author: PER CURIAM. WARNER, J.,

text:
    James DAHL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1265.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

The patient appeals from the trial court’s order granting the treatment center’s petition to impose involuntary psychotropic treatment upon the patient pursuant to section 916.107(3)(a), Florida Statutes (2013). The patient asserts the trial court erred in entering the order without competent, substantial evidence showing that he received, in writing, an individualized treatment plan which he had an opportunity to assist in preparing as required by section 916.107(2)(d), Florida Statutes (2013). Because the patient’s argument was not preserved below, we affirm the trial court’s order.

Affirmed.

MAY and LEVINE, JJ., concur.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur in the majority opinion concluding that the issue was not preserved. I write to comment on the merits, however. Appellant appealed an order granting a petition for involuntary psychotropic treatment upon a patient pursuant to section 916.107(3)(a), Florida Statutes (2013). He argued in his brief that the state was required to prove that the requirements of section 916.107(2)(d), Florida Statutes, were met. Even if this had been preserved, I would hold that proof of the requirements of that section is not necessary in a statutory proceeding under section 916.107(3)(a).

Appellant was declared incompetent to proceed to trial on the criminal charges against him and committed to the care and custody of the Department of Children and Families (“DCF”). The Treasure Coast Forensic Treatment Center (“Center”), which was treating appellant, petitioned the Nineteenth Judicial Circuit for an order authorizing treatment. Its petition met the requirements of section 916.107(3)(a). After a full hearing before a magistrate, at which appellant’s treating physician testified to the necessity of treatment with the medications, and after appellant testified, the magistrate recommended granting the petition. The circuit court reviewed the recommendations and entered an order authorizing the treatment.

Although the evidence supported all of the requirements of section 916.107(3)(a), appellant contends that the state failed to present evidence of compliance with section 916.107(2)(d). I would hold that the statutory framework does not require the proof of compliance with that section in order to grant a petition for involuntary treatment.

Section 916.107 covers the Rights of Forensic Clients. This section is divided into provisions regarding the various rights, including the right to individual dignity, quality of treatment, communication, and others. The two at issue in this case are the Right to Treatment, section 916.107(2); and the Right to Express and Informed Consent, section 916.107(3)(a).

The Right to Treatment, section 916.107(2), contains the following provisions, including (2)(d) regarding the right to have a written copy of a treatment plan:

(a) The policy of the state is that neither the department nor the agency shall deny treatment or training to any client and that no services shall be delayed because the forensic client is indigent pursuant to s. 27.62 and presently unable to pay....
(b) Each forensic client shall be given, at the time of admission and at regular intervals thereafter, a physical examination, which shall include screening for communicable disease by a health practitioner authorized by law to give such screenings and examinations.
(c) Every forensic client shall be afforded the opportunity to participate in activities designed to enhance self-image and the beneficial effects of other treatments or training, as determined by the facility.
(d) Not more than 30 days after admission, each client shall have and receive, in writing, an individualized treatment or training plan which the client has had an opportunity to assist in preparing.

§ 916.107(2), Fla. Stat. (2013).

Section 917.107(3) deals with the right of a forensic client to informed consent to treatment. This section also provides for the means of securing necessary treatment when the client refuses to give informed consent. It provides:

(3) Right to express and informed consent.—
(a) A forensic client shall be asked to give express and informed written consent for treatment. If a client refuses such treatment as is deemed necessary and essential by the client’s multidisciplinary treatment team for the appropriate care of the client, such treatment may be provided under the following circumstances:
1. In an emergency situation in which there is immediate danger to the safety of the client or others, such treatment may be provided upon the written order of a physician for a period not to exceed 48 hours, excluding weekends and legal holidays....
2. In a situation other than an emergency situation, the administrator or designee of the facility shall petition the court for an order authorizing necessary and essential treatment for the client. The order shall allow such treatment for a period not to exceed 90 days following the date of the entry of the order. Unless the court is notified in writing that the client has provided express and informed consent in writing or that the client has been discharged by the committing court, the administrator or des-ignee shall, before the expiration of the initial 90-day order, petition the court for an order authorizing the continuation of treatment for another 90-day period. This procedure shall be repeated until the client provides consent or is discharged by the committing court.
3. At the hearing on the issue of whether the court should enter an order authorizing treatment for which a client was unable to or refused to give express and informed consent, the court shall determine by clear and convincing evidence that the client has mental illness, intellectual disability, or autism, that the treatment not consented to is essential to the care of the client, and that the treatment not consented to is not experimental and does not present an unreasonable risk of serious, hazardous, or irreversible side effects. In arriving at the substitute judgment decision, the court must consider at least the following factors:
a. The client’s expressed preference regarding treatment;
b. The probability of adverse side effects;
c. The prognosis without treatment; and
d. The prognosis with treatment.
The hearing shall be as convenient to the client as may be consistent with orderly procedure and shall be conducted in physical settings not likely to be injurious to the client’s condition. The court may appoint a general or special magistrate to preside at the hearing. The client or the client’s guardian, and the representative, shall be provided with a copy of the petition and the date, time, and location of the hearing. The client has the right to have an attorney represent him or her at the hearing, and, if the client is indigent, the court shall appoint the office of the public defender to represent the client at the hearing. The client may testify or not, as he or she chooses, and has the right to cross-examine witnesses and may present his or her own witnesses.

§ 916.107(3)(a), Fla. Stat. (2013) (emphasis added).

The statute thus sets up a detailed procedure for a petition for involuntary treatment as well as the findings which the court must make at any hearing. Those findings, italicized above, do not include a requirement that the court determine that there has been compliance with the rights in section 916.107(2)(d). Indeed, it may very well be that the client has refused to assist in preparing a plan for his treatment, resulting in the necessity of the hearing under section 916.107(3)(a). Thus, compliance with section 916.107(2)(d) in a hearing held pursuant to section 916.107(3)(a) is not only not required by statute, it may be impossible due to the resistance of the client.

“On appellate review of an order requiring a forensic patient to accept involuntary psychotropic treatment, ‘the record must contain competent, substantial evidence to support the trial court’s findings and to substantiate compliance with section 916.107.’ ” The record must contain evidence “that the treatment is deemed necessary by the patient’s multidisciplinary team, that the patient has refused to give express and informed consent as defined in the statute, and that the trial court has considered at least the four factors specified in clauses a-d of section 916.107(3)(a)3.”

Morgan v. State, 94 So.3d 677, 679-80 (Fla. 4th DCA 2012) (citations omitted). While our court has recently added compliance with section 916.107(2)(d) to the list of matters which must be proved at the hearing and failure to prove it is reversible error, see Chapman v. State, 133 So.3d 1075 (Fla. 4th DCA 2014), I find no statutory requirement that the state prove compliance with subsection (2)(d) in a hearing under section 916.107(3)(a).

Instead, if the client has not received the benefit of any of his or her statutory rights, including the right to a written treatment plan within 30 days of admission, section 916.107(9)(b) provides that a client may file a petition for writ of habeas corpus, and the circuit court may make a judicial inquiry and provide appropriate relief. See § 916.107(9)(b), Fla. Stat. (2013) (“A client or his or her legal guardian or representatives or attorney may file a petition in the circuit court in the county where the client is committed alleging that the client is being unjustly denied a right or privilege granted herein or that a procedure authorized herein is being abused. Upon the filing of such a petition, the circuit court shall have authority to conduct a judicial inquiry and to issue any appropriate order to correct an abuse of the provisions of this chapter.”).

Thus, I disagree with Chapman on the merits of the issue at hand. Nevertheless, without proper preservation, it does not need to be addressed by the panel.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Nelvius OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3022.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.
   PER CURIAM.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

No brief filed for appellee.

Affirmed. See Dahl v. State, No. 4D13-1265 (Fla. 4th DCA 2014).

Gross, Gerber and Forst, JJ., concur.


text:
    William McKERNAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-370.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.
    William McKernan, Doral, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s rule 3.800(a) motion to correct illegal sentence, which contends his probationary sentences imposed in three separate cases expired while appellant served a prison sentence imposed in another case after the probationary sentences commenced. The motion does not establish an “illegal” sentence that can be corrected at any time. Carter v. State, 786 So.2d 1173, 1178 (Fla.2001). Moreover, a probationary sentence once commenced automatically is tolled when a criminal defendant begins serving a prison sentence from another case. Bowman v. State, 86 So.3d 534, 535 (Fla. 2d DCA 2012) (citations omitted). In addition, since appellant raised the same claim in McKernan v. State, 8 So.3d 367 (Fla. 4th DCA 2009), the trial court’s order of summary denial must be affirmed based on collateral estoppel. Kittles v. State, 83 So.3d 958, 960 (Fla. 4th DCA), mandamus dismissed, 90 So.3d 271 (Fla.2012).

Accordingly, the Clerk of this Court is directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures, including forfeiture of gain time. § 944.279(1), Fla. Stat. (2012). Further, appellant is cautioned that future frivolous filings will result in additional sanctions such as a bar on pro se filings in this court. State v. Spencer, 751 So.2d 47 (Fla.1999); King v. State, 127 So.3d 684 (Fla. 4th DCA 2013).

Affirmed. Appellant referred for consideration of disciplinary procedures.

MAY, FORST and KLINGENSMITH, JJ., concur.


author: MORRIS, Judge.

text:
    Steven Winston HARTSFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2380.
    District Court of Appeal of Florida, Second District.
    May 30, 2014.

      Steven Winston Hartsfield, pro se.
   MORRIS, Judge.

Steven Winston Hartsfield appeals the postconviction court’s order denying his petition for writ of habeas corpus wherein he sought leave to file a belated motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850(b)(3). Because Hartsfield’s petition was timely, we reverse.

In 1994, a jury found Hartsfield guilty of aggravated battery, and the court sentenced him to seven years’ imprisonment. Over eighteen years later, on February 19, 2013, Hartsfield filed this petition seeking leave to file a belated rule 3.850 motion claiming that he retained counsel in 1995 to file a rule 3.850 motion, but counsel failed to do so. See Fla. R. Crim. P. 3.850(b)(3); see also Steele v. Kehoe, 747 So.2d 931, 934 (Fla.1999) (“[D]ue process entitles a prisoner to a hearing on a claim that he or she missed the deadline to file a rule 3.850 motion because his or her attorney had agreed to file the motion but failed to do so in a timely manner.”). Hartsfield’s petition should not have been denied as untimely. See Downs v. State, 135 So.3d 521 (Fla. 5th DCA 2014) (holding that petition filed within two years of the effective date of amendment to rule 3.850(b)(3) was timely but recognizing the State could raise a claim of laches). However, Hartsfield’s petition did not contain the oath required by rule 3.850(c). See Anderson v. State, 67 So.3d 1180, 1181 (Fla. 3d DCA 2011). On remand, the post-conviction court should strike the petition and allow Hartsfield sixty days to file an amended petition with the proper oath. See id.; Fla. R. Crim. P. 3.850(f)(2).

Reversed and remanded.

NORTHCUTT and KELLY, JJ., Concur.


text:
    STATE NATIONAL INSURANCE COMPANY, Appellant, v. Paul ROBERT, Elizabeth Robert, City of Hollywood, Florida and Hess Corporation, Appellees.
    No. 4D13-1598.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.

      Anna Lazarus, Walter J. Andrews of Hunton & Williams LLP, Miami, and Robert J. Morrow of Hunton & Williams LLP, New York, for appellant.
    Stephen A. Marino, Jr., and Benjamin C. Hassebrock of Ver Ploeg & Lumpkin, P.A., Miami, for appellees Paul Robert and Elizabeth Robert.
   PER CURIAM.

The issue on appeal is whether the trial court again erred in entering amended final judgments adding an insurer to those judgments without first determining whether the condition precedent of section 627.4136(1), Florida Statutes (2010), was met. That condition precedent requires the appellees, Paul Robert and his wife Elizabeth (“the Roberts”), to obtain a verdict against a person, or in this case the City of Hollywood, Florida (“the City”), “who is an insured under the terms of [the liability] policy for a cause of action which is covered by such policy.” Id. The order being appealed does not comport with this court’s mandate from the appellant’s prior appeal because it contains no findings, statements, or comments regarding the court’s determination of the Roberts’ satisfaction of section 627.4136’s condition precedent. State Nat’l Ins. Co. v. Robert, 71 So.3d 238, 241 (Fla. 4th DCA 2011). Therefore, we reverse.

The facts involved in this matter are well set forth in this court’s prior opinion. Id. Upon remand from this court, the trial court held a hearing on the Roberts’ second renewed motion to join the City’s insurer, State National Insurance Company (“State National”), to the judgment as a defendant. No transcript of this hearing was included in the record on appeal, although the record reflects that the court entertained oral argument on the issue and granted the Roberts’ motion without making any findings, statements, or comments.

Similar to the deficient order from the first appeal, the order granting the Roberts’ motion now on appeal contains no findings, statements, or comments regarding the court’s determination of the Roberts’ satisfaction of section 627.4136’s condition precedent. Likewise, the amended final judgments and the trial court’s order denying State National’s motion for rehearing do not contain findings, statements, or comments regarding the interplay of the policy language, section 627.4136, and section 768.28; nor is there provided an explanation of the trial court’s ruling.

Because the trial court’s order does not comport with this court’s clear instructions on remand, we reverse with instructions to strike State National as a defendant from the amended final judgments based upon the Roberts’ failure to satisfy the condition precedent of section 627.4136(1). See State Nat’l Ins. Co., 71 So.3d at 241.

Reversed with Instructions.

MAY, CIKLIN and KLINGENSMITH, JJ., concur.


author: WARNER, J.

text:
    Mark A. NORDLICHT; Platinum Partners, a/k/a Platinum LP: L3; Centurion Credit Management LP, a/k/a Centurion LLC, a/k/a Platinum Partner Credit Opportunities Fund; Jack Simony; Murray Huberfeld; Ari L. Glass; and David Bodner, Appellants, v. Abraxas J. DISCALA and The Broadsmoore Group, Appellees.
    No. 4D13-2062.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.

      Robert K. Burlington, Jeffrey B. Crockett and Susan E. Raffanello of Coffey Burlington, P.L., Miami, for appellants.
    Daniel M. Samson, Elliot B. Kula and W. Aaron Daniel of Kula & Samson, LLP, Aventura, and Jared A. Levy of Dimond, Kaplan & Rothstein, P.A., West Palm Beach, for appellees.
   WARNER, J.

Nordlicht and seven others appeal from a non-final order which denied their motion to dismiss based on forum non conve-niens grounds. They sought to transfer the case from Florida, the jurisdiction chosen by the plaintiff, to New York, the place of the defendants’ residences. We affirm, concluding that the trial court did not abuse its discretion in denying the motion.

Abraxas Discala and the Broadsmoore Group (collectively “Discala”) sued Mark Nordlicht, Platinum Partners, Centurion Credit Management, LP, Level 3 Capital Fund LP, Jack Simony, Murray Huber-feld, Ari Glass, and David Bodner (collectively “Nordlicht”). Discala alleged that Nordlicht defamed Discala by tying Disca-la to the Scott Rothstein Ponzi scheme in Florida through an email, and that the defamatory statements were then published on an internet blog. Nordlicht moved to dismiss Discala’s action on the basis of forum non conveniens, asserting that the statements were first made in New York and that all of the defendants reside or have their principal place of business in New York. According to Nordlicht, a majority of the evidence and witnesses are located in New York, and no party is a Florida resident. Nordlicht offered affidavits of defendants Simony and Glass, who stated they have no connection to Florida. Nordlicht contended that New York was an adequate alternative forum and that the defendants’ private interests weighed in favor of dismissal.

Discala responded by noting that he was a Florida resident when the defamatory statements were made, and fourteen of his witnesses who would testify regarding damages lived in Florida and would not travel to New York. Further, the evidence regarding Rothstein and the Ponzi scheme all centered in Florida. The response included affidavits from the fourteen witnesses.

Discala also argued that public interest factors weigh in favor of the Florida forum. Discala asserted that Florida has an interest in adjudicating this dispute, because the Rothstein scheme took place in Florida and the defamatory statements were aimed at Florida and its citizens. Discala contended that the consequences of the defamation were concentrated in Florida because Discala’s investors are located here.

The trial court denied the motion without elaborating the reasons for its decision. From that order, Nordlicht appeals.

A trial court’s ruling on a motion to dismiss based on forum non conveniens is reviewed for abuse of discretion. Ira Mex, Inc. v. Se. Interior Constr., Inc., 777 So.2d 1107, 1108 (Fla. 4th DCA 2001). Similarly, in Owens-Corning Fiberglas Corp. v. Ballard, 789 So.2d 603, 605 (Fla. 4th DCA 1998), we held that the trial court exercises sound discretion in determining whether or not to dismiss a case for forum non conveniens, stating, “discretionary power is subject only to the test of reasonableness, which, in turn, requires a determination of whether there is logic and justification for the result,” citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

In Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996), the Florida Supreme Court adopted the following four-step analysis for determining forum non conveniens used in federal courts:

As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. [2] Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice. [3] If the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum. [4] If he decides that the balance favors such a ... forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

674 So.2d at 90 (emphasis in original). The court explained that the first step is satisfied if the defendant is amenable to process in the other jurisdiction. Id. The second step focuses on how the parties’ private interests will be affected if the motion is granted or denied. Id. at 91. It deals with practical concerns such as adequate access to evidence and witnesses, practicalities and expenses associated with the litigation. Id.

Recently, in Cortez v. Palace Resorts, Inc., 123 So.3d 1085 (Fla.2013), the court emphasized that in weighing private interests, the strong presumption in favor of the plaintiffs choice of forum applies even where the plaintiff is a non-resident of Florida. Id. at 1094. As to the third step, Cortez modified Kinney to the extent that it now requires that Florida courts always consider the public interests, even where private interests favor the alternative forum. Id. at 1097. The fourth step is to ensure that when a forum non conveniens dismissal is granted, the remedy which is potentially available in the alternative forum does not become illusory. Id. at 1093-94.

Nordlicht focuses most of its argument on its contention that the private interests favor New York, noting that all of the defendants reside or have their businesses in New York or surrounding states. Further, Nordlicht claims that Discala is a resident of New York, and most of the witnesses to the defamation are located there. Nevertheless, Discala contends that his fourteen damage witnesses and witnesses regarding the Rothstein Ponzi scheme are all located in Florida. Given those facts, it appears that at least one party’s witnesses will be inconvenienced or unavailable, depending upon whether the action proceeds in Florida or New York. Under those circumstances, it can hardly be said that the private interests favor the alternative forum, particularly when given the deference which must be paid to the plaintiffs choice of forum under Cortez.

Even if the private interests favored the alternative forum, Cortez teaches that the Florida courts must consider the public interests before transferring the case. Cortez, 123 So.3d at 1097. The “public interests” factors focus on whether the case has a general nexus with the forum sufficient to justify the forum’s commitment of judicial time and resources to it. Kinney, 674 So.2d at 91-92. Courts consider three principles in deciding public interest: first, whether the court can protect its docket from cases over which it may be able to assert jurisdiction but which lack significant connection to the forum; second, whether the court can legitimately encourage the litigation of controversies in the localities where they arose; and third, in considering whether to retain jurisdiction over a case, a court may consider its familiarity with the law which will have to be applied. Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1124 (Fla. 4th DCA 1997).

Although Nordlicht argues that the defamation occurred in New York by the transmission of an email, the information was then broadcast on an internet blog, and Discala alleges that Nordlicht knew and intended that the information reach a wider audience. In Internet Solutions Corp. v. Marshall, 89 So.3d 1201, 1216 (Fla.2010), the court held that “[a] nonresident defendant commits the tortious act of defamation in Florida for purposes of Florida’s long-arm statute when the nonresident makes allegedly defamatory statements about a Florida resident by posting those statements on a website, provided that the website posts containing the statements are accessible in Florida and accessed in Florida.” Therefore, it is clear that Florida has a general nexus to the defamation as well as the damages ensuing from it. Further, Florida has a nexus to the Rothstein Ponzi scheme to which the allegedly defamatory statements tied the plaintiff. As this defamation can be considered a tortious act directed at Florida and its residents, the courts of Florida should be open to its resolution. Thus, consideration of the public interest factors does not compel litigating this action in an alternative forum.

As the trial court did not abuse its discretion in denying the motion to dismiss based upon forum non conveniens, we affirm.

CIKLIN, J., and TUTER, JACK, Associate Judge, concur.


text:
    Ranisha BAKER, Appellant, v. Cartessma PUCKET, a/k/a Cartessma Williams, Appellee.
    No. 4D13-2393.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.

      Ranisha Baker, Quincy, pro se.
    No appearance for appellee.
   WARNER, J.

Ranisha Baker appeals an order denying her motion to vacate a domestic violence injunction entered against her. She sought to modify a permanent injunction entered in 2011 which prohibited her from committing acts of domestic violence against appellee and from having contact with appellee. The trial court denied the motion without a hearing. We reverse.

In her motion to dissolve the injunction, appellant alleged that she and appellee have not had any contact since the injunction was entered in 2011 and that she does not plan to have any contact with appellee in the future for any purpose. She also alleged that she is currently incarcerated and is prevented from participating in a work release program due to the injunction. Based upon these allegations, she was entitled to a hearing on her motion.

A permanent injunction for protection against domestic violence may be granted either for a fixed period of time or until further order of the court. See § 741.30(6)(c), Fla. Stat. (2013); Fla. Fam. L. R. P. 12.610(c)(4)(B). “Either party may move at any time to modify or dissolve the injunction. No specific allegations are required.” § 741.30(6)(c), Fla. Stat. (2013); see also Fla. Fam. L. R. P. 12.610(c)(6). A trial court’s summary denial of a motion to vacate an injunction without holding a hearing may violate due process. Betterman v. Kukelhan, 977 So.2d 702, 703 (Fla. 4th DCA 2008).

In Colarusso v. Lupetin, 28 So.3d 238 (Fla. 4th DCA 2010), we noted:

Case law has not clearly set forth the applicable legal standard for determining whether a domestic violence injunction should be vacated or modified. Some cases seem to require the movant to allege and prove a change in circumstances .... However, other cases have focused on the “at any time” language in the statutory text, finding that the trial court should have held an evidentiary hearing to allow the movant to present evidence regarding the initial procurement of the injunction.

Id at 239 (citations omitted). In Colarus-so, we found that the appellant had sufficiently alleged a change in circumstances by alleging “the injunction has served its purpose; he had not attempted to contact his ex-girlfriend for years; he has been incarcerated on unrelated charges; and the injunction was impacting his ability to participate in certain prison work programs.” Id Accordingly, we reversed, finding, “Because appellant’s motion was legally sufficient, the trial court should have afforded appellant a meaningful opportunity to be heard rather than summarily denying his motion.” Id (citing Betterman, 977 So.2d at 703). Appellant’s allegations here track the allegations in Colarusso that we found sufficient to require a hearing on the motion.

Although we reverse for a hearing, we note that, based on the current appellate record, appellant has not yet perfected service on appellee. See Fla. Fam. L. R. P. 12.610(c)(6) (governing service of motions to vacate injunctions); see also Shakes v. Whitelocke, 922 So.2d 1076, 1077 (Fla. 5th DCA 2006) (trial court erred by amending injunction ex parte, without prior notice to the petitioner who had originally obtained the order). On remand, appellant should have the opportunity to perfect service and thereafter schedule an evidentiary hearing. See, e.g., Reed v. Reed, 816 So.2d 1246, 1247 (Fla. 5th DCA 2002) (summary denial of motion to vacate injunction before service was perfected on appellant’s wife, the petitioner who obtained the injunction, was error; appellant should be allowed to obtain service of motion on wife and schedule an evidentiary hearing).

For the foregoing reasons, we reverse and remand for proceedings consistent with this opinion.

DAMOORGIAN, C.J., and KLINGENSMITH, J., concur.


author: KELLY, Judge.

text:
    James VICE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2775.
    District Court of Appeal of Florida, Second District.
    June 6, 2014.
    Mark J. O’Brien, Tampa, for Appellant.
   KELLY, Judge.

James Vice appeals the order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850, in which he alleged that his plea was involuntary due to counsel’s ineffective assistance. We affirm in part and reverse in part.

In his sworn motion, Vice stated that after a sixteen-year-old girl told her school social worker of her sexual encounter with Vice approximately eight to nine years earlier, law enforcement conducted two controlled phone calls between the girl, her mother, and Vice. During the calls, Vice did not deny the accusations. He was arrested shortly after the calls and charged with capital sexual battery. Vice, who was sixty-seven years of age at the time, ultimately entered a plea to attempted sexual battery in exchange for a sentence of ten years’ imprisonment followed by four years’ sex offender probation.

Vice alleged that prior to the phone calls, he had consumed six sixteen-ounce beers at the Neptune Bar and drank another beer between the time he left the bar and returned home. He alleged that Dale Wackerman was at the bar with him and witnessed him drinking all six beers. He asserted that he informed counsel of this and asked counsel to obtain records of his blood alcohol level at the time of his arrest, but counsel told him that the level was not high enough to have an effect on his case. Vice alleged that after he entered his plea and was sentenced, counsel wrote him to alleviate his concerns and explained that there were no records of his blood alcohol level.

In ground one (A), Vice argued that his plea was involuntary because trial counsel advised him that his blood alcohol level was too low to have an effect on his case when in fact there was no evidence of his blood alcohol level. He argued that absent counsel’s misinformation, he would have insisted on going to trial and explaining that he failed to deny the accusations because he was heavily intoxicated at the time of the controlled phone calls. Vice stated that his assertions were supported by his hesitation to enter the plea.

In- ground two (A), Vice argued that trial counsel was ineffective for failing to investigate Dale Wackerman, who was available to testify and would testify that Vice was intoxicated at the time of the controlled calls. Vice alleged that Wackerman’s testimony would have rebutted the validity of the calls, and proof of intoxication would have allowed Vice to defend his failure to deny the allegations made during the calls. In this same vein, Vice argued in ground two (B) that counsel was ineffective for failing to investigate his bar tab from the Neptune Bar as it would have provided further evidence of his intoxication. Vice asserted that but for counsel’s failure to investigate his intoxication at the time of his arrest, he would have insisted on going to trial.

In denying these claims, the postconviction court found that Vice failed to establish that he would have gone to trial but for counsel’s alleged misadvice because intoxication is generally relevant to a defendant’s credibility, not to the admissibility of his confession. In his brief filed in this appeal, Vice asserted, consistent with the arguments in his motion, that his allegation was not that he would have asserted the defense of voluntary intoxication but that he would have used his intoxication to explain his failure to deny the victim’s accusations during the controlled phone calls.

The postconviction court’s findings and its attachments to its order do not conclusively refute grounds one (A), two (A), and two (B). Accordingly, we reverse as to those claims and remand for the postcon-viction court to either attach portions of the record that conclusively refute them or conduct an evidentiary hearing. We affirm grounds one (B) and three without comment.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and BLACK, JJ., Concur.

      . In ground two (C), Vice did not make a claim for relief; he argued that the plea form and the plea colloquy do not refute his claims. See Scott v. State, 779 So.2d 284 (Fla. 2d DCA 1998) (holding that a plea agreement or colloquy showing client approval of counsel will not refute an allegation that defendant later learned of the availability of a defense about which counsel failed to advise him). Vice’s argument is correct to the extent he alleges that counsel did not inform him of the absence of alcohol blood test results until after sentencing.


author: CRENSHAW, Judge.

text:
    Celese GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-7.
    District Court of Appeal of Florida, Second District.
    June 6, 2014.

      N. Adam Tebrugge of Tebrugge Legal, Bradenton, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Celese Gordon was charged with trafficking in oxycodone, 28 grams to 30 kilograms — by possession — and conspiracy to traffic in oxycodone for the same amount, pursuant to section 893.135(1)(c)(1)(c) and 893.135(5), Florida Statutes (2011). Gordon was found guilty of trafficking 14 grams to 28 grams of oxycodone, a lesser-included offense, and guilty as charged on the conspiracy count. She was sentenced to thirty years’ prison on each count to run concurrently with a mandatory term of fifteen years on the trafficking charge and a mandatory twenty-five years on the conspiracy charge. She was also fined $100,000 plus costs on the trafficking charge and $500,000 plus costs on the conspiracy charge. We affirm the judgment and sentence and write only to explain why the fines are constitutional.

I. PRESERVATION

Gordon did not preserve any error as to the fines either by objecting at sentencing or by motion under Florida Rule of Criminal Procedure 8.800(b). See Fla. R. App. P. 9.140(e). In most circumstances, this would bar any review of a sentencing error in this court. See Jackson v. State, 983 So.2d 562, 569 (Fla.2008) (“ ‘[F]or defendants whose initial briefs were filed after the effective date of rule 3.800(b)(2), the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal.’ ” (quoting Brannon v. State, 850 So.2d 452, 456 (Fla.2003))). “In other words, for sentencing errors, to raise even fundamental error on appeal, defendants must first file a motion under rule 3.800(b).” Id. However, there is an exception to that rule “applying only to a facial challenge to the constitutionality of a sentencing statute that, at the time the first appellate brief is filed in the case, has not been declared unconstitutional in any appellate decision binding on the trial court.” Brannon, 850 So.2d at 458 (discussing and limiting Harvey v. State, 848 So.2d 1060 (Fla.2003)). This case falls into that narrow exception because it facially challenges as unconstitutional a sentencing statute, and no appellate court has already addressed the issue. Thus, the issue is reviewable.

II. CONSTITUTIONAL CHALLENGE

There is a dearth of caselaw discussing the provisions of the United States and Florida constitutions’ bars to excessive fines. United States v. Bajakajian, 524 U.S. 321, 327, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) (“This Court has had little occasion to interpret, and has never actually applied, the Excessive Fines Clause [U.S. Const. Amend. VIII].”); see art. I, § 17, Fla. Const. We must determine whether the fine is “ ‘grossly disproportional to the gravity of the defendant’s offense.’ ” United States v. Levesque, 546 F.3d 78, 83 (1st Cir.2008) (quoting Bajakajian, 524 U.S. at 337, 118 S.Ct. 2028). We conclude it is not.

There are three factors we consider to determine whether a fine is “grossly disproportional to the gravity of the defendant’s offense.” Id. “To determine whether a [fine] is grossly disproportional, a court should consider: ‘(1) whether the defendant falls into the class of persons at whom the criminal statute was principally directed; (2) other penalties authorized by the legislature ...; and (3) the harm caused by the defendant.’ ” Id. (quoting United States v. Heldeman, 402 F.3d 220, 223 (1st Cir.2005)).

A. The Class of Persons at Whom the Statute is Directed

The history of the statute Gordon violated provides insight into this first inquiry. Section 893.135, which Gordon was charged with violating, was first enacted in 1979. See Ch. 79-1, § 1, at 9, Laws of Fla. Then it did not look exactly as it does now, with one notable exception. The $100,000 and $500,000 fines were part of the trafficking statute even then. Id. (creating section 893.135(1)(c)(2)-(3)). At that time, the greatest trafficking felony was for amounts 28 grams or more. In 1990, the legislature amended the section to add a cap of 30 kilograms to the then-current offense, and added the life felony of trafficking for amounts 30 kilograms or greater. Ch. 90-112, § 1, at 355, Laws of Fla. Finally, we note that oxycodone itself was not part of the statute but instead was added to the trafficking statute in 1995. See Ch. 95-415, § 5, at 3417, Laws of Fla.; State v. Hayes, 720 So.2d 1095, 1096 (Fla. 4th DCA 1998), quashed 750 So.2d 1 (Fla.1999), superseded by statute Ch. 02-212, § 3, at 1499, Laws of Fla. (codifying § 893.135(7)).

Set in its historical context, it is clearer that Gordon is within the “class of persons at whom the criminal statute was principally directed” regarding both fines. See Levesque, 546 F.3d at 83. “[judgments about the appropriate punishment for an offense belong in the first instance to the legislature.” Bajakajian, 524 U.S. at 336, 118 S.Ct. 2028 (citing Salem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983))); State v. Adkins, 96 So.3d 412, 416-17 (Fla.2012) (“In considering a challenge to the constitutionality of a statute, [the courts are] ‘obligated to accord legislative acts a presumption of constitutionality and to construe challenged legislation to effect a constitutional outcome wherever possible.’ ” (quoting Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005))). While the original meaning of this provision appears to be directed at penalizing drug kingpins and those involved in cartels it is also clear that the legislature saw the offense Gordon committed, that of being a middleman, as a significant crime. Thus, it follows that the legislature would assign a significant fiscal penalty to the crime in order to further disincentivize it. And Gordon’s conduct falls into what was the maximum offense at the time of its creation.

The facts surrounding the offenses Gordon committed are more like those of a middleman than a common dealer. Gordon and her codefendant schemed to commit their crime: they obtained prescriptions for controlled substances through false means and would likely have sold them to persons illegally — both to people without a prescription and without the authority to distribute such pills — had they not been caught. In this case, Gordon’s greater conviction was for conspiracy to traffic in oxycodone, 28 grams to 30 kilograms, based mostly on the 360 pills found with her — an amount it appears is four-to-twelve times as much as the majority of traffickers of oxycodone and hydrocodone. See Off. of Prog. Pol’y Anal. & Gov’t Acct., Opinions Are Mixed About Sentencing Laws for Painkiller Trafficking 4 (Fla. Jan. 2012), available at http://www.oppaga. state.fl.us/MonitorDocs/Reports/pdf/ 1202rpt.pdf) [hereinafter OPPAGA Report ]. She specifically sought to obtain a high-volume prescription through deception in order to take advantage of what law enforcement might refer to as a “pill mill” — those establishments which “routinely prescribe much higher amounts of prescription painkillers, such as 180 oxyco-done pills per month.” See Fla. H.R. Comm, on Judiciary, HB 99 (2014) Staff Analysis 4 n. 21 (Mar. 3, 2014) (quoting OPPAGA Report 4 n. 7). The evidence at trial indicated a street value of ten dollars per pill for a potential total in this case of $3600. While a gross total of $3600 does not rise to the level of a kingpin, it certainly fits within the idea of a middleman. Simply put, the statutory schema indicates the legislature meant to punish both middlemen and kingpins harshly, a policy decision we do not second-guess. We conclude that Gordon’s conduct fits within the statute’s principal direction. Accordingly, this factor militates in favor of not finding the greater fine to be grossly disproportional and thus constitutional.

The $100,000 fine has a similar purpose. Though aimed more at smaller-transaction dealers than the $500,000 fine it, too, is directed at the middleman, as it applies to those in possession of between 14 and 28 grams of illegal drugs. Com/pare 893.135(1)(c)(1)(b) ($100,000 fine for 14-28 grams), with 893.135(1)(c)(1)(a) ($50,000 fine for A-14 grams). With this in mind, it is apparent that Gordon’s lesser offense is also the type the statute is principally directed toward. Because we determine that Gordon’s trafficking offense is that to which the $100,000 fine is principally directed, this counsels in favor of the provision’s constitutionality. In sum, criminalization of conduct like Gordon’s is directed at the middleman — neither street-corner dealer, nor kingpin — and the legislature could treat the different offenses disparately, and harshly, all within constitutional bounds.

B. Other Penalties Authorized

We turn next to the “other penalties authorized by the legislature.” Levesque, 546 F.3d at 83. The authorized penalties for Gordon’s greater crime were fourfold. First, there is a mandatory, minimum sentence of incarceration for twenty-five years’ prison. § 893.135(1)(c)(1)(c), (5). Second, there is forfeiture pursuant to section 893.12. Third, there are mandatory and discretionary court costs imposed by chapter 938 of the Florida statutes, which can amount to a significant sum in their own right. On top of those penalties, there is the mandatory $500,000 fine. § 893.135(1)(c)(1)(c). The fine is not in isolation, and, given the mandatory terms of imprisonment, is not particularly likely to be repaid. Further, the circuit court was without discretion to deviate from the statute because the language is mandatory. See Jones v. State, 700 So.2d 776, 776 (Fla. 2d DCA 1997) (“A trial court has no discretion to dispense with [mandatory] costs.”) (citation and internal quotation marks omitted). Nor was the fine imposed a maximum, but rather the amount is fixed. Accordingly, the trial court had no choice but to sentence Gordon to pay a fine of $500,000 as well as to serve a sentence of at least twenty-five years’ prison.

This same analysis applies to the $100,000 fine. Gordon’s penalties for trafficking in oxycodone 14-28 grams, besides the fine, include a mandatory, minimum prison term of fifteen years, forfeiture, and court costs. Though one factor in the ultimate analysis, the aggregation of the penalties weighs in favor of both fines being grossly disproportional to the offenses committed.

C. Harm Caused by the Defendant

Finally, we must look to the harm caused by the defendant. See Levesque, 546 F.3d at 83. We recognize that “the [l]egislature intended for the state to prosecute traffickers in hydrocodone as zealously as it prosecutes those who traffie[ ] in other substances.” Hayes, 720 So.2d at 1096. Conspiracy to traffic is proscribed by the same statute; the statute states that the defendant is punishable as if the offense had been committed. § 893.135(5).

Although the legislature has seen to proscribe conspiracy to traffic in the same statute as actual trafficking, that does not deprive us of our independent obligation to determine whether the “harm caused” impacts the constitutional question, namely excessiveness of the fine. See U.S. v. Mackby, 339 F.3d 1013, 1017 (9th Cir.2003) (“The penalties available ... provide another guide to [defendant’s] level of culpability. The possible penalty available under the [statute] is instructive but not dispositive of the constitutional question.” (citation omitted)). We do not question the legislature’s findings of the potential for drug trafficking or conspiracy to cause harm, and we look to the statute’s intent.

Heldeman, 402 F.3d 220, is instructive. In that case Heldeman pleaded guilty to several fraud offenses and three counts of both conspiracy to distribute drugs and drug distribution. Id. at 221. He was sentenced to forty-six months’ prison and was ordered to forfeit his residence, with equity of $900,000, for having “facilitated” his drug offenses. As stated by the court:

Between October 2000 and December 2002, Heldeman, a New York dermatologist, wrote prescriptions for steroids and Oxycodone (a highly addictive and very strong pain medication) for a number of individuals — many of whom were bodybuilders and some of whom Heldeman had never seen or treated. These prescriptions were medically unnecessary and were of the sort not typically prescribed by dermatologists. For one bodybuilder, Timothy DiPaola, the prescriptions were made out in the names of DiPaola’s friends, so that DiPaola could purchase the drugs with his friends’ insurance and then use them himself. Heldeman also took phone calls from pharmacies to confirm the validity of the prescriptions he had written, and instructed his office manager and nurse to do the same if pharmacists called.

Id. at 221-22. Heldeman undertook such an enterprise because he “received various services of a sexual nature from his clients.” Id. at 222. After first stating that in some forfeiture cases the forfeiture was of less than the statutory maximum, the court noted that some circuits have held that the forfeiture complies with the Eighth Amendment:

However this may be, there are no strong countervailing arguments in favor of Heldeman that would warrant a different result. Heldeman’s offense conduct was not typical of drug dealing and did not involve guns or violence; but it was calculated, repeated, and done for Heldeman’s benefit rather than misguided sympathy, and facilitated access to dangerous substances in the absence of medical need.

Id. Gordon’s offense is similar: like Helde-man’s, no weapons nor violence were used, but it, too, was calculated and done for her own benefit. She, too, acted for her own benefit rather than out of “misguided sympathy” (especially because Gordon is not a medical doctor), and also “facilitated access to dangerous substances in the absence of medical need.” Id. That there was no sale in this case, was of law enforcement’s doing, not Gordon’s.

The harm caused in this case also includes deception in the form of obtaining the prescription — and therefore a greater amount of pills — and the pills themselves, as well as significant harm to potential victims. And it is within common knowledge that prescription painkillers are addictive — thus Gordon could be seen as further victimizing even her “new” victims by selling them something knowing it is addictive in order to maintain a profitable enterprise. See United States v. $180,893 U.S. Currency, 39 Fed.Appx. 570, 573 (9th Cir.2002) (holding there is significant harm in a marijuana grow house operation because “[i]t is an established fact that drug abuse creates a threat to public health and welfare. Given these facts and circumstances, this factor weighs heavily ....”); see also OPPAGA Report at 5 (discussing another report that “cited oxycodone as the drug that caused the most deaths in Florida_ [T]his high[-]strength oxyco-done pill is in the most demand by addicts.”). To be sure, this is itself not proven in this case, but remains relevant to our harm inquiry. As this is a facial challenge, we must look to potential harm caused as well as actual harm caused.

And like Heldeman, Gordon’s offense was also a crime of deception. For example, Gordon sought out the confidential informant in order to commit the crime, and provided the informant with everything she would need. This included cash to pay for the pills, a cover story, a false MRI, and a false prescription history. This only aggravates the harm caused and the gravity of the offense. Therefore this factor, too, militates a determination of the fines not being grossly disproportional.

III. CONCLUSION

In the end, we must conclude the $500,000 fine is valid as not being constitutionally excessive. The crime for which Gordon is being punished is within the principal direction of the statute. We recognize that the fine becomes more significant when aggregated with the other penalties. However, this is outweighed by a significant harm. The $100,000 fine, too, is not unconstitutional, because it is not grossly disproportionate. We recognize that it may appear disproportionate because of the various penalties prescribed and the minimal harm actually caused in this case, but because we recognize that Gordon’s conduct falls within the statute’s principal direction, we cannot say any dis-proportionality is “gross” and therefore constitutionally excessive, especially where the harm caused is limited by law enforcement’s intervention rather than the defendant’s own conduct.

The convictions in this case are affirmed. And because neither the $500,000 fine nor the $100,000 fine is excessive within the proscriptions of the Eighth Amendment to the U.S. Constitution and section 17 of article 1 of the Florida Constitution, we hold they are constitutional.

Affirmed.

NORTHCUTT and SILBERMAN, JJ„ Concur.

      . Oddly, when the life felony was added, it did not include a specific fine. As a result, the greatest fine for trafficking is $500,000 and it only applies to cases of trafficking in illegal drugs between 28 grams and 30 kilograms; even now, a person convicted of trafficking a greater amount is not subject to a fine separate from that which is otherwise established by the general fine schema in section 775.083, Florida Statutes. See § 893.135(1)(c)(2), Fla. Stat. (2013). We note that the capital felony of trafficking in illegal drugs carries the same fine, but it requires a victim's fatality. § 893.135(1)(c)(2). Capital importation of illegal drugs also carries the same fine, but requires the importation of 60 kilograms or more and knowing of the probable death of a person. Id. at (1)(c)(3).

      . The evidence at trial was clear regarding various costs involved with a prescription drug operation.

      . While we are cognizant of the pending reforms to this criminal schema, see Fla. CS for SB 360, § 1 (2014), they do not affect Gordon's 2011 crime. We express no view as to the constitutionality of the pending legislation.

      . For example, the 5% surcharge imposed on all fines by section 938.04, Florida Statutes (2011), amounts to $25,000 on the $500,000 fine and $5000 on the $100,000 fine.

      . We note that oxycodone and hydrocodone are different drugs but to the extent that they are currently proscribed, it is by the same statute.


text:
    Juan D. FIGUEROA, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1862.
    District Court of Appeal of Florida, Second District.
    June 6, 2014.

      Juan D. Figueroa, pro se.
   PER CURIAM.

Juan D. Figueroa appeals the order denying his motion to set aside or correct illegal sentence filed under Florida Rules of Criminal Procedure 3.800(a) and 3.850(b)(2). In his motion, Figueroa correctly argued that his mandatory life sentence without parole for first-degree felony murder is illegal under Miller v. Alabama, - U.S. -, -, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012), because he was a minor at the time of the offense. Accordingly, we reverse the postconviction court’s order denying Figueroa’s motion and remand for further proceedings consistent with Toye v. State, 133 So.3d 540 (Fla. 2d DCA 2014).

Reversed and remanded.

KELLY, WALLACE, and CRENSHAW, JJ., Concur.


author: VAN NORTWICK, J.

text:
    Alvin WILKERSON, Appellant, v. Henry David JOHNSON, Appellee.
    No. 1D13-2681.
    District Court of Appeal of Florida, First District.
    June 9, 2014.

      Claire Cubbin, Fort Lauderdale, for Appellant.
    No appearance, for Appellee.
   VAN NORTWICK, J.

Alvin Wilkerson appeals a final order awarding him attorney’s fees and costs, asserting that the trial court erred in reducing the number of hours reasonably expended for the purpose of the fee award without making specific findings and in reducing the amount of costs awarded below the amount of costs actually incurred for investigation. For the reasons set forth below, we agree, and reverse and remand for further proceedings consistent with this opinion.

Henry David Johnson, appellee, filed a two-count complaint against Wilkerson seeking replevin of a tractor and implements. Johnson obtained a prejudgment writ of replevin from the trial court ordering the property to be put in Johnson’s possession upon his posting of a bond in the amount of $36,500, which Johnson posted.

Wilkerson responded with an amended answer and counterclaim, which sought damages and attorney’s fees for the loss of the use of the tractor and implements. The case proceeded to a non-jury trial. At the close of Johnson’s case, Wilkerson filed a motion for involuntary dismissal of Johnson’s complaint. The trial court granted the motion, dismissed the complaint, ordered the return of the tractor and implements to Wilkerson, and reserved jurisdiction to determine Wilkerson’s damages as well as attorney’s fees and costs under section 78.20, Florida Statutes (2011).

The trial court held a hearing on attorney’s fees and costs on February 15, 2013. Apparently there was no court reporter in attendance because the record does not contain a transcript of this hearing. A second hearing on fees and costs was held on March 18, 2013, at which attorney William Charles Hughes testified as to the reasonableness of the attorney’s fees and costs sought by Wilkerson. Wilkerson’s counsel filed an amended motion to tax fees and costs, which requested fees in the amount of $23,610.36 and costs in the amount of $18,378.29.

Thereafter, the trial court entered a written order awarding fees and costs. The trial court found that $150 was a reasonable hourly rate for counsel’s out-of-court work. The trial court ruled that the 135.85 hours expended on a replevin case with no complex issues was unreasonable, and reduced the number of reasonable hours by half, to 67.925. The trial court found that fifteen hours of in-court work at $175 per hour was reasonable, as were the cost requests for postage, deposition fees, witness fees, court reporting fees, travel expenses, filing fees, copies, and FedEx shipping.

The trial court found, however, that the request for $15,600 for investigative costs (200 hours at $75/hour) was unreasonable and unnecessary, and found 100 hours to be reasonable. Ultimately, the trial court granted a total fee award of $12,813.75, and a total cost award of $10,289.70. Wilkerson filed a motion for rehearing, which the trial court denied. This appeal ensued.

The Reasonable Number of Hours Expended

Appellate courts apply the abuse of discretion standard to review a lower court’s award of attorney’s fees. Shelly L. Hall, M.D., P.A. v. White, 97 So.3d 907, 909 (Fla. 1st DCA 2012). By statute:

When property has been ... redelivered to[ ] defendant ... upon the dissolution of a prejudgment writ and defendant prevails, he or she shall have judgment against plaintiff for his or her damages for the taking, if any, of the property, attorney fees, and costs. The remedies provided in this section and s. 78.21 shall not preclude any other remedies available under the laws of this state.

§ 78.20, Fla. Stat. (2011).

The Florida Supreme Court has explained that the trial court must determine a reasonable number of hours expended, a reasonable hourly rate, and multiply these figures together to obtain the lodestar amount, which is “an objective basis for the award of attorney’s fees.” Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985). The Court further instructed that “[i]n determining the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors [to apply to the lodestar amount], the trial court must set forth specific findings.” Id.

Here, Wilkerson’s counsel claimed 135.85 out-of-court hours expended on the case. In finding that amount to be excessive and reducing the number of hours expended to 67.925, half the amount claimed, the trial court noted in its order that 135.85 hours was not reasonable in a replevin case, and that no complex issues were presented. These findings may be sufficient to explain why the trial court found the claim of 135.85 out-of-court hours excessive; however, the trial court did not explain in its order why 67.925 was a reasonable number of hours to have expended. Although mere speculation, the record suggests that the trial court simply cut by half the number of hours claimed to arrive at a determination of the number of out-of-court hours reasonably expended. In any event, the trial court’s order is contrary to the requirement that the trial court make specific findings relating to the number of hours reasonably expended. Rowe, 472 So.2d at 1151; see also Hysmith v. Hysmith-Graham, 948 So.2d 974, 975 (Fla. 1st DCA 2007) (“Although a reduction in attorney’s fees might ultimately be appropriate in this case, we must reverse the present order because the trial court failed to set forth specific findings regarding the attorney’s hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors.”). Therefore, we reverse and remand to allow the trial court to make specific findings in support of its determination as to the reasonable number of hours expended.

The Cost Award

Section 57.041, Fla. Stat. (2013), provides:

(1) The party recovering judgment shall recover all of his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.
(2) Costs may be collected by execution on the judgment or order assessing costs.

Courts have interpreted this statute as removing from the trial court the discretion to deny costs to the prevailing party in a civil action. Fla. State Univ., Bd. of Trs. v. Monk, 112 So.3d 173, 173-74 (Fla. 1st DCA 2013) (“[T]he trial court did not have discretion to deny the recovery of costs by appellant, as the prevailing party, under section 57.041, Florida Statutes (2009)”); Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So.3d 348, 356 (Fla. 4th DCA 2011) (“Under section 57.041(1), a judge has no discretion to deny recovery of costs to the prevailing party.”); Granoff v. Seidle, 915 So.2d 674, 677 (Fla. 5th DCA 2005) (“The trial court has no discretion to deny costs under this statute-the prevailing party must be awarded costs.”); Higgs v. Klock, 873 So.2d 591, 592 (Fla. 3d DCA 2004) (“[U]nder the statute, ‘every party who recovers a judgment in a legal proceeding is entitled as a matter of right to recover lawful court costs, and a trial judge has no discretion to deny costs to the parties recovering judgment.’ ”) (citation omitted).

Here, the trial court attempted to exercise discretion in reducing the number of hours Wilkerson could claim for investigative services, which consequently reduced his total cost recovery. Under the plain language of section 57.041 and interpreting case law, however, a trial court lacks the discretion to deny recovery of “all” of the prevailing party’s “legal costs and charges.” Accordingly, we reverse and remand for the trial court to award the full amount of the investigative costs Wilkerson incurred in connection with this case. We affirm the appealed order in all other respects.

Accordingly, we REVERSE in part, AFFIRM in part, and REMAND for' further proceedings consistent with this opinion.

ROBERTS and CLARK, JJ., concur.


text:
    STATE of Florida, Appellant, v. Shanna Gayle JOHNSON, Appellee.
    No. 1D14-0580.
    District Court of Appeal of Florida, First District.
    June 10, 2014.
    Pamela Jo Bondi, Attorney General, and Kristen Lynn Bonjour, Assistant Attorney General, Tallahassee, for Appellant.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   ORDER ON MOTION TO DISMISS

PER CURIAM.

Appellee files a motion to dismiss this criminal appeal asserting that the notice of appeal was untimely filed. We deny the motion to dismiss finding that the clerk of the circuit court should have accepted the notice of appeal on the original date it was electronically filed.

The order to be reviewed was rendered on January 14, 2014. Appellee’s motion to dismiss asserts that the state filed the notice of appeal on February 5, 2014, more than 15 days after rendition of the order to be reviewed. See Fla. R. App. P. 9.140(c)(3) (requiring that any state criminal appeal, with one exception not material here, must be filed within 15 days of rendition of the order to be reviewed).

In response, the state shows that it electronically filed the notice of appeal on January 22, 2014, which was within the 15-day time limit of rule 9.140(c)(3). The state has provided documentation demonstrating that its notice of appeal was electronically transmitted to the clerk of the circuit court and entered on January 22, 2014. The circuit court clerk’s e-filing portal also noted that the notice of appeal was filed on January 22, 2014. However, because the state’s notice of appeal listed appellee and a co-defendant’s name in the style of the case, the circuit court clerk rejected the notice of appeal stating that the filing in the e-filing portal queue needed to be corrected before it was filed because “all appeal pleadings must have one defendant name.” The state filed its corrected notice of appeal on February 5, 2014, which was outside the 15-day deadline of rule 9.140(c)(3).

First, it is the general rule that a defect in a notice of appeal that does not prejudice the adverse party will not serve as grounds for dismissal. Milar Galleries, Inc. v. Miller, 349 So.2d 170 (Fla.1977); Brown v. Winn-Dixie Stores, Inc., 267 So.2d 78 (Fla.1972). Certainly, an appellee would be hard pressed to show prejudice from a notice of appeal presented to the clerk which also lists a co-defendant’s name. Second, a “notice of appeal is generally deemed filed on the date it is actually filed with the clerk of the trial court.... [When] a notice of appeal is tendered for filing with the clerk of the trial court but is refused by the said clerk, the notice is deemed filed on the date it is so tendered-notwithstanding the appearance of a later filing date which is stamped by the said clerk on the face of the notice.” Weintraub v. Alter, 482 So.2d 454, 457 (Fla. 3d DCA 1986); see also Strax Rejuvenation & Aesthetics Institute, Inc. v. Shield, 49 So.3d 741 (Fla.2010) (citing Weintraub and holding that the stamped filing date on a notice of appeal is presumptive evidence of the filing date, but is not conclusive and can be rebutted by other evidence); Cook v. Walgreen Co., 399 So.2d 523 (Fla. 2d DCA 1981) (stating that a document is deemed filed when delivered to the proper officer).

This court has held that “it is the ministerial duty of a trial court clerk to accept and promptly file a notice of appeal when tendered.” Hughes v. State, 565 So.2d 354 (Fla. 1st DCA 1990); accord Musmacher v. McDonough, 969 So.2d 1101 (Fla. 1st DCA 2007) (holding that the clerk of the circuit court had a ministerial duty to accept a petition for filing even if the petition was not accompanied by the payment of filing fees); Jones v. Peninsula Motor Club, Inc., 558 So.2d 517 (Fla. 1st DCA 1990) (holding that the clerk of the circuit court has a ministerial duty to accept a notice of appeal without payment of the filing fee and that the “notice is not to be returned to the appellant”); Wemett v. State, 536 So.2d 349 (Fla. 1st DCA 1988) (holding that the clerk of the circuit could not reject a notice of appeal on the ground that the notice submitted was a photocopy which lacked an original signature).

In this case, the clerk of the circuit court should have accepted the timely electronically filed notice of appeal and then requested that the state take corrective action. Accordingly, we find that the notice of appeal was timely, having been electronically filed within the jurisdictional time limit of rule 9.140(c)(3).

MOTION TO DISMISS DENIED.

WOLF, PADOVANO, and RAY, JJ„ concur.


text:
    Marie MacCLATCHEY, Appellant, v. HCA HEALTH SERVICES OF FLORIDA, INC., a Florida Corporation d/b/a St. Lucie Medical Center, Appellee.
    No. 4D13-1744.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2014.

      Margaret M. Bichler of Lytal, Reiter, Smith, Ivey & Fronrath, LLP, West Palm Beach, for appellant.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellee.
   PER CURIAM.

Marie MacClatchey appeals the trial court’s order granting final summary judgment in her negligence action in favor of appellee, HCA Health Services of Florida, Inc., d/b/a St. Lucie Medical Center (“hospital”).

MacClatchey raises the following issues on appeal: (1) construing the evidence and reasonable inferences therefrom in her favor, there were genuine issues of material fact as to whether the hospital’s negligence could be inferred under the doctrine of res ipsa loquitur; and (2) there was outstanding discovery that was material to the issue of the hospital’s negligence. Because we reverse as to the first issue, we do not discuss the second issue.

MacClatchey initiated a negligence action against the hospital, seeking damages and alleging that the hospital breached its duty of reasonable care when a framed piece of artwork fell from the wall in a patient’s room and struck her on the head.

MacClatchey was visiting her husband, who was a patient at the hospital and was undergoing a procedure. According to MacClatchey, as she was sitting in a chair in her husband’s patient room having a conversation with a nurse, a framed piece of artwork fell from the wall behind Mac-Clatchey and struck her on the head. When it fell, glass from the picture shattered onto the floor around her. After the incident, an employee who came to clean up the shattered glass showed MaeClat-chey the broken hooks on the wall where the picture had been hanging.

The hospital’s motion for final summary judgment alleged that there were no genuine issues of material fact with regards to the hospital having actual or constructive knowledge of an alleged dangerous condition, and that res ipsa loquitur did not apply because MacClatchey could not satisfy either of the essential elements of that doctrine.

On appeal, the granting of a motion for summary judgment is reviewed de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is appropriate only where “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c).

Additionally, in negligence cases, summary judgment procedures are applied with special caution. Dalrymple v. Franzese, 944 So.2d 1240, 1243 (Fla. 4th DCA 2006). “In a negligence case, unless the defendant can show that there was no negligence or that plaintiffs negligence was the sole proximate cause of the injury, courts will not grant summary judgment.” Id. at 1242 (citing Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977)).

The burden is on the moving party to show “conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Id. Moreover, we have further explained:

When a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove his cause of action. Rather, the court’s function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, the nonexistence of a genuine issue of a material fact. If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.

Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004) (emphasis added) (citations omitted).

To prevail on a claim of negligence, a plaintiff must establish that the defendant owed him or her a duty of care, which the defendant breached, and that such breach was the proximate cause of the plaintiffs injuries and resulting damage. Williams v. Davis, 974 So.2d 1052, 1056 (Fla.2007). A property owner owes a duty to invitees to exercise ordinary care in maintaining reasonably safe premises and to warn of any dangerous condition which is known or should be known to the owner. Spaulding v. City of Melbourne, 473 So.2d 226, 227 (Fla. 5th DCA 1985). Where direct proof of negligence is wanting, the doctrine of res ipsa loquitur may apply, though in limited circumstances. See Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339, 1341-2 (Fla.1978).

Res ipsa loquitur is a rule of evidence which affords an injured plaintiff a common sense inference of negligence, provided the following elements are present: (1) “the instrumentality causing his or her injury was under the exclusive control of the defendant,” and (2) “the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.” Id. The Florida Supreme Court has further explained that:

The plaintiff is not required to eliminate with certainty all other possible causes or inferences.... All that is required is evidence from which reasonable persons can say that on the whole it is more likely that there was negligence associated with the cause of the event than that there was not.

McDougald v. Perry, 716 So.2d 783, 786 (Fla.1998) (quoting W. Page Keeton, et. al., Prosser and Keeton on the Law of Torts § 39, at 248 (5th ed. 1984)). Where there exists a genuine issue of material fact, which if resolved in the plaintiffs favor, could permit res ipsa loquitur to apply, summary judgment is premature. See Lauck v. Publix Mkt., Inc., 335 So.2d 589, 590 (Fla. 3d DCA 1976).

In a factually similar case, we held that res ipsa loquitur was applicable and reversed the trial court’s denial of the plaintiffs request for a jury instruction on the doctrine. Nodurft v. Servico Centre Assocs., Ltd., 884 So.2d 395, 398 (Fla. 4th DCA 2004). In Nodurft, the plaintiff alleged that as she was washing her hands in a hotel restroom, a wall-mounted trash receptacle fell from the wall and struck her foot. Id. at 396. Evidence was presented indicating that it was “common knowledge” that the wall-mounted trash receptacles were loose. Id. However, there was also conflicting testimony that there had never been any incident in which a trash receptacle had fallen in the past, and that they were very difficult to remove from the wall. Id. at 396-97. The trial court denied the plaintiffs request for a res ipsa loquitur jury instruction, reasoning that the hotel did not have “exclusive control” over the trash receptacle due to the possibility that someone in the general public could have tampered with it. Id. at 397. On appeal, we disagreed, finding the trial court’s interpretation of res ipsa lo-quitur too narrow. Id. Instead, we explained that “[t]his [was] not a case in which the public has such unfettered access to the instrumentality of the injury that the defendants’ control was so insufficient that it did not warrant giving the case to the jury under a res ipsa loquitur charge.” Id. at 398. In reversing the trial court’s ruling, we held that:

[E]ven though the instrumentality which caused appellant’s injury was in a public place and accessible to. appellant and other members of the public, the [hotel] had “sufficient exclusivity” to rule out the chance that the trash receptacle fell from the wall as a result of the actions of some other agency.

Id.

Likewise, in the instant case, it appears that there is at least a question of fact as to whether the hospital maintained “sufficient exclusivity” of control over the framed picture which was hung in the patient room, just as did the hotel over the wall-mounted trash receptacle in Nodurft,. Although the hospital argues that the picture was not in the hospital’s exclusive control because it was available to countless third parties, including patients and their visitors, the hospital conceded in its own affidavits submitted in support of its summary judgment motion that all patient rooms were routinely maintained, inspected and cleaned, including the wiping down of hard surfaces such as the wall or framed pictures.

Therefore, even though the framed picture which allegedly fell onto MacClat-chey’s head was accessible to her and other members of the public in the patient room, a jury could find that the hospital had “sufficient exclusivity” of control to rule out the chance that the picture fell from the wall as a result of some other agency. Moreover, this case could arguably present a stronger example of “sufficient exclusivity” than that of the Nodurft scenario, in which restroom patrons arguably had more contact and interaction with the trash receptacle on a regular basis than the patients and their guests did with the picture hanging in the hospital room. As such, at the very least, there is a genuine question of material fact as to whether the hospital had “exclusive control” over the picture, which if resolved in MacClatchey’s favor, could permit res ipsa loquitur to apply. Accordingly, summary judgment was inappropriate. See Lauck, 335 So.2d at 590.

With regard to the second element of res ipsa loquitur, that is, that the accident is one which would not ordinarily occur absent negligence on the part of the one in control, MacClatchey argues that a jury could find that as a matter of general knowledge, framed artwork does not fall from walls in the absence of some negligence. MacClatchey’s argument is premised on the theory that an invitee should not be faced with a wall-mounted picture falling from the wall and causing injury any more than a wall-mounted trash receptacle, asserting that both should be hung securely to the wall in order to prevent them from falling and injuring someone.

Although the hospital submitted an affidavit of the nurse who was in the room at the time of the incident to support the assertion that the picture fell from wall only after MacClatchey leaned back in her chair and hit the wall, MacClatchey maintained that this was not the case, and that she had already been sitting down and having a conversation with the nurse when the picture fell on top of her; Furthermore, MacClatchey’s deposition testimony submitted by the hospital. also indicated that the man who came to clean up the shattered glass showed MacClatchey the broken hooks on the wall where the picture was hung, creating a question of fact as to whether the picture fell as a result of the broken hooks, or whether the hooks had simply broken as the picture fell.

Notwithstanding the conflicting descriptions of the incident, as stated above, it is well established that where the evidence is conflicting or could permit different reasonable inferences, it should be submitted to the jury as a question of fact. See Moore, 475 So.2d at 668. Although the hospital argues that the incident could have happened without its negligence, a plaintiff is not required to eliminate with certainty all other possible causes or inferences. This issue is simply a question of fact, the inferences from which must be drawn in favor of the plaintiff on summary judgment. As such, because there is a genuine issue of material fact as to whether the framed picture would have fallen from the wall in the absence of negligence on the part of the hospital, summary judgment was improper.

Therefore, as discussed above, in the context of summary judgment, the sole function of the court is to “determine whether the record conclusively shows that the moving party proved a negative, that is, the nonexistence of a genuine issue of a material fact.” Winston Park, Ltd., 872 So.2d at 418 (internal citations omitted). Here, the hospital has failed to conclusively show such absence of a genuine issue of a material fact regarding either essential element of res ipsa loquitur. As a result, summary judgment was premature. Therefore, we reverse and remand for further proceedings consistent with this holding.

Reversed and remanded.

STEVENSON, TAYLOR and CONNER, JJ., concur.

      . The hospital argues that this case is distinguishable from Nodurft where there was evidence that it was "common knowledge” that the trash receptacles were loose. The Hospital also contends that MacClatchey could not show that the hospital breached its duty of care because no evidence was submitted to show that the hospital had actual or constructive knowledge of any dangerous condition. However, where the elements of res ipsa lo-quitur are established, "actual or constructive notice to defendant of any defect in the instrumentality is immaterial.” Burns v. Otis Elevator Co., 550 So.2d 21, 22 (Fla. 3d DCA 1989) (citing Coaster Amusement Co. v. Smith, 141 Fla. 845, 194 So. 336 (1940)).


text:
    Jovan HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3540.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2014.
    Jovan Howard, Defuniak Springs, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jovan Howard appeals an order summarily denying his “motion to correct the record,” which he filed pursuant to section 901.36(3)(b), Florida Statutes (2003). He sought to correct record documents, relating to his criminal conviction, which erroneously showed an alias, “Gerald Gordon,” that he never used. We reverse the order of denial and direct the trial court on remand to treat the motion as a rule 1.540(a) motion to correct clerical mistakes in the court’s records, and to reconsider it on the merits.

In 2006, Howard was charged by information with burglary of a dwelling, which occurred in August 2003. Blood taken from the crime scene was found to have the same DNA profile as an oral swab taken from Howard, already in state custody. The information later was amended to show Howard also was known as “Gerald Gordon.” Following a jury trial, Howard was found guilty and was sentenced to thirty years in prison as a habitual felony offender, with a fifteen-year mandatory minimum as a prison releasee reoffender. This court affirmed his direct appeal. Howard v. State, 27 So.3d 104 (Fla. 4th DCA 2009), rev. denied, 42 So.3d 799 (Fla.2010).

Relevant to the instant appeal, in August 2010, Howard filed an amended rule 3.850 motion in which he complained that the attorney who represented him at sentencing was ineffective in failing to object, as he had asked her to do, to the State listing “Gerald Gordon” as his alias in its request for fingerprint comparison, to establish he qualified for enhanced sentencing. Record documents indicated that on the date of the offense, law enforcement had made contact with a Gerald Gordon, the pool man at a nearby residence, but apparently did not arrest or charge that individual. The trial court denied the motion based on the State’s response, which explained Howard could not show prejudice because no prior convictions for Gerald Gordon were used to enhance Howard’s sentence. Howard appealed and this court affirmed. Howard v. State, 81 So.3d 432 (Fla. 4th DCA 2012) (Table).

In May 2013, Howard filed the instant “motion to correct the record.” He complained the records in his criminal case contain a false name which he did not use, Gerald Gordon, the name of the individual whom the officer questioned around the time of the offense who was doing work at a nearby home in the same neighborhood. He noted that the original information charged only his name, Jovan Howard, but the State filed an amended information which charged that the burglary was committed by “JOVAN HOWARD a/k/a GERALD GORDON.” The same alias also appears on his judgment, sentence, and uniform commitment to custody, and on the state attorney’s requests for comparison fingerprints, copies of all of which he attached. Also, the disposition sheet showed Gordon’s birthdate, not Howard’s. However, none of the fingerprints compared with his were in Gordon’s name. Howard claimed he did not use Gordon’s name and actually was not also known as Gerald Gordon. He asked the trial court to correct the clerical mistakes, omitting “Gerald Gordon” as an alias on the documents, citing Wells v. State, 796 So.2d 1276 (Fla. 4th DCA 2001) (reversing order denying defendant’s motion to correct name in conviction and sentence to include “Jr.,” holding omission was type of clerical error which might be corrected at any time pursuant to rule 1.540(a), nunc pro tunc). The circuit court denied the motion based on the State’s response, and this appeal followed.

In Wells, the movant was concerned that his criminal record not be attributed to his father. Id. at 1277. This court noted that, in Boggs v. Wainwright, 223 So.2d 316 (Fla.1969), the supreme court had effectively adopted, for use in criminal cases, Florida Rule of Civil Procedure 1.540(a), which provides, “Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders.” In Boggs, the supreme court quoted from a prior opinion in which it had stated, “ ‘That a court of record may, even after the term has expired, correct clerical mistakes in its own judgments and records, nunc pro tunc, and that such corrections generally relate back and take effect as of the date of the judgment, decree, order, writ, or other record so corrected, is well settled.’ ” 223 So.2d at 317 (quoting R.R. Ricou & Sons Co. v. Merwin, 94 Fla. 86, 87, 113 So. 745, 746 (1927)).

This court concluded in Wells that correcting the omission of “Jr.” from a name is the type of clerical error which could be corrected at any time in this manner. Id. at 1277. We pointed out that in DeGale v. Krongold, Bass & Todd, 773 So.2d 630 (Fla. 3d DCA 2000), the Third District found changing a name from “Norman” to “Norma” properly could be done nunc pro tunc because the amendment would not “materially change[ ] the original judgment and order.” 773 So.2d at 632 (citing St. Moritz Hotel v. Daughtry, 249 So.2d 27, 28 (Fla.1971)). Because the requested change would not affect any legal rights and obligations — Wells would remain convicted and sentenced as before, and his fingerprints would remain on the judgment — this court reversed for further proceedings in which the trial court would have to determine whether Wells’s correct name included “Jr.” 796 So.2d at 1278. It seems that likely would require an eviden-tiary hearing.

In its response to Howard’s motion, the State asserted that the information was amended to reflect Howard’s alias and was not a clerical error. It represented that, at Howard’s sentencing, it had introduced certified copies of his prior convictions, along with expert testimony to prove that his fingerprints matched those on certified judgments presented to enhance his sentencing, and had “established that one of defendant’s aliases was Gerald Gordon.” It attached to its response the transcript of a hearing held prior to Howard’s sentencing and the fingerprint comparisons for other aliases. The transcript reflected that an expert testified that Howard’s prints matched those from convictions of “Clinton Seymore, a/k/a Carlton Bernard Harris.” The fingerprint comparisons were for individuals named Carlton Bernard Harris, Carlton B. Harris, Desmond Harris, Jovan Romanne Howard, and Clinton Seymore, a/k/a Carlton Lee Harris. A conviction in the name of Clinton Seymore contains a long list of abases, but none of them are Gerald Gordon. None of the fingerprints which were proved to match Howard’s belonged to anyone named Gerald Gordon.

This court’s order to show cause included a direction for the parties to discuss where in the summary record provided to this court the State established that one of Howard’s aliases was “Gerald Gordon.” But the State merely reiterates that it introduced certified copies of prior convictions in which Howard used that alias, and that it presented the testimony of an expert who compared Howard’s in-court fingerprints with those of Gerald Gordon contained on prior convictions, without explaining where in the summary record this was shown.

As the record provided to this court does not refute Howard’s claim, we reverse the order of denial and remand to the circuit court to treat the motion as a rule 1.540(a) motion and reconsider it on the merits.

Reversed and Remanded for further proceedings.

TAYLOR, LEVINE and KLINGENSMITH, JJ., concur.

      . Section 901.36, Florida Statutes (2003), makes it a crime “for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in any way, to the law enforcement officer or any county jail personnel." § 901.36(1). When someone has been sentenced for violating this section, “The sentencing court may issue such orders as are necessary to correct any public record because it contains a false name or other false identification information given in violation of this section.” § 901.36(3)(b). Howard did not establish he had been found guilty of giving a false name, so this provision would not be the appropriate vehicle to correct the documents which he claims are erroneous.

      . He attached to his motion a copy of the responding officer’s event report. The report indicated Mark Jarvis reported the burglary of his mother’s home. Jarvis told the officer he had seen a suspicious black male at a nearby home, so the officer went there and contacted Gerald Gordon. Gordon’s story, that he was at that residence working on the pool and tiki hut for the past six months, was verified. The officer mentioned there was no indication of cuts on Gordon’s hands, nor visible signs of blood. The officer's event report included information on Gordon, including his date of birth, home address, phone number, and physical description.


author: ROTHENBERG, J.

text:
    SUNSHINE GASOLINE DISTRIBUTORS, INC., Appellant, v. BISCAYNE ENTERPRISES, INC., et al., Appellees.
    Nos. 3D13-2326, 3D13-2690.
    District Court of Appeal of Florida, Third District.
    June 11, 2014.
    Kula & Samson, LLP, and Elliot B. Kula, Daniel M. Samson, and W. Aaron Daniel, Miami; and The Blumstein Law Firm, and Mark Blumstein, Aventura, for appellant.
    Daniels Kashtan, and Scott D. Kravetz, Coral Gables, for appellee Biscayne Enterprises, Inc.
    Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.
   ON MOTION FOR CLARIFICATION

ROTHENBERG, J.

We grant the appellant’s motion for clarification, withdraw our opinion filed on March 26, 2014, and substitute the following opinion in its stead.

These consolidated appeals come to us upon the trial court’s partial final judgment in favor of appellee Biscayne Enterprises, Inc. (“Biscayne”) on its eviction action against Sunshine Gasoline Distributors, Inc. (“Sunshine”) and for rental payment disbursals related to that order. Sunshine argues that the language in the lease is ambiguous and that the trial court erred in entering final summary judgment on that basis. We disagree, and therefore affirm.

Biscayne and BP Products of North America, Inc. (“BP”) entered into a lease, whereby Biscayne leased its real property to BP for the purpose of operating a gas station. In the lease, Biscayne and BP agreed to an initial five-year lease term with the option of seven additional five-year lease extensions as follows:

3. Extension Options, (a) Lessee shall have the option of extending this Lease for seven (7) additional successive periods of five (5) years each, subject to the written approval of Lessor, upon the same terms and conditions as set forth herein. The rental to be paid by Lessee during the extension period or periods shall be as set forth in the Rent Schedule annexed hereto and made a part hereof.
(b) At least ninety (90) days prior to the expiration of the then current period, Lessee shall provide Lessor written notice of Lessee’s election to exercise or not to exercise the extension option. If Lessee does not provide to Lessor such written notice, Lessor shall provide Lessee written notification advising Lessee that notice of Lessee’s election has not been received. Lessee’s option of extending this Lease shall remain in full force and effect for a period of thirty (30) days following receipt by Lessee of Lessor’s notification. It is the intention of Lessor and Lessee to avoid forfeiture of Lessee’s right to exercise its extension options by reason of any failure to provide timely notice to Lessor. The sending of notice exercising such extension option shall constitute the renewal and extension of this Lease in accordance with the terms of such renewal option so exercised, without the necessity of the execution of a separate renewal lease.

(emphasis added). Soon after the lease began, Biscayne and BP adopted a modification to the lease (“First Modification”), which altered the renewal requirements. The First Modification provided:

2. Paragraph 3. Extension Options., shall be modified to include subpara-graph (c), which shall read as follows:
(c) “The parties acknowledge and agree that any extension period as provided in paragraph 3., shall, in order to be binding upon the parties, require written approval of Lessor, which approval shall be within the sole discretion of Lessor. The parties further agree that the purpose of subparagraphs (a) and (b) hereof serve to provide the parties with an efficient mechanism for extension of the Lease if desired by both Lessor and Lessee.”
6. In the event of a conflict between the terms of the Lease and this First Modification, the terms of this First Modification shall prevail.

(emphasis added).

After seven years, BP assigned its full rights and interests in the leased property to Sunshine, and Sunshine took possession of the property subject to the terms of the lease and the First Modification. Near the expiration of the remaining term of its lease, Sunshine contacted Biscayne seeking an additional five-year extension, but Biscayne refused to renew the lease. Sunshine claimed it had an absolute right to renew based on the terms of the contract, and filed for declaratory relief adjudging its absolute right to remain on the property. Meanwhile, Biscayne filed an eviction action, claiming that the clear and unambiguous terms of the contract gave it full discretion to refuse the lease extension. The cases were consolidated, the trial court granted summary judgment in favor of Biscayne regarding the eviction, and this appeal followed.

“The issue in this case ... concerns a matter of contract interpretation, which is a question of law subject to de novo review.” Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla.2013). However, “[w]here the terms of a contract are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document.” Crawford v. Barker, 64 So.3d 1246, 1255 (Fla.2011).

We agree with the trial court that the terms of the lease and the First Modification are abundantly clear and unambiguous, and that Sunshine’s option to renew the lease is conditioned on Biscayne’s written approval, which can be withheld for any reason. The renewal provisions in this lease could not be any clearer. However, if there was ever any doubt as to the meaning of the lease, the First Modification of the agreement resolved that doubt in Biscayne’s favor. The First Modification added subsection (c) to the lease renewal provisions, which states that a renewal “shall ... require written approval of Lessor, which approval shall be within the sole discretion of Lessor.” (emphasis added). And if that term was not clear enough, subsection (c) also specifically clarified the parties’ intentions in the original lease: “The parties further agree that the purpose of subparagraphs (a) and (b) hereof serve to provide the parties with an efficient mechanism for extension of the Lease if desired by both Lessor and Lessee.” (emphasis added).

Based on the clear language in the lease and the First Modification, we find that the trial court correctly entered judgment in favor of Biscayne on its eviction action, and therefore properly disbursed the rental payments to Biscayne. Sunshine did not have an absolute right to renew its lease; Sunshine’s lease was limited by Biscayne’s agreement to approve the renewal; and Biscayne’s approval of the lease renewal was within its sole discretion. Sunshine’s claimed right to renew the lease under the terms of the contract or under the duty of good faith and fair dealing is incorrect as a matter of law. This opinion shall have no effect on Sunshine’s ongoing claims regarding Biscayne’s alleged breach of the non-compete covenant elsewhere in the lease.

Affirmed.

      . We recognize that the term "sole discretion” in some contracts can impose a duty of good faith and fair dealing despite the ostensibly absolute grant of authority in the contract language. E.g., Sepe v. City of Safety Harbor, 761 So.2d 1182, 1185 (Fla. 2d DCA 2000); Hyman v. Ocean Optique Distribs., Inc., 734 So.2d 546, 547-48 (Fla. 3d DCA 1999). The duty of good faith, however, is imposed in these instances only to protect the reasonable expectations of the parties to the contract when a broad range of authority is reposed in one of those parties. See Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1097-98 (Fla. 1st DCA 1999) (imposing a duty of good faith and fair dealing where the contract provided for an unspecified quantity of commodities to be shipped by one of the parties at the other party’s discretion). Where, as here, a contract simply provides a binary choice — to renew the lease or not — the duty of good faith and fair dealing is unnecessary to protect the parties’ interests, particularly when the lease terms make clear that the renewal provisions are simply to provide "an efficient mechanism for extension of the Lease if desired by both Lessor and Lessee.” (emphasis added). Contrary to Sunshine's assertion, imposing a duty of good faith and fair dealing in this instance would frustrate the parties’ expectations, not protect them. The term "sole discretion,” in this instance, simply means that both parties have the choice whether to renew the contract for any reason.