ORFINGER, C.J., concurs in result only.

      . Although the object offenses of the alleged conspiracies in Schlicher and Pallin were purchase or possession, those types of acts are included within the definition of trafficking. Thus, the different object offenses in those cases do not affect our analysis.