author: LAGOA, J.

text:
    Nedge Nora TURNIER, Appellant, v. Jonathan Lee STOCKMAN, Appellee.
    No. 3D13-1822.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.
    Rehearing Denied June 16, 2014.

      The Metsch Law Firm, P.A., and Lawrence R. Metsch, for appellant.
    Florida Coastal School of Law Family Law Clinic and Natalie Tuttle, Jacksonville, for appellee.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   LAGOA, J.

The mother, Nedge Nora Turnier, appeals from a final judgment establishing a parenting plan which orders that the parties’ minor child live with the father, Jonathan Lee Stockman, for the majority of the school year so that their child can attend the Florida School for the Deaf and the Blind located in St. Augustine, Florida. For the following reasons, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

The mother and father have a son, T.S., who was born on August 4, 2009. The mother and father never married, but the father’s paternity was never in dispute. The mother, father, and T.S., have all been deaf since birth.

The father instituted the present case as a paternity proceeding in St. Johns County, where he lives, but the case was transferred to Miami-Dade County, where the mother and T.S. live. Because paternity was never in dispute, the matter proceeded on the issues of time sharing and determination of a parenting plan. After participating in mediation, the parties entered into a temporary and partial mediated settlement agreement on March 9, 2012. In the mediated settlement agreement, the parties agreed to shared parental responsibility, and to a temporary time-sharing schedule. The mediated settlement agreement reserved, for the trial court’s consideration, the issues of where T.S. should attend school, permanent time sharing, child support, and uncovered medical expenses.

The trial took place over the course of two days, August 31, 2012, and June 5, 2013. On the first day of trial, the father testified that he wants T.S. to attend the same school he attended — the Florida School for the Deaf and the Blind (“FSDB”) — which is located in St. Augustine, where he lives. He testified that T.S. did not know his numbers one through ten or his ABCs, and that his vocabulary was extremely limited and showed no signs of improvement. He also testified that he did not know if his son was currently in school because the mother did not keep him informed or answer his questions concerning T.S.

The mother testified that she enrolled T.S. in a school in Broward County that had both hearing and deaf students. She testified that T.S. was learning a lot and doing well in the school. She admitted that she did not consult the father when she decided to enroll T.S. in the school.

At the conclusion of the first day of trial, the trial judge stated that he could not make a final decision at that time, and that he needed to appoint a guardian ad litem (“Guardian”). The trial court stated:

THE COURT: I have heard enough, Mr. Metsch, to cause me some concern about this case. I’m not sure we can finish with the trial today. I want to hear from the mother about the child’s education. And my inclination is to appoint a Guardian Ad Litem. Someone who is not aligned with either the mother or the father, but will tell me what’s appropriate for this child.
I don’t know what school he is in, if any. I don’t know whether it’s appropriate for him. And it bothers me that if the child is in school and I certainly hope that he is, but if he is in school how can he have gotten in school without the father’s knowledge.
The parties agreed to share parental responsibility. That is one of the decisions that should have been made by the two parents together. The mom doesn’t get to make a unilateral decision like that.
THE COURT: So rather then (sic) make a final decision now because I really can’t, I need to appoint a Guardian Ad Litem. I need a Guardian Ad Litem to meet with the mom and meet with the dad.

The trial judge expressed concern that he might not be able to find a Guardian who knew sign language, and the mother’s attorney offered to help look for a Guardian who was proficient in sign language.

Trial continued on June 5, 2013. The father again testified that he wanted T.S. to attend the FSDB, which he believes provides a better education for a deaf child than a mainstream public school. He also testified that T.S. was not learning enough sign language, and that he does not know how to spell his name. The father testified that at the FSDB the education is directly in sign language and that T.S. would have the opportunity to participate in sports and extracurricular activities. The father wanted an official from the FSDB to testify by phone, but the mother objected. A brochure from the FSDB was admitted as an exhibit. The father’s mother, father, two sisters, live-in girlfriend, and a parent of a student currently attending the FSDB all testified.

The mother testified that T.S. attends a school in Pompano Beach that has an educational program for deaf children. The school has both hearing and deaf children, and some of the teachers know sign language. She also explained that T.S. has an interpreter for part of the day. She testified that the school is teaching T.S. sign language, but that she also works with him at home to help him use and understand sign language. She testified that T.S. knows his ABCs, his numbers one through ten, and that he can sign his name. She admitted on cross-examination that she does not communicate directly with the father. The mother’s mother also testified.

After considering the factors set forth in section 61.13(3), Florida Statutes (2013), the trial court found that it was in the best interests of T.S. that he attend the FSDB in St. Augustine. As a result, the trial court ordered that T.S. live the majority of the school year in St. Augustine with the father, and the majority of the summer with the mother, with the parties alternating weekends. The trial judge also stated that although he looked for a Guardian who could sign or was familiar with the deaf community, he could not find one. The trial court entered a detailed Final Judgment on July 2, 2013. The mother appeals raising several issues, but only two warrant discussion.

II. STANDARD OF REVIEW

We review the trial court’s final judgment establishing a parenting plan for an abuse of discretion. See Schwieterman v. Schwieterman, 114 So.3d 984 (Fla. 5th DCA 2012); Miller v. Miller, 842 So.2d 168 (Fla. 1st DCA 2003). As a result, the “trial court’s time-sharing plan must be affirmed if there is competent substantial evidence to support that decision and reasonable people could differ with respect to the trial court’s decision.” Schwieterman, 114 So.3d at 987.

III. ANALYSIS

The mother argues that the trial court committed reversible error in failing to appoint a Guardian for T.S. The mother acknowledges that the law only mandates the appointment of a Guardian in a proceeding to determine a parenting plan when there is an allegation of child abuse, abandonment, or neglect. Otherwise, the appointment of a Guardian is within the trial court’s discretion. She asserts, however, that the trial judge in the instant case “relinquished” his discretion concerning appointment of a Guardian when, at the conclusion of the first day of trial, he stated that he needed to appoint a GuardT ian. We are not persuaded by this argument.

The mother can cite to no case standing for the proposition that, in the absence of a statutory requirement, once a trial judge states that he or she “needs” a Guardian it is reversible error to fail to appoint one. Instead, the issue is analogous to that of an interlocutory ruling which, it is well established, a trial court has discretion to modify or reverse at any time before final judgment. See Bravo Elec. Co. v. Carter Elec. Co., 522 So.2d 480, 480-81 (Fla. 5th DCA 1988) (“[Tjrial judges have the right and authority, at any time before entering a final judgment, to change their minds and to change any prior interlocutory ruling.”); see also Mills v. Martinez, 909 So.2d 340 (Fla. 5th DCA 2005).

Equally important, the record reflects that the mother never filed a motion to appoint a Guardian. At the beginning of the second day of trial, June 5, 2018, the mother did not object to the fact that a Guardian had not been appointed, and proceeded to present her case. The mother’s attorney did not address the issue until closing argument, when he acknowledged that although the statute did not mandate the appointment of a Guardian in this circumstance, “all of us here would be in agreement that it would be nice to have someone whose only perspective was that of the child’s.” We find this insufficient to preserve the issue. Cf. D.T. v. Fla. Dep’t of Children & Families, 54 So.3d 632, 633 (Fla. 1st DCA 2011) (affirming statutory findings in dependency case where appellant “failed to preserve this issue by a motion for rehearing or to otherwise bring the claimed deficiency to the attention of the trial court at a point when it could have been corrected”).

We conclude that the trial court was not required to appoint a Guardian in the proceeding below. Moreover, by failing to move for the appointment of a Guardian or object below, the mother waived the issue of whether the trial court abused its discretion in failing to do so. See Millen v. Millen, 122 So.3d 496, 498 (Fla. 3d DCA 2013) (“[I]n the absence of an objection below, this Court -will not consider issues for the first time on appeal except in cases of fundamental error.”; finding no fundamental error where trial court allowed guardian ad litem to question witnesses at trial contrary to sections 61.401 and 61.403, Florida Statutes).

Turning to the second issue, relying upon Bainbridge v. Pratt, 68 So.3d 310 (Fla. 1st DCA 2011), the mother also argues that the trial court committed reversible error in creating a parenting plan for a physically-challenged child without considering expert testimony. Bainbridge stands for no such proposition. In Bain-bridge, the First District reversed a trial court’s order implementing annual rotation of time sharing for a child who had attention deficit hyperactivity disorder. In reaching its conclusion that there was insufficient evidence that such a plan was in the child’s best interest, the court addressed the factors which favor a rotating parenting plan and the statutory factors set forth in section 61.13(3). The court did not rely upon the fact that no expert testimony had been presented, and nowhere does Bainbridge state that when a child has a physical condition affecting educational issues a trial court must consider expert testimony in making a determination of that child’s best interests.

Here, the trial court’s order was supported by competent substantial evidence. The trial court heard from both the father and mother, both of whom are deaf and therefore have particular knowledge of the communication and educational needs of a deaf child. Each testified as to his or her opinion regarding T.S.’s level of communication. The father testified in detail about the education T.S. would receive at the FSDB. The mother, in turn, testified as to the education T.S. receives at the school in Pompano Beach and how she works with him on his communication skills at home. Both parties’ family members testified regarding T.S.’s home life with each parent. A parent of a student who currently attends the FSDB testified regarding his son’s experience at the FSDB, and one of the father’s sisters testified that T.S.’s teacher at the Pompano Beach school told her that it would be better for T.S. to attend the FSDB.

IV. CONCLUSION

The Florida Legislature may wish to amend section 61.401, Florida Statutes (2013), to require the appointment of a guardian ad litem in such unique circumstances as the one presented here. Until then, given the clear language of the statute, we cannot find that the trial court abused its discretion in failing to appoint a guardian ad litem where not required by section 61.401. And although a recommendation from a guardian ad litem may have been helpful given the needs of the child in this case, we nonetheless find that the trial court’s decision was supported by competent, substantial evidence. Accordingly, we affirm the final judgment entered below.

Affirmed.

      . The father is named on T.S.'s birth certificate, and the mother has always acknowledged the he is T.S.'s father.

      . Section 61.401, Florida Statutes (2013), states:
      In an action for dissolution of marriage or for the creation, approval, or modification of a parenting plan, if the court finds it is in the best interest of the child, the court may appoint a guardian ad litem to act as next friend of the child, investigator or evaluator, not as attorney or advocate. The court in its discretion may also appoint legal counsel for a child to act as attorney or advocate; however, the guardian and the legal counsel shall not be the same person. In such actions which involve an allegation of child abuse, abandonment, or neglect as defined in s. 39.01, which allegation is verified and determined by the court to be well-founded, the court shall appoint a guardian ad litem for the child. The guardian ad litem shall be a party to any judicial proceeding from the date of the appointment until the date of discharge.
      (emphasis added). See also Tallahassee Mem'l Reg'l Med. Ctr., Inc. v. Petersen, 920 So.2d 75, 78 (Fla. 1st DCA 2006) (listing circumstances in which trial court may or must appoint a guardian ad litem).

      . The mother relies upon this Court’s recent opinion in Flores v. Sanchez, 137 So.3d 1104, 39 Fla. L. Weekly D653 (Fla. 3d DCA Mar. 26, 2014), and the Supreme Court of Florida’s opinion in Department of Health & Rehabilitative Services v. Privette, 617 So.2d 305 (Fla. 1993), for her argument that the trial court was required to appoint a Guardian. Flores states the rule, established in Privette, that a trial court must hear from a guardian ad litem before ordering paternity testing when a child has a legal father. This is because a child has a legal and factual right to maintain legitimacy, and a guardian ad litem must be appointed to represent the child’s best interests. 617 So.2d at 307-08. Neither case applies under the facts of the instant case where T.S.’s paternity is not in doubt and neither party seeks to establish paternity rights that are adverse to T.S.

      . Additionally, we find that the mother waived this issue. The mother herself did not present any expert or independent testimony to support her case that it was in the best interests of T.S. to attend the school located in Pompano Beach. Her entire case consisted of her and her mother’s testimony. She cannot now complain that the trial court committed reversible error by not hearing expert testimony when she did not present any such testimony herself. See Ward v. State, 470 So.2d 100, 101 (Fla. 1st DCA 1985) (finding that where defendant did not proffer expert testimony, it was "not precluded by any action of the court, erroneous or otherwise, but by counsel himself”); cf. Behar v. Southeast Banks Trust Co., N.A., 374 So.2d 572, 575 (Fla. 3d DCA 1979) ("One who has contributed to alleged error will not be heard to complain on appeal.”).


source: Caselaw Access Project

author: EMAS, J.

license: Public Domain

text:
    Felix LOPEZ, Appellant, v. STATE FARM MUTUAL AUTOMOBILE, etc., Appellee.
    No. 3D13-2053.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.

      Goldberg & Dohan and Hernando V. Pineres, Miami, for appellant.
    Clark, Robb, Mason, Coulombe, Busch-man & Charbonnet, for appellee.
    Before WELLS, EMAS and SCALES, JJ.
   EMAS, J.

Felix Lopez (“Lopez”) appeals from the denial of his motion for reconsideration of an order denying a motion for attorney’s fees pursuant to section 627.428, Florida Statutes (2011) (the “Motion for Reconsideration”). For the reasons that follow, we reverse.

FACTS

Lopez was a Texas resident who moved to Florida. On October 17, 2010, while living in Miami, Lopez was involved in an automobile accident, which caused damage to Lopez’s car. At the time of the accident, State Farm Mutual Automobile Insurance Company (“State Farm”) provided automobile insurance coverage to Lopez through a policy issued in Texas and delivered to him while he lived in Texas.

State Farm paid for some of the repairs to Lopez’s vehicle but then denied coverage for additional repairs. Lopez retained counsel and sent State Farm a pre-suit demand letter, requesting State Farm to honor its obligations under the policy or Lopez would be forced to file suit to enforce his rights. State Farm responded, stating that it appeared Lopez had already been compensated for the damage to his vehicle.

Lopez filed suit against State Farm on September 14, 2011 for breach of the policy and sought attorney’s fees and costs pursuant to chapter 627, Florida Statutes and section 57.105, Florida Statutes. State Farm answered and denied the material allegations of the complaint but did not respond by answer or otherwise to Lopez’s claim for attorney’s fees. Lopez thereafter amended his complaint to plead additional required repairs to the vehicle. State Farm answered the amended complaint, again denying the material allegations but this time asserting that it had insured Lopez pursuant to a policy issued and delivered in Texas, and that its obligations under the policy were “subject to the terms, conditions and limitations of that policy as circumscribed by the laws of the State of Texas.” State Farm also moved to strike Lopez’s claim for attorney’s fees, contending that because the policy was issued in Texas, section 627.401, Florida Statutes negated any claim for fees under section 627.428.

Thereafter, Lopez served a proposal for settlement to State Farm to resolve the underlying claim but not the attorney’s fees and costs issue. State Farm accepted the proposal for settlement. Lopez then served his motion for attorney’s fees and costs based upon State Farm’s acceptance of the proposal for settlement, which Lopez contended served as a confession of judgment, entitling him to fees pursuant to Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217 (Fla.1983).

The court heard argument on State Farm’s previously-filed motion to strike Lopez’s claim for attorney’s fees. The court granted State Farm’s motion to strike but allowed Lopez to either amend his complaint or file a motion for reconsideration. Lopez did not amend the complaint but filed his Motion for Reconsideration, in which he argued that (1) State Farm was estopped by having waited more than eighteen months to first contest Lopez’s entitlement to fees under section 627.428; (2) despite the fact the policy was issued and delivered in Texas, it contemplated covering risks in other states, and given State Farm’s voluntary payment of amounts claimed under the policy, Lopez was entitled to fees pursuant to section 627.028; and (8) in the alternative, Lopez was entitled to fees under Texas law, specifically section 542.060, Texas Insurance Code, which appears to provide for fees and costs under circumstances and in a manner similar to Florida’s section 627.428.

The court heard argument on Lopez’s Motion for Reconsideration and thereafter denied Lopez’s motion on all grounds, ruling: “This Court does not have jurisdiction to apply Texas law in this case.” This appeal followed.

ANALYSIS:

When entitlement to fees is based upon statutory interpretation, the issue is reviewed de novo. Iannuzzelli v. Lovett, 981 So.2d 557 (Fla. 3d DCA 2008).

Lopez contends he is entitled to fees pursuant to section 627.428, as it is well established in Florida that when an insurer pays an insured after the insured has sued for coverage but prior to judgment, the payment serves as a confession of judgment against the insurer (or a verdict in favor of the insured), entitling the insured to fees. Wollard, 439 So.2d at 218. “Requiring the plaintiff to continue litigation in spite of an acceptable offer of settlement merely to avoid having to offset attorney’s fees against compensation for the loss puts an unnecessary burden on the judicial system, fails to protect any interest — the insured’s, the insurer’s or the public’s — and discourages any attempt at settlement.” Id.

Section 627.428(1) and (3) provides:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had...
(3) When so awarded, compensation or fees of the attorney shall be included in the judgment or decree rendered in the case.
However, section 627.401(2) provides:
No provision of this part of this chapter applies to:
(2) Policies or contracts not issued for delivery in this state nor delivered in this state, except as otherwise provided in this code.

See also East Coast Ins. Co. v. Cooper, 415 So.2d 1323, 1325 (Fla. 3d DCA 1982) (establishing that in order to qualify for fees under section 627.428, the insured must obtain a judgment in his favor and hold a policy of insurance issued for delivery or delivered in Florida). Notwithstanding the unambiguous language of section 627.401(2), Lopez nonetheless seeks to avail himself of section 627.428 under a policy of insurance that was issued for delivery and delivered in Texas. Lopez relies on United States Fidelity and Guaranty Co. v. Murray, 671 So.2d 812 (Fla. 4th DCA 1996) in support of his argument, but Murray is inapplicable to the present situation. We therefore disagree with Lopez’s initial argument and hold that application of Florida law is not warranted under the instant facts and based on the plain language of section 627.401.

Lopez alternatively maintains that if section 627.401 prevents recovery of attorney’s fees under section 627.428, then the court erred in declining to consider the application of Texas law to the issue of entitlement to attorney’s fees. State Farm argues in response that Lopez never pled in any iteration of his complaint that he was entitled to attorney’s fees under Texas law and was thus precluded from raising that ground in his motion for reconsideration. We disagree.

In Caufield v. Cantele, 837 So.2d 371 (Fla.2002), Florida’s Supreme Court recognized that notice is the fundamental concern in this context, and a pleading which asserts a claim for attorney’s fees is sufficient to put an opposing party on notice even if the specific statutory or contractual basis is not set forth. Id. at 378. Specifically, the Court held “that the specific statutory or contractual basis for a claim for attorney’s fees need not be specifically pled, and that failure to plead the basis of such a claim will not result in waiver of the claim.” Id.

We hold that the trial court erred in denying Lopez’s Motion for Reconsideration and in concluding it could not apply Texas law. Lopez included a claim for attorney’s fees in the operative complaint sufficient to put State Farm on notice that Lopez would seek fees upon rendition of a judgment in his favor. We accordingly reverse and remand for the trial court to hold a hearing to determine the applicability of Texas law to Lopez’s claim for attorney’s fees.

Reversed and remanded for proceedings consistent with this opinion.

      . In Murray, the Fourth District affirmed an award of attorneys’ fees under section 627.428. Murray, like the instant case, involved an accident in Florida and a policy that was issued and delivered outside the state of Florida. Murray, like the instant case, involved an insurer who confessed judgment by way of payment of the claim. Unlike the instant case, however, in Murray the parties stipulated to the application of Florida law. In the absence of any such stipulation below, Murray is inapplicable on this issue. We note that neither party briefed or argued whether the express acceptance of the statutory benefits of Florida’s proposal for settlement provision (section 768.79, Florida Statutes (2011)) constitutes a waiver of any right to contest application of Florida law to the issue of attorney’s fees.

      . We also note that State Farm asserted, both in its answer and affirmative defenses to the amended complaint, and in its motion to strike Lopez’s attorney’s fees claim, that Texas law applied. It is difficult to envision under these circumstances how State Farm could assert that it was not on notice, or was unfairly surprised, that Lopez might seek attorney’s fees under Texas law.


author: PER CURIAM.

text:
    Albert HALLMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-394.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.

      Albert Hallmon, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s two Florida Rule of Criminal Procedure 3.800(a) motions to correct illegal sentence. Appellant has not established an “illegal sentence” which can be corrected at any time. See Carter v. State, 786 So.2d 1173 (Fla.2001). Instead, appellant has filed a procedurally barred and untimely challenge to his conviction. See King v. State, 127 So.3d 684 (Fla. 4th DCA 2013). Because this court previously has warned appellant about filing frivolous post-conviction motions, we direct the Clerk of this Court to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures, including forfeiture of gain time. See § 944.279(1), Fla. Stat. (2013); Steed v. State, 120 So.3d 113 (Fla. 4th DCA 2013). Further, we warn appellant that future frivolous filings will result in additional sanctions, such as a bar on pro se filings in this court. See State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed with referral for consideration of disciplinary procedures.

TAYLOR, GERBER and FORST, JJ., concur.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellant, v. Jose H. PARADA, etc., et al., Appellees.
    No. 3D13-643.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.
    Lapin & Leichtling LLP, Jonathan R. Rosenn, Jeffrey S. Lapin, and N. Alejandra Arroyave, for appellant.
    Robert Flavell, for appellees.
    Before SHEPHERD, C.J., and ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Deutsche Bank National Trust Company appeals the dismissal of this foreclosure action as a sanction for discovery violations. We reverse and remand for further proceedings because the trial court failed to make the express factual findings required under Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993). While this may not be a Kozel case, the factors of willfulness, responsibility and prejudice apply, and whether a lesser sanction might serve the purpose should be considered on remand.

Reversed and remanded for further proceedings.


author: FERNANDEZ, J.

text:
    Stephen WONG, Appellant, v. CAPITAL ONE, N.A., Appellee.
    No. 3D13-790.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.
    Navarro Hernandez, P.L., Luis F. Navarro, for appellant.
    McGlinchey Stafford PLLC, and Heidi Weinzetl (Fort Lauderdale), for appellee.
    Before SHEPHERD, C.J., and LAGOA and FERNANDEZ, JJ.
   FERNANDEZ, J.

This appeal taken from the dismissal of a counterclaim for lack of standing is dismissed as premature. See Giller v. Giller, 121 So.3d 1050 (Fla. 3d DCA 2013).

Dismissed.


author: SHEPHERD, C.J.

text:
    Anthony Patrick BARATTA and Sandy T. Fox, P.A., et al., Petitioner/Appellants, v. Tatiana COSTA-MARTINEZ, Respondent/Appellee.
    Nos. 3D14-206, 3D14-224.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.
    Rehearing Denied June 16, 2014.
    Sandy T. Fox, Aventura, for petitioner/appellants.
    Boies, Schiller & Flexner and Charles Fox Miller, Hollywood, for respondent/ap-pellee.
    Before SHEPHERD, C.J., and ROTHENBERG and EMAS, JJ.
   SHEPHERD, C.J.

In this paternity action, the father, Anthony Patrick Baratta, seeks certiorari review of an order finding him in contempt for failing to make a court-ordered payment of temporary attorney’s fees to the mother, and the father’s counsel, Sandy T. Fox, appeals from that portion of the order directing counsel to disgorge funds held in trust as unearned attorney’s fees. We consolidated the petition for writ of certio-rari and the appeal, and now deny the petition and affirm the order on appeal.

The mother originally moved for temporary financial relief in November 2012. Following an evidentiary hearing, which the father did not attend despite notice, the trial court found: (1) the mother had financial need for temporary attorney’s fees, suit monies, and costs; (2) a reasonable amount for such fees is $83,670; and (3) the father had the ability to pay. The trial court ordered the father to pay within fifteen days, which the father failed to do. Thereafter, pursuant to the parties’ agreement, the trial court ordered the father to pay Dr. Faust $15,000 for a social investigation of the parties and the child. Again, the father did not pay.

The mother moved the trial court for contempt and sanctions for the father’s failure to pay the $83,670, and later for nonpayment of the agreed $15,000 to Dr. Faust. Both motions were considered by the court in an evidentiary hearing on January 16, 2014. After considering the evidence, the trial court concluded the father was not credible and was thwarting discovery in a deliberate attempt to appear impoverished. The court determined competent substantial evidence supported the prior adverse inference as to the father’s ability to pay the court-ordered sums. With regard to the $15,000 due Dr. Faust, the court reserved ruling on coercive sanctions because the amount was not a support obligation, and instead referred the parties to Family Court Services for psychological evaluations. With regard to the $83,670 due to the mother as temporary attorney’s fees, the court ordered the father to pay a $20,000 purge or face incarceration. Additionally, the court ordered the father’s counsel to review his trust account and turn over to the mother’s counsel any undisbursed funds held in trust for the father as of January 16, 2014.

We conclude the trial court did not depart from the essential requirements of law in finding the father in contempt and ordering him to pay a $20,000 purge to avoid incarceration. See § 61.14(5)(a), Fla. Stat. (2014) (providing for a presumption of obligor’s ability to pay in contempt proceedings which the obligor has the burden of disproving); see also Sibley v. Sibley, 833 So.2d 847 (Fla. 3d DCA 2002). Additionally, we affirm per curiam the trial court’s order directing Attorney Fox to disgorge any unearned attorney’s fees held in trust for the father.

This opinion shall take effect immediately notwithstanding the filing of a motion for rehearing.

Petition for Writ of Certiorari denied; appeal affirmed.

      . We also granted stay of the trial court order pending appellate review. With issuance of this opinion, we lift the stay.


text:
    Raul BLANCO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1015.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2014.

      Robert Wesley, Public Defender and Jaminette DeJesus-Felicier, Assistant Public Defender, Kissimmee, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2013-CF-1457-A-OS, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, ORFINGER and EVANDER, JJ., concur.


author: HARRIS, C.M., Senior Judge.

text:
    Andrea Lee ZAMPATTI, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3348.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2014.
    James S. Purdy, Public Defender, and Lisa A. Haskins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   HARRIS, C.M., Senior Judge.

It was reported to police that someone had hit a bicyclist and drove around the injured bicyclist, laughing. Appellant was soon located in a grocery store parking lot, but when the police arrived, she fled into oncoming traffic. She continued to drive and act erratically until her car became disabled and then she attempted to escape on foot. She was caught and charged with several serious offenses. Appellant was diagnosed with delusional disorder perse-cutory type. This is background.

The only issue before us is whether Appellant properly waived her right to trial by jury. The State contends the record clearly shows that appellant knew of her attorney’s request for a non-jury trial. She signed two acknowledgments relating to notice of continuance of her non-jury trial. Further, she responded in the affirmative that she understood what was going on when her attorney asked for a non-jury trial.

The trouble is that having knowledge that your attorney asked for a non-jury trial is not the same as “knowingly, voluntarily and intelligently” waiving your rights to a jury trial. There is nothing in the record to show that Appellant could insist on a jury trial when her attorney wanted a non-jury trial. She signed no waiver and the judge did not explain the benefits of a jury trial to her or the consequence of waiving it. She is entitled to a new trial. See Babb v. State, 736 So.2d 35 (Fla. 4th DCA1999).

REVERSED and REMANDED.

ORFINGER and WALLIS, JJ., concur.


text:
    Travis Roy RIGGSBY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1009.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2014.
    Mike Graves, Public Defender, Ocala and Camille Concannon-Mitchell, Assistant Public Defender, Ocala, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence for violation of probation in Case No. 2011-CF-004780-A-Y, in the Circuit Court in and for Marion County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, ORFINGER and WALLIS, JJ., concur.


text:
    Jason Michael Edward SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1122.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2014.
    Jason Michael Edward Scott, Milton, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 05-2012-CF-070614, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, CJ., ORFINGER and BERGER, JJ., concur.


text:
    Steven GALAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1187.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2014.
    Steven Galan, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 5, 2012 order denying ground two of Petitioner’s amended motion to vacate, set aside, or correct sentence filed in Case No. 08-847-CF, in the Circuit Court in and for St. Johns County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, COHEN and WALLIS, JJ., concur.


author: BERGER, J.

text:
    Michael HIGGS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3294.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2014.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   BERGER, J.

Michael D. Higgs, Sr. (“Higgs”) timely appeals his conviction for trespass on a construction site, a third-degree felony. He argues that the trial court erred by denying his motion for a judgment of acquittal and failing to properly instruct the jury on the offense. We agree and reverse.

On January 31, 2012, Higgs and his son entered a gated construction site at ESPN’s Wide World of Sports, where they loaded scrap metal onto their pickup truck. This occurred in broad daylight, in sight of a number of workers. Higgs and his son were stopped on their third trip to the site. Higgs claimed that he had permission to enter the site and salvage the scrap, but was unable to name the Disney employees who allegedly gave him permission.

Higgs and his son were arrested and prosecuted for trespass on a construction site. At trial, the State presented two witnesses — Richard Matthews, the security manager for ESPN’s Wide World of Sports, and Deputy Wilder, who responded to the call regarding a trespass complaint at the site. Matthews testified that the site was fully fenced and double-gated with just one entrance. He had been called to the scene by the construction manager, who had not given Higgs permission to load the scrap. Matthews had the two men “trespassed” when the deputy arrived, telling him they did not have permission to be on the property. Deputy Wilder took photographs of the site, which were introduced into evidence. They depicted the site and showed that the single sign posted on the property was posted outside the fence at the only entrance to the site. The sign warned that the area was a designated construction site and anyone who trespassed would be prosecuted “to the fullest extent of the law.” However, no evidence of any kind was offered as to the size of the site, except for Higgs’ testimony that he believed the site was more than two acres. Nor was any evidence offered regarding the size of the letters on the sign shown by the photograph.

The only evidence disputing Higgs’ claim that he had permission to enter the site was the deputy’s testimony that the security manager said he had instructed security personnel not to let anyone onto the site for any reason, except for construction workers. However, the security manager himself admitted that it was possible someone had given Higgs permission to enter the site, and the deputy- never spoke to anyone other than the security manager.

At the close of the State’s case, the trial court denied Higgs’ motion for a judgment of acquittal, which was based on the State’s failure to show the size of the site, and that it was “legally posted,” as alleged in the information. Because of the failure to show the actual size of the property, the trial court determined that the jury was allowed to presume that the property was one acre or less, and instructed the jury in accordance with that presumption. This was error.

The offense of trespass on a construction site is an enhancement of the offense of trespass on property other than a structure or conveyance, which is set forth in section 810.09(1), Florida Statutes. Simple trespass is a misdemeanor of the first degree. § 810.09(2)(a), Fla. Stat. Section 810.09(2)(d), Florida Statutes, provides for increased penalties if the trespass involves a construction site and certain additional requirements are met. The statute provides:

(d) The offender commits a felony of the third degree, punishable as provided in s.775.082, 775.088, or s.775.084, if the property trespassed is a construction site that is:
1. Greater than 1 acre in area and is legally posted and identified in substantially the following manner: “THIS AREA IS A DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.”; or
2. One acre or less in area and is identified as such with a sign that appears prominently, in letters of not less than 2 inches in height, and reads in substantially the following manner: “THIS AREA IS A DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.” The sign shall be placed at the location on the property where the permits for the construction are located. For construction sites of 1 acre or less as provided in this subparagraph, it shall not be necessary to give notice by posting as defined in s.810.011(5).

§ 810.09(2)(d), Fla. Stat.

These statutes establish two mutually exclusive forms of trespass on a construction site — trespass on a construction site of one acre or less and trespass on a construction site of more than one acre. The difference between the offenses lies in how the different sized properties are posted. Smaller construction sites of one acre or less do not have to be “posted” in accordance with section 810.011(5), Florida Statutes. It is sufficient if the area is identified as a construction site by a sign that appears “prominently” and in letters of not less than two inches in height, which reads in substantially the following manner: “THIS AREA IS A DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.” § 810.09(2)(d)2., Fla. Stat. On smaller sites, the sign is to be placed “at the location on the property where the permits for the construction are located.” § 810.09(2)(d)2., Fla. Stat.

Larger construction sites require substantially more signage, presumably to ensure that a defendant has been warned and knowingly trespasses on a designated construction site. For construction sites of more than one acre, warning signs must be posted in accordance with section 810.011(5), Florida Statutes, which defines “posted land” for the purposes of the burglary and trespass statutes. Generally, this means that signs must be placed at each corner of the boundaries of the land, and no more than 500 feet apart along the boundaries of the land, and the lettering must be at least two inches in height. § 810.011(5), Fla. Stat. In addition, the sign must include the name of the owner, lessee, or occupant of said land. Id.

Here, the information did not specify which subsection of the statute Higgs was alleged to have violated. It simply asserted that Higgs

without being authorized, licensed or invited, did willfully, in violation of Florida Statute 810.09(2)(d), enter or remain on a certain construction site, to-wit: ESPN Wide World of Sports, the property of Walt Disney World and RICHARD J. MATTHEWS, as owner or custodian, such construction site being legally posted and identified in substantially the following manner: “This area is a designated construction site, and anyone who trespasses on this property commits a felony.”

While the information asserted that the site was “legally posted,” proof of legal posting would satisfy the requirements of either subsection (d)l. or (d)2. of section 810.09(2).

Because Higgs was not charged with violating any specific subsection of the statute, and the State failed to produce any evidence as to the size of the construction site, the State argues that the evidence was sufficient for the jury to conclude that the property was one acre or less. The State then assumes it was entitled to show that the property was posted in accordance with subsection (d)2., Florida Statutes. However, the posting requirements of the two subsections are not interchangeable, and because the information alleged that the site was “legally posted,” these are the facts to be proved by the State. The State’s failure to prove this element of the offense plainly required the lower court to enter judgment in Higgs’ favor. See, e.g., Lewis v. State, 932 So.2d 357 (Fla. 2d DCA 2006) (reversing conviction for trespass on a construction site where State failed to prove letters on sign were two inches in height and evidence showed property was not “legally posted”); see also Lebron v. State, 127 So.3d 597, 605 (Fla. 4th DCA 2012) (stating the general rule that where an offense may be committed in various ways, the evidence must establish it was committed in the manner charged in the indictment; the indictment or information may allege them in the conjunctive and proof of one will suffice, but if only one of the state of facts is alleged, it cannot be established by proof of the other).

The State concedes error as it relates to the jury instructions and asks for the case to be remanded with instructions to enter judgment for trespass on property other than a structure or conveyance under section 810.09(1)(a), Florida Statutes. As authority for this procedure, the State cites to section 924.34, Florida Statutes (2011), which provides:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

The statute is inapplicable, however, as there is no “lesser statutory degree of the offense” of which Higgs can be convicted. Moreover, while simple trespass of property that is legally posted would appear to be a “lesser” offense necessarily included in the offense charged, “legal posting” was not proved here, and the information made no reference to the other different and distinct elements of proof of simple trespass, namely actual communication, fencing, or cultivation. See Pointec v. State, 614 So.2d 570, 573 (Fla. 5th DCA 1993) (explaining simple trespass is not a lesser included offense of felony trespass when different and distinct elements of proof for simple trespass are not mentioned or referenced in the information). Accordingly, we reverse Higgs’ conviction for trespass on a construction site. Because of our ruling on this issue, we do not reach Higgs’ complaint that the jury instructions were flawed.

REVERSED.

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

      . § 810.09(2)(d), Fla. Stat. (2011).

      . Lewis was decided before the addition of the provision allowing for conviction for trespass on a construction site of one acre or less, with reduced signage requirements. In fact, the court suggested that reduced signage requirements might be preferable for smaller plots, which may have resulted in the subsection. 932 So.2d at 359.


author: EVANDER, J. ORFINGER, J.,

text:
    Thaddeus Xavius GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1191.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2014.

      James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Thaddeus Grant appeals his conviction and sentence for possession of a firearm by a convicted felon. He pled no contest to the charge after the denial of his dispos-itive motion to suppress. Because the trial court erroneously prevented Grant from introducing a recording of a 9-1-1 call into evidence, the contents of which purportedly provided the legal basis for his stop, we reverse.

On the afternoon in question, Officers Hernandez and Payne of the Eatonville Police Department stopped and detained Grant after responding to an emergency dispatch regarding a black male armed with a handgun in the vicinity of 230 Johnson Street. During the detention, the officers seized a firearm from Grant.

Grant filed a motion to suppress, alleging that the officers had illegally stopped and detained him. Grant argues that the stop resulted from an anonymous tip and that the tip and the arresting officers’ follow-up observations were insufficient to establish a reasonable or founded suspicion of criminal activity on Grant’s part.

The State’s only witness at the motion to suppress hearing was Officer Hernandez. On direct examination, Officer Hernandez testified that she and Officer Payne had received “an emergency tone out in reference to a black male armed with a handgun.” According to Officer Hernandez, additional information received from dispatch indicated that the suspect had threatened an individual inside the residence at 230 Johnson Street. The suspect was described as a black male dressed all in black accompanied by a black female in a red shirt and blue denim shorts. The suspect and the accompanying female were reported to have been last observed walking on Johnson Street towards Kennedy Boulevard.

The officers responded immediately and when they turned off Kennedy Boulevard onto Johnson Street, they observed two individuals fitting the aforesaid description. Officer Hernandez further testified that she exited the vehicle and told the suspect, later identified as Grant, to “come over and talk to us.” She further advised Grant to keep his hands where she could see them. At that point, Grant turned and Officer Hernandez observed a “bulge” on Grant’s right side beneath his shirt “that looked like what could possibly be a handle of a weapon.” Both officers then drew their weapons and Grant proceeded to try to run away. Officer Hernandez testified that Grant did not run very far and then “laid on the ground.” Grant was handcuffed and a handgun was found “down on the bottom part of his [right] pant leg.”

On cross-examination, Officer Hernandez acknowledged that prior to instructing Grant to stop, she had not observed Grant engage in any illegal activity. She further admitted that her written report made no mention of a “bulge” being observed beneath Grant’s shirt, nor of any attempt by Grant to run from the officers. In fact, Officer Hernandez’ report stated that the “subject began to walk away and refused to obey commands.”

Upon the completion of cross-examination, defense counsel attempted to read the “CAD report” into the record in order to demonstrate “the nature of this anonymous call that was never corroborated and never confirmed.” The trial judge questioned the report’s relevancy, appearing to believe that the nature of the emergency call/tip did not matter if a police officer was responding in good faith to a dispatch. After an extended debate with the trial judge, defense counsel then called Grant’s girlfriend as a witness without ever obtaining an express ruling on his request to read the CAD report into evidence. After the girlfriend’s testimony, defense counsel requested the trial court listen to a recording of the 9-1-1 call before it ruled on the motion to suppress. Defense counsel proffered that the 9-1-1 recording would reflect that the caller merely gave a description of a black male with a gun and did not reference any threatening behavior. The trial court declined to listen to the 9-1-1 recording, stating:

It doesn’t matter what the 9-1-1 call said. The officers were responding to a tone out from emergency dispatch, not to the 9-1-1 call. So they have a good-faith basis—
The motion is denied.

On appeal, Grant argues that the stop was based solely on an anonymous call, the contents of which failed to establish a reasonable suspicion of criminal activity. In support, Grant cites to Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), where the United States Supreme Court held that an anonymous tip relating that a person is carrying a gun is, without more, insufficient to justify a police officer’s stop and frisk of that person. In J.L., the officers who actually stopped and frisked the defendant were, as in the present case, responding to a dispatch. They were not the individuals who received the anonymous phone call. See also Baptiste v. State, 995 So.2d 285 (Fla.2008) (holding anonymous 9-1-1 call to police stating that black male wearing white t-shirt and blue-jean shorts waved firearm in front of supermarket did not provide officers with necessary reasonable suspicion to initiate investigative stop of defendant, who matched description provided in anonymous call, where responding officers did not observe defendant engage in any unlawful acts, unusual conduct, or suspicious behavior).

In response, the State argues that the totality of evidence established reasonable suspicion that Grant committed or was committing a crime. The State points to Officer Hernandez’ testimony regarding: (1) the detailed description of the suspect provided by dispatch, (2) the information provided by dispatch as to the occurrence of an aggravated assault with a firearm, and (3) the officers’ observation of a possible weapon beneath Grant’s shirt. The State further contends that the 9-1-1 call was not “totally anonymous” because the CAD report shows that the caller provided an address and the telephone number. Notably, the State does not argue that the detention of Grant was valid based on a good faith reliance by the arresting officers on information received from dispatch. Instead, the State suggests that pursuant to the “tipsy coachman” doctrine, the trial court should be upheld because it reached the right result, albeit for the wrong reasons. Robertson v. State, 829 So.2d 901, 906 (Fla.2002) (“This longstanding principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’ ” (citations omitted)).

The trial court’s basis for upholding the validity of the stop — the officers’ purported good faith reliance on the information received from dispatch — was incorrect. The knowledge of the dispatcher must be imputed to the officers in the field. United States v. Torres, 534 F.3d 207, 210 (3d Cir.2008); see also J.L.; Baptiste.

Additionally, the State’s “tipsy coachman” argument fails for several reasons. First, the trial court indicated that it would not give weight to Officer Hernandez’ statement regarding the “bulge” beneath Grant’s shirt. Second, the State cannot rely on the CAD report regarding the nature and contents of the 9-1-1 call because the report was never admitted into evidence. Third, the defense was denied the opportunity to challenge Officer Hernandez’ contention that the dispatch information involved a report of an aggravated assault with a firearm given the trial court’s refusal to listen to a recording of the 9-1-1 call.

On the other hand, we cannot accept Grant’s argument that the evidence established that the arresting officers lacked a reasonable or founded suspicion of criminal activity to justify his detention. Indeed, because of the trial court’s erroneous conclusion that the CAD report and 9-1-1 recording were irrelevant, it is not even clear from the record that the information provided by dispatch to Officers Hernandez and Payne originated from a 9-1-1 call. Accordingly, we conclude that the trial court’s denial of Grant’s motion to suppress must be reversed and remanded for a new evidentiary hearing.

REVERSED and REMANDED.

SAWAYA, J., concurs.

ORFINGER, J., concurs, with opinion.

ORFINGER, J.,

concurring.

I concur in the majority opinion. I write separately to point out that the recent United States Supreme Court decision in Navarette v. California, — U.S. -, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), may have altered what we previously believed was wellsettled law governing when law enforcement officers may stop someone based on an anonymous tip.

In Navarette, an anonymous caller told emergency operators that a truck ran her off the roadway. The tipster also described the make, model, color, license plate and location of the suspect truck. The responding officers pulled the truck over after following it for five minutes, without observing any unusual driving or traffic infractions. The officers smelled marijuana as they approached the vehicle. A search of the truck revealed 30 pounds of marijuana. 134 S.Ct. at 1687.

The California Court of Appeal concluded that the anonymous tip gave officers reasonable suspicion to conduct an investigatory stop for possible drunk driving. On review, the United States Supreme Court affirmed, finding that under the totality of the circumstances, there were in-dicia of reliability sufficient to provide officers with reasonable suspicion that the driver of the suspect vehicle was impaired. Id. at 1692. By reporting that she had been run off the road by a specific vehicle, the Court found the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving, which significantly supported the tip’s reliability. Additionally, the timeline of events suggested that the call was made almost immediately after the incident, and therefore, the caller had little time to concoct a story. The caller’s use of the 911 emergency system provided another indicator of her veracity since she could be located and possibly prosecuted if she made a false report through that system. The Court determined that because the anonymous tip had these indicators of reliability, and created reasonable suspicion of the ongoing crime of drunk driving, the officer did not need to observe the alleged unlawful behavior or otherwise corroborate it. Id. at 1689-92.

Writing for the four dissenting justices, Justice Scalia observed:

The California Court of Appeal in this case relied on jurisprudence from the California Supreme Court (adopted as well by other courts) to the effect that “an anonymous and uncorroborated tip regarding a possibly intoxicated highway driver” provides without more the reasonable suspicion necessary to justify a stop. People v. Wells, 38 Cal.4th 1078, 1082, 45 Cal.Rptr.3d 8, 136 P.3d 810, 812 (2006). See also, e.g., United States v. Wheat, 278 F.3d 722, 729-730 (8th Cir.2001); State v. Walshire, 634 N.W.2d 625, 626-627, 630 (Iowa 2001). Today’s opinion does not explicitly adopt such a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated; it purports to adhere to our prior cases, such as Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), and Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Be not deceived.
Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures. I would reverse the judgment of the Court of Appeal of California.

Id. at 1693. Is the anonymous tip in this case as reliable as the tip in Navarette? Can Navarette be read harmoniously with J.L. as its majority suggests? I cannot say, but I do know that the issue will bedevil the courts for a long time to come.


author: MAKAR, J. MARSTILLER, J.,

text:
    WEST FLAGLER ASSOCIATES, LTD., Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Division of Pari-Mutuel Wagering, Appellee.
    No. 1D13-2031.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Rehearing Denied July 9, 2014.

      John M. Lockwood and Hillary A. Ryan of John M. Lockwood, P.A., Tallahassee, for Appellant.
    J. Layne Smith, General Counsel, and Garnett W. Chisenhall, Chief Appellate Counsel, of the Department of Business and Professional Regulation, Tallahassee; Andrew T. Lavin of Navon & Lavin, Fort Lauderdale, for Appellee.
   MAKAR, J.

Summer jai alai permits are the focus of this appeal. At issue is whether the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (“Division”) erred in denying the application of West Flagler Associates, Ltd. (“West Flagler”), seeking a permit to conduct summer jai alai under section 550.0745(1), Florida Statutes, which allows for the issuance of new permits under defined circumstances. Because the basis for the Division’s denial was based on-an insupportable reading of the statute, we reverse.

I.

Jai alai is a daring sport of Spanish origin involving rock-hard goat-skin covered rubber balls (pelotas) hurled at speeds well over 100 mph that are bounced off walls forming three-sided spaces known as courts or frontons. Highly-skilled teams compete by using hand basket gloves (cestas) to serve, catch, and throw the pelota with the goal of causing their opponents to commit errors by, for example, failing to catch it on the fly or after its first bounce. Jai alai is popular in Latin American countries and was first introduced in America at the 1904 World’s Fair in St. Louis, Missouri. In 1924, it made its first commercial appearance in Florida at a fronton in Miami and has since been operated at various locations around the state as an alternative to other sports on which gambling is permitted, such as horse racing and greyhound racing. See Paul S. George, Passage to the New Eden: Tourism in Miami from Flagler to Everest G. Sewell, 60 Fla. Hist. Q. 440, 455, 459 (April 1981). Florida is by far the state with the greatest interest in, and commercial development of jai alai frontons, though interest has declined in recent years due to consumer interest in other forms of gambling. See generally Jai alai, Wikipedia, http:// en.wikipedia.org/wiki/JaLalai (last visited April 23, 2014).

Not long after its inception in Florida, jai alai became subject to the State’s gaming laws that regulate pari-mutuel activities. Those laws have since evolved, one of which is the 1992 enactment at issue entitled “Conversion of pari-mutuel permit to summer jai alai permit” that is codified as section 550.0745, Florida Statutes. Ch. 92-348, § 14. Laws of Florida. Section 550.0745(1) states that the owner or operator of a pari-mutuel permit (one authorized to conduct pari-mutuel pools on exhibition sports in a county having five or more such permits) who has the lowest handle (is the lowest performing economically) for “the 2 consecutive years next prior to filing an application” may apply to convert its permit to a summer jai alai permit. Two of the apparent purposes of this amendment were to help the lowest performing permit holder and to increase state tax revenues.

Hialeah Park, which operates a quarter horse permit in Miami-Dade County, had the lowest handle among the (more than five) qualifying permit holders in that county for the 2010-11 and 2011-12 state fiscal years. Though it was eligible to convert its quarter horse permit to a summer jai alai permit, Hialeah Park declined to do so. This triggered the provisions in section 550.0745(1), which state: “If a per-mittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permittee’s county to conduct summer jai alai games as provided by this section, notwithstanding mileage and permit ratification requirements.” § 550.0745(1), Fla. Stat. Because Hialeah Park turned down its statutory right to convert its quarter horse permit to a summer jai alai permit, West Flagler sought the “new permit” made available in Miami-Dade County under this portion of the statute.

The Division denied West Flagler’s application. Its reasoning was that because it had issued a summer jai alai permit the previous year (also to West Flagler) based on data from the 2009-10 and 2010-11 state fiscal years (Hialeah Park had the lowest handle for these two fiscal years but declined to convert), it could not use the 2010-11 data again — this time in conjunction with 2011-12 data — to issue a new permit for the most recent two-year period. Under the Division’s interpretation, the “statute clearly requires that the lowest mutuel play must come from the same permitholder for 2 consecutive years prior to filing an application under the section.” Thus, once a fiscal year’s data is used to grant a summer jai alai permit, that same fiscal year data may not be used in granting another summer jai alai permit. In essence, the Division reads the statute as allowing one summer jai alai permit to be made available at most every two years. West Flagler unsuccessfully challenged the Division’s interpretation of the statute, and now appeals from the Division’s final order denying its application.

II.

We begin by recognizing the “well established proposition that an administrative construction of a statute given by those charged with its enforcement and interpretation is entitled to great weight, and the courts will not depart from such a construction unless it is clearly erroneous or unreasonable.” Summersport Enters., Ltd. v. Pari-Mutuel Comm’n, 493 So.2d 1085, 1087 (Fla. 1st DCA 1986). On appeal, West Flagler seeks to overcome this proposition, arguing that the “plain and unambiguous language of Section 550.0745(1) requires the Division to issue a new summer jai alai permit each and every year if the lowest handling permitholder declines to convert its permit.” It relies upon principles of strict statutory construction, but as a fallback points to some limited legislative history that the statute was intended to be open ended.

We need not consider legislative history because, try as we might, we cannot read the language of the statute as the Division has implemented it in this case. The statute plainly provides that the permitholder with the lowest handle for “the 2 consecutive years next prior to filing an application” may apply for a summer jai alai permit, and, if it declines to do so, a “new permit” is made available. § 550.0754(1), Fla. Stat. This statutory language envisions a rolling two-year period rather than the at-most-every-other-year approach the Division urges. The word “consecutive” typically means “following continuously” or “following one’s or its predecessor in uninterrupted sequence.” The New Shorter Oxford English Dictionary, 484 (1993). The Division’s interpretation would create a discontinuity or interruption in the otherwise “consecutive years” approach that the statute establishes. We would have to interpret “consecutive” other than by its ordinary and plain meaning to reach this result, effectively rewriting it.

Likewise, the phrase “next prior”— though clumsy and seemingly contradictory — has been consistently used to mean the “immediately prior” instances. See Bryan A. Garner, A Dictionary of Modern Legal Usage, 588 (2d ed. 1995) (noting that phrase “next preceding” is “an awkward phrase, arguably illogical, that commonly appears in drafting.”). Though not commonly used today (for good reason), the phrase appears in other Florida Statutes, and generally older caselaw with this same meaning. See, e.g., § 475.17(1)(b), Fla. Stat. (2014) (“An application may be disapproved if the applicant has acted or attempted to act, or has held herself or himself out as entitled to act, during the period of 1 year next prior to the filing of the application ....”); § 731.19, Fla. Stat. (Supp.1941), repealed by ch. 74-106, § 3, Laws of Fla. (“[B]y his will duly executed immediately next prior to such last will and more than six months before his death .... ”); Curley v. Curley, 144 Fla. 728, 198 So. 584, 586 (1940) (wife had burden “to show that she had-resided in Florida for a period of ninety days next prior to the date of filing the suit for divorce ... ”); Ringling v. Ringling, 117 Fla. 423, 158 So. 125, 126 (1934) (“[F]or more than sixty days next prior to the date of the filing of such affidavit ....”). The use of this phrase dovetails with the term “consecutive” to make evident that a continuous, rather than discontinuous, approach was intended.

The Division expressed a concern at oral argument that allowing a new summer jai alai permit to be issued each year based on a rolling two-consecutive-years approach would lead to a proliferation of summer jai alai permits. If the legislature intended to allow a new permit, at most, every other year it could have written the statute to say so. And if it deems it a good policy to have this limitation, it can implement it legislatively; but we cannot interpret the language of the existing statute to achieve this result.

III.

Because the Division’s interpretation of section 550.0745(1) is not supportable, we reverse its final order with directions to reinstate West Flagler’s application for the new summer jai alai permit at issue.

REVERSED.

THOMAS, J., concurs.

MARSTILLER, J., concurs in part, dissents in part, with opinion.

MARSTILLER, J.,

concurs, in part, and dissents, in part.

While I concur in the decision to reverse the order denying West Flagler’s application for a new summer jai alai permit, and I agree with much of the majority’s reasoning, respectfully, I do not agree that “the at-most-every-other-year approach the Division urges” is wholly incompatible with the language of section 550.0745(1).

The provision reads, in pertinent part: The owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari-mutuel pools on exhibition sports in any county having five or more such pari-mutuel permits and whose mutuel play from the operation of such pari-mutuel pools for the 2 consecutive years next prior to the filing of an application under this section has had the smallest play or total pool within the county may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton in such county during the summer session commencing on May 1 and ending on November 30 of each year on such dates as may be selected by the permittee.... If a per-mittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permittee’s county to conduct summer jai alai games as provided by this section, notwithstanding mileage and permit ratification requirements.

§ 550.0745(1), Fla. Stat. (2012) (emphasis added). As I read the statute, the word “consecutive” refers to the eligibility period for converting a pari-mutuel permit to a summer jai alai permit, and does not, as the majority opinion seems to conclude, mandate annual availability and issuance of a summer jai alai permit. To the extent the Division interprets and applies the statutory language highlighted above to require a pari-mutuel permit holder who has obtained a conversion summer jai alai permit to wait two years before again applying, I believe the language accommodates such an interpretation. The two-year qualification period must have some significance relative to the frequency with which a conversion permit holder is eligible to apply for a subsequent conversion permit; else, the Legislature could have specified that, annually, the permit holder with the smallest play for the two consecutive prior years may apply for conversion.

However, I do agree with the majority that the statutory language does not support the Division’s position that in no event can it consider an application for a conversion summer jai alai permit until two years after a prior conversion permit was issued. Here, Hialeah Park, which, all parties agree, had the lowest handle in Miami-Dade County for fiscal years 2010-11 and 2011-12, qualified for a conversion permit. Nothing in section 550.0745(1) prohibited the Division from considering the 2010-11 total pool data as to Hialeah Park simply because the same data had been relevant to granting West Flagler a conversion permit previously. And if, as the record suggests (but does not establish), Hialeah has opted not to convert its permit to a summer jai alai permit, a new permit has become available as provided by section 550.0745, and West Flagler should be able to apply for it.

      . Professor Garner provides this example: "Anything in the next preceding paragraph of this contract [read in the paragraph immediately preceding this one ] notwithstanding ...."Id.

      . Maj. op. at 422.


text:
    Brett Z. BASS, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D14-1952.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Brett Z. Bass, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

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

WOLF, PADOVANO, and RAY, JJ., concur.


text:
    Rosemary E. PICKETT, Appellant, v. CITIMORTGAGE, INC., Appellee.
    No. 1D13-4231.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Andrea B. East of Emery East & Walker, PLLC, Jacksonville, for Appellant.
    Nancy M. Wallace and Ryan D. O’Con-nor of Akerman Senterfitt, Tallahassee; William P. Heller and Henry H. Bolz of Akerman Senterfitt, Fort Laurderdale, for Appellee.
   PER CURIAM.

Consistent with appellee’s confession of error, the order on appeal is reversed, the foreclosure sale is vacated, and the matter is remanded to the lower tribunal for further proceedings.

LEWIS, C.J., THOMAS and OSTERHAUS, JJ., concur.


text:
    Z.M.B., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5318.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Exis-ten Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Z.M.B., a child, was found guilty of robbery; the trial court withheld adjudication of delinquency and placed Z.M.B. on probation. On appeal, he argues the trial court should have granted his motion for judgment of dismissal because the State failed to present evidence from which a reasonable person could find that the use of force against the victim was motivated by the taking of the victim’s bicycle. In C.B.B. v. State, 135 So.3d 1139 (Fla. 1st DCA 2014), which is the appeal brought by one of Z.M.B.’s co-defendants arising from the same prosecution, we held the State did not adduce evidence showing the force used against the victim was in furtherance of a plan to obtain the victim’s bicycle. For the same reason, and in accordance with our decision in C.B.B., we REVERSE the final disposition order entered against Z.M.B. and REMAND for entry of a judgment of dismissal.

MARSTILLER, and RAY, JJ., concur.

ROWE, J., concurs in result.

      . The property taken was a bicycle. Z.M.B. was tried with two juvenile co-defendants.


text:
    Raymond CLAUDIO, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D13-5861.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Raymond Claudio, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and David W. Grimes, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appeal is dismissed as moot, as appellant’s release from incarceration makes it impossible for this court to grant him any meaningful relief on the claims he raises.

LEWIS, C.J., THOMAS and OSTERHAUS, JJ., concur.


text:
    Thomas and Ollie DOWDA, Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    No. 1D14-0177.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Robert K. Tinkham, Jupiter, for Appellants.

      William David Newman, Jr., of Choice Legal Group, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

The Court has determined that the order on appeal is neither a final order, nor an appealable non-final order. Accordingly, appellee’s Motion to Dismiss Appeal, filed on February 27, 2014, is granted, and the appeal is dismissed for lack of jurisdiction.

LEWIS, C. J, THOMAS and OSTERHAUS, JJ., concur.


text:
    AUTO SALES 2013, CORP., Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF MOTORIST SERVICES, Appellee.
    No. 1D14-0445.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Guillermo Perez, Miami, for Appellant.
    Stephen D. Hurm, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the “Order of Untimely Notice of Appeal — 146,” which the Court treats as a response to its show cause order of April 21, 2014, the Court has determined that its jurisdiction was not invoked in a timely manner. Accordingly, the appeal is dismissed.

LEWIS, C. J., THOMAS and OSTERHAUS, JJ., concur.


text:
    Thomas A. GROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1138.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Thomas A. Gross, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED without prejudice to the appellant’s right to file a petition for a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

LEWIS, C.J., THOMAS and OSTERHAUS, JJ., concur.


text:
    Eugene REED, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1633.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Eugene Reed, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the November 5, 2010, judgment and sentence, in Leon County Circuit Court ease number 2009-CF-474-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

LEWIS, C.J., THOMAS and OSTERHAUS, JJ., concur.


text:
    George LANDRAFF, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1806.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    W. Charles Fletcher, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentenced rendered November 26, 2013, in Duval County Circuit Court case number 16-2010-CF-7912-A, 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 appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

LEWIS, C.J., THOMAS and OSTERHAUS, JJ., concur.


text:
    In re Petition of Jane DOE for a Judicial Waiver of Parental Notice of Termination of Pregnancy. Jane Doe, Appellant.
    No. 2D14-2378.
    District Court of Appeal of Florida, Second District.
    May 27, 2014.
    Patricia Alten of Alten & Cangro PLLC, Tampa, for Appellant.
   PER CURIAM.

Jane Doe sought a waiver of parental notice of termination of pregnancy pursuant to the Parental Notice of Abortion Act (the Act), section 390.01114, Florida Statutes (2018), which requires physicians performing abortions to notify a minor’s parent or legal guardian before the procedure unless the notice requirement is waived by the circuit court. Id. Because the court did not abuse its discretion as to either the maturity prong or the best interest prong, we affirm.

In her supplemental petition, Doe asserted that she is of sufficient maturity to decide whether to terminate her pregnancy and that it is in her best interests to do so. See § 390.01114(4)(c)-(d). Regarding a petitioner’s maturity, a court must review various statutorily enumerated factors. § 390.01114(4)(c)(1)-(2). The burden of proof on both prongs is clear and convincing evidence, and it is the petitioner’s obligation to provide such proof in this nonadversarial proceeding. See § 390.01114(4)(c)-(d); In re Doe, 67 So.3d 268, 268 (Fla. 2d DCA 2011). Because the proceeding is nonadversarial and based on the statute’s terms the grant of a waiver of notice under the Act is not appealable; review of the denial of a waiver is of right. See § 390.01114(4)(b)(2), (g).

Our standard of review in this proceeding is for an abuse of discretion. See § 390.01114(4)(b)(2); In re Doe, 113 So.3d 882, 886 (Fla. 2d DCA 2012) (“[W]e review the circuit court’s findings in this case for an abuse of discretion.”).

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (citation omitted). In this case, we cannot say that the court’s action was arbitrary or fanciful or that no reasonable person would take the action the court did. This is especially true where the detailed order reflects careful consideration of all of the statutorily enumerated factors regarding Doe’s maturity.

Further, the minor did not present clear and convincing evidence as to why notifying her parents would not be in her best interest.

In determining whether notification would not be in the minor’s best interests, the trial court should weigh the advantages and disadvantages of parental notification in the minor’s specific situation. Some factors to be considered are: the minor’s emotional or physical needs; the possibility of intimidation, other emotional injury, or physical danger to the minor; the stability of the minor’s home and the possibility that notification would cause serious and lasting harm to the family structure; the relationship between the parents and the minor and the effect of notification on that relationship; and the possibility that notification may lead the parents to withdraw emotional ... support from the minor. Here, the minor did not present evidence pertinent to any of these factors. When asked why she did not want to tell her parents about the abortion, her only stated concern was that she thought they would not understand. She was also concerned that they would be upset if they knew she was pregnant. This amounts to nothing more than a generalized fear of telling her parents and does not, by itself, establish that notification would not be in her best interests.

In re Doe, 973 So.2d 548, 553 (Fla. 2d DCA 2008) (citations omitted) (rehearing en banc denied) (“Doe 2008 ”). As to this issue, the facts of this case mirror those of Doe 2008. Despite the clarifying questions posed by the court, Doe failed to put forth clear and convincing evidence as to the best interest prong. See Doe 2008, 973 So.2d at 559 (Casanueva, J., concurring in denial of rehearing en banc) (“ ‘The requisite of a neutral factfinder does not foreclose a judge from asking questions designed to make prior ambiguous testimony clear.’ ” (quoting McFadden v. State, 732 So.2d 1180, 1185 (Fla. 4th DCA 1999))). The court did not abuse its discretion as to either of the prongs in this case; accordingly, we affirm.

Affirmed.

CASANUEVA, SILBERMAN, and CRENSHAW, JJ., Concur.

      . In the circuit court, the minor chose to be identified by her initials rather than a pseudonym. We have elected to use this pseudonym in place of the minor’s initials to further protect her privacy.


text:
    Kyle B. COKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3779.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Kyle B. Coker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In his petition for writ of certiorari, Petitioner, Kyle B. Coker, challenges the trial court’s order denying his motion for reduction or modification of sentence, which he filed pursuant to Florida Rule of Criminal Procedure 3.800(c). As the State concedes, the trial court departed from the essential requirements of the law by denying Petitioner’s motion based on its finding that sixty days had elapsed since his sentencing and its conclusion that it lacked jurisdiction to consider the motion. As Petitioner argues, the trial court had jurisdiction to consider the motion because he timely filed it within sixty days of this Court’s order dismissing his direct appeal. See Fla. R.Crim. P. 3.800(c) (providing in part that “[a] court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it, sua sponte, or upon motion filed, ... within 60 days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence”); see also Brander v. State, 996 So.2d 255, 256 (Fla. 1st DCA 2008) (granting the petition for writ of certiorari upon holding that the trial court’s failure to consider the merits of the petitioner’s rule 3.800(c) motion on the basis that it lacked jurisdiction constituted a departure from the essential requirements of the law because the motion was timely filed within sixty days of this Court’s mandate); Atkins v. State, 851 So.2d 829, 829 (Fla. 1st DCA 2003) (holding that the trial court departed from the essential requirements of the law where, pursuant to the mailbox rule, the petitioner timely filed his rule 3.800(c) motion within sixty days of this Court’s issuance of a mandate on his direct appeal).

Accordingly, we GRANT the petition for writ of certiorari, QUASH the trial court’s order, and REMAND for consideration of the motion on the merits.

LEWIS, C.J., THOMAS, and OSTERHAUS, JJ., concur.


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    Richard BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3115.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2014.
    James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Rutledge v. State, 1 So.3d 1122 (Fla. 1st DCA 2009).

SAWAYA, COHEN and BERGER, JJ., concur.