text:
    Helen D. KNOWLING, Appellant, v. Emel MANAVOGLU and Tarkan Manavoglu, Appellees.
    No. 5D10-1985.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2011.

      Henry G. Gyden of Swope, Rodante P.A., Tampa, for Appellant.
    Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier P.A., St. Peters-burg, for Appellees.
   PER CURIAM.

The dispositive issue on appeal is whether the trial court erred in concluding that a binding settlement agreement had been reached before the lawsuit was filed. Based upon the undisputed facts memorialized in letters between the parties, the trial court granted summary judgment on Appellant’s claim for bodily injuries arising from a motor vehicle accident. We conclude that the purported acceptance of the settlement offer did not mirror the offer and, therefore, did not create a binding contract of settlement. Accordingly, we reverse the summary judgment.

Appellant allegedly suffered bodily injuries and property damage as a result of a motor vehicle accident with Appellee, Emel Manavoglu. Appellant claimed Emel Manavoglu negligently operated her vehicle. At the time of the accident, Appellees were insured under an automobile liability policy issued by Allstate Indemnity Company. Shortly after the accident, Appellant hired an attorney, Jay M. Fisher, to represent her. Mr. Fisher immediately sent a letter to Allstate, informing the insurer of his representation of Appellant “in a claim for injuries and damages as a result of [the] accident” with Emel Manavoglu, and requesting certain insurance information pursuant to section 627.4137, Florida Statutes (2007). Allstate responded by letter on January 15, 2007, confirming receipt of Mr. Fisher’s correspondence. Allstate included an “Affidavit of Insurance” with its letter, reflecting the coverage limits of Appellees’ policy on the date of the accident. It did not include a copy of the policy, as requested, however, it indicated that it would forward a copy of the policy once received. In another letter dated that same day, an adjuster wrote to Mr. Fisher to inform him that he would be handling Appellant’s claim. The contents of the adjuster’s letter acknowledged that Appellant was making both bodily injury and property claims.

After receiving a copy of Appellees’ insurance policy, Mr. Fisher extended a written offer to settle Appellant’s bodily injury claim. The offer stated that “actual performance [was] required for acceptance” and included three requirements: (1) “a check for all available policy limits”; (2) “all items described in Florida Statutes 627.4137”; and (3) “a general BI release of your insureds, ready for [Appellant’s] signature[.]”

In response to Mr. Fisher’s letter, Allstate sent a letter promising to tender the policy limits “in full, final and complete settlement of [Appellant’s] claim(s) arising out of the accident which occurred on January 4, 2007.” The letter further indicated that the enclosed release was “appropriate to [Appellant’s] claim”; however, Allstate acknowledged that “[n]ot all release forms precisely fit the facts and circumstances of every claim” and noted that it did “not consider the release a document which create[d] any new terms or conditions governing [the] resolution of [Appellant’s] claim(s).” The proposed release indicated that the $10,000 settlement would resolve “any and all claims” arising out of the January 4 accident. The release also contained a provision that Appellant agreed to “indemnify and hold harmless [Appellees] and Allstate Indemnity Company from any ... validly asserted lien, claim of lien or right of reimbursement or subrogation, if later asserted as a result of failure to fully resolve any valid lien, subrogation claim or assignment of benefit.” Allstate subsequently forwarded a check for $10,000, along with a letter stating that the payment was for Appellant’s “claim arising from bodily injury caused by accident on 01/04/07[.]” Appellant did not cash the cheek and no further correspondence was exchanged between the parties for nearly six months.

On December 6, 2007, Mr. Fisher returned the check, indicating that, because Allstate had not complied with the offer, he would be filing a lawsuit. Once the lawsuit was filed, Appellees raised the ostensible settlement as an affirmative defense. The parties filed cross-motions for summary judgment regarding the issue of the settlement agreement. After a hearing, the trial court entered separate orders denying Appellant’s motion and granting Appellees’ motion. The trial judge concluded that the bodily injury claim had been settled presuit. We disagree.

The law of contracts is applied to resolve issues regarding the formation of a binding settlement agreement. See Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985) (“settlements, of course, are governed by the rules for interpretation of contracts”); ABC Liquors, Inc. v. Centimark Corp., 967 So.2d 1053 (Fla. 5th DCA 2007) (“settlement agreements are governed by the rules of contract interpretation”). To be binding, mutual assent as to all essential terms is required. King v. Bray, 867 So.2d 1224, 1228 (Fla. 5th DCA 2004) (citing David v. Richman, 568 So.2d 922, 924 (Fla.1990)). Mutual assent does not mean that two minds must agree on one intention; rather, the formation of a contract depends on the parties having said the same thing, not on their having meant the same thing. Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957).

For acceptance of an offer to bind the maker of the offer, it “must be absolute, unconditional, and identical with the terms of the offer.” Montgomery v. English, 902 So.2d 836, 837 (Fla. 5th DCA 2005) (citing Sullivan v. Econ. Research Props., 455 So.2d 630, 631 (Fla. 5th DCA 1984)). Thus, an acceptance must contain an assent to the essential terms contained in the offer. Giovo v. McDonald, 791 So.2d 38, 40 (Fla. 2d DCA 2001). What constitutes the essential terms of a given contract differs according to circumstances, but they “must include the terms specified in an offer to make a contract.” Id.

Here, the offer contained three essential terms: (1) a check for the policy limits; (2) the items described in section 627.4137, Florida Statutes; and (3) a “general BI release.” That a cheek for the policy limits was mailed is not in dispute. What is in dispute is whether the release provided by Allstate was consistent with the “general BI release” required in the offer; and whether the policy and other insurance documentation provided by Allstate satisfied Appellant’s request for “all items described in Florida Statutes 627.4137.”

Clearly, the release tendered by Allstate did not meet the dictates of the offer. The offer was expressly conditioned upon acceptance by performance, which included the provision of a “ready for signature” release to settle the claim for bodily injury only. The tendered release purported to encompass all claims arising from the accident, and included indemnification language, a new term, not contained within the offer. See Nichols v. Hartford Ins. Co. of the Midwest, 834 So.2d 217, 219 (Fla. 1st DCA 2002) (indemnification language is essential term, requiring assent to form settlement contract). As such, the so-called acceptance was nothing more than a counter-offer, and Appellant was not bound by it in the absence of a manifestation of assent to the additional terms. Mehler v. Huston, 57 So.2d 836, 837 (Fla.1952).

Based on our conclusion on the release issue, it is unnecessary that we address the issue of whether Allstate complied with the statutory request for information.

REVERSED AND REMANDED.

GRIFFIN, TORPY and EVANDER, JJ., concur.


source: Caselaw Access Project

author: HAWKES, J.

license: Public Domain

text:
    Joshua DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0576.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2011.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger and Steven A. Been, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

In this case, defendant pled no contest to two charges of sexual conduct with a minor. After entering the plea, and in preparation for sentencing, defendant’s attorney argued defendant had an absolute right to take the victim’s deposition. His argument was based on the fact that the victim was listed as a Category A witness in the State’s discovery response. When the defendant attempted to schedule the deposition, the State filed a motion for a protective order. After conducting a hearing on the State’s motion, the trial court granted the motion, commenting that criminal defendants have no right to conduct discovery following a plea, but prior to sentencing. We disagree with this ruling, but affirm the result.

Facts

The State charged defendant with lewd or lascivious battery, and child abuse by impregnation. Both charges addressed defendant’s sexual conduct with the same victim. Defendant pled no contest to the charges and signed a plea form containing the following language:

If the judge accepts this plea, I give up the right to a trial, the right to require the State to prove the charge against me beyond a reasonable doubt, the right to have a jury decide whether I am guilty or not guilty, the right to see and hear the witnesses against me and to have my lawyer question them, the right to subpoena and present witnesses or other evidence or any defenses I may have, and to testify or remain silent as I choose.

(emphasis added).

After the trial court accepted the plea, but prior to sentencing, defendant provided notice of his intent to depose the victim. Defendant indicated that if the deposition led to evidence that the sexual activity was consensual, it could be used to mitigate the charge of sexual battery. See § 921.0026(2)(f), Fla. Stat. (2010) (providing for mitigation in non-capital offenses when the “victim was an initiator, willing participant, aggressor, or provoker of the incident”); see also State v. Rife, 789 So.2d 288, 296 (Fla.2001) and Shuler v. State, 947 So.2d 1259, 1260 (Fla. 5th DCA 2007) (both cases indicating trial judges may mitigate a defendant’s sentence to a charge of sexual battery on a minor if there is evidence of victim consent).

Defendant claimed to have an absolute right to conduct the deposition under Rule 3.220. He specifically cited Rule 3.220(h)(1)(A), which allows a defendant to depose anyone whom the prosecutor has listed as a Category A witness. Because the State had originally listed the victim as a Category A witness, defendant claimed he had a right to depose her under the Rule. Although he had already entered a plea, he claimed Rule 3.220(h)(1)(A) was still applicable as it extended through all stages of the criminal proceeding. The State disagreed, claiming discovery is appropriate only pretrial and is inapplicable to sentencing. An evidentiary hearing was then held.

During the hearing, the trial court verbally granted the protective order, preventing the deposition from taking place. The decision was based upon only the court’s belief that criminal defendants do not have a right to conduct discovery once the case proceeds to sentencing. The court went on to state that although it was prohibiting defendant from conducting discovery, he would be free at sentencing to present any available evidence showing the sex was consensual.

At the sentencing hearing, defendant testified in his own behalf in hopes of mitigation. He stated the victim initiated their sexual encounter, they had sex only once, and that it was consensual. Also provided was the victim’s statement to the investigating officer in which she stated that she willingly went to the defendant’s apartment and engaged in sex. The trial court then rendered its sentence. It did not mitigate any sentences, but did impose the lowest permitted penalty under the Criminal Punishment Code for the battery charge. This appeal followed.

Standard of Review

The question on appeal is whether the portion of Rule 3.220 regarding the deposition of Category A witnesses applies when a defendant is preparing for sentencing. This is a question of law subject to de novo review. See Taylor v. State, 62 So.3d 1101, 1108 (Fla.2011) (applying de novo review to determine whether a particular rule of procedure is applicable).

Categorization of witnesses is relevant only for the guilt and innocence phase of a criminal proceeding

The trial court reached its ruling without addressing defendant’s rationale for conducting the deposition. Before addressing the trial court’s reasoning, we first comment upon whether defendant’s rationale for conducting the deposition had merit. As detailed above, defendant argued Rule 3.220(h)(1)(A) gave him the right to depose the victim at sentencing due to her classification as a Category A witness. Defendant misconstrues the law.

Rule 3.220 covers in broad strokes how to conduct discovery at each critical stage of a proceeding, including both trial and sentencing. However, not all of the Rule’s provisions are applicable at all times. Rule 3.220(b)(1)(A) — which defines Category A, B, and C witnesses — is such a provision. Rule 3.220(b)(1)(A) classifies witnesses based on their level of knowledge concerning the charged offense. Such classification is based on the witness’s ability to contribute towards determining the guilt or innocence of the defendant.

Once the trial stage is complete, the witness categories become irrelevant because questions of guilt have already been determined. At that point, there is no longer a need to differentiate witnesses based on their knowledge of the various elements of the offense. For instance, a witness designated as Category A might have eyewitness testimony concerning the defendant’s guilt which might prove critical at trial. However, that same witness might have no relevant testimony to offer concerning sentencing. Conversely, a witness who neither party planned to call at trial and who has no direct knowledge of the charged offense might nevertheless have testimony that is critical to sentencing matters.

With this in mind, defendant is incorrect in claiming he was entitled to depose the victim in preparation for sentencing based only upon her classification as a Category A . witness. The trial court was not required to allow the deposition for sentencing, despite the victim’s classification as a Category A witness. The question thus becomes how the trial court should have responded when it received the State’s motion for protective order.

Discovery may be applicable to any critical stage of a criminal proceeding

At the hearing, the trial court granted the protective order based on its belief that defendants have no right to conduct discovery in preparation for sentencing. The trial court’s ruling fails to acknowledge the language of the Rule, as well as policy considerations.

The language of Rule 3.220 is broad and not restricted in scope to only the trial stage of a criminal proceeding. For example, the provision of Rule relied on by defendant states a defendant may depose any witness slated to be called by a co-defendant at “a joint trial or hearing.” (emphasis added). It goes on to state the prosecutor may depose any witness “listed by the defendant to be called at a trial or hearing.” (emphasis added). Obviously, hearings may occur either pre- or post-trial.

Another illustration of the breadth of the Rule can be seen in how the Fifth District has allowed discovery during sentencing. In Booker v. State, the Fifth District found the language of Rule 3.220 “allow[s] reciprocal discovery in the trial and penalty phases of a capital case.” 634 So.2d 301, 302 (Fla. 5th DCA 1994). The Second District favorably cited Booker in two cases, each holding that Rule 3.220 extends to sentencing in capital cases. See State v. Clark, 644 So.2d 556, 557 (Fla. 2d DCA 1994); Sexton v. State, 643 So.2d 53 (Fla. 2d DCA 1994).

From a policy perspective, this is logical as sentencing hearings often involve evidentiary issues which may have not been addressed at trial. Issues such as mitigation or restitution, both of which are unique to sentencing, require the introduction of evidence. Because such new evidentiary issues may be raised at sentencing, the parties should be allowed to prepare by conducting discovery under Rule 3.220.

In short, because the language of Rule 3.220 does not prohibit the Rule’s application to sentencing hearings, and because new evidentiary issues requiring discovery may arise at sentencing, we find the Rule applies to sentencing, as well as to any other critical stage of the proceeding. This means defendant — while not possessing an absolute right to conduct the deposition — was entitled to have the trial court exercise its discretion on the State’s motion for a protective order, as in all discovery disputes. See Philippon v. Shreffler, 33 So.3d 704, 708 (Fla. 4th DCA 2010); Escutia v. Greenleaf Products, Inc., 886 So.2d 1059, 1061 (Fla. 1st DCA 2004). The trial court should have evaluated the motion for a protective order by weighing the possibility that the deposition would uncover evidence pertinent to sentencing against such factors as the victim’s young age and emotional state. The trial court also should have considered defendant’s ability to obtain evidence regarding consent from other sources, as well as whether the State entered into the plea agreement based on its desire to protect the victim from the ordeal of testimony. The trial court erred by failing to exercise its discretion through conducting a balancing test. However, the error was harmless in this case.

The error was harmless given the other evidence demonstrating consent

The State raises two arguments for harmless error, only one of which is persuasive.

First, the State argues defendant waived the right to conduct further discovery because, in his plea form, he surrendered “the right to see and hear the witnesses against me and to have my lawyer question them[.]” The State’s argument would be stronger had the plea form indicated a particular sentencing arrangement. However, the plea form specifically states “[t]here is no agreement as to sentence. The sentence will be determined by the judge.” Because defendant’s plea did not cover sentencing, certain evidentiary issues — such as mitigation — were left unresolved. Therefore, any waivers contained in the plea form pertained exclusively to trial, not to sentencing.

Second, the State claims that although defendant was not allowed to depose the victim concerning the nature of their relationship, any error was harmless as additional evidence in the record showed their sexual relationship was consensual. We find this argument to be persuasive. The issue of consent was fully addressed in the victim’s police statement and defendant’s testimony at the sentencing hearing. In particular, the victim submitted a statement claiming that each sexual incident with defendant was consensual, and defendant informed the court that the victim had initiated their sexual relationship. Considering this evidence, it is difficult to see how deposing the victim would have revealed new information concerning the issue of consent. The trial court had sufficient evidence on which to find the sex was consensual before making its sentencing decision.

Conclusion

Given the foregoing, we find that defendant was not entitled to depose the victim based on her Category A status. However, he was entitled to have the trial court weigh the merits of conducting the deposition, and the trial court erred in failing to do so. We AFFIRM only because additional evidence rendered this error harmless. We instruct the trial court that defendants have a right to conduct discovery at any critical stage of a criminal proceeding, and it should treat discovery disputes at any such stage in the same manner as those brought at trial.

ROWE, J., concurs; BENTON, C.J., dissents without opinion.

      . In particular, defendant received 115.5 months of imprisonment and five years of probation for the battery charge. He also received a five-year term of imprisonment for the child abuse charge, with this sentence to run concurrent to the sentence for the battery charge.

      . For example, Category A witnesses are defined as "(1) eye witnesses, (2) alibi witnesses and rebuttal to alibi witnesses, (3) witnesses who were present when a recorded or unrecorded statement was taken from or made by a defendant or codefendant [ ], (4) investigating officers, (5) witnesses known by the prosecutor to have any material information that tends to negate the guilt of the defendant as to any offense charged, (6) child hearsay witnesses, and (7) expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify.” Fla. R.Crim. P. 3.220(b)(l)(A)(i)-(iii).

      . Although these opinions pertained to capital cases — -which involve full evidentiary hearings for sentencing — the basis for the decisions was that the phrase "trial or hearing,” as used in Rule 3.220(d)(1)(A), encompasses more than just the trial. This logic is not dependent upon the nature of the underlying offense and, thus, may be applied in non-capital proceedings such as the instant case.


author: PER CURIAM.

text:
    H.B., Mother of N.C., A.B., E.S., and S.S., etc, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-863.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 2011.
    Eddie J. Bell, Daytona Beach, for Appellant.
    Jeffrey Dana Gillen, Chief Appellate Counsel, Department of Children and Families, West Palm Beach, for Appellee.
    Wendie Michelle Cooper, Tavares, Guardian ad Litem Program.
   PER CURIAM.

Appellant, H.B. [“Mother”], whose four minor children were found to be dependent as to her, challenges that determination, asserting that the trial court failed to comply with the statutory requirement to set forth factual findings supporting a determination of dependency. She also contends that the evidence presented at the adjudicatory hearing was legally insufficient to sustain the trial court’s determination of dependency.

The Department of Children and Family Services [“DCF”] commenced this proceeding by sheltering the four children in July 2010, and later filing a petition for dependency, alleging that the children were abused, abandoned and neglected by Mother. After conducting a hearing, the trial court entered an order adjudicating the children dependent. In the order of dependency, under the heading, “Findings of Fact”, the trial court wrote: “The factual basis for the adjudication of dependency is as follows: as outlined on the petition for dependency and incorporated herein as if stated.” DCF properly concedes that this format is inadequate to meet the requirements of section 39.507(6), Florida Statutes (2010). We agree that the required findings of fact are inadequate and reverse on that basis.

REVERSED and REMANDED.

ORFINGER, C.J., GRIFFIN and PALMER, JJ., concur.

      . The children are N.C., A.B, E.S, and S.S. The fathers of these children are not parties to this appeal and consented to the dependency below.

      . There was conflicting evidence presented on the dependency issue. We conclude that adequate evidence was presented to support an adjudication of dependency, if such evidence is accepted by the trial court and supported in an order containing the requisite findings.


author: RAMIREZ, J.

text:
    UNITED PROPERTY AND CASUALTY INSURANCE CO., Appellant, v. Armando VALLADARES et al., Appellees.
    No. 3D10-2706.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.

      Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer & Carlos D. Cabrera, Hollywood, for appellant.
    Glantz & Glantz and Alberto M. Carbo-nell, Plantation, for appellee.
    Before WELLS, C.J., RAMIREZ, and SUAREZ , JJ.

       Judge Suarez did not participate in oral argument.

   RAMIREZ, J.

United Property and Casualty Insurance Company appeals a final summary, judgment entered in favor of its insureds, Armando and Martha Valladares (collectively Valladares), for damages due to alleged loss of use of their home. We reverse, because United had already paid Valla-dares $23,000 to repair the home, the payment was accepted without reservation, and thus any suit for additional payments relating to the same claim is without merit because the claim existed at the time Val-ladares accepted settlement and was not excluded from the settlement.

Valladares sustained damage to their home as a result of a broken water pipe, and United denied the claim as excluded under the policy. Valladares hired a public adjuster, who disagreed with United’s evaluation of the damage. Valladares complained to the State of Florida’s insurance regulators, the Office of Insurance Regulation (OIR).

As a result of Valladares’ complaint, the OIR initiated a proceeding against United. In a consent order, United agreed that it would compensate Valladares for the disputed claim. Although the consent order disclaims liability and does not address the specific merits of Valladares’ claim, it references the claim by number, states the date of loss, and imposes an obligation upon United to make the payment “immediately.” United issued a check in the amount of $23,000 to the insureds pursuant to the consent order, and Valladares accepted the check which referenced Valla-dares’ claim number without reservation.

After receiving the benefit of United’s payment, Valladares sued United for breach of contract, alleging United failed to pay for the loss of use of the home during the time the pipes were broken. Valladares contended that the home was uninhabitable, and they were eligible for loss of use benefits under the policy. Valladares did not move out of the home, but contended the family was inconvenienced by the lack of hot water. United responded by restating its position that the policy excluded the loss, and contending that in any event it had already settled the dispute by making the $23,000 payment. The trial court entered summary judgment in favor of Valladares for loss of use benefits and statutory interest. The parties entered into a joint stipulation for entry of final judgment in the amount of $46,335, reserving the right to appeal the judgment. United appeals this judgment, and our standard of review is de novo. Collections USA, Inc. v. City of Homestead, 816 So.2d 1225, 1227 (Fla. 3d DCA 2002).

We need not construe the policy at issue in this case, because Valladares’ coverage claim was settled when they accepted the $23,000 payment from United. The $23,000 check specifically referenced the Valladares’ claim for damage resulting from the broken water pipes, the sole pending claim from Valladares under the United policy. Valladares accepted this payment without reserving any rights to other claims for damages resulting from the broken water pipes. Thus, the facts indisputably show Valladares accepted an offer for settlement of that claim.

Valladares could have objected to the settlement payment and reserved their rights to claim further damages due to loss of use, but they did not. Because the payment was intended to resolve the coverage dispute arising from the water pipe loss, and was accepted without reservation, the payment was an accord and satisfaction as to the losses known and alleged at that time. See Martinez v. South Bayshore Tower L.L.L.P., 979 So.2d 1023, 1024 (Fla. 3d DCA 2008) (holding that acceptance of checks, without protest, operated as an accord and satisfaction). Having accepted the benefits of the payment, Val-ladares cannot now disclaim the settlement. See Fineberg v. Kline, 542 So.2d 1002, 1004 (Fla. 3d DCA 1988) (stating that “once a party accepts the proceeds and benefits of a contract, that party is estopped from renouncing the burdens the contract places upon him”). Valladares did not allege additional facts or losses that were not at issue in the original claim, and thus it is evident the accord and satisfaction covered fully the pending coverage dispute. See Miller-Dunn Co. v. Green, 154 Fla. 72, 16 So.2d 637, 638 (1944) (finding that acceptance without condition of a check during a dispute defeated a later claim it was accepted only in partial satisfaction of the same debt).

As a result, we reverse the summary judgment for Valladares and direct that judgment be entered in favor of Únited because Valladares’ claim was satisfied when they accepted payment from United.

Reversed and remanded with directions.


text:
    Alfred WILCHER, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-2174.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.
    Alfred Wilcher, Cross City, pro se.
    No appearance for respondent.
   PER CURIAM.

This matter is before us on the Petition for Writ of Habeas Corpus filed by Alfred Wilcher. Wilcher claims that his appellate counsel was ineffective during the appeal from his resentencing proceeding in 1995. The claim of ineffective assistance of appellate counsel was not timely raised. Fla. R.App. P. 9.141(c)(4)(B). We dismiss the petition. Additionally, we bar Wilcher from filing any papers arising out of or in connection with his conviction and sentence for armed robbery in Broward circuit court case number 93-3493 CF10A.

By way of background, after an appeal of his original conviction for four counts of armed kidnapping and one count of armed robbery, Wilchers conviction for armed robbery was affirmed and his case remanded for resentencing on that charge only. Wilcher v. State, 647 So.2d 1013, 1014 (Fla. 4th DCA 1994). Wilcher appealed following his resentencing, and this court affirmed without opinion. Wilcher v. State, 670 So.2d 961 (Fla. 4th DCA 1996).

Since that appeal, Wilcher has filed numerous other challenges to his conviction and sentence, as well as claims of ineffective assistance of counsel. Wilcher v. State, 46 So.3d 574 (Fla. 4th DCA 2010) (sentence exceeded scoresheet and sequential issue with predicate offense(s)); Wilcher v. State, 893 So.2d 613 (Fla. 4th DCA 2005) (credit for time served); Wilcher v. State, 855 So.2d 72 (Fla. 4th DCA 2003) (trial court did not realize that it was not required to impose habitual offender sentence); Wilcher v. State, 821 So.2d 1081 (Fla. 4th DCA 2002) (guidelines sentence should have been imposed); Wilcher v. State, 793 So.2d 965 (Fla. 4th DCA 2001) (challenge to discrepancy between oral and written sentence; insufficient findings to support enhanced sentence).

The petition now before us purports to take issue with his attorneys performance in 1995 in connection with the appeal of his sentence on remand. More particularly, Wilcher argues that the resentencing process was not de novo, that counsel failed to challenge the incorrectly calculated score-sheet, and also failed to challenge an insufficient predicate to support his enhanced sentence. The claim was not raised within two years after the judgment and sentence became final as required by Rule 9.141(c)(4)(B). This petition was filed some fifteen years after the sentence imposed on remand became final.

Further, the claim is repetitive. Wilchers claim that he was entitled to and denied a de novo resentencing has been considered and rejected at least twice. Wilcher v. State, 915 So.2d 1224 (Fla. 4th DCA 2005); Wilcher v. State, 884 So.2d 947 (Fla. 4th DCA 2004). Challenges to Wilchers predicate offenses have also been rejected at least twice. Wilcher v. State, 958 So.2d 943 (Fla. 4th DCA 2007); Wilcher v. State, 873 So.2d 336 (Fla. 4th DCA 2004). This court has considered many other challenges to Wilchers resentencing as well and has affirmed each case.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that habeas relief cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions and that such petitions are subject to being dismissed as unauthorized).

In response to this latest filing, Wilcher was directed to show cause why sanctions should not be imposed against him. State v. Spencer, 751 So.2d 47 (Fla.1999). See also Fla. R.Crim. P. 3.850(m). Based on our review of the history of petitioners past filings as well as the instant petition, his response and our previous warning, we hold that this latest petition is untimely, successive, and frivolous. See Fla. R.App. P. 9.141(c)(4)(B).

By separate order, we direct the Clerk of this Court to reject and return any pro se papers Wilcher may attempt to file in this court in connection with his conviction and sentence for armed robbery originating in Broward circuit court case number 93-3493 CF10A.

Petition dismissed.

POLEN, STEVENSON and DAMOORGIAN, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    Margarita BEDOYA, Appellant, v. Pastor BEDOYA, Appellee.
    No. 3D10-2161.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.
    Scott Martin Roth, Naples, Kenneth R. Turner, and Mark S. Youngblood, Naples, for appellant.
    No appearance for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The final judgment of dissolution is reversed in part insofar as it (a) grants the wife the $150 per month alimony agreed to in the parties’ separation agreement only from the date of the filing of the action, September 16, 2009, rather than, as required, when the agreement was entered into, January 7, 2004, see Benson v. Benson, 369 So.2d 99 (Fla. 4th DCA 1979); Brenske v. Brenske, 151 So.2d 58 (Fla. 3d DCA 1963); Sedell v. Sedell, 100 So.2d 639 (Fla. 1st DCA 1958), and (b) denies prejudgment interest, see Thurman v. Thurman, 637 So.2d 64 (Fla. 1st DCA 1994); Romans v. Romans, 611 So.2d 92 (Fla. 1st DCA 1992). The wife’s other appellate issues present no harmful error.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.


author: WALLACE, Judge.

text:
    Alice GARDNER, Appellant, v. SCHOOL BOARD OF GLADES COUNTY, Florida, Appellee.
    No. 2D10-4242.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 2011.

      Mark F. Kelly, Robert F. McKee, and Melissa C. Mihok of Kelly & McKee, P.A., Tampa, for Appellant.
    Gavin W. O’Brien of Gavin W. O’Brien, P.A., Holmes Beach, for Appellee.
   WALLACE, Judge.

The School Board of Glades County disciplined Alice Gardner, a teacher, by depriving her of her professional services contract and placing her on “fourth year probationary contract status” for the 2010-2011 school year. After the Board acted, Ms. Gardner’s attorney promptly requested a formal administrative hearing and reconsideration by the Board of its action. In response, the Board conducted a hearing limited to the issue of whether Ms. Gardner had “waived her access to a full evidentiary hearing regarding [a change in] her contract status to a 4th year annual contract.” The Board ultimately entered an order finding that its failure to give Ms. Gardner notice of her right to a formal hearing under section 120.57(1), Florida Statutes (2009), about the alleged incident for which the Board disciplined her did not warrant reversal of the Board’s action. The Board also found that Ms. Gardner had waived her right to a formal evidentia-ry hearing. We reverse.

The principal at the school where Ms. Gardner taught did send Ms. Gardner an e-mail concerning the result of the principal’s investigation of the alleged incident and her intent to recommend to the school superintendent a change in Ms. Gardner’s contract status. However, the principal’s recommendation was not binding on the superintendent or the Board. Moreover, the record establishes that no one ever advised Ms. Gardner that she had a right to request a formal hearing before the Board on the proposed change to her contract status or the time frame for making such a request.

In Henry v. Department of Administration, 431 So.2d 677, 680 (Fla. 1st DCA 1983), the First District said:

Notice of agency action which does not inform the affected party of his right to request a hearing, and the time limits for doing so, is inadequate to “trigger” the commencement of the administrative process. Wahlquist v. School Board of Liberty County, 423 So.2d 471, 473 (Fla. 1st DCA 1982); Sterman v. Florida State University Board of Regents, 414 So.2d 1102 (Fla. 1st DCA 1982). An agency seeking to establish waiver based on the passage of time following action claimed as final must show that the party affected by such action has received notice sufficient to commence the running of the time period within which review must be sought. The requirements for such notice are objective rather than subjective in nature, and apply regardless of actual or presumed notice of agency action, as stated in Wahlquist, supra, 423 So.2d at page 473:
This court has recently reaffirmed the rule that actual notice of agency action which does not inform the affected party of his right to request a hearing and the time limits for doing so, is inadequate to “trigger” the commencement of the administrative process.
Thus, the sufficiency of the notice is not affected by the actual knowledge of the recipient. Appellee’s contention that, because appellant is an attorney, a different standard applies in determining sufficiency of notice is also devoid of merit.

See also § 120.569(2)(b) (providing that on decisions that affect substantial interests, “[a]ll parties shall be afforded an opportunity for a hearing after reasonable notice of not less than 14 days[,] ... [which] notice shall include ... [a] statement of the time, place, and nature of the hearing[, and a] statement of the legal authority and jurisdiction under which the hearing is to be held”).

In McIntyre v. Seminole County School Board, 779 So.2d 639, 641-42 (Fla. 5th DCA 2001), the Fifth District further recognized:

A teacher or contractual employee who can only be terminated for cause has a contractual property interest in his job. See Sublett v. District Sch. Bd. of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993) (citing McCracken v. City of Chinook, 652 F.Supp. 1300 (D.Mont.1987)). Moreover, under Florida law, a school board’s decision to terminate an employee is one affecting the employee’s substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute. See Sublett v. District Sch. Bd. of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993) (citing French v. School Bd. of Polk County, 568 So.2d 497 (Fla. 2d DCA 1990); Taylor v. School Bd. of Seminole County, 538 So.2d 150 (Fla. 5th DCA 1989)); see also Weiss v. Department of Bus. and Prof. Reg., 677 So.2d 98, 99 (Fla. 5th DCA 1996). However, the person who is substantially affected must affirmatively request a formal hearing; otherwise, he has waived that right. See City of Punta Gorda v. Public Emp. Relations Com’n, 358 So.2d 81, 82-83 (Fla. 1st DCA 1978); see also Fla. Stat. § 120.57 (1999). For an agency to establish that a person has waived his right to an administrative hearing, the agency must demonstrate that the person has been advised of the action to be taken and the basis thereof, the right to an administrative hearing, a clear point of entry into the administrative process, and a deadline by which a hearing must be requested. See City of St. Cloud v. Department of Envtl. Reg., 490 So.2d 1356, 1358 (Fla. 5th DCA 1986) (internal citations omitted).

See also Latin Express Serv., Inc. v. Dep’t of Revenue, 660 So.2d 1059, 1060 (Fla. 1st DCA 1995) (noting that “[t]his court has repeatedly recognized that a notice of agency action that fails to inform a party of its right to seek administrative review and the relevant time limits associated therewith is inadequate to trigger commencement of the administrative process”); Fla. League of Cities, Inc. v. Ad min. Comm’n, 586 So.2d 397, 413 (Fla. 1st DCA 1991) (noting same).

We have considered Krischer v. School Board of Dade County, 555 So.2d 436 (Fla. 3d DCA 1990), a case upon which the Board relies heavily in support of its position. In Krischer, the Third District addressed a school board’s technical noncompliance with the requirements of section 231.36(3)(e), Florida Statutes (1987), concerning notice to a teacher about deficiencies in his or her classroom performance. The Third District noted that the teacher had been “given early and continual notice of her unsatisfactory performance, albeit not the exact statutory notice prescribed.” Krischer, 555 So.2d at 437. In light of the multiple notices given to the teacher concerning the deficiencies in her performance, the Third District concluded that — in the absence of any prejudice to the teacher — a technical violation of the applicable notice requirements did not compel reversal of an order terminating the teacher’s employment. Id.

We find Krischer inapposite for three reasons. First, Krischer concerned technical noncompliance with particularized notice requirements concerning deficiencies in a teacher’s classroom performance. The obvious purpose of these requirements was to give the affected teacher an opportunity to remedy the deficiencies in his or her classroom performance before any adverse action was taken. In this context, technical noncompliance with the statutory notice requirements might be excused where — as in Krischer — the teacher had actual notice on several occasions and an adequate opportunity to show improvement. Here, the issue is not Ms. Gardner’s classroom performance and an asserted lack of improvement after multiple notices. Instead, we address discipline based on a single alleged incident. Second, the problem here is not a technical deficiency in required notice, but the absence of notice. Finally, unlike the teacher in Krischer, Ms. Gardner sustained prejudice caused by the lack of notice because she lost the opportunity to request a hearing before the Board decided to discipline her.

It is undisputed that the Board did not give Ms. Gardner written notice of her right to seek administrative review and the time limits for requesting a hearing. Under these circumstances, the Board failed to provide Ms. Gardner with a point of entry into the administrative process before taking adverse action on her contract status. It follows that Ms. Gardner did not waive her right to request a formal hearing. We reverse the order under review, and we remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and BLACK, JJ., Concur.

      . Section 231.36 was repealed effective January 7, 2003. Ch. 2002-387, §§ 1058, 1065, at 4152-53, Laws of Fla.


author: THOMAS, J.

text:
    Clary JAMISON, Appellant, v. STATE of Florida, State Attorney’s Office, Appellee.
    No. 1D09-6437.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2011.

      Clary Jamison, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals the trial court’s denial of his petition for writ of habeas corpus, challenging its finding that it lacked jurisdiction, as Appellant was incarcerated in another county. Because we treat the petition as a postconviction motion challenging the legality of his sentence and find that it was time barred, we affirm.

The trial court’s dismissal was based on findings of law, which we review de novo. See Sochor v. State, 883 So.2d 766, 772 (Fla.2004) (holding appellate court reviews legal conclusions de novo). We affirm the trial court’s ruling, although not on the grounds stated by the lower court. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (holding that “[e]ven when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.”).

The Nassau County Circuit Court was correct in denying Appellant’s petition, because it lacked jurisdiction to consider a petition for a writ of habeas corpus when Appellant was not incarcerated in the same county as the court. A petition for a writ of habeas corpus must be filed in the county in which the prisoner is detained. § 79.09, Fla. Stat. We, however, treat Appellant’s petition as a postconviction motion, as it challenges the legality of his sentence, and deny it because it was time barred. Fla. R.Crim. P. 3.850(b) (“motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence became final.”). This bar is jurisdictional and may not be waived. See Ferenc v. State, 697 So.2d 1262, 1263 (Fla. 5th DCA 1997) (holding that “[i]n the absence of an exception, a motion filed outside the two-year period will not invoke the jurisdiction of the trial court.”). The two-year time limitation for postconviction motions cannot be avoided by the filing of a petition for writ of habeas corpus. See Finley v. State, 394 So.2d 215, 216 (Fla. 1st DCA 1981) (holding that “[t]he remedy of habeas corpus is not available as a substitute for post-conviction relief under Rule 3.850”).

Appellant is warned that this is his fourth attempt to obtain collateral relief, and it is a frivolous filing. As this court noted in Clift v. State, 43 So.3d 778, 778 (Fla. 1st DCA 2010), filings without merit or frivolous filings may result in Appellant’s referral to the Department of Corrections for disciplinary procedures in accordance with section 944.279, Florida Statutes.

AFFIRMED.

ROBERTS and CLARK, JJ., concur.


text:
    Gomez T. COOK, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1490.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2011.
    Gomez T. Cook, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, Dixie Daimwood and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The order of February 17, 2011, which “re-files” appellant’s petition for a writ of habeas corpus as a motion for post-conviction relief is not an appealable order. Therefore, this appeal is hereby dismissed.

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


text:
    Henry James WIMBERLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3932.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2011.
    Henry James Wimberly, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Henry James Wimberly is hereby afforded belated appeal from judgment and sentence in the Circuit Court for Leon County, case number 2005-CF-431. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Justin SAFFERFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4597.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2011.
    Justin Safferfield, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus, to the extent it challenges pretrial actions by counsel and the trial judge, is premature because those issues can be raised on appeal from final judgment. The petition is therefore denied in part. Insofar as the petition complains of former counsel’s failure to provide petitioner with records upon request, the petition is also denied but without prejudice to petitioner’s right to seek relief in circuit court. See Dumas v. Marrero, 864 So.2d 531 (Fla. 5th DCA 2004).

PETITION DENIED.

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Larry T. SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5225.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2011.
    Larry T. Scott, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Larry T. Scott petitions this court for a writ of mandamus, complaining that the circuit court’s order on his postconviction motion failed to address ground one, sub-claim five and ground eight, subclaim four raised in the motion. The circuit court, however, has entered a final order denying postconviction relief which expressly addresses many of petitioner’s claims. The order is a final order. All claims, whether expressly addressed by the circuit court or not, were denied. It is not necessary for the lower tribunal to address every claim or subclaim with particularity in its final order. See, e.g., Bailem v. State, 984 So.2d 604 (Fla. 3d DCA 2008); see also Holley v. State, 859 So.2d 568 (Fla. 5th DCA 2003). Accordingly, the petition for writ of mandamus is denied.

PETITION DENIED.

THOMAS, ROBERTS, and CLARK, JJ., concur.


author: KHOUZAM, Judge.

text:
    In the Interest of G.M., a child. C.M., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D11-3466.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2011.

      Larry Cangro, St. Petersburg, for Appellant.
    Bernie McCabe, State Attorney, Sixth Judicial Circuit, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Ap-pellee Department of Children and Family Services.
   KHOUZAM, Judge.

C.M., the mother of G.M., appeals two final orders dated June 22, 2011, which denied her motion for reunification and terminated protective supervision with her child in the custody of his nonoffending father. Because the trial court failed to make statutorily required findings, we reverse the orders and remand for further proceedings.

The Department of Children and Family Services (Department) filed a petition for dependency regarding G.M. on May 20, 2009. The Child was adjudicated dependent on June 15, 2009, and was initially placed in the care of his maternal grandmother. He was reunified with his father in Georgia on December 16, 2009, and has resided with him since that time.

At judicial reviews held during 2010, each parent was found to be in various levels of compliance with the case plan. After a judicial review on December 9, 2010, the court amended the goal to “continuing efforts to maintain and strengthen and a concurrent goal of reunification with Mother with expected achievement date of May 12, 2011.” After a judicial review on May 12, 2011, the court found both parents to be substantially compliant. In response to the order declaring her compliance substantial, the Mother filed a motion for reunification on June 7, 2011. The Department filed a motion for termination of supervision on June 14, 2011, arguing that the longevity and stability of the Child’s placement with the Father no longer warranted protective supervision.

On June 22, 2011, the trial court denied the Mother’s motion and granted the Department’s motion. The order denying the Mother’s motion consisted of the handwritten word “Denied” on an order sheet and contained no findings of fact or further explanation. The order granting the Department’s motion made a series of findings, including in pertinent part that the Child was in stable and permanent placement with the Father, that both parents had substantially complied with their case plans, and that it would be in the Child’s best interests to remain in the long-term custody of the Father. The Mother timely appealed both orders.

Section 39.621(10), Florida Statutes (2010), provides:

The court shall base its decision concerning any motion by a parent for reunification or increased contact with a child on the effect of the decision on the safety, well-being, and physical and emotional health of the child. Factors that must be considered and addressed, in the findings of fact of the order on the motion must include:
(a)The compliance or noncompliance of the parent with the case plan;
(b) The circumstances which caused the child’s dependency and whether those circumstances have been resolved;
(c) The stability and longevity of the child’s placement;
(d) The preferences of the child, if the child is of sufficient age and understanding to express a preference;
(e) The recommendation of the current custodian; and
(f) The recommendation of the guardian ad litem, if one has been appointed.

(Emphasis added). “Courts lack the authority to deviate from statutory requirements when determining the placement of a child,” and therefore, “[a] finding regarding each of these factors is mandatory and vital to a proper order denying reunification.” L.J.S. v. Dep’t of Children & Families, 995 So.2d 1151, 1153 (Fla. 1st DCA 2008).

Additionally, section 39.522(2) requires that when a court considers whether a child should be reunited with a parent, it “shall determine whether the parent has substantially complied with the terms of the case plan to the extent that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the return of the child to the home.” As a result, “[i]t is well-established that, when a parent requests reunification and has substantially complied with [her] case plan, there is a presumption that the children should be returned unless it is established that returning the children would endanger them.” L.J.S., 995 So.2d at 1152-53. Without finding that reunification would be detrimental to the child, it is reversible error to permanently award custody to a nonoffending parent when the offending parent has a case plan goal of reunification and has substantially complied with the plan. See L.K. v. Dep’t of Children & Family Servs., 39 So.3d 1288, 1289 (Fla. 2d DCA 2010).

Here, the order denying the Mother’s motion did not include any of the required findings under either statute. It included neither the mandatory factors in section 39.621(10) nor the requisite finding under section 39.522(2) that reunification would endanger the child. It is therefore facially deficient.

The order granting the Department’s motion is also facially deficient. The order does not include findings on three of the five factors required under section 39.621(10). Although it does address factors (a) and (c) by noting the substantial compliance of the parents with their case plan and the stability and longevity of the Child’s placement, the remaining factors are omitted entirely. Additionally, the references to factors (a) and (c) are addressed in the context of justifying placement with the Father, rather than with respect to denying reunification with the Mother.

Under these circumstances, we must reverse the orders on appeal and remand for further proceedings. On remand, the trial court must determine whether reunification with the Mother would endanger the child and must consider and address all applicable factors enumerated in section 39.621(10). The trial court may make these findings based on the record before it, and if unable to, then may hold an evidentiary hearing.

Reversed and remanded.

LaROSE and CRENSHAW, JJ„ Concur.

      . Although the petition for dependency concerned all four of C.M.’s children, this appeal addresses only G.M.

      . Because no guardian ad litem was appointed in this case, subsection (f) does not apply here.


author: HAZOURI, J.

text:
    Tryshane HOUSTON, Appellant, v. GEO, et al., Appellees.
    No. 4D10-1448.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.

      Tryshane Houston, South Bay, pro se.
    No appearance for appellee.
   HAZOURI, J.

Tryshane Houston appeals an order dismissing his amended complaint of medical negligence against Global Experts in Outsourcing, Inc., Dr. Jean Dauphin, Dr. Marc Tennebaum, and Dr. Ken Kam (defendants), asserting that the trial court erred in dismissing the amended complaint as legally insufficient for failure to provide corroborating opinion from a verifiable medical expert. Houston asserts that he is relieved of the requirements of providing corroborating medical expert opinion because the defendants failed to comply with section 766.204, Florida Statutes (2009), by not providing him with copies of the medical records relevant to litigation of his medical negligence claim.

Houston, a prison inmate incarcerated at the South Bay Correctional Facility, which is operated on behalf of the state by Global Experts in Outsourcing, Inc., acting pro se and being indigent, filed the medical negligence complaint against the aforesaid defendants.

The trial judge, pursuant to section 57.085(6), Florida Statutes (2009), reviewed Houston’s claim and determined that it was legally insufficient as Houston failed to clearly indicate what his theory of liability was in reference to the medical negligence claim. In his initial complaint, Houston set forth facts alleging that he had requested copies of his medical records in order to comply with the dictates of section 766.204 and attached a copy of his request in support thereof. The document was a State of Florida Department of Corrections Form for a Request for Administrative Remedy or Appeal. Houston checked off that it was to be sent to the warden. Houston wrote:

I request for copys [sic] of my medical files, for a pre-suit notice requirement. I’m indigent and have no money in my Inmate banking account. I need copys [sic] of my medical records relating to a body rash. I need written prescriptions, bacterial swab results, blood works, specialist reports. I’m asking can this facility or medical department to [sic] place a lien on my account. I know a fee will be charged for each copy and if you do not have money in the I/m account and is indigent and lien can be placed on your account.

Houston signed and dated his request on April 21, 2009. The response from Dr. Dauphin, who signed it, as well as the warden, on May 13, 2009, stated:

Your request for administrative remedy or appeal has been received and reviewed.
You are entitled to review your medical records but copies of the same cannot be released until the fees are received as established by the Department of Corrections. No exceptions can be made. Based on the above information, your grievance is denied for placing a lien on your account.
You may obtain further administrative review of your complaint by obtaining form DC1-30S, completing the form, providing attachments as required by 33-103.007 and forwarding to the office of inmate grievance appeals, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500.

At paragraph 32 of the complaint, appellant alleges:

The Defendants have engaged in obstructionist tactics by failing to provide the Plaintiff with copies of his medical records, failed to provide the Plaintiff with an independent medical opinion. In fact, they, with notice of impending suit, have prevented the Plaintiff from complying in full with the Presuit requirement of sec. 766. Consequently, Plaintiff requests on evidentiary in that any objection to Plaintiffs lack of compliance with presuit requirements has been waived because of the Defendants’ actions. See Bailey v. Florida Department of Corrections, 904 So.2d 649 (Fla. 4th DCA 2005).

Following the dismissal of his complaint for failure to allege sufficient facts to support a cause of action, Houston filed an amended complaint asserting additional facts concerning his cause of action and repeated the same allegations regarding his request for medical records as well as his allegations in paragraph 32, which is now numbered paragraph 34.

On March 26, 2010, Houston filed his Omnibus Motion to Direct Clerk to Process and File Plaintiffs Amended Complaint, Rule of [sic] Plaintiffs Amended Complaint and Serve Summonses to Defendants. On March 26, 2010, the trial court entered the order on appeal entitled Order Dismissing Plaintiffs Motion and Dismissing the Amended Complaint as Legally Insufficient. It made the following findings and legal rulings:

Plaintiffs request to direct the Clerk to process and file the Amended Complaint is moot as the Amended Complaint has been filed. Further, Plaintiffs request to direct the Clerk to served [sic] summons on the Defendants is premature. Since this case has been previously dismissed, the Clerk cannot issue summons until the Court reopens the case. Plaintiffs Amended Complaint is legally insufficient. Plaintiff must provide corroborating opinion from verifiable medical expert. See O’Hanrahan v. Moore, 731 So.2d 95 (Fla. 4th DCA 1999). Accordingly, it is hereby
ORDERED AND ADJUDGED Plaintiffs Complaint is DISMISSED without prejudice as legally insufficient. Plaintiffs Motion is also DISMISSED. The Clerk is instructed to reopen the case.

Houston argues that the trial court erred in dismissing his Amended Complaint without holding an evidentiary hearing because defendants waived the corroborating expert opinion when they failed to comply with the ten-day production of records requirement. We agree.

The trial court dismissed the Amended Complaint as legally insufficient relying on O’Hanrahan v. Moore, 731 So.2d 95 (Fla. 4th DCA 1999). In that case, this court affirmed the dismissal of the pro se incarcerated plaintiffs petition for medical malpractice because he failed to produce a verifiable, corroborating medical expert opinion under section 766.202(6), Florida Statutes. That section requires that the opinion be submitted by a medical expert. O’Hanrahan’s corroborating medical expert opinion was not prepared by a proper medical expert, therefore his medical expert opinion did not meet the statutory requirements and the trial court properly dismissed O’Hanrahan’s complaint. By citing this, it appears the trial court in the instant case found Houston’s Amended Complaint legally insufficient because it did not have the corroborating medical expert opinion attached.

Section 766.204, Florida Statutes, is titled “Availability of medical records for presuit investigation of medical negligence claims and defenses; penalty” and provides in pertinent part:

(1) Copies of any medical record relevant to any litigation of a medical negligence claim or defense shall be provided to a claimant or a defendant, or to the attorney thereof, at a reasonable charge ■within 10 business days of a request for copies, except that an independent special hospital district with taxing authority which owns two or more hospitals shall have 20 days. It shall not be grounds to refuse copies of such medical records that they are not yet completed or that a medical bill is still owing.
(2) Failure to provide copies of such medical records, or failure to make the charge for copies a reasonable charge, shall constitute evidence of failure of that party to comply with good faith discovery requirements and shall waive the requiremént of written medical corroboration by the requesting party.

In Martin Memorial Medical Center, Inc. v. Herber, 984 So.2d 661 (Fla. 4th DCA 2008), the defendant hospital filed a petition for writ of certiorari after the trial court denied its motion to dismiss for, inter alia, failing to provide a corroborating medical affidavit. The plaintiff had requested medical records from the hospital on January 7, 2005, and although sent to the incorrect address, the written request was received by the hospital on January 17, 2005. The records were sent to plaintiff on February 1, 2005, more than 10 days later. On appeal, after quoting the statute above, this court held:

We previously held that the failure to provide medical records as required under section 766.204(1) obviates the necessity of providing a corroborating affidavit under section (2). Escobar [v. Olortegui], 662 So.2d 1361[,][] 1364 [ (Fla. 4th DCA 1995) ]; see also Medina v. Jackson Mem’l Hosp., 743 So.2d 541 (Fla. 3d DCA 1999). Martin Memorial, by its own admission received the request for records on January 17, 2005 and mailed the records on February 1, 2005; thirteen business days elapsed in the interim. Because Martin Memorial did not provide the records within ten days, the statute provides that Ms. Her-ber was under no obligation to furnish a corroborating affidavit with her notice of intent or any time thereafter.

Id. at 664.

In Bailey v. Florida Department of Corrections, 904 So.2d 649 (Fla. 4th DCA 2005), Bailey was a prison inmate who, after receiving negligent care, submitted an inmate request form to the medical department at Glades Correctional Institution for medical records he needed to comply with the pre-suit requirements of chapter 766, Florida Statutes. He submitted it in March 2003 along with a signed consent and release form. He had made a similar request a month before. The Department responded that “[u]nder confidentiality we are unable to release this [sic] confidential records to you, if you have your lawyer to request this we will be happy to comply.” Bailey was acting pro se. He requested them again and was again denied. Bailey filed his notice of intent to sue at the end of April 2003 and filed suit in November 2003. He alleged he was not able to comply with the pre-suit requirements because the defendants would not release his medical records. The defendants, Wexford Health Sources, Inc. and Jean Dauphin, Medical Director of Glades Correctional Institution, filed a motion to dismiss claiming they did not refuse to provide copies and that the records requests were not directed to them but to the Department of Corrections. Therefore, they argue, this did not constitute a waiver of their rights. The trial court dismissed the action for failure to comply with the presuit requirements. On appeal, this court held that due to the evidentiary questions as to the relationship between the defendants, whether the defendants maintained separate medical records, and why the records request through the Department of Corrections “medical” was not sufficient, an evidentiary hearing needed to be held as to Wex-ford and Dauphin. Id. at 652.

In Houston’s amended complaint, he has made claims against Global Experts in Outsourcing which he alleges has contracted with the State of Florida for the care of the inmates. He alleges that the three doctors he is suing are employed by Global Experts. Dr. Dauphin, one of the defendants, actually signed the tardy refusal to provide the records without payment. The trial court dismissed this case on its own without the defendants moving to dismiss. This was error. The trial court also erred in dismissing the amended complaint as the medical records were clearly not provided within ten days of the request.

We reverse the order dismissing the amended complaint and as we held in Bailey, do so without prejudice for the trial court upon motion of any party to conduct an evidentiary hearing in order to make findings of fact regarding the issue of waiver.

Reversed and, Remanded.

TAYLOR and LEVINE, JJ., concur.

      . Section 57.085(6), Florida Statutes (2009), provides:
      Before an indigent prisoner may intervene in or initiate any judicial proceeding, the court must review the prisoner’s claim to determine whether it is legally sufficient to state a cause of action for which the court has jurisdiction and may grant relief. The court shall dismiss all or part of an indigent prisoner’s claim which:
      (a) Fails to state a claim for which relief may be granted;
      (b) Seeks monetary relief from a defendant who is immune from such relief;
      (c) Seeks relief for mental or emotional injury where there has been no related allegation of a physical injury; or
      (d) Is frivolous, malicious, or reasonably appears to be intended to harass one or more named defendants.


text:
    M.A.C., Mother of K.C., K.C., and K.P., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D11-3617.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2011.

      Celines Garcia-Ryan, Fort Walton Beach, for Appellant.
    Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville; Kelley Schaeffer, Appellate Counsel, Guardian ad Litem Program, Ta-vares, for Appellee.
    Richard John Westberry, Pensacola, for Amicus S.L.P., Father.
   PER CURIAM.

Appellant appeals the trial court’s Order of Adjudication, Disposition, and Notice of Hearing which terminated protective supervision of K.P., adjudicated K.P. dependent, and placed K.P. with her father, who lives out of state. Appellant argues the trial court erred by: (1) failing to comply with the terms of the Interstate Compact on the Placement of Children (ICPC); (2) denying Appellant’s request for an eviden-tiary hearing on the issue of KP.’s placement; and (3) failing to grant Appellant’s request for an evidentiary hearing as to her previous consent to dependency as to K.P. Both Appellee Department of Children and Families (the Department) and the Guardian ad Litem concede error. Our review of the record indicates the concession of error is warranted; therefore, we reverse.

Pursuant to a prior court order, K.P., age 13, was on an “extended visit” with her father, who lives out of state. KP.’s permanent residence was with her mother, her half-siblings, and her mother’s paramour. K.P. and her half-siblings were under the Department’s protective supervision due to the paramour’s actions and the mother’s failure, inability, or unwillingness to protect her children.

According to the ICPC, of which Florida is a signatory, before a Florida court may place a child involved in dependency proceedings in a foreign state, certain requirements must be met. These requirements include the receiving state’s concurrence to that placement and, because it is otherwise required by Florida law before changing placement, a statutorily-compliant home study. See §§ 409.401 and 39.521(S)(b), Fla. Stat. There is no record evidence that either of these requirements was met as of the date of the hearing at issue and the court’s order. Thus, the court erred by terminating supervision and permanently placing K.P. with her father before the ICPC requirements were satisfied.

Although we agree with Appellant that she was entitled to an evidentiary hearing on the placement issue, we reject Appellant’s argument that she was deprived of her due process right to notice on the ground that the Department’s Predisposition Study did not reflect its intention to request that K.P. be permanently placed with her father. The Department’s intention and its underlying reasons were discussed in several parts of the Study. Because we hold that Appellant was entitled to an evidentiary hearing before the trial court could place K.P. with her noncustodial father, the issue of whether she was entitled to a hearing on withdrawing her previous consent to dependency is moot.

The record reflects that K.P. is currently residing with her father in another state. Our decision today should not be read to require relocating K.P. back to Florida pending the evidentiary hearing(s) ordered pursuant to this opinion.

REVERSED and REMANDED for proceedings consistent with this opinion.

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

      . See pages 3, 4, 6 and 7 of the "Chapter 39-PDR Requirements” filed by the Department before the hearing under review.


author: MONACO, J.

text:
    Alan SOWERBY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1132.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2011.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The appellant, Alan Sowerby, appeals the judgment and sentence associated with his conviction for driving while his license was permanently revoked. Because the stop of Mr. Sowerby’s vehicle was violative of the Fourth Amendment to the United States Constitution, we reverse.

The premise underscoring the analysis of this case rests on the principle that the stopping of an automobile by a law enforcement officer constitutes a seizure and detention and is governed by the Fourth Amendment to the United States Constitution. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); State v. Jones, 483 So.2d 433 (Fla.1986). If it is an investigative detention, it must be temporary and it must last no longer than is necessary to effectuate the purpose of the stop. See Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

The adjudicative facts are that Mr. Sowerby’s vehicle was stopped by a law enforcement officer because the officer thought that the license plate on the vehicle was improperly mounted as it was not within the mounting brackets normally found on the back of an automobile. The license plate, however, was a dealer plate with a magnetic back. The testimony reveals that although the plate was not within the brackets on the trunk of the car, it was mounted on the trunk and was “not higher than 60 inches and not lower than 12 inches from the ground and no more than 24 inches to the left or right of the centerline of the vehicle,” as required by section 316.065(1), Florida Statutes (2010). That is to say, the dealer plate was, in fact, lawfully mounted and within the statutory limits, and thus the stop could not have been based on a founded suspicion that a crime had been, was being, or was about to be committed. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), cert. denied, 522 U.S. 1119, 118 S.Ct. 1059, 140 L.Ed.2d 120 (1998).

As the police officer neared the car, he testified that he noticed that the license plate was a dealer plate, and not an ordinary license plate. In any event, when the officer approached Mr. Sowerby, he told him the reason for the stop and asked to see Mr. Sowerby’s drivers’ license. Mr. Sowerby at that time admitted that he had none, and was placed under arrest. After he was charged with driving while his license was permanently revoked, Mr. Sow-erby moved to suppress all evidence and statements made during the traffic stop, arguing that the law enforcement officer lacked the requisite probable cause or reasonable suspicion to believe that a crime had been, was being, or was about to be committed. The stop, in his view, was illegal. The trial court decided otherwise.

A trial court’s ruling on a motion to suppress is subject to a mixed standard of review. An appellate court is bound by such of a trial court’s findings of fact as are supported by competent, substantial evidence; however, the application of the law to those facts is subject to de novo review. See State v. K.N., 66 So.3d 380, 384 (Fla. 5th DCA 2011).

An application of the law to the facts of this case suggests that the vehicle stop was unjustified and that the suppression motion should, therefore, have been granted. State v. Diaz, 850 So.2d 435 (Fla.), cert. denied, 540 U.S. 1075, 124 S.Ct. 936, 157 L.Ed.2d 745 (2003) is instructive in this regard. In Diaz, a case involving a temporary license plate, the Florida Supreme Court held that as soon as an officer determines that the basis for his or her stop is invalid, the officer, without more, no longer has reasonable grounds to further detain a driver or to subject the driver to a subsequent personal examination, including the requirement to provide further information. More specifically, the court held:

[0]nce a police officer has totally satisfied the purpose for which he has initially stopped and detained the motorist, the officer no longer has any reasonable grounds or legal basis for continuing the detention of the motorist. Here, as soon as the officer determined the validity of Mr. Diaz’s temporary tag, he no longer had reasonable grounds or any other basis, legal or otherwise, to further detain Mr. Diaz. Having completely ascertained the validity of the temporary license plate, the law enforcement officer no longer had any cause or suspicion supporting the existence of a traffic or any other violation. Further, under the facts presented here, he certainly had no articulable or reasonable suspicion to support the detention of Mr. Diaz. There was nothing whatsoever questionable about the vehicle or those persons in the vehicle and there simply was no hint of any criminal activity. While the officer’s reason for the initial stop may arguably have been legitimate, once that bare justification had been totally removed, the officer’s actions in further detaining Mr. Diaz equated to nothing less than an indiscriminate, baseless detention....

Thus, even if we assume that the officer made a proper initial stop of Mr. Sower-by’s vehicle, he should have ceased asking for additional information when he found that the plate was, in fact, properly placed. See also Hilgeman v. State, 790 So.2d 485 (Fla. 5th DCA 2001) (a law enforcement officer is charged with knowledge of the law and his misapprehension of the law will not establish probable cause for an arrest for a violation).

The State now argues, however, that the officer properly stopped Mr. Sow-erby’s car because he had a reasonable suspicion that the car was in violation of that part of section 316.605(1), Florida Statutes, saying that:

[A]ll letters, numerals, printing, writing, and other identification marks upon the plates regarding the word “Florida,” the registration decal, and alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.

The State suggests that the stop was valid, as it turns out, because “a man of reasonable caution” approaching the vehicle with its license plate “in an unlighted area as darkness approached” would “believe that the tag was not plainly visible and legible from 100 feet.” Thus it argues that while it may be true that the plate was within the locational requirements of the statute, it was probably not visible and legible 100 feet from the rear of the car, as required by the statute.

There are three flaws with this argument. First, the State presented no evidence at all that the plate was not visible from 100 feet. Second, the officer never testified that the visibility requirement was the reason he stopped the car. Finally, this is not the argument made by the State below.

Accordingly, we reverse the judgment and sentence and remand to the trial court for further action consistent with this opinion.

SAWAYA and JACOBUS, JJ., concur.

      . See State v. Tullis, 970 So.2d 912 (Fla. 5th DCA 2007).

      . We note that unlike State v. Baez, 894 So.2d 115 (Fla.2004), there was no evidence that the officer here had a reasonable basis and reasonable suspicion to investigate the motorist further after the stop.


text:
    April E. REID, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3084.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2011.
    James F. Russo, Public Defender and Blaise Trettis, Assistant Public Defender, Viera, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 05-2011-CF-021396, in the Circuit Court in and for Brevard County, Florida. See Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, COHEN and JACOBUS, JJ., concur.


author: ORFINGER, C.J.

text:
    Thaddeus BAXTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4193.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2011.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, C.J.

Thaddeus Baxter appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

Mr. Baxter pled guilty to the charge of sale or delivery of a controlled substance in 1985. At the time of his plea, neither Mr. Baxter’s attorney nor the judge advised Mr. Baxter of the deportation consequences of entering the plea. Now, more than twenty-five years later, Mr. Baxter, citing Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), contends that his plea was involuntary because his attorney failed to inform him about the deportation consequences of his guilty plea.

Mr. Baxter’s motion is untimely. A motion for postconviction relief based on the failure to advise a defendant regarding possible deportation consequences of a guilty plea is held to the same two-year time constraints as other postconvietion motions. State v. Green, 944 So.2d 208, 218 (Fla.2006). Further, this Court has held that Padilla does not apply retroactively. See Santiago v. State, 65 So.3d 575, 576 (Fla. 5th DCA 2011); State v. Shaikh, 65 So.3d 539, 540 (Fla. 5th DCA 2011).

For these reasons, we affirm the denial of Mr. Baxter’s motion for postconviction relief.

AFFIRMED.

MONACO and EVANDER, JJ„ concur.


text:
    Angel Luis RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1084.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2011.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, C.J.

Angel Rivera appeals his conviction of grand theft. Mr. Rivera contends that the evidence was insufficient to prove the value of the items taken. Because we find that this issue was not preserved for appellate review, we affirm.

Mr. Rivera was charged with stealing various items from the victims with an aggregate value of $300 or more. The victims testified that they paid approximately $400 for the stolen laptop computer five months prior to the theft, and between $300 and $400 for the stolen X-Box game console five years earlier. They also purchased a number of X-Box games for about $55 each, but did not testify about their value or condition. The State did not offer any testimony concerning the fair market value of the property taken at the time of the theft, and Mr. Rivera did not question the sufficiency of the evidence concerning the fair market value of the stolen property at any point below. Now, on appeal, Mr. Rivera argues that the State failed to present sufficient evidence of the fair market value of the stolen property and, as a result, his felony conviction should be reduced to the lesser offense of petit theft of the second degree. See Alvarez v. State, 56 So.3d 912 (Fla. 5th DCA 2011); see also Smith v. State, 955 So.2d 1227, 1229 (Fla. 5th DCA 2007) (holding that state is required to present competent evidence to prove value of stolen property at time of theft).

The contemporaneous objection rule applies to challenges to the sufficiency of the evidence. See F.B. v. State, 852 So.2d 226, 229-30 (Fla.2003). With two exceptions, a defendant must preserve a claim of insufficiency of the evidence through a timely challenge in the trial court. The first exception is in death penalty cases, in which the supreme court’s review of the sufficiency of the evidence is required by rule. The second exception occurs when the evidence is insufficient to show that a crime was committed at all. Id. Mr. Rivera is not a death-sentenced prisoner nor does he argue that no crime was committed. Rather, Mr. Rivera argues only that the evidence proves him guilty of petit, not grand theft. Because the matter was not preserved for appellate review, we must affirm Mr. Rivera’s grand theft conviction.

AFFIRMED.

MONACO and EVANDER, JJ„ concur.

      . § 812.014(1),(2)(c)l„ Fla. Stat. (2010).

      . Mr. Rivera was also convicted of burglary of a dwelling, three counts of possession of a firearm by a convicted felon, and three counts of grand theft of a firearm. He does not challenge any of these convictions on appeal.


text:
    Dara OSTANE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1180.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2011.
    Dara Ostane, Wewahitchka, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Alison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Dara Ostane appeals the summary denial of his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. Ostane claims that defense counsel advised him if he pled no contest to the lesser-included offense of manslaughter, he would receive a ten-year sentence. Accordingly, Ostane pled no contest to the offense of manslaughter, subject to a firearm enhancement, and agreed to “serve a term of prison and/or probation to be determined after an evi-dentiary hearing before the [c]ourt.”

It is undisputed that, at the plea hearing, the trial court and the State reiterated that Ostane faced a maximum penalty of thirty years in the Department of Corrections (“DOC”), and the bottom of the guidelines range was 11.75 years. The transcript demonstrates defense counsel believed the' bottom of the guidelines range was 10.4 years. At sentencing, the trial court sentenced Ostane to thirty years in the DOC with five years suspended upon his successful completion of five years’ probation. The court made no inquiry into whether promises were made regarding the sentence.

The plea colloquy and attachments do not conclusively refute Ostane’s claim that defense counsel promised him a ten-year maximum sentence in the DOC. See Johnson v. State, 757 So.2d 586, 587 (Fla. 2d DCA 2000) (“[defendant’s] awareness of the maximum sentence he faced does not vitiate his claim that his attorney had assured him that his actual sentence would be much less than the maximum.”). Accordingly, because the transcript does not conclusively refute Ostane’s claim, we reverse and remand for an evidentiary hearing.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, EVANDER and COHEN, JJ., concur.


author: THOMAS, J.,

text:
    Charles A. MORRISON and Shirley W. Morrison, Appellants, v. UNITED STATES of America, Acting Through Farm Service Agency, f/k/a Farmers Home Administration, United States Department of Agriculture, Appellee.
    No. 1D10-5305.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.
    Stephen C. Bullock and Matthew C. Mitchell of Brannon, Brown, Haley & Bullock, P.A., Lake City, for Appellants.
    Michael S. Raab and Benjamin M. Schultz, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Appellee.
   PER CURIAM.

THOMAS, J.,

concurring.

In this appeal from the trial court’s “Final Judgment of Foreclosure and Final Judgment Dismissing Counterclaim with Prejudice,” entered on remand from our decision in United States v. Morrison, 28 So.3d 94 (Fla. 1st DCA 2009), rev. denied, 43 So.3d 44 (Fla.2010) (table), appellants raise two points seeking reversal of the trial court’s award of attorneys’ fees to appellee. We AFFIRM without comment the trial court’s award of attorneys’ fees to appellee arising from the final judgment of foreclosure. However, because the trial court reserved jurisdiction to determine the distinctly separate amount of attorneys’ fees awarded to appellee due to the dismissal of appellants’ counterclaim, we lack jurisdiction to consider their challenge of the award. Consequently, that portion of appellants’ appeal is DISMISSED. See Zampell Refractories, Inc. v. Welch, 61 So.3d 1160, 1160 (Fla. 1st DCA 2011); Zuberer v. Zuberer, 28 So.3d 993, 993-94 (Fla. 2d DCA 2010). See also Carlin v. Carlin, 895 So.2d 532, 532 (Fla. 1st DCA 2005) (holding that a finding of entitlement to attorney’s fees without setting the amount is a non-final, non-appealable ruling).

I concur, but write to acknowledge Appellants’ argument that under section 559.77(2), Florida Statutes, the issue of attorney’s fees requires a determination of whether Appellants’ counterclaim “fail[ed] to raise a justiciable issue of law or fact[.]” § 559.77(2), Fla. Stat. This argument may be meritorious, and I respectfully recommend that the trial court consider on remand whether any attorney’s fees should be imposed here. See generally Langford v. Ferrera, 823 So.2d 795 (Fla. 1st DCA 2001) (discussing similar standard for determining fees under previous version of section 57.105, Florida Statutes).

WETHERELL and SWANSON, JJ., concur; THOMAS, J., concurring vrith written opinion.


author: PER CURIAM. THOMAS, J.,

text:
    Lois M. SEEVERS, Appellant, v. Luis A. MONTIEL, individually, Appellee.
    No. 1D11-0371.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.

      Rhonda B. Boggess and Marsa S. Beck of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appellant.
    John S. Mills and Andrew D. Manko of The Mills Firm, P.A., Tallahassee, for Ap-pellee.
   PER CURIAM.

Appellant, Lois M. Seevers, seeks review of the trial court’s Supplemental Final Judgment of Attorney’s Fees and Costs and raises several arguments on appeal, only one of which has merit. Because we agree with Appellant that the trial court’s judgment failed to take into account Appellee’s attorneys’ concession that 5.25 hours should be deducted from the amount claimed, we reverse the judgment and remand with instructions that the trial court enter an amended judgment deducting $2,375 from the attorney’s fee award.

REVERSED and REMANDED with instructions.

THOMAS, J.,

specially concurring.

I concur, but write to note that the Offer of Judgment statute functioned here as intended by the Legislature. As previously noted in my concurring opinion in Schantz v. Sekine, 60 So.3d 444 (Fla. 1st DCA 2011) (Thomas, J., Specially Concurring), the judicial enforcement of section 768.79, Florida Statutes, has been problematic, and I recommended that the legislature review the statute to determine if revision may be appropriate to better define rights and obligations under the law. The case here is a good example of how the offer of judgment statute, when effective, can properly allocate costs to a party that unreasonably rejects an offer of settlement, and can provide an effective remedy to the party who offers to settle a claim before trial.

Here, Appellee offered to settle this case, which involved a personal injury resulting from an automobile accident, for $50,000. Appellant rejected the offer. After a four-day jury trial, Appellee then obtained a jury verdict and judgment of $198,568, triggering the application of section 768.79, Florida Statutes. Appellee then sought his costs and attorneys’ fees under section 768.79. This appeal addresses the trial court’s order determining those amounts.

Our decision today substantially affirms the trial court’s order which awarded Ap-pellee $75,399 in total costs and interest, and $501,606 in attorneys’ fees and interest. Thus, the party that had the opportunity to pay the opposing party a $50,000 settlement will now pay approximately $800,000 in judgment, when including post-judgment interest, in addition to the party’s own costs and attorneys’ fees incurred at trial and in this appeal.

This allocation of costs is the result the Legislature intended to produce when it enacted section 768.79, Florida Statutes, which provides incentives to a party to accept a reasonable settlement offer before trial and imposes significant costs on the party who rejects a reasonable offer to settle a dispute before trial.

DAVIS and VAN NORTWICK, JJ., concur; THOMAS, J., concurs with opinion.


text:
    Karen Elaine PULKKINEN n/k/a Karen Elaine Brautcheck, Former Wife, Appellant, v. Jyrki Tuono Juhani PULKKINEN, Former Husband, Appellee.
    No. 1D11-985.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.
    Jonathan P. Culver of Jonathan P. Cul-ver, P.A., Ocala, for Appellant.
    William Falik of William Falik, P.A., Gainesville, for Appellee.
   PER CURIAM.

Appellant contends that the trial court erred in denying her petition to modify a “domesticated” Michigan child support order. We directed Appellant to show cause why this appeal should not be dismissed for lack of jurisdiction because it did not appear that either of the appealed orders — the “Order Domesticating Foreign Decrees” or the “Order of Protection”— disposed of the petition. Appellant responded that this court has appellate jurisdiction to review the orders because they reflect that the trial court “tacitly” accepted Appellee’s argument that the court lacked jurisdiction to modify the Michigan child support order under Chapter 88, Florida Statutes, because Appellee is not a Florida resident. In the alternative, Appellant requested that this court exercise its eei'tiorari jurisdiction to review and quash the appealed orders because otherwise she will be prevented from seeking a modification of the Michigan child suppoi't order.

The appealed orders do not expressly dispose of Appellant’s petition to modify, either on the merits or on jurisdictional grounds; thus, the orders are not final orders. Nor are the orders appealable non-final orders under Florida Rule of Appellate Procedure 9.130. Accordingly, we lack appellate jurisdiction to review the orders at this time; and, because the orders do not cause irreparable harm that cannot be remedied upon plenary appeal of the final order on the petition to modify, we decline to exercise our certiorari jurisdiction to review the orders.

In sum, for the reasons stated above, we dismiss this appeal for lack of jurisdiction. This dismissal is without prejudice to the right of judicial review of any subsequent final order issued on Appellant’s petition for modification.

DISMISSED.

WOLF, LEWIS, and WETHERELL, JJ., concur.

       The Order Domesticating Foreign Decrees established the Michigan child support order as a Florida judgment (thereby granting Appellant a portion of the relief sought in her petition), and the Order of Protection simply granted Appellee's motion seeking-relief from Appellant’s discovery requests pending the trial court’s determination of its jurisdiction to modify the Michigan child support order.


text:
    Manuel J. CRIOLLO, Appellant, v. DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION, Division of Pari-Mutuel Wagering, Appellee.
    No. 1D11-2182.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.
    John Strohsahl and Bradford J. Beilly of Bradford J. Beilly, P.A., Ft. Lauderdale, for Petitioner.
    Garnett W. Chisenhall, Chief Appellate Counsel, Department of Business and Professional Regulation, Tallahassee, for Respondent.
   PER CURIAM.

Upon consideration of appellee’s confession of error, the final order is reversed and the cause is remanded with directions to enter a new order which either accepts the penalty recommendation of the Administrative Law Judge or reimposes the increased penalty stating with particularity the reasons for increasing the penalty as required by section 120.57(1)(l), Florida Statutes (2010). See Shah v. Dep’t of Health, 804 So.2d 615 (Fla. 1st DCA 2002).

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


text:
    Jermaine WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3055.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.
    Stacy A. Scott, Public Defender, and Victor Hayes, Assistant Public Defender, Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the April 29, 2011, judgment and sentence in Alachua County Circuit Court Case No. 2010-CF-1345A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If .petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

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