text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. Edmund BINI & Suzanne Bini, Appellees.
    No. 3D09-2577.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Hinda Klein, Hollywood, for appellant.
    David B. Pakula, Pembroke Pines, and Michael A. Nuzzo, Miami, for appellees.
    Before GERSTEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See § 631.70, Fla. Stat. (2009); Fla. Ins. Guar. Ass’n v. Gustinger, 390 So.2d 420 (Fla. 3d DCA 1980).


source: Caselaw Access Project

author: RAMIREZ, C.J.

license: Public Domain

text:
    James C. CARROLL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2853.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.

      James C. Carroll, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   RAMIREZ, C.J.

James C. Carroll appeals the trial court’s summary denial of his pro se “Motion to Request Time on Post-Conviction Relief Pursuant to Rule 3.850.” Carroll filed this motion in the trial court on August 23, 2010. It appears he was under the mistaken idea that he needed to request more time to file his 3.850 motion because he had requested his deposition, discovery packet and trial transcript from the attorney who represented him on his direct appeal, but had not received anything. In fact, Carroll had until November 18, 2010, to file his 3.850 motion because the mandate from this Court in his direct appeal issued on November 19, 2008.

The trial judge summarily denied Carroll’s “Motion to Request Time on Post-Conviction Relief Pursuant to Rule 3.850.” In her order, the trial judge stated, “[d]e-nied without a hearing as the defendant’s motion would already be time barred.” The trial court was apparently under the impression that the two-year period for Carroll filing his 3.850 already had expired.

We dismiss the appeal, pursuant to Manning v. State, 28 So.3d 971 (Fla. 2d DCA 2010), which is directly on point. In Manning, the Second District Court of Appeal held that when a defendant’s motion for extension of time to file a postcon-viction motion pursuant to Florida Rule of Criminal Procedure 3.850 is summarily denied, “the defendant should not appeal that order, but should instead file the intended motion as soon as possible, alleging the grounds for the motion to the best of the defendant’s ability and further alleging the reason why the motion is untimely.” Id. at 973. The trial court then has the discretion to decide the motion on the timeliness issue or any other dispositive issue. Thereafter, the appellate court will review the denial of the motion to extend, if need be, when it reviews the order disposing the postconviction motion. Id. In the case before us, as in Manning, Carroll has not even filed a 3.850 motion yet, so neither the trial court nor our Court has any information on the grounds that Carroll is going to pursue in his 3.850 motion.

Consequently, we dismiss the appeal. We note, however, that the Second District stated in Manning that the defendant in that case had delayed filing her postconviction motion because she was awaiting the outcome of her motion to extend time. Id. In the case before us, Carroll is in a similar situation. He has delayed filing his postconviction motion since August 23, 2010, because he was awaiting the outcome of his “Motion to Request Time.” As such, the trial court should not consider from August 23, 2010, through September 9, 2010 (the period during which Carroll was awaiting a ruling from the trial court on his “Motion to Request Time”), in evaluating whether Carroll has shown good cause for an extension in any postconviction motion that he files in the trial court during the sixty-day period following our issuance of this dismissal.

Dismissed.


author: PER CURIAM.

text:
    HISTORY, S.A., Appellant, v. RICA FOODS, INC., et al., Appellees.
    No. 3D10-542.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 2011.
    Infante, Zumpano, Hudson & Miloch, and Theodore Miloch II, Coral Gables, for appellant.
    Hogan Lovells, and Daniel E. Gonzalez, Richard C. Lorenzo and Mark R. Cheskin, Miami; H. Christopher Bartolomucci, Washington, DC, for appellees.
    Before WELLS, SHEPHERD, and SALTER, JJ.
   PER CURIAM.

Affirmed.


text:
    Corey MINGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1366.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Corey Mingo, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, WELLS, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Stephens v. State, 975 So.2d 405, 413 (Fla.2007).


author: WELLS, Judge.

text:
    Dam LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-450.
    District Court of Appeal of Florida, Third District.
    April 13, 2011.
    Dam Lopez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, CORTINAS, and EMAS, JJ.
   WELLS, Judge.

Dam Lopez appeals an order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800. We affirm without prejudice to the filing of an amended motion properly attaching the sentencing transcripts. See Williams v. State, 957 So.2d 600, 604 (Fla.2007) (“[T]he burden remains with the petitioner to demonstrate an entitlement to relief on the face of the record. If the sentencing transcript is neither in the file nor attached to the motion, the motion should be denied without prejudice to the filing of an amended motion properly attaching the sentencing transcript.”).


text:
    Ethingor WARREN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-861.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.
    Ethingor Warren, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


text:
    Travis DESIR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-827.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.
    Travis Desir, in proper person.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045 (Fla.2011).


text:
    Lester SOLA, Miami-Dade County Supervisor of Elections, and Miami-Dade County Board of County Commissioners, Appellants, v. Ricardo CORONA, Appellee.
    No. 3D11-1379.
    District Court of Appeal of Florida, Third District.
    May 26, 2011.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Oren Rosenthal, Hugo Beni-tez, and Eduardo W. Gonzalez, Assistant County Attorneys, for appellants.
    Petros & Elegant, William L. Petros, Justin B. Elegant, Coral Gables, for appel-lee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The injunctive order under review is totally deficient in form, see Sobeach Rentals, Inc. v. Shelborne Ocean Beach Hotel, 37 So.3d 982 (Fla. 3d DCA 2010); Angelina v. Santa Barbara Enters., LLC, 2 So.3d 1100 (Fla. 3d DCA 2009); Fla. R. Civ. P. 1.610(c), and entirely unsupported by substantive law. Joughin v. Parks, 107 Fla. 833, 143 So. 145 (1932); Abreau v. Cobb, 670 So.2d 1010 (Fla. 3d DCA 1996); Jones v. State, 336 So.2d 59 (La.Ct.App.1976); see also Plante v. Smathers, 372 So.2d 933 (Fla.1979); Marina v. Leahy, 578 So.2d 382 (Fla. 3d DCA 1991); Wilson v. Dade County, 369 So.2d 1002 (Fla. 3d DCA 1979), cert. denied, 373 So.2d 457 (Fla.1979). It is therefore vacated. The cause is remanded with directions to dismiss the complaint with prejudice.

Rehearing is dispensed with. This decision shall take effect immediately.


text:
    Ahmad MILTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-122.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.

      Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and WELLS and EMAS, JJ.
   ON MOTION FOR REHEARING

RAMIREZ, C.J.

This case is before us on the defendant, Ahmad Milton’s, motion for rehearing. We deny the motion for rehearing, but withdraw our opinion dated September 8, 2010, and substitute the attached opinion in its place.

Ahmad Milton appeals the trial court’s conviction of attempted felony murder. Because there was sufficient evidence offered at trial and no double jeopardy violation, the trial court did not fundamentally err, and we affirm.

The State charged Milton with second-degree murder, attempted felony murder with a predicate felony of attempted second-degree murder, and shooting at a dwelling. Before jury selection, Milton moved to dismiss counts two, three, and four regarding attempted felony murder with a predicate felony of attempted second-degree murder based on the argument that the information did not track the language of the attempted felony murder statute. The trial court denied the motion. After the State’s final amendments to the information, Milton renewed the objection, arguing that there was no independent essential element as the attempted felony murder statute requires. The trial court denied the motion.

The jury acquitted Milton of second-degree murder but found him guilty as charged on the remaining counts. Milton was sentenced as a habitual violent felony offender to three concurrent life sentences with a twenty-year minimum mandatory for counts two, three, and four, and a concurrent sentence of thirty years for count five. At the sentencing hearing, Milton argued that the convictions of attempted felony murder and shooting into a dwelling violate the rules against double jeopardy. The trial court denied all motions. Milton now appeals.

We affirm the trial court’s decision because the convictions were in compliance with sections 777.04(1) and 782.04(2), Florida Statutes (2006), which state that attempted felony murder has two elements: “(1) the defendant intentionally committed an act that would have resulted, but did not result, in the death of someone, and (2) the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life.”

Milton relies on Coicou v. State, 867 So.2d 409 (Fla. 3d DCA 2003), quashed on other grounds, 39 So.3d 237 (Fla.2010), in support of his position. However, in Coi-cou, multiple offenses were alleged to have been committed on a single victim. In the case before us, we know that there were multiple victims involved. Similarly, in Tucker v. State, 857 So.2d 978 (Fla. 4th DCA 2003), the Fourth District Court of Appeal held that double jeopardy was violated because the charges were directed at the same victim. Id. at 979. This is not the case here, as the facts indicated there were multiple victims, and Milton was not shooting specifically at one person.

The State directs our attention to Brinson v. State, 18 So.3d 1075 (Fla. 2d DCA 2009), which we agree is applicable here. In Brinson, the defendant was charged with first-degree murder and a predicate felony of attempted first-degree murder and attempted second-degree murder. Id. at 1076. The Second District Court of Appeal stated that the defendant’s convictions for attempted second-degree murder and felony murder did not violate protection against double jeopardy because the convictions did not doubly punish the defendant for a single homicide. Id. at 1078.

Accordingly, we affirm.


author: SHEPHERD, J.

text:
    Norman R. BURTON, a/k/a Jacob D. Taylor, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-686.
    District Court of Appeal of Florida, Third District.
    June 8, 2011.
    Norman R. Burton, a/k/a Jacob D. Taylor, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

The defendant, Norman Burton, also known as Jacob Taylor, appeals a summary denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800. Because the trial court erred in concluding the defendant’s claim was not cognizable under Florida Rule of Civil Procedure 3.800(a), we reverse and remand for further proceedings.

On December 17, 2001, in case number 00-34176, the defendant pled guilty to burglary of an unoccupied dwelling (count one) and third-degree grand theft (count two). The trial court sentenced the defendant to seven years of incarceration, but suspended the incarcerative term for one year of community control, followed by three years of probation. The defendant violated his probation. On April 27, 2006, the trial court revoked probation and imposed a thirty-year sentence, but again suspended the incarcerative term for three years of probation. The defendant again violated probation. On May 1, 2007, the trial court revoked probation and sentenced the defendant to twelve years of imprisonment on count one and ten years of imprisonment on count two, to run concurrent.

On January 20, 2011, the defendant filed a motion to correct illegal sentence, alleging his sentences were illegal because, citing to Poore v. State, 531 So.2d 161 (Fla.1988), under a true split sentence, the trial court could not impose a sentence greater than the original sentence suspended — in this case, the seven years originally imposed on December 17, 2001. On February 11, 2011, instead of ruling on the defendant’s motion on the merits, the trial court denied the motion on the ground that “his claim does not fall within the purview of [Rule] 3.800(a) and therefore he is not entitled to the relief he is seeking.” The court was mistaken.

A motion alleging a sentence exceeds the legal maximum is cognizable under Florida Rule of Criminal Procedure 3.800(a). See Carter v. State, 786 So.2d 1173, 1181 (Fla.2001) (quoting Blaldey v. State, 746 So.2d 1182, 1186-87 (Fla. 4th DCA 1999)) (“To be illegal within the meaning of [R]ule 3.800(a), the sentence must impose a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.”). In this case, the defendant’s motion alleging his sentence exceeds the legal maximum because of his true split sentence is cognizable under Rule 3.800(a). See Cook v. State, 880 So.2d 771, 772 (Fla. 2d DCA 2004). Thus, the trial court should have considered the defendant’s motion on the merits, and we reverse and remand for the trial court to do so. Our decision should not be construed as an expression of this court on the merits of the motion.

We note the trial court may have been confused or inadvertently misled by the fact that after the defendant was sentenced in this case, the defendant pled guilty in another case, case number 07-13482, with the understanding he would receive a sentence of ten years concurrent with his sentence in 00-34176, thereby ensuring his sentence in 07-13482 would not extend beyond the expiration of his sentence in 00-34176. In addition to filing his motion to correct illegal sentence, the defendant filed a motion to modify his sentence in case number 07-13482 on January 31, 2011, arguing his sentence should be reduced to seven years to comport with the intent of the parties and the trial court that his sentence in 07-13482 would not exceed his sentence in 00-34176. It appears the State Attorney’s Office addressed this claim before the trial court in its response to the defendant’s motion to correct illegal sentence; hence, the trial court’s order finding the motion was not cognizable under Rule 3.800(a). The trial court, in a separate order, titled “Order Denying Defendant’s Pro Se Motion for Documents filed 1/31/2011,” denied the defendant’s motion to modify on February 23, 2011.

By his Notice of Appeal, the defendant here expressly appeals the trial court’s order denying his motion to correct illegal sentence, pursuant to Rule 3.800(a), rendered on February 11, 2011. Although the defendant’s initial brief addresses the issues raised in his motion to modify — which suggests why the Attorney General’s Office’s response also addresses the issues in the motion to modify — the defendant did not appeal this order. We, therefore, are without jurisdiction to address any issue decided by the trial court’s denial of the defendant’s motion to modify his sentence.

Reversed and remanded with directions.


text:
    D.P., a juvenile, Appellant, v. STATE of Florida, Appellee.
    No. 3D10-2052.
    District Court of Appeal of Florida, Third District.
    June 22, 2011.
    Carlos J. Martinez, Public Defender and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General and Natalia Costea, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD and EMAS, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Juv. P. 8.085(a)(5); C.E. v. State, 555 So.2d 898 (Fla. 3d DCA 1990).


text:
    Jose ESCOBAR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2114.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.

      Carlos J. Martinez, Public Defender, Shannon P. McKenna and Marti Rothen-berg, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and SHEPHERD and SUAREZ, JJ.
   SHEPHERD, J.

Jose Escobar appeals a summary denial of his pro se motion to withdraw his plea after sentencing, pursuant to Florida Rule of Criminal Procedure 3.170(1), on the grounds he failed to understand the specific detail of his plea due to a language “barrier,” unfamiliarity with “legal language,” being rushed through the plea colloquy by the trial judge and, finally, his counsel “[rjushed [and][r]esponded on [his] behalf in a manner inefficient [and] not agreeable to [him].” Escobar’s motion is in the form of a letter written by Escobar in his jail cell and mailed to the trial judge. The trial judge summarily denied Esco-bar’s motion on the ground it was refuted by the record. We reverse the trial court’s order and remand for the court to determine in the first instance whether Escobar’s motion contains allegations sufficient to give rise to an adversary relationship between Escobar and his counsel. Because a motion to withdraw a plea after sentencing is a critical stage, the court should further assure on remand that Es-cobar’s counsel is aware of Escobar’s filing.

This is a good case in which to discuss the proper application of this sometimes confusing rule. A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw his plea within thirty days after rendition of his sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)a-e., except as provided by law. See Fla. R.Crim. P. 8.170((); Sheppard, 17 So.3d at 282. It also is settled law in this state that counsel’s obligation of representation to his client does not end upon the rendition of a judgment of conviction and sentence, but continues thereafter until either a notice of appeal is filed and related tasks completed, the time for filing the notice has passed, or good cause is shown upon written motion. See Fla. R.Crim. P. 3.111(e)(1)(A), (e)(3); Krautheim v. State, 38 So.3d 802, 806 (Fla. 2d DCA 2010); Williams v. State, 10 So.3d 660, 662 (Fla. 4th DCA 2009); Searcy v. State, 971 So.2d 1008, 1011 (Fla. 3d DCA 2008). The filing of a timely motion to withdraw a plea after sentencing tolls these time periods. Fla. R.App. P. 9.020(h)(1); Eulo v. State, 786 So.2d 43, 44 n. 1 (Fla. 4th DCA 2001). In this case, Escobar’s counsel had neither filed a notice of appeal on behalf of his client, nor obtained an order permitting his withdrawal from representation before Escobar filed his motion to withdraw plea. Thus, his obligation to Escobar was not at an end.

Although a defendant represented by counsel at trial has a qualified right derived from article I, section 16 of the Florida Constitution to be heard in person at trial, see Sheppard, 17 So.3d at 279, appellate courts, by virtue of their different focus on legal issues, uniformly have refused to permit a defendant represented by counsel to file additional pro se briefs and papers. Id. at 280. Nevertheless, our supreme court has recognized a limited exception to the practice of striking these pro se pleadings as nullities:

where a defendant files a pro se motion to withdraw a plea pursuant to rule 3.170(£), which contains specific allegations that give rise to an adversarial relationship, such as misadvice, affirmative misrepresentations, or coercion that led to the entry of the plea. In these narrow circumstances, ... the trial court is required ... to determine whether an adversarial relationship exists such that defense counsel can no longer continue to represent his or her client at a hearing in which counsel will likely be an adverse witness.

Id. at 277. In short, if a defendant represented by counsel files a pro se motion to withdraw his plea pursuant to Rule 3.170(0 after he is sentenced, the trial court may strike the pleading without a hearing where the pleading fails to contain specific allegations that bring it within the ambit of Rule 9.140(b)(2)(A)(ii)a.-e. However, if the pro se motion contains specific allegations that bring it within the ambit of Rule 9.140(b)(2)(A)(ii)(c) — e.g., the plea was involuntary — and further contains allegations sufficient to give rise to an adversary relationship between the defendant and his counsel, the trial court must take an additional step. It then must “either grant ‘an evidentiary hearing or accept the defendant’s allegations ... as true [unless] they are conclusively refuted by the record.’ ” Krautheim, 38 So.3d at 805 (citing White v. State, 15 So.3d 833, 835 (Fla. 2d DCA 2009) (second alteration in original) (quoting Bayer v. State, 902 So.2d 353, 354 (Fla. 2d DCA 2005))).

It is only after such a hearing, if the trial court finds conflict has arisen between the defendant and his trial counsel in the continued representation by trial counsel, the defendant is entitled to conflict-free counsel to resolve the issues raised by the motion. See Sheppard, 17 So.3d at 275; Krautheim, 38 So.3d at 804-05 (finding the defendant’s assertions in motion to withdraw plea that he did not understand what could happen if he admitted to probation violation, and was confused about his possible sentence sufficient to require an evidentiary hearing to determine whether the defendant was entitled to conflict-free counsel, despite the fact he was advised in original plea colloquy of the maximum and minimum penalties if he violated probation); La Page v. State, 29 So.Sd 1168, 1170 (Fla. 1st DCA 2010) (concluding the defendant was entitled to appointment of conflict-free counsel to defend allegation that counsel misadvised him of potential defenses to probation violation at conclusion of evidentiary hearing, where the defendant’s allegation was not conclusively refuted); cf. Davis v. State, 52 So.3d 697, 698 (Fla. 4th DCA 2010) (affirming denial of motion to withdraw plea for lack of specific allegations); Nelfrard v. State, 34 So.3d 221, 223 (Fla. 4th DCA 2010) (concluding the defendant’s motion to withdraw plea on ground his counsel coerced him by telling him if he failed to accept the plea offer he would be sentenced to five years in prison, was refuted by plea colloquy where the defendant specifically was advised he could face any sentence up to the maximum of two, five-year consecutive sentences); Wendt v. State, 19 So.3d 1024, 1028-29 (Fla. 3d DCA 2009) (stating the defendant’s motion to withdraw plea and appoint conflict-free counsel in probation violation proceeding on ground she was under erroneous impression she would not receive a sentence in excess of the original plea agreement was refuted by plea agreement and plea colloquy where she specifically was advised her maximum exposure was five years).

In this case, Escobar’s motion, in the form of a letter to the court, states:

I [r]espectfully [r]equest to have the plea issued on September 8, 2008[,] withdrawn due to a barrier in communication, as a[r]esult of not speaking the English language. I had a[t]ranslator appointed by the court; [hjowever, due to specific legal language, the [interpreting] process and the [accelerated speed at which the court conducts the business of its calend[a]r[,] I did not understand the specific detail of my plea. The counselor [r]ushed [and] [Responded on my behalf in a manner inefficient [and] not agreeable to me. The severity of the court[’]s decision was not clear to me until I conferred in my native Spanish language with colle[a]gues. This letter was drafted with the assistance of an associate with the ability to read[,] write, and speak English and Spanish. I beg the mercy of the [e]ourt[’]s re-evaluation.
Sincerely,
/s/ Jose Escobar

(emphasis added).

Escobar’s allegations in his pro se motion that “[t]he counselor [r]ushed [and] [responded on my behalf in a manner inefficient [and] not agreeable to me,” may be sufficient to create an adversarial relationship between Escobar and his counsel. The trial court erred by not considering first whether this (or any other) allegation was sufficient to constitute such a conflict. If so, Escobar was entitled to the appointment of conflict-free counsel to advance his motion. If not, Escobar’s motion should be stricken as a nullity unless, of course, counsel elects to adopt it and advance it on Escobar’s behalf.

For the foregoing reasons, we reverse the order under review and remand this case for further proceedings in compliance herewith.

      . The rule was adopted in 1997 as part of the Florida Supreme Court’s attempt to effectuate a legislative philosophy to resolve more issues at the trial court level. See Mourra v. State, 884 So.2d 316, 319 (Fla. 2d DCA 2004), abrogated by Sheppard v. State, 17 So.3d 275 (Fla.2009). There has been considerable debate since then over whether the confusion caused by the rule has come to outweigh its benefits. Mourra, 884 So.2d at 319-20; see also Williams v. State, 959 So.2d 830, 832 (Fla. 4th DCA 2007) (Warner, J., concurring specially) (noting that a joint post conviction workgroup of trial and appellate court judges had so concluded).

      . Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)a.-e. states:
      (ii) Appeals Otherwise Allowed. A defendant who pleads guilty or nolo contendere may otherwise directly appeal only
      a. the lower tribunal's lack of subject matter jurisdiction;
      b. a violation of the plea agreement, if preserved by a motion to withdraw plea;
      c. an involuntary plea, if preserved by a motion to withdraw plea;
      d. a sentencing error, if preserved; or
      e. as otherwise provided by law.

      . Even then, an order allowing withdrawal of counsel is conditional. Rule 3.111(e) concludes:
      Orders allowing withdrawal of counsel are conditional, and counsel shall remain of record for the limited purpose of representing the defendant in the lower tribunal regarding any sentencing error that the lower tribunal is authorized to address during the pendency of the direct appeal under rule 3.800(b)(2).


text:
    Jean RICHEMOND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1946.
    District Court of Appeal of Florida, Third District.
    July 1, 2011.

      Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Rolando A. Soler, Assistant Public Defender, for appellee.
    Before GERSTEN, RAMIREZ, and EMAS, JJ.
   RAMIREZ, C.J.

Jean Richemond appeals his conviction and sentence for armed robbery. He has raised as the sole grounds for reversal that the State’s closing argument, in which the prosecutor urged the jury to find Riche-mond guilty because his innocence had not been proven and explicitly invited the jury to consider the firearm in the case as evidence of his character and ability to access firearms, deprived Richemond of a fair trial. We need not reach this issue because Richemond failed to preserve this issue for appeal. Thus we affirm.

The evidence in this case was as flimsy as a spiderweb. On November 26, 2007, Sunderal Paliwal was delivering a pizza to the Greenwhich Apartments when two men robbed him. According to Paliwal’s testimony, when he arrived at the unit that placed the order, the person inside told him no one at that address had ordered a pizza. Paliwal then called the telephone number on the receipt to verify the address. The person he spoke to informed him that he was in the wrong building and instructed him to go to a specific apartment in another building. Paliwal proceeded to that address where he encountered several men inside the apartment. The men informed Paliwal they had not ordered the pizza and began harassing him. Upset by the way he was treated, Paliwal left. As he placed the undelivered pizza in the trunk of his vehicle, two men robbed him at gunpoint.

Police suspected that the individuals who attacked Paliwal had been the persons that had originally ordered the pizza. Using telephone records, the police tracked down the phone number from which the pizza order had been placed. Evidently, the police used the phone number to compile a photo array and asked Paliwal two or three weeks after the incident to identify the person who robbed him. Paliwal identified Richemond. Richemond was subsequently arrested and charged with one count of armed robbery with a firearm and one count of possession of a firearm by a convicted felon. After his arrest, Richemond admitted that the phone was in the name of his sister.

A trial was held solely on the count of robbery with a firearm. Paliwal testified about the events leading up to the robbery. He described the gun used in the robbery as a “sawed off’ shotgun with a wooden handle. He also admitted during cross-examination that he was only seventy percent sure he had picked the right person from the six-man photographic lineup. He could not identify Richemond in court.

Detective Sidd testified that when he arrested Richemond, he seized a shotgun in the apartment. The shotgun was not sawed-off, nor did it have a wooden handle. The shotgun belonged to Michelle Alamo, Richemond’s live-in girlfriend. The State introduced the shotgun into evidence without objection.

We now turn to the issue of whether the prosecution made improper comments during closing arguments. The first objection to the prosecution’s comments made during closing argument was the following:

MS. TARAFA: However, what we do know by this shotgun sitting right here that was found in plain view in the apartment where this defendant was arrested is that this guy has access to gun. He has access to guns, and you know that he likes rifles. He likes rifles.
MS. RUIZ: Objection. Improper argument.
COURT: Sustained.
MS. FOSTER (Richemond’s other attorney): Move to strike.
COURT: Strike that part of the argument.

It seems from the context that defense counsel was only objecting to the fact that Richemond likes rifles because after this exchange, the prosecutor proceeded to discuss the shotgun without objection.

During its rebuttal closing argument, the next objection made to the prosecution’s arguments that could relate to the argument on appeal was the following:

MS. TARAFA: OK. This gun is in evidence because it shows to you all that the defendant has access to firearms, OK? That is it.
You can decide if this gun is the one that was used in the robbery or not.
But frankly, if you decide that this gun is not the one used in the robbery, but you know that Jean Richemond did, in fact, commit the robbery based on all the other evidence, you should still convict him of armed robbery, because we do not have to put a gun into evidence for you to be — for a defendant to be convicted of armed robbery.
We do not have to.
You just need to believe the testimony that a gun was held to Mr. Paliwal’s head.
It could have been a different gun. It does not matter. It is up to you to decide.
I know you guys were wondering, does the butt of this gun reflect differently under lights, to see if it could look like wood?
Well, it definitely has a yellow sticker on it.
MS. RUIZ: Objection.
COURT: I’m sorry?
MS. FOSTER (Defendant’s other attorney): Objection, Judge.
COURT: Overruled. This is argument.

Again, the context indicates that defense counsel was objecting to the reference to the yellow sticker, the significance of which is riot argued on appeal.

The last objection came at the very end of the State’s rebuttal:

MS. TARAFA: And I am certain that you are going to do the right thing, and you are going to listen to that abiding conviction of guilty that is based upon the evidence and only the evidence that has been presented in this courtroom over the past few days, and you are going to do the right thing and find the defendant guilty.
MS. RUIZ: Objection. Improper argument.
COURT: Overruled.

Statements made during closing argument are preserved for appeal by making a contemporaneous objection, which if sustained, must be followed by a request for a curative instruction or a motion for mistrial. See Capron v. State, 948 So.2d 954, 956 (Fla. 5th DCA 2007). The objection must also be sufficiently specific. “Under the contemporaneous objection rule, an issue is properly preserved if the trial court knows that an objection was made, clearly understands the nature of the objection, and denies that request.” Ferguson v. Secretary for Dep’t. of Com., 580 F.3d 1183, 1212 (11th Cir.2009) (citing Thomas v. State, 419 So.2d 634, 636 (Fla.1982)). Additionally, courts have avoided the necessity of magic words when stating an objection as long as counsel articulates the objection with sufficient specificity as “to inform the trial judge of the alleged error.” Ferguson, 580 F.3d at 1212 (citing Williams v. State, 414 So.2d 509, 512 (Fla.1982)).

We do not believe these objections apprised the trial court that Richemond was complaining that the State was suggesting that a defendant has an obligation to prove his own innocence. We therefore conclude that he failed to preserve the issue argued on appeal.

Affirmed.


text:
    Derrick EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2351.
    District Court of Appeal of Florida, Third District.
    July 1, 2011.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before WELLS, C.J., GERSTEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Gartrell v. State, 626 So.2d 1364 (Fla.1993).


text:
    189 INVESTMENTS, LLC, and Amos Halfon, Appellants, v. U.S. BANK, etc., Appellee.
    No. 3D10-3400.
    District Court of Appeal of Florida, Third District.
    July 1, 2011.
    Michael D. Stewart, Fort Lauderdale, for appellants.
    Broad and Cassel and Talina Bidwell and C. Craig Eller, West Palm Beach, for appellee.
    Before GERSTEN, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Krivanek v. Take Back Tampa Political Comm., 625 So.2d 840, 842 (Fla.1993).


text:
    CONSTRUCT GROUP CORP., Appellant, v. MIAMI-DADE COUNTY, Appellee.
    No. 3D10-2711.
    District Court of Appeal of Florida, Third District.
    July 27, 2011.
    Vezina, Lawrence & Piseitelli, and Michael Piseitelli, Joseph W. Lawrence, II, Robert L. Frye and Danie Te Young, Fort Lauderdale, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Daniel Frastai and Eduardo W. Gonzalez, for appellee.
    Before WELLS, C.J., and ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Affirmed. Idearc Media Corp. v. M.R. Friedman & G.A. Friedman, P.A., 985 So.2d 1159 (Fla. 3d DCA 2008); Applica Inc. v. Newtech Electronics Indus., Inc., 980 So.2d 1194 (Fla. 3d DCA 2008).


text:
    STATE of Florida, Appellant, v. T.M., a juvenile, Appellee.
    No. 3D10-2792.
    District Court of Appeal of Florida, Third District.
    July 27, 2011.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellee.
    Before SUAREZ, CORTIÑAS and EMAS, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Juv. P. 8.090(f)(2) (stating an order extending speedy trial period for exceptional circumstances “shall recite the reasons for the extension and the length of the extension.”); C.S. v. State, 390 So.2d 457 (Fla. 3d DCA 1980) (noting the distinction between a continuance and an extension of the speedy trial period, and holding that the granting of a continuance does not serve to extend the speedy trial period without a finding by the trial court that the interests of justice will be served by such extension and a recitation of the reasons for such extension).


text:
    Humberto MESA, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D09-216, 3D08-1512.
    District Court of Appeal of Florida, Third District.
    July 27, 2011.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Affirmed. Sireci v. State, 773 So.2d 34, 43 (Fla.2000); Leggett v. State, 34 So.3d 51 (Fla. 3d DCA), petition for review filed, No. SC 10-556 (Fla. March 22, 2010); Lumsdon v. State, 29 So.3d 390 (Fla. 3d DCA), petition for review filed, No. SC 10-665 (Fla. April 5, 2010).


text:
    Alan K. ROBERTS, et al., Appellants, v. NINE ISLAND AVENUE CONDOMINIUM ASSOCIATION, INC., etc., Appellee.
    No. 3D09-371.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 2011.

      The Barthet Firm and Paul D. Breitner, Miami, for appellants.
    Billbrough & Marks and Geoffrey B. Marks, Coral Gables, for appellee.
    Before WELLS, C.J., SHEPHERD, J., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This appeal arises out of a dispute between Nine Island Avenue Condominium Association (Association) and unit owners of boat slips (slip owners) at Nine Island over who is responsible for the cost of reconstruction of the marina and boat slips, destroyed by Hurricane Irene in 1999. After the hurricane, the Association assessed each slip owner a proportionate share of the $701,050 reconstruction. Some of the appellant slip owners paid the special assessment and others refused. In 2002, eighteen slip owners, about half the total number, filed a declaratory action asking the trial court to exonerate them from the obligation of the special assessment on the ground the Association failed to place and keep the marina and docks insured. The Association countered with foreclosure counterclaims against those slip owners who had not paid the special assessment. The dispute spawned other disagreements between the parties, all of which revolve around which party is responsible for the costs and expenses related to the marina. After an evidentiary final hearing, the trial court concluded the slip owners solely were responsible for the costs pertaining to the marina, and we affirm. However intuitively obvious our decision might appear, a sojourn through the not-so-intuitively-obvious interstices of the Florida Condominium Act and the Declaration of Condominium, to which these parties are contractually bound, is necessaiy to explain our decision.

There is no serious dispute over the material facts of this case. In 1982, two years after Nine Island Condominium was constructed, the developer built a marina, including thirty-six docks, behind the condominium building and sold the right to use the dock spaces to thirty-six of the unit owners. The dock slips are limited common elements. The Declaration of Condominium allows the “owner” of a dock space to sell or transfer his right of use of his assigned space, but only to another unit owner. Hurricane force winds from Hurricane Irene destroyed the marina in mid-October of 1999. The property manager at the time testified that a preliminary study of the marina, completed by a local structural engineering firm just before Hurricane Irene, concluded the marina had outlasted its useful life. On June 2, 2000, the property manager advised the slip owners of this finding.

The slip owners’ central contention on this appeal is that the Association left them high and dry in 1999 by not insuring the marina property prior to the storm. The slip owners argue that both the Florida Condominium Act and the Declaration of Condominium required the Association to do so.

Article XI of the Declaration of Condominium delineates the Association’s responsibilities relating to insurance. It reads in relevant part:

XI. Insurance

Insurance shall be carried and kept in force at all times in accordance with the following provisions:
A. Duty and Authority to Obtain. The Association shall obtain and keep in force at all times the insurance coverage which it is required hereby to carry as well as all coverage which it is required by the Condominium Act to carry....
B. Required Coverage. The Association shall purchase and carry insurance coverage as follows:
1. Casualty Insurance. Casualty insurance covering the Building and other improvements of the Condominium, including, without limitation, Units (including the bathroom and kitchen fixtures initially installed into Units by the Developer) and Common Elements, in an amount equal to the maximum insurance replacement value thereof (subject to reasonable deductible clauses), exclusive of excavation and foundation costs, as determined annually by the Board of Directors of the Association; such insurance to afford protection against:
(a) Loss or damage by fire or other hazards covered by the standard extended coverage or other perils endorsement; and
(b) Such other risks of a similar or dissimilar nature as are or shall be customarily covered with respect to buildings and other improvements similar in construction, location and use, to the Building and other improvements of the Condominium, including, without limitation, vandalism, malicious mischief, windstorm, water damage and war risk insurance, if available; ...

The slip owners argue the language of this Article, requiring the Association to “purchase and carry ... [c]asualty insurance covering the Building and other improvements of the Condominium, including, without limitation, Units (including the bathroom and kitchen fixtures initially installed into Units by the Developer) and Common Elements ... exclusive of excavation and foundation,” is “clear and unambiguous with regard to what coverage the Association is required to ‘purchase and carry,’ ” namely that the Association must secure windstorm coverage on the marina and dock spaces as well as the Building and Common Elements. We agree with the slip owners that the insurance article is clear and unambiguous. However, we find, as did the trial court, that under the de novo standard of review we are authorized to exercise when interpreting an unambiguous contract on an appeal from a final judgment, see First Equitable Realty III, Ltd. v. Grandview Palace Condo. Ass’n, 46 So.3d 1088, 1090 (Fla. 3d DCA 2010), the insurance article in the Declaration does not require the Association to purchase and maintain insurance coverage on the docks. We reach this conclusion for several reasons.

First, the plain language of the insurance provision requires the Association to purchase insurance only on the Building and other improvements of the Condominium, including the Units and Common Elements. The word “Building” is a defined word in the Declaration, meaning “the [twenty-five]-story high rise building constituting the principal improvement located on the land.” The reference in this provision to “Units” and “Common Elements” is clearly a reference to the land-based elements of the “Condominium Property” — itself a more inclusive, defined term found in the definitional provisions of the Declaration. Article III of the Declaration, entitled “Description of the Condominium Property,” includes separate paragraphs delimiting and distinguishing the “Common Elements” of the Condominium Property from the “Limited Common Elements.” The boat slips are expressly stated to be “Limited Common Elements” under Article III, section E.6 of the Declaration. If “Limited Common Elements” were to be included in the “Required Coverage” section of Article XI of the Declaration, it would have been a simple matter for the drafters to have included the phrase “Limited Common Elements” after the term “Common Elements.” The drafters did not do so. Furthermore, that the sole focus (and purpose) of.the “Required Coverage” section of Article XI of the Declaration is to require the Association to purchase and carry casualty insurance on the land-based elements of the Condominium Property — the Building, the Units, and the Common Elements — is fully and finally demonstrated by the fact the drafters carefully excluded one land-based element, “excavation and foundation costs,” from the Association’s insurance procurement obligations. We believe the “Required Coverage” section of the insurance article in this Declaration is reasonably susceptible to only one interpretation, that the Association was not required by the terms of the Declaration to purchase and carry a policy of windstorm insurance on the marina and boat docks. See Smith v. Shelton, 970 So.2d 450, 451 (Fla. 4th DCA 2007).

The slip owners argue, in the alternative, that the Association also failed to “use its best efforts to obtain and maintain adequate insurance to protect the association, association property, the common elements, and the condominium property required to be insured by the association,” as required under section 718.111, Florida Statutes (1999). Even assuming the marina and dock slips are encompassed within this statutory mandate — a dubious proposition based upon the reasoning and logic previously enunciated — the slip owners provided no evidence at the final hearing that the Association failed to seek out insurance on the marina, or even that windstorm insurance was available for purchase in the marketplace in 1999. In fact, the only evidence on the subject was from Richard Gold-stein, a member of the Association Board of Directors in 1995 and again from 2002 to 2007, as well as a member of the budget committee from 1993 to the time of trial. Goldstein testified the Association insured the marina until 1994, when its insurer, Travelers Insurance Company, non-renewed the Association policy, and the only available insurer, a “state sponsored” insurer of last resort, advised the Association there was “no way of getting insurance on [the marina] because of its age.” According to Goldstein, it was not until 2002, after the marina was rebuilt, that insurance on the marina once again was available. The trial court properly found for the Association on this alternative claim.

On all other issues raised by the slip owners — including whether allocated costs can be charged to them pursuant to the Declaration’s requirement that the slip owners “shall be responsible for maintaining, repairing, replacing and keeping in orderly condition said marina and boat docks,” alleged budgeting improprieties by the Association, the slip owner’s request for a set off, and the statute of limitations and recoupment issues — we adopt the well-reasoned opinion of the trial court and, accordingly, affirm all final judgments under review.

Affirmed.

      . The unit owners originally sought our intervention in this decade-old controversy (the National Weather Service already has re-circulated the storm name "Irene”) three years ago, but that appeal was dismissed for lack of jurisdiction. See Belle Isle Assocs., Inc. v. Nine Island Ave. Ass’n, 990 So.2d 1176 (Fla. 3d DCA 2008).

      . We use the term “own” or slip "owner” in the context of a dock slip in a colloquial sense in this opinion in an effort to make the opinion “easy sailing” for the reader. Under Article I'll, section E.6 of the Declaration, a dock slip "owner” only holds the "right to use” a dock space. This section states:
      Any designation or assignment of a boat dock or space will grant only an exclusive right of use to the boat dock or space as a Limited Common Element appurtenant to the Unit to which it is assigned. An assignment will not convey any title to the underlying real property or to the docking facilities.
      Notably, the Association makes no claim that it holds title to the submerged land under the boat docks.

      . We proceed under the assumption that the phrase "if available” relates back only to "war risk” insurance.

      . It is noteworthy that not only do the slip owners contend the Association must obtain windstorm insurance for the benefit of the slip owners, but also that the cost of the insurance — whatever it may be, and without any limitation — is an Association expense, meaning it must be spread across all of the condominium unit owners, 274 in number, rather than the thirty-six dock and marina users. The condominium documents do not support this assertion.

      . Article II, section L of the Declaration defines the term “Condominium Property” as “the land and personal property that are subjected to condominium ownership under this Declaration, all improvements on said land, and all easements and rights appurtenant thereto for use in connection with the Condominium.” The definition of the word "Building” appears in Article II, section D.


text:
    Carlos GAINZA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2285.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2011.
    Ricardo Corona, Coral Gables, and Nina Tarafa, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. Maynor David BARAHONA, Appellee.
    No. 3D10-1621.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    Thomas L. Hunker, General Counsel, for appellant.
    Marlene S. Reiss, Miami, for appellee.
    Before SHEPHERD and EMAS, JJ. and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This case comes to us for review of an order by the county court granting final summary judgment in favor of Maynor David Barahona. In its order, the trial court, pursuant to Florida Rule of Appellate Procedure 9.030(b)(4), certified to this Court the following question as one of great public importance:

May the permissive fee schedule provisions of Fla. Stat. § [ ]627.736(5)(a)(2)[ ](2008) be applied to claims brought for treatment rendered after January 1, 2008[,] pursuant to personal injury protection policies of insurance purchased prior to January 1, 2008?

This Court initially accepted jurisdiction of this cause pursuant to Florida Rule of Appellate Procedure 9.160.

Having reviewed the briefs, and following oral argument, this Court declines to answer the question certified by the lower court to be one of great public importance, and therefore transfers this appeal, together with the filing fee, to the Eleventh Judicial Circuit of Florida, appellate division, pursuant to Florida Rule of Appellate Procedure 9.160(f)(2).'

      . See Barnett v. Fla. Dep't of Mgmt. Servs., 953 So.2d 461 (Fla.2007) (declining review where the circumstances of the case were fact-specific).


author: EMAS, J.

text:
    Alonzo GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 3D09-1396.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2011.

      Carlos J. Martinez, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General and Forrest L. Andrews, Jr., Assistant Attorney General, and Natalia Costea, for ap-pellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   EMAS, J.

Alonzo Gordon appeals his convictions for attempted second-degree murder and aggravated battery. For the reasons which follow, we reverse the conviction of attempted second-degree murder and remand for a new trial. We also reverse the conviction and sentence for aggravated battery and remand for entry of judgment and resentencing on the reduced offense of simple battery.

During an argument in March of 2008, Gordon hit his girlfriend, Amanda Pfeifer, with his hand and once with a belt, causing bruises to Pfeifer’s body. Pfeifer did not seek medical treatment and sustained no lasting injury. Thereafter, Pfeifer asked Gordon to move out of her apartment, but Gordon refused. On March 10, 2008, Pfeifer piled Gordon’s clothes in a box and put them outside the door. Gordon appeared at that time, pointed a rifle at her, and shot her once in the groin and then again in her hip, breaking her leg. Gordon was charged by information with attempted first-degree murder for the shooting of Pfeifer (Count One) and aggravated battery causing great bodily harm or permanent disfigurement for the earlier striking of Pfeifer with a belt (Count Two).

At the close of Gordon’s trial, the court instructed the jury on attempted first-degree murder and the lesser included offenses of attempted second-degree murder and attempted voluntary manslaughter.

On the lesser included offense of attempted voluntary manslaughter, the trial-court instructed the jury as follows:

To prove the crime of Attempted Voluntary Manslaughter, as a lesser included offense, the State must prove the following two elements beyond a reasonable doubt:
Alonzo J. Gordon committed an act which was intended to cause the death of Amanda Pfeifer and would have resulted in the death of Amanda Pfeifer except he failed to do so.
However, the defendant cannot be guilty of attempted voluntary manslaughter if the attempt [sic] killing was either excusable or justifiable as I have previously explained the term.
It is not an attempt if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of criminal purpose.
In order to convict of attempted voluntary manslaughter, it is not necessary for the State to prove that the defendant had premeditated intent to cause death.

The defense did not object to the instruction as given. Gordon subsequently was convicted of attempted second-degree murder and aggravated battery.

Gordon first contends the trial court fundamentally erred in giving the standard attempted voluntary manslaughter instruction to the jury as a lesser offense, because it imposed the additional element requiring proof of intent to kill. See State v. Montgomery, 39 So.3d 252 (Fla.2010). Based upon the language of the jury instruction, together with the Supreme Court’s decision in Montgomery and this Court’s decisions in Bass v. State, 45 So.3d 970 (Fla. 3d DCA 2010) and Coiscou v. State, 43 So.3d 123 (Fla. 3d DCA 2010), we agree. Accordingly, we reverse the defendant’s conviction and sentence for attempted second-degree murder and remand for a new trial on that charge. See Burrows v. State, 62 So.3d 1258 (Fla. 3d DCA 2011). However, we certify direct conflict with the Fourth District Court of Appeal’s decision in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (distinguishing Montgomery and holding that the giving of the standard jury instruction on attempted voluntary manslaughter does not constitute fundamental error).

Next, Gordon contends the trial court erred in denying his motion for judgment of acquittal on the charge of aggravated battery by great bodily harm where the evidence, consisting only of bruises in various stages of healing, was insufficient to sustain the conviction. More precisely, Gordon asserts that his trial counsel rendered ineffective assistance of counsel by failing to properly move for a judgment of acquittal based upon the complete absence of evidence to establish the element of great bodily harm, and that such a failure constitutes ineffective assistance of counsel on its face. Gordon concedes that the issue was not properly preserved below and he raises this issue for the first time on direct appeal. On appeal, the State does not argue the merits of this issue; rather, the State asserts that the ineffective assistance of counsel claim should be addressed in a postconviction motion rather than on direct appeal.

Claims of ineffective assistance of counsel are generally not reviewable on direct appeal. The proper procedure is to raise the issue through a collateral attack by way of postconviction motion in the trial court, which “allows full development of the issues of counsel’s incompetence and the effect of counsel’s performance on the proceedings.” Baker v. State, 937 So.2d 297, 299 (Fla. 4th DCA 2006) (quoting Grant v. State, 864 So.2d 503, 505 (Fla. 4th DCA 2004)).

However, when “the facts giving rise to such a claim are apparent on the face of the record,” Dante v. State, 903 So.2d 293, 296 (Fla. 3d DCA 2005) (quoting Mizell v. State, 716 So.2d 829, 830 (Fla. 3d DCA 1998)), the issue may be reached during the direct appeal. This case presents just such a circumstance, and it would serve no purpose to require Gordon to file a postconviction motion where the record necessary to decide the issue is already fully developed. In the instant case, the State charged Gordon with committing an aggravated battery by “actually and intentionally touching or striking” the victim “by beating her with a belt” which caused “great bodily harm or permanent disfigurement, to wit: scarring.” See § 784.045(l)(a)l., Fla. Stat. (2008) (“A person commits aggravated battery who, in committing battery: 1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; ....”)

Following the presentation of evidence, and during the charge conference, the State and defense agreed to delete the allegation of permanent disfigurement and submit this count to the jury only on the allegation of great bodily harm. The trial court thereafter instructed the jury that the State had to prove two elements to establish the crime of aggravated battery:

1. Alonzo Gordon intentionally caused bodily harm to the victim.
2. Alonzo Gordon, in committing the battery, intentionally or knowingly caused great bodily harm to the victim.

Whether the defendant caused great bodily harm is typically a question of fact for the jury; however, a jury’s finding of great bodily harm must be supported by competent, substantial evidence. E.A. v. State, 599 So.2d 251, 251 (Fla. 3d DCA 1992) (confirming “great bodily harm means great as distinguished from slight, trivial, minor or moderate harm, and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery.” (citing Owens v. State, 289 So.2d 472, 474 (Fla. 2d DCA 1974)); C.A.C. v. State, 771 So.2d 1261, 1262 (Fla. 2d DCA 2000) (holding “great bodily harm” not established for aggravated battery where defendant stabbed victim two or three times with a fork, leaving victim with scratches, swelling and puncture marks for which victim did not receive medical treatment); Nguyen v. State, 858 So.2d 1259, 1260 (Fla. 1st DCA 2003) (holding “great bodily harm” not established for aggravated battery charge where victim testified she was in pain and had burn marks when defendant shot her with a stun gun; the State presented no evidence that victim required medical treatment for her burns or suffered any lasting ill effects).

Here, the evidence was insufficient as a matter of law to establish the element of great bodily harm. Gordon struck Pfeifer one time with a belt, which caused bruises that healed without any medical treatment, and left neither scarring nor any other lasting effects. As a result, and based on the record before us, we conclude that counsel’s failure to move for judgment of acquittal based on the State’s failure to establish great bodily harm fell outside the “wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Hicks v. State, 41 So.3d 327 (Fla. 2d DCA 2010) (finding ineffective assistance of counsel on face of record for trial counsel’s failure to properly move for judgment of acquittal). Had counsel made a proper motion for judgment of acquittal and argued that evidence was insufficient to establish the element of great bodily harm, the defendant would have been entitled to a judgment of acquittal on the aggravated battery charge, and a reduction of the charge to the lesser included offense of simple battery.

We therefore reverse the conviction and sentence on Count One (attempted second-degree murder) and remand for a new trial. We reverse the conviction and sentence for Count Two (aggravated battery), and remand with directions to enter a judgment of guilt for the lesser-included offense of simple battery, and to proceed with a resentencing on that count.

      . While charging the jury, the trial judge called the attorneys sidebar and said: "I know you asked for those lesser included offenses [i.e., attempted second degree murder and attempted voluntary manslaughter] so justifiable deadly force and excuse [sic] is not necessary.” Defense counsel responded: "That’s correct.” The court provided no instructions to the jury on excusable and justifiable homicide. Because we reverse for a new trial on Count One, we need not decide whether, given defense counsel’s response, the failure to instruct on excusable and justifiable homicide constitutes fundamental error. See Richardson v. State, 818 So.2d 679 (Fla. 3d DCA 2002) (stating general rule that failure to instruct jury on excusable and justifiable homicide in any murder or manslaughter trial constitutes fundamental error, even if defense counsel does not request instruction); cf. Philippe v. State, 795 So.2d 173 (Fla. 3d DCA 2001) (holding failure to instruct jury on excusable and justifiable homicide is not fundamental error where defense counsel affirmatively agrees to omission of instruction).

      . Defense counsel did not move for judgment of acquittal on these grounds at trial. Instead, after the State rested its case, counsel argued generically that the evidence presented failed to establish guilt beyond a reasonable doubt. The court denied the motion. When the defense rested, counsel renewed the motion, this time contending that there were conflicting versions of the events made by the defendant and the victim. The court denied the motion, concluding it was a jury question.

      . Resolution of this issue requires no further development or an evidentiary hearing, because it is based upon the record testimony presented at trial and is viewed in a light most favorable to the State. Moreover, there could be no "strategic'' decision for defense counsel to argue for a judgment of acquittal in boilerplate fashion, when a particularized and proper argument would have resulted in a reduction of the aggravated battery charge (a second-degree felony) to simple battery (a first-degree misdemeanor), or would have at least preserved the issue for appeal. Finally, judicial economy is best served in this case by deciding the issue now; given our disposition of the first issue, it would make little sense to require Gordon to proceed with a postconviction motion on Count Two while, at the same time, preparing to proceed with a new trial on Count One.

      . The information alleged, and there was sufficient evidence to establish, that Gordon "intentionally caused bodily harm to” the victim, which is the first element of aggravated battery. This element constitutes a simple battery. See § 784.045(l)(a)l., Fla. Stat. (providing the first element of an aggravated battery is a simple battery); Fla. R.Crim. P. 3.620 (stating when trial court "is of the opinion that the evidence does not sustain the verdict but is sufficient to sustain a finding of guilt of a lesser degree or of a lesser offense necessarily included in the one charged, the court shall not grant a new trial but shall find or adjudge the defendant guilty of the lesser degree or lesser offense necessarily included in the charge”). See also Jaimes v. State, 51 So.3d 445 (Fla.2010) (holding that where defendant was improperly convicted on charged offense of aggravated battery, but the elements of simple battery were alleged in the charging document, supported by proof at trial, and each element determined by the juty beyond a reasonable doubt, appellate court could remand case to trial court to direct entry of judgment on simple battery).


text:
    TRG SUNNY ISLES VI, LTD., Appellant, v. Joseph FERRELLI, Appellee.
    No. 3D12-79.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Rehearing Denied April 11, 2013.
    Coffey Burlington and Susan E. Raffa-nello, Miami, for appellant.
    Beck & Lee and Jared H. Beck and Elizabeth Lee Beck, Miami, for appellee.
    Before SHEPHERD, CORTIÑAS and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See CRC 603, LLC v. North Carillon, LLC, 77 So.3d 655 (Fla. 3d DCA 2011).


author: ROTHENBERG, J.

text:
    GREAT LAKES REINSURANCE (U.K.) PLC, Appellant, v. Joe Harry BRANAM, Sr., Appellee.
    No. 3D12-1152.
    District Court of Appeal of Florida, Third District.
    March 6, 2013.
    Rehearing Denied April 25, 2013.

      McCalpin Conroy, P.A., and Richard J. McCalpin and Craig P. Liszt, for appellant.
    The Chartwell Law Offices, LLP, and Jerome A. Pivnik, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Great Lakes Reinsurance (U.K.) PLC (“Great Lakes”) appeals from the denial of its motion for a directed verdict as to Joe Harry Branam, Sr.’s (“JHB”) breach of contract claim. Because we conclude that JHB failed to present sufficient evidence to support his breach of contract claim, we reverse and remand for entry of judgment in favor of Great Lakes.

THE DAMAGE TO THE JOE COOL

On September 22, 2007, the Joe Cool, a charter fishing boat owned by Deep Sea Miami, Inc. (“Deep Sea Miami”) and insured by Great Lakes, was hijacked. The hijackers murdered all four members of the vessel’s crew, including Jake Branam, the sole officer, director, and shareholder of Deep Sea Miami, leaving the Joe Cool’s decks and cabin soaked with blood and damaged by gunfire. The hijackers threw the victims’ bodies overboard and attempted to abscond to Cuba on the vessel. According to JHB’s expert, on their way to Cuba, the hijackers caused extensive damage to the Joe Cool’s engines by running them at full throttle continuously for six or seven hours. Before reaching Cuban waters, the hijackers ran out of gas, and eventually abandoned the Joe Cool in a life raft.

Shortly after the hijacking, the Coast Guard recovered the Joe Cool off the coast of Cuba and towed it back to Miami. During the tow, the Coast Guard failed to secure the Joe Cool’s props. JHB’s expert opined that the failure to secure the props caused extensive damage to the Joe Cool’s transmissions. The record reflects that during the tow, the vessel’s hull, steering arm, and various other components were also damaged.

After the vessel arrived in Miami, the Federal government conducted a two-week investigation aboard the Joe Cool, during which the investigators disassembled the vessel’s electronics and much of its interi- or. On October 4, 2007, the Coast Guard released the Joe Cool to Jeff Branam, Jake Branam’s uncle, who docked it in the water behind his Star Island residence for the next three years. While docked, Jake Branam maintained the vessel’s bilge pumps and battery charger in working order, but did not otherwise perform any maintenance on the vessel.

THE LITIGATION AND INSURANCE POLICY DEMANDS

On November 1, 2007, JHB filed the instant action against Jake Branam, Deep Sea Miami, and others to establish and foreclose on an equitable lien on the Joe Cool. Jeff Branam thereafter intervened as an additional lien claimant.

At that time, no one had authority to file an insurance claim for the damage done to the Joe Cool. The named insureds in the insurance policy were Jake Branam and Deep Sea Miami. But Jake Branam was deceased and, at that time, no one had been named the personal representative of his estate. Further, because Jake Branam was Deep Sea Miami’s sole officer, director, and shareholder, and because no one had been named conservator for Deep Sea Miami, no one had the authority to act on the company’s behalf. Finally, no loss payee was designated in the insurance contract.

Thus, on October 8, 2008, the trial court entered an order authorizing JHB and Jeff Branam to jointly file an insurance claim on the Joe Cool, stating:

[I]n light of the death of the principals of Deep Sea Miami, Inc., there appears to be no one presently authorized to file an insurance claim on behalf of the owner which was insured at the time of the loss. Accordingly, it is hereby
ORDERED and ADJUDGED that:
1. Plaintiff [JHB] and Intervenor Jeffery Branam (jointly, through their respective counsel), as lien claimants against the vessel, are hereby authorized to file a claim for damage to the vessel under aforesaid policy....

(emphasis added).

On the same day, JHB’s attorney, Ms. Inger Garcia, issued a policy limits demand of $250,000 to Offshore Risk Management, the agent of the insureds rather than the insurer, Great Lakes. According to the testimony of Offshore Risk Management’s representative Peter Shaw, Offshore Risk Management transmitted the demand to Great Lakes the following day. The demand, however, apparently never made its way to its intended recipient at Great Lakes. In any event, Ms. Garcia admitted that in making the demand, she represented only JHB, and did not have permission to file the claim on Jeff Bra-nam’s behalf.

On May 17, 2009, after being advised that no claim had been received by Great Lakes, Ms. Garcia issued a second $250,000 policy limits demand directly to Great Lakes. Again, in making this second demand, Ms. Garcia admitted that she represented only JHB. Great Lakes refused to adjust the claim until it received documentation demonstrating that JHB was authorized to act unilaterally on behalf of the insureds, noting that JHB had not been appointed the receiver for Deep Sea Miami, nor the personal representative of Jake Branam’s estate. JHB did not provide such documentation. Indeed, as a stranger to the policy, he could not.

On June 4, 2010, as part of a settlement agreement, Jeff Branam assigned his lien claim interest in the Joe Cool to JHB. Then, on August 9, 2010, JHB, by and through his new counsel, Jerome A. Piv-nik, issued a third $250,000 policy limits demand. Like Ms. Garcia, in making this demand, Mr. Pivnik represented only JHB. Upon receiving this demand, Great Lakes again requested that JHB provide documentation establishing his authority to act unilaterally on behalf of the insureds. Still, JHB provided no such documentation.

In the meantime, Genny Van Laar was appointed personal representative of Jake Branam’s estate. On October 5, 2010, the Joe Cool was sold for its salvage value of $60,000. Then, on November 22, 2010, Genny Van Laar, in her capacity as personal representative, assigned to JHB the rights to the Joe Cool and the insurance policy. JHB, however, did not notify Great Lakes of this assignment until March 4, 2011, when JHB impleaded Great Lakes into the lawsuit and attached the assignment to the complaint, claiming breach of contract for denying his previously filed claims. After learning of the assignment, Great Lakes offered to settle JHB’s claim for $30,000 on April 14, 2011, and again on May 17, 2011. JHB, however, rejected the first offer, and did not respond to the second one.

A two day bench trial began on January 24, 2012. The crux of JHB’s case was that Great Lakes “effectively” denied coverage by refusing to pay or adjust his claims in a reasonable time period, and thereby breached the insurance contract.

At the close of JHB’s case-in-chief, Great Lakes moved for a directed verdict, arguing, among other things, that JHB lacked the authority to file the insurance claims at issue and, therefore, failed to prove that Great Lakes had breached the insurance contract as a matter of law. The trial court disagreed, determining that the trial court’s October 8, 2008, order provided JHB with the authority to file the policy claims. Further, relying on section 627.70131(5)(a), Florida Statutes (2009), which sets forth a ninety-day time limitation for the payment or denial of certain types of insurance claims, the trial court determined there was sufficient evidence to establish that Great Lakes breached the insurance contract by not adjusting the claim within ninety days of the October 8, 2008, demand, or, if that demand was invalid because it was not submitted directly to Great Lakes, within ninety days of the subsequent May 17, 2009, claim, which was submitted directly to Great Lakes.

[Counsel for JHB]: The date that Your Honor just referenced, the October 8th, 2008, that was an on-line submission by Ms. Garcia to Offshore Risk Management. Great Lakes never got that, and that’s clearly been the testimony in the court....
[The Trial Court]: Okay. Well, it’s still more than 90 days since May, 2009.
[The Trial Court]: Well, anyway, I accept the Defendant’s view that there was no one with authority before October 8th, 2008. On October 8th, 2008, the circuit court gave authority....
[P]erhaps you [can] make an argument ... that the October 8th ... notice was defective in its form because of who it was sent to.
But the May of 2009 notice is undisputed. So, and I don’t think it really changes the case if I use which date I use.
So the court does respectfully deny the motion for a directed verdict.

After Great Lakes presented its defense, the trial court ruled in favor of JHB, determining that Great Lakes breached the insurance contract and that the Joe Cool was a constructive total loss, and calculating damages at $162,000. The trial court thereafter denied Great Lakes’s motion for a new trial or alternatively to amend the judgment, and entered final judgment in favor of JHB. This appeal followed.

ANALYSIS

The main issue presented on appeal is whether JHB presented sufficient evidence to withstand Great Lakes’s motion for a directed verdict. JHB premised his case on the notion that Great Lakes “effectively” denied coverage by refusing to adjust JHB’s claims within ninety days of their submission, and therefore breached the insurance contract. JHB, however, was a stranger to the insurance policy. Thus, to survive a motion to dismiss, JHB was required to present evidence establishing that the claims he filed were valid or otherwise triggered Great Lakes’s contractual obligations. Because he did not, we reverse the trial court’s denial of Great Lakes’s motion for a directed verdict. We also note that the ninety-day time limitation cited by JHB and relied on by the trial court is inapplicable to the instant insurance policy.

A. JHB Did Not Have Authority to File Insurance Claims on the Joe Cool on October 8, 2008, May 17, 2009, or August 9, 2010.

JHB was neither a named insured nor a loss payee under the insurance policy. He was likewise neither the personal representative of Jake Branam’s estate nor the conservator for Deep Sea Miami. Thus, prior to receiving the assignment of the policy rights, JHB was a complete stranger to the insurance policy, and lacked authority to file claims thereunder. See Lauren Kyle Holdings, Inc. v. Heath-Peterson Constr. Corp., 864 So.2d 55, 58 (Fla. 5th DCA 2008) (noting that “[a]n assignment is a transfer of all the interests and rights to the thing assigned. The assignee thereafter stands in the shoes of the assignor and may enforce the contract against the original obligor in his own name”) (emphasis added) (internal citations omitted). The record reflects that JHB was assigned the policy rights on November 22, 2010. Thus, the claims filed by JHB before this assignment—on October 8, 2008, May 17, 2009, and August 9, 2010,—were without legal force.

JHB contends that the combination of the previously-filed claims and the subsequent notice of assignment ultimately triggered Great Lakes’s contractual obligations. It must be kept in mind, however, that any such contractual obligations could not have been triggered until the moment notice of the assignment was provided. See Richard A. Lord, Williston on Contracts § 74:56 (4th ed. 2012) (noting that “although ‘notice to an obligor is not essential to the validity of an assignment as between an assignor and an assignee, until such notice has been given, the obli-gor may continue to regard the assignor as the owner of the interest or thing assigned, whether it be a leasehold; a contract to pay rent; a lien or charge against property; or otherwise’ ”). Since the notice of the assignment was provided simultaneously with the filing of the breach of contract claim on March 4, 2011, it cannot be said that, prior to the filing of the lawsuit, Great Lakes had ever denied a valid claim that would have given rise to JHB’s breach of contract action.

In ruling to the contrary, the trial court noted that prior to the assignment, on October 8, 2008, the trial court issued an order allowing JHB and Jake Branam to jointly file an insurance claim for the damage to the Joe Cool. The trial court also observed that, pursuant to that order, JHB’s attorney, Ms. Garcia, submitted a claim to Offshore Risk Management on October 8, 2008, and, later, on May 17, 2009, submitted a claim directly to Great Lakes. Additionally, JHB’s subsequent attorney, Mr. Pivnik, submitted a policy demand to Great Lakes on August 9, 2010. The trial court concluded that since these claims were filed under the authority of the October 8, 2008, order, they triggered Great Lakes’s contractual responsibilities even before JHB was assigned the policy rights.

This reasoning is misguided because no joint claim was ever filed, as required by the October 8, 2008, order. Ms. Garcia testified at trial that in filing the claims on October 8, 2008, and May 17, 2009, she represented only JHB, did not file the claims on Jeff Branam’s behalf, and did not have permission to do so.

Q. Ms. Garcia, isn’t it true that Jeffrey Branam or his attorney, David Friedman, never gave you authority to act on their behalf in filing any insurance claim? Isn’t that true, ma’am?
A. I was working with his lawyer so I’m not sure how to answer that except to say we were working together to file the claim.
Q. Did he give you permission to file a claim on his behalf?
A. We filed it on behalf of Deep Sea. So, no, I didn’t file on behalf of Jeffrey because he wasn’t the assured (sic)....

The record reflects that Mr. Pivnik likewise represented only JHB when he filed the August 9, 2010, policy limits demand.

In fact, after these claims were filed, Jeff Branam informed Great Lakes that he wanted nothing to do with them, as, in his view, they may have been “bogus.”

Q: Now, did there come a time when you became aware of Inger Garcia making the claim against the insurance policy?
A: Vaguely, yes.
Q: Were you ever associated, you Jeff Branam, or your mother, so far as you know, ever associated with making the claim on the insurance policy for physical damage to the boat?
A. Never made a claim.
Q. And why not?
A. Didn’t own the boat.

Thus, even assuming the October 8, 2008, order was valid, the order’s requirement that the claim be jointly filed was never satisfied. Accordingly, the claims purportedly filed pursuant to the October 8, 2008, order could not have triggered Great Lakes’s contractual obligations.

JHB notes that it attached the assignment of Jeff Branam’s lien claim on the Joe Cool to the August 9, 2010, demand, and argues this assignment authorized him to file a claim without JHB. This assignment, however, merely granted to JHB Jeff Branam’s rights as a lien claimant, and did not grant him any rights under the policy. Perhaps, upon receiving this assignment, JHB could have persuaded the trial court to enter an order enabling him to file a claim without JHB, as the trial court seemed inclined to issue such orders. JHB, however, made no such request. Thus, without the policy rights and without a trial court order authorizing him to file a claim unilaterally, JHB remained a stranger to the insurance policy without authority to file a claim thereunder.

B. The Ninety-Day Time Limitation Relied on by the Trial Court is Inapplicable.

Contrary to the trial court’s determination, there is no ninety-day time limitation governing this insurance contract. Importantly, the insurance policy does not contain a time limitation for the adjustment of a claim. Rather, the ninety-day period relied on by the trial court was derived from section 627.70131(5)(a), Florida Statutes, which states:

Within 90 days after an insurer receives notice of a property insurance claim from a policyholder, the insurer shall pay or deny such claim or a portion of the claim unless the failure to pay such claim or a portion of the claim is caused by factors beyond the control of the insurer which reasonably prevent such payment....

On its surface, section 627.70131(5)(a) would seem to govern the instant set of facts. Upon closer examination, however, it is clearly inapplicable for two reasons. First, the plain language of section 627.70131(4) specifies that “[f|or purposes of this section, the term ‘insurer’ means any residential property insurer.” Because Great Lakes in this situation acted as a marine insurer rather than a residential property insurer, it was not subject to this section’s ninety-day requirement.

Second, and more importantly, pursuant to the choice of law provision in the contract, the dispute regarding the governing time frame for the adjustment of claims is governed by New York law rather than Florida law. The choice of law provision states:

It is hereby agreed that any dispute arising hereunder shall be adjudicated according to well established, entrenched principles and precedents of substantive United States Federal Admiralty law and practice but where no such well established, entrenched precedent exists, this insuring agreement is subject to the substantive laws of the state of New York.

Because this dispute arises under the contract, and the parties agree that there are no relevant well-established, entrenched principles and precedents of substantive Admiralty law, New York law, rather than Florida law, applies. Thus, the trial court erred in determining that a Florida provision governed this dispute.

C. The Thirty-Day and Fifteen-Day New York Time Limitations Cited by JHB are Likewise Inapplicable.

JHB next argues that New York law is even more stringent than Florida law with respect to the timeframe for adjusting claims. In support, JHB cites to New York Insurance Law section 2601, (McKinney 2009), for the proposition that an insurer must “acknowledge with reasonable promptness pertinent communications as to claims arising under its policies,” and that “[ajfter receiving a properly executed proof of loss, the insurer shall advise the claimant of acceptance or denial of the claim within thirty working days.” This provision, however, is inapplicable in a breach of contract context, as it is well settled New York law that section 2601 “grants no private right of action to an insured, but merely permits the New York State Department of Insurance to punish violators.” Gucciardo v. Reliance Ins. Co., 84 F.Supp.2d 399, 403 (E.D.N.Y.2000) (citation omitted); see also Okslen Acupuncture P.C. v. Dinallo, 25 Misc.3d 637, 884 N.Y.S.2d 804, 811 (N.Y.Sup.Ct.2009).

In addition, JHB cites to the New York Compilation of Codes, Rules & Regulations title 11, section 216.6(c) (2009), for the proposition that New York law’s time-frame is actually fifteen days. Section 216.6(c) states:

Within 15 business days after receipt by the insurer of a properly executed proof of loss and/or receipt of all items, statements and forms which the insurer requested from the claimant, the claimant, or the claimant’s authorized representative, shall be advised in writing of the acceptance or rejection of the claim by the insurer.

N.Y. Comp. Codes R. & Regs. tit. xi, § 216.6(c). Like section 2601, however, section 216.6(c) is inapplicable by its own terms. Section 216.2(a) states that Part 216 of the New York Compilation of Codes, Rules and Regulations, which includes section 216.6(c), “shall not be applicable to ... ocean marine insurance issued pursuant to the provisions of section 1113(a)(20) and (21).” Because this policy was clearly a marine insurance policy issued pursuant to the provisions of section 1113(a)(20) and (21), the limitations set forth in section 216.6(c) are inapplicable. See N.Y. Ins. Law § 1113(a)(20) (McKinney 2012) (authorizing “insurance against any and all kinds of loss of or damage to: (A) Vessels, hulls, craft ... in respect to, appertaining to or in connection with any and all risks or perils of navigation, transit, or transportation, including war risks, on or under any seas or other waters....”); N.Y. Ins. Law § 1113(a)(21) (McKinney 2012) (authorizing “insurance against, or against legal liability of the insured for, loss, damage or expense arising out of, or incident to, the ownership, operation, chartering, maintenance, use, repair or construction of any vessel, craft or instrumentality in use in ocean or inland waterways....”). Thus, the time limitations relied on by the trial court and cited to by JHB are inapplicable.

In sum, every provision of Florida and New York law cited by JHB purporting to set a strict temporal limitation on the adjustment of claims is inapplicable, and the trial court therefore erred in relying on such limitations to conclude that Great Lakes breached the insurance contract.

D. Conclusion

In this case, the record reflects that JHB issued various insurance policy demands upon Great Lakes under Jake Bra-nam’s and Deep Sea Miami’s insurance policy. Upon receiving these claims, Great Lakes requested that JHB submit documentation establishing his authority to act on behalf of the insureds. JHB, however, had no such authority, and therefore could not submit the requested documentation. On this basis, Great Lakes refused to adjust JHB’s claims. The record does not support JHB’s breach of contract claim. We therefore reverse the trial court’s denial of Great Lakes’s motion for a directed verdict, and remand for entry of judgment in favor of Great Lakes.

Reversed.

      .Great Lakes also appeals the entry of final judgment in favor of JHB; the denial of Great Lakes's motion for new trial or alternatively motion to amend the judgment to recalculate damages; and award of prejudgment interest from the date of the hijacking. Our reversal of the denial of Great Lakes's motion for directed verdict, however, renders these issues moot. We therefore limit our discussion to the denial of the motion for directed verdict.

      . Mr. Kwederas concluded the engines needed to be overhauled. He later admitted, however, he neither conducted a test nor thoroughly inspected the engines in so concluding.

      . Jeff Branam arranged for the vessel to be driven back to his Star Island residence. Great Lakes’s expert testified that the fact that the vessel was driven to Jeff Branam's home demonstrates that at least one of the engines and transmissions was not substantially damaged.

      . As we explained above, Mr. Pivnik also submitted a third policy demand on August 9, 2010. But, because the trial court determined that the May 17, 2009, demand was valid, in its view the subsequent claim filed was irrelevant.

      . We also note that the ninety-day limitation set forth in section 627.7013 l(5)(a) is triggered only upon the insurer’s receipt of "a property insurance claim from a policy holder.” (emphasis added). As we have explained at length, JHB was not a policy holder, and did not stand in the shoes of a policy holder until receiving the assignment of policy rights on November 22, 2010, which was after JHB filed his claims. Thus, because Great Lakes never received a property insurance claim from a "policy holder,” the ninety-day time limitation in section 627.7013l(5)(a) could not have been triggered.