author: QUINCE, J.

text:
    STATE of Florida, Petitioner, v. Eric J. DRAWDY, Respondent.
    No. SC12-2021.
    Supreme Court of Florida.
    April 10, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, FL; Robert Jay Krauss, Chief-Assistant Attorney General and Dawn A. Tiffin, Assistant Attorney General, Tampa, FL, for Petitioner.
    Howard L. Dimmig, II, Public Defender, and Stephen Michael Grogoza, Special Assistant Public Defender, Bartow, FL, for Respondent.
   QUINCE, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Drawdy v. State, 98 So.3d 165 (Fla. 2d DCA 2012). The district court certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Roberts v. State, 39 So.3d 372 (Fla. 1st DCA 2010), and the decisions of the Fifth District Court of Appeal in Murphy v. State, 49 So.3d 295 (Fla. 5th DCA 2010), and Roughton v. State, 92 So.3d 284 (Fla. 5th DCA 2012). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we quash the Second District’s decision and approve the decisions of the First and Fifth Districts in Roberts and Murphy.

I. BACKGROUND

Eric Drawdy “raped his young teenage stepdaughter.” Drawdy, 98 So.3d at 166. ‘While doing so, he touched her breasts.” Id. He was charged with one count of sexual battery under section 794.01l(8)(b), Florida Statutes (2006), for allegedly penetrating the victim’s vagina with his penis, and one count of lewd or lascivious molestation under section 800.04(5)(a), Florida Statutes (2006), for the alleged intentional touching, in a lewd or lascivious manner, of the victim’s breasts, genitals, genital area, buttocks, or the clothing covering them. At trial, the victim testified as follows:

PROSECUTOR: His penis penetrated and go [sic] into your vagina?
VICTIM: Yes, sir.
PROSECUTOR: While he was doing that, did he touch any other parts of your body?
VICTIM: Yes, sir.
PROSECUTOR: What other parts of your body did he touch?
VICTIM: My breasts.
PROSECUTOR: And did he touch them over your shirt or under your shirt, or something else?
VICTIM: Under my shirt.
PROSECUTOR: Did he take your shirt off or kept [sic] it on?
VICTIM: He kept it on.
PROSECUTOR: Did you reach up under your shirt?
VICTIM: Yes, sir.
PROSECUTOR: Do you recall if he took off any of his clothes?
VICTIM: He pulled down his shorts, but he didn’t take them off.

A jury convicted Drawdy of both charges, and the trial court sentenced him “to thirty years in prison for the sexual battery, followed by five years of probation for the molestation.” Drawdy, 98 So.3d at 166. Drawdy appealed. Id.

On appeal, the Second District held that double jeopardy prohibits convictions for both sexual battery and lewd or lascivious molestation in a single criminal episode. Id. The district court agreed with the reasoning of the First District in Beahr v. State, 992 So.2d 844, 847 (Fla. 1st DCA 2008), that “while sexual battery includes an element not included in lewd or lascivious molestation, the converse is not true.” Drawdy, 98 So.3d at 171. The Second District stated that section 800.04(5) does not specify whether the lewd touching must be done with the perpetrator’s hands, but the record in this case does not disclose the manner of touching. Id. The court found that “[v]aginal penetration without touching the victim’s breasts or buttocks with some part of the perpetrator’s body would be acrobatic.” Id. Thus, the Second District concluded that double jeopardy bars convictions for sexual battery and simultaneous lewd or lascivious molestation as separate offenses. Id. The court reversed and remanded for the trial court to vacate Drawdy’s conviction for lewd or lascivious molestation. Id. at 171-72. However, the Second District also certified conflict with Roberts, the case abrogating Beahr, and two cases from the Fifth District, Murphy and Roughton, Drawdy, 98 So.3d at 172.

In Roberts, the defendant was convicted of two counts of sexual battery and two counts of lewd or lascivious molestation. 39 So.3d at 373. The sexual battery convictions were based on two acts: union with or penetration of the victim’s vagina by the defendant’s penis and the defendant’s penis penetrating the victim’s mouth. Id. During each of these episodes, the defendant also committed one act of lewd or lascivious molestation: once by touching the victim’s vagina with his hand and the other by touching the victim’s breasts and/or buttocks with his hands and/or mouth. Id. In determining whether double jeopardy principles had been violated, the First District stated:

Considering the supreme court’s conclusion in [State v. Meshell, 2 So.3d 132 (Fla.2009),] that double jeopardy principles do not necessarily preclude multiple convictions for the same sexual offense committed by different actions during the same criminal episode, it necessarily follows that double jeopardy principles would not necessarily preclude convictions for two different sexual offenses committed by different actions during the same criminal episode.

Id. at 374. The district court found that under Meshell, the two offenses of “oral and vaginal penetration by appellant’s penis” were distinct criminal acts requiring different elements of proof from the offenses of “touching the victim’s genitals with appellant’s hand and touching the victim’s breasts and/or buttocks with appellant’s hand and/or mouth.” Id. Thus, the court held that the defendant’s convictions for both sexual battery and lewd or lascivious molestation did not violate the prohibition against double jeopardy. Id.

In Murphy, the Fifth District also rejected the argument that convictions for both offenses violated double jeopardy principles. 49 So.3d at 298. In that case, the defendant was found guilty of attempted sexual battery for causing his penis to have union with the victim’s vagina and of lewd or lascivious molestation for intentionally touching the victim’s genitals or the clothing covering them. Id. at 297-98. The defendant argued that his convictions violated double jeopardy “because both convictions arose from a single, continuous episode without a spatial or temporal break between each act to enable the defendant to form a new criminal intent for each separate act.” Id. at 298. The district court reasoned:

The differences in the character and type of crime proven are as important as the spatial and temporal aspects when considering whether multiple punishments are appropriate. An analysis of those differences, as noted by Judge Griffin in her concurring opinion in the defendant’s initial appeal, leads to the conclusion that the defendant’s convictions for attempted sexual battery and lewd [or] lascivious molestation did not violate his double jeopardy rights.

Id. (citing Meshell, 2 So.3d at 135). The court reversed and remanded, however, on other grounds. Id.

II. ANALYSIS

The United States and Florida Constitutions both contain double jeopardy clauses designed to prevent a person from receiving multiple punishments for the same criminal offense. Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009) (citing U.S. Const, amend. V; Art. I, § 9, Fla. Const.). A determination of whether double jeopardy is violated based on undisputed facts is a legal determination; thus, this Court’s review is de novo. State v. Paul, 934 So.2d 1167, 1171 (Fla.2006), receded from on other grounds by Valdes, 3 So.3d at 1077. Where multiple criminal offenses occur in the course of a single criminal episode or transaction, courts employ the Blockburger test, codified at section 775.021(4)(a), Florida Statutes (2006), to determine whether receiving separate punishments for each offense violates double jeopardy. Gordon v. State, 780 So.2d 17, 19-20 (Fla.2001), receded from on other grounds by Valdes, 3 So.3d at 1077. However, even if the offenses occur within the same criminal episode such that Blockbur-ger applies, double jeopardy is not implicated where each offense is a “distinct criminal act[].” See Paul, 934 So.2d at 1172 n. 3 (“Of course, if two convictions occurred based on two distinct criminal acts, double jeopardy is not a concern.”).

For example, in Hayes v. State, 803 So.2d 695 (Fla.2001), the defendant was convicted of both armed robbery and grand theft of a motor vehicle for stealing various items from inside the victim’s residence, including the victim’s car keys, and then using those keys to steal the victim’s van that was parked outside. Id. at 697. We recognized that “the prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts.” Id. at 700. Thus, the issue was “whether a criminal transaction or episode gave rise to distinct and independent criminal acts resulting in separate crimes so as not to run afoul of the constitutional prohibition against double jeopardy.” Id. at 701. In holding that the defendant’s theft of the items inside the residence was a distinct and independent criminal act from the motor vehicle theft, we concluded that:

[I]n reaching a determination of the double jeopardy issue in a case involving a single victim’s property, courts should look to whether there was a separation of time, place, or circumstances between the initial armed robbery and the subsequent grand theft, as those factors are objective criteria utilized to determine whether there are distinct and independent criminal acts or whether there is one continuous criminal act with a single criminal intent. In making this determination of whether there is a separation of time, place, or circumstances giving rise to distinct and independent acts, the courts should consider the location of the items taken, the lapse of time between takings, the number of owners of the items taken, and whether intervening events occurred between the takings.

Id. at 704.

In Meshell, we upheld the defendant’s convictions of two counts of lewd or lascivious battery under section 800.04(4) as distinct criminal acts not violating double jeopardy. 2 So.3d at 136. The defendant had been convicted of four counts of lewd or lascivious battery, but had only appealed as to two counts: that the defendant “did with his penis penetrate or have union with the vagina of [the victim]” (Count 1), and that the defendant “did with his penis have union with the mouth of [the victim]” (Count 3). Id. at 134 (alteration in original). Both offenses occurred at approximately the same time on the same date. Id. The defendant “argued that double jeopardy prohibited his conviction and sentences for these two acts because the record did not reflect a ‘temporal break’ sufficient for him to form a new criminal intent.” Id.

On appeal, we found that “sexual acts of a separate character and type requiring different elements of proof, such as those proscribed in the sexual battery statute, are distinct criminal acts that the Florida Legislature has decided warrant multiple punishments.” Id. at 135. Additionally, because “the same sexual acts proscribed in the sexual battery statute are also proscribed in the lewd [or] lascivious battery statute, under which [the defendant] was charged,” we concluded that “the sex acts proscribed in section 800.04(4) (oral, anal, or vaginal penetration) are of a separate character and type requiring different elements of proof and are, therefore, distinct criminal acts.” Id. at 136. We found no double jeopardy violation “[b]ecause the oral sex described in Count 3 is a criminal act distinctively different from the vaginal penetration or union in Count 1.” Id.

The Second District correctly determined that the instant case involves a single criminal episode because the acts essentially occurred simultaneously and also involved only a single victim, a single location, and no temporal break. Drawdy, 98 So.3d at 167. Thus, the question is whether the convictions were predicated on distinct criminal acts, such that “double jeopardy is not a concern.” Paul, 934 So.2d at 1172 n. 3; Meshell, 2 So.3d at 135; Hayes, 803 So.2d at 700. Drawdy was convicted of sexual battery for penetrating the victim’s vagina with his penis. He was convicted of lewd or lascivious molestation for intentionally touching the victim’s breasts in a lewd or lascivious manner during the vaginal penetration. These offenses are distinct criminal acts of a separate character and type.

Although the record does not disclose the exact manner of touching, the touching obviously occurred with some part of Drawdy’s body other than his penis, and it occurred under the victim’s shirt, which precludes the possibility that his chest rubbed against her breasts during intercourse. Thus, touching the victim’s breasts was not incidental to the vaginal penetration — as grabbing the victim’s buttocks to facilitate the sex act, for example, might be. Additionally, proving that Drawdy touched the victim’s breasts during vaginal penetration will require different elements of proof than proving he had vaginal intercourse with the victim. The lewd touching here was not an integral or necessary part of the sex act, but a separate and distinct act by itself. As such, Drawdy’s convictions involve offenses “of a separate character and type,” which are “distinct criminal acts” that “do not violate double jeopardy.” Meshell, 2 So.3d at 136.

III. CONCLUSION

Based on the foregoing, we quash the decision of the Second District in Drawdy v. State, 98 So.3d 165 (Fla. 2d DCA 2012), and remand to the district court for an order affirming Drawdy’s convictions. We also approve the First District’s decision in Roberts v. State, 39 So.3d 372 (Fla. 1st DCA 2010), and the Fifth District’s decision in Murphy v. State, 49 So.3d 295 (Fla. 5th DCA 2010).

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, CANADY, LABARGA, and PERRY, JJ., concur.

      . The Fifth District’s decision in Roughton is currently pending review before this Court, so we do not consider it here.

      . That section reads:
      (8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who:

      (b) Engages in any act with that person while the person is 12 years of age or older but less than 18 years of age which constitutes sexual battery under paragraph (l)(h) commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      § 794.01 l(8)(b), Fla. Stat. (2006). Section 794.01 l(l)(h) defines "sexual battery" as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.”

      . Section 800.04(5)(a) provides:
      (a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

      . See supra note 1.

      . The opinion does not disclose which act of lewd touching occurred with which act of sexual battery.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . In that case, we limited our review to section 800.04(4), which was the only section at issue before the Fifth District in the case below. Id. at 134.

      . Neither party raises an issue with this finding by the Second District.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Gordon PATTERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0379.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Rehearing Denied May 9, 2014.
    Robert Gordon Patterson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, RAY, and SWANSON, JJ., concur.


text:
    Michael Joseph NILIO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0532.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2014.
    Rehearing Denied May 9, 2014.
    Michael Joseph Nilio, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., WETHERELL and ROWE, JJ., concur.


text:
    Curtis Antonio WAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0088.
    District Court of Appeal of Florida, First District.
    March 13, 2014.
    Rehearing Denied May 7, 2014.
    Curtis Antonio Way, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.100(c)(1); Logan v. State, 846 So.2d 472 (Fla.2004).

BENTON, PADOVANO, and ROBERTS, JJ., concur.


text:
    Manuel SANTANA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6115.
    District Court of Appeal of Florida, First District.
    March 26, 2014.
    Rehearing Denied May 9, 2014.
    Manuel Santana, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.100(c).

ROWE, MARSTILLER, and RAY, JJ„ concur.


author: THOMAS, J.

text:
    James HARMON, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2019.
    District Court of Appeal of Florida, First District.
    April 2, 2014.
    Opinion filed April 2, 2014.
    James Harmon, III, pro se, Appellant.

      Jennifer Parker, General Counsel, Department of Corrections, Tallahassee; Pamela Jo Bondi, Attorney General, Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   ON IMPOSITION OF SANCTIONS

THOMAS, J.

In 1981, Appellant was sentenced to six consecutive terms of 100 years in the custody of the Department. The trial court entered an order retaining jurisdiction over the first one-third of each of the Defendant’s 100-year sentences pursuant to section 947.16, Florida Statutes, to review the Parole Commission’s parole release order. This court affirmed both the sentence and the court’s order retaining jurisdiction. See Harmon v. State, 416 So.2d 835 (Fla. 1st DCA 1982). In Harmon v. State, 438 So.2d 369 (Fla.1983), the Florida Supreme Court explained that this court, on rehearing, certified the following question as one of great public importance:

whether a sentencing court, authorized to impose for each of six felonies a term of years not exceeding life imprisonment, may impose six consecutive 100-year terms and retain jurisdiction for one-third of each sentence, aggregating 200 years, to review any parole release order of the Parole Commission.

Id. at 370. The court answered the question in the affirmative, holding:

The fact that one-third of the combined total of the consecutive terms of imprisonment may exceed a particular defendant’s life expectancy does not render the terms in excess of the statutory maximum of life imprisonment. A person who commits several first-degree felonies each punishable by life imprisonment has no ground for complaint about a sentence which may and probably will result in his spending the rest of his life in prison. We therefore approve the decision of the district court of appeal.

Id. at 371.

Since that opinion, Appellant has persistently challenged his sentence at the state and federal levels via petitions for habeas corpus and all writs. This includes seven appeals in this court since the time the supreme court affirmed Appellant’s sentence, all to no avail. In this case, he once again filed a habeas petition in the circuit court challenging his sentence and arguing the State has failed to provide a rational basis for the “continuance enforcement” of this court’s opinion in 1982 and the subsequent affirmance by the supreme court. Essentially, Appellant argues that enforcement of the sentence improperly deprives him of proper consideration for parole eligibility.

This court affirmed without opinion the circuit court’s denial of Appellant’s latest petition. See Harmon v. State, 2014 WL 485992 (Fla. 1st DCA Feb. 5, 2014). We also issued an order to show cause why sanctions, including a prohibition against appearing as a litigant in this court unless represented by counsel, should not be imposed against Appellant. In both Appellant’s response to that order and his motion for rehearing filed after this court’s affirmance of the circuit court’s denial of his petition, Appellant continues to challenge the holding in this court’s 1982 opinion and the supreme court’s 1983 opinion, but attempts to avoid this characterization of his argument by insisting that what he is actually seeking is proper consideration for parole eligibility. But in the context of this case and the arguments Appellant has repeatedly put forth since 1982, the two are one and the same.

“A prisoner who is found by a court to have brought a frivolous ... claim, proceeding, or appeal in any court of this state ... is subject to disciplinary procedures pursuant to the rules of the Department of Corrections.” § 944.279(1), Fla. Stat. In light of Appellant’s vexatious litigiousness, and after considering Appellant’s response to our order to show cause, in addition to referring this matter to the Department of Corrections, we prohibit Appellant from filing any further pro se pleadings in this court. Any pleadings or papers filed in this court regarding Appellant’s conviction and sentence must be reviewed and signed by an attorney licensed to practice in this state.

Accordingly, the clerk is directed not to accept any further pro se pleadings or filings from Appellant in this matter. Because Appellant has abused the postconviction process and filed a frivolous appeal in this court, we direct the clerk of this court to forward a certified copy of this opinion to the appropriate institution for disciplinary procedures, which may include forfeiture of gain-time. See § 944.28(2)(a), Fla. Stat. (2009); Hall v. State, 94 So.3d 655, 657-58 (Fla. 1st DCA 2012) (prohibiting appellant from filing further pro se pleadings after appellant filed repetitive pleadings making the same argument, and sending a certified copy of the opinion to the Department of Corrections pursuant to § 944.279, Fla. Stat., for consideration of sanctions pursuant to § 944.28, Fla. Stat.).

MARSTILLER and MAKAR, JJ„ concur.


text:
    Benny WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3934.
    District Court of Appeal of Florida, First District.
    April 2, 2014.
    Rehearing Denied May 9, 2014.

      Benny Watts, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Chief-Criminal Appeals, and Brittany Ann Rhodaback, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the lower court’s denial of all of appellant’s post-conviction issues except his claim that his attorney provided ineffective assistance by advising him to enter a plea without informing him that insanity was available as a complete defense to the crimes with which he was charged. The crimes in this case were committed on September 1, 2006, and appellant alleged that his attorney moved the court on January 29, 2007, to determine his competency at the time of the crime; an expert determined on March 19, 2007, that he was incompetent to stand trial; and he was hospitalized for schizophrenia on May 1, 2007, before being restored to competency on November 8, 2007. Appellant informed the court at the plea hearing that he was taking an anti-psychotic drug because he heard voices, whereupon the trial court questioned him and determined that the medication was not impairing appellant’s understanding of the proceedings. Appellant contends that he was legally insane at the time of the crimes; and thus insanity would have been a valid defense, but his attorney never discussed it with him.

Such allegations should be addressed in an evidentiary hearing if there is nothing in the record to refute them. See, e.g., Childers v. State, 782 So.2d 513 (Fla. 1st DCA 2001); McAroy v. State, 597 So.2d 984 (Fla. 1st DCA 1992); Spencer v. State, 889 So.2d 868 (Fla. 2d DCA 2004); Stinyard v. State, 870 So.2d 78 (Fla. 2d DCA 2003); Munoz v. State, 819 So.2d 874 (Fla. 4th DCA 2002); Forster v. State, 779 So.2d 550 (Fla. 2d DCA 2001).

The lower court did not attach portions of the record showing that an insanity defense would not have been viable for appellant. If it was a viable defense, and defense counsel believed it was more advantageous for appellant to enter into the plea agreement than go to trial, this would require explication in an evidentiary hearing because it was not mentioned during the plea colloquy. Although the lower court determined that appellant risked a long prison sentence if he were to be tried and convicted, and that the evidence against appellant was strong, these facts do not sufficiently refute appellant’s claim that he was never informed of the insanity defense and he would have gone to trial had he been told.

Affirmed in part, reversed in part, and remanded for further proceedings.

PADOVANO, CLARK, and SWANSON, JJ., concur.


author: KHOUZAM, Judge.

text:
    Michelle THOMPSON, Appellant, v. STATE Of Florida, Appellee.
    No. 2D13-834.
    District Court of Appeal of Florida, Second District.
    April 11, 2014.

      Michelle Thompson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Michelle Thompson appeals the summary denial of her motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evidentiary hearing.

On August 5, 2011, Thompson entered a negotiated plea to the offense of offering to commit prostitution. The plea agreement provided that she would be sentenced to 120 days in county jail, contingent on her appearance at the sentencing hearing. The sentencing hearing was set for August 23 at 8:30 a.m. When Thompson did not appear by 9:00 a.m. on that date, the court sentenced her in absentia to five years in prison. Though Thompson’s counsel did not formally object to the sentence, the court repeatedly stated that it would be happy to reconsider the sentence after counsel had spoken to Thompson. Thompson was later taken into custody, and at first appearance on September 10, 2011, she was ordered to start serving her five-year sentence.

On September 23, 2011, Thompson’s attorney filed a motion to mitigate or modify sentence, alleging that Thompson’s failure to appear at the sentencing hearing was not willful. Counsel had spoken to Thompson on September 16, 2011. Thompson told her that she relies on public transportation, that the bus was late the day of the hearing, and that the bailiff would not allow her to enter the courtroom when she arrived. A hearing on the motion to modify was held on October 4, 2011. Apparently Thompson was not present, and consequently the court denied the motion without prejudice “to reconsider w[ith] evidence.” Thompson’s attorney did not request another hearing. Thompson did not file a direct appeal.

On December 19, 2012, Thompson filed a rule 3.850 motion, alleging her attorney was ineffective for failing to (1) object when the trial court sentenced her in ab-sentia to five years in prison and (2) argue that the trial court erroneously neglected to find Thompson’s failure to appear was willful. Thompson alleged that she was prejudiced by her trial counsel’s deficient performance because her failure to appear was not willful and, had the objection and argument been made, she would instead have served the lesser sentence as outlined in her negotiated plea.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that counsel’s errors prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). On summary postcon-viction appeal, “unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.” Fla. R. App. P. 9.141(b)(2)(D).

As to the allegation that counsel failed to formally object at sentencing, no relief is warranted because a review of the hearing transcript indicates that no objection was necessary or appropriate. The trial court offered to reconsider the sentence once Thompson was available again; under this circumstance an objection would have served no purpose. And even if counsel’s performance was deficient, Thompson cannot establish that she was prejudiced by the failure to make a formal objection at sentencing.

But Thompson’s second argument — that counsel failed to argue the willfulness issue — is not conclusively refuted by the record. Though counsel did file a motion to mitigate or modify sentence stating that she had been “advised that [Thompson’s] failure to appear at disposition was not willful,” the motion did not include any argument or supporting evidence. The transcript of the hearing on that motion is not part of the appellate record, but the order denying the motion clearly states that it was denied without prejudice “to reconsider w[ith] evidence.” There is no indication in the record that counsel ever followed up on the issue. Accordingly, nothing in the appellate record refutes Thompson’s claim that her trial counsel failed to argue the issue of willfulness.

Though counsel may have made the strategic decision not to pursue the claim if she believed it was meritless, there is no evidence in the appellate record (aside from Thompson’s own assertions) to indicate whether Thompson’s failure to appear was actually willful or not. If Thompson’s failure to appear was not willful, she may have been prejudiced by counsel’s failure to pursue this claim. See, e.g., Gee v. State, 38 So.3d 806, 807 (Fla. 2d DCA 2010) (“If a defendant fails to timely appear for sentencing as required by a plea agreement, the trial court is not permitted to ignore the agreement and impose a harsher term unless the evidence supports a finding that the defendant’s failure to appear was willful.”).

Because Thompson’s assertions are not conclusively refuted by the record, we reverse and remand for an evidentiary hearing addressing her claim that trial counsel failed to argue the issue of willfulness.

Reversed and remanded with directions.

CASANUEVA and MORRIS, JJ., Concur.

      . No motion to withdraw plea was filed to preserve Thompson's claim for direct appeal. See Fla. R. App. P. 9.140(b)(2)(A)(ii).


author: ALTENBERND, Judge.

text:
    Arthur GENOVESE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3255.
    District Court of Appeal of Florida, Second District.
    April 11, 2014.
    Arthur Genovese, pro se.
   BY ORDER OF THE COURT.

Appellant’s motion for rehearing is granted. The prior opinion dated February 5, 2014, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

ALTENBERND, Judge.

Arthur Genovese appeals the postconviction court’s order denying his motion to correct an illegal sentence. We conclude that his sentence is legal but write to dispel confusions in the record.

In July 2000, Mr. Genovese was arrested for offenses committed in Charlotte County. While in jail, he made numerous telephone calls attempting to arrange for the murder of witnesses against him. As a result, in addition to other charges, he was charged with solicitation to commit first-degree murder with a firearm and conspiracy to commit first-degree murder with a firearm.

In December 2001, Mr. Genovese entered into a negotiated plea for these charges and for charges filed in three other informations. The longest negotiated sentences were for the solicitation and the conspiracy. He agreed to a sentence of fifteen years’ incarceration followed by ten years’ probation for each of these two offenses. He was sentenced in accordance with this agreement and did not file a direct appeal.

In May 2012, he filed a motion to correct an illegal sentence. He amended the motion several times before the postconviction court entered the order denying the motion. Mr. Genovese’s primary theory is that his sentence is illegal because he was convicted of two second-degree felonies for which sentences in excess of fifteen years would be illegal. He is mistaken, but his confusion is understandable.

The information filed against him for these two counts described each offense as a “life felony.” In addition to the statutes addressing murder, conspiracy, and solicitation, the information referenced section 775.087, Florida Statutes (2000), which reclassifies certain felonies for use of a firearm. Mr. Genovese believes that he was charged with solicitation and conspiracy to commit only an attempted murder with a firearm. He thinks his basic offense was a life felony which was reduced to a second-degree felony because he was charged with solicitation or conspiracy. He is correct that a solicitation or conspiracy to commit a life felony is typically a second-degree felony. See § 777.04(4)(c), Fla. Stat. (2000). He maintains that he did not use a firearm to conspire and that the offense could not be reclassified for use of a firearm.

Mr. Genovese was actually charged with conspiracy to commit a completed first-degree murder and solicitation of a completed first-degree murder. First-degree murder is a capital offense. See § 782.04, Fla. Stat. (2000). His information did not reference or allege attempt as described in section 777.04(1). Instead, it alleged and referenced subsections 777.04(2) and (3), which deal with solicitation and conspiracy. These allegations reduce the capital offense to a felony of the first-degree. See § 777.04(4)(b). The assistant state attorney who filed the information then reclassified the first-degree felony to a life felony due to the allegation of use of a firearm. See § 775.087(l)(a).

Mr. Genovese’s negotiated plea agreement dropped the reference to use of a firearm and described the two offenses as first-degree felonies. It appears likely from our record that during the negotiations his attorney convinced the State to drop its effort to reclassify these offenses for use of a hypothetical firearm discussed in the telephone calls. Thus, the offense of solicitation and the offense of conspiracy were each correctly described as first-degree felonies in the judgment. Accordingly, the judgment supports a sentence of fifteen years’ imprisonment followed by ten years’ probation for these offenses. We note that the sentence does not include any mandatory minimum term for possession of a firearm.

In the postconviction court, the State erroneously relied on the firearm enhancement to justify the degree of these two felonies in the judgment, and the court’s order was based on this analysis. Thus, the postconvietion court applied the wrong reasoning, but reached the correct result.

Affirmed.

WALLACE and KHOUZAM, JJ., Concur.

      . On rehearing, Mr. Genovese accurately points out that his information included allegations of both premeditated murder and attempted murder within the counts alleging solicitation and conspiracy. In this opinion, we have relied on the greater charge, which is consistent with his written plea agreement to plead guilty to solicitation and conspiracy "to commit murder as charged.” His judgments accurately fulfilled the written plea agreement and convicted him of solicitation and conspiracy to commit murder, not attempted murder.


text:
    Marbin VILLACORTA, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4008.
    District Court of Appeal of Florida, Second District.
    April 11, 2014.
   PER CURIAM.

Marbin Villacorta appeals the summary denial of his motion for postconviction relief. We affirm. However, we note that Mr. Villacorta’s time limit to file a motion pursuant to Florida Rule of Criminal Procedure 3.850(b) does not expire until March 23, 2015. Accordingly, our affir-mance is without prejudice to Mr. Villacor-ta’s right to file a properly sworn motion for postconviction relief on or before that date. Any claim raised in such a motion shall not be deemed successive unless it duplicates grounds three or four of the amended motion that was the subject of the order on appeal.

ALTENBERND, CASANUEVA, and WALLACE, JJ., Concur.


text:
    Henry Lee BAKER, IV, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1249.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2014.
    James S. Purdy, Public Defender, and Lisa A. Haskins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012).

COHEN, BERGER and WALLIS, JJ., concur.


text:
    Yordan PUGA-NESTAL, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-115.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2014.
    Yordan Puga-Nestal, Milton, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Smith v. State, 932 So.2d 594 (Fla. 5th DCA 2006).

GRIFFIN, LAWSON and COHEN, JJ., concur.


text:
    Rolland A. SHULTZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2453.
    District Court of Appeal of Florida, Second District.
    April 16, 2014.
    Rolland A. Shultz, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Rolland A. Shultz appeals the postcon-vietion court’s order denying his petition for writ of habeas corpus, which the court properly treated as a motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We reverse the order on appeal and remand for entry of a revised sentence.

In 1978, when Mr. Shultz was sixteen years old, he committed a burglary with an assault and an attempted sexual battery. He was charged as an adult. In 1979, he pleaded guilty and was sentenced by Judge Harry Lee Coe to two years’ imprisonment for the attempted sexual battery, followed by lifetime probation for the burglary. Judge Coe entered an order expressly sentencing Mr. Shultz as a youthful offender. Upon his release from prison, Mr. Shultz violated condition five of his probation in 1980, which at that time required a probationer to remain at liberty without violating any law. See Pass v. State, 486 So.2d 1062, 1063 (Fla. 2d DCA 1983). Judge Coe revoked his probation and sentenced him to ninety-nine years’ imprisonment. Nothing indicates that Mr. Shultz was convicted of any new substantive offense.

Mr. Shultz appealed the revocation and the resulting sentence. In 1982, this court affirmed the ninety-nine-year sentence, stating: “Appellant contends on appeal that his 99 year sentence for burglary should be vacated with instructions that he be resentenced as a youthful offender. This argument is without merit. State v. Goodson, 403 So.2d 1337 (Fla.1981).” Schultz v. State, 411 So.2d 892, 893 (Fla. 2d DCA 1982). Although we do not know what specific arguments were presented in that original appeal, Goodson does not directly discuss whether a defendant who was permissibly treated as a youthful offender under section 958.04(1), Florida Statutes (1979), must be resentenced as a youthful offender on a violation of probation. In fact, at the time Mr. Shultz’s judgment and sentence became final in 1982, Brandle v. State, 406 So.2d 1221 (Fla. 4th DCA 1981), appears to be the only decision addressing what sentence may be imposed upon the revocation of a youthful offender’s community control. See generally State v. Barnum, 921 So.2d 513, 523 (Fla.2005) (“[I]n the absence of interdistrict conflict, decisions of the district courts represent the law of the state, binding all Florida trial courts.”).

In Brandle, the defendant was designated as a youthful offender and placed on probation for three years. 406 So.2d at 1221. After violating probation, the trial court revoked his probation and sentenced him to eight years’ imprisonment. Id. The Fourth District vacated his sentence of eight years’ imprisonment, holding that his “designation as a youthful offender ... requires that a subsequent period of incarceration be consistent with the limitations set forth in [section 958.05(2) ].” Id.; see also § 958.05, Fla. Stat. (Supp. 1978) (“If the court classifies a person a youthful offender, ... the court shall dispose of the criminal case as follows: ... [t]he court may commit the youthful offender to the custody of the department for a period not to exceed 6 years. The sentence of the court shall specify a period of not more than the first 4 years to be served by imprisonment and a period of not more than 2 years to be served in a community control program.”).

Thereafter, the Florida Supreme Court considered a case very similar to Mr. Shultz’s case. See State v. Arnette, 604 So.2d 482 (Fla.1992). The defendant, who was fifteen, pleaded guilty to armed burglary and false imprisonment. Id. at 483. He was designated as a youthful offender and received a sentence of four years’ imprisonment followed by two years’ community control. Id. When released, the defendant violated his community control by committing a new law violation. Id. The trial court revoked his community control and resentenced him to life imprisonment. Id. The supreme court held that his sentence of life imprisonment imposed upon his violation and revocation of his community control was an illegal sentence. Id. at 484. Its decision was based on a legislative amendment that the court found to be a declaration of prior intent. Id.; see ch. 85-288, § 24, at 1821, Laws of Fla. This holding is consistent with the Fourth District’s decision in Brandle. In 1990, the legislature eliminated the six-year limitation for violations that were new substantive offenses. See § 958.14, Fla. Stat. (1990), amended by ch. 90-208, § 19, at 1161, Laws of Fla. But this amendment would not apply to Mr. Shultz.

Thus, at all times since the decision in Amette, it has been clear that the ninety-nine-year sentence imposed on Mr. Shultz was not a legal sentence. At the time of the revocation of Mr. Shultz’s probation, the trial court could only impose a sentence of up to six years’ imprisonment. See § 958.14, Fla. Stat. (1981) (“A violation ... of the terms of a community control program shall subject the youthful offender to the provision[ ] of [section 948.06(1) ].”); § 948.06(1), Fla. Stat. (1981) (“If such probation is revoked, the court shall ... impose any sentence which it might have originally imposed before placing the probationer on probation.”); Annette, 604 So.2d at 484 (holding that upon the revocation of a youthful offender’s community control, the trial court could impose a maximum sentence of six years’ imprisonment).

A motion pursuant to rule 3.800(a) can be filed at any time. For whatever reason, Mr. Shultz waited until 2012 to file his motion. The postconviction court denied the motion, reasoning only that the claim was barred by the “law of the case” because of the above-quoted language in our earlier opinion.

We are doubtful that the doctrine of law of the case applies in this case. “In our view, the law of the case doctrine is viable in those post-conviction proceedings wherein a defendant requests review of a specific claim of error which has been already raised and decided by an appellate court.” Raley v. State, 675 So.2d 170, 173 (Fla. 5th DCA 1996). From our earlier opinion and its reliance on Goodson, it is difficult to know what specific claim was made on behalf of Mr. Shultz or what law this court intended to establish.

Even assuming that the law of the case doctrine does apply, the case law recognizes rare exceptions to its rigid application in the case of some illegal sentences. This court has held that the law of the case doctrine will not bar relief in a rule 3.800(a) motion seeking to correct an illegal sentence that otherwise constituted a manifest injustice. See Lawton v. State, 731 So.2d 60, 61 (Fla. 2d DCA 1999). Even the writ of habeas corpus can occasionally be employed to obtain release from a sentence that results in a manifest injustice. See Haager v. State, 36 So.3d 883, 884-85 (Fla. 2d DCA 2010) (exercising the court’s inherent authority to grant a writ of habeas corpus to provide relief on a claim raised in a rule 3.800(a) motion, which would have otherwise been barred by the law of the case doctrine, to prevent a manifest injustice from occurring); see also Figueroa v. State, 84 So.3d 1158, 1162 (Fla. 2d DCA 2012) (holding that relief may be provided to prevent a manifest injustice “in the exercise of this court’s inherent authority to grant a writ a habeas corpus”). Mr. Shultz is serving a ninety-nine-year sentence when it has been clear for more than twenty years that his sentence could not lawfully have exceeded six years. If any sentencing error would qualify as a manifest injustice, this must surely be that error.

Accordingly, we reverse the postconviction court’s order and remand for the court to vacate Mr. Shultz’s sentence of life imprisonment and resentence him as a youthful offender to a term of imprisonment that does not exceed six years. This re-sentencing should entitle Mr. Shultz to release from prison.

CASANUEVA and VILLANTI, JJ., Concur.

      . The term of probation exceeded the term permitted by statute. Section 958.05, Florida Statutes (Supp. 1978), generally limited a period of "probation in a community control program” to two years and contemplated a split sentence not to exceed four years’ imprisonment followed by two years’ community control. Apparently, Mr. Shultz did not challenge this sentence on direct appeal.

      . In Goodson, the court held that section 958.04(2) mandated a youthful offender designation if certain statutory prerequisites applied. 403 So.2d at 1338-39. The court also held that the youthful offender designation was not mandatory if the offender had been found guilty of two or more contemporaneous felony convictions before sentencing. Id. at 1339-40.


author: MORRIS, Judge.

text:
    WELLS FARGO INSURANCE SERVICES USA, INC. (successor by merger to Boushall & Associates, Inc.), a North Carolina corporation authorized to do business in the State of Florida, Petitioner, v. William M. BLACKSHEAR, Jr., M.D.; Unum Group Corporation (f/k/a Unumprovident Corporation), a Delaware corporation authorized to do business in the State of Florida; and Julio C. Muniz, an individual, Respondents.
    No. 2D13-4180.
    District Court of Appeal of Florida, Second District.
    April 16, 2014.

      Lloyd R. Schwed and Isaac J. Wannos of Schwed Kahle & Kress, P.A., Palm Beach Gardens, for Petitioner.
    Stuart Jay Levine and Edward J. Brown of Walters Levine Klingensmith & Thomi-son, P.A., Tampa, for Respondent William M. Blackshear, Jr., M.D.
    No' appearance for remaining Respondents.
   MORRIS, Judge.

Wells Fargo Insurance Services USA, Inc. (Wells Fargo), seeks certiorari review of an order denying its motion to dismiss or stay/abate count five of the complaint filed by William Blackshear, Jr., M.D. We grant Wells Fargo’s petition and quash the order on review.

I. Facts

According to the complaint, Dr. Black-shear, a vascular surgeon, had two disability insurance policies with UNUM Group Corporation (UNUM). In 2010, Dr. Blackshear submitted a disability claim under the policies, claiming that he suffered from “several orthopedic and medical problems [that] had progressively impaired his ability to perform vascular operations” and that his “physical condition had deteriorated to the point where he could no longer perform the substantial and material duties of a[v]ascular [s]ur-geon.” UNUM denied his disability claim, finding that he was not eligible for total disability based on a determination “that Dr. Blackshear was regularly engaged in the duties of his vascular surgery practice, Vascular Diagnostic Center, Inc.; New Image Clinic, Inc.; and medical/legal consulting” and that “Dr. Blackshear’s occupation was not limited to vascular surgery but rather included the duties he performed in each of the other ancillary businesses.” UNUM denied Dr. Blackshear’s appeal of the denial of his claim.

Dr. Blackshear then filed a complaint against UNUM alleging counts for declaratory judgment, breach of contract, promissory estoppel, and reformation. The complaint also alleged a count for negligent misrepresentation (count five) against Wells Fargo and Julio C. Muniz (the agent). Wells Fargo is the successor in interest to Boushall and Associates, Inc. (the agency), which was UNUM’s authorized agent and Muniz’s employer. The complaint alleged in pertinent part that the agent and the agency assured “Dr. Blackshear that the [disability [pjolicies issued by UNUM were specifically designed to protect against and cover” Dr. Blackshear’s inability to “perform vascular surgery even if Dr. Blackshear could perform other types of duties of a vascular surgery practice such as seeing patients in the office, making rounds or supervising a non-invasive vascular laboratory.” Dr. Blackshear alleged that he relied on the agent’s and the agency’s representations in this regard, that his “sole reason in purchasing the [disability [p]olicies was to provide him with a substantial monthly benefit in the event he suffered any disabling injury or sickness that would prevent him from engaging in his established occupation as a[v]aseular [sjurgeon performing vascular operations,” and that “[b]ut for these representations, Dr. Blackshear would have sought out and purchased from another insurance carrier [such] coverage that met his specifications.” Dr. Black-shear further alleged that he later learned that the agent’s and the agency’s representations were “false according to UNUM’s present position after the [disability [c]laim was submitted and subsequently denied,” that the agent and the agency “were negligent in making [the] representations which they should have known” were false, and that the agent and the agency intended for Dr. Blackshear to rely on their representations. Dr. Blackshear alleged that as a result of these representations, he suffered damages which included the loss of all disability policy benefits.

Wells Fargo filed a motion to dismiss and stay/abate count five against it pending the resolution of Dr. Blackshear’s claims against the insurer, UNUM. Wells Fargo argued that the law is clear that until the claims against UNUM are resolved in Dr. Blackshear’s favor, no cause of action has accrued against Wells Fargo. The trial court held a hearing on Wells Fargo’s motion and considered the argument of counsel. At the conclusion of the hearing, the trial court denied Wells Fargo’s motion without prejudice.

II. Analysis

In its petition for writ of certiorari, Wells Fargo argues that the trial court departed from well-established case law holding that a negligence claim against an agent should be abated or dismissed as premature when a claim against the insurance company has yet to be determined.

In Blumberg v. USAA Casualty Insurance Co., 790 So.2d 1061 (Fla.2001), the supreme court considered the issue of when a cause of action accrues against an insurance agent for negligence or professional malpractice based on the agent’s promising coverage that was ultimately unavailable to the insured. The insured in Blumberg first filed suit against the insurance company, and after that suit was concluded, the insured filed suit against the agent. Id. at 1063. The agent raised the statute of limitations as an affirmative defense, and the supreme court considered whether the statute of limitations for the insured’s claim against the agent began to run when the insurance company denied coverage or when a judgment was entered in the suit against the insurance company determining that coverage was unavailable. Id. at 1068,1065. The court held

that, in the circumstances presented here, a negligence/malpractice cause of action accrues when the client incurs damages at the conclusion of the related or underlying judicial proceedings or, if there are no related or underlying judicial proceedings, when the client’s right to sue in the related or underlying proceeding expires. If a negligence/malpractice action is filed prior to the time that a client’s right to sue in the related or underlying judicial proceeding has expired, or if a negligence/malpractice action is filed dming the time that a related or underlying judicial proceeding is ongoing, then the defense can move for an abatement or stay of the claim on the ground that the negligence/malpractice action has not yet accrued. The moving party will have the burden of demonstrating that the related or underlying judicial proceeding will determine whether damages were incurred which are causally related to the alleged negligence/malpractice. The determination of this will be for the trial court.

Id. at 1065 (emphasis added) (footnotes omitted). “This rule is designed to prevent inconsistent positions by an insured, such as when the insured claims, on the one hand, that coverage exists! ] and, on the other hand, that coverage does not exist.” Penn-Am. Ins. Co. v. Edwards, No. 3:09cv153/MCR/EMT, 2009 WL 1919353, at *2 (N.D.Fla. July 1, 2009) (citing Blumberg, 790 So.2d at 1066); see Perez-Abreu, Zamora & De La Fe, P.A. v. Taracido, 790 So.2d 1051, 1054 (Fla.2001) (noting that the holding in Blumberg was to “prevent clients from having to take directly contrary positions in the two actions”). Federal cases have applied Blum-berg in holding that “a claim against an insurance agent for negligence does not accrue until the underlying action against the insurance company is final,” Glasbrenner v. Cont’l Gen. Ins. Co., No. 8:03-CV-2385-T-27TBM, 2004 WL 322912, at *1 (M.D.Fla. Jan. 27, 2004), and, more specifically, “only after the insured is unsuccessful in recovering damages at the conclusion of legal proceedings against the insurer,” Landmark Am. Ins. Co. v. Moulton Props., Inc., No. 3:05cv401/LAC, 2006 WL 2038554, at *1 (N.D.Fla. July 19, 2006). See, e.g., Mobro Marine Inc. v. Essex Ins. Co., No. 3:11-cv-622-J-12JBT, 2011 WL 6328255 (M.D.Fla. Dec. 15, 2011); Steele v. Mid-Continent Cas. Co., No. 07-60789-CIV, 2007 WL 3458543 (S.D.Fla. Nov. 14, 2007); Pollywog Transp., Inc. v. Abest Agencies, Inc., 2004 WL 2673225 (M.D.Fla. July 16, 2004).

In his claim for negligent misrepresentation against Wells Fargo, Dr. Black-shear alleged that the agent and the agency assured Dr. Blackshear that the type of disability claim he is asserting would be covered by the UNUM policies and that Dr. Blackshear relied on those assurances when obtaining the policies. Dr. Black-shear also alleged that UNUM denied coverage under the policies and that the agent and the agency should have known that it falsely represented that the type of claim would be covered by the policies. Thus, Dr. Blackshear’s count against Wells Fargo is dependent upon a determination that his disability claim is not covered under his policies with UNUM, and until the action against UNUM is resolved in UNUM’s favor and against Dr. Blackshear, Dr. Blackshear’s count against Wells Fargo is premature.

Because Dr. Blackshear’s count against Wells Fargo is premature, the trial court departed from the essential requirements of law in denying Wells Fargo’s motion to dismiss or stay/abate count five. See Burgess v. Lippman, 929 So.2d 1097, 1098-99 (Fla. 4th DCA 2006) (granting certiorari relief and quashing order denying motion to abate where legal malpractice claim was premature under Blumberg and should have been abated); see also Colodny, Fass & Talenfeld, P.A. v. Bal Bay Realty, Ltd., 48 So.3d 1030, 1031 (Fla. 3d DCA 2010) (relying on Burgess and Bierman v. Miller, 639 So.2d 627, 628 (Fla. 3d DCA 1994)). Accordingly, we grant Wells Fargo’s petition for writ of certiorari and quash the order of the trial court.

We note that because the premature element of count five will not be cured by the passage of time and will only be cured by a finding that Dr. Blackshear’s disability claim is not covered by the disability policies, the appropriate remedy is a dismissal of count five without prejudice, rather than an abatement of the count. See Shuck v. Bank of Am., N.A., 862 So.2d 20, 25 (Fla. 2d DCA 2003) (noting that where “[a]n action [is] premature because one of its essential elements is contingent upon the occurrence of an event that may or may not occur[,] ... the mere passage of time will not cure the premature element of the claim” and dismissal without prejudice, rather than abatement, is appropriate); Landmark Am. Ins. Co., 2006 WL 2038554, at *2-3 (relying on Shuck).

Petition granted; order quashed.

VILLANTI and CRENSHAW, JJ., concur.

      . Boushall and Associates, Inc., merged into Wachovia Insurance Services, Inc., which later changed its name to Wells Fargo Insurance Services USA, Inc.

      . Muniz moved to join in Wells Fargo's motion to dismiss or stay/abate, but in the order denying Wells Fargo’s motion, the trial court denied Muniz's motion to join.


author: LaROSE, Judge.

text:
    DOT (SR), Inc., Appellant, v. TELESUR, Appellee.
    No. 2D13-2474.
    District Court of Appeal of Florida, Second District.
    April 16, 2014.

      Dana M. Gallup of Law Offices of Dana M. Gallup, P.A., Hollywood, for Appellant.
    Kenneth R. Hartmann and S. Montaye Sigmon of Kozyak Tropin & Throckmor-ton, P.A., Coral Gables, for Appellee.
   LaROSE, Judge.

DOT (SR), Inc., appeals the trial court’s order dismissing its complaint against Telesur on remand from this court. See Telesur v. DOT (SR), Inc., 100 So.3d 1232 (Fla. 2d DCA 2012) (“Telesur I”). Because the trial court concluded that it could not consider DOT’S amended complaint, we must reverse.

In Telesur I, we reversed the trial court’s nonfinal order denying Telesur’s motion to dismiss the complaint for lack of personal jurisdiction. Id. at 1236. DOT’S jurisdictional allegations were inadequate. We held that “the allegations in DOT (SR)’s complaint combined with the language in the agreement [were] insufficient ... to establish personal jurisdiction over Telesur pursuant to Florida’s long-arm statute.” Id. at 1233, 1236 (citing § 48.193, Fla. Stat. (2009)). In our published opinion, we remanded for the trial court “to enter an order dismissing DOT (SR)’s complaint without prejudice.” Id. at 1236.

Inexplicably, the trial court and the parties received a version of our opinion that omitted the words “without prejudice,” ob-' viously an omission inconsistent with the result we intended and published. In the trial court on remand from Telesur I and in their briefs here, the parties presented their positions based on the version of our opinion that omitted the “without prejudice” language.

After our mandate issued but before dismissal, DOT filed an amended complaint attempting to cure the jurisdictional deficiencies. Telesur filed a motion urging the trial court to dismiss the case as a ministerial act pursuant to our mandate. Telesur acknowledged that dismissal did not preclude DOT from filing a complaint in another jurisdiction. The trial court “carefully considered both the Opinion and the Mandate and ... [i]n accordance with the Opinion and the Mandate of the Second DCA, ... ordered and adjudged that DOT (SR)’s complaint [be] dismissed.” Unfortunately, both the trial court and the parties proceeded with an incorrect opinion.

Under the unique circumstances of this case, where we intended and issued a published opinion directing a dismissal, without prejudice, and observed that the initial complaint was deficient in jurisdictional allegations, DOT should have been permitted to amend its complaint. See Fla. R. Civ. P. 1.190(a); Boca Burger, Inc. v. Forum, 912 So.2d 561, 567 (Fla.2005); Williams v. Gaffin Indus. Servs., 88 So.3d 1027, 1029 (Fla. 2d DCA 2012).

Precedent supports us. In Wells Fargo, the Third District held that the complaint failed to state a cause of action and reversed and remanded the case “for further proceedings.” Sunshine Sec. & Detective Agency v. Wells Fargo Armored Servs., 496 So.2d 246, 247 (Fla. 3d DCA 1986). The Third District considered the case again after Wells Fargo filed an amended complaint on remand and the trial court dismissed the amended complaint on statute of limitations grounds. Wells Fargo Armored Servs. v. Sunshine Sec. & Detective Agency, 538 So.2d 92, 93-94 (Fla. 3d DCA 1989). The Third District affirmed on the basis that the law-of-the-case doctrine “precluded ... reopening the case and filing an amended complaint on remand.” Id. at 93.

The supreme court disagreed. Wells Fargo Armored Services v. Sunshine Security & Detective Agency, 575 So.2d 179 (Fla.1991). “The law-of-the-case doctrine was meant to apply to matters litigated to finality, not to matters that remain essentially unresolved due to the erroneous ruling of a lower court.” Id. Because the Third District originally reversed and remanded for further proceedings for failure to state a cause of action, “[t]he effect was to return this proceeding to the. lower court as though the erroneous ruling never had been made[ — ]as though, without regard to the intervening appeal, a complaint had been filed that failed to state a cause of action.” Id. Similarly, our reversal in Telesur I was based on pleading deficiencies.

Fitchner v. Lifesouth Community Blood Centers, Inc., 88 So.3d 269 (Fla. 1st DCA 2012), is also instructive. In Lifesouth, the First District in a previous opinion reversed a judgment for noncompliance with presuit notice requirements and remanded “for the trial court to enter an order granting appellant’s motion to dismiss.” Id. at 273 (quoting Lifesouth Cmty. Blood Ctrs., Inc. v. Fitchner, 970 So.2d 379, 381-84 (Fla. 1st DCA 2007)). On remand, the trial court dismissed the complaint. Lifesouth, 88 So.3d at 271. “[T]he opinion did not expressly direct the trial court to dismiss the action with prejudice or to enter judgment for Lifesouth.” Id. at 273. On remand, the trial court considered the remand proceeding’s permissible scope. Id. Lifesouth argued that the trial court could only enter a judgment in its favor, while the Fitchners contended that the reversal’s effect was to return the case to the status that would have resulted had the trial court properly granted the dismissal motion, with an opportunity to amend. Id. The trial court interpreted the mandate to permit further proceedings but ultimately dismissed the complaint with prejudice because it rejected the Fitchners’ argument that presuit notice requirements could be excused. Id. at 274.

The Fitchners appealed. Id. Lifesouth argued that the trial court erred in considering the presuit notice on remand instead of following the mandate’s directive to dismiss the case. Id. The First District held that “[t]he trial court correctly interpreted the mandate to allow further proceedings on the Fitchners’ claim.” Id. The previous appeal did not decide the case but restored it to the pleading stage. Id. at 277. The court stated that “[w]hen an appellate court holds that the trial court should have dismissed the complaint, the effect is precisely the same as it would have been had the trial court dismissed the complaint in the first instance.” Id. at 276.

That is the case here. The trial court should have considered DOT’S amended complaint. Therefore, we reverse and remand. In doing so, we take no position as to whether the amended complaint cures the jurisdictional deficiencies we noted in Telesur I.

Reversed and remanded for further proceedings.

SILBERMAN and BLACK, JJ., Concur.

      . At oral argument, Telesur recognized that potential statute of limitations issues lurked around any new lawsuit.

      . "The filing of a motion to dismiss does not end the plaintiff’s absolute right to amend the complaint once.” Williams, 88 So.3d at 1030. Neither can a trial court deny a request to amend based on the defendant’s argument that amending the complaint will be futile. Id. (citing Boca Burger, Inc., 912 So.2d at 567).


author: PER CURIAM. TORPY, C.J.,

text:
    STATE of Florida, Appellant, v. Ryan E. SHILLINGFORD, Appellee.
    No. 5D13-3427.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
    Matthew P. Ferry of Law Office of Warren Lindsey, P.A., Winter Park, for Appel-lee.
   PER CURIAM.

The State challenges an order suppressing cannabis and paraphernalia discovered during a search of Appellee’s apartment. Although the search was conducted pursuant to a warrant, the trial court concluded that the facts supporting the issuance of the warrant were discovered during an unreasonable, warrantless entry into the apartment by sheriffs agents, thereby invalidating the warrant. Concluding that the warrantless entry into the home was reasonable due to exigent circumstances, we reverse.

Sheriffs Deputy Waesco went to Appel-lee’s apartment to investigate a domestic battery call concerning Appellee and his live-in girlfriend. Prior to his arrival, Deputy Waesco learned that the victim of the battery and her mother were at the hospital. Upon arrival, Deputy Waesco followed a trail of blood starting at the base of a staircase and leading to Appel-lee’s apartment. There was blood on the door and Deputy Waesco heard “moaning sounds of distress” coming from within the apartment. He thought the sounds were made by a male.

Upon Deputy Waesco’s knock, Appellee barely opened the door. He spoke to the deputy from behind the door. It appeared that Appellee had just emerged from the shower. He insisted that “everything was fine.” He told the deputy that he was the only person in the apartment and denied that he had been making moaning sounds. When questioned about the blood trail leading to the apartment, Appellee simply responded that “everything was fine.”

Deputy Waesco asked Appellee to step outside, and he complied. Appellee opened the door just far enough to exit, being careful not to let the deputy see inside the apartment. Appellee was placed under arrest for domestic battery and handcuffed. Deputies then entered the apartment to verify that no one within the apartment was in distress. They looked only in areas where a person might be found. No other search was conducted at that time. While walking through the apartment, deputies observed cannabis and paraphernalia in plain view. They subsequently obtained a search warrant and recovered the drugs.

The dispositive question in this case is whether the deputies reasonably believed an individual was in distress when they made the warrantless entry. Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006); United States v. Holloway, 290 F.3d 1331, 1338 (11th Cir.2002); see also Tierney v. Davidson, 133 F.3d 189, 196-97 (2d Cir.1998) (holding police officers may enter dwelling without warrant if, based on objective standard, they reasonably believe individual is in distress); Root v. Gauper, 438 F.2d 361, 364-65 (8th Cir.1971) (holding warrantless search based on emergency requires assessment of whether officers reasonably believe action is necessary). Here, the trial court concluded that Deputy Waesco did not have a reasonable belief that someone inside the apartment was in distress because he knew the victim was at the hospital, he had not received any report that anyone else was in the residence, and the moaning ceased when he knocked on the door. Based on our de novo review, we reach the contrary conclusion. See Ortiz v. State, 24 So.3d 596, 600 (Fla. 5th DCA 2009) (application of law to facts is reviewed de novo).

Whether the police acted reasonably must be viewed from the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Ryburn v. Huff, — U.S. -,-, 132 S.Ct. 987, 992, 181 L.Ed.2d 966 (2012). The “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In cases involving the potential that someone might be in need of medical assistance, conscientious police officers are expected to err on the side of caution. United States v. Black, 482 F.3d 1035, 1040 (9th Cir.2007).

Here, we think the deputies were justified in the belief that another victim of the obviously violent disturbance might be present in the apartment. The radio dispatch did not negate the possibility that there was more than one victim at the scene. When the officers arrived and observed the blood trail leading to Appellee’s apartment, and heard moaning coming from within the apartment, it was reasonable to conclude that someone in the apartment was in distress. Because Appellee denied that he had been moaning, officers could reasonably infer that another person was the source of the sound. The manner by which Appellee carefully guarded the premises from the view of the officers, and his insistence that “everything was fine,” even in the face of obvious evidence to the contrary, buttressed the inference that someone behind the door might be in distress. Under these circumstances, the officers acted reasonably in performing a limited search of the premises.

REVERSED AND REMANDED.

SAWAYA and LAWSON, JJ„ concur.

TORPY, C.J., concurs specially with opinion.

TORPY, C.J.,

concurring.

I fully concur in the majority opinion. The police were in a no-win situation. On the one hand they were criticized because there was no actual emergency. On the other hand, had there been an actual medical emergency, they would have been criticized for failing to investigate.

In any event, this is not a situation where the exclusionary rule is appropriate. As The Supreme Court has made clear, “[t]o trigger the exclusionary rale, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. [T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct .... ” Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (emphasis added). Even assuming a violation of the Fourth Amendment here, nothing in the police conduct rises to the level where exclusion of the evidence can be justified under this standard.


author: GRIFFIN, J.

text:
    Anthony L. GUGLIELMINI, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1492.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2014.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

This is an Anders appeal. We find no reversible error in Appellant’s convictions or sentence. There is, however, a scrivener’s error in the judgment. Appellant was charged with second-degree murder and convicted of the lesser included offense of manslaughter. The judgment correctly reflects that he was convicted of manslaughter by culpable negligence, a second-degree felony, but it also references section 782.07(8), Florida Statutes. Section 782.07(3) is the crime of aggravated manslaughter of a child. According to appellate counsel, the Department of Corrections’ webpage reflects that Appellant is incarcerated for aggravated manslaughter of a child. Although the victim was a child, the jury was not instructed as to aggravated manslaughter of a child. He was convicted of simple manslaughter. To avoid confusion, we remand for correction of the judgment.

AFFIRMED and REMANDED.

LAWSON and BERGER, JJ., concur.

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


text:
    David R. REIDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4188.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2014.
    David R. Reidy, Polk City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

David R. Reidy appeals the dismissal of his motion for jail credit, filed pursuant to Florida Rule of Criminal Procedure 3.801. This rule, effective July 1, 2013, limits the time for seeking correction of jail credit to one year from the date the sentence became final. Because Reidy’s August 8, 2013 motion was filed more than one year after the sentence in his case became final, the trial court dismissed his motion as untimely.

Subsequently, on December 5, 2013, the Florida Supreme Court clarified by amendment to the rule that a one-year grace period for filing a rule 3.801 motion exists for defendants whose sentences were imposed prior to July 1, 2013. See In re: Amendments to Florida Rules of Criminal Procedure & Florida Rules of Appellate Procedure, 132 So.3d 734 (Fla.2013) (amended Rule 3.801(b) to add, “For sentences imposed prior to July 1, 2013, a motion under this rule may be filed on or before July 1, 2014”). Reidy’s motion fell within this grace period, and should be considered on the merits. As such, we reverse the dismissal order and remand for consideration of Reidy’s motion pursuant to rule 3.801.

REVERSED AND REMANDED.

PALMER, LAWSON and WALLIS, JJ., concur.


text:
    James B. BOUGHS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-4196.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2014.
    Curt D. Obront, Law Offices of Curt D. Obront, Miami, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2011-CF-002048, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

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


text:
    Johnny D. HOLLOWAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5540.
    District Court of Appeal of Florida, First District.
    April 22, 2014.
    Johnny D. Holloway, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered on or about March 29, 2013, denying petitioner’s motion for post-conviction relief in Duval County Circuit Court case number 16-2008-CF-010622-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

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


text:
    Gregory JAMES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6208.
    District Court of Appeal of Florida, First District.
    April 22, 2014.
    Gregory James, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on September 18, 2013, in Clay County Circuit Court case number 2012-CF-002731, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the services of appointed counsel at public expense, the lower tribunal is directed to appoint counsel to represent petitioner in the belated appeal authorized by this opinion.

LEWIS, C.J., PADOYANO and MAKAR, JJ., concur.


text:
    Robert E. PETTY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0818.
    District Court of Appeal of Florida, First District.
    April 22, 2014.
    Robert E. Petty, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is granted, and by separate order, petitioner’s direct appeal in case number 1D13-2320 shall be reinstated.

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


text:
    Lafayette RICHARDSON, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D14-1179.
    District Court of Appeal of Florida, First District.
    April 22, 2014.

      Lafayette Richardson, pro se, Petitioner.
    Jennifer Parker, General Counsel, and Sheron Wells, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

It appearing that petitioner has been released from the custody of the Department of Corrections, the emergency petition for writ of habeas corpus is DISMISSED as moot.

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


text:
    Mary Y. KENDALL, Appellant, v. LIFESTYLE FAMILY FITNESS, Appellee.
    No. 5D13-1991.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2014.
    Lamar D. Oxford and Joseph R. Flood, Jr., of Dean, Ringer, Morgan & Lawton, Orlando, for Appellant.
    Dennis R. O’Connor and Derek J. An-gelí, of O’Connor & O’Connor, LLC, Winter Park, for Appellee.
   PER CURIAM.

AFFIRMED. See Give Kids the World, Inc. v. Sanislo, 98 So.3d 759 (Fla. 5th DCA 2012).

PALMER, EVANDER and COHEN, JJ., concur.