author: PER CURIAM.

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2011-04.
    No. SC11-2012.
    Supreme Court of Florida.
    March 29, 2012.
    Samantha L. Ward, Chair, Standard Jury Instructions in Criminal Cases Committee, Thirteenth Judicial Circuit, Tampa, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court approve the amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

In In re Standard Jury Instructions in Criminal Cases—Report No. 2007-4., 983 So.2d 531 (Fla.2008), the Court authorized for publication and use nine new standard criminal jury instructions pertaining to the offenses of failure to register by sexual offenders (instructions 11.14 and 11.14(a)-11.14(h)), and thirteen new standard criminal jury instructions pertaining to the offenses of failure to register by sexual predators (instructions 11.15 and 11.15(a)-11.15(1)). The Committee requests that the Court amend these instructions in light of recent legislative changes to section 775.21, Florida Statutes (2011), The Florida Sexual Predators Act, and section 943.0435, Florida Statutes (2011), which requires that sexual offenders register with the sheriffs office.

We agree with the majority of the Committee’s proposals. The phrase “or transient” is added to “residence” in instructions 11.14, 11.14(a) — 11.14(g), 11.15, and 11.15(a)-11.15(k). This change is consistent with the statutory changes made by chapter 2010-92, sections 2 and 4, Laws of Florida. In addition, element number B of instructions 11.15(g), 11.15(i), and 11.15(j) is amended with “temporary residence” and “permanent residence” added as needed pursuant to chapter 2010-92, section 2, Laws of Florida. The Court also adds the definitions for “convicted” as set out in section 943.0435(l)(b) and “conviction” under section 775.21(2)(e). Moreover, section 943.0435(l)(c) expressly provides that “temporary residence” and “transient residence” shall have the same definitions as those provided in section 775.21, which was amended by the Florida Legislature in 2010. See chapter 2010-92, section 2, Laws of Florida.

However, the Court does not agree with the proposals to remove language from instructions 11.14, 11.14(g), 11.15(b), 11.15(i), and 11.15(k) pertaining to providing a physical residential address, and from instructions 11.14(h) and 11.15(2) defining “physical residential address.” Although the Legislature recognized that the offender or predator may live in a “transient” residence — i.e., one which includes but is not limited to a location without a specific street address — sections 775.21 and 943.0435 still include the following language: “A post office box shall not be provided in lieu of a physical residential address.” See §§ 775.21(6)(a)l.; gd&odss^Q)).

The revised instructions, as set forth in the appendix to this opinion, are authorized for publication and use. New language is indicated by underlining and deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on the correctness of the instructions and remind all interested parties that this authorization forecloses neither requesting an additional or alternative instruction nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions shall be effective when this opinion becomes final.

It is so ordered.

CANADY, C.J, and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

11.14 FAILURE TO REGISTER AS A SEXUAL OFFENDER

(Initially Register)

§ 943.0435(2)(a)-(b), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Offender, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he][she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status an element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual offender” or “convicted.”

2. (Defendant) [established] [maintains] [maintained] a permanent, or temporary, or transient residence in (name of county) County, Florida.

Give 3a, 3b, 3c, or 3d as applicable.

3. (Defendant)

a. knowingly failed to register in person at an office of the sheriff of (name of county) County within 48 hours after establishing permanent, or temporary, or transient residence within this state.

b. knowingly failed to report in person at an office of the sheriff of (name of county) County within 48 hours after being released from the [custody, control, or supervision of the Florida Department of Corrections] [custody of a private correctional facility].

c. knowingly failed to register in person at an office of the sheriff of (name of county) County within 48 hours after having been convicted by a court in that county of an offense requiring registration.

d. knowingly failed to provide an office of the sheriff of (name of county) County with [his][her] [ (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: [his][her] (name the unprovided registration items charged, as worded in the statute).]

Read only if the defendant is charged with failing to provide a physical residential address.

The defendant shall provide a physical residential address.

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.14(a) FAILURE TO REGISTER AS A SEXUAL OFFENDER

(Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer, Mobile Home, Manufactured Home, Vessel, or Houseboat)

§ 943.0435(2)(b)l, Fla. Stat.

To prove the crime of Failure to Register as a Sexual Offender, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he][she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 84-2 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual offender” or “convicted.”

2. (Defendant) [established] [maintains] [maintained] a permanent, or temporary, or transient residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)

a. uses as [his][her] place of residence a [motor vehicle] [trailer] [mobile home] [manufactured home];

and

knowingly failed to provide an office of the sheriff of (name of county) County with [the (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute) ] of the [motor vehicle] [trailer] [mobile home] [manufactured home] where [he][she] resides.

b. uses as [his][her] place of residence a [vessel] [live-aboard vessel] [houseboat];

and

knowingly failed to provide an office of the sheriff of (name of county) County with [the (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute) ] of the [vessel] [live-aboard vessel] [houseboat] where [he][she] resides.

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.14(b) FAILURE TO REGISTER AS A SEXUAL OFFENDER

(Failure to Comply with Registration of Employment or Enrollment at an Institution of Higher Learning)

§ 943.0435(2)(b)2, Fla. Stat.

To prove the crime of Failure to Comply with Registration Requirements as a Sexual Offender, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he][she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 81.2 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual offender" or “convicted."

2. (Defendant) [established] [maintains] [maintained] a [permanent], [temporary], or transient residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)

a. [is][was] enrolled, employed, or carrying on a vocation at an institution of higher education in this state, and

knowingly failed to provide an office of the sheriff of (name of county) County with [ (the name the single unprovided registration item charged, as worded in the statute) ] [any one or more the following items: (name the unprovided registration items charged, as worded in the statute).]

b. [is][was] enrolled, employed, or carrying on a vocation at an institution of higher education in this state.

undertook a change in [his][her] enrollment or employment status, and

knowingly failed to report this change in person at an office of the sheriff of (name of county) County within 48 hours after the change.

Definitions. See instruction 11.11(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.14(c) FAILURE TO REGISTER AS A SEXUAL OFFENDER

(Failure to Report to Department of Highway Safety and Motor Vehicles)

§ 943.0435(3), Fla. Stat.

To prove the crime of Failure to Comply with Registration Requirements as a Sexual Offender, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 812 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual offender" or “convicted."

2. (Defendant) [established] [maintains] [maintained] a [permanent,] [temporary], or transient residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)

a. having registered as a sexual offender with an office of the sheriff of (name of county) County,

knowingly failed to report in person to a driver’s license office of the Department of Highway Safety and Motor Vehicles within 48 hours after registering to present proof of this registration, and

knowingly failed to [secure a Florida driver’s license] [renew [his][her] Florida driver’s license] [secure a Florida identification card],

b. reported in person to a driver’s license office of the Department of Highway Safety and Motor vehicles and [secured a Florida driver’s license] [renewed [his] [her] Florida driver’s license] [secured a Florida identification card], but in doing so,

Give one or both of the following as applicable to the charge.

i. failed to report to that office that [he][she] was a sexual offender.

ii. failed to provide that office with [ (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute) ].

Definitions. See instruction 11.11(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.14(d) FAILURE TO REGISTER AS A SEXUAL OFFENDER

(Failure to Report Change of Name or Address within the State or Jurisdiction)

§ 943.0435(4), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Offender, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he][she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 812 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual offender” or “convicted.”

2. (Defendant) [established] [maintains] [maintained] a [permanent,] [temporary], or transient residence in (name of county) County, Florida.

Give 3a or 3b, or 3c or 3d as applicable.

3. (Defendant)

a. knowingly failed to report in person to a driver’s license office of the Department of Highway Safety and Motor Vehicles,

Give i, ii, or Hi as applicable.

i. when [his][her] [driver’s license] [identification card] was subject to renewal.

ii. within 48 hours after any change in [his][her] permanent, or temporary, or transient residence.

iii. within 48 hours after any change in [his][her] name by reason of [marriage] [ (specify other legal process) ].

b. knowingly failed to report in person to an office of the sheriff of (name of county) County, within 48 hours of vacating [his][her] permanent residence and failing to [establish] [maintain] another [permanent] [temporary] [transient] residence.

c. knowingly failed to report in person to an office of the sheriff of (name of county) County that [he][she] remained at [his][her] permanent residence, within 48 hours after [he] [she] reported to the sheriff [his][her] intent to vacate [his][her] permanent residence.

d. reported to

Give i or ii as applicable.

i. an office of the sheriff of (name of county) County

ii. a driver’s license office of the Department of Highway Safety and Motor Vehicles

and

Give Hi or iv as applicable.

iii. knowingly failed to provide that office with (name the single unprovided registration item charged, as worded in the statute).

iv. knowingly failed to provide that office with any one or more of the following items: (name the unprovided registration items charged, as worded in the statute).

Definitions. See instruction 11.11(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.14(e) FAILURE TO REGISTER AS A SEXUAL OFFENDER

(Failure to Report Change of Residence to Another State or Jurisdiction)

§ 943.0435(7), Fla. Stat.

To prove the crime of Failure to Report Change of Address as a Sexual Offender, the State must prove the following [four] [five] elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 812 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual offender” or “convicted.”

2. (Defendant) [established] [maintains] [maintained] a permanent, or temporary, or transient residence in (name of county) County, Florida.

3. (Defendant) intended to leave this State to establish residence in another state or jurisdiction on (date).

Give element ⅛ or 5, or both, as applicable.

4. (Defendant) knowingly failed to report in person to an office of the sheriff in the county of [his][her] current residence within 48 hours before the date on which [he][she] intended to leave this state to establish residence in another state or jurisdiction.

5. (Defendant) knowingly failed to provide the address, municipality, county, and state of [his][her] intended address, when [he][she] reported to the sheriff’s office of the county of [his][her] current residence [his][her] intention to establish residence in another state or jurisdiction.

Definitions. See instruction 11.11(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 581] and revised in 2012.

11.14(f) FAILURE TO REGISTER AS A SEXUAL OFFENDER

(Failure to Report Intent to Remain within the State or Jurisdiction)

§ 943.0435(8), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Offender, the State must prove the following five elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 8⅛2 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual offender” or “convicted.”

2. (Defendant) [established] [maintains] [maintained] a permanent, or temporary, or transient residence in (name of county) County, Florida.

3. (Defendant) indicated to an office of the sheriff of (name of county) County [his][her] intent to leave this state on (date of intended departure) and establish a permanent, temporary, or transient residence reside in another state or jurisdiction.

4. (Defendant) later decided to remain in this state.

5. Within 48 hours after the date of [his][her] originally intended departure from this state, (defendant) knowingly failed to report to an office of the sheriff of (name of county) County that [he][she] instead decided to remain in this state.

Definitions. See instruction 11.11(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.14(g) FAILURE TO REGISTER AS A SEXUAL OFFENDER

(Failure to Report Twice a Year/Failure to Report Quarterly)

§ 943.0435(14)(a) or (b), Fla. Stat.

Give this statement if the charge is failure to report twice a year during the sexual offender’s birthday month and six months later pursuant to § 913.0135(11) (a), or, for certain specified violators, failure to report during the sexual offender’s birthday month and every third month thereafter pursuant to § 9¿3M85(U)(b).

To prove the crime of Failure to Report [Twice a Year][Quarterly] as a Sexual Offender, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he][she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 8⅛2 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual offender” or “convicted.”

2. (Defendant) [established] [maintains] [maintained] a {permanent,] {temporary], or transient residence in (name of county) County, Florida.

Give 3a, 3b, 3c, 3d, or 3e as applicable.

3. (Defendant)

a. knowingly failed to re-register by reporting in person during [his][her] birthday month in (year) to an office of the sheriff in the county in which [he][she] resides or is otherwise located.

b. knowingly failed to reregister by reporting in person during the sixth month following [his][her] (year) birthday month to an office of the sheriff in the county in which [he][she] resides or is otherwise located.

c. knowingly failed to re-register by reporting in person during every third month following [his][her] (state year) birthday month to an office of the sheriff in the county in which [he][she] resides or is otherwise located.

d. knowingly failed to respond to the address verification correspondence from the Florida Department of Law Enforcement within three weeks from the date of the correspondence.

e. reported to an office of the sheriff of (name of county) to reregis-ter,

and

Give i or ii as applicable.

i. knowingly failed to provide that office with (name the single unprovided registration item charged, as worded in the statute).

ii. knowingly failed to provide that office with any one or more of the following items: (name the unprovided registration items charged, as worded in the statute).

Read only if the defendant is charged with failing to provide a physical residential address.

The defendant shall provide a physical residential address.

Definitions. See instruction 11.11(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.14(h) Sexual Offender Definitions

§ 943.0435(1), Fla. Stat.

Definitions.

“Sexual offender” means a person who (Insert the appropriate criteria specified by § 913.0135(1)).

“Convicted” means there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld. (Note to Judge: For juvenile, military, federal and out of state convictions see § 943.0135(1) Fla. Stat.)

“Institution of higher education” means a career center, community college, college, state university, or independent postsecondary institution.

“Change in enrollment or employment status” means the commencement or termination of enrollment or employment or a change in location of enrollment or employment.

“Physical residential address” does not include a post office box.

“Permanent residence” means a place where the person abides, lodges, or resides for 5 or more consecutive days.

“Temporary residence” means a place where the person abides, lodges, or resides, including, but not limited to, vacation, business, or personal travel destinations in or out of this state, for a period of 5 or more days in the aggregate during any calendar year and which is not the person’s permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state.

“Transient residence” means a place or county y where a person lives, remains, or is located for a period of 5 or more days in the aggregate during a calendar year and which is not the person’s permanent or temporary address. The term includes, but is not limited to, a place where the person sleeps or seeks shelter and a location that has no specific street address.

“Electronic mail address” means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.

“Instant message name” means an identifier that allows a person to communicate in real time with another person using the Internet.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and d revised in 2012.

11.15(a) FAILURE TO REGISTER AS A SEXUAL PREDATOR

(Initially Register — Not in Custody, Control or under Supervision of the Department of Corrections or a Private Correctional Facility)

§ 775.21(6)(e), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the following four elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conduct ing an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 8h2 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual predator” or “convicted.”

2. (Defendant) established or maintained maintains a permanent, or temporary, or transient residence in (name of county) County, Florida.

3. (Defendant) was not in the custody or control of or under the supervision of the Department of Corrections and was not in the custody of a private correctional facility.

Give ha or hb or ha and hb, as appropriate.

4(a). (Defendant) knowingly failed to register in person with an office of the sheriff in the county where [he][she] [established] [maintained] residence within 48 hours after [he][she] established permanent, or temporary, or transient residence in this state.

4(b). (Defendant) knowingly failed to register in person with an office of the sheriff in the county where [he][she] was designated a sexual predator within 48 hours after having been so designated by the court.

Definitions. See instruction 11.15(1) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.15(b) FAILURE TO REGISTER AS A SEXUAL PREDATOR

(Failure to Comply with Registration Requirements)

§ 775.21(6)(a)l, Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he][she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 8h2 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual predator” or “convicted.”

2. (Defendant) established or maintained maintains a permanent, or temporary, or transient residence in (name of county) County, Florida.

3. (Defendant) knowingly failed to provide an office of the sheriff of (name of county) County with [his][her] [ (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: [his][her] (name the unprovided registration items charged, as worded in the statute) ].

Read only if the defendant is charged with failing to provide a physical residential address.

The defendant shall provide a physical residential address.

Definitions. See instruction 11.15(1) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.15(c) FAILURE TO REGISTER AS A SEXUAL PREDATOR

(Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer, Mobile Home, or Manufactured Home)

§ 775.21(6)(a)l.a., Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he][she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 812 So.2d 228 (Fla. 1st DCA 2008). If there is a stipulation, the court should not give the definition of “sexual predator” or “convicted.”

2. (Defendant) established or maintained maintains a permanent, or temporary, or transient residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)

a. used uses as [his][her] place of residence a [motor vehicle] [trailer] [mobile home] [manufactured home];

and

knowingly failed to provide [an office of the sheriff of (name of county) County] [the Florida Department of Law Enforcement] with [the (name the single unprovided registration item charged, as worded in the statute)] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute) ] of the [motor vehicle] [trailer] [mobile home] [manufactured home] where [he][she] resides.

b. used uses as [his][her] place of residence a [vessel] [live-aboard vessel] [houseboat];

and

knowingly failed to provide [an office of the sheriff of (name of the county) County] [the Florida Department of Law Enforcement] with [the (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute) ] of the [vessel] [live-aboard vessel] [houseboat] where [he][she] resides.

Definitions. See instruction 11.15(1) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.15(d) FAILURE TO REGISTER AS A SEXUAL PREDATOR

(Failure to Comply with Registration of Enrollment or Employment in Institutions of Higher Education)

§ 775.21(6)(a)l.b., Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he][she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 8⅛2 So.2d 228 (Fla. 1st DC A 2003). If there is a stipulation, the Court should not give the definition of “sexual predator” or “convicted.”

2. (Defendant) [established] [maintains] [maintained] a [permanent}, [temporary}, or transient residence in (name of county) County, Florida.

Give 3a, 3b, or 3c as applicable.

3. (Defendant)

a. [is][was] enrolled, employed, or carrying on a vocation at an institution of higher education in this state, and

knowingly failed to provide the office of the sheriff of (name of county) County with the [(name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute) ].

b. [is] [[was] enrolled, employed, or carrying on a vocation at an institution of higher education in this state;

undertook a change in [his][her] enrollment or employment status, and

knowingly failed to report this change in person at an office of the sheriff of (name of county) County within 48 hours after the change.

c. [is][was] is in the custody of or under the supervision of the Department of Corrections;

[is] [[was] enrolled, employed, or carrying on a vocation at an institution of higher education in this state;

undertook a change in [his][her] enrollment or employment status, and

knowingly failed to report this change to the Department of Corrections within 48 hours after the change.

Definitions. See instruction 11.15(1) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.15(e) FAILURE TO REGISTER AS A SEXUAL PREDATOR

(Failure to Report to Department of Highway Safety and Motor Vehicles)

§ 775.21(6)(f), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he][she] has been convicted as a sexual predator; therefore, you should consider, the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 812 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual predator’’ or “convicted.”

2. (Defendant) [established] [main-tainsj[maintained] a [permanent] [temporary] [transient] residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)

a. was not incarcerated;

[he][she] resided in the community and was [under the supervision] [not under the supervision] of the Department of Corrections; [he] [she] registered as a sexual predator with an office of the sheriff of (name of county) County;, and

knowingly failed to report in person at a driver’s license office of the Department of Highway Safety and Motor Vehicles within 48 hours after registering to present proof of this registration.

b. reported in person to a driver’s license office of the Department of Highway Safety and Motor Vehicles, and either

knowingly failed to [secure a Florida driver’s license] [renew a Florida driver’s license] [secure an identification card] or

secured a Florida driver’s license [renewed [his][her] Florida driver’s license] [secured a Florida identification card], but in doing so,

Give one or both of the following as applicable to the charge.

i. failed to report to that office that [he][she] was a sexual predator.

ii. failed to provide that office with [ (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute) ].

Definitions. See instruction 11.15(1) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.15(f) FAILURE TO REGISTER AS A SEXUAL PREDATOR

(Failure to Provide Other Necessary Information Requested by Department of Law Enforcement)

§ 775.21(6)(a)2, Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 812 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual predator” or “convicted.”

2. (Defendant) established or maintained maintains a permanent, or temporary, or transient residence in (name of county) County, Florida.

3. (Defendant) knowingly failed to provide an the office of the sheriff of (name of county) County with [his][her] [(name the single unprovided registration item charged, as worded in the statute)] [any one or more of the following items: [his] [her] (name the unprovided registration items charged, as worded in the statute) ].

Definitions. See instruction 11.15(1) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012,

11.15(g) FAILURE TO REGISTER AS A SEXUAL PREDATOR

(Failure to Report Change of Name or Address within the State or Jurisdiction)

§ 775.21(6)(g), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he][she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 812 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual predator” or “convicted.”

2. (Defendant) [established] {^maintains-} [maintained] a [permanent] [temporary] [transient] residence in (name of county) County, Florida.

Give 3a, 3b, or 3c as applicable.

3. (Defendant)

a. knowingly failed to report in person to a driver’s license office [when [his][her] driver’s license or identification card was subject to renewal] [within 48 hours after any change in [his] [her] permanent, or temporary, or transient residence] [within 48 hours after any change in [his][her] name by reason of [marriage] [ (specify other legal process) ]].

b. knowingly failed to report in person to an office of the sheriff of (name of county) County within 48 hours of vacating [his][her] permanent, temporary, or transient residence and failing to establish or maintain another permanent, or temporary, or transient residence.

c. knowingly failed to report in person to an office of the sheriff of (name of county) County that [he] [she] did not vacate [his][her] permanent, temporary, or transient residence within 48 hours after (defendant) reported to that agency [his] [her] intent to vacate [his][her] permanent, temporary, or transient residence.

d. reported to

Give i or ii as applicable.

i. an office of the sheriff of (name of county)

ii. a driver’s license office of the Department of Highway Safety and Motor Vehicles

and

Give in or iv as applicable.

iii. knowingly failed to provide that office with (name the single unprovided registration item charged, as worded in the statute).

iv.knowingly failed to provide that office with any one or more of the following items: (name the unprovided registration items charged, as worded in the statute).

Definitions. See instruction 11.15(1) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.15(h) FAILURE TO REGISTER AS A SEXUAL PREDATOR

(Failure to Respond To Address Verification)

§ 775.21(10)(a), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he][she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Broom v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 84.2 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual predator” or “convicted.”

2. (Defendant) established or maintained maintains a permanent, or temporary, or transient residence in (name of county) County, Florida.

3. (Defendant) knowingly failed to respond to any address verification correspondence from the Florida Department of Law Enforcement within three weeks from the date of the correspondence.

Definitions. See instruction 11.15(1) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.15(i) FAILURE TO REGISTER AS A SEXUAL PREDATOR

(Failure to Report Intent to Move to Another State or Jurisdiction)

§ 775.21(6)0), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that he has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 812 So.2d 228 (Fla. 1st DC A 2003). If there is a stipulation, the court should not also give the definition of “sexual predator” or “convicted.”

2. (Defendant) established or maintained maintains a permanent, or temporary, or transient residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. a. (Defendant)

intended to leave this State to establish a permanent, temporary, or transient residence in another state or jurisdiction on (date);

and

knowingly failed to report in person to an office of the sheriff in the county of [his][her] current residence within 48 hours before the date on which [he][she] intended to leave this state to establish residence in another state or jurisdiction,

b. (Defendant)

reported to an office of the sheriff of the county of [his] [her] current residence [his][her] intention to establish residence in another state or jurisdiction;

and

knowingly failed to provide [[his][her] (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: [his][her] (name the unprovided registration items charged, as worded in the statute).]

Read only if the defendant is charged with failing to provide a physical residential address.

The defendant shall provide a physical residential address.

Definitions. See instruction 11.15(1) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.15a) FAILURE TO REGISTER AS A SEXUAL PREDATOR

(Failure to Report Intent to Remain within the State or Jurisdiction)

§ 775.21(6)(j), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the following five elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not also give the definition of “sexual predator” or “convicted.”

2. (Defendant) established or maintained maintains a permanent, or temporary, or transient residence in (name of county) County, Florida.

3. (Defendant) indicated to an office of the sheriff of (name of county) County [his][her] intent to leave this state on (date of intended departure) and establish a permanent, temporary, or transient residence in another state or jurisdiction.

4. (Defendant) later decided to remain in this state.

5. Within 48 hours after the date of [his][her] originally intended departure from this state, (defendant) knowingly failed to report to an office of the sheriff of (name of county) County that [he][she] instead decided to remain in this state.

Definitions. See instruction 11.15(1) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.15(k) FAILURE TO REGISTER AS A SEX PREDATOR

(Failure to Register Quarterly)

§ 775.21(8)(a), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he][she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla.1998); Johnson v. State, 84-2 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not also give the definition of “sexual predator” or “convicted.”

2. (Defendant) [established] [main-ta&sj [maintained] a permanent, nr temporary, or transient residence in (name of county) County, Florida.

Give 3a, 3b, or 3c as applicable.

3. (Defendant)

a. knowingly failed to reregister by reporting in person during [his][her] birthday month in (year) to an office of the sheriff in the county in which [he][she] resides or is otherwise located.

b. knowingly failed to reregister by reporting in person during every third month following [his][her] (state year) birthday month to an office of the sheriff in the county in which [he] [she] resides or is otherwise located.

c. knowingly failed to provide an office of the sheriff of (name of county) County with a change to [his][her] [ (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: [his][her] (name the unprovided registration items charged, as worded in the statute) ].

Read only if the defendant is charged with failing to provide a physical residential address.

The defendant shall provide a physical residential address.

Definitions. See instruction 11.15(1) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.

11.15(Z) Sexual Predator Definitions

§ 775.21(2) and (4), Fla. Stat.

Definitions.

“Sexual predator” means a person who:

has been designated a sexual predator, in a written order of a Florida court, on or after October 1, 1993; and

has not received a pardon for the offense(s) necessary for the designation as a sexual predator; and the written order designating the defendant a sexual predator has not been set aside in any judicial proceeding.

“Institution of higher education” means a career center, community college, college, state university, or independent postsecondary institution.

“Change in enrollment or employment status” means the commencement or termination of enrollment or employment or a change in location of enrollment or employment.

“Convicted” means there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld. (Note to Judge: For military, federal and out of state convictions, see § 775.21(2) (e), Fla. Stat.)

“Physical residential address” does not include a post office box.

“Permanent residence” means a place where the person abides, lodges, or resides for 5 or more consecutive days.

“Temporary residence” means a place where the person abides, lodges, or resides including, but not limited to, vacation, business, or personal travel destinations in or out of this state, for a period of 5 or more days in the aggregate during any calendar year and which is not the person’s permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state.

“Transient residence” means a place or county where a person lives, remains, or is located for a period of 5 or more days in the aggregate during a calendar year and which is not the person’s permanent or temporary address. The term includes, but is not limited to, a place where the person sleeps or seeks shelter and a location that has no specific street address.

Comment

This instruction was adopted in 2008[983 So.2d 531] and revised in 2012.

      . The Florida Public Defender Association, in its comment to the Committee's proposals, recommends that the Court rewrite these instructions to reflect that failing to report a physical residential address is not an element of the offense. However, the Court does not decide substantive issues in the course of authorizing the publication and use of proposed jury instructions. Instead, absent further clarification from the Legislature, that matter must await the Court's consideration in an actual case and controversy.

      . The amendments as reflected in-the appendix are to the Criminal Jury Instructions as they appear on the Court’s website at www. floridasupremecourt.org/jury_instructions/ instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Julius THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3607.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.
    Julius Thompson, Indiantown, pro se.
    No appearance required for appellee.
   WARNER, J.

Appellant challenges the trial court’s denial of his motion to correct an illegal sentence. He claims that the court improperly sentenced him as a habitual offender where the robbery of which he was convicted occurred more than five years after his “release” from his prior prison sentence. Because he has misconstrued the statutory provisions which apply, he has not shown that he is entitled to relief.

Appellant was tried and convicted of robbery with a weapon for an incident that took place in August 2002. At sentencing, the court entered a habitual offender sentence of twenty years based upon his past convictions. The state alleged that his last release date from prison was September 11, 1998, less than five years prior to the August 2002 robbery.

In 2010, appellant challenged his sentence as illegal because his last release from prison was not the September 11, 1998 release date used by the state. Specifically, he claimed that in 1995 he was sentenced to a year and two months in prison on one charge of grand theft of a motor vehicle and two charges of battery on a law enforcement officer. He was released from prison on conditional release on May 31, 1996. In August 1997, a warrant was issued for his arrest on a domestic violence charge, but he was acquitted of that charge. He was returned to the Department of Corrections on July 30, 1998. He alleged in his Rule 3.800 motion that the Department did not revoke his supervision, and that the Parole Commission entered an order releasing defendant “back to supervision.” That release appears to be the September 11, 1998 release. In responding to the defendant’s motion, the state supplied an “Inmate Movement/Transfer History” which recorded the September 11, 1998 date with a notation of “Expiration.” The trial court denied the motion based upon the state’s response.

The controlling version of the habitual offender statute in effect in 2002 provides that to qualify for habitual offender status, the felony for which the defendant is to be sentenced was committed:

Within 5 years of the date of the conviction of the defendant’s last prior felony or other qualified offense, or within 5 years of the defendant’s release from a prison sentence, probation, community control, control release, conditional release, parole or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later.

§ 775.084(l)(a)2.b., Fla. Stat. Although the record in this case is unclear as to the type of supervision appellant was under, it is undisputed that appellant had been released on May 31, 1996, on supervision. The record does not show, nor does the appellant allege, that he was released from supervision more than five years before the August 2002 robbery. While the state used the September 11, 1998 date as the date that he was released from the prior commitment, that date very well could have been the date that his supervision expired. Therefore, he has not shown that his sentence was in any way illegal, as he committed the robbery within five years of his prior release from supervision.

We affirm. However, this is without prejudice to the appellant being able to show that the Parole Commission had in fact released him from supervision more than five years prior to the 2002 robbery. On this record he has not made that showing.

POLEN and LEVINE, JJ., concur.


text:
    Abishai EUGENE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0252.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2012.
    Rehearing Denied May 7, 2012.
    Abishai Eugene, 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.

WOLF, PADOVANO, and MARSTILLER, JJ., concur.


author: TAYLOR, J.

text:
    Charles J. KANE, Harley N. Kane and Kane & Kane, a professional corporation, Appellants, v. STEWART TILGHMAN FOX & BIANCHI, P.A., a professional association, William C. Hearon, P.A., a professional association, and Todd S. Stewart, P.A., a professional association, Laura M. Watson, P.A. d/b/a Watson & Lentner, Laura M. Watson and Darin J. Lentner, Appellees. Laura M. Watson, P.A. d/b/a Watson & Lentner, a professional corporation, Appellants, v. Stewart Tilghman Fox & Bianchi, P.A., a professional association, William C. Hearon, P.A., a professional association, and Todd S. Stewart, P.A., a professional association, Charles J. Kane, Harley N. Kane, Laura M. Watson and Darin J. Lentner, Appellees. Stewart Tilghman Fox & Bianchi, P.A., a professional association, William C. Hearon, P.A., a professional association, and Todd S. Stewart, P.A., a professional association, Appellants, v. Kane & Kane, a professional corporation, Laura M. Watson, P.A. d/b/a Watson & Lentner, a professional corporation, Charles J. Kane, Harley N. Kane, Laura M. Watson and Darin J. Lentner, Appellees.
    Nos. 4D08-4584, 4D08-4751, 4D08-4845.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.
    Rehearing Denied May 16, 2012.

      Charles J. Kane of Kane & Kane, P.A., Boca Raton, and John Beranek of Ausley & McMullen, Tallahassee, for appellants.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Stewart Tilghman Fox & Bianchi, P.A., for Appellees-Stewart Tilghman Fox & Bian-chi, P.A., William C. Hearon, P.A., and Todd S. Stewart, P.A.
    David B. Pakula of David B. Pakula, P.A., Pembroke Pines, for Appellee-Laura M. Watson, P.A. d/b/a Watson & Lentner.
    David B. Pakula of David B. Pakula, P.A., Pembroke Pines, for appellant.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Stewart Tilghman Fox & Bianchi, P.A., for appellees.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Stewart Tilghman Fox & Bianchi, P.A., for appellants.
    Charles J. Kane of Kane & Kane, P.A., Boca Raton, and John Beranek of Ausley & McMullen, Tallahassee, for Appellees-Charles Kane, Harley Kane and Kane & Kane.
    David B. Pakula of David B. Pakula, P.A., Pembroke Pines, for Appellees-Lau-ra M. Watson and Laura M. Watson, P.A., d/b/a Watson & Lentner and John P. Seiler of Seiler, Sautter, Zaden, Rimes & Wei-he, Wilton Manors, for Appellee-Darin J. Lentner.
   TAYLOR, J.

We affirm the thorough and well-reasoned final judgment of the trial court in this attorneys’ fees litigation, which the trial court characterized as “a case study for a course on professional conduct involving multi-party joint representation agreements and the ethical pitfalls surrounding such agreements when the interests of some of the attorneys and/or their clients come into conflict.”

By way of background, this case has its genesis in claims against Progressive Insurance Company (“Progressive”) for improperly denying or reducing payment to healthcare providers who submitted bills for payment of PIP benefits covered by Progressive auto insurance policies. The plaintiffs, or the “bad faith lawyers,” were recruited by the defendants, or the “PIP lawyers” to represent health care providers with claims against Progressive. The dispute in the instant litigation arises out of the PIP lawyers’ conduct in engineering a secret $14.5 million global settlement of all the clients’ claims, which resulted in the defendants receiving over $10 million in attorney’s fees and plaintiffs receiving only $420,000 in fees. The bad faith lawyers sued the PIP lawyers on a variety of theories, including unjust enrichment. After a lengthy non-jury trial, the plaintiffs recovered a judgment against defendants Charles Kane, Harley Kane, and the Kane & Kane law firm in the amount of $2 million, and a judgment against Watson, P.A., in the amount of $981,792 on their unjust enrichment claims.

First, we reject defendants’ contention that the plaintiffs’ unjust enrichment claim was barred by an express contract. While we acknowledge the principle that “the law will not imply a contract where an express contract exists concerning the same subject matter,” see, e.g., Kovtan v. Frederiksen, 449 So.2d 1,1 (Fla. 2d DCA 1984), here there was no express contract addressing how the proceeds of a secret, global undifferentiated settlement of both PIP and bad faith claims for all claimants were to be allocated. To support their argument, defendants rely upon express agreements which address only the plaintiffs’ right to fees for the claims of the approximately thirty-seven claimants in litigation known as the Gold Coast case. But the trial court found that the plaintiffs were working to settle the entire universe of bad faith claims (not merely those in the Gold Coast case). Moreover, the trial court’s damages award applied only to fees regarding health care providers who were not part of the Gold Coast bad faith litigation.

Second, we reject without discussion defendants’ argument that the litigation privilege under Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Insurance Co., 689 So.2d 606 (Fla. 1994), precludes the unjust enrichment claim. Under the facts of this case, the litigation privilege does not apply.

Third, we conclude that, because the trial court calculated damages separately as to each defendant, there was no legal basis for a set-off from the pre-trial settlement involving another defendant law firm, which is not a party to this appeal.

Fourth, we find that the trial court did not abuse its discretion in admitting and giving weight to Larry Stewart’s expert testimony on the value of the PIP lawyers’ services, over the defendants’ objections of surprise and lack of foundation. See Philippon v. Shreffler, S3 So.3d 704, 708 (Fla. 4th DCA 2010) (a trial court’s decision to admit evidence is reviewed using the abuse of discretion standard of review, as limited by the rules of evidence). The trial court properly determined that Stewart’s opinions had been disclosed in interrogatories and that his testimony was not a surprise. See Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla.1981) (explaining that prejudice is “surprise in fact”). Further, while we acknowledge the legal principle that “no weight may be accorded an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning,” see Div. of Admin. v. Samter, 393 So.2d 1142, 1145 (Fla. 3d DCA 1981), we find that Stewart’s testimony was not based merely on speculation, but rather was founded upon a factually-based chain of underlying reasoning regarding the “assembly-line” nature of the PIP work at issue.

Fifth, in light of the trial court’s finding that the plaintiffs were 50% responsible for the result achieved against Progressive, we hold that the trial court’s measure of damages was consistent with the law of unjust enrichment. See Levine v. Fieni McFarlane, Inc., 690 So.2d 712, 713 (Fla. 4th DCA1997) (damages for unjust enrichment are based on value from standpoint of the recipient of the benefits); see also Tooltrend, Inc. v. CMT Utensili, SRL, 198 F.Sd 802, 806 (11th Cir.1999) (applying Florida law and stating that unjust enrichment is “measured in terms of the benefit to the owner, not the cost to the provider”); Restatement (ThiRd) of Restitution and Unjust EnRichment § 3 cmt. c. (2011) (“When the defendant has acted in conscious disregard of the claimant’s rights, the whole of the resulting gain is treated as unjust enrichment, even though the defendant’s gain may exceed both (i) the measurable injury to the claimant, and (ii) the reasonable value of a license authorizing the defendant’s conduct.”).

Finally, without further comment, we affirm the cross-appeal.

Affirmed.

POLEN and STEVENSON, JJ., concur.

      . We consolidated these cases, 4D08-4751, 4D08-4584, and 4D08-4845, for opinion purposes.


text:
    Michael Louis SPANGLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0722.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2012.
    Rehearing Denied May 3, 3012.
    Michael Louis Spangler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Gary SHELOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0580.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2012.
    Rehearing Denied May 1, 2012.
    Gary Shelor, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

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


text:
    Andre HALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2787.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.

      Andre Hall, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant, Andre Hall, appeals the denial of his petition for writ of habeas corpus filed in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County. We reverse and remand.

Defendant filed a habeas petition seeking an order to vacate his judgment. The grounds asserted in support of his request were that a detective provided false testimony about the Miranda warning that was administered, and presented a fraudulent Miranda warning card during a suppression hearing, which affected the outcome of his trial. He further asserted that the prosecutor participated in this deception.

The court denied the petition based on the State’s argument that Defendant’s claims could have been raised in a rule 3.850 motion, and that the petition did not contain all of the information required under Florida Rule of Criminal Procedure 3.850(c).

Courts have consistently held that the proper procedure for collaterally attacking a judgment and sentence in Florida is a motion for postconviction relief. See, e.g., Baker v. State, 878 So.2d 1236 (Fla.2004); Leichtman v. Singletary, 674 So.2d 889, 892 (Fla. 4th DCA 1996) (holding that the failure to exhaust post-conviction remedies, when it appears that such remedy would be adequate, precludes habeas relief); Patterson v. State, 664 So.2d 31 (Fla. 4th DCA 1995). Therefore, we agree that habeas relief was not appropriate in light of the relief requested.

Nevertheless, the court could have considered the claim under rule 3.850 because it was filed within the two-year window for seeking relief under the rule. See Watts v. State, 985 So.2d 21 (Fla. 2d DCA 2008). Moreover, Defendant’s motion appears to contain an insufficient Giglio claim. See Clemmons v. State, 1 So.3d 1256 (Fla. 4th DCA 2009) (noting that an allegation that a prosecutor knowingly presented false testimony against him at trial is known as a Giglio violation). Defendant alleged that a witness gave false testimony and that the prosecutor knew the testimony was false. Because Giglio violations may be raised in motions for postconviction relief, the trial court should have stricken the motion and given Defendant an opportunity to amend. See Clemmons, 1 So.3d at 1256; Robinson v. State, 65 So.3d 75 (Fla. 2d DCA 2011). Therefore, we reverse and remand for the lower court to strike with leave to amend.

Reversed and Remanded.

MAY, C.J., POLEN and DAMOORGIAN, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).


text:
    Loyd BERTHIAUME, Appellant, v. B.S., a minor child by and through his next of friend, A.K., Mother, Appellee.
    No. 1D11-4858.
    District Court of Appeal of Florida, First District.
    March 12, 2012.
    Rehearing Denied May 1, 2012.

      H.E. Ellis, Jr. of Staples, Ellis & Associates, P.A., Pensacola, for Appellant.
    No appearance, for Appellee.
   PER CURIAM.

Loyd Berthiaume appeals a final judgment of injunction for protection against sexual battery entered against him. Ber-thiaume asserts that the trial court erred in denying his motion to strike certain statements by B.S., a minor child, included in the sworn petition filed by A.K., the mother of B.S., seeking an injunction pursuant to section 784.046, Florida Statutes (2011). Because sections 784.046(2)(a) and (c), and (4)(a) expressly authorize the entry of an injunction based upon a petition of the type A.K. filed on behalf of B.S., we affirm.

Section 784.046 creates causes of action for an injunction for protection in cases of repeat violence, dating violence, and sexual violence. Subsection 784.046(2)(a) and (c) grants standing to a parent or legal guardian to seek an injunction to protect a minor child, as follows:

(a) Any person who is the victim of repeat violence or the parent or legal guardian of any minor child who is living at home and who seeks an injunction for protection against repeat violence on behalf of the minor child has standing in the circuit court to file a sworn petition for an injunction for protection against repeat violence.
⅜ * *
(c) A person who is the victim of sexual violence or the parent or legal guardian of a minor child who is living at home who is the victim of sexual violence has standing in the circuit court to file a sworn petition for an injunction for protection against sexual violence on his or her own behalf or on behalf of the minor child if:
1. The person has reported the sexual violence to a law enforcement agency and is cooperating in any criminal proceeding against the respondent, regardless of whether criminal charges based on the sexual violence have been filed, reduced, or dismissed by the state attorney; or
2. The respondent who committed the sexual violence against the victim or minor child was sentenced to a term of imprisonment in state prison for the sexual violence and the respondent’s term of imprisonment has expired or is due to expire within 90 days following the date the petition is filed.

Section 784.046(4)(a) sets forth the allegations required in a petition:

(4)(a) The sworn petition shall allege the incidents of repeat violence, sexual violence, or dating violence and shall include the specific facts and circumstances that form the basis upon which relief is sought. With respect to a minor child who is living at home, the parent or legal guardian seeking the protective injunction on behalf of the minor child must:
1. Have been an eyewitness to, or have direct physical evidence or affidavits from eyewitnesses of, the specific facts and circumstances that form the basis upon which relief is sought, if the party against whom the protective injunction is sought is also a parent, stepparent, or legal guardian of the minor child; or
2. Have reasonable cause to believe that the minor child is a victim of repeat sexual or dating violence to form the basis upon which relief is sought, if the party against whom the protective injunction is sought is a person other than a parent, stepparent, or legal guardian of the minor child.

On June 27, 2011, A.K. filed a petition on her son’s behalf seeking an injunction against Berthiaume for protection against sexual violence. The petition set forth alleged acts of sexual violence by Berthi-aume on B.S. The petition included statements that B.S. made to A.K. informing her of the sexually violent acts directed at B.S. by Berthiaume allegedly for a period of approximately three years.

A temporary restraining order was entered and a full hearing held on August 10, 2011. Counsel for appellant moved to strike the hearsay alleged in the petition arguing that, because the child was not present, the court could not make the required analysis under the hearsay exception, section 90.803(23), Florida Statutes (2011). At the conclusion of the hearing, the trial court expressed its belief that section 784.046 gives the custodial parent the right to make the allegations and found that there had been sufficient allegations in the petition confirmed by A.K. to warrant the injunction. The trial court entered the final judgment of injunction under review.

It is apparent from section 784.046 that the primary focus of sections 784.046(2)(a) and (c) and (4)(a) is the safety and welfare of a child victim of violence or sexual violence. These sections provide that, if the parent files a sworn petition and has reasonable cause to believe the minor child is a victim of sexual violence by a nonparent, the sworn petition is a presumptively sufficient basis for an injunction. It is undisputed in this record that A.K. had reasonable cause to believe B.S. was the victim of sexual violence, see section 784.046(4)(a), and that she is cooperating with law enforcement agencies. See § 784.046(2)(c)l.

We recognize that section 90.803(23) is followed in dependency proceedings, D.W.G. v. Department of Children and Families, 833 So.2d 238 (Fla. 4th DCA 2002), personal injury proceedings, Doe v. Broward County School Board, 744 So.2d 1068 (Fla. 4th DCA 1999), and criminal proceedings. See, e.g., Anderson v. State, 655 So.2d 1118 (Fla.1995). Nevertheless, section 784.046 is a clear expression by the legislature that, under the circumstances here, the parent’s sworn petition is sufficient to support an injunction. In addition, here, appellant had the opportunity to introduce witnesses and cross-examine the complaining witness.

AFFIRMED.

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


author: SWANSON, J.

text:
    BEACH COMMUNITY BANK, Appellant, v. FIRST BROWNSVILLE COMPANY, a Florida Corporation, Arthur C. Bunton, III, and Archibald Hovanesian, Jr., Appellees.
    No. 1D11-4596.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    Rehearing Denied May 2, 2012.

      Kenneth B. Bell and Trevor A. Thompson of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellant.
    William R. Mitchell, Pensacola, for Ap-pellees.
   SWANSON, J.

Beach Community Bank (“Appellant”) appeals the trial court’s order denying its motion for deficiency judgment. Appellant contends the trial court abused its discretion in denying the motion because it rejected uncontroverted expert testimony as to the fair market value of the property at issue. We agree and reverse.

Appellant loaned money to First Brownsville Company, Arthur C. Bunton, III and Archibald Hovanesian, Jr. (“Appel-lees”) to construct and operate a mini-warehouse storage business. Appellees executed a promissory note secured by a mortgage on the mini-warehouse property. Appellant ultimately sued to foreclose the mortgage lien after Appellees defaulted on the loan. The court entered summary final judgment of foreclosure, determining that Appellees owed Appellant $1,224,475.50 and setting a date for the foreclosure sale. On June 80, 2010, Appellant purchased the property for $1,800.00 at the foreclosure sale. Appellant then filed a motion for deficiency judgment.

At the hearing on the motion, Appellant presented the testimony of John Priller. Appellees conceded that Priller was an expert in the field of property appraisal. Priller testified that he conducted an appraisal to determine the value of the mini-warehouse property. After analyzing the property’s value under three different methods, his final valuation concluded that the property was worth $770,000 on August 12, 2010. Although the appraisal date was six weeks after the foreclosure sale, Priller explained that the value of the property was the same because the market had not changed that much. On cross-examination, Priller testified that on October 15, 2009, he had produced an appraisal report on the same piece of property that valued it at $1,480,000.

Instead of presenting their own expert testimony, Appellees offered the testimony of Bunton, one of the property’s owners prior to foreclosure. Although Bunton had forty-five years of experience in construction, he was not a licensed general contractor in Florida and had no formal training in appraising commercial property. Bun-ton contended that Priller’s appraisals were flawed because they did not distinguish the property’s construction from another onsite building’s construction; incorrectly noted there were no five-by-five storage units on the property; incorrectly showed the paved areas were asphalt instead of concrete and wire mesh; and did not use comparable properties that had full concrete pad construction on the exterior and clear span steel construction on the interior.

At the hearing, the court reasoned that, as the trier of fact, it could “accept or reject expert opinion testimony[.]” The court determined that although “there [was] no contradictory expert testimony[,]” Priller’s testimony was not sufficiently credible because the diminution in value between his first and second appraisals was simply “too dramatic.” The court went on to state: “There’s been a decline, not a dramatic decline, I mean, things have been gradual. Certainly, you can come in and say there is a ten percent diminution in value. I mean, that would have been something that the [c]ourt could accept, but he just cannot reconcile sufficiently this dramatic decline and erosion of the value placed on the property.” The court denied the motion for deficiency judgment and subsequently rendered an order to that effect.

The decision to accept or reject expert testimony is reviewed under an abuse of discretion standard. Doctors Co. v. State, Dep’t of Ins., 940 So.2d 466, 469 (Fla. 1st DCA 2006). However, the court’s discretion in rejecting expert testimony cannot be exercised arbitrarily and requires some reasonable basis in the evidence. See Wald v. Grainger, 64 So.3d 1201, 1205-06 (Fla.2011). Moreover, “the trial court may not pit its judgment against that of an expert on highly technical matters.” Fla. E. Coast Ry. v. Beaver St. Fisheries, Inc., 537 So.2d 1065, 1069 (Fla. 1st DCA 1989); see also Port Largo Club, Inc. v. Warren, 476 So.2d 1330, 1334 (Fla, 3d DCA 1985) (“Where fair market value is at issue, expert testimony is necessary to prove the value thereof.”). The court can only reject undisputed testimony from an expert when it either concerns technical evidence and “is so palpably incredible, illogical, and unreasonable as to be unworthy of belief or otherwise open to doubt[,]” or when it concerns non-expert matters and is disputed by lay testimony. See Beaver St. Fisheries, Inc., 537 So.2d at 1070.

The court abused its discretion in rejecting Priller’s testimony. Priller’s qualifications, methodology, data, and calculations were never challenged except through a non-expert’s attempted impeachment of the appraisals. Priller testified that none of these issues affected his valuation of the property, and Appellees offered no evidence to contradict that testimony. In addition, there was no reasonable basis in the evidence to conclude that Priller’s testimony was not credible because the diminution in the value of the property between his two appraisals was “too dramatic.” Priller’s appraisals detailed several reasons why the property’s value declined. None of this evidence was challenged by Appellees or rejected by the court. Finally, there was no reasonable basis in the evidence for the court to opine that a gradual ten percent diminution in the value of the property was more reasonable.

Based on the foregoing, we must conclude the court abused its discretion by arbitrarily denying the motion for deficiency judgment. Savers Fed. Sav. & Loan Ass’n v. Sandcastle Beach Joint Venture, 498 So.2d 519, 521 (Fla. 1st DCA 1986) (stating “the exercise of [the trial court’s] discretion must be within the limits of proof and should not be arbitrary”). A judgment creditor is entitled to a deficiency judgment equal to the total amount listed in the final judgment of foreclosure minus the fair market value of the property as of the foreclosure sale date. Morgan v. Kelly, 642 So.2d 1117, 1117 (Fla. 3d DCA 1994). In the instant case, uncontro-verted expert testimony established that Appellant was entitled to a deficiency judgment based on the fair market value of $770,000. Accordingly, we reverse the trial court’s order denying Appellant’s motion for deficiency judgment and remand with instructions to enter deficiency judgment consistent with this opinion.

REVERSED and REMANDED with directions.

VAN NORTWICK, and LEWIS, JJ., concur.


author: BENTON, C.J.

text:
    LANCE BLOCK, P.A., Appellant, v. SEARCY, DENNEY, SCAROLA, BARNHART AND SHIPLEY, P.A., and Corcoran & Associates, Inc., Appellees.
    No. 1D11-3127.
    District Court of Appeal of Florida, First District.
    March 14, 2012.

      M. Stephen Turner, David K. Miller, and J. Andrew Atkinson of Broad and Cassel, Tallahassee, for Appellant.
    J. Michael Burman and David A. Yare-ma of Burman, Critton, Luttier & Coleman, LLP, West Palm Beach; John S. Mills and Andrew D. Manko of The Mills Firm, P.A., Tallahassee, for Appellee Sear-cy, Denney, Scarola, Barnhart & Shipley, P.A.
   BENTON, C.J.

Lance Block, P.A. (Block) appeals a non-final order compelling arbitration in an interpleader action it brought in circuit court. See Fla. R.App. P. 9.130(a)(3)(C)(iv). Block contends that the order compelling arbitration is void because the trial judge simultaneously entered an order of recusal. We vacate the order compelling arbitration on this ground, and remand for reconsideration by the successor judge.

A dispute among lawyers or law firms, the underlying controversy has to do with the division of legal fees. Alleging it was entitled to attorney’s fees the Legislature authorized in a claims bill, Block filed a complaint naming Searcy, Denney, Scaro-la, Barnhart and Shipley, P.A. (Searcy Denney) and Corcoran & Associates as defendants. See Fla. R. Civ. P. 1.240 (“It is not ground for objection ... that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants.”).

Count II alleged that Searcy Denney might assert an interest in the fees under an employment agreement Lance Block and Searcy Denney entered into in 1991. Searcy Denney moved to sever count II and compel arbitration, on the ground that the employment agreement contained a mandatory arbitration clause. After a hearing on the motion, the trial court took the matter under advisement.

The trial court granted the motion in due course, but on the same day the trial judge ordered arbitration, he entered an order of recusal ex mero motu. The basic rule is clear: “Once a trial judge recuses himself from a given case, any subsequent orders he enters in that case are void and have no effect.” Davis v. State, 849 So.2d 1137, 1138 (Fla. 1st DCA 2003). See also Goolsby v. State, 914 So.2d 494, 496-97 (Fla. 5th DCA 2005) (“Any order entered by a recused judge is void. A void order has no force or effect and is a nullity.” (citations omitted)). Outside the parties’ presence, both orders in the present case were signed and filed on the same day. Only one of the orders has a time stamp. The order of recusal is listed on the docket sheet just above the order requiring arbitration.

It is also clear that “[a]ny order entered simultaneously with the order of recusal is void.” Dream Inn, Inc. v. Hester, 691 So.2d 555, 556 (Fla. 5th DCA 1997). Decisions that have applied the rule that an order entered simultaneously with an order of recusal is void have not, however, paused to define “simultaneously” See Rodriguez v. Fernwoods Condo. Ass’n #2, Inc., 957 So.2d 1201 (Fla. 3d DCA 2007); Barnett Bank of S. Fla., N.A. v. Tarr, 557 So.2d 595 (Fla. 4th DCA 1990); Barnett Bank of St. Lucie Cnty. v. Garrett, 468 So.2d 467 (Fla. 4th DCA 1985). We need not offer a comprehensive definition, either, but we are confident “simultaneously” means something broader than the judge’s grasping a pen in either hand in order to sign two orders at once.

The trial judge recused himself in the present case because, eight days before the hearing on the motion to compel arbitration, another circuit judge (a colleague in the Second Circuit) filed a motion for leave to intervene, asserting rights to part of the fees in question. Whatever the sequence of these two orders, therefore, he may well have known of the grounds for the recusal order when he entered the order requiring arbitration. In these circumstances, since it is not clear which one was signed or filed first, the orders should be deemed to have been entered and rendered simultaneously. See Losh v. Brown, 6 Vet.App. 87, 89 (Vet.App.1993) (stating as the general rule that “a day is to be considered as an indivisible unit or period of time, and acts done or events occurring during the day are not referable to any portion of the day more than any other portion thereof, and are therefore to be regarded as occurring at the same time,” unless “priority between two occurrences on the same day can actually be established”).

On these narrow grounds — without expressing any view on the merits of the order requiring arbitration — we vacate the order requiring arbitration, and remand for further proceedings in the trial court.

WETHERELL and RAY, JJ., concur.

      . Searcy Denney attached the arbitration provision of the employment agreement:
      All controversies arising out of or connected with this Professional Employment Agreement, including any of its terms or conditions, the transactions contemplated hereby, or the alleged breach or enforceability of any of its terms or conditions, and including any controversy as to whether or not such dispute is arbitrable, shall be set-tied by arbitration in accordance with the rules then in effect of the Florida Arbitration Code, F.S. 682_The decision of the arbitrators, including a determination of the amount of damages suffered, shall be exclusive, final and binding upon the parties hereto, their heirs, successors and assigns .... The parties agree to consider themselves to be bound by any award pursuant to this paragraph.

      .There is an exception to the rule forbidding a recused or disqualified judge from entering an order: "When a judge has heard the testimony and arguments and rendered an oral ruling in a proceeding, the judge retains the authority to perform the ministerial act of reducing that ruling to writing." Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986). In the present case, Searcy Denney argues that the trial judge made comments that "strongly suggested he was going to grant the motion." But the judge did not make a ruling, and stated that he would rule only after reading the cases counsel had provided him.

      . In Searcy Denney's appendix, the trial court's arbitration order has a time stamp indicating it was filed at 2:51 p.m. on May 13, 2011, but no copy of the order of recusal reflects any time stamp.

      . We express no view on the desirability or necessity of recusal or disqualification in these circumstances.


text:
    William M. LANFRANCHI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0647.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    Rehearing Denied May 7, 2012.
    William M. Lanfranchi, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as moot. Petitioner was afforded a direct appeal in ease number 1D03-0613. See Lanfranchi v. State, 871 So.2d 211 (Fla. 1st DCA 2004).

DAVIS, CLARK, and ROWE, JJ., concur.


author: RAMIREZ, J.

text:
    FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellant, v. Jefferson DE SOUZA, Appellee.
    No. 3D10-3153.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.
    Rehearing Denied April 30, 2012.
    Conroy Simberg Ganon Krevans Abel Lurvey Morrow & Scheffer, P.A. and Hin-da Klein, Hollywood, for appellant.

      Kenneth Eric Trent, Ft. Lauderdale, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   RAMIREZ, J.

Federal Home Loan Mortgage Corporation (Freddie Mac) appeals the trial court’s order vacating a judgment of foreclosure against Jefferson De Souza. We reverse.

On June 9, 2009, De Souza was sued for default under his mortgage. According to the copy of the mortgage attached to the complaint, the mortgage was with Mortgage Electronic Registration Systems, Inc. (MERS), acting as nominee for the lender, First Magnus Financial Corporation. The complaint also attached an assignment from First Magnus to Aurora Loan Services, LLC, dated June 2, 2009. Aurora filed a motion for summary judgment on August 10, 2009. Aurora subsequently filed an ex parte motion to substitute Freddie Mac as the plaintiff, and attached the assignment in favor of Freddie Mac, dated August 4, 2009. The trial court granted the substitution. Thereafter, De Souza moved to dismiss, alleging Freddie Mac had no standing upon which to sue. The trial court denied De Souza’s motion, and entered a final judgment of foreclosure.

De Souza then moved to vacate the final judgment under Florida Rule of Civil Procedure 1.540(b). De Souza contended Freddie Mac fraudulently misrepresented its right to foreclosure, but he provided no facts contrary to those proffered by Freddie Mac in support of summary judgment. Rather, De Souza offered his conclusions that the mortgage documents were inconsistent. After a hearing, the trial court granted the motion to vacate the judgment, “based on fraud and misrepresentation of the plaintiff.” Freddie Mac appeals.

“Under Florida Rule of Civil Procedure 1.540(b), relief from judgment is only available under limited circumstances.” Dawson v. Wachovia Bank, N.A., 61 So.3d 1218, 1221 (Fla. 3d DCA 2011). If a defendant seeks relief from a judgment based upon fraud, he must specify the fraud with particularity and explain why the fraud, if it exists, would change the outcome of the case. U.S. Bank Nat’l Ass’n v. Paiz, 68 So.3d 940, 944 (Fla. 3d DCA 2011); Freemon v. Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1204 (Fla. 4th DCA 2010). The plaintiff must raise a prima facie case of fraud, rather than “nibble at the edges of the concept” through speculation and supposition. See Paiz, 68 So.3d at 944.

In this case, the trial court erred in granting the motion because the fraud allegations were indefinite. De Souza alleged discrepancies regarding the dates when Freddie Mac’s right to foreclose came to exist. But, neither De Souza’s motion nor the record supports a prima facie case of fraud. The dates on the documents show the trial court was promptly informed of changes to the identity of the party seeking to foreclose. Moreover, De Souza did not contend he was prejudiced by any alleged confusion regarding the creditor’s identity. It is undisputed he defaulted on the note and never erroneously paid anyone purporting to be the real creditor. There is no basis in the record upon which to conclude the plaintiff in this case used misrepresentations to obtain the judgment at issue, or that any misidentification prejudiced De Souza. Because De Souza did not present a legally sufficient claim of fraud, the trial court erred in vacating the judgment.

Reversed.