text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Melanie MANZO-PIANELLI, Alana Proctor and United Service Automobile Association a/k/a USAA, Appellees.
    No. 4D13-4320.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2014.
    Rehearing Denied Jan. 9, 2015.

      Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for appellant.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Matthew D. Hellman of Matt Heilman, P.A., Plantation, for appellee Melanie Manzo-Pianelli.
    Charles M-P George of the Law Offices of Charles M-P George, Coral Gables, and Christopher Wadsworth and Daniel L. Margrey of Wadsworth Huott, LLP, Miami, for appellee USAA.
   PER CURIAM.

Allstate appeals an order, entered after summary judgment, determining that a permissive user of a motor vehicle was covered under an umbrella policy issued by Allstate. We reverse, as an issue of material fact remains regarding whether the insured could be “legally obligated” to pay damages, which is necessary for there to be coverage for the permissive user under the policy.

In August 2007, Alana Proctor, the permissive driver of a vehicle owned by Neil Seiden, was involved in an automobile accident with Melanie Manzo-Pianelli. Seiden had an insurance policy with State Farm that provided $100,000 in coverage and an umbrella policy with Allstate that provided $1,000,000 in coverage. State Farm tendered its policy limits to Manzo-Pianelli, and Manzo-Pianelli executed a partial release in favor of Seiden. Manzo-Pianelli sought to recover against Allstate, but Allstate sent a letter denying coverage.

In October 2009, Manzo-Pianelli filed a complaint against her insurer, USAA, for underinsured motorist benefits. USAA filed a third party complaint against Allstate, Manzo-Pianelli, and Proctor, seeking a determination as to the “priority of coverage.” In July 2012, Manzo-Pianelli amended her complaint to add a cause of action against Proctor. Seiden was never named as a defendant by any of the parties.

The parties filed cross-motions for summary'judgment and memoranda of law in support of their respective motions. Man-zo-Pianelli argued there was coverage under the following provision:

Excess Liability Insurance Coverage XL
Allstate will pay damages which an insured person becomes legally obligated to pay because of personal injury, bodily injury or property damage, subject to the terms, conditions and limits of this policy.. Personal injury, bodily injury and property damage must arise from a covered occurrence. ...
Losses We Cover Under Coverage XL
We will cover an occurrence arising only out of:
1. Personal activities of an insured person, including the permissive use of a land motor vehicle or watercraft owned by an insured person
The policy defined an “insured person” as follows:
a) you, and any other person who is named on the Policy Declarations;
b) any person related to you by blood, marriage, or adoption who is a resident of your household; or
c) any dependent person in your care, if that person is a resident of your household
but persons defined in 6. b) and 6. c) are not insured persons for any liability arising out of their ownership, maintenance or use of any motor vehicle or any watercraft.

The policy listed Seiden as the named insured. It was undisputed that Proctor was not a resident relative of Seiden.

Allstate argued that Proctor, a permissive user, was not afforded coverage under the policy, which limited coverage to “damages which an insured person becomes legally obligated to pay.” Because Seiden, the insured person, was not named as a defendant, he could never be “legally obligated” to pay damages since the statute of limitations had run.

After a hearing, the trial court entered an order granting summary judgment in favor of Manzo-Pianelli. The court found 'that Proctor was an omnibus insured and that her actions were covered under the policy as a permissive user. Alternatively, Proctor’s actions were covered because any negligence on her part would be imputed to Seiden under the vicarious liability and dangerous instrumentality doctrines. The court found it irrelevant that Seiden was not joined as a party, as the issue presented to the court involved only construing the Allstate policy.

“Our review of an order granting summary judgment is de novo, as is the interpretation of an insurance contract and the determination of whether the law requires the insurer to provide coverage.” Valero v. Fla. Ins.. Guar. Ass’n, 59 So.3d 1166, 1167-68 (Fla. 4th DCA 2011) (citation omitted). Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c).

We find the trial court erred in granting summary judgment, as there is a disputed issue of material fact regarding whether Seiden is — or can ever be — “legally obligated” to pay Proctor’s claim. The umbrella policy limits coverage to “damages which an insured person becomes legally obligated to pay .... ” The trial court never determined Seiden’s legal obligation. Issues relevant to this determination include whether the statute of limitations to sue Seiden has run, the applicability of the relation-back doctrine if Seiden were added as a defendant, whether Allstate misrepresented coverage in its letter to Proctor, and whether tolling applies. During oral argument, the appellees claimed there is the potential that Seiden could still be held liable. Also during oral argument, Allstate admitted that if Seiden had been named as a defendant, Allstate would have had a legal obligation to pay the claim. If no action may be maintained against Seiden, it follows then that there would be no liability or coverage under the umbrella policy for the permissive user. Peoples v. Fla. Ins. Guar. Ass’n, 313 So.2d 40 (Fla. 2d DCA 1975).

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

STEVENSON, MAY and LEVINE, JJ., concur.


source: Caselaw Access Project

author: WELLS, Judge. SALTER, J.

license: Public Domain

text:
    CHARTER SCHOOLS USA, INC., et al., Appellants, v. JOHN DOE NO. 93, etc., et al., Appellees.
    No. 3D14-1452.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2014.
    Rehearing Denied Dec. 30, 2014.

      Carlton Fields Jorden Burt, Peter D. Webster and Christine Davis Graves, Tallahassee, for appellants.
    Jeff Herman, Stuart S. Mermelstein, Maureen Connor and Arick W. Fudali, Boca Raton, for appellees.
    Before WELLS, SALTER and FERNANDEZ, JJ.
   WELLS, Judge.

Charter Schools USA, Inc., The Downtown Charter School, Inc., Charter Schools USA at Downtown Miami, L.C. (collectively Charter Schools) appeal from an order denying their motion to dissolve writs of garnishment and to enforce supersedeas bond. We find no error in the order on appeal and affirm.

This action was commenced on behalf of a minor child who claimed to have been sexually abused by another student while attending a Charter School. In April of 2014, a jury awarded $5,250,000 to the child and on April 23 a final judgment was entered in the child’s favor. The judgment was recorded in the public records of Miami-Dade County, Florida on April 25.

On April 30, 2014, Charter Schools filed a timely Florida Rule of Civil Procedure I.530 motion for judgment notwithstanding verdict or in the alternative for a new trial or, remittitur. These motions were heard and denied on June 9 with the trial court signing an order that day. The following day, the minor child filed motions for issuance of writs of garnishment and writs of garnishment were issued on June 10 and II.

On June 13, four days after the order denying Charter Schools’ post-judgment motions was signed, the order was docketed by the Clerk of the Circuit Court. That same day, Charter Schools filed a notice of appeal from the final judgment and posted a supersedeas bond. Upon learning that its bank accounts had been garnished, Charter Schools filed an emergency motion to dissolve the writs of garnishment and to enforce the supersedeas bond which it had posted. That motion was denied.

Charter Schools appeals from the order denying its motion to dissolve the writs and to enforce its supersedeas bond, claiming that it “would be inequitable, and create chaos in Florida’s legal system” to allow a party to execute on a judgment before a signed copy of it is docketed by the clerk of the court — that is, before it is “rendered.” Because nothing in the rules of procedure or the law expressly precludes execution on a judgment before “rendition” and because the instant litigants could have sought a short stay until the order at issue was rendered but failed to do so, we disagree with the school’s position.

Florida Rule of Civil Procedure 1.550 expressly provides that a judgment is subject to execution at any time during its life. Only two exceptions to this general rule are recognized. First, a party may not execute on a judgment until it has been recorded in the public records. Second, a party may not execute on a judgment within the time accorded by Rule 1.530 for serving motions for new trial or rehearing, and if timely served until such motion has been “determined”:

Rule 1.550. Executions and Final Process
(a) Issuance. Executions on judgments shall issue during the life of the judgment on the oral request of the party entitled to it or the party’s attorney without praecipe. No execution or other final process shall issue until the judgment on which it is based has been recorded nor within the time for serving a motion for new trial or rehearing, and if a motion for new trial or rehearing is timely served, until it is determined; provided execution or other final process may be issued on special order of the court at any time after judgment.

As this rule clearly states, execution is stayed pending a timely motion for new trial/rehearing but only until that motion is determined. And while the term “determined” as used in this rule is not defined in the rules of procedure, either civil or appellate, it is equally clear that the rule does not provide that execution is stayed until an order on such motions has been “rendered,” as defined in Florida Rule of Appellate Procedure 9.020(i). See Fla. R. App. 9.020(i) (providing that an order is rendered when filed with the clerk of the lower tribunal).

There is, of course, nothing inequitable or unfair about this. Neither of these rules preclude the filing of a supersedeas bond after an order is signed but before it has been filed with the lower court clerk (rendered). Indeed, Rule 9.310 governing stays pending appellate review imposes no such prohibition:

Rule 9.310. Stay Pending Review
(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending re- ■ view shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.
(b)Exceptions.
(1) Money Judgments. If the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest....

While it is, true that motions for new trial/rehearing are deemed abandoned when a notice of appeal is filed either before such motions are asserted or before an order thereon is filed with the lower court clerk (that is, rendered), nothing in the rules precludes a party from moving, either orally or in writing, in the court below for a stay of execution for a short time so that an order denying a motion for new trial/rehearing may be “rendered.” See Campbell v. Jones, 648 So.2d 208, 209 n. 1 (Fla. 3d DCA 1994) (“We note that Fla. R. Civ. P. 1.550(b) has been described as a vehicle for protecting a judgment debtor ‘briefly while he perfects his appeal and obtains supersedeas. Barnett v. Barnett Bank of Jacksonville, N.A., 338 So.2d 888, 889 (Fla. 1st DCA 1976) (emphasis added). See also Chapman v. Rose, 295 So.2d 667 (Fla. 2d DCA 1974) (temporary stay of execution on money judgment would have been appropriate under Fla. R. Civ. P. 1.550(b) for four days while appeal filed and supersedeas obtained).”). That was not done in this case and for this reason alone we find no basis for reversal.

We also find no basis for holding otherwise in the 1967 Authors’ Comments to Rule 1.550 which states “[i]n connection with this rule, consideration should be given to F.S.A. Ch. 55, which deals at length with judgments and executions.” See Authors’ Comments, West’s Florida Statutes Annotated, Rule 1.550, Florida Rules of Civil Procedure (1967). Chapter 55 uses the term “rendition” only twice, once in section 55.04 which deals with the interest rate to be assessed on judgments rendered on government bonds and sheds no light whatsoever on when a judgment creditor may execute on a signed order or judgment; see § 55.04 Fla. Stat. (2014), and then in section 55.07 which states that when an order or judgment has been rendered by virtue of docketing in the circuit court, the validity of any proceedings on that order or judgment cannot be collaterally attacked even if the order or judgment has not been recorded in the official public records:

55.07 Judgments; effect of failure to record.

The failure to record any order, judgment or decree shall not affect the validity of any proceedings had thereon when collaterally attacked; provided, rendition of such order, judgment or decree is shown by the progress docket in the cause....

§ 55.07, Fla. Stat. (2014). Neither reference is enlightening here.

More to the point, however, is the Florida Supreme Court’s use of the term “rendition” when amending the rule for executions on judgments in the circuit and county courts. See Fla. R. Civ. P. 1.550; FI. Sm. Cl. R. 7.200. On the very same day, June 19, 1968, the Florida Supreme Court amended Rules 1.550 and 7.200 so they similarly provided that no execution shall issue “until the judgment on which it is based has been recorded,” or, where a motion for new trial had been timely served, “until [the motion] is determined.” See In re Fla. Summary Claims Procedure Rules, 211 So.2d 553, 553 (Fla.1968); In re Fla. Rules of Civil Procedure, 211 So.2d 206, 208 (Fla.1968).

With minor revisions not relevant here, Rule 1.550 has remained the same to this day with respect to “recordation” of the judgment and “determination” of a motion for new trial. However, in 1972, the Florida Supreme Court amended Rule 7.200 to provide, as it now does, that no execution on county court judgments shall be issued until the judgment is rendered:

... No execution or other final process shall issue until the judgment on which it is based has been rendered nor within the time for serving a motion for new trial and if a motion for new trial is timely served, until it is determined....

In re Rules of Summary Procedure, 270 So.2d 729, 735-36 (Fla.1972). This amendment clearly demonstrates that the Florida Supreme Court understood and intended that there be a difference between what is “recorded,” what is “rendered” and what is “determined.” We therefore cannot agree with the dissent’s supposition that “determined” in the context of Rule 1.550 “is functionally equivalent to the term ‘rendered’ in Florida Rule of Appellate Procedure 9.020(i).”

Finally, and possibly most significantly, the use of the term “determined” as “having reached a decision,” is the best way to protect the party in whose favor a judgment has been entered. That is, it allows that party to execute on his judgment until his rights have been otherwise secured— i.e. a bond has been posted. See Pabian v. Pabian, 469 So.2d 189, 191 (Fla. 4th DCA 1985)(“[T]he guiding principle in setting a supersedeas bond is to protect the party in whose favor judgment was entered by assuring its payment in the event the judgment is affirmed on appeal.”). Thus, as one source advises “a party who intends to stay a judgment by posting a bond should arrange to have a bond in place at the time the trial court rules on the post-trial motions.” Raymond T. (Tom) Elligett & John M. Scheb, Appellate Stays And Bonds, 75 FL B.J. 33 (2001). That was not done in this ease.

In sum, we find no problem in concluding “determined” means the point in time when the trial judge, in this case signed an order ruling on the school’s post-trial motions. We affirm the order denying Charter School’s motion to dissolve writs of garnishment and to enforce supersedeas bond. In light of the funds frozen, the trial court may consider a motion to reduce the amount of the supersedeas bond, should Charter School seek such relief. See Freedom Insurors, Inc. v. M.D. Moody & Sons, Inc., 869 So.2d 1288, 1285 (Fla. 4th DCA 2004).

FERNANDEZ, J., CONCURS.

SALTER, J.

dissenting.

I respectfully dissent. The issue in this appeal, apparently one of first impression in Florida, is whether the word “determined” in Florida Rule of Civil Procedure 1.550(a) (the rule governing executions and final process) means the point at which a trial judge signs an order denying a timely and authorized motion for new trial or rehearing, or the later point at which the order is “rendered” as defined in Florida Rule of Appellate Procedure 9.020(i). The answer to the question is significant, because it controls whether a judgment creditor may commence execution during the time between those two events — a time window during which the judgment debtor cannot commence its appeal and obtain the automatic stay available under Florida Rule of Appellate Procedure 9.310(b)(1) without abandoning the post-trial motions.

Construing the pertinent rules in pari materia and in conformance with (a) the author’s comment to Rule 1.550, (b) the statutory provisions regarding execution on final judgments, and (c) the Supreme Court of Florida’s form of civil supersede-as bond approved for use to obtain an automatic stay of execution on a money judgment pending appeal, the appellees’ otherwise-successful garnishment (freezing over $2,000,000.00 of the appellants’ two bank accounts) was premature. The record before us also demonstrates that counsel for the appellees failed to e-mail copies of the motions for issuance of the writs of garnishment as required by the applicable rules. I would therefore reverse the order denying the appellants’ motion to dissolve the writ.

I. Facts and Procedural Background

The majority opinion accurately recounts the facts and proceedings in the underlying case to the point of verdict and judgment. I am in agreement with the majority that Charter Schools filed the timely motions to amend the final judgment and for judgment notwithstanding the verdict (or, alternatively, for new trial or remittitur) on April 30, 2014, thereby precluding execution under Florida Rule of Civil Procedure 1.550(a) until those motions were “determined” by the trial court. The motions were heard on June 9, 2014. The trial judge verbally denied the motions and signed an order to that effect at the conclusion of the hearing. The order was not filed with the circuit court clerk’s office until the morning of June 13, 2014. Hours later that same day, the schools filed and served their notice of appeal and an original supersedeas bond in the form and amount required to stay the money judgment. There is no disagreement on the events through this point.

The chronology of the post judgment garnishments includes some additional facts, however, that should not be overlooked. In the interim between the signing of the order denying post-trial motions and the filing/”rendition” of that order, the plaintiff/appellees’ counsel obtained writs of garnishment directed to Charter Schools’ banks (on June 10 and 11, 2014), without notice to the schools’ counsel. The writs were served immediately, and Charter Schools’ accounts were frozen before Charter Schools’ notice of appeal and supersedeas bond could be filed without “abandoning” the post-trial motions under Fla. R. App. P. 9.020(i)(3).

Charter Schools’ emergency motion to enforce supersedeas and to dissolve the writs of garnishment was heard by the trial court on June 13 and 14, 2014, and denied on June 14, 2014. The trial court stayed further proceedings on the writs of garnishment pending this appeal, but the funds frozen by the banks, $2,017,000.00, remain frozen and unavailable to Charter Schools, while the full amount of the su-persedeas bond ($5,748,750) also remains in place.

II. Analysis

Our review of the provisions of the pertinent rules of procedure is de novo. Strax Rejuvenation & Aesthetics Inst., Inc. v. Shield, 49 So.3d 741, 742 (Fla.2010). Strax Rejuvenation also provides a guide for our construction of the pertinent rules:

Specifically as to construction of the Court’s procedural rules, we have previously explained that “[t]he general guide to construction of the procedural rules is set forth in Florida Rule of Civil Procedure 1.010, which states that the rules ‘shall be construed to secure the just, speedy, and inexpensive determination of every action.’ ” Barco v. School Bd. Of Pinellas County, 975 So.2d 1116, 1123 (Fla.2008) (quoting Fla. R. Civ. P. 1.010); see also Singletary v. State, 322 So.2d 551, 555 (Fla.1975) (“Procedural rules should be given a construction calculated to further justice, not to frustrate it.”).

Strax Rejuvenation, 49 So.3d at 742-43.

A. “Determined

My colleagues maintain that the plain meaning of “determined,” for purposes of the post-trial motions and Rule 1.550(a), is “having reached a decision,” and that the drafters could easily have used (or could now amend the rule to use) “rendered” if that was what they meant. Charter Schools contend, and I agree, that “determined” is ambiguous in the sense that it is unclear whether it refers to a trial court’s oral pronouncement, its signature on an order, or the filing of that order.

The term should be read in conjunction with the rules establishing the point at which a final judgment subject to authorized post-trial motions is “final” for purposes of (a) commencing an appeal without “abandoning” post-trial motions and (b) obtaining the automatic stay pending appeal by posting a supersedeas bond. Charter Schools point out that on the very day the order denying their post-trial motions was filed — establishing the date the final judgment was “rendered” and thus subject to appeal under Rule 9.020(i)— they filed their notice of appeal and a supersedeas bond for $5,748,750.00. The bond was in the form prescribed by the Supreme Court of Florida. The amount of the bond was sufficient to cover the final judgment and two years of interest, the amount specified by Rule 9.310(b)(1) for an automatic stay of execution pending the appeal.

The rules of civil procedure and appellate procedure both establish “finality” as a prerequisite for execution on a judgment and for an appeal from a judgment. “Execution is only permitted on judgments which determine with finality the rights and liabilities of parties.” Nichols v. Michael D. Eicholtz Enters., 706 So.2d 70, 70 (Fla. 5th DCA 1998) (citing Shakarian v. Daum, 561 So.2d 1222 (Fla. 2d DCA 1990)). Florida courts are now less concerned with the' caption on the judgment or the incantation “for which let execution issue” than with an assessment of whether all judicial labor is complete (with exceptions and a retention of jurisdiction for attorney’s fees, costs, and prejudgment interest). Westgate Miami Beach, Ltd. v. Newport Operating Corp., 55 So.3d 567 (Fla.2010).

In considering “finality” for purposes of appealability, a bright line is critical because it is an essential aspect of computing the time to appeal and establishing a reviewing court’s jurisdiction. Moreover, an appeal initiated before an authorized post-trial motion has been “rendered,” i.e., filed with the clerk rather than merely signed, is deemed to “abandon” that post-trial motion. Fla. R.App. P. 9.020(i)(3), supra, note 1.

In considering “finality” for purposes of execution on a judgment, the Supreme Court of Florida rectified a “procedural quandary” similar to the one presented here. That quandary arose when a trial court entered a final judgment that reserved jurisdiction to award prejudgment interest. Westgate Miami Beach, Ltd., 55 So.3d at 575 n. 7. Before the decision in Westgate Miami Beach, Ltd., a final judgment which expressly reserved jurisdiction for an award of prejudgment interest, but otherwise authorized the issuance of execution, was appealable. McGurn v. Scott, 596 So.2d 1042 (Fla.1992). McGum held, however, that “once an appeal is taken, the trial court then lacks jurisdiction to rule on the issue of prejudgment interest and plaintiff will be deemed to have waived the matter of prejudgment interest.” Westgate Miami Beach, Ltd., 55 So.3d at 570 (citing McGurn, 596 So.2d at 1045).

The Supreme Court in Westgate Miami Beach, Ltd. receded from McGum in part (by treating the reservation to award prejudgment interest in the same manner as a reservation of jurisdiction to award attorney’s fees and costs), expressing an intention “to promote judicial economy and prevent unfairness to either party.” Westgate Miami Beach, Ltd., 55 So.3d at 570. In its footnote 7, the Court specifically addressed the problem confronted by the schools in the present case:

Because the final judgment will still be considered final for purposes of appeal, this avoids the procedural quandary by allowing the defendant to appeal a final judgment that appears final on its face and authorizes execution on the defendant’s assets, while enabling the defendant to take steps to prevent execution by posting a supersedeas bond.

Id. at 575, n. 7.

To construe Rule 1.550(a)’s use of the word “determined” as an event that can occur days before the final judgment in question is “rendered” (and can only then be appealed without abandoning the very post-trial motions that stay execution under Rule 1.550(a) during their pendency) is to put the horse before the cart and unfairly prejudice the judgment debtor. The approved form for the supersedeas bond that puts an automatic stop to execution on a money judgment, Florida Rule of Appellate Procedure 9.900(i), recites that the judgment debtor (“principal”) “has entered an appeal” to the reviewing court in the case. Counsel for the appellees argues that the bond can be filed in advance of the filing of a notice of appeal, but the Supreme Court’s approved form does not contemplate such an occurrence.

The “Author’s Comment — 1967” to Rule 1.550 states: “In connection with this rule, consideration should be given to F.S.A. Ch. 55, which deals at length with judgments and executions.” Chapter 55, Florida Statutes (2013), in turn provides two clues regarding the “determined” versus “rendered” question before us. Section 55.04, relating to judgments enforcing municipal bond obligations, uses the term “rendered” to refer to . the judgment or decree. Section 55.07, addressing a judgment creditor’s failure to record an order, judgment, or decree, excuses that omission so long as “rendition of such order, judgment or decree is shown by the progress docket in the cause.” There is no suggestion in Chapter 55 that execution may be commenced on a judgment that has not been “rendered” for purposes of appeal.

Judicial economy and fairness are both promoted by aligning the right to execute and the right to appeal (and post an appeal bond) under these circumstances. To allow a race to execute and garnish after an order denying the authorized post-trial motions has been orally pronounced or signed, but before the order has been filed with the clerk and “rendered,” would result in a flurry of writs and emergency motions better avoided by a bright-line rule. As noted earlier in the excerpts from Strax Rejuvenation & Aesthetics Institute, Inc., and Rule 1.010, Charter Schools’ proposed construction of “determined” is better calculated to “secure the just, speedy, and inexpensive determination” of the execution-appeal bond quandary. I would reverse the order below and direct the trial court to vacate the writs of garnishment. The plaintiffs/appellees are fully protected by the existing surety bond in the prescribed form.

B. Failure to Serve Motions; Lack of Notice

There is a troublesome aspect to this particular case. Counsel for the appellees would have galvanized Charter Schools into action — to hasten the filing of the appeal bond, or to oppose the issuance of the writs of garnishment, or to seek an emergency stay of short duration to finalize the bond — if they had properly served their “motions for garnishment after judgment” on counsel for Charter Schools. Section 77.03, Florida Statutes (2013), “Issuance of writ after judgment,” requires that a motion for such a writ “shall” be filed, and the motions in fact were filed (but not served) in the underlying case on June 10 and 11, 2014, days before the order denying Charter Schools’ post-trial motions was filed and the final judgment thereby “rendered.”

Florida Rule of Civil Procedure 1.080, “Service and Filing of Pleadings, Orders, and Documents,” requires that “every” pleading, order and other document after the initial complaint or petition “must be served in conformity with the requirements of Florida Rule of Judicial Administration 2.516.” Rule 2.516, in turn, required counsel for the appellees to e-mail copies of the motions to opposing counsel (unless excused from doing so by the court, which they were not). Although the appellees’ counsel had been regularly complying with this rule for other papers and pleadings, they did not e-mail their motions for garnishment after judgment to opposing counsel on June 10 and 11, 2014.

Whether the appellees’ counsel’s failure to e-mail the motions for garnishment after judgment to the schools’ counsel was through an oversight or was intentional, the failure to give notice of an action with such drastic consequences (freezing Charter Schools’ operating accounts without notice), and the failure to comply with the rules of procedure, constitutes a further basis for reversal in the present case. Notice is not merely an indispensable aspect of due process, it is the hallmark of professionalism. “Post-trial by ambush” is no more acceptable than trial by ambush.

III. Conclusion

Lawrence Peter “Yogi” Berra said, among so many other things, “It ain’t over ‘til it’s over.” That’s the way it should work with authorized post-trial motions. A verbal ruling at a hearing can change after a judge reflects further on an argument. An order that has been signed can be held by a judge to permit such reflection. My colleagues may consider those possibilities so remote as to warrant disregarding them, but I do not. In the demarcation line between trial practice and appellate practice, “determined” or “over” surely must mean “filed with the clerk,” rather than “spoken” or “signed but not filed.”

In the present case, I would also reverse because counsel for the appellees should have served opposing counsel, by e-mail, with their motions for the issuance of writs of garnishment, but did not.

For each of these reasons, I respectfully dissent. I would reverse the order denying the schools’ motion to quash the writs of garnishment (allowing the immediate access of Charter Schools to their frozen accounts), and I would leave in full force and effect the supersedeas bond and resultant stay pending Charter Schools’ appeal on the merits.

      . See C & S Plumbing, Inc. v. Live Supply, Inc., 397 So.2d 998, 999 (Fla. 4th DCA 1981) ("A writ of garnishment is one form of final process to enforce a judgment solely for the payment of money. See Fla.R.Civ.P. 1.570(a).”).

      . A party is "entitled to rely on the Rules as they read.” Nolan v. Eshleman, 183 So.2d 205, 207 (Fla.1966). "Court rules are construed under the same principles of construction that apply to statutes. Syndicate Properties, Inc. v. Hotel Floridian Co., 94 Fla. 899, 114 So. 441 (1927); Rowe v. State, 394 So.2d’ 1059 (Fla. 1st DCA 1981). One of the fundamental rules of construction dictates that when the language under review is unambiguous and conveys a clear meaning, it must be given its plain and ordinary meaning. In re McCollam, 612 So.2d 572, 573 (Fla.1993); Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)." Castillo v. Vlaminck de Castillo, 771 So.2d 609, 610-11 (Fla. 3d DCA 2000). See GarCon Development, Inc. v. State, Dept. of Environmental Regulation, 468 So.2d 413, 415 (Fla. 1st DCA 1985) ("In interpreting rales or statutes, words should be given their plain and ordinary meaning. Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980).”).

      . See generally Elliot H. Scherker, Julissa Rodriguez, Rachel A. Canfield, Stephanie L. Varela, Jay A. Yagoda, & Nancy Wear, Stays, in Florida Appellate Practice, § 17-4 (Fla. Bar CLE 9th ed. 2014) ("Rule 1.550 should be invoked in cases in which there is a legitimate threat of immediate execution. The motion should request that execution be stayed for a brief period so that the appellant can file a notice of appeal and obtain a stay. Filing this motion may prevent the clerk from issuing execution without a court order. It is clear, however, that a Rule 1.550(b) motion cannot be used as a substitute for a stay pending appeal. A trial court cannot enter an order delaying execution during the entire pendency of appeal, because doing so would circumvent the requirements of the rules. Campbell; Barnett v. Barnett Bank of Jacksonville, N.A., 338 So.2d 888 (Fla. 1st DCA 1976); see also Mellon United National Bank v. Cochran, 776 So.2d 964 (Fla. 3d DCA 2000). Rather, the purpose of a Rule 1.550(b) motion is simply to give the appellant time to obtain a stay or post a bond, or do both, without suffering execution in the interim. See Greenbriar Condominium Ass’n, Inc. v. Padgett, 583 So.2d 1100 (Fla. 4th DCA 1991).”).

      . See Merriam-Webster: An Encyclopdia Britannica Company, http://www.merriam-webster.com/dictionary/determined (last visited Sept. 12, 2014).

      . It is worth remembering that if the appellant does not stay a monetary judgment, and the appellee/judgment creditor executes on the judgment during the appeal, and the judgment is ultimately reversed, the appellant is entitled to have its property restored to it by the appellee. While it is true “the appellant who does not post a bond runs the risk that at the time of reversal the appellee may no longer have the money and may be judgment proof,” but this is the price paid for not securing a bond. Appellate Stays And Bonds, 75 FL BJ. at 33.

      . The dissent observes:
      [t]he trial court stayed further proceedings on the writs of garnishment pending this appeal, but the funds frozen by the banks, $2,017,000.00, remain frozen and unavailable to the schools, while the full amount of the supersedeas bond ($5,748,750) also remains in place.
      However any perceived injustice by this circumstance could be remedied as was done in Freedom Insurors, 869 So.2d at 1285, where the Fourth District approved the trial court’s action in reducing the supersedeas bond amount by the amount already held as a result of the previously instituted garnishment proceeding:
      Given the supreme court’s characterization of the effect of a supersedeas, the proper remedy in this case was to stay the garnishment proceeding once the superse-deas went into effect on June 13. See Fla. Steel Corp. v. A.G. Spanos Enters., Inc., 332 So.2d 663, 664-65 (Fla. 2d DCA 1976) (holding that where judgment has been superseded pending appeal, a garnishment proceeding directed at that judgment should be stayed, and not dissolved); see also GEICO Fin. Servs. v. Kramer, 575 So.2d 1345, 1347 (Fla. 4th DCA 1991) (following Fla. Steel); Richard’s Paint Mfg., Co. v. Onyx Paints, Inc., 394 So.2d 1064, 1066 (Fla. 4th DCA 1981) (same). This is what the circuit court did; the court accommodated Freedom by reducing the amount of the bond by the amount held in the garnishment.

        See 3 Fla. Jur. 2d Appellate Review § 168 (2014) ("A judgment debtor 'posts’ a superse-deas bond, for purposes of an automatic stay pending appeal, on the date the bond is filed with the clerk of court rather than the date the debtor obtains the bond, and thus a writ of garnishment obtained by a judgment creditor after the bond is obtained but before it is filed is properly stayed but not dissolved. The automatic stay is not effective until the bond is posted.”).

      . Rule 9.020 provides:
      (i)Rendition (of an Order). An order is rendered when a signed, written order is filed with the clerk of the lower tribunal. However, unless another applicable rule of procedure specifically provides to the contrary, if a final order has been entered and there has been filed in the lower tribunal an authorized and timely motion for new trial, for rehearing, for certification, to alter or amend, for judgment in accordance with prior motion for directed verdict ... the following exceptions apply:
      (1) If such a motion or motions have been filed, the final order shall not be deemed rendered with respect to any claim between the movant and any party against whom relief is sought by the motion or motions until the filing of a signed, written order disposing of all such motions between such parties.
      (2) If such a motion or motions have been filed, a signed, written order granting a new trial shall be deemed rendered when filed with the clerk, notwithstanding that other such motions may remain pending at the time.
      Footnote 1 cont.
      (3) If such a motion or motions have been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the.time shall be deemed abandoned, and the final order shall be deemed rendered by the filing of the notice of appeal as to all claims between parties who then have no such motions pending between them.

      . As my colleagues did in the majority opinion, I use the term "Charter Schools” to refer collectively to all three appellants.

      . The schools’' appeal from the final judgment is Case No. 3D14-1479. The cases have not been consolidated.

      .The majority obtained this meaning from Merriam-Webster: An Encyclopedia Britta-nica Company, http://www.merriam-webster. com/dictionary/ determined. That definition refers to the adjective, "determined,” as in "firmly resolved,” or "I am determined to be a pilot.” The first definition of the verb "determine,” pertinent here, is "to fix conclusively or authoritatively." Id. (emphasis supplied; last visited Sept. 16, 2014). That definition of the verb is also the meaning ascribed by Webster’s Third New International Dictionary 616 (1986 ed., unabridged).

      . Fla. R. App. P. 9.900(i).

      . See GEICO Fin. Servs., Inc. v. Kramer, 575 So.2d 1345 (Fla. 4th DCA 1991).

      . The Second District Court of Appeal has recently granted certiorari to quash an order allowing execution "prior to rendition of a truly appealable final judgment in the case.” East Ave., LLC v. Insignia Bank, 136 So.3d 659, 665 (Fla. 2d DCA 2014). That carefully reasoned opinion observes, "Permitting execution prior to completion of the litigation before the trial court has long been characterized as improper by the appellate courts.” Id. I agree.

      . A motion for the issuance of a writ of garnishment "after the validity of the debt has been adjudicated” does not entitle the judgment debtor to "notice and a hearing” before the writ is issued. First Union Nat. Bank of Fla. v. Knyal, 874 So.2d 716, 717 (Fla. 4th DCA 2004). Nonetheless, the applicable statute requires that the motion be filed, and the rules of procedure required that it be served.

      . Before the pertinent rules on e-mail were added, it was permissible for an attorney for a judgment.creditor to file a motion for garnishment, obtain the writ, and serve the motion by regular mail, thus allowing two or more days to serve the writ on a bank before a judgment debtor "woke up.” The element of surprise, permissible years ago but no longer, reduced the possibility that the judgment debtor would change banks or clear out an account.

      . See Section C, "Service of Papers,” of the Guidelines for Professional Conduct promulgated by the Conferences of Circuit and County Court Judges and the Trial Lawyers Section of The Florida Bar.


author: PER CURIAM.

text:
    Joseph BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3139.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2014.
    Rehearing Denied Dec. 31, 2014.

      Joseph Bradley, Doral, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged with aggravated assault with a deadly weapon and possession of a firearm or ammunition by a convicted felon. He stipulated that he was a convicted felon. A jury found him guilty as charged to both offenses.

Prior to trial, the parties agreed that evidence establishing why the victim sought a restraining order against appellant would not be introduced at trial unless the defense opened the door to its admission. After the trial court determined that the door was opened, the victim was permitted to testify that a few days before she obtained the restraining order, appellant battered her while she slept and that the night before she obtained the order, appellant threatened, and attempted, to burn her house down. On direct appeal, appellant challenged the trial court’s ruling that allowed the victim to testify about his prior bad acts. We affirmed. Bradley v. State, 29 So.3d 1132 (Fla. 4th DCA 2010).

Appellant filed a rule 3.850 motion raising several issues. Significantly, appellant claimed that his counsel acted ineffectively when he opened the door to the above-detailed testimony, despite the parties’ agreement.

“A summary denial of a motion for post-conviction relief will be affirmed only when the trial court either states ‘its rationale in the order denying relief or attach[es] portions of the record that would refute the claims.’ ” Torres v. State, 9 So.3d 746, 747-48 (Fla. 4th DCA 2009) (quoting Nixon v. State, 932 So.2d 1009, 1018 (Fla.2006)). The trial court’s order and attachments show that it did not address this issue in its otherwise detailed and exhaustive order. See Mays v. State, 89 So.3d 1009 (Fla. 4th DCA 2012) (remanding in part the denial of a rule 3.850 motion for further proceedings on an issue that was not addressed in the court’s order); Bowden v. State, 54 So.3d 588 (Fla. 1st DCA 2011) (same). Contrary to the State’s position in its response to this Court’s order to show cause, the claim is sufficiently pleaded.

Consequently, we reverse and remand the case to the trial court to address appellant’s claim of ineffectiveness concerning counsel’s opening the door to allow the “prior bad act” evidence. We affirm the trial court’s denial of relief on all remaining claims in the motion.

Affirmed in part; Reversed in part and Remanded.

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


author: TAYLOR, J.

text:
    Tyron Terrance ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4474.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

After a jury trial, appellant, Tyron Terrance Roberts, was found guilty as charged of robbery with a deadly weapon. As his sole issue on appeal, appellant challenges the ten-year mandatory minimum portion of his sentence, imposed pursuant to section 775.087(2)(a)l., Florida Statutes (2010). He argues that the mandatory minimum term should be vacated because it cannot be determined that the jury clearly found that he actually possessed a firearm during the commission of the robbery. This is so, he argues, because the jury was instructed as part of the robbery jury instruction that “an act is in the course of committing the robbery if it occurs in an attempt to commit the robbery or in flight after the attempt or commission.” Citing Lemus v. State, 33 So.3d 774 (Fla. 4th DCA 2010), appellant contends that, for purposes of the mandatory minimum for actual possession of a firearm during the course of a crime under section 775.087(2)(a), the possession must actually be during the commission of the crime itself and not during the temporal episode surrounding the crime. We disagreé and affirm the mandatory minimum term, because the jury’s finding that appellant actually possessed a firearm, even during flight from the robbery, would be sufficient to satisfy the requirements of section 775.087(2)(a).

On the day of the robbery, a man wearing a bandana and blue shirt approached a bank teller at her station and handed her a note. The note stated, “Give me money I have a gun.” The man whispered to her that he really did have a gun. The teller never actually saw a gun or any kind of bulge in the man’s clothes. But because he said he had a gun, she was frightened and complied with his demands. She opened her cash drawer and removed approximately $2,300. She also put a bait (GPS tracker) with the cash before she pushed it towards him. The man took the money and the note and left the building. The teller notified her supervisor that she had been robbed. The police arrived and the teller spoke to a detective.

A detective received a call from dispatch that the robbery suspect’s vehicle was located at a citrus packing plant. When the detective arrived at the plant, he observed appellant running from a Jeep. The detective chased appellant to the loading dock of the plant. Appellant tried to climb the loading dock platform, but his foot got caught on the bay door and he fell to the ground. The detective was approximately fifteen feet behind appellant and saw a gun slide out from appellant’s waistband. Appellant attempted to recover the gun, but it slid away from his grasp.

Appellant got up and ran into the packing plant while the detective continued to chase him. When the detective eventually apprehended appellant, they were outside the plant. The detective searched appellant and asked him if he had any weapons on his person. Appellant responded, “you already saw the one gun, what [do] you think I do, carry two.”

An employee of the citrus plant witnessed appellant attempt to enter the plant through the loading dock. The employee saw appellant fumbling around the floor and trying to get to his feet. He also saw appellant drop a gun. When appellant and the detective ran by, the employee stood by the gun to make sure that no one else came and moved it. He stayed with the gun until an officer returned to take custody of it. Other evidence collected near or inside the Jeep included a wig, a bandana, a blue shirt, and a stack of money with a concealed GPS tracker.

A firearm examiner for the Indian River Crime Laboratory found the gun was in working order, but the firearm was not submitted for DNA testing and no usable prints were found on it.

Once detectives apprehended appellant, they drove the bank teller to the citrus plant. She identified appellant as the person who robbed the bank.

The detective who interviewed appellant after he was detained asked appellant, “When did you make up your mind that you were going to rob that bank?” Appellant responded, “It was a last second decision. (Inaudible) just doing bad, man. Things just been going bad for me.” Later, appellant again explained that he just needed money because he had not worked and things were not going right for him.

The detective asked appellant if he pulled a gun on the teller. Appellant denied having a gun in his possession when he was in the bank. He said that he did not threaten the teller with the gun; he just told the teller to give him the money. He later admitted that the note he handed to the teller stated that he had a gun. He also admitted to the detective that the gun fell out of his pocket when he fled from the Jeep at the citrus plant.

Appellant was charged in Count I of the Information with Robbery with a Deadly Weapon. The Information alleged that:

Tyron Terrance Roberts did take certain property, to-wit: U.S. Currency, from the person or custody of [the bank teller] or [the bank], with the intent to permanently or temporarily deprive the said person or owner of the property, and in the course of the taking there was the use of force, violence, assault, or putting in fear, and during the course of the commission of the robbery, the defendant actually possessed a firearm, in violation of Florida Statutes 775.087 (10/20/Life), 812.13(1) and 812.13(2T)(a).

(Emphasis added).

Appellant testified at trial and denied committing the robbery. He said that he confessed during the police interrogation only to protect the driver of the Jeep from being charged. On cross-examination, appellant said that he never had a gun and denied knowledge of the note used in the robbery. When asked about his response to the detective’s questions about his possession of a gun — “you already saw the one gun, what [do] you think I do, carry two” — appellant acknowledged that he “may have said that.”

The trial court instructed the jury:

To prove the crime of robbery, the State must prove the following four elements beyond a reasonable doubt. One, Tyron Roberts took the money from the person or custody of [the bank teller] or [the bank]. Two, force, violence, assault or putting in fear was used in the course of the taking. Three, the property taken was of some value. Four, the taking was with the intent to permanently or temporarily deprive [the bank teller] or [the bank] of her right to the property or any benefit from it or appropriate the property of [the bank teller]or [the bank] to his own use or the use of any person not entitled to it.
The phrase in the course of the taking means that the act occurred prior to, contemporaneous with or subsequent to the taking of the property, that the act and the taking of the property, that the act and the taking of the property constitute a continuous series of acts or events.
An act is in the course of committing the robbery if it occurs in an attempt to commit the robbery or in flight after the attempt or commission.

The jury found appellant guilty of robbery and indicated on the verdict form their finding that the “defendant actually possessed a firearm in the course of committing the robbery.” Appellant was sentenced to thirty years in prison, with a ten-year minimum mandatory sentence pursuant to section 775.087(2)(a), Florida Statutes (2010).

While appellant’s appeal was pending, appellant filed two motions to correct sentencing error, contending that the ten-year mandatory minimum was an illegal sentence. In both motions, appellant argued that because of the language used on the verdict form, it was not clear whether the jury found that appellant possessed a firearm “during the commission” of the robbery, or “in the course of committing” the robbery. The trial court denied the motions.

In Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 2158,186 L.Ed.2d 314 (2013), the United States Supreme Court held that, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), any fact that increases the mandatory minimum sentence for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt.

In Florida, a criminal defendant faces an enhanced mandatory minimum sentence when the defendant possesses a firearm during the commission of an enumerated offense:

Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
c.. Robbery;
and during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years....

§ 775.087(2)(a)l., Fla. Stat. (2010) (emphasis added).

The Florida Supreme Court clarified the jury findings necessary for imposing the mandatory minimum enhancement under section 775.087(2)(a), Florida Statutes, in State v. Iseley, 944 So.2d 227 (Fla.2006). After reviewing earlier cases where the court considered the sufficiency of a jury verdict to support penalty enhancements mandated by section 775.087(2)(a), the court reiterated its requirement that the enhanced penalty be predicated upon a ‘clear jury finding’ that the defendant possessed a firearm during the commission of the felony. Iseley, 944 So.2d at 230 (quoting State v. Hargrove, 694 So.2d 729, 731 (Fla.1997)). “This requisite ‘clear jury finding* can be demonstrated either by (1) a specific question or special verdict form (which is the better practice), or (2) the inclusion of a reference to a firearm in identifying the specific crime for which the defendant is found guilty.” Id. at 231 (citing Tucker v. State, 726 So.2d 768, 771-72 (Fla.1999) and State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984)).

Appellant argues that it cannot be determined that the jury clearly found that appellant actually possessed a firearm during the commission of the robbery, given the unique facts in this case and the robbery jury instructions and interrogatory, because the jury was instructed as part of the robbery jury instruction that “an act is in the course of committing the robbery if it occurs in an attempt to commit the robbery or in flight after the attempt or commission.” Further,-the jury did not find that he had actual possession of a firearm “during the commission of the offense,” but instead found that appellant had possession of a firearm “in the course of committing the robbery.”

Relying on Lemus v. State, 33 So.3d 774 (Fla. 4th DCA 2010), appellant contends that for purposes of the mandatory minimum for actual possession of a firearm during the course of a crime under section 775.087(2)(a), the possession must actually be during the commission of the crime itself and not during the temporal episode surrounding the crime. Here, he argues, the robbery instructions allowed the jury to find that appellant actually possessed the firearm during the commission on the robbery based on events that occurred during his flight.

Lemus is inapplicable to the facts of this case. There, the defendant was charged with two counts of aggravated assault with a firearm on a law enforcement officer and one count of discharging a firearm in public. Id. at 774. He was found guilty and sentenced to the mandatory minimum under section 775.087(2)(a)2 for discharging a firearm or destructive device during the commission of a felony.

On appeal, we held that the evidence could not support a finding that the defendant discharged a firearm during the commission of the felony, aggravated assault. Id. The aggravated assaults were committed when the defendant, using a gun, threatened and placed the officer in fear. Id. at 775-776. Because the defendant fired the shots seven hours prior to pointing the gun at the officers, it could not be said that defendant discharged the gun “during the commission” of the aggravated assault offenses. Id. at 776.

Lemus can be distinguished from this case because the defendant in Lemus was charged with aggravated assault on a law enforcement officer under section 784.07(2)(e). Unlike the robbery statute, the aggravated assault and assault statutes do not specify a period for the commission of the crime. The crime is complete once the defendant makes a threat and places someone in fear.

The crime of robbery, on the other hand, continues during flight after attempt or commission of the robbery. Section 812.13(3)(a), Florida Statutes (2010), states that “[a]n act shall be deemed ‘in the course of committing the robbery5 if it occurs in an attempt to commit robbery or in flight after the attempt or commission.” See Grant v. State, 138 So.3d 1079, 1085 (Fla. 4th DCA 2014) (noting that “section 812.13(3)(a) expressly defines the phrase ‘in the course of committing the robbery’ to include a robber’s flight after an attempted robbery”); Parker v. State, 570 So.2d 1048, 1053 (Fla. 1st DCA 1990) (holding that the defendant’s possession of a firearm during flight from the robbery is sufficient to support imposition of a section 775.087(2)(a) mandatory minimum sentence).

Thus, unlike the defendant in Lemus, appellant was involved in a single continuous criminal episode, so that even -without strong circumstantial evidence that appellant possessed the firearm at the bank, evidence that he was is actual physical possession during his flight from the robbery was sufficient to support imposition of the mandatory minimum.

Here, the jury’s verdict constituted a “clear jury finding” that appellant possessed a firearm during the commission of the robbery, thus authorizing the trial court - to impose the statutory minimum sentence. The information charged that appellant actually possessed a firearm during the course of the commission of the robbery, in violation of section 775.087(2)(a), and the verdict form contained an express reference to the use of a firearm in the commission of the robbery. See Iseley, 944 So.2d at 231; Grant, 138 So.3d at 1086 (“To ‘enhance a defendant’s sentence under section 775.087(2), the grounds for enhancement must be clearly charged in the information,’ ” and the jury must make a finding that the defendant actually possessed the gun). Accordingly, we affirm the mandatory minimum term imposed as part of appellant’s sentence.

Affirmed.

GROSS and GERBER, JJ., concur.

      . Section 784.021(l)(a), Florida Statutes (2010), defines "aggravated assault” is an assault: (a) With a deadly weapon without intent to kill. "An ‘assault’ is an intentional, unlawful threat by word or act to do violence tó the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat. (2010).


author: MAY, J.

text:
    EXOTIC MOTORCARS AND JEWELRY, INC., Appellant, v. ESSEX INSURANCE COMPANY, A foreign company, Appellee.
    No. 4D13-3937.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    Rehearing Denied Dec. 22, 2014.

      Bambi G. Blum of Bambi G. Blum, P.A., Miami, and Lance W. Shinder of Lance W. Shinder, P.A., Boca Raton, for appellant.
    Mitchell L. Shadowitz of Shadowitz Associates, P.A., Boca Raton, for appellee.
   MAY, J.

This is the second lap around our Court for Exotic Motorcars, as it appeals an adverse ruling on coverage on its Dealer’s Open Lot policy with Essex Insurance Company. The coverage issue arose from an accident that occurred when Exotic’s owner drove a vehicle to another dealership for an inspection and possible servicing. In its first lap, we held that the subject vehicle, a very expensive Porsche, was a titled vehicle and remanded the case “for the trial court to enter an amended final judgment and to make findings accordingly.” On this lap, Exotic argues the trial court erred in determining that the policy provided no coverage for the Porsche. We agree and reverse.

Exotic obtained the Porsche from a California wholesale dealer and placed the car on its showroom floor. Two days later, a buyer signed a purchase contract with Exotic for the Porsche and left a $5,000 non-refundable deposit. Exotic’s owner testified that because Exotic did not allow test drives of their expensive vehicles and had no service department, he drove the Porsche to Champion Motors for the inspection. The accident occurred en route to Champion. The buyer had planned to pick up the Porsche at Champion following the inspection.

After the first appeal, we remanded the case for the trial court to enter an amended final judgment. The issues to be addressed were whether the Porsche was either in “transport” or on a “test drive” at the time of the accident. The trial court entered an amended final judgment in favor of the insurer.

The trial court found that although the vehicle was covered under the policy, the accident was not a coyered collision. The court found that the collision did not occur during a “test drive” as that term is commonly understood because “[n]o prospective purchaser was in the vehicle.” The court also found that the vehicle was not covered because “transport” means being moved by some method other than driving, and because “an inspection or certification is not a direct purchase.” Lastly, the court found that Exotic failed to prove damages even if the vehicle was covered. From this judgment, Exotic has appealed.

Exotic argues on appeal that the trial court gave too narrow an interpretation to the terms “test drive” and “transport”, thereby improperly denying coverage under the policy. The insurer responds that the common meaning of “test drive” requires the vehicle to be driven by the potential purchaser, that “transport” and “drive” are not synonymous, and that an inspection is not a “direct sale” under the policy. The insurer further argues that if coverage is found, Exotic failed to prove damages.

We have de novo review of orders interpreting provisions of an insurance policy. Penzer v. Tramp. Ins. Co., 29 So.3d 1000, 1005 (Fla.2010).

We begin at the beginning with the applicable policy provisions. The relevant part of the policy provides:

PART II — WHERE AND WHEN THIS POLICY COVERS

We cover loss which occurs during the policy period and which occurs:
1. During a test drive of the covered vehicle ...;
2. During transport of the covered vehicle for direct purchase or sale-

(Emphasis altered).

“[Wjhen an insurance coverage term is not defined, the term should be given its plain and ordinary meaning.” Barcelona Hotel, LLC v. Nova Cas. Co., 57 So.3d 228, 230-31 (Fla. 3d DCA 2011). Where a policy does not define a term, courts often discern the plain meaning of the term by relying on other sources, such as dictionaries, to determine the accepted meaning of the word. Id. at 231.

The Merriam-Webster Dictionary defines “test-drive” as “to drive (a motor vehicle) in order to evaluate performance.” The Random House Dictionary defines “test-drive” as “to drive (a vehicle) on the highway or a special track or route in order to evaluate performance and reliability.” The Collins English Dictionary defines “test-drive” as “to drive (a car or other motor vehicle) for a limited period of time in order to assess its capabilities and limitations.” None of these definitions require a potential purchaser to be driving the car.

Although a potential purchaser could be the driver during a test drive, it could also be a mechanic testing performance after repair, or a car magazine testing a car to write a review on its performance. The term is unambiguous. The plain meaning of “test drive” includes any person driving the car for purposes of evaluating performance.

The insurer suggests that the Oxford Dictionary defines “test drive” as “an act of driving a motor vehicle that one is considering buying in order to determine its quality.” This is not the only definition, and at best creates an ambiguity, which is construed against the insurer. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003). While the cases relied upon by the insurer use the term “test drive” in reference to a potential purchaser driving the vehicle, they do not hold that a “test drive” is limited to that circumstance. See, e.g., Duncan Auto Realty, Ltd. v. Allstate Ins. Co., 754 So.2d 863, 865 (Fla. 3d DCA 2000); Snyder v. State, 362 So.2d 971, 972 (Fla. 1st DCA 1978).

Here, Exotic’s owner testified that he considered his drive to be a “test drive” because “a lot of these cars will sit in garages and they’re not very functional.” Because of the rare nature of the vehicles sold by Exotic, potential purchasers are not allowed to take test drives. Significantly, Exotic does not perform repair service so any issue with the car would have to be determined through a “test drive” by an employee and fixed at another location.

In short, we hold that the term “test drive” includes the circumstances in this case. The policy therefore provided coverage for the loss. We reverse the trial court on its interpretation of “test drive” under this policy. Having reached this conclusion, it is unnecessary for us to address the alternative argument of whether the vehicle was in transport for direct purchase or sale at the time of the accident.

Last, Exotic argues the trial court erred in finding that Exotic failed to prove damages. We agree. We have de novo review of this issue. Norman v. Padgett, 125 So.3d 977, 978 (Fla. 4th DCA 2013).

The policy provides that the insurer will pay the smallest of the following:

1. The dealer’s purchase price, plus capital improvements;
2. The actual cash value of the covered vehicle, or the permanently installed equipment if that is all that is damaged or lost;
3. The cost to repair the covered vehicle or its permanently installed equipment with parts of like kind and quality, less any betterment as a result of the repair. The cost to repair will not include any diminished value as a result of the loss; [or]
4. The limit per covered vehicle on the Declarations Page.

Exotic Motors proved its loss. The purchase price of the Porsche from the California wholesaler was $343,000. The purchaser agreed to buy the Porsche from Exotic for $372,000. The adjuster’s report reflected the actual cash value of the Porsche before the accident at $343,000. The report also indicated that replacement parts to fix the vehicle alone would cost around $125,000. This did not include labor. Despite this estimate, the adjuster considered the Porsche “a possible total loss.”

To obtain the maximum salvage value, Exotic found a German engineering performance company that would convert the Carrera GT into a Mirage GT, one of only 25 others in the world. The conversion cost was $395,000, plus $28,500 in storage and transportation fees. Exotic obtained a loan, known as a floorplan, on the Porsche for $340,000. The person who loaned the money ultimately “got the vehicle for ... 340,000.”

Given the testimony at trial, Exotic sustained its burden to prove its loss of $343,000. The trial court erred in finding that Exotic failed to prove damages. It proved the Porsche’s pre-collision value, both the purchase and sales price, and the cost of the conversion repair. Based on insurer’s total-loss determination, Exotic was entitled to the full value of the Porsche prior to the accident less the deductible of $2,500, plus prejudgment interest.

Reverse and Remanded for entry of judgment for Exotic Motors for $34.0,500, plus prejudgment interest, and for such further relief as deemed necessary.

STEVENSON and LEVINE, JJ„ concur.

      . We previously reversed and remanded the case because the trial court’s final judgment after a four-day bench trial "contained no findings of fact, conclusions of law, or other indication of the basis for the trial court's ruling.” Exotic Motorcars & Jewelry, Inc. v. Essex Ins. Co., 111 So.3d 208, 208-09 (Fla. 4th DCA 2013) (on reh'g).

      . Test-Drive Definition, Merriam-Webster.com, http://www.merriam-webster.com/ dictionary/test-drive (last visited July 11, 2014).

      . Test Drive Definition, Dictionary.com, http:// dictionary.reference.com/browse/test drive (last visited July 11, 2014).

      . Id.

      . See, e.g., Barry Winfield, 2009 Porsche 911 Carrera & Carrera S Test Drive, Popular Mechanics (Oct. 1, 2009), http://www.popular mechanics, com/cars/reviews/drives/4270362.

      . Test Drive Definition, OxfordDictionar-ies.com, http://www.oxforddictionarie s.com/us/definition/american-english/test-drive (last visited July 11, 2014).

      . Exotic had not yet paid the California wholesaler for the Porsche at the time of the accident. Ultimately, Exotic gave the wholesaler two cars — a Lamborghini and a Mercedes Benz — in exchange for the lost Porsche.


text:
    Anton JOSEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2880.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Borrell v. State, 733 So.2d 1087 (Fla. 3d DCA 1999); Joppy v. State, 719 So.2d 316 (Fla. 1st DCA 1998); Benson v. State, 698 So.2d 333 (Fla. 4th DCA 1997).

CIKLIN, CONNER and FORST, JJ„ concur.


text:
    Jerrold BARON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3780.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    Rehearing Denied Jan. 9, 2015.
    Antony P. Ryan, Regional Counsel and Louis G. Carres, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s thorough order denying appellant’s motion for post-conviction relief from his convictions for vehicular manslaughter and DUI manslaughter. After a full evidentiary hearing, the trial court concluded that none of the appellant’s contentions constituted ineffective assistance of counsel. Most claims were either unproven or were shown to be reasonable trial strategy decisions by counsel and agreed to by the appellant. Moreover, competent substantial evidence supports the trial court’s conclusion that, even if all of appellant’s claims of ineffective assistance and failure to present evidence had been cured at trial, there was no reasonable probability that the results at trial would have been different, given the testimony and other evidence presented by the state. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This included eyewitness testimony of appellant’s swerving and weaving prior to striking the pedestrian victims, as well as his fleeing the scene, and his admissions, in recorded telephone calls at the jail, to drinking and driving.

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


author: GROSS, J.

text:
    Anthony WARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4483.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Anthony Ward testified at a jury trial where he was convicted of several crimes. At his sentencing, the trial judge justified the sentence by stating, in part, “I did not find your testimony credible.”

It is fundamental error for a sentencing judge to take into consideration a defendant’s truthfulness while testifying: See Josephs v. State, 86 So.3d 1270, 1272 (Fla. 4th DCA 2012); Walden v. State, 123 So.3d 1164, 1167 (Fla. 4th DCA 2013); Bratcher v. State, 743 So.2d 112, 114 (Fla. 5th DCA 1999). The Supreme Court explained the rationale for this rule in City of Daytona Beach v. Del Percio:

Conflicting evidence inheres in most trials, and to allow imposition of a harsher sentence merely because the trial judge believes the evidence supporting his finding of guilt, would create a catch-22 — the defendant may not be punished for his exercise of the right to trial but may be punished for his lack of candor during the trial.

476 So.2d 197, 205 (Fla.1985).

We have considered the other point raised on appeal and find no reversible error.

This case is affirmed in part, reversed in part, and remanded for resentencing before a judge other than the original sentencing judge. See Josephs, 86 So.3d at 1272.

DAMOORGIAN, C.J., and STEVENSON, J., concur.


text:
    Mubarak QURESHI, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1522.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

At the violation of probation hearing in this case, the trial judge found that appellant violated his probation by committing new substantive offenses. However, the written order of revocation of probation, which issued several days later, indicated that the basis for revocation was a failure to pay restitution, in addition to the commission of a new criminal offense.

Appellant did not file a motion to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(b). See Jackson v. State, 983 So.2d 562, 572 (Fla.2008); Rivera v. State, 34 So.3d 207, 208 (Fla. 2d DCA 2010). By failing to file a Rule 3.800(b) motion, appellant waived this issue and cannot raise it on appeal. See Reese v. State, 763 So.2d 537, 539 (Fla. 4th DCA 2000).

Affirmed.

GROSS, TAYLOR and GERBER, JJ., concur.


text:
    Bernard RAMKELAWAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-608.
    District Court of Appeal of Florida, Fourth District:
    Nov. 19, 2014.
    Rehearing Denied Dec. 22, 2014.

      Bernard Ramkelawan, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Bernard Ramkelawan appeals the summary denial of his petition for writ of habeas corpus and its addendum. Although we agree with' the trial court’s ultimate conclusion that the petition warranted denial, we affirm for reasons other than those stated by the court. Robertson v. State, 829 So.2d 901 (Fla.2002). “This longstanding principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’ ” Id. at 906 (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999)). The appellant raised challenges to his Broward convictions that could have been raised on direct appeal or in a timely rule 3.850 postconvietion motion. See Nelson v. State, 43 So.3d 20, 34 (Fla.2010) (recognizing that habeas corpus cannot be used to raise claims that must be brought in a postconviction motion under rule 3.850 or to raise procedurally barred claims of trial court error); Baker v. State, 878 So.2d 1236, 1245 (Fla.2004) (“The remedy of habeas corpus is not available in Florida to obtain the kind of collateral postconviction relief available by motion in the sentencing court pursuant to rule 3.850.”).

Affirmed.

DAMOORGIAN, C.J., GERBER and CONNER, JJ., concur.


author: WARNER, J.

text:
    Sean MOORE, Appellant, v. Teresa KELSO-MOORE, Appellee.
    No. 4D14-1189.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    Rehearing Denied Dec. 22, 2014.

      Karen Coolman Amlong, Jennifer Daley and Alison Churly-Davis of The Amlong Firm, Fort Lauderdale, for appellant.
    Liana M. Carrozza and Joel L. Kirschb-aum of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, for appellee.
   WARNER, J.

A husband appeals an order granting the wife’s motion for temporary relief of an award of attorney’s fees in this dissolution of marriage action. The trial court found that the hours expended were unreasonable but failed to determine a reasonable number of hours or specify the reasonable hourly rate. Because the amount awarded appears inconsistent with the trial court’s pronouncements, we must reverse and remand for further proceedings!

Although the husband stipulated to the reasonableness of the hourly rate charged by the principal lawyer representing the wife, he contested the reasonableness of the hours billed. The court agreed with his assessment, noting that the wife’s firm had expended 500.3 hours for the about the same work that the husband’s firm had expended 154.35 hours. The wife’s law firm had used block billing, which made it impossible to determine the reasonableness of the hours expended on several matters. Moreover, the court found in its review of the wife’s attorney’s billing that the firm engaged in “excessive hand holding” for the wife. The court, however, did not make any findings as to the reasonable number of hours or reasonable hourly rates of law firm members. Instead, it ordered the husband to pay $97,538.70 in attorney’s fees to date, as well as $6,200 in temporary costs, less the $12,000 previously paid by the husband.

Try as we might, we cannot decipher these numbers to determine whether the award to the wife is an abuse of discretion, particularly given the fact that the trial court appears to have sided with the husband regarding the excessiveness of the hours spent by the wife’s firm in the litigation. Although in Piluso v. Piluso, 622 So.2d 117 (Fla. 4th DCA 1993), we held that it is not per se reversible error when the trial court fails to make explicit findings in support of a temporary award of fees, we concluded that the record in Piluso contained sufficient evidence to support the amount of fees awarded. We cannot say the same in this case. The fees awarded appear to be the lion’s share of the hours expended, which would conflict with the trial court’s other findings. Consequently, we reverse and remand for the trial court to make sufficient findings on reasonable hours and hourly rates, without which we cannot conduct a meaningful review. See, e.g., Bogos v. Bogos, 821 So.2d 383 (Fla. 2d DCA 2002).

The husband also contends that there was no evidence to support the reasonableness of the hourly rate of the associate and paralegal who worked on the file. However, section 61.16(1), Florida Statutes, expressly does not require corroborating expert testimony to support an award of fees. As the wife’s principal attorney testified to the rates charged and the husband provided no contrary evidence, the trial court could rely on those rates in setting the fee.

The remaining issue the husband raises concerns the interpretation of a mediation agreement provision regarding prevailing party attorney’s fees and how it applies to the issues in this case. Resolution of this issue is premature for the purpose of awarding temporary attorney’s fees.

Reversed and remanded for further proceedings consistent with this opinion.

MAY and CONNER, JJ., concur.


author: EMAS, J.

text:
    Adrian ELLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1157.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Rehearing Denied Dec. 30, 2014.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and EMAS and LOGUE, JJ.
   EMAS, J.

Adrian Ellis appeals his conviction and sentence for first-degree murder. At issue in this appeal is whether the trial court erred in the manner in which it conducted its Melbourne inquiry upon the State’s peremptory challenges of two African-American members of the venire. For the reasons that follow, we hold that the trial court committed clear error, and reverse and remand for a new trial.

On March 25, 2010, Ellis was driving his brother Brandon and two friends to Dade-land Mall. Along the way, Brandon spotted a school mate and asked Ellis to stop. An altercation ensued between Brandon and the school mate. The school mate’s brother, Edward Collier (who was also present) became involved in the altercation. At some point, Ellis got out of his vehicle and shot Collier, killing him. Ellis claimed he accidentally fired his weapon. He was charged with first-degree murder and the case proceeded to trial.

During voir dire, the State used two peremptory challenges to strike two different African-American prospective jurors, Mr. Manuel and Mr. Tuckett. On each occasion, the defense objected and asked the State to provide a race-neutral reason for the peremptory challenge. As to prospective juror Mr. Manuel, the State’s explanation for the strike was that Mr. Manuel is a pastor and used to be a boot camp officer. The following discussion took place:

State: Yes, Your Honor. One, he is a pastor. I don’t think it rises to the level of a cause challenge.
The Court: Okay. And the only other person who is close to being a pastor we have not reached.
State: That’s the lady—
The Court: Which means I can’t find it’s pretextual on those grounds. There is no other pastor we have passed over, do you agree, Mr. Mastos?
Defense: Well, yeah, but why would somebody on a murder case strike a pastor, that makes no sense?
The Court: Well, I don’t have to answer the question with regard to the ruling because all I have to do is find it’s not pretextual which I’m finding.
Defense: Well, it looks to me like it’s a pretextual reason.
The Court: How?
Defense: Well, anybody — look, if you believed in the Bible, a pastor is preaching thou shalt not kill, first commandment. Christ said love one another as I have—
The Court: You’re talking about the genuineness of the strike and that’s not the analysis. The analysis is 'what is— does the State want to take Mr. Manuel out because he’s black and is that proven by the fact that there’s another pastor on here he’d accept who’s not black and that’s not happening so I’m going to allow the strike. And we’re going to move on to wherever we left off.
State: Judge, there is one other thing for the record, where I stand, one of the race neutral reasons I have.
The Court: If you feel the need.
State: I would like to if I could, please. And that is he is a corrections officer and he is with boot camp.
The Court: Well, he’s retired but, yeah. State: Yes, he was. His whole career he was a corrections officer, boot camp, and I feel that someone that has been in that circumstance with juveniles for so long that oftentimes, this has been my experience here and I got that feeling from him in speaking to him that perhaps he sympathizes or understands defendants and I’m very concerned about that. That’s the other reason that Ms. Dobbins and I—
The Court: Well, there’s certainly no other—
State: It’s not [a] cause [challenge] it’s just concern.
The Court: There’s certainly no other boot camp person.
Defense: Judge, not to belabor the point—
The Court: Except that we are but go ahead.
Defense: I know how the Court has ruled but I am of the opinion that Mr. Howell’s reasons are smoke screens and that he is striking Mr. Manuel because he is black and I just want to record preserved.
The Court: First time you said it was preserved and now it’s preserved with the phrase smoke screen, which if there’s a conviction and you’re successful on appeal I bet they quote you. I bet they do. We are going to go on ...
(Emphasis added.)

Later during jury selection, the following exchange took place upon the State’s exercise of a peremptory challenge on prospective juror Tuckett:

State: Yes, Your Honor, we will strike Mr. Tuckett, juror 18.
Defense: There goes another — I believe he’s another African-American, Judge.
The Court: Let’s — yes, he is.
Defense: Mr. Tuckett.
State: Is he?
The Court: Yes.
State: Oh, okay.
Defense: Yes. I believe that the State needs to come up with a race neutral reason why they are striking another African-American on this panel.
The Court: Mr. Tuckett is African-American, he is a member of a protected class. State, what is your race gender neutral reason?
State: Judge, from the outset he was concerned, about whether or not — about the level of premeditation in this particular case. It is certainly not to the level of cause but it gives me concern that he is looking for a reason to find — looking for a reason for lack of premeditation, if you will, and perhaps would hold a different standard, the State to a different standard for premeditation than what the Court may instruct. In addition to that I found that in his relationship with me, my questioning, I felt that he was combative—
The Court: He was what?
State: Combative in my conversations with him. I asked [co-counsel] about the same thing and she used that word also without me asking her about it. And for those reasons I just am very uncomfortable with him as a juror in this particular case.
The Court: I can’t — I won’t say that the record should reflect he was combative with Mr. Howell because I did not observe that, and the record — it wasn’t noted by the State at the time so the record should not reflect that. However, this concern over his concern of premeditation versus felony murder—
Defense: But I was able to re—
The Court: If I can finish my sentence, Mr. Mastos. Is something that’s not been raised about anybody else nor did any other juror bring it up. So in that regard I find this is not a pretextual reason. And again this analysis isn’t about the genuineness of the reason it’s about whether it’s pretextual. What did you want to say, Mr. Mastos?
Defense: I specifically went and addressed that with him and by the time I got done I felt like we had comfortably established that we had no longer had concern with premeditation. In fact, we pointed out the Court had instructed him on premeditation. He now had it in his mind and that he was prepared to look at the facts.
The Court: Again, you’re arguing about genuineness which is not part of this analysis and so the strike will be accepted. And we’re going—
Defense: Over our objection.
The Court: Yes, sir. We are going to Ms. Serret, Number 34.
(Emphasis added.)

The trial court overruled the defense objections, and permitted the State’s peremptory challenges of both Mr. Manuel and Mr. Tuckett. The jury was sworn and, following trial, found Ellis guilty of first-degree murder. Ellis was subsequently sentenced to life in prison. This appeal followed.

On appeal, Ellis contends that the trial court misapplied the requirements of Melbourne by refusing to consider the genuineness of the State’s proffered reasons for striking each of the African-American jurors. The State argues the trial court implicitly considered the genuineness of the State’s proffered reasons by applying one of the factors identified in State v. Slappy, namely, whether the strike was based on a reason equally applicable to an unchallenged juror.

Peremptory challenges are presumed to be exercised in a nondiscriminatory manner, and the burden of establishing the contrary is on the party objecting to the peremptory challenge. Melbourne, 679 So.2d at 763 (quoting State v. Neil, 457 So.2d 481, 486-87 (Fla.1984)). In addition, since “the trial court’s decision turns primarily on an assessment of credibility, [it] will be affirmed on appeal unless clearly erroneous.” Melbourne, 679 So.2d at 764-65.

In Melbourne, the ' Florida Supreme Court established a three-step process to guide the parties and the trial court in properly raising and determining a claim that a peremptory challenge is being used in a discriminatory manner to exclude potential jurors based on race:

A party objecting to the other side’s use of a peremptory challenge on racial grounds must:
a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2).

Melbourne, 679 So.2d at 764 (footnotes omitted).

Assuming the proponent of the strike has proffered a race-neutral reason, the trial court must move to the final step, which is the step at issue in the instant case:

If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness.

Id. (Emphasis added.)

As this Court and the Florida Supreme Court have each recognized, “the genuineness of the explanation is the yardstick with which the trial court will determine whether or not the proffered reason is pretextual.” Hayes v. State, 94 So.3d 452, 462 (Fla.2012) (quoting Davis v. State, 691 So.2d 1180, 1183 (Fla. 3d DCA 1997)). The genuineness of the explanation is subjective and credibility-based, and simply put, requires the trial court to determine, based upon a consideration of all the circumstances surrounding the strike, whether it believes that the proffered explanation is truly the reason for the exercise of the peremptory challenge. See Young v. State, 744 So.2d 1077, 1082 (Fla. 4th DCA 1999) (recognizing that “identifying the true nature of an attorney’s motive behind a peremptory strike turns primarily on an assessment of the attorney’s credibility.”) Thus, the trial court in this case erred in stating that the genuineness of the proffered reason for the challenge is not a part of the analysis, contrary to the dictates of Melbourne and its progeny.

Of course, it is also true that “the Melbourne procedure does not require the trial court to recite a perfect script or meant specific words in order to properly comply with its analysis under step three.” Hayes, 94 So.3d at 468. “Nevertheless, ‘Melbourne does not relieve a trial court from weighing the genuineness of a reason just as it would any other disputed fact.’ ” Id. (quoting Dorsey v. State, 868 So.2d 1192, 1202 (Fla.2003)). Despite the deference afforded to the trial court in this regard, the reviewing court “cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court.” Id. (agreeing that “deference does not imply abandonment or abdication of judicial review.”)(quoting Nowell v. State, 998 So.2d 597, 602 (Fla.2008)). And “where the record provides no indication that the trial court engaged in the required genuineness inquiry,” “Florida’s appellate courts have fairly consistently reversed for a new trial.” Id.

We reject the State’s argument that the trial court implicitly considered the genuineness of the proffered explanation. It is not simply that the record fails to indicate whether such an analysis was conducted; rather, it reveals the trial court specifically rejected any such analysis as irrelevant. As to each juror, the defense squarely raised the genuineness of the State’s purported explanations for the strike, and the trial court squarely rejected any consideration of genuineness as “not part of this analysis.” The trial court’s failure to eon-sider the genuineness of the State’s explanation for the strike was clearly erroneous.

We also reject the State’s argument that the trial court’s consideration of a single Slappy factor satisfied Melbourne’s requirements. While it is true that the trial court articulated one of the factors suggested in Slappy — whether the challenge was based on reasons equally applicable to jurors who were not challenged-we find this inadequate for the following reasons:

First, the trial court considered this factor only after expressly rejecting any consideration of genuineness. Of significance, the Slappy factors form a part of the trial court’s analysis in step 3, where the central focus is on the genuineness of the proffered explanation. Given the trial court’s refusal to consider genuineness, its subsequent consideration of a single Slap-py factor cannot salvage the inadequate Melbourne analysis conducted here.

Second, Melbourne requires a consideration of all of the circumstances surrounding the strike when making its determinations, and the five Slappy factors merely represent a non-exclusive list which a court may consider. Hayes, 94 So.3d at 462. The trial court chose to rely 'upon a single Slappy factor that was wholly irrelevant to the case at bar. The State’s initial proffered explanation for striking Mr. Manuel was that he was a pastor. The trial court acknowledged that there was no other pastor on the venire, and then articulated its analysis:

The analysis is what is — does the State want to take Mr. Manuel out because he’s black and is that proven by the fact that there’s another pastor on here he’d accept who’s not black and that’s not happening so I’m going to allow the strike.

Because there was no other pastor on the venire (much less another pastor who was not African-American) there was no similarly-situated juror with whom a comparison could be made. This reliance on a single inapplicable Slappy factor could not serve as an indicator of genuineness or advance the ultimate determination of pretext. The trial court relied upon this same inapplicable Slappy factor in its analysis of the State’s second explanation for the strike of Mr. Manuel (that there was no other boot camp officer on the venire), and the subsequent strike of Mr. Tuckett (that no other prospective juror expressed concerns regarding the issue of premeditation). We hold that the trial court’s clear error requires reversal for a new trial.

Reversed and remanded for a new trial.

      . Melbourne v. State, 679 So.2d 759 (Fla.1996).

      . The prospective jurors had been excused and were not in the courtroom when the parties exercised their peremptory challenges, requiring the parties and the court to rely upon written notes in identifying each of the prospective jurors.

      . 522 So.2d 18 (Fla. 1988), receded from on other grounds in Melbourne, 679 So.2d at 765. In Slappy, the Florida Supreme Court "provided a nonexclusive list of factors a trial court may consider in determining whether the reason given for exercising a peremptory challenge is genuine.” Booker v. State, 773 So.2d 1079, 1088 (Fla.2000).

      . The State also argues that the defense waived this claim by failing to properly renew its objections prior to the jury being sworn. Upon our review of the record, including the trial court’s assurances to the defense that the issue was preserved for appeal, and the trial court’s colloquy of the defendant at the conclusion of the jury selection process, we find the objections were not waived and were properly preserved for review. See Scott v. State, 920 So.2d 698 (Fla. 3d DCA 2006); Ingrassia v. State, 902 So.2d 357 (Fla. 4th DCA 2005); Langon v. State, 636 So.2d 578 (Fla. 4th DCA 1994). See also, Johnson v. State, 27 So.3d 761 (Fla. 2d DCA 2010).

      . Melbourne has since been extended to apply to gender and ethnicity. See e.g., State v. Alen, 616 So.2d 452 (Fla.1993); Johnson v. State, 706 So.2d 401 (Fla. 3d DCA 1998); Joseph v. State, 636 So.2d 777 (Fla. 3d DCA 1994); Foster v. State, 767 So.2d 525 (Fla. 4th DCA 2000). Furthermore, it is not simply the parties’ rights that are constitutionally protected; the Florida Supreme Court has held that the venireperson has an independent constitutional right not to be excluded from jury service on the basis of race. Jefferson v. State, 595 So.2d 38, 40 (Fla.1992). It is for this reason that the appropriate remedy for an improper, discriminatory use of a peremptory challenge may require the improperly challenged venireperson to be seated as a juror, rather than striking the entire panel and beginning the jury selection anew. Id.

      . Previously, in State v. Slappy, 522 So.2d 18 (Fla.1988), the Florida Supreme Court held that the trial court was obligated to determine the reasonableness of the proffered explanation. The Court in Melbourne receded from Slappy ‘‘[t]o the extent that Slappy and its progeny require a ‘reasonable’ rather than a ‘genuine’ nonracial basis for a peremptory strike....” Melbourne, 679 So.2d at 765.

      . The Slappy Court articulated a non-exclusive list of five factors:
      We agree that the presence of one or more of these factors will tend to show that the state's reasons are not actually supported by the record or are an impermissible pretext: (1) alleged group bias not shown to be shared by the juror in question, (2) failure to examine the juror or perfunctory examination, assuming neither the trial court nor opposing counsel had questioned the juror, (3) singling the juror out for special questioning designed to evoke a certain response, (4) the prosecutor’s reason is unrelated to the facts of the case, and (5) a challenge based on reasons equally applicable to juror[s] who were not challenged.
      522 So.2d at 22 (citing with approval Slappy v. State, 503 So.2d 350, 355 (Fla. 3d DCA 1987)) (emphasis supplied). In Melbourne, the Court included two additional factors which may be considered in the analysis: "the racial make-up of the venire” and "prior strikes exercised against the same racial group.” Melbourne, 679 So.2d at 764 n. 8.

      . The mere fact that there was no similarly-situated juror with whom a comparison could be made does not render the proffered basis for the peremptory "genuine” nor reasonably lead to the conclusion that it was not pretex-tual. To permit a finding of no pretext by reliance upon a single, inapplicable Slappy factor would eviscerate Melbourne and invite gamesmanship, as an attorney would merely need to proffer, as a reason for the strike, some race-neutral circumstance or characteristic that is not shared by any other prospective juror, thereby defying a comparison of similarly-situated jurors, and foreclosing a finding of pretext.