text:
    Willie WATSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2727.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2013.
    Willie Watson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is treated as a petition for writ of habeas corpus, and is denied. See Baker v. State, 878 So.2d 1236 (Fla.2004).

THOMAS, ROWE, and SWANSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alvin Leon ANDERSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D12-6107.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2013.

      Alvin Leon Anderson, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Alvin Leon Anderson, Jr., appeals an order denying his motions for relief filed on the authority of rule 3.800 and 3.850, Florida Rules of Criminal Procedure. We affirm the denial of relief, but remand this cause for correction of the scoresheet which erroneously lists the offense as home invasion robbery with a firearm rather than attempted home invasion robbery with a firearm; further, the score-sheet is to be corrected so that charges dropped by the State are not included thereon.

AFFIRMED, but REMANDED with instructions.

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


text:
    Melissa FLAIG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5642.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2013.
    Melissa Flaig, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Melissa Flaig seeks certiorari review of an order dismissing as untimely her motion for reduction and modification of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). As the State properly concedes, petitioner’s motion was in fact timely. Accordingly, the petition is GRANTED, the order dismissing petitioner’s rule 3.800(c) motion is QUASHED, and the matter REMANDED with directions to consider the merits of the motion.

WOLF, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Traci A. GROSVENOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4639.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2013.
    Traci A. Grosvenor, Ocala, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Panuccio v. Kelly, 927 F.2d 106 (2d Cir.1991).

PALMER, ORFINGER and WALLIS, JJ., concur.


author: ALTENBERND, Judge.

text:
    AGENCY FOR HEALTH CARE ADMINISTRATION, Appellant, v. Dorothy McGriff RILEY, as Personal Representative of the Estate of Caesar Riley, Deceased, Appellee.
    No. 2D11-3863.
    District Court of Appeal of Florida, Second District.
    Aug. 14, 2013.
    Michael A. Kolcun, Jr. (withdrew after briefing); James H.K. Bruner, Sr. (withdrew after oral argument); and Adam J. Stallard, Tallahassee, for Appellant.
    Maegen P. Luka and Celene H. Hum-phries of Brannock & Humphries; and Floyd Faglie of Staunton & Faglie, PL, Monticello, for Appellee.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, for Amicus Curiae Florida Justice Association.
    Steven E. Quinnell of Quinnell Elder Law Firm, Pensacola, for Amicus Curiae The Academy of Florida Elder Law Attorneys.
   ALTENBERND, Judge.

The Agency for Health Care Administration (AHCA) appeals an order of the trial court determining the portion of a personal injury settlement subject to AHCA’s Medicaid lien. For reasons further explained in this opinion, we reverse and remand.

Caesar Riley was shot by a third party who has not been involved in this litigation. Mr. Riley brought a personal injury lawsuit against the owner of the property on which the shooting occurred. Mr. Riley’s injuries were serious and much of his medical treatment was covered by Florida’s Medicaid program, which is administered by AHCA. The medical expenses for which AHCA claimed a Medicaid lien totaled somewhat in excess of $225,000. While Mr. Riley was still alive, he settled his case with the property owner. AHCA was not actively involved in that settlement and the details of the settlement are confidential.

Following the settlement, Mr. Riley filed a motion to determine the Medicaid lien. In the trial court proceeding, AHCA refused to stipulate concerning the portion of the settlement attributable to medical expenses. Relying, in part, on our decision in Russell v. Agency for Health Care Administration, 23 So.3d 1266 (Fla. 2d DCA 2010), it maintained that it was entitled to full satisfaction of its lien. AHCA maintained that under Florida’s Medicaid Third-Party Liability Act, specifically section 409.910(ll)(f), Florida Statutes (2010), and consistent with this court’s decision in Russell, it was entitled to a full reimbursement of its Medicaid lien and that the trial court should not consider evidence presented by the Medicaid recipient that might rebut the application of the formula set forth in section 409.910(ll)(f). The trial court rejected this argument and allocated an amount that was less than the actual Medicaid payments made on behalf of the Medicaid recipient, Mr. Riley.

After the trial court made its ruling and while this case was pending on appeal, the United States Supreme Court decided Wos v. E.M.A., — U.S. -, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013), which severely undermined the reasoning of our decision in Russell. Also while this appeal was pending, the Fourth District issued a decision authorizing a trial court to conduct a hearing similar to the hearing conducted in this case. See Roberts v. Albertson’s Inc., 119 So.3d 457, 2012 WL 5232182 (Fla. 4th DCA 2012), reh’g and reh’g en banc denied, modified on reh’g, No. 4D10-2313 (Fla. 4th DCA June 26, 2013).

When Wos was released, this court ordered each party to submit a memorandum of law addressing the impact of Wos on this case. In its memorandum of law, AHCA modified its position and it now argues that section 409.910 should be read in such a way as to allow a recipient to attempt to rebut the presumption set forth in section 409.910(ll)(f). It now argues that Mr. Riley failed to present evidence that rebutted the presumption.

AHCA’s acknowledgement that a recipient should be afforded an opportunity to attempt to rebut the statutory presumption is consistent with the holding of the Fourth District in Roberts, which treats the statutory allocation as a “default allocation.” Roberts, 119 So.3d at 464. We conclude that the Fourth District’s holding in Roberts is correct. To avoid any confusion, we expressly adopt the holding of Roberts, which states

that a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid lien amount established by the statutory default allocation by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses.

Id.

Although the hearing conducted by the trial court in this case may be similar to the hearing contemplated by the Fourth District in Roberts and the United States Supreme Court in Wos, the trial court obviously had no ability to apply this new law during the hearing. AHCA had the right to rely on our Russell opinion at the time of that hearing. We conclude that Russell is no longer correct law. Recognizing that the trial court may ultimately make a decision similar to the decision that it has already made, we nevertheless conclude that the issue should be newly decided at a hearing at which both parties and the trial court will be guided by the decisions in Wos and Roberts. Accordingly, we reverse the order on appeal and remand for a supplemental hearing. The trial court is free to rely on evidence in the record from the prior hearing and, as needed, to consider additional evidence.

Reversed and remanded.

NORTHCUTT and WALLACE, JJ„ Concur.

      . The trial court proceeding was not a wrongful death case. Mr. Riley died during the pendency of the case, and his personal representative was substituted as the proper party by this court.

      . Much of the record provided to this court was sealed, including the transcript of a critical hearing in this matter. For that reason, we have avoided discussing specific details that might reveal the terms of the settlement.

      . In effect, section 409.910(1 l)(f) creates a presumption that the amount AHCA is entitled to receive from a Medicaid recipient’s judgment, award, or settlement in a tort action is either the total amount of medical assistance paid by Medicaid or approximately 37.5% of the judgment, award, or settlement, whichever is less.

      .AHCA specifically refers to another provision in section 409.910 to support this argument, i.e., section 409.910(17). At the time Mr. Riley settled with the owner of the property where he was seriously injured, that section read:
      (17) A recipient or his or her legal representative or any person representing, or acting as agent for, a recipient or the recipient’s legal representative, who has notice, excluding notice charged solely by reason of the recording of the lien pursuant to paragraph (6)(c), or who has actual knowledge of the agency’s rights to third-party benefits under this section, who receives any third-party benefit or proceeds therefrom for a covered illness or injury, is required either to pay the agency, within 60 days after receipt of settlement proceeds, the full amount of the third-party benefits, but not in excess of the total medical assistance provided by Medicaid, or to place the full amount of the third-party benefits in a trust account for the benefit of the agency pending judicial or administrative determination of the agency's right thereto.

      § 409.910(17), Fla. Stat. (2010) (emphasis added).

      . While this matter was pending on appeal, section 409.910 was substantially revised in several respects, including the addition of provisions in section 409.910(17) for an administrative mechanism whereby a recipient may contest the amount designated as recovered medical expense damages payable to the Agency for Health Care Administration. See ch. 2013-48, §§ 6, 14, Laws of Fla. (eff. July 1, 2013); ch. 2013-150, §§ 2, 7, Laws of Fla. (eff. July 1, 2013). Although chapter 2013-48, section 6, and chapter 2013-150, section 2, are not identical, both provide for the same administrative mechanism.


text:
    William Raymond YATES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3138.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2013.

      William Raymond Yates, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


text:
    Gregory Dwayne McGOOGIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3317.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2013.
    Gregory Dwayne McGoogin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, CLARK, and RAY, JJ., concur.


text:
    Daryl A. JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3408.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2013.
    Daryl A. Jackson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, CLARK, and RAY, JJ., concur.


author: ORFINGER, J.

text:
    Karen NEZI, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1252.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Karen S. Nezi appeals her sentence for organized fraud. She contends that the court violated her equal protection rights by imposing a harsher sentence on her solely because she could not pay a large part of the restitution. We agree and reverse for resentencing.

Nezi was charged with organized fraud of $50,000 or more, a first-degree felony. She entered an open guilty plea to the court and agreed with the State that $70,000 was owed as restitution. During the plea colloquy, Nezi acknowledged that the court could impose a sentence of up to thirty years in prison. The court accepted her plea, and deferred sentencing, ordering a presentence investigation report that revealed no prior criminal history.

At the sentencing hearing, the court asked how much restitution she could pay right then. Nezi responded, “I can pay now $400 a month like we discussed — ”. The court interjected, “Ma’am, we’re talking about $70,000 almost. You don’t have $10, $20,000 to pay?” Thereafter, the following discussion regarding Nezi’s financial status and ability to pay the restitution occurred:

[DEFENSE]: Judge, she’s got a public defender.
THE COURT: I know.
THE COURT: — I mean, of course, they claim that you owe about $108,000 is what they’re claiming.
[STATE]: Right. And I think what happened, Judge, is that a house was sold to satisfy part of that debt and maybe some of the money was returned. It’s just that that $69, $70,000 was unre-covered.
[DEFENSE]: And, Judge, in speaking with Ms. Nezi, you know, ‘cause certainly, clearly the need for restitution is great there. It’s a substantial amount of money. The victim is deceased and his son would then be the victim here, of course, wants his restitution as well. Not that he’s to be blamed at all—
THE COURT: Right. So—
[DEFENSE]: — but in discussing it in numbers and such, Judge, we picked an arbitrary number, you know, at $500 a month. It was a little over eight years and that was at $50,000, so at $70,000— and she can definitely pay $400 right now. She’s had difficulty with employment, obviously, and having an open felony of this nature no one really probably wants to touch her as far as employment. She’s a certified—
THE COURT: Look, you’re talking about she can pay[ ] $500 a month, that would be $6,000 — how much would that be a year she’d be paying?
THE DEFENDANT: Six thousand a year.
THE COURT: And how many years would it take you to pay $70,000?
[DEFENSE]: I’m sure at least ten, Judge.
THE COURT: Do what?
[DEFENSE]: At least ten years.
THE COURT: And what is your age?
THE DEFENDANT: I’m — hold-on a minute. I’ll be 56 March 2nd.
THE COURT: Okay. And do you have an insurance policy that’s gonna cover this if you die in the meantime?
THE DEFENDANT: No, I don’t.
THE COURT: So what kind of assets do you have?
THE DEFENDANT: I have nothing.
THE COURT: Well, you have — you had — apparently, you had — what did you have before you took the $70,000?
THE DEFENDANT: I had the house that I — they had deeded to them and that was it. My husband was in a car accident and he was a paraplegic. He didn’t — the only thing we had was social security and then I got sick.
THE DEFENDANT: I worked at Publix for ten years and now I work at Sam’s.
THE COURT: How much do you make now?
THE DEFENDANT: A month? I bring home about $900 a month.
[DEFENSE]: And, Judge, she’s committed to the rate of $400 a month—
[DEFENSE]: Fifty-six. No prior criminal history.
THE COURT: That’s fine. But she doesn’t have any — she doesn’t come in here and say. Judge, I’ve got $10,000. I’ve got $5,000. I got — all she says is I can pay, you know, $500 a month. That’s all she said. She pled guilty in what month?
[DEFENSE]: November, Judge.
[STATE]: November 17th, Judge.
THE COURT: And she was arrested on this case, I guess back in August of 2010, so why isn’t she saving her money since August, and she says okay, I saved back up this amount of money. She doesn’t have it.
[DEFENSE]: She didn’t even have employment for many of those months.
THE COURT: How was she living?
THE DEFENDANT: With my mother.
THE COURT: I understand, ma’am, but I mean, you’re in [sic] a rock and a hard place, I understand. I’m tempted to send you to prison is what I’m tempted to do.
[DEFENSE]: And like I said, her mother’s here.
THE COURT: Does her mother want to come over—
[DEFENSE]: Her sister.
THE COURT: — over, you know, come up with about $20,000, I’ll look at it differently.
[DEFENSE]: And we discussed that you and your family cannot do that, right?
THE COURT: I’m sorry. We make choices, ma’am, and then we have to live with the choices we made. Sometimes we don’t like them but you have to live with them.
[STATE]: Judge, I know many times you tell people that hey while they’re incarcerated if somehow they come up with a large sum of money or something, th[e]n you might consider some type of modification.
THE COURT: Yeah.
[STATE]: That might be appropriate but until that money surfaces—
THE COURT: Yeah.
[STATE]: — this may be all we have as far as—
THE COURT: I’m kind of thinking about something like this. Sentence you to 20 years in prison somewhat and after five years suspend — sentence you to five years and then suspend — give a post suspension period in there of five years and see what you come up with and then send you back to prison after that [if] you haven’t paid, but I don’t know if I can structure anything like that or not.
THE DEFENDANT: I want to pay. I’ve even asked [defense counsel] before where do I pay this money.
THE COURT: You ain’t, got — how much you got? You got $400?
THE DEFENDANT: Right now I can give you $500.
THE COURT: Ma’am, that’s not gonna be enough.
THE DEFENDANT: I know, but I want — I would like to pay it back. If I go to prison, I’m not gonna have a job or any income—
THE COURT: I know.
THE DEFENDANT: — to pay back.
THE COURT: I know. But you see, I think if you were really concerned about this when you got arrested by the state in April of — no, August of 2010, you would have started saving some money and, you know—
THE DEFENDANT: I didn’t have any money to save.
THE COURT: I know. Somebody was supporting you.
THE DEFENDANT: My mother. She’s 80 years old.
THE COURT: I know. Look, ma’am. Ma’am, the bottom line, you did the very best you could.
THE DEFENDANT: I know.
THE COURT: You did the very best you could but it just ain’t good enough. Nothing to be ashamed of. I mean you did your best[.] That’s the way I look at it. You did your best, couldn’t do it. Can’t do anything different. Your family doesn’t have any money apparently, your mother or sisters or brothers?

The court then adjudicated Nezi guilty, sentenced her to ten years in prison followed by twenty years of probation, and ordered her to pay restitution in the amount of $70,000. After pronouncing sentence, the court said:

If you were to come up with some monies, I would consider some modification of this, but I’m going to have to have some money you’re going to have to come up with before I consider some other alternative so for some mitigation. I mean, you brought this on yourself and there’s no excuse. There was no reason for doing what you did and you caused a substantial hardship to this other man and you violated his trust. He trusted you and you violated his trust. We can all make excuses, but you are responsible for your conduct.

Nezi then filed her appeal and a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the lower court violated her state and federal constitutional rights to equal protection by imposing a harsher sentence solely because she did not have the ability to pay a large portion of the restitution. At the hearing on Nezi’s motion, the State recognized that while the court could sentence Nezi to prison, it was an equal protection violation to condition the mitigation of her sentence on the payment of a large portion of the restitution. The court concluded that the equal protection violation could be corrected by simply deleting the provision of the sentencing documents that provided, “Court will consider mitigation of sentence upon payment of restitution.” After deleting the offending language from the sentencing documents, the trial court denied further relief.

The determination of the sentence to be imposed falls within the trial court’s sound discretion. Therefore, an appellate court will not disturb a sentence that is within the limit set by statute. Jones v. State, 387 So.2d 401, 403-04 (Fla. 5th DCA 1980); Darby v. State, 216 So.2d 29, 30 (Fla. 3d DCA 1968); Infante v. State, 197 So.2d 542, 544 (Fla. 1st DCA 1967). However, an exception is made when the defendant’s constitutional rights are violated in the imposition of the sentence. See Dowling v. State, 829 So.2d 368, 370 (Fla. 4th DCA 2002). The United States Supreme Court has held that the equal protection clause prohibits the conversion of a fine as a sentence into a jail term solely because the defendant is indigent and cannot immediately pay the fine in full. See Tate v. Short, 401 U.S. 395, 397-99, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). Following Tate, Florida courts have applied the well-settled principle that a defendant cannot be imprisoned solely because of his or her indigency. See, e.g., Rollins v. State, 299 So.2d 586, 589 (Fla.1974) (“If the defendant establishes his indigency and a right to state-appointed counsel, he cannot-under Tate v. Short-be imprisoned for not paying his fine.”). In V.H. v. State, 498 So.2d 1011 (Fla. 2d DCA 1986), the second district relied on the principle articulated in Tate to reverse an indigent juvenile’s commitment when it was clear from the record that the trial court chose commitment rather than community control only because the juvenile was unable to pay restitution. 498 So.2d at 1011.

There is no doubt that the trial court was authorized to consider Nezi’s entire background, financial situation and the circumstances of her crime in determining an appropriate sentence. As the Supreme Court said in Bearden v. Georgia, 461 U.S. 660, 669-70, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983):

The State, of course, has a fundamental interest in appropriately punishing persons-rich and poor-who violate its criminal laws. A defendant’s poverty in no way immunizes him from punishment. Thus, when determining initially whether the State’s penological interests require imposition of a term of imprisonment, the sentencing court can consider the entire background of the defendant, including his employment history and financial resources. See Williams v. New York, 337 U.S. [241,] 247, 250, and n. 15, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). As we said in Williams v. Illinois, “[a]fter having taken into consideration the wide range of factors underlying the exercise of his sentencing function, nothing we now hold precludes a judge from imposing on an indigent, as on any defendant, the maximum penalty prescribed by law.” 399 U.S. [235,] 243, 90 S.Ct., at 2023, 26 L.Ed.2d 586 [ (1970) ].

While a defendant’s willingness and capacity to pay restitution can be among the reasons a judge may decide to impose a lower sentence, the equal protection clause prohibits a judge from conditioning a lower sentence on the payment of restitution. DeLuise v. State, 72 So.3d 248 (Fla. 4th DCA 2011). Here, the trial court violated Nezi’s equal protection rights by imposing a harsher sentence after making it clear that if Nezi, at the time of the sentencing hearing, had the financial means to pay a large part of the agreed-upon restitution, it would have imposed lesser sanctions. The court did not cure the equal protection violation by deleting the provision in the sentencing order that it would consider mitigating the sentence if, sometime in the future, Nezi paid a substantial amount of money toward restitution. A sentencing order that allows a defendant to reduce the length of incarceration if she pays restitution is not materially different from a sentencing order that requires the defendant to serve more time if she does not pay restitution. Regardless of how the trial court phrases its order, the result is a shorter term for a defendant if she can and does pay, and a longer term if she cannot and does not pay. This result is clearly prohibited by the equal protection clause. See People v. Collins, 239 Mich.App. 125, 607 N.W.2d 760, 765 (1999).

We commend the trial court’s efforts to recover some portion of the victim’s losses, but we cannot approve the methods utilized here. We, therefore, reverse for re-sentencing before a different judge.

REVERSED and REMANDED.

TORPY, C.J. and PALMER, J., concur.


author: SILBERMAN, Judge.

text:
    AUDIO VISUAL INNOVATIONS, INC., Appellant, v. Michael G. SPIESSBACH, Appellee.
    No. 2D12-5874.
    District Court of Appeal of Florida, Second District.
    Aug. 16, 2013.

      John D. Mullen of Phelps Dunbar LLP, Tampa, for Appellant.
    Ronald W. Fraley of The Fraley Firm, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

Audio Visual Innovations, Inc. (AVI), seeks review of the order denying its motion to compel arbitration of Michael G. Spiessbach’s claim for retaliatory discharge which was filed pursuant to section 440.205, Florida Statutes (2011). AVI argues that the trial court erroneously determined that arbitration would defeat the remedial purposes of section 440.205. And AVI claims that it was entitled to arbitration because it otherwise satisfied all the elements of arbitrability. We agree with both points and reverse.

In April 2012, Spiessbach filed a complaint alleging that AVI’s termination of his employment was a retaliatory discharge in violation of section 440.205. Spiessbach had injured his back by moving a heavy object at work in January 2012. He notified AVI of his injury and filed a claim for workers’ compensation benefits. According to the complaint, AVI treated Spiessbach differently after his injury and eventually terminated him because of his claim for benefits.

AVI filed two unopposed motions for extensions of time in which to respond to the complaint, indicating that the parties had voluntarily scheduled a mediation conference. In September 2012, after mediation resulted in an impasse, AVI filed a motion to compel arbitration under the dispute resolution agreement that Spiess-bach had signed when he was hired. After conducting a hearing, the trial court entered an order denying AVI’s motion to compel arbitration, concluding that “[t]he remedial purposes of Section 440.205, Fla. Stat., would be defeated by the parties’ arbitration agreement.”

On appeal, AVI challenges the trial court’s conclusion and further contends that it was entitled to arbitration because it otherwise satisfied the elements of arbi-trability. Spiessbach raises several arguments in response, none of which supports affirmance.

A. The Trial Court’s Determination as to Remedial Purposes

“[A]ny arbitration agreement that substantially diminishes or circumvents [statutory] remedies stands in violation of the public policy of the State of Florida and is unenforceable.” Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 474 (Fla.2011). Because AVI has not produced a transcript of the hearing on Spiessbach’s motion to compel, we are unable to conclusively determine which provisions of the agreement the court found defeated the remedial purposes of section 440.205. However, our review of this issue is not thwarted by the absence of a transcript because the issue presents a question of law regarding the terms of the agreement. See Ronbeck Constr. Co. v. Savanna Club Corp., 592 So.2d 344, 348 (Fla. 4th DCA 1992) (noting that the rule requiring affir-mance based on the absence of a transcript “applies only where the trial court’s decision turns on its resolution of contested facts”).

Spiessbach directs our attention to the agreement’s provisions regarding payment of the arbitrator’s fees and expenses and the arbitrator’s authority to award attorney’s fees and costs. We disagree that these provisions defeat Spiessbach’s remedies under section 440.205. The agreement provides for the payment of arbitrator’s fees and costs as follows: “Employee shall notify Employer whether Employee wishes to pay half of the Arbitrator’s fees and expenses or whether all such fees and expenses shall be paid by Employer.” This provision is permissive and imposes no obligation on the employee to pay. And while the agreement contains a provision authorizing the award of attorney’s fees as sanctions, this provision is analogous to the statutory provision in section 57.105, Florida Statutes (2011), which would authorize fees at trial. Further, in civil litigation, the prevailing party may recover legal costs. See § 57.041, Fla. Stat. (2011). Moreover, the agreement expressly states that “the Arbitrator shall have the same power and authority as would a judge in a non-jury court trial to grant any relief that a court could grant, as may be in conformance with applicable principles of common, decisional, and statutory law in the relevant jurisdiction.”

B. The Elements of Arbitrability

The Florida Supreme Court has set forth three elements of arbitrability: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005) (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)). As with the previous issue, our review of this issue is not thwarted by the absence of a transcript because the issue presents a question of law regarding the terms of the agreement and there are no contested facts. See Ronbeck, 592 So.2d at 348.

1. Whether a Valid Written Agreement to Arbitrate Exists

Spiessbach argues that the agreement is invalid because it contains a confidentiality clause that renders it substantively unconscionable. However, both substantive and procedural unconscionability are required to support an unconscion-ability defense to an arbitration agreement in Florida. See SA-PG Sun City Ctr., LLC v. Kennedy, 79 So.3d 916, 919 (Fla. 2d DCA 2012). Without an allegation of procedural unconscionability, we need not address any alleged substantive unconscionability. See id. Thus, we reject Spiessbach’s claim on this issue.

2. Whether an Arbitrable Issue Exists

The agreement provides, in pertinent part, that “Employee and Employer agree to submit for resolution pursuant to the Dispute Resolution Agreement any claim or disputes (as described above).” The agreement describes “Employment-Related Disputes” as including “all claims asserted by a current or former employee relating to or arising out of the individual’s employment with Employer.” “Claims” are described as follows:

The term “claims” includes, but is not limited to, any claim by Employee based on a common law contract or tort claim, or a federal, state, or other statutory claim. The term “claims” also includes, but is not limited to, any administrative complaint based upon a common law contract or tort claim, or a federal, state, or other statutory claim.... The term “claims” does not include any legal action by Employee for workers’ compensation benefits, unemployment benefits, or claims requiring resolution under a different procedure pursuant to the terms of an employee benefit plan.

(Emphasis added.)

Spiessbach does not dispute that his retaliatory discharge claim is a “statutory claim” filed “by a current or former employee relating to or arising out of the individual’s employment.” But Spiessbach argues that his claim falls under the agreement’s exclusion for “any legal action by Employee for workers’ compensation benefits.” Spiessbach asserts that section 440.205’s statutory protection from retaliatory discharge provides for “workers’ compensation benefits.”

The resolution of this issue turns on whether a retaliatory discharge action filed pursuant to section 440.205 is an action “for workers’ compensation benefits” as contemplated by the agreement. Section 440.205 is contained in chapter 440, which is entitled “Workers’ Compensation.” Chapter 440 sets forth a legislative intent “to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.” § 440.015 (emphasis added). And chapter 440 sets forth a special “[pjrocedure for resolving benefit disputes.” See § 440.192. An employee seeking “any benefit that is ripe, due, and owing” initiates this procedure by filing “a petition for benefits” with the Office of the Judges of Compensation Claims. § 440.192(1).

However, this procedure is completely separate from a cause of action for retaliatory discharge under section 440.205, which is resolved by the filing of a complaint in circuit court. See Smith v. Piezo Tech. & Prof'l Adm’rs, 427 So.2d 182, 183-84 (Fla.1988). In Smith, the supreme court determined that claims brought pursuant to section 440.205 must be filed in a court of competent jurisdiction and rejected the argument that such claims should be brought before the Office of the Judges of Compensation Claims like claims for disability and medical benefits under chapter 440. Id. at 185. In so ruling, the court expressly determined that “[a] section 440.205 wrongful discharge is not a claim for compensation or benefits as those terms are used in Chapter 440.” Id. at 184. Because Spiessbach’s claim does not fall under the agreement’s exclusion for claims “for workers’ compensation benefits,” an arbitrable issue exists.

3. Whether the Right to Arbitration Was Waived

Spiessbach argues that AVI waived its right to arbitrate by filing two motions for extension of time to answer the complaint, participating in mediation, and waiting five months before demanding arbitration. “Waiver of the right to arbitration results from active participation in a lawsuit or from taking action inconsistent with that right.” O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 185 n. 4 (Fla.2006). “Whether there is a ‘[w]aiver of the right does not necessarily depend on the timing of the motion to compel arbitration, but rather on the prior taking of an inconsistent position by the party moving therefor.’” Miller & Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., Inc., 824 So.2d 288, 290 (Fla. 4th DCA 2002) (alteration in original) (quoting Paine, Webber, Jackson & Curtis, Inc. v. Fredray, Inc., 521 So.2d 271 (Fla. 5th DCA 1988)). The filing of a motion for extension of time that delays a demand for arbitration is not the sort of active participation in a lawsuit that constitutes a waiver because it “is not a substantive attack on the merits.” Id. at 291.

Similarly, AVI’s participation in mediation did not amount to taking a position on the merits that would be inconsistent with its right to arbitration. In fact, the agreement contains a “Pre-Arbi-tration Dispute Resolution” provision that encourages the parties to participate in voluntary mediation prior to proceeding to arbitration. Cf. Strominger v. AmSouth Bank, 991 So.2d 1030, 1034 (Fla. 2d DCA 2008) (noting that generally, a defendant waives arbitration by filing a motion for summary judgment addressed to the merits of the complaint); Bland v. Green Acres Grp., L.L.C., 12 So.3d 822, 824 (Fla. 4th DCA 2009) (reiterating that a defendant waives arbitration by filing an answer without asserting the right to arbitrate). Because AVI filed a motion to compel arbitration before filing a responsive pleading, the right to arbitration was not waived. See Price v. Fax Recovery Sys., Inc., 49 So.3d 835, 837 (Fla. 4th DCA 2010).

C. Conclusion

In conclusion, the trial court erred in denying AVI’s motion to compel arbitration on the basis that arbitration would defeat the remedial purposes of section 440.205. Furthermore, AVI has satisfied all the elements of arbitrability by establishing the existence of a valid written agreement to arbitrate, the existence of an arbitrable issue, and the absence of waiver. Accordingly, we reverse and remand with directions for the trial court to grant AVI’s motion.

Reversed and remanded.

KELLY and MORRIS, JJ„ Concur.

      . Section 440.205 provides that "[n]o employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.”


author: PER CURIAM. ALTENBERND, Judge,

text:
    Aaron H. IRIARTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4978.
    District Court of Appeal of Florida, Second District.
    Aug. 16, 2013.
   PER CURIAM.

Aaron H. Iriarte appeals the summary dismissal of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We reverse the circuit court’s order and remand for further proceedings.

On January 12, 2010, Iriarte pleaded nolo contendere to aggravated battery with a deadly weapon (count one), burglary of an unoccupied structure (count two), and damage of property (count three); he was sentenced to a total of six years’ imprisonment. Iriarte did not file a direct appeal. On August 3, 2012, Iriarte filed the current motion for postconviction relief.

The circuit court dismissed Iriarte’s motion as untimely, finding that because he did not file a direct appeal, his judgment and sentence became final on or about February 9, 2010, thirty days after sentencing. According to the court, Iriarte’s motion, filed in August of 2012, was outside the two-year time limit of rule 3.850(b). The court also noted that although Iriarte filed a timely motion to withdraw plea after sentencing, he admitted in his rule 3.850 motion that he later voluntarily dismissed it. The court delved no further into this issue despite the fact that a motion to withdraw plea under Florida Rule of Criminal Procedure 3.170(i) “delays rendition of the judgment and sentence until the court files a signed, written order disposing of the motion.” Haber v. State, 961 So.2d 1098, 1099 (Fla. 2d DCA 2007). Because the court failed to further address Iriarte’s motion to withdraw plea or attach any order disposing of it — such as an order demonstrating that the motion had been voluntarily dismissed — the date his judgment and sentence became final cannot be determined from the record, and the timeliness of his current rule 3.850 motion remains unclear.

Accordingly, we reverse the circuit court’s dismissal and remand for the court to attach portions of the record establishing the finality of Iriarte’s judgment and sentence, reevaluate the timeliness of Ir-iarte’s rule 3.850 motion, and if necessary-address his claims on the merits. If the motion to withdraw plea has not been formally disposed of, the court shall again dismiss Iriarte’s rule 3.850 motion — as his judgment and sentence never became final — and rule upon the motion to withdraw plea. See id.

Reversed and remanded.

CRENSHAW and MORRIS, JJ., Concur.

ALTENBERND, J., Concurs specially.

ALTENBERND, Judge,

Specially concurring.

I concur in this decision to remand the case to the trial court for further proceedings. Mr. Iriarte’s postconviction motion claims that he filed a motion to withdraw plea, “which was voluntarily dismissed.” He does not state when it was voluntarily dismissed. The trial court’s order recites Mr. Iriarte’s claim, but it does not confirm that a notice of dismissal or a motion to voluntarily dismiss was ever filed by Mr. Iriarte or the attorney who presumably is representing him concerning that motion.

The trial court treated the motion pursuant to Florida Rule of Criminal Procedure 3.170(Z) as a postconviction motion and cited Joseph v. State, 835 So.2d 1221 (Fla. 5th DCA 2003), for the proposition that another collateral proceeding does not toll the time for a motion under rule 3.850. The trial court erred because a motion under rule 3.170(Z) is not a collateral proceeding. In many ways it looks like a collateral proceeding, but it is a motion filed within thirty days of rendition of the sentence. The motion presents and preserves an issue so that it may be addressed on direct appeal, not on collateral review.

Implicit within our opinion is the suggestion that the time to file a motion under rule 3.850 is tolled until a date related to the defendant’s decision to voluntarily withdraw his earlier motion to withdraw plea under rule 3.170((). That is probably a correct suggestion. His sentence could not even be reviewed on direct appeal until that motion was resolved. In a somewhat similar context, when a defendant voluntarily dismisses a direct appeal, we measure the two-year period from the date of our order granting a voluntary dismissal. See Cabrera v. State, 721 So.2d 1190, 1191 (Fla. 2d DCA 1998).

Assuming that our suggestion is correct — the law provides a defendant with a tolling period that expands the time for the filing of a postconviction motion when an earlier filed motion pursuant to rule 3.170(() is pending but is ultimately abandoned — it is unclear to me when that period would end. Florida Rule of Appellate Procedure 9.020(h)(3) provides that an appeal is “held in abeyance” until the filing of a written order disposing of such a motion. The rule understandably does not address the rare defendant that abandons the motion. I would assume that the thirty-day period to file the direct appeal commences on the filing of the notice of abandonment even if no order is entered on the notice. If that is true, then the two-year period for the filing of a motion under rule 3.850 would run from the time the judgment and sentence became final by the expiration of the time to file a direct appeal. I do not believe there is precedent on this point, and I write this concurrence to emphasize that our opinion today does not decide this issue.

      . Unless Mr. Iriarte or his attorney actually filed a notice of abandonment of this motion, it is not clear to me that his time to file a direct appeal has even expired.


text:
    Mark Anthony SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D12-2603, 5D12-2604, 5D12-2605.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Mark Anthony Smith appeals the denial of his second motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Relying on Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Smith argues his aggregate forty-year concurrent prison term-of-years sentences for three counts of burglary of a dwelling with a weapon and an assault or battery, as well as aggravated assault, aggravated battery and kidnapping, committed when he was sixteen years old, amount to a de facto life sentence in violation of the prohibition on cruel and unusual punishment. We disagree, as we do not believe Smith’s sentence amounts to a life sentence or that Graham is controlling.

As the Second District Court of Appeal explained in Walle v. State, 99 So.3d 967, 970 (Fla. 2d DCA 2012):

The Supreme Court itself limited the scope and breadth of its decision in Graham by stating that its decision “eon-cern[ed] only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.” Id. at 2028. From this statement we identify the four necessary analytical factors: (1) the offender was a juvenile when he committed his offense, (2) the sentence imposed applied to a singular nonhomicide offense, (3) the offender was “sentenced to life,” and (4) the sentence does not provide the offender with any possibility of release during his lifetime.

Only the first of these four enumerated factors, Smith’s status as a juvenile at the time of his offenses, is met here. The remaining factors lead us to conclude that Smith’s sentences do not amount to de facto life sentences, and consequently, do not violate the prohibition on cruel and unusual punishment.

As we explained in Henry v. State, 82 So.3d 1084, 1089 (Fla. 5th DCA), review granted, 107 So.3d 405 (Fla.2012):

If we conclude that Graham does not apply to aggregate term-of-years sentences, our path is clear. If, on the other hand, under the notion that a term-of-years sentence can be a de facto life sentence that violates the limitations of the Eighth Amendment, Graham offers no direction whatsoever. At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: twenty, thirty, forty, fifty, some lesser or greater number? Would gain time be taken into account? Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria? Does the number of crimes matter? There is language in the Graham majority opinion that suggests that no matter the number of offenses or victims or type of crime, a juvenile may not receive a sentence that will cause him to spend his entire life incarcerated without a chance for rehabilitation, in which case it would make no logical difference whether the sentence is “life” or 107 years. Without any tools to work with, however, we can only apply Graham as it is written. If the Supreme Court has more in mind, it will have to say what that is.

(Footnotes omitted).

AFFIRMED.

PALMER and WALLIS, JJ., concur.

      . Smith’s convictions were affirmed on direct appeal. See Smith v. State, 967 So.2d 1002 (Fla. 5th DCA 2007). He did not appeal the denial of his initial rule 3.850 motion for postconviction relief. We find that Smith’s double jeopardy claim is both procedurally and time barred.


text:
    Carlos E. TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3804.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.

      BeJae Shelton, of Finnell, McGuinness, Nezami, and Andux, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Carlos Torres, was convicted of two counts of attempted second-degree murder. As to count one, the jury found that Torres discharged a firearm and inflicted great bodily harm on the victim who was shot when Torres fired the gun at her. As to count two, the jury found that Torres discharged a firearm when he shot at a second victim (that victim was not injured). He was sentenced to concurrent thirty-year minimum mandatory sentences for each count. Torres appeals his convictions and the thirty-year minimum mandatory sentence he received for count two, contending that the correct minimum sentence is twenty years in prison for that count.

We affirm the convictions without further discussion. As to the sentencing error regarding count two, the State concedes that the correct minimum mandatory sentence is twenty years, just as Torres contends. We note that the thirty-year sentence is correct for count one because the jury found that great bodily injury was inflicted by the gunshot wound the victim suffered when she was shot by Torres. Accordingly, we reverse the sentence regarding count two and remand for imposition of the correct minimum mandatory sentence of twenty years in prison. Because of the thirty-year sentence imposed for count one, correction of the sentence for count two will not affect the term of imprisonment, so it will not be necessary for Torres to be present at resentencing. See Johnson v. State, 899 So.2d 1283 (Fla. 5th DCA 2005).

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, COHEN and BERGER, JJ., concur.


text:
    Markeise Deandre BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4282.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm that part of the order under review holding that Appellant, Markeise Deandre Baker, violated his probation. We also affirm the sentence imposed. However, because Defendant was originally sentenced as a youthful offender, the trial court erred in removing the youthful offender status at sentencing. See Christian v. State, 84 So.3d 437 (Fla. 5th DCA 2012). We note that the State properly concedes this error. Accordingly, we remand this case to the trial court to enter a corrected order reinstating Defendant’s youthful offender designation.

AFFIRMED; REMANDED for entry of a corrected order.

GRIFFIN, SAWAYA and BERGER, JJ., concur.


text:
    Sean M. TOMPKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4848.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.
    Sean M. Tompkins, Malone, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Sean M. Tompkins, appeals the order denying the motion that he filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. He entered an open plea to the court to three counts of lewd and lascivious battery in violation of section 800.04(4)(a), Florida Statutes (2008). Tompkins (eighteen years old) and the victim (fourteen years old) were involved in a romantic relationship at the time of the offenses. After his plea was accepted by the trial court, Tompkins was sentenced to fourteen years in prison.

In his motion, Tompkins alleged his trial counsel was ineffective for the following four reasons: 1) misadvising him to reject a plea offer from the State offering a youthful offender sentence; 2) failing to call witnesses at sentencing to provide mitigating evidence; 3) failing to properly investigate the case; and 4) failing to object to the lack of a factual basis for the plea he entered. The trial court summarily denied grounds 1, 2, and 4, and granted an evi-dentiary hearing on ground 3. We affirm the order denying the motion as to grounds 2, 3, and 4. However, as to ground 1, the attached portions of the record do not conclusively refute this claim. Therefore, we reverse that part of the order summarily denying ground 1 and remand for an evidentiary hearing.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, LAWSON and COHEN, JJ., concur.


text:
    Michael GISI, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-987.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.
    Michael Gisi, Orlando, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   ORFINGER, J.

Michael Gisi appeals the denial of his petition for writ of habeas corpus. Gisi’s petition alleged that he is being illegally held due to a defect in the information, which, he contends, precludes one of his convictions. We dismiss this appeal due to a lack of jurisdiction.

Gisi was tried and convicted in Pinellas County, Florida, of four counts of committing a lewd or lascivious act upon a minor, eight counts of handling and fondling a child, one count of interference with custody and one count of seduction of a child via a computer. The Second District Court of Appeal affirmed Gisi’s convictions and sentences. Gisi v. State, 818 So.2d 510 (Fla. 2d DCA 2002). However, after Gisi successfully demonstrated that he received ineffective assistance of appellate counsel, the second district permitted him a new direct appeal on several issues. Gisi v. State, 848 So.2d 1278 (Fla. 2d DCA 2003). As a result of his second direct appeal, the second district affirmed some of the counts and reversed others. Count 4, the one at issue in this proceeding, was again affirmed. Gisi v. State, 909 So.2d 531, 532-34 (Fla. 2d DCA 2005).

In his habeas petition filed in Orange County, where Gisi is currently detained, Gisi claims that he is being illegally held because the information in Count 4 alleged an offense date of November 22, 1998, but the verdict form listed the offense date as November 21,1998. The circuit court considered Gisi’s petition on the merits and denied relief, concluding that any error on the verdict form was inconsequential because the proof at trial matched the finding of guilt. In reaching this conclusion, the circuit court relied on Coderre v. State, 883 So.2d 385 (Fla. 4th DCA 2004), which reiterated that

the date and time is ordinarily not a substantive part of an indictment or information and that there may be a variance between the dates proved at trial and those alleged in the indictment as long as: “(l)the crime was committed before the return date of the indictment; (2) the crime was committed within the applicable statute of limitations; and (3) the defendant has been neither ... surprised nor hampered in preparing his defense.”

Id. at 386 (quoting Tingley v. State, 549 So.2d 649, 651 (Fla.1989)). While we agree with the trial court’s analysis, we conclude that the circuit court lacked jurisdiction to consider this claim on the merits.

The circuit court of the county in which a defendant is incarcerated has jurisdiction to consider a petition for writ of habeas corpus when the petition involves an issue regarding the prisoner’s incarceration. Johnson v. State, 947 So.2d 1192, 1192-93 (Fla. 3d DCA 2007). However, a habeas petition attacking the validity of a conviction and asserting issues related to the trial court proceedings, must be brought in the circuit court of the county that rendered the judgment of conviction. Galloway v. State, 931 So.2d 136, 136-37 (Fla. 5th DCA 2006). Because Gisi’s petition attacks his conviction, the proper court is the Circuit Court of Pinellas County. For these reasons, we dismiss this appeal.

APPEAL DISMISSED.

TORPY, C.J., and COHEN, J., concur.

      . Neither party addressed the issue of jurisdiction in their briefs.


text:
    N.B., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1817.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.
    Robert Wesley, Public Defender, Orlando and Molina Arena-Randall, Assistant Public Defender, Orlando, for Petitioner.
    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 resulting from the violation of the petitioner’s probation, in case numbers 12-CJ-3661-A-0 and 12-CJ-5081-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, C.J., ORFINGER and LAWSON, JJ., concur.


text:
    Frederick Milford BRYANT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2122.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.
    Frederick Milford Bryant, Coleman, pro se.
    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 for violation of probation in case no. 05-2001-CF-32828-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, COHEN and BERGER, JJ., concur.


text:
    Juan C. DELGADO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2361.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.
    Juan C. Delgado, Perry, 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 order dismissing Petitioner’s motion for post-conviction relief in Case No. 08-CF-5392-B, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, LAWSON and WALLIS, JJ., concur.


text:
    James BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4304.
    District Court of Appeal of Florida, First District.
    Aug. 16, 2013.
    Jeffrey E. Lewis, Regional Counsel, and Michael Jerome Titus, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, First District, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Adams v. State, 118 So.3d 930 (Fla. 1st DCA 2013).

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


text:
    James Lee RUDOLPH, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3600.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2013.
    James Lee Rudolph, 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, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Billy Wayne WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3391.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2013.

      Billy Wayne Walker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied on the merits. See Peterson v. State, 746 So.2d 1208 (Fla. 1st DCA 1999).

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


text:
    Victor T. BOUIE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3640.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2013.
    Victor T. Bouie, 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, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Samuel R. NEEL, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3677.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2013.
    Samuel R. Neel, III, 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, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Travis GILYARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3747.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2013.

      Travis Gilyard, 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, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Howard W. AUSTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5954.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.
    Howard W. Austin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the October 27, 2009, judgment and sentence entered in Bradford County Circuit Court case number 09-00146-CF. 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.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


text:
    George C. STALLWORTH, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D12-5674.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.
    George C. Stallworth, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Charles F. Rivenbark II, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. The trial court is directed to enter an order disposing of petitioner’s petition for writ of habeas corpus filed in case number 2011-CA-3178 on March 31, 2011, or, if warranted, to issue an order to show cause thereon and thereafter promptly address the merits of the petition. Because we are confident that the circuit court will comply with this directive, we withhold formal issuance of the writ at this time.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


text:
    Memwaldy CURTIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2619.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.
    Memwaldy Curtis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as moot.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


text:
    Jerry GALLION, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1751.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.
    Jerry Gallion, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The notice of appeal served by petitioner on January 29, 2013, has now been transmitted to this court and the resulting appeal has been assigned case number 1D13-2905. Accordingly, the petition for belated appeal is denied as moot.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


text:
    Steven W. JEWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0813.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2013.

      Steven W. Jewell, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Steven Wayne Jewell appeals from the circuit court’s final order dismissing his petition for writ of habeas corpus. Because the circuit court failed to correctly apply the relevant case law, we reverse.

On January 26, 2011, Jewell was civilly committed as a sexually violent predator pursuant to the Involuntary Commitment of Sexually Violent Predators Act, commonly known as the “Jimmy Ryce Act.” He subsequently filed a habeas petition in this Court on October 11, 2012, seeking leave to pursue a belated appeal from his civil commitment. He asserted in the petition that, within thirty days of the commitment, he had sent his trial attorney a written request to file an appeal but that the attorney failed to file a timely appeal, claiming that he had never received Jewell’s request.

This court issued a per curiam dismissal of the habeas petition, -with a citation to In re Commitment of May, 975 So.2d 579 (Fla. 2d DCA 2008). See Jewell v. State, 100 So.3d 1218 (Fla. 1st DCA 2012). In May, the Second District held that an individual who is involuntarily committed as sexually violent predator is entitled to seek relief through a petition for writ of habeas corpus, where the committed person alleges that his trial counsel failed to file a timely notice of appeal, despite his request that counsel do so. The court in May expressly held that such a petition must be filed in the circuit court, not the district court of appeal, where it presents a factual issue as to whether the petitioner timely instructed his attorney to file an appeal from the commitment order.

In accordance with our decision and May, Jewell then filed a new habeas petition for belated appeal in the Escambia County Circuit Court. The circuit court issued an order dismissing the petition, ruling, in contravention of May, that the petition should have been filed in this court.

As the state concedes, under May, the trial court erred by dismissing Jewell’s habeas petition. We reverse and remand for the trial court to consider the petition on its merits and determine whether Jewell is entitled to a belated appeal from his civil commitment.

Reversed.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Todd BAKER, Respondent.
    No. 5D12-4898.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    Stephen D. Hurm, General Counsel and Richard M. Coin, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, for Petitioner.
    Stuart I. Hyman of Stuart I. Hyman, P.A., Orlando, for Respondent.
   PER CURIAM.

We. grant the petition for certiorari and quash the order of the circuit court. Klinker v. Dep’t of Hwy. Safety & Motor Vehicles, 118 So.3d 835 (Fla. 5th DCA 2013).

■ PETITION GRANTED; ORDER QUASHED.

TORPY, C.J., BERGER and WALLIS, JJ., concur.


text:
    Dean Peter DEMARCO, Appellant, v. Kim Denise DEMARCO, Appellee.
    No. 5D12-4596.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    Donald Appignani, Palm Coast, for Appellant.
    Philip J. Bonamo, of Rice & Rose, P.A., Daytona Beach, for Appellee.
   PER CURIAM.

Dean P. Demarco appeals a final judgment dissolving his marriage to Kim D. Demarco. Specifically, Mr. Demarco contends that both the amount and duration of the alimony awarded in this long-term marriage was an abuse of the trial court’s discretion. Having carefully reviewed the record, we disagree and affirm. Our affir-mance is, however, without prejudice to Mr. Demarco to seek a modification of the amount of his alimony upon retirement. See Pimm v. Pimm, 601 So.2d 534 (Fla.1992); see also § 61.08(7), Fla. Stat. (2012).

AFFIRMED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.


author: GRIFFIN, J.

text:
    Janna COHEN, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 5D12-4510.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    David M. Robbins, of Epstein & Roberts, Jacksonville, for Petitioner.
    Stephen D. Hurm, General Counsel, and Kimberly A. Gibbs, Assistant General Counsel, Orlando, for Respondent.
   GRIFFIN, J.

The Petitioner, Janna Cohen [“Cohen”], seeks second-tier certiorari review of the Circuit Court’s “Final Order Denying Petition for Writ of Certiorari,” wherein the Circuit Court found that there was competent substantial evidence to support the administrative suspension of Cohen’s driver’s license. We deny the petition on the authority of Klinker v. Dep’t of Highway Safety & Motor Vehicles, 118 So.3d 835 (Fla. 5th DCA 2013), reh’g denied, July 5, 2013.

WRIT DENIED.

EVANDER and COHEN, JJ., concur.


text:
    SOUTHERN FIELDS HOMEOWNERS, etc., Appellant, v. Rosa A. RODRIGUEZ, et al., Appellees.
    No. 5D13-574.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    Nicolette A. Kramer, of The Association Law Firm, PLLC, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Because of the lack of a transcript, we are compelled to affirm. See Arnold v. Whitley, 97 So.3d 339 (Fla. 5th DCA 2012) (judgment of trial court comes to appellate court clothed with presumption of correctness and may not be disturbed in absence of record demonstrating error).

AFFIRMED.

TORPY, C.J., and EVANDER and WALLIS, JJ., concur.


author: VAN NORTWICK, J.

text:
    STATE of Florida, Appellant, v. Reamon WILLIAMS, Appellee.
    No. 1D12-6073.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2013.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   VAN NORTWICK, J.

The State of Florida appeals the trial court’s order granting appellee’s motion to suppress based on the trial court’s finding of a lack of probable cause. We conclude that the police officer had probable cause to stop Williams because the officer could have reasonably concluded that, by walking down the middle of a street, Williams was violating a traffic law. Further, the undisputed evidence establishes that, for purposes of search and seizure, Williams abandoned the bottle in which law enforcement found drugs. Accordingly, the suppression order is reversed and the cause remanded.

A law enforcement officer saw Reamon Williams, appellee, standing in the street conversing with other people. The officer followed Williams down the street when Williams turned to leave. Williams was walking down the middle of the road. After making a suspicious person call and stopping Williams, the officer was informed that Williams had no current warrants. Williams consented to a pat down, but denied the officer’s request to search him. By this time, other officers had arrived at the scene, but did not become involved with Williams. Nothing was discovered during the pat down. Subsequent to the pat down, an Advil bottle fell from Williams’ pants. Williams denied ownership of the bottle. The officer ordered Williams to the ground, retrieved the bottle, and opened it. The bottle contained crack cocaine. Subsequent to Williams’ arrest, officers found marijuana on his person as well.

Williams filed a motion to suppress any evidence obtained following the stop by the officer and the search of the Advil bottle. At the hearing, the State argued that the officer legally stopped Williams for a pedestrian violation and that the Advil bottle was abandoned when Williams denied ownership. The defense argued that only one of the four officers interviewed claimed Williams denied ownership and that no reference to the statement was made in the probable cause affidavit filed by the same officer. Williams further argued that he never had the opportunity to reclaim his property. The court granted Williams’ motion to suppress, ruling that there was no reasonable suspicion to pat down Williams and that he did not consent to the search. The trial court also found that the search of the Advil bottle was unlawful because there was no probable cause to search it. The trial court found that the incident was a “pretextual stop based on profiling, not probable cause.” This appeal followed.

Appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth Amendment. Connor v. State, 803 So.2d 598, 608 (Fla.2001). The competent, substantial evidence standard of review applies to findings of fact made during an evidentiary hearing. See Teffeteller v. Dugger, 734 So.2d 1009, 1017 (Fla.1999). Testimony that is not impeached, discredited, or controverted, nor is self-contradicting or physically impossible, must be accepted by the trial court. See State v. Daniel, 665 So.2d 1040, 1044 n. 2 (Fla.1995), rev’d on other grounds, Holland v. State, 696 So.2d 757 (Fla.1997); see also State v. G.H., 549 So.2d 1148, 1149 (Fla. 3d DCA 1989).

The trial court’s order granting Williams’ motion is based on findings of fact not supported by competent, substantial evidence and is an incorrect application of case law. The trial court found that the stop was “a pre-textural [sic] stop ... based on nothing more that [sic] profiling by the Officers.” However, whether the stop was pre-textual is irrelevant as long as the officers had probable cause to believe a violation of law had occurred. See Whren v. State, 517 U.S. 806, 811, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“[O]nly an undiscerning reader would regard [previously discussed cases] as endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred.”); see also Holland v. State, 696 So.2d 757 (Fla.1997). We agree with the State that the officer had probable cause to stop Williams based on the violation of a pedestrian traffic statute, section 316.130(4), Florida Statutes (2012). See State v. Nichols, 52 So.3d 793, 795 (Fla. 5th DCA 2010) (“[T]he arresting officer had probable cause to stop the defendant to issue him a citation because the officer could have reasonably concluded that the defendant was jaywalking” in violation of section 316.130(12)).

We also find that no competent substantial evidence supports the trial court’s finding that the Advil bottle was not abandoned. One of the officers stated in his deposition that, after the Advil bottle fell from Williams’ pants, Williams stated that the bottle was not his. While it is true that none of the other officers claimed Williams made this statement, none of them were asked about the statement and none claimed Williams did not make the statement. Thus, the officer’s statement was neither “impeached, discredited, or controverted,” nor was it “self-contradicting or physically impossible.” As such, the trial court was bound to accept the officer’s statement. See G.H., 549 So.2d at 1149; Daniel, 665 So.2d at 1044 n. 2.

The State cites numerous cases for the proposition that probable cause is not required when searching abandoned property. See, e.g., Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). While improper acts by law enforcement prior to abandonment may render the abandonment void, see State v. Nittolo, 317 So.2d 748, 749 (Fla.1975), no improper or unlawful act preceded Williams’ abandonment. In determining whether property was abandoned for purposes of search and seizure analyses, “[t]he test ... is whether a defendant voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” State v. Lampley, 817 So.2d 989, 991 (Fla. 4th DCA 2002) (internal quotation and citations omitted). In determining whether a defendant “voluntarily discarded, left behind, or otherwise relinquished his interest,” the primary question concerns the individual’s “intent, to be inferred from the words and actions of the parties and other circumstances surrounding the purported abandonment.” Kelly v. State, 536 So.2d 1113, 1114 (Fla. 1st DCA 1988).

Nothing in the record indicates Williams’ statement denying ownership of the bottle was involuntary, and Williams does not assert such. When Williams stated that the Advil bottle was not his, he ceded his interest in it, and no longer had any reasonable expectation of privacy towards it. Lampley, 817 So.2d at 991. Consequently, the trial court failed to correctly apply the law governing seizure of abandoned property in relation to the Fourth Amendment when it issued the order-devoid of any abandonment analysis-granting Williams’ motion on the grounds of lack of probable cause.

Williams argues, on the authority of Hilton v. State, 961 So.2d 284 (Fla.2007), that the initial stop was improper because he was not creating a safety hazard while walking on the street. The Hilton court held that a traffic stop based on a cracked windshield — resulting in the subsequent discovery of marijuana — was improper because the alleged traffic violation did not create an “unsafe” situation. Id. at 297. We find Hilton distinguishable from the instant case, however, in that the Hilton court’s reliance on the creation of an “unsafe” condition was based on express statutory language. The statute at issue in Hilton allowed officers to stop a vehicle upon reasonable belief that the vehicle was “unsafe or not equipped as required by law, or that its equipment [was] not in proper adjustment or repair.” § 316.610, Fla. Stat. (2001). Based on the statutory language, the Florida Supreme Court determined the only way the stop would have been proper was if the crack rendered the vehicle “unsafe.” See Hilton, 961 So.2d at 295. There is no similar “safety hazard” language in the statute at issue here.

REVERSED and REMANDED.

MARSTILLER and RAY, JJ., concur.

      . Section 316.130(4), Florida Statutes (2012) provides:
      Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the shoulder on the left side of the roadway in relation to the pedestrian’s direction of travel, facing traffic which may approach from the opposite direction.

      . Transcripts of the officers’ depositions were considered during the suppression hearing in lieu of live testimony. As such, the trial court was in no better a position to judge credibility than this court. Raehn v. Raehn, 557 So.2d 152, 155 n. 3 (Fla. 1st DCA 1990) ("When the trier of fact determines witness credibility on the basis of transcribed deposition testimony, a reviewing appellate court is equally able to judge such credibility.”).


author: LEWIS, C.J.

text:
    William H. CHASTAIN and Cleone C. Chastain, Appellants/Cross-Appellees, v. Dewey J. CHASTAIN and Barbara B. Chastain, Appellees/Cross-Appellants.
    No. 1D12-4025.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2013.

      Stephen A. Scott, Gainesville, for Appellants/Cross-Appellees.
    Jack M. Ross and Nicolas B. Harvey of Siegel, Hughes & Ross, Gainesville, for Appellees/Cross-Appellants.
   LEWIS, C.J.

This appeal and cross-appeal challenge the attorney’s fees awarded to the parties following a lawsuit filed by Appellants/Cross-Appellees against Appel-lees/Cross-Appellants. Both sides raise several issues in this proceeding, only three of which merit discussion. For the reasons that follow, we reverse both awards and remand for further proceedings.

Appellant/Cross-Appellee William H. Chastain and Appellee/Cross-Appellant Dewey J. Chastain are brothers who were partners in a farming partnership. The lawsuit at issue included claims for declaratory judgment, a partnership accounting, partition of real and personal property, dissolution of partnership, temporary in-junctive relief, constructive fraud, and fraud. In May 2009, Appellees/Cross-Ap-pellants served a proposal for settlement pursuant to section 768.79, Florida Statutes, upon Appellants/Cross-Appellees. The offer sought to “resolve any and all claims made by [Appellants/Cross-Appel-lees] against [Appellees/Cross-Appellants] ... in both Counts X (constructive fraud and fraud ..."). The total amount of the offer was $5,002. This amount was allocated from each Appellee/Cross-Appellant to Appellant/Cross-Appellee William H. Chastain in the amount of $2,500 and from each Appellee/Cross-Appellant to Appellant/Cross-Appellee Cleone C. Chastain, William’s wife, in the amount of $1. The offer noted that it would be deemed rejected unless accepted within thirty days of service. It further noted, “Pursuant to § 768.79(B) ... this offer is being served upon plaintiffs, WILLIAM H. CHASTAIN and CLEONE C. CHASTAIN, but will not be filed with the Court unless accepted, or unless the filing of the offer is necessary to enforce the provisions contained in § 768.79.” Paragraph 10 provided in part, “Upon the acceptance of this proposal for settlement, the defendants ... agree to pay the plaintiffs the amount of $5,002.00 and in accordance with this Offer of Judgment/Proposal for Settlement in return for the plaintiffs dismissing their claims both Counts X ... with prejudice.... ” Appellants/Cross-Appellees rejected the proposal and sought a trial de novo on the fraud claims after also rejecting a nonbinding arbitration award of $3,600 as to those claims.

In November 2009, the trial court entered an Order of Final Partnership Accounting and Stipulated Order. The trial court dissolved the partnership and ordered, pursuant to the parties’ stipulation, that Appellants/Cross-Appellees would be entitled to a credit of $100,000 for certain of their claims related to the accounting and that Appellees/Cross-Appellants would be entitled to a credit of $47,000 for certain of their offsetting claims, which resulted in a net credit to Appellants/Cross-Appellees of $53,000.

In December 2009, Appellants/Cross-Appellees filed the parties’ Settlement Stipulation with the trial court and moved for attorney’s fees and costs based on the Order of Final Partnership Accounting and Stipulated Order. Pursuant to the parties’ stipulation, Appellants/Cross-Appellees dismissed several of their claims, including the claims for constructive fraud and fraud. In January 2010, Appellees/Cross-Appellants moved for attorney’s fees pursuant to their proposal for settlement which was rejected and section 44.103(6), Florida Statutes, based upon Appellants/Cross-Appellees’ rejection of the nonbinding arbitration award, their election to pursue a trial de novo on the fraud counts, and their failure to achieve seventy-five percent of the arbitrator’s award.

In its Order on Entitlement to Attorney’s Fees, the trial court determined that Appellants/Cross-Appellees were entitled to prevailing party fees on a limited issue pertaining to the partition and accounting claims that was not settled by the parties and that Appellees/Cross-Appellants were entitled to attorney’s fees under sections 768.79 and 44.103. Following an evidentia-ry hearing, the trial court entered an Order on Attorney’s Fees. Therein, it determined that the claims of fraud were so intermingled with the partition and accounting claims that it was practically impossible to categorize and segregate work that was done by the parties to litigate the fraud claims only as opposed to work done solely in furtherance of the partition and accounting claims. The trial court further found that the claims were inextricably intertwined. It determined that Appellants/Cross-Appellees were entitled to recover 56.2% of their reasonable attorney’s fees and costs on the partition and accounting claims, which equated to $125,182.69, and that Appellees/Cross-Ap-pellants were entitled to $125,195.28, their fees and costs reasonably incurred in defending against the fraud claims after their proposal for settlement was rejected. In the Final Judgment Awarding Attorney’s Fees, the trial court ordered that Appel-lees/Cross-Appellants recover $12.59 from Appellants/Cross-Appellees. This appeal and cross-appeal followed.

Appellants/Cross-Appellees argue that the proposal for settlement addressing the fraud claims was invalid because it was not structured in such a way that each Appellant/Cross-Appellee could independently evaluate and act upon it. We review this issue de novo. See Jacksonville Golfair, Inc. v. Grover, 988 So.2d 1225, 1226 (Fla. 1st DCA 2008).

In Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So.3d 646, 648 (Fla.2010), the Florida Supreme Court addressed a proposal for settlement that stated in part, “[Njeither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement.” The supreme court held that the proposal was invalid and reasoned that a proposal that is conditioned on the mutual acceptance of all of the joint offerees is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal. 36 So.3d at 649.

In Schantz v. Sekine, 60 So.3d 444, 445 (Fla. 1st DCA 2011), we noted that while Florida Rule of Civil Procedure 1.442(c)(3) permits joint settlement proposals if they state the amount and terms attributable to each party, the “differentiation rule 1.442 requires is ineffective [under Gorka ] where the settlement offer is conditioned on joint acceptance.” While the language used in the proposal at issue in Schantz was not as direct as the wording of the proposal in Gorka, we found that the language conditioned settlement on the appellants’ mutual acceptance of the offer and joint action in accordance with its terms. 60 So.3d at 446. That language included phrases such as “[pjlaintiffs shall execute a general release,” “[pjlaintiffs shall dismiss this case,” and “[i]f this Proposal ... is not accepted in writing within thirty (30) days of service, it shall be deemed rejected by the Plaintiffs.” Id. Although the proposal in Schantz also apportioned the settlement amount among the parties as did the proposal in the case now before us, we noted that the new rule in Gorka rendered the proposal invalid and “ ‘effectively eliminates the ability to make joint offers.’ ” Id. (citation omitted).

While the proposal in this case did not expressly require joint acceptance by both Appellants/Cross-Appellees as did the proposal in Gorka, the language used was similar to that in the proposal we deemed invalid in Schantz. It is clear from the proposal in this case that there was one offer in the amount of $5,002 and that the offer, which pertained only to the fraud claims, was conditioned on joint acceptance by Appellants/Cross-Appellees. As such, the proposal was invalid, and the attorney’s fee award to Appellees/Cross-Appellants that was based upon rejection of the proposal must be reversed.

Turning to the meritorious issues raised on cross-appeal, we agree with Ap-pellees/Cross-Appellants that the trial court erred in finding that the fraud claims and the partition and accounting claims were inextricably intertwined for purposes of awarding Appellants/Cross-Appellees attorney’s fees. We review the trial court’s determination on this issue de novo. See Shelly L. Hall, M.D., P.A. v. White, 97 So.3d 907, 909 (Fla. 1st DCA 2012). As we have explained, the party seeking fees carries the burden of showing that the issues were so intertwined that allocation for purposes of attorney’s fees is not feasible. Id.

Although Appellants/Cross-Appel-lees may be correct that the partition/accounting and fraud claims involved a common core of facts, a full fee on claims involving a common set of facts may not be awarded if it can be shown that the attorneys spent a separate and distinct amount of time on counts as to which no attorney’s fees were sought or authorized. See River Bridge Corp. v. Am. Somax Ventures, 76 So.3d 986, 990 (Fla. 4th DCA 2011). Our review of Appellants/Cross-Appellees’ attorneys’ time records leads us to conclude that the claims of fraud were not so intermingled with the partition and accounting claims that work performed on the fraud claims could not be distinguished from work performed on the other claims. As Appellees/Cross-Appellants argue on cross-appeal, there were several time entries submitted by Appellants/Cross-Ap-pellees’ attorneys that pertained to work that was performed in furtherance of the fraud claims. Cf. Miller v. Miller, 107 So.3d 430, 433 (Fla. 4th DCA 2012) (noting that claims are intertwined for purposes of attorney’s fees when work for one claim cannot be distinguished from work on other claims). We note also that while the expert witness for Appellants/Cross-Ap-pellees opined that he did not think it was possible to separate the attorneys’ time spent on the fraud claims from time spent on the other claims, there was no evidence that any attempt was made by either the attorneys for Appellants/Cross-Appellees or their expert to do so. See White, 97 So.3d at 908 (reversing an attorney’s fee award, determining that the claims at issue were not inextricably intertwined, and noting that the trial court made no factual findings to support its legal conclusion that the claims were intertwined and that the appellees failed to offer sufficient proof in the form of detailed time records and further elaboration from their expert witness, who admitted that he did not attempt to segregate out the time per claim). Based upon such, the attorney’s fee award to Appellants/Cross-Appellees is reversed.

We also find merit in Appel-lees/Cross-Appellants’ argument that the trial court erred in awarding attorney’s fees on the partnership accounting claim to and against parties who were not partners. It is undisputed that neither Appellant/Cross-Appellee Cleone C. Chastain nor Appellee/Cross-Appellant Barbara B. Chastain was a partner in the partnership at issue. As the Third District has explained, the costs of a suit for a partnership accounting, including the fees of attorneys and experts, are to be paid out of the partnership estate. See Lipsig v. Ramlawi, 760 So.2d 170, 191 (Fla. 3d DCA 2000). If that is insufficient, the costs are to be borne by the partners in proportion to their respective partnership shares unless the trial court chooses to exercise discretion and charges more costs to one or some of the partners. Id. Because the wives were not partners, AppellantyCross-Appellee Cleone C. Chastain was not entitled to an attorney’s fee on the accounting claim, and Appellee/Cross-Appellant Barbara B. Chastain was not responsible for any fees on that claim.

In conclusion, we reverse the Final Judgment Awarding Attorney’s Fees and both attorney’s fee awards. Although the trial court found in its Order on Entitlement to Attorney’s Fees that Appel-lees/Cross-Appellants were also entitled to fees under section 44.103, which is a finding that has not been challenged in this proceeding, the award as set forth in the Order on Attorney’s Fees was based only upon section 768.79. Therefore, on remand, the trial court should determine the amount owed to Appellees/Cross-Appel-lants pursuant to section 44.103. As for Appellants/Cross-Appellees, the trial court may only award fees for the services that them attorneys performed on the partition and accounting claims and not for any work performed on the fraud claims. Any fees ordered to be paid on the accounting claim should be paid by and to the former partners of the dissolved partnership.

REVERSED and REMANDED for further proceedings.

BENTON and MAKAR, JJ., concur.

      . Both claims were labeled as Count X in the amended complaint.

      . See Grover, 988 So.2d at 1227 (noting that neither section 768.79 nor rule 1.442 requires that a settlement proposal cover all claims between all parties involved or that it settle all claims between the parties to the proposal).


text:
    Harvey C. BROOKS III, Appellant, v. Dawn E. WALKER-BROOKS, Appellee.
    No. 1D12-3780.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2013.

      Harvey C. Brooks III, pro se, for Appellant.
    Michael D. Weinstock, Niceville, for Ap-pellee.
   PER CURIAM.

Appellant, Harvey C. Brooks, makes two arguments on appeal. First, that the trial court erred in denying his request to change venue. Second, that the trial court erred in awarding $600 in attorneys’ fees to Michael Weinstock, Appellee’s counsel. Because (i) the trial court held an unnoticed hearing at which only Mr. Weinstock appeared, and (ii) the resulting order did not set forth any specific findings regarding the fee award, we reverse.

As to Appellant’s first issue, “[procedural due process requires both fair notice and a real opportunity to be heard before judgment is entered.” Owens v. Owens, 14 So.3d 1093, 1093 (Fla. 1st DCA 2009). Where a party receives no notice, it has been deprived of due process and the underlying order must be reversed. Owens v. Owens, 14 So.3d 1093, 1093-94 (Fla. 1st DCA 2009); see also Loudermilk v. Loudermilk, 693 So.2d 666, 668 (Fla. 2d DCA 1997) (“Failure to give notice of a hearing to the opposing party absent a true emergency deprives the opposing party of its right to procedural due process.”).

In this case, the trial court clearly held a hearing, attended by only Appellee’s counsel; this is evidenced throughout the final order. Yet, as Appellant argues, nothing in the record or court docket report evinces Appellant was notified of this hearing. In fact, nothing in the record or court docket report, other than the trial court’s disclosure in its order, evinces a hearing was held. Appellee, after warning from this Court, has failed to file an answer brief to refute or explain these facts or contest that a due process violation occurred. Thus, on the record before us, we reverse the trial court’s denial and remand for further proceedings.

As to the attorneys’ fees issue, an award of attorneys’ fees must “set forth specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors.” Ingram v. Ingram, 59 So.3d 147, 148 (Fla. 1st DCA 2011) (quoting Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985)); see also Giltex Corp. v. Diehl, 583 So.2d 734, 735 (Fla. 1st DCA 1991).

Here, the order does not state a reasonable hourly rate or the number of hours Appellee’s counsel expended. The order also does not contain any findings that Appellant has the means to pay the award or that Appellee cannot do so herself. Moreover, there is no transcript or other support in the record with which to sustain the trial court’s award of $600. Simply, neither the trial court’s order nor the record contains a scintilla of evidence to support the conclusory sum granted to Appellee’s counsel. The award of attorneys’ fees must therefore be reversed.

Accordingly, we REVERSE the order on appeal and REMAND to the trial court for further proceedings.

BENTON, THOMAS, and CLARK, JJ., concur.

      . We make no suggestion as to the propriety of Appellant’s motion for change of venue. The merits of his motion are immaterial to the question of whether the court afforded him due process.


text:
    Travis P. BEVERLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2625.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2013.
    Travis P. Beverly, .pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as moot. See Ward v. State, 770 So.2d 206 (Fla. 1st DCA 2000) (dismissing a petition for writ of mandamus as moot where the trial court had ruled on the pleading pending below).

WOLF, CLARK, and RAY, JJ., concur.


text:
    Curtis David BOBO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2486.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2013.
    Curtis David Bobo, pro se, 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 October 15, 2012, order denying defendant’s motion for postconviction relief in Duval County Circuit Court case number 16-1989-CF-006943-AXXX-MA. 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).

WOLF, CLARK, and RAY, JJ., concur.


text:
    Roosevelt PARKS, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-2485.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2013.
    Roosevelt Parks, pro se, Petitioner.
    Jennifer Parker, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as moot. See Ward v. State, 770 So.2d 206 (Fla. 1st DCA 2000) (dismissing a petition for writ of mandamus as moot where the trial court had ruled on the pleading pending below).

WOLF, CLARK, and RAY, JJ„ concur.


text:
    David Edward SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1740.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2013.
    David Edward Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the May 29, 2012, judgment and sentence in Okaloosa County Circuit Court case number 2001-CF-001807. 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.

WOLF, CLARK, and RAY, JJ„ concur.