author: LEVINE, J.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Anthony MAROTTA, Appellee.
    No. 4D11-2574.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.

      Jacqueline G. Emanuel of Knoerr & Emanuel, P.A., Fort Lauderdale, for appellant.
    Daniel A. Bushell of Bushell Appellate Law, P.A., Boca Raton, and Darryl L. Lewis and Edward V. Ricci of Searcy Den-ney Scarola Barnhart & Shipley, P.A., West Palm Beach, for appellee.
   LEVINE, J.

Appellant, Allstate Insurance Company, appeals from a final judgment and raises several issues on appeal. Appellee, Anthony Marotta, cross-appeals the trial court’s denial of his motion to tax costs. As to the direct appeal, we write on two issues and find all other issues to be without merit. We reverse the final judgment as we find that the trial court erred in not granting Allstate’s motion for new trial based on Marotta’s improper closing argument and improper impeachment of Allstate’s expert witness. Marotta’s cross-appeal is moot as a result of our decision here.

Marotta was hit head on by an uninsured motorist. Marotta filed suit against the uninsured motorist, who defaulted, and against Allstate, which was Marotta’s uninsured motorist insurance carrier.

After trial, the jury awarded Marotta $441,000. The jury found that Marotta had incurred $37,000 in past medical expenses and would incur $194,000 in future medical expenses. The jury also found that Marotta had sustained a permanent injury and awarded $40,000 and $170,000 in past and future noneconomic damages, respectively.

Allstate moved to limit the final judgment to the policy limits, and Marotta moved to tax costs under section 57.041, Florida Statutes (2010). In opposition, Allstate relied on a provision of its policy with Marotta which stated that in the event of a disagreement between Allstate and Marotta as to a person’s right to recover or the amount of damages, “[cjosts, including attorney fees, are to be paid by the party incurring them.” The trial court agreed with Allstate and entered judgment for $100,000, the amount of the policy limits.

Allstate appeals the final judgment and denial of its motion for new trial. Marotta cross-appeals the denial of his motion to tax costs.

Allstate first argues that a new trial is warranted due to improper argument made by Marotta’s counsel during closing and rebuttal argument. In closing argument, over objection, Marotta argued, “Allstate denied the undisputed medical evidence. They denied accepting responsibility. I ask you, is that what it means to be in good hands?” Marotta stated that everyone was equal under the law, “whether you’re a regular citizen or whether you’re a powerful insurance company like Allstate,” to which an objection was overruled. The trial court sustained an objection when Marotta asked whether one of Allstate’s doctors “was enlisted as part-of an effort to manufacture a defense,” and overruled an objection that Allstate can pay doctors who know what Allstate “really wants.”

Marotta, during rebuttal, argued:

Now, what is repentance? We know what repentance is. Repentance is— it’s — It’s three-fold. It’s not enough to say, Golly, gee, okay, now five years almost after this accident, yeah, the uninsured motorist in this case was negligent and caused harm and losses to Anthony Marotta and Lori Marotta. That’s not enough. We know what the other two steps are. There are two other steps. The second step is to accept full responsibility, full responsibility. Not part of the responsibility, to accept full responsibility.
And the third step is to do everything necessary to make it right, to do everything necessary to make it right. Not part of it all of it. Now, you got to do all you can to that person that that uninsured motorist hurt to make it right.

Then, over Allstate’s objection, Marotta argued that Allstate “consistently, in this case, didn’t want to accept the responsibility at all for causing the accident, the uninsured motorist carrier and they still don’t want to accept the responsibility to ... make up all of the losses and harms caused by this automobile crash.” Marotta argued further, also over objection, that “Allstate could have come to this trial saying, I’m sorry, I want to fairly pay you for the injuries ... that the uninsured motorist carrier caused, but they didn’t.”

Marotta, without objection, called Allstate’s experts “paid opinion courtroom doctors” and, over objection, stated that Allstate “made up issues.” Several times, generally without objection, Marotta stated that Allstate had built up “straw men.” Marotta returned to the point that Allstate did not “want to accept full responsibility,” arguing over objection that Allstate, in order to protect its money and to prevent “full repentance,” paid people “$750 an hour, $500 an hour.”

Marotta argued, over objection, that the accident “created a debt” that it was time for Marotta to collect. Toward the end of Marotta’s rebuttal, Marotta requested that the jury “make Allstate repent, make them take responsibility for what was caused by that uninsured motorist and make them pay all of the harms and losses caused.”

Allstate also objects to what it characterizes as improper impeachment of one of its expert witnesses, Dr. Robert Lins.

Marotta issued a trial subpoena to Dr. Lins, a neurologist who ' was an expert witness for Allstate. The subpoena requested Dr. Lins to provide “[a]ny document or documents that show how many times Allstate and their attorneys have retained your services” and “[a]ny document or documents to indicate the total amount of fees that Allstate has paid to you in the past five years.” Before Dr. Lins testified, counsel for Allstate informed the court that Allstate had provided its tax identification number records to Marotta in discovery, which counsel stated included payments for many items such, as compulsory medical examinations without differentiating between items. These records with respect to Dr. Lins were introduced into evidence. During Dr. Lins’s testimony, Marotta asked whether he would dispute that Allstate -wrote him thirty-eight checks in 2008. When Dr. Lins stated that his office keeps track of that information, but that he personally does not, Marotta responded,

[Wjhen you come into court and you know that lawyers may ask you that because it’s up to these folks to judge credibility of witnesses, did you say, Well, let me figure this out and I want you to compile all of these things, I know he’s going to ask me that, so you can share that with these folks?

Allstate objected stating that the witness was not required to compile these types of records.

Marotta continued to ask Dr. Lins about whether he compiled “all of this information” in preparation for trial, since he knew that the jury would have to determine his credibility. Dr. Lins deferred to “the record” that his office had sent to Marotta, and Marotta responded that Dr. Lins was not correct, because his office had sent him the number of times that Dr. Lins “gave a deposition at tr[ia]l” which did not comprise all of the times that Dr. Lins provided services for Allstate. Allstate, at sidebar, objected that “[t]he case law requires a party to produce the tax identification number reports, the tallies of how much has been paid. It does not require the experts to.” The trial court overruled the objection.

Allstate moved for a mistrial as to Mar-otta’s closing argument, and later moved for a new trial. The trial court denied these motions.

“A trial court’s order granting or denying a motion for a new trial based on either objected-to or unobjected-to improper argument is reviewed for abuse of discretion.” Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1271 (Fla.2006). We apply different standards to a ruling on a motion for new trial based on improper closing argument depending on whether the comments challenged as improper are preserved or unpreserved. For preserved comments, “the trial court should grant a new trial if the argument was ‘so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial.’ ” Id. (citation omitted). For unpre-served comments, a new trial should be granted if the four-part test of Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000), is satisfied, which is that the comments must be improper, harmful, incurable, and damage the fairness of the trial such that the public interest requires a new trial. We review the trial court’s rulings on Allstate’s objections to questioning of Dr. Lins for an “abuse of discretion as limited by the rules of evidence.” Benjamin v. Tandem Healthcare, Inc., 93 So.3d 1076, 1081 (Fla. 4th DCA 2012).

It is improper for counsel to suggest in closing argument that a “defendant should be punished for contesting damages at trial” or that defending a “claim in court” is improper. Intramed, Inc. v. Guider, 93 So.3d 503, 507 (Fla. 4th DCA 2012). See also Fasani v. Kowalski, 43 So.3d 805, 809 (Fla. 3d DCA 2010) (“[I]t is improper for an attorney to ... suggest that a party should be punished for contesting a claim.”).

Marotta’s comments urged the jury to punish Allstate for defending against Marotta’s claim in court and exceeded the scope of permissible argument. See State Farm Mut. Auto. Ins. Co. v. Thorne, 110 So.3d 66, 74 (Fla. 2d DCA 2013) (“Objectionable was ... counsel’s contention in closing that the defendants’ evidence and argument were an attempt ‘to avoid responsibility’ and, as a result, the defendants exhibited shameful conduct.”). These improper comments were numerous, even when viewed in context, and made the argument such that it was not designed to “prompt a ‘logical analysis of the evidence in light of the applicable law.’ ” Intramed, 93 So.3d at 507 (citation omitted). While only some of the comments were properly preserved for our review, comments such as Allstate “made up issues” and “manufactured” a defense improperly denigrated Allstate’s defense and counsel. See Carnival Corp. v. Pajares, 972 So.2d 973, 977 (Fla. 3d DCA 2007). In addition, we agree with Allstate that Marotta’s objected-to comment that “[t]here was a debt created ... by that uninsured motorist” ran afoul of the rule that an uninsured motorist insurance carrier is “entitled to raise and assert any defense that the uninsured motorist could have argued.” State Farm Mut. Auto. Ins. Co. v. Revuelta, 901 So.2d 377, 380 (Fla. 3d DCA 2005).

Turning to Marotta’s impeachment of Dr. Lins, Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii) provides that “[a] party may obtain,” with respect to “a person expected to be called as an expert witness at trial”: (1) the expert’s “scope of employment in the pending case and the compensation for such service”; (2) “[t]he expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants”; (3) “[t]he identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial”; and (4) “[a]n approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness.” However, “[a]n expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents.” Id.

We find that Marotta’s questioning of Dr. Lins was improper as to the absence of detailed records showing the number of and payment for compulsory medical examinations performed by Dr. Lins for Allstate. See Elkins v. Syken, 672 So.2d 517 (Fla.1996). Dr. Lins was not required to produce information on the specific topics referred to in the questioning, which had been produced by Allstate, the party, in the tax identification number report. Further, the impeachment used by Marotta, questioning Dr. Lins on his failure to physically bring requested items with him to court, rather than on eliciting testimony which would tend to show Dr. Lins’s bias in favor of Allstate, was equally inappropriate. See, e.g., Sanchez v. Nerys, 954 So.2d 630, 632 (Fla. 3d DCA 2007) (finding questioning of expert regarding the expert’s maintenance of computer records documenting cases in which expert served as an expert witness “went beyond permissible grounds on the issue of bias”).

We find that the cumulative errors in this case, including both the improper closing arguments and improper impeachment on cross-examination of Dr. Lins, when viewed together, created reversible error. The closing argument in this case, like in Intramed, “shifted the focus of the case from compensating the plaintiff to punishing the defendant.” 93 So.3d at 507. “The purpose of damages here was to compensate, not to make the defendant care, ‘take responsibility,’ or say it was sorry.” Id. The error here is similar to the quantity of error in Intramed, where we reversed a final judgment in a negligence action based on the plaintiffs improper closing argument and untimely disclosure of an expert witness.

Further, in evaluating whether the errors were harmless, we may consider “the cumulative effect” of preserved and unpreserved error. Howard v. Palmer, 123 So.3d 1171, 2013 WL 950040 (Fla. 4th DCA 2013). Taking into account additional, unpreserved improper closing argument comments, we are unable to conclude that the errors, taken together, were harmless. Special v. Baux, 79 So.3d 755 (Fla. 4th DCA 2011) (en bane), rev. granted sub nom., Special v. W. Boca Med. Ctr., 90 So.3d 273 (Fla.2012). We, therefore, reverse the final judgment based on the improper closing argument by Marotta, in combination with the improper cross-examination of Dr. Lins.

We find that Marotta’s cross-appeal is moot as a result of our decision. However, we nevertheless address the cross-appeal in an effort to conserve judicial resources, as the issue raised will likely have to be addressed in any subsequent trial.

As suggested in Foremost Insurance Co. v. Warmuth, 649 So.2d 939, 941 (Fla. 4th DCA 1995), the possibility that an uninsured motorist claimant’s recovery could be consumed entirely by costs could serve to chill an uninsured motorist claimant’s motivation for bringing suit. Because statutory uninsured motorist coverage is meant to compensate the insured for a deficiency in the tortfeasor’s coverage, the statute was intended to allow the same recovery that would have been available from the tortfeasor had the tortfeasor been insured to the same extent as the insured. See Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077, 1081 (Fla.1978). Thus, the provision in Allstate’s policy providing that costs are to be paid by the party incurring them is unenforceable, as it would not provide the insured with the same recovery had the tortfeasor been insured to the same extent of the insured. See Am. Indem. Co. v. Comeau, 419 So.2d 670, 672 (Fla. 5th DCA 1982) (“[A] provision in any arbitration clause of an insurance policy providing uninsured motorist coverage requiring each party to bear his own costs is an invalid attempt to reduce statutory coverage.”). Consistent with Foremost, “an uninsured motorist carrier can be liable for taxable costs above and beyond its stated policy limits.” Foremost, 649 So.2d at 941. Allstate shall be liable for costs should Marotta prevail in a new trial.

In summary, we find that the trial court erred in denying Allstate’s motion for new trial, and we reverse and remand for a new trial.

Reversed and remanded for a new trial.

WARNER and CIKLIN, JJ„ concur.

      . Special defined the standard for harmless error in civil cases by requiring "the beneficiary of the error in the trial court” to "show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict.” 79 So.3d at 757. In contrast, prior to Special, in determining whether the comments were harmless, we looked only to whether the improper comments "either individually or collectively, were so prejudicial as to deny appellants a fair trial.” See Philippon v. Shreffler, 33 So.3d 704, 710 (Fla. 4th DCA 2010).


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    Carlos SANTOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1466.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.

      Stewart Valencia of Holman, Cohen & Valencia, Hollywood, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Carlos Santos appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which alleges four separate grounds for relief. We affirm all points and write to address Point 1.

Santos was convicted after jury trial of trafficking in cocaine and conspiracy to traffic in cocaine. The court sentenced him to concurrent terms of fifteen years in prison. Santos’ postconviction motion alleged these facts:

8. The defendant, Carlos Santos was never told by his trial counsel that his codefendent Carlos Aldarondo would be testifying against him at trial, and initially, found out when [the assistant state attorney] eluded [sic] to it in her opening argument on March 18th 2008.
9. Trial counsel’s performance was deficient in that his failure to notify the Defendant of this extremely important fact did not allow the Defendant the opportunity to properly evaluate his case, and there is a reasonable probability that counsel’s deficient performance affected the outcome of the trial. Had the Defendant been told that his co-defendant would be testifying against him, he would have taken the government’s offer to plea said case.

The State’s response to the motion included record attachments that showed that Aldarondo was listed as a prosecution witness over one year prior to trial. A transcript demonstrated that, during voir dire, the prosecutor told the jury panel that Carlos Aldarondo was a “potential witness” in the case. Thus, the allegation contained in paragraph 8, above, was demonstrably false.

A transcript also shows that prior to voir dire, the trial court extensively inquired about whether a plea offer had been made and explored Santos’ understanding of the potential consequences of his rejecting the plea and being found guilty at trial. The prosecutor said that she had offered a plea to three years in prison “as a minimum mandatory.” The court asked defense counsel if he had discussed the plea with his client; the attorney responded that he had and that his client had rejected it. The prosecutor then said that the “co-defendant [pled] out.” The trial court then questioned Santos about the plea offer and the consequences of a guilty verdict if he were to be found guilty after a trial:

The Court: Mr. Santos, do you understand that you are facing two possible counts? One is trafficking in cocaine. The maximum period of time that you could go to prison for, on that particular charge if you were to be found guilty by the jury, would be 30 years, do you understand that, sir?
Santos: Yes, sir.
The Court: Okay. And, you have a second count. That is for conspiracy to traffic in cocaine, do you understand that, sir?
Santos: Yes, sir.
The Court: The maximum period of time you could go to prison for on that charge would be 30 years, do you understand that?
Santos: Yes, sir.
The Court: If the jury were to come back and find you guilty with regard to both charges, do you understand that the maximum period of time that you could face is 30 years in Florida State Prison, do you understand that?
Santos: Yes, sir.
The Court: Count 1, trafficking in cocaine, has a minimum mandatory of three years in Florida State Prison. This court’s legislative directive, I guess is the best way to describe it, would be that I could sentence you to no less than three years as a minimum mandatory on Count 1. However, you would have a maximum of 60 years in Florida State Prison if you are found guilty as charged. The State said to me that they have relayed to you an offer. That offer was three years in Florida State Prison, with a three year minimum mandatory, do you understand that?
Santos: Yes.
The Court: I don’t want to know what you discussed with [trial counsel], or anyone associated with this case during the period of time that this case has been pending, but you have had a full opportunity to discuss what could happen to you as a result of being convicted, is that correct?
Santos: Yes.
The Court: And it’s your desire to reject the three year minimum mandatory offer that has been presented by the State?
Santos: Correct.

The record thus demonstrates that a generous plea was available, that a co-defendant who had taken a plea was a potential witness, that Santos knew about the strong possibility of this testimony at least by the beginning of voir dire, and that Santos rejected the plea in spite of the trial judge’s crystal clear portrayal of the risk of going to trial. There is no allegation in the motion that Santos reconsidered and sought to reopen plea negotiations at any time prior to the verdict. The record paints a picture of a defendant who rolled the dice and lost, but who now seeks to reinstate a plea bargain with the benefit of hindsight.

This was not an unconveyed plea offer. See Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Cottle v. State, 733 So.2d 963, 969 (Fla.1999). There is no claim that the attorney gave incompetent advice by advising Santos to reject the plea offer. See Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). The trial court hammered home the maximum penalties that Santos faced, and there is no allegation that counsel misadvised Santos of the penalties. See Morgan v. State, 991 So.2d 835 (Fla.2008). Morgan recognizes the viability of lost plea offer claims where counsel (1) tells the defendant to reject the offer, (2) misadvises about the maximum penalty, or (3) fails to convey an offer. In recent cases, this court has refused to extend Morgan beyond these types of claims. Sirota v. State, 95 So.3d 313, 319 (Fla. 4th DCA 2012); Hurt v. State, 82 So.3d 1090, 1092-93 (Fla. 4th DCA 2012).

Courts reviewing ineffective assistance of counsel claims must strongly presume that counsel provided the assistance contemplated by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial scrutiny of counsel’s performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. Santos’ bald, and partially refuted, allegations in the motion do not overcome the strong presumption that counsel provided reasonably competent assistance. While the co-defendant’s testimony provided additional strong evidence of Santos’ guilt, even without this testimony, the State had powerful evidence showing that Santos supplied the cocaine that was to be sold to the confidential informants. This evidence included recorded phone conversations between Santos and the confidential informants setting up the transaction. Police observed Santos arrive at the arranged location and enter the confidential informant’s vehicle. Police moved in upon receiving a signal from the confidential informants and found the cocaine on the floorboard in the area where Santos was sitting.

Further, considering the totality of the circumstances — including the trial court’s extensive pretrial inquiry regarding the plea offer — Santos has failed to make a prima facie case for a hearing by showing an objectively reasonable probability that he would have accepted the plea bargain. Sirota, 95 So.3d at 320 (“The burden remains on the movant to allege circumstances to establish a sufficient claim, and the bar for asserting a claim sufficient to require an evidentiary hearing has been set high.”).

Affirmed.

DAMOORGIAN and LEVINE, JJ., concur.


author: MAY, C.J.

text:
    Lavern DIXON, Appellant, v. EXPRESS EQUITY LENDING GROUP, LLLP, Appellee.
    No. 4D12-1381.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.

      Peter Ticktin, Josh Bleil and Kendrick Almaguer of The Ticktin Law Group, P.A., Deerfield Beach, for appellant.
    No appearance filed for appellee.
   MAY, C.J.

A homeowner appeals a Final Judgment of Foreclosure. She argues the trial court erred in entering the final judgment because the special indorsement on the note refers to a non-party to the foreclosure proceedings. We agree and reverse.

The homeowner moved to dismiss the Complaint, and then before a ruling on the motion, answered asserting affirmative defenses. The case proceeded to a bench trial. At trial, the lender produced the original note. The note promised “to pay to the order of EXPRESS EQUITY LENDING GROUP, LLLP, ITS SUCCESSORS AND OR ASSIGNS AS THEIR INTERESTS MAY APPEAR.” The following language appeared on the back of the original note:

PAY TO THE ORDER OF:
U.S. Century Bank
7575 West Flagler Street
Miami, Florida 33144
With Recourse,
EXPRESS EQUITY LENDING GROUP, LLLP.

During the bench trial, the lender’s counsel elicited the following testimony from the lender’s president:

Q: Okay. Could you explain what the [¡Indorsement is; what it means on the back of the note?
A: Basically, we have a mortgage warehouse agreement where we — where each note is provided as a collateral to a separate mortgage warehouse agreement that we have.
Q: Okay.
A: And the loan itself is Express Equity’s, but we have a separate agreement with our mortgage warehouse, that in the event that we would default in that separate warehouse agreement, then they would be able to foreclose on us, and then eventually foreclose on the real estate. The ownership is Express Equity’s. What we do is convey a security interest in that mortgage on a separate mortgage warehouse agreement.
Q: Okay. So has Express Equity maintained ownership on the subject note since its inception?
A: Yes.

On redirect examination, the president offered the following testimony as to the lender’s standing to foreclose on the mortgage:

Q: Who is the owner and holder of the loan?
A: Express Equity Lending Group.
Q: Okay. You’re testifying to that notwithstanding the stamp pay to the order of U.S. Century Bank with recourse Express Equity Lending Group on the back of this note?
A: I’m sorry, I don’t understand the question.
Q: Has ownership of the note ever transferred, notwithstanding this document?
A: No. As I mentioned before, we’re a mortgage lender. Under a separate mortgage warehouse lending agreement, we endorsed that mortgage, okay, or that note I should say, to pledge a security interest only, not ownership. The intent is that if we were to default on our mortgage warehouse lending agreement, then they could in turn enforce and eventually foreclose on that. However, we would have to be, in other words, we would have to be in default, like the current loan is in default, and yet they’re not here raising or defending or fighting the Plaintiff. Are they? It’s Express Equity. I brought the note. We’re the owners.

The trial court entered a Final Judgment of Foreclosure in favor of the lender. The homeowner now appeals.

The homeowner argues that the trial court erred in entering a final judgment of foreclosure because the lender did not own or hold the note. The lender did not file an answer brief.

We have de novo review of whether a party has standing to bring an action. Westport Recovery Corp. v. Midas, 954 So.2d 750, 752 (Fla. 4th DCA 2007).

Section 673.2051(1), Florida Statutes (2009), provides, in pertinent part:

If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a “special indorsement.” When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the in-dorsement of that person.

“A crucial element of any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. J.P. Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). “To establish standing, the plaintiff must submit the note bearing a special [ijndorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note.” Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012).

Here, the lender did not have standing to foreclose. Although the lender’s president testified that the lender was the owner and holder of the note, the special indorsement appearing on the back of the original note suggests otherwise. Under section 673.2501(1) and Rigby, the special indorsement stating “pay to the order of U.S. Century Bank” established that only U.S. Century Bank had standing to bring the foreclosure action.

We therefore reverse the Final Judgment of Foreclosure and remand for further proceedings.

Reversed and Remanded.

GERBER and LEVINE, JJ., concur.

      . A plaintiff may also establish standing by any means identified in section 673.3011, Florida Statutes (2012).


author: PER CURIAM.

text:
    Norman SCOTT and Jacqueline Scott, Appellants, v. HSBC BANK USA, NATIONAL ASSOCIATION as Indenture Trustee of the Fieldstone Mortgage Investment Trust Series 2006-1, Appellee.
    No. 4D12-3699.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Norman Scott and Jacqueline Scott, Wellington, pro se.
    Franklin G. Cosmen, Jr., Lars O. Bod-nieks and Michael J. Barker of Quintairos, Prieto, Wood & Boyer, P.A., Miami, for appellee.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Alfred C. DINKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4516.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.

      Alfred C. Dinkins, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of the defendant’s Florida Rule of Criminal Procedure 3.850 motion for postconviction relief.

In 1999, in the underlying Palm Beach County case, the defendant entered a negotiated plea to the charge of escape. The escape occurred while the defendant was serving sentences arising from a Duval County circuit court case. Pursuant to the negotiated plea in the Palm Beach County case, the defendant received a thirty-month sentence to be served consecutively to the Duval County sentences.

In 2006, the Department of Corrections audited the defendant’s sentences. The Department concluded that, as a result of the defendant’s escape conviction in the Palm Beach County case, he had forfeited the gain time which he had earned on his Duval County sentences. § 944.28(1), Fla. Stat. (1999).

In 2012, the defendant filed the rule 3.850 motion at issue in this Palm Beach County case. The defendant raised two claims: (1) the forfeiture of his gain time on his Duval County sentences violated his plea agreement in the Palm Beach County case by extending his ultimate release date for several more years; and (2) his attorney in the Palm Beach County case misad-vised him that he would cumulatively serve only eight to ten years in prison if he entered the negotiated plea to escape, and failed to advise him that his gain time on his Duval County sentences could be forfeited as a result of his escape conviction.

The defendant’s first claim lacks merit. The forfeiture of gain time on his Duval County sentences did not impact the thirty-month sentence in the Palm Beach County case and did not violate the plea agreement in that case.

The defendant’s second claim was untimely. The two-year time limit for challenging the plea in the Palm Beach County case began to run on the date that conviction became final, not on the date on which the defendant discovered his attorney’s alleged misadvice. Ey v. State, 982 So.2d 618, 625 (Fla.2008); Lonergan v. State, 13 So.3d 534, 535 (Fla. 4th DCA 2009); Gusow v. State, 6 So.3d 699, 704-05 (Fla. 4th DCA 2009). The defendant, with due diligence, could have discovered within the two-year time limit that his gain time could be forfeited under section 944.28(1) as a result of his escape conviction. Additionally, even if the forfeiture of gain time constituted a newly discovered fact providing an exception to the two-year time limit, which it does not, the defendant did not bring his claim within two years of discovery of the forfeiture. Fla. R. Crim. P. 3.850(b)(1).

Affirmed.

WARNER, CIKLIN and GERBER, JJ., concur.


text:
    T.K., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-1456.
    District Court of Appeal of Florida, Fourth District.
    June 12, 2013.
    Diamond Litty, Public Defender, and Usha Maharajh, Assistant Public Defender, Stuart, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

A juvenile petitioned this court for a writ of habeas corpus seeking release from secure detention prior to an adjudicatory hearing. See § 985.26(2), Fla. Stat. (2012) (permitting a court to continue detention for up to 21 days pending an adjudicatory hearing). We granted the petition by order and this opinion follows.

The undisputed facts in this case indicate that, at nearly 8:00 a.m. on April 20, 2013, a law enforcement officer determined that the juvenile was driving in an inappropriate manner and commenced efforts to have the juvenile bring the car to a stop. The officer testified the juvenile ran a stop sign, made quick turns, and drove at speeds up to 50 or 60 mph in a residential neighborhood. There was no evidence offered that any other vehicle was on the road at the time or that any individuals were in danger of physical harm during the chase. The juvenile, who had no prior record, was cooperative and not combative when he eventually pulled over. During the stop, he said he did not see the officer and that he did not think the officer was coming after him. He acknowledged that he had been “drinking.” A cold beer, an open bottle of vodka, and some marijuana were found in the car. An officer found other cold beers of the same brand on the roadside near where the juvenile had fled.

Along with marijuana possession and possession of alcohol by a minor, the juvenile was charged with aggravated fleeing and eluding pursuant to section 316.1935(3)(a), Florida Statutes (2012). The juvenile probation officer included 12 points on the risk assessment instrument (RAI) for the aggravated fleeing and eluding charge. A score of 12 points or more on the RAI authorizes secure detention, as opposed to nonsecure detention or home detention care. Section IIIA.2 of the RAI form requires the juvenile probation officer to score 12 points when the “most serious current offense” is a “violent second degree felon[y]” (emphasis added). By contrast, second degree felony drug charges earn 10 points; second degree felony charges for dealing in stolen property earn 7 points; and “all other second degree felonies” earn 8 points. At the detention hearing and in this petition, defense counsel argued that this offense should not have been scored as a “violent” second degree felony, but as an “all other second degree felon[y],” and thus scored below the 12 points required for secure detention.

The part of the statute that specifically addresses “detention” notes:

All determinations and court orders regarding placement of a child into detention care shall comply with all requirements and criteria provided in this part and shall be based on a risk assessment of the child, unless the child is placed into detention care as provided in s.985.255(2).

§ 985.245(1), Fla. Stat. (2012). There are no rules, controlling statute, case law, or anything on the RAI itself that define what constitutes “violent second degree felonies” in Section IIIA.2. of the RAI and how these felonies are differentiated from the “all other second degree felonies” that score 8 points.

We do not agree with defense counsel that enumerated offenses in recidivist statutes or the definition of “forcible felony” in section 776.08, Florida Statutes, apply or should apply to the RAI and the decision of whether to hold a child in secure detention. See Bynes v. State, 127 So.3d 556, 2012 WL 5500335 (Fla. 4th DCA 2012). But, we agree that the plain meaning of the word “violent” is not applicable to the section 316.1935(3)(a) offense of “aggravated fleeing or eluding.” A court may consider the plain language of words used in the RAI in deciding whether an offense is properly scored. See, e.g., M.S. v. Housel, 907 So.2d 651, 654 (Fla. 4th DCA 2005); C.R.C. v. Portesy, 731 So.2d 770 (Fla. 2d DCA 1999).

The American Heritage Dictionary (2011) defines “violent” in part as:

1.
a. Causing or intending to cause damage, injury, or death, often when involving great force: a violent car crash; a violent attack.
b. Characterized by or displaying physical -violence: a violent past, a violent movie.
c. Caused by unexpected force or injury rather than by natural causes: a violent death.
d. Given to physical violence: a violent criminal.

Black’s Law Dictionary (2009) defines “violent” as:

1. Of, relating to, or characterized by strong physical force evident blows to the legs>. 2. Resulting from extreme or intense force evident death >. 3. Vehemently or passionately threatening e violent words >.

Whether looking at the elements of the charge, as the defense argued, or the facts in this case, as the state argued, this was not a “violent” offense within the plain meaning of that term, in contrast to other second degree felonies, such as aggravated battery and homicide. Here, there was no “strong physical force” or “intense or vehement threat to persons or property,” nor did the juvenile’s conduct result in “serious bodily injury or death to another person,” which would have raised the offense to a first degree felony, § 316.1935(3)(b), Fla. Stat. (2012). Under the circumstances, twelve points should not have been added to the RAI score for this charge.

Accordingly, the petition is granted.

MAY, C.J., GROSS and FORST, JJ., concur.

      . This subsection provides:
      Any person who willfully flees or attempts to elude a law enforcement officer ⅝ an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding:
      (a) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Section 985.255(2), Florida Statutes, relates to domestic violence charges and is not applicable in this case.


text:
    Michael MADRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4132.
    District Court of Appeal of Florida, Fourth District.
    June 12, 2013.
    Michael Madry, Indiantown, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s untimely and successive postconviction challenge. Appellant’s petition for writ of ha-beas corpus alleges that the information that was filed in 1980 was not signed. The alleged defect in the information was waived and is not a basis for postconviction relief. Fla. R.Crim. P. 3.140(g) (“No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.”). Appellant’s claim that the trial court lacked jurisdiction because the information was not signed is without merit. Colson v. State, 717 So.2d 554, 555 (Fla. 4th DCA 1998).

Affirmed.

MAY, C.J., TAYLOR and GERBER, JJ., concur.


text:
    Ronald and Bleuette STEINBERG, Appellants, v. BAC HOME LOANS SERVICING, L.P., f/k/a Countrywide Home Loans Servicing, L.P., Appellee.
    No. 2D12-3991.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.
    Dineen Pashoukos Wasylik of Conwell Kirkpatrick, P.A., Tampa, for Appellants.
    William David Newman, Jr. of Choice Legal Group, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

Ronald and Bleuette Steinberg appeal a final judgment of foreclosure. BAC Home Loans Servicing, L.P., f/k/a Countrywide Home Loans Servicing, L.P., responded to the Steinbergs’ initial brief by filing a confession of error, admitting that the case was controlled by Bryson v. Branch Banking and Trust Co., 75 So.3d 783 (Fla. 2d DCA 2011). It suggested that we direct the lower court clerk to vacate the certificates of sale, disbursements, and title. .It agreed that the final judgment should be vacated.

To avoid delay, this court issued an order relinquishing jurisdiction to the circuit court to vacate the certificates. We have now received a status report establishing that the certificates have all been vacated. Pursuant to the confession of error, we reverse the judgment on appeal and remand for further proceedings.

Reversed and remanded.

ALTENBERND, KELLY, and LaROSE, JJ., Concur.


author: WALLACE, Judge.

text:
    John Frederick PERIE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4840.
    District Court of Appeal of Florida, Second District.
    June 14, 2013.

      John Frederick Perie, pro se.
   WALLACE, Judge.

We affirm the postconviction court’s summary denial of John Frederick Perie’s motion filed under Florida Rule of Criminal Procedure 3.850 as untimely filed. We agree with the First District that Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), do not establish a new fundamental constitutional right as contemplated by rule 3.850(b)(2) and thus do not provide an exception to the two-year time limit for filing a timely postconviction motion. See Simmons v. State, 104 So.3d 1185, 1186-87 (Fla. 1st DCA 2012). As the First District explained in Simmons, the two decisions issued by the Supreme Court of the United States

are but a refinement of decisions already handed down, a clearer articulation of existing law that does not establish new constitutional rights: Both Lafler and Frye are properly viewed as “evolutionary refinements” to well-established rules governing ineffective assistance of counsel claims in the context of convictions predicated on pleas.

Id. (citing Walton v. State, 77 So.3d 639, 643 (Fla.2011), and State v. Barnum, 921 So.2d 513, 526 (Fla.2005)).

Affirmed.

CASANUEVA and BLACK, JJ., Concur.


text:
    Glenda MARTINEZ, as healthcare surrogate, attorney-in-fact, and wife of J. Alan Smith, the Ward, Appellant, v. John CRAMER, as emergency temporary guardian of the Ward, Appellee.
    No. 4D13-405.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.

      Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Ellen S. Morris of Elder Law Associates PA, Boca Raton, for appellee.
   PER CURIAM.

Under the Florida Guardianship Law, any person who is alleged to be incapacitated is entitled to be represented by counsel in proceedings to determine capacity and to determine whether a guardian should be appointed over their person or property. At issue in this case is when a court must appoint counsel for an alleged incapacitated person if a court determines a guardian needs to be appointed on an emergency basis. We hold that counsel must be appointed at the same time the emergency temporary guardian is appointed.

In 2010, guardianship proceedings were instituted for J. Alan Smith after he was injured in an automobile accident. Prior to the accident, Smith had designated Glenda Martinez as his health care surrogate and given her a power of attorney. In April 2010, an order determining incapacity was entered that determined Smith was unable to exercise his right to contract and was unable to manage his property and finances. Smith’s son was appointed as guardian of Smith’s property. However, the court found that there was no incapacity that would warrant a guardian of Smith’s person. John Cramer, a. professional- guardian, succeeded- Smith’s son as guardian of Smith’s property in August 2010.

Smith entered a residential facility in September 2010. Between September 2010 and November 2012, Martinez relocated Smith nine times: eight times to a new facility and once to a private residence. In November 2012, Martinez planned to move Smith again from a facility in Lauderhill to her home. In reaction, Cramer filed an emergency motion with the guardianship court, seeking a temporary injunction to prevent the removal of Smith from the .Lauderhill facility. The motion alleged Smith would suffer immediate and irreparable injury because it would disrupt Smith’s medical care and result in excessive moving-related costs. Cramer did not serve the motion on Martinez because he claimed he did not. know where she was located. On December 5, 2012, Cramer also filed a renewed petition to determine incapacity and petition to appoint a guardian of Smith’s person. Smith was not appointed counsel when the petition was filed. . .

The trial court granted the motion for temporary injunction. Martinez moved to dissolve the injunction, and a hearing was held on December 18, 2012. Smith was not represented by counsel at the hearing. Cramer testified that Smith was currently noncommunicative, bedridden, and had recently suffered a leg injury that became infected. Cramer filed the motion for a temporary injunction because Martinez wanted to move Smith to her home, and in Cramer’s opinion, Smith needed to be in a skilled nursing facility with stable place-raent where the staff could get to know him and Smith could socialize. Cramer also called an administrator from the Lauderhill facility to testify that Smith needed to be in a skilled nursing facility.

At the conclusion of the hearing, instead of deciding to extend or terminate the temporary injunction, the trial court decided to appoint an emergency temporary guardian for Smith’s person. As the trial judge was uncertain whether he could do this without a petition, the judge directed Cramer to file one and stated that the court would grant it based upon the evidence presented at the hearing. Cramer filed a petition for appointment of an emergency temporary guardian, and the trial court granted the petition on December 19, 2012. The trial court did not appoint counsel for Smith until. January 2, 2013.

On appeal, Martinez argues, among other grounds for reversal, that the trial court violated Smith’s right to be represented by counsel by entering the order without first appointing counsel for Smith. Martinez relies on section 744.3031(1), Florida Statutes (2012), and especially that statute’s last sentence:

A court, prior to appointment of a guardian but after a petition for determination of incapacity has been filed pursuant to this chapter, may appoint an emergency temporary guardian for the person or property, or both, of an alleged incapacitated person. The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. The subject of the proceeding or any adult interested in the welfare of that person may apply to the court in which the proceeding is pending for the emergency appointment of a temporary guardian. The powers and duties of the emergency temporary guardian must be specifically enumerated by court order. The court shall appoint counsel to represent the alleged incapacitated person during any such summary proceedings, and such appointed counsel may request that the proceeding be recorded and transcribed.

(emphasis added).

In non-emergency situations, a trial court is required to appoint counsel for an alleged incapacitated person when the petition for adjudication of incapacity is filed. § 744.331(2)(b), Fla. Stat. (2012) The trial court must appoint the office of criminal conflict and civil regional counsel or private registry counsel, although the alleged incapacitated person can substitute their own counsel. § 744.331(2)(a), Fla. Stat. (2012). Appointed counsel serves until review of the initial guardianship report. § 744.362(2), Fla. Stat. (2012).

We have previously held that failure to appoint an attorney for an alleged incapacitated person in a proceeding to determine incapacity is fundamental error. In re Fey, 624 So.2d 770, 772 (Fla. 4th DCA 1993). In Fey, the ward was hospitalized and suffered physical and mental degradation, so she was released to a nursing home. When the appellant, the ward’s stepson, insisted on moving the ward to Georgia, the nursing home’s social services director urged a third party to file a petition for determination of incapacity and for appointment of a guardian. A lawyer filed a motion to enjoin the ward’s removal from the nursing home on the ward’s behalf, but the lawyer was not hired by the ward or appointed by the court. The trial court entered an order determining the ward to be incapacitated and appointing the third party as guardian of the ward’s person. Id. at 771. The stepson appealed, arguing the trial court’s failure to appoint independent counsel constituted fundamental error. This court noted that section 744.381 (2)(a) requires a trial court to appoint counsel for a ward when a petition to determine incapacity is filed. Although the trial court had appointed an attorney at the final hearing, we held that was untimely, and that the failure to appoint counsel at the beginning of the process was one of fundamental proportions. Id. at 772.

Here, the trial court erred twice: once when it failed to appoint counsel for Smith when Cramer filed the renewed petition for determination of incapacity and again when it failed to appoint Smith counsel when it appointed an emergency temporary guardian. Cramer argues that since no “summary proceeding” was held for the appointment of an emergency temporary guardian, no appointment of counsel is necessary. This argument elevates form over substance. The trial court’s decision to appoint an emergency temporary guardian after hearing the evidence presented at the hearing on the temporary injunction converted the hearing into a “summary proceeding” for purposes of section 744.3031(1).

However, in light of counsel’s representation at oral argument that Cram-er’s term as emergency temporary guardian was extended after counsel was appointed for Smith, we find the trial court’s failure to appoint counsel for Smith does not rise to the level of reversible error.

We affirm without comment on the other issues raised by Martinez.

Affirmed.

STEVENSON, DAMOORGIAN and CONNER, JJ., concur.


text:
    Terry L. NORMAN, Appellant, v. Jack “Jackson” PADGETT, Mark Negrete, George L. Kessinger, Adam Burnett and Ronald F. Gofrank, Appellees.
    No. 4D12-1047.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.

      Jose R. Riguera of Berman, Kean & Riguera, P.A., Fort Lauderdale, for appellant.
    Paul K. Silverberg and Kraig S. Weiss of Silverberg & Weiss, P.A., Weston, for Appellee-Padgett.
   PER CURIAM.

Appellant, Terry Norman, appeals from a summary judgment entered against him on his claim for breach of contract against the buyers of his shares in Gat Bar, Inc., and also from a final judgment entered against him after a non-jury trial on the buyers’ counterclaim for fraud in the inducement concerning the sale of the stock. Without further discussion, we affirm the trial court’s entry of summary judgment against Norman on his claim against the buyers for breach of contract. However, we reverse the final judgment in favor of the buyers on their counterclaim for fraudulent inducement.

The sufficiency of the evidence is an issue of law reviewed de novo. See Fina v. Hennarichs, 19 So.3d 1081, 1084 (Fla. 4th DCA 2009). “When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.” Fla. R. Civ. P. 1.530(e).

The issue we address in this case is whether the buyers were justified in relying on the alleged fraudulent misrepresentation regarding the payroll costs of the business.

“The recipient of a fraudulent misrepresentation is not justified in relying upon its truth if he knows that it is false or its falsity is obvious to him.” Besett v. Basnett, 389 So.2d 995, 997 (Fla.1980).

Here, the gravamen of the fraudulent inducement claim was that one of the sellers of the business falsely represented that the payroll expenses for the business would be $17,500 per week, when in fact the weekly payroll expenses were over $15,000 higher. However, in a pro forma document that one of the buyers prepared before purchasing the business, there is a section labeled “Staffing Assumptions,” which indicates that the total labor costs would be over $35,000 per week. Thus, the buyers were either aware of the falsity of the alleged misrepresentation or its falsity would have been obvious to them. On these facts, Norman cannot be liable for fraudulent misrepresentation.

Accordingly, we reverse the final judgment and remand for entry of judgment in favor of Norman on the buyers’ counterclaim.

Affirmed in part, Reversed in part, and Remanded.

MAY, C.J., TAYLOR and GERBER, JJ., concur.


text:
    Jerrold BARON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-1076.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.
    Jerrold Baron, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Jerrold Baron filed this petition alleging ineffective assistance of his appellate counsel on multiple grounds. Included in his claims was an argument that appellate counsel should have raised on direct appeal a double jeopardy challenge to his dual convictions and sentences for leaving the scene of an accident with death (count 2) and DUI manslaughter-leaving the scene of an accident (count 6). We grant the petition as to this claim, and deny relief on the others.

Baron pled guilty to leaving the scene of an accident, tampering with evidence, and giving a false report to law enforcement. In the same prosecution, he was tried for vehicular homicide and DUI manslaughter-leaving the scene of an accident with a death. Baron was sentenced to fifteen years for the DUI manslaughter-leaving the scene of an accident with a death, fifteen years for leaving the scene of an accident causing death, five years for tampering with evidence, and one year for giving a false report to law enforcement. He appealed to , this court, arguing trial court error in the denial of a motion for mistrial. This court per curiam affirmed without opinion in Baron v. State, 6 So.3d 618 (Fla. 4th DCA 2009).

Baron filed two prior motions to correct illegal sentence on double jeopardy grounds, which the trial court summarily, denied. We affirmed the denial of one in Baron v. State, 39 So.3d 1274 (Fla. 4th DCA 2010), addressing an unrelated issue, and Baron voluntarily dismissed his appeal from the other trial court order of denial. We do not find that the trial court orders denying those motions or his appeals dis-positive or preclusive of the issue here. Ordinarily, a double jeopardy challenge to a defendant’s convictions cannot be argued in a rule 3.800(a) motion, as the challenge relates to the convictions rather than the sentences. Black v. State, 52 So.3d 830, 831 (Fla. 4th DCA 2011). Insofar as the previous motions challenged his sentences on double jeopardy grounds, the trial court orders did not reach the merits of the issue, and we do not find that Baron is precluded by estoppel from raising his claim in this petition.

Baron has demonstrated a violation of double jeopardy in his dual convictions and sentences on count two, leaving the scene of an accident with death and count six, DUI manslaughter with leaving the scene of an accident. In Ivey v. State, 47 So.3d 908 (Fla. 3d DCA 2010), the third district held that while there was no double jeopardy violation by dual convictions for DUI manslaughter and leaving the scene of a fatal accident, there is such a violation when the defendant’s DUI manslaughter conviction is enhanced from a second degree felony to a first degree felony because he left the scene of a fatal accident, and then is separately convicted of leaving the scene of a fatal accident. See also Colon v. State, 53 So.3d 376 (Fla. 5th DCA 2011); Goldman v. State, 918 So.2d 442 (Fla. 4th DCA 2006); Pierce v. State, 744 So.2d 1193 (Fla. 4th DCA 1999). That enhancement took place here as well, evidenced by the judgment of conviction and its citation to section 316.193(3)(c)3.b., Fla. Stat. (2006). The judgment identified the conviction as a first degree felony.

We reject the State’s attempts to distinguish those cases by pointing out that at sentencing here, the prosecutor discussed the double jeopardy issue with the judge and cured any potential violation of double jeopardy by suggesting that the leaving the scene aspects of the counts would merge. The problem is that the judgment of conviction demonstrates that Baron was convicted of leaving the scene of an accident with death in count two and DUI manslaughter with leaving the scene of an accident in count six. He was sentenced to fifteen years for leaving the scene of an accident with death for count two, and to fifteen years for the DUI manslaughter with leaving the scene of an accident, with those counts to run consecutively. Whatever the prosecutor and sentencing judge may have intended does not overcome this double jeopardy violation on the record.

Under these circumstances, we conclude that petitioner has demonstrated that appellate counsel rendered ineffective assistance in failing to raise this double jeopardy issue as one of fundamental error on appeal. See generally Binns v. State, 979 So.2d 439 (Fla. 4th DCA 2008); Downs v. Moore, 801 So.2d 906 (Fla.2001).

The petition is granted in part, as to this double jeopardy challenge, and denied as to the remaining issues. This case is remanded for proceedings consistent with this opinion as to petitioner’s dual convictions and sentences on counts two and six. The trial court shall vacate the conviction and sentence on either of those two counts. Binns, 979 So.2d at 442.

Petition granted in part and denied in part. Cause remanded for further proceedings.

CIKLIN, LEVINE and CONNER, JJ., concur.

      . On double jeopardy grounds, he was not adjudicated or sentenced for vehicular homicide, as it merged with the DUI manslaughter conviction. Similarly, he was not adjudicated or sentenced for one count of leaving the scene of an accident causing injury, as it merged with count two, leaving the scene of an accident causing death.


text:
    Brian KELLY a/k/a Brian K. Kelly, Appellant, v. BANKUNITED, FSB, Appellee.
    No. 4D11-2022.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.
    Kirk J. Girrbach, of The Law Office of Kirk Girrbach, P.A., Fort Lauderdale, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

BankUnited, FSB, filed a foreclosure complaint against Brian Kelly. In response, Kelly filed an answer and affirmative defenses, which were later amended. BankUnited requested summary judgment, and a hearing was held. However, Kelly’s attorney was unable to attend the hearing due to a secretarial error, which was evidenced by affidavit. Although Kelly’s attorney immediately requested rehearing pursuant to Florida Rule of Civil Procedure 1.530 based upon excusable neglect, it was denied. We find this was an error and reverse.

A trial court may relieve a party from a final judgment upon a showing of excusable neglect. Denial of relief on such basis is reviewed for an abuse of discretion. See SunTrust Bank v. Puleo, 76 So.3d 1037, 1039 (Fla. 4th DCA 2011).

We have previously held that an attorney’s failure to appear due to secretarial error is excusable neglect. J.J.K. Int’l., Inc. v. Shivbaran, 985 So.2d 66, 69 (Fla. 4th DCA 2008). Because here, Kelly’s attorney failed to appear as a result of his secretary mistakenly scheduling multiple hearings at different courthouses at the same time, the trial court erred by refusing to rehear the motion for summary judgment.

Because the record demonstrates excusable neglect, it was error to deny Kelly’s motion for rehearing. As a result, we find it necessary to reverse and remand to the trial court for rehearing of BankUnited’s motion for summary judgment.

Reversed and remanded.

GROSS, CIKLIN and CONNER, JJ., concur.


text:
    Carson PREECE, Appellant, v. BETHESDA MEMORIAL HOSPITAL, INC. and Juan Santiago, M.D., Appellees.
    No. 4D11-3148.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.
    Bard D. Rockenbach and Nichole J. Se-gal of Burlington & Rockenbach, P.A., and Bill Bone of Larmoyeux & Bone, PL, West Palm Beach, for appellant.
    William T. Viergever of Sonneborn Rut-ter Cooney & Smith, P.A., West Palm Beach, for appellee Bethesda Memorial Hospital, Inc.
   PER CURIAM.

Affirmed. See Ziegler v. Tenet Health Sys., Inc., 956 So.2d 551 (Fla. 4th DCA 2007).

STEVENSON, GROSS and TAYLOR, JJ., concur.


author: DAMOORGIAN, J.

text:
    David JONES, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D11-3756, 4D11-3757, 4D11-3758.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

David Jones appeals an order denying his amended motion to withdraw his pleas of no contest to the charges of: felony battery; resisting an officer with violence; possession of cannabis with intent to sell; possession of alprazolam; and driving with a suspended license. At issue is whether the trial court conducted a proper competency hearing in accordance with Florida Rule of Criminal Procedure 3.212 prior to Jones entering his pleas of no contest. Having concluded that the trial court conducted a proper competency hearing under Rule 3.212, we affirm.

The following facts are relevant to our resolution of the issue before us. At some point after Jones was charged with the aforementioned crimes, he was declared incompetent and committed to a State mental health facility. After a period of incompetency, Jones petitioned the court to hold a competency hearing and declare him competent. At the hearing, Jones’ counsel presented two expert competency evaluations to the court, both finding Jones competent to proceed. The State stipulated to the admission and contents of the reports, and pursuant to the parties’ request, the court accepted the reports in lieu of expert testimony. After considering the evidence, the court declared Jones competent to proceed.

Shortly after he was declared competent, Jones entered a plea of no contest to each of the four charges against him and was placed on probation. Within a week, Jones committed a new law violation in violation of his probation. Facing a revocation of his probation, he filed a motion to withdraw his plea, arguing that he was not afforded a sufficient competency hearing. The trial court held several hearings on the motion. After reviewing the transcript of the competency hearing held before Jones entered his pleas, the trial court noted that both sides stipulated to the expert reports finding Jones competent. The trial court concluded that Jones was afforded a full competency hearing in accordance with Rule 3.212(c)(7) and denied the motion. This appeal follows.

A proper hearing to determine whether competency has been restored after a period of incompetence requires “the calling of court-appointed expert witnesses designated under Florida Rule of Criminal Procedure 3.211, a determination of competence to proceed, and the entry of an order finding competence.” Samson v. State, 853 So.2d 1116, 1117 (Fla. 4th DCA 2003). However, “where the parties and the judge agree, the trial Court may decide the issue of competency on the basis of the written reports alone.” Fowler v. State, 255 So.2d 513, 515 (Fla.1971). See also Molina v. State, 946 So.2d 1103, 1105 (Fla. 5th DCA 2006) (noting that it is appropriate for the trial court to consider only repoi'ts to determine a defendant’s competency at a hearing following a period of incompetency so long as the parties agree).

Jones recognizes this precedent, but suggests that our own precedent compels the trial court to require expert testimony even when the parties stipulate to the experts’ written reports and conclusions and choose not to present any further evidence or argument. In support of this position, Jones exclusively relies on our opinion in Macaluso v. State, 12 So.3d 914 (Fla. 4th DCA 2009).

In Macaluso:

[A] Defendant was found incompetent to stand trial and sent to a facility. The court held a hearing five months later. His attorney advised the court that he had since been found competent based on ‘evaluations that were obtained by the Public Defender’s Office.’ Without further hearing or evidence, the court spontaneously declared defendant competent to begin trial and the case proceeded to trial.

Id. at 915. On appeal-, we reversed and remanded on the basis that the defendant was not afforded a proper evidentiary hearing, reasoning that “[i]f [Rule 3.212] wanted lawyers to be able to stipulate to restored competency without an evidentia-ry hearing, it would have so stated in explicit terms.” Id.

Macaluso recognized that Rule 3.212 does not sanction stipulations to the ultimate issue of competency. That task is expressly left to the trial judge and that authority may not be delegated to the lawyers in the case. Id. at 915. See Fowler, 255 So.2d at 515 (holding that a court considering the issue of competency can rely on an expert’s written reports if the parties agree).

Jones’ reliance on Macaluso is misplaced. Here, the parties stipulated to the expert reports. The reports became the evidence upon which the trial court relied to decide the ultimate issue. Finally, nothing in the record suggests that either side was prohibited from presenting any other evidence or arguments, and the trial court entered a written order concluding Jones was competent to proceed as required by the Rule. Based upon the foregoing, we hold that the trial court held a proper competency hearing as contemplated by Rule 3.212.

Affirmed.

WARNER and CONNER, JJ„ concur.

      . Florida Rule of Criminal Procedure 3.212(c)(7) states: "If, at any time after such .commitment, the court decides, after hearing, that the defendant is competent to proceed, it shall enter its order so finding and shall proceed.”

      . In arriving at our decision in Macaluso, we relied on Samson. However, in Samson, we reversed because the trial court did not hold any degree of hearing or render a written order deeming a previously adjudicated incompetent defendant competent. 853 So.2d at 1117. We did not in any way comment on the parties’ ability to stipulate to the contents of an expert report in lieu of testimony at a hearing.


author: ALTENBERND, Judge.

text:
    WHITNEY NATIONAL BANK, Appellant, v. GOLF STRATEGIES, LLC, a Florida limited liability company; John C. Greer, an individual; Tracy J. Harris, Jr., an individual; Henry C. Hardin, III, an individual; Jacob H. Hardin, an individual; John E. Hardin, an individual; Bing Charles W. Kearney, Jr., an individual; Donald E. Phillips, an individual; Todd R. Taylor, an individual; and W. Douglas White, an individual, Appellees.
    No. 2D12-2951.
    District Court of Appeal of Florida, Second District.
    June 21, 2013.
    Sylvia H. Walbolt and Christine Davis Graves of Carlton Fields, P.A., Tampa, for Appellant.
    Steven L. Brannock and Tracy S. Carlin of Brannock & Humphries, Tampa, for Appellees John C. Greer; Tracy J. Harris, Jr.; Henry C. Hardin, III; Jacob H. Hardin; John E. Hardin; Bing Charles W. Kearney, Jr.; Donald E. Phillips; and Todd R. Taylor.
    No appearance for remaining Appellees.
   ALTENBERND, Judge.

Whitney National Bank appeals an amended final judgment entered in an action brought against various guarantors of a promissory note that was secured by a mortgage. The borrower, The Golf Club at Bridgewater, LLC, is not a party to this action and has a proceeding pending in the bankruptcy court of the Middle District of Florida. Whitney does not argue that the trial court erred in the “ordered and adjudged” section of the final judgment.

Whitney correctly observes that the trial court lacked jurisdiction over the property owned by The Golf Club at Bridgewater, LLC, and that the case did not involve a foreclosure against the property. Nevertheless, a portion of the final judgment discussing an affirmative defense of unclean hands, which was raised by some of the guarantors, concludes with the following two sentences: “As such, the Court finds the unclean hands doctrine applicable. Whitney is estopped from foreclosing on an accelerated basis.”

If we correctly understand the proceedings in the bankruptcy court, Whitney has already taken possession of the land and a foreclosure will be unnecessary. Nevertheless, to avoid any possible confusion, on remand we order the trial court to strike from the amended final judgment the sentence: “Whitney is estopped from foreclosing on an accelerated basis.”

Affirmed with instructions.

LAROSE, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


text:
    Abel MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4780.
    District Court of Appeal of Florida, Fourth District.
    June 26, 2013.

      Shlomi Presser of the Law Office of Shlomi Presser, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issues presented for our review are whether the trial court erred in allowing the state, during a criminal prosecution, to question witnesses and argue in closing argument that appellant had hired a law firm to file a civil suit related to the incident for which appellant was arrested. We find, specifically, that the trial court erred in allowing the state to question a doctor, testifying for appellant, as to whether appellant had hired a civil attorney to file a lawsuit. We further find that the error was not harmless, as it was compounded by the questioning of appellant’s wife as to whether appellant had hired a civil attorney and the state’s references in closing argument to appellant “gearing up for a lawsuit.” We, therefore, reverse appellant’s conviction and sentence for resisting an officer with violence.

Appellant’s wife called paramedics due to appellant not breathing and being unresponsive. A paramedic arrived and saw appellant lying on Ms stomach and beginning to wake up. The paramedic asked appellant whether he was okay. After initially appearing confused, appellant started screaming and then began to approach the paramedic as if ready to fight. The paramedic testified that appellant was “standing and squaring off, clenched fist, irate, angry, mad.” The paramedic motioned for his crew to stay back from appellant.

Meanwhile, a patrol officer from the Pembroke Pines Police Department arrived as a result of a call regarding an unresponsive male. The officer asked appellant for his name and asked appellant to calm down, but appellant did not respond. Appellant was “all over the room” and put his hands on the officer’s shoulder, as well as the shoulder of another officer who was present. After' appellant ripped off the closet doors and began to search through the drawers in the closet, one officer decided to handcuff appellant for officer safety. The officer handcuffed one of appellant’s wrists and blocked punches from appellant’s other hand.

Appellant violently swung his arms back and forth towards the officer, who was struck while on the ground. At this point there was blood on the floor, which had come from the officer’s head. Appellant ran out of the room and the other officer chased appellant with her gun drawn. This officer commanded appellant to get down and appellant shook his head “no.” Appellant ran into the kitchen, still agitated, and then started to come back toward the officers. One of the officers then fired a shot into appellant’s abdomen. Appellant tried to get up but the officer pushed him back to the ground. Appellant was tased several times and it took multiple officers to subdue him. Appellant was charged with battery on a law enforcement officer and resisting an officer with violence.

At trial, a neurologist, Dr. Cutler, testified for the defense. The neurologist stated that appellant had a seizure that day, and a person who had just had á seizure would respond poorly to commands, and may act confused, aggressive, combative, and agitated.

The following cross-examination of Dr. Cutler was elicited by the state:

Q. So again, getting back to that first visit of his, July 8th, 2010, [appellant] was referred to you by an individual named Mr. McDonald, is that correct?
A. Yes.
Q. Do you know that individual’s full name?
A. It says here David McDonald.
Q. Is that the law firm of McClusky and McDonald?
A. Yes.
Q. That person is not in the courtroom today; is he, Mr. McDonald?
A. I don’t know.
Q. He has referred people to you in the past; hasn’t he?
A. He may have.
Q. He is a civil attorney?
A. I don’t know sir. I don’t know him very well.
Q. You are not sure if he has referred people to you in the past?
A. I’m not sure.
Q. Would looking at a copy of your deposition refresh your recollection, regarding whether you had patients referred from Mr. McDonald in the past?
A. It may help, yes.
A. I think basically what I said was that if I have seen patients for him, I said it is possible but I really don’t know.
Q. Okay. Then do you have any personal knowledge as to whether Mr. McDonald was obtained as a civil attorney by [appellant]?

(emphasis added).

At this point, appellant objected to relevance. At sidebar, the state represented that appellant was suing the City of Pembroke Pines. The trial court overruled the objection, finding that the inquiry was relevant to Dr. Cutler’s credibility.

Upon further questioning, Dr. Cutler testified that he did not know for sure whether Mr. McDonald was retained as a civil attorney by appellant. Dr. Cutler stated that “someone else” could be making payment on appellant’s behalf, but stated he had no idea where money was coming from for payment for his time.

During the testimony of appellant’s wife, the state on cross-examination asked whether appellant had been referred to Dr. Cutler by Mr. McDonald. The state further asked appellant’s wife, “[D]o you know if your husband has hired a civil attorney as a result of this?” Appellant objected on the grounds of relevancy and calling for speculation. The trial court overruled the objections with the qualification that appellant’s wife could answer if she knew. After appellant’s wife answered “[n]o,” appellant withdrew his objection.

Finally, the state made the following closing argument:

I submit to you that as soon as this happened, as soon as [appellant] got in trouble with the law, and perceived an injury to himself, he started thinking. How am I going to defend against this case, this criminal case, that I’m being charged with, and how am I going to get some money out of it.
We have some criminal defense attorneys that he has hired, and they have put on a defense.
However, you have also heard evidence from the doctor, from Dr. Cutler.
He didn’t seem to know a lot about it, but he did know that a Mr. McDonald, a civil attorney, referred [appellant]- to him.
What the state would submit to you ... is it is a reasonable inference for you to draw that putting aside whether or not Dr. Cutler is a biased or interested witness.
That what is really at play here is [appellant] is gearing up for a civil lawsuit against the City of Pembroke Pines.
It is a reasonable inference for you to draw that the City of Pembroke Pines has money. We have heard from [appellant’s] wife that at that time he was out of a job.

The state conceded that it was reasonable for the jury to infer that appellant did in fact suffer from some sort of a disorder. The state asked the jury whether appellant got to utilize his disorder “in order to go to a criminal defense and then walk away with money from a civil suit later on down the road.” The state concluded its rebuttal argument by stating that appellant would “have his day in court where we will know all about him, some other jury, on some other case but today this case, our victim, is [the injured officer].”

The jury found appellant not guilty of battery on a law enforcement officer and guilty of resisting a law enforcement officer with violence. This appeal ensues.

We review evidentiary rulings under the standard of abuse of discretion, which is limited by the rules of evidence. Salazar v. State, 991 So.2d 364, 373 (Fla.2008). We review the cross-examination of Dr. Cutler under this standard. As to the state’s closing argument, since appellant did not object, reversal is proper only if the comments constitute fundamental error. Thompson v. State, 88 So.3d 322, 324 (Fla. 4th DCA 2012).

We find that the cross-examination of Dr. Cutler, specifically as to the doctor’s personal knowledge of whom appellant obtained as a civil attorney to sue the City of Pembroke Pines, was not relevant and was therefore improper. “To be relevant, and, therefore, admissible, evidence must prove or tend to prove a fact in issue.” Stano v. State, 473 So.2d 1282, 1285 (Fla.1985); § 90.401, Fla. Stat. (2011). The state contends that the cross-examination of Dr. Cutler was proper as an effort to uncover potential bias. See § 90.608(2), Fla. Stat. (2011). However, in the question that appellant objected to, the state asked Dr. Cutler only whether he knew if appellant had hired a civil attorney. Therefore, since the question had no connection to the doctor, it was not directed at attacking the credibility of the doctor. Additionally, the state asked this question after the doctor had already testified that he did not know whether McDonald was a civil attorney.

The state did not need to prove, as an element of either crime, that appellant hired a civil attorney to sue the City of Pembroke Pines, and as such, the cross-examination was not calculated to elicit relevant evidence. In fact, the only reason to inquire about the identity of appellant’s civil lawyer in a suit against the city was to highlight to the jury that appellant was seeking financial remuneration as a result of this incident. The attempt to prejudice appellant before the jury is further confirmed by the state’s comments in the cross-examination of appellant’s wife and in closing argument. “To determine litigiousness to be the proper subject of cross examination for impeachment purposes would be tantamount to stating that one creates a legal wrong by enforcing one’s rights when they are violated.” Zabner v. Howard Johnson’s Inc. of Fla., 227 So.2d 543, 546 (Fla. 4th DCA 1969).

For this same reason, the cross-examination of appellant’s wife regarding the civil lawsuit and the state’s reference to the civil lawsuit in closing argument were also improper. Although the improper closing argument by the state does not amount to fundamental error, and the objection regarding the improper cross-examination of appellant’s wife was withdrawn, both instances demonstrate why the error in this case is not harmless. When we consider the cumulative effect of the error, we cannot say that the improper questioning of Dr. Cutler was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

To allow this type of irrelevant evidence not only prejudiced appellant’s right to a fair criminal trial, but would also chill the right of an individual to retain a civil attorney arising out of the same incident. After all, an individual charged with a crime may hesitate to hire a civil lawyer to investigate or pursue civil remedies, if the mere fact of that retention may be brought up in a related criminal trial to his or her detriment.

Throughout our history, “[a] broad right to counsel antedating the Sixth Amendment was so well recognized that the framers took it for granted.” Melton v. State, 56 So.3d 868, 871 (Fla. 1st DCA 2011) (footnote omitted). As stated in Melton:

In view of the anomalous procedures in British criminal courts, it is not surprising that the framers of the American Constitution specifically provided for a right to retain counsel in criminal prosecutions. Because English practice had recognized the right to retain civil counsel, there was no need to reaffirm the prerogative. Therefore, the sixth amendment’s rejection of the English criminal practice does not represent the denial of a right to retain counsel in civil litigation. The existence of such a right has, indeed, been generally assumed in the American legal system.

Id. at 872 (quoting Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1117 (5th Cir. 1980)). Furthermore, “[i]n any judicial proceeding, a party has the right to be represented by counsel of the party’s choosing, where counsel is willing.” Id. See also Myers v. Siegel, 920 So.2d 1241, 1243 (Fla. 5th DCA 2006) (recognizing that “judicial protection” of the right to counsel in civil proceedings “ensures continued public confidence in our system of justice”).

We find that appellant’s other issue on appeal, regarding the state’s alleged comment on appellant’s silence during closing argument, does not constitute fundamental error. We, nevertheless, reverse and remand, as we find that the improper cross-examination of Dr. Cutler, when considered with the improper comments in closing argument and cross-examination of appellant’s wife, constitutes reversible error.

Reversed and remanded for a new trial.

WARNER and GROSS, JJ., concur.


text:
    Felix F. CANINO, Appellant, v. Michele CANINO, Appellee.
    No. 4D12-3500.
    District Court of Appeal of Florida, Fourth District.
    June 26, 2013.
    Felix F. Canino, Miami, pro se.
    Steven Cripps of Law Offices of Orsley & Cripps, P.A., West Palm Beach, for ap-pellee.
   PER CURIAM.

The parties were divorced in 2007. The mother relocated out of state and in 2009 the circuit court entered an agreed order on modification that changed the parties’ time sharing schedule to accommodate the move. The mother moved back to Florida in 2011. The father filed a motion for contempt against the mother, which the circuit court denied.

The father contends that section 61.13002, Florida Statutes (2012), applied to reinstate the time sharing arrangement in the original final judgment. The plain language of the statute indicates that it applies to situations arising “due to military service,” where a parent is “activated, deployed, or temporarily assigned to military service.” § 61.13002(1) & (2), Fla. Stat. (2012). Neither party was in the military during the relevant period of time. Therefore, the statute does not apply to this case.

Affirmed.

GROSS, DAMOORGIAN and FORST, JJ., concur.


text:
    Frank John RUILOVA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-894.
    District Court of Appeal of Florida, Second District.
    June 28, 2013.

      Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Frank John Ruilova appeals his judgments and sentences for trafficking in ox-ycodone and several counts of obtaining drugs from a physician by withholding information. This case is virtually indistinguishable from Mullis v. State, 79 So.3d 747 (Fla. 2d DCA 2011). As we did in Mullís, we affirm the judgments and sentences, but we recognize that an error in a portion of the ruling on the motion to suppress may permit Mr. Ruilova to withdraw his plea or seek other relief on remand. We recognize that the relief granted in Mullís and in this case is very unusual. Accordingly, we -will elaborate in this opinion on our authority to review this issue and the nature of the proceedings that should be available on remand.

I. THE CASE IN THE TRIAL COURT AND OUR DECISION TO FOLLOW MULLIS

The Temple Terrace Police Department investigated Mr. Ruilova for possible drug-related crimes after the department received an anonymous tip that Mr. Ruilova was obtaining drugs by fraud. A detective in the department sent facsimile messages to approximately one hundred pharmacies, inquiring of each if the pharmacy had dispensed any controlled substances to Mr. Ruilova during the preceding two years. The detective received twenty-four positive responses, indicating that Mr. Ruilova had filled prescriptions for oxycodone that appeared to have been written by sixteen different physicians.

The detective next contacted the doctors’ offices by telephone. The detective asked someone at each office essentially the same questions that were asked in Mullis, 79 So.3d at 749-50. He asked whether Mr. Ruilova was a patient of the doctor, whether the doctor had given Mr. Ruilova a prescription for oxycodone, and whether the doctor would have issued the prescription had the doctor been aware that other doctors had recently issued similar prescriptions. The detective did not receive other information from the doctors’ offices. He received no documentation. It appears that the detective was probably calling these offices to determine whether they had information that could be subpoenaed.

When the State charged Mr. Ruilova with these offenses, he filed a motion to suppress comparable to the motion in Mul-lís. The trial court denied the motion. Mr. Ruilova then negotiated a plea, expressly reserving as error the denial of the motion to suppress. The State stipulated that the denial of the motion was disposi-tive. The trial court entered judgments and sentences in accordance with the plea and found that the reserved issue was dispositive.

In Mullís, we held that the detective was entitled to obtain the pharmacy records but that he was not permitted to receive the information about the prescriptions over the telephone from the doctors’ offices. 79 So.3d at 749. We also concluded that the detective was not permitted to ask each office for an opinion on whether the doctor would have issued prescriptions if he or she had had accurate information about the prescriptions issued by other physicians. Id. at 753. We expressly noted that the defendant in Mullís had not challenged the information provided to the detective confirming that the defendant was a patient of the doctor. Id.

The motion to suppress in Mullís and the motion in this case are virtually identical. The rulings are identical. Accordingly, we reach the same holding here as we did in Mullís.

II. OUR DECISION NOT TO DETERMINE WHETHER EVIDENCE MUST BE SUPPRESSED ON REMAND

As we noted in Mullis, 79 So.3d at 754 n. 9, the information that the defendant sought to “suppress” does not appear to be admissible evidence. Instead, this is a background investigation that might eventually have been- used to obtain admissible evidence through the process of issuing a subpoena.

In this case, because the trial court denied the motion to suppress before we issued the decision in Mullís, it was not called upon to determine whether the State could follow statutory procedures and legally obtain evidence given that the detective had properly obtained information from the pharmacies. Although we have considered answering that question on the record available to us, the issue was never argued before the trial court. It has been modestly briefed to this court at the court’s own request, and we are not convinced that the record before this court permits an adequate resolution of the issue.

We are aware that the Fourth District determined that the exclusionary rule should apply in a somewhat similar case in State v. Sun, 82 So.3d 866 (Fla. 4th DCA 2011). In' that case, the police obtained copies of patient contracts without a sub1 poena. Id. at 868. The Fourth District affirmed the trial court’s order suppressing the evidence because the police “wholly failed to follow the statutory procedure to obtain the items.” Id. at 869. Because the police obtained documentary evidence in Sun, that case is potentially distinguishable. Moreover, Sun was a State appeal of a nonfinal order suppressing evidence, and it is unclear whether the order was dispositive and whether it would have entitled the defendant to a dismissal of the charges.

In this context, we have decided that we cannot resolve the issue of whether the statutory violation involving the telephone calls to the doctors’ offices constitutes a Fourth Amendment violation or otherwise warrants the imposition of the exclusionary rule. See Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).

III. OUR JURISDICTION, SCOPE OF REVIEW, AND THE UNUSUAL MANDATE

Procedurally, our decision not to reach the issue of suppression places this court in an unusual posture because the error in the suppression order does not result in a mandated discharge. As a result, we take this opportunity to explain that we do have jurisdiction over this appeal, that our scope of review allows us to consider the issues addressed by the order of suppression, and that while the ruling in Mullís does not entitle a defendant to discharge, it does entitle him to additional due process on remand.

When a defendant pleads guilty or nolo contendere and reserves an issue for review, there are normally three possible outcomes: (1) the court will approve the order denying suppression and affirm the judgments and sentences, (2) the court will reverse the order and require the defendant to be discharged on remand because the suppression issue was disposi-tive, or (3) the court will determine that the issue is not dispositive or the procedures for such a determinátion were not properly performed in the trial court. Pri- or to the enactment of the Criminal Appeal Reform Act of 1996, this third determination typically resulted in a dismissal of the appeal. Following the supreme court’s decision in Leonard v. State, 760 So.2d 114 (Fla.2000), such cases are typically affirmed. See Bonfiglio v. State, 57 So.3d 990 (Fla. 2d DCA 2011); M.N. v. State, 16 So.3d 280 (Fla. 2d DCA 2009). When the reservation has been a condition of the defendant’s plea, this outcome often results in an express declaration that the defendant may have, the right to withdraw the plea on remand. None of these typical mandates is quite appropriate in this case.

The need for an atypical mandate stems from the fact that the motion to suppress raised two grounds. One ground concerned the information from the pharmacies, and the second ground concerned the hearsay received from the doctors’ offices. If we had reversed on both grounds in Mullís, declaring that each was a violation of the Fourth Amendment, then any future discovery would have been fruit of a poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Indeed, if we had determined that law enforcement was not entitled to the information obtained from the pharmacies, the same would be true because the information from the pharmacies led to the information from the doctors’ offices. In either of those events, a reversal of the trial court’s decision on the motion to suppress would have warranted a discharge of the defendant under the State’s stipulation that the ruling on the motion to suppress was dispositive.

But the ruling in Mullís approved the portion of the trial court’s order relating to the information received from the pharmacies. 79 So.3d at 754. Arguably, that ruling permits further lawful investigation based on the information lawfully received from the pharmacists; If the State can still obtain subpoenas by following the required procedures and present evidence that is not constitutionally tainted, it may still prove its case. In other words, although everyone in the trial court in good faith treated the order as dispositive, the ruling in Mullís renders it at least potentially nondispositive. See Vaughn v. State, 711 So.2d 64, 65-66 (Fla. 1st DCA 1998) (explaining that a motion to suppress is considered dispositive only when it is clear that the State would not have been able to proceed to trial without the excluded evidence).

We are confident that we have jurisdiction to issue this opinion. Section 924.051(4), Florida Statutes (2008), provides: “If a defendant pleads nolo conten-dere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dis-positive issue, the defendant may not appeal the judgment or sentence.” This restriction is also contained in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i). Although there are earlier cases that suggested that the court is without “jurisdiction” to review cases where there is no proper reservation of a dispositive issue, after Leonard it is clear that the appellate court has “jurisdiction,” i.e., power to examine the case as a whole, even when an order of suppression is not necessarily dis-positive.

We are likewise confident that our scope of review, i.e., our power to examine a specific issue on appeal, includes the issues involved in the order denying suppression. Our power over an issue is typically obtained by the steps the litigants take in the trial court. Whether this court’s scope of review includes a particular suppression issue is not a factual matter determined by our own assessment of whether the issue is dispositive. Instead, it depends on the assessment of the trial court and the parties in the trial court. In this case it is clear that the trial court determined in good faith that the issue was dispositive, and the parties likewise entered into a good faith stipulation to that effect. Thus, we can fully review this issue. Cf. Zeigler v. State, 471 So.2d 172, 176 (Fla. 1st DCA 1985) (“[A] stipulation voluntarily entered into by all parties that an issue preserved for appeal by a defendant’s nolo contendere plea is dispositive will be so considered by [a reviewing] court.”).

Thus, our only remaining concern is the nature of the mandate we should issue. Because we affirm the trial court on the portion of the suppression order that was truly dispositive, we conclude we can affirm the judgments and sentences. However, because we disapprove the portion of the suppression order that may or may not be dispositive, we are obligated to provide some relief to Mr. Ruilova.

In at least one prior case, we have relinquished jurisdiction to permit the trial court to revisit the issue of dispositiveness. See Pittman v. State, 382 So.2d 1227 (Fla. 2d DCA 1979). In this case, we conclude that an affirmance with instructions is the better approach.

On remand, Mr. Ruilova is entitled to file a motion seeking permission to withdraw his plea. If he does so, the trial court will first determine whether the State would still have the right to serve subpoenas on the doctors and obtain admissible evidence that would not be excluded from evidence as a result of the holding in Mullís if the motion to withdraw were granted. If the trial court determines that the violation of law was sufficient, as it was in Sun, to prevent further efforts to obtain admissible evidence, it should grant the motion to withdraw plea and it must then enter an order suppressing any evidence from the doctors and dismissing the charges against Mr. Ruilova. Obviously, the State may appeal that order.

If the trial court determines that the violation of law was insufficient to prevent the State from obtaining admissible evidence, it should give Mr. Ruilova the option to withdraw his plea because the plea was based on the understanding that the suppression issue was dispositive. Mr. Ruilova is cautioned that his current negotiated plea is relatively favorable and that it may not be tactically wise to withdraw his plea and proceed to trial in this case. On remand, the trial court shall first appoint counsel to represent Mr. Ruilova and assist him in his decision as to whether to seek to withdraw his plea.

Affirmed with instructions.

NORTHCUTT and KHOUZAM, JJ., Concur.

      . See §§ 893.13(7)(a)(8), .135(l)(c)(l), Fla. Stat. (2008).

      . It is useful to consider that such prescriptions are frequently forgeries. The fact that the pharmacies had records indicating that they had filled prescriptions issued by a doctor would not necessarily mean that the doctor had actually signed those prescriptions. See, e.g., State v. Bean, 36 So.3d 116, 117 (Fla. 2d DCA 2010).

        . See, e.g., James v. State, 936 So.2d 738 (Fla. 2d DCA 2006); Cox v. State, 75 So.3d 325 (Fla. 1st DCA 2011).

        . See, e.g., Oldham v. State, 113 So.3d 963 (Fla. 2d DCA 2013); Fields v. State, 105 So.3d 1280 (Fla. 2d DCA 2013).

        .See ch. 96-248, Laws of Fla.

      . See, e.g., White v. State, 661 So.2d 40 (Fla. 2d DCA 1995); Roob v. State, 572 So.2d 1022 (Fla. 3d DCA 1991).

      . See, e.g., Brown v. State, 376 So.2d 382, 385 (Fla.1979); Sears v. State, 920 So.2d 709 (Fla. 4th DCA 2006); Sloss v. State, 917 So.2d 941, 942 (Fla. 5th DCA 2005); Morgan v. State, 486 So.2d 1356, 1359 (Fla. 1st DCA 1986).

      . See, e.g., Teague v. State, 728 So.2d 1203 (Fla. 5th DCA 1999); White, 661 So.2d 40.