source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2151.
    District Court of Appeal of Florida, Third District.
    April 30, 2014.
    Michael Brown, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, SALTER, and LOGUE, JJ.
   PER CURIAM.

We affirm the order denying Michael Brown’s petition for writ of habeas corpus without prejudice to him refiling it in the proper venue and in the proper form. See Stokes v. State, 3 So.3d 425 (Fla. 3d DCA 2009); Cooper v. State, 970 So.2d 368 (Fla. 3d DCA 2007).


text:
    Therese CANO n/k/a Therese Masters, Appellant/Cross-Appellee v. Alejandro CANO, Appellee/Cross-Appellant.
    No. 3D13-1897.
    District Court of Appeal of Florida, Third District.
    May 7, 2014.
    Rehearing Denied July 7, 2014.
    Karen J. Haas, for appellant/cross-ap-pellee.
    Restani, Dittmar & Hauser and Helen Ann Hauser, for appellee/cross-appellant.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   PER CURIAM.

James H. Sullivan, III (Gainesville), for Home School Legal Defense Association, as amicus curiae.

Therese Cano n/k/a Therese Masters (the “mother”) appeals from a supplemental final judgment on petition for modification of parenting plan, arguing that the trial court abused its discretion in ordering the children to attend public school. We agree and reverse solely on that ground.

The mother is correct that the father did not seek a modification of the final judgment of dissolution to provide that the children attend public school. Indeed, in his petition for modification, the father requested “that the court modify the time-sharing and allow the Father to have the majority of the timesharing with the children in Miami, Florida.” As such, it is undisputed that the father’s petition did not request that the children attend public school rather than continue with homeschooling.

“[T]he general rule is that a court cannot determine ‘matters not noticed for hearing and not the subject of appropriate pleadings.’” Hart v. Hart, 458 So.2d 815, 816 (Fla. 4th DCA 1984) (quoting Fickle v. Adkins, 394 So.2d 461, 462 (Fla. 3d DCA 1981)). To grant unrequested relief is an abuse of discretion. Abbott v. Abbott, 98 So.3d 616 (Fla. 2d DCA 2012).

In this case, neither party was advised that the hearing in question would result in a permanent determination involving the children’s schooling. Accordingly, we reverse the order in question and remand with directions to the trial court to conduct a final hearing after due notice on the issues pertaining to the education of the children in accordance with Florida’s shared responsibility law.

REVERSED AND REMANDED.

      . Because we are remanding for a new trial, the father, Alejandro Cano’s cross-appeal is moot.

      . Nothing in this opinion shall be construed as permitting the removal of the children from public school pending the trial court's entry of a final order.


text:
    Anthony VAUGHAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1684.
    District Court of Appeal of Florida, First District.
    May 13, 2014.
    Rehearing Denied June 25, 2014.
    Anthony Vaughan, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROWE, SWANSON, and MAKAR, JJ., concur.


author: SUAREZ, J.

text:
    Baxter TISDALE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D14-219.
    District Court of Appeal of Florida, Third District.
    May 14, 2014.
    Rehearing Denied July 11, 2014.

      Baxter Tisdale, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before WELLS, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Baxter Tisdale seeks a belated appeal of his conviction and sentence. We conclude that Tisdale’s petition is facially insufficient. Tisdale has failed to show that he is entitled to receive a belated appeal because he has not specifically alleged that he timely requested counsel to file an appeal or even advised trial counsel that an appeal had been filed, so that trial counsel could file a motion for appointment of appellate counsel. Therefore, the petition is denied without prejudice to Tisdale filing a facially sufficient petition. State v. Trowell, 739 So.2d 77 (Fla.1999).


text:
    Danny O. DAVIS, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D14-1183.
    District Court of Appeal of Florida, First District.
    May 14, 2014.
    Rehearing Denied June 25, 2014.
    Danny 0. Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

For the third time in the past 18 months, Danny 0. Davis seeks to present a claim of ineffective assistance of appellate counsel. His first petition was denied on the merits by this court in April 2013. His second petition was dismissed on the authority of Florida Rule of Appellate Procedure 9.141(d)(6)(C), as impermissibly successive in January 2014. The petition now before the court was filed less than two months later, again raising claims that Davis was denied the effective assistance of appellate counsel in his direct appeal. To the extent this petition presents any new grounds, petitioner’s failure to raise them in his first petition the court denied on the merits amounts to an abuse of procedure. Accordingly, as we did with petitioner’s second petition, we dismiss the petition now before us as impermissibly successive.

In addition, because the court’s records reflected that since the disposition of his direct appeal, Davis has appeared as a pro se appellant or petitioner in at least 11 cases arising from the same lower tribunal proceeding, we directed him to show cause why sanctions should not be imposed upon him, including but not limited to a prohibition on any further pro se filings in this tribunal. Having considered petitioner’s response to this order, we conclude that sanctions are warranted, but that the appropriate restriction at this point is to prohibit Davis from filing any further pro se petitions or pleadings, however denominated, raising claims concerning the effectiveness of his appellate counsel on direct appeal in case number 1D10-2382. Accordingly, the clerk is directed to henceforth reject any such filings unless signed by a member in good standing of the Florida Bar. Petitioner is cautioned that the filing of any further petitions or pleadings of any other sort determined by the court to be frivolous, malicious, or impermissibly successive, may result in the imposition of additional, broader sanctions.

PETITION DISMISSED and SANCTION IMPOSED.

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


author: BERGER, J.

text:
    Marjorie MATHIS and William Hershel Mathis, Appellants/Cross-Appellees, v. Joseph D. COOK, etc., et al., Appellees/Cross-Appellants.
    No. 5D13-457.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2014.
    Certification to S.Ct. Denied June 17, 2014.
    Shanta Matthews, of Daniel L. Hightower, P.A., Ocala, for Appellants/Cross-Ap-pellees.
    Derek J. Angelí, of O’Connor & O’Con-nor, LLC, Winter Park, for Appel-lees/Cross-Appellants, John Cook and Joseph D. Cook.
    Frank A. Miller and Susanne M. Suiter, of Caglianone, Miller & Lao, P.A., Brooks-ville, for Appellee/Cross-Appellant, Quality Cleaning, Inc.
   BERGER, J.

Marjorie Mathis and her husband, William Mathis, plaintiffs below, sued Joseph D. Cook, John Cook and Quality Cleaning, Inc., in negligence for injuries Marjorie sustained when she slipped and fell on chemicals used to clean the floor at the Walgreens where she worked. After the jury returned verdicts in favor of the defendants, concluding the Cooks were not negligent, the trial court entered final judgment in favor of the Cooks. John Cook then moved to tax his attorney’s fees on the basis of two unaccepted proposals for settlement. The trial court denied his motion.

This case involves the Mathises’ appeal of the final judgment and John Cook’s cross-appeal of the order denying attorney’s fees. Of the numerous issues raised by the parties, only the cross-appeal merits discussion. In it, John Cook argues that the trial court erred when it determined that the proposals for settlement he served on the Mathises were ambiguous and unenforceable. We agree and reverse.

John Cook served separate proposals for settlement on both Marjorie and William Mathis. Each proposal specifically stated that it was being made on behalf of John Cook, and that the only known condition associated with acceptance of the proposal was the execution of an attached release, which released not only John Cook, but also Joseph Cook and Quality Cleaning. The following, relevant language was included in Marjorie’s release:

The undersigned, MARJORIE MATHIS, hereinafter the Releasor, for and in consideration of the sum of TWENTY ONE THOUSAND AND NO/lOO DOLLARS ($21,000), does, for herself and her heirs, executors, administrators and assigns, hereby completely and fully release and discharge, JOHN COOK, his heirs, agents, servants, representatives, administrators and assigns, JOSEPH COOK, his heirs, agents, servants, representatives, administrators and assigns, and QUALITY CLEANING, INC., and its employees, agents, servants, representatives, administrators, successors and assigns, hereinafter the Releasees, of and from any obligation, liability or responsibility arising out of the claim and/or action set forth IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR MARION COUNTY, FLORIDA, CASE NO. 09-5209-CA-B, which arose out of an incident that occurred on or about May 20, 2007.
It is understood and agreed that this settlement is in full compromise of a disputed claim, and that neither this release nor the payment pursuant to this release shall be construed as an admission of liability.
Following receipt of settlement funds and the execution of this release and settlement agreement, counsel for the Plaintiff has, or will, in the immediate future, deliver to counsel for the Defendants an executed dismissal dropping the Defendant as a party to the pending action with prejudice. The Plaintiff has authorized Plaintiffs counsel to execute the dismissal on their behalf and hereby authorizes counsel for the Defendants to file the dismissal with the court and enter it as a matter of record. The court shall retain jurisdiction as to any remaining parties and for enforcing the terms of this settlement.
The parties recognize and acknowledge that the terms of this release are not designed nor intended to resolve all pending claims. The terms of this release are limited to resolve and release all pending claims which exist as to JOHN COOK, his heirs, agents, servants, representatives, administrators and assigns, JOSEPH COOK, his heirs, agents, servants, representatives, administrators and assigns, and QUALITY CLEANING, INC., and its employees, agents, servants, representatives, administrators, successors and assigns. Any and all claims which have been made, or which may exist, as to any other person, corporation, partnership or other legal entity shall not be compromised or extinguished by the terms of this release.

The release directed to William was the same in all respects, except for his name and the amount of money he was supposed to receive to settle the case.

John Cook argues that the proposals for settlement were not ambiguous because they specifically referenced and incorporated the attached releases, which required, as a condition of acceptance, that the Mathises release the two codefendants. The Mathises, on the other hand, contend that the proposals were ambiguous because the language in the body of the proposal stated that John Cook would be released if the releases were signed, whereas the releases attached to the proposals stated that all three Defendants would be released if they agreed to the proposal. The Mathises assert that this created an ambiguity and precluded entry of an award of fees in John Cook’s favor. We disagree.

An order granting or denying fees based on a proposal for settlement is reviewed de novo. Sparklin v. S. Indus. Assocs., Inc., 960 So.2d 895, 897 (Fla. 5th DCA 2007).

“Section 768.79, Florida Statutes ... provides a sanction against a party who unreasonably rejects a settlement offer.” Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003). That provision provides, in relevant part:

(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award....

§ 768.79(1), Fla. Stat. (2012). Florida Rule of Civil Procedure 1.442 implements section 768.79 and requires that a proposal for settlement:

(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;
(B) state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F);
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;
(E) state with particularity the amount proposed to settle a claim for punitive damages, if any;
(F) state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim; and
(G) include a certificate of service in the form required by rule 1.080.

Fla. R. Civ. P. 1.442(c)(2).

In interpreting rule 1.442, the Florida Supreme Court has recognized that it may be impossible to eliminate all ambiguity from proposals for settlement. State Farm Mut. Auto. Ins. Co. v. Nichols, 982 So.2d 1067, 1079 (Fla.2006). Rather than eliminating all ambiguity, the rule only requires “that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” Id. However, if “ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.” Id.

We have previously held that proposals for settlement made by one plaintiff on separate defendants, conditioned on the dismissal of both defendants, were not ambiguous. See Health First, Inc. v. Cataldo, 92 So.3d 859, 871 (Fla. 5th DCA 2012) (where interests of the defendants were coextensive, offer of judgment not invalidated because of plaintiffs promise to release remaining defendants as a non-monetary term of the settlement); see also Andrews v. Frey, 66 So.3d 376, 378-79 (Fla. 5th DCA 2011) (where defendants’ liability is coextensive, one defendant’s proposal to settle plaintiffs negligence and vicarious liability action against two defendants was valid for purposes of defendant’s entitlement to attorney’s fees and costs under the offer of judgment statute and rule, even though proposal conditioned acceptance on release of claims against defendant who was not an offeror under the proposal). But see Duplantis v. Brock Specialty Servs., Ltd., 85 So.3d 1206, 1209 (Fla. 5th DCA 2012)(where vicarious liability is contested, plaintiff is entitled to separate offers from each defendant so that plaintiff may independently and intelligently assess and evaluate each offer).

Here, John Cook’s proposals were sufficiently clear to allow the Mathises to make an informed decision without needing additional clarification. The proposals clearly stated that John Cook was making the offer and, as a condition of settlement, William and Marjorie were required to release the other defendants. The releases also clearly identified the rights that William and Marjorie would be giving up if they agreed to the proposal for settlement. The fact that the proposals only stated that they were made on behalf of John, but the releases indicated that all defendants would be released if the Mathises agreed to the proposals, did not create an ambiguity or transform the separate offers into undifferentiated joint offers. See Cataldo, 92 So.3d at 871. Accordingly, we conclude that John Cook’s proposals for settlement complied with section 768.79(1), Florida Statutes, and Florida Rule of Civil Procedure 1.442, and are enforceable. We therefore reverse the order of the trial court denying John Cook’s motion for attorney’s fees and remand for further proceedings consistent with this opinion. In all other respects, we affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

LAWSON and COHEN, JJ., concur.

      . Walgreens contracted with Quality Cleaning, Inc. for the floor cleaning, and Quality contracted with Joseph and John Cook to carry out the cleaning job. Prior to trial, the parties stipulated and agreed that Quality was legally responsible for any negligence on the part of the Cooks that harmed Marjorie Mathis.

      . There are typographical errors in the release; however, these errors do not create an ambiguity. Rather, it is apparent from reading the release that in order to settle the matter with John, Marjorie and William would each be required to release John, Joseph, and Quality if they chose to accept John's proposal.

      . During oral argument, counsel for the Mathises conceded that Duplantis did not apply. We agree with this assessment. Although the offers in both cases were made at a time when vicarious liability was contested, here the offer was made by the active tortfea-sor, whereas in Duplantis, the offer was made by the vicariously liable tortfeasor. 85 So.3d at 1207. This distinction is significant. When an offer is made by an active tortfeasor conditioned on the release of the vicariously liable tortfeasor, the plaintiff is not put in a position of foregoing a valid but uncompensated claim against the vicariously liable tort-feasor because the claims are coextensive. This is not the case when the offer is made by the vicariously liable tortfeasor, conditioned on the release of the active tortfeasor, when vicarious liability is contested.


author: LOGUE, J.

text:
    Jose I. SANCHEZ, Appellant, v. Ruth E. SUASTI, Appellee.
    No. 3D13-1402.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.

      Sallato & Associates, P.A., and Maria T. Sallato, Miami, for appellant.
    Ruth E. Suasti, in proper person.
    Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
   LOGUE, J.

Jose I. Sanchez, the father, appeals the trial court’s denial of his petition for the return of his minor children to Brazil under the Hague Convention on the Civil Aspects of International Child Abduction. While acknowledging that the mother, Ruth E. Suasti, unilaterally removed the children from Brazil, the trial court decided that the father lacked the necessary “rights of custody” under the Convention to be entitled to have the children returned. We disagree with the trial court. A Brazilian court has ruled that the father has the right to prohibit the mother from changing the children’s country of residence. Such a right rises to the level of “rights of custody” under the Hague Convention. Accordingly, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

The mother and father were married in Ecuador in 2001 and shortly afterward moved to Brazil. The father became a citizen of Brazil while the mother remained a citizen of Ecuador. The couple had two daughters, one who is currently eleven years old and one who is currently seven, both born in Brazil and citizens of Brazil.

The mother and father later divorced. As part of the separation, they entered into an agreement resolving issues of child custody, child support, and alimony; Under the separation agreement, which was approved by a Brazilian family court, the mother had custody of the children subject to a visitation schedule for the father. This visitation schedule permitted the father to pick up the children one day a week and return them the same day after ten hours of time together. It also mandated that holidays and school vacations would be shared proportionally. In addition, the parties agreed the children would be allowed to travel to Ecuador at least once a year to visit paternal and maternal grandparents. A few years later, the father sought and obtained a modification to the visitation schedule to permit him to pick up the children three days a week.

In 2011, the mother undertook to take the children to Ecuador. The father duly executed a “Standard Authorization Form for Minors or Adolescents Traveling Abroad.” The authorization provided that the mother could travel with the children during a period of time extending for one year, ending in December 2012. The authorization to travel contained the following restriction: “[TJhis document is not an authorization to establish permanent residence abroad.” In January 2012, the mother took the children to Ecuador to visit family members and returned to Brazil. In April 2012, she took the children to Miami, where they have remained ever since.

One month after the mother moved the children to Miami, the father filed a. petition in a Brazilian court for the return of his children. The mother answered the petition. She contended a temporary removal of the children from Brazil was proper because she had sole custody of the children and the travel authorization form permitted her to travel with the children until December 2012. The Brazilian court agreed with the mother and denied the father’s petition. After the travel authorization expired, the father renewed his petition and the court agreed with the father. The Brazilian court then ordered the return of the children. In doing so, the court determined, under Brazilian law, the mother could not change the children’s country of residence without the father’s consent or a court order.

While the Brazilian proceedings were still ongoing, the father filed a petition for the return of his minor children in the trial court below. After considering the pleadings and documentation submitted by the parties, the trial court denied the father’s petition on the basis that the father had no “rights of custody” under the Hague Convention. This appeal followed.

ANALYSIS

“The [Hague] Convention’s central operating feature is the return remedy.” Abbott v. Abbott, 560 U.S. 1, 9, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). If a child under the age of sixteen has been wrongfully removed or retained within the meaning of the Hague Convention, the child must be promptly returned to the child’s country of habitual residence, unless certain exceptions apply. Id. No exceptions are asserted in this appeal. We therefore only address whether the children were wrongfully removed or retained within the meaning of the Convention.

To demonstrate a wrongful removal or retention of a child under the Hague Convention, a petitioner must establish three elements. Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir.2012). First, the petitioner must show the child has been retained in a country outside the child’s country of habitual residence. Id. Second, the wrongful removal must be a violation of the petitioner’s “rights of custody,” which “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Abbott, 560 U.S. 1, 9, 130 S.Ct. 1983 (quoting Hague Convention, art. 5(a)) (emphasis added). These rights arise “by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Hague Convention, art. 3. Finally, the petitioner must demonstrate the rights of custody “were actually being exercised or would have been exercised but for the removal.” Wigley v. Hares, 82 So.3d 932, 936 (Fla. 4th DCA 2011) (citing Hague Convention, art. 3).

The only disputed issue in this regard is whether the father had “rights of custody” under the Hague Convention. The trial court concluded the father merely had “rights of access.” The Hague Convention draws a distinction between a parent’s “rights of custody” and “rights of access.” A parent’s “right of access” is defined as “the right to take a child for a limited period of time to a place other than the child’s habitual residence.” Hague Convention, art. 5. The remedy for the violation of a parent’s right of access does not include the right to force the return of the child. Instead, a court may, for example, “force the custodial parent to pay the travel costs of visitation, or make other provisions for the noncustodial parent to visit his or her child.” Abbott, 560 U.S. at 13, 130 S.Ct. 1983 (internal citation omitted).

In this case, the trial court erred in its determination because it overlooked the Brazilian appellate court ruling that recognized the father’s right to prohibit the mother from changing the children’s country of residence without his consent. We consider that ruling to be dispositive of the issue of the father’s “rights of custody” in light of the holding in Abbott.

In Abbott, the United States Supreme Court held a non-custodial parent’s right to consent before the custodial parent could take the child to another country constituted “rights of custody” under the Hague Convention. Id. at 10, 130 S.Ct. 1983. The couple in Abbott had separated and a Chilean court granted the custodial parent daily care and control of the couple’s minor son, while granting the noncustodial parent visitation rights. Id. at 6, 130 S.Ct. 1983. The non-custodial parent also had the authority to consent before the custodial parent could take the child to another country under Chilean law. In other words, the non-custodial parent had a joint right to determine the child’s country of residence. Id. Despite this right, the custodial parent left Chile and moved the child to the United States without the consent of the non-custodial parent. Id.

When the non-custodial parent petitioned for the return of the child to Chile, the custodial parent argued the non-custodial parent merely had “rights of access” to the child rather than “rights of custody” under the Hague Convention. Id. at 14, 130 S.Ct. 1983. The Supreme Court disagreed, abrogating Croll v. Croll, 229 F.3d 133 (2d Cir.2000), a case relied on by the trial court in this case. In doing so, the Court held a non-custodial parent’s joint right to determine a child’s country of residence constituted “rights of custody” under the Hague Convention. Id. at 10, 130 S.Ct. 1983.

Similarly, in the instant case, the father had a right of custody. This right was recognized by the Brazilian appellate court when it ordered the return of the children and ruled the mother could not change the children’s country of residence without the father’s consent. That order established the father’s “rights of custody” under the Hague Convention. See Hague Convention, art. 3 (stating rights of custody can arise by reason of a judicial decision); see also Cook v. Scott, No. 08-12520, 2008 WL 2947692 (E.D.Mich. July 31, 2008) (holding a father had a right of custody under the Hague Convention, where an English court’s order prohibited the mother from removing the children from England and granted the father visitation rights on alternate Saturdays); David S. v. Zamira, 151 Misc.2d 680, 574 N.Y.S.2d 429, 432 (N.Y.Fam.Ct.1991) (holding a Canadian court’s order giving the non-custodial parent visitation rights and restricting the custodial parent from leaving the country constituted an order granting a right of custody to the non-custodial parent).

Nothing in this opinion should be construed as a comment on any underlying custody claims. Those matters are properly left for a Brazilian court’s determination. See Wigley, 82 So.3d at 936 (“A United States court deciding an abduction claim is empowered ‘to determine only rights under the Convention and not the merits of any underlying child custody claims.’ ” (quoting 42 U.S.C. § 11601(b)(4))). We only conclude the father had “rights of custody” sufficient to trigger a return order under the Hague Convention.

Reversed and remanded.

      . The terms of the Convention are codified in 42 U.S.C. § 11601 et seq. Both the United States and Brazil are signatories.

      . If the petitioner demonstrates a wrongful removal or retention of a child under the Hague Convention, the child must be returned to his or her country of habitual residence unless the respondent can establish one of the following affirmative defenses: (1) the proceeding for the return of the child was commenced more than one year after the removal of the child and the child has become well-settled in his or her new environment; (2) the petitioner consented to or subsequently acquiesced in the removal or retention; (3) there is a grave risk that the return of the child would expose him or her to physical or psychological harm; or (4) the return of the child would not be permitted under the fundamental principles of the requested country relating to the protection of human rights and fundamental freedoms. In re Ahumada Cabrera, 323 F.Supp.2d 1303, 1310 (S.D.Fla.2004). "The Convention also allows courts to decline to order removal if the child objects, if the child has reached a sufficient age and degree of maturity at which it is appropriate to take account of its views.” Abbott, 560 U.S. at 22, 130 S.Ct. 1983 (citation and internal quotation omitted).

      . The non-custodial parent in Abbott had a ne exeat right. Black's Law Dictionary 1131 (9th ed. 2009) states that ne exeat is a Latin phrase meaning “that he not depart” and defines it in family law as “an equitable writ restraining a person from leaving, or removing a child ... from, the jurisdiction.”


author: SALTER, J.

text:
    DIAZ & RUSSELL CORPORATION, et al., Appellants, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 3D13-1764.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.
    Rehearing Denied July 7, 2014.

      Rafael A. Castro, III, for appellants.
    Smith, Thompson, Shaw, Minacci & Colon, and David K. Minacci, Tallahassee, for appellee.
    Before LAGOA, SALTER and SCALES, JJ.
   SALTER, J.

This appeal is taken from a final administrative order determining that the appellants (a licensed general contractor and his company) violated the statutes regulating the practice of architecture in Florida by offering and rendering non-exempt architectural services for a “design-build” project. The issue is strictly a question of law, and it is apparently one of first impression regarding the application of the exemption governing such projects. We reverse the final order and vacate the fine and costs imposed against the appellants.

The pertinent facts were undisputed. The appellant, Mr. Diaz, is a licensed general contractor and president of appellant Diaz & Russell Corporation (D & RC). Mr. Diaz and D & RC are not registered or certified to practice architecture. In 2010, Mr. Diaz submitted a written design-build proposal for a small commercial job. The written proposal did not identify a specific Florida-licensed architect hired by Mr. Diaz to prepare the architectural drawings for the project, but the architect was identified on the drawings prepared and submitted to the municipal building department.

The Board of Architecture and Interior Design (Board) filed a complaint against Mr. Diaz and D & RC for practicing architecture without a certificate of authorization as required by sections 481.219 and 481.223, Florida Statutes (2010). Mr. Diaz and D & RC claimed that their design-build proposal and services were authorized by a specific statutory exemption in section 481.229(3), Florida Statutes (2010):

(3) Notwithstanding the provisions of this part, a general contractor who is certified or registered pursuant to the provisions of chapter 489 is not required to be licensed as an architect when negotiating or performing services under a design-build contract as long as the architectural services offered or rendered in connection with the contract are offered and rendered by an architect licensed in accordance with this chapter.

At the hearing before an administrative law judge, Mr. Diaz and his company were not represented by counsel. The Board introduced as “expert testimony” the testimony of an architect who (a) was a currently-serving and previous member of the Board and (b) was hired by the owner of the project in question after Mr. Diaz and his company were terminated by the owner. The Board member and architect (who is not a licensed general contractor or attorney) offered this testimony:

Q. Is it your understanding that Chapter 481.229, there is an exception for a general contractor to enter into a design build contract?
A. Yes.
Q. Okay. Under that exception, can the general contractor himself offer the architectural services?
A. No.
Q. Okay. In any design build contract must it list the Florida licensed architect that’s going to provide those services?
A. Yes.

The administrative law judge then adopted the architect/witness’s conclusions of law (and those conclusions were in turn approved and adopted by the Board and the Department of Business and Professional Regulation in the Final Order) that “the Florida licensed architect was not identified in the written proposal offering the architectural services” and thus that “the design-build exception is not applicable to the instant case.” Mr. Diaz and D & RC were fined a total of $10,000.00, and costs of $6,867.53 were assessed against them.

Analysis

The requirements of the design-build exemption in section 481.229(3) were satisfied in this case. As the findings of fact correctly determined: Mr. Diaz was a Florida-licensed general contractor and President of D & RC; “Mr. Diaz hired an architect to prepare the architectural drawings for the project;” and “No dispute exists that the written proposal was a design-build contract offering architectural services.” The Board’s position, adopted by the administrative law judge, is that a licensed general contractor issuing a written proposal for a design-build project must identify the specific architect to work on the project at the time the proposal is made, not when the architect to perform the work is employed or assigned by the contractor, or when plans prepared by the architect are submitted to the owner or permitting authorities.

We conclude that the Board’s and administrative law judge’s interpretation of the statute imposes requirements that are not found in the statutory design-build exemption. Though mindful of our obligation on review to afford the Board’s interpretation of the statute “great deference,” Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla.2002), it is also our duty to reverse a conclusion of law based on an erroneous interpretation of a statute. § 120.68(7)(d), Fla. Stat. (2013). Our review of that interpretation is de novo. Parlato v. Secret Oaks Owners Ass’n, 793 So.2d 1158, 1162 (Fla. 1st DCA 2001).

Design-build contracts have been developed for a salutary purpose: an owner enters into a single contract, usually with a general contractor (who in turn employs or enters into a contract with a licensed architect), rather than dual contracts with an architectural firm and a general contractor. The Design-Build Institute of America touts the method:

Design-build is an integrated approach that delivers design and construction services under one contract with a single point of responsibility — and its use is growing rapidly. Owners select design-build to achieve best value while meeting schedule, cost and quality goals.

The statutory exemption in section 481.229(3) recognizes such contracts, but requires that the “design” side of design-build services be provided by a licensed architect. The statute does not explicitly require the contractor to identify an individually-named architect before offering the design-build services. The exemption requires that both the “rendering” and “offering” of architectural services associated with a design-build project be provided by a licensed architect. § 481.229(3). The Board’s construction of the exemption language purports to mandate that, in order to meet the exemption’s requirement that a licensed architect “offer” the architectural services of a design-build project, the identity of the architect must actually be specified in the design-build contract; otherwise the contractor faces civil and criminal liability under section 481.223, Florida Statutes (2010).

However, the exemption expressly authorizes a licensed contractor to “negotiate” a design-build contract. § 481.229(3). The Board’s construction would effectively negate this express authorization. From a practical perspective, for a licensed contractor to “negotiate” a design-build contract with an owner, the contractor is required to make, and receive, offers and counteroffers related to all components of the contract. During such “negotiations,” the scope of the project — and, therefore, the architect performing the project’s design components — -can change such that the identity of the architect ultimately performing the project’s architectural services may not be known at the time the contract is executed. As long as the negotiating contractor is neither offering to render, nor actually rendering, architectural services related to such design-build contracts, the exemption’s requirements are met.

The Board’s interpretation of the exemption statute — requiring the architect to be identified in the contract — is erroneous. Not only does the Board’s interpretation graft a requirement into the exemption not required by the statute’s language, the interpretation also effectively renders meaningless the exemption’s provision expressly authorizing licensed contractors to “negotiate” design-build contracts. See Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (“all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with another.”) (citations omitted). See also Arza v. Fla. Elections Comm’n, 907 So.2d 604, 606 (Fla. 3d DCA 2005) (“It is axiomatic that an agency’s interpretation of a statute that it is charged with administering is to be given great weight and should not be overturned unless clearly erroneous. ‘However, a court need not defer to an agency’s construction or application of a statute if special agency expertise is not required or if the agency’s interpretation conflicts with the plain and ordinary meaning of the statute.’ ”) (citations omitted).

Finally, it bears noting that section 481.2055, Florida Statutes (2013), expressly provides that the Board may, consistent with the requirements of section 120.536, Florida Statutes (2013), promulgate administrative rules to implement the relevant provisions of chapter 481. Given the ubiquity of design-build contracts in Florida, either the legislative, or the formal rule-making, process seems the appropriate forum to develop mandatory disclosure requirements in such contracts. In the absence of explicit amendment or rules imposing such requirements, however, the Board’s interpretation in the present case must be overturned.

Reversed and remanded with directions to vacate the final order, fine, and imposition of costs.

      . D & RC was to construct a partitioning wall in a commercial building in Miami to accommodate a tenant. The total cost was $5,900.00.

      . The Board established that the owner of the building in question terminated Mr. Diaz and D & RC from the project, and that the municipal building department rejected the architectural drawings submitted by the licensed architect hired by Mr. Diaz. Those facts may bear on the competence of the architect hired by Mr. Diaz, but they are not pertinent to the single legal issue presented.

      . Website of Design-Build Institute of America, http://www.dbia.org/Pages/student-academia.aspx (last visited March 20, 2014).

      . This reading is consistent with both section 481.223(l)(a), Florida Statutes (2010), which prohibits a person from knowingly practicing architecture unless the person is an architect, and section 481.203(6), Florida Statutes (2010), which defines architecture as "the rendering or offering to render services in connection with the design and construction of a structure ...." (Emphasis added).

      . See, e.g., 63 PA. Cons.Stat. § 34.15(9) (2013) (“a design-build entity ... may offer design-build services if the architectural services in the design-build process are provided in accordance with the following .... (iv) The contract between the design-build entity and the client shall set forth the name of the architectural firm which will be contractually responsible to the design-build entity for providing architectural services.”); see also Neb. Rev. Stat. § 13-2907(10)(b)-(c) (2013) ("(b) At the time of the design-build offering, the design-builder will furnish to the governing body of the political subdivision a written statement identifying the architect ... who will perform the architectural ... work for the design-build project; (c) The architect ... engaged by the design-builder to perform the architectural ... work with respect to the design-build project ... may not be removed by the design-builder prior to the completion of the project without the written consent of the governing body of the political subdivision ....”); Neb. Rev. Stat. Ann. § 13-2912 (2013) ("A design-build contract ... may be conditioned upon later refinements in scope and price and may permit the political subdivision in agreement with the design-builder ... to make changes in the project without invalidating the contract.”).

      . See, e.g., 68 Ill. Admin. Code tit. 68, § 1150.85(a)(2)(B) (2009) ("At the time of offering services, a written disclosure shall be given to the client by the entity identifying the architect who will be engaged by and is contractually responsible to the entity offering design/build project services.”).


author: GERBER, J.

text:
    Brian S. PIGGOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2704.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

      . In the state's motion for rehearing and/or motion for rehearing en banc and motion for certified question of great public importance, the state argues that the first condition for giving a lesser included offense instruction— that the indictment or information allege all the statutory elements of the permissive lesser included offense — was not met here because its information did not expressly allege that the defendant drove the automobile. According to the state, “one can batter another person with an automobile with the act of driving the automobile (e.g., by slamming the hood or door of a car on the head of a victim of dropping a car from a crane onto a victim).”
      The state did not raise this argument in its answer brief. Thus, the state cannot raise this argument on rehearing. See Flynn v. State, 119 So.3d 468, 471 (Fla. 4th DCA 2013) ("The State did not make this argument in its answer brief. Thus, the argument cannot be raised on rehearing.”).
      However, even if we were to consider the state's argument on its merits, we conclude the argument lacks merit. While we recognize the possibility of a defendant being charged with battery for "slamming the hood or door of a car on the head of a victim” or the more remote possibility of “dropping a car from a crane onto a victim,” our interpretation of the information, when viewed at the time of the charge conference, cannot ignore the undisputed evidence that the defendant was driving the automobile which is alleged to have been the instrument of the alleged aggravated battery with a deadly weapon upon the victim. Moreover, in LaValley, our sister court appears to have concluded that the permissive lesser included offense of reckless driving could be discerned from the following information alleging aggravated assault without using the term “driving”:
      In that [the defendant] ... did commit a Aggravated Assault by an intentional, unlawful threat, by word or act, to do violence to [the victim] coupled with an apparent ability to do so, doing some act which created a well-founded fear ... that such violence was imminent .and did commit said assault with a deadly weapon, to-wit: a Suzuki Samurai motor vehicle, without intent to kill.

        LaValley, 633 So.2d at 1127-28.

   ON THE STATE’S MOTION FOB REHEARING AND/OR MOTION FOR REHEARING EN BANC AND MOTION FOR CERTIFIED QUESTION OF GREAT PUBLIC IMPORTANCE

GERBER, J.

We deny the state’s motion for rehearing and/or motion for rehearing en banc and motion for certified question of great public importance. However, we withdraw our opinion issued April 16, 2014, and substitute the following opinion.

The defendant appeals his conviction for aggravated battery with a deadly weapon, where the state alleged that the defendant struck the victim with an automobile. The defendant argues that the trial court erred in denying his request for a reckless driving instruction as a permissive lesser included offense. We agree with the defendant and reverse.

The state’s information, charging the defendant with aggravated battery with a deadly weapon, alleged that the defendant “did unlawfully and intentionally touch or strike [the victim] against his will with a deadly weapon, to wit: a Kia Sephia four-door automobile.”

At the trial, the victim testified that he was standing in his kitchen when he looked outside and saw the defendant drive up in a car, exit the car, and take a hedge trimmer from his next door neighbor’s driveway. When the victim approached the defendant, the defendant jumped back into the car’s driver’s seat. The victim ran up next to the car’s passenger side mirror, and the defendant began driving away. The defendant’s car swerved and struck the victim’s hip, sending him to the ground. According to the victim, the defendant then “took off, down the street. Almost plowed straight into a van.”

At the charge conference, the defense requested the trial court to instruct the jury on reckless driving as a permissive lesser included offense of aggravated battery with a deadly weapon. The state argued that the instruction was improper because the information charged the defendant with a crime requiring intent, but reckless driving required only willful and wanton disregard for the safety of persons or property.

The trial court denied the defense’s request for a reckless driving instruction, reasoning that “[u]nder the facts and circumstances of this case, I don’t think [that] lesser applies at all.” The trial court instead instructed the jury on aggravated battery with a deadly weapon and the necessary lesser included offense of simple battery. The jury found the defendant guilty of aggravated battery with a deadly weapon as charged in the information.

This appeal followed. The defendant argues that the trial court erred in denying his request for a reckless driving instruction as a permissive lesser included offense of aggravated battery with a deadly weapon when the alleged deadly weapon was an automobile.

We generally review a trial court’s decision on whether to give a requested jury instruction on a permissive lesser offense for an abuse of discretion. See State v. Espinosa, 686 So.2d 1345, 1347 (Fla.1996) (“[T]he giving of an instruction on a lesser offense is a matter of discretion for the trial judge, who must determine whether the charging document and evidence at trial support the giving of the instruction on the lesser offense as a permissive lesser-included offense.”).

However, where the facts are undisputed and the legal determination to be made on appeal is whether an offense is a permissive lesser included offense to the crime charged, our standard of review is de novo. See Khianthalat v. State, 974 So.2d 359, 360 (Fla.2008) (whether the defendant was entitled to a jury instruction as a permissive lesser included offense was a matter involving a legal determination based upon undisputed facts and, therefore, the standard of review was de novo).

Applying de novo review here, we conclude that the trial court erred in denying the defendant’s request for a reckless driving jury instruction as a permissive lesser included offense of aggravated battery with a deadly weapon when the alleged deadly weapon was an automobile.

“A permissive lesser included offense exists when the two offenses appear to be separate on the face of the statutes, but the facts alleged in the accusatory pleadings are such that the lesser included offense cannot help but be perpetrated once the greater offense has been.” Sanders v. State, 944 So.2d 203, 206 (Fla.2006) (quotation marks, brackets, and citation omitted). “Upon request, a trial judge must give a jury instruction on a permissive lesser included offense if the following two conditions are met: (1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements.” Khianthalat, 974 So.2d at 361 (citations and quotation marks omitted).

Here, we conclude that reckless driving is a permissive lesser included offense of aggravated battery with a deadly weapon when the alleged deadly weapon is an automobile. The facts alleged in the information are such that the lesser included offense of reckless driving cannot help but be perpetrated once the greater offense of aggravated battery with a deadly weapon has been committed when the alleged deadly weapon is an automobile. Cf. Wallace v. State, 688 So.2d 429, 429-30 (Fla. 3d DCA 1997) (allegation within an aggravated assault charge that the defendant intentionally drove his car in such a way as to threaten officers was sufficient to include the willful and wanton disregard for the safety of others necessary to establish reckless driving); LaValley v. State, 633 So.2d 1126, 1127 (Fla. 5th DCA 1994) (a charge that one committed an aggravated assault by intentionally driving a vehicle in a threatening manner subsumes the elements of reckless driving).

Further, the two conditions for giving a jury instruction on a permissive lesser included offense were met in this case. As to the first condition, the state’s information alleged all of the statutory elements of the permissive lesser included offense of reckless driving. Specifically, the information alleged that the defendant “did unlawfully and intentionally touch or strike [the victim] against his will with a deadly weapon, to wit: a Kia Sephia four-door automobile,” while reckless driving occurs when a person “drives any vehicle in willful or wanton disregard for the safety of persons or property.” § 316.192(l)(a), Fla. Stat. (2011). Although the two offenses appear to be separate on their face, the charge of aggravated battery with a deadly weapon alleges all of the statutory elements of reckless driving when the alleged deadly weapon is an automobile. Cf. Wallace, 688 So.2d at 429-30; LaValley, 633 So.2d at 1127-28.

As to the second condition, there was evidence adduced at trial establishing the elements of reckless driving. The victim testified that the defendant’s car swerved and struck his hip, sending him to the ground. According to the victim, the defendant then “took off, down the street. Almost plowed straight into a van.” This evidence was sufficient to show that the defendant was driving the car in willful or wanton disregard for the safety of persons or property.

Based on the foregoing, the trial court erred in denying the defendant’s request for a reckless driving instruction as a permissive lesser included offense of aggravated battery with a deadly weapon.

The state argues that any error was harmless. The state points out that the trial court instructed the jury on both aggravated battery with a deadly weapon as charged in the information and the necessary lesser included offense of simple battery. According to the state, because the jury found the defendant guilty of aggravated battery with a deadly weapon, but did not find the defendant guilty of simple battery, which was one degree removed from the crime charged, no reason exists to believe that the jury would have found the defendant guilty of only reckless driving, which was two degrees removed from the crime charged.

We disagree with the state. We recognize that “when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.” Pena v. State, 901 So.2d 781, 787 (Fla.2005). However, we know of no authority holding that when a jury fails to find the defendant guilty of a crime one degree removed from the crime for which the defendant is convicted, the error to instruct the jury on a crime two degrees removed from the crime charged is per se harmless, as the state appears to contend.

Thus, we must apply a harmless error analysis. Under the harmless error analysis, “[i]f the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). Applying a harmless error analysis here, we cannot say beyond a reasonable doubt that the error in not instructing the jury on reckless driving as a lesser included offense of aggravated assault with a deadly weapon did not affect the verdict. Both the crime of aggravated battery with a deadly weapon and the crime of simple battery require the state to prove that the defendant intentionally touched or struck the victim against the victim’s will or that the defendant intentionally caused bodily harm to the victim. See § 784.045(1)(a)2., Fla. Stat. (2011) (“A person commits aggravated battery who, in committing battery ... [u]ses a deadly weapon.”); § 784.03(l)(a), Fla. Stat. (2011) (“The offense of battery occurs when a person ... [ajctually and intentionally touches or strikes another person against the will of the other; or ... [i Intentionally causes bodily harm to another person.”) (emphasis added). However, the crime of reckless driving does not require the state to prove any such intent. Instead, the crime of reckless driving requires the state to prove that the defendant merely drove a vehicle “in willful or wanton disregard for the safety of persons or property.” § 316.192(l)(a), Fla. Stat. (2011).

Here, the jury could have found the state did not prove that the defendant intentionally touched or struck the victim against his will as alleged in the information. Instead, the jury could have found that the defendant merely drove his vehicle “in willful or wanton disregard for the safety of persons or property.” If the jury would have made that finding, and if the trial court had instructed the jury on reckless driving, then the jury could have found the defendant guilty of only reckless driving as a permissive lesser included offense of aggravated battery with a deadly weapon. Because of that possibility, the court’s error in denying the defendant’s request for a reckless driving instruction as a permissive lesser included offense of aggravated battery with a deadly weapon was not harmless. Cf. McKiver v. State, 55 So.3d 646, 650 (Fla. 1st DCA 2011) (appellate court could not say beyond a reasonable doubt that the error in not instructing on a permissive lesser included offense two degrees removed from the crime charged did not affect the verdict).

In sum, the trial court erred in denying the defendant’s request for a reckless driving instruction as a permissive lesser included offense of aggravated battery with a deadly weapon when the alleged deadly weapon was an automobile. The error was not harmless. Based on the foregoing, we reverse the defendant’s conviction for aggravated battery with a deadly weapon. We remand for a new trial at which the trial court shall instruct the jury on reckless driving as a permissive lesser included offense of aggravated battery with a deadly weapon if so requested.

Reversed and remanded for a new trial.

STEVENSON and MAY, JJ„ concur.


text:
    Juan MENDEZ, JR., as guardian of Juan Mendez, Sr., Appellant, v. HAMPTON COURT NURSING CENTER, LLC, Appellee.
    No. 3D13-1855.
    District Court of Appeal of Florida, Third District.
    June 4, 2014.

      Law Offices of Charles M-P George and Charles M-P George; Wadsworth Huott, LLP, and Christopher Wadsworth and Raymond Dieppa, Miami; FL; U.S.A. for appellant.
    Quintairos, Prieto Wood & Boyer, P.A., and Thomas A. Valdez, Tampa; Deborah L. Moskowitz, Orlando; Goldsmith & Grout, P.A., and Karen L. Goldsmith and Jonathan S. Grout, Amicus Curiae, Winter Park, for appellee.
    Before WELLS, LAGOA, and LOGUE, JJ.
   LOGUE, J.

Juan Mendez, Jr. (“the son”) appeals a trial court order compelling arbitration of a claim he filed on behalf of Juan Mendez, Sr. (“the father”) against Hampton Court Nursing Center, LLC (“the facility”), for alleged negligence in the care of the father while he resided at the facility. Because the father was the intended third-party beneficiary of the contract that contained the arbitration clause, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 13, 2009, the father was admitted to the facility. On the day the father was admitted, a doctor employed by the facility determined the father lacked the capacity to give informed consent or make medical decisions. The admission forms included an agreement for care (“the agreement”). The agreement is the contract under which the facility provided the father with the various residential, nursing, and other services associated with residency at a nursing home facility. The agreement contained a broad arbitration clause, as follows:

Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration in accordance with the provisions of the Florida Arbitration Code found at Chapter 682, Florida Statutes, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Although the son was not acting under a power of attorney at that time, he signed the agreement on a signature line indicating “signature of resident’s representative.” Below that signature block, the agreement included the following language:

In the event that the resident has appointed a representative to control his/ her assets, and even if such appointment has not been made through a legal document, the resident’s representative shall be fully bound to the extent of those assets to the terms of this Agreement.

The father resided at the facility for approximately four years, from early 2009 until his death in late 2013. His residency included years before and after the incident giving rise to this lawsuit. In July 2011, while residing at the facility, the father’s eye became infected and had to be removed. The father subsequently gave the son power of attorney. In December 2012, the son brought suit against the facility on behalf of the father. The facility moved to compel arbitration on the basis of the arbitration clause in the agreement. The son asserted that the arbitration clause was not binding on the father, who was not a party to the agreement. The trial court compelled arbitration and this appeal follows.

ANALYSIS

“The Florida Supreme Court has held that ‘arbitration is a favored means of dispute resolution.’ ” Prudential Sec., Inc. v. Katz, 807 So.2d 173, 174 (Fla. 3d DCA 2002) (quoting Roe v. Amica Mut. Ins. Co., 583 So.2d 279, 281 (Fla.1988)). In Florida, “[arbitration provisions are generally favored by the courts.” Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005) (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)). Where possible, courts “should resolve all doubts in favor of arbitration rather than against it.” Katz, 807 So.2d at 174 (citing Ronbeck Const. Co., Inc. v. Savanna Club Corp., 592 So.2d 344, 346 (Fla. 4th DCA 1992)).

It is well-established that “[arbitration clauses in contracts are binding on thrd party beneficiaries.” Orion Ins. Co. v. Magnetic Imaging Sys. I, 696 So.2d 475, 478 (Fla. 3d DCA 1997) (citing Terminix Int’l Co., LP v. Ponzio, 693 So.2d 104, 109 (Fla. 5th DCA 1997)); see also Martha A. Gottfried, Inc. v. Paulette Koch Real Estate, 778 So.2d 1089, 1090 (Fla. 4th DCA 2001); Zac Smith & Co., Inc. v. Moonspinner Condo. Ass’n, Inc., 472 So.2d 1324, 1325 (Fla. 1st DCA 1985). This is true even if the tMrd-party beneficiary did not sign the contract containing the arbitration agreement: “a nonsignatory to an arbitration agreement may be bound to arbitrate if the nonsignatory has received something more than an incidental or consequential benefit of the contract, or if the nonsigna-tory is specifically the intended third-party beneficiary of the contract.” Germann v. Age Inst. of Fla., Inc., 912 So.2d 590, 592 (Fla. 2d DCA 2005).

Here, the father is not merely the incidental beneficiary of the agreement, he is the intended third-party beneficiary of the agreement. The intent of the parties to the agreement was to arrange for the father’s care at the facility, and the father received the benefit of the parties’ bargain under that agreement for the duration of his residency at the facility. As a third-party beneficiary to the agreement, the father is bound by the arbitration provision.

The First District came to a similar conclusion in Alterra Healthcare Corp. v. Estate of Linton ex rel. Graham, 953 So.2d 574 (Fla. 1st DCA 2007). In Linton, a nursing home facility moved to compel arbitration in a suit brought on behalf of Mrs. Linton, its deceased former resident. Id. at 576. The plaintiff maintained that the resident was not bound by the arbitration clause contained in the residency agreement signed by her adult son because her son had no authority to sign the agreement on her behalf. Id. The First District held:

[W]e reject the plaintiffs argument that there was not a valid agreement to arbitrate that was binding on Mrs. Linton, because she did not sign the agreement. In general, arbitration provisions are personal covenants that bind only the parties thereto. But the trial court correctly concluded that Mrs. Linton was an intended third-party beneficiary of the agreement in the present case. A nonsignatory third-party beneficiary is bound by the terms of a contract containing an arbitration clause.

Id. at 579. We apply similar reasoning to the analogous facts presented here in reaching the conclusion that the father is bound by the arbitration clause in the agreement.

We recognize, however, other district courts have held, for a variety of reasons, that nursing home residents who are non-signatories to the care agreements under which they receive care at a facility are not bound by the arbitration clauses found in those care agreements. In these cases, an adult family member executed the care agreement to obtain care and residency for a sick or elderly parent or relative. The decisions often omit discussion of the issue of whether the resident was a third-party beneficiary, but the resident’s status is apparent from the facts of each case.

In Lepisto v. Senior Lifestyle Newport Limited Partnership, 78 So.3d 89 (Fla. 4th DCA 2012), the Fourth District held that a resident was not bound by an arbitration clause contained in a residency contract signed by his wife, and to which the resident was the intended third-party beneficiary. The court noted that the wife only signed the contract as the “financially responsible” party, not as the “resident’s representative,” although she could have signed the contract in either capacity. Id at 92. As such, the court concluded that the wife signed in her individual capacity and did not bind the husband to the contract. Id; see also Fletcher v. Huntington Place Ltd. P’ship, 952 So.2d 1225, 1227 (Fla. 5th DCA 2007) (holding “[t]he Admissions Agreement, which contains the arbitration agreement, indicate[d] that Fletcher did not sign the agreement in her capacity as her mother’s representative,” where daughter signed- in area indicating financial responsibility).

In Perry ex rel. Perry v. Sovereign Healthcare of Metro West, LLC, 100 So.3d 146, 148 (Fla. 5th DCA 2012) review dismissed 134 So.3d 450 (Fla.2014), the Fifth District held that a resident was not bound by the arbitration clause contained in the agreement for care executed by her daughter. The Fifth District reasoned that “there is no evidence [the resident] was incapable of signing the agreement on her own behalf’ and, further, that “there is absolutely no evidence that [the daughter] had the authority to bind [the resident] to the arbitration agreement.” Id.

We respectfully disagree with these decisions. We cannot reconcile them either with the ordinary rules of law governing third-party beneficiaries and arbitration agreements or with Florida’s avowed public policy to favor arbitrations. The principle that a third-party beneficiary is bound by an arbitration provision does not depend upon whether the party to the agreement signs only as the “financially responsible party.” It turns on whether the party that is being bound was the third-party beneficiary. In all of these cases, the purpose of the agreement is to obtain residential and medical care for an elderly parent or relative. The elderly parent or relative was therefore a third-party beneficiary and, accordingly, bound by the arbitration provision. Orion Ins. Co., 696 So.2d at 478; Martha A. Gottfried, Inc., 778 So.2d at 1090; Ponzio, 693 So.2d at 109; Zac Smith & Co., Inc., 472 So.2d at 1325.

Similarly, the principle that a third-party beneficiary is bound by an arbitration agreement does not depend upon whether the party who signed the agreement for care had actual or apparent authority to agree to arbitration: it turns only on whether the resident accepted the benefits of the contract and thereby was a third-party beneficiary. Martha A. Gottfried, Inc., 778 So.2d at 1090 (holding that nonsignatory to contract) was “bound by her agreement to arbitrate, as having accepted the economic and professional benefits of [signatory’s] membership with the board”).

For the same reason, it is irrelevant to the third-party beneficiary analysis whether the son’s signature as “Resident’s Representative” on the agreement qualified as the signature of the father’s “designee or legal representative” under section 400.151, Florida Statutes. Whether or not the son’s signature so qualified, the father resided and received care at the facility for years pursuant to the agreement and was therefore a third-party beneficiary bound by the arbitration provision. See Integrated Health Servs. of Green Briar, Inc. v. Lopez-Silvero, 827 So.2d 338, 339 (Fla. 3d DCA 2002) (“A contract is binding, despite the fact that one party did not sign the contract, where both parties have performed under the contract.”).

Waiver of the right to a jury trial is matter of great consequence. The jury trial reflects the ideals of democracy, local decision making, and civic virtue upon which our form of government is built. It is no coincidence that trial by jury is expressly mentioned in the Declaration of Independence, the Constitution, and three different times in the Bill of Rights. A public trial before a jury of one’s peers remains the best way to ensure the full measure of American justice. As common law judges, we instinctively favor a trial by jury, particularly in cases where negligence may be extreme and the personal injuries horrific. Nevertheless, people have a right to forego a jury trial and the other extensive protections provided by our legal system and agree to the faster, cheaper, private, and less comprehensive method of resolving disputes provided by arbitration.

We also recognize the more troubling problem that elderly and ill relatives are often admitted to these facilities under hurried and stressful circumstances, sometimes immediately upon release of the relative from a hospital, during which it is not practicable to expect that the forms for admission are carefully reviewed prior to being signed. In upholding the trial court’s decision to enforce the arbitration clause here, we are bound by longstanding principles of contract and arbitration law— parties are free to enter into contracts as they see fit; arbitration clauses are favored; and parties are held to have read contracts that they sign. If the policy concerns raised by the realities of how these arbitration provisions are entered into are to be remedied, that remedy is properly undertaken by the Legislature.

CONCLUSION

For the foregoing reasons, we hold that the father is bound by the arbitration provision contained in the agreement for care executed by his son, and to which the father was the intended third-party beneficiary.

Affirmed.


text:
    CHALKS AIRLINES, INC., Appellant/Cross-Appellee, v. MIAMI SPORTS AND EXHIBITION AUTHORITY, etc., et al., Appellees/Cross-Appellants.
    No. 3D13-594.
    District Court of Appeal of Florida, Third District.
    June 4, 2014.

      Law Offices of Nolan Klein, P.A., and Nolan K. Klein, Hollywood, for appellant/cross appellee.
    Victoria Mendez, City Attorney, Kevin R. Jones, Assistant City Attorney, John A. Greco, Deputy City Attorney, for appel-lees/cross-appellants.
    Before WELLS, LAGOA, and LOGUE, JJ.
   LOGUE, J.

Chalks Airlines, Inc. sued the Miami Sports and Exhibition Authority and the City of Miami for a declaration that Chalks was not in default of a lease, under which it rents waterfront property. The City and the Authority counterclaimed for the possession of the leased property. After six years of litigation, the trial court entered a thirteen-page judgment entitled “Order on Plaintiffs Motion for Final Summary Judgment and Defendant’s Counter Motion for Final Summary Judgment,” which is the subject of this appeal.

As a preliminary issue, the City and the Authority contend this court lacks jurisdiction. In the order, the trial court held that both sides violated the lease in different ways, but stopped short of deciding who was entitled to possession of the leasehold. Instead, the order concluded: “[tjhis case should not proceed any further and the sensible resolution is for the parties to come to an equitable agreement and part ways without further expenditure of assets on this action which has no prevailing party in the court’s view.” We can hardly conceive of an order demonstrating greater wisdom or less finality.

Because the parties have not followed the trial court’s sage advice, the trial court’s labor is not at an end and will not be at an end until the trial court enters a final judgment that resolves the causes of action pled by the Plaintiff in its complaint and the Defendants in their counterclaim. See Goldome Sav. Bank v. Wulsin, 530 So.2d 291, 292 (Fla.1988) (recognizing that the test to determine the finality of court orders is “whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.”). To date, the trial court has done neither. An appeal must await the entry of a final judgment or appealable non-final order. See Fla. R. App. P. 9.110 & 9.130.

Appeal dismissed.


author: ORFINGER, J.

text:
    Thomas HAGLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4195.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2014.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Thomas Hagley appeals his sentences, as amended, for violating probation (“VOP”) in four separate felony cases. In each of the cases, Hagley’s probation was revoked based on a new law violation. The trial judge’s oral pronouncement of sentence was “eighteen months Department of [CJorrections, concurrent with each other, less credit for time served, but consecutive to any sentence he is currently serving.” The written sentencing orders, entered later the same day, awarded Hag-ley almost 500 days of jail credit in each ease. Believing the amount was overstated, the State filed a “Motion to Clarify Sentence,” arguing that the trial court’s written orders contained scrivener’s errors regarding the amount of jail credit. The court ultimately agreed, and reduced Hag-ley’s jail credit in each of the cases to zero. Hagley asserts this modification of his sentences violated his double jeopardy rights. While we disagree with Hagley’s double jeopardy argument, we reverse the sentences because Hagley is entitled to a determination of the correct amount of jail credit earned on each case.

Generally, a court’s pronouncement of a sentence becomes final when the sentencing hearing ends. E.g., Troupe v. Rowe, 283 So.2d 857, 858 (Fla.1973); Comtois v. State, 891 So.2d 1130, 1131 (Fla. 5th DCA 2005). “Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.” Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003); see Dunbar v. State, 89 So.3d 901, 905 (Fla.2012) (reiterating that double jeopardy is offended when altered sentence is more onerous and “disrupts the defendant’s legitimate expee-tations of finality”). However, that does not mean that once a sentence is orally pronounced, mistakes in the resulting sentencing order cannot be corrected. Florida has long recognized a court’s inherent power to correct clerical errors such as calculation of jail credit. When sentencing documents erroneously over-report the amount of jail time actually served by a defendant prior to sentencing, and the error is apparent on the face of the record, this Court has held that there is no double jeopardy violation if the court simply corrects the jail credit award to accurately reflect the amount of time served. Gallinat v. State, 941 So.2d 1237, 1238 (Fla. 5th DCA 2006).

Here, the oral pronouncement was simply that Hagley would receive jail credit; it mentioned no specific amount. Therefore, the court was allowed to correct the jail time credit if the amount of credit reflected in the initial sentencing orders was erroneous. However, instead of recalculating credit, the trial court stripped Hagley of all jail credit in his VOP cases, contradicting the oral pronouncement. This was error. Hagley is entitled to the correct amount of credit in each case. Ransone v. State, 48 So.3d 692, 694 (Fla.2010); Daniels v. State, 491 So.2d 543, 545 (Fla.1986); see § 921.161(1), Fla. Stat. (2011) (providing “the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence” and that “credit must be for a specified period of time and shall be provided for in the sentence”). Unfortunately, the record does not reveal how much credit Hagley is entitled to receive in his VOP cases. On remand, a hearing will be necessary to determine the correct amount.

Further, as the State concedes, the trial court must also correct the order revoking Hagley’s probation. The trial court found that Hagley violated the condition of his probation relating to new law violations and dismissed all violations of other conditions. The amended orders revoking probation all provide that the court found violations of Conditions 2, refraining from new law violations, and 5, requiring that the defendant make certain payments. However, Condition 5 was dismissed, and thus should be stricken from the amended orders revoking probation. In case number 05-2008-CF-062834-A, the condition requiring that Hagley refrain from committing new law violations was Condition 1, not 2. Hence, the amended order revoking probation in that case should reflect that the court found a violation of Condition 1, not Condition 2.

In conclusion, we reverse the amended sentences revoking Hagley’s jail-time credit and remand for a hearing to determine the correct amount of credit he earned in each of the four separate cases. In addition, the amended orders revoking probation shall be corrected.

REVERSED and REMANDED.

PALMER and LAWSON, JJ., concur.

      . Florida Rule of Criminal Procedure 3.801, effective July 1, 2013, now governs motions for correcting jail credit.

      . For example, if Hagley was arrested or released for different offenses on different dates, he would not be entitled to have his jail time credit applied equally to each concurrent sentence. Stevens v. State, 651 So.2d 1298, 1299 (Fla. 5th DCA 1995) (holding defendant was not entitled to same credit for all four cases where he was arrested at different times for different cases). "Generally a defendant is only entitled to credit against each sentence for the time spent in jail for the charge which led to that sentence.” Hawks v. State, 885 So.2d 1020, 1022 (Fla. 5th DCA 2004).


author: WALLIS, J.

text:
    Jeremy STRONG, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-4136.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2014.

      Jeremy Strong, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Respondent.
   WALLIS, J.

Jeremy Strong raises four claims, of which only the first has merit, in his We deny the petition as to claims two, three, and four without discussion. In his first claim, Strong argues that his appellate counsel was ineffective for failing to file a Florida Rule of Criminal Procedure 3.800(b)(2) motion to challenge his fees because the trial court imposed fees under repealed and renumbered statutes and because Strong was not informed of his right to challenge the discretionary public defender fee. We agree, grant the petition in part, and remand for the lower court to strike the fees and public defender fee without prejudice for the court to re-impose the fees after following the correct procedure.

In November 2009, Strong was sentenced to fifteen years in prison after pleading nolo contendere to possession of a firearm by a felon, pursuant to a negotiated plea agreement. In the plea agreement, Strong agreed to pay fines and costs, but the agreement did not delineate specific fees or amounts. At sentencing, the trial court pronounced Strong’s sentence by stating:

Be a two hundred and fifty dollar fine, plus costs assessed by the Clerk’s Office, made a lien of record. Hundred dollars cost of prosecution,- made a lien of record. Fifty dollars a day, cost of incarceration, made a lien of record. Seven hundred and fifty dollars for the Public Defender made a lien of record.

On the form used to delineate Strong’s fees, many of the listed charges either fail to cite to statutory authority or cite to either incorrect, renumbered, or repealed statutory provisions. We strike the court’s imposition of fees and costs and remand for the trial court to cite the correct statutory authority. See Harrison v. State, — So.3d -, -, 39 Fla. L. Weekly D381, 2014 WL 594352, *2 (Fla. 1st DCA Feb. 17, 2014) (striking a fee for cost of prosecution and remanding for the court to cite statutory authority); V.D. v. State, 922 So.2d 1037, 1038 (Fla. 5th DCA 2006) (“A trial court must provide a statutory basis for every cost imposed.”).

Furthermore, “[w]hile statutorily-mandated costs may be imposed without notice (and thus, need not be individually announced at sentencing), discretionary costs or fines must be orally pronounced at sentencing in order to comport with due process requirements.” Boyington v. State, 125 So.3d 327, 327-28 (Fla. 1st DCA 2013) (citations omitted). The trial court must also advise the defendant of his right to contest the discretionary fee when it is orally imposed. Kirkland v. State, 106 So.3d 4, 5 (Fla. 1st DCA 2013) (“[T]he Public Defender fee should be struck because the trial court did not advise Appellant of his right to contest the fee when it was orally imposed.” (citing § 938.29(5), Fla. Stat.; Fla. R. Crim. P. 3.720(d)(1))).

Petition GRANTED in part; REMANDED with instructions.

PALMER and COHEN, JJ., concur.


text:
    Larry MADISON, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-245.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2014.
    Larry L. Madison, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Larry Madison appeals the order of the circuit court denying his request for a belated appeal based on that court’s determination that the petition for belated appeal was untimely. We treat the appeal as a petition for writ of certiorari and grant the petition.

An appeal timely commenced in an inappropriate court is deemed timely filed in the appropriate court. Pennywell v. Dep’t of Revenue ex rel. Woodard, 62 So.3d 19, 20 (Fla. 1st DCA 2011) (observing that “the filing of a notice of appeal in the wrong court is not a jurisdictional defect” and that the notice “is considered to have been filed in the proper court as of the date that it was filed in the wrong court” (citations omitted)). As the State properly agrees, the petition for belated appeal was timely filed in this court per the mailbox rule. Because the circuit court’s assessment of timeliness was incorrect, the circuit court failed to afford Madison due process and departed from the essential requirements of the law. We, therefore, quash the order under review and remand to the circuit court.

PETITION GRANTED; ORDER QUASHED; REMANDED.

SAWAYA, ORFINGER and COHEN, JJ., concur.


text:
    John WAWRZYNIAK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5510.
    District Court of Appeal of Florida, First District.
    June 9, 2014.
    John Wawrzyniak, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the April 5, 2013, judgment and sentence in Bay County Circuit Court case number 2012-002119-CFMA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

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


text:
    Jarrod McDOWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0152.
    District Court of Appeal of Florida, First District.
    June 9, 2014.
    Jarrod McDowell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the October 12, 2012, order denying motion for postconviction relief in Escambia County Circuit Court case numbers 2009-CF-004720A and 2009-CF-004721A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

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


text:
    Jason KIRK, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1786.
    District Court of Appeal of Florida, First District.
    June 9, 2014.
    Jason Kirk, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the Court’s jurisdiction was not invoked in a timely fashion, the appeal is dismissed. However, the dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

BENTON, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Reginald S. WHITE, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D14-1170.
    District Court of Appeal of Florida, First District.
    June 10, 2014.
    Reginald S. White, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Carrie McNamara, Assistant Attorney General, Tallahassee; Jennifer Parker, General Counsel, Tallahassee, for Appel-lee.
   PER CURIAM.

DISMISSED. See Mobley v. McNeil, 989 So.2d 1215 (Fla. 1st DCA 2008).

ROWE, RAY, and SWANSON, JJ., concur.


text:
    Christopher Ray BERRYHILL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2037.
    District Court of Appeal of Florida, First District.
    June 10, 2014.
    Matt Shirk, Public Defender; Elizabeth H. Webb and Thomas M. Murphy,- Assistant Public Defenders, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the December 16, 2013, judgment and sentence in Duval County Circuit Court case number 16-2012-CF-003101-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

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


text:
    John B. KIMBLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1163.
    District Court of Appeal of Florida, First District.
    June 10, 2014.

      John B. Kimble, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of quo warranto is denied. See Johnson v. Office of State Attorney, 987 So.2d 206 (Fla. 5th DCA 2008). The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, PAJDOVANO, and RAY, JJ„ concur.


text:
    Richard RIGHTMIRE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1452.
    District Court of Appeal of Florida, First District.
    June 10, 2014.
    Richard Rightmire, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of habeas corpus challenges 2006 judgments and sentences in Leon County Circuit court case number 2005-CF-1718-A. The petition is dismissed. See Baker v. State, 878 So.2d 1286 (Fla.2004) (reiterating that habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

Due to petitioner’s apparent abuse of the legal process by his repeated pro se filings attacking his conviction and sentence, this court issued an order directing petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence.”). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

As such, because petitioner’s continued and repeated attacks on his conviction and sentences have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Leon County Circuit court case number 2005-CF-1718-A. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in the imposition of further sanctions, including a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. See Fla. RApp. P. 9.410.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Albert K. HAYNES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1398.
    District Court of Appeal of Florida, First District.
    June 10, 2014.
    Albert K. Haynes, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By a petition to invoke the all writs jurisdiction of this court, petitioner seeks to challenge his judgment and sentence in Alachua County Circuit court case number 01-2006-CF-000815-A. The petition is dismissed. See Williams v. State, 918 So.2d 541 (Fla.2005) (stating that the all writs provision of article V, section 3(b)(7), Florida Constitution, does not confer added appellate jurisdiction on the courts, and the court’s all writs power cannot be used as an independent basis of jurisdiction in the courts (citing St. Paul Title Ins. Corp. v. Davis, 392 So.2d 1304, 1305 (Fla.1980))).

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


text:
    Waty RYLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1394.
    District Court of Appeal of Florida, First District.
    June 10, 2014.
    Waty Ryland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the January 23, 2013, order denying motion to correct illegal sentence in Leon County Circuit Court case number 1999-CF-1192. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(6)(D).

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