text:
    Stephen P. FISHER, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3256.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2014.
    Stephen P. Fisher, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Chief Judge.

Stephen P. Fisher, pro se, challenges the postconviction court’s denial of his Florida Rule of Criminal Procedure 3.850 motion. We affirm the denial after eviden-tiary hearing of Fisher’s claims of ineffective assistance of counsel without comment. However, as the State properly concedes, the trial court improperly sentenced Fisher on the underlying offenses as a violent career criminal. Accordingly, we reverse the denial of that claim and remand for further proceedings.

On August 24, 2009, Fisher entered open guilty pleas to burglary of an unoccupied structure, grand theft, and criminal mischief. The trial court accepted the pleas and sentenced Fisher on the burglary to ten years’ imprisonment as a violent career criminal.

A “violent career criminal” is a “defendant [who] has previously been convicted as an adult three or more times for [a qualifying] offense.” § 775.084(l)(d)(l)(a), Fla. Stat. (2009). Burglary qualifies as such an offense. Id.; § 776.08, Fla. Stat. (2009). However, “[i]n order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.” § 775.084(5) (emphasis added).

Although Fisher has four prior burglary convictions, two of those were sentenced together on December 12, 2002, and the other two were sentenced together on February 11, 2009. Accordingly, only one conviction from each sentencing can be counted toward the violent career criminal designation, leaving Fisher with only two qualifying convictions — one shy of the statutorily required three necessary to sentence as a violent career criminal.

We therefore reverse only the postcon-viction court’s denial of Fisher’s claim of sentencing error in his rule 3.850 motion and remand for resentencing.

Reversed and remanded.

CASANUEVA and CRENSHAW, JJ, Concur.

      . See Fla. R. Crim. P. 3.850(a)(1).


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Phillip J. WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2214.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2014.
    Phillip J. Wheeler, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Phillip J. Wheeler appeals the postcon-viction court order granting his motion filed under Florida Rule of Criminal Procedure 3.800(a). The State properly concedes error. We reverse the order of the postconviction court with directions for the court to vacate Wheeler’s sentence and resentence him.

On February 6, 1997, Wheeler entered an open plea of guilty to sexual battery with a deadly weapon or force, a life felony. At sentencing, the trial court designated Wheeler a habitual violent felony offender (HVFO) and sentenced him to life imprisonment with a fifteen-year mandatory minimum term. On February 2, 2012, Wheeler filed this rule 3.800(a) motion, challenging his HVFO status and the fifteen-year mandatory minimum term. The postconviction court granted Wheeler’s motion on April 9, 2013, and directed the clerk to strike his HVFO designation and the mandatory minimum portion of his sentence.

The postconviction court erred by not vacating Wheeler’s sentence and resen-tencing him under the 1994 version of the sentencing guidelines. This court has explained that when a defendant committed a life felony between October 1, 1995, and May 24, 1997, and was habitualized, the sentence must be vacated and the defendant must be resentenced under the 1994 version of the sentencing guidelines. Kinsey v. State, 831 So.2d 1253, 1254 (Fla. 2d DCA 2002) (citing Heggs v. State, 759 So.2d 620 (Fla.2000)); see also Everett v. State, 770 So.2d 192, 193 (Fla. 2d DCA 2000). Because Wheeler committed the offense on or about June 27, 1996, within the Heggs window period for relief, on remand, Wheeler must be resentenced under the 1994 version of the sentencing guidelines. “In addition, as authorized by Everett, the trial court at resentencing has the discretion to impose an upward departure sentence if one or more permissible reasons are applicable.” Kinsey, 831 So.2d at 1254.

Reversed and remanded with directions.

LaROSE and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    Terrell Montez STRAWDER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3104.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2014.
    Terrell Montez Strawder, Defuniak Springs, pro se.
    Pamela Jo 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. 42-2011-CF-002575-A, in the Circuit Court in and for Marion County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, CJ., SAWAYA and EVANDER, JJ., concur.


author: KHOUZAM, Judge.

text:
    Brad GREENBERG, Appellant, v. Francyne GREENBERG, Appellee.
    No. 2D12-6011.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2014.

      Matthew E. Thatcher of The Solomon Law Group, P.A., Tampa, for Appellant.
    Virginia R. Vetter, Tampa, and Donald P. DeCort, Tampa, for Appellee.
   KHOUZAM, Judge.

The Former Husband timely appeals the circuit court’s order on his supplemental petition for modification of alimony awarded to the Former Wife. The order denied his request for modification and directed him to pay 100 percent of her trial attorney’s fees and costs without determining the amount. We affirm the denial of modification without comment. But we lack jurisdiction to review the award of attorney’s fees and costs because an order determining entitlement to fees and costs without setting the amount is nonfinal and nonappealable. See Ritter v. Ritter, 690 So.2d 1372, 1376 (Fla. 2d DCA 1997).

Affirmed in part, review denied in part, and remanded.

VILLANTI and WALLACE, JJ., Concur.


text:
    Drew C. HARTLEY, Appellant, v. EIGHTH JUDICIAL COUNTY COURT OF UNION COUNTY, Appellee.
    No. 1D12-5102.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2014.
    Drew C. Hartley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Donna La Plante, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse the trial court’s order denying appellant’s petition for writ of mandamus and declaring appellant to be a vexatious litigant. We affirm the court’s order denying appellant’s motion for disqualification, which was legally insufficient.

The trial court erred as a matter of law by finding that appellant had “failed to allege that he has made the [lower] court aware of the pending motion,” citing Chapman v. State, 883 So.2d 835, 835-36 (Fla. 5th DCA 2004). Appellant attached to his mandamus petition a motion he had filed by placing it in the hands of prison officials for mailing, alerting the county court that his motion for relief under Florida Rule of Civil Procedure 1.540 was pending and asking the court to consider it. See John v. Dep’t of Corrs., 124 So.3d 381, 2013 WL 5744428 (Fla. 1st DCA 2013) (pleadings filed by pro se inmates should be viewed with lenity).

The circuit court also erred as a matter of law by finding appellant to be a vexatious litigant under section 68.093, Florida Statutes (2012), without issuing an order to show cause to give him an opportunity to be heard on the matter. See State v. Spencer, 751 So.2d 47 (Fla.1999); Long v. State, 793 So.2d 1141 (Fla. 1st DCA 2001); Favreau v. Favreau, 940 So.2d 1188 (Fla. 5th DCA 2006). Appellee did not cite any authority, nor do we find any in the statute or case law, dispensing with the need for a show-cause order when the finding of vex-atiousness is based upon the litigant having been found to be vexatious in another jurisdiction.

We affirm the trial court’s order denying appellant’s motion for disqualification on the ground that it was legally insufficient. The fact that there was an ex parte communication between the court and someone related to appellant’s adversary, without more, does not tend to show that the judge had a personal interest in the case, nor is it equivalent to a statement that the judge is prejudiced against appellant. In fact, Code of Judicial Conduct Canon 3B(7)(a) contains several examples of ex parte communications that are appropriate in a case. See also Nudel v. Flagstar Bank, FSB, 52 So.3d 692 (Fla. 4th DCA 2010) (observing that ex parte communications between the judge and a party involving administrative, non-substantive matters do not require disqualification).

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings.

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


text:
    Ivan A. MUNOZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3154.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2014.
    Ivan A. Munoz, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The Appellant has filed a Florida Rule of Criminal Procedure 3.850 motion raising three claims. We affirm claims one and three, but reverse and remand claim two for further proceedings. The Appellant alleges in claim two that counsel acted ineffectively for failing to file a motion for the trial judge who accepted the Appellant’s open plea to recuse himself after announcing on the record that the judge maintained an “active relationship” with the victim’s family, and thereafter sentenced the Appellant to a sentence greater than that which the State sought. We conclude that the Appellant’s allegations are facially sufficient and are not refuted by the record. See Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Fla. R. Jud. Admin. 2.330; Thompson v. State, 990 So.2d 482 (Fla.2008). Accordingly, the trial court shall either attach the portion of the record that conclusively refutes the Appellant’s claim, or shall hold an evidentiary hearing on the matter.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

CLARK, WETHERELL, and RAY, JJ., concur.


author: THOMAS, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Carolyn HIOTT, as Personal Representative of the Estate of Kenneth Hiott, Appellee.
    Nos. 1D12-5956, 1D12-6008.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2014.

      Robert B. Parrish, Charles M. Trippe, Jr., Jeffrey A. Yarbrough, Andrew J. Knight and David C. Reeves of Moseley Prichard Parrish Knight & Jones, Jacksonville; Charles R.A. Morse of Jones Day, New York, NY; Stephanie E. Parker, John F. Yarber and John M. Walker of Jones Day, Atlanta, GA; Kevin D. Boyce of Jones Day, Cleveland, OH; Edward Carter of Jones Day, Columbus, OH, for Appellant.
    Donald B. Ayer of Jones Day, Washington, D.C., pro hac vice on behalf of Appellant.
    Charles Farah and Eddie Farah of Fa-rah & Farah, P.A., Jacksonville; Norwood S. Wilner, Richard J. Lantinberg and Janna M. Blasingame of The Wilner Firm, Jacksonville; Kristi Stahnke McGregor of Milberg LLP, New York, NY, for Appel-lee.
    Melissa H. Nafash and Peggy J. Wedg-worth of Milberg LLP, New York, NY; Janine L. Pollack and Martin E. Restituyo of Wolf Haldenstein Adler Freeman & Herz LLP, New York, NY; pro hac vice on behalf of Appellee.
   THOMAS, J.

Appellant R.J. Reynolds Tobacco Company (Reynolds) appeals a Final Judgment awarding damages to Appellee Carolyn Hiott, Personal Representative of the Estate of Kenneth Hiott (Hiott). Reynolds asserts three grounds of reversible error: 1) the trial court erred in admitting evidence that Reynolds successfully challenged new proposed tobacco warnings in federal court; 2) the trial court erred in denying Reynolds’ requested jury instruction on the statute of repose; and 3) Reynolds’ due-process rights were violated by the application of factual findings of its misconduct which resulted from prior litigation in Engle v. Liggett Group, Inc.

Hiott cross-appeals the trial court’s order applying the jury finding that Mr. Hiott was partially at fault for his smoking-related illness to reduce the damages award. She asserts that because the jury found Reynolds committed the intentional tort of fraudulent concealment, section 768.81(4), Florida Statutes, barred application of Mr. Hiott’s comparative fault to reduce damages. The trial court found that Hiott waived this argument below by failing to raise it in the complaint or at trial.

We affirm on all issues. We certify conflict with Philip Morris USA, Inc. v. Hess, 95 So.3d 254 (Fla. 4th DCA 2012), rev. denied, 117 So.3d 412 (Fla.2013), on the question of whether the trial court erred in denying Reynolds’ requested jury instruction on the statute of repose.

TRIAL EVIDENCE AND RULINGS

Hiott sued Reynolds for the wrongful death of her husband, who died in 1996 of lung cancer, asserting claims of strict liability, negligence, fraudulent concealment, and civil conspiracy to fraudulently conceal. The jury found Mr. Hiott was a member of the Engle class due to his addiction to nicotine.

Pursuant to Engle, the jury was instructed that the following findings were binding in its deliberations:

1. Cigarette smoking causes lung cancer;
2. Cigarettes are addictive;
3. Reynolds put cigarettes on the market that were defective and unreasonably dangerous;
4. Reynolds concealed material information not otherwise known or failed to disclose that smoking was addictive and caused other related health issues;
5. Reynolds agreed with other companies to conceal or omit information regarding the health effects of cigarettes “or their addictive nature or both with the intention that smokers ... would rely on this information to their detriment”; and
6. Reynolds was negligent.

Thus, the remaining issues for resolution by the jury and the trial court were:

1. Whether Mr. Hiott was addicted to nicotine;
2. Whether the defective cigarettes manufactured by Reynolds were the cause of Mr. Hiott’s death;
3. Whether Reynolds’ negligence was the cause of Mr. Hiott’s death;
4. Whether Reynolds’ concealment of the dangers of smoking was a legal cause of Mr. Hiott’s death;
5. Whether the conspiracy to withhold information by Reynolds and others was a legal cause of Mr. Hiott’s death;
6. Whether Mr. Hiott was at fault, and if so, his portion of fault for his injuries and damages; and
7. Compensatory and punitive damages.

The trial was bifurcated in two phases, with Engle class membership, liability, comparative fault, compensatory damages, and entitlement to punitive damages to be determined in Phase I; and if punitive damages were found, the amount of punitive damages to be assessed against Reynolds in Phase II.

The evidence established that Mr. Hiott started smoking at approximately age 15, or about 1966. He smoked a pack of cigarettes every day for 28 years, until just before his death in 1996. Mr. Hiott con-suraed approximately 200,000 cigarettes or 2 million doses of nicotine. He attempted to quit smoking several times, including attending a cessation clinic.

Hiott presented substantial evidence of Reynolds’ corporate misconduct and decades-long concealment of the health dangers of nicotine. Further, Hiott presented extensive testimony regarding how the company ensured that smokers would become addicted to smoking and would be misled regarding the dangers of nicotine. This evidence included testimony that lung cancer was a rare disease in the United States in the early 20th century before smoking became prevalent, but later became a disease killing approximately 400,-000 people annually, as modern marketing and manufacturing methods of cigarettes evolved.

In a pre-trial ruling, the trial court allowed Hiott to introduce evidence that in 2012 Reynolds successfully challenged graphic tobacco warnings proposed by the federal Food and Drug Administration in federal court. Hiott argued that Reynolds’ challenge to the proposed graphic warnings was part of a long pattern of misconduct in which the company attempted to thwart public health education. Thus, Hiott argued, contrary to Reynolds’ self-presentation of a “reformed” company which now cooperated with public health agencies, Reynolds continued to evade their obligation to make every effort to warn the public. Reynolds argued that the company prevailed in its First Amendment challenge to these proposed warnings and that the warnings were ineffective. Reynolds further argued that, because Mr. Hiott died in 1996, long before Reynolds successfully challenged the warnings, the evidence was not legally relevant.

The trial court found the evidence of Reynolds’ federal litigation relevant to the issue of punitive damages. This evidence was admitted through Hiott’s expert historian and on cross-examination of a Reynolds witness; however, the evidence was discussed only briefly during an extensive trial. The graphic wai-nings at issue were not admitted at trial.

On the issue of the statute of repose, section 95.031(2), Florida Statutes, Reynolds argued below that Hiott could only recover on her fraudulent concealment and fraud-based conspiracy claims to the extent they rested on conduct that occurred after May 5, 1982, twelve years before the Engle suit was filed. Reynolds argued that an action for fraud under section 95.11(3), Florida Statutes, must be brought “within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.” § 95.031(2)(a), Fla. Stat. Reynolds requested that the trial court instruct the jury that to “find Reynolds liable on [Hiott’s fraud-based claims], you must find that Mr. Hiott reasonably relied to his detriment, after May 5, 1982, on a statement fraudulently concealing material facts. Reliance on statements prior to that date cannot by law be a basis for liability.” Reynolds proposed a similar question for the verdict form. The trial court denied both requests.

The jury found for Hiott in Phase I on her claims of strict liability, negligence, and fraudulent concealment, and awarded $1.6 million to her and $225,000 to Mr. Hiott’s son by a previous marriage, for a total award of $1,825 million. The jury found for Reynolds on the conspiracy claim. In its determination of comparative negligence, the jury assigned sixty percent of the fault to Mr. Hiott, and assigned Reynolds forty percent of the fault. The jury found in Phase I that Hiott was entitled to punitive damages; however, in Phase II, the jury found that Hiott should receive zero dollars in punitive damages.

Hiott moved for entry of final judgment in the full amount of compensatory damages, arguing that there should be no reduction based on Mr. Hiott’s fault because Reynolds committed an intentional tort, and thus Florida’s comparative fault statute, section 768.81, Florida Statutes, did not apply. In opposition, Reynolds made two arguments. First, because Hiott’s operative complaint, proposed jury instructions and jury comments did not expressly limit Hiott’s admission of partial fault to her negligence and strict liability claims, Reynolds argued that the exception for intentional tort in the comparative fault statute did not apply. Second, Reynolds argued, the comparative fault statute applies to actions, and not claims; thus, because Hiott’s case is in essence a negligence action, Reynolds asserts, the rule excluding the application of comparative negligence did not apply.

The trial court did not address Reynolds’ second argument regarding the nature of Hiott’s action, but instead it found Hiott waived any argument against reducing the judgment, because she sought “apportionment of fault and damages” in her complaint. Thus, the trial court found this case distinguishable from an earlier trial court ruling, which this court affirmed in R.J. Reynolds Tobacco Co. v. Sury, 118 So.3d 849 (Fla. 1st DCA 2013), because, here, Hiott did not assert in her complaint that any comparative negligence was solely limited to the claims of negligence. Neither did Hiott in any manner assert to the jury that Mr. Hiott’s comparative fault would not be applicable to the claims of intentional tort.

The trial court also found that the verdict form would be misleading if the court were to exclude Hiott’s comparative fault, citing Foreline Security Corp. v. Scott, 871 So.2d 906, 911 (Fla. 5th DCA 2004). The trial court concluded that based “on this statement alone, it is likely that the amount of the jury verdict reflected the jury’s intention that Plaintiff would actually recover an amount of damages which was smaller than its award.” Thus, the trial court accordingly reduced the total damage award from $1,825 million to $730,000. This ruling is the basis of Hiott’s cross-appeal.

ANALYSIS

Appeal

Reynolds argues that the trial court reversibly erred by admitting evidence that Reynolds successfully prevailed in its federal action against the Food and Drug Administration’s proposed new and graphic tobacco warnings. We hold that even if error occurred, it was harmless, because there is no reasonable possibility that the evidence affected the verdict, as the jury awarded zero dollars in such damages in Phase II of the trial, despite finding that Hiott was entitled to punitive damages in Phase I. Tallahassee Mem’l Reg’l Med. Ctr. v. Meeks, 560 So.2d 778, 782 (Fla.1990) (“Considering the totality of the evidence, we conclude that the introduction of this one privileged statement did not prejudicially affect the jury’s determination of negligence and that no reversible error occurred in its admission.”). In addition, the challenged evidence was very limited in its scope during an extensive jury trial, and the graphic warnings themselves were not admitted into evidence; thus, we conclude that the evidence could not have contributed to the verdict on compensatory damages.

The legislature has directed in section 59.041, Florida Statutes:

No judgment shall be set aside or reversed, or new trial granted by any court of the state in any ... civil [cause of action] ... on the ground of ... the improper admission or rejection of evidence ..., unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.

Here, while it may be correct that it would be improper to allow a jury to determine liability based on Reynolds’ successful efforts to enforce its legal and constitutional rights, there is no likelihood that the brief testimony resulted in a “miscarriage of justice,” as this harmless-error statute has been interpreted by our court; that is, the result here would not have been different but for the admission of this evidence. Nat’l Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So.2d 840, 843 (Fla. 1st DCA 2000).

This court’s harmless-error standard in civil cases has been described as imposing a lesser burden on the party benefiting from the error, but we would affirm under any other appellate standard used in other civil cases. See generally, Special v. Baux, 79 So.3d 755, 768 (Fla. 4th DCA 2011) (en banc), rev. granted, Special v. West Boca Med. Ctr., 90 So.3d 273 (Fla.2012). This court has held that the test for harmless error in civil cases is whether “ ‘a different result may have been reached.’ ” Hogan v. Gable, 30 So.3d 573, 575 (Fla. 1st DCA 2010) (citing Blackmon, supra). Reviewing this record in its totality, there is simply no reasonable possibility that the evidence affected the fact finder, and certainly there is no reasonable possibility that the result would have been different, had the evidence not been admitted.

Reynolds’ second argument asserts that the trial court erred in denying its requested jury instruction on the statute of repose, section 95.031(2), Florida Statutes. Reynolds acknowledges that this issue may be foreclosed to it by this court’s decision in R.J. Reynolds Tobacco Company v. Webb, 93 So.3d 331 (Fla. 1st DCA 2012), but if so, Reynolds asserts that this decision directly conflicts with Philip Morris USA, Inc. v. Hess, 95 So.3d 254 (Fla. 4th DCA 2012), rev. denied, 117 So.3d 412 (Fla.2013).

In Webb, this court cited Laschke v. Brown & Williamson Tobacco Corporation, 766 So.2d 1076, 1079 (Fla. 2d DCA 2000), for the proposition that in interpreting the statute of repose, the last act done in furtherance of the conspiracy triggers the statute, thus determining that the statute would not run until the conspiracy had been completed. In Hess, by contrast, the Fourth District held that the statute of repose barred a claim for punitive damages based on fraudulent concealment, where the jury specifically found that the plaintiff relied only on conduct that occurred twelve years before the filing date of the Engle class action. We hold that our prior decision in Webb does foreclose relief to Reynolds here, but we certify conflict between Webb and the Fourth District’s decision in Hess.

Reynolds’ third argument on appeal asserts that the trial court’s application of the Engle findings to allow Hiott to establish elements of her claims violates Reynolds’ federal due process rights. Réynolds asserts that its due process rights require that Hiott prove that the specific issue relevant to her case was actually decided in her favor in the prior litigation, citing Fayerweather v. Ritch, 195 U.S. 276, 299, 25 S.Ct. 58, 49 L.Ed. 193 (1904). Reynolds acknowledges that its argument has been rejected by the Florida Supreme Court in Philip Morris USA, Inc. v. Douglas, 110 So.3d 419 (Fla.2013), cert. denied, — U.S. -, 134 S.Ct. 332, 187 L.Ed.2d 158 (2013), but seeks to preserve it for further review. We reject this argument and affirm on the authority of Douglas.

Cross-Appeal

Standard of Review

On cross-appeal, Hiott asserts she is entitled to the full award of damages, despite the jury’s finding of Mr. Hiott’s comparative negligence, because Reynolds was found liable for an intentional tort. Hiott asserts that the standard of review on this issue is de novo. See Van v. Schmidt, 122 So.3d 243 (Fla.2013) (trial court’s erroneous conclusions of law in order granting new trial are not entitled to deference, but reviewed de novo). Reynolds argues, however, that in Sury, this court applied an abuse of discretion standard of review to the claim that the trial court incorrectly applied the comparative fault statute to an intentional tort. 118 So.3d at 851 (“[W]e find no abuse of discretion in the trial court’s determination that ... this action ‘actually had at its core an intentional tort by someone.’ ”) (quoting Merrill Crossings Assocs. v. McDonald, 705 So.2d 560, 563 (Fla.1997)). As we previously noted, the trial court found that Hiott waived her argument on this issue, by failing to inform the jury that Mr. Hiott could not be at fault for any intentional misconduct of Reynolds.

This court and other district courts have held that a trial court’s finding of waiver is reviewed for abuse of discretion. Seaside Cmty. Dev. Corp. v. Edwards, 573 So.2d 142, 146 (Fla. 1st DCA 1991) (“[I]t was within the trial court’s discretion to conclude that Seaside waived its right to require the additional escrow account deposit.”); Young v. G & S Bldg. Supply, Inc., 603 So.2d 667, 668 (Fla. 4th DCA 1992) (“A question of fact existed as to whether there was a waiver. We cannot say that the trial court abused its discretion by factually finding no waiver.”) (internal citation omitted). Here, however, the facts are not in dispute, and we are required to determine only whether the trial court correctly found a waiver of the application of the statute on the basis of these undisputed facts.

As the Florida Supreme Court has noted: ‘Waiver is the voluntary and intentional relinquishment of a known right, or conduct which implies the voluntary and intentional relinquishment of a known right.” Major League Baseball v. Morsani, 790 So.2d 1071, 1077 n. 12 (Fla.2001) (citing Kissimmee Util. Auth. v. Better Plastics, Inc., 526 So.2d 46, 48 (Fla.1988) (holding that statute of limitations defense is an affirmative defense which must be pleaded at trial, and failure to raise affirmative defense before opposing party files motion for summary judgment waives affirmative defense)). To decide whether a party voluntarily relinquished a right necessarily requires a factual inquiry, at least in part. Furthermore, even where facts are undisputed, we think that a trial court’s decision such as this, which evaluates the impact of a potential waiver based on an extensive trial, merits due deference. Thus, we conclude that our standard of review is whether the trial court here abused its discretion.

Hiott asserts that the trial court erred-when it applied comparative fault to reduce the compensatory damages award, because Florida law provides that a comparative fault defense does not apply to intentional torts, and she asserts that this precludes waiver. § 768.81(4)(b), Fla. Stat.; Mazzilli v. Doud, 485 So.2d 477, 480 (Fla. 3d DCA 1986). Hiott relies on this court’s decision in Sury, where we held that section 768.81(4)(b), Florida Statutes, precluded a reduction of damages where, much like here, the case was essentially based on intentional misconduct. 118 So.3d at 852. Accordingly, Hiott asserts that because Reynolds’ fraudulent concealment of material information concerning the health risks and addictive nature of cigarette smoking was a legal cause of her husband’s death, the defense of comparative fault did not apply as a matter of law. Moreover, Hiott argues, the trial court’s application of Reynolds’ comparative fault defense was error, because it violated the sound public policy embodied in the comparative fault statute — a person who intentionally harms another should not benefit from allocation of fault or contribution.

At oral argument, Hiott asserted that this court should hold that an Engle plaintiff is allowed to acknowledge a decedent’s fault to the jury, without commenting on the legal effect of such fault on the damage award, pending the jury’s decision as to whether the defendant was liable for both negligence and intentional torts, or negligence only. If the latter should occur, according to Appellee, then comparative fault would apply; if the former, the trial court should be required to disregard the jury’s comparative fault finding and decline to reduce the damages award under section 768.81(4), Florida Statutes.

Reynolds urges this court to affirm the trial court’s finding that Hiott waived her argument on cross-appeal. Reynolds argues that this case is distinguishable from Sury, because in that case, we recognized that the plaintiff clearly informed the jury that it was only conceding the possibility of comparative fault to claims of negligence, and not to claims of intentional tort: “the plaintiffs Complaint clearly and specifically sought ‘potential apportionment of fault and damages on all counts other than those alleging intentional torts.’ ” 118 So.3d at 851. In addition, this court found in Sury that “Dr. Sury never argued to the jury or the court that the damages for his father’s terminal illness should be reduced by his portion of fault.” Id.

Regarding her complaint, Hiott argues that she could not have intended to invite the jury or the court to apportion fault to an intentional tort claim, as such is not allowed by law. Furthermore, she asserts that the trial court’s ruling doing so failed to construe the pleadings “to do substantial justice,” as required by Florida Rule of Civil Procedure 1.110(g). Hiott notes that “ ‘it is well established Florida law that a complaint ... which is but a tentative outline of a pleader’s position is inadmissible as evidence to prove a fact alleged therein.’ ” (citing Adams v. Merrill Lynch, 392 So.2d 4, 5 (Fla. 4th DCA 1980)). Hiott also relies on Straub v. Village of Wellington, 941 So.2d 1269, 1270 (Fla. 4th DCA 2006), for the proposition that legal conclusions within complaints cannot raise disputed issues of fact or determine legal issues. Hiott further notes that the jury did not receive the complaint as evidence. Thus, she argues, the trial court erred in finding any waiver based on her complaint.

Reynolds counters this argument by citing well-established law that parties are bound by the allegations of their complaint. United Bank of Pinellas v. Farmers Bank of Malone, 511 So.2d 1078, 1080 (Fla. 1st DCA 1987); accord Hunt v. Corrections Corp. of Am., 38 So.3d 173, 177 (Fla. 1st DCA 2010); Carvell v. Kinsey, 87 So.2d 577, 579 (Fla.1956); see also, e.g., Fernandez v. Fernandez, 648 So.2d 712, 713 (Fla.1995) (“We further point out that a party is bound by the party’s own pleadings.”); United States v. Century Fed. Sav. & Loan Ass’n of Ormond Beach, 418 So.2d 1195, 1197 (Fla. 5th DCA 1982) (“The parties to an action are bound by the allegations in their pleadings.... ”).

Here, Hiott failed to inform the jury that she intended to reserve her right to assert the inapplicability of comparative fault to any of her claims. Furthermore, as the trial court noted, the jury instruction informed the jury that in determining damages, “you should not make any reduction because of the fault you charge to Kenneth Hiott. The Court will enter a judgment based on your verdict and will reduce the total amount of damages by the percentage of fault which you charge to Kenneth Hiott.” (Emphasis added.) Accordingly, the trial court found that “it is likely ... the jury verdict reflected the jury’s intention that Plaintiff would actually recover an amount of damages which was smaller than its award.” For support of its conclusion, the trial court cited Foreline, in which the Fifth District held that the trial court erroneously refused to apportion comparative fault, after instructing the jury to allocate such fault, because “[t]he jury may have reached a different verdict on damages had it known that Foreline would bear the entire amount.” 871 So.2d at 911. We agree that this rationale applies here.

Hiott distinguishes Foreline on the basis that its holding on the application of comparative fault did not hinge on the intentional tort question, as the Fifth District reversed on the intentional tort claim; thus, only negligence claims remained, and comparative fault had to apply there as a matter of law. We think the rationale of Foreline on this point is not dependent on section 768.81, Florida Statutes, but on the simple premise that it would be misleading to the jury to: 1) fail to inform them that no comparative fault would apply to the intentional tort claims; 2) inform them that they must allocate comparative fault, without distinction between the intentional tort and negligence claims; 3) tell them that the trial court would “reduce the total amount of damages by the percentage of fault which you charge to Kenneth Hiott”; and 4) then refuse to apply comparative fault to the verdict. In essence, to adopt Hiott’s view would allow a party to invite a jury to commit error, and then allow the party issuing the invitation to challenge the error on appeal. But appellate courts do not reverse judgments based on invited error. Pope v. State, 441 So.2d 1073, 1076 (Fla.1983) (“A party may not invite error and then be heard to complain of that error on appeal.”).

Furthermore, we find it significant that Hiott is not arguing that comparative fault should be applied only to her negligence claims. In fact, she argues that “the Court should enter judgment for the full amount of damages, because, under Florida law, comparative fault is not a defense to Carolyn Hiott’s successful intentional tort claim.” This point was reiterated at oral argument. In other words, even if the jury was misled on the issue of comparative fault, Hiott asserts that it was the jury’s function to make certain factual determinations, and not legal rulings; thus, the trial court erred in refusing to award the full damage amount, because comparative fault cannot be applied to a successful intentional tort claim.

Reynolds persuasively argues that Hiott in fact encouraged the jury, from voir dire through closing argument, that she accepted that her deceased husband was partially at fault for his smoking-related illness and death. Thus, she expected the jury to allocate some fault to her late husband. As Reynolds notes, Hiott “used the admission that Mr. Hiott was partly at fault as a tactic to secure an advantage with the jury throughout the trial; she cannot now seek to have it both ways by avoiding comparative fault after the verdict.” We agree, as did the trial court. Thus, we find no abuse of discretion in the trial court’s ruling that Hiott waived any argument regarding the application of Mr. Hiott’s comparative fault to reduce the compensatory damages in this case.

In conclusion on this issue, we reject Hiott’s argument that Reynolds should be estopped from asserting waiver, because Reynolds informed the jury in the punitive damages phase that such damages were unnecessary, as the jury had already “awarded $1,825,000 against Reynolds and that message has been received.” Additionally, Hiott notes that the jury declined to award punitive damages. By this argument, however, Reynolds did not specifically assert that the jury’s finding on comparative fault would be disregarded, although such an implication may be fairly inferred. Had Reynolds made such a specific statement, we might agree with Hiott; however, the record does not establish that Reynolds clearly took this position with the jury. And as Hiott herself argues, a determination of waiver must be based on clear and unmistakable facts, which are not present on this point.

Conclusion

We affirm on all issues raised by both parties, but certify conflict with the Fourth District’s decision in Philip Morris USA, Inc. v. Hess, 95 So.3d 254 (Fla. 4th DCA 2012), rev. denied, 117 So.3d 412 (Fla.2013), on the issue of whether the trial court reversibly erred in denying Reynolds’ requested jury instruction and verdict question on the statute of repose, section 95.031(2), Florida Statutes.

AFFIRMED; CONFLICT CERTIFIED.

SWANSON and MAKAR, JJ., concur.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).


author: BLACK, Judge.

text:
    In re GUARDIANSHIP OF Mary W. KLATTHAAR. Marion Yazdzik, as Personal Representative of the Estate of Mary W. Klatthaar, Deceased, Appellant, v. Mark Scott; Michael J. McGarry; Virderie B. Kaminska, RN; Cora S. Taylor, Psy. S., LMHC, PA; and Douglas J. Shadle, MD, Appellees.
    No. 2D12-4451.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 2014.

      Cynthia L. Fallon and Barry F. Spivey of Spivey & Fallon, P.A., Sarasota, for Appellant.
    Pamela D. Keller of Keller Law Office, P.A., Punta Gorda, for Appellee Mark Scott.
    Michael J. McGarry, pro se.
    No appearance by remaining Appellees.
   BLACK, Judge.

This matter arises from an involuntary guardianship proceeding to determine the incapacity of Mary Klatthaar. Mark Scott, represented by Pamela Keller, filed a petition to determine incapacity and a petition for appointment of an emergency temporary guardian with respect to Ms. Klatth-aar, his aunt. Thereafter, the circuit court entered an order appointing Michael McGarry to represent Ms. Klatthaar pursuant to section 744.331(2)(b), Florida Statutes (2011), and an order appointing a three-member examining committee pursuant to section 744.331(3)(a). The circuit court denied the petition for appointment of an emergency temporary guardian. Prior to a final determination of incapacity, Ms. Klatthaar died, and the petition to determine incapacity was dismissed.

Mr. McGarry and Ms. Keller petitioned the circuit court for attorney’s fees and costs; Ms. Keller also petitioned for fees on behalf of the examining committee. Following a hearing, the circuit court rendered amended orders awarding fees and costs to Mr. McGarry, Ms. Keller, and the three examining committee members, payable from Ms. Klatthaar’s estate.

Marion Yazdzik, the personal representative of Ms. Klatthaar’s estate, challenges the circuit court’s amended orders awarding fees and costs. Ms. Yazdzik argues that the circuit court erred in awarding fees and costs and directing said fees and costs to be paid from the estate of Ms. Klatthaar because a guardianship was never established. Because sections 744.108 and 744.331 do not contemplate the payment of fees and costs from an alleged incapacitated person where a guardianship is not established, we agree and reverse. As this issue is dispositive, we withhold comment on the other issues raised by Ms. Yazdzik on appeal.

I. Discussion

Ms. Yazdzik argues that the circuit court committed legal error in its interpretation and application of sections 744.108 and 744.331 when it imposed liability for the payment of attorneys’ fees and costs and examining committee’s fees on the estate of Ms. Klatthaar. We review de novo the circuit court’s rulings on entitlement to fees based on its interpretation of relevant statutes. See Thorpe v. Myers, 67 So.3d 338, 342 (Fla. 2d DCA 2011). ‘“[WJhen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ” In re Guardianship of J.D.S., 864 So.2d 534, 538 (Fla. 5th DCA 2004) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)). “ ‘Proceedings to determine the competency of a person are generally controlled by statute and where the statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed.’ ” Rothman v. Rothman, 93 So.3d 1052, 1054 (Fla. 4th DCA 2012) (quoting In re Keene, 343 So.2d 916, 917 (Fla. 4th DCA 1977)).

A. Section 744.331, Procedures to Determine Incapacity

Section 744.331(7)(a) entitles the examining committee and the court-appointed attorney for the alleged incapacitated person to reasonable fees once incapacity is determined and a guardian is appointed. See § 744.331(7)(b) (“The fees awarded under paragraph (a) shall be paid by the guardian from the property of the ward or, if the ward is indigent, by the state.”); see also § 744.102(9) (defining “guardian” as “a person who has been appointed by the court to act on behalf of the ward’s person or property, or both”), 744.102(22) (defining “ward” as “a person for whom a guardian has been appointed”). Furthermore, in the event that the petition for incapacity is dismissed, as it was here, section 744.331(7)(c) controls and provides that “costs and attorney’s fees of the proceeding may be assessed against the petitioner if the court finds the petition to have been filed in bad faith.” See Ehrlich v. Allen, 10 So.3d 1210, 1211 (Fla. 4th DCA 2009) (holding that where the petition for incapacity is dismissed, “any award of fees incurred by counsel appointed to represent the subject must come, if at all, from the petitioner”); Ehrlich v. Severson, 985 So.2d 639, 640 (Fla. 4th DCA 2008) (“[TJhe procedural statute for determining incapacity does not make the potential ward responsible for examining committee fees where the guardianship petition is dismissed or denied.”). The circuit court did not find that the petitioner filed the petition in bad faith.

As the First, Fourth, and Fifth Districts have noted in prior opinions, there is a gap in section 744.331(7) as to the delegation of responsibility for the payment of fees of the court-appointed attorney and the examining committee when a good faith petition is dismissed. See Faulkner v. Faulkner, 65 So.3d 1167, 1169 (Fla. 1st DCA 2011); Allen, 10 So.3d at 1211; Levine v. Levine, 4 So.3d 730, 731 (Fla. 5th DCA 2009); Severson, 985 So.2d at 640. Though section 744.331(7)(a) specifically entitles court-appointed attorneys and examining committee members to reasonable fees, said fees cannot' be paid by the guardian from the ward’s property pursuant to section 744.381(7)(b) if a guardian is never appointed.

We recognize the same concern raised by the First District in Faulkner, that practitioners would be less inclined to offer their services to the court if there was a possibility that they would not be paid or if payment otherwise depended upon the outcome of the proceeding. See 65 So.3d at 1169 (quoting Severson, 985 So.2d at 640 (“[P]ayment of the examining committee’s fees should not be contingent on the outcome of the competency determination.”)). Nonetheless, we agree with our sister courts that it is for the legislature to determine who is responsible for the payment of fees for the court-appointed attorney and examining committee in this situation. See Holly, 450 So.2d at 219 (“[Cjourts of this state are “without power to construe an unambiguous statute in a way which would extend ... its express terms.... To do so would be an abrogation of legislative power.’ ” (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968))). This does not appear to be a situation where a departure from the strict reading of the statute, namely, determining that the alleged incapacitated person or the estate thereof is responsible for these fees, would be sanctioned. See id.; Rothman, 93 So.3d at 1054. It seems inappropriate to assess Ms. Klatthaar’s estate with attorneys’ fees and examining committee’s fees, especially since she contested the petition.

Unlike in the cases cited above, this case involved the dismissal of a petition for incapacity due to the death of the alleged incapacitated person. Cf. Allen, 10 So.3d at 1211; Levine, 4 So.3d at 731; Severson, 985 So.2d at 640. However, we see no distinction in the statute for cases where the petition was dismissed due to the death of the alleged incapacitated person prior to a determination of incapacity. See § 744.331(7)(c) (addressing the responsibility of fee payments in situations where a petition is dismissed without further clarification as to the nature of the dismissal). As such, the attorneys and the examining committee are not entitled to fees and costs under section 744.331(7).

B. Section 744.108, Guardian’s and Attorney’s Fees and Expenses

We next turn our attention to section 744.108. Section 744.108(1) entitles “[a] guardian, or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, ... to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.” Based upon a strict reading of the statute, see Rothman, 93 So.3d at 1054, an attorney is only entitled to fees under section 744.108 in situations where a guardian has been appointed to a ward, see generally Severson, 985 So.2d at 640 (noting that section 744.331(7) is “the procedural statute for determining incapacity”). Again, since a guardianship was never established and a guardian was thus not appointed, section 744.108 is not triggered in this case. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla.1993) (“This Court has followed the ‘American Rule’ that attorney’s fees may be awarded by a court only when authorized by statute or by agreement of the parties.”); In re Guardianship of Cosio, 753 So.2d 134, 136 (Fla. 2d DCA 2000) (“[A]ttorney’s fees and costs are not available absent statutory or contractual authorization.”).

We find further support for the contention that such fee awards are not permitted in the language of section 744.108 itself. Namely, in various subsections of section 744.108, the term “incapacitated person” is used; not once is the term “alleged incapacitated person” referenced. See, e.g., § 744.108(2)(e), (h). Additionally, section 744.108(6) provides that “[a] petition for fees or expenses may not be approved without prior notice to the guardian and to the ward, unless the ward is a minor or is totally incapacitated.” The attorneys clearly could not provide notice as required because there was never a ward or a guardian. Further, the one underlying consistency in the case law pertaining to fee awards under section 744.108 is that the alleged incapacitated person was adjudicated as such, thus becoming a ward, and a guardian was appointed to the ward. See, e.g., In re Guardianship of Kesish, 98 So.3d 183 (Fla. 2d DCA 2012); In re Guardianship of Ansley, 94 So.3d 711 (Fla. 2d DCA 2012); Thorpe, 67 So.3d 338; King v. Fergeson, Shaw, Keyser, Baron, & Tirabassi, P.A., 862 So.2d 873 (Fla. 2d DCA 2003); In re Guardianship of Dean, 319 So.2d 589 (Fla. 2d DCA 1975). In his special concurrence in King, Judge Villanti noted:

As a general proposition, if an interested party hires an attorney to contest any aspect of an incapacity proceeding, ... he or she does so with no assurance that the fees -will be reimbursed if a guardianship is ultimately established. This is especially true in an involuntary guardianship proceeding, in which the ward usually does not consent to the hiring of attorneys for any purpose.

King, 862 So.2d at 875. It is apparent that for reimbursement of fees even to be contemplated under section 744.108, a guardianship must ultimately be established.

II. Conclusion

In sum, section 744.108 clearly applies only to circumstances where a guardianship has been established. Section 744.331 appears to be the only applicable section to this case as it governs procedures to determine incapacity. As the law currently stands, when a petition is dismissed for any reason, fees and costs may be assessed against the petitioner under section 744.331(7) if the petition was filed in bad faith. See § 744.331(7)(c). There is otherwise no provision made regarding the liability for fees and costs in the event a petition is dismissed. Chapter 744 simply does not contemplate the payment of fees and costs from an alleged incapacitated person absent the establishment of a guardianship.

The circuit court’s amended orders awarding fees and costs to be paid from the alleged incapacitated person’s estate are reversed. We join our sister courts and urge the legislature to address the gap in the statute by specifying who pays the attorney’s fees and the examining committee’s fees in this situation.

Reversed.

ALTENBERND and WALLACE, JJ„ Concur.


author: KLINGENSMITH, J.

text:
    Daniel HARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2486.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell Alan Egber, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

KLINGENSMITH, J.

Upon consideration of appellant’s motion for rehearing, we grant rehearing, withdraw our previously issued opinion, and substitute the following in its place.

Appellant, Daniel Hartley, appeals from his convictions for three counts of using a computer to solicit a minor and one count of traveling to meet a minor for an unlawful sexual act under section 847.0135, Florida Statutes (2011). Each episode of solicitation as charged in the Amended Information took place on a separate day, specifically November 2, 2011 (Count I), November 3, 2011 (Count II), and November 4, 2011 (Count III). Count IV of the Amended Information charged appellant with traveling to meet a minor to commit an unlawful sex act on November 4, 2011.

The only witness called at trial was a detective in the computer crimes division of the Palm Beach County Sheriffs Office. On November 2, 2011, the detective was on Craigslist, an online message board, in its personal section where people go to meet each other. While on the board, she intended to represent herself as a fourteen-year-old child while responding to an ad which was titled “35 looking for younger Northwood.” The detective responded to the ad as follows: “My name is Tyler. I’m 14, five foot six, 140 and smooth with barely any hair. Let me know if you are interested.” She wrote the last sentence in her response to make sure the person who posted the ad wanted to continue with someone who was fourteen years of age. That same day, she received a response from a person later confirmed to be appellant. Appellant and “Tyler” exchanged communications on November 2, November 3, and November 4 discussing meeting each other. Only the text exchanges on November 3 involved explicit discussions of mutual sexual acts; the communications by appellant on November 2 and November 4 were not so explicit. On November 4, appellant made plans to meet “Tyler” at a nearby donut shop. When appellant arrived at the arranged place and time, he was taken into custody.

Appellant gave a taped statement to the detective which was played for the jury. In that statement, he described “Tyler” as “[t]he student I was gonna help tutor.” He admitted the conversation was “[s]ome-thing about sex” and about kissing, and that “Tyler” said he wanted to “try stuff’ with appellant. Appellant also admitted during the statement that it was a “bad mistake” not to put a “legal” age in his Craigslist advertisement.

After the State rested, appellant moved for judgment of acquittal on counts I and III, arguing that because there was no discussion of sex on either November 2 or November 4, the State’s evidence was insufficient to prove solicitation on those dates. He also moved for judgment of acquittal as to count IV, arguing that there was no evidence to suggest that he planned to engage in an illegal act because they were meeting in a public place. The trial court denied the motions, finding that these were issues for the jury.

The defense rested without presenting any evidence. Appellant was found guilty on all counts. The trial court sentenced appellant to eighty-four months (seven years) on counts I, II, and III to run concurrently, followed by ten years sex offender probation on count IV.

On appeal, appellant argues that the court erred in failing to grant a judgment of acquittal on count I and count III, because the State’s evidence was insufficient to show there were communications on either November 2 or November 4 expressly indicating that appellant was seeking a sexual relationship with someone he believed was a minor. He claimed that the texts he sent were equally consistent with a non-sexual relationship.

A trial court’s denial of a motion for judgment of acquittal is reviewed de novo for the sole purpose of determining whether the evidence is legally sufficient. Durousseau v. State, 55 So.3d 543, 556 (Fla.2010). “Whether to grant a motion for judgment of acquittal hinges on the sufficiency of the evidence presented at trial and what factual findings the jury could ‘fairly and reasonably infer’ from that evidence.” Grohs v. State, 944 So.2d 450, 456 (Fla. 4th DCA 2006).

Section 847.0135(3)(a), Florida Statutes (2011), provides:

(3) CERTAIN USES OF COMPUTER SERVICES OR DEVICES PROHIBITED. — Any person who knowingly uses a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
(a) Seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child; ...
commits a felony of the third degree .... Each separate use of a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission wherein an offense described in this section is committed may be charged as a separate offense.

§ 847.0135(3)(a), Fla. Stat. (2011).

Considering the content of the November 2 and November 4 text exchanges, in context with their closeness in time to the November 3 exchanges and other communications which expressly indicated that appellant’s intent was to begin a sexual relationship with a fourteen-year-old boy, a jury could “fairly and reasonably infer” that various statements made by appellant in his online communications with “Tyler” met the plain and ordinary definitions of seduce, solicit, lure, and entice, even if he did so only obliquely and implicitly by avoiding explicit references to sexual conduct. As this court said in Grohs:

The tenor of [defendant’s] suggestive comments could be interpreted to demonstrate both the adroit artfulness, or enticement, and the enjoyment of active attraction, or allurement, of a predator laying a trap for his prey. The trap may have been set by phrases such as “we can be more, and do whatever makes you happy” and “I’d be happy to do anything with and/or for you right now.” When taken in the context of being directed at a believed fifteen-year-old boy first contacted in a “Young Men” chat room, these phrases could reasonably be construed as aimed at physical seduction to sexual intercourse and the propositioning of sexual conduct. Consequently, we conclude that the trial court did not err by denying [defendant’s] motion for judgment of acquittal and allowing the jury to exercise its fact-finding role to “fairly and reasonably infer” conclusions from sufficient evidence regarding conduct that presented “room for a difference of opinion between reasonable men.”

944 So.2d at 457. Therefore, we affirm the trial court’s denial of the motions for judgment of acquittal.

Appellant also argues that his convictions on counts I, II and III under section 847.0135(3)(a), Florida Statutes (2011), should be dismissed as they are in violation of double jeopardy. He argues that all of the elements under which these counts are charged are subsumed in count IV, which was charged under section 847.0135(4)(a), Florida Statutes (2011). “Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo.” Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008) (citation omitted). We find that appellant’s conviction and sentence under count III should be vacated for violation of double jeopardy.

Section 847.0135(4)(a), Florida Statutes, provides:

(4) TRAVELING TO MEET A MINOR. — Any person who travels any distance either within this state, to this state, or from this state by any means, who attempts to do so, or who causes another to do so or to attempt to do so for the purpose of engaging in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child or with another person believed by the person to be a child after using a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
(a) Seduce, solicit, lure, or entice or attempt to seduce, solicit, lure, or entice a child or another person believed by the person to be a child, to engage in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child; ...
commits a felony of the second degree

§ 847.0135(4)(a), Fla. Stat. (2011).

In the instant case, the legislature has authorized separate punishments for violations of section 847.0135(3) where there were separations of time between each of the crimes charged. See Hammel v. State, 934 So.2d 634, 636 (Fla. 2d DCA 2006) (where there is a temporal break between computer conversations and there is not one continuous criminal act, double jeopardy is not violated when more than one charge is brought). Therefore, counts I and II are separate offenses which do not violate double jeopardy because there was a temporal break between the occurrences underlying each of them and the acts that served as the basis for counts III and IV.

Because the events involving counts III and IV occurred on the same day, November 4, we must determine whether each criminal offense charged in these counts was committed in the course of one criminal episode or transaction. To do so, we must compare the statutory elements of soliciting a child for unlawful sexual conduct using computer services and the elements of traveling to meet a minor. See § 775.021(4), Fla. Stat. (2011).

Traveling to meet a minor includes the following four elements: (1) knowingly traveling within this state, (2) for the purpose of engaging in any illegal act (in violation of chapters 794, 800, or 827, or other unlawful sexual conduct) with the victim after using a computer or other electronic data storage transmission to contact a child, (3) the victim was a child or person believed by the defendant to be a child, and (4) the defendant seduced, solicited, lured, enticed or attempted to do so to engage in the illegal act or unlawful sexual conduct. See In re Standard Jury Instructions in Criminal Cases-Report No. 2008-08, 6 So.3d 574, 584 (Fla.2009). The elements of soliciting a child for unlawful sexual conduct using computer services or devices are: (1) defendant knowingly used a computer online service, internet or other device capable of electronic data storage to contact the victim, (2) the victim was a child or person believed by the defendant to be a child, and (3) the defendant seduced, solicited, lured, or enticed the victim to engage in any illegal act as charged in the indictment or information under chapters 794, 800, or 827, or other unlawful sexual conduct. Id. at 582.

This review indicates that all the elements of soliciting a child are included within the offense of traveling to meet a minor; traveling to meet a minor contains an element that is not an element of soliciting a child, namely, knowingly traveling within the state. Therefore, because all the elements of soliciting are included in the traveling offense, it appears that section 775.021(4)(b)3. applies to counts III and IV, and the elements of the lesser offense are subsumed in the greater offense.

Based upon the foregoing analysis, the trial court shall vacate the conviction and sentence on count III. Vacating count III may alter appellant’s Criminal Punishment Code scoresheet. Consequently, we remand for resentencing on counts I and II. Appellant’s conviction and sentence for count IV is affirmed, and the sentence of ten years probation will not be affected by an amended scoresheet. Therefore, resen-tencing on count IV is not appropriate. See Fasenmyer v. State, 457 So.2d 1361, 1366 (Fla.1984).

Affirmed in part, Reversed in part, and Remanded for vacation of count III conviction and sentence, and resentencing on counts I and II.

DAMOORGIAN, C.J., and TAYLOR, J., concur.


author: MORRIS, Judge.

text:
    Corey MOSELEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-741.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 2014.
    Corey Moseley, pro se.
   MORRIS, Judge.

Corey Moseley appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised fourteen grounds for relief. We reverse and remand for further proceedings on ground nine and affirm without comment on the remaining thirteen grounds.

Mr. Moseley was initially charged with two counts of sexual battery on a person less than twelve years of age. See § 794.011(2)(a), Fla. Stat. (2009). Pursuant to negotiations with the State, Mr. Moseley pleaded no contest to one count of the lesser-ineluded offense of attempted sexual battery on a person less than twelve years of age, and the State nolle prossed count two. The trial court sentenced Mr. Moseley as a habitual felony offender to ten years’ imprisonment followed by fifteen years of sexual offender probation. The court also imposed a sexual predator designation. See § 775,21, Fla. Stat. (2009).

In ground nine of his rule 3.850 motion, Mr. Moseley sought to withdraw his plea, claiming that counsel affirmatively misadvised him regarding the consequences of a sexual predator designation. Mr. Moseley claimed that if counsel had properly advised him, he would have rejected the State’s plea offer and proceeded to trial in order to avoid the sexual predator designation by seeking an acquittal on the two sexual battery charges. Although a sexual predator designation is a collateral consequence of which the trial court is not required to advise Mr. Moseley during the plea colloquy, see State v. Partlow, 840 So.2d 1040, 1043-44 (Fla.2003), an allegation of affirmative misadvice nevertheless provides grounds for withdrawing an involuntary plea. See Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003) (finding that affirmative misadvice regarding a sexual predator designation constitutes a facially sufficient claim of ineffective assistance of counsel that provides a basis for withdrawing a plea); Roberti v. State, 782 So.2d 919, 920 (Fla. 2d DCA 2001) (“Affirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea.”).

The postconviction court summarily denied this facially sufficient claim by simply noting that Mr. Moseley could not have been prejudiced by counsel’s misadvice because he could not qualify for a less burdensome sexual offender designation. See § 943.0435, Fla. Stat. (2009). Although Mr. Moseley’s claim was not well pleaded, he clearly was not asking for a reduction of the sexual predator designation to a sexual offender designation. Instead, had he been correctly advised, he would have attempted to avoid the sexual predator designation altogether through an acquittal after trial. Since the postconviction court’s record attachments do not conclusively refute Mr. Moseley’s claim that counsel misadvised him about the consequences of a sexual predator designation, the court erred in summarily denying ground nine. See Fla. R. Crim. P. 3.850(d) (2012).

Accordingly, we reverse the postconviction court’s denial of ground nine and remand for the postconviction court to either attach additional portions of the trial record that conclusively refute ground nine or hold an evidentiary hearing. In order to prevail at the evidentiary hearing, Mr. Moseley must demonstrate that his attorney affirmatively misadvised him and that he would not have entered a plea absent that misadvice. See Roberti, 782 So.2d at 920. Mr. Moseley should note that if he ultimately prevails on this claim, he will likely face charges that could result in life sentences.

Affirmed in part; reversed in part; remanded.

KELLY and WALLACE, JJ„ Concur.


author: WARNER, J.

text:
    John F. O’DONNELL, Petitioner, v. JUSTICE ADMINISTRATIVE COMMISSION, Respondent.
    No. 4D13-2926.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Samuel R. Halpern, Fort Lauderdale, for petitioner.
    Ana Cristina Martinez and Christian D. Lake, Tallahassee, for respondent.
   On Motion for Reconsideration

WARNER, J.

We grant respondent’s motion for reconsideration, withdraw our previously issued opinion and substitute the following in its place.

In ordering fees for private court-appointed counsel in a criminal case, the trial court failed to make any factual findings concerning the reasonable number of hours or hourly rate and improperly considered the court’s own budgetary issues in determining the fee to be set. Counsel petitions for certiorari review of the fee award. We grant the petition, agreeing that the court failed to make the necessary factual findings.

Section 27.5304, Florida Statutes (2010), provides for the compensation of private court-appointed counsel. First, it sets a flat fee of $2,500 for trial representation for a noncapital, nonlife felony. § 27.5304(5)(a)2„ Fla. Stat. (2012). Second, it creates a process for claiming fees in excess of the flat fee for extraordinary work. § 27.5804(12), Fla. Stat. (2012). Where counsel seeks compensation exceeding the statutory flat fee, the attorney sends his/her billing to the Justice Administrative Commission (JAC) for review. § 27.5304(12)(a)l., Fla. Stat. (2012). The JAC must review the bills and communicate in writing its objections, if any, to private counsel. § 27.5304(12)(a)2., Fla. Stat. (2012). Counsel must thereafter file a motion for payment in excess of the flat rate with the chief judge of the circuit, specifying any objections by JAC. Id.

The chief judge must then hold a hearing at which the attorney must prove that the case “required extraordinary and unusual efforts.” § 27.5304(12)(b)l., Fla. Stat. (2012). The statute sets forth criteria that the court must consider. Id. Section 27.5304(12)(b)2. requires that the chief judge “enter a written order detailing his or her findings and identifying the extraordinary nature of the time and efforts of the attorney in the case which warrant exceeding the flat fee established by this section and the General Appropriations Act.”

The statute permits the court to award up to double the flat fee if a lawyer shows unusual or extraordinary circumstances. § 27.5304(12)(d), Fla. Stat. (2012). If the court makes a specific finding that 200 percent of the flat fee would be confiscatory, the court may then order hourly compensation, which may not exceed $75 per hour in a non-capital ease. Id. “However, the compensation calculated by using the hourly rate shall be only that amount necessary to ensure that the total fees paid are not confiscatory.” Id.

Fees in excess of the statutory flat rate are paid first from funds appropriated to the JAC. § 27.5304(12)(f)2., Fla. Stat. (2012). Pursuant to a 2012 legislative amendment, if those funds are exhausted, any further payments of excess fees shall be made from the due process funds appropriated to the state court system in a statewide pool administered by the Trial Court Budget Commission (TCBC). § 27.5304(12)(f)3„ Fla. Stat. (2012). In Fletcher v. Justice Administrative Commission, 109 So.3d 1271 (Fla. 1st DCA 2013), the court also noted that each circuit is given an allowance from that pool for non-RICO, non-capital cases. If the circuit exceeds its allowance, funds must be transferred from the circuit court’s general budget back into the pool. Id. at 1272-73.

Petitioner, John O’Donnell, represented defendant Michael George in a second degree murder prosecution over a brawl involving at least twenty persons. After extensive trial preparation requiring analysis of complex factual, medical and legal issues, George accepted a plea offer from the state to manslaughter. He was sentenced to five years in prison followed by five years of probation.

Following the statutory procedure, O’Donnell filed a motion for fees in excess of the statutory cap. He claimed an attorney’s fee of $27,165, based upon 362.5 hours at the statutory maximum rate of $75 per hour. The JAC did not object to the amount claimed in the motion, and it did not object to the use of the $75 hourly rate.

The chief judge held a hearing on the amount of the fee. At the start of the hearing, the chief judge explained that he was not only looking at the fee today but at all the other requests which have been or will be made during the year:

THE COURT: Let me explain, you know, and I think this applies to everyone here.
The legislature mandated that we create — well, they basically forced the issue because of the way that money was appropriated. We’re required to — we are required to set up these limited registries, but while these cases are open, we have a finite amount of money. We ran out in June.
So I’ve got to look at what’s being requested. I mean, it’s not just what you’re asking for today, but I’ve got to look at what’s being requested for everyone.
First-degree murder cases in light of that are not subject to that same pool of money. So I’ve got to look at the funds requested and then try to figure out how much, you know, we will have for the year.
And, you know, I just want you to understand that, you know, I’m put in a very unique situation to try to figure out how to make it last in a time of need.

O’Donnell then testified to his efforts in the case and the complexity of the issues. He stated that as a private attorney who had handled these types of cases for 35 years, he agreed to the $75 per hour cap rate because he knew someone had to take these cases. An experienced criminal defense attorney also testified as an expert as to the reasonableness of the fee requested and that the case was unusual and extraordinary in the complexity of the issues. The expert testified that even payment at the cap would be confiscatory. The court then concluded the hearing without making any findings.

The court entered a written ruling but did not make the necessary findings of fact. It found by competent substantial evidence that the representation required in this case was extraordinary and unusual. Based upon Makemson v. Martin County, 491 So.2d 1109 (Fla.1986), it found that O’Donnell was entitled to compensation in excess of the statutory cap. It granted attorney’s fees in the amount of $18,000, without determining a reasonable number of hours or an hourly rate.

We grant the petition because the trial court failed to make the statutorily required findings of fact to support the award. The court found reason to exceed the cap, but it did not determine the reasonable number of hours spent or the reasonable hourly rate. See Fletcher, 109 So.3d at 1272. Such findings are necessary to determine whether the amount awarded is confiscatory. See Makemson, 491 So.2d at 1115. The respondent notes that, given the number of hours requested, the $18,000 fee awarded amounts to about $50 per hour, which it contends is not confiscatory. In Fletcher, however, making that same calculation would result in a rate of $55, but the court still returned the matter to the trial court to make the appropriate findings. 109 So.3d at 1271-72. See also Watts v. Justice Admin. Comm’n, 115 So.3d 431, 432 (Fla. 2d DCA 2013) (granting certiorari where trial court failed to make findings of the reasonable number of hours or explain why its award was not confiscatory).

Moreover, the JAC agreed to the appropriateness of the rate of $75, and there was no competent evidence to support another rate. Further, O’Donnell testified that when he agreed to take such court-appointed cases, he was agreeing to the statutory rate of $75. He did not take the case contemplating that he would be paid only two-thirds of that rate for hours reasonably expended. As Makemson noted,

No citizen can be expected to perform civilian services for the government when to do so is clearly confiscatory of his time, energy and skills, his public service is inadequately compensated, and his industry is unrewarded.

491 So.2d at 1114 (quoting the dissent in Mackenzie v. Hillsborough Cnty., 288 So.2d 200, 202 (Fla.1973)).

We agree with the petitioner that the court departed from the essential requirements of law in considering the court’s other budget matters in setting the reasonable fee in this case. In Still v. Justice Administrative Commission, 82 So.3d 1168 (Fla. 4th DCA 2012), we held that the court departed from the essential requirements of law in considering the state’s ability to pay such an award given the difficult economic times. Such matters were beyond the scope of section 27.5304(12). Id. at 1170.

By considering the effect of the award on the court’s budget, and then apparently reducing the amount requested because of the impact on the budget, without regard to the reasonableness of the fee, the court could effectively “confíscate” the reasonable amount due to a court-appointed attorney in order to pay for other programs and needs of the court system. Again, Makemson noted the tension between the needs of the treasury and the right to fair compensation to represent the criminal defendant, but it came down squarely on the side of appropriate compensation for the defense of the indigent criminal defendant:

A survey of the repeated attacks on the validity of the statute highlights the strong tension between the counties’ treasuries, as protected by the statutory maximum fees, and the attorneys seeking compensation more fair than that the legislature would grant. As previously pointed out, we must focus upon the criminal defendant whose rights are often forgotten in the heat of this bitter dispute. In order to safeguard that individual’s rights, it is our duty to firmly and unhesitatingly resolve any conflicts between the treasury and fundamental constitutional rights in favor of the latter.

491 So.2d at 1113 (emphasis added). To announce prior to the hearing that the court had to consider the effect of each award on the overall budget of the circuit contravenes this principle.

That is not to say that the court might not find that an hourly rate less than $75 is reasonable, or that the reasonable number of hours expended in this case might be less than requested by O’Donnell. Under prior iterations of this statute, a chief judge was authorized to set the reasonable hourly rate, based upon a “prevailing hourly rate for similar representation rendered in the circuit.” Sheppard & White, P.A. v. City of Jacksonville, 827 So.2d 925, 929 (Fla.2002) (construing former section 925.036(1), Florida Statutes (1985)). If the chief judge were to conclude that an hourly rate of $50 is reasonable and acceptable to secure court-appointed representation by private counsel, then he or she may use such a rate in calculating a reasonable fee. However, we doubt that private counsel will line up to take these challenging cases at such a rate.

For the foregoing reasons, we grant the writ, quash the fee award, and remand to the trial court to make appropriate findings in support of an attorney’s fees award.

STEVENSON and KLINGENSMITH, JJ., concur.

      . A petition for writ of certiorari is the appropriate proceeding to review orders of compensation to court-appointed counsel. See Anderson v. E.T., 862 So.2d 839, 840 (Fla. 4th DCA 2003).

        . We use the flat fee amount set forth in the 2010 statute, because the petitioner was appointed on August 19, 2010. We note, however, that while section 27.5304(1) provides that the flat fees prescribed in the statute "are limitations on compensation," it also provides that: "The specific flat fee amounts for compensation shall be established annually in the General Appropriations Act.” The General Appropriations Act, Chapter 2010-152 § 4, Line 786E, Laws of Florida, provides for a flat fee of $2,000.

      . The bill originally submitted to the JAC was a few hundred dollars higher. After the JAC objected, O’Donnell agreed to reduce the bill to the claimed $27,165.

      . It is clear that requiring the court system to absorb some of the cost of court-appointed attorneys will cause the courts to look more diligently at the bills submitted by counsel.


text:
    Vernon L. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5416.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2014.
    Vernon L. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

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


text:
    Ervin J. LEWIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5768.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2014.
    Ervin J. Lewis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Jacquan GOLDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5794.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2014.

      Jacquan Goldson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Clarence GLENN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5819.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2014.
    Clarence Glenn, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. . P. 9.141(c)(5).

LEWIS, C.J., PADOVANO and MARSTILLER, JJ., concur.


text:
    Bruce Edward McCRAY, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5909.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2014.
    Bruce Edward McCray, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Regis R. MADISON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5977.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2014.

      Regis R. Madison, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Billy McMULLON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-989.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2014.
    Nancy A. Daniels, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Samuel B. Steinberg and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

On appeal, Appellant raised two issues. First, Appellant asserted that the trial court erred in revoking his probation. Alternatively, Appellant argues that the trial court erred in resentencing him, following the probation revocation and after granting his 3.800 motion, when Appellant and his counsel were not present at the hearing. The State properly concedes that Appellant had a right to be present at a resentencing hearing pursuant to a successful 3.800(b) motion. See Cross v. State, 18 So.3d 1235, 1236 (Fla. 1st DCA 2009); see also McGough v. State, 876 So.2d 26, 26 (Fla. 1st DCA 2004).

REVERSED and REMANDED for re-sentencing.

THOMAS, MARSTILLER, and MAEAR, JJ., concur.


text:
    Qamarden Qarnain BRAND, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D12-6063.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2014.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee for Appellee.
   PER CURIAM.

In this Anders appeal, we AFFIRM the violation of probation findings and three year prison sentence without comment. But, it appears Appellant’s recently-corrected judgment and sentence does not comport with the clear direction of the trial court’s March 26, 2013 order. The Clerk of Court has a purely ministerial duty to carry out the explicit terms of the trial court’s directive. We trust that the Clerk will enter a corrected judgment and sentence in accord with, and required by, the trial court’s order.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).