text:
    Frederick VANAUKEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2343.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2010.

      Frederick Vanauken, Malone, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We previously remanded this postcon-viction proceeding after the State conceded error in connection with the summary denial of several claims of ineffective assistance of counsel. After remand, the trial court once again summarily denied Appellant’s claims. We reverse in part.

In denying claim four, the trial court stated that: (1) the jury could have arrived at the same conclusion without this evidence, and (2) there was no evidence that the jury had considered the alleged improper evidence when rendering its verdict. Neither conclusion addresses the issue of whether the evidence was properly admitted, and, if not, whether the admission of the evidence undermined confidence in the outcome of the proceeding. Nor is the claim conclusively refuted by the small segments of transcript contained in the record before this Court, none of which deal with this claim. On remand, the trial court shall conduct an evidentiary hearing on this issue.

The trial court summarily denied claim five because the allegedly overlooked evidence would have been cumulative. We disagree. See, e.g., Solorzano v. State, 25 So.3d 19 (Fla. 2d DCA 2009) (trial court erred in summarily denying postconviction claim for ineffective assistance of counsel, based on failure to call bartender to testify to defendant’s consumption of alcohol, although defendant testified to same thing; evidence would not have been cumulative to defendant’s testimony, which could have been discounted by jury as self-serving); Cardenas v. State, 993 So.2d 546 (Fla. 1st DCA 2008) (summary dismissal of claim for ineffective assistance of counsel was improper; claim was not conclusively refuted by attachments to order showing proposed testimony mirrored defendant’s trial testimony, since witness’s testimony that defendant was not driving boat in BUI manslaughter case would have been more persuasive than defendant’s).

The trial court also concluded that claim five should be denied because trial counsel’s decision “not to investigate” was a strategic choice, essentially not subject to challenge. This too was an erroneous conclusion on this record at this procedural juncture. See Pereira v. State, 29 So.3d 1186 (Fla. 5th DCA 2010) (trial court’s finding that action or inaction by defense counsel was tactical is generally inappropriate without evidentiary hearing). An evidentiary hearing can be avoided only when it is obvious from the record that the decision was strategic. Jackson v. State, 975 So.2d 485 (Fla. 2d DCA 2007).

Finally, the trial court concluded that claim five should have been raised on direct appeal. Again, we disagree. As a general rule, claims of ineffective assistance of counsel are not cognizable on direct appeal and can only be raised in a postconviction motion under Florida Rule of Criminal Procedure 3.850. See, e.g., Smith v. State, 998 So.2d 516, 522 (Fla.2008); Tolliver v. State, 10 So.3d 1199 (Fla. 5th DCA 2009). On remand, the trial court shall conduct an evidentiary hearing on claim five.

We affirm the summary denial of claims eleven and twelve, but direct the trial court to permit Appellant to amend claim twelve. See Spera v. State, 971 So.2d 754 (Fla.2007).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SAWAYA, TORPY and JACOBUS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Brian L. LOSH, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-980.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 2011.
    Rehearing Denied Feb. 15, 2011.
    Bruce L. Losh, Monticello, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

In this rule 8.800(a) appeal, appellant challenges his ten-year mandatory minimum sentence imposed for armed robbery with a firearm. He claims that the sentencing court did not pronounce the mandatory minimum term, and that its correction of the sentence days later has resulted in him serving an illegal sentence.

The state contends that the court simply corrected a clerical error in reducing the orally pronounced sentence to writing. Having reviewed the plea agreement, the plea colloquy, and the initial sentencing documents, we reject the state’s characterization of the “error” as clerical.

Within days of the original sentencing, the state filed a motion to correct the sentence, noting the omission of the ten-year minimum mandatory term from the ten-year sentence. The trial court granted the motion given the parties’ agreement to correct the sentencing documents. Appellant was not present at the hearing that led to the corrected sentencing documents. Also, though this court granted appellant a belated direct appeal of his judgment and sentence, it appears that the appeal was voluntarily dismissed.

Appellant now argues that the mandatory term, imposed well after the oral pronouncement and the initial written sentence, is illegal and violates double jeopardy. At the same time, appellant seems to acknowledge that he understood and intended to enter into a plea to a mandatory ten-year term.

Nevertheless, we agree with appellant that the corrected sentence is illegal. In reaching this conclusion, we have considered several lines of cases.

Reviewing a direct appeal, the Fifth District recently noted that “[cjourts have reversed and remanded sentencing orders with instructions requiring the imposition of the mandatory minimum sentence when the trial court departed from the mandatory minimum sentencing requirement.” Dunbar v. State, 46 So.3d 81, 83 (Fla. 5th DCA 2010). There, while the judge’s oral pronouncement did not include the mandatory term, the written documents prepared later that day did so.

Dunbar recognized that the imposition of a mandatory minimum sentence under section 775.087, Florida Statutes, is a non-discretionary duty of the trial court when the record indicates that the defendant qualifies for such sentencing. Thus, failure to impose that sentence is reversible error. Concluding that the absent mandatory term renders the sentence “illegal,” the Fifth District explained that the act of imposing the mandatory term after the oral pronouncement did not offend double jeopardy principles. Id. (citing Allen v. State, 853 So.2d 533 (Fla. 5th DCA 2003)).

The Second District considered the issue in the context of a rule 3.850 appeal. See Gardner v. State, 30 So.3d 629 (Fla. 2d DCA 2010). There, a jury found Gardner guilty, and the trial court sentenced him to concurrent eight-year terms for various felonies. This was a downward departure from the Criminal Punishment Code’s guidelines. The judge made the requisite supporting findings and noted the state’s objection. The state had argued that there were insufficient grounds for the downward departure. Following the lunch break, the prosecutor announced that he had forgotten to object on the record that the sentence was below the mandatory minimum ten-year term. There was discussion about the state filing a notice of appeal to correct the sentence. With that, the trial court resentenced Gardner to concurrent ten-year mandatory minimum terms for the armed burglary charges.

Gardner filed a rule 8.850 motion, arguing that his sentences violated double jeopardy. The trial court denied the motion and the Second District reversed. The appellate court reasoned that the sentencing court had no authority to call Gardner back for resentencing because jeopardy attached at the conclusion of the hearing at which the court originally pronounced the sentence. Id. at 630 (citing Ashley v. State, 850 So.2d 1265, 1269 (Fla.2008)). Gardner acknowledged that had the state sought appellate review, the downward departure sentence would have been reversed. 30 So.3d at 631-32.

The problem there was that once the sentence was orally pronounced, Gardner was deemed to have begun to serve that sentence and thus the trial court lacked authority to reopen the proceedings. Id. Absent an appeal by the state, double jeopardy barred increasing “even an illegal sentence.” Id. at 632 (citing Delemos v. State, 969 So.2d 544, 550 (Fla. 2d DCA 2007)). Though noting the trial court’s attempt to serve the interests of judicial economy, the Second District reversed and remanded the case and directed that Gardner be sentenced as the court had orally pronounced, without minimum mandatory terms.

The sentences at issue in Gardner and Dunbar were characterized as “illegal” and “unauthorized” because the trial courts failed to impose the nondiscretionary minimum mandatory term. The trial court had no discretion in those cases because the state had not agreed to waive the mandatory term. See, e.g., State v. Weaver, 3 So.3d 349 (Fla. 3d DCA 2008).

The Fifth District in Dunbar views the sentence as illegal and therefore double jeopardy does not bar the subsequent correction by the trial court. The Second District agrees that the sentence without the mandatory term is illegal, but absent an appeal by the state, the illegality cannot be corrected by the trial court without violating double jeopardy principles. See Gardner, 30 So.3d at 632; cf. also Gartrell v. State, 626 So.2d 1364, 1365 (Fla.1993) (“Because neither an illegal sentence nor a calculation error was involved in this case, rule 3.800(a) was clearly the improper vehicle for the State to use,” and the state should have appealed the departure sentence entered without required written reasons.)

In both Dunbar and Gardner, the trial court lacked discretion to omit the mandatory terms. While we do not comment on the characterization of the resulting sentence in those cases as “illegal” as currently defined by the Florida Supreme Court, see Carter v. State, 786 So.2d 1173, 1181 (Fla.2001), appellant’s case is distinguishable because the trial court was not without discretion given the negotiated plea.

Unlike the trial court, the prosecutor had the authority to dispense with the firearm-based mandatory term at issue. See generally State v. Vanderhoff, 14 So.3d 1185, 1189 (Fla. 5th DCA 2009); § 27.366, Fla. Stat. (2001). While perhaps not intended, this was the effect of the initial plea and sentencing hearing. We have reviewed the plea agreement, the plea colloquy, and the Criminal Punishment Code scoresheet furnished, all of which are silent with respect to a mandatory sentence. As a result, the trial court’s failure to impose that mandatory term initially was not illegal or unlawful, nor was it contrary to the plea terms as stated to the court. See generally Van Buren v. State, 500 So.2d 732 (Fla. 2d DCA 1987). Consequently, the subsequent addition of the mandatory minimum term impermissibly enhanced the sentence to violate double jeopardy principles.

We note that the record reflects that the addition/correction was the result of an agreed order. However, as appellant was not present at that hearing, we cannot presume a knowing waiver of the double jeopardy protection. See Novaton v. State, 634 So.2d 607 (Fla.1994); Torbert v. State, 832 So.2d 203 (Fla. 4th DCA 2002).

Accordingly, we reverse and remand the order that denied appellant’s rule 3.800 motion. On remand, the trial court shall strike the mandatory portion of the sentence and sentence appellant as was orally pronounced.

WARNER, STEVENSON and LEVINE, JJ., concur.


author: LEVINE, J.

text:
    UNIVERSITY MEDICAL CLINICS, INC., and Dr. Samuel H. Sadow, Appellants, v. QUALITY HEALTH PLANS, INC., a Florida Corporation, Appellee.
    No. 4D10-877.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 2011.

      David Steinfeld and Richard H. Leven-stein of Kramer, Sopko & Levenstein, P.A., Stuart, for appellants.
    Monterey Campbell and Kristie Hatch-er-Bolin of Gray Robinson, P.A., Lake-land, and Tina Dunsford and Scott R. Lilly of Gray Robinson, P.A., Tampa, for appel-lee.
   LEVINE, J.

The appellants, University Medical Clinics, Inc. and Dr. Samuel Sadow, appeal the trial court’s order granting temporary in-junctive relief to appellee Quality Health Plans, Inc. We affirm the trial court’s granting of the injunctive relief but remand for entry of an order with clear and definite factual findings to support the temporary injunction.

Appellee Quality Health Plans, Inc. (“QHP”), is a Medicare HMO that contracted with appellant University Medical Clinic (“UMC”), a management service organization. Pursuant to the agreement, UMC would supply physician services as well as business and financial management services such as claims processing, credentialing, and medical management. Appellant Dr. Sadow signed the agreement as president of UMC. The provider agreement prohibited UMC for one year after expiration or termination of the agreement from directly or indirectly encouraging, soliciting, or influencing members of QHP’s health plan to disenroll from QHP or to enroll in a competing health plan. UMC was also prohibited from disclosing the names and personal information of QHP’s members and from using any of QHP’s information to further UMC’s own business interest. The same provider agreement required UMC to provide to QHP the “medical records of any Member within seven (7) business days of a request by” the health plan. The agreement further stated that at the termination of the agreement, UMC was to provide QHP all property and information in its possession belonging to QHP.

QHP terminated the agreement with UMC. QHP notified its members that they would be assigned to new primary care physicians. QHP requested from UMC the members’ medical records, but UMC did not turn over the records. QHP subsequently filed a complaint for temporary and permanent injunctive relief, alleging that appellants were advising QHP members to switch to another Medicare HMO because QHP was in financial distress and that appellants were giving incorrect information about staying with a doctor associated with UMC instead of transferring to a doctor affiliated with QHP. At the hearing for injunctive relief, QHP sought an injunction for solicitation and dissemination of the identities and information of QHP members as well as the production of the medical records of the members. The chief operating officer and chief compliance officer of QHP testified that appellants disseminated a letter to QHP members encouraging them to complain to the Center for Medicare and Medicaid Services (“CMS”) about QHP as well as other communications in which appellants encouraged members to enroll in other health plans. The testimony also acknowledged that correspondence to QHP members must first be submitted and approved by CMS, a step which the evidence indicates was not completed in this case.

The chief operating officer testified to the cost and effort expended in the development of membership lists for the plan. She testified further that appellants’ correspondence and refusal to turn over medical records caused irreparable injury to QHP’s business and reputation. The chief operating officer testified to the continuing violations through the date of the injunction hearing. QHP presented testimony of the ongoing violations. A former patient of UMC, who was also a current member of QHP’s plan, testified to receiving a call from UMC regarding a nurse practitioner who had returned to UMC’s employ to encourage the patient to return to UMC as well. The chief operating officer testified to calls like that being made to encourage QHP members to leave and return to appellants. Finally, she testified that appellants promised to provide to QHP’s members out-of-network services free of charge, as an inducement to the members to leave QHP.

QHP also provided testimony from former employees of UMC. One testified to observing UMC’s office manager call QHP’s patients, telling them “we could still treat them ... that we would not charge them anything.” This former employee further testified that she heard Dr. Sadow and other individuals tell QHP’s plan members that they could change health plans or return to Medicare and that Dr. Sadow said that he would not charge for treatments. Another former employee of UMC stated that she overheard UMC’s office manager “trying to persuade the patients to switch insurance [from QHP] so that they could stay with UMC Clinics.”

Dr. Sadow testified that after receiving notice of termination from QHP, he contacted QHP members by writing “to let them know of their rights per the CMS.” Dr. Sadow explained that the late delivery of the patients’ medical records was due to UMC’s lack of financial means to copy the records.

The trial court granted injunctive relief based on the testimony elicited during the evidentiary hearing, and stated the following in its order:

3. On or about March 30, 2009, QHP and UMC entered into a Comprehensive Provider Agreement (the “Agreement”), a copy of which is before this Court.
4. The Agreement prohibits UMC, for a period of one (1) year after expiration or termination of the Agreement, from directly or indirectly: (a) encouraging, soliciting, forcing or otherwise influencing the members of QHP’s health plan (“QHP’s Members”) to disenroll from QHP or enroll in any competing plan; (b) disclosing the names, addresses, or phone or identification numbers of any of QHP’s Members to any third party, except as required by process of law or regulation; or (c) using any of QHP’s materials, including, but not limited to, lists of QHP’s Members, directly or indirectly, to further the business purposes of UMC, its affiliates, consultants and employees, or any of UMC’s principals. 5. ... The Court finds that Sadow is a principal of UMC, is a party to the above-styled action, and had notice and an opportunity to be heard with respect to QHP’s requests for temporary injunc-tive relief.
11. The nonsolicitation, nondisclosure and non-interference provision of the Agreement are of the type enforceable under Florida Statutes § 542.335, and other applicable law. Henao v. Professional Shoe Repair, Inc., 929 So.2d 723 (Fla. 5th DCA 2006).
13. The Agreement further requires that UMC maintain medical and other records relating to the treatment by its physicians of QHP Members, and that during the term of the Agreement and after, UMC would make such records available to QHP and its Members without charge.
15.QHP, through the years it has been in business, has developed and maintained, at a substantial investment, an ongoing concern that has among its assets the relationships with the QHP Members, the lists of QHP’s Members, the participating provider network, contracts, QHP’s reputation, goodwill and other beneficial property.
16. This Injunction is reasonably necessary to protect QHP’s legitimate business interests.
17. The nonsolicitation, nondisclosure and non-interference provisions of the Agreement are reasonable in terms of time and scope.
18. Based upon Florida law, and the evidence before the Court, QHP is entitled to a presumption, and has further provided evidence, that QHP will suffer irreparable harm and will have no adequate legal remedy if UMC or Sadow further violate the terms of the Agreement. [citations omitted]
19. The public policy of both Florida and Federal law favors providing patients complete copies of medical records in a prompt and timely manner. In addition, the public policy of Florida favors providing reasonable protection to all legitimate business interests established by QHP, the avoidance of misleading or confusing elderly patients, and the preclusion of interference with QHP’s legitimate business efforts to comply with the complex federal regulations inherent to QHP’s operations as a Medicare Advantage health maintenance organization. Accordingly, the entry of this Order does not violate public policy.
20. QHP has established a significant likelihood that QHP will prevail on the merits of QHP’s rights to injunctive relief.

The trial court ruled that it would grant injunctive relief against both UMC and Dr. Sadow. Appellants were prohibited from “encourag[ing], soliciting], recruiting], forcing] or otherwise influencing] QHP’s members to disenroll from QHP, modify his or her contract with QHP, or enroll in any competing health plan.” The trial court also required appellants to provide to QHP and its members “without charge, copies of all medical records of QHP members and other similar information.” As a result of this order, this appeal ensued.

A trial court’s ruling on a motion for temporary injunction shall not be overturned unless there is a clear abuse of discretion. JonJuan Salon, Inc. v. Acosta, 922 So.2d 1081, 1083 (Fla. 4th DCA 2006). Further, a party seeking a temporary injunction must establish that (1) irreparable harm will result if the temporary injunction is not entered; (2) an adequate remedy at law is unavailable; (3) there is- a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest. Foreclosure FreeSearch, Inc. v. Sullivan, 12 So.3d 771, 775 (Fla. 4th DCA 2009).

Appellants argue that the trial court’s order was insufficiently factual, and was, in fact, conclusory. “Every injunction shall specify the reasons for entry. Fla. R. Civ. P. 1.610(c). Clear, definite, and unequivocally sufficient factual findings must support each of the four conclusions necessary to justify entry of a temporary injunction.” Richard v. Behavioral Healthcare Options, Inc., 647 So.2d 976, 978 (Fla. 2d DCA 1994); accord Yachting Promotions, Inc. v. Broward Yachts, Inc., 792 So.2d 660, 663 (Fla. 4th DCA 2001).

The record of the evidentiary hearing indicates that there was an adequate showing justifying injunctive relief. There was evidence of appellants soliciting QHP members and the failure of UMC to provide medical records as required. Like Richard, “[although the record supports the trial court’s holding, the order is flawed.” 647 So.2d at 978. Therefore, we must remand the case to the trial court for the limited purpose of allowing the trial court to amend the injunction so that the order will contain specific factual findings to support the conclusions required to grant injunctive relief.

As to the other issue raised on appeal, appellants claim that the trial court erred in applying the injunction to Dr. Sadow individually and improperly extended the term of the restriction beyond one year after the termination of the agreement. The trial court acted within its discretion in applying the injunction to Dr. Sadow individually, as Dr. Sadow was the president of UMC and personally involved in the violations of the agreement, which were ongoing as of the date of the injunction hearing. See Fla. R. Civ. P. 1.610(c); Bauer v. DILIB, Inc., 16 So.3d 318, 320-21 (Fla. 4th DCA 2009). Additionally, it is within a court’s discretion to run the injunction from the period of entry of the injunction rather than from termination of the agreement. See Capelouto v. Orkin Exterminating Co. of Fla., 183 So.2d 532 (Fla.1966); Mut. Benefits Corp. v. Goldenberg, 709 So.2d 204 (Fla. 4th DCA 1998).

In sum, we find there was sufficient evidence to affirm the trial court’s order for injunctive relief, but we remand for entry of an order delineating the required factual findings. We find the other issue involving the application of the injunction to Dr. Sadow to be without merit.

Affirmed but remanded with instructions.

WARNER and MAY, JJ., concur.

      . The testimony outlined allegations, if proven, which could potentially violate CMS regulations, as well as various statutes, including prohibitions on inducements for the utilization of provider services, such as anti-kickback prohibitions. See 42 U.S.C. §§ 1320a-7b(b)(1)-(2); § 456.054, Fla. Stat.


author: CIKLIN, J.

text:
    Frank MONTE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D08-1437, 4D08-1461.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 2011.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

In this case we explain the need, at each critical stage of criminal proceedings, to offer a pro se litigant court-appointed counsel and the procedures required when there are grounds to question a criminal defendant’s competency to stand trial. We also explore a defendant’s right to self-representation amid concerns of competency-

Frank Monte was charged with two counts of aggravated stalking and one count of violation of a protective injunction. He was tried before a jury on March 10, 2008.

On January 8, 2008, the trial court, on request of defense counsel, appointed an expert to address Monte’s competency to stand trial.

During a January 15, 2008 hearing, the trial court considered Monte’s competency to proceed based on the written evaluation prepared by a single expert appointed by the trial judge but stopped short of making a ruling after defense counsel objected, arguing that the trial court was required to appoint at least two experts to assist with the determination of competency, pursuant to Florida Rule of Criminal Procedure 3.210(b) (2008). Also during this hearing, the trial court granted Monte’s motion to discharge his private attorney because the lawyer was unwilling to adopt Monte’s speedy trial demand. Monte then hired private attorney Michael Gottlieb to represent him.

On January 16 and 18, 2008, the trial court, on its own motion, appointed two more experts to examine Monte. One of the experts found Monte “not competent to proceed” while the other found him “competent to proceed.” The record does not reveal that any additional competency hearing was ever held.

On February 15, 2008, Monte filed a pro se written motion to proceed with standby counsel.

On February 21, 2008, the trial court granted Mr. Gottlieb’s motion to withdraw because Gottlieb could not honor Monte’s request to demand speedy trial. The next day, February 22, 2008, the trial court appointed assistant public defender Brian Greenwald to represent Monte, but Monte declined the representation, reiterating his request for standby counsel and his intention to proceed pro se. On that same day, the trial court conducted a thorough Faretta inquiry and the trial court found Monte to have “intelligently and voluntarily” waived his right to counsel, thereby permitting him to proceed pro se. As Monte requested, the public defender was discharged.

On February 28, 2008, a hearing was conducted on Monte’s pro se motion to compel discovery, demand for speedy trial, and pending motion for standby counsel. The trial court took no action on the discovery and speedy trial “issues” because nothing legally substantive had been filed or was otherwise before the court which would have caused the need for any type of ruling. The trial court denied Monte’s motion for standby counsel without prejudice to renew.

At the commencement of the trial, on March 10, 2008, the trial court recognized that it had previously conducted a Faretta inquiry on February 22 and as such, determined that there was no need to repeat the procedure. At Monte’s request, the trial court appointed assistant public defender Greenwald to act as standby counsel. After hearing and denying Monte’s motion to suppress, the trial immediately began.

During trial, Monte’s harassment, including threatening phone calls and the carrying of a firearm onto the victim’s business property was detailed. These actions were targeted against one individual, his employees and staff, and his eight businesses. This behavior ultimately led to the issuance of a permanent non-expiring restraining order against Monte which Monte continually violated. Five employees of the victim testified to having received hundreds of telephone calls from Monte, including threats to poison the water and blow up the building in which they worked. The victim denied having done anything to Monte and added that threats and slurs were even directed toward the victim’s daughter. Monte told law enforcement officials that the victim had ties with terrorists and that he was being investigated by the FBI for a possible connection with those who perpetrated the September 11, 2001 attack against America.

On March 12, 2008, the jury returned a verdict of guilty on both charges. On April 28, 2008, at sentencing, the trial court adjudicated Monte guilty and sentenced him to five years in prison on the aggravated stalking count plus 864 consecutive days on the injunction violation charge.

Through the services of the public defender, Monte raises three issues on appeal. First, Monte contends that the trial court erred by not renewing the offer of assistance of counsel at certain critical stages of the proceedings. Second, he asserts that the trial court erred in failing to conduct a competency hearing both before trial and sua sponte during trial, when Monte argues, it should have become reasonably apparent to the trial judge that such a hearing was necessary. Finally, Monte argues that the trial court erred in permitting self-representation without first determining that Monte was competent to make the decision to waive counsel.

Renewal of Offer of Counsel at Critical Stages

A trial court must renew an offer for assistance of counsel to an unrepresented defendant at each critical stage of a trial:

A defendant’s waiver of the right to counsel applies only to the stage of the proceedings during which the waiver is made. “Where the right to counsel has
been properly waived, the State may proceed with the stage in issue; but the waiver applies only to the present stage and must be renewed at each subsequent crucial stage where the defendant is unrepresented.”

Sproule v. State, 719 So.2d 349, 350 (Fla. 4th DCA 1998) (citation omitted); see also Fla. R.Crim. P. 3.111(d)(5). A “crucial stage” is “any stage that may significantly affect the outcome of the proceedings.” Traylor v. State, 596 So.2d 957, 968 (Fla.1992); see also Segal v. State, 920 So.2d 1279, 1280 (Fla. 4th DCA 2006) (“Although a full Faretta inquiry need not be conducted at every stage of criminal proceedings, once counsel has been waived under Faret-ta, the offer of assistance of counsel must be renewed by the court at each subsequent stage of the proceedings.”).

Here, a Faretta inquiry was made on February 22, 2008. The hearing on Monte’s motion to suppress and the beginning of trial both occurred on March 10, 2008. Sentencing was conducted on April 23, 2008. Monte specifically claims that the trial court erred in not renewing an offer of counsel before the hearing on his motion to suppress, the start of trial, and sentencing.

The need to renew an offer of assistance of counsel is not dependent on the time between an initial offer and a subsequent critical stage, but rather is dependent on whether there are any intervening critical stages. For example, in Lamb v. State, 535 So.2d 698, 699 (Fla. 1st DCA 1988), an offer of counsel three weeks before trial did not require a renewal where there were no intervening proceedings. The court explained that “[t]he pretrial hearing on the waiver of counsel addressed [defendant’s] competence and ability to appear pro se at the trial stage, and the fact that the trial occurred three weeks later is immaterial. The rule does not place a time limitation on an offer and waiver of counsel.” Id. However, if between the initial offer of counsel and trial there are other critical stages, it would be error to not renew the offer of counsel before trial. See Sproule, 719 So.2d at 351 (“[U]nlike Lamb, where there were no intervening proceedings during the three weeks that passed between the pretrial hearing and trial, here, the record indicates two other appearances before the court where the offer was not renewed.”).

After the Faretta inquiry took place on February 22, 2008 and before the March 10, 2008 trial (and hearing on the motion to suppress on the morning of the trial), there was a hearing on February 28, 2008. At this February 28 court appearance, the trial court discussed Monte’s motion to compel discovery, a demand for speedy trial, and a motion for standby counsel. While this February 28 court appearance can certainly be categorized as an intervening proceeding, the record indicates that nothing of legal substance existed regarding any discovery and speedy trial matters. Further, the trial court made it clear to Monte that the issue of standby counsel would be revisited at the March 10 trial.

At the commencement of court proceedings on March 10 one of the first things discussed was Monte’s self-representation. Monte indicated that he was “still prepared to go pro se with standby counsel.” After a brief colloquy, the trial court permitted Monte to represent himself, explaining that:

I have already conducted a Faretta inquiry as of February 22, 2008.... [T]he court finds that none of the facts have changed which would require another Faretta inquiry, that was done February 22, 2008. I do find that the defendant is able to go forward and represent himself having intelligently and voluntarily waived his right to counsel.

Monte’s comments indicated his knowing intention to represent himself and his intelligent understanding of proceeding pro se. Conducting another Faretta inquiry or renewing an offer of counsel at this juncture would have been superfluous and legally unnecessary. See Knight v. State, 770 So.2d 663, 670 n. 6 (Fla.2000) (“A defendant’s right to have court-appointed counsel discharged and right to represent himself becomes meaningless and a source of gamesmanship if the trial court has to offer counsel to the defendant each time he appears in court.”). In addition, Monte was, as he requested, appointed standby counsel. “Standby counsel is a constant reminder to a self-representing defendant of his right to court-appointed counsel at any stage of the proceeding.” Id. at 670. Therefore, a renewal of an offer of counsel was not required in this situation.

The trial ended on March 12, 2008 and sentencing was conducted on April 23, 2008. Prior to sentencing, the trial court did not renew an offer of counsel.

“Sentencing is a critical stage of a criminal proceeding, and a trial court must renew the offer of counsel even if the defendant has previously waived counsel.” Beard v. State, 751 So.2d 61, 62 (Fla. 2d DCA 1999). “[E]ven if a defendant does not request appointment of counsel, this omission is not considered a knowing waiver of the right to counsel” before sentencing. Hardy v. State, 655 So.2d 1245, 1248 (Fla. 5th DCA 1995).

The trial court erred in failing to renew an offer of counsel before Monte’s sentencing. See Kepner v. State, 911 So.2d 1256, 1258 (Fla. 4th DCA 2005) (“[T]he court’s failure to renew the offer of counsel prior to sentencing was error requiring reversal and resentencing.”); Bowman v. State, 550 So.2d 544, 544 (Fla. 4th DCA 1989) (“[W]e reverse appellant’s sentence since it was error not to renew the offer of assistance of counsel to him at sentencing.”); Morgan v. State, 504 So.2d 504, 505 (Fla. 4th DCA 1987) (finding the trial court erred in failing to renew the offer of assistance of counsel prior to the defendant’s final probation revocation hearing).

Not only was renewal of an offer of counsel necessary at this critical stage, but we believe it is worth noting that there was no indication made on the record that Monte was accompanied by his standby counsel at sentencing. Cf. McCarthy v. State, 731 So.2d 778, 781 (Fla. 4th DCA 1999) (“Here, the trial court appointed standby counsel ... who was available to the defendant for consultation for much of the trial and at the sentencing hearing. The court offered [defendant] the opportunity to consult with [standby counsel] before the sentencing hearing began and again after the state had argued.”).

The trial court erred in not renewing an offer of counsel to Monte before the sentencing hearing began. We therefore reverse and remand for the trial court to conduct a new sentencing hearing that includes an offer of counsel prior to the hearing. Should Monte decline the court’s offer, the court shall make an additional inquiry in accordance with Faretta.

Competency Proceedings

On January 8, 2008, the trial court, on request of counsel, appointed an expert to address Monte’s competency. A licensed psychologist evaluated Monte on January 11, 2008 and found him “competent to proceed.” A hearing occurred on January 15, 2008 regarding Monte’s competency and the trial court indicated that it believed that Monte was competent to proceed based on this single psychological evaluation. Monte’s defense attorney, however, challenged the trial court’s decision, arguing that a minimum of two (but no more than three) experts were required to assist the court as to a determination of competency, pursuant to Florida Rule of Criminal Procedure 3.210(a), (b) (2008).

On January 16 and 18, 2008, the trial court sua sponte appointed two more experts to conduct competency examinations. One of the two additional licensed psychologists found Monte “not competent to proceed,” while the other found him “competent to proceed.”

“Generally ... the trial court has no independent obligation to hold a competency hearing if there is nothing to alert the court that the defendant may lack competency.” Blackmon v. State, 32 So.3d 148, 150 (Fla. 4th DCA 2010). Once the court finds that it has a “reasonable ground to believe that [the] defendant is not mentally competent to proceed, the court shall immediately enter an order setting a time for a hearing to determine the defendant’s mental condition.” Cochran v. State, 925 So.2d 370, 371 (Fla. 5th DCA 2006).

Here sufficient grounds existed to question Monte’s competency to stand trial. The initial competency determination was requested by defense counsel. Additionally, one of Monte’s previous attorneys adamantly told the trial court, “I’ve never seen a client less competent.” However, while the trial court did enter orders causing Monte to be examined by three different experts, the mandatory subsequent competency hearing never occurred.

And, once a trial court has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to conduct a competency hearing. See Mairena v. State, 6 So.3d 80, 85 (Fla. 5th DCA 2009) (“If defense counsel, the state, or the trial court has reasonable grounds to suggest that a defendant is not mentally competent to proceed, the court must conduct a competency hearing.”); Carrion v. State, 859 So.2d 563, 565 (Fla. 5th DCA 2003) (“There does not appear to be any discretion on the part of the trial court once it makes the determination that there are reasonable grounds to believe that the defendant is not mentally competent. If the trial judge has reasonable grounds to believe that a criminal defendant is not competent to proceed, then the court must conduct a competency hearing.”).

During the competency hearing, “[t]he experts preparing the reports may be called by either party or the court, and additional evidence may be introduced by either party. The experts appointed by the court shall be deemed court witnesses whether called by the court or either party and may be examined as such by either party.” Fla. R.Crim. P. 3.212(a). In this case, no such opportunities were provided.

Generally, the failure to conduct a competency hearing requires reversal and remand for retrial after a determination of competency is made. See Tingle v. State, 536 So.2d 202, 204 (Fla.1988).

However, in this matter, a retroactive determination of competency may be possible and legally permissible because three pre-trial psychological evaluations have in fact already been performed and the records associated with those evaluations may remain available for review and consideration. This is in line with the holding of the Florida Supreme Court in Mason v. State, 489 So.2d 734, 737 (Fla.1986):

In spite of the problems involved in conducting a nunc pro tunc competency evaluation ..., we find that under these circumstances the “court may find that there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing.” The experts here will not have to rely upon a cold record or recent examination of the appellant, and the chances are therefore decreased that such a nunc pro tunc evaluation will be unduly speculative.
... [N]o per se rule exists in Florida forbidding a nunc pro tunc competency determination regardless of the surrounding circumstances.

(citations omitted). The fact that the experts who evaluated Monte and the records from their evaluations may still be available, allows this court to remand for a retroactive competency hearing and not a new trial. See Brown v. State, 449 So.2d 417, 417 (Fla. 3d DCA 1984) (remanding for nunc pro tunc evaluation when original experts were available to testify). If, however, those experts and their full and complete records are not available or appellant’s competency cannot be sufficiently established retrospectively, the trial court is left with no other alternative but to conduct a new trial.

We, therefore, reverse and remand for the trial court to conduct a nunc pro tunc competency hearing if the experts who evaluated Monte and their reports are available. If not available — or if Monte’s competency to stand trial cannot be retroactively determined — the trial court shall afford Monte a new trial.

The Right of Self-Representation Amid Concerns of Competency

Finally, Monte argues that the trial court reversibly erred in allowing him to represent himself without first determining whether he was competent to make the decision to waive counsel and thereafter competent to represent himself.

The “standard for determining competency to waive the right to an attorney is the same as the standard for determining competency to stand trial.” Muhammad v. Sec’y, Dep’t of Corr., 554 F.3d 949, 956 (11th Cir.2009) (citing Godinez v. Moran, 509 U.S. 389, 396-97, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)). Thus, if the trial court is able to retroactively determine that Monte was competent to stand trial, this determination would also suffice to support the trial court’s earlier presumption of competence during its Faretta inquiry that occurred only a few weeks before trial. See Muhammad v. State, 494 So.2d 969, 974-75 (Fla.1986) (finding that a separate competency hearing was not required prior to a Faretta inquiry where the trial court had already found defendant competent to stand trial less than a month before the Faretta hearing).

Monte also argues that in light of Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), the trial court should not have permitted him to waive his right to counsel because he was suffering from a mental illness to the point that he was not competent to conduct trial proceedings by himself. Edwards, however, only permits states to limit a defendant’s right to self-representation. The decision does not grant any substantive rights to defendants.

The Florida Supreme Court has amended the Florida Rules of Criminal Procedure to require that a trial court deny a defendant’s request to represent himself or herself if the defendant suffers “from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by his or her self.” Fla. R.Crim. P. 3.111(d)(3). These changes, however, became effective on August 27, 2009, long after Monte’s trial. In re Amendments to Florida Rule of Criminal Procedure 3.111, 17 So.3d 272 (Fla.2009). We decline to apply the 2009 amendment to rule 3.111(d)(3) retroactively-

Reversed and remanded with instructions.

TAYLOR, J., and BLANC, PETER D., Associate Judge, concur.

      . The second count of aggravated stalking was nolle pressed prior to trial.

      . A Faretta inquiry is one where a judge determines whether a litigant is voluntarily, knowingly, and intelligently waiving his or her right to counsel. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . The following discussion took place:
      COURT: The — Brian [public defender Green-wald], tell me when the Faretta hearing was.
      MONTE: We're going to go through the Far-etta hearing again?
      COURT: Mr. Monte, I can handle these proceedings. Just wait until I proceed.
      MONTE: Okay.
      COURT: Mr. Monte, are you asking me to discharge the public defender’s office in as much as they are not adopting your demand for speedy trial; is that what you’re asking me to do, sir?
      MONTE: That seems to be the on-going saga.
      COURT: Is that a yes, Mr. Monte? Let's try using yes and no.
      MONTE: Yes.
      COURT: Is that a yes?
      MONTE: Yes.
      COURT: Okay. The Court is dis — Mr. Greenwald?
      GREENWALD: Yes, Judge?
      COURT: The court is discharging the public defender's office. I'm appointing you as standby counsel, we are going to be going today.

      . This is in stark contrast to the trial court’s previous and dutiful on-the-record notations indicating that standby counsel was present in the courtroom. Prior to the sentencing portion of the trial, the trial judge even went so far as to note for the record each time when Monte was engaged in private discussions with his standby counsel.

      . We are aware that the First District Court of Appeal has questioned whether the Florida Supreme Court has subsequently overruled its Mason holding that “no per se rule exists in Florida forbidding a nunc pro tunc competency determination regardless of the circumstances.” See Rogers v. State, 16 So.3d 928, 931 n. 5 (Fla. 1st DCA 2009). The First District based its doubt on a comment made by Justice Pariente in a footnote to her concurring opinion in Tennis v. State, 997 So.2d 375 (Fla.2008). Justice Pariente noted that the competency hearing held in that particular case after the guilt phase of the trial was not relevant in establishing if the defendant had been competent to stand trial “because a determination of competency cannot be retroactive.” Id. at 381 n. 7 (Pariente, J., concurring) (citing Tingle v. State, 536 So.2d 202, 204 (Fla.1988)). We believe, however, that in citing to Tingle, Justice Pariente was only referring to the general rule as applied to the facts in Tennis. See Tingle, 536 So.2d at 204 ("[A] hearing to determine whether a defendant was competent at the time he was tried generally cannot be held retroactively.”) (emphasis added). The use of the word "generally” by the supreme court in Tingle implies that there are exceptions. Thus, Tingle, if anything, affirmed the existence of the exception the Florida Supreme Court had previously explained in Mason.


author: GERBER, J.

text:
    Dave WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5219.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 2011.

      Dave Watson, Bonifay, pro se.
    No brief filed for appellee.
   GERBER, J.

The issue presented is whether the circuit court erred in entering an order summarily denying the appellant’s motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We find that the court erred by not attaching to its order any record which conclusively refuted the appellant’s claim. Therefore, we reverse and remand for further proceedings on the motion.

The motion indicates that the appellant was on probation for a 1998 case when he committed a new crime in 2007. The appellant admitted to the violation of probation and pled no contest to the new crime. The circuit court sentenced the appellant on both cases to seven years of incarceration to run concurrently. The defendant was entitled to 568 days of credit for time served on the 1998 case and 174 days of credit for time served on the 2007 case. The appellant alleged in his motion, however, that the circuit court awarded him only 174 days of credit for time served on the 1998 case. The appellant therefore requested that the court award him 568 days of credit for time served on the 1998 case.

The state’s response alleged that the circuit court awarded the appellant 568 days of credit for time served on the 1998 case and 174 days of credit for time served on the 2007 case. The state further alleged that the appellant was “complaining] that the Department of Corrections is only crediting him with the lesser amount of credit for time served” on the 1998 case. Therefore, the state alleged that “the [appellant’s] remedy, if any, is to pursue any administrative or other remedies he may have against the Department.”

The circuit court denied the appellant’s motion as follows: “Based upon the argument presented by the State, in the attached response, this Court finds that the [appellant] was awarded the proper credit for time served on each of his two cases.” The court did not attach any document in support of its order other than the state’s response. This appeal followed.

We are compelled to reverse. When summarily denying a rule 3.800(a) motion, a circuit court is required to attach to its order the record or records which conclusively refute the movant’s claims. Moncher v. State, 23 So.3d 873, 874 (Fla. 4th DCA 2009). Here, the circuit court did not attach to its order perhaps the only document which could have conclusively refuted the appellant’s claim, that is, the sentencing order for the 1998 case. The sentencing order would show the number of days of credit for time served which the circuit court actually reported to the Department of Corrections on the 1998 ease. If the sentencing order shows that the appellant is entitled to only 174 days of credit for time served on the 1998 case, then the sentencing order is in error, and the circuit court should have granted the motion to correct illegal sentence and entered a corrected sentencing order showing that the appellant is entitled to 568 days of credit for time served on the 1998 case. See Williams v. State, 957 So.2d 600, 603 (Fla.2007) (a written sentence which conflicts with an oral pronouncement of sentence is an illegal sentence, and a motion alleging such a discrepancy is cognizable in a rule 3.800 proceeding). If the sentencing order shows that the appellant is entitled to 568 days of credit for time served on the 1998 case, then the sentencing order is correct, and the circuit court should have attached a copy of the sentencing order to its order denying the motion to correct illegal sentence. In that event, the appellant’s remedy would be to pursue any administrative remedies he may have with the Department of Corrections if the Department is refusing to provide him with the proper amount of credit. Salazar v. State, 995 So.2d 1058, 1059 (Fla. 4th DCA 2008).

Therefore, we remand for the circuit court to review the sentencing order from the 1998 case and enter a new order on the appellant’s motion to correct illegal sentence pursuant to one of the two options described in the previous paragraph.

Reversed and remanded.

MAY and DAMOORGIAN, JJ„ concur.


text:
    Jarrod JUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5284.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 2011.
    Rehearing Denied Feb. 15, 2011.
    Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

We find that the appellant is entitled to review of the circuit court’s denial of his motion to suppress. See Diaz v. State, 34 So.3d 797, 801 (Fla. 4th DCA 2010) (“ ‘[WJhere a motion tests the suppression of contraband which the defendant is charged with possessing, the motion is usually considered dispositive in the case.’ ”) (citations omitted). We agree with the circuit court’s finding that the named informant’s statements were against his penal interests and constituted sufficient indicia of reliability, thereby supporting the finding of probable cause for the issuance of the search warrant. See Hernandez v. State, 538 So.2d 137, 139 (Fla. 3d DCA 1989) (“Because the named informant’s statement was against his penal interest, it constitutes a sufficient indi-cia of reliability upon which the magistrate could assess the veracity of the tip, and supports the magistrate’s finding of probable cause for the issuance of the search warrant.”) (citing, inter alia, U.S. v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971)).

Affirmed.

HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Charles Kevin HERRIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3175.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2011.
    Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Charles K. Herrin challenges his conviction for misdemeanor simple battery, raising four points. We address the latter two of those issues: (1) alleged error in sentencing appellant to sex offender mental health treatment; and (2) a scrivener’s error appearing in the order of probation. We reverse and remand to correct the scrivener’s error and affirm in all other respects.

On June 3, 2009, the State charged Her-rin by information with sexual battery with slight force upon a person twelve years of age or older. A jury ultimately acquitted appellant of sexual battery and of the lesser-included offense of attempted sexual battery, but found him guilty of the lesser-included offense of misdemeanor simple battery.

At the sentencing hearing, the trial judge determined that it would be “illegal ... to take into account any of the allegations of sexual battery[,]” because “the jury ... found [that offense] did not occur.” Rejecting the State’s recommendation of the maximum penalty, the court nonetheless asserted that “what the jury found [appellant] did is more offensive than a run-of-the-mill battery.” Thus persuaded, the court sentenced Herrin to 30 days in county jail with credit for time served and ordered appellant to undergo a “psychological evaluation and any recommended treatment.” Defense counsel objected, asserting the “State and the PSI are specifically asking for a type of offense counseling for which my client has been acquitted.” Counsel continued, “That is improper, and what they are asking you to do, sir, is to sentence [appellant] in an illegal manner.”

Herrin argues first that the trial court erred in sentencing him to “sex offender mental health treatment,” which, he contends, bears no relation to the crime of which he was convicted. Appellant directs our attention to G.F. v. State, where the trial court imposed sex offender treatment as a special condition of probation on a juvenile found delinquent for the offense of battery. See 927 So.2d 62, 62-63 (Fla. 5th DCA 2006). Finding that the special condition “bears no relationship to the offense of which [defendant] was adjudicated delinquent[,]” the Fifth District reversed and ordered that the sex offender treatment program be stricken from the order of probation. See id. at 64-65 (citing A.M.B. v. State, 917 So.2d 239 (Fla. 5th DCA 2005)).

Though the instant case presents facts similar to those found in G.F., Herrin has not identified a need for relief. Nowhere in the record does it appear that the trial court actually sentenced appellant to “sex offender” counseling or treatment. The presentence investigation (PSI) recommends, in the event appellant is placed on probation, the completion of “sex offender counseling.” The court, however, simply required a psychological evaluation and any “recommended treatment.” The State’s recommendation notwithstanding, this issue is moot because we do not read the record as establishing that the court imposed sex offender treatment as a mandatory special condition of probation. We expressly do not read the PSI as the “psychological evaluation” ordered by the sentencing court.

Herrin also alleges the court erred by indicating in the order of probation that appellant entered a plea of nolo contendere to the charge of battery. Having reviewed the order, we observe that appellant has identified a mistake as argued-the order should read that Herrin was convicted of misdemeanor simple battery following a trial by jury. Accordingly, we REMAND the order of probation for appropriate correction of this error. See Tucker v. State, 15 So.3d 932, 932 (Fla. 4th DCA 2009) (remanding the matter to the circuit court to “correct the scrivener’s error in the judgment of conviction, which indicates that appellant entered a plea of nolo con-tendere, rather than correctly showing that appellant was found guilty after a jury trial”). The matter is AFFIRMED in all other respects.

KAHN, LEWIS, and CLARK, JJ., concur.


text:
    Carolyn EDWARDS, Appellant, v. Sandra LANDSMAN and Auto Showcase Motorcars of Palm Beach, LLC, Appellees.
    No. 4D09-1387.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 2011.

      Raymond G. Ingalsbe of Raymond G. Ingalsbe, P.A., Palm Beach Gardens, for appellant.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Richard A. Ivers of the Law Offices of Richard Ivers, Coral Springs, for appellee Sandra Landsman.
   CIKLIN, J.

In this matter we decide whether the trial court erred in granting a motion to dismiss Carolyn Edwards’s third-party complaint for conversion against Sandra Landsman, the owner/managing agent of Auto Showcase Motorcars of Palm Beach, LLC (“Auto Showcase”). The trial court, without explanation, dismissed Edwards’s third-party complaint against Landsman along with all of her counterclaims against Auto Showcase. Because we hold that Edwards’s third-party complaint against Landsman alleged sufficient facts to support a claim for conversion, we reverse the trial court’s order dismissing the third-party complaint and remand for further proceedings not inconsistent with this opinion.

Edwards purchased a 2004 Land Rover Range Rover from Auto Showcase on January 17, 2008. The parties disagree as to the terms of the agreement connected to the purchase.

On April 2, 2008, Auto Showcase filed a complaint for replevin and breach of contract alleging that Edwards had entered into a conditional sales contract with Auto Showcase for the purchase of the vehicle. Pursuant to this agreement, Auto Showcase delivered the vehicle to Edwards conditioned on her agreement to return the vehicle if she was not approved for financing. As purported evidence of the conditional nature of the agreement, Auto Showcase attached to its complaint a document titled “Spot Delivery Agreement” which was signed by both Edwards and a representative of Auto Showcase. Auto Showcase alleged that although Edwards had been preapproved for financing based on her representations in a credit application, the lender was unable to verify the representations and withdrew its approval. According to Auto Showcase, it then contacted Edwards and requested that she return the vehicle. When she refused, Auto Showcase filed suit for replevin and breach of contract.

After a hearing on Auto Showcase’s re-plevin order to show cause, the trial court issued an order directing the clerk of the court to issue a prejudgment writ of re-plevin.

In response, Edwards filed her answer including affirmative defenses, counterclaims, and a third-party complaint. In her pleading, Edwards alleged that she had visited Auto Showcase on January 16, 2008 and negotiated the purchase of the used vehicle. She recalled signing several papers prepared by Auto Showcase but refused to take delivery of the vehicle until the dealership assured her that her financing was approved. The next day, January 17, someone from Auto Showcase phoned Edwards and told her that the financing was fully approved and that she should return to the dealership to sign the remaining documents. Edwards returned to Auto Showcase, signed documents, paid a $2500 down payment, and accepted delivery of the vehicle.

Edwards further alleged that, about a week later, a representative from the dealership phoned her and requested that she bring in a W-2 statement. Edwards refused because she had a signed contract showing the sale was final. Edwards alleged that the representative then told her that for $500 he could help her obtain falsified tax documents, and that when she refused this offer, the dealership representative demanded the return of “our vehicle” or else Auto Showcase would have Edwards arrested for grand theft.

In Edwards’s counterclaim and third-party complaint, she described Sandra Landsman as being an owner and a “managing agent” of Auto Showcase. Edwards alleged that Landsman herself phoned Edwards on several occasions and demanded that Edwards bring back “our truck” or risk being arrested. Edwards also claimed that it was Landsman who directed other Auto Showcase employees to call Edwards and threaten to have her arrested if she did not return the vehicle. Edwards further alleged that Landsman hired an investigator or some other third party to talk to Edwards’s son and his college football coach in Michigan, accusing Edwards’s son of having stolen the Land Rover, even though Edwards and not her son had possession of the truck at the time.

Edwards’s amended answer to Auto Showcase’s replevin complaint included a counterclaim with four counts and one third-party complaint. The count most relevant to the instant appeal alleged a conversion of the Land Rover and of Edwards’s down payment. Edwards included a third-party complaint against Landsman and named her in the conversion counterclaim as permitted by Florida Rule of Civil Procedure 1.170(h).

In her counterclaim/third-party complaint, Edwards alleged her ownership of the Land Rover based on an attached retail installment sale contract (RISC) signed by both Edwards and a representative of Auto Showcase. The RISC contained a merger clause and language indicating that the agreement contemplated a completed sale. In her answer to Auto Showcase’s complaint, Edwards claimed to have never seen the “Spot Delivery Agreement,” and alleged that if she did in fact sign the agreement, her signature was obtained by deception.

Auto Showcase and Landsman filed a motion to dismiss the counterclaim/third-party complaint. In their motion to dismiss, Auto Showcase and Landsman argued that the complaint against Landsman should be dismissed because Edwards’s cause of action against Landsman was based solely on allegations of false statements made in pleadings. They also argued that the claim for conversion should be dismissed because the trial court must consider the “Spot Delivery Agreement” attached to Auto Showcase’s original complaint as proof of the conditional nature of the transaction thereby negating a conversion.

The trial court, without explaining its reasoning, granted Auto Showcase’s and Landsman’s motion and dismissed all counts of Edwards’s counterclaim as well as her third-party complaint against Landsman. The trial court also entered a final judgment with respect to Landsman. Edwards now appeals the final judgment dismissing her third-party complaint against Landsman.

At the time this appeal was filed, Auto Showcase’s replevin and breach of contract actions remained pending in the trial court. Edwards acknowledges that the conversion counterclaim against Auto Showcase (the claim to which she joined Landsman as a third-party defendant) is a compulsory counterclaim. Ordinarily, the dismissal of a compulsory counterclaim is not appealable until a final judgment is rendered on the main claim. See Palm Hill Villas Homeowners Ass’n v. Rose-Green, 855 So.2d 83, 84 (Fla. 4th DCA 2003). In this case, however, the dismissal of the third-party conversion complaint left no pending claims against Landsman such that its dismissal was a final order as to her and was appealable. See Niesz v. R.P. Morgan Bldg., Co., 401 So.2d 822, 823 (Fla. 5th DCA 1981).

A trial court’s order granting a motion to dismiss is reviewed de novo. See Gomez v. Fradin, 41 So.3d 1068, 1070 (Fla. 4th DCA 2010). “In reviewing an order granting a motion to dismiss, this court’s ‘gaze is limited to the four corners of the complaint.’ ” Goodall v. Whispering Woods Ctr., L.L.C., 990 So.2d 695, 697 (Fla. 4th DCA 2008) (citation omitted). “In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. A court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true. All reasonable inferences must be drawn in favor of the pleader.” Taylor v. City of Riviera Beach, 801 So.2d 259, 262 (Fla. 4th DCA 2001) (citations omitted).

Conversion is an “ ‘act of dominion wrongfully asserted over another’s property inconsistent with his ownership therein.’ ” Warshall v. Price, 629 So.2d 903, 904 (Fla. 4th DCA 1993) (citation omitted). Thus, to state a claim for conversion, one must allege facts sufficient to show ownership of the subject property and facts that the other party wrongfully asserted dominion over that property.

Florida law permits a counterclaim for conversion where the defendant in a replevin action alleges that the replevin was wrongful even after the trial court grants a prejudgment writ of replevin. See Int’l Fid. Ins. Co. v. Prestige Rent-A-Car, Inc., 715 So.2d 1025, 1029 (Fla. 5th DCA 1998) (“Causes of action for prejudgment writ of replevin and wrongful replev-in are separate and distinct. Even when a party has employed the proper procedure in obtaining a prejudgment writ of replev-in, there can still be a subsequent finding that the replevin was wrongful.”). Although Florida’s replevin statutes provide a remedy for a defendant who ultimately prevails on a final judgment after a prejudgment replevin writ had deprived the defendant of possession throughout the proceedings, the statutes also provide that they “shall not preclude any other remedies available under the laws of this state.” §§ 78.20-21, Fla. Stat. (2010). Florida case law suggests — and we agree — that such remedies include a conversion counterclaim to the replevin action. See Rem-Con Commc’ns, Inc. v. United Am. Bank of Memphis, 668 So.2d 320, 321-22 (Fla. 2d DCA 1996) (reversing a summary judgment against a defendant on a counterclaim for wrongful repossession/conversion to a replevin claim); Lease Fin. Corp. v. Nat’l Commuter Airlines, Inc., 462 So.2d 564, 567 (Fla. 3d DCA 1985) (“Thus, [the defendant] can also take advantage of any remedies available under ... general tort law as it exists in this state.”).

Here, Edwards alleged sufficient facts to support her claim of ownership of the replevied vehicle. Edwards alleged that she returned to the dealership and took possession of the Land Rover only after the dealership assured her that financing had been fully and finally approved without conditions. Edwards attached to her counterclaim and third-party complaint a copy of the RISC signed by both herself and a representative from Auto Showcase. The allegations and the attached RISC are sufficient to support Edwards’s claim of ownership of the vehicle.

Edwards also alleged sufficient facts to support her claim that both Auto Showcase and Landsman wrongfully exercised dominion over the property inconsistent with Edwards’s ownership. Edwards alleged that Auto Showcase first tried to gain possession of the vehicle by contacting Edwards on several occasions and threatening to have her arrested if she did not give them the vehicle. When this failed, Edwards alleged that Auto Showcase and Landsman then filed a “wrongful” replevin action and gained possession and control of the vehicle pending final adjudication of the claim after obtaining a prejudgment writ of replevin. These actions would constitute wrongful dominion over Edwards’s property.

Under Florida law, “an officer of a corporation who commits or participates in a tort, whether or not it is in furtherance of corporate business and whether or not it is by authority of the corporation, is liable to the injured party whether or not the corporation is also liable.” P.V. Constr. Corp. v. Kovner, 538 So.2d 502, 504 (Fla. 4th DCA 1989). As such, Edwards’s third-party complaint alleged sufficient facts regarding Landsman’s participation in the complained-of wrongdoing to support a claim against her individually.

Landsman asserts that the trial court properly dismissed the third-party complaint against her because the acts alleged to implicate her as a managing agent in the conversion were all protected by the doctrine of litigation immunity. Under this doctrine, statements made during the course of judicial proceedings are privileged and cannot be made the basis of a subsequent cause of action. See Fridovich v. Fridovich, 598 So.2d 65, 66 (Fla.1992). Although the doctrine traditionally applies to defamatory words used during litigation, the Florida Supreme Court has extended the doctrine to “any act occurring during the course of a judicial proceeding.” Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla.1994).

Although Landsman is correct in her assertion that based on Levin, a cause of action could not be based solely on allegations that she signed the complaint for replevin and made false statements in the pleading, her argument is a red herring. Edwards has alleged far more than just Landsman’s filing for a writ of replev-in. Edwards alleged that Landsman, herself, called Edwards on “at least four occasions” demanding the return of the vehicle and threatening Edwards with arrest. Edwards also alleged that Landsman had directed one of the dealership’s employees to make similar demands, and that Landsman had hired someone to contact Edwards’s son and his college football coach in Michigan to demand the return of the vehicle. Furthermore, Edwards alleged that it was Landsman’s intent to defraud Edwards by representing that the dealership was selling and financing the vehicle to her. Since this alleged conduct did not occur “during the course of a judicial pro-eeeding,” none of these actions would be protected by the doctrine of litigation immunity. See Levin, 639 So.2d at 608.

Landsman also argues that we should affirm the trial court’s dismissal of the third-party complaint because Edwards improperly joined Landsman. Landsman argues that Edwards could join Landsman only in a claim for “indemnity, contribution, or subrogation.” See UTC Indus., Inc. v. Presidential Fin. Corp., 976 So.2d 92, 93-94 (Fla. 3d DCA 2008). While this would be true if Edwards had joined Landsman under Florida Rule of Civil Procedure 1.180(a), here Landsman joined Edwards under Rule 1.170(h) which permits a party to add additional parties to a counterclaim when the “presence” of the additional party is “required to grant complete relief.”

Because Edwards pled sufficient facts to support a claim for conversion against Landsman, the trial court erred in dismissing the third-party complaint. To support a conversion claim against Landsman, Edwards was required to assert all of the facts that are required for a conversion claim against Auto Showcase plus the additional allegation that Landsman was personally involved in the commission of the tort.

Reversed and remanded with instructions.

TAYLOR, J., and TOWBIN SINGER, MICHELE, Associate Judge, concur.

      . "Spot delivery” is a practice in the motor vehicle sales industry where a seller-financed sale is contingent on the assignment of the loan to a third party. See King v. King Motor Co. of Fort Lauderdale, Inc., 900 So.2d 619, 620 (Fla. 4th DCA 2005). If the seller is unable to assign the loan to a third party, then the purchaser must return the vehicle. In King, this Court held that Florida law does not forbid, and at least "contemplate[s],” such conditional sale agreements. Id. at 623.

      . Count I was for conversion; Count II was for violations of various sections of Florida’s adoption of the Uniform Commercial Code (Chapter 679, Florida Statutes); Count III was for violation of the Equal Credit Opportunity Act; and Count IV was for violation of the Fair Credit Reporting Act (Count IV was added to Edwards’s Amended Answer).

      . We might also have had jurisdiction to consider the dismissal of the counterclaim against Auto Showcase to "avoid two appeals from the same decision.” Travelers Express, Inc. v. Acosta, 397 So.2d 733, 736 (Fla. 3d DCA 1981); Berkan v. Brown, 231 So.2d 871, 872 (Fla. 3d DCA 1970) ("We conclude that since the judgment on the counterclaim and additional party complaint is final as to one party, it should be appealable as to all.”). Edwards, however, did not request that we also consider the dismissal of the counterclaim for conversion against Auto Showcase. As such, we address only the dismissal of the third-party complaint against Landsman.

      . As such, while not specifically raised on appeal, we recognize that the trial court’s order dismissing the conversion counterclaim against Auto Showcase is legally inconsistent with this opinion. Thus, on remand, the trial court should reconsider its dismissal of Edwards's conversion counterclaim against Auto Showcase such that its order is consistent with this opinion.


text:
    SOMEPLACE NEW, INC., a Florida corporation, Donald Edward Young, Jr., and Carolyn Jane Young, Appellants, v. Christiane FRANCOIS and Prime Plaza Boynton Beach, LLC, a Florida limited liability company, Appellees.
    No. 4D09-4598.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 2011.

      Christopher J. Rush of Christopher J. Rush & Associates, P.A., Boynton Beach, for appellants.
    Carole Aronson of Carole Aronson, P.A., Boynton Beach, for appellees.
   PER CURIAM.

Appellants, Someplace New, Inc., Donald Edward Young, Jr., and Carolyn Jane Young, challenge the dismissal of their second amended complaint, with prejudice, for failure to state a cause of action. The complaint alleged two counts. As to count I, alleging fraudulent misrepresentation, we reverse. As to count II, a claim alleging constructive fraud based on breach of fiduciary duty, we affirm without discussion.

This appeal stems from a contract entered into by appellants and appellees, Christiane Francois (“Francois”) and Prime Plaza Boynton Beach, LLC. The second amended complaint alleged that appellants and Francois entered into a lease and licensee agreement, whereby appellants agreed to assume operating expenses of a turnkey restaurant operation. Count I of the complaint alleged fraud against Francois and that Francois “intentionally falsely” made representations regarding the restaurant, with the purpose of inducing appellants into assuming its operation. The complaint then outlined four specific misrepresentations made by Francois regarding the restaurant payroll, profitability and employees. The complaint further alleged that appellants relied on Francois’ misrepresentations in entering into the agreement, and spent over $20,000.00 towards their obligation under the contract. Attached to the complaint was the lease agreement referenced therein. Appellees immediately filed a motion to dismiss the complaint, contending that fraud had not been specifically alleged and that the attached lease agreement contradicted the complaint because it did not mention the licensee arrangement. The trial court granted the motion to dismiss and this appeal followed.

A trial court’s decision to dismiss a complaint for failure to state a cause of action is reviewed de novo. See Francis v. Sch. Bd. of Palm Beach Cnty., 29 So.3d 441, 442 (Fla. 4th DCA), review denied, 42 So.3d 799 (Fla.2010). Our review is limited to the four corners of the complaint, and all allegations must be accepted as true. See Fresh Capital Fin. Servs., Inc. v. Bridgeport Capital Servs., Inc., 891 So.2d 1142, 1144 (Fla. 4th DCA 2005). Allegations of fraud must be stated with such particularity as permitted by the circumstances. See Fla. R. Civ. P. 1.120(b). This includes “who made the false statement, the substance of the false statement, the time frame in which it was made and the context in which the statement was made.” Bankers Mut. Capital Corp. v. U.S. Fid. & Guar. Co., 784 So.2d 485, 490 (Fla. 4th DCA 2001).

Count I properly alleged the requirements of fraud with specificity. The complaint outlined the specific misrepresentations that Francois “intentionally falsely” made. Further, the complaint properly alleged that the statements were made for the purpose of inducing appellants to enter into the lease and licensee agreement. The attached lease agreement, by its omission of mention of the licensee agreement, did not contradict the allegations of the complaint. See Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401 (Fla. 2d DCA 2000) (where an exhibit attached to the complaint contradicts allegations within the complaint, the plain language of the exhibit controls). Accepting the complaint’s allegations as true, the parties entered into a licensee arrangement concerning a restaurant located on the property identified by the lease. Determining the precise nature of that agreement is a question of fact better addressed on a motion for summary judgment, rather than on a motion to dismiss. See Chodorow v. Porto Vita, Ltd., 954 So.2d 1240, 1242 (Fla. 3d DCA 2007). As such, the dismissal of count I of appellants’ second amended complaint is reversed.

Affirmed in part, reversed in part, and remanded.

STEVENSON, HAZOURI and DAMOORGIAN, JJ., concur.


author: BENTON, C.J.

text:
    Vanessa E. HARRISON, as personal representative of the estate of Kaylin S. Harrison, deceased minor; Lakeisha Felicia Dyer, as personal representative of the estate of Daijah Armani Dyer, deceased minor; and Russell Williams, Sr., as personal representative of the estate of Myrna Felicia Williams, deceased, Appellants, v. J.P.A. ENTERPRISES, L.L.C., et al., Appellees.
    No. 1D10-3677.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2011.

      Sharon H. Proctor, Lake St. Louis, MO; Stephen K. Miller of the Law Office of Spicer & Miller, P.L., Gainesville, and Skip Edward Lynch of Raster & Lynch, P.A., Ocala, for Appellants.
    William Horgan, Tallahassee, for Appel-lee J.P.A. Enterprises L.L.C.
   BENTON, C.J.

We are asked to review a partial final judgment entered in an ongoing circuit court proceeding. By motion to dismiss the amended complaint that had added it as a party defendant more than two years after a fatal automobile accident, J.P.A. Enterprises, LLC, set up the statute of limitations as foreclosing wrongful death claims against it. The amended complaint had alleged that three persons died, and that four others suffered bodily injury, in a single crash for which J.P.A. Enterprises, LLC, and the original defendants were legally responsible.

Finding the statute of limitations argument meritorious, the trial court entered “Partial Final Judgment as to Defendant J.P.A. Enterprises, LLC,” ruling that the wrongful death claims against J.P.A. Enterprises, LLC, were bai'red. The partial final judgment left pending all claims against other defendants, as well as the four survivors’ claims, on their own behalf, against J.P.A. Enterprises, LLC. The personal representatives appeal the partial final judgment which disposed of their wrongful death claims only as to J.P.A. Enterprises, LLC.

We dismiss the appeal. At issue is whether an appeal lies now: Without question, the partial final judgment against the personal representatives and in favor of J.P.A. Enterprises, LLC is “reviewable ... on appeal from the final judgment in the entire case.” Fla. R.App. P. 9.110(k). To be sure, subsection (k), added in 1984, sets out the general rule that partial final judgments adjudicating separate and distinct claims can be appealed when rendered, and the same provision requires prompt appeal when a “partial final judgment totally disposes of an entire case as to any party.” Fla. R.App. P. 9.110(k).

But the partial final judgment in the present case did not dispose of the “entire case” as to any party; and the “1984 amendment to the appellate rule ‘does not make all partial judgments immediately appealable nor does it expand in any way the class of orders immediately appeal-able.’ Bay & Gulf Laundry Equip. Co., Inc. v. Chateau Tower, Inc., 484 So.2d 615, 616 (Fla. 2d DCA 1985); Pellegrino v. Horwitz, 642 So.2d 124 (Fla. 4th DCA 1994).” Campbell v. Gordon, 674 So.2d 788, 786 n. 4 (Fla. 1st DCA 1996).

Where all parties remain in a case after an order is entered, the order cannot be said to dispose of the “entire case” as to any party for purposes of rule 9.110(k). See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974); C.P. Ward, Inc. v. Enter. Bldg. Corp., 497 So.2d 700 (Fla. 2d DCA 1986) (dismissing an appeal from an order that dismissed a cross-claim, where the plaintiffs interrelated claims remained pending against defendants); Miami-Dade Water & Sewer Auth. v. Metro. Dade County, 469 So.2d 813, 814 (Fla. 3d DCA 1985) (dismissing appeal from order that disposed of cross-claim where “all of the parties involved in this case remain in the lawsuit to litigate the pending claims”). Cf., e.g., Andrew v. Shands at Lake Shore, Inc., 970 So.2d 887, 889 (Fla. 1st DCA 2007) (finding jurisdiction where the lower tribunal’s “order disposes of the entire ease as to an individual party”); Behavioral Healthcare Options, Inc. v. Charter Behavioral Health Sys. of Tampa Bay, Inc., 727 So.2d 1135, 1136 (Fla. 2d DCA 1999) (holding order reviewable that dismissed only one plaintiffs claims because “there are no remaining counts in which [he] is a party”). Both the personal representatives and J.P.A. Enterprises, LLC, remain parties in the case below. Because the “Partial Final Judgment as to Defendant J.P.A. Enterprises, LLC” does not resolve the “entire case” as to any party, appeal is not required at this juncture.

Nor is appeal at this time permitted. A “partial dismissal of a complaint is only reviewable when it is established that the dismissed claims are not legally and factually interrelated with the remaining claims. Mendez v. West Flagler Family Ass’n, 303 So.2d 1, 5 (Fla.1974); Swan v. St. Thomas Univ., 592 So.2d 351, 352 (Fla. 3d DCA 1992); Taddie Underground Util. Co., Inc. v. Sloan Pump Co., Inc., 497 So.2d 701, 702 (Fla. 2d DCA 1986).” Lambou v. Wakulla County, 919 So.2d 678, 678-79 (Fla. 1st DCA 2006). If an order does not finally end the judicial labor in a case, “[p]ieeemeal appeals will not be permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit.” Webb, 304 So.2d at 99.

The counts set out in the amended complaint in the present case are interrelated. See Jimenez v. Cmty. Asphalt Corp., 947 So.2d 532, 532-33 (Fla. 4th DCA 2006) (stating that an order is not immediately appealable where, even though it disposes of a separate and distinct cause of action, other, interdependent claims remain pending); Pellegrino v. Horwitz, 642 So.2d 124, 126-27 (Fla. 4th DCA 1994) (holding final orders that did not dismiss all interrelated claims involving the same transaction and parties were not immediately appealable). While dismissal on statute of limitations grounds differs from adjudication of the merits of a claim, the claims remain interrelated. See Gassner v. Caduceus Self Ins. Fund, Inc., 532 So.2d 1133, 1133 (Fla. 4th DCA 1988) (dismissing appeal from partial summary judgment granted on exhaustion of administrative remedies grounds where other counts remained pending on merits). “ ‘The test to determine whether counts of a multicount complaint are interrelated, so as to preclude a piecemeal appeal, is whether the counts arise from a set of common facts or a single transaction, not whether different legal theories or additional facts are involved in separate counts.’ Mass. Life Ins. Co. v. Crapo, 918 So.2d 393, 394 (Fla. 1st DCA 2006) (quoting Lemon v. Groninger, 708 So.2d 1025, 1027 (Fla. 5th DCA 1998)). Each count stated below arose from a single automobile accident.

Dismissed.

VAN NORTWICK and ROBERTS, JJ., concur.


author: WALLACE, Judge.

text:
    M.W., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2395.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2011.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

M.W. appeals an order withholding adjudication for the delinquent act of obstructing or opposing an officer without violence. M.W.’s alleged obstruction occurred during his warrantless arrest for an assault, a misdemeanor committed outside the presence of the arresting officer. Because a warrantless arrest for the kind of assault at issue in this case is lawful only if the offense is committed in the officer’s presence, the officer was not engaged in the execution of a legal duty during M.W.’s arrest. It follows that M.W. could properly obstruct or oppose the illegal arrest without violence, and the circuit court erred in finding that M.W. committed the delinquent act of obstructing or opposing an officer without violence. Accordingly, we reverse the order withholding adjudication.

The incident that gave rise to the charges against M.W. occurred on September 30, 2009, at Van Burén Middle School in Tampa where M.W. was a student. Ar-tis Gambrell, a member of the school’s administrative staff, was called to remove M.W. from a classroom because M.W. was being disruptive. Mr. Gambrell walked M.W. to the student affairs office. M.W. refused to enter the office and shouted profanities at Mr. Gambrell. According to Mr. Gambrell, “[AJfter a while, [M.W.] slammed his books into the ground, told [Mr. Gambrell] to get out of his face, and made two (2) steps toward [Mr. Gam-brell].” Mr. Gambrell testified that “[a]s [M.W.] threw the book down, he took a step toward me, and told me to get out of his f***ing face or he was going to hit me.” Mr. Gambrell explained further that Officer Neil Smith, the school resource officer, arrived shortly afterward to give him assistance in dealing with M.W. But there is no evidence in the record that Officer Smith witnessed the incident during which M.W. threw down his books, stepped toward Mr. Gambrell, and threatened him.

Officer Smith testified that when he arrived at the scene of the incident he spoke with Mr. Gambrell and learned “the nature of the problem.” After speaking with M.W. for about fifteen minutes, Officer Smith told M.W. that he was under arrest. When Officer Smith attempted to handcuff M.W., M.W. “bowed up a little bit and wouldn’t physically put his hands behind his back.” Officer Smith “had to actually physically put [M.W.’s] hands behind his back and handcuff him.”

The State filed a petition for delinquency, alleging that M.W. had committed the delinquent acts of assault on a specified official under sections 784.011 and 784.081(2)(d), Florida Statutes (2009), a first-degree misdemeanor, and obstructing or opposing an officer without violence under section 848.02, Florida Statutes (2009), a first-degree misdemeanor. Following an evidentiary hearing, the circuit court said that although it found Mr. Gambrell’s testimony to be credible, it did not find the evidence sufficient to establish that M.W. had committed an assault. But the circuit court also ruled that M.W. had committed the delinquent act of obstructing or opposing an officer because Officer Smith had probable cause to arrest M.W. for the assault when M.W. obstructed him. The circuit court withheld adjudication and placed M.W. on an indefinite period of probation not to exceed his nineteenth birthday.

Section 848.02 provides in pertinent part that “[w]hoever shall resist, obstruct, or oppose any officer ... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree.” Thus “[t]he crime of obstructing or opposing an officer without violence requires a showing that the officer was engaged in the lawful execution of any legal duty.” C.H.C. v. State, 988 So.2d 1145, 1146 (Fla. 2d DCA 2008). And when the duty being performed by the officer is an arrest, as in this case, the lawfulness of the arrest is an essential element of the offense. Guitterrez v. State, 837 So.2d 1095, 1096 (Fla. 4th DCA 2003); V.L. v. State, 790 So.2d 1140, 1143 (Fla. 5th DCA 2001).

Here, Officer Smith was attempting to arrest M.W. for an assault on a specified official when M.W. obstructed or opposed him. Thus, to prove that M.W. committed the delinquent act of obstructing or opposing an officer without violence, the State was required to establish that Officer Smith was authorized to make the arrest.

In pertinent part, section 901.15, Florida Statutes (2009), authorizes a law enforcement officer to arrest a person without a warrant when “[t]he person has committed a felony or misdemeanor or violated a municipal or county ordinance in the presence of the officer.” § 901.15(1). Thus the warrantless arrest of M.W. for the misdemeanor offense of assault on a specified official was lawful only if that offense was committed in Officer Smith’s presence. See id.; see also B.D.K. v. State, 743 So.2d 1155, 1157 (Fla. 2d DCA 1999) (concluding that a warrantless arrest for a misdemeanor was unlawful when the offense did not occur in the officer’s presence); Smiley v. State, 354 So.2d 922, 924 (Fla. 2d DCA 1978) (holding that an officer was not justified in arresting the defendant without a warrant for a misdemeanor committed outside the officer’s presence). Because M.W.’s threats against Mr. Gam-brell occurred outside Officer Smith’s presence, the arrest was unlawful, and Officer Smith was not engaged in the lawful execution of a legal duty when M.W. obstructed or opposed the arrest. It follows that the State failed to establish that the offense of obstructing or opposing an officer without violence had occurred—the delinquent act upon which the disposition order before us rests.

We note that M.W. did not argue in the circuit court that Officer Smith was not engaged in the lawful execution of a legal duty when he made the arrest, and thus he did not preserve that argument for appellate review. But because the State failed to establish that the obstruction offense occurred at all, M.W.’s conduct could not constitute a delinquent act. See § 843.02; see also Nelson v. State, 543 So.2d 1308, 1309 (Fla. 2d DCA 1989) (holding that because an officer was not engaged in the lawful execution of a legal duty when the defendant obstructed or opposed him, the defendant’s conduct did not constitute the crime of resisting an officer). And the circuit court’s determination that M.W. had committed a delinquent act that never occurred constitutes fundamental error that may be raised for the first time on appeal. See F.B. v. State, 852 So.2d 226, 230 (Fla.2003) (holding that when “the evidence is totally insufficient as a matter of law to establish the commission of a crime ... [s]uch complete failure of the evidence meets the requirements of fundamental error”); Cox v. State, 1 So.3d 1220, 1222 (Fla. 2d DCA 2009) (“A conviction is fundamentally erroneous when the facts affirmatively proven by the State simply do not constitute the charged offense as a matter of law.” (quoting Griffin v. State, 705 So.2d 572, 574 (Fla. 4th DCA 1998))); Santiago v. State, 847 So.2d 1060, 1062 (Fla. 2d DCA 2003) (allowing a defendant to stand convicted of a crime that never occurred constitutes fundamental error); Nelson, 543 So.2d at 1309 (noting the same).

The State argues for affirmance on the theory that Mr. Gambrell’s knowledge should be imputed to Officer Smith under the “fellow officer rule.” “[That] rule allows an arresting officer to assume probable cause to arrest a suspect based on information supplied by fellow officers.” B.D.K., 743 So.2d at 1157. The rule applies to both misdemeanors and felonies. Id.; see also State v. Boatman, 901 So.2d 222, 224 (Fla. 2d DCA 2005) (citing B.D.K. in support of conclusion that an officer may arrest a defendant for a misdemeanor offense committed in the presence of a fellow officer under the fellow officer rule).

But the State cites no authority for the proposition that a school administrator may be considered a fellow officer under the rule. This court has previously declined to impute the knowledge of citizen informants to an officer under the fellow officer rule. Sawyer v. State, 905 So.2d 232, 234 (Fla. 2d DCA 2005). In Sawyer we noted as follows:

If we were to permit [a citizen informant’s] observations which were relayed to the police as sufficient to constitute the officer’s knowledge of an essential element of a crime, then as to misdemeanors there would be no point in the statutory requirement that the misdemeanor be committed in the officer’s presence. Any citizen could walk up to an officer and relate the commission of a misdemeanor by someone, and the officer would have probable cause to arrest. This is clearly inconsistent with the statutory requirements.

Id. (quoting Steiner v. State, 690 So.2d 706, 709 (Fla. 4th DCA 1997)). And in Steiner, a case this court relied upon in Sawyer, the Fourth District declined to impute a private security guard’s observations to a police officer under the fellow officer rule. 690 So.2d at 709. A school administrator may not be regarded as a fellow officer when a security guard does not fall into that category. So we are not inclined to hold that Mr. GambreH’s knowledge should be imputed to Officer Smith under the fellow officer rule in order to support M.W.’s arrest.

For the foregoing reasons, we reverse the order withholding adjudication of delinquency and remand for the entry of an order of dismissal.

Reversed and remanded.

CASANUEVA, C.J., and KELLY, J., Concur.

      . The circuit court’s comments suggest that its finding was based on the conditional nature of the threat. But a conditional threat would not preclude a finding that M.W. had committed an assault. See State v. Smith, 348 So.2d 637, 639 (Fla. 2d DCA 1977); K.E.H. v. State, 802 So.2d 395, 396 (Fla. 4th DCA 2001); Blanton v. State, 388 So.2d 1271, 1273 (Fla. 4th DCA 1980).