source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kevin George VINES v. STATE of Alabama.
    CR-09-0759.
    Court of Criminal Appeals of Alabama.
    Nov. 5, 2010.

      William C. White II, Birmingham, for appellant.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Kevin George Vines, appeals the circuit court’s denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P.

In 2008, Vines was convicted of three counts of rape in the first degree and was sentenced to concurrent terms of 15 years imprisonment. He appealed to this Court. We dismissed his appeal, without an opinion, after finding that the notice of appeal was not timely filed. See Vines v. State, 38 So.3d 658 (Ala.Crim.App.2008) (table). This Court issued the certificate of judgment on December 23, 2008.

On July 30, 2009, Vines filed a Rule 32 petition for postconviction relief. He asserted two grounds for relief. The circuit court denied the petition; this appeal followed.

I.

Vines first argues that newly discovered material facts exist that require that his convictions be vacated. Attached to his Rule 32 petition was an affidavit executed by Keisha Green, which states the following:

“I have known [K.C.] for twelve years and she would speak freely to me. Approximately six to nine months ago [K.C.] was playing with a friend of mine at a neighbor’s house. On this occasion [K.C.] confided in me that she and Kevin Vines never had sex and that the allegations leading to his conviction were untrue. When I asked why she testified untruthfully against Kevin Vines, [K.C.] told me that her mother, [M.M.], told her to do this because of jealousy of Kevin Vines being with another girl.”

(C. 17.) Attached to the State’s motion to dismiss Vines’s Rule 32 was an affidavit executed by K.C. The affidavit stated, in pertinent part:

“I, [K.C.] gave testimony in cases styled The State of Alabama v. Kevin George Vines, CC 2005-503, 504, 505 ... in March 2008. The testimony I gave in that case was true and accurate.
“I know a person by the name of Keisha Green. I have never had a conversation with Keisha Green where I stated that the testimony I gave during the trial in March 2008 was untrue.”

(C. 39.)

When denying Vines’s requested relief the circuit court stated:

“The purported newly discovered evidence in this case does not establish that [Vines] is innocent of these crimes as required by the rule. At its absolute best, this evidence is impeachment evidence, which goes to the credibility of the witnesses and is for the jury to evaluate. Nothing about this alleged recantation establishes [Vines’s] innocence. It is common for child victims to recant, especially when a parent or custodian is involved, and it generally says nothing about whether or not the events actually took place. Additionally, it bears repeating that in this case the child victim has not been shown to have recanted. Just as [Vines] maintained his innocence, the child victim maintains that she was raped on multiple occasions by [Vines]. The jury believed the child victim. No new evidence exists that compels this Court to question that determination.”

The circuit court correctly found that the evidence was merely impeachment evidence that did not meet the definition of newly discovered evidence in Rule 32.1(e), Ala. R.Crim. P. See Ex parte Frazier, 562 So.2d 560 (Ala.1989).

II.

Vines also argues that he is entitled to an out-of-time appeal because, he says, the failure to file a timely notice of appeal was through no fault of his own. See Rule 82.1(f), Ala. R.Crim. P.

When denying relief on this claim the circuit court found that the claim had “already been litigated to the Alabama Court of Criminal Appeals and decided against this petitioner.” (C. 42.)

Vines asserted the following in his Rule 32 petition:

“It has been established by the Court of Criminal Appeals that petitioner failed to appeal with the prescribed time as contemplated by Rule 32.1. It would further appear clear that this failure was of no fault of the petitioner. Petitioner was represented at all times by appointed counsel.... There is no indication that the failure to file the notice of appeal was through any fault of the petitioner.”

(C. 21-22.)

Contrary to the findings of the circuit court, this Court’s records reveal that we dismissed Vines’s direct appeal because his notice of appeal was untimely filed. Specifically, we found that Vines’s motion for a new trial was not continued in compliance with Rule 24.4, Ala. R.Crim. P., before the expiration of the 60th day; therefore, Vines’s notice of appeal, filed by his attorney, was untimely.

Vines’s claim that his direct appeal was dismissed through no fault of his was not refuted by the State nor addressed by the circuit court. “When the State does not respond to a petitioner’s allegations, the unrefuted statement of facts must be taken as true.” Smith v. State, 581 So.2d 1283, 1284 (Ala.Crim.App.1991). As we stated in Dedeaux v. State, 976 So.2d 1045 (Ala.Crim.App.2005):

“If the failure to file a timely notice of appeal is through no fault of the appellant’s, then the appellant is entitled to an out-of-time appeal. Avery v. State, 832 So.2d 664, 666 (Ala.Crim.App.2001); Noble v. State, 708 So.2d 217 (Ala.Crim.App.1997). This claim was not specifically addressed by the circuit court. However, given that this Court dismissed Dedeaux’s direct appeal as untimely, remand is necessary for the circuit court to make findings regarding this claim.”

976 So.2d at 1049. Vines’s claim regarding an out-of-time appeal, if true, entitles him to relief.

Accordingly, this case is remanded for the circuit court to make findings of fact as to whether Vines is entitled to an out-of-time appeal because, through no fault of his own, his direct appeal was dismissed as untimely. The circuit court may grant whatever relief it deems necessary. Due return should be filed in this court within 54 days of the date of this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

WISE, P.J., and WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.

      . "(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
      "(1) The facts relied upon were not known by petitioner or petitioner's counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
      "(2) The facts are not merely cumulative to other facts that were known;
      "(3) The facts do not merely amount to impeachment evidence;
      "(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
      "(5) The facts establish that petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that petitioner received.”

      . Rule 32.1(f) states, in pertinent part: "The petitioner failed to appeal within the prescribed time from the conviction or sentence itself ... and that failure was without fault on the petitioner’s part.”


author: WELCH, Judge.

text:
    Samuel Lashaun LEE v. STATE of Alabama.
    CR-09-1751.
    Court of Criminal Appeals of Alabama.
    Feb. 4, 2011.
    Rehearing Denied March 11, 2011.
    Certiorari Denied June 10, 2011 Alabama Supreme Court 1100711.
    Samuel Lashaun Lee, pro se.
    Troy King and Luther Strange, attys. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   WELCH, Judge.

Samuel Lashaun Lee appeals from the circuit court’s summary denial of his petition seeking resentencing pursuant to § 15-22-54.1, Ala.Code 1975.

On July 2, 2010, Lee filed a petition for resentencing pursuant to § 15-22-54.1, Ala.Code 1975. In his petition, Lee asserted that he had been convicted of first-degree robbery and sentenced to 15 years’ imprisonment. The trial court suspended the sentence and placed Lee on five years’ probation. Lee stated that his probation was revoked on November 10, 2004. The record does not disclose the reason for the revocation. Lee attached to his petition documents reflecting that he had completed various programs while he was incarcerated. On July 12, 2010, without requiring further information or a response from the State, the circuit court summarily denied Lee’s petition on the basis that Lee’s underlying conviction was for a violent offense. This appeal followed.

On appeal, Lee argues that the circuit court erred when it determined that he was ineligible for resentencing under § 15-22-54.1 because he is a violent offender. Lee argues that the reasoning of Holt v. State, 960 So.2d 726, 734 (Ala.Crim.App.2006), should apply when a trial court considers a petition filed pursuant to § 15-22-54.1 and that a trial court should consider the totality of the circumstances to determine whether the petitioner is a nonviolent offender. For the reasons stated below we determine that the principles announced in Holt governing the implementation of § 13A-5-9.1, Ala.Code 1975, do not apply to cases involving resentenc-ing pursuant to § 15-22-54.1, Ala.Code 1975.

The Alabama Legislature amended § 15-22-54, effective April 30, 2010, to limit incarceration in the penitentiary for eligible offenders whose probation has been revoked as the result of technical violations and to provide retroactive relief to certain inmates serving time following the revocation of probation for a technical violation. Act No. 2010-753, Ala. Acts 2010. In that same act, it added § 15-22-54.1, Ala.Code 1975, which provides for retroactive review of a sentence in a case in which the offender’s probation was revoked before the effective date of the amendment to § 15-22-54:

“(a) Any person convicted of a nonviolent offense now serving a prison sentence based on revocation of probation as a result of only technical violations shall be entitled to be resentenced upon petition to the sentencing court. Such petition shall be on a form and filed in the manner prescribed by the Administrative Office of Courts. Petitions shall be considered authorized motions for modification of sentence, assigned a unique identifier by the Administrative Office of Courts, and shall not require payment of a filing fee.
“(b) The court shall have jurisdiction to resentence the offender in accordance with the terms of this section, upon a showing of the following:
“(1) The offender successfully completed the terms of probation for six months.
“(2) Probation was thereafter revoked and the offender was sentenced to the penitentiary only as a result of technical violations of probation.
“(3) The offender has no disciplinary infractions while serving the sentence in the penitentiary.
“(4) The offender has no pending charges or convictions for a new offense.”

§ 15-22-54.1, Ala.Code 1975 (emphasis added).

In the absence of a statute like § 15-22-54.1, Ala.Code 1975, conferring jurisdiction, a circuit court loses jurisdiction to resentence a defendant 30 days after sentencing.

“[Pjursuant to Rule 24, Ala. R.Crim. P., a defendant may request, and the trial court may order, a modification of his sentence only within 30 days after sentencing. See Ex parte Hitt, 778 So.2d 159 (Ala.2000). Because the appellant filed his ‘Motion to Reconsider Sentence’ more than 30 days after he was sentenced, his request was not timely. Therefore, the circuit court did not have jurisdiction to modify the appellant’s sentences in cases CC-99-1275, CC-99-1276, CC-99-1277, and CC-99-2710. Furthermore, because it did not have jurisdiction to resentence the appellant on those cases, the circuit court’s revocation of his probation with regard to those cases is null and void.”

Cruitt v. State, 893 So.2d 1286, 1238 (Ala.Crim.App.2003).

The Alabama Supreme Court explained in Kirby v. State, 899 So.2d 968 (Ala.2004):

“Only the Legislature, within constitutional limits, has the authority to alter the jurisdiction of the circuit courts. Henderson v. State, 616 So.2d 406, 407-10 (Ala.Crim.App.1993). By passing a general act of statewide application, the Legislature can change the rules this Court has promulgated governing the administration of all courts. Ex parte Kennedy, 656 So.2d 365, 367 (Ala.1995).”

899 So.2d at 972.

A circuit court’s power to resentence a defendant is prescribed by the parameters set forth by the legislature when it changes the rules promulgated to govern the administration of the courts, based on the plain language of the statute and any judicial interpretation of ambiguous language in the statute. This Court has not yet reviewed many cases applying this new statute. See McQuieter v. State, [Ms. CR-09-1760, December 17, 2010] — So.3d -(Ala.Crim.App.2010) (holding that circuit court had jurisdiction to modify McQuieter’s sentence even though a “straight sentence” had been imposed following the revocation of his probation).

Lee relies on Holt v. State, 960 So.2d 726 (Ala.Crim.App.2006), interpreting § 13A-5-9.1, Ala.Code 1975, when he argues that the circuit court should have made a determination, based on the totality of the circumstances, whether he was a nonviolent offender. However, although § 13A-5-9.1, Ala.Code 1975, permits retroactive sentence consideration for a “nonviolent offender,” § 15-22-54.1(a), Ala.Code 1975, provides for retroactive review of a sentence following revocation of probation in limited cases and only for a defendant who had been convicted of a “nonviolent offense.” This presents a significant distinction between the two statutes and limits application of § 15-22-54.1 to a specific group of defendants based initially and solely on whether the underlying crime was a violent crime. When it enacted § 15-22-54.1 the legislature undoubtedly was aware of the term, “nonviolent convicted offender,” it had used when it enacted § 13A-5-9.1 in 2001, and it did not use the same term again in 2010 when it enacted this statute. Instead, the legislature limited application of this statute to those defendants who had been “convicted of a nonviolent offense.” This Court has noted previously the significance of the distinction between these terms:

“Had the legislature intended to preclude any inmate convicted of a ‘violent offense’ as defined in § 13A-ll-70[, Ala. Code 1975,] and/or § 12 — 25—32[, Ala. Code 1975,] from receiving the benefits of § 13A-5-9.1, it could have easily said that § 13A-5-9 would apply retroactively only to those offenders who had not been convicted of an offense defined by statute as a ‘violent offense.’ Instead, the legislature chose to state that § 13A-5-9 would apply retroactively to any ‘nonviolent convicted offender.’ ”

Holt v. State, 960 So.2d 726, 736-37 (Ala.Crim.App.2006)

The legislature has now made the distinction this Court discussed in Holt. “Principles of statutory construction instruct this Court to interpret the plain language of a statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.” Ex paHe Pratt, 815 So.2d 532, 535 (Ala.2001). We must, then, interpret the statute as it is written.

We find no support in the plain language of the statute for Lee’s argument that the trial court erred when it failed to consider whether he was a nonviolent offender based not solely on the underlying offense but on the totality of the circumstances and as discussed in Holt v. State. In enacting § 15-22-54.1, the legislature clearly limited the statute’s application to those defendants whose underlying conviction was for a nonviolent offense. The clear language of the statute does not permit a consideration of whether the offender is a nonviolent offender, based on consideration of any additional factors.

Thus, a circuit court considering a petition filed pursuant to § 15-22-54.1 must first determine whether the defendant was convicted of a “nonviolent offense” before it considers any additional parameters. Then, § 15 — 22—54.1(b), Ala.Code 1975, confers jurisdiction upon a circuit court to resentence a defendant after 30 days from the pronouncement of sentence in the underlying case only if all four elements set out in the statute are satisfied.

Section 15-22-54.1, Ala.Code 1975, does not specifically define which offenses are considered nonviolent offenses. However, the legislature has enacted a statute specifically defining the term “violent offense” in the context of sentencing. The Alabama Sentencing Reform Act of 2003 provides the most recent statutory designation of offenses deemed violent offenses. § 12-25-32(13), Ala.Code 1975. First-degree robbery is included in the list of offenses designated as violent offenses. § 12-25-32(13)a.28, Ala.Code 1975. Thus, because Lee had been convicted of an offense statutorily defined as a violent offense, he was not eligible — under the explicit terms of the statute as it is written— to be resentenced pursuant to § 15-22-54.1, Ala.Code 1975.

The circuit court had no jurisdiction to resentence Lee, and its order denying relief operated as a dismissal of Lee’s petition.

Accordingly, we affirm the circuit court’s judgment.

AFFIRMED.

WINDOM and KELLUM, JJ., concur.

      . Although the circuit court did not use the State of Alabama Unified Judicial System Form CR-63B in denying Lee's petition for resentencing, that form lists possible grounds for denial of a petition and includes that the petitioner’s conviction had been for a violent offense.


author: SALTER, J. SHEPHERD, J.,

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. SEVILLE PLACE CONDOMINIUM ASSOCIATION, INC., Respondent.
    No. 3D08-2538.
    District Court of Appeal of Florida, Third District.
    July 20, 2011.
    Maltzman Foreman, and Jeffrey B. Maltzman, Miami; Butler, Pappas, Weih-muller, Katz, Craig, and John W. Weih-muller, Tampa; Elizabeth K. Russo, Miami, for petitioner.
    Mintz, Truppman, and Mark J. Mintz, Miami; Bilzin Sumberg Baena Price & Axelrod, and Mitchell E. Widom, Miami; Ross & Girten, and Lauri Waldman Ross, Miami, for respondent.

      Colodny, Fass, Talenfeld, Karlinsky & Abate, and Maria Elena Abate and Adam S. Rubenfield, Fort Lauderdale, as Amicus Curiae, in support of Petitioner.
    Before RAMIREZ, SHEPHERD, CORTIÑAS, ROTHENBERG, LAGOA, SALTER, and EMAS, JJ.
   ON REHEARING EN BANC

SALTER, J.

On consideration of the petitioner’s motions for rehearing and rehearing en banc, the Court grants the motions, withdraws its opinion issued October 14, 2009, and substitutes the following opinion.

State Farm Florida Insurance Company seeks a writ of certiorari quashing circuit court orders that allowed Seville Place Condominium Association, Inc., to amend its complaint to add statutory and common law bad faith claims and a punitive damage claim before the entry of a final judgment on the policy-phase issues. We deny the writ — no irreparable injury has yet occurred — and issue this opinion to clarify the requirements for the exercise of our certiorari jurisdiction in such cases.

The Hurricane, the Policy, and the Claim

Seville Place is a residential condominium consisting of forty-five duplexes (for a total of ninety condominium units) in Miami Lakes, Florida. On October 24, 2005, Hurricane Wilma caused substantial windstorm damage at Seville Place, particularly to the forty-five roofs over the units.

The Association had obtained and paid for a State Farm condominium association insurance policy that was in force at the time of the storm. The policy specifically covered direct physical loss or damage to property caused by a hurricane, subject to certain deductibles and various exclusions. In the event of a dispute between the insurer and insured regarding the loss amount, the policy specified that the dispute would be resolved by appraisal:

If we [State Farm] and you [the Association] disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. Each party will notify the other of the selected appraiser’s identity within 20 days after receipt of the written demand for an appraisal. The two appraisers will select an umpire. If the appraisers cannot agree upon an umpire within 15 days, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding.... If we submit to an appraisal, we will still retain our right to deny the claim.

The Association made a claim under the policy for its hurricane-related loss. In January 2006, State Farm made two payments on the claim to the Association in the total amount of $90,564.62, apparently based on a calculation that the roofs could be repaired rather than replaced. The Association’s estimate exceeded $4.6 million, based on an assessment that the roofs would have to be replaced. In October 2006, the Association made a written demand for appraisal under the policy.

The Appraisal and Award

State Farm and the Association did not reach agreement regarding the Association’s right to invoke appraisal and any conditions applicable to that process. In February 2007, the Association commenced a circuit court action against State Farm for breach of the insurance contract and for declaratory relief regarding coverage and State Farm’s waiver of policy defenses. State Farm filed its own motion to enforce the appraisal provision, asserting that it had “at all times agreed to and does further hereby agree to proceed with appraisal,” but also seeking certain conditions.

The circuit court then ordered the parties to appraisal (without the conditions sought by State Farm) and ultimately appointed a neutral umpire to conduct the appraisal with each party’s designated appraiser. The trial court allowed sixty days for the completion of the appraisal process and directed the appraisers to “informally produce” the basis for the amount of the loss.

After further proceedings, the trial court set a final appraisal hearing for June 28, 2008. The day before that hearing, however, State Farm filed an emergency motion and affidavit seeking removal of the neutral umpire previously appointed by the court. State Farm later supplemented this motion with a request for an “entirely new panel to conduct a new appraisal,” asserting that otherwise it would “require many weeks, months, and possibly even years to sort through the multiple issues related only to this highly problematic and invalid appraisal gone wrong.”

The Association’s appraiser and the umpire ultimately signed a “final appraisal award” fixing the insured loss at $2,960,405 after hearing or seeing all evidence provided by State Farm and the Association. The award made it clear that it excluded any interest, costs, and attorney’s fees that might be determined by the court, and that it should be reduced by amounts previously paid by State Farm and any applicable deductible.

Confirmation of the Appraisal; Amendment

Before the appraisal began, State Farm acknowledged that the policy was in effect and that some part of the Association’s claim was covered by making the January 2006 payments. In the lawsuit, State Farm asserted thirteen amended affirmative defenses. These included allegations that the Association had failed to comply with post-loss conditions imposed by the insurance policy, and that certain items claimed by the Association were excluded from coverage: condominium unit owner personal property; wall and floor coverings, drapes, lighting units, and other items within the interior of the units; water damage following the hurricane; wear and tear to covered property, including rust and damage due to water seepage over a period of time; and any loss occurring as a result of faulty design or maintenance. Following the filing of the final appraisal award, the trial court confirmed the award, denied State Farm’s emergency motion for removal of the neutral umpire, and granted the Association’s motions to amend the complaint to add the statutory bad faith claim, a common law “breach of implied covenant of good faith” claim, and a demand for punitive damages. The court also determined that State Farm’s affirmative defenses had been subsumed in the confirmation order “and/or such defenses were waived by State Farm.” The trial court did not enter a final judgment fixing a total amount of principal and any prejudgment interest in a form ready for execution (or ripe for appeal). State Farm’s petition for certiorari followed.

Applicable Florida Law

It is well settled that a statutory first-party bad faith action is premature until two conditions have been satisfied: (1) the insurer raises no defense which would defeat coverage (an issue for the judicial process rather than the appraisal process), or any such defense has been adjudicated adversely to the insurer; and, (2) the actual extent of the insured’s loss must have been determined. Vest v. Travelers Ins. Co., 753 So.2d 1270, 1275-76 (Fla.2000); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55 (Fla.1995). The original panel opinion and dissent in this case applied these principles to a case in which extent of loss was determined by appraisal rather than a judicial process, and in which no final, appealable judgment had been rendered.

Upon rehearing en banc, however, we have concluded that we should not exercise certiorari jurisdiction to resolve those interesting and important questions of law at this procedural point in the case below. “For an appellate court to review a nonfinal order by petition for certiorari, the petitioner must demonstrate that the trial court departed from the essential requirements of law, thereby causing irrepa-rabie injury which cannot be adequately remedied on appeal following final judgment.” Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000).

State Farm’s petition is directed to an order allowing amendments to a complaint and an order denying reconsideration of that order. On the record before us, no discovery pertaining to the bad faith claims or the punitive damages claim has yet been sought or compelled, and State Farm has not yet responded to the second amended complaint. No irreparable injury has yet occurred, and none is certain to follow. We must therefore deny the present petition. Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 650 (Fla. 2d DCA 1995).

To the extent that we previously have granted such a petition when irreparable harm seems possible rather than imminent, we recede from such decisions. For example, in North Pointe Insurance Co. v. Tomas, 999 So.2d 728, 728-29 (Fla. 3d DCA 2008), we granted an insurer’s petition and quashed “a non-final order denying a motion to dismiss or abate a bad faith claim arising out of a dispute over homeowners’ insurance coverage,” remanding for “abatement of the bad faith claim pending disposition of the breach of contract action.” While the bad faith claim in the trial court may have been premature in that case, the irreparable harm requirement had not yet been satisfied.

Similarly, we recede from the broad holding that “certiorari is available to challenge a premature bad faith claim or premature bad faith discovery.” XL Special ty Ins. Co. v. Skystream, Inc., 988 So.2d 96, 98 (Fla. 3d DCA 2008). Premature bad faith discovery and an order granting a motion to compel production of an insurer’s claims file (or denying a motion for a protective order directed to such documents) may demonstrate an irreparable harm, but an order merely permitting amendment to add an allegedly-premature bad faith claim does not. For the same reason, a trial court order denying a motion to dismiss an allegedly-premature bad faith claim would not, without more, satisfy the “irreparable harm” requirement for certiorari; that form of alleged injury can be remedied on direct appeal. See State Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So.2d 633, 636 (Fla. 2d DCA 2008).

Conclusion

In this case, State Farm’s petition did not establish irreparable, material harm, a threshold requirement for the issuance of a writ of certiorari. Riano v. Heritage Corp. of So. Fla., 665 So.2d 1142, 1145 (Fla. 3d DCA 1996).

Petition denied; stay order entered November 5, 2008, vacated.

RAMIREZ, CORTINAS, ROTHENBERG and LAGOA, JJ., concur.

SHEPHERD, J.,

concurring.

I write to clarify my view that the more appropriate disposition of this case is a dismissal of the petition. The point is more than just academic.

As Judge Chris Altenbernd has written with characteristic lucidity in Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646 (Fla. 2d DCA 1995):

The case law usually explains that a certiorari petition must pass a three-prong test before an appellate court can grant relief from an erroneous interlocutory order. A petition must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on post-judgment appeal. See Gulf Cities Gas Corp. v. Cihak, 201 So.2d 250 (Fla. 2d DCA 1967). While this traditional test is correct, the grammar of the test places the description of the appellate court’s standard of review on the merits before the two threshold tests used to determine jurisdiction.

Id. at 648. Thus, the first order of business for a court presented with a petition to review an interlocutory order by certio-rari is to determine whether the order will result in material injury for the remainder of the case that cannot be corrected on postjudgment appeal. This inquiry determines whether the reviewing court has jurisdiction to consider the petition at all. If the answer to that question is “no,” the petition should be dismissed. Id. The court’s labor is at an end. If the answer is “yes,” then, and only then, the court may address the second and final question — is the order a “departure from the essential requirements of the law?”

At this juncture, three additional options open to the reviewing court are to: (1) deny the petition; (2) deny the petition on the merits; or (3) grant relief. See Topps v. State, 865 So.2d 1253 (Fla.2004). The first of these options is intended to encompass only “ ‘procedural bars’ ... meaning that the case, claim, or issue is precluded in some manner from being considered on the merits.” Id. at 1254. Examples of the proper use of this option include the denial of a petition on the ground it is moot, barred by the doctrines of res judicata or collateral estoppel, or a denial in the exercise of the court’s discretion. Id. at 1254-55, 1257. Although occasionally misused to signify a dismissal of the petition for lack of jurisdiction, see Parkway, 658 So.2d at 649 n. 3, the proper uses of this option are limited. Furthermore, any elaboration by a court on such a denial, beyond explaining why the petition is procedurally barred, is surplus and of no prec-edential value. State ex rel. Biscayne Kennel Club v. Bd. of Bus. Regulation, 276 So.2d 823, 826 (Fla.1973) (stating that where a statement of a district court of appeal is not essential to the decision of that court, or “obiter dictum,” it is without precedential value). In contrast, an order denying “on the merits” a petition for cer-tiorari or a grant of a petition is a decision on the merits and the appellate court’s holding is of precedential import. Topps, 865 So.2d at 1255.

Despite this well-established legal construct, the en banc court in the case before us reasons, in footnote five, “Because we have jurisdiction under Article V, Section 4(b)(3) of the Florida Constitution, we will instead “deny” the petition for failure to establish the prerequisites for a consideration of its merits.” See En Banc Op. at p. 8, note 5. This reasoning is incorrect.

Article V, section 4(b)(3) does not confer jurisdiction on this court or any other district court of appeal in a particular case. It is merely an express recognition of the supervisory power the higher courts of this state always have had over the courts inferior to them, even when the power was not expressly stated in the Florida constitution. A casual reading of Article V, section 4(b)(3) confirms the point:

A district court of appeal or any judge thereof may issue writs of habeas corpus returnable before the court or any judge thereof or before any circuit judge within the territorial jurisdiction of the court. A district court of appeal may issue writs of mandamus, certiorari, prohibition, quo warranto, and other writs necessary to the complete exercise of its jurisdiction. To the extent necessary to dispose of all issues in a cause properly before it, a district court of appeal may exercise any of the appellate jurisdiction of the circuit courts.

Art. V, § 4(b)(3), Fla. Const, (emphasis added). Although the power has sometimes been modified or curtailed by law, it is a power that inheres in all American reviewing courts, whether state or federal, and whether or not expressly stated. See Haines, 658 So.2d at 525; George E. Harris, A Treatise on the Law of Certiorari §§ 1-6 (The Lawyers’ Co-Operative Publishing Co. 1893); S.A. de Smith, The Prerogative Writs, 11 Cambridge L. J. 40, 45-46 (1951). On the other hand, the law relating to the uses of the writ, whether common law or statutory, has come down to us through the centuries of upheaval and development of English and American jurisprudence. As previously discussed, that law in this State, as it relates to the petition before us, requires that we dismiss the petition.

The distinction made is not one without a difference. As William H. Rogers and Lewis R. Baxter, two students of the uses of the writ of certiorari, wrote sixty years ago:

The constitutional provisions, the statutes, and the court rules are instrinsi-eally plain enough; but the decisions are confusing. It is a striking aspect of the case law of certiorari, in Florida as elsewhere, that major portions of many opinions consist of dicta, wholly unnecessary to the decision. These dicta mislead the bar and afford the bench “authority” for later decisions of questionable soundness.

William H. Rogers & Lewis R. Baxter, Certiorari in Florida, 4 U. Fla. L. Rev. 477, 477 (1951) (footnote omitted). If we wish to have a rightful claim to require members of the Bar to be judicious and disciplined when deciding whether to petition this court for the extraordinary relief represented by an original writ, such as a petition for certiorari, we must be equally vigilant in disciplining ourselves so as not to contribute to the confusion that so often surrounds its use.

That said, I agree with that portion of the en banc opinion in which the court recedes from its decisions in North Pointe Insurance Co. v. Tomas, 999 So.2d 728 (Fla. 3d DCA 2008), and XL Specialty Insurance Co. v. Skystream, Inc., 988 So.2d 96 (Fla. 3d DCA 2008). Unlike our sister courts, see Illinois Nat’l Ins. Co. v. Bolen, 53 So.3d 388, 389-90, (Fla. 5th DCA 2011); XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So.2d 578, 587 n. 7 (Fla. 1st DCA 2006), petition for cert. filed, No. SC 06-1303 (Fla. June 29, 2006), and dismissed No. SC06-1303 (Fla. Sept. 9, 2008); United Auto. Ins. Co. v. Tienna, 780 So.2d 1010, 1011 n. 4 (Fla. 4th DCA 2001); Mich. Millers Mut. Ins. Co. v. Bourke, 581 So.2d 1368, 1370 (Fla. 2d DCA 1991), which have reached the issue and concluded that a bad faith claim is premature and does not accrue until the underlying insurance contract action is concluded and “the ... carrier’s appeal has been finally determined,” see Bolen, 53 So.3d at 389-90, the message of this court today is that we will not exercise our jurisdiction to review orders granting leave to amend to add a bad faith claim, denying a motion to dismiss a bad faith claim, or prematurely lifting an order abating a bad faith claim on the ground the claim itself was brought prematurely, but rather will wait for a proper case.

I would dismiss the petition for certiora-ri in this case.

EMAS, J., concurs.

      . § 624.155, Fla. Slat. (2008).

      . The trial court entered an order confirming the appraisal award, determining that the Association "is entitled to judgment thereon," and holding that State Farm’s affirmative defenses were not meritorious "and/or such defenses were waived by State Farm.” That order did not, however, assure that no further policy-phase damages would be sought by the insured, provide for execution, or constitute a final, appealable judgment.

      .The gross amount of loss computed by State Farm was $324,017. The lesser amount paid reflected a deduction for depreciation and for the applicable deductible.

      . Shortly after the petition was filed, we stayed proceedings in the lower court case pending further order here. We now vacate that stay.

      . In Parkway, the petition was "dismissed” (for failure to invoke the court’s certiorari jurisdiction). Because we have jurisdiction under Article V, Section 4(b)(3) of the Florida Constitution, we will instead "deny” the petition for failure to establish the prerequisites for a consideration of its merits.

        . My remarks in this concurrence are directed to a petition for certiorari taken from a non-final order before the entry of final judgment or decree. When certiorari is invoked to seek review of a final judgment or order from a lower tribunal, the appellate court’s jurisdiction and scope of review are somewhat different than when examining a non-final order. See Parkway, 658 So.2d at 648 n. 2 (citing Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995)).

      . Prior to 1939, a petition for writ of certiora-ri involved a clearly defined two-stage proceeding. The court first determined whether it had jurisdiction to review the order. It then received additional briefing and decided whether the order departed from the essential requirements of the law. William A. Haddad, Common Law Writ of Certiorari in Florida, 29 U. Fla. L. Rev. 207, 208 (1977). Although the separate briefing stages have been eliminated, it still is necessary for an appellate court to conduct a jurisdictional analysis prior to testing whether the non-final order passes the standard of review on its merits. Parkway Bank, 658 So.2d at 649.

      . The Florida Constitutions of 1838, 1861, and 1865 did not expressly confer jurisdiction in certiorari on the supreme court or the circuit courts; but they did expressly vest the Florida Supreme Court with "general superintendence and control of all other Courts.” The Constitution of 1868, for the first time, expressly vested jurisdiction in certiorari in both the supreme court and the circuit courts. See Art. V, § 2, Fla. Const. (1838); Art. V, § 2, Fla. Const. (1861); Art. V, § 2, Fla. Const. (1865); Art. VI, § 5, Fla. Const. (1868).

      . As is well known, the people of Florida in 1980 formally removed the certiorari power from the Florida Supreme Court. See S.J.R. 20-C (Spec. Sess. 1979), adopted Mar. 11, 1980. However, the court performs much the same supervisory and law declaring functions it always has performed through a series of well-defined discretionary review provisions, which were modernized and codified in the Florida Constitution during the same period. See Art. V, § 3(b)(3)-(6), Fla. Const. (1980).

      . The additional writs that have survived hundreds of years of development in England and managed to make the transatlantic voyage to this country are prohibition, mandamus, quo warranto and habeas corpus. See Alto Adams & George J. Miller, Origins and Current Status of the Extraordinary Writs, 4 U. Fla. L. Rev. 421 (1951).

      . Orders granting discovery, on the other hand, traditionally have been reviewed by cer-tiorari. See e.g., State Farm Fla. Ins. Co. v. Puig, 62 So.3d 23 (Fla. 3d DCA 2011); City of Key West, Tree Comm'n v. Havlicek, 57 So.3d 900 (Fla. 3d DCA 2011); Am. Ed. Enters., LLC v. Bd. of Trs., 45 So.3d 941 (Fla. 3d DCA 2010); Procter & Gamble Co. v. Swilley, 462 So.2d 1188 (Fla. 1st DCA 1985); Greyhound Lines, Inc. v. Jackson, 445 So.2d 1107 (Fla. 4th DCA 1984); Boucher v. Pure Oil Co., 101 So.2d 408 (Fla. 1st DCA 1957).


author: WELLS, Chief Judge.

text:
    Fern P. CLARKE, Appellant, v. Clifford HENDERSON, Mae A. Henderson, Tiffany Taylor, Kandyse Taylor and Rodney C. Taylor, II, Appellees.
    No. 3D10-2557.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 2011.

      Entin & Della Fera, and Alvin E. Entin, Ft.Lauderdale; Rosen Switkes & Entin, Josua M. Entin and Mendy Halberstam, Miami Beach, for appellant.
    Harold Long, Jr., for appellees.
    Before WELLS, C.J., and SHEPHERD and EMAS, JJ.
   ON MOTION FOR REHEARING

WELLS, Chief Judge.

The appellees seek rehearing following the issuance of our opinion on July 6, 2011. In order to clarify a minor factual point, we grant rehearing, withdraw our prior opinion, and substitute this opinion in its place.

In this action involving the sale and ownership of real property, Fern P. Clarke, the plaintiff below, appeals from an order granting a motion for judgment on the pleadings entered on a determination that Clarke’s complaint and the exhibits thereto fail to establish that Clarke has any interest to assert in the property at issue. See Fla. R. Civ. P. 1.140(c) (“After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.”). Finding that the trial court applied the incorrect legal standard for reviewing a motion for judgment on the pleadings, we reverse. See Swim Indus. v. Cavalier Mfg. Co., 559 So.2d 301, 301 (Fla. 2d DCA 1990) (stating that a Rule 1.140(c) motion “must be decided wholly on the pleadings and may only be granted if the moving party is clearly entitled to a judgment as a matter of law”).

The complaint and its attachments aver the following: the property at issue here is the former marital home of Rodney C. Taylor, Sr. (now deceased) and his former wife, Ruby Taylor. Ruby acquired the home in the divorce from Taylor, Sr., living in it thereafter with their three children, Tiffany, Kandyse and Rodney, II. When Ruby could not pay the mortgage on the home, it “ended up” in the hands of her relatives, Clifford and Mae Henderson. When the Hendersons also encountered difficulty in paying the mortgage, they allegedly approached the former husband, Taylor, Sr., about buying the home. At that time, Taylor, Sr. was in a relationship with the plaintiff, Fern P. Clarke. According to Clarke, it was the parties’ intention that Taylor, Sr. and Clarke would pay off the mortgage on the home, after which Ruby and the three children would continue to live there in return for payment of rent to Taylor, Sr. and Clarke.

On or about February 5, 2005, a personal check was tendered to the Hendersons for the remainder due on the home’s mortgage ($57,374.68). That same day, the Hendersons attempted to execute a quit claim deed to Taylor, Sr. and Clarke. For the next year, Ruby and the children paid rent on the property to Taylor, Sr. and Clarke. There apparently was no written contract of purchase and sale for the home, nor was there a written lease agreement.

In March 2005, Clarke and Taylor, Sr. learned that the quit claim deed provided by the Hendersons had been refused by the Miami-Dade County recording office because only Clifford Henderson had executed it. They subsequently learned that the Hendersons had never cashed the personal check Clarke and Taylor, Sr. had given to them to purchase this property. Thus, on or about May 9, 2005, a cashier’s check was issued for the amount then due on the mortgage ($56,198.12). According to Clarke, although the funds used to satisfy this mortgage came from an account in Taylor, Sr.’s name alone, the funds in the account belonged (at least in some part) to her. This check, unlike the first check tendered, was used to satisfy the Henderson’s mortgage. Thereafter, in December 2005, the Hendersons executed a warranty deed conveying this property to both Clarke and Taylor, Sr. The Miami-Dade County recording office again refused to record the warranty deed, this time allegedly because it was not properly witnessed.

At this juncture, Clarke and Taylor, Sr. hired an attorney who, on July 11, 2006, wrote to the Hendersons advising them of the defect in the warranty deed and enclosing yet another deed (this one drafted by their attorney) conveying the property to Clarke and Taylor, Sr. This deed was never executed. Rather, on August 3, 2006, the Hendersons conveyed the property to Taylor, Sr.’s and Ruby’s three children. Sometime after these events, Taylor, Sr. passed away.

On November 30, 2009, Clarke brought the instant action against the Hendersons and Ruby’s three children, alleging claims for specific performance (Count I), constructive trust (Count II), unjust enrichment (Count III), breach of oral contract (Count IV), civil theft (Count V), fraud in the inducement (Count VI) and fraudulent transfer (Count VII). The defendants, all represented by the same counsel, answered and raised various affirmative defenses, which Clarke denied. The defendants thereafter filed a Rule 1.140(c) motion for judgment on the pleadings, arguing that the claims were barred by the statute of limitations and that Clarke lacked standing to maintain the action because she had failed to establish that she is a real party in interest. Finding that the complaint and the documents attached thereto failed “to establish entitlement to or ownership of the property” by Clarke, the motion was granted.

It is well settled that a Rule 1.140(c) motion for a judgment on the pleadings must be decided wholly on the pleadings — which includes consideration of exhibits attached thereto — and may only be granted if the moving party is clearly entitled to a judgment as a matter of law. See Swim Indus., 559 So.2d at 301; see also Fla. R. Civ. P. 1.130(b) (“Any exhibit attached to a pleading shall be considered a part thereof for all purposes.”); Shay v. First Fed. of Miami, Inc., 429 So.2d 64, 65 (Fla. 3d DCA 1983) (considering the “facts asserted in appellants’ complaint and exhibits thereto” in analyzing a Rule 1.140(c) motion for judgment on the pleadings). In making this determination, all material allegations of the opposing party’s pleadings must be taken as true, and all those of the movants, which have been denied, must be taken as false. See Butts v. State Farm Mut. Auto. Ins. Co., 207 So.2d 73, 75 (Fla. 3d DCA 1968). “If the pleadings themselves reveal that there are no facts to be resolved by a trier of fact, the court may apply the law to the uncontroverted facts and enter a judgment accordingly.” Hart v. Hart, 629 So.2d 1073, 1074 (Fla. 2d DCA 1994). However, if factual questions remain, judgment should not be entered. Id.

In this case, the allegations of the complaint and the attachments thereto, taken as true, establish that Clarke provided some or all of the funds to satisfy a mortgage on a home titled in the Henderson’s name in exchange for an interest in the home; the Hendersons made two defective attempts to transfer some title interest to Clarke; and, after having failed to successfully transfer title to Clarke, the Hendersons improperly transferred title to Taylor, Sr.’s three children. While these allegations, and the documents which support them, are insufficient to demonstrate a current ownership interest in Clarke as the trial court found, they are sufficient to support a claim for relief to establish such an interest. See Butts, 207 So.2d at 75 (stating that the “test to be applied in [instances such as this] is the same as if defendant were to have moved to dismiss the complaint for failure to state a cause of action”).

Because the complaint and its exhibits allege sufficient facts to state some cause of action entitling Clarke to relief and because the facts alleged (including those stated by the defendants and denied by Clarke) do not as a matter of law entitle the defendants to a judgment, the order granting a judgment on the pleadings must be reversed. See Swim Indus., 559 So.2d at 301 (“A motion for judgment on the pleadings filed pursuant to Florida Rule of Civil Procedure 1.140(c) must be decided wholly on the pleadings and may only be granted if the moving party is clearly entitled to a judgment as a matter of law.”).

Accordingly, the order on appeal is reversed with this cause remanded for further proceedings.

      . It was further alleged that the parties allowed for the possibility that Ruby and/or the children might buy the house from Taylor, Sr. and Clarke at some point in the future.


author: CLARK, J.

text:
    FLORIDA DEPARTMENT OF REVENUE OBO Trissa PROVEAUE, Appellant, v. Noah WILLIAMS, Appellee.
    No. 1D10-5987.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2011.
    Pamela Jo Bondi, Attorney General and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellant.

      No appearance for Appellee.
   CLARK, J.

The Department of Revenue (Department) appeals the circuit court’s order adopting the Child Support Hearing Officer’s Report and Recommendation as the Order of the court, which included a ruling granting Appellee’s Motion for Modification. The Department asserts that the circuit court entered the modification provisions without jurisdiction, in light of section 409.256, Florida Statutes. We disagree and affirm.

Appellee’s child support obligations were originally established by the Department’s final administrative support order entered on May 28, 2008, via the process described in section 409.2568, Florida Statutes. The administrative order was entered without a hearing because Appellee failed to request one. The administrative support order required Appellee to pay current support and arrearages, for a monthly total of $438.63 beginning on June 15, 2008.

The Department initiated enforcement proceedings in circuit court on August 24, 2009 by filing its Petition for Enforcement of Administrative Order. Appellee responded to the petition and requested a hearing. Both parents attended the hearing, along with counsel for the Department. Based on the hearing, the child support hearing officer submitted two reports and recommendations to the circuit judge and the court adopted each of these reports as orders of the court. The first order recognized the Department’s administrative child support order and adopted the $433.63 monthly child support obligation of the father. The second order referenced an ore terms motion by the parents during the hearing, requesting modification of the child support payment amount due to the current financial situation of each parent. In its second order, the trial court made factual findings regarding the parties’ incomes, prior support obligations, etc., and ordered that beginning October 1, 2010, the father’s monthly child support payment would total $237.00.

The Department argues that the second order, which prospectively reduced the father’s total payments from $433.63 per month to $237.00 per month, was entered without jurisdiction. The Department relies on sections 409.2563(11) and (12), Florida Statutes, for its position that the Department has the sole authority to modify its administrative orders and a circuit court has no jurisdiction to do so. We find to the contrary. The provisions of section 409.2563 provide for a circuit court’s prospective modification of child support payments originally established by administrative support order.

The introductory language in section 409.2563, Florida Statutes specifically describes the legislative intent of the statute:

It is not the Legislature’s intent to limit the jurisdiction of the circuit courts to hear and determine issues regarding child support. This section is intended to provide the department with an alternative procedure for establishing child support obligations in Title IV-D cases in a fair and expeditious manner when there is no court order of support.

§ 409.2563(2)(a), Fla. Stat. In addition, section 409.2563(10)(c), Florida Statutes clearly recognizes the circuit court’s authority to issue an order prospectively changing the support obligation thusly:

(c) A circuit court of this state, where venue is proper and the court has jurisdiction of the parties, may enter an order prospectively changing the support obligations established in an administrative support order, in which case the administrative support order is superseded and the court’s order shall govern future proceedings in the case ....

§ 409.2563(10)(c), Fla. Stat. (emphasis added). The portions of section 409.2563 relied upon by the Department each refer to superseding orders by the circuit court. § 409.2563(11) & (12), Fla. Stat.

In Dept. of Revenue ex rel. Chamberlain v. Manasala, 982 So.2d 1257, 1259 (Fla. 1st DCA 2008), this District Court of Appeal recognized that when read together, sections 120.68(2) and 409.2563(10), Florida Statutes “authorize the circuit court to supersede the entry of an administrative support order by entering only a prospective order modifying the child support award.” The order on appeal in this case is exactly that — a prospective order modifying Appellee’s child support payments from $433.63 per month to $237.00 per month. The court did not apply any modifications retrospectively or change the amount of arrearages previously recognized.

Because Appellant has failed to establish that the circuit court’s order was entered without jurisdiction or in violation of any applicable statutes, the order on appeal is AFFIRMED.

WOLF and THOMAS, JJ., concur.


text:
    Bradley H. YOUNG, D.C., as assignee of John J. Puskas, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
    No. 1D11-3743.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2011.
    Woodburn S. Wesley, Jr., of Wesley, McGrail & Wesley, P.A., Crestview, for Appellant.
    Vicki S. Graves, of James C. Rinaman, III, & Associates, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of July 28, 2011, the Court has determined that the notice of appeal failed to timely invoke the Court’s jurisdiction pursuant to Florida Rule of Appellate Procedure 9.160(b). Accordingly, the appeal is dismissed as untimely.

DAVIS, PADOVANO, and RAY, JJ., concur.


text:
    Michael L. SPICER, Appellant, v. STATE OF FLORIDA, DEPARTMENT OF REVENUE, on behalf of Angel M. SPICER, Appellee.
    No. 1D11-3862.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2011.

      Luke Newman, Tallahassee, for Appellant.
    Albert Thorburn, General Counsel, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Catsicas v. Catsicas, 669 So.2d 1126 (Fla. 4th DCA 1996). Any remedy the appellant may have lies with the lower tribunal. Cf. Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983). The appellee’s Motion to Dismiss, filed on August 2, 2011, is denied as moot.

VAN NORTWICK, ROWE, and SWANSON, JJ., concur.


author: BENTON, C.J.

text:
    Leroy JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4515.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2011.

      Nancy A. Daniels, Public Defender, Steven Seliger, Assistant Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

Charged with robbery while armed with a firearm, Leroy Jones entered a guilty plea then, before sentencing, sought to withdraw the plea. He contends on appeal that the trial court erred in denying his motion to withdraw plea, a motion he drafted pro se at the trial court’s request. Because the trial court did not appoint conflict-free counsel to assist him, we reverse his conviction and seventeen-year sentence, and remand for further proceedings.

Sixteen years old at the time, Mr. Jones entered a guilty plea “straight up” before Judge Bryan on August 20, 2009, with appointed defense counsel, Mr. Hendrick, but no guardian or parent present. At a subsequent hearing before Judge Fina, Mr. Hendrick informed the trial court that his client wanted to withdraw his guilty plea and stand trial, saying:

... I believe that for there to be any valid consideration that the grounds would have to include some type of either error or misconduct on my part. Then obviously I can’t go forth and propound a motion to withdraw plea. I believe that this is ... very similar to a case ... where the First DCA pretty much said that in a situation of a motion to withdraw plea when there’s potential grounds that would — where the attorney did not feel that he could argue the grounds that the client[ is] purporting in that situation, that the Court should have appointed independent counsel.
I’m, I am here to tell the Court, I know that the Court may feel that this is putting the cart before the horse, but that’s why I indicated that Mr. Jones is 16 years old and would not know how to put together his own motion to withdraw plea. If he was, if he was an actual adult and had some education and would know what grounds to put in a motion to withdraw plea, based on discussions I had with him, it is counsel[’]s position, as an officer of the Court, that we are, would be in an adverse position. And so I am asking the Court to appoint independent counsel to explore whether or not there is a valid motion to withdraw the plea.... I think the current case law stands for the fact that there at least needs to be an opportunity for Mr. Jones ... to consult with independent counsel to determine grounds for such a motion.

But the trial court directed Mr. Jones to prepare a written statement or motion to withdraw his plea on his own, specifying grounds. Mr. Jones told the court that his motion to withdraw plea did not spring from any deficiency in Mr. Hendrick’s representation, but Mr. Hendrick did not assist him in drafting the motion; and the trial court did not appoint other counsel to assist.

A motion to withdraw a plea, filed pursuant to Florida Rule of Criminal Procedure 3.170(f) prior to sentencing, is a critical stage of the proceedings at which a defendant is entitled to representation by counsel. See Roberts v. State, 670 So.2d 1042, 1045 (Fla. 4th DCA 1996). See generally Krautheim v. State, 38 So.3d 802, 804-05 (Fla. 2d DCA 2010) (“A motion to withdraw plea is a critical stage of the proceedings at which a defendant is entitled to be present and to have counsel represent him ... and to assist him with respect to his motion to withdraw plea.” (citations omitted)); Grainger v. State, 906 So.2d 380, 382 (Fla. 2d DCA 2005), declined to follow on other grounds, Sheppard v. State, 17 So.3d 275 (Fla.2009) (“Consideration of a motion to withdraw plea after sentencing, which is filed pursuant to Florida Rule of Criminal Procedure 3.170(Z), is a critical stage in the proceeding, and an indigent criminal defendant has a right to the appointment of conflict-free counsel to assist in the filing of the motion.”).

At a hearing on the motion to withdraw the plea before Judge Bryan, Mr. Hendrick disavowed his client’s handwritten, pro se motion, telling the court:

One was that I don’t believe that that set forth legal grounds to withdraw a plea, and two is, I don’t believe that he set forth grounds that would put his attorney at odds with him, as far as the need to appoint additional counsel.... [I]f you wish to place him under oath and he has additional grounds than what he put in writing, then certainly the Court can make inquiry of him, but I believed, based on conversation I’ve had this week, expected his family members to come forth today and potentially add additional information, and I do not see them, nor do I know why they are not present. Certainly I think the posture we’re in procedurally is that the Court is able to entertain such a motion up until the time he is sentenced and he is not going to be sentenced until there were further things that happened in his cases.
[M]y position from the beginning was, I don’t believe that the reasons Mr. Jones gave in writing, or anything else that he has discussed with me, give rise to a valid motion to withdraw plea and that is why I did not personally adopt it nor file any further motions. And, certainly, if he or his family came before the Court and indicated that there was something in my performance that would give rise to further inquiry, then that would be the point in which I think the case law would compel the Court to appoint conflict free counsel.... [I]f you read his thing, read the document that he provided, he clearly states that he is happy with the services of his attorney and that his attorney — that it has nothing to do with his attorney, it basically has to do with that he regrets the decision he made to enter a plea. And that, certainly — and that’s why I’m indicating to you that under my understanding of the rule, the case law that interpreted the rule, that is not a — that basically, in my opinion, falls in the category of buyer’s remorse, and that is not a legitimate reason to withdraw a plea.

Having heard Mr. Hendrick’s argument that Mr. Jones’s pro se motion lacked merit, the trial court denied the motion.

Once Mr. Hendrick told the trial court that he did not believe Mr. Jones had (left to his own devices, without the assistance of counsel) stated a legally sufficient basis for withdrawing his plea, the relationship between Mr. Jones and Mr. Hendrick had plainly become adversarial. Even if unpersuaded that the reasons alleged as a basis for withdrawal rose to the level of good cause, requiring the court to allow withdrawal, it is not apparent why Mr. Hendrick chose not to argue that the trial court should exercise its discretion to permit his minor client to withdraw his open plea, as contemplated by the rule. See Fla. R.Crim. P. 3.170(f) (“The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn.”).

“If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen ... the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.” Sheppard, 17 So.3d at 287. When it becomes apparent that the defendant and his counsel are on opposite sides on the question of whether a plea should be withdrawn, the defendant is entitled to conflict-free counsel. See Rios v. State, 958 So.2d 1080, 1081 (Fla. 1st DCA 2007) (“Once it became clear counsel’s position was adverse to [ajppellant’s and he was refusing to file a motion to withdraw the appellant’s plea, the court should have appointed conflict-free counsel to represent the appellant.”); Garcia v. State, 846 So.2d 660, 661 (Fla. 2d DCA 2003) (holding appellant was entitled to conflict-free counsel where counsel’s position was adverse to appellant’s).

Denial of counsel is encompassed within the class of constitutional errors called “structural defects,” which affect “the framework within which the trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The difficulties identified in assessing the effect of erroneous deprivation of the right to counsel of choice apply with equal force to deprivations of conflict-free counsel at other critical stages of criminal proceedings:

Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the “framework within which the trial proceeds,” Fulminante, supra, at 310, 111 S.Ct. 1246-or indeed on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all.

United States v. Gonzalez-Lopez, 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (citation omitted). See also Hampton v. State, 848 So.2d 405, 405 (Fla. 2d DCA 2003) (“A motion to withdraw plea is a critical stage of a criminal proceeding at which an indigent defendant is entitled to court-appointed counsel.” (citing Padgett v. State, 743 So.2d 70 (Fla. 4th DCA 1999)).

“[Assistance of counsel is among those ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.’ ” Lee v. State, 690 So.2d 664, 668 (Fla. 1st DCA 1997) (quoting Chapman v. California, 386 U.S. 18, 23 & n. 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). See also Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942) (“The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.”).

Mr. Jones was essentially unrepresented by counsel during the preparation of the motion to withdraw his plea, at the “review hearing,” and at the hearing on the motion to withdraw. Instead of representing his client, Mr. Hendrick refused to prepare or adopt a motion on Mr. Jones’s behalf and repeatedly argued against his client’s position. See Grainger, 906 So.2d at 382 (noting that counsel failed to act in a representative capacity on behalf of his client and in effect became an adverse witness against his client when he refused to adopt his client’s pro se motion to withdraw his plea (filed after sentencing) and made remarks to the court about appellant’s experiencing “buyer’s remorse”).

Allowing a criminal defendant to proceed unrepresented in the absence of a waiver of counsel is fundamental error, not unlike letting proceedings go forward in a trial court that lacks subject matter jurisdiction. See generally Polk Cnty. v. Sofka, 702 So.2d 1243, 1245 (Fla.1997); Waggy v. State, 985 So.2d 571, 573 (Fla. 1st DCA 2006) (“The issue of subject matter jurisdiction is one of fundamental error that may be raised for the first time on appeal. Moreover, the entry of a plea does not foreclose a later claim premised on the trial court’s lack of subject matter jurisdiction.” (citation omitted)). See also Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (“The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” (footnote omitted)); State v. D.C., 29 So.3d 1167, 1168 n. 2 (Fla. 4th DCA 2010) (“[A]n appellate court may address sua sponte an error which is apparent on the face of the record.”).

Conflict-free counsel should have been appointed. See Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003) (holding that the trial court should have provided the appellant conflict-free counsel to represent him on his motion to withdraw plea because defense counsel took an adversarial position by refuting his claim that defense counsel denied him the right to see a videotaped deposition of the alleged victim). Without a lawyer to advise and advocate for him, during both the preparation and the presentation of his pro se rule 3.170 motion, Mr. Jones was required to proceed unrepresented by any counsel, conflict-free or otherwise.

Accordingly, we reverse the conviction and sentence, and remand with directions to vacate the order denying the motion to withdraw plea and to appoint conflict-free counsel to represent Mr. Jones.

CLARK and MARSTILLER, JJ„ concur.

      . That the trial court ordered Mr. Jones to draft a motion pro se distinguishes the present case from Sheppard v. State, 17 So.3d 275, 276 (Fla.2009), where the defendant, although represented by counsel, drafted a motion on his own initiative. Even in Sheppard, moreover, our supreme court ruled that the trial court had not erred in failing to strike the pro se motion as a nullity, quoting with approval the proposition that nothing in the Sixth Amendment " 'requires a trial court to treat as nonexistent all papers filed pro se by a represented defendant in the pretrial phase.' " Id. at 280 (emphasis omitted) (quoting Graves v. State, 642 So.2d 142, 144 (Fla. 4th DCA 1994)).

      . At a subsequent "review hearing,” Mr. Hen-drick stated that he would leave it to the court to determine whether conflict-free counsel was necessary. The trial court ruled the pro se motion would be considered on the merits, but did not appoint independent counsel, concluding that the allegations in the motion did not allege that Mr. Hendrick's position was adverse to Mr. Jones’s position.

      . See also Yesnes v. State, 440 So.2d 628, 634 (Fla. 1st DCA 1983) (noting rule 3.170(f) permits withdrawal of a plea in the discretion of the court upon a lesser showing than good cause, the "rule should be liberally construed in favor of the defendant [because] [t]he law inclines toward a trial on the merits,” and the trial court "could well have permitted defendant to withdraw his plea” where the state offered no evidence to dispute his testimony that he "was in a state of mental weakness at the time he ... announced his plea to the court” and “it did not appear that the state would have been prejudiced upon trial of the case by permitting withdrawal of the plea just eighteen days after it was entered” (citation omitted)).

      . The transcript reflects the following:
      THE COURT: No? Well, here’s what I think we need to do under all circumstances. Is your parent here with you?
      DEFENDANT: No.
      THE COURT: Do you have a parent?
      DEFENDANT: My parents are in Orlando.
      THE COURT: In Orlando. Do you have any sort of guardian or anyone here?
      DEFENDANT: No.
      THE COURT: What I'm going to ask you to do is if you still wish to withdraw your plea that you do that in writing, okay? And I’ll consider it. You can do it right now if you want to. Get some paper and you write down in a writing, tell me why it is that you want to withdraw your plea, okay?
      DEFENDANT: Uh-huh.
      THE COURT: All right. Do you understand?
      DEFENDANT: Yes.
      (Boldface removed.)

      . We express no view on the merits of the pro se motion: In his hand-written motion, Mr. Jones stated he felt he had jumped to the wrong conclusion in entering the plea because he was afraid of what would happen to him if he went to trial. He noted that he had called home and been informed that there had been "lots of threats” regarding his testifying against co-defendants. He indicated he did not "want to speak on” the actions of his co-defendants in court. He also stated he believed he was not guilty and there was a lack of physical evidence tying him to the scene of the crime, but asserted that he had been pressured by his mother to enter the plea.
      But we note Mr. Jones ought to have the right to amend, with the assistance of counsel, on remand. Cf. Padgett v. State, 743 So.2d 70, 73 (Fla. 4th DCA 1999) ("A defendant’s right to effective assistance of counsel in the appeal of the issues which were presented in, and preserved by, the filing of a rule 3.170(1) motion would be hollow indeed if the defendant were not allowed the guiding hand of counsel to assist in preparing the initial motion to withdraw the plea.” (footnote omitted)).


author: MARSTILLER, J.

text:
    Theodore FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4474.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2011.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas D. Winokur and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
   MARSTILLER, J.

Theodore Freeman appeals his convictions and sentences for sale of cocaine within 1,000 feet of a church and possession of cocaine. He argues the trial court abused its discretion in admitting evidence of his three prior felony convictions to impeach him. He acknowledges case law permitting the court to admit such impeachment evidence when a non-testifying defendant introduces his own out-of-court exculpatory statement(s) through another witness. But, he argues, the evidence he elicited while cross-examining a prosecution witness was not an exculpatory statement, and the evidence of his prior convictions was unduly prejudicial. We disagree and affirm.

The charges against Freeman arose from an undercover drug buy initiated by law enforcement officers and facilitated by Freeman’s co-defendant, Samuel Rhone. The officers told Rhone they wanted to buy $30 worth of crack cocaine. Rhone took them to a building thirty feet away from a church. With $30 in marked money the officers gave him, Rhone went into the building and returned with three pieces of crack. On the officers’ signal, a “takedown team” arrived on the scene, arrested Rhone, entered the house with permission, and eventually arrested Freeman. Rhone identified Freeman as the person who sold him the crack, and when arresting officers searched Freeman, they found the $30 in marked money in his pocket.

At trial, Rhone again identified Freeman as the man who sold him the three pieces of crack. His was the only direct testimony that Freeman made the sale. Freeman’s defense was that he did not do it. In opening statement, defense counsel told the jury no one disputed that the sale occurred, but “What we do vehemently deny is that Mr. Freeman was the person that did that,” and “what we’re disputing is that Mr. Freeman had anything to do with it or that he made this sale.”

Several of the law enforcement officers involved in the undercover drug buy and the subsequent takedown testified. Detective S.L. Brown testified it was he to whom Rhone, after being advised of his Miranda rights, identified Freeman as the person who sold him crack. On cross-examination, defense counsel asked:

Q. Okay. And you said your role was to interview Mr. Freeman, right?
A. Yes.
Q. You interviewed both him and Mr. Rhone, right?
A. Yes, I did.
Q. Okay. And you read Mr. Freeman his Miranda rights?
A. Yes.
Q. And he denied everything?
A. Yes.

The State argued that by eliciting testimony from Detective Brown indicating Freeman denied selling crack to Rhone, the defense had opened the door to impeaching Freeman with evidence of his prior felony convictions. The court deferred ruling on the State’s request until it knew whether Freeman would take the stand. When Freeman later decided not to testify, the court, relying on Werley v. State, 814 So.2d 1159 (Fla. 1st DCA 2002), ruled that the State could impeach Freeman with his prior convictions. The court informed the jury:

[T]he State of Florida and the defendant and his attorney ... stipulate to the following: The defendant, Theodore Michael Freeman, has been convicted of three prior felonies. Now, ladies and gentlemen, that evidence of prior convictions should be considered only for the purpose of assessing the defendant’s credibility of statements he allegedly made that were related by a witness and are not to be considered as proof of guilt for the charged offense.

Under the Evidence Code, one can impeach a hearsay statement with any evidence that could be used to impeach in-court testimony. § 90.806(1), Fla. Stat. See § 90.610(1), Fla. Stat. (permitting impeachment by evidence of prior felony convictions). The State can use a defendant’s prior convictions to impeach exculpatory hearsay statements of a defendant who does not testify but gets the statements into evidence through another witness. See Huggins v. State, 889 So.2d 743, 756 (Fla.2004); Werley, 814 So.2d at 1163. See also Gonzalez v. State, 948 So.2d 877, 878 (Fla. 4th DCA 2007); Fisher v. State, 924 So.2d 914, 916-17 (Fla. 5th DCA 2006).

In Werley, we approved admission of the appellant’s six prior felony convictions to impeach his exculpatory hearsay statements. The appellant was on trial for aggravated battery on his wife. In opening statements, defense counsel told the jury the appellant accidentally hit his wife in the face, and that she would testify he apologized for hitting her, helped her care for her bloodied nose, and advised her not to swallow the blood. 814 So.2d at 1162. The wife indeed testified on direct examination by the prosecutor that the hit was accidental. And on cross-examination by defense counsel, she testified, “he said I’m sorry” and described the post-injury scene exactly as laid out by defense counsel in opening statements. Id. As Freeman does here, the appellant in Werley asserted his hearsay statements were not exculpatory and did not warrant impeachment by prior convictions. We disagreed, reasoning that the statements squarely went to prove the appellant’s defense that the hit was accidental, not intentional. Id. at 1162-63.

The same is true of the testimony Freeman’s counsel elicited from Detective Brown to the effect that Freeman denied involvement in the drug sale. It is inconsequential that the detective did not testify, e.g., “The defendant told me he did not sell crack cocaine to Rhone.” The content of Freeman’s statement to the detective is clear from the way defense counsel phrased the question posed: “And he denied everything?” Freeman offered the statement to prove he indeed was not involved in the drug transaction, in keeping with defense counsel’s opening statement “vehemently denying] that Mr. Freeman had anything to do with it or that he made this sale.” Therefore, we conclude Freeman opened the door for the State to impeach him with his prior convictions. Cf. Huggins, 889 So.2d at 756 (finding the appellant “opened the door to his own impeachment” where defense counsel “indirectly elicited” appellant’s exculpatory statement “by including it as an implied assumption” in question posed to witness). We conclude further that the limiting instruction the trial court gave the jury lessened the potential for unfair prejudice resulting from revealing Freeman’s three previous felony convictions. See Huggins; Gonzalez. Accordingly, we find no abuse of discretion by the court.

AFFIRMED.

WOLF, and DAVIS, JJ., concur.


text:
    Michael F. MADDEN, II, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Riverwalk Hotels, LLC, Appellees.
    No. 1D10-5213.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2011.
    Michael F. Madden, II, pro se, Appellant.
    M. Elaine Howard, Assistant General Counsel, Florida Unemployment Appeals Commission, for Appellees.
   PER CURIAM.

Michael F. Madden, II, appeals an order of the Florida Unemployment Appeals Commission which dismissed his appeal to that tribunal as untimely. The Commission has moved for a relinquishment of jurisdiction, agreeing that Madden’s failure to timely invoke its jurisdiction was the result of misinformation given to him by the Agency for Workforce Innovation. In this circumstance we treat the motion to relinquish jurisdiction as a confession of error. See Stacey v. Dep’t of Prof'l Regulation, Board of Nursing Home Adm’r, 547 So.2d 241 (Fla. 1st DCA 1989). The order on appeal is quashed and the cause is reversed and remanded to the Unemployment Appeals Commission for further proceedings.

REVERSED and REMANDED.

BENTON, C.J., LEWIS, and ROBERTS, JJ., concur.


text:
    Ray Chris MOBLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3466.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2011.
    Rehearing Denied Nov. 8, 2011.

      Ray Chris Mobley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(5)(A).

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


text:
    Michael W. TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4318.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2011.
    Rehearing Denied Nov. 9, 2011.
    Michael W. Turner, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner’s motion for leave to file an amended petition for writ of habeas corpus is granted. The petition for writ of habeas corpus, as amended, is denied on the merits.

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


text:
    Shawn D. SINGFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5116.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 2011.
   PER CURIAM.

Shawn D. Singfield appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In 2008, Sing-field admitted to violating community control and was sentenced to sixty months in prison for false imprisonment and to sixty-five months in prison for aggravated battery. We affirm the denial of Singfield’s motion but write to address the allegation raised in ground three, that his trial counsel was ineffective for advising him that he would receive an eighteen-month sentence if he admitted violating condition five of his community control.

In ground three, Singfield alleged that his counsel assured him that because he was familiar with the presiding judge, he would receive only an eighteen-month sentence. Singfield claimed that his counsel advised him that during the colloquy before sentencing, he should answer no when asked if anything had been promised to him and answer yes when asked if he was satisfied with his attorney, which he did. Based on his attorney’s advice and coaching, Singfield allegedly believed that his counsel had worked out an agreement with the court. Had he known that he would instead be sentenced to sixty months in prison, Singfield claimed he would have advised the court that he was promised a lesser sentence, that his admission was not free or voluntary, and that he wished to proceed to a violation of community control hearing.

The following discussion took place during the colloquy:

THE COURT: By pleading guilty to this new charge you are admitting to violating the terms and conditions of your community control, specifically condition five, do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: You are giving up your right to have a violation of community control hearing, do you understand that?
THE DEFENDANT: Yes.
THE COURT: Has anyone promised you anything or threatened you in any way in order to get you to do so?
THE DEFENDANT: No, sir.
THE COURT: Do you understand that you do have a 65 month Florida State Prison suspended sentence, do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that in all likelihood that is the sentence you are going to receive today, do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you still wish to plead guilty and admit to violating your community control?
THE DEFENDANT: Yes, sir.

The court’s singular act of advising Singfield of the maximum sentences faced is insufficient to refute the allegation of misadvice. See Ely v. State, 13 So.3d 167, 169 (Fla. 2d DCA 2009) (holding that the trial court’s advising defendant of the possible sentence he could receive did not necessarily put him on notice that he could not rely on counsel’s representations about the length of sentence he would receive); but see Scheele v. State, 953 So.2d 782, 785 (Fla. 4th DCA 2007) (holding that the defendant could not have reasonably relied on his lawyer’s supposed advice regarding the length of the sentence he faced since the trial judge told him in no uncertain terms of the maximum sentence he faced). However, the court’s advice to Singfield was clearly qualified: the court informed him that in all likelihood, he would be sentenced to sixty-five months in prison, despite having previously informed him of the maximum sentences. The trial court’s statement placed Singfield on notice that he could not rely on counsel’s statements to the contrary. Cf. Ely, 13 So.3d at 169.

In Ely, the defendant claimed that counsel was ineffective for providing erroneous advice regarding sentencing and that but for counsel’s ineffectiveness, he would not have entered a plea and would have gone to trial. 13 So.3d at 168. In remanding for further consideration, this court reasoned that

[ajlthough the trial court did advise Ely that he could possibly receive a seven-year prison sentence, at the time of such advice, Ely was aware that there was still a scoresheet dispute to be settled, and according to the allegation in his motion, his attorney had advised him that if he scored out to probation, he would receive probation.

Id. at 169. Under a broad reading of Ely, Singfield may have been entitled to an evidentiary hearing. At Ely’s plea hearing, “[t]he trial court acknowledged that there was still a scoresheet issue to be resolved, proceeded with the plea colloquy, and set sentencing for a future date so that a pretrial investigation could be conducted and the scoresheet issue could be resolved.” Id. But in the case at hand, the record does not indicate, and Singfield does not allege, that there were additional issues to be resolved by the trial court, which may have given Singfield a reason to continue to rely on counsel’s representations. Once the court advised Singfield of his probable sentence, he had “an affirmative duty to speak up if the attorney ... promised something different.” Flores v. State, 57 So.3d 218, 220 (Fla. 4th DCA 2010).

Additionally, Singfield’s allegation includes a claim that he lied under oath. “[A] defendant should be estopped to receive an evidentiary hearing on a postcon-viction claim when the basis of the claim is that he lied under oath at the relevant hearing.” Polk v. State, 56 So.3d 804, 808 (Fla. 2d DCA 2011). But Polk recognizes that the court’s outcome is “based more on practicalities than pure logic” and acknowledges the current conflict in the case law. Id. (certifying as a question of great public importance: “May prisoners in postconviction proceedings prevent the answers they gave under oath at plea or sentencing hearings from conclusively refuting their claim by alleging that their attorney instructed them to lie about whether the attorney made any promises before they entered their pleas?”).

Based on the facts of this case, the transcript attached to the postconviction court’s order conclusively refutes Sing-field’s allegation of misadvice of counsel. Furthermore, the trial court’s advising Singfield that in all likelihood he would be sentenced to sixty-five months in prison informed him that he could not rely on counsel’s representations to the contrary.

Affirmed.

NORTHCUTT, KELLY, and VILLANTI, JJ., Concur.

      . This court has expressly refused to follow Scheele. See Ely, 13 So.3d at 167, 168 ("While the postconviction court is correct in its reading of Scheele, such is not the law in the Second District.”).


text:
    Rodney VANCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4745.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2011.
    Rehearing Denied Nov. 8, 2011.
    Rodney Vance, 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.

THOMAS, WETHERELL, and SWANSON, JJ., concur.