author: WALLACE, Judge. ALTENBERND, Judge,

text:
    Joseph Eli BEARDEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1325.
    District Court of Appeal of Florida, Second District.
    April 13, 2011.
    Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Joseph Eli Bearden challenges his judgment and life sentence for second-degree murder. On appeal, Bearden makes two closely related arguments. First, he argues that the trial court erred in refusing to allow a witness to testify that she heard Ray Allen Brown admit to committing the offense for which Bearden was convicted. Second, Bearden contends that the trial court erred in prohibiting him from questioning Ray Allen concerning Ray Allen’s purported declarations against penal interest. We find no error and affirm Bear-den’s judgment and sentence. We write to explain our reasoning.

I. THE FACTS

The murder victim was a young man named Ryan Skipper. On March 14, 2007, his body was found on the side of Morgan Road in the Wahneta area — he had been stabbed to death. The evidence at trial reflected that on March 13, 2007, Skipper left home in his car after taking a telephone call at 11:10 p.m. Shortly thereafter, he encountered Bearden, who was walking on the side of the road. Skipper picked up Bearden and drove a few blocks to J.T. Brown’s home. While Skipper waited outside, Bearden went inside and unsuccessfully attempted to trade a used laptop computer for drugs. Present in the residence were J.T. Brown, Ray Allen Brown (J.T.’s son), John Kirchoff (who was temporarily living there), and William Brown (J.T.’s nephew). All four of these men were methamphetamine users.

The events that followed Skipper and Bearden’s arrival at the Brown residence led to Skipper’s murder. And there was no question that William Brown wielded the knife used to kill Skipper. But, as discussed below, Bearden’s conviction hinged on whether the jury accepted his version of the events as reflected in his pretrial statement or the version testified to by J.T., Ray Allen, and Kirchoff at trial. Bearden’s version implicated William and Ray Allen in the murder; J.T., Ray Allen, and Kirchoffs version implicated William and Bearden.

J.T., Ray Allen, and Kirchoff testified that after Bearden and Skipper arrived, the generator providing electrical power to the residence began to falter because it was low on fuel. They asked Skipper to drive to a nearby gas station to buy gas for the generator. According to them, Skipper was accompanied on this trip by William, Ray Allen, and Kirchoff. Skipper and the three men returned from the gas station without incident. Thereafter, William, Bearden, and Skipper left in Skipper’s car while Ray Allen remained at home for the rest of the night and went to sleep.

This testimony conflicted with Bearden’s pretrial statement that the trip to the gas station was a ruse to permit the Browns to rob Skipper. Bearden also claimed that only William and Ray Allen went with Skipper to buy gas and that they returned alone in Skipper’s car. When they returned, the men and the car were covered in blood. Although Bearden acknowledged that he knew of the Browns’ plan to rob Skipper, he claimed to have no idea that they would kill him. He admitted that he and William cleaned the car and unsuccessfully attempted to sell it or trade it for drugs. But he denied assisting in Skipper’s murder or being present when Skipper was killed.

Thus the critical issue of fact at Bear-den’s trial was whether Skipper was stabbed on the trip to get gas, as Bearden claimed, or when Skipper drove away from the Browns’ residence after returning safely from that trip, as the State’s witnesses suggested. William — the person who actually stabbed Skipper — was in the car on both trips. If the killing occurred during the trip to the gas station, Ray Allen was directly implicated in the killing because he went along on that trip, but Bearden did not. If the killing occurred after Skipper left the Brown residence the second time with William and Bearden, then Bear-den was implicated and Ray Allen — who remained at the Brown residence and went to sleep — could not have had any direct involvement in the killing.

Skipper’s partially burned car was discovered near a boat ramp at a lake in the area. Law enforcement officers recovered several sets of fingerprints from the vehicle, including Bearden’s and William’s fingerprints. After law enforcement officers arrested Bearden, a grand jury indicted him for first-degree murder and robbery with a deadly weapon. The State sought the death penalty, but the jury’s verdict of second-degree murder eliminated the death penalty as a sentencing option. On the count charging Bearden with robbery with a deadly weapon, the jury found him guilty of the lesser-included offense of grand theft of a motor vehicle. The trial court sentenced Bearden to five years in prison on the grand theft of a motor vehicle conviction, to run concurrently with his life sentence. Bearden does not challenge his conviction and sentence for grand theft of a motor vehicle.

II. THE PERTINENT EVENTS AT TRIAL

At issue in this appeal is the trial court’s exclusion of testimony that would have supported Bearden’s version of the events that led to Skipper’s death. Bearden’s case went to trial in February 2009, almost two years after the murder. On the second day of trial, the prosecutor’s office received a telephone call from a previously unknown witness, Angela Tyler, and the Sheriffs Office sent a detective to take her statement. Tyler told the detective that Ray Allen had admitted to her a few days after the murder that it was he, not Bear-den, who was with William in the car when William stabbed Skipper. The prosecution sent a copy of Tyler’s statement to defense counsel. The defense then notified the court of its intention to call Tyler as a defense witness, indicating that it planned to use her testimony to impeach the anticipated testimony of Ray Allen. The prosecution had planned to call Ray Allen as a witness in its case-in-chief. But after Tyler’s deposition was taken, the prosecutor announced that the State would not be calling Ray Allen as a witness. The State’s motive for this sudden change in its trial strategy was obvious. Ray Allen’s testimony would be cumulative to that of J.T. and Kirchoff. Everyone expected Ray Allen to deny any involvement in Skipper’s killing, and the State did not wish to give the defense an opportunity to impeach him by asking him if he had made the purported statements to Tyler.

After the prosecution rested its case-in-chief without calling Ray Allen as a State witness, the defense announced that it would call him as a defense witness. The trial court cautioned that the defense could not call Ray Allen as a witness for the sole purpose of developing impeachable testimony. In addition, it instructed the defense that no questions could be asked about his purported statements to Tyler until her testimony had been proffered to the court.

Despite the trial court’s cautionary instruction, the defense called Ray Allen to the stand before proffering Tyler’s testimony. And, as discussed above, his testimony echoed that of the State’s witnesses, J.T. and Kirchoff, which was not helpful to the defense. In accordance with the trial court’s express ruling, defense counsel did not ask Ray Allen about his purported statements to Tyler. When Ray Allen left the witness stand, it was noted that he was “subject to recall.”

Later, the defense proffered Tyler’s testimony to the court. She testified that she knew Bearden and the Brown family, who lived down the road from her parents’ home. Tyler had maintained “a dating relationship ... [o]ff and on for about three years” with Junior Brown (J.T.’s son and Ray Allen’s brother).

According to Tyler, she met Ray Allen at her mother’s house on March 18, 2007. Ray Allen was upset, and she asked him what was wrong. Tyler gave the following account of Ray Allen’s response:

[Ray Allen] said that he had got — that he was with his cousin, [William]. [William] had gotten into a confrontation with a gay guy, and they had an argument, and he had stabbed the guy. And he was with his cousin when he did it.
... I had asked him if he was involved in the murder, or like the stabbing, because I didn’t know there was a murder at the time, and he said no, that he didn’t involve in the murder, I guess, or whatever. He said that he had to help his cousin, though, was his exact words, because they was family.
[Ray Allen] was just telling me about him and his cousin was in a vehicle with a guy, and the guy had tried his cousin, I guess like sexually, I don’t know. And his cousin had gotten upset and stabbed the guy. And that’s when he told me he was in the car when it happened.

After speaking with Ray Allen, Tyler had no doubt that he had admitted that he was with William and had helped him when Skipper was killed, even though he denied actually stabbing Skipper.

If Tyler’s testimony were true, then Ray Allen’s admissions inculpated him in Skipper’s killing. Although Bearden could not deny that he was involved in cleaning Skipper’s car and attempting to dispose of it, Ray Allen’s purported admissions would exonerate Bearden of any direct involvement in Skipper’s death.

After proffering Tyler’s testimony, the defense made two requests. First, it requested to recall Ray Allen to ask him whether he had made the purported statements to Tyler. Second, it requested to present Tyler’s testimony about the purported statements to the jury.

The trial judge found that the proposed evidence was inadmissible under the Evidence Code and indicated that it would only be admissible if it met the four-part test of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The trial judge outlined the four-part test of Chambers as follows: (1) the confession or statement was made spontaneously to a close acquaintance after the crime occurred; (2) the confession or statement is corroborated by other evidence in the case; (3) the confession or statement is self-incriminating and unquestionably against interest; and (4) if there is any question about the truthfulness of the confession or statement, the declarant must be available for cross-examination.

The trial judge reserved ruling on the defense’s requests so that he could consider them over the evening. The following day, the trial judge ruled that Ray Allen’s purported statements to Tyler met only the first and fourth parts of the Chambers test. In the trial judge’s view, the statements were not corroborated by other evidence in the case and were not against Ray Allen’s penal interest. The trial judge also denied the defense’s request to recall Ray Allen to ask him about his purported statements to Tyler. The trial judge concluded by stating, “I believe that we’ve eliminated Angela Tyler and Ray [Allen] Brown from being recalled.”

III. DISCUSSION

A. Calling Ray Allen Brown for Impeachment Purposes

We consider Bearden’s second argument first. Bearden contends that the trial court erred in refusing to permit him to recall Ray Allen to ask him about his purported statements to Tyler. But before the defense asked to recall Ray Allen, the trial court had ruled that — under the Evidence Code — the defense could not call Ray Allen for the sole purpose of developing impeachable testimony. Recalling Ray Allen for this purpose would only be permissible under a Chambers analysis.

Florida courts generally disapprove of calling a witness for the primary purpose of developing impeachment evidence. See Morton v. State, 689 So.2d 259, 264 (Fla.1997), receded from on other grounds by Rodriguez v. State, 753 So.2d 29, 47 (Fla.2000). However, “a party may always impeach its witness if the witness gives affirmatively harmful testimony.” Id.; see also § 90.608, Fla. Stat. (2008) (“Any party, including the party calling the witness, may attack the credibility of a witness by ... [i]ntroducing statements of the witness which are inconsistent with the witness’s present testimony.”). But even though section 90.608 permits a party to impeach its own witness, “it is still improper under Florida law for a party to call a witness merely as a device to place the impeaching testimony before the jury.” Curtis v. State, 876 So.2d 13, 20 (Fla. 1st DCA 2004) (citing Morton, 689 So.2d 259).

When Bearden’s trial began, Ray Allen was slated to appear as a witness for the prosecution. It was only after Tyler surfaced as a potential witness — almost two years after Skipper’s death — that the State lost interest in Ray Allen as a witness and the defense suddenly decided to present his testimony. As previously noted, Ray Allen’s testimony for the defense was cumulative to that of J.T. and Kirchoff and was simply not helpful to the defense. In seeking to recall Ray Allen, the defense was clearly not anticipating a dramatic, Perry Mason-style moment during which Ray Allen would confess that it was he and not Bearden who was present in the car when William stabbed Skipper to death. Undeniably, the defense’s sole reason for seeking to recall Ray Allen was to develop impeachable testimony. The trial court correctly ruled that the defense could not recall Ray Allen for this purpose unless Tyler’s testimony was admissible under Chambers. This conclusion brings us to consideration of Bearden’s first point on appeal.

B. Admissibility of Angela Tyler’s Testimony under Chambers

Bearden argues that the trial court erred in excluding Tyler’s testimony that Ray Allen told her that he had helped William kill Skipper. Bearden contends that Tyler’s testimony was admissible under a proper Chambers analysis. Because this point presents a close question, a brief review of Chambers is in order.

Chambers was charged with murder but claimed that a person named McDonald was the actual perpetrator. Chambers, 410 U.S. at 289, 93 S.Ct. 1038. Because the prosecution did not call McDonald as a witness, Chambers called McDonald as a defense witness. Id. at 291, 93 S.Ct. 1038. As a result of Mississippi’s party witness rule (a rule that — similar to Florida law— prohibits a party from calling its own witness for the purpose of impeachment) and hearsay rules, Chambers “was unable either to cross-examine McDonald or to present witnesses in his own behalf who would have discredited McDonald[ ] ... and demonstrated his complicity.” Id. at 294, 93 S.Ct. 1038. The United States Supreme Court found that the application of these rules denied Chambers his due process right to a fair trial. Id. at 302-03, 93 S.Ct. 1038. With regard to the out-of-court statements against interest, the Supreme Court added that in certain circumstances, “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id. at 302, 93 S.Ct. 1038.

The Supreme Court noted that the hearsay statements that Chambers tried to introduce into evidence were made “under circumstances that provided considerable assurance of their reliability.” Id. at 300, 93 S.Ct. 1038. In Chambers, McDonald had confessed to three close acquaintances, the confessions were spontaneous, the confessions were corroborated by other evidence, and the statements were self-incriminatory and against McDonald’s penal interest. Id. at 300-01, 93 S.Ct. 1038. Although there was a great deal of other corroborating evidence, the Supreme Court said that “[t]he sheer number of independent confessions provided additional corroboration for each.” Id. at 300, 93 S.Ct. 1038.

The Supreme Court’s holding in Chambers may be reasonably interpreted as calling for a four-pronged test to determine the admissibility of hearsay evidence of an out-of-court confession: (1) the statement must be spontaneous, (2) there must be some external corroboration for the statement, (3) the statement must be against the declarant’s penal interest, and (4) the declarant must be available to testify. See, e.g., Curtis, 876 So.2d at 21-22. But Chambers does not necessarily establish an immutable checklist of four requirements. Instead, the primary consideration in determining admissibility is whether the statement bears sufficient indicia of reliability:

Out-of-court statements are traditionally excluded because they lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant’s word is not subject to cross-examination; and he is not available in order that his demeanor and credibility may be assessed by the jury. A number of exceptions have developed over the years to allow admission of hearsay statements made under circumstances that tend to assure reliability and thereby compensate for the absence of the oath and opportunity for cross-examination. Among the most prevalent of these exceptions is the one applicable to declarations against interest— an exception founded on the assumption that a person is unlikely to fabricate a statement against his own interest at the time it is made.

Chambers, 410 U.S. at 298-99, 93 S.Ct. 1038 (footnote omitted) (citation omitted). In any case, the four-pronged test provides a helpful framework for the analysis of specific cases.

Here, the trial court held that Bearden had met prong one (spontaneous statement) and prong four (declarant available to testify). However, the trial court also found that Bearden had not met either prong two (corroboration) or prong three (declaration against penal interest). With regard to the third prong, the trial court explained its reasoning as follows:

Here, the statement was made to an alleged acquaintance, not the police. Two, the statement is shifting the burden. It’s not saying I killed him, he said [William] Brown killed him.
... [T]he statements that [Tyler] alleged he made that could be considered against penal interest was, he’s, he’s kin, and I helped him. And some of these cases talk about it can’t be something vague. It must be truly against penal interest. I helped him, with nothing more than that, that’s not chargeable.
... So I don’t see any corroboration to what he admits could be considered a statement against interest.
I don’t believe it’s based on that, that it is, in fact, truly a statement against interest. I go back to the case that I rely on that Butler[] didn’t merely imply guilt, he said I killed him. In Chambers, the case that — that this exception was created out of, he admitted he killed him. And, in fact, in every single case I’ve read, the party making the statement admitted to substantial involvement, not some vague involvement that he’s kin, and I helped him.
... I don’t think this was truly a statement that could be considered against his penal interest because without substantially more than what we heard yesterday [at the proffer], I don’t believe there’s any way the state, or Mr. Brown, could believe that his statement was against his penal interest, or that the state could bring charges against him.

On this point, we disagree with the trial court’s conclusion.

In reaching its conclusion, the trial court relied on the vague nature of the remarks attributed to Ray Allen and on the absence of a detailed explanation concerning how Ray Allen had actually assisted William in killing Skipper. The trial court’s reasoning is surprisingly incongruous with the facts of the State’s case against Bearden. The State offered no evidence concerning how Bearden had allegedly assisted William in killing Skipper. The State’s evidence about Bearden’s involvement in the killing was vague and general; its proof was limited to placing Bearden in the car when William stabbed Skipper. But this was sufficient for the State to charge Bearden with first-degree murder and to seek the death penalty against him. The State’s evidence was no more specific about Bearden’s involvement in the killing than the statements that Ray-Alien purportedly made to Tyler. For these reasons, we agree with Bearden that the statements attributed by Tyler to Ray Allen were unquestionably against Ray Allen’s penal interest. Thus the third prong of Chambers is satisfied.

The second prong of the Chambers test, corroboration, is a different matter. The trial court found that the purported statements made by Ray Allen to Tyler were not corroborated. The trial court offered two main reasons for its ruling. First, the purported statements were not corroborated by any evidence in the case except for Bearden’s pretrial statement. Indeed, the remaining evidence in the case was in direct conflict with the substance of the purported statements. The trial court’s second reason focused on Tyler’s credibility. As the trial court observed, Tyler claimed to be close friends with both the Brown family and Bearden. Nevertheless, despite these friendships and the extensive media coverage of the case, Tyler had not mentioned the substance of the statements to anyone connected with the case for almost two years. A recipient’s substantial delay in coming forward with a hearsay account of a de-clarant’s confession to a crime may be considered in assessing the reliability of the recipient’s account of the confession. Jones v. State, 709 So.2d 512, 525 (Fla. 1998). The trial court also pointed out that Tyler’s account did not include any details that would not have been known to anyone in Polk County who had followed the reports about the case that appeared in the local press and on television. Finally, the trial court questioned how Tyler could pinpoint the date of her alleged conversation with Ray Allen almost two years after the event. Tyler’s recollection of this detail seemed too good to be true. In short, Tyler’s testimony about the purported statements was not credible.

The trial court correctly noted that the only direct corroboration of Tyler’s account of the purported statements was Bearden’s prearrest statement to detectives. Bearden argues that his statement constitutes sufficient corroboration to satisfy Chambers ’ third prong, citing the First District’s decision in Curtis, 876 So.2d 13.

In Curtis, a third party named Butler had confessed to the police that he had shot a murder victim. Id. at 16. The case against Butler for the murder went to trial, and he was acquitted. Id. Before Curtis’ trial for the same murder, Butler gave a deposition repudiating his earlier confession and denying that he shot the victim. Id. The State made a pretrial motion to exclude evidence about Butler’s earlier confession. Id. The State argued that Butler’s confession was not admissible as a statement against interest because Butler was available to testify. Id.; see § 90.804(2)(c), Fla. Stat. (2001). The trial court granted the State’s motion and ruled that evidence of Butler’s confession would be excluded at Curtis’ trial. Curtis, 876 So.2d at 16. At trial, the defense proffered Butler’s earlier confession, but the trial court adhered to its pretrial ruling and excluded the proffered evidence. Id. at 18. Curtis was convicted of first-degree murder and armed robbery, and he appealed. Id.

On appeal, the First District reversed and remanded the case for a new trial. Id. at 16. The Curtis court acknowledged that under Florida law it is improper for a party to call a witness for the sole purpose of placing impeachment testimony before the jury. Id. at 20. Nevertheless, the court found that the due process considerations discussed in Chambers required the trial judge in Curtis’ case “to admit a third-party confession under constitutional principles, even if it does not qualify as a declaration against penal interest under the state law of evidence.” Id. at 21. The First District explained that, as in Chambers, Butler’s confession was made under circumstances that provided an assurance of reliability. Id. at 21-23.

We find little similarity between this case and Curtis. Here, the trial court was confronted midtrial with the surprise appearance of a previously unidentified witness nearly two years after Skipper’s death. This witness, who described herself as a friend of Bearden, claimed that Ray Allen had admitted to her that he was in the car with William when Skipper was killed. Under this questionable scenario, the trial court could reasonably conclude that the statements attributed to Ray Allen by Tyler fell short of an out-of-court confession made “under circumstances that provided considerable assurance of [its] reliability.” Chambers, 410 U.S. at 300, 93 5.Ct. 1038.

We also consider the doubts expressed by the trial court about Tyler’s credibility as a witness. Bearden argues that Tyler’s credibility was a matter for the jury to decide. Although this argument has some appeal, we disagree. The trial court’s task was to determine — before allowing the jury to hear Tyler’s testimony — whether the purported hearsay statements of Ray Allen bore sufficient indicia of reliability. To the extent that Chambers requires an analysis of the reliability of the proposed third party’s out-of-court confession, an evaluation of the credibility of the witness the defense proposes to use to place the alleged statements on the record is unavoidable. See Czubak v. State, 644 So.2d 93, 95 (Fla. 2d DCA 1994) (“The trial judge ... found not only that there were no corroborating circumstances showing the trustworthiness of the statements, to the contrary she found the circumstances such as to render the statements unreliable and unworthy of trust.”).

In Chambers, the reliability of the alleged third party’s out-of-court statements was bolstered by several factors. First, the statements were made to more than one witness. Second, the third party was seen with a gun shortly after the shooting. Third, there was evidence that the third party had previously owned a gun and then bought another one shortly after the crime occurred. 410 U.S. at 300, 93 S.Ct. 1038. In this case, there is nothing other than Bearden’s self-serving statements to the detectives before his arrest. In his pretrial statement, Bearden admitted committing several felonies, but he carefully avoided admitting any direct involvement in Skipper’s murder. And the crimes to which Bearden admitted were crimes that he was unable to deny because of the number of witnesses who knew that he had participated in cleaning Skipper’s car and attempting to dispose of it. Under the circumstances, we cannot say that the trial court abused its discretion in concluding that Tyler’s testimony about Ray Allen’s purported statements failed to meet the test of reliability outlined in Chambers. It follows that the trial court did not err in excluding her testimony at Bearden’s trial.

IV. CONCLUSION

For the foregoing reasons, we affirm the judgment and sentences imposed on Bear-den. Our affirmance is without prejudice for Bearden to raise his claims of ineffective assistance of counsel in a timely post-conviction motion.

Affirmed.

VILLANTI, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I join in the court’s opinion but admit that I am troubled by Mr. Bearden’s conviction for second-degree murder. The evidence supporting that conviction is weak. Although I cannot say that the trial court committed reversible error by omitting the hearsay testimony of Angela Tyler concerning the alleged confession of Ray Allen Brown, if I had been the trial judge, I believe I would have admitted this testimony. I write to explain why I would have allowed the jury to decide the significance of this alleged confession.

The jury’s verdict in this case convicting Mr. Bearden not of robbery but of a grand theft of Mr. Skipper’s car is fully supported by the evidence. After William Brown killed Mr. Skipper in Mr. Skipper’s car, Mr. Bearden had possession of the car as a known stolen vehicle, and he destroyed evidence of the murder that had occurred in the car. Apparently, in a related criminal proceeding, Mr. Bearden was convicted as an accessory after the fact for this murder on the theory that he was an accessory to the first-degree murder committed by William Brown. The evidence in this record would support that conviction.

The State indicted Mr. Bearden for first-degree premeditated murder of Mr. Skipper. The State submitted the case to the jury on- theories of both first-degree premeditated murder and first-degree felony murder. The jury convicted Mr. Bearden of second-degree murder. I question whether the evidence supported a conviction for this lesser offense but conclude that the evidence was sufficient to convict Mr. Bearden of first-degree felony murder.

A great majority of the testimony in this case is influenced by illegal drugs. The witnesses were either under the influence of drugs at the time of these events or involved in the sale of drugs. Credibility is a very complex matter in this case. Assuming that there were other people in the car at the time William Brown killed Mr. Skipper, several people in addition to Mr. Bearden had at least an equal motive and opportunity to participate in the murder.

It seems likely from the evidence that Mr. Skipper stopped on the side of the road late on the evening of March 13, 2007, to pick up Mr. Bearden. Mr. Skipper might have known Mr. Bearden, but there is no evidence that the two men were established friends. The record leaves one only to speculate as to the reason that Mr. Skipper picked up Mr. Bearden on this night. Mr. Bearden claimed that the two men went briefly to Mr. Skipper’s house and then proceeded to the Browns’ house to purchase drugs.

After arriving at the Browns’ house, Mr. Skipper appears to have reentered his car where William Brown stabbed him several times. No one claims to have been an eyewitness to this event. There is no physical evidence that places Mr. Bearden or anyone other than William Brown in the car at the time of the murder. However, it is likely that some other person or persons were in the car at the time of the stabbing, and it is at least plausible that the additional occupants were principals in the offense and not merely occupants. Whether the evidence established beyond a reasonable doubt that Mr. Bearden was such a principal is a much closer question.

As our opinion reflects, the occupants of the Brown house, where drugs were being sold, claimed that Mr. Bearden, but not Ray Allen Brown, accompanied William Brown on the fatal trip in the car. Mr. Bearden claimed that although he was not in the car, he knew the Browns were taking Mr. Skipper for a ride to rob him and he approved of the plan so long as he got something out of the deal. It is a close question whether Mr. Bearden’s admission of this fact would be sufficient to convict him of first-degree felony murder. The State did ■ not charge him with being a member of any conspiracy.

The primary testimony that would both place Mr. Bearden in the car at the time of the murder and suggest that he was a principal in that offense was the testimony of Maria and Robert Agüero. After the murder occurred and before the car was burned, Mr. Bearden and another man tried to sell the stolen car to members of the Agüero family. This family also appears to have ties to drug dealing. In the process of trying to sell the car to them, Mr. Bearden allegedly had private conversations in which he admitted that he had intended to steal Mr. Skipper’s money and credit cards and that he had “f* *cked up” the victim. This hearsay testimony is hardly a full confession to any form of murder.

In this context, the evidence may have created an issue for the jury, but there was barely enough reliable evidence to establish that Mr. Bearden was a principal in the murder. It was possible that he was a drug addict who managed to place Mr. Skipper in a location where others killed him.

I provide this brief explanation because it seems important when deciding whether the hearsay confession of Ray Allen Brown to Angela Tyler was admissible. If admitted, this testimony would have been significant defensive evidence.

This was a televised trial. Angela Tyler’s delay in coming forward to testify against a member of the Brown family may be explained by entirely innocent reasons. Moreover, her ability to recall details of such a confession after only two years is not necessarily surprising. It is not every day that a person confesses to murder, and the recipient of the confession is likely to recall the incident in detail. The trial judge was in a position to evaluate Angela Tyler’s credibility, but I admit that on the basis of the cold record, I would have allowed the jury to make the evaluation of her credibility given the weakness of the evidence against Mr. Bearden.

As for the need for corroboration under Chambers, I.admit that what exactly needs to be corroborated is confusing to me. It is undisputed that Mr. Skipper was murdered shortly after being in a house with Ray Allen Brown. Ray Allen Brown certainly had the ability and even a motive to be precisely where his alleged confession to Angela Tyler placed him. The truth is that we have only a little more corroborating evidence to support the alleged confession of Mr. Bearden to the Agüeros than the alleged confession of Ray Allen Brown to Ms. Tyler.

I cannot dissent in this case, but I would have greater confidence in the jury’s ver-diet if they had received the additional testimony.

      . Bearden also makes two claims of ineffective assistance of trial counsel. We decline to consider these claims on direct appeal. Our affirmance is without prejudice to Bearden’s right to file a timely postconviction motion raising these claims. See Johnson v. State, 942 So.2d 415, 416 (Fla. 2d DCA 2006).

      . William Brown was tried and convicted of the first-degree murder of Skipper. His appeal is currently pending in this court under case number 2D 10-74.

      .Bearden did not testify in his own defense. But a few days after Skipper’s murder, Bear-den voluntarily gave detectives a taped statement. The State played this statement for the jury at Bearden’s trial.

      . In a separate information, the State charged Bearden with accessory after the fact to first-degree murder, tampering with physical evidence, and dealing in stolen property. Bear-den moved to consolidate the two cases, and the trial court granted his motion. Bearden has not appealed the disposition of the charges filed in the separate information, and we do not address those matters further.

      . The trial court’s reference is to Brenton Butler, the juvenile who had confessed to the murder and robbery for which another man was tried and convicted in Curtis v. State, 876 So.2d 13 (Fla. 1st DCA 2004).

      . We recognize that the testimony of the State’s witnesses and Ray Allen Brown about the sequence of events was often inconsistent. And we acknowledge that J.T. Brown and John Kirchoff likely had a motive to protect Ray Allen Brown from prosecution. But inconsistencies in the evidence and the credibility of the witnesses were issues for the jury to weigh; they do not bear upon the question of whether Ray Allen Brown's purported out-of-court confession bore sufficient indicia of reliability for admission under Chambers.

      . Because it would have little practical effect on Mr. Bearden’s sentences, I will not discuss at any length the oddity of a conviction as a principal to second-degree murder and a second conviction for accessory after the fact for a first-degree murder arising from a single homicide.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harold LONG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1633.
    District Court of Appeal of Florida, First District.
    April 15, 2011.
    Rehearing Denied June 10, 2011.
    Harold Long, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WEBSTER, ROBERTS, and WETHERELL, JJ., concur.


text:
    Leon L. MORANT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1725.
    District Court of Appeal of Florida, First District.
    April 27, 2011.
    Rehearing Denied June 13, 2011.
    Leon L. Morant, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: MORRIS, Judge.

text:
    HOMEOWNER’S ASSOCIATION OF OVERLOOK, INC., Appellant, v. SEABROOKE HOMEOWNERS’ ASSOCIATION, INC., a Florida not-for-profit corporation; Promenade Homeowners’ Association, Inc.; a Florida not-for-profit corporation; Vistas Homeowners’ of Seabrooke, Inc., a Florida not-for-profit corporation; City of Largo, a municipal corporation; W. Douglas Berry; Martha F. Berry; Pierre Bogacz; Lee Haas; Amy Haas; Michael Sexton; and Robin Sexton, Appellees.
    No. 2D10-277.
    District Court of Appeal of Florida, Second District.
    April 29, 2011.
    Steven H. Mezer, Keith D. Skorewicz, and Charles Evans Glausier of Bush Ross, P.A., Tampa, for Appellant.
    Gary M. Schaaf, Brian C. Willis, and Astrid Guardado of Becker & Poliakoff, P.A., Clearwater, for Appellees Seabrooke Homeowners’ Association, Inc.; Promenade Homeowners’ Association, Inc.; and Vistas Homeowners’ Association of Sea-brooke, Inc.
    Lee L. Haas of Haas & Castillo, P.A., Clearwater, for Appellees W. Douglas Berry, Martha Berry, Pierre Bogacz, Lee Haas, Amy Haas, Michael Sexton, and Robin Sexton.
    No appearance for Appellee City of Largo.
   MORRIS, Judge.

Homeowner’s Association of Overlook, Inc. (Overlook), appeals an order dismissing with prejudice its complaint seeking declaratory relief and relief from an earlier judgment pursuant to Florida Rule of Civil Procedure 1.540(b). We affirm the dismissal of the count seeking relief from judgment under rule 1.540(b) as well as the count seeking a declaratory judgment that the earlier judgment is invalid, but we reverse the dismissal of the count seeking declaratory judgment as to the rights of Overlook’s members and remand for further proceedings.

I. Facts

Overlook is a subdivision of multifamily homes within the larger Seabrooke development. In addition to Overlook, there are two other subdivisions within the Sea-brooke development, Promenade and Vistas, both of which include single family homes. All homeowners in the three subdivisions are required to be members of the Seabrooke Homeowners’ Association, Inc. (Seabrooke). In addition, each subdivision has its own homeowners’ association with separate declarations affecting only the properties in each of those respective subdivisions. Accordingly, each neighborhood is governed by its own declarations as well as the Seabrooke master declaration.

In May 2006, seven individual members of Seabrooke, who live in the Seabrooke subdivisions other than the Overlook subdivision, obtained a final judgment against Seabrooke. The trial court ruled that Sea-brooke’s conveyance of its roads to the City of Largo was null and void. The judgment declared Seabrooke “to be solely and exclusively responsible for repairing and maintaining the subject roads and for enforcing the restrictive covenants related thereto.”

In December 2006, Overlook filed an action against Seabrooke; Promenade Homeowners’ Association, Inc.; Vistas Homeowners’ Association, Inc.; the City of Largo; and the seven individual homeowners who obtained the judgment against Seabrooke in May 2006. In its complaint, Overlook sought a declaratory judgment as to its rights under the 2006 judgment and the Seabrooke master declaration. Overlook claimed that under the Seabrooke master declaration, Seabrooke members are not responsible for maintaining the roads in the Promenade and Vistas subdivisions and that the Promenade and Vistas declarations require the residents of those subdivisions to pay for the maintenance of the roads in those respective subdivisions. Overlook argued that the 2006 judgment left Overlook in doubt about its rights and responsibilities regarding road maintenance because the 2006 judgment holds Seabrooke members responsible for maintaining the roads in the Seabrooke development, i.e, including the roads in the Promenade and Vistas subdivisions. Overlook also sought a declaration that the 2006 judgment was invalid because it failed to include Overlook as an indispensable party.

After Overlook filed its complaint, the case was transferred by order of the chief judge of the Sixth Judicial Circuit to the trial judge who entered the 2006 judgment, but that judge recused himself “to allow a neutral party — a new trial judge, who was not involved in the first go-around[ — ]to make a decision on whether or not the prior ruling was made in error and should be set aside and proceed therefore.” Overlook’s case was then assigned to a successor judge.

The appellees then filed motions to dismiss the complaint. In September 2007, the trial court granted the appellees’ motions to dismiss, concluding that Overlook has no standing to seek declaratory relief because there was no allegation that Overlook as a homeowner’s association will bear any responsibility for the maintenance of the roads in the Seabrooke development. The trial court ruled that the Overlook members are not obligated for the road assessments as members of Overlook but as members of Seabrooke.

Overlook then filed an amended complaint, asserting the same claims for declaratory relief as well as a new claim for relief from the 2006 judgment under rule 1.540(b). Overlook contended that the 2006 judgment granted relief that was never pleaded and that the judgment was the result of fraud on the court. The amended complaint also stated that the action was brought by Overlook on behalf of all its association members.

The appellees again filed motions to dismiss. The trial court again granted the motions to dismiss, finding that in the original suit against Seabrooke, the Overlook members had standing by virtue of their status as members of Seabrooke and that they therefore cannot now come back and challenge the 2006 judgment entered in favor of Seabrooke. The trial court also ruled that Overlook could not collaterally attack the 2006 judgment. The trial court dismissed the amended complaint with prejudice in December 2009, and Overlook now appeals.

II. Analysis

On appeal, Overlook contends that the trial court erred in dismissing its amended complaint on the basis that Overlook lacked standing to file its complaint for declaratory relief. It argues that the individual members of Overlook have a financial interest separate from that of the other members of Seabrooke and that Overlook has standing to bring the suit for declaratory relief on behalf of the Overlook members pursuant to Florida Rule of Civil Procedure 1.221 and section 720.303, Florida Statutes (2007). We agree.

The amended complaint properly alleged an action by Overlook on behalf of its members. See Fla. Pritikin Ctr., Inc. v. Turnberry Isle Condo. Ass’n, 753 So.2d 798, 799 (Fla. 3d DCA 2000). The sole requirement for the bundling of a class is that the members of the association have a common interest regarding the common elements of the property. § 720.303(1); Fla. R. Civ. P. 1.221; Graves v. Ciega Verde Condo. Ass’n, 708 So.2d 1109, 1111 (Fla. 2d DCA 1997). The members of Overlook have a common interest in whether they must share in the expense of maintaining the roads in the Promenade and Vistas subdivisions of the Seabrooke development. This interest is distinct from any interest they may have as members of Seabrooke and is distinct from the interest of the other members of Sea-brooke, namely, the Promenade and Vistas homeowners. Therefore, the trial court erred in dismissing Overlook’s complaint for lack of standing.

Prior to the 2006 judgment, Overlook had successfully conveyed its roads to the City of Largo and no longer had responsibility for their maintenance. But Overlook contends that the 2006 judgment now imposes an obligation on the members of Overlook, as members of Seabrooke, to contribute to the maintenance expense of the roads in the Promenade and Vistas subdivisions when the Seabrooke master declaration does not provide for such obligation. On the other hand, the appellees argue that the Overlook members’ obligations are unchanged by the 2006 judgment because under the Promenade and Vistas declarations, the roads in the Promenade and Vistas subdivisions are common areas of the Seabrooke development, which the Seabrooke master declaration requires Seabrooke to maintain. The appellees contend that the Seabrooke master declaration imposes the sharing of expenses for the common elements on all Seabrooke members, including Overlook homeowners. A declaratory judgment is appropriate in this case. See §§ 86.011, .021, Fla. Stat. (2006); Meadows Cmty. Ass’n v. Russell-Tutty, 928 So.2d 1276, 1279 (Fla. 2d DCA 2006); X Corp. v. Y Person, 622 So.2d 1098, 1101 (Fla. 2d DCA 1993).

Accordingly, we reverse the order of dismissal and remand for the trial court to conduct further proceedings on Overlook’s claim for declaratory judgment regarding it members’ rights under the relevant declarations and the 2006 judgment.

In its second point on appeal, Overlook argues that the trial court erred in dismissing its claim for relief from judgment under rule 1.540(b) and its claim that the 2006 judgment is invalid for failure to include Overlook as an indispensable party. We conclude that there was no error in the dismissal of these claims and affirm their dismissal without further comment.

Affirmed in part; reversed in part; remanded.

DAVIS and VILLANTI, JJ„ Concur.

      . Seabrooke, consisting of the three subdivisions within it, is governed by the master declarations of covenants, easements, and restrictions. Overlook is governed by its declaration of restrictions. Promenade is governed by its master declaration of covenants, conditions, and restrictions. Vistas is governed by its master declaration of covenants, conditions, and restrictions.

      . In the meantime, Overlook also filed a motion for relief from judgment pursuant to rule 1.540(b) and a motion to intervene in the original case that resulted in the 2006 judgment. That original case was assigned to a successor judge who presided over a hearing along with the successor judge in the new action filed by Overlook. The successor judge in the original case ruled that Overlook was not an indispensable party and that the 2006 judgment was not void based on fraud. Overlook appealed, and this court affirmed. See Ciarlo v. Berry, 3 So.3d 326 (Fla. 2d DCA 2008) (table decision).

      . Although not raised by Overlook on appeal, we note that most of the confusion in this case could have been avoided if the original judge who entered the 2006 judgment had remained as the presiding judge. As the judge who entered the 2006 judgment, he was familiar with the 2006 proceedings against Seabrooke and was in the best position to evaluate whether the 2006 judgment intended to alter the rights and responsibilities of the Seabrooke members. There was no legal basis for the original judge to recuse himself. See, e.g., Jackson v. State, 599 So.2d 103, 107 (Fla. 1992) ("The fact that a judge has previously made adverse rulings is not an adequate ground for recusal. Nor is the mere fact that a judge has previously heard the evidence a legally sufficient basis for recusal.” (citations omitted)). However, Overlook did not seek timely relief to correct the original judge’s improper recusal. See State ex rel. Locke v. Sandler, 156 Fla. 136, 23 So.2d 276, 278 (1945) (" '[mjandamus will lie to compel a qualified judge to proceed with the determination of any cause properly brought before him, wherein no legal impediment to his judicially acting in such cause is made to appear in preclusion of judicial action.’ ” (quoting State ex rel. Palmer v. Atkinson, 116 Fla. 366, 156 So. 726, 728 (1934))).


text:
    Kathleen SMITH, Appellant, v. James W.P. SMITH, Appellee.
    Nos. 5D10-1711, 5D10-2389.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    Rehearing Denied June 6, 2011.
    Kathleen Smith, Las Vegas, Nevada, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Kathleen Smith appeals from an order approving the sale of certain real property pursuant to a sales contract procured by the court-appointed special magistrate. The special magistrate had been appointed by the court pursuant to a final judgment of partition. See § 64.061(4), Fla. Stat. (2008).

Our review is limited because of the lack of a transcript. In the absence of a transcript of the evidentiary hearing below, we are obligated to affirm the trial court unless fundamental error appears on the face of the appealed order. Murphy v. Murphy, 948 So.2d 864, 865 (Fla. 5th DCA 2007). No such error appears on the face of the trial court’s order.

AFFIRMED.

PALMER, ORFINGER and EVANDER, JJ., concur.

      . The injunction provisions complained of by Ms. Smith were not made a part of the trial court’s final order and are no longer in effect. Accordingly, we decline to address the validity of same.


author: KELLY, Judge.

text:
    Mary Elizabeth MILLS, Appellant, v. Darrell John MILLS, Appellee.
    No. 2D09-4541.
    District Court of Appeal of Florida, Second District.
    May 6, 2011.
    Rehearing Denied June 13, 2011.

      Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, and Robert L. Valentine, Lakeland, for Appellant.
    Stephen R. Senn of Peterson & Myers, P.A., Lakeland, for Appellee.
   KELLY, Judge.

Mary Elizabeth Mills, the former wife, appeals the final judgment dissolving her marriage to Darrell John Mills, the former husband. We reverse because the trial court erred in valuing and dividing the marital assets, in setting the amount of permanent alimony, and in failing to make proper findings regarding attorney’s fees.

Equitable Distribution

Shortly before the parties separated, the former husband sold a portion of his business for a total payout of $1,355,796. The former wife argues the trial court’s equitable distribution award must be reversed because the court distributed only a portion of the sale proceeds. She also contends the trial court erred when it awarded her funds that were depleted during the dissolution proceeding. We agree that the trial court erred in both respects and accordingly, we reverse the equitable distribution award.

The parties offered the trial court two different methods for valuing the proceeds from the sale of a portion of the former husband’s business. The former wife’s accountant valued the net proceeds of the sale as a whole without taking into account assets acquired with a portion of the sale proceeds. He arrived at the net proceeds figure of $1,296,496 by taking the sale price, adding in interest earned on the sum, and deducting taxes and money that he calculated had been used in operating the former husband’s business.

In contrast, the former husband’s accountant started with the net proceeds, and then deducted the money the parties had used to buy a condominium and the funds the former husband had used to pay income taxes, build an office building, purchase office furniture, a company automobile, and software for his business. Additionally, he testified that during the course of the parties’ separation, the former husband had made payments totaling $444,246 to the former wife. The remaining proceeds were in a money market account valued at $218,040 at the time of the final hearing.

Because the former wife’s accountant valued the sale proceeds as a whole rather than by accounting for assets purchased with the proceeds, he calculated that the former husband’s business was worth $60,000. That figure represented the corporate assets less liabilities, but it did not include any assets purchased with proceeds from the sale. In contrast, the former husband’s accountant valued the business at $593,000, a figure that included the assets purchased with the sale proceeds. The former husband’s accountant agreed with the $60,000 value if the assets acquired with the sale proceeds were valued separately.

The parties’ equitable distribution proposals reflected their different approaches to valuing the sale proceeds. In his equitable distribution plan, the former husband proposed that the $444,246 he had paid to or on behalf of the former wife be allocated to her along with the condominium. He allocated the money market account to himself. He allocated his business to himself and valued it at $60,000, which was the figure suggested by both parties’ accountants, provided the assets purchased with the sale proceeds were valued separately. His proposal did not include any of those assets, however.

In her equitable distribution scheme, the former wife included as a marital asset the proceeds of the sale, plus interest, less taxes and money that her accountant determined was used in the operation of the former husband’s business. That resulted in a figure of $1,214,050, which she allocated to herself. Consistent with her approach of valuing the sale proceeds as a whole rather than valuing the assets purchased with the proceeds, the former wife’s proposal did not include a value for the money market account, the condominium, or the assets acquired by the business.

The trial court did not accept either party’s proposal in its entirety. It did not value the sale proceeds in the manner proposed by the wife, but instead distributed the money market account, the condominium, and the husband’s business. It valued the former husband’s business at $60,000, which was the value of the business if the assets purchased with the sale proceeds were valued separately. The court did not, however, include those assets in its distribution scheme. The result was a distribution plan that did not identify and distribute all the marital assets. This was error. See § 61.075(3)(a), Fla. Stat. (2006); Lanier v. Lanier, 861 So.2d 457, 458 (Fla. 2d DCA 2003) (holding that in contested marriage dissolution proceedings the trial court is required to enter written findings of fact identifying and valuing marital assets).

Nor did the trial court allocate the $444,246 to the former wife as suggested by the former husband. The trial court found that those funds were used to pay the mortgage and upkeep on the marital residence, health insurance for the former wife, attorney’s fees for the former wife, and “other miscellaneous and personal expenses of the former wife.” Based on this, the trial court stated that it considered the payments to be part temporary spousal support, part attorney’s fees and costs, and the balance to be a partial prejudgment marital asset distribution. However, it made no finding specifying how much of the $444,246 should be allocated to these various categories.

The absence of this finding is significant here because the trial court’s distribution plan favored the former husband by approximately $74,000, and the trial court looked to the $444,246 the former wife had already received and found that a portion of that sum was a “partial prejudgment marital asset distribution,” and that it “more than equalizes the difference” in the amounts allocated to the parties. Because the court did not specify how much of the $444,246 constituted prejudgment asset distribution, we are unable to determine if the trial court’s conclusion that the distribution equalized the parties’ positions is supported by the evidence. Id. (noting that written findings of fact identifying and valuing marital assets are necessary so that “the parties or reviewing court may discern the rationale for the distribution scheme employed”). Nor can we determine whether, as the former wife contends, the court included in the distribution assets that were used for support, living expenses, or litigation expenses. If it did, this would be error because marital assets used to pay for support, living expenses, and litigation expenses should not be included in an equitable distribution scheme in the absence of misconduct. See Austin v. Austin, 12 So.3d 314, 316-17 (Fla. 2d DCA 2009).

Given the forgoing, we must reverse the equitable distribution award. On remand if the trial court includes any prejudgment asset distribution in its equitable distribution award, it must specify the amount it is including, and that amount must be supported by the evidence that was offered at the final hearing. Similarly, if it includes sums paid for support, living expenses, or litigation expenses, it must specify the amount allocated to each and it must justify the awards with a finding of misconduct that is supported by the evidence offered at the final hearing.

Because the trial court must reconsider the equitable distribution scheme, we also note the following errors in the trial court’s findings with regard to the sale proceeds. The trial court subtracted “a commission split back to the purchaser” from the total $1,355,796 proceeds. This figure was not testified to at trial, and it does not appear in the former husband’s exhibit detailing the distribution of the business sale proceeds. The trial court also subtracted from the proceeds all of the income taxes the parties paid through 2006 even though there was no evidence that the former wife was liable for all of the tax liability incurred subsequent to the date of filing in May of 2006.

Alimony

The trial court found that the former husband’s net monthly income for purposes of determining his ability to pay support was $7416. In arriving at that figure, the trial court did not include the former husband’s business income or his reimbursed and in kind payments that reduced his living expenses. This was error. As the Florida Supreme Court explained in Zold v. Zold, in determining the amount of alimony, the trial court must consider “ ‘[a]ll sources of income available to either party.’” 911 So.2d 1222, 1228 (Fla.2005) (quoting § 61.08(2)(g)); see Yangco v. Yangco, 901 So.2d 217, 219 (Fla. 2d DCA 2005). Section 61.046(7) broadly defines income as follows:

“Income” means any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government.

Because the trial court did not include the value of the former husband’s business income or the value of in kind payments made on his behalf when it determined the former husband’s ability to pay, we must reverse the award of alimony. See Dep’t of Revenue v. Hinnerschietz, 850 So.2d 625, 626-27 (Fla. 2d DCA 2003); Cozier v. Cozier, 819 So.2d 834, 836 (Fla. 2d DCA 2002); Jones v. Jones, 679 So.2d 1270, 1271 (Fla. 2d DCA 1996); Smith v. Smith, 575 So.2d 228, 228-29 (Fla. 2d DCA 1991).

For the purposes of determining business income on remand, we note that this court has. stated that to determine business income the trial court must subtract from the gross receipts ordinary and necessary expenses required to produce income. Smith, 575 So.2d at 228-29. Here, the former husband’s financial affidavit included only his salary; thus, he presented no evidence as to what his business income was for the purpose of determining his ability to pay alimony. The former wife’s accountant, however, offered testimony regarding the former husband’s business income including detailing expenses the former husband had deducted from the gross receipts of his business that were not ordinary and necessary and therefore should have been included in calculating the former husband’s business income. The former husband’s accountant, as well as the former husband, admitted that at least some of the items were not ordinary or necessary business expenses thus warranting their inclusion in the calculation of the former husband’s business income.

Because the trial court will have to reconsider the alimony award on remand, we also address the former wife’s argument that the trial court erred in determining the amount of her need. A trial court should determine the amount of alimony in accordance with the parties’ standard of living during the marriage. See, e.g., Laz v. Laz, 727 So.2d 966, 967 (Fla. 2d DCA 1998). “In determining the amount of alimony, the trial court should ensure that each party’s standard of living comes as close as possible to the prior lifestyle, given the available financial resources.” Griffin v. Griffin, 906 So.2d 386, 389 (Fla. 2d DCA 2005). Here, it appears the amount of alimony awarded in the final judgment was insufficient to meet the former wife’s needs. It also appears the trial court did not base the award on the standard of living during the marriage but rather based on a lifestyle far below the standard enjoyed during the marriage. If that is the case, it would be error. We have to speculate, however, because the trial court made no finding regarding the former wife’s need. On remand, the trial court should include findings regarding both the former wife’s need and the former husband’s ability to pay.

Attorney’s fees

The trial court denied the former wife attorney’s fees without determining the actual amount of fees incurred, finding that the prejudgment award of $444,246 was sufficient to cover the former wife’s fees. Because recalculation of the equitable distribution and alimony awards will result in a change in the parties’ overall financial picture, the trial court must also reconsider the former wife’s request for attorney’s fees. In doing so the court must properly make factual findings as to a reasonable amount of the former wife’s fees and the parties’ relative financial positions to pay those fees. See § 61.16; Dwyer v. Dwyer, 981 So.2d 1254, 1258 (Fla. 2d DCA 2008).

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

WHATLEY and NORTHCUTT, JJ„ Concur.

      . The former husband’s written summation included an attachment that purported to be his trial exhibit number seventeen, and that attachment included the "commission split back.” This attachment, however, differs from the exhibit actually introduced into evidence at trial. The exhibit offered into evidence at trial did not include, among other things, the commission figure identified by the trial court in the final judgment.


text:
    STATE of Florida, Petitioner, v. Yvonne Michelle COUSINS, Respondent.
    No. 5D10-3359.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2011.
    Rehearing Denied June 8, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Petitioner.
    Yvonne Michelle Cousins, Miami, Pro se.
   PER CURIAM.

The State of Florida petitions this court for a writ of certiorari. We grant the writ and quash the trial court’s order which modified the completed criminal sentence of the respondent, Yvonne Cousins, to reflect a withhold of adjudication.

The trial court’s order was entered following a hearing on a letter it received from Cousins, which the court treated as a motion. In the letter, Cousins requested that her criminal history records be expunged or sealed. She explained that there were extenuating circumstances surrounding her conviction and that she had not been in trouble in the ten years since her conviction. Cousins also noted that she had secured employment as a security officer, but she would be in danger of losing that job if she could not obtain a security officer’s license from the Department of Agriculture. She advised that she could not obtain such a license unless her criminal record was expunged.

While the trial court held a hearing to consider Cousins’ request, it took no action on her motion because she could not provide a certificate of eligibility as required by section 943.0585, Florida Statutes. Instead, the trial court entered an order modifying Cousins’ judgment and sentence to reflect a withhold of adjudication so that she could obtain a certificate of eligibility and file a proper motion to seal or expunge her criminal record.

The State objected below, and argues here, that the trial court lacked subject matter jurisdiction to modify Cousins’ completed sentence. We agree. As a general matter, a trial court loses jurisdiction to modify or change a sentence 60 days after the sentence is imposed or becomes final. See State v. Nichols, 629 So.2d 970, 972 (Fla. 5th DCA 1993); cf. Schlabach v. State, 37 So.3d 230 (Fla.2010); Davis v. State, 887 So.2d 1286 (Fla.2004). Certainly, a trial court lacks jurisdiction to modify a legal sentence several years after it has been completed by the defendant.

Although the trial court had the best of intentions in modifying Cousins’ criminal sentence, it acted without jurisdiction. Therefore, the State’s petition for a writ of certiorari is granted and the order of the trial court modifying Cousins’ judgment and sentence is quashed.

PETITION GRANTED; ORDER QUASHED.

SAWAYA, TORPY and JACOBUS, JJ., concur.

      . Section 943.0585 requires a person to obtain a certificate of eligibility from the Florida Department of Law Enforcement before seeking expunction of a criminal history record.


author: LaROSE, Judge.

text:
    RJG ENVIRONMENTAL, INC., a Florida corporation, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    Nos. 2D10-4215, 2D10-4216.
    District Court of Appeal of Florida, Second District.
    May 18, 2011.
    Rehearing Denied June 10, 2011.

      Mark P. Stopa of Stopa Law Firm, Saint Petersburg, for Appellant.
    Susan S. Lerner of Russo Appellate Firm, P.A., Miami; and Bernstein, Chaek-man, Liss & Rose, Hollywood, for Appel-lee.
   LaROSE, Judge.

In these consolidated appeals, RJG Environmental, Inc., challenges the trial court’s nonfinal orders transferring venue from Manatee County to Palm Beach County. We have jurisdiction, see Fla. R.App. P. 9.130(a)(3)(A), and affirm.

RJG, based in Manatee County, sued State Farm there for breach of contract and sought declaratory relief. The lawsuit stemmed from attic restoration work RJG performed for two homeowners in Palm Beach County. The homeowners assigned to RJG their rights to receive any insurance proceeds from State Farm. The contracts between the homeowners and RJG specified Manatee County as the forum for any dispute. Alleging that State Farm did not pay the full amount due for its work, RJG filed suit, claiming that the cause of action accrued in Manatee County. See § 47.011, Fla. Stat. (2009).

State Farm moved to transfer venue to Palm Beach County. State Farm argued that RJG performed the work there, that the physical evidence and the majority of witnesses were located there, and that the insurance policy was issued there. See §§ 47.011, .051. Alternatively, State Farm asserted that a venue change was proper “[f]or the convenience of the parties or witnesses or in the interest of justice.” § 47.122.

When presented with a motion to transfer venue based on the impropriety of the plaintiffs selection, the trial court must resolve any factual disputes and then determine whether the venue selection is legally supportable. Pricewaterhouse-Coopers LLP v. Cedar Res., Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999). We review the trial court’s legal conclusions de novo. Id. However, when a party moves to transfer for the convenience of the parties, the trial court faces more than one legally acceptable venue; its venue decision will stand absent an abuse of discretion. Id.; Fla. Health Scis. Ctr., Inc. v. Elsenheimer, 952 So.2d 575, 578 (Fla. 2d DCA 2007); Darby v. Atlanta Cas. Ins. Co., 752 So.2d 102, 103 (Fla. 2d DCA 2000).

RJG argues that it has a debtor-creditor relationship with State Farm, thus making Manatee County, the place where payment allegedly was due, the proper venue. But RJG seeks unliquidated damages; the amount of its recovery, if any, must be determined by presentation of evidence. See 1445 Washington Ltd. P’ship v. Lemontang, 19 So.3d 1079, 1081 (Fla. 3d DCA 2009) (explaining that damages are liquidated, such that they can be awarded against a defaulting party without a hearing, “when the exact amount due may be determined from the pleadings[; wjhere evidence must be presented to determine the amount, however, damages are unliquidated” (citation omitted)); Hartford Fire Ins. Co. v. Controltec, Inc., 561 So.2d 1334 (Fla. 5th DCA 1990) (rejecting assertion that damages were liquidated simply because a fixed sum was demanded by the complaint). The debtor-creditor rule does not apply when damages are unliquidated. Koslow v. Sanders, 4 So.3d 37, 38 (Fla. 2d DCA 2009); Dep’t of Transp. v. Cone & Graham, Inc., 884 So.2d 224, 226 (Fla. 2d DCA 2004); Hacienda Villas, Inc. v. MIA Consulting Grp., Inc., 47 So.3d 848, 849-50 (Fla. 3d DCA 2010); PDM Bridge Corp. v. JC Indus. Mfg., 851 So.2d 289, 291 (Fla. 3d DCA 2003). When there is no liquidated debt, the court looks at the allegations in the complaint to determine where the cause of action accrued and where venue lies. Sanders, 4 So.3d at 88; MIA Consulting, 47 So.3d at 850.

We cannot say with certainty that RJG established that its cause of action, based on its “place of payment” theory, accrued in Manatee County. We are constrained to observe that State Farm conceded below that it was a national company with “agents everywhere.” Although RJG did not base its venue selection on State Farm’s presence in Manatee County, see §§ 47.011, .051, we will assume, for purposes of this opinion, that venue otherwise was appropriate in Manatee County.

RJG urges us to accord significance to the venue selection provision of the contracts between RJG and the homeowners. Because State Farm allegedly made some payments to RJG in Manatee County, RJG argues that suit was preferred and required in “Manatee County [Courts].” We cannot accept this view.

A venue clause is mandatory if it states that any litigation must be initiated in a specified forum. Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 631 (Fla. 1st DCA 1999) (citing Granados Quinones v. Swiss Bank Corp. (Overseas), SA, 509 So.2d 273, 274-75 (Fla.1987)). Permissive venue clauses, on the other hand, merely consent to venue in the named forum and do not exclude, alternative fora. Regal Kitchens, Inc. v. O’Connor & Taylor Condo. Constr., Inc., 894 So.2d 288, 291 (Fla. 3d DCA 2005) (citing Granados Quinones, 509 So.2d at 274-75).

The agreements between the homeowners and RJG appear to be mandatory. But State Farm is not a party to those agreements. Even if it were, the venue provision may yield to more compelling considerations. See Interval Mktg. Assocs. Inc. v. Sea Club Assocs. IV, Ltd., 468 So.2d 262, 263 (Fla. 2d DCA 1985); Mason v. Homes By Whitaker, Inc., 971 So.2d 1029, 1030 (Fla. 5th DCA 2008). The assignments did not alter the fact that the homeowners reside in Palm Beach County where the damage occurred and where the critical witnesses are located. Although RJG’s venue selection is “meaningful” in assessing the convenience of the parties, it “is not the paramount consideration.” See Elsenheimer, 952 So.2d at 578 (quoting Darby v. Atlanta Cas. Ins. Co., 752 So.2d 102, 103 (Fla. 2d DCA 2000) (internal quotation marks omitted)). Convenience is a compelling consideration in transferring venue. Id.

We conclude that the trial court did not abuse its discretion in transferring venue to Palm Beach County. See E.I. DuPont De Nemours & Co. v. Fuzzell, 681 So.2d 1195 (Fla. 2d DCA 1996) (holding that trial court abused its discretion in not transferring venue to alternative county).

Affirmed.

DAVIS and KELLY, JJ„ Concur.


author: ALTENBERND, Judge.

text:
    Vasiliy GONCHARUK and Marina Goncharuk, Appellants, v. HSBC MORTGAGE SERVICES, INC., Appellee.
    No. 2D10-2629.
    District Court of Appeal of Florida, Second District.
    May 20, 2011.

      Gregg Horowitz, Sarasota, for Appellants.
    Enrico G. Gonzalez, Temple Terrace, for Appellee.
   ALTENBERND, Judge.

Vasiliy and Marina Goncharuk appeal a final judgment of foreclosure entered after the trial court granted a motion for summary judgment in favor of HSBC Mortgage Services, Inc. We reverse. The procedural posture of this case and the disputed issue of fact that requires reversal of the summary judgment appear to be virtually identical to those in Sandoro v. HSBC Bank, USA National Ass’n, 55 So.3d 730 (Fla. 2d DCA 2011).

The Goncharuks obtained financing on a home in Port Charlotte in 2006 from The Lending Group, which loaned the Goncha-ruks $223,000. A standard Fannie Mae/Freddie Mac Form 3010 1/01 mortgage secured the promissory note. The mortgage contains a paragraph requiring the lender to provide a notice of acceleration if the lender wishes to accelerate payment of the note when the debtor falls behind on payments. When the Goncha-ruks fell behind on their payments in 2009, HSBC Mortgage filed this foreclosure proceeding claiming that the mortgage and note had been assigned to it.

The Goncharuks filed a motion to dismiss, claiming that HSBC Mortgage had not established standing to bring the foreclosure suit because it did not have a written assignment of the loan and that HSBC Mortgage needed to file a cost bond. A few weeks later, HSBC filed its cost bond. It also filed a motion for summary judgment and supporting affidavit. It set both the Goncharuks’ motion to dismiss and its motion for summary judgment for hearing in early May 2010.

The Goncharuks did not file an affidavit in opposition to the motion for summary judgment. A day before the hearing, they withdrew their motion to dismiss and filed an answer. The answer contained several common defenses, including a claim that HSBC Mortgage had not provided the notice of acceleration that the standard language in the mortgage requires it to provide.

The trial court entered a summary judgment against the Goncharuks even though nothing in the record refuted their claim that they had not received the notice of acceleration. HSBC Mortgage seems to believe that the Goncharuks did something improper by waiting until the day before the hearing to withdraw their motion to dismiss and file an answer. At least in this context, we are aware of no rule of procedure that would prevent the Goncha-ruks from taking this step. Given that the answer contains no unusual defenses, nothing suggests that this step was taken for any improper purpose.

As we explained in Sandoro and in several earlier cases, a plaintiff who moves for summary judgment before a defendant files an answer has a difficult burden.

When a plaintiff moves for summary judgment before the defendant answers the complaint, the plaintiff “must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.”

Sandoro, 55 So.3d at 782 (quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010)). See also Howell v. Ed Bebb, Inc., 35 So.3d 167, 168 (Fla. 2d DCA 2010); Brakefield v. CIT Group/Consumer Fin., Inc., 787 So.2d 115, 116 (Fla. 2d DCA 2001).

The plaintiff must essentially anticipate the content of the defendant’s answer and establish that the record would have no genuine issue of material fact even if the answer were already on file. In Sandoro, the lender failed to address the notice of acceleration in its motion for summary judgment and accompanying affidavits. 55 So.3d at 731-32. HSBC Mortgage failed to address the same issue in this case; therefore, we must reverse the final judgment of foreclosure and remand for further proceedings.

Reversed and remanded.

VILLANTI and LaROSE, JJ., Concur.


author: GRIFFIN, J.

text:
    Teresa Lynn WILLS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2144.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2011.
    Teresa L. Wills, Ocala, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Teresa Lynn Wills [“Wills”] appeals the denial of her motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Wills has raised fifteen claims of ineffective assistance of trial counsel, one claim of cumulative error and three claims of trial court error. We have painstakingly examined all the claims properly raised under rule 3.850 and find no merit to any.

AFFIRMED.

EVANDER and JACOBUS, JJ., concur.


text:
    Harold Robert RUSSELL, Appellant, v. Holly A. McQUEEN, Appellee.
    No. 5D09-1843.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2011.
    Neal L. Betancourt, of Rotchford & Be-tancourt, P.A., Jacksonville, for Appellant.
    Raymond I. Booth III, Orange Park, for Appellee.
   PER CURIAM.

Harold Robert Russell [“Father”] appeals the trial court’s final judgment of paternity. Father contends that the trial court made several errors in determining child support. We agree that five specific errors were made, but in all other respects, we affirm the judgment. First, it was error to fail to include the cost to Father of the health insurance that covered his child in calculating child support. Second, as Holly A. McQueen [“Mother”] concedes on appeal, the court used an incorrect figure to calculate the cost of insurance. Third, the trial court’s calculation contains a double charge for unreimbursed medical expenses. It was error to use the 2007 tax return of Father, instead of the 2006 return, to calculate retroactive child support from June 1 through December 2006. Finally, it appears that the trial court erred in attributing the $89,915, shown on Father’s tax return, filed jointly with his wife, to Father as income to him. According to the tax return and the testimony, this was his wife’s salary as CEO of Russell’s Telecom. The trial court made no finding, and our review of the record discloses no evidence that this income was Father’s. To the extent of these errors, the judgment must be reversed and remanded for reconsideration and recalculation of child support.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.


text:
    Jorge ARAUJO-ESPICHAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2473.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2011.
    Jorge Araujo-Espichan, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

The appellant, Jorge Araujo-Espichan, seeks reversal of an order denying his motion to remove a lien from his inmate trust account. While the facts are somewhat confusing, it appears that the appellant filed two motions seeking the same relief below. A judge of the county court acting on one of the motions issued an order granting Araujo-Espichan’s motion for removal of improper lien. For reasons not readily apparent from the record, a judge of the circuit court rendered an order six months later denying relief on the second motion and refusing to remove the lien on appellant’s canteen funds.

The initial order issued by the county court should have ended the matter. The later order issued by the circuit court was a nullity. Accordingly, we reverse the order rendered by Judge Arnold on June 14, 2010, and remand with instructions to dissolve the lien. We further direct that the appellant be reimbursed for any funds improperly removed from his account pursuant to the lien order.

REVERSED and REMANDED.

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


text:
    Rayfield LANE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2476.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2011.
    Rayfield Lane, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Appellant challenges the summary denial of the petition for mandamus wherein he sought records pertaining to an appeal from the Circuit Court of the Eighteenth Judicial Circuit. The records attached to the petition indicate that this Court affirmed the appeal on May 5, 1982. The circuit court denied the petition based upon the erroneous assumption that the appeal was taken to the Fourth District Court of Appeal, handled by the public defender in that district and that the trial court had no jurisdiction over the West Palm Beach Public Defender. The State acknowledges that this conclusion by the trial judge was erroneous but urges, nevertheless, that we affirm based upon the “Tipsy Coachman Doctrine.” On the limited record that we have before us, we decline to affirm on that basis. Therefore, we reverse and remand this cause for further proceedings before the trial court.

REVERSED and REMANDED.

MONACO, C.J., SAWAYA and TORPY, JJ., concur.


text:
    Paul Christopher ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2498.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2011.

      James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Smith v. State, 59 So.3d 1107 (Fla.2011), (juror’s surname, without more, is insufficient to trigger inquiry as to whether strike was exercised for discriminatory reason); Carratelli v. State, 961 So.2d 312, 318 (Fla.2007) (preservation of challenge to potential juror requires more than one objection; when trial court denies or grants peremptory challenge, objecting party must renew and reserve objection béfore jury is sworn).

SAWAYA, TORPY and EVANDER, JJ., concur.


text:
    Darius Lamount WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2605.
    District Court of Appeal of Florida, First District.
    June 6, 2011.
    Darius Lamount Wilson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., HAWKES and CLARK, JJ., concur.


text:
    Kelvin L. MOSLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0897.
    District Court of Appeal of Florida, First District.
    June 6, 2011.
    Kelvin L. Mosley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., HAWKES and CLARK, JJ., concur.


text:
    Miralda MORRISON, Appellant, v. STATE of Florida DEPARTMENT OF VETERAN’S AFFAIRS and Division of Risk Management, Appellees.
    No. 1D10-3697.
    District Court of Appeal of Florida, First District.
    June 8, 2011.
    Katherine Stone Agliano of Barbas, Nunez, Sanders, Butler & Hovsepian, Tampa, for Appellant.
    Jeffrey J. Kerley and Nicolette E. Tsambis of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, the claimant asks this Court to reverse a final order denying temporary partial disability (“TPD”) benefits. She argues the denial is not based on competent, substantial evidence. Although the claimant was under intermittent work restrictions from December 2008 to March 2009, neither of her treating physicians opined that the workplace injury led to the need for restrictions. The claimant’s first doctor testified unequivocally that the work restriction he imposed did not result from the compensable injury. And the judge of compensation claims (“JCC”) discounted the testimony of the claimant’s second doctor who equivocated as to the need for restrictions and who considered it reasonable to “backdate” the work restrictions to the date of injury. See City of West Palm Beach Fire Dep’t v. Norman, 711 So.2d 628, 629 (Fla. 1st DCA 1998) (JCC can accept testimony of one physician over another). We therefore affirm the denial of TPD benefits because the claimant did not carry her burden to prove her compensa-ble workplace injury required work restrictions from the date of accident to the date of maximum medical improvement. See § 440.15(4), Fla. Stat. (2007). We further remind the workers’ compensation community that although we normally review a JCC’s order to determine whether competent, substantial evidence supports it, “[a] decision in favor of the party without the burden of proof need not be supported by competent, substantial evidence.” Fitzgerald v. Osceola County Sch. Bd., 974 So.2d 1161, 1164 (Fla. 1st DCA 2008) (citing Mitchell v. XO Commc’ns, 966 So.2d 489, 490 (Fla. 1st DCA 2007) (emphasis added)).

AFFIRMED.

BENTON, C.J., CLARK, and MARSTILLER, JJ., concur.


author: KHOUZAM, Judge.

text:
    DEPARTMENT OF REVENUE, Appellant, v. The SCHOOL BOARD OF HILLSBOROUGH COUNTY, Appellee.
    No. 2D10-3882.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.

      Pamela Jo Bondi, Attorney General, and Nicholas Bykowsky, Assistant Attorney General, Tallahassee; and Diane G. De-Wolf, Deputy Solicitor General, Tallahassee (substituted as counsel of record), for Appellant.
    Thomas M. Gonzalez and Christopher M. Bentley of Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa, for Appellee.
   KHOUZAM, Judge.

The Florida Department of Revenue appeals a final judgment entered by the circuit court in favor of the Hillsborough County School Board following its successful motion for summary judgment. The Department also filed a motion for summary judgment, which was denied. Because summary judgment should have been granted in favor of the Department rather than the School Board as a matter of law, we reverse and remand for the circuit court to enter summary judgment in favor of the Department.

On July 12, 2007, the School Board filed a request for a refund of motor fuel taxes paid during the two quarters ending in December 31, 2006, and March 31, 2007, pursuant to section 206.41, Florida Statutes (2006). In a final agency decision, the Department denied the School Board’s request for a refund of motor fuel taxes paid during those two quarters. The Department denied the refund because the requests were time-barred under subsection 206.41(5)(c)(l).

The School Board contested the refund denial by filing a timely complaint in the circuit court. See § 72.011, Fla. Stat. (2007). In the circuit court proceedings, both sides submitted motions for summary judgment arguing that there were no disputed issues of any material facts and they were entitled to summary judgment as a matter of law. The circuit court granted the School Board’s motion, denied the Department’s motion, and entered a final judgment in favor of the School Board, finding that subsection 206.41(5)(c)(l) did not apply to the School Board. The Department then brought this appeal, arguing that by its plain meaning subsection (5)(c)(l) applies to the School Board.

Subsection 206.41(4) provides for refunds on motor fuel taxes. Subsections (4)(b) and (c) state that certain persons who use motor fuel for particular purposes are “entitled to a refund.” Subsection (4)(d) provides that the taxes “shall be returned” to municipalities and counties. Under subsection (4)(e)(l), fuel taxes “shall be returned to the governing body of such school district or to such nonpublic school” that uses the fuel for certain purposes. And subsection (4)(e)(2) further requires that the “[f]unds returned to school districts shall be used to fund construction, reconstruction, and maintenance of roads and streets within the school district.” Finally, subsection (4)(e)(l) notes that “[a] school district ... shall be entitled to take a credit on the monthly diesel fuel tax return not to exceed the tax imposed ... on those gallons which would otherwise be eligible for refund.”

Subsection 206.41(5) provides the mechanism by which these refunds may be claimed:

(5)(a)l. This subsection applies to administration of the refunds provided for by subsection (4).
(c)l. No refund may be authorized unless a sworn application therefor containing such information as the department may determine is filed with the department not later than the last day of the month following the quarter for which the refund is claimed. However, when a justified excuse for late filing is presented to the department and the last preceding claim was filed on time, the deadline for filing may be extended an additional month. No refund will be authorized unless the amount due is for $5 or more for any refund period and unless application is made upon forms prescribed by the department.

It is undisputed that the School Board’s refund requests for the quarters ending in December 31, 2006, and March 31, 2007, were untimely filed under subsection 206.41(5)(c)(l). Pursuant to that subsection, the filing deadlines for these two quarters were January 31, 2007, and April 30, 2007, respectively. But the School Board filed its requests on July 12, 2007. The requests did not include any excuse for late filing, and they would have been untimely even if the School Board had been granted a one-month extension as allowed under subsection 206.41(5)(c)(l).

The circuit court nonetheless granted the School Board’s motion for summary judgment, finding that subsection 206.41(5)(c)(l) did not apply to the School Board. First, the court found that the language “shall be returned” and “is entitled to a refund” indicated a substantive difference between subsections (4)(b)-(c) and (4)(d)-(e). Based on this finding, the court concluded that the Department was required to return the funds automatically to the School Board regardless of whether the School Board followed the steps delineated in subsection (5)(c)(l). Second, the court found that failing to return the funds to the School Board would constitute forfeiture.

We review the circuit court’s decision de novo. See Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 869 (Fla. 2d DCA 2010). For the reasons set forth below, we hold that the plain language of subsection 206.41(5)(c)(l) applies to the School Board and, accordingly, the School Board is not entitled to a refund of the motor fuel taxes it paid during the two quarters in question. Instead, the Department is entitled to summary judgment as a matter of law. See id.

The phrases “shall be returned” and “is entitled to a refund” are used interchangeably throughout section 206.41. Even subsection (4)(e)(l) that the circuit court relies on uses the word “return” as well as “refund” to reference a school district’s entitlement to funds. Section 206.41 does not provide any alternative mechanism to request the “return” of funds as opposed to a “refund.” There is simply no substantive difference between the terms used.

A “basic rule of statutory construction requires a court to avoid a literal interpretation that would result in an absurd or ridiculous conclusion.” M.D. v. State, 993 So.2d 1061, 1063 (Fla. 1st DCA 2008). Here, the circuit court’s interpretation of subsections 206.41(4)-(5) would allow for an automatic return of the funds to the School Board at any time whatsoever. This interpretation is not plausible given the plain meaning of the statute. See id. (“[W]hen a statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent, or resort to rules of statutory construction to ascertain intent insofar as this would constitute an abrogation of legislative power.”). Moreover, section 206.41 does not provide any alternative mechanism to request the “return” of funds as opposed to a “refund.” Subsection (5)(e)(l) delineates the sole method of requesting the funds. The School Board was required to follow the steps outlined in subsection (5)(c)(l) to receive its tax refund or return. Unfortunately, the School Board did not do so and therefore it is not entitled to a refund or return of the motor fuel taxes it paid during the two quarters in question.

And finally, we reject the argument that the School Board has forfeited the funds. The circuit court’s reliance on criminal forfeiture cases has no application here. Subsection 206.41(2) provides that the revenues from motor fuel taxes “become state funds at the time of collection.”

Because the School Board’s refund requests were untimely filed, we reverse the final judgment entered in favor of the School Board and remand for the circuit court to enter summary judgment in favor of the Department.

Reversed and remanded with directions.

KELLY and CRENSHAW, JJ., Concur.